Exhibit 10.6
FORM OF PROMISSORY NOTE
$______ _______ 16, 2000
Carlsbad, California
FOR VALUE RECEIVED, _________ (the "Payor") hereby promises to pay
on ________, 2005 to Kinzan.com (the "Payee"), at 2111 Palomar Airport Road,
Suite 250, Carlsbad, California 92009, or at such other place as may be
designated from time to time in writing by Payee, in lawful money of the United
States, the principal sum of ___________________________________________,
plus interest accrued hereunder. This note shall bear interest accrued from the
date hereof until the date of payment at a rate of 6.8% per year.
1. This Note is the full recourse promissory note referred to in and
is entitled to the benefits of the Pledge Agreement dated as of
the date hereof between the Payor and the Payee, with respect to
_______ shares of the Common Stock of kinzan.com
2. This Note may be prepaid at the option of Payor, in full or in
part, at any time and from time to time without premium or
penalty. All payments shall be allocated first to accrued but
unpaid interest and then to principal.
3. In the event Payor defaults in the payment when due of the
principal interest on this Note, Payee, at its option, without
notice, may declare all principal and accrued interest to be
immediately due and payable.
4. If this Note is not paid in accordance with its terms and is
placed in the hands of an attorney for collection, or if suit be
instituted hereon, Payor shall pay Payee, in addition to
principal and accrued interest, all costs of collection of the
principal and accrued interest, including, without limitation,
reasonable attorney's fees for the enforcement of this Note.
5. Payor hereby expressly waives presentment, protest and demand,
notice of protest, demand, dishonor and nonpayment of the Note
and all other notices of any kind. This Note shall be governed by
California law.
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PLEDGE AGREEMENT
This Pledge Agreement is made and entered into between Kinzan.com (the
"Secured Party") and ___________ (the "Debtor") effective as of ________, 2000.
1. Secured Party is a Corporation with its principal place of
business at 2111 Palomar Airport Road, Suite 250, Carlsbad,
California 92009.
2. Debtor's address for purposes of this Agreement is:
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3. Secured Party has agreed to loan $______ to Debtor pursuant to
the provisions of the promissory note, dated the date hereof, in
the principal amount of $______ (the "Note").
4. As a condition of the loan, Debtor has agreed to grant to Secured
Party a security interest in ______ shares of Common Stock of
Kinzan.com (the "Company").
AGREEMENT
In consideration of the foregoing recitals and terms, conditions, and
covenants contained herein, Secured Party and Debtor agree as follows:
Section 1. GRANT OF SECURITY. The Debtor hereby pledges to the Secured
Party, and grants to the Secured Party, a security interest in the following
(the "Pledge Collateral").
(i) ______ shares of Common Stock of the Company (the
"Pledge Shares") and the certificates representing
the Pledged Shares, and all non-cash dividends,
instruments and other property from time to time
received, receivable or otherwise distributes in
respect of or upon sales, transfer, exchange or other
disposition of any or all of the Pledge Shares; and
(ii) all additional shares of stock of the issuer of the
Pledged Shares issues in respect of the Pledged
Shares and certificates representing such additional
shares, and all non-cash dividends, instruments and
other property from time to time received, receivable
or otherwise distributes in respect of or in exchange
for any or all such shares.
Section 2. DEBTOR'S OBLIGATIONS SECURITY HEREBY. The Obligations of
Debtor that are secured by this Agreement are as follows:
(i) Payment or performance of all existing and future
obligations of Debtor to Secured Party arising under the Note or this Agreement;
and
(ii) All expenses, including attorney's fees and legal
expenses, incurred or paid by Secured Party in the preservation or enforcement
of his rights or obligations of Debtor under the Note or this Agreement.
Section 3. COLLATERAL--SALE, TRANSFER OR CREATION OF LIEN. Debtor
represents and warrants that Debtor is the sole owner of the Collateral, free
and clear of any lien, claim, charge, option, or other encumbrance, except as
provided in this Agreement and has authority to pledge, transfer, and deliver
any interest therein. Debtor shall not sell or offer to sell or otherwise
transfer the Collateral, or any part thereof or interest therein, encumber the
Collateral, or allow a lien to be placed on the Collateral, without the prior
written consent of Secured Party.
Section 4. POSSESSION OF COLLATERAL. Secured Party shall retain
possession of Collateral until all of Debtor's obligations under the Note and
this Agreement have been performed.
Section 5. DEFAULT DEFINED. Debtor shall be in default under this
Agreement (an "Event of Default") on the happening of any of the following
events or conditions.
