Exhibit 10.6
FORM OF PROMISSORY NOTE AND PLEDGE AGREEMENT
(Greater Than $200,000 Principal Amount)
$ Broomfield, Colorado
[DATE]
FOR VALUE RECEIVED, the undersigned, [NAME], an individual residing at
[ADDRESS] (the "Borrower"), hereby unconditionally promises to pay to LEVEL 3
COMMUNICATIONS, INC., a Delaware corporation (the Lender") at 0000 Xxxxxxxx
Xxxx., Xxxxxxxxxx, XX 00000 (as hereinafter defined) in lawful money of the
United States and in immediately available funds, the principal amount shown as
outstanding on Schedule 1 to this Note and Pledge Agreement (this "Note") but in
an amount not to exceed [DOLLAR AMOUNT] ($ ). The principal amount shall be paid
in full on [DATE], subject to acceleration of the maturity as provided below
(the "Maturity Date").
Borrower shall be entitled to borrow up to the maximum principal amount of
[DOLLAR AMOUNT] Dollars of this Note, but shall not be entitled to reborrow any
amounts pre-paid under this Note.
The unpaid principal amount of this Note and Pledge Agreement (this "Note")
shall bear simple interest at the rate of [PRIME RATE OF INTEREST ON THE DATE OF
THE NOTE]% per annum, computed on the basis of 12 months of 30 days per month.
Interest shall accrue during the term of this Note and be payable at maturity or
upon payment in full, whichever occurs first.
Borrower will make all payments (including pre-payments) under this Note of
principal and interest, by certified or bank cashier's check to the order of the
Lender at 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, XX 00000, Attn: Vice President and
Assistant General Counsel, or at a different place if required by the Lender. If
the Borrower desires to pay any amounts due under this Note by wire transfer,
the Borrower shall provide verbal notice of this request to the Group Vice
President and General Counsel of lender at telephone number 000-000-0000 at
least one business day prior to a desired payment date. Lender will provide to
Borrower appropriate wire transfer instructions for such payment.
The Borrower shall have the right to pre-pay all or any portion of this
Note at any time, without penalty; provided that interest shall continue to
accrue on the unpaid portion of the principal amount of this Note at the rate of
interest indicated above.
Any amount due hereunder not paid when due shall bear interest at a rate
equal to 2% above the interest rate otherwise in effect. Notwithstanding the
foregoing, the interest rate hereunder shall not exceed the maximum rate
permitted by applicable law from time to time.
The holder of this Note is authorized to endorse on Schedule 1 to this
Note, or on a continuation thereof which shall be attached hereto and made a
part hereof, the date and
amount of each borrowing under this Note and payment of principal and interest
on this Note, but the failure to do so shall not affect the liability of the
undersigned. All such notations shall be prima facie evidence of the matters so
noted.
As collateral for the repayment in full of the principal of and interest on
this Note and Pledge Agreement, together with all costs of enforcement
(including reasonable attorneys' fees) of this Note and Pledge Agreement (the
"Obligations"), the undersigned does hereby grant to the Lender a security
interest in the property described on Schedule 2 hereto, whether now owned or
hereafter acquired, and wherever located, together with all proceeds thereof
(the "Collateral"). This security interest created hereunder is a continuing
security interest and shall remain in effect until the indefeasible payment in
full in cash of all Obligations. Borrower hereby represents to Lender that
Schedule 2 contains an accurate value of the Collateral, both encumbered value
and unencumbered value, as the case may be.
Lender acknowledges that it is the Borrower's intention to pursue a sale of
the Collateral and to use the proceeds of such sales to repay the Obligations.
Borrower agrees to use his commercially reasonable efforts to effect the sales
of the Collateral. Notwithstanding the foregoing, all proceeds relating to the
Collateral shall be held by the Borrower in trust for the Lender and shall
immediately upon receipt be turned over to the Lender as pre-payment or full
payment of the Obligations hereunder. All certificates or instruments
representing or evidencing any Collateral, shall be delivered to and held by or
on behalf of the Lender pursuant hereto, shall be in suitable form for transfer
by delivery, and shall be accompanied by all necessary instruments of transfer
or assignment, duly executed in blank.
