EXHIBIT 10.39
AMENDED AND RESTATED PROMISSORY NOTE
$349,124.66 DECEMBER 16, 1998
THIS AMENDED AND RESTATED PROMISSORY NOTE dated as of December 16, 1998,
is entered into by and between XXX.XXX, INC., a Delaware corporation (the
"COMPANY"), and Xxxxxx Xxxxxxxx (the "MAKER") ("NOTE").
The Company and the Maker have entered into promissory notes dated
August 25, 1998, in the original principal amount of $1,239,124.66, dated
August 25, 1998, in the original principal amount of $940,000 and dated
August 26, 1998, in the original principal amount of $299,124.66, pursuant to
which the Company extended to the Maker certain sums of money (the "ORIGINAL
NOTES"). The Company and the Maker desire to amend and restate the Original
Notes in accordance with the terms of this Note.
FOR VALUE RECEIVED, the Maker hereby unconditionally promises to pay to
the order of the Company, at Santa Clara, California, or at such other place
as the holder hereof may designate in writing, in lawful money of the United
States of America and in immediately available funds, the principal sum of
Three Hundred Forty-Nine Thousand One Hundred Twenty-Four Dollars and
Sixty-Six Cents ($349,124.66) together with interest accrued from August 26,
1998 on the unpaid principal at the rate of 7.0% per annum, or the maximum
rate permissible by law (which under the laws of the State of California
shall be deemed to be the laws relating to permissible rates of interest on
commercial loans), whichever is less, as follows:
The outstanding principal and interest hereunder shall be due and
payable in full on June 30, 1999, and interest shall be calculated on the
basis of a 360-day year for the actual number of days elapsed.
If the undersigned fails to pay any of the principal and accrued
interest when due, the Company, at its sole option, shall have the right to
accelerate this Note, in which event the entire principal balance and all
accrued interest shall become immediately due and payable, and immediately
collectible by the Company pursuant to applicable law.
This Note may be prepaid at any time without penalty. All money paid
toward the satisfaction of this Note shall be applied first to the payment of
interest as required hereunder and then to the repayment of the principal.
The full amount of this Note is secured by a pledge of shares of Common
Stock of the Company, and is subject to all of the terms and provisions of
the Pledge Agreement dated of even date herewith between the undersigned and
the Company.
The undersigned hereby waives presentment, protest and notice of
protest, demand for payment, notice of dishonor and all other notices or
demands in connection with the delivery, acceptance, performance, default or
endorsement of this Note.
1.
The holder hereof shall be entitled to recover, and the undersigned
agrees to pay when incurred, all costs and expenses of collection of this
Note, including without limitation, reasonable attorneys' fees.
This Note shall be governed by, and construed, enforced and interpreted
in accordance with, the laws of the State of California, excluding conflict
of laws principles that would cause the application of laws of any other
jurisdiction.
THE MAKER
/s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx
FORM 2274
