EXHIBIT 10.53
AMENDED AND RESTATED SECURED NOTE
$15,000,000.00 September 12, 2000
FOR VALUE RECEIVED, EGLOBE, INC., a Delaware corporation, EGLOBE/COAST,
INC., a Delaware corporation, EGLOBE FINANCING CORPORATION, a Delaware
corporation, IDX FINANCING CORPORATION, a Delaware corporation, and TELEKEY
FINANCING CORPORATION, a Delaware corporation (collectively, the "Maker"),
jointly and severally promise to pay to the order of EXTL-SPECIAL INVESTMENT
RISKS, LLC, a limited liability company organized under the laws of Nevada (the
"Holder"), at 000 Xxxxxx, Xxxxx 000, Xxxxx, XX 00000, or at such other place as
the Holder of this Note may from time to time designate, the principal amount of
Fifteen Million United States Dollars ($15,000,000.00), together with any
accrued but unpaid interest thereon, on the terms and conditions set forth
below.
This Note is the Amended and Restated Secured Note ("Note") referred to
in Amendment No. 3 to the Loan and Note Purchase Agreement dated as of September
12, 2000, by and among the Maker and the Holder, such Loan and Note Purchase
Agreement as amended by Amendments Nos. 1, 2 and 3 to Loan and Note Purchase
Agreement (the "Loan and Note Purchase Agreement"). Capitalized terms used but
not defined herein shall have the meanings set forth in the Loan and Note
Purchase Agreement.
Principal payments in the amount of Fifty Thousand United States
Dollars ($50,000.00) shall be payable in arrears on the fifteenth day of each
month, commencing on October 15, 2000, with the entire unpaid principal amount
(together with any accrued and unpaid interest thereon) to be due and payable in
a single payment on the Note Maturity Date.
This Note shall bear interest on the unpaid portion of the principal
amount thereof, and upon the interest accrued thereon each month, from the date
of issuance until the unpaid portion of the principal shall have become due and
payable (whether on the Note Maturity Date, by acceleration or otherwise), at
the Note Interest Rate. From and during the continuation of an Event of Default,
the unpaid principal balance of this Note together with accrued and unpaid
interest thereon shall bear interest at the Note Late Payment Rate.
Whenever any payment to be made under or with respect to this Note
shall be stated to be due on any day other than a Business Day, such payment may
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest due on such date.
This Note may be prepaid without premium or penalty, at the option of
the Maker exercised by written notice to the Holder, at any time in whole or
from time to time in part in integral multiples of $100,000. Any prepayment will
be applied first to accrued interest and then to payment of principal.
Interest on this Note shall be paid in cash. Principal of this Note
shall be paid in cash except as provided in this paragraph. In the event that
(1) the Closing Price of the Parent Common Stock on Nasdaq is $8.00 or more for
any 15 consecutive trading days during any period in which Notes are outstanding
that is not more than five Business Days preceding the date of a written
election made in accordance with this sentence, (2) the Parent closes a public
offering of equity securities of the Parent at a price of at least $5.00 per
share and with gross proceeds to the Parent of at least $30 million, or (3) the
Parent closes a Qualified Offering (at a price of at least $5.00 per share, in
the case of an offering of equity securities), to the extent permitted by the
Loan and Note Purchase Agreement, principal of this Note equal to up to 50% of
the original principal amount of this Note may be paid in Parent Common Stock at
the option of the Maker if a written election to make such prepayment in Parent
Common Stock is made by the Maker (and delivered to the Holder) prior to the
date that is five Business Days after the occurrence of the event specified in
clauses (1), (2) or (3) of this sentence. For purposes of payment in Parent
Common Stock, each share of Parent Common Stock shall be valued as follows: A)
if the Market Price of Parent Common Stock is less than $6.00 as of the date of
payment, the value of each share of Parent Common Stock shall equal the Market
Price of Parent Common Stock (if the Market Price of Parent Common Stock is less
than $5.00 as of the date of payment, Parent Common Stock may not be used for
such prepayment unless the issuance of the Parent Common Stock would not require
any Stockholder Approval that has not been obtained); or (B) if the Market Price
of Parent Common Stock is greater than or equal to $6.00 as of the date of
payment, the value of each share of Parent Common Stock shall be $6.00. Payment
in the Parent Stock shall be made within 15 days after the election is made.
Until the Parent Stock is issued, all monthly cash installment payments under
this Note shall be made without giving effect to any reduction in principal.
This Note is secured by and shall be entitled to the benefits of the
Security Agreements. In addition, this Note is guaranteed by and shall be
entitled to the benefits of the Guaranty Agreement, which in turn is secured by
and entitled to the benefits of the Parent Security Agreement.
The occurrence of any Event of Default under and as defined in the Loan
and Note Purchase Agreement shall constitute an "Event of Default" hereunder.
If an Event of Default exists hereunder, the Holder may exercise any
right, power or remedy which the Holder may have under the Loan and Note
Purchase Agreement if the corresponding Event of Default exists under and as
defined in the Loan and Note Purchase Agreement.
2
In the event the interest provisions hereof or any exactions provided
for herein or in the Loan and Note Purchase Agreement shall result in an
effective rate of interest which, for any period of time, exceeds the limit of
any usury or other law applicable to the transactions evidenced hereby, all sums
in excess of those lawfully collectible as interest for the period in question
shall, without further agreement or notice between or by any party hereto, be
applied toward repayment of outstanding principal immediately upon receipt of
such moneys by the Holder with the same force and effect as if the Maker had
specifically designated such extra sums to be so applied to principal and the
Holder had agreed to accept such extra payments in repayment of the principal
balance hereof. Notwithstanding the foregoing, however, the Holder may at any
time and from time to time elect, by notice in writing to the Maker, to reduce
or limit the collection of any interest to such sums which shall not result in
any payment of interest in excess of that lawfully collectable. The Maker agrees
that in determining whether or not any interest payable under this Note exceeds
the highest rate permitted by law, any non-principal payment shall be deemed to
the extent permitted by law to be an expense, fee, premium or penalty, rather
than interest.
The Maker expressly waives presentment for payment, demand, notice of
dishonor, protest, notice of protest, diligence of collection, notice of
intention to accelerate, notice of acceleration, and (except as otherwise
expressly provided herein or in the Loan and Note Purchase Agreement to the
contrary) any similar notice of any kind, and hereby consents to any number of
renewals and extensions of time of payment hereof, which renewals and extensions
shall not affect the liability of the Maker.
The Maker promises to pay all costs and expenses (including, without
limitation, attorneys' fees and disbursements) incurred in connection with the
collection thereof.
Without the prior written consent of the Maker, this Note may not be
transferred except to an Affiliate of the Holder, to Xx. Xxxxxx Xxxxxx, to a
member of Xx. Xxxxxx'x immediate family or an Affiliate of either.
Neither this Note nor any of the rights, interests or obligations of
the Maker hereunder shall be assigned in any respect without the prior written
consent of the Holder. Whenever used herein, the words "the Maker" and "the
Holder" shall be deemed to include their respective successors and permitted
assigns.
All communications required or permitted by this Note shall be in
accordance with Section 7.1 of the Loan and Note Purchase Agreement.
If any term, condition or other provision of this Note is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms, conditions and provisions of this Note shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Note so as to effect the original intent
of the parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
3
This Note may not be amended except by an instrument in writing signed
by the Maker and the Holder.
This Note shall be governed by and construed in accordance with the
laws of the State of Texas, regardless of the laws that might otherwise govern
under applicable principles of conflicts of law. The Maker consents to the
jurisdiction of the federal courts whose districts encompass any part of the
State of Texas or the state courts of the State of Texas in connection with any
dispute arising under this Note and hereby waives, to the maximum extent
permitted by law, any objection, including any objection based on forum non
conveniens, to the bringing of any such proceeding in such jurisdictions.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered as of the day and year first written above.
EGLOBE, INC.
By:_________________________________
Name:______________________________
Title:_______________________________
EGLOBE/COAST, INC.
By:__________________________________
Name:_______________________________
Title:_________________________________
EGLOBE FINANCING CORPORATION
By:__________________________________
Name:_______________________________
Title:_________________________________
IDX FINANCING CORPORATION
By:__________________________________
Name:_______________________________
Title:_________________________________
TELEKEY FINANCING CORPORATION
By:__________________________________
Name:_______________________________
Title:_________________________________
