Limited Recourse Promissory Note - Carreker Corp. and Robert E. Hall
LIMITED RECOURSE PROMISSORY NOTE
Date: March 31, 2001 Amount: $500,000.00 Maturity Date: March 31, 2004
================================================================================================
Lender: Borrower:
Carreker Corporation Robert E. Hall
4055 Valley View Lane, # 1000 6615 Clearhaven
Dallas, Dallas County, Texas 75244-5069 Dallas, Dallas County, Texas 75248-4019
Attention: Terry L. Gage, Chief Financial Officer
================================================================================================
FOR VALUE RECEIVED, the undersigned Borrower unconditionally promises to
pay to the order of Carreker Corporation, its successors and assigns, without
setoff, at its offices indicated at the beginning of this Promissory Note
(this "Note"), or at such other place as may be designated by Carreker
Corporation, the principal amount of FIVE HUNDRED THOUSAND AND NO/100 Dollars
($500,000.00), together with interest computed daily on the outstanding
principal balance hereunder, at an annual interest rate, and in accordance
with the payment schedule, indicated below.
1. INTEREST RATE. The interest rate (the "Rate") shall be five (5%)
percent per annum.
Notwithstanding any provision of this Note or any other agreement or
commitment between Borrower and Carreker Corporation, whether written or oral,
express or implied, Carreker Corporation shall never be entitled to charge,
receive, or collect, nor shall amounts received hereunder be credited, so that
Carreker Corporation shall be paid, as interest, a sum greater than interest
at the Maximum Rate. It is the intention of the parties that this Note, and
all instruments securing the payment of this Note or executed or delivered in
connection therewith, shall comply with applicable law. If Carreker
Corporation ever contracts for, charges, receives or collects anything of
value which is deemed to be interest under applicable law, and if the
occurrence of any circumstance or contingency, whether acceleration of
maturity of this Note, prepayment of this Note, delay in advancing proceeds of
this Note, or any other event, should cause such interest to exceed the
maximum lawful amount, any amount which exceeds interest at the Maximum Rate
shall be applied to the reduction of the unpaid principal balance of this Note
or any other indebtedness owed to Carreker Corporation by Borrower, and if
this Note and such other indebtedness are paid in full, any remaining excess
shall be paid to Borrower. In determining whether the interest exceeds
interest at the Maximum Rate, the total amount of interest shall be spread,
prorated and amortized throughout the entire term of this Note until its
payment in full. The term "Maximum Rate" as used in this Note means the
maximum nonusurious rate of interest per annum permitted by whichever of
applicable United States federal law or Texas law permits the higher interest
rate, including to the extent permitted by applicable law, any amendments
thereof hereafter or any new law hereafter coming into effect to the extent a
higher Maximum Rate is permitted thereby.
To the extent, if any, that TEX. REV. CIV. STAT. ANN. art. 5069-1D.001 -
1D.016 (TEX. FIN. CODE SECTIONS 303.001 - 303.308), as amended (the "Act"), is
relevant to Carreker Corporation for purposes of determining the Maximum Rate,
the parties elect to determine the Maximum Rate under the Act pursuant to the
"weekly ceiling" from time to time in effect, as referred to and defined in
Article 5069-1D.003 (Section 303.201) of the Act; subject, however, to any
right Carreker Corporation subsequently may have under applicable law to
change the method of determining the Maximum Rate.
2. ACCRUAL METHOD. Interest at the Rate set forth above will be calculated
by the 365/360 day method (i.e., a daily amount of interest is computed for a
hypothetical year of 360 days; that amount is multiplied by the actual number
of days for which any principal is outstanding hereunder).
3. PAYMENT SCHEDULE. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as
Carreker Corporation shall determine at its option.
Borrower shall pay the principal of this Note in full together with all
accrued but unpaid interest thereon on March 30, 2004.
