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FORM OF PROMISSORY NOTE EXHIBIT 10.21
$__________ February_____, 2000
XXXXXXX X. XXXXX, a natural person residing in the State of North
Carolina (the "Borrower"), for value received, hereby promises to pay to
LENDINGTREE, INC. (the "Company"), or its assigns, the principal amount of
_____________________________ DOLLARS ($__________) (the "Loan"), of which
_______________________ DOLLARS ($__________) shall be paid on each of the
Maturity Dates, with interest (computed on the basis of the actual number of
days elapsed over a 360 day year) payable, from the date hereof, on the unpaid
balance of the Loan at a rate per annum equal to the Federal Rate, on January 31
of each year in which a principal balance is outstanding, in arrears. Payments
of princi pal and interest hereon shall be made in lawful money of the United
States of America at the address for such purpose specified in Section 9 or at
such other address as you or any subsequent holder of this Note may designate in
writing, without requiring any presentation or surrender of this Note, except if
this Note is paid or prepaid in full it shall be promptly surrendered to the
Borrower and canceled.
Section 1. Prepayment. At any time, or from time to time, the Borrower
may, at Borrower's option, or as required by Section 4(d) hereto, prepay all or
any part of this Note. In the event of any such prepayment, the Borrower shall
give written notice thereof to the holder of this Note not less than 10 days (or
three (3) business days if the prepayment is required by Section 4(d)) prior to
the date fixed for such prepayment. Each such notice shall set forth (a) the
date fixed for prepayment, (b) the aggregate principal amount of and accrued on
this Note to be prepaid on such date.
Section 2. Acceleration. In addition to the rights granted to the holder
of this Note under Section 3 hereof, if the Borrower's employment with the
Company is terminated for any reason, on the date which is 45 days from the date
such termination becomes effective, the holder of this Note shall have the
right to declare the entire principal of, and interest accrued on, this Note
then outstanding to be, and this Note shall thereupon become, forthwith due and
payable, without any presentment, demand, protest, or other notice of any kind,
all of which are hereby expressly waived, and the Borrower shall forthwith pay
to the holder of this Note the entire principal of, and interest accrued
interest on, this Note.
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Section 3. Representations and Warranties.
The Borrower represents and warrants that:
(a) When executed and delivered, this Note will constitute the
valid and legally binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
(b) The execution, delivery and performance of this Note will
not violate or conflict with or constitute a default under, or result in the
creation of any mortgage, lien, charge or encumbrance upon any of the properties
or assets of the Borrower pursuant to any term of any agreement, instrument,
judgment, decree, order, law, statute, rule or regulation applicable to the
Borrower or any of Borrower's respective properties or assets.
(c) The Borrower is not bound by or subject to any agreement,
instrument, judgment, decree, order, law, statute, rule or regulation under the
terms of or pursuant to which Borrower's obligation to pay interest or principal
of this Note, or to perform Borrower's obligations hereunder, is in any way
restricted.
Section 4. Covenants. The Borrower covenants and agrees that until the
principal amount of this Note, together with interest thereon and all other
obligations incurred hereunder, are paid in full:
(a) Payment of Principal and Interest. The Borrower shall duly
and punctually pay to the Company, when due, all principal of and interest on
this Note on the dates and in the manner provided herein. Principal or interest
shall be considered paid on the date it is due if the Company withholds on that
date money otherwise payable to the Borrower, in the amounts and at the times
required under this Note. The Borrower shall pay interest on overdue principal
from the due date at the Federal Rate plus 2.0% per annum; and pay interest,
including post-petition interest in the event of a proceeding under the
Bankruptcy Code, on overdue installments of interest at the same rate to the
extent lawful.
(b) No Transfer of Pledged Stock. The Borrower shall not
transfer any of the Pledged Stock except in accordance with the terms and
provisions of the Pledge Agreement.
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(c) Use of Proceeds. The Borrower shall use the proceeds from
the Loan solely for the purpose of acquiring the Pledged Stock and not use the
proceeds from the Loan, directly or indirectly, to purchase or carry margin
securities, as those terms are defined in the laws and regulation applicable to
margin loans as promulgated by the Securities and Exchange Commission and the
Board of Governors of the Federal Reserve System.
