EXHIBIT 10.11
CROSSWORLDS SOFTWARE, INC.
SECURED LOAN AGREEMENT
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This Secured Loan Agreement (this "Agreement") is made as of November 15,
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1999 by and between CROSSWORLDS SOFTWARE, INC., a Delaware corporation (the
"Company"), and XXXXXX X. XXXXXX and XXXXXXXXX X. XXXXXX (each individually, a
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"Borrower" and collectively, "Borrowers").
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BACKGROUND
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Borrowers desire to borrow from the Company, and the Company desires to
lend to Borrowers, an aggregate of $150,000 (the "Borrowed Amount"). The
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parties desire that such loan shall be secured pursuant to a Security Agreement
of even date herewith (the "Security Agreement") by a third deed of trust on
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Borrowers' principal residence located at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxx, XX
00000 ("Principal Residence") on the terms and conditions contained herein and
in the Security Agreement (the "Third Deed of Trust").
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AGREEMENT
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In consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. Agreement to Lend. Subject to the terms and conditions contained in
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this Agreement and upon execution of this Agreement, the Company agrees to issue
to Borrowers or for Borrowers' account, at the Company's option, a check or
other readily available funds in the Borrowed Amount (the "Loan") upon the date
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of this Agreement.
2. Promissory Note. In consideration of the Company's delivery of the
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Borrowed Amount, Borrowers will execute a secured promissory note in the form
attached hereto as Exhibit A (the "Note"), in the principal amount of such
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Borrowed Amount and bearing interest at a rate of 5.49% per annum, compounded
semiannually.
3. Repayment of Loan. Borrowers jointly and severally agree to repay in
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full the principal amount of the Loan on the terms and conditions specified in
the Note.
4. Borrower Covenants. Borrowers hereby covenant and agree for the
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duration of this Agreement, the Loan and the Note to indemnify and hold the
Company harmless against any and all expenses (including attorneys' fees) and
all other costs, expenses and obligations arising from any liability related to
the Principal Residence.
5. Security Agreement. Borrowers will additionally execute the Security
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Agreement in the form attached hereto as Exhibit B as security for Borrowers'
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obligation to
repay the Borrowed Amount, and will deliver, or cause to be delivered, until the
termination of this Agreement, the Security Agreement and the Note, together
with such other documents of assignment and other documents as may be reasonably
requested by the Company. Borrowers shall also deliver, or cause to be
delivered, to the Company the Third Deed of Trust, each executed by Borrowers,
to be recorded by the Company (if it so elects) with the official records of the
county in which the Principal Residence is located in accordance with the terms
of the Security Agreement.
6. No Employment Rights. Nothing in this Agreement or the Note is
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intended or shall be construed to confer upon either Borrower any right to
employment or continued employment with the Company, or shall alter in any way
the nature of either Borrower's employment with the Company.
7. Miscellaneous.
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(a) Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. This Agreement may not be assigned by
Borrowers without the prior written consent of the Company. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(b) Governing Law. This Agreement and all acts and transactions
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pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to the principles of conflicts of law of such
state.
(c) Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(d) Advice of Legal Counsel. Each party acknowledges and represents
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that, in executing this Agreement, it has had the opportunity to seek advice as
to its legal rights from legal counsel and that the person signing on its behalf
has read and understood all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting or
preparation thereof.
(e) Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
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The parties hereto have executed this Secured Loan Agreement as of the day
and year first above written.
CROSSWORLDS SOFTWARE, INC.
