Exhibit 10.20
SECURED PROMISSORY NOTE
Sunnyvale, California
$250,000.00 September 30, 1996
1. Obligation. The undersigned, Alan I.
Fraser ("Borrower") hereby promises to pay to the order of
Digital Link Corporation, a California corporation,
("Lender" or "Holder") on or before
September 30, 1999, at Lender's principal place of
business at 217 Humboldt Court, Sunnyvale, California
94089, or at such other place as Holder may direct, the
principal sum of Two Hundred Fifty Thousand Dollars
($250,000.00), together with all interest accrued on
unpaid principal, at a rate of six and two one
hundredths percent (6.02%) per annum (calculated on the
basis of a 360day year), compounded annually, which rate
is not less than the minimum rate established
pursuant to Section 1274(d) of the Internal Revenue Code of 1986,
as amended, as of the date hereof. As
used herein, the term "Holder" shall
initially mean Lender, and shall subsequently mean each
person or entity to whom this Note is duly assigned.
If any payment of principal or interest under this Note
becomes due and payable on a day other than a business
day then the maturity of such payment will be extended
to the next succeeding business day, and with respect
to the payment of principal, interest thereon will be
payable at the rate set forth herein during the period
of such extension.
2. Prepayment. Prepayment of unpaid principal
and/or interest due under this Note may be made at any time
without penalty. Unless otherwise agreed in writing
by Holder, all payments will be made in lawful tender of the United
States and will be applied (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.
3. Security. Payment of this Note is secured
by a security interest in assets and properties of Borrower
granted pursuant to the terms and conditions of a
Security Agreement dated of even date herewith among
Borrower and Lender, as such may be amended from time to
time (the "Security Agreement").
4. Default; Acceleration of Obligation. Borrower
will be deemed to be in default under this Note and the
outstanding unpaid principal balance of this Note, together with all
interest accrued thereon, will immediately become due and
payable in full, without the need for any further action
on the part of Holder, upon the occurrence of any of
the following events (each an "Event of
Default"): (a) upon Borrower's failure to make any
payment when due under this Note; (b) upon any sale,
transfer or other disposition of the Collateral by
Borrower; (c) upon the filing by or
against Borrower of any voluntary or involuntary
petition in bankruptcy or any petition for relief
under the federal bankruptcy code or any other state or
federal law for the relief of debtors; provided, however, with
respect to an involuntary petition in bankruptcy, such petition has
not been dismissed within thirty (30) days after the
filing of such petition; (d) upon the execution by
Borrower of an assignment for the benefit of creditors
or the appointment of a receiver, custodian,
trustee or similar party to take possession of
Borrower's assets or property; or (e) upon any breach,
default or violation by Borrower of any term, condition,
obligation, representation or covenant of the Security Agreement.
5. Remedies On Default; Acceleration. Upon any
Event of Default, Holder will have, in addition to its rights and
remedies under this Note, full recourse against any
real, personal, tangible or intangible assets of
Borrower, and may pursue any legal or equitable remedies
that are available to Holder, and may declare the entire
unpaid principal amount of this Note and all unpaid
accrued interest under this Note to be immediately due and
payable in full.
6. Waiver and Amendment. Any provision of this
Note may be amended or modified only by a writing signed by both
Borrower and Holder. Except as provided below with
respect to waivers by Borrower, no waiver or consent with
respect to this Note will be binding or effective unless
it is set forth in writing and signed by the party
against whom such waiver is asserted. No course of
dealing between Borrower and Holder will operate as a
waiver or modification of any party's rights or
obligations under this Note. No delay or failure on
the part of either party in exercising any right or
remedy under this Note will operate as a waiver of such
right or any other right. A waiver given on one occasion
will not be construed as a bar to, or as a waiver of,
any right or remedy on any future occasion.
7. Waivers of Borrower. Borrower hereby
waives presentment, notice of non-payment, notice of dishonor,
protest, demand and diligence. This Note may be amended
only by a writing executed by Borrower and Holder.
8. Governing Law. This Note will be governed
by and construed in accordance with the internal laws of the
State of California as applied to agreements between
residents thereof to be performed entirely within such
State, without reference to that body of law relating to
conflict of laws or choice of law.
9. Severability; Headings. The
invalidity or unenforceability of any term or
provision of this Note will not affect the validity
or enforceability of any other term or provision
hereof. The headings in this Note are
for convenience of reference only and will not alter
or otherwise affect the meaning of this Note.
10. Jurisdiction; Venue. Borrower, by its
execution of this Note, hereby irrevocably submits to the in
personam jurisdiction of the state courts of the State of
California and of the United States District Court for the
Northern District of California that are located in Santa
Clara County, California, for the purpose of any suit,
action or other proceeding arising out of or based upon this
Note.
11. Attorneys' Fees. If suit is brought for collection
of this Note or enforcement of the Security Agreement,
Borrower agrees to pay all reasonable expenses, including
attorneys' fees, incurred by Holder in connection therewith
whether or not such suit is prosecuted to judgment.
12. Assignment. This Note is freely transferable
and assignable by Holder, provided that such transfer is made
in compliance with all applicable state and federal securities
laws. Any reference to Holder herein will be deemed to refer
to any subsequent transferee of this Note at such time
as such transferee holds this Note. This Note may not be
assigned or delegated by Borrower,
whether by voluntary assignment
or transfer, operation of law, merger or otherwise.
IN WITNESS WHEREOF, Borrower has executed this Note
as of the date and year first above written.
BORROWER
\s\ Alan I. Fraser
Alan I. Fraser