(d) Mandatory Prepayment. Within three (3) business days
after the receipt by the Borrower of any Net Proceeds, the Borrower shall apply
such Net Proceeds to as follows:
(i) if the Current Value of the Pledged Stock is equal
to or greater than the Minimum Collateral Value, the Net Proceeds Payable shall
be applied by the Borrower ratably to the prepayment of the Loans, and the
remainder of the Net Proceeds shall be retained by the Borrower; provided,
however, that if the Current Value of the Pledged Stock is less than the Minimum
Collateral Value, the Borrower must make prepayment pursuant to paragraph (ii)
below.
(ii) if the Current Value of the Pledged Stock is less
than the Minimum Collateral Value, the Net Proceeds shall be applied by the
Borrower ratably to the prepayment of the Loans until the Current Value of the
Pledged Stock is at least equal to the Minimum Collateral Value. If there are
any Net Proceeds remaining after such prepayment, they shall be applied pursuant
to paragraph (a) above.
Section 5. Remedies.
Each of the following shall be Events of Default under this Note:
(a) the Borrower defaults in the due and punctual payment of
all or any part of the principal of this Note when and as the same shall become
due and payable, whether at the stated maturity thereof, by notice of or demand
for prepayment, or otherwise;
(b) the Borrower defaults in the due and punctual payment of
any interest on this Note when and as such interest shall become due and payable
and such default shall have continued for a period of five days;
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(c) any representation or warranty made by the Borrower herein
shall prove to be untrue in any material respect as of the date of the issuance
or making thereof;
(d) the Borrower defaults in the performance or observance of
any other of the provisions contained in this Note and such default shall have
continued for a period of 30 days after the earlier of (i) the Borrower's
obtaining actual knowledge of such default or (ii) the Borrower's receipt of
written notice of such default;
(e) the Borrower shall default in the payment when due
(whether by scheduled maturity, by required prepayment, by acceleration, by
demand, or otherwise) of any indebtedness for borrowed money owing to any other
person, or any interest or premium thereon of any amount owing in respect of
such indebtedness, in excess of $50,000; or the Borrower shall default in the
performance or observance of any obligation or condition with respect to such
indebtedness or any other event shall occur or condition exist, if the effect of
such default, event or condition is to acceler ate the maturity of any such
indebtedness or to permit (without regard to any required notice or lapse of
time) the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such indebtedness, or any such indebtedness
shall become or be declared to be due and payable prior to its stated maturity
other than as a result of a regularly scheduled payment date;
(f) there shall remain in force, undischarged, unbonded, or
unstayed, for more than thirty (30) days, any final judgment against the
Borrower that, with other outstanding final judgments, undischarged, against the
Borrower exceeds in the aggregate $50,000;
(g) the Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator; (ii) be generally unable to pay the Borrower's debts as such
debts become due; (iii) make a general assignment for the benefit of the
Borrower creditors; (iv) commence a voluntary case under the Bankruptcy Code;
(v) file a petition seeking to take advantage of any other law of any
jurisdiction relating to bankruptcy, insolvency, or composition or readjustment
of debts; (vi) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against the Borrower in an
involuntary case under the Bankruptcy Code; or (vii) take any action for the
purpose of effecting any of the foregoing;
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(h) a proceeding or case shall be commenced, without the
application or consent of the Borrower, in any court of competent jurisdiction,
seeking (i) the liquidation of the Borrower's assets, or the composition or
readjustment of the Borrower's debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of any substantial part of the
Borrower's assets, or (iii) similar relief in respect of the Borrower under any
law of any jurisdiction relating to bankruptcy, insolvency, or the composition
or readjustment of debts, and such proceedings or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect for a period of
sixty (60) days; or an order for relief against the Borrower shall be entered
in an involuntary case under any bankruptcy, insolvency, composition,
readjustment of debt, liquidation of assets or similar law of any jurisdiction;
(i) the Borrower shall die or become incapacitated or
otherwise unable to fulfill his duties with the Company; or
(j) any provision of the Pledge Agreement shall for any reason
cease to be valid and binding on the Borrower or the Borrower shall so state in
writing; or the Pledge Agreement shall for any reason cease to create a valid
lien on any of the Collateral purported to be covered thereby, or such lien
shall cease to be a perfected and first priority lien with respect to the
Collateral, or the Borrower shall so state in writing;
If an Event of Default specified in clauses (g) and (h) of this Section 3 shall
exist, this Note shall automatically become immediately due and payable together
with interest accrued thereon, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived.