By: /s/ Xxxx X. Xxxx
_____________________________________
Name: Xxxx X. Xxxx
___________________________________
Title: SUP and CFO
__________________________________
Address: 000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxxxx
_________________________________________
XXXXXX XXXXXX
/s/ Xxxxxxxxx Xxxxxx
_________________________________________
XXXXXXXXX XXXXXX
Address: 000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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EXHIBIT A
SECURED PROMISSORY NOTE
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$150,000 November 15, 0000
Xxxxxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, XXXXXX X. XXXXXX and XXXXXXXXX X. XXXXXX (each, a "Borrower"
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and collectively, "Borrowers") jointly and severally promise to pay to the order
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of CROSSWORLDS SOFTWARE, INC. (the "Company"), at its principal offices at 000
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Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, the principal sum of One
Hundred and Fifty Thousand Dollars ($150,000),with interest from the date hereof
at a rate of 5.49% per annum, compounded semiannually, on the unpaid balance of
such principal sum, upon the terms and conditions specified below. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
such terms in that certain Secured Loan Agreement, dated as of November 15,
1999, by and between the Company and the Borrowers (the "Loan Agreement").
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1. Payment. Borrowers jointly and severally promise to repay the
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principal and interest balance of this Note within ten days following the
earliest to occur of (A) the sale, conveyance, assignment, alienation or any
other form of transfer of the Borrowers' principal residence located at 000
Xxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000, (B) the sale, conveyance, assignment,
alienation or any other form of transfer of any shares of the Company's Common
Stock purchased by Borrower pursuant to the exercise of stock options issued by
the Company (excluding transfers to family members or trusts that agree to be
bound by the term of this note and the Loan Agreement), provided however that
Borrowers' repayment obligation under this subsection (B) is limited to the
proceeds or value realized by Borrowers on the sale, conveyance, assignment,
alienation or other form of transfer of the Common Stock, (C) termination of Xx.
Xxxxxx'x employment with the Company, or (D) November 15, 2001.
Any payment to be made on a date that is not a business day may be made
on the next business day thereafter. The records of the Company shall be
conclusive evidence of the unpaid principal balance hereof, and of all payments
made in respect thereof, absent manifest error.
2. Application of Payments. Each payment shall be made in lawful tender
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of the United States. Prepayment of principal may be made at any time without
penalty. Borrowers agree that if payment becomes due as a result of termination
of Xx. Xxxxxx'x employment with the Company, the Company shall offset from
Borrowers' salary, bonus, vacation pay or other amounts due to Borrowers from
the Company, any amount due and payable by Borrowers. Borrowers further agree
to execute the documentation prepared by the Company to effect any such offset.
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3. Events of Acceleration. The entire unpaid principal sum and accrued
----------------------
but unpaid interest of this Note shall become immediately due and payable upon
one or more of the following events:
A. the failure of Borrowers to make any payment of any amount due
hereunder and the continuation of such default for a period of ten (10) days or
more;
B. the insolvency of either Borrower, the commission of any act of
bankruptcy by a Borrower, the execution by a Borrower of a general assignment
for the benefit of creditors, the filing by or against a Borrower of any
petition in bankruptcy or any petition for relief under the provisions of the
federal bankruptcy act or any other state or federal law for the relief of
debtors and the continuation of such petition without dismissal for a period of
thirty (30) days or more, the appointment of a receiver or trustee to take
possession of any property or assets of a Borrower, or the attachment of or
execution against any property or assets of a Borrower;
C. the sale, transfer, mortgage, assignment, further encumbrance or
lease, whether voluntarily or involuntarily or by operation of law or otherwise
of the Principal Residence covered by the Third Deed of Trust, or any portion
thereof or interest therein, without the prior written consent of the Company;
D. the occurrence of any event of default under the Security
Agreement or the Third Deed of Trust securing this Note or any obligation
secured thereby; or
E. Borrowers are unable to provide additional collateral if required
by Section 2 of the Security Agreement.
4. Employment Requirement. The benefits of the interest arrangement under
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this Note are not transferable by Borrowers and are conditioned on the future
performance of substantial services by Xx. Xxxxxx. For purposes of applying the
provisions of this Note, Xx. Xxxxxx shall be considered to provide substantial
services to the Company for so long as he renders services as a full-time
employee of the Company or one or more of its subsidiaries.
