Exhibit 10.20
FORM OF
CONVERTIBLE PROMISSORY NOTE
US$____________ ___________, 199__
New York, NY
FOR VALUE RECEIVED, on August 31, 2003, AEGIS COMMUNICATIONS GROUP,
INC., a Delaware corporation ("Maker" and also sometimes referred to herein
as the "Company"), promises to pay to the order of _____________________
("Holder"), at __________________________________________, or at such other
place as the Holder may from time to time designate in writing, the principal
sum of ___________________________ ($__________), and to pay interest on the
unpaid principal balance of this Convertible Promissory Note (this "Note") on
March 31, June 30, September 30 and December 31 in each year commencing on
_________________, 199__, at the rate and upon the terms set forth below.
Interest shall be payable by the issuance of additional Notes ("Secondary
Notes"), the principal amount of each of which shall be equal to the interest
due on the applicable interest payment date, PROVIDED, HOWEVER, that no
Secondary Note will be issued on the Maturity Date (as defined herein) and
any interest due on such date shall be payable in cash. Subject to the
proviso of the preceding sentence, any Secondary Notes shall be subject to
the same terms as this Note (except, as the case may be, with respect to
title, issuance date and aggregate principal amount). This Note is one of
the convertible promissory notes issued pursuant to that certain Commitment
Letter dated July 2, 1998 between Maker and Xxxxxx Equity Investors III, L.P.
(the "Commitment Letter").
1. INTEREST. Commencing on the date hereof and continuing until
repayment in full or conversion of this Note, interest shall accrue on the
principal balance outstanding hereunder at a rate equal to twelve percent
(12%) per annum. Interest shall be computed on the basis of a three hundred
sixty (360) day year counting the number of actual days elapsed.
2. PAYMENTS AND MATURITY. Subject to the provisions of Sections 4 and
5 hereof, the unpaid principal sum, together with interest thereon at the
rate provided herein, shall be payable as follows:
(a) Interest only on the unpaid principal sum shall be due and
payable quarterly, on each March 31, June 30, September 30 and December 31
commencing on _________________, 199__; and
(b) Unless the Company elects to prepay pursuant to Section 3(a)
hereof, or unless the Company is required to prepay pursuant to Section 3(b)
hereof, the unpaid principal sum, together with interest accrued and unpaid
thereon, shall be due and payable at 10:00 a.m., New York time, on August 31,
2003 (the "Maturity Date").
3. PREPAYMENT.
(a) Subject to the provisions of Section 4, this Note may be
prepaid in whole or in part at any time without premium or penalty. The
Maker shall give the Holder of this Note at least thirty days prior written
notice of any prepayment under this Section 3(a). Subject to the provisions
of Section 4 hereof, the amount of any partial prepayment shall first be
applied to accrued but unpaid interest owing on this Note and then to the
unpaid principal balance hereof.
(b) This Note shall automatically become due and payable on the
date of effectiveness of a Company Sale (as defined herein), PROVIDED, that
the maturity date of the Bank Indebtedness (as defined herein) has not (on or
prior to the date of the Company Sale) been accelerated, in which case such
payment of this Note shall be subject to Section 4. A "Company Sale" shall
be defined as any of (A) any sale, assignment, conveyance, transfer, lease or
other disposition, in one or a series of transactions, of all or
substantially all of the assets of the Company to any person, or group of
related persons other than to an Affiliate (as defined herein) of the
Company; (B) any consolidation, merger, recapitalization, or share exchange
of the Company in which the holders of voting stock of the Company
immediately before the merger, consolidation, recapitalization, or share
exchange will not own 50% or more of the voting shares of the continuing or
surviving corporation or other entity (whether or not the Company)
immediately after such consolidation, merger, recapitalization, or share
exchange; or (C) any sale or other disposition of voting stock of the Company
representing 50% or more of the total voting power of the Company's
outstanding capital stock in one or a series of related transactions to any
person, or group of related persons. For purposes of this Note, an
"Affiliate" shall mean, with respect to any person, any other person who
directly or indirectly or through one or more intermediaries, controls, is
controlled by, or is under common control with, such person. The term
"control" means the possession, directly or indirectly, of the power to cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
