LOAN AGREEMENT
This Loan Agreement (this "AGREEMENT") is made and entered into
effective as of April 24, 1998 (the "EFFECTIVE DATE") by and among, jointly
and severally, Macromedia, Inc., a Delaware corporation ("LENDER"), and
Stephen A. Elop and Nancy M. Elop, husband and wife (collectively referred to
as "BORROWER"). The term "LOAN DOCUMENTS" as used herein means, collectively,
this Agreement, the Note and Deed of Trust (each as defined below) executed
and delivered pursuant hereto, and any other documents executed or delivered
by Borrower pursuant to this Agreement or in connection with the Loan (as
defined below).
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
his primary residence, on and subject to the terms and conditions contained
in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, Lender and Borrower hereby agree as follows:
1. AMOUNT AND TERMS OF CREDIT.
1.1 COMMITMENT TO LEND. Subject to all the terms and conditions of
this Agreement, and in reliance on the representations, warranties and
covenants of Borrower set forth in this Agreement, the Lender agrees to make
a loan of funds on the date of the Note to Borrower on a non-revolving basis
(the "LOAN") in the principal amount of One Million Dollars
(U.S.$1,000,000.00), for the purchase of Borrower's primary residence.
1.2 NOTE. Borrower's indebtedness to Lender under the Loan will be
evidenced by a Promissory Note executed by Borrower in the form attached
hereto as EXHIBIT "A" (the "NOTE"). The Note will provide that annually
compounded interest on unpaid principal will accrue at a rate equal to five
and fifty-one hundredths percent (5.51%) per annum.
1.3 SECURITY. Borrower's indebtedness to Lender under the Loan will
be secured by a first deed of trust in the form attached hereto as EXHIBIT
"B" (the "DEED OF TRUST"). The Deed of Trust will be executed by Borrower in
favor of Lender, with Financial Title Company, a California corporation (the
"ESCROW AGENT"), acting as trustee, on certain real property located at 1506
Serafix Road, Alamo, California (the "PROPERTY").
1.4 MATURITY. The unpaid principal amount of the Loan and all
unpaid interest accrued thereon will be immediately due and payable to Lender
in full on the date (the "MATURITY DATE") which is the earlier to occur of:
(a) the third anniversary of the date of the Note or (b) the date on which
the entire unpaid principal amount and all accrued interest on the Note
becomes immediately due and payable in full under Section 6.1.
1.5 PREPAYMENT. Borrower may at any time and from time to time
prepay the Loan in whole or in part in amounts of at least Ten Thousand
Dollars (U.S. $10,000.00). Each prepayment will be applied as follows: (a)
first, to the payment of interest accrued on the Loan,
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 the Loan.
2. CLOSING DATE; DELIVERIES.
2.1 CLOSING DATE. The closing of the Loan (the "CLOSING") will be
held at Escrow Agent's offices on the Effective Date (the "CLOSING DATE"), or
at such other time and place as Borrower and Lender may mutually agree.
2.2 DELIVERY BY LENDER OF LOAN. At the Closing, Lender will
deliver to the Escrow Agent the Loan, which delivery Borrower agrees shall
constitute a full funding of the Loan to Borrower.
2.3 DELIVERY BY BORROWER OF LOAN DOCUMENTS. At the Closing,
Borrower will execute and deliver to Lender the Note and Deed of Trust.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Lender that:
3.1 NATURE OF PURCHASE. Borrower's purchase on the Effective Date
of the Property is an arm's length transaction.
3.2 TITLE TO PROPERTY. Other than the deed of trust (the "SELLER'S
DEED OF TRUST") currently recorded in Contra Costa County as security for the
indebtedness of Greenbriar Stonebridge Partners, L.P., a California limited
partnership (the "SELLER"), which Seller's Deed of Trust shall be canceled at
the Closing, the Property is free and clear of all mortgages, deeds of trust,
liens, encumbrances and security interests except for statutory liens for the
payment of current taxes that are not yet delinquent.