If an Event of Default other than those specified in clauses (g) and (h) shall
exist, the holder of this Note may exercise any right, power or remedy permitted
to such holder by applicable law, and shall have, in particular, without
limiting the generality of the foregoing, the right to declare the entire
principal of, and interest accrued on, this Note then outstanding to be, and
this Note shall thereupon become, forthwith due and payable, without any
presentment, demand, protest, or other notice of any kind, all of which are
hereby expressly waived, and the Borrower shall forthwith pay to the holder of
this Note the entire principal of, and interest accrued on, this Note.
No course of dealing on the part of the holder of this Note nor any delay or
failure on the part of the holder of this Note to exercise any right shall
operate as a waiver of
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such right or otherwise prejudice such holder's rights, powers and remedies. If
the Borrower fails to comply with any provision of this Note the Borrower shall
pay to the holder, to the extent permitted by applicable law, such further
amounts as shall be sufficient to cover the costs and expenses, including but
not limited to reasonable attorneys' fees, incurred by such holder in collecting
any sums due on this Note or in otherwise assessing, analyzing or enforcing any
rights or remedies that are or may be available to it.
The Borrower further waives and agrees not to assert any rights or privileges it
may acquire under Section 9-112 of the New York Uniform Commercial Code and the
Borrower shall be liable for the deficiency if the proceeds of any sale or other
disposi tion of the Collateral are insufficient to pay all amounts to which the
holder of the Note is entitled, and the fees of any attorneys employed by the
holder of the Note to collect such deficiency.
Section 6. Security. In order to secure the payment and performance in
full of all of its obligations under this Note, the Borrower covenants and
agrees to pledge the Pledged Stock (as defined in the Pledge Agreement) owned by
the Borrower, substantially in accordance with the terms of the Pledge Agreement
attached hereto as Exhibit A.
Section 7. Right of Set-off. The Company is hereby authorized, at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all amounts at any time held and all indebtedness of other
amounts at any time owing by the Borrower to or for the credit or the account of
the Company regardless of the currency in which any such deposit, amount or
indebtedness may be denominated, against any and all of the obligations of the
Borrower now or hereafter existing, irrespective of whether or not the Company
shall have made any demand and al though such obligations may be unmatured. The
Company will promptly notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Company hereunder
are in additional to other rights and remedies (including, without limitation,
other rights of set-off) which the Company may have.
Section 8. Definitions and Principles of Construction.
(a) Defined Terms. As used in this Note, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
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"Applicable Factor" shall mean the result of the Net Proceeds divided by the
Current Value of the Other Stock prior to a Transfer Event.
"Applicable Share Price" shall mean the average closing sale price of the shares
of the Company for the ten trading days immediately preceding a Transfer Event.
"Bankruptcy Code" shall mean Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statutes.
"Collateral" shall have the meaning assigned to that term in the Pledge
Agreement.
"Credit Documents" shall mean this Note and the Pledge Agreement.
"Current Value" shall mean the product of the number of shares to be valued
multi plied by the Applicable Share Price.
"Federal Rate" shall mean the applicable federal rate, as defined under sections
1274(d) and 7872 of the Internal Revenue Code of 1986, as amended, compounded
annually.
"Loans" shall mean, collectively, the Loan and the loan evidenced by the
Supplementary Promissory Note, dated as of the date hereof, by the Borrower in
favor of the Company and attached as Exhibit A to the Pledge Agreement.
"Maturity Dates" shall mean January 31, 2004 and 2005, respectively.