4. SUBORDINATION OF NOTE.
(a) The Maker hereof agrees and the Holder by its acceptance of
this Note likewise agrees that the indebtedness represented by this Note (the
"Subordinated Indebtedness"), shall, subject to Section 4(j), be subordinate
pursuant to the terms of this Note to the prior payment in full of all
indebtedness, obligations and liabilities (the "Guaranty
Obligations") of the Maker, under Article X of that certain Second Amended
and Restated Credit Agreement, dated as of July 9, 1998 (as amended or
otherwise modified from time to time, the "Credit Agreement") among the
Maker, IQI, Inc. (the "Borrower"), the various financial institutions as are
or may from time to time become parties thereto (collectively, the
"Lenders"), The Bank of Nova Scotia as Documentation Agent and Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent") and
Credit Suisse First Boston as Syndication Agent for the Lenders, to the
Lenders, the Issuers and the Agents (as such capitalized terms are defined in
the Credit Agreement). Such Guaranty Obligations relate to the indebtedness,
obligations and liabilities of Borrower arising out of or in connection with
the Credit Agreement (providing for Term Loans in the principal amount of
$33,737,500 and a Revolving Loan Commitment Amount of $30,000,000), the Notes
and/or any of the other Loan Documents, as such capitalized terms are defined
in the Credit Agreement, in each case as the same may be modified, renewed,
extended, refunded, refinanced, replaced (through new loan or security
agreements or otherwise), increased or decreased from time to time,
including, without limitation, as to all indebtedness, obligations and
liabilities of Borrower described in the foregoing, all principal, interest
(including any interest accruing subsequent to the date of, or which would
accrue but for a filing or a petition or other action commencing bankruptcy,
insolvency or similar proceedings with respect to the Borrower, whether or
not permitted as an enforceable claim against the Borrower pursuant to
applicable bankruptcy, insolvency or reorganization laws), and commitment,
agency, facility, structuring, restructuring and other fees payable in
connection therewith, together with any and all other expenses, indemnities
or amounts payable in connection therewith, including all expenses incurred
by the Lender Parties (as defined herein) in collecting all or any of the
above or enforcing any rights under the Credit Agreement, the Notes, each
other Loan Document, or any other agreement contemplated thereby (said
indebtedness, obligations and liabilities of the Borrower referred to above
being hereinafter collectively referred to as the "Bank Indebtedness"; the
Credit Agreement, the Notes and the other Loan Documents being collectively
referred to herein as the "Senior Debt Documents;" and the Lenders, the
Issuers and the Agents being collectively referred to herein as the "Lender
Parties"). As used in this Note, the phrases "payment in full" and "paid in
full" shall mean the payment in full in cash of such amount or obligations.
To the extent any payment in respect of the Guaranty Obligations (whether by
or on behalf of the Maker, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential,
set aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar persons under the bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such
payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person, the Guaranty
Obligations or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment had not occurred.
To the extent any Guaranty Obligation is declared to be fraudulent, invalid,
or otherwise set aside under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then the obligation so declared
fraudulent, invalid, or otherwise set aside (and all other amounts that would
come due with respect thereto had such obligations not been affected) shall
be deemed to be reinstated and
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outstanding as a Guaranty Obligation for all purposes hereof as if such
declaration, invalidity or setting aside had not occurred.
Subject to Section 5 hereof, no payment of principal or interest (other
than the issuance of Secondary Notes) may be made on the Subordinated
Indebtedness so long as any Guaranty Obligations remain in effect.
