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EXHIBIT 10.5
LOAN AGREEMENT
This agreement (the "Agreement") is made and entered into by and
between PowerCerv Corporation, a Florida corporation (the "Company") and Xxxxxx
X. Xxxxxx ("Xxxxxx") as of the 7th day of October, 1996.
RECITALS
The Company has agreed to lend $200,000 to Xxxxxx X. Xxxxxx. The Loan
shall be evidenced by a promissory note in the same amount, which shall be
executed by Wicker and dated today. In order to induce the Company to make or
extend the Loan to Wicker, Xxxxx Xxxxxx Inc., as X.X.X. custodian for Xxxxxx X.
Xxxxxx, Xxxxx Xxxxxx Inc., as X.X.X. custodian for Xxxxx X. Xxxxxx, and Xxxxxx
X. Xxxxxx, as trustee of the Xxxxxx X. Xxxxxx Revocable Family Trust dated
April 2, 1982 (collectively, the "Pledgors") agree to pledge, as collateral for
the Loan, 50,000 shares of the issued and outstanding common stock of the
Company represented by certificate numbers ___, ___, and ___ respectively (the
"Pledged Shares"). The parties have come to agreements with respect to
additional rights and duties and desire to memorialize such agreements herein.
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. The Loan. The Company agrees, upon the terms and conditions
herein set forth, to lend $200,000 to Wicker (the "Loan").
2. The Promissory Note. The Loan shall be evidenced by and
subject to the terms of the promissory note, dated today, in the form of
Exhibit A (the "Note"), payable to the Company on October 1, 1997. In
consideration for ongoing management, financial and accounting consultation to
the Company, the Loan shall not bear interest unless and until Wicker defaults
under the Note, and after default shall bear interest at a rate equal to the
prime rate at NationsBank N.A. (South) plus one percent (1%) per year.
3. Security Agreement. As an inducement to make or extend the
Loan to Wicker, Wicker shall cause the Pledgors to execute and deliver to the
Company a security agreement in the form of Exhibit B (the "Security
Agreement"), pursuant to which the Pledgors shall pledge to the Company the
Pledged Shares. Wicker will deliver the stock certificates representing the
Pledged Shares to the Company within 5 days of this Agreement. Failure to make
such delivery will constitute an event of default under the Note.
4. Put Option. Until November 1, 1997, Wicker shall have the
right, in one transaction, to elect in writing to require the Company to
purchase the Pledged Shares (the "Option"). The Company shall repurchase the
Pledged Shares within 30 days after Wicker's exercise of the Option, at a time
and place to be determined by the Company. The purchase price will be equal to
the average between the high and low closing price of the Company's common
stock on the Nasdaq stock market on the date the Option is exercised. If the
Note remains outstanding at the time the Option is exercised, the Company may
offset amounts owed under the Note against its purchase price.
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5. Legality. Notwithstanding the foregoing, the Company shall
have no obligation to purchase the Pledged Shares if to do so would violate any
provision of law or any agreements to which the Company is then a party. The
failure of the company to purchase the Pledged Shares by virtue of this
paragraph shall not impair Wicker's obligations under the Note.
6. Representations and Warranties. Wicker represents and
warrants to the Company that the Pledgors are the sole owners of the Pledged
Shares, free and clear of all liens and encumbrances, and that the Company will
acquire marketable title to the Pledged Shares upon payment therefor if Wicker
exercises the Option. Wicker has the power and authority to execute and
deliver, and to perform all of their obligations under this Agreement and the
Note, and all other documents that have been or will be executed and delivered
by Wicker pursuant to this Agreement.
7. Termination of Employment and Obligations. As of October 4,
1996 and pursuant to Wicker's resignation letter, dated September 23, 1996,
Wicker's employment with the Company was terminated. In connection with such
termination, the April 12, 1995 Stock Purchase Agreement (the "Stock Purchase
Agreement") and the April 12, 1995 Compensation Package Agreement (the
"Compensation Package Agreement") are hereby terminated and Wicker and the
Company shall have no further rights or obligations under the Stock Purchase
Agreement or the Compensation Package Agreement. In the event of a conflict
between the terms of this Agreement and the terms of the Stock Purchase
Agreement or the Compensation Package Agreement, the terms of this Agreement
shall control.
8. Obligations Under Noncompetition Agreement. Wicker hereby
acknowledges his continuing obligations under the PowerCerv Non-Compete
Agreement, entered into by and between the Company and Wicker, dated May 15,
1995 (the "Non-Compete Agreement"), and attached as Exhibit C to this
Agreement. Wicker agrees that his obligations under the Non-Compete Agreement
shall survive the termination of his employment with the Company.
9. Miscellaneous. Each party admits that no representation of fact or
opinion has been made by such party or anyone acting on their behalf, to induce
this agreement. Each party acknowledges that it has had the opportunity to
have this Agreement reviewed by attorneys, and that it is executed freely and
voluntarily.
