EXHIBIT 99.14
GLOBAL NOTE
THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED OR PLEDGED, EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE
SECURITIES LAWS, OR IF THE PROPOSED TRANSFER MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR REGISTRATION OR QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS. THIS NOTE IS SUBJECT TO THE TERMS AND
PROVISIONS OF THE SECURITIES PURCHASE AGREEMENT (THE "PURCHASE AGREEMENT") AMONG
EXCHANGE APPLICATIONS, INC., EXSTATIC SOFTWARE, INC. AND THE PURCHASERS THEREIN,
DATED AS OF [APRIL __, 2002], AS AMENDED FROM TIME TO TIME, AND THE HOLDERS OF
THIS NOTE ARE ENTITLED TO THE BENEFITS THEREOF.
THE INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO CERTAIN
SENIOR INDEBTEDNESS TO THE EXTENT PROVIDED IN [THE SUBORDINATION LETTER
AGREEMENT] DATED AS OF THE DATE HEREOF, AMONG THE PURCHASERS HEREOF AND SVB (AS
MAY BE AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME,
THE "SUBORDINATION LETTER AGREEMENT").
EXCHANGE APPLICATIONS, INC.
SENIOR SECURED NOTE
New York, New York
UP TO U.S. $4,000,000 [April __, 2002]
SECTION 1. GENERAL; INTEREST; ADJUSTMENTS.
(a) General. For value received, EXCHANGE APPLICATIONS,
INC., a Delaware corporation (the "Company") and EXSTATIC SOFTWARE, INC. (f/k/a
Xxxx Xxxxxxx, Inc.), a Washington corporation ("eXstatic") (the Company and
eXstatic, including any successors of the Company or eXstatic (by way of merger,
consolidation, sale or otherwise) together, the "Payors"), hereby promise to pay
to the order of the payees listed on Schedule I hereto or such payee's assigns
(the "Payees"), the unpaid principal balance of this Note (representing the
unreimbursed payments by the Payees under the April Guaranty), plus any accrued
and unpaid interest thereon, which may be outstanding hereunder on the date
which is 30 days after the first Funding Date (the "Note Maturity Date"). Each
Payee's portion of the unpaid principal amount of this Note and the accrued and
unpaid interest thereon, shall be payable by wire transfer of immediately
available funds to the account of such Payee or by certified or
official bank check payable to each Payee mailed to such Payee at the address of
such Payee as set forth on Schedule I hereto, the records of the Payors or such
other address as shall be designated in writing by such Payee to the Payors.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed thereto in the Purchase Agreement.
(b) Fundings. In connection with any Funding, the Payors
irrevocably authorize the Payees to make, or cause to be made, an appropriate
notation on the grid attached as Schedule I hereto, or the continuation of such
grid or any other similar record, including computer records, to reflect any
adjustments thereto, as appropriate and the Payors shall acknowledge such
updates by signing Schedule I, to reflect the amount of such Funding as
additional outstanding principal hereunder. The outstanding amount of this Note
set forth on such grid, or the continuation of such grid, or any other similar
record, including computer records maintained by the Payees with respect to this
Note, shall be prima facie evidence of the principal amount owing and unpaid by
the Payors to the Payees, but the failure to record, or any error in so
recording any such amount on any such grid, or any continuation thereof, or
other record shall not limit or otherwise affect the obligation of the Payors
hereunder to make payments of principal and interest on this Note when due.
(c) Interest. Interest shall accrue daily on all Fundings
evidenced hereby (plus all unpaid overdue interest thereon), from and after the
date of such Funding until the entire amount of such Funding and all interest
accrued thereon have been paid in full, at the rate of 2% per month (the
"Initial Rate of Interest"); provided, however, that upon the occurrence of an
Event of Default, the Initial Rate of Interest shall be automatically increased
by 1% per month from the date that such Event of Default has occurred and is
continuing until the date such Event of Default is cured, waived in writing by
the Note Majority or otherwise satisfied by the Payors in full. For example,
interest shall accrue at a rate of 3% per month during the first 30-day period
following the occurrence of an Event of Default, beginning the day after such
Event of Default, and a rate of 4% per month during the second 30-day period
following the occurrence of an Event of Default, beginning 31 days after such
Event of Default, and so on. The Payors shall pay interest on the Note Maturity
date or any other date on which repayments of principal are made (on the amounts
so prepaid) or, if the Note Maturity Date shall not be a Business Day, on the
next succeeding Business Day to occur after such date. Interest shall be payable
in cash by wire transfer of immediately available funds. Interest shall be
computed on the basis of a 360-day year and the actual number of days elapsed.
