FIRST AMENDED
LOAN MODIFICATION AGREEMENT
This FIRST AMENDED LOAN MODIFICATION AGREEMENT ("Agreement") is made and
entered into as of this 20th day of June, 1997, by and between Value Partners,
Ltd., a Texas Limited Partnership, ("Lender"), Telenational Communications,
Inc., a Delaware Corporation ("TCI"), Telenational Communications Limited
Partnership, a Nebraska Limited Partnership, (Telenational") and WorldPort
Communications, Inc. ("WorldPort") (WorldPort and TCI shall be referred to
collectively herein as "Borrowers").
R E C I T A L S
A. On or about November 8, 1995, Telenational executed as Maker that certain
Unsecured Senior Promissory Note (the "Original Note") in the principal sum of
Eight Hundred Fifty Thousand and no/l00ths Dollars ($850,000.00) to Aden
Enterprises, Inc., d/b/a ECDI, Inc., as Payee ("Aden"), a copy of which is
attached hereto as Exhibit "A" and incorporated herein by reference. The
Original Note was pledged and assigned by Aden to the Lender and acquired at
public sale by the Lender pursuant to that certain Amended and Restated Pledge
Agreement executed by Aden in favor of the Lender and dated as of December 8,
1995. Telenational defaulted on the Original Note.
B. As a condition to and in consideration of the Lender forbearing from the
exercise of its right of immediate collection of the Original Note, and of the
Lender restructuring, reinstating, renewing, and extending the Original Note to
Telenational in the amount of $850,000.00, Telenational agreed (i) to enter into
that certain Loan Modification Agreement dated as of March 20, 1997 (the
"Telenational Loan Agreement"), a copy of which is attached hereto as Exhibit
"B" and by this reference incorporated herein, (ii) to enter into and execute
that certain Amended and Restated Promissory Note dated as of March 20, 1997
(the "Telenational Note"), a copy of which is attached hereto as Exhibit "C" and
by this reference incorporated herein, and (iii) to enter into that certain
Pledge and Security Agreement dated as of March 20, 1997 (the "Telenational
Pledge Agreement"), a copy of which is attached hereto as Exhibit "D" and by
this reference incorporated herein, pursuant to which certain collateral as
described therein was and continues to be pledged by Telenational to Lender. The
Telenational Loan Agreement, Telenational Note, the Telenational Pledge
Agreement and all related documents, including Financing Statements are referred
to herein as the "Telenational Documents".
C. On or about April 23, 1997, WorldPort , entered into an agreement with
Telenational pursuant to which TCI, as assignee of WorldPort, is to acquire
certain of the assets (the "Acquired Assets") and the business enterprise of
Telenational, which Acquired Assets are pledged by Telenational to Lender
pursuant to the Telenational Documents. As a condition to that transfer,
Telenational is required to obtain the consent of Lender to such transfer, given
that absent such consent, Telenational will be in default of the Telenational
Documents. Lender will consent so long as TCI and WorldPort enter into this
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 1
Agreement and among other matters, execute, as joint and several obligors, those
documents defined herein as the Loan Documents, affirming, reinstating,
restating, replacing, renewing and amending the Telenational Loan Documents and
continuing the security interest of Lender in the Collateral, as that term is
defined in the Pledge Agreement. As partial consideration for the agreements
contained herein, Lender agrees to release its security interest in the Pledged
Securities, as that term is defined in the Telenational Pledge Agreement,
pursuant to the terms of this Agreement.
