Exhibit 10.27
October 2, 1998
$900,000.00
DEMAND PROMISSORY NOTE
AMNEX, INC., A New York corporation ("AMNEX") and AMERICAN
NETWORK EXCHANGE, INC., a Delaware corporation and wholly-owned subsidiary of
AMNEX ("ANEI", and together with AMNEX, the "Makers"), for value received,
hereby jointly and severally promise to pay to the order of ROTTERDAM VENTURES,
INC., a New York corporation (the "Holder"), within fifteen (15) days following
the date of receipt of demand for payment (the "Due Date"), at the offices of
the Holder indicated in paragraph 5 hereof the aggregate principal sum of NINE
HUNDRED THOUSAND DOLLARS ($900,000) in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts and to pay interest on such principal sum
from the date hereof at a fluctuating rate per annum at all times equal to the
prime rate of interest announced from time to time by The Chase Manhattan Bank
plus two percent (2%) (the "Note Rate"). Accrued interest on the unpaid
principal balance of this Demand Promissory Note ("Note") shall be payable on
the first business day of each month commencing November 2, 1998, and on the Due
Date.
1. Registered Owner. The Makers may consider and treat the person in whose
name this Note shall be registered as the absolute owner thereof for all
purposes whatsoever (whether or not this Note shall be overdue) and the
Makers shall not be affected by any notice to the contrary. The registered
owner of this Note shall have the right to transfer it by assignment and
the transferee thereof upon his registration as owner of this Note, shall
become vested with all the powers and rights of the transferor.
Registration of any new owner shall take place upon presentation of this
Note to AMNEX at its offices together with an assignment duly
authenticated. In case of transfers by operation of law, the transferee
shall notify the Makers of such transfer and of his address, and shall
submit appropriate evidence regarding the transfer so that this Note may be
registered in the name of the transferee. This Note is transferable only on
the books of the Makers by the holder hereof in person or by attorney, on
the surrender hereof duly endorsed. Communications sent to any registered
owner shall be effective as against all holders or transferees of this Note
not registered at the time of sending the communication.
2. Redemption. The Holder, by its acceptance of this Note, hereby acknowledges
that,subject to the provisions of paragraph 7 hereof, at any time, and
from time to time, notwithstanding the lack of demand for payment on the
part of the Holder, any of the Makers may, at its option, by written notice
given to the Holder, elect to redeem and prepay all or any portion of the
outstanding principal indebtedness evidenced by this Note, together with
accrued
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interest thereon, without premium or penalty. Any such notice of a Maker's
election to redeem and prepay as provided for hereinabove shall be given
not less than five (5) business days prior to the date fixed in such notice
as the date for redemption of this Note (the "Redemption Date"). Any
payments received on this Note shall be applied first to any unpaid fees or
other sums due and owing hereunder, next to accrued but unpaid interest,
and then to the principal amount outstanding.
3. Default Rate of Interest: Late Charge. In the event the Makers shall fail
to pay all or any portion of the principal amount hereof on or before the
Due Date, any such unpaid amount shall bear interest, for each day from the
Due Date, until paid in full, at a fluctuating rate per annum at all times
equal to the Note Rate plus five percent (5%) instead of the Note Rate as
hereinabove provided, payable upon demand. In the event the Makers shall
fail to pay timely any other amount due hereunder, the Makers, jointly and
severally, agree to make a payment, in addition to all other required
payments hereunder, equal to two percent (2%) of the overdue payment.
4. Applicable Law. This Note is issued under and shall for all purposes be
governed by and construed in accordance with the laws of the State of New
York, excluding choice of law rules thereof.
5. Notices. Any and all notices or other communications or deliveries required
or permitted to be given or made pursuant to any of the provisions of this
Note shall be in writing and shall be deemed to have been duly given or
made for all purposes when hand delivered or sent by certified or
registered mail, return receipt requested and postage prepaid, overnight
mail or courier, or telecopier as follows:
If to Holder at: 000 Xxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000-1989
Attention: Xxxxx X. Xxxxxx
Telecopier Number: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
000 Xxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000-1989
Telecopier Number: (000) 000-0000
If to AMNEX at: 000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
Attention: Chairman
Telecopier Number: (000) 000-0000
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With a copy to: Xxx Xxxxxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
If to ANEI at: 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telecopier Number: (000) 000-0000
With a copy to: Xxx Xxxxxxxxxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
or any such other address as the Holder or any Maker may specify by notice
given to the other party in accordance with this paragraph 5.
6. Use of Proceeds. Of the $900,000 principal balance hereof, $500,000 is
being used to refinance that certain Demand Promissory Note dated August 2,
1998 (the "August Note"), from Makers to Holder and $400,000 is being
advanced directly to the Makers. The August Note is superseded, amended and
restated in its entirety by this Note.