5. Security. Payment of this Note shall be secured by the Third Deed of
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Trust on the Principal Residence under the terms of the Security Agreement and
is subject to all the provisions thereof. Borrowers, however, shall remain
personally liable for payment of this Note, and all of the assets of Borrowers
(including, but not limited to, shares of the Company's Common Stock), in
addition to the collateral under the Third Deed of Trust may be applied to the
satisfaction of Borrower's obligations hereunder. This Note is also subject to
the terms of the Loan Agreement.
6. Collection. If Borrowers fail to pay this Note as and when required
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hereunder, Borrowers promise to pay all costs and expenses (including reasonable
attorney fees) incurred in connection with any proceedings to collect such
amounts in default whether or not an action is instituted.
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7. Waiver. No previous waiver and no failure or delay by the Company in
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acting with respect to the terms of this Note, the Third Deed of Trust or the
Loan Agreement shall constitute a waiver of any breach, default, or failure of
condition under this Note, the Third Deed of Trust, the Loan Agreement or the
obligations secured thereby. A waiver of any term of this Note, the Third Deed
of Trust, the Loan Agreement or of any of the obligations secured thereby must
be made in writing and shall be limited to the express terms of such waiver.
BORROWERS WAIVE PRESENTMENT; DEMAND; NOTICE OF DISHONOR; NOTICE OF DEFAULT OR
DELINQUENCY; NOTICE OF ACCELERATION; NOTICE OF PROTEST AND NONPAYMENT; NOTICE OF
COSTS, EXPENSES OR LOSSES AND INTEREST THEREON; NOTICE OF INTEREST ON INTEREST;
AND DILIGENCE IN TAKING ANY ACTION TO COLLECT ANY SUMS OWING UNDER THIS NOTE OR
IN PROCEEDING AGAINST ANY OF THE RIGHTS OR INTERESTS IN OR TO PROPERTIES
SECURING PAYMENT OF THIS NOTE.
9. Conflicting Agreements. In the event of any inconsistencies between
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the terms of this Note and the terms of any other document related to the loan
evidenced by the Note, the terms of this Note shall prevail.
10. Governing Law. This Note shall be construed in accordance with the
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laws of the State of California, without giving effect to the principles of
conflicts of law of such state.
/s/ Xxxxxx Xxxxxx
___________________________________
Borrower: Xxxxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxx
___________________________________
Borrower: Xxxxxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
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EXHIBIT B
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SECURITY AGREEMENT
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This Security Agreement (this "Agreement") is made as of November 15, 1999
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by and between CROSSWORLDS SOFTWARE, INC., a California corporation (the
"Company"), and XXXXXX X. XXXXXX and XXXXXXXXX X. XXXXXX (each individually, a
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"Borrower" and collectively, "Borrowers").
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RECITALS
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The Company has loaned or will loan to Borrowers, and Borrowers have
borrowed or will borrow from the Company, an aggregate of $150,000 (the
"Borrowed Amount"), which loan is or shall be evidenced by a promissory note
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(the "Note") and is to be secured by a third deed of trust on Borrowers'
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principal residence (the "Third Deed of Trust"). The form of Note and the
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obligations thereunder are as set forth in Exhibit A to the Secured Loan
---------
Agreement between the Company and Borrowers, dated the date hereof (the "Loan
----
Agreement").
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AGREEMENT
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In consideration of the foregoing, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties to this
Agreement agree as follows (all capitalized terms used herein but not otherwise
defined shall have the meaning assigned to such terms in the Loan Agreement):