D. As of June 19, 1997, the principal amount of the Telenational Note is
$762,278.06 and accrued, unpaid interest is $15,880.79, as calculated pursuant
to the terms of the Telenational Note.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, Lender, Telenational and Borrowers agree:
1. Obligations of Borrowers. In consideration of the Lender restructuring,
restating, reinstating, renewing and extending the Telenational Note and the
Telenational Pledge Agreement and consenting to the acquisition by TCI of the
Acquired Assets, subject to the lien granted Lender in the Telenational
Documents, as modified herein, Borrowers shall execute as joint and several
obligors documents amending, restating, reinstating, renewing and extending the
Telenational Documents, as modified, and agree that the Telenational Loan
Agreement, the Telenational Note and the Telenational Pledge Agreement shall be
restructured as set forth in this Agreement, in that certain Second Amended and
Restated Senior Secured Promissory Note (the "Note") executed by Borrowers in
favor of Lender, a copy of which is attached hereto as Exhibit "E" and by this
reference incorporated herein, in that certain First Amended Pledge and Security
Agreement executed by Borrowers and the Lender (the "Pledge Agreement"), a copy
of which is attached hereto as Exhibit "F" and by this reference incorporated
herein and in related documents including those necessary to continue Lender's
security interest in the Collateral in a form acceptable to Lender. This
Agreement, the Note, the Pledge Agreement and all documents executed in relation
to this transaction, and all other documents as set forth in and including that
certain Notice and Certification of No Oral Agreements, a copy of which is
attached hereto as Exhibit G and incorporated herein by reference, shall be
referred to herein as the "Loan Documents". All obligations of Borrowers to
Lender arising pursuant to the Loan Documents shall be referred to herein as the
"Indebtedness".
2. References in Loan Documents. All references in the Loan Documents to
the Note, the Pledge Agreement, and the Financing Statements shall henceforth
include references to the Note, the Pledge Agreement, and the Financing
Statements as such documents are modified, extended, reinstated, replaced,
amended and renewed hereby, and as such documents may, from time to time, be
further amended, modified, extended, reinstated, renewed, and/or increased.
3. Execution of Documents. Subject to the terms and conditions set forth
herein, Borrowers will execute in favor of Lender the Note, the Pledge
Agreement, documents necessary to amend the Financing Statements and the Notice
of No Oral Agreements, together with any other documents required by this
transaction.
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 2
4. Confirmation of Liens. Borrowers as joint and several obligors hereby
grant, confirm, renew, affirm and restate to Lender the security interests,
liens, and rights of any kind or nature granted Lender in the Telenational
Documents, as amended in the Loan Documents, to secure payment of the Note.
Borrowers and Telenational confirm that this modification of the Telenational
Documents shall in no manner affect or impair any of the liens, security
interests or rights securing payment of the Note as to the Collateral, as that
term is defined in the Pledge Agreement. Borrowers confirm that the liens,
security interests and rights of Lender under the Loan Documents are valid and
subsisting liens, security interests and rights against the properties described
therein. Borrowers confirm that Lender is not waiving any rights or remedies it
had under the Original Note and the Telenational Documents, unless specifically
set forth herein, that such rights are not impaired, and that the purpose of
this instrument being in part, to renew, carry forward, and extend all such
rights, as modified and improved herein and in the other Loan Documents. Lender
shall have the right to exercise all rights and remedies of Lender under the
Loan Documents and under applicable law upon the occurrence of any default or
event of default under any of the Loan Documents and under any and all existing
or future amendments or modifications to any of the Loan Documents or to the
terms thereof. Because Lender hereby agrees to release its security interest in
the Pledged Securities, as that term is defined in the Telenational Pledge
Agreement, this provision shall not apply to the Pledged Securities. This
release of security interest in the Pledged Securities shall be effective upon
the reduction of principal balance of the Note to the sum of $500,000. When such
release is effective, Lender shall, within twenty-four (24) hours deliver the
Certificate representing such Pledged Securities with Federal Express or United
Postal Service for delivery to Telenational at the address specified in
paragraph 27 herein.
