EXHIBIT 10.3
THIS NOTE MAY NOT BE TRANSFERRED, SOLD, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
NOTE
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$5,000,000.00 November 26, 2002
FOR VALUE RECEIVED, Phone1, Inc., a Florida corporation (the
"Borrower"), having a principal office at 000 Xxxxx Xxxxxxxx Xxxx, Xxxxx 0000,
Xxxxx, XX 00000, IRREVOCABLY AND UNCONDITIONALLY PROMISES to pay to the order of
GNB Bank Panama S.A. ("Lender") on the Repayment Date (as defined below) at
Calle 50 y Xxxxxxxx de la Guardia, Torre Banco Continental, Xxxx 00, Xxxxxx
Xxxx, Xxxxxxxx of Panama (the "Office"), or such other place, as may be
designated by the Lender in a written notice given to the Borrower, in lawful
money of the United Sates of America in New York Clearing House funds, the
principal sum of five million ($5,000,000.00) United States Dollars (the
"Principal Amount"). The Repayment Date shall occur on the earliest of (i)
October 31, 2003; (ii) the occurrence of an Event of Default; or (iii) March 31,
2003, if on or prior to such date, neither Borrower, Phone1Globalwide, Inc.
("Global") nor Globaltron Communications Corporation ("GCC" and together with
Global, the "Guarantors") have received a loan from any person other than
Lender, for a period of 12 months in the principal amount of at least
US$5,000,000.
The Borrower shall pay interest in respect of the unpaid
Principal Amount from the date hereof until the Repayment Date (whether by
acceleration or otherwise) at a rate per annum which shall be equal to the Prime
rate which Citibank N.A. announces from time to time as its Prime rate (the
"Interest Rate"), the Interest Rate to change when as such Interest Rate
changes, plus 2%. If principal or interest on the Principal Amount is not paid
when due, thereafter the Borrower shall pay interest in respect of the unpaid
Principal Amount at a rate per annum equal to 5% in excess of the Interest Rate
but not in excess of usury laws. Accrued (and theretofore unpaid) interest in
respect of the Principal Amount shall be payable (i) monthly in arrears
commencing on December 31, 2002; or (ii) in the occurrence of an Event of
Default, on demand. Interest is calculated on the basis of a year of 360 days
and actual days elapsed.
The Lender may elect (either prior to the Repayment Date or
after the Repayment Date, if this Note has not been fully paid) to convert this
Note in whole or in part, as elected by the Lender into (i) such number of
shares of common stock of Global or (ii) such number of securities of Global
into which any other lender with conversion rights elects to convert its debt,
equal to the Principal Amount and interest accrued that the Lender elects to
convert divided by the Per Share Price (as defined below). In the event that the
Lender exercises its conversion right with respect to only a portion of the
outstanding principal amount and/or accrued interest under this Note, that
portion of the principal amount not so converted shall continue to accrue
interest and shall be repayable by the Borrower in accordance with the terms
hereof and the Borrower shall issue a new promissory note to the Lender in
substantially the form of the surrendered Note, in an aggregate principal amount
equal to the remaining unpaid principal balance of the surrendered Note.
For purposes hereof, "Per Share Price" shall mean $.40;
provided that if Global, prior to the Repayment Date (i) equity at a price per
share below $.40 or (ii) any type of debt or equity security convertible into
equity of Global at a price per share below $.40, then the Per Share Price shall
be such number below $.40; provided, further, that the Per Share Price shall
also
be subject to appropriate adjustment for stock splits, combinations,
recapitalizations, reorganizations and similar events
All payments under this Note shall be made without deduction
or withholding for and free and clear of any taxes, levies, imposts or duties of
any nature, present or future, unless such deduction or withholding is required
by law, in which event the undersigned shall pay such additional amounts as
shall result in the recipients of such amounts as would have been received by it
hand no such deduction or withholding been required.
The Borrower shall pay on demand all losses, costs and
expenses, if any (including collection, enforcement and reasonable counsel fees
and expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Note.
The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
No failure on the part of Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
This Note shall be governed by and construed in accordance
with the laws of the State of New York, United States of America, without regard
to conflict of law principles.
Any proceedings with respect to the interpretation of this
Note or the rights and obligations of the undersigned shall be exclusively
brought in the United States District Court for the Southern District of New
York or, if such court lacks subject matter jurisdiction, in the Supreme Court
of the State of New York, County of New York and the undersigned waives the
right to object to the jurisdiction or venue of either such Court or to claim it
is inconvenient forum.
PHONE1, INC.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
GUARANTY
Phone1Globalwide, Inc. ("Global") and Globaltron Communications
Corporation ("GCC"), each having principal office at 000 Xxxxx Xxxxxxxx Xxxx.,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000, each, jointly and severally, irrevocably and
unconditionally guarantee the full and prompt payment when due of the principal
amount of and interest on this Note. Each of Global and GCC understands, agrees
and confirms that the Lender may enforce this guaranty obligation up to the full
amount due by Borrower against either of Global or GCC without proceeding
against Borrower or the other of them. Each of Global and GCC irrevocably and
unconditionally promises to pay Xxxxxxxx's obligations to the Lender, or order,
on demand when due, in lawful
money of the United States of America. The guaranty provided herein shall
constitute a guarantee of payment and not of collection.
Each of Global and GCC hereby waives notice of acceptance of this
guaranty obligation and notice of any liability to which it may apply, and
waives presentment, demand of payment, protest, notice of dishonor or nonpayment
of any such liability, suit or taking of other action by the Lender against, and
any other notice to, any party liable thereon (including Global or GCC).
The obligations of each of Global and GCC herein are absolute and
unconditional and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever.
GLOBALTRON COMMUNICATIONS
CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
PHONE1GLOBALWIDE, INC.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
