EXHIBIT 10.612
AMENDED AND RESTATED
PROMISSORY NOTE
(AS AMENDED AND RESTATED AS OF AUGUST 7, 1998)
$1,000,000 JUNE, 21, 1998
EMERYVILLE, CALIFORNIA
The PROMISSORY NOTE dated June 21, 1998 in the principal sum of ONE
MILLION DOLLARS AND NO/100THS CENTS ($1,000,000), and executed by SEAN P.
LANCE, as Borrower, in favor of CHIRON CORPORATION, a Delaware corporation or
order, as Lender, is HEREBY AMENDED AND RESTATED IN ITS ENTIRETY TO READ, AS
FOLLOWS:
FOR VALUE RECEIVED, the undersigned, SEAN P. LANCE (hereinafter
called the "Borrower"), hereby promises to pay CHIRON CORPORATION, a Delaware
corporation or order ("Lender"), the principal sum of ONE MILLION DOLLARS AND
NO/100THS CENTS ($1,000,000), in lawful money of the United States of
America, with interest equal to zero percent (0%) per annum to purchase that
certain improved real property located at 2580 Greenwich Street, San
Francisco, San Francisco County, California (the "Property") constituting
Borrower's principal residence in California (the "Loan").
1. All payments of principal and any other amounts payable on or in
respect of this Note or the indebtedness evidenced hereby shall be made to
the account of Lender at its principal office located at 4560 Horton Street,
Emeryville, California 94608, or to such other place as Lender may from time
to time designate by written notice to Borrower. All payments shall be in
lawful money of the United States of America.
2. The principal amount of One Million Dollars ($1,000,000) hereunder
shall be used by Borrower to purchase the Property and shall become due and
payable on the earlier to occur of the following: (i) June 22, 2008, which is
ten years from the date hereof (the "Maturity Date"), or (ii) such earlier
date as described in Paragraph 4 below (the "Repayment Date").
3. Borrower shall make annual payments of principal in the amount of
$47,293.20 to reduce the outstanding principal balance hereunder over a
ten-year term, commencing on June 22, 1999, and on or before each successive
June 22 thereafter, through and including the Maturity Date, with the
outstanding principal balance due in full on the Repayment Date, in
accordance with the schedule of payments listed on SCHEDULE 1 attached hereto
and incorporated herein by this reference.
4. Notwithstanding the foregoing provisions, in the event that Chiron
Corporation or an affiliate thereof terminates Borrower's services, or Borrower
voluntarily leaves Chiron Corporation or an affiliate thereof, prior to the
Maturity Date of the Loan, the outstanding principal balance of the Loan owing
through the Repayment Date shall become immediately due and payable and be
repaid by Borrower within a reasonable period not to exceed 90 days from the
date of Borrower's leaving the full-time employ of Chiron Corporation or an
affiliate thereof.
5. Borrower and Lender agree that the indebtedness evidenced by this Note
shall be Borrower's sole and personal liability, and shall be secured by a
Deed of Trust executed by Borrower in favor of Lender and recorded against
the Property. Borrower agrees to use his best efforts to enable Lender to
record its Deed of Trust in favor of Lender for the total amount of this Loan
simultaneously with Borrower's close of escrow on the purchase of the
Property. Borrower reasonably expects to, and will, itemize deductions on
his income tax return reflecting the annual repayments of principal hereunder
for the duration of the Loan.
6. Nothing herein shall be deemed to create any obligation of continued
employment on the part of the Borrower or Chiron Corporation.
7. Borrower and Lender agree that upon recordation of the Lender's Deed
of Trust covering the Property in substantially the form attached hereto as
EXHIBIT A, the obligations of Borrower under this Note shall become subject
to the terms of that Deed of Trust which contains the following provision:
"In the event the herein described property or any part thereof, or any
interest therein is sold, agreed to be sold, conveyed or alienated by the
Trustor (Borrower), or by the operation of law or otherwise, all obligations
secured by this instrument, irrespective of the maturity dates expressed
therein, at the option of the holder hereof and without demand or notice
shall immediately become due and payable."