5. Representations, Warranties, Covenants and Agreements of Borrowers and
Telenational. Borrowers and Telenational represent, warrant and covenant to
Lender as follows: (a) the information set forth in the recitals of this
Agreement are true and correct in all respects; (b) the representations and
warranties of Borrowers and Telenational as set forth in the Loan Documents are
true and correct as of the date hereof; (c) Borrowers and Telenational hereby
confirm all covenants, obligations and duties of Borrowers and Telenational
under the Loan Documents, and (d) Telenational is the owner of the Collateral,
as that term is defined in the Pledge Agreement, and that Telenational has not
mortgaged, transferred, assigned or pledged any interest in the Collateral
except to Lender pursuant to the Loan Documents, unless otherwise designated in
the Loan Documents; (e) TCI, at the time of the execution of the Pledge
Agreement and on the Closing Date, as that term is defined herein, shall be the
owner of the Collateral, as that term is defined in the Pledge Agreement,
subject to the lien of Lender, and has not and will not mortgage, transfer,
assign or pledge any interest in the Collateral, except to Lender pursuant to
the Loan Documents.
6. Additional Representations and Warranties of Telenational.
Telenational represents and warrants to the Lender as follows:
(a) Organization, Standing, etc. Telenational is a limited
partnership duly organized, validly existing and in good standing under the laws
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 3
of the State of Nebraska and has all requisite power and authority to own its
assets and carry on its business as presently conducted. IMTS, Inc., general
partner of Telenational, is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nebraska and has requisite power
and authority to own its assets and carry on its business as presently
conducted. Telenational has all requisite corporate power and authority to (i)
execute, deliver and perform its obligations under the Loan Documents, and (ii)
execute, deliver and perform its obligations under all other agreements and
instruments executed and delivered by it pursuant to or in connection with the
Loan Documents.
(b) Authorization and Execution. The execution, delivery and
performance by Telenational of the Loan Documents have been duly and validly
authorized and Telenational has the corporate power and authority to execute,
deliver and perform the Loan Documents. The Loan Documents have been duly
executed and delivered by Telenational and constitute a valid and binding
agreement of Telenational.
(c) Contravention. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
contravene or constitute a default under or violate (i) any provision of
applicable law or regulation the violation of which would have a material
adverse effect on Telenational or on the Loan Documents, (ii) the Articles of
Incorporation or Bylaws of Telenational or IMTS, Inc., or (iii) any agreement,
judgment, injunction, order, decree or other instrument binding upon
Telenational or any of its assets or properties, the violation of which would
have a material adverse effect on Telenational result in the creation or
imposition of any lien on any asset of Telenational or, on the Loan Documents.
(d) Litigation, Proceedings, Defaults. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of Telenational
threatened against or affecting, Telenational or its respective assets before or
by any court or arbitrator or any governmental body, agency, department,
instrumentality or official. Telenational is not in violation their respective
Articles of Incorporation or Bylaws, and Telenational is not in violation of, or
in default under any provision of any applicable law or regulation or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
Borrowers which violation or default (i) would effect the validity of this
Agreement, the Note, the Pledge Agreement or any other document or agreement
executed or to be executed by Telenational pursuant hereto or in connection
herewith, or (ii) would impair the ability of Telenational to perform in any
material respect the obligations which it has under the Loan Documents, or any
such other document or agreement.
(e) Governmental Regulation. Except as required pursuant to the
Securities Act of 1933, as amended (the "Act") and State securities laws,
Telenational is not subject to any Federal or State law or regulation limiting
its ability to execute or issue the Loan Documents.
(f) Ownership of Property. Telenational has good record title in fee
simple to, or valid and subsisting leasehold interests in, all its real
property, and good title to all its other property, including the Collateral, as
that term is defined in the Pledge Agreement, in each case which is necessary or
useful in the conduct of its business. Each lease agreement under which
Telenational holds an interest in leased property is in full force and effect.
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 4
(g) Documentation; No Material Misstatements. All of the necessary
documents related to the consummation of this transaction have been provided by
Telenational to the Lender and are true, correct and complete in all material
respects, and no written representation, warranty or statement made by
Telenational in or pursuant to this Agreement contains or will contain, when
made, any untrue statement of a material fact or omits or will omit to state any
material fact necessary to make such representation, warranty or statement not
misleading to a prospective purchaser of securities from Telenational, who is
seeking full information with respect to Telenational.
