EXHIBIT 10.95
PROMISSORY NOTE
(SECURED LOAN)
$780,000.00 San Mateo, California
November 5, 1998
FOR VALUE RECEIVED, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and The Xxxxxx
Family Trust, u/d/t August 30, 1989 (collectively, "Borrower"), promise to pay
to the order of Pan American Bank, its successors and assigns (the "Lender") at
0000 X. Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 or at such other
place as might be designated in writing by the Lender, the principal sum of
Seven Hundred Eighty Thousand Dollars ($780,000.00) or so much thereof as has
been disbursed by the Lender and remains unpaid, together with interest thereon
at nine and one quarter percent (9.25%) per annum.
This Note is issued by the Borrower and accepted by the Lender
pursuant to a Loan and Stock Pledge Agreement between the Borrower, BPN
Corporation and the Lender, dated as of November 5, 1998 (the "Loan Agreement")
and evidences the Loan ("Loan") described in the Loan Agreement.
Principal and interest on this Note will be payable as follows: A
principal payment of $130,000.00, payable as set forth in the Loan Agreement,
will be made immediately following funding of the Loan. An initial payment of
$20,745.54, plus the amount of any accrued interest on the outstanding principal
balance of the Note from the date of funding of the Loan through November 30,
1998 shall be due on December 31, 1998. Thereafter, principal and interest will
be due in equal installments of $20,745.54 due on the last day of each month and
with the last payment due on December 31, 2001, at which time any remaining
unpaid balance and accrued but unpaid interest shall be due.
The Borrower will have the right at any regular payment date to prepay
the unpaid principal balance of this Note, in whole or in part, without penalty.
In the event of such a prepayment, Xxxxxx shall recalculate the future payments
due hereunder to reflect the amortization of the remaining principal, and
accrued interest, in equal monthly installments over the remaining term of the
Note.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights under this Note, the Loan Documents (as defined in the Loan
Agreement) or otherwise relating to the indebtedness hereby evidenced, the
Borrower will pay the Lender's reasonable attorneys' fees, all court costs
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and all other expenses incurred by the Lender in connection therewith. The
Lender may collect a late charge equal to five percent (5.0%) of each monthly
payment which is not received by the Lender within five (5) days after the
maturity date of each installment. Such late charge represents the estimate of
reasonable compensation for the loss which will be sustained by the Lender
arising from the Borrower's failure to make timely payments and may be collected
without prejudice to the rights of the Lender to collect any other amounts
arising from the Borrower's default in payment or to accelerate the maturity of
the indebtedness hereby evidenced. In addition to the foregoing late charge, at
the option of the Lender, after the occurrence of any Event of Default (as
defined in the Loan Agreement), the unpaid balance of this Note will bear
interest at fourteen percent (14.0%) per annum and such interest which has
accrued will be paid at the time of and as a condition precedent to curing any
Event of Default. During the existence of any default, the Lender may apply
payments received on any amount due hereunder or under the terms of any
instrument now or hereafter evidencing or securing payment of this indebtedness
as the Lender determines from time to time.
Payment of the indebtedness hereby evidenced is secured by certain
security interests described in the Loan Documents. On the breach by the
Borrower of any provision of this Note, or the occurrence of any other Event of
Default under any one or more of the Loan Documents or any other instrument now
or hereafter evidencing or securing payment of the indebtedness hereby
evidenced, and the continuation of such Event of Default beyond any applicable
cure period, at the option of the Lender, the entire indebtedness evidenced by
this Note will become immediately due, payable and collectible then or
thereafter as the Lender might elect, regardless of the date of maturity of this
Note. Failure by the Lender to exercise such option will not constitute a
waiver of the right to exercise the same on the occurrence of any subsequent
Event of Default.
The makers, endorsers, sureties, guarantors and all other persons who
might become liable for all or any part of this obligation severally waive
presentment for payment, protest and notice of nonpayment. Such parties consent
to any extension of time (whether one or more) of payment hereof, release of all
or any part of the collateral securing payment hereof or release of any party
liable for the payment of this obligation. Any such extension or release may be
made without notice to any such party and without discharging such party's
liability hereunder. If more than one maker executes this Note, the liability of
each of the undersigned is and shall be joint and several.
The lending transaction contemplated by this Note and the Loan
Documents has been negotiated, consummated and is to be performed in the State
of California. This Note and the other Loan Documents described herein shall be
governed by, and construed and enforced in accordance with the substantive law
of the State of California. Any action or proceeding arising in connection with
this Note and the Loan Documents shall be brought in a federal or state court
within Los Angeles County, California, and the Borrower hereby consents to the
jurisdiction of any federal or state court within the State of California and
located in State of California and located in Los Angeles County, California.
The Borrower irrevocably and unconditionally
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submits to the jurisdiction (both subject matter and personal) of each such
court and irrevocably and unconditionally waives (1) any objection that the
Borrower might now or hereafter have to the venue in any such court; and (2) any
claim that any action or proceeding brought in any such court has been brought
in an inconvenient forum. Notwithstanding the foregoing, the Lender may, in its
sole and absolute discretion, initiate proceedings in the courts of any other
jurisdiction in which the Borrower may be found or in which its assets may be
located.
THE BORROWER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS NOTE, ANY OF THE
LOAN DOCUMENTS OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF BORROWERS AND LENDER OR ANY OF THEM WITH RESPECT
TO THIS NOTE, THE LOAN AGREEMENT, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
THE BORROWER AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT LENDER MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE BORROWER TO THE WAIVER OF THE RIGHT TO TRIAL BY
JURY.
IN WITNESS WHEREOF, the Borrower has executed this instrument effective the
date first above written.
Borrower: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
THE XXXXXX FAMILY TRUST
By: /s/ Xxxxx X. Xxxxxx, Trustee
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Xxxxx X. Xxxxxx, Trustee
By:
/s/ Xxxxxxx X. Xxxxxx, Trustee
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Xxxxxxx X. Xxxxxx, Trustee
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