1. Deed of Trust.
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(a) In consideration of the Loan to Borrowers under the Loan
Agreement, and to secure the Borrowed Amount, Borrowers are delivering herewith
the Third Deed of Trust in form and substance approved by the Company and duly
executed by Borrowers and properly notarized. The Company may, if the Company
so elects, but without obligation to do so, at any time record the Third Deed of
Trust against Borrowers' principal residence, located at 000 Xxxxxxxx Xxxxxx,
Xxx Xxxxx, XX 00000 (the "Principal Residence"), in the official records of the
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county in which the Principal Residence is located. Within five (5) days after
written demand, Borrowers shall furnish written evidence reasonably satisfactory
to the Company that (i) Borrowers hold good and marketable title to the
Principal Residence; (ii) there is no loan, deed of trust, mortgage or
encumbrance against the Principal Residence other than the first and second
deeds of trust held by Chase Manhattan Bank in the principal amounts of $620,000
and $75,000, respectively, (the "First and Second Deeds of Trust"); and (iii)
Borrowers are not in default under such First and Second Deeds of Trust or
related loan documents. Upon the sale, conveyance, assignment, alienation,
encumbrance or any other form of transfer of the Principal Residence, the Note
shall be immediately due and payable in full.
-7-
2. Borrowers' Representations, Warranties and Covenants. To induce the
----------------------------------------------------
Company to enter into this Agreement, Borrowers represent, warrant and covenant
to the Company, its successors and assigns, as follows:
(a) Borrowers will jointly and severally pay the principal sum of the
Note secured hereby, together with interest thereon, and perform all other
obligations required of the Borrowers under the Loan Agreement at the time and
in the manner provided therein.
(b) Borrowers have good and marketable title to the Principal
Residence free and clear of all security interests, liens, encumbrances and
rights of others other than the First and Second Deeds of Trust constituting
first and second liens against the Principal Residence and the Third Deed of
Trust. When duly executed, delivered and recorded in the official land records
of the county in which the Principal Residence is located, the Third Deed of
Trust will constitute a valid, perfected security interest in the Principal
Residence, prior to all monetary liens or encumbrances other than the First and
Second Deeds of Trust.
(c) The consent of no other party or entity is required to grant the
security interest in the Principal Residence (the "Existing Property") as
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provided for in this Agreement. The creation of the security interest
referenced herein, and performance of the obligations of Borrowers hereunder,
will not violate or cause a conflict with any other agreement to which Borrowers
are parties, or to which the Principal Residence is subject. Borrowers will
perform all obligations of Borrowers in connection with the First and Second
Deeds of Trust (and related documents), and a default thereunder will constitute
a default hereunder.
(d) Other than the First and Second Deeds of Trust and the Third Deed
of Trust, there are no security interests or liens on the Existing Property that
could be perfected or obtained by filing a financing statement or notice with
any state filing office.
(e) There are no actions, proceedings, claims or disputes pending or,
to Borrowers' knowledge, threatened against or affecting Borrowers or the
Existing Property except as disclosed to the Company in writing prior to the
date of this Agreement.
(f) Borrowers shall not sell, convey, assign, alienate, further
encumber or otherwise transfer the Principal Residence, or enter into any
contract or other agreement to sell, convey, assign, alienate, encumber or
otherwise transfer the Principal Residence or any interest therein without the
prior written consent of the Company.
3. Default. Borrowers shall be deemed to be in default of the Note and
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of this Agreement in the event:
(a) Payment of principal or interest on the Note shall be delinquent
for a period of 10 days or more; or
(b) Borrowers fail to perform any of the covenants contained in the
Loan Agreement (including exhibits thereto) for a period of 10 days after
written notice thereof from the Company; or
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(c) Borrowers' representations and warranties to the Company contained
in this Agreement or the Third Deed of Trust were untrue or incorrect as of the
date of funding of the Loan Agreement; or
(d) Any default under the First and Second Deeds of Trust.
4. Remedies in the Event of Default. In the case of an event of
--------------------------------
default, as set forth above, the Company shall have the right to accelerate
payment of the Note upon notice to Borrowers, and shall thereafter be entitled
to pursue any or all of its remedies under applicable law, including, without
limitation, (a) offsetting from Borrowers' salary, bonuses, vacation pay or
other amounts due to Borrowers from the Company, any amount due and payable by
Borrowers under the Note, and/or (b) proceeding against the Principal Residence
under the Third Deed of Trust.