3.3 BALLOON PAYMENT. Borrower acknowledges that the unpaid
principal amount of the Loan and all unpaid interest accrued thereon will be
immediately due and payable to Lender in full as one balloon payment on the
third anniversary of the date of the Note evidencing this Loan, if not due
earlier under Section 6.1.
4. CONDITIONS PRECEDENT TO LOAN. The obligation of Lender to make the
Loan is subject to the satisfaction (or written waiver by Lender) of all 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 AND DEED OF TRUST. Lender will have received the Note and
Deed of Trust representing the Loan, duly executed by Borrower.
4.3 CANCELLATION OF SELLER'S DEED OF TRUST. Seller's Deed of Trust
shall have been fully reconveyed by the beneficiary thereunder and shall
properly be marked "canceled."
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5. OTHER COVENANTS OF BORROWER. Borrower hereby covenants and agrees with
Lender as follows:
5.1 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.
5.2 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.
6. DEFAULT OF BORROWER.
6.1 DEFAULT; ACCELERATION. Borrower will be deemed to be in default
under the Note and the outstanding unpaid principal sum of the 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 Lender (a) one
hundred eighty (180) days after the termination of the employment of Stephen
A. Elop, for any reason, with Lender; (b) upon Borrower's sale or other
voluntary conveyance of the Property; (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, that with respect to
an involuntary petition in bankruptcy, Borrower will not be deemed to be in
default of the Note unless such involuntary petition has not been dismissed
within sixty (60) days after the filing of such petition; or (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.
6.2 REMEDIES UPON DEFAULT. Upon any default of Borrower under the
Note, Lender will have, in addition to its rights under the Note and the Deed
of Trust, full recourse against any real, personal, tangible or intangible
assets of Borrower and may pursue any legal or equitable remedies that are
available to Lender. 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.
7. MISCELLANEOUS.
7.1 SURVIVAL. The representations and warranties of Borrower
contained in or made pursuant to this Agreement and all other Loan Documents
will survive the execution and delivery of the Loan Documents.
7.2 ENTIRE AGREEMENT. This Agreement, the Note, the Deed of Trust
and the exhibits and schedules attached thereto constitute the entire
agreement and understanding among the parties with respect to the subject
matter thereof and supersede any prior understandings or agreements of the
parties with respect to such subject matter.
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7.3 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties; PROVIDED HOWEVER, that the Borrower
may not assign or delegate any of its rights or obligations hereunder or
under any other Loan Document or any interest herein or therein without
Lender's prior written consent.
7.4 NO THIRD PARTY BENEFICIARIES; CONSTRUCTION. Nothing in this
Agreement, express or implied, is intended to confer upon any third party any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. This Agreement and
its exhibits are the result of negotiations between the parties and have been
reviewed by each party hereto; accordingly, this Agreement will be deemed to
be the product of the parties hereto, and no ambiguity will be construed in
favor of or against any party.
7.5 GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of California as applied to
agreements entered into solely between residents of, and to be performed
entirely in, such State, without reference to that body of law relating to
conflicts of law or choice of law.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
7.7 MODIFICATION; WAIVER. This Agreement may be modified or amended
only by a writing signed by both parties hereto. No waiver or consent with
respect to this Agreement will be binding 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 Lender will operate as a waiver or modification
of any party's rights under this Agreement or any other Loan Document. No
delay or failure on the part of either party in exercising any right or
remedy under this Agreement or any other Loan Document 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.
7.8 SEVERABILITY. The invalidity or unenforceability of any term or
provision of this Agreement will not affect the validity or enforceability of
any other term or provision hereof. In the event of any conflict between the
terms of this Agreement and the Note, the terms of the Note will control.
7.9 ATTORNEYS' FEES. If any party hereto commences or maintains any
action at law or in equity (including counterclaims or cross-complaints)
against the other party hereto by reason of the breach or claimed breach of
any term or provision of this Agreement or any other Loan Document, then the
prevailing party in said action will be entitled to recover its reasonable
attorney's fees and court costs incurred therein.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
BORROWER: MACROMEDIA, INC.