7. Additional Representations and Warranties of TCI. TCI
represents and warrants to the Lender as follows:
(a) Organization, Standing, etc. TCI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own its assets and carry
on its business as presently conducted. TCI has all requisite corporate power
and authority to (i) execute, deliver and perform its obligations under the Loan
Documents, and (ii) execute, deliver and perform its obligations under all other
agreements and instruments executed and delivered by it pursuant to or in
connection with the Loan Documents.
(b) Authorization and Execution. The execution, delivery and
performance by TCI of the Loan Documents hereunder have been duly and validly
authorized and TCI has the corporate power and authority to execute, deliver and
perform this Agreement and execute the Loan Documents. The Loan Documents have
been duly executed and delivered by TCI and constitute a valid and binding
agreement of TCI.
(c) Contravention. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
contravene or constitute a default under or violate (i) any provision of
applicable law or regulation the violation of which would have a material
adverse effect on TCI or on the Loan Documents, (ii) the Certificate of
Incorporation or Bylaws of TCI, or (iii) any agreement, judgment, injunction,
order, decree or other instrument binding upon TCI or any of its assets or
properties, the violation of which would have a material adverse effect on TCI
or result in the creation or imposition of any lien on any asset of TCI, or on
the Loan Documents.
(d) Litigation, Proceedings, Defaults. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of TCI
threatened against or affecting, TCI or its assets before or by any court or
arbitrator or any governmental body, agency, department, instrumentality or
official. TCI is not in violation its Certificate of Incorporation or Bylaws,
and TCI is not in violation of, or in default under any provision of any
applicable law or regulation or of any agreement, judgment, injunction, order,
decree or other instrument binding upon TCI which violation or default (i) would
effect the validity of this Agreement, the Note, the Pledge Agreement or any
other document or agreement executed or to be executed by TCI pursuant hereto or
in connection herewith, or (ii) would impair the ability of TCI to perform in
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 5
any material respect the obligations which it has under the Loan Documents or
any such other document or agreement.
(e) Governmental Regulation. Except as required pursuant to the
Securities Act of 1933, as amended (the "Act") and State securities laws, TCI is
not subject to any Federal or State law or regulation limiting its ability to
execute or issue the Loan Documents.
(f) Ownership of Property. On the Closing Date and at the time of
execution of the Loan Documents, TCI will have good record title in fee simple
to, or valid and subsisting leasehold interests in, all its real property, and
good title to all its other property, including that which in each case which is
necessary or useful in the conduct of its business and including the Collateral,
as that term is defined in the Pledge Agreement. Each lease agreement under
which TCI holds an interest in leased property is in full force and effect.
(g) Documentation; No Material Misstatements. All of the necessary
documents related to the consummation of this transaction have been provided by
TCI to the Lender and are true, correct and complete in all material respects,
and no written representation, warranty or statement made by TCI in or pursuant
to this Agreement contains or will contain, when made, any untrue statement of a
material fact or omits or will omit to state any material fact necessary to make
such representation, warranty or statement not misleading to a prospective
purchaser of securities from TCI, who is seeking full information with respect
to TCI.
8. Additional Representations and Warranties of WorldPort.
WorldPort represents and warrants to the Lender as follows:
(a) Organization, Standing, etc. WorldPort is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has requisite power and authority to own its assets and carry on
its business as presently conducted. WorldPort has all requisite corporate power
and authority to (i) execute, deliver and perform its obligations under the Loan
Documents, and (ii) execute, deliver and perform its obligations under all other
agreements and instruments executed and delivered by it pursuant to or in
connection with the Loan Documents.
(b) Authorization and Execution;. The execution, delivery and
performance by WorldPort of the Loan Documents hereunder has been duly and
validly authorized and WorldPort has the corporate power and authority to
execute, deliver and perform under the Loan Documents. The Loan Documents have
been duly executed and delivered by WorldPort and constitute a valid and binding
agreement of WorldPort.