4. WAIVERS, CONSENTS AND COVENANTS. Borrower, any indorser or guarantor
hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any
Obligor in connection with the delivery, acceptance, performance, default or
enforcement of this Note, any indorsement or guaranty of this Note, or any
other documents executed in connection with this Note, including without
<PAGE>
limitation that certain Pledge Agreement ("Pledge Agreement") of even date
herewith between Borrower and Carreker Corporation, or any other note or other
loan documents now or hereafter executed in connection with any obligation of
Borrower to Carreker Corporation (collectively, the "Loan Documents"); (b)
consent to all delays, extensions, renewals or other modifications of this
Note or the Loan Documents, or waivers of any term hereof or of the Loan
Documents, or release or discharge by Carreker Corporation of any of Obligors,
or release, substitution or exchange of any security for the payment hereof,
or the failure to act on the part of Carreker Corporation, or any indulgence
shown by Carreker Corporation (without notice to or further assent from any of
Obligors), and agree that no such action, failure to act or failure to
exercise any right or remedy by Carreker Corporation shall in any way affect
or impair the obligations of any Obligors or be construed as a waiver by
Carreker Corporation of, or otherwise affect, any of Carreker Corporation's
rights under this Note, under any indorsement or guaranty of this Note or
under any of the Loan Documents; and (c) agree to pay, on demand, all costs
and expenses of collection or defense of this Note or of any indorsement or
guaranty hereof and/or the enforcement or defense of Carreker Corporation's
rights with respect to, or the administration, supervision, preservation, or
protection of, or realization upon, any property securing payment hereof,
including, without limitation, reasonable attorney's fees, including fees
related to any suit, mediation or arbitration proceeding, out of court payment
agreement, trial, appeal, bankruptcy proceedings or other proceeding, in such
amount as may be determined reasonable by any arbitrator or court, whichever
is applicable.
5. PREPAYMENTS. Borrower shall have the right to prepay, at any time and
from time to time upon three (3) days' prior written notice to Carreker
Corporation, without fee, premium or penalty, all or any portion of the
outstanding principal balance hereof, provided, however, that such prepayment
shall also include any and all accrued but unpaid interest on the amount of
principal being so prepaid through and including the date of prepayment, plus
any other sums which have become due to Carreker Corporation under the other
Loan Documents on or before the date of prepayment, but which have not been
fully paid. All prepayments of principal shall be applied in such order as
Carreker Corporation shall determine in its sole discretion.
6. EVENTS OF DEFAULT. It shall be an event of default under this Note and
each of the other documents executed in connection herewith if any of the
following shall occur: (a) Borrower shall fail to make any payment of
principal, interest or other amounts under this Note, or on or under any other
Loan Document, when due and such default shall continue for a period of five
(5) Business Days; (b) a default, breach or failure to timely and properly
pay, observe or perform, shall occur on the part of an Obligor under any other
Loan Document and such default, breach, or other failure, if the same can be
cured, shall continue for a period of five (5) Business Days after notice
thereof by Carreker Corporation to such Obligor (provided, that such five (5)
Business Day notice and cure period shall NOT apply for the benefit of
Borrower to any provision of the Loan Documents that expressly otherwise
provides a period for notice, cure, or both); (c) any voluntary bankruptcy
proceeding or any similar action is commenced with respect to an Obligor or
any of such Obligor's assets or with respect to Exchange Applications, Inc. or
any successor thereto; (d) any involuntary bankruptcy proceeding or similar
action is commenced with respect to an Obligor or any of such Obligor's assets
and such proceeding is not dismissed within sixty (60) days after
commencement; (e) any representation or warranty made by an Obligor in
connection with this Note shall be false or incorrect in any material respect
when made or deemed made and, if the same can be made true or corrected, such
falsity or incorrectness shall continue for a period of five (5) Business Days
after notice thereof by Carreker Corporation to such Obligor; (f) the passage
of sixty (60) days following the appointment of an executor or personal
representative following the death or legal incapacity of Borrower, or the
death of any other Obligor (if an individual); (g) the entry of a judgment
against any Obligor that Carreker Corporation deems to be of a material
nature, in Carreker Corporation's sole but reasonable discretion; (h) the
seizure or forfeiture of, or the issuance of any writ of possession,
garnishment or attachment, or any turnover order for, any material property of
an Obligor; or (i) the failure of Borrower to comply with any material law or
material regulation to which he is subject if such failure has a material
adverse effect upon the value of the collateral ("Collateral") covered by the
Pledge Agreement.