/s/ STEPHEN A. ELOP Name: /s/ Betsey Nelson
- ---------------------------------- ---------------------------------
Stephen A. Elop
/s/ Nancy M. Elop By: BETSEY NELSON
- ---------------------------------- -----------------------------------
Nancy M. Elop
Title: SENIOR VP AND CFO
MACROMEDIA, INC.
(415) 252-4102
--------------------------------
ATTACHMENTS:
Exhibit A - Promissory Note
Exhibit B - Deed of Trust
[SIGNATURE PAGE TO LOAN AGREEMENT]
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SECURED FULL RECOURSE PROMISSORY NOTE
$1,5000,000.00 JULY 16, 1998
1. OBLIGATION. For value received in the form of a loan of the
principal face amount of this Note, receipt of which is hereby acknowledged, Ian
S. Richmond and Danielle K. LiChong, husband and wife (the "UNDERSIGNED"),
jointly and severally hereby promise to pay or before the third anniversary of
the date of this Note, to the order of Macromedia, Inc., a Delaware corporation
(the "COMPANY"), at the Company's principal place of business at 600 Townsend
Street, Suite 310W, San Francisco, California 94103, or at such other place as
the holder hereof may direct, the principal sum of One Million Five Hundred
Thousand Dollars (U.S. $1,500,000.00), together with annually compounded
interest thereon at the rate of five and fifty-six hundredths (5.56%) per annum;
PROVIDED HOWEVER, that the rate at which interest will accrue on unpaid
principal under this Note will not exceed the highest rate permitted by
applicable law.
2. BALLOON PAYMENT. This Note provides for a balloon payment.
3. PREPAYMENTS; TENDER AND APPLICATION OF PAYMENTS. Prepayment of
principal and/or interest due under this Note may be made at any time, without
penalty, in amount of at least Ten Thousand Dollars (U.S. $10,000.00). Unless
otherwise agreed to in writing by the holder hereof, all payments and
prepayments will be made in lawful tender of the United States and will first be
applied to the payment of accrued interest and the remaining balance of such
payment, if any, will then be applied to the payment of principal.
4. DEFAULT; ACCELERATION. The undersigned will be deemed to be in
default under this Note and the outstanding unpaid principal sum 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 the
holder hereof: (a) on hundred eighty (180) days after the termination of the
employment of Ian S. Richmond, for any reason, with the Company; (b) upon the
undersigned's sale or other voluntary conveyance of the real property securing
this Note; (c) upon the filing by or against the undersigned 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, that with respect to an involuntary petition in bankruptcy,
the undersigned will not be deemed to be in default of this Note unless such
involuntary petition has not been dismissed within (60) days after the filing of
such petition; or (d) upon the execution by the undersigned of an assignment for
the benefit of creditors or the appointment of a receiver, custodian, trustee or
similar party to take possession of the undersigned's assets or property.
5. REMEDIES UPON DEFAULT. Upon any default of the undersigned
under this Note, the holder thereof will have, in addition to its rights
under this Note and the deed of trust referred to in Section 6 below, full
recourse against any real, personal, tangible in intangible assets of the
undersigned, and may pursue any legal or equitable remedies that are
available to it. The rights and remedies of the holder herein provided will
be cumulative and not exclusive of any other rights or remedies provided by
law or otherwise.
6. SECURITY. Payment of this Note is secured by a Loan Agreement of
even date herewith and a first deed of trust executed by the undersigned in
favor of Company, with Fidelity National Title Company, a California
corporation, acting as trustee, on certain real property located a 221 Warren
Road, San Mateo, California, a legal description of which is provided by the
first deed of trust and will have the right to enforce the covenants and
agreements of the undersigned contained in the first deed of trust.
7. WAIVER AND AMENDMENT. Any provision of the Note may be amended
or modified only by a writing signed by both the holder hereof and the
undersigned. 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 the holder hereof and the
undersigned 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.
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 entered into solely between residents of, and to be performed
entirely in, such State, without reference to that body of law relating to
conflicts of law or choice of law.