(c) Contravention. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
contravene or constitute a default under or violate (i) any provision of
applicable law or regulation the violation of which would have a material
adverse effect on WorldPort or on the Loan Documents , (ii) the Certificate of
Incorporation or Bylaws of WorldPort, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon WorldPort or any of
its assets or properties, the violation of which would have a material adverse
effect on WorldPort or result in the creation or imposition of any lien on any
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 6
asset of WorldPort, on the Loan Documents.
(d) Litigation, Proceedings, Defaults. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of WorldPort
threatened against or affecting, WORLDPORT or its respective assets before or by
any court or arbitrator or any governmental body, agency, department,
instrumentality or official. Worldport is not in violation of its Certificate of
Incorporation or Bylaws, and WorldPort is not in violation of, or in default
under any provision of any applicable law or regulation or of any agreement,
judgment, injunction, order, decree or other instrument binding upon WorldPort
which violation or default (i) would effect the validity of this Agreement, the
Note, the Pledge Agreement or any other document or agreement executed or to be
executed by WorldPort pursuant hereto or in connection herewith, or (ii) would
impair the ability of WorldPort to perform in any material respect the
obligations which it has under the Loan Documents or any such other document or
agreement.
(e) Governmental Regulation. Except as required pursuant to the
Securities Act of 1933, as amended (the "Act") and State securities laws,
WorldPort is not subject to any Federal or State law or regulation limiting its
ability to execute or issue the Loan Documents.
(f) Ownership of Property. WorldPort has good record title in fee
simple to, or valid and subsisting leasehold interests in, all its real
property, and good title to all its other property, in each case which is
necessary or useful in the conduct of its business. Each lease agreement under
which WorldPort holds an interest in leased property is in full force and
effect.
(g) Documentation; No Material Misstatements. All of the necessary
documents related to the consummation of this transaction have been provided by
WorldPort to the Lender and are true, correct and complete in all material
respects, and no written representation, warranty or statement made by WorldPort
in or pursuant to this Agreement contains or will contain, when made, any untrue
statement of a material fact or omits or will omit to state any material fact
necessary to make such representation, warranty or statement not misleading to a
prospective purchaser of securities from WorldPort, who is seeking full
information with respect to WorldPort.
9. Representations and Warranties of Lender. The Lender represents
and warrants to Borrowers as follows:
(a) Authorization and Execution. The Lender has full legal right,
power, and authority (including the due authorization by all necessary
partnership action) to enter into this Agreement and to perform the Lender's
obligations hereunder without the need for the consent of any other person; and
this Agreement has been duly authorized, executed and delivered and constitutes
the legal, valid and binding obligation of the Lender enforceable against the
Lender in accordance with the terms hereof.
(b) Risk of Loss. The Lender is in a financial position to hold the
Note until maturity and is able to bear the economic risk and withstand a
complete loss of investment in the Note.
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 7
(c) Experience. The Lender has such knowledge and experience
in financial and business matters that the Lender is capable of evaluating the
merits and risks of the investment in the Note and has the net worth to
undertake such risks.
(d) Advice. The Lender has obtained, to the extent the Lender
has deemed necessary, the Lender's own professional advice with respect to the
risks inherent in the investment in the Note, and the suitability of the
investment in the Note in light of the Lender's financial condition and
investment needs.
(e) Suitable Investment. The Lender believes that the investment in
the Note is suitable for the Lender based upon the Lender's investment
objectives and financial needs, and the Lender has adequate means for providing
for the Lender's current financial needs and has no need for liquidity of
investment with respect to the Note.
(f) Risk Factors. The Lender realizes that (i) the purchase of the
Note is a long term investment; (ii) the Lender must bear the economic risk of
investment until the Note matures and because the Note has not been registered
under the Act, the Note cannot be sold unless each is subsequently registered
under the Act or an exemption from such registration is available; and (iii)
there is presently no public market for the Note and the Lender may not be able
to liquidate the Lender's investment in the event of an emergency or pledge the
Note as collateral security for loans.