7. Conversion Option.
1. Subject to the provisions of Paragraph 7.b.,in lieu of receiving a
payment in cash, either after demand or in connection with any
prepayment of this Note by the Makers, the Holder may require that
AMNEX issue shares of the common stock valued at 65.6 cents per share
to Holder. At the time of demand, or not less than one (1) business
day prior to the redemption date, Holder shall inform Makers whether
or not Holder desires to receive cash or shares of stock in connection
with any payment or prepayment of this Note. AMNEX shall have no duty
to issue any fractional shares and, to the extent that any interest or
principal cannot be paid by the delivery of a share of AMNEX common,
because the value of the share exceeds the remaining amount owed, such
amount shall be paid in cash. In calculating the amount of common
stock required to be paid in order to satisfy this Note in full, the
Holder shall be entitled to include a reasonable period of time to
allow for the actual delivery of shares of AMNEX common stock to
Holder. If Holder shall fail to notify Makers of Xxxxxx's election to
receive shares of common stock instead of cash, the Makers shall pay
cash.
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2. The provisions of Paragraph 7.a. shall become automatically operative
from and after, and to the extent that AMNEX has notified in a timely
fashion any and all existing shareholders with preemptive rights to
participate in the purchase of the Note, including the Conversion
Option, and such rights have been waived or exercised in accordance
with their terms. Without limiting the generality of the foregoing,
the effectiveness of Paragraph 7.a. shall not require any further
action by AMNEX or the Holder other than sending and receiving
notification of the aforesaid waiver and/or exercise and, in the case
of one or more exercises, adjustment of the Note accordingly. AMNEX
agrees to send appropriate notices to all shareholders having
preemptive rights no later than three (3) business days after the date
of this Note.
8. Waivers. Makers hereby waive presentment for payment, protest and demand,
and notice of protest, demand and/or dishonor and nonpayment of this Note,
and all other notices of demands otherwise required by law that Makers may
lawfully waive. The Makers expressly agree that this Note, or any payment
hereunder may be extended from time to time without in any way affecting
the liability of Makers. No unilateral consent or waiver by Holder with
respect to any action or failure to act which, without consent, would
constitute a breach of any provision of this Note shall be valid and
binding unless in writing and signed by Xxxxxx.
9. Consent to Jurisdiction: Jury Trial Waiver. Makers hereby submit to the
jurisdiction of the courts of the State of New York located in the City of
Schenectady and the United States District Court for the Northern District
of New York as well as to the jurisdiction of all courts to which an appeal
may be taken or other review sought from the aforesaid courts, for the
purpose of any suit, action or other proceeding arising out of Makers
obligations under and with respect to this Note, and expressly waive any
and all obligations they may have as to venue of any of such courts. MAKERS
AND HOLDER EACH HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ANY MATTERS
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS NOTE, OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREIN). No party to this Note, including
but not limited to any assignee of or successor to Makers or Holder, shall
seek a jury trial in any lawsuit, proceeding, counterclaim or any other
litigation procedure based upon or arising out of this Note or the
relationship between the parties. No party will seek to consolidate any
such action, in which a jury trial has been waived, with any other action
in which a jury trial cannot be or has not been waived. THE PROVISIONS OF
THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY MAKERS AND HOLDER, AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS, IN ANY WAY,
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
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10. Savings Clause. All agreements between Makers and Holder are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to Holder for the
use, forbearance or detention of the indebtedness evidenced hereby exceed
the maximum permissible under applicable law. Any interest received by
Holder which would exceed the maximum permissible under applicable law
shall be applied to the reduction of the principal balance evidenced hereby
and not to the payment of interest. This provision shall control every
other provision of all agreements between Makers and Holder.
11. Attorney's Fees. If this Note shall not be paid when due and shall be
placed by the Holder hereof in the hands of any attorney for collection,
through legal proceedings or otherwise, the Makers shall pay (on demand)
all reasonable costs and expenses of collection incurred, including
reasonable attorneys' fees.
12. Section Headings. Any section headings in this Note are included herein for
convenience of reference and shall not constitute a part of this Note for
any other purpose.
13. Miscellaneous.
1. This Note constitutes the rights and obligations of the Holder and the
Makers. No provision of this Note may be modified except by an
instrument in writing signed by the party against whom the enforcement
of any modification is sought.
2. Payment of interest due under this Note prior to the Due Date or
Redemption Date, as the case may be, shall be made to the registered
holder of this Note. Payment of principal and interest due hereunder
on the Due Date or Redemption Date, as the case may be, shall be made
to the registered holder of this Note in accordance with the terms
hereof following presentation of this Note upon or after such
applicable date. No interest shall be due on this Note for such period
of time that may elapse between the Due Date or Redemption Date, as
the case may be, and its presentation for payment.
3. No recourse shall be had for the payment of the principal of or
interest on this Note against any officer, director or agent of any
Maker, past, present or future, all such liability of the officers,
directors and agents being waived, released and surrendered by the
Holder hereof by the acceptance of this Note.
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IN WITNESS WHEREOF, the Makers have caused this Note to be
signed on its behalf in its corporate name, by its duly authorized officer, all
as of the day and year first above written.
AMNEX, INC.
By: _________________________________
Name:
Title:
AMERICAN NETWORK EXCHANGE, INC.
By: _________________________________
Name:
Title:
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