7. REMEDIES UPON DEFAULT. Whenever there is a default or event of default
under this Note, (a) the entire balance outstanding hereunder and all other
obligations of any Obligor to Carreker Corporation (however acquired or
evidenced) shall, at the option of Carreker Corporation, become immediately
due and payable and any obligation of Carreker Corporation to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the rate of interest on the unpaid principal
hereof shall be increased at Carreker Corporation's discretion up to the
lesser of (i) the maximum rate allowed by law or (ii) the rate 4% per annum in
excess of the rate that otherwise would apply (the "Default Rate"). The
provisions herein for a Default Rate shall not be deemed to extend the time
for any payment hereunder or to constitute a "grace period" giving Obligors a
right to cure any default. At Carreker Corporation's option, any accrued and
unpaid interest, fees or charges may, for purposes of computing and accruing
interest on a daily basis after the due date of this Note or any installment
thereof, be deemed to be a part of the principal balance, and interest shall
accrue on a daily compounded basis after such date at the Default Rate
provided in this Note until the entire outstanding balance of principal and
interest is paid in full. Additionally, Carreker Corporation shall have all
rights and remedies available under each of the Loan Documents, as well as all
rights and remedies available at law or in equity.
8. NON-WAIVER. The failure at any time of Carreker Corporation to exercise
any of its options or any other rights hereunder shall not constitute a waiver
thereof, nor shall it be a bar to the exercise of any of its options or rights
at a later date. All rights and remedies of Carreker Corporation shall be
cumulative and may be pursued singly, successively or together, at the option
of Carreker Corporation. The acceptance by Carreker Corporation of any
partial payment shall not constitute a waiver of any default or event of
default or of any of Carreker Corporation's rights under this Note. No waiver
of any of its rights hereunder, and no modification or amendment of this Note,
shall be deemed to be made by Carreker Corporation unless the same shall be in
writing, duly signed on behalf of Carreker Corporation; each such waiver shall
apply only with respect to the specific instance involved, and shall in no way
impair the rights of Carreker Corporation or the obligations of Obligors to
Carreker Corporation in any other respect at any other time.
-2-
<PAGE>
9. APPLICABLE LAW, VENUE AND JURISDICTION. Borrower agrees that this Note
shall be deemed to have been made in the State of Texas at Carreker
Corporation's address indicated at the beginning of this Note and shall be
governed by, and construed in accordance with, the laws of the State of Texas
and is performable in the City and County of Texas indicated at the beginning
of this Note. In any litigation in connection with or to enforce this Note or
any indorsement or guaranty of this Note or any Loan Documents, Obligors, and
each of them, irrevocably consent to and confer personal jurisdiction on the
courts of the State of Texas or the United States courts located within the
State of Texas. Nothing contained herein shall, however, prevent Carreker
Corporation from bringing any action or exercising any rights within any other
state or jurisdiction or from obtaining personal jurisdiction by any other
means available under applicable law.
10. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision
of this Note shall not affect the enforceability or validity of any other
provision herein and the invalidity or unenforceability of any provision of
this Note or of the Loan Documents to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances.
11. BINDING EFFECT. This Note shall be binding upon and inure to the benefit
of Borrower, Obligors and Carreker Corporation and their respective
successors, assigns, heirs and personal representatives, provided, however,
that no obligations of Borrower or Obligors hereunder can be assigned without
prior written consent of Carreker Corporation.
12. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is
in any way incompatible with any other document related specifically to the
loan evidenced by this Note, this Note shall control over any other such
document, and if this Note does not address an issue, then each other such
document shall control to the extent that it deals most specifically with an
issue.
13. LIMITED RECOURSE. Notwithstanding anything contained in this Note or the
other Loan Documents to the contrary, but subject to the qualifications
provided in this Section 13, Carreker Corporation agrees that (i) Borrower
shall be liable upon the indebtedness evidenced by this Note to the full
extent (but only to the extent) of Borrower's interest in that certain stock
of Exchange Applications, Inc. ("Exchange Applications Stock") and proceeds
therefrom which Borrower has pledged to Carreker Corporation under the Pledge
Agreement, (ii) if a default occurs under this Note or under the other Loan
Documents, any judicial proceedings brought by Carreker Corporation against
Borrower shall be limited to the preservation, enforcement and foreclosure, or
any thereof, of the liens, security titles, estates, assignments, rights,
benefits and security interests now or at any time hereafter securing the
payment of this Note and the satisfaction of the other obligations of Borrower
under this Note or under the other Loan Documents, and confirmation of any
sale under power of sale, and no attachment, execution or other writ of
process shall be sought, issued or levied upon any assets, properties or funds
of Borrower other than the Exchange Applications Stock and proceeds therefrom,
except with respect to the liability described below in this Section 13, and
(iii) in the event of a foreclosure of such liens, security titles, estates,
assignments, rights, benefits or security interests securing the payment of
this Note or the other obligations of Borrower under the Loan Documents,
whether by judicial proceedings or exercise of power of sale, no judgment for
any deficiency upon the indebtedness evidenced by this Note shall be sought or
obtained by Carreker Corporation against Borrower, except with respect to the
liability described below in this Section 13.