So long as any of the Obligations remain unpaid, the Borrower will not
assign, pledge, mortgage or otherwise encumber any of the Collateral other than
any pledge, mortgage or other encumbrance noted on Schedule 2. Lender
acknowledges that it is the Borrower's intention to pursue a sale of the
Collateral and to use the proceeds of such sales to repay the Obligations. The
Borrower will warrant and defend the right and title herein granted to the
Lender in and to the Collateral (and all right, title, and interest represented
by the Collateral) against the claims and demands of all persons whomsoever
unless contemporaneously with the sale of such Collateral, the Borrower shall
make a prepayment of the outstanding principal of this Note and Pledge Agreement
in the amount of the proceeds from such sale. The Borrower agrees that at any
time, and from time to time, at the expense of the Borrower, the Borrower will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that the Lender may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Lender to exercise and enforce
its rights and remedies hereunder with respect to any Collateral.
The following events shall each constitute an Event of Default hereunder:
(a) failure of the Borrower to pay any amount of principal of any of the
Obligations when due, (b) failure of the Borrower to pay any amount of interest
on any of the Obligations within three (3) business days of when due; (c)
failure of the security interest, if any, purported to be created hereby to be a
first priority perfected security interest free and clear of all liens, security
interests or other encumbrances of any nature whatsoever, unless otherwise
waived by Lender, (d) failure of the Borrower to comply with any covenant or
agreement contained herein which failure
remains unremedied for a period of 10 days, (e) the Borrower shall become a
debtor under applicable federal or state bankruptcy or insolvency laws (f) the
Borrower shall no longer be a full-time employee of the Lender or (g) the death
of the Borrower.
Upon the occurrence and continuance of an Event of Default, the Lender
shall (a) be entitled to vote all Investment Property (as defined in the Uniform
Commercial Code of the State of New York (the "UCC") constituting Collateral,
(b) be entitled to receive, hold and/or apply to the payment of the Obligations
any dividends payable in respect of the Collateral and (d) have all the rights
and remedies of a secured party under the Uniform Commercial Code of the State
of New York (the "UCC). The Borrower shall take such steps from time to time as
may be requested by the Lender to ensure that the security interest created
hereby shall constitute a first priority security interest under applicable law,
including the UCC. The principal residence of the Borrower is [ADDRESS]. To the
extent notice of any sale or disposition of Collateral is required under
applicable law, the Borrower agrees that 10 calendar days' notice shall
constitute reasonable notice of any such sale or disposition.
The Borrower agrees that in any sale of any of the Collateral whenever an
Event of Default shall have occurred and be continuing, the Lender is hereby
authorized to comply with any limitation or restriction in connection with such
sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable law (including compliance with such procedures as may
restrict the number of prospective bidders and purchasers, require that such
prospective bidders and purchasers have certain qualifications, and restrict
such prospective bidders and purchasers to persons who will represent and agree
that they are purchasing for their own account for investment and not with a
view to the distribution or resale of such Collateral), or in order to obtain
any required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and the Borrower further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Lender be liable
nor accountable to the Borrower for any discount allowed by the reason of the
fact that such Collateral is sold in compliance with any such limitation or
restriction.
The Borrower hereby irrevocably appoints the Lender the Borrower's
attorney-in-fact, with full authority in the place and stead of the Borrower and
in the name of the Borrower or otherwise, from time to time in the Lender's
discretion, upon the occurrence and during the continuance of an Event of
Default, to take any action and to execute any instrument (including stock
powers and proxies) which the Lender may deem necessary or advisable to
accomplish the purposes of this Note. The foregoing appointment is coupled with
an interest.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, without notice.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind. The Borrower
agrees to indemnify the Lender against all losses, claims, expenses and
liabilities incurred by the Lender in connection with the
enforcement of this Note, including the payment of legal fees and disbursements
of counsel (including in-house counsel) to the Lender.
No amendment to or waiver of any provision of this Note nor consent to any
departure by the Borrower herefrom shall in any event be effective unless the
same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it is given.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
All notices hereunder shall be given in writing and shall be deemed
delivered when received by the other party hereto at the address set forth below
such party's signature or at such other address as may be specified by such
party from time to time or, if mailed, on the fifth calendar day after being
deposited in the mails, postage prepaid, so addressed.
THE LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE AND
PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER OR THE BORROWER. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER ENTERING INTO THIS NOTE AND PLEDGE AGREEMENT AND
PROVIDING THE LOANS EVIDENCED HEREBY.
