EXHIBIT 10.4
FULL RECOURSE NOTE
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$23,250 July 20, 2001
FOR VALUE RECEIVED, Xxxxx X. Xxxxxxxx (the "Borrower"), hereby
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unconditionally promises to pay to the order of CBRE Holding, Inc., a Delaware
corporation formerly known as XXXX XX Holding Corp. ("CBRE") or its
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registered assigns, the aggregate principal amount of Twenty Three Thousand Two
Hundred Fifty Dollars ($23,250), in lawful money of the United States of America
and in immediately available funds (the "Loan"). All capitalized terms not
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otherwise defined herein shall have the meanings given to them in the Designated
Manager Subscription Agreement, dated on or about July 16, 2001 (the
"Agreement"), between CBRE and the Borrower.
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The Borrower has agreed to purchase shares of CBRE's Class A Common
Stock, par value $0.01 per share (the "Equity Interest"), and has requested that
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CBRE make the Loan to the Borrower as a portion of the purchase price of the
Equity Interest.
1. Interest and Payment.
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(a) Interest shall accrue on the principal amount hereof at an
annual rate of ten percent (10%), compounded annually, and shall be payable in
cash on each March 31, June 30, September 30 and December 31 prior to the
payment in full of all unpaid principal and accrued and unpaid interest thereon.
All accrued and unpaid interest, together with all unpaid principal, if not
sooner paid, shall be due and payable on the earliest of (i) the ninth
anniversary of the date first above written; (ii) if the Borrower's employment
with CBRE is terminated (x) 30 days following the date of such termination of
employment if the Borrower's employment was terminated for any reason not
described in clause (y), or (y) 180 days following the date of such termination
of employment if the Borrower's employment was terminated by CBRE without Cause,
by the Borrower for Good Reason or as a result of the Borrower's death or
disability, provided, however, that if the Borrower timely delivers a Sale
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Notice pursuant to Section 2.9 of the Agreement and CBRE fails to purchase the
Note Repayment Shares on the Note Repayment Date pursuant to Section 2.9 of the
Agreement, the periods set forth in the preceding clauses (x) and (y), solely
with respect to that portion of the Loan then due and payable that otherwise
would be repaid by the Borrower with the proceeds from the purchase of the Note
Repayment Shares, shall be extended until such time as CBRE shall have performed
such obligation in full; (iii) the acceleration of the maturity of the Loan (as
provided herein); and (iv) the Borrower's receipt of any proceeds (in cash or in
kind) upon the sale, exchange or other disposition of the Equity Interest
subject to the Pledge Agreement securing Borrower's obligations under this Note;
provided that in the case of an event described in this clause (iv), the amount
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of unpaid principal and accrued and unpaid interest of the Loan which shall
become due and payable as a result of such event shall be limited to the Net
Proceeds received by the Borrower in connection with such sale, exchange or
disposition. Any overdue amount shall bear interest at the rate of twelve
percent 12% per annum, compounded annually.
(b) Notwithstanding the foregoing, in the event of the
Borrower's death or permanent disability (as defined below), the amount of the
Loan due and payable as set forth in Section 1(a)(ii)(y) above shall be limited
to the Pledged Interests as defined in the Borrower's Pledge Agreement.
Disability occurs when the Borrower becomes physically or mentally incapacitated
and is therefore unable for a period of six (6) consecutive months or for an
aggregate of nine (9) months in any twenty-four (24) consecutive month period to
perform
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Xxxxxxxx's duties (such incapacity is hereinafter referred to as "Disability").
Any question as to the existence of the Disability of Borrower as to which
Borrower and CBRE cannot agree shall be determined in writing by a qualified
independent physician mutually acceptable to Borrower and CBRE. If Xxxxxxxx and
CBRE cannot agree as to a qualified independent physician, each shall appoint
such a physician and those two physicians shall select a third who shall make
such determination in writing. The determination of Disability made in writing
to CBRE and Borrower shall be final and conclusive for all purposes of the
Agreement.
2. Acceleration. (a) In the event that the Borrower commences an
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action under any law relating to bankruptcy, insolvency or relief of debtors,
there is commenced against the Borrower an action under any such law which
results in the entry of an order for relief or such action remains undismissed
for a period of 60 days or the Borrower otherwise becomes insolvent, the
obligation of the Borrower hereunder shall automatically be accelerated and (b)
in the event that the Borrower defaults in any payment obligation hereunder or
in any agreement contained in the Pledge Agreement, CBRE may accelerate this
Loan and may, by written notice to the Borrower, declare the entire unpaid
outstanding principal amount and all such accrued and unpaid interest thereon to
be immediately due and payable and, thereupon, in the case of each of clause (a)
and (b), the unpaid outstanding principal amount and all such accrued and unpaid
interest shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower. The failure of CBRE to accelerate this Loan shall not
constitute a waiver of any of CBRE's rights under this Loan as long as any of
the events described in this section continue.
3. Pledge Agreement. The obligations of the Borrower hereunder are
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secured pursuant to the Pledge Agreement dated the date hereof made by the
Borrower to CBRE.
4. Miscellaneous. To the extent permitted by law, the Borrower
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hereby waives diligence, presentment, demand, demand for payment, notice of
non-payment, notice of dishonor, protest and notice of protest and all other
notices or demands in connection with the delivery, acceptance, performance,
default or enforcement of this Note.
No waiver or modification of the terms of this Note shall be valid
unless in writing signed by CBRE and then only to the extent therein set
forth.
This Note shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed and delivered on the day and year first above written.
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Address: 000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