(d) Joint and Several Obligations. Each Payor shall be
jointly and severally liable to each Payee for all of the monetary and other
obligations of the Payors under this Note.
(e) Application of Proceeds. All payments made by the
Payors hereunder shall be applied first, to the payment of all accrued interest
on the earliest Funding recorded on Schedule I and second, to the repayment of
the principal amount of the earliest Funding recorded on Schedule I, in turn,
until all interest and principal hereunder have been paid in full.
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SECTION 2. PREPAYMENT.
(a) Prepayment at the Option of the Payors. The principal
amount of this Note, together with the accrued and unpaid interest thereon, may
be prepaid in whole or in part without premium or penalty at the option of the
Payors at any time.
(b) Required Prepayment. At any time prior to the Note
Maturity Date and following the earlier of (i) the occurrence of each Event of
Default (and only during the continuation of each such Event of Default), and
(ii) immediately upon (or immediately prior to) the consummation of a Sale of
the Company, each Payee may elect, at any time and from time to time thereafter,
to have the Payors prepay in whole or in part the aggregate outstanding
principal amount of this Note, plus any accrued and unpaid interest thereon (the
"Prepayment Amount"); provided, that upon the occurrence of an Event of Default
described in Section 3(a)(vii) or (viii), all amounts due and owing under this
Note and the other Financing Documents shall automatically, without requiring
notice or action of any other kind, become immediately due and payable. The
Payors shall provide prompt written notice to each Payee of (i) an Event of
Default and (ii) its entering into any agreement which is reasonably likely to
result in a Sale of the Company. The Note Majority shall give written notice to
the Payors of such election (the "Notice of Election"), whereupon the Payors
shall be obligated to prepay such Prepayment Amount on the date which shall be
determined by the Payors (the "Prepayment Date"), but in any event shall not be
later than 10 days after the date on which the Notice of Election is delivered
to the Payors. All such prepayments shall be made by wire transfer of
immediately available funds to a bank account designated by each Payee.
(c) General. Anything contained in this Section 2 to the
contrary notwithstanding, the outstanding principal amount of this Note, plus
any accrued but unpaid interest thereon, shall remain subject to the prepayment
provisions of this Section 2 at all times up to the date on which the full
amount of the principal amount of this Note, plus any accrued but unpaid
interest thereon, is paid in full to the Payees.
SECTION 3. EVENTS OF DEFAULT.
(a) Definition. In each case of the happening of any of
the following events (each of which is an "Event of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
or lapse of time, a "Default"):
(i) if a default (other than a default pursuant
to Section 3(a)(ii)) occurs in the due observance or performance of any
covenant or agreement of the Payor to be observed or performed pursuant
to the terms of any of the Financing Documents and such default shall
continue (if curable) for more than fifteen (15) days after the
occurrence thereof;
(ii) if a default occurs in the payment of any
principal or interest under this Note or any of the other Notes issued
pursuant to the Purchase Agreement, whether at the stated date of
maturity or any accelerated date of maturity or any other date fixed
for payment;
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(iii) if any representation or warranty of the
Payor or any of its Subsidiaries in any Financing Document or in any
other document or instrument delivered pursuant to the Purchase
Agreement shall prove to have been false in any material respect (with
the foregoing materiality standard not to be construed in any manner
giving duplicative effect to any materiality standard contained in the
terms of such representation and warranty) upon the date when made or
deemed to have been made;
(iv) if any Payor shall (1) discontinue its
business, (2) apply for or consent to the appointment of a receiver,
trustee, custodian or liquidator of it or any of its property, (3)
admit in writing its inability to pay its debts as they mature, (4)
make a general assignment for the benefit of creditors, or (5) file a
voluntary petition in bankruptcy, or a petition or an answer seeking
reorganization or an arrangement with creditors, or to take advantage
of any bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation Laws, or an answer admitting the material
allegations of a petition filed against it in any Proceeding under any
such Law;
(v) there shall be filed against any Payor an
involuntary petition seeking reorganization of such Payor or the
appointment of a receiver, trustee, custodian or liquidator of such