(g) Own Account. The Lender acknowledges that the Note is being
purchased for the Lender's own account and for investment and without the
intention of reselling or redistributing the same, and that the Lender made no
agreement with others regarding any of such Note.
(h) No Agreements. The Lender has no agreements (written or
oral), arrangements, understandings or commitments with any other investor
subscribing for Note.
(i) Accredited Investor. The Lender is an "accredited
investor" as defined under Regulation D under the Act.
(j) Entity Representations. The Lender was not organized for
the specific purpose of acquiring the Note and has total assets in excess of
$5,000,000.
10. Securities Laws Restrictions. The Lender acknowledges the Note will
not be sold or assigned unless the Lender shall have obtained (i) an opinion of
counsel satisfactory to the Borrowers that such proposed disposition or transfer
lawfully may be made without the registration of such Note pursuant to the Act
and applicable state securities laws, or (ii) such registration.
11. Legend on Note. The Lender acknowledges that the Note will each
bear a legend conspicuously endorsed reading substantially as follows:
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 8
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE. THIS NOTE THEREFORE
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OR OTHERWISE DISTRIBUTED
FOR VALUE IN THE ABSENCE OF (i) AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE MAKER THAT SUCH SALE, TRANSFER, ASSIGNMENT, PLEDGE OR
OTHER DISTRIBUTION IS EXEMPT FROM (OR NOT OTHERWISE SUBJECT TO) THE
REGISTRATION (OR QUALIFICATION) AND PROSPECTUS DELIVERY REQUIREMENTS OF
SUCH ACT OR LAWS, OR (ii) SUCH REGISTRATION OR QUALIFICATION.
12. Release of Lender. Each of the Borrowers and Telenational,
respectively, on behalf of itself and its respective partners (limited and
general) and the officers, directors, managers, partners, employees, agents,
attorneys, representatives and affiliates, and respective heirs, successors and
assigns each (collectively, the "Releasing Parties"), hereby release and forever
discharge Lender and its predecessors, successors, assigns, officers, directors,
managers, shareholders, employees, agents, attorneys, representatives, parent
corporations, subsidiaries and affiliates and partners (limited and general)
(collectively, the "Released Parties") from, and waive and relinquish, any and
all actions, causes of action, suits, debts, controversies, agreements,
promises, rights, variances, trespasses, damages, judgments, executions, claims
and demands whatsoever, in law, equity or otherwise, by reason of, arising from
or in connection with, or directly or indirectly attributable to, the Original
Note, the Telenational Documents, the Collateral, the Pledged Securities, the
Loan Documents, or the administration or enforcement thereof, the negotiation,
execution, and delivery of the Loan Documents, or any course of dealing between
any of the Released Parties and any of the Releasing Parties, in connection
therewith from the beginning of time through the date of actual execution
hereof. It is expressly understood and agreed that the terms hereof are
contractual and that the release given hereby shall not be construed as an
admission of liability, any liability being expressly denied on behalf of any
and all Released Parties.
13. No Release By Lender. Lender is not releasing any claims of any kind
or nature in entering into this Agreement, including any claims arising pursuant
to the terms of the Telenational Note, unless specifically set forth herein, and
other than the release of its security interest in the Pledged Securities,
pursuant to the terms hereof.
14. Claim Preserved. Neither the execution of the Telenational Documents
nor the Loan Documents, nor the acceptance by Lender of the pledge of the
Pledged Securities pursuant to the Telenational Pledge Agreement nor the release
of such pledge of the Pledged Securities pursuant to the terms hereof shall be
deemed a waiver of rights, claims or causes of action of any kind or nature
which the Lender may have related to the Pledged Securities or the underlying
transaction pursuant to which Telenational acquired the Pledged Securities. This
provision does not create any rights of action or claims which Lender does not
otherwise have.