5. Insolvency. Borrowers agree that if a bankruptcy or insolvency
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proceeding is instituted by or against either Borrower, or if a receiver is
appointed for the property of either Borrower, or if either Borrower makes an
assignment for the benefit of creditors, the entire amount unpaid on the Note
shall become immediately due and payable, and the Company may proceed as
provided in the case of default.
6. Miscellaneous.
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(a) Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(b) Governing Law. This Agreement and all acts and transactions
-------------
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
(c) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS) or confirmed facsimile, or forty-eight (48) hours after being
deposited in the U.S. mail as certified or registered mail with postage prepaid,
if such notice is addressed to the party to be notified at such party's address
or facsimile number as set forth below, or as subsequently modified by written
notice.
(d) Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of
-9-
the Agreement shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(e) Advice of Legal Counsel. Each party acknowledges and represents
-----------------------
that, in executing this Agreement, it has had the opportunity to seek advice as
to its legal rights from legal counsel and that the person signing on its behalf
has read and understood all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting or
preparation thereof.
The parties hereto have executed this Security Agreement as of the day and
year first above written.
XXXXXX X. XXXXXX
/s/ Xxxxxx Xxxxxx
_________________________________________
(Signature)
XXXXXXXXX X. XXXXXX
/s/ Xxxxxxxxx Xxxxxx
_________________________________________
(Signature)
Address: 000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
CROSSWORLDS SOFTWARE, INC.
By: /s/ Xxxx X. Xxxx
_____________________________________
Title: SVP and CFO
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ADDENDUM TO SECURED PROMISSORY NOTE
The following shall constitute an Addendum to the Secured Promissory Note
executed by Xxxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxx (collectively, "Borrowers")
on November 15, 1999.
RECITALS
A. On November 15, 1999, Borrowers executed a Secured Promissory Note in
the amount of $150,000.00 payable to the order of CrossWorlds Software, Inc.
(the "Company"), a copy of which is attached as Exhibit A to this Addendum (the
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"Note").
B. On January 27, 2000, the Board of the Directors of the Company approved
the amendment of certain terms of the Note pertaining to forgiveness of
principal and accrued over the course of Xxxxxx Xxxxxx'x continued employment
with the Company. In connection with this amendment and in accordance with
applicable tax law, the interest rate on the Note shall increase to 5.88%,
compounded annually. All other provisions of the Note that are not modified by
this Addendum remain in full force and effect.
NOW, THEREFORE, pursuant to the terms of the Note, and in consideration of
the mutual promises, covenants and conditions hereinafter set forth, the parties
hereto mutually agree as follows:
1. Subsection 1 of the Note is hereby amended such that Section 1 now
provides in its entirety as follows:
"Payment. Borrowers jointly and severally promise to repay the principal
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and interest balance of this Note within ten days following the earliest to
occur of (A) the sale, conveyance, assignment, alienation or any other form of
transfer of the Borrowers' principal residence located at 000 Xxxxxxxx Xxxxxx,
Xxx Xxxxx, XX 00000, (B) the sale, conveyance, assignment, alienation or any
other form of transfer of any shares of the Company's Common Stock purchased by
Borrower pursuant to the exercise of stock options issued by the Company
(excluding transfers to family members or trusts that agree to be bound by the
term of this note and the Loan Agreement), provided however that Borrowers'
repayment obligation under this subsection (B) is limited to the proceeds or
value realized by Borrowers on the sale, conveyance, assignment, alienation or
other form of transfer of the Common Stock, (C) termination of Xx. Xxxxxx'x
employment with the Company, or (D) November 15, 2001. So long as Xx. Xxxxxx
remains an employee of the Company, the Company shall forgive the principal and
accrued interest of this Note over the course of two (2) years, according to the
following schedule: 1/24 of the principal and accrued interest on the first day
of each month, commencing February 1, 2000. In the event of a Change of Control
of the Company (as defined below) prior to February 1, 2002, the Company shall
accelerate the forgiveness of the then remaining unpaid balance owing on this
Note so that this Note is forgiven in full as of the effective date of the
transaction. For purposes of this Note, a Change of Control shall mean a sale
of all or substantially all of the Company's assets, or a merger, consolidation
or other capital reorganization of the Company with or into another corporation,
or any other transaction or series of related transactions in which the
1
Company's stockholders immediately prior thereto own less than 50% of the voting
stock of the Company (or its successor or parent) immediately thereafter.