Payor or a substantial part of its assets, or an involuntary petition
under any bankruptcy, reorganization or insolvency Law of any
jurisdiction, whether now or hereafter in effect and such petition or
appointment shall continue unstayed and in effect for a period of 30
consecutive days; or
(vi) if final judgment(s) for the payment of
money in excess of an aggregate amount of $500,000 not covered by
insurance shall be rendered against any Payor and shall remain
undischarged for a period of 30 consecutive days during which such
judgment and any levy or execution thereof shall not have been
effectively stayed or vacated;
then, upon each and every such Event of Default and at any time thereafter
during the continuance of such Event of Default, at the election of the Note
Majority, any and all Indebtedness of the Payors to the Payees under this Note
shall immediately become due and payable, including as to principal and interest
(including any deferred interest and any accrued and unpaid interest), without
presentment, demand, or protest, all of which are hereby expressly waived,
anything contained herein or in the Purchase Agreement or other evidence of such
Indebtedness to the contrary notwithstanding, provided, that upon the occurrence
of an Event of Default described in Section 3(a)(vii) or (viii), all amounts due
and owing under this Note and the other Financing Documents shall automatically,
without requiring notice or action of any other kind, become immediately due and
payable. Events of Default may be waived by consent of the Note Majority.
(b) Remedies on Default, Etc.
In case any one or more Events of Default shall occur and be continuing
and acceleration of this Note or any other Indebtedness of the Payors to the
Payees shall have occurred, the Note Majority may, among other things, proceed
to protect and enforce its rights by an action at Law, suit in equity or other
appropriate Proceeding, whether for the specific performance of any
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agreement contained herein or any of the other Financing Documents, or for an
injunction against a violation of any of the terms hereof or thereof or in and
of the exercise of any power granted hereby or thereby or by Law. No right
conferred upon each Payee hereby or by the Purchase Agreement shall be exclusive
of any other right referred to herein or therein or now or hereafter available
at law, in equity, by statute or otherwise.
SECTION 4. INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT;
SUBORDINATION.
Notwithstanding anything to the contrary, each Payee acknowledges and
agrees that its rights, benefits and remedies and the exercise thereof are
subject to the terms and provisions of (i) the Intercreditor and Collateral
Agency Agreement, dated as of August 29, 2001, as amended, supplemented, revised
or replaced from time to time (including by Amendment No. 1 to the Intercreditor
and Collateral Agency Agreement, dated as of the date hereof) among the Payees
and the other parties thereto, and (ii) the Payees and the [Subordination Letter
Agreement] dated as of the date hereof among SVB and the Payees.
SECTION 5. DEFENSES.
The obligations of the Payors under this Note shall not be subject to
reduction, limitation, impairment, termination, defense, set-off, counterclaim
or recoupment for any reason.
SECTION 6. EXCHANGE OR REPLACEMENT OF NOTE.
(a) The Payees collectively may, at their option, in
person or by duly authorized attorney, surrender this Note for exchange, at the
principal business office of any Payor, and the Payees will receive in exchange
therefor, a new Note in the same principal amount as the unpaid principal amount
of this Note and bearing interest at the same annual rate as this Note, such new
Note to be dated as of the date of this Note and to be in such principal amount
as remains unpaid and payable to such person or persons, or order, as each Payee
may designate in writing.
(b) Upon receipt by the Payors of evidence satisfactory
to it of the loss, theft, destruction, or mutilation of this Note, and (in case
of loss, theft or destruction) of an indemnity reasonably satisfactory to it,
and upon surrender and cancellation of this Note, if mutilated, the Payors will
deliver a new Note of like tenor in lieu of this Note. Any Note delivered in
accordance with the provisions of this Section 6 shall be dated as of the date
of this Note.
SECTION 7. EXTENSION OF MATURITY.
Should the principal of or interest on this Note become due and payable
on other than a Business Day, the maturity date thereof shall be extended to the
next succeeding Business Day, and, in the case of principal, interest shall be
payable thereon at the rate per annum herein specified during such extension.
SECTION 8. INTEREST SAVINGS.
Interest shall be payable on the aggregate outstanding principal amount
of all Fundings, and to the maximum extent permitted by applicable Law, at the
applicable rate of interest set forth in Section 1(c) hereof until paid in full.
