This Loan and Security Agreement (as from time to time amended, supplemented, restated, or otherwise modified, "Agreement") is entered into effective _________,_________,_________(M/D/Y) ("Effective Date") by and among AAA, Inc., a _________ corporation ("Lender"), on the one hand, and, on the other hand, BBB(sb), an individual and CCC(sb), his spouse (collectively, "Borrower"). This Agreement, the Note (defined in Section 1.2), the Second Mortgage (defined in Section 1. 3), the Pledge Agreement (defined in Section 1.4) and any other documents entered into pursuant to this Agreement or in connection with this Loan (defined in Section 1.1) are hereinafter sometimes collectively referred to as the "Loan Documents."
WHEREAS, Lender desires to loan a certain sum to Borrower and Borrower wishes to borrow a certain sum from Lender in order that Borrower may purchase a primary residence in _________(address);
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties and covenants set forth in this Agreement, Lender and Borrower hereby agree as follows:
1. AMOUNT AND TERMS OF LOAN.
1.1 Loan. Subject to the terms and conditions of this Agreement, and in reliance on the representations, warranties and covenants of Borrower in this Agreement, Lender shall loan Borrower the principal amount of _________ Dollars ($ _________) ("Loan") for the purchase of a primary residence in Northern _________(PLACENAME) ("Northern _________(PLACENAME) Residence").
1.2 Note; Interest. Borrower's indebtedness to Lender under the Loan Documents will be evidenced by a Secured Promissory Note executed by Borrower substantially in the form attached as Exhibit A (the "Note"). The Note will provide that interest on the unpaid principal of this Loan will accrue at a rate equal to four and eighty-one hundredths percent (4.81%) per annum. Accrued interest is payable on the date that is three months after the date of the Note and every three months thereafter until this Loan has been repaid in full. Interest will continue to accrue until the date on which all amounts owing under the Loan Documents have been repaid in full.
1.3 Security. Borrower's indebtedness to Lender under the Loan Documents will be secured by a second mortgage in such form as is customarily utilized in the Province of British Columbia, Canada (the "Second Mortgage") on property owned by Borrower and located at _________ ("Property"). The Second Mortgage will be executed by Borrower in favor of Lender.
1.4 Additional Security. Borrower's indebtedness to Lender under the Loan Documents will also be secured by Borrower's pledge of certain shares of Lender equity securities (the "Pledged Shares") in accordance with the terms of a pledge agreement, dated _________,_________,_________(M/D/Y), substantially in the form attached as Exhibit B (the "Pledge Agreement"). Borrower shall immediately transfer to Lender upon issuance all Lender equity securities that Borrower acquires pursuant to: (a) Borrower's exercise of options to purchase Lender equity securities under Lender's 1995 Equity Incentive Plan or any subsequent or similar stock option plan of Lender, or (b) any employee stock purchase agreement or other similar plan of Lender.
1.5 Maturity of Loan. The unpaid principal amount of this Loan and all unpaid interest accrued thereon, will be immediately due and payable to Lender in full on the date (the "Maturity Date") that is the earlier to occur of: (a) twelve (12) months after the date of the Note, or (b) the date on which the unpaid principal amount and interest due under this Loan becomes due and payable in full under Section 5.1. The Lender agrees to release the Borrower from any and all obligations in the Loan Documents upon full payment of the Loan and Interest.
1.6 Prepayment. Borrower may prepay the unpaid principal and interest due under this Loan at any time, without penalty, in whole or in part in amounts of at least Ten Thousand Dollars ($ _________). Each prepayment will be applied as follows: (a) first to the payment of accrued interest, and (b) second, to the extent that the amount of such prepayment exceeds the amount of all such accrued interest, to the payment of principal on this Loan. Until this Loan is paid in full, Borrower shall immediately apply: (a) if no default event has occurred under the Loan Documents and is continuing, fifty percent (50%) of the net before tax proceeds from any sale by Borrower of the Pledged Shares, or (b) if a default event has occurred and is continuing, one hundred percent (100%) of the net before tax proceeds from any sale by Borrower of the Pledged Shares, to pay down this Loan in accordance with this Agreement.
