PROMISSORY NOTE
Englewood, Colorado
$300,000 July 26, 1999
FOR VALUE RECEIVED, the undersigned (referred to as "Makers") hereby
promise to pay to the order of CIBER, INC., a Delaware corporation (referred
to, together with any subsequent holder of this Note, as "Holder"), at 5251
DTC Parkway, Suite 1400, Englewood, Colorado 80111, or at such other place or
places as any Holder may designate from time to time, the principal amount of
the loan made by Holder to Makers hereunder. This Note shall not bear
interest except in the event of default as described below. All payments
hereunder shall be made in lawful money of the United States of America.
Principal shall be payable in accordance with the following terms:
1. Makers shall apply 75% of any bonuses (net of withholding taxes)
payable to Joseph A. Mancuso by CIBER, Inc. or its affiliates
("CIBER") after September 15, 1999 towards payment of the outstanding
balance due under the Note. As long as CIBER is the Holder of this
Note, CIBER shall have the right to offset the Note balance with75% of
any bonuses (net of withholding taxes) due to Joseph A. Mancuso. If
the amount applied towards payment of the Note pursuant to the
preceding provisions is less than $30,000 during the period from
September 16, 1999 until September 15, 2000 and, thereafter, during
the period from September 16 through September 15 of each successive
year, then Makers shall pay Holder the difference between $30,000 and
the amount applied to the Note (the "Deficiency") on or before
September 15.
2. In the event of a Termination for Cause (as defined in the Employment
Agreement as hereinafter defined), this Note shall be repayable in
full on the date the Property (as defined herein) is sold, or the
first anniversary of the termination date, whichever is earlier.
3. In the event of a Termination Other than for Cause (as defined in the
Employment Agreement), this Note shall be repayable in full on the
date the Property is sold or the second anniversary of the termination
date, whichever is earlier.
4. In the event of a Termination by Reason of Disability (as defined in
the Employment Agreement), this Note shall be repayable in full on the
date the Property is sold or the second anniversary of the termination
date, whichever is earlier.
5. In the event of Joseph A. Mancuso's death, this Note shall be
repayable in full upon the date the Property is sold or the second
anniversary of the date of death, whichever is earlier.
6. In the event of a Voluntary Termination (as defined in the Employment
Agreement), this Note shall be repayable in full on the date the
Property is sold or the first anniversary of the termination date,
whichever is earlier.
7. In the event of a Termination Upon a Change in Control (as defined in
the Employment Agreement), this Note shall be repayable in full on the
date the Property is sold or the second anniversary of the termination
date.
Reference is made to the Employment Agreement between CIBER and Joseph
A. Mancuso, dated July 1, 1999 (the "Employment Agreement"), for definitions
of the termination provisions described above. The entire principal balance
outstanding, together with all accrued and unpaid interest, and together with
any other amounts due under this Note or under the Deed of Trust (as
hereinafter defined) or other instruments securing or executed in connection
with this Note, are due and payable in full on the date which is five years
from the date hereof.
All payments received hereunder shall be applied as follows: (i) first,
to any late charges, costs, attorneys' fees and other charges under this
Note, or under the Deed of Trust or any other instrument securing or executed
in connection with this Note, other than principal and interest; (ii) second,
to accrued interest; and (iii) third, to principal.
The payment of indebtedness evidenced by this Note is initially
unsecured; however, the Makers intend to utilize the proceeds of the Note to
purchase and improve real property. Within sixty (60) days of acquisition of
the real property, Makers will execute a Deed of Trust (the "Deed of Trust")
encumbering the acquired property which will be described in the Deed of
Trust (the "Property"). Reference is made to the Deed of Trust for a
description of the property subject thereto, and the rights and obligations
thereunder.