The Payees and the Payors intend to contract in
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strict compliance with applicable usury Law from time to time in effect. In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Note shall ever be construed to create a contract to
pay, for the use, forbearance or detention of money, interest in excess of the
maximum rate of interest permitted to be charged pursuant to applicable Law from
time to time in effect, and if the applicable rate of interest hereunder would
exceed the maximum rate allowable under applicable Law, the interest rate
applicable hereunder shall automatically be lowered to the maximum rate of
interest permitted to be charged pursuant to applicable Law.
SECTION 9. ATTORNEYS' AND COLLECTION FEES.
Should the indebtedness evidenced by this Note or any part hereof be
collected at law or in equity or in bankruptcy, receivership or other court
proceedings, or this Note be placed in the hands of attorneys for collection,
the Payors agree to pay, in addition to principal and interest due and payable
hereon, all reasonable costs of collection, including reasonable attorneys' fees
and expenses, incurred by the Payees in collecting and enforcing this Note as
applicable.
SECTION 10. WAIVERS.
(a) Each Payor hereby waives presentment, demand for
payment, notice of dishonor, notice of protest and all other notices or demands
in connection with the delivery, acceptance, performance or default of this
Note.
(b) No delay by the Note Majority in exercising any power
or right hereunder shall operate as a waiver of any power or right, nor shall
any single or partial exercise of any power or right preclude other or further
exercise thereof, or the exercise of any other power or right hereunder or
otherwise; and no waiver whatsoever or modification of the terms hereof shall be
valid unless set forth in writing by the Note Majority and then only to the
extent set forth therein.
SECTION 11. AMENDMENTS AND WAIVERS.
Except for amendments that are made to reflect transfers among the
Payee and/or its affiliates, and do not increase the overall amount of
indebtedness hereunder (and such amendments may be made by the Note Majority),
no provision of this Note may be amended or waived except if such amendment and
waiver is in writing and is signed, in the case of an amendment, by the Note
Majority and the Payors, or, in the case of a waiver, by the party against whom
the waiver is to be effective; provided, that, each Payee shall execute and
deliver any amendment or waiver also being executed and delivered by the Note
Majority, and each Payee hereby authorizes a representative designated by the
Note Majority to execute and deliver any such amendment or waiver on such
Payee's behalf.
SECTION 12. GOVERNING LAW.
This Note is made and delivered in, and shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to principles of conflicts of laws).
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SECTION 13. NOTICES.
The terms and provisions of Section 8.4 of the Purchase Agreement are
expressly incorporated into this Note.
SECTION 14. SEVERABILITY.
If any provision of this Note is held in any jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Note or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, such
provision shall automatically be amended to the extent (but only to the extent)
necessary to make it not invalid, prohibited or unenforceable in such
jurisdiction, without invalidating the remaining provisions of this Note or
amending or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 15. ASSIGNMENT.
Neither the Payors nor any Payee may assign their respective rights or
obligations hereunder to any Person, except that each Payee may assign any of
its rights and obligations hereunder to its members, limited partners or any
Affiliate of such Payee; provided, that the assignment assigns at least $500,000
in face amount of this Note.
SECTION 16. SECURITY.
Repayment of the obligations evidenced by this Note is secured by all
of the tangible and intangible assets of the Payors pursuant to that certain
Security Agreement, dated the date hereof, among the Payors, the Payees (or
their Collateral Agent) and the other parties thereto.
* * * * *
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IN WITNESS WHEREOF, each Payor has duly executed and delivered this
Note as of the date first written above.
EXCHANGE APPLICATIONS, INC.
By:
----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: President and CEO
EXSTATIC SOFTWARE, INC.
By:
----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: President and CEO
SCHEDULE I
DATE OF AMOUNT OF OUTSTANDING PAYOR PAYEE
PAYEE FUNDING DATE FUNDING AMOUNT REPAYMENT REPAYMENT PRINCIPAL BALANCE DATE SIGNATURE SIGNATURE
----- ------------ -------------- --------- --------- ----------------- ---- --------- ---------
Insight Venture
Partners IV, L.P.
Insight Venture
Partners
(Cayman) IV,
L.P.
Insight Venture
Partners IV (Fund
B), L.P.
Insight Venture
Partners IV (Co-
Investors), L.P.
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