(b) Upon (i) any acceleration of the maturity of the Bank
Indebtedness, (ii) any distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all
or any part of the property, assets or business of the Borrower upon any
dissolution, winding up, liquidation, or reorganization of the Borrower,
whether in bankruptcy, insolvency, receivership, reorganization, or other
similar proceeding or upon an assignment for the benefit of creditors, any
other marshaling of the assets and liabilities of the Borrower or any
proceeding by or against the Borrower for any relief under any bankruptcy,
reorganization or insolvency law or laws relating to the relief of debtors,
readjustment of indebtedness or reorganization, or otherwise (all or any of
the foregoing in this subsection (b)(ii) being referred to as a "Bankruptcy
Event") or (iii) the occurrence of a default in the payment of any principal
or interest due under the Credit Agreement (after the giving of any required
notice and the lapse of any applicable grace period in accordance with the
terms of the Credit Agreement, a "Payment Default") or the "Cash Flow
Coverage Ratio" (as defined in the Credit Agreement, as executed) being less
than 0.35:1 beginning for the Company's fiscal quarter ending December 31,
1998 or 1.00:1 for each fiscal quarter thereafter, which in either case is
not waived by the Lender Parties, and which, in the case of a Payment
Default, entitles the Lender Parties to accelerate the maturity of the Bank
Indebtedness (each such event in (i), (ii) and (iii) being referred to as a
"Subordination Event") and until such Subordination Event is rescinded,
waived or otherwise cured, the Lender Parties shall be entitled to receive
payment in full of the Guaranty Obligations before the Holder is entitled to
receive any payment on account of any principal or interest owing on this
Note (other than the issuance of Secondary Notes); PROVIDED, HOWEVER, that at
such time as an acceleration of maturity or Payment Default described in
clauses (i) or (iii) above is rescinded, cured or waived, or the Cash Flow
Coverage Ratio becomes equal to or greater than 0.35:1 beginning in the
Company's fiscal quarter ending December 31, 1998 or 1.00:1 for each fiscal
quarter thereafter, then the provisions of this subsection (b) shall no
longer be effective with respect to the event or occurrence which gave rise
to such Subordination Event, and subject to subsection (c) below, the Maker
shall resume making any and all payments of interest and principal on this
Note, including any missed payments.
(c) So long as the Guaranty Obligations remain in effect, the
Holder shall not (i) challenge the legality, validity, enforceability or
priority of the Bank Indebtedness or the legality, validity, enforceability,
perfection or priority of the liens granted pursuant to any of the Senior
Debt Documents or the rights of the Lender Parties under any of the Senior
Debt Documents; (ii) except as provided in Section 5 hereof, exercise any
remedy or commence,
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prosecute or participate in any action, whether private, judicial, equitable,
administrative or otherwise, including without limitation any bankruptcy
case, against the Maker or any of its assets to enforce any right under and
in respect to the Subordinated Indebtedness; or (iii) except as provided in
Section 5 hereof, have any right to accelerate the maturity of, or institute
any proceedings to enforce, any indebtedness evidenced by this Note or
otherwise take any action to collect or seek enforcement of payment of the
Subordinated Indebtedness or otherwise attempt to recover payment of the
Subordinated Indebtedness.
(d) Should any payment of any part of the Subordinated
Indebtedness be received by Holder in violation of the provisions of this
Section 4, such payment shall be delivered forthwith to the Administrative
Agent on behalf of the Lender Parties by the Holder for application to the
Guaranty Obligations in the form received except for the addition of any
endorsement or assignment necessary to effect the transfer of all rights
therein to the Administrative Agent on behalf of the Lender Parties. The
Administrative Agent is irrevocably authorized to supply any required
endorsement or assignment which may have been omitted. Until such delivery,
any such payment or collateral shall be held by the Holder in trust for the
Administrative Agent on behalf of the Lender Parties and shall not be
commingled with other funds or property of the Holder. The Holder further
agrees not to sell, assign, transfer, or endorse his claim or claims under
the Subordinated Indebtedness, no matter how evidenced, to anyone without
obtaining such transferee's consent to be bound by the provisions, of this
Section 4.
