EXHIBIT 10.12
PROMISSORY NOTE
(SECURED BY DEED OF TRUST)
$733,335.00 May 26, 1992
Ojai, California
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Andrew F. Pollet and Sally M. Pollet, Co-Trustees of the Andrew
F. and Sally M. Pollet Revocable Trust dated March 6, 1990 (hereinafter
"Maker"), hereby promises to pay to Staar Surgical Company, a Delaware
corporation, or order (hereinafter "Holder"), at the address hereinbelow
designated on the signature page of this Note, or such other place as Holder may
designate by written notice to Maker, the principal sum hereinbelow described
(hereinafter the "Principal Amount"), together with interest thereon, in the
manner and at the times provided in this Note and subject to the terms and
conditions hereinbelow described.
1. Principal Amount.
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The Principal Amount means the sum of Seven Hundred Thirty-three
Thousand Three Hundred Thirty-five and No/100 Dollars ($733,335.00).
2. Interest.
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Interest on the Principal Amount from time-to-time remaining unpaid
shall accrue from the date of this Note at the lesser of eight percent (8%) or
that fixed rate of interest (as of the date of this Note) which equals the
minimum applicable rate of simple interest (as of the date of this Note) which
will avoid the imputation of income to Maker. Interest shall be computed on the
basis of a three hundred sixty (360) day year and a thirty (30) day month.
3. Payment of Principal and Interest.
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Subject to Paragraph 7, the Principal Amount and accrued and unpaid
interest on the Principal Amount and all other indebtedness under this Note
shall be paid on May 31, 1995. Until such date, all interest on this Note shall
accrue.
4. Prepayments.
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Maker shall have the right to prepay any portion of the Principal
Amount without prepayment penalty or premium or discount.
5. Manner of Payments/Crediting of Payments.
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Payments of any amount required hereunder shall be made
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solely in lawful money of the United States, without deduction or offset, and
shall be credited first against accrued but unpaid interest, if any, and
thereafter against the unpaid balance of the Principal Amount.
6. Security.
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The payment of this Note is secured by a Deed of Trust executed by
Maker in favor of Holder of even date herewith.
7. Acceleration Upon Default.
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At the option of Holder, all or any part of the indebtedness of Maker
hereunder shall immediately become due and payable, irrespective of any agreed
maturity, upon the happening of any of the following events of default ("Event
of Default"):
(a) Upon the occurrence of any event of default described under the
Deed of Trust;
(c) If any of the following events constituting default occurs,
provided, however, that if any such event of default is reasonably susceptible
of being cured, Maker shall be entitled to a grace period of thirty (30) days
following written notice of such event of default to cure it, and further
provided, that if such event of default is of such character as to reasonably
require more than thirty (30) days to cure, Maker has promptly commenced to cure
said events of default within the thirty (30) day period and used reasonable
diligence thereafter in curing such events of default, the thirty (30) day
period shall be reasonably extended (but not to exceed one hundred twenty days
(120)):
(i) If Maker shall breach any non-monetary condition or
obligation imposed on Maker pursuant to the terms of this Note;
(ii) If Maker shall make an assignment for the benefit of
creditors;
(iii) If a custodian, trustee, receiver, or agent is appointed or
takes possession of substantially all of the property of Maker;
(iv) If Maker becomes insolvent as that terms is defined in
Section 101(26) of Title 11 of the United States Code;
(v) If Maker shall (A) file a petition with the Bankruptcy Court
under the Bankruptcy Code, or (B) otherwise file any petition or apply to any
tribunal for appointment of a custodian, trustee, receiver, or agent of Maker,
or commence any proceeding related to Maker under any bankruptcy or
reorganization statute, or
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under any arrangement, insolvency, readjustment of debt, dissolution, or
liquidation law of any jurisdiction, whether now or hereafter in effect;
(vi) If any petition is filed against Maker under the Bankruptcy Code
and either (A) the Bankruptcy Court orders relief against Maker under the
chapter of the Bankruptcy Code under which the petition was filed, or (B)
such petition is not dismissed by the Bankruptcy Court within thirty (30)
days of the date of filing;
(vii) If any petition or application of the type described in
Subparagraph (vi)(A) above is filed against Maker, or any proceeding of the
type described in Subparagraphs (v)(A) or (v)(B) above is commenced, and
either (1) Maker, by any act, indicates his approval thereof, consent
thereto, or acquiescence therein, or (2) an order is entered appointing any
such custodian, trustee, receiver, or agent, adjudicating Maker bankrupt
or insolvent, or approving such petition or application in any such
proceeding, and any such order remains in effect for more than thirty (30)
days;
(viii) If any attachment, execution, or other writ is levied on
substantially all of the assets of Maker and remains in effect for more
than fifteen (15) days.
8. Collection Costs and Attorneys' Fees.
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(a) Maker agrees to pay Holder all costs and expenses, including actual
attorneys' fees, paid or incurred by Holder in connection with the collection or
enforcement of the Note or any instrument securing payment of this Note,
including defending the priority of such instrument or as a result of
foreclosure against, or conducting a trustee sale thereunder.
(b) In the event any party institutes or should the parties otherwise
become a party to any action or proceeding in connection with the enforcement or
interpretation or collection of this Note or any instrument securing payment of
this Note, or for damages by reason of any alleged breach of this Note or any
provision hereof or any alleged breach of any instrument securing payment of
this Note or any provision thereof, or for a declaration of rights in connection
with this Note or any instrument securing payment of this Note, or for any other
relief, including equitable relief, in connection with this Note or any
instrument securing payment of this Note, the prevailing party in any such
action or proceeding shall be entitled to receive from the non-prevailing party
all costs and expenses including, without limitation, actual attorneys' and
other fees incurred by the prevailing party in connection with such action or
proceeding.