8. In the event that Borrower intends to, sell, agree to sell, transfer
or convey his interest in the Property or any part thereof or any interest
therein, Lender and Borrower agree that they shall execute in writing an
agreement as to a substitution of security for the indebtedness covered
hereunder, or Lender will repay this Note in full.
9. Should the indebtedness evidenced by this Note be collected by action
at law, or in bankruptcy, receivership or other court proceeding, or should
this Note be placed in the hands of attorneys for collection after default,
Borrower agrees to pay, upon demand of Lender, in addition to principal and
interest, and other sums, if any, due and payable hereunder, court costs and
reasonable attorneys' fees and other reasonable collection charges, whether
suit be brought or not, unless prohibited by law. Borrower hereby waives
diligence, presentment, protest and demand of every kind and (to the full
extent permitted by law) the right to plead any statute of limitations as a
defense to any demand or action hereunder or in connection with any security
herefor, and hereby agrees that no failure on the part of Lender to exercise
any power, right or privilege hereunder, or to insist upon prompt compliance
with the terms hereof, shall constitute a waiver thereof.
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10. In the event of any failure on the part of Borrower to make any
payment when due, Borrower hereby agrees to pay, upon demand of Lender, in
addition to principal and any other sums, if any, due and payable hereunder,
court costs and reasonable attorneys' fees and other reasonable collection
charges that Lender shall be entitled to recover from Borrower, whether suit
be brought or not.
11. Any notice to either party hereto may be given by delivering the same
in writing to such party in person, or by sending the same by registered or
certified mail, postage prepaid, to the following mailing addresses or to any
other mailing addresses within the State of California of which the parties
notify each other:
Borrower: Sean P. Lance
2580 Greenwich Street
San Francisco, California 94123
Lender Chiron Corporation
4560 Horton Street
Emeryville, California 94608
Attn: Office of the General Counsel
12. In the event that any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Note, but this Note shall be construed as if such
invalid, illegal or unenforceable provisions had never been contained herein
or therein.
13. Any failure of the Lender to exercise or enforce any right hereunder
shall not constitute a waiver of such right. All rights of the Lender
hereunder shall be cumulative and not alternative and shall be in addition to
any other rights and remedies granted to the Lender pursuant to any other
agreement, by statute, or by law.
14. Borrower shall not assign, convey, transfer, delegate, subordinate or
otherwise, mortgage, hypothecate or encumber, any of his interest, rights or
obligations hereunder to any other party.
15. This Note may not be changed orally, but only by an agreement in
writing signed by the parties against whom enforcement of any waiver, change,
modification or discharge is sought.
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16. This Note shall be construed and enforced in accordance with, and
governed by, the laws of the State of California and shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors and
assigns.
WITNESS the due execution hereof with the intent of being legally bound,
effective as of the date first set forth above.
BORROWER:
/s/ SEAN P. LANCE 8 AUGUST 1998
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SEAN P. LANCE Date
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SCHEDULE 1
Revised Repayment Schedule
- ----------------------------------------------------------------------------
BEGINNING BEGINNING PAYMENT DUE ENDING
DATE BALANCE AMOUNT DATE BALANCE
- ----------------------------------------------------------------------------
06/21/98 1,000,000.00 (47,293.20) 06/22/99 952,706.80
06/22/99 952,706.80 (47,293.20) 06/22/00 905,413.60
06/22/00 905,413.60 (47,293.20) 06/22/01 858,120.40
06/22/01 858,120.40 (47,293.20) 06/22/02 810,827.20
06/22/02 810,827.20 (47,293.20) 06/22/03 763,534.00
06/22/03 763,534.00 (47,293.20) 06/22/04 716,240.80
06/22/04 716,240.80 (47,293.20) 06/22/05 668,947.60
06/22/05 668,947.60 (47,293.20) 06/22/06 621,654.40
06/22/06 621,654.40 (47,293.20) 06/22/07 574,361.20
06/22/07 574,361.20 (47,293.20) 06/22/08 527,068.00
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