Notwithstanding the foregoing provisions of this Section 13, Borrower shall be
fully and personally liable and subject to legal action for the following:
(a) for proceeds from the sale of all or any portion of the Exchange
Applications Stock not paid to Carreker Corporation in accordance with the
terms of this Note or the other Loan Documents;
(b) for Borrower's failure to pay any valid taxes or assessments on any
portion of the Exchange Applications Stock or proceed therefrom;
(c) for any fraud or material misrepresentation by Borrower in connection with
this Note or any other Loan Document;
(d) for Borrower's breach of the representations made by Borrower in Section
3.H. of that certain Loan Agreement of even date herewith between Borrower and
Carreker Corporation; and
(e) for Borrower's failure to comply with any of the covenants or agreements
set forth in this Note or the Pledge Agreement.
Notwithstanding anything to the contrary contained in this Note or any of the
other Loan Documents (x) nothing herein shall be deemed to be a waiver of any
right which Carreker Corporation may have under Section 506(a), 506(b),
1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for
the full amount of the indebtedness evidenced by this Note and the other
obligations of Borrower under the Loan Documents or to require that all
collateral shall continue to secure all indebtedness evidenced by this Note
and the other obligations owing to Carreker Corporation in accordance with
this Note and the other Loan Documents, and (y) Borrower shall be fully and
personally liable and subject to legal action for the indebtedness evidenced
by this Note and the other obligations of Borrower under the Loan Documents
and the foregoing limitation of liability under this Section 13 shall be null
and void and of no force or effect in the event that (i) Borrower should raise
any defense, counterclaim and/or allegation in any foreclosure action by
Carreker Corporation relative to the Exchange Applications Stock or any part
thereof in which Borrower or such representative does not prevail, or (ii) an
action or proceeding is commenced by or against Borrower under any Debtor
Relief Laws, including, without limitation, the Bankruptcy Reform Act of 1978,
as amended, 11 U.S.C. Sections 101 et seq., and the regulations adopted and
promulgated pursuant thereto. Furthermore, all amounts for which Borrower is
fully and personally liable and subject to legal action hereunder shall
include all liabilities, obligations, losses, damages, costs and expenses
(including, without limitation, attorneys' fees), causes of action, suits,
claims, demands and judgments of any nature or description whatsoever which
may at anytime be imposed upon, incurred by or awarded against Carreker
Corporation in connection with this Section 13. Nothing contained in this
section shall (1) be deemed to be a release or impairment of the
-3-
<PAGE>
indebtedness evidenced by this Note or the other obligations of Borrower under
this Note or the other Loan Documents or the lien of the Loan Documents upon
the Exchange Applications Stock, or (2) preclude Carreker Corporation from
foreclosing under the Loan Documents in case of any default or from enforcing
any of the other rights or remedies of Carreker Corporation except as stated
in this section, or (3) limit or impair in any way whatsoever any indemnity or
guaranty agreement executed and delivered by Borrower or otherwise in
connection with the indebtedness evidenced by this Note or release, relieve,
reduce, waive or impair in any way whatsoever, any obligation of any party to
any such indemnity or guaranty agreement.
14. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF
PRACTICE AND PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL
RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION. ANY PARTY TO THIS INSTRUMENT, AGREEMENT OR
DOCUMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S., WHICH WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL
60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT
OR DOCUMENT; OR LIMIT THE RIGHT OF CARREKER CORPORATION HERETO (A) TO EXERCISE
SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, (B) TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A
COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER.
CARREKER CORPORATION MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP
REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF
ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS
OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
BORROWER REPRESENTS TO CARREKER CORPORATION THAT THE PROCEEDS OF THIS LOAN ARE
TO BE USED PRIMARILY FOR BUSINESS OR COMMERCIAL PURPOSES. BORROWER
ACKNOWLEDGES HAVING READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY, ALL TERMS
AND CONDITIONS OF THIS NOTE.
NOTICE OF FINAL AGREEMENT (PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE):
THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
BORROWER:
/s/ Robert E. Hall
--------------------------
ROBERT E. HALL
-4-