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9. Notice.
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Any notice to Maker provided for in this Note shall be given by personal
delivery or by express mail, Federal Express, DHL or similar airborne/overnight
delivery service, or by mailing such notice by certified mail, return receipt
requested, addressed to Maker at the address set forth below where this Note is
executed, or to such other address as Maker may designate by written notice to
Holder. Any notice to Holder shall be given by personal delivery or by express
mail, Federal Express, DHL or similar airborne/overnight delivery service, or by
mailing such notice by certified mail, return receipt requested, to Holder at
the address set forth below where this Note is executed, or at such other
address as may have been designated by written notice to Maker. Mailed notices
shall be deemed delivered and received three (3) days after deposit in
accordance with this provision in the United States mail.
10. Usury Compliance.
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All agreements between Maker and Holder are expressly limited, so that in
no event or contingency whatsoever, whether by reason of the consideration given
with respect to this Note, the acceleration of maturity of the unpaid Principal
Amount and interest thereon, or otherwise, shall the amount paid or agreed to be
paid to Holder for the use, forbearance, or detention of the indebtedness which
is the subject of this Note exceed the highest lawful rate permissible under the
applicable usury laws. If, under any circumstances whatsoever, fulfillment of
any provision of this Note or any agreement securing payment of this Note or
executed in connection with this Note after timely performance of such provision
is due, shall involve transcending the limit of validity prescribed by law which
a court of competent jurisdiction deems applicable, then the obligations to be
fulfilled shall be reduced to the limit of such validity, and if, under any
circumstances whatsoever, Holder shall ever receive as interest an amount that
exceeds the highest lawful rate, the amount that would be excessive interest
shall be applied to the reduction of the unpaid Principal Amount and/or late
charges under this Note and not to the payment of interest, or, if such
excessive interest exceeds the unpaid balance of the Principal Amount and/or
late charges under this Note, such excess shall be refunded to Maker.
11. General.
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(a) No delay or omission on the part of Holder in exercising any rights
under this Note or under any instrument given to secure this Note, on default by
Maker, including, without limitation, Holder's right to accelerate, nor
reinstatement of this Note by Holder after such exercise, shall operate as a
waiver of Maker's right to exercise such right or of any other right under this
Note or the instruments given to secure this Note, for the same default or any
other default.
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(b) Except for the provision of written notice hereinabove set forth, Maker
hereby waives presentment for payment, demand, protest, notice of protest and
notice of dishonor, and all other notices to which Maker might otherwise be
entitled, and further waives the right to require Holder to proceed against any
security for this Note before proceeding against Maker, and further waives all
defenses based on release of security or extension of time or other indulgence
given in respect to payment of this Note.
(c) Holder shall have the right to sell, assign, or otherwise transfer,
either in part or in its entirety, this Note, and any instrument evidencing or
securing the indebtedness of this Note (provided such instrument is transferred
as security for the portion of the Note which is conveyed), without the consent
of Maker. The assignment of this Note by Holder shall be ineffective until
actual notice of same is received by Maker. Maker shall have no right to
delegate its duties under this Note or any instrument securing this Note without
the written consent of Holder, which consent Holder shall not unreasonably
withhold, provided, however, no delegation of such duties or obligations shall
release Maker from any duty or obligation under this Note or instrument securing
payment of this Note.
(d) Subject to the foregoing Subparagraph (c), this Note and all of the
covenants, promises, and agreements contained in it shall be binding on and
inure to the benefit of the respective legal and personal representatives,
devises, heirs, successors, and assigns of Maker and Holder.
(e) This writing is intended by the parties to be an integrated and final
expression of this Note and also is intended to be a complete and exclusive
statement of the terms of that agreement. No course of prior dealing between the
parties, no usage of trade, and no parol or extrinsic evidence of any nature
shall be used to supplement, modify or vary any of the terms hereof. There are
no conditions to the full effectiveness of this Note except as specifically
provided herein.
(f) If any provision of this Note, or the application of it to any party or
circumstance, is held to be invalid, the remainder of this Note, and the
application of such provision to other parties or circumstances, shall not be
affected thereby, the provisions of this Note being severable in any such
instance.
(g) This Note shall be governed by, interpreted under and construed and
enforced in accordance with the laws of the State of California applicable to
contracts entered into in the State of California, by residents of the State of
California, and intended to be performed entirely within the State of
California. Any action to enforce payment of this Note shall be filed and heard
solely in the Municipal or Superior Court of Los Angeles County, California.
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(h) Time is of the essence for each and every obligation under this
Note.
MAKER:
/s/ Andrew F. Pollet
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Andrew F. Pollet, Co-Trustee of the
Andrew F. and Sally M. Pollet
Revocable Trust dated March 6, 1990
/s/ Sally M. Pollet
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Sally M. Pollet, Co-Trustee of the
Andrew F. and Sally M. Pollet
Revocable Trust dated March 6, 1990
MAKER'S ADDRESS:
Andrew F. and Sally M. Pollet,
Co-Trustees
10934 Alto Court
Oak View, CA 93022
HOLDER'S ADDRESS:
Staar Surgical Company
1911 Walker Avenue
Monrovia, CA 91016
DO NOT DESTROY THIS NOTE; WHEN PAID, THIS NOTE
MUST BE SURRENDERED TO MAKER FOR CANCELLATION
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