(e) The Holder agrees and consents that the Administrative Agent
and the Lender Parties shall have uncontrolled power and discretion, without
notice to the Holder, to deal in any manner with the Guaranty Obligations and
the Bank Indebtedness and with all principal, interest, late charges, costs,
and expenses payable by, or the liability of the Borrower under the Senior
Debt Documents or any other obligor in respect of the Bank Indebtedness and
the Senior Debt Documents (such obligors, together with the Borrower being
referred to herein individually as an "Obligor", and, collectively, as the
"Obligors") to such Lender Parties arising therefrom, and with any security
and guarantees therefor, including, but not by way of limitation, any
release, surrender, extension, renewal, acceleration, compromise, or
substitution.
(f) This Section 4 shall continue in full force and effect until
the Guaranty Obligations have been terminated or shall have expired pursuant
to its terms. The Lender Parties may continue, without notice to the Holder,
to extend Bank Indebtedness on the faith of this Section 4 until the Guaranty
Obligations have been terminated or shall have expired pursuant to its terms.
(g) The Holder acknowledges and agrees that the Lender Parties
will rely upon the subordination provisions contained herein in continuing to
extend credit to the Borrower and has relied upon such provisions in entering
into the Credit Agreement. In furtherance of the foregoing, the Holder
hereby waives notice of or proof of reliance hereon.
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(h) No present or future Lender Parties shall be prejudiced in
their right to enforce the subordination contained herein in accordance with
the terms hereof by any act or failure to act on the part of the Borrower.
(i) Nothing in this Section 4 is intended as between the Maker and
the Holder to impair in any way the obligation of the Maker to pay all
amounts due hereunder in accordance with the other provisions of this Note
and to perform and comply in all respects with all of its other obligations
under this Note in a timely manner.
(j) Notwithstanding any other provision contained herein, the
Subordinated Indebtedness shall be subordinate to the prior payment in full
of the Guaranty Obligations only for so long as the aggregate amount of the
Term Loans and the Commitments (as such terms are defined in the Credit
Agreement, and hereinafter collectively referred to as the "Lenders'
Commitment") do not exceed at any time $70,000,000.
5. HOLDER'S RIGHTS.
(a) If (i) all the Bank Indebtedness shall have become or be
declared to be immediately due and payable, (ii) the Maker shall default in
the payment of any interest payable under this Note when due, and if any
Guaranty Obligations remain in effect, and such default shall continue
unremedied for a period of six months, or (iii) a Sub Event of Default (as
defined herein) shall have occurred then, and in any such event, the holders
of 66-2/3% of the aggregate principal amount of this Note and all other notes
issued pursuant to the Commitment Letter then outstanding may at their
option, by the delivery of written notice to the Maker and the Administrative
Agent, declare this Note to be due and payable, whereupon (subject to the
next two sentences) the unpaid principal amount of and accrued interest on
and all other amounts owing under this Note shall forthwith mature and become
due and payable, all without presentment, demand, protest or other notice,
all of which are hereby expressly waived. If payment of the Note is
accelerated in accordance with the foregoing, the Maker shall promptly notify
the Administrative Agent of the acceleration. If the Guaranty Obligations are
outstanding or remain in effect, (x) neither the Maker nor any other person
may pay this Note until 15 days after the Administrative Agent has received
notice of such acceleration, and (y) in any event, neither Maker nor any
other person may pay this Note so long as any Subordination Event shall have
occurred and shall be continuing in effect.
(b) At any time after this Note is declared due and payable, as
provided above, the holders of 66-2/3% of the aggregate principal amount of
this Note and all other notes issued pursuant to the Commitment Letter then
outstanding, by written notice to the Maker, may rescind and annul any such
declaration in respect of this Note and its consequences if (i) the Maker has
paid all overdue interest on this Note, and (ii) all Sub Debt Events of
Default (as defined herein), other than non-payment of amounts which have
become due solely by reason
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of such declaration, have been cured or waived by such holders; PROVIDED,
that no such rescission and annulment shall extend to or affect any
subsequent Sub Debt Event of Default or impair any right consequent thereon.
(c) Upon the occurrence of (i) a Company Sale or (ii) the
Maturity Date, the Maker shall repay in full the principal amount of the
Subordinated Indebtedness, together with all accrued interest thereon, and
notwithstanding that any Guaranty Obligations remain in effect on such
repayment date, and notwithstanding the provisions of Section 4, such
repayment shall be made unless (x) a Bankruptcy Event has occurred or (y) the
maturity of the Bank Indebtedness has been accelerated, in either of which
case, any and all such repayments shall be subject to Section 4.