[NAME],
as Borrower
Address:
ACCEPTED:
LEVEL 3 COMMUNICATIONS, INC.
By:
Name
Title:
Address: 0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Schedule 1
Borrowings of Principal
Date Amount of Principal Borrowed Total Principal Borrowed
Payments of Principal and Interest
Date Amount of Interest Amount of Principal
Schedule 2
Description of Collateral
The Collateral includes the following items or types of property, whether now
owned or hereafter acquired and wherever located:
Collateral Value Encumbrances Unencumbered
Description Value
FROM OF PROMISSORY NOTE
(Less Than or Equal to $200,000 Principal Amount)
$ Broomfield, Colorado
[DATE]
FOR VALUE RECEIVED, the undersigned, [NAME], an individual with a business
address 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxxxxx 00000 (the "Borrower"), hereby
unconditionally promises to pay to LEVEL 3 COMMUNICATIONS, INC., a Delaware
corporation (the "Lender") at 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxxxxx 00000
(as hereinafter defined) in lawful money of the United States and in immediately
available funds, the principal amount of [DOLLAR AMOUNT] ($ ). The principal
amount shall be paid in full on [DATE], subject to acceleration of the maturity
as provided below.
The unpaid principal amount of this Note (this "Note") shall bear interest
at the rate of [PRIME RATE AS OF DATE OF NOTE]% per annum, computed on the basis
of the actual number of days elapsed prior to payment over a year of 365 days.
Interest shall be payable upon the earlier of (i) prepayment of any principal
amount hereof (interest being due and payable upon the amount of principal
prepaid) and (ii) maturity.
Any amount due hereunder not paid when due shall bear interest at a rate
equal to 2% above the interest rate otherwise in effect. Notwithstanding the
foregoing, the interest rate hereunder shall not exceed the maximum rate
permitted by applicable law from time to time.
The holder of this Note is authorized to endorse on Schedule 1 to this Note
or on a continuation thereof which shall be attached hereto and made a part
hereof the date and amount of each payment of principal and interest on this
Note, but the failure to do so shall not affect the liability of the
undersigned. All such notations shall be prima facie evidence of the matters so
noted.
The following events shall each constitute an Event of Default hereunder:
(a) failure of the Borrower to pay any amount of principal of or interest on any
of the Obligations when due, (b) the Borrower shall no longer be a full time
employee of the Lender or any of its subsidiaries, (c) failure of the Borrower
to comply with any covenant or agreement contained herein which failure remains
unremedied for a period of 10 days or (d) the Borrower shall become a debtor
under applicable federal or state bankruptcy or insolvency laws.
The Borrower hereby irrevocably appoints the Lender the Borrower's
attorney-in-fact, with full authority in the place and stead of the Borrower and
in the name of the Borrower or otherwise, from time to time in the Lender's
discretion, upon the occurrence and during the continuance of an Event of
Default, to take any action and to execute any instrument (including stock
powers and proxies) which the Lender may deem necessary or advisable to
accomplish the purposes of this Note. The foregoing appointment is coupled with
an interest.
The obligations of the Borrower hereunder are subject to optional
prepayment in whole or in part at any time without premium or penalty.
Upon the occurrence of any one or more of the Events of Default, all
principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, without notice.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind. The Borrower
agrees to indemnify the Lender against all losses, claims, expenses and
liabilities incurred by the Lender in connection with the enforcement of this
Note, including the payment of legal fees and disbursements of counsel
(including in-house counsel) to the Lender.
No amendment to or waiver of any provision of this Note nor consent to any
departure by the Borrower herefrom shall in any event be effective unless the
same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it is given.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
All notices hereunder shall be given in writing and shall be deemed
delivered when received by the other party hereto at the address set forth below
such party's signature or at such other address as may be specified by such
party from time to time or, if mailed, on the fifth calendar day after being
deposited in the mails, postage prepaid, so addressed.
THE LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE AND
PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER OR THE BORROWER. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER ENTERING INTO THIS NOTE AND PLEDGE AGREEMENT AND
PROVIDING THE LOANS EVIDENCED HEREBY.
[NAME],
as Borrower
_______________________
ACCEPTED:
LEVEL 3 COMMUNICATIONS, INC.
By:
Name:
Title:
Schedule 1
Payments of Principal and Interest
Date Amount of Interest Amount of Principal