(i) Debtor fails to perform any of his obligations under the
Note or this Agreement, including without limitation, fails to make any
payments, when due, under the Note;
(ii) Any warranty, representation, or statement made or
furnished to Secured Party by or on behalf of Debtor in connection with this
Agreement or to induce Secured Party to extend credit to Debtor proves to have
been false in any material respect when made or furnished.
(iii) Any sale or assignment of, or lien or encumbrance on,
any of the Collateral occurs, except as is permitted in this Agreement, or the
filing of suit for the purpose of, or the making of, any levy, seizure, or
attachment thereof occurs; or
(iv) Debtor makes any assignment for the benefit or creditors,
or commences a proceeding under any bankruptcy or insolvency laws, or any
proceeding under any bankruptcy laws is commenced against Debtor.
Section 6. ACCELERATION. On default hereunder or under the
Note, Secured Party may, without notice to Debtor, accelerate the payment or
performance of any or all of Debtors obligations hereunder or under the Note and
shall have, in addition to all rights and remedies under this Agreement, the
rights and remedies of a Secured Party under Article 9 of the California Uniform
Commercial Code, including, without limitation, the right to sell or otherwise
dispose of any or all of the Collateral.
Section 7. REMEDIES UPON DEFAULT. If any Event of Default
shall have occurred and be continuing:
(i) The Secured Party may exercise in respect of the Pledged
Collateral, in addition to other rights remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "Code") in effect in the State of
California at that time, and the Secured Party may also, without notice except
as specified below, sell the Pledged Collateral or any part thereof in one or
more parcels at public pr private sale, at any exchange , broker's board or at
any of the Secured Party's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Secured Party may deem
commercially reasonable. The Debtor agrees that at least ten (10) days' notice
shall constitute reasonable notification. The Secured Party shall not be
obligated to make any sale of Pledged Collateral regardless of notice of any
sale having been given. The Secured Party may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
(ii) Any cash held by the Secured Party as Pledged Collateral
and all cash proceeds received by the Secured Party in respect of any sale of,
collection from, or other realization upon all or any part of the Pledges
Collateral may, in the discretion of the Secured Party, be held by the Secured
Party as collateral for, and/or then or at any time thereafter applied in whole
or in part by the Secured Party against, all or any part of the obligations in
such order as the Secured Party shall elect. Any surplus of such cash or cash
proceeds held by the Secured Party and remaining after payment in full of all
obligations shall be paid over to the Debtor or to whomsoever may be lawfully
entitled to receive such surplus.
Section 8. NOTICE OF SALE. Secured Party shall give Debtor
written notice of the time and place of any public sale of the Collateral, or of
the date on which a private sale or other intended disposition thereof is to be
made, at least ten (10) days before the sale or disposition.
Section 9. POWER OF ATTORNEY. Debtor appoints Secured Party
its attorney-in-fact to transfer the Shares to Secured Party or to any other
person pursuant to Section 7 hereof in the event Debtor shall default hereunder.
Section 10. TERMINATION OF AGREEMENT. This Agreement shall
terminate upon Debtor paying Secured Party all principal and accrued interest on
the Note and al of its obligations to secured Party under this Agreement.
Section 11. WAIVER. No waiver of any obligation of Debtor
under the Note or this Agreement shall be effective unless it is in writing
signed by a Secured Party. A waiver by Secured Party of any right or remedy
under this Agreement on any occasion shall not be a bar to exercise of the same
right or remedy on any subsequent occasion or of any other right or remedy at
any time.
Section 12. NOTICE. Any notice required or permitted under
this Agreement shall be in writing and shall be deemed to have been given on the
date of delivery, if personally delivered to the party to whom notice is to be
given, or on the fifth business day after mailing, if mailed to the party to
whom notice is to be given, by certified mail, return receipt requested, and
addressed to the addressee at the address of the addressee set forth in the
recitals to this Agreement, or to the most recent address, specified by written
notice, given to the sender by the addressee under this Section 12.
Section 13. OTHER ACTS OF DEBTOR. Debtor shall execute and
deliver such documents and perform all acts as are necessary or convenient for
Secured Party to perfect its security interest in the Collateral or to sell the
Collateral in the event of a default by Debtor under this Agreement or the Note.
Section 14. ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
superseding all negotiations, prior discussions and preliminary agreements. All
modifications and amendments hereto must be in writing specifying the
modifications or amendment and executed by both parties hereto.
Section 15. SUCCESSORS. This Agreement shall be binding upon
and inure top the benefit of the heirs, executors, administrators, assigns and
successors of the respective parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective the date first shown above.
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Kinzan.com
SECURED PARTY
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DEBTOR