6. UNSECURED NOTE. This Note is not secured by a security interest in
any assets.
7. DEFAULT RATE. After the occurrence and during the continuance of a
Sub Debt Event of Default (as defined below), in addition to all other rights
and remedies, the outstanding principal balance of this Note (and to the
extent permitted by applicable law, all unpaid interest) shall bear interest
at a rate equal to fifteen percent (15%) per annum, or such lesser rate which
is the maximum rate of interest permitted by law. A "Sub Debt Event of
Default" shall occur if:
(a) default shall be made in the payment of any amount of interest
on this Note when due (without giving effect to any grace period) and such
default shall continue for a period of five days after the Holder shall have
sent the Maker written notice of such default; or
(b) default shall be made in the payment of any amount of
principal due under this Note, when due; or
(c) a Subordination Event shall have occurred and be continuing; or
(d) the Maker shall apply for or consent to the appointment of a
custodian, receiver, trustee or liquidator, or other court-appointed
fiduciary of all or a substantial part of its properties; or such a
custodian, receiver, trustee or liquidator or other court-appointed fiduciary
shall be appointed with or without the consent of the Maker; or the Maker is
generally not paying its debts as they become due by means of available
assets or is insolvent, or makes a general assignment for the benefit of
creditors; or the Maker files a voluntary petition in bankruptcy, or a
petition or an answer seeking reorganization or arrangement with creditors or
seeking to take advantage or any insolvency law, or an answer admitting the
material allegations of a petition in any bankruptcy, reorganization or
insolvency proceeding or has taken action for the purpose of effecting any of
the foregoing; or within 60 days after the commencement of any proceeding
against the Maker seeking any reorganization, rehabilitation, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
the U.S. Bankruptcy
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Code or any comparable state law or any successor law or the appointment of
any trustee, receiver, custodian, liquidator, or other court-appointed
fiduciary of the Maker or of all or any substantial part of its properties,
such order or appointment shall not have been vacated or stayed on appeal or
otherwise or if, within 60 days after the expiration of any such stay, such
order or appointment shall not have been vacated.
8. CONVERSION.
(a) Until this Note has been paid in full, the unpaid principal
balance of this Note, or any portion thereof, may be converted, at the option
of Holder, into a number of fully paid and nonassessable shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), equal
to (i) that portion of the unpaid principal balance of this Note being
converted, divided by (ii) $2.375, subject to adjustment as provided herein
(the "Conversion Price"); PROVIDED, HOWEVER, that in lieu of any fractional
share of the Company's Common Stock that would otherwise be issued to Holder
pursuant to this Section, Holder shall receive one share of the Company's
Common Stock for such fractional share.
(b) The conversion of this Note into Common Stock may be effected
at any time, on any business day prior to payment, and thereupon the
indebtedness owed under this Note, with respect to the unpaid principal
balance of this Note which has been converted, shall be extinguished.
(c) The Company shall at all times reserve and keep available for
issuance upon the conversion of the unpaid principal balance, or any portion
thereof, of this Note such number of its authorized but unissued shares of
Common Stock as will be sufficient to permit the conversion in full of the
principal amount of this Note.
(d) The number of shares of Common Stock, or the type of
securities, receivable upon conversion of this Note shall be adjusted or
amended as follows:
(i) In case of any reorganization of the Company (or any other
corporation, the stock or other securities of which are at the time
receivable on the conversion of this Note) after July 28, 1998 (the "Issue
Date"), or in case, after such date, the Company (or any such other
corporation) shall consolidate with or merge into another corporation
(other than the merger of a wholly owned subsidiary into the Company) or
convey all or substantially all its assets to another corporation, then and
in each such case Holder, upon the conversion hereof at any time after the
consummation of such reorganization, consolidation, merger or conveyance,
shall be entitled to receive, in lieu of the stock receivable upon the
conversion of this Note prior to such consummation, the stock or other
securities or property to which Holder would have been entitled upon such
consummation if Holder had converted this Note immediately prior thereto.