9. WAIVERS. The undersigned hereby waive presentment, notice of
nonpayment, notice of dishonor, protest, demand and diligence.
10. ATTORNEYS' FEES. The undersigned agree to pay reasonable
expenses and costs of the holder hereof in enforcing and collecting this Note,
including without limitation attorneys' fees and court costs, whether or not a
lawsuit is brought and whether or not any such suit is prosecuted to judgment.
11. SUCCESSORS AND ASSIGNS. The provisions of this Note will inure
to the benefit of and be binding on, each party's respective heirs, successors
and assigns. The undersigned acknowledge that they may not assign or delegate
any of their obligations under this Note without prior written consent of the
holder thereof.
12. SEVERABILITY. 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. In the event of any conflict between the terms
of this Note and the Loan Agreement, the terms of the Note will control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Ian S. Richmond and Danielle K. LiChong have
executed this Note as of the date indicated above.
/s/ Ian S. Richmond /s/ Danielle K. LiChong
- ---------------------------------- ---------------------------------
Ian S. Richmond Danielle K. LiChong
[SIGNATURE PAGE TO PROMISSORY NOTE]
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EXHIBIT A
Legal Description
All that real property situated in the Unincorporated Area, County of Contra
Costa, State of California, described as follows:
PARCEL ONE:
Lot 2, as shown on SUBDIVISION 7633, filed August 10, 1995 in Book 381 of
Maps at Page 36, Contra Costa County Records.
PARCEL TWO:
Easement granted in the Deed from Martin L. Sherman, Jr. Trustee to BJ VI,
Horse Ranch, et al, recorded July 6, 1995, Series No. 905-105986, as follows:
Easement for ingress and egress for vehicles of all kinds, pedestrians and
animals, storm water drainage and for installation, maintenance, repair and
replacement of road improvements and utility lines such as gas, electricity,
sewer, television, water and storm drain lines, described as follows:
A portion of Parcel A of MS 40-80, filed December 4, 1981 in Book 98 of
Parcel Maps, Page 42, Contra Costa County Records further described as
follows:
A Right of Way, 38 feet in width, the centerline of which is described as
follows:
Commencing at the Northeast corner of said Parcel A (Book 98, Parcel Maps,
Page 42); thence from said point of commencement along the East boundary of
said Parcel A, South 03DEG. 49'04" West, 259.36 feet to the point of
beginning; thence from said point of beginning Northwesterly along a 292.00
foot radius curve concave to the Northeast, the radius of which bears South
13DEG. 25'10" West, through a central angle of 8DEG. 54'32" an arc distance of
45.40 feet; thence tangent to said curve North 67DEG. 40'18" West, 212.90
feet to a 302.00 foot radius tangent curve concave to the Northeast; thence
along said curve through a central angle of 25DEG. 47'47" an arc distance of
135.97 feet to a point of reverse curvature; thence along a 148.00 foot
radius curve concave to the Southwest, through a central angle of 40DEG.
22'24" an arc distance of 104.29 feet; thence tangent to last said curve North
82DEG. 14'55" West, 203.22 feet to a 122.00 foot radius tangent curve concave
the North; thence along said tangent curve through a central angle of 6DEG.
13'58" an arc distance of 13.27 feet to a point of reverse curvature; thence
along a 268.00 foot radius curve concave to the South, through a central
angle of 10DEG. 32'29" an arc distance of 49.31 feet to a point of reverse
curvature; thence along a 302.00 foot radius curve concave to the North,
through a central angle of 6DEG. 07'20" an arc distance of 32.27 feet to a
point on the West boundary of said Parcel A (Book 98, Parcel Maps, Page 42)
and said Westerly boundary of said Parcel A (Book 98, Parcel Maps, Page 42).