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 9
15. Representations and Warranties True at the Closing Date. The
representations and warranties of each party hereto contained in this Agreement
shall be deemed to have been made again at and as of the Closing Date as that
term is defined herein, and shall then be true and correct. At the Closing, each
party shall have delivered to all other parties a certificate, signed by an
executive officer and dated the Closing Date, to the foregoing effect.
16. Closing. The closing shall take place in the offices of Xxxxx
Xxxx, Woodmen Tower, 1700 Farnam, 00xx Xxxxx, Xxxxx, Xxxxxxxx, 00000 on June
20, 1997 (the "Closing Date") at 1:00 p.m. o'clock Central Standard Time.
17. Special Notices to Borrowers. THIS LOAN IS DUE IN FULL ON JANUARY 1,
1998. AT MATURITY, YOU MUST PAY THE ENTIRE UNPAID PRINCIPAL BALANCE OF THE LOAN
AND ACCRUED UNPAID INTEREST THEN DUE. THE LENDER IS UNDER NO OBLIGATION TO
REFINANCE THE LOAN AT THAT TIME. YOU WILL THEREFORE BE REQUIRED TO MAKE PAYMENT
OUT OF OTHER ASSETS YOU MAY OWN, OR YOU WILL HAVE TO FIND A LENDER WILLING TO
LEND THE MONEY AT PREVAILING MARKET RATES, WHICH MAY BE CONSIDERABLY HIGHER THAN
THE INTEREST RATE ON THIS LOAN. IF YOU REFINANCE THIS LOAN AT MATURITY, YOU MAY
HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN
EVEN IF YOU OBTAIN REFINANCING FROM THE SAME LENDER.
18. Costs and Expenses. Borrowers agree to pay all costs and expenses
incurred by Lender in connection with the execution and consummation of this
Agreement, including, without limitation, all recording costs of documents
evidencing the continuation of the lien granted Lender in the Collateral, and
the fees and expenses of Lender's counsel in the sum of $22,800.00, which sum
shall be paid on the Closing Date.
19. Continued Effect. Except to the extent amended hereby or in
connection herewith, all terms, provisions, and conditions of the Loan
Documents shall remain enforceable and binding in accordance with their
respective terms.
20. Governing Law. The terms and provisions hereof shall be governed
by and construed in accordance with the laws of the State of Texas.
21. Further Amendments. All of the terms and provisions of the Loan
Documents are hereby amended and modified whereby necessary, even though not
specifically addressed herein, so as to conform to the amendments and
modifications set forth herein.
22. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and each
of the parties hereto hereby represents, warrants, and covenants to the other
that the persons executing this Agreement on behalf of such party have full
authority, power, and authorization to execute such document and to bind its
principal.
23. Entire Agreement. This Agreement supersedes all prior oral and
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 10
written agreements and understandings of the parties hereto with respect to
the subject matter hereof.
24. Headings. The headings of the sections and subsections hereof
are inserted as a matter of convenience and for reference only and in no way
define, limit or describe the scope of this Agreement or the meaning of any
provision hereof.
25. Waivers. The failure of any party to act to enforce rights hereunder
shall not be deemed a waiver and shall not preclude enforcement of any rights
hereunder. No waiver of any term or provision of this Agreement on the part of a
party shall be effective for any purpose whatsoever unless such waiver is in
writing and signed by such party.
26. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the terms hereof, such provision shall be fully severable. This Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
27. Notices. Any request, demand, authorization, direction, notice,
consent, waiver, instruction, document or other communication provided or
permitted by this Agreement to be made upon, given or furnished to, or filed
shall be sufficient for every purpose hereunder if in writing and mailed,
registered or certified mail, postage prepaid or delivered by facsimile or
telecopier (if confirmed), as follows:
If to Telenational, to:
Telenational Communications Limited Partnership
0000 Xxxxxxxxx Xxx.
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
With copies to:
Xxxxx & Xxxx
Woodman Tower
1700 Farnam, 00xx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
If to WorldPort and TCI, to:
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 11
WorldPort Communications, Inc.
0000 Xxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
With copies to:
Xxxxx & Xxxxxx, L.L.P.