Any payment to be made on a date that is not a business day may be made on
the next business day thereafter. The records of the Company shall be
conclusive evidence of the unpaid principal balance hereof, and of all payments
made in respect thereof, absent manifest error."
2. Entire Agreement. Section 1 of the Note is modified by the provisions
----------------
of this Addendum and the interest rate accruing on the Note is increased to
5.88%, compounded annually. Except as so modified, the Note shall remain in
full force and effect. In the event of any conflict between this Addendum and
the Note, this Addendum shall govern. This Addendum and the Note (together with
the Secured Loan Agreement and Security Agreement executed by Borrowers in
connection with the Note, both of which are part of Exhibit A attached hereto)
---------
constitute the entire agreement between Borrowers and the Company regarding the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as of the day and year written below.
CROSSWORLDS SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Title: Chief Executive Officer
____________________________
Date: January 27, 2000
_____________________________
Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
___________________________________
Borrower: Xxxxxx Xxxxxx
Xxxxxxxxx X. Xxxxxx
/s/ Xxxxxxxxx Xxxxxx
_______________________________
Borrower: Xxxxxxxxx Xxxxxx
Date: January 27, 2000
2
EXHIBIT A
SECURED PROMISSORY NOTE
-----------------------
$150,000 November 15, 0000
Xxxxxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, XXXXXX X. XXXXXX and XXXXXXXXX X. XXXXXX (each, a "Borrower"
--------
and collectively, "Borrowers") jointly and severally promise to pay to the order
---------
of CROSSWORLDS SOFTWARE, INC. (the "Company"), at its principal offices at 000
-------
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, the principal sum of One
Hundred and Fifty Thousand Dollars ($150,000),with interest from the date hereof
at a rate of 5.49% per annum, compounded semiannually, on the unpaid balance of
such principal sum, upon the terms and conditions specified below. Capitalized
terms used but not otherwise defined herein shall have the meanings given to
such terms in that certain Secured Loan Agreement, dated as of November 15,
1999, by and between the Company and the Borrowers (the "Loan Agreement").
--------------
1. Payment. Borrowers jointly and severally promise to repay the
-------
principal and interest balance of this Note within ten days following the
earliest to occur of (A) the sale, conveyance, assignment, alienation or any
other form of transfer of the Borrowers' principal residence located at 000
Xxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000, (B) the sale, conveyance, assignment,
alienation or any other form of transfer of any shares of the Company's Common
Stock purchased by Borrower pursuant to the exercise of stock options issued by
the Company (excluding transfers to family members or trusts that agree to be
bound by the term of this note and the Loan Agreement), provided however that
Borrowers' repayment obligation under this subsection (B) is limited to the
proceeds or value realized by Borrowers on the sale, conveyance, assignment,
alienation or other form of transfer of the Common Stock, (C) termination of Xx.
Xxxxxx'x employment with the Company, or (D) November 15, 2001.
Any payment to be made on a date that is not a business day may be made
on the next business day thereafter. The records of the Company shall be
conclusive evidence of the unpaid principal balance hereof, and of all payments
made in respect thereof, absent manifest error.
2. Application of Payments. Each payment shall be made in lawful tender
-----------------------
of the United States. Prepayment of principal may be made at any time without
penalty. Borrowers agree that if payment becomes due as a result of termination
of Xx. Xxxxxx'x employment with the Company, the Company shall offset from
Borrowers' salary, bonus, vacation pay or other amounts due to Borrowers from
the Company, any amount due and payable by Borrowers. Borrowers further agree
to execute the documentation prepared by the Company to effect any such offset.