1.7 At Will Employment. Borrower is an "at will" employee of Lender, and nothing in this Agreement or any exhibit shall be construed as a promise of continued employment.
2. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and warrants to Lender that:
2.1 Use of Loan Proceeds. Borrower will apply the entire Loan proceeds towards the purchase of the Northern _________(PLACENAME) Residence no later than _________,_________,_________(M,D,Y).
2.2 Nature of Purchase. Borrower's purchase of the Northern _________(PLACENAME) Residence will be an arm's length transaction.
2.3 Title to Property. The Property is free and clear of all mortgages, deeds of trust, liens, encumbrances and security interests, except for: (a) if Borrower has a first lender for the Property, the mortgage filed by such first lender; (b) statutory liens for the payment of current taxes that are not yet delinquent; and (c) subject to approval by Lender, encumbrances identified in Exhibit C attached hereto.
2.4 Balloon Payment. Borrower acknowledges that the unpaid principal amount of this Loan and all unpaid interest accrued thereon will be immediately due and payable to Lender in full as one balloon payment on the Maturity Date.
3. COVENANTS OF BORROWER.
3.1 Insurance Covering Collateral. Borrower shall maintain all risk property damage insurance policies covering the Property in an amount at least equal to the value of the dwelling on the Property.
3.2 Further Assurances. In addition to the obligations and documents that this Agreement expressly requires Borrower to execute, deliver and perform, Borrower will execute, deliver and perform any and all further acts or documents which Lender may reasonably require in order to carry out the purposes of this Agreement or any of the other Loan Documents.
4. CONDITIONS PRECEDENT TO OBLIGATIONS OF LENDER. The obligation of Lender to make this Loan is subject to the satisfaction (or written waiver by Lender) of each and all of the following conditions precedent:
4.1 Representations True. All representations and warranties of Borrower contained in this Agreement and in all other Loan Documents will be true, correct and complete in all respects.
4.2 Note, Second Deed of Trust and Stock Pledge Agreement. Lender will have received from Borrower the Note, the Second Deed of Trust and the Stock Pledge Agreement, each duly executed by Borrower.
4.3 Loan Effective Date. The Effective Date of this Loan must be earlier than _________,_________,_________(M/D/Y).
5. DEFAULT BY BORROWER.
5.1 Acceleration. The unpaid principal and interest due under this Loan will become immediately due and payable, without the need for any further action on the part of Lender or any other holder of the Note: (a) upon Borrower's sale, gift, assignment or other transfer of the Property, except for transfers which, by law, cannot be restricted by a due-on-sale clause, (b) upon Borrower's sale, gift, assignment or other transfer of the Northern _________(PLACENAME) Residence, except for transfers which, by law, cannot be restricted by a due-on- sale clause, (c) upon termination of Borrower's employment with Lender for any reason other than termination without cause by Lender or (d) upon Borrower's failure to apply the appropriate proceeds of any sale of Pledged Shares to pay down this Loan in accordance with Section 1.6. In the event that Lender terminates Borrower's employment with Lender without cause, the unpaid principal and interest due under this Loan will become immediately due and payable, without the need for any further action on the part of Lender or any other holder of the Note, on the date that is one hundred eighty (180) days after the date of termination of Borrower's employment with Lender. In any case, this Loan shall become due and payable in full no later than twelve (12) months after the date of the Note.
5.2 Default. Borrower will be deemed to be in default of this Loan if: (a) Borrower fails to pay Lender (or, in the event another party holds the Note, such holder) the full amount of unpaid principal and interest due under this Loan on or before the Maturity Date, and (b) Borrower does not cure this failure to pay within five (5) calendar days after Lender gives Borrower written notice of such failure to pay.
5.3 Remedies Upon Default. Upon Borrower's default of this Loan, Lender may pursue its rights under the Note, the Second Mortgage and the Stock Pledge Agreement. The rights and remedies of Lender herein provided will be cumulative and not exclusive of any other rights or remedies provided by law or otherwise.
6. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
6.1 Choice of Law and Venue.
THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF _________(PLACENAME) WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR ANY REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF _________(PLACENAME). THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF SAN MATEO, STATE OF _________(PLACENAME) OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF BORROWER AND LENDER WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 6.
6.2 Jury Trial Waiver.
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