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
If to Value Partners, to:
Value Partners, Ltd.
0000 Xxxx Xxx.
Xxxxx 0000 X
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxx Xxxxx
With copies to:
Bergman, Yonks, Xxxxx & Bird L.L.P.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
28. Attorney's Fees. In the event attorneys' fees or other costs are
incurred to secure performance of any of the obligations herein provided for, or
to establish damages for the breach thereof, or to obtain any other appropriate
relief, whether by way of prosecution or defense, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs incurred therein to the
extent allowed by applicable law.
29. Further Assurances. Each party hereto agrees to execute any and all
documents, and to perform such other acts, whether before or after closing, that
may be reasonably necessary or expedient to further the purposes of this
Agreement or to further assure the benefits intended to be conferred hereby.
30. Binding Effect. This Agreement shall be binding upon and inure to the
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 12
benefit of the respective heirs, successors and assigns of the parties hereto,
and each of the parties hereto hereby represents, warrants, and covenants to the
other that the persons executing this Agreement on behalf of such party have
full authority, power, and authorization to execute such document and to bind
its principal.
31. NOTICE OF INVALIDITY OF ORAL AGREEMENTS. THIS WRITTEN AGREEMENT,
THE LOAN DOCUMENTS, AND ALL EXHIBITS HERETO REPRESENT 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.
32. Usury. All agreements between Borrowers and Lender, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of demand or acceleration of the Final
Maturity Date, as that term is defined in the Note, or otherwise, shall the
interest contracted for, charged, received, paid or agreed to be paid to Lender
exceed the maximum amount permissible under the laws of the State of Texas
(hereinafter the "Applicable Law"). If, from any circumstance whatsoever,
interest would otherwise be payable to Lender in excess of the maximum amount
permissible under the Applicable Law, the interest payable to Lender shall be
reduced to the maximum amount permissible under the Applicable Law, and if from
any circumstance Lender shall ever receive anything of value deemed interest by
the Applicable Law in excess of the maximum amount permissible under the
Applicable Law, an amount equal to the excessive interest shall be applied to
the reduction of the principal hereof and not to the payment of interest, or if
such excessive amount of interest exceeds the unpaid balance of principal
hereof, such excess shall be refunded to Borrowers. All interest paid or agreed
to be paid to Lender shall, to the extent permitted by the Applicable Law, be
amortized, prorated, allocated and spread throughout the full period (including
any renewal or extension) until payment in full of the principal so that the
interest hereon for such full period shall not exceed the maximum amount
permissible under the Applicable Law. Lender expressly disavows any intent to
contract for, charge or receive interest in an amount which exceeds the maximum
amount permissible under the Applicable Law.
33. Counterparts. This Agreement may be executed in separate or multiple
counterparts by the parties, and all of such counterparts shall be considered as
one and the same instrument notwithstanding the fact that various counterparts
are signed by only one or more of the parties, and all of such Agreements shall
be deemed but one and the same Agreement.
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 13
EXECUTED as of the date first above written.
LENDER:
VALUE PARTNERS, LTD.
By: Xxxxxx Xxxxx Partners,
a Texas general partnership
General Partner
By: /s/Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
Its: General Partner
BORROWERS:
TELENATIONAL COMMUNICATIONS, INC.
By: /s/Xxxx Xxxxxx
------------------------------
Its: President & C.E.O.
------------------------------
WORLDPORT COMMUNICATIONS, INC.
By: /s/Xxxx Dlaton
------------------------------
Its: President & C.E.O.
------------------------------
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 14
OTHER PARTY:
TELENATIONAL COMMUNICATIONS
LIMITED PARTNERSHIP
By: IMTS, Inc.
-------------------------------
General Partner
By: /s/Xxxxxx Xxxxxxxxx
-------------------------------
Its: President
-------------------------------
--------------------------------------------------------------------------------
FIRST AMENDED
LOAN MODIFICATION AGREEMENT, PAGE 15
