Exhibit 10.9
PROMISSORY NOTE
DATED AS OF ________, _____
$__________________
Phoenix, Arizona
FOR VALUE RECEIVED, _____________________ ("BORROWER"), an employee of
PETsMART, INC., a Delaware corporation ("COMPANY"), hereby unconditionally
promises to pay to the order of Company, in lawful money of the United States of
America and in immediately available funds, the principal sum of
_________________________ Dollars ($__________) (the "LOAN") together with
accrued and unpaid interest thereon, each due and payable on the dates and in
the manner set forth below.
It is the intent of the parties is that the purpose of this Note is not for
consumer, family or household purposes.
1. PRINCIPAL REPAYMENT. The outstanding principal amount of the Loan
shall be due and payable on ___________________, ____.
2. INTEREST RATE. Borrower further promises to pay interest on the
outstanding principal amount hereof from the date hereof until payment in full,
which interest shall be payable at the rate of ______ percent (____%) per annum
Any principal repayment or interest payment on the Loan hereunder not
paid when due, whether at stated maturity, by acceleration or otherwise, shall
bear interest at the rate of _____________ percent (_____%) per annum in excess
of the Prime Rate, or the maximum rate permissible by law (which under the laws
of the State of Arizona shall be deemed to be the laws relating to permissible
rates on commercial loans), whichever is less.
3. PLACE/MANNER OF PAYMENT. All amounts payable hereunder shall be
payable at the office of Company unless another place of payment shall be
specified in writing by Company. Borrower hereby authorizes the Company to
deduct any payment of principal/interest due hereunder from the first paycheck
issued by the Company to Borrower after the date on which said payment is due,
or if a payment is due on a date on which a paycheck is issued to Borrower, from
that paycheck. Borrower understands that taxes will be deducted from these
paychecks based upon the amount that would have been paid Borrower had payments
for principal/interest not been deducted.
4. APPLICATION OF PAYMENTS. Payment on this Note shall be applied first
to accrued interest, if any, and thereafter to the outstanding principal balance
hereof.
1.
5. DEFAULT. Each of the following events shall be an "EVENT OF DEFAULT"
hereunder:
(a) Borrower fails to pay timely any of the principal amount
due under this Note on the date the same becomes due and payable or any accrued
interest or other amounts due under this Note on the date the same becomes due
and payable or within five (5) business days thereafter;
(b) Borrower files a petition or action for relief under any
bankruptcy, insolvency or moratorium law or any other law for the relief of, or
relating to, debtors, now or hereafter in effect, or makes any assignment for
the benefit of creditors or takes any action in furtherance of any of the
foregoing;
(c) An involuntary petition is filed against Xxxxxxxx (unless
such petition is dismissed or discharged within sixty (60) days) under any
bankruptcy statute now or hereafter in effect, or a custodian, receiver,
trustee, assignee for the benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any property of Xxxxxxxx;
(x) Xxxxxxxx's employment by or association with Company is
terminated with cause by the Company or for the reason that Xxxxxxxx resigns
his/her employment.
Upon the occurrence of an Event of Default hereunder, all unpaid principal,
accrued interest and other amounts owing hereunder shall, at the option of
Company, and, in the case of an Event of Default pursuant to (b) or (c) above,
automatically, be immediately due, payable and collectible by Company pursuant
to applicable law. Notwithstanding the foregoing, if an Event of Default has
occurred under (d) above due to, in Company's sole discretion, no malfeasance or
misfeasance on the part of Borrower, this Note shall be accelerated only after
30 days' notice to Borrower or any successor. Company shall have all rights and
may exercise any remedies available to it under law, successively or
concurrently. Borrower expressly acknowledges and agrees that Company shall have
the right to offset any obligations of Borrower hereunder against salaries,
bonuses or other amounts that may be payable to Borrower by Company.
6. WAIVER. Borrower waives presentment and demand for payment, notice
of dishonor, protest and notice of protest of this Note, and shall pay all costs
of collection when incurred, including, without limitation, reasonable
attorneys' fees, costs and other expenses. The right to plead any and all
statutes of limitations as a defense to any demands hereunder is hereby waived
to the full extent permitted by law.
7. GOVERNING LAW. This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of Arizona, excluding
conflict of laws principles that would cause the application of laws of any
other jurisdiction.
2.
8. FORGIVENESS OF PAYMENTS. For any reason and all periods of time in
which Borrower is an employee of the Company, the principal and any interest due
on this Note shall be waived, forgiven and deemed paid in the amount of 1/60th
of the Loan per month for sixty (60) months. The first such amount being
forgiven on _____________, ____ and each month thereafter until either the
entire Loan has been deemed waived, forgiven and deemed paid in full or until
the occurrence of an EVENT OF DEFAULT, whichever occurs first. Forgiveness of
the entire amount of interest and principal due and owing will be forgiven in
the event of the death of Xxxxxxxx if Xxxxxxxx's death occurs while employed by
or associated with the Company. Upon the occurrence of an EVENT OF DEFAULT, no
further forgiveness of payments will occur. Xxxxxxxx acknowledges and agrees
that (s)he will be responsible for any tax due relating to the forgiveness of
the Loan resulting from this provision.
9. SUCCESSORS AND ASSIGNS. The provisions of this Note shall inure to
the benefit of and be binding on any successor to Borrower and shall extend to
any holder hereof. Borrower shall not, without the prior written consent of
holder, assign any of its rights or obligations hereunder.
BORROWER:
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Printed Name:
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3.