At the option of Holder and subject to any applicable grace period, the
entire balance of principal, accrued interest and other sums owing under this
Note shall become at once due and payable in full, without notice or demand,
upon the occurrence of any one of the following specified events: (1) any
failure to make any payment when due hereunder; (2) any default in the
observance or performance of any other covenant, term or provision to be
performed under this Note; (3) the failure or inability of either Maker to
pay its debts generally as they become due; (4) the concealment, removal or
transfer of any assets and properties of either Maker in violation or evasion
of any bankruptcy, fraudulent conveyance or similar law; (5) the making of a
general assignment for the benefit of creditors; (6) the appointment of a
receiver for either Maker's assets and properties; (7) the filing of any
petition or the commencement of any proceeding by or against either Maker for
any relief under bankruptcy or insolvency laws or any laws relating to the
relief of debtors, readjustment of debts, reorganization, dissolution or
liquidation, which proceeding is not dismissed within thirty (30) days; or
(8) the falsity, when made, of any warranty or representation made by either
Maker to Holder. Reference is made to the Deed of Trust and any other
instrument securing or executed in connection with this Note for additional
rights of acceleration. The balance of principal, interest and other sums
due upon the maturity of this Note, by acceleration or otherwise, shall bear
interest from the time of maturity until paid at a rate of eighteen percent
(18%) per year (the "Default Rate"). In addition, if any Deficiency is not
paid when due, the unpaid Deficiency amount shall bear interest from the date
due until paid at the Default Rate.
Makers and all parties now or hereafter liable for payment of this Note,
primarily or secondarily, directly or indirectly, and whether as endorser,
guarantor, surety or otherwise, hereby jointly and severally:
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(a) waive presentment, demand, protest, notice of protest, notice of
dishonor and all other notices and demands whatever, other than any notice
which may be required pursuant to any provision of any document executed in
connection with this Note;
(b) consent to impairment or release of collateral, any and all
renewals, extensions or modifications of the terms hereof, including time for
payment, and acceptance of late or partial payments before, at or after
maturity;
(c) agree that Holder's acceptance of one or more partial payments
after acceleration of the maturity of this Note will not constitute a waiver
of such acceleration, regardless of any contrary notice or statement of
condition which may accompany any such partial payment;
(d) agree to pay all costs and expenses, including attorneys' fees,
which may be incurred by Holder in collecting this Note or in enforcing and
realizing upon any security for this Note.
In the event of default under this Note, or under the Deed of Trust or
any other instrument securing or executed in connection with this Note,
Holder may, at its option, undertake proceedings to foreclose the Deed of
Trust or exercise any other right or remedy available under this Note, under
the Deed of Trust, or under any other instrument given as security for this
Note, or otherwise available at law or in equity, in any sequence or
combination. Proceeding with any one right or remedy or any combination
thereof shall not be an election against or waiver of any other right or
remedy.
The provisions of this Note and of all agreements now or hereafter
existing between Makers and Holder are hereby expressly limited so that in no
contingency or event whatever shall the amount paid or agreed to be paid to
Holder for the use, forbearance or detention of the sums evidenced by this
Note exceed the maximum amount permissible under applicable law. If from any
circumstance whatever the performance or fulfillment of any provision of this
Note, or of any other agreement between Makers and Holder, should involve or
purport to require any payment in excess of the limit prescribed by law, then
the obligation to be performed or fulfilled is hereby reduced to the limit of
such validity, and if from any circumstance whatever Holder should ever
receive as interest an amount which would exceed the highest lawful rate,
then the amount which would be excessive interest shall be applied to the
reduction of principal (or, at Holder's option, be paid over to Makers) and
shall not be counted as interest.
Makers understand and agree that their obligations hereunder, including
the obligation to make payments in accordance with the terms hereof, are
unconditional and that all payments shall be made without any offset or
deduction whatsoever.
The indebtedness evidenced by this Note and the Deed of Trust may be
subordinated to one deed of trust on the Property for the benefit of a
primary institutional lender (or home development company).
If any provision of this Note or of any other instrument securing or
executed in connection with this Note is, for any reason and to any extent,
invalid and unenforceable, then neither the
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remainder of the document in which such provision is contained, nor the
application of the provision to other persons, entities or circumstances, nor
any other document referred to in this Note, shall be affected by such
invalidity or unenforceability, and there shall be deemed substituted for the
invalid or unenforceable provision the most similar provision which would be
valid and enforceable under applicable law.
Makers hereby covenant and agree that the state and federal courts of
the State of Colorado shall have personal jurisdiction and proper venue over
any dispute between Holder and Makers; provided that the foregoing consent to
jurisdiction and venue shall not deprive Holder of the right in its
discretion to commence or participate in any action, suit or proceeding in
any other court having jurisdiction and venue over Makers. In any action or
proceeding brought under this Note, each of the Makers and Holder waives
trial by jury. Makers further agree that this Note shall be deemed to have
been made under and shall be governed by the laws of the State of Colorado in
all respects.
ss/ Joseph A. Mancuso
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Joseph A. Mancuso
ss/ Susan Mancuso
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Susan Mancuso
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