"Material Adverse Effect" shall mean a material adverse effect on (i) the
properties, assets, condition (financial or otherwise) or earnings prospects of
Borrower, (ii) the ability of the Borrower to fully and timely perform the
Secured Obligations, (iii) the legality, validity, binding effect or
enforceability against the Borrower of any Credit Document or (iv) any material
rights, remedies and benefits available to, or conferred upon, the Company, any
holder of the Note or any agent (appointed in accordance with the Pledge
Agreement) under any Credit Document.
"Minimum Collateral Value" shall mean the product of the aggregate outstanding
principal and interest on the Loans multiplied by four (4).
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"Net Proceeds" shall mean any proceeds from a Transfer Event less all reasonable
fees and expenses incurred or to be incurred and all federal state, local and
foreign taxes assessed or to be assessed in connection with such Transfer Event.
"Net Proceeds Payable" shall mean the product of the Net Proceeds multiplied by
the Applicable Factor.
"Other Stock" shall mean all capital stock of the Company, other than the
Pledged Stock, now or hereafter owned by the Borrower.
"Pledge Agreement" shall mean the Pledge Agreement dated as of even date
herewith between the Borrower and the Company, as the same may be amended,
supplemented or otherwise modified from time to time.
"Pledged Stock" shall have the meaning assigned to that term in the Pledge
Agreement.
"Surplus" shall have the meaning assigned to that term in Section 10.
"Secured Obligations" shall have the meaning assigned to that term in the Pledge
Agreement.
"Transfer Event" shall mean (i) any transfer, sale or other disposition of all
or a portion of the Other Stock or (ii) any loan, borrowing or other financing
secured or guaranteed by all or a portion of the Other Stock.
(b) Principles of Construction. All references to sections and
exhibits are to sections and exhibits in or to this Note unless otherwise
specified. The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Note shall refer to this Note as a whole and not to any
particular provision of this Note.
Section 9. Notices.
The Borrower's address for all communications related to this Note shall be as
follows:
Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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The Company's address for all communications and payments related to this Note
shall be as follows:
LendingTree, Inc
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
With a copy to:
LendingTree, Inc
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer
Section 10. Sale of Pledged Stock. In the event that, pursuant to Section
8 of the Pledge Agreement, the Pledgor sells a portion or all of the Pledged
Stock, the Company will deliver to the buyer the corresponding number of shares
of Pledged Stock against the aggregate amount of proceeds from such sale. In the
event that the aggregate amount of proceeds from such sale exceeds the amount of
principal and accrued interest (including, without limitation, fees, expenses or
otherwise) then outstanding on the Loan (the "Surplus"), the Company shall pay
the Pledgor the Surplus.
Section 11. Successors and Assigns.
This Note shall inure to the benefit of and be binding upon the successors and
assigns of the Company or any holder of this Note. The provisions hereof are
intended to be for the benefit of all holders, from time to time, of this Note,
and shall be enforceable by any such holder, whether or not an express
assignment to such holder of rights hereunder shall have been made by the holder
or any successor or assign. The Borrower may not assign this Note without the
prior written consent of the holder of this Note.
Section 12. Expenses. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the holder of this Note, including the
reasonable fees, charges and disbursement of counsel for such holder, in
connection with any amendment, waiver, supplement or modification to, or
enforcement or protection of such holder's rights under this Note.
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Section 13. No Waiver; Remedies Cumulative. No failure or delay on the
part of the Company in exercising any right, power or privilege hereunder and no
course of dealing between the Borrower and the Company shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or hereunder
or the exercise of any other right, power or privilege hereunder. The rights,
powers and remedies herein expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Company or the holder of this Note
would otherwise have. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Company to any
other or further action in any circumstances without notice or demand.
Section 14. GOVERNING LAW. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW).
Section 15. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUN TERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS
AGREE MENT OR ANY MATTER ARISING HEREUNDER.
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Name: Xxxxxxx X. Xxxxx
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EXHIBIT A TO PROMISSORY NOTE
PLEDGE AGREEMENT
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