Exhibit 10.21
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made and entered into as of the 16th
day of April, 2001, between PRIMUS KNOWLEDGE SOLUTIONS, INC., a Washington
corporation ("Lender") and XXXXXXX XXXXXX ("Borrower").
RECITALS:
A. Lender has agreed to make a loan (the "Loan") to Borrower in the
amount of $750,000.
B. This Agreement sets forth certain terms and conditions in connection
with the Loan.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
Lender and Borrower agree as follows:
1. THE LOAN
1.1 Disbursements
The funds shall be disbursed to Xxxxxxx Xxxxxx via check or by wire
transfer.
1.2 Promissory Note
The Loan shall be evidenced by Borrower's Promissory Note ("Note") in the
Loan amount.
1.3 Loan Documents
As used in this Agreement, "Loan Documents" means this Agreement and the
Note, and all other documents and instruments relating to the Loan.
2. FURTHER ASSURANCES
Whenever requested by Lender, Borrower shall promptly execute and deliver
to Lender such instruments and documents as Lender may reasonably require to
further evidence the Loan.
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3. DEFAULT
3.1 Event of Default
Any one or more of the following events is an Event of Default ("Event of
Default") under this Agreement.
(a) There is an Event of Default as defined under any of the other Loan
Documents.
(b) Borrower fails to pay any installment of principal or interest on the
Note, within five days of the date due, whether at scheduled maturity, by
acceleration, or otherwise.
(c) Borrower shall file a voluntary petition in bankruptcy or such a
petition shall be filed against Borrower and is not dismissed within 60 days
after filing; or if Borrower shall file any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors; or shall make any general
assignment for the benefit of creditors, or shall admit in writing his inability
to pay his debts generally as they become due.
(d) A court of competent jurisdiction shall enter an order, judgment or
decree approving a petition filed against Borrower seeking any reorganization,
dissolution or similar relief under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency or other
relief for debtors and such order, judgment or decree shall remain unvacated and
unstayed for an aggregate of 60 days (whether or not consecutive) from the first
date of entry thereof.
(e) Borrower fails to perform or comply with any obligation, covenant,
or other term of this Agreement or the Note, and that default is not rectified
within 14 days.
(f) The death of Borrower.
(g) Termination of Borrower's employment with Lender for any reason other
than without Cause or for Good Reason following a Change of Control (as defined
in Section 5.1 below).
3.2 Inapplicability of Cure Periods
All cure periods provided in this Agreement shall be inapplicable if, in
Lender's reasonable judgment, the default is not capable of being cured within
the time allowed.
3.3 Forgiveness of Note
Upon the Termination of Borrower's employment with Lender without Cause or
for Good Reason following a Change of Control, the entire principal amount plus
all accrued
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interest under the Note shall be forgiven Borrower and the Note shall be of no
further force or effect. Borrower acknowledges that he has had opportunity to
discuss the possible tax consequences of such forgiveness of indebtedness with
his legal and/or tax advisors and accepts full responsibility for any adverse
tax consequences flowing therefrom.
4. REMEDIES
4.1 Acceleration
Upon the occurrence of an Event of Default, the entire amount disbursed
under the Note is immediately due and payable at the election of Lender,
provided, however, that in the event of a Default pursuant to Section 3.1(h),
the Note, together with all accrued interest thereunder, shall be due ninety
(90) days after the date of such Default.
4.2 Remedies Not Exclusive
No remedy conferred upon or reserved to Lender in the Loan Documents shall
be exclusive of any other remedy provided in the Loan Documents or by law or in
equity, and each shall be cumulative and shall be in addition to every other
remedy given Lender under any of the Loan Documents or now or hereafter existing
at law or in equity or by statute. Lender at its sole option, without limiting
or affecting any rights and remedies hereunder, may exercise any of the rights
and remedies to which it may be entitled under the Loan Documents concurrently
or in such order as Lender may determine. The exercise of any rights of Lender
shall not in any way constitute a cure or waiver of an Event of Default or
invalidate any act done pursuant to any notice of default or prejudice Lender in
the exercise of any of its rights. No failure of Lender to enforce its rights,
remedies, or options shall be deemed to be a waiver of any such rights, remedies
or options.
5. MISCELLANEOUS
5.1 Definitions
The terms "Change of Control," "Cause," and "Good Reason" shall have the
meanings assigned to such terms in that certain Change of Control Agreement
dated as of June 30, 1999 between Borrower and Lender. All other terms shall
have the meaning ascribed to such terms herein.
5.2 Assignment
Borrower may not assign his rights under this Agreement or any of the
Loan Documents without the prior written consent of Lender.
5.3 Notices
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing and mailed, faxed or delivered to the address
or facsimile number
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specified below (provided, however, that any matter transmitted to the Lender by
facsimile (i) shall be promptly confirmed by a telephone call to the Lender at
the number specified below and (ii) shall be followed promptly by delivery of a
hard copy original thereof) or to such other address or facsimile number as
shall be designated by a party in a written notice to the other party.
If to Lender:
Primus Knowledge Solutions, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
If to Borrower:
Xxxxxxx Xxxxxx
at his home address and telephone number on the Lender's records
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon receipt by the addressee, or if delivered, upon
delivery.
5.4 Third Parties
No provision of this Agreement is intended or shall be construed to be for
the benefit of any third party.
5.5 Captions
All section or paragraph division, numbering, and captions are for
convenience of reference only, and shall not affect the interpretation or
construction of this Agreement or of any term, condition, or provision hereof.
5.6 Entire Agreement; Modifications
This Agreement and the Loan Documents constitute the entire agreement of
the parties and supersede all prior negotiations, agreements or understandings
and may not be contradicted by evidence of any alleged oral agreement. No
modification or amendment of this Agreement or the Loan Documents shall be
effective unless set forth in writing and signed by Lender and Borrower.
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5.7 Counterparts
This Agreement may be executed in one or more counterparts, all of which
together shall constitute one and the same original.
5.8 Severability
If any term or provision of this Agreement is illegal or invalid for any
reason, such illegality or invalidity shall not affect the enforceability of the
remaining provisions of this Agreement and the other Loan Documents.
5.9 Term
This Agreement shall remain in effect until the Loan has been repaid in
full.
5.10 Governing Law
This Agreement shall be governed by the laws of the State of Washington.
5.11 Jurisdiction
All judicial proceedings brought against borrower arising out of or
relating to this note may be brought in any state or federal court of competent
jurisdiction in the State of Washington, and by execution and delivery of this
agreement borrower accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this agreement.
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
written above.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
PRIMUS KNOWLEDGE SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: VP and Chief Financial Officer
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