Legal Description (Continued)
PARCEL THREE:
Easement for ingress and egress, for vehicles of all kinds, pedestrians and
animals, storm water drainage and for installation, maintenance, repair and
replacement of road improvements and utility lines such as gas, electricity,
sewer, television, water and storm drain lines, described as follows:
A portion of Section 6, Township 1 South, Range 1 West, Mount Diablo Base and
Meridian, described as follows:
Beginning at the Northeasterly corner of that certain parcel of land
described in the Deed to Anderson, et al, recorded November 1, 1963 in Book
4484 of Official Records at Page 749, also being the Southeasterly corner of
parcel "B" as designated on the Map of SUBDIVISION 6743, filed June 19, 1987
in Book 313 of Maps at Page 28; thence from said point of beginning Westerly
along the Northerly line of said Anderson Parcel (Book 4484, Official
Records, Page 749) the following 10 courses: North 69DEG. 15'29" West,
23.95 feet; North 63DEG. 34'29" West, 27.01 feet; North 89DEG. 17'29" West,
60.49 feet; South 83DEG. 11'31" West, 92.08 feet; South 81DEG. 12'31" West,
39.03 feet; North 75DEG. 37'29" West, 58.29 feet; South 73DEG. 03'31" West,
49.57 feet; North 84DEG. 21'29" West, 56.91 feet; South 81DEG. 36'31" West,
171.19 feet; South 83DEG. 12'05" West, 119.09 feet to 120.00 foot radius
tangent curve concave to the South; thence along said tangent curve through a
central angle of 16DEG 14'57" an arc distance of 34.03 feet; thence South
66DEG 57'08" West, 49.55 feet to an 81.00 foot radius tangent curve concave
to the North; thence along said tangent curve through a central angle of
34DEG. 18'48" an arc distance of 48.51 feet to a point of compound
curvature; thence along a 23.00 foot radius curve concave to the Northwest,
through a central angle of 72DEG. 12'28" an arc distance of 28.99 feet to a
point of cusp on the Easterly Right of Way line of Livorna Road of
SUBDIVISION 6743; thence leaving said point of cusp Southwesterly along a
290.00 foot radius curve, the radius of which bears South 57DEG. 16'46" East
through a central angle of 11DEG. 23'25" an arc distance of 57.65 feet to a
point of cusp; thence leaving said point of cusp and Livorna Road Right of
Way line along a 22.00 foot radius curve concave to the South, the radius of
which bears North 45DEG. 53'21" West, through a central angle of 39DEG
44'19", an arc distance of 15.26 feet to a point of reverse curvature;
thence leaving said point of reverse curvature along a 120.00 foot radius
curve concave to the North, through a central angle of 55DEG. 40'00" an arc
distance of 116.59 feet; thence North 61DEG. 41'09" East, 29.37 feet to a
80.00 foot radius tangent curve concave to the South; thence along said curve
through a central angle of 47DEG 36'09" an arc distance of 66.47 feet; thence
along the following 12 courses, South 70DEG. 42'12" East, 11.53 feet; thence
North 79DEG. 25'15" East, 100.69 feet; thence North 75DEG. 03'23" East, 25.00
feet; North 83DEG. 24'36" East, 47.32 feet, South 89DEG. 35'29" East, 100.50
feet; South 83DEG. 45'29" East, 32.00 feet; North 87DEG. 24'31" East, 118.50
feet; South 81DEG. 50'29" East, 59.00 feet; South 66DEG. 20'29" East, 120.00
feet; South 15DEG. 10'29" East, 28.50 feet; South 47DEG. 40'29" East, 35.00
feet; South 89DEG. 57'29" East, 5.43 feet to a point on the Westerly line of
said Anderson Parcel (Book 4484, Official Records, Page 749); thence along
last said Easterly line North 00DEG. 02'31" East, 146.37 feet to the point of
beginning.
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Legal Description (Continued)
PARCEL FOUR:
A non-exclusive Easement for ingress and egress for vehicles of all kinds,
pedestrians and animals, storm water drainage and for installation,
maintenance, repair and replacement of road improvements and utility lines
such as gas, electricity, sewer, television, water and storm drain lines to
be appurtenant to Parcel One, over, under and across that portion shown as
"Serafix Road Private Street".
A.P.N. 193-880-002-4
and commonly known as 1506 Serafix Road, Alamo, California.
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