3. Events of Acceleration. The entire unpaid principal sum and accrued
----------------------
but unpaid interest of this Note shall become immediately due and payable upon
one or more of the following events:
A. the failure of Borrowers to make any payment of any amount due
hereunder and the continuation of such default for a period of ten (10) days or
more;
B. the insolvency of either Borrower, the commission of any act of
bankruptcy by a Borrower, the execution by a Borrower of a general assignment
for the benefit of creditors, the filing by or against a Borrower of any
petition in bankruptcy or any petition for relief under the provisions of the
federal bankruptcy act or any other state or federal law for the relief of
debtors and the continuation of such petition without dismissal for a period of
thirty (30) days or more, the appointment of a receiver or trustee to take
possession of any property or assets of a Borrower, or the attachment of or
execution against any property or assets of a Borrower;
C. the sale, transfer, mortgage, assignment, further encumbrance or
lease, whether voluntarily or involuntarily or by operation of law or otherwise
of the Principal Residence covered by the Third Deed of Trust, or any portion
thereof or interest therein, without the prior written consent of the Company;
D. the occurrence of any event of default under the Security
Agreement or the Third Deed of Trust securing this Note or any obligation
secured thereby; or
E. Borrowers are unable to provide additional collateral if required
by Section 2 of the Security Agreement.
4. Employment Requirement. The benefits of the interest arrangement under
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this Note are not transferable by Borrowers and are conditioned on the future
performance of substantial services by Xx. Xxxxxx. For purposes of applying the
provisions of this Note, Xx. Xxxxxx shall be considered to provide substantial
services to the Company for so long as he renders services as a full-time
employee of the Company or one or more of its subsidiaries.
5. Security. Payment of this Note shall be secured by the Third Deed of
--------
Trust on the Principal Residence under the terms of the Security Agreement and
is subject to all the provisions thereof. Borrowers, however, shall remain
personally liable for payment of this Note, and all of the assets of Borrowers
(including, but not limited to, shares of the Company's Common Stock), in
addition to the collateral under the Third Deed of Trust may be applied to the
satisfaction of Borrower's obligations hereunder. This Note is also subject to
the terms of the Loan Agreement.
6. Collection. If Borrowers fail to pay this Note as and when required
----------
hereunder, Borrowers promise to pay all costs and expenses (including reasonable
attorney fees) incurred in connection with any proceedings to collect such
amounts in default whether or not an action is instituted.
7. Waiver. No previous waiver and no failure or delay by the Company in
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acting with respect to the terms of this Note, the Third Deed of Trust or the
Loan Agreement shall constitute a waiver of any breach, default, or failure of
condition under this Note, the Third Deed of Trust, the Loan Agreement or the
obligations secured thereby. A waiver of any term of this Note, the Third Deed
of Trust, the Loan Agreement or of any of the obligations secured thereby must
be made in writing and shall be limited to the express terms of such waiver.
BORROWERS WAIVE PRESENTMENT; DEMAND; NOTICE OF DISHONOR; NOTICE OF DEFAULT OR
DELINQUENCY; NOTICE OF ACCELERATION; NOTICE OF PROTEST AND NONPAYMENT; NOTICE OF
COSTS, EXPENSES OR LOSSES AND INTEREST THEREON; NOTICE OF INTEREST ON INTEREST;
AND DILIGENCE IN TAKING ANY ACTION TO COLLECT ANY SUMS OWING UNDER THIS NOTE OR
IN PROCEEDING AGAINST ANY OF THE RIGHTS OR INTERESTS IN OR TO PROPERTIES
SECURING PAYMENT OF THIS NOTE.
9. Conflicting Agreements. In the event of any inconsistencies between
----------------------
the terms of this Note and the terms of any other document related to the loan
evidenced by the Note, the terms of this Note shall prevail.
10. Governing Law. This Note shall be construed in accordance with the
-------------
laws of the State of California, without giving effect to the principles of
conflicts of law of such state.
/s/ Xxxxxx Xxxxxx
___________________________________
Borrower: Xxxxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxx
___________________________________
Borrower: Xxxxxxxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