(ii) If the Company at any time or from time to time after the
Issue Date makes, or fixes a record date for the determination of holders
of Common Stock entitled to receive, a dividend payable in additional
shares of Common Stock, then and in each such event the Conversion Price
then in effect shall be decreased as of the time of such issuance
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or, in the event such record date is fixed, as of the close of business on
such record date, by multiplying the Conversion Price then in effect by a
fraction (1) the numerator of which is the total number of shares of Common
Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date, and (2) the denominator of
which shall be the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date plus the number of shares of Common Stock
issuable in payment of such dividend; provided, however, that if such
record date is fixed and such dividend is not fully paid on the date fixed
therefor, the Conversion Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Conversion Price
shall be adjusted pursuant to this subparagraph (ii) as of the time of
actual payment of such dividends.
(iii) If the Company at any time or from time to time after
the Issue Date effects a subdivision of the outstanding Common Stock, the
Conversion Price then in effect immediately before that subdivision shall
be proportionately decreased and the number of shares of Common Stock
theretofore receivable upon the conversion of this Note shall be
proportionately increased. If the Company at any time or from time to time
after the Issue Date combines the outstanding shares of Common Stock into a
smaller number of shares, the Conversion Price then in effect immediately
before that combination shall be proportionately increased and the number
of shares of Common Stock theretofore receivable upon the conversion of
this Note shall be proportionately decreased. Each adjustment under this
subparagraph (iii) shall become effective at the close of business on the
date the subdivision or combination becomes effective.
(iv) In each case of an adjustment in the shares of Common Stock
receivable on the conversion of this Note, the Company at its expense shall
cause independent public accountants of recognized standing selected by the
Company (who may be the independent public accountants then auditing the
books of the Company) to compute such adjustment in accordance with the
terms of this Note and prepare a certificate setting forth such adjustment
and showing the facts upon which such adjustment is based. The Company
will forthwith mail a copy of each such certificate to Holder.
(e) The Company will not, by amendment of its certificate of
incorporation or through reorganization, consolidation, merger, dissolution,
issue or sale of securities, sale of assets or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this Note, but will at all times in good faith assist in the carrying out of
all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Note against
impairment. Without limiting the generality of the foregoing, the Company
will take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares
of Common Stock upon the conversion of the unpaid principal balance of this
Note at the time outstanding.
(f) In case (A) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time receivable upon
the conversion of the unpaid principal balance of this Note) for the purpose
of entitling them to receive any dividend or other distribution, or any right
to subscribe for or purchase any shares of stock of any class or any other
securities, or
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to receive any other right, or (B) of any Company Sale, or (C) of any
voluntary dissolution, liquidation or winding-up of the Company, then, and in
each such case, the Company will mail or cause to be mailed to Holder a
notice specifying, as the case may be, (i) the date on which a record is to
be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such dividend, distribution or right, or (ii) the
date on which such Company Sale is to take place, and the time, if any is to
be fixed, as of which the holders of record of Common Stock (or such stock or
securities at the time receivable upon the conversion of the unpaid principal
balance of this Note) shall be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other property
deliverable upon such Company Sale, or (ii) the effective date of any such
voluntary dissolution, liquidation or winding-up of the Company. Such notice
shall be mailed at least 30 days prior to the date therein specified.
9. USE OF PROCEEDS. The Company shall use the proceeds of this Note
for working capital and general corporate purposes.
10. COLLECTION COSTS. The Maker shall pay the Holder the reasonable
attorneys' fees and costs incurred to collect the unpaid principal balance
and interest owing on this Note and otherwise to enforce the Holder's rights
and remedies under this Note.
11. MODIFICATIONS; WAIVERS. Subject to subsection (b) below, (a) this
Note may not be amended, modified, extended, discharged or waived orally or
by course of conduct, except by an agreement in writing, signed by the party
against whom enforcