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Exhibit 10.56
AMENDED AND RESTATED PROMISSORY NOTE
SECURED BY DEED OF TRUST
$600,000.00 _____________________, California
As of April 8, 1998
WHEREAS Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx (jointly and severally,
"Borrower"), and XXX RESEARCH CORPORATION, a Delaware corporation (the
"Company"), entered into a Promissory Note on, about or as of April 6, 1996, by
which the Company loaned to Borrower the sum of Six Hundred Thousand Dollars
($600,00.00), pursuant to the terms and obligations set forth therein (the
"Original Note");
WHEREAS the re-payment terms of the Original Note were previously extended
by the Company to provide for repayment of the unpaid principal and accrued
interest on April 8, 1998;
WHEREAS the Borrower has requested and the Company has agreed to extend the
re-payment terms of the Original Note, as provided herein;
NOW THEREFOR, for good and valuable consideration, the undersigned Borrower
and Company AGREE AS FOLLOWS:
Borrower promises to pay to the Company, at its office at 0000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, or as otherwise provided by the Company, the
principal sum of Six Hundred Thousand Dollars ($600,000.00) (the "Principal"),
with interest on the unpaid principal amount accrued and owing from April 6,
1996 through and including the payment date calculated at the rate of Five and
Five One-Hundredths percent (5.05%) per annum. All accrued and unpaid interest
and all unpaid Principal shall hereby be extended and due and payable on the
third anniversary of this Note (the "Maturity Date"), or upon a Maturity Event
(hereinafter defined), whichever comes first.
Borrower may prepay all or any portion of the Principal sum of this Note at
any time prior to the Maturity Date with no premium or penalty, and interest
shall thereupon cease on the portion of the principal amount prepaid. All
amounts payable hereunder shall be payable in lawful money of the United States
of America.
The holder of this Note may, at its option, accelerate the maturity of all
sums due or to become due hereunder upon the occurrence of any of the following
(each, a "Maturity Event"), in which event the entire balance of this Note
(being the then unpaid Principal and all accrued and unpaid interest thereon)
shall immediately become due and payable, without demand or notice:
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1. Termination of the employment or service of Xxxxx X. Xxxxxxx as a
Member of the Board of Directors of the Company, whether voluntary or
involuntary, and whether with cause or without cause; or
2. The filing of a petition of bankruptcy, either voluntary or
involuntary, by or against Borrower; or
3. Institution of any proceeding by or against Borrower under bankruptcy
or insolvency laws relating to the relief of debtors; or
4. If at any time the holder considers the security for the loan
underlying this Notice to be unsatisfactory or insufficient, and Borrower does
not, on demand by the holder, furnish such further collateral or make such
payment on account as may be satisfactory to the holder; or
5. If at any time, in the sole opinion of the holder, the financial
responsibility of Xxxxxxxx becomes impaired or unsatisfactory to the holder; or
6. If Borrower shall sell, convey or alienate the Property (defined
below), or any part thereof, or any interest therein, or shall be divested of
his title or any interest therein in any manner or way, whether voluntarily or
involuntarily, without the written consent of the holder of this Note being
first had and obtained; or
7. If at any time Borrower fails to make any payment or to perform any
other obligation which is secured by a deed or trust or other lien on the
Property and such failure is deemed a default pursuant to the terms of such deed
of trust or other lien (or applicable law with respect to such other lien).
In the event (i) Borrower defaults in the payment of Principal when due
pursuant to the terms hereof, or in Borrower's performance of any obligation
contained in the Deed of Trust (hereinafter defined) encumbering the Property
and securing this Note (including any amendment, modification or extension
thereof), (ii) any representation or warranty of Borrower contained in this Note
or any other agreement or instrument executed in connection with this loan
described therein proves to have been false or misleading in any material
respect, (iii) Borrower defaults in Borrower's obligation to pay any
indebtedness evidenced by any promissory note executed by Xxxxxxxx and payable
to the Company or there occurs any other default under any deed of trust,
mortgage or other document securing repayment of such indebtedness, or (iv)
Borrower defaults in Borrower's performance of any obligation to pay any
indebtedness secured by a deed of trust, mortgage or other lien encumbering the
Property or in Xxxxxxxx's performance of any obligation contained in any such
deed of trust, mortgage or other lien, then unless otherwise prohibited by law
the Company shall have the option, without demand or notice, to declare the
entire Principal balance of this Note to be immediately due and payable.
This Note is secured by and subject to the terms of a first-priority deed
of trust (the "Deed of Trust") executed, and reaffirmed hereby as valid and of
full force and effect, by Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, in favor of
the Company, encumbering certain real property
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commonly known as 711-741 and 739-000 Xxx Xxxxx Xxxxxx, located in the City of
Burlingame, County of San Mateo, State of California (the "Property"), dated
April 8, 1996, recorded in the Official Records of San Mateo County on July 5,
1996 as Instrument Number 96-081010, as more particularly described and set
forth therein.
This Note evidences the same indebtedness evidenced by the Original Note in
favor of the Company. This Note is given to amend, restate and replace the
Original Note, and all obligations, debts or liabilities thereunder, in their
entirety. Nothing herein or in any other documents shall be deemed to constitute
payment of the Original Note, whether Principal or interest, and whether in
whole or in part, or a novation thereof.
Xxxxxxxx agrees to pay the actual expenses incurred by the holder in
connection with any attempt by the holder to collect any amount due or to
exercise any rights the holder may have under this Note, or under or pursuant to
the Deed of Trust. Xxxxxxxx agrees that, if any legal action is necessary to
enforce or collect this Note, or any other obligations of Borrower pursuant to
this Note, the prevailing party shall be entitled to reasonable attorneys' fees
in addition to any other relief to which the party may be entitled.
If any payment under this Note is not paid when due, then the parties agree
that (a) the Company's damages shall be difficult to estimate, (b) as liquidated
damages on account of Borrower's default, the unpaid Principal (to the extent
permitted by law) shall bear interest at the rate of ten percent (10%) per annum
or at the highest rate allowed by law, if lower, from said due date until paid,
and (c) the parties agree that such liquidated damages are a reasonable estimate
of the damages the Company will incur as a consequence of Xxxxxxxx's default.
The parties also agree that such liquidated damages are in addition to any other
remedy provided hereunder, and nothing shall abridge, bar or waive the Company's
right and remedy to foreclose on or otherwise exercise its right or interest in
the Property in complete or partial satisfaction of any of Borrower's
obligations hereunder.
This Note may be amended or modified, and the provisions hereof may be
waived, only by the written agreement of Borrower and the Company. No delay or
failure by the Company in exercising any right, power or remedy hereunder shall
operate as a waiver of such right, power or remedy, and a waiver of any right,
power or remedy on any one occasion shall not operate as a bar to or waiver of
any such right, power or remedy on any other occasion. Without limiting the
foregoing, the delay or failure by the Company for any period of time to enforce
collection of any amounts due hereunder shall not be deemed to be a waiver of
any rights of the
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Company under contract or under law. The rights of the Company under this Note
are in addition to any other rights and remedies which the Company may have.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of California.
BORROWER
Dated: July 15, 1998 /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Dated: July 15, 1998 /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
XXX RESEARCH CORPORATION
Dated: July 15, 1998 /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
Its: Vice President and Chief Financial Officer
Dated: July 15, 1998 /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Its: Vice President and Treasurer
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