10. Counterparts. This Agreement may be executed in any number of
counterparts and duplicate originals, each of which, when so executed and
delivered, shall be deemed to be an original, and all of which when taken
together shall constitute one and the same instrument.
11. Severability. If any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
12. Notices. To be effective, a notice or other communication
required or permitted by this Agreement must be in writing. All notices and
other communications shall be delivered by overnight courier service, by
telecopy (if confirmed), or by first class, certified mail, with postage
prepaid. Communications shall be addressed to the intended recipient at the
address specified below, or to such other address as the intended recipient may
have designated in a writing previously delivered to the sender.
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If to the Company: PowerCerv Corporation
000 X. Xxxxxx Xxxxx Xxxxx 0000
Xxxxx, Xxxxxxx 00000
If to Wicker: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xx.
Xxxxx, XX 00000
13. Integration. This Agreement comprises the complete and
integrated agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, written or oral, on the subject
matter hereof.
14. Headings. The headings of the paragraphs contained in this
Agreement are for convenience of reference only and do not form a part hereof
and in no way modify, interpret or construe the meaning of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
WITNESSES: PowerCerv Corporation,
a Florida corporation
/s/
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By: /s/ Xxxxxxx Xxxxxx
/s/ ---------------------------------------------------------------
------------------------------- Xxxxxxx Xxxxxx
Chief Counsel
/s/ /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/
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44078-1
TPA2-372910.2
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PROMISSORY NOTE
$200,000 October 7, 1996
FOR VALUE RECEIVED, XXXXXX X. XXXXXX, (the "Borrower"), whose address
is 0000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, promises to pay to the order of
POWERCERV CORPORATION, ("Lender"), at the offices of Lender at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, or at such other place as the holder
of this Note may from time to time designate, the principal sum of $200,000 in
lawful money of the United States of America. This Note shall not bear
interest unless and until Borrower defaults under this Note, and after default
shall bear interest at a rate equal to the prime rate at NationsBank N.A.
(South) plus one percent (1%) per year ("Default Rate").
Notwithstanding the foregoing, however, in no event shall the interest
charged exceed the maximum rate of interest allowed by applicable law, as
amended from time to time. Lender does not intend to charge any amount of
interest or other fees or charges in the nature of interest that exceeds the
maximum rate allowed by applicable law. If any payment of interest or in the
nature of interest hereunder, together with all other payments of interest or
in the nature of interest, would cause the foregoing interest rate limitation
to be exceeded, then such excess payment shall be credited as a payment of
principal unless Borrower notifies Lender in writing that Borrower wishes to
have such excess sum returned, together with interest at the rate specified in
Section 687.04(2), Florida Statutes, or any successor statute.
Interest shall be computed on the basis of a year of 360 days, but
charged for the actual number of days elapsed.
Principal and interest outstanding hereunder shall be due and payable
in a single payment on September 30, 1997. Borrower is entitled to prepay this
Note in whole or in part at any time, without premium or penalty.
This Note is secured by a Security Agreement, dated today, between the
parties hereto and others, to which reference is made for a description of
certain events of default hereunder.
Unless otherwise specified herein, payments of this Note shall be
applied by Lender first to interest and lawful charges then accrued, and then
to principal, unless otherwise determined by Lender in its sole discretion.
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The Borrower agrees to pay or reimburse Lender for all of its costs
and expenses incurred in connection with the administration, supervision,
collection, or enforcement of, or the preservation of any rights under, this
Note or the obligation evidenced hereby, including without limitation,
attorneys' fees out of court, in trial, on appeal, in bankruptcy proceedings,
or otherwise.
All notices, requests, and demands to or upon the parties hereto,
shall be deemed to have been given or made when delivered by hand, or when
deposited in the mail, postage prepaid by registered or certified mail, return
receipt requested, addressed to the address shown above or such other address
as may be hereafter designated in writing by one party to the other.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Florida, excluding those laws
relating to the resolution of conflicts between laws of different
jurisdictions.
No delay or omission on the part of Lender in exercising any right or
remedy hereunder shall operate as a waiver of such right or remedy or of any
other right or remedy and no single or partial exercise of any right or remedy
shall preclude any other or further exercise of that or any other right or
remedy. Presentment, demand, notice of nonpayment, notice of protest, protest,
notice of dishonor and all other notices are hereby waived by Borrower.
All rights and remedies of Lender under this Note are cumulative, and
are not exclusive of any rights and remedies provided by law or in equity, and
may be pursued singularly, successively, together, and may be exercised as
often as the occasion therefor shall arise.
This Note may not be modified or amended nor shall any provision of it
be waived except by a written instrument signed by the party against whom such
action is to be enforced.
This Note shall be binding upon and inure to the benefit of Lender,
its personal representatives and assigns, and shall be binding upon Borrower
and its respective heirs, legal representatives, successors, and assigns;
provided, however, that no rights or obligations of Borrower shall be assigned
without the prior written consent of Lender.
Time is of the essence in the performance of this Note.
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IN WITNESS WHEREOF, Borrower has executed this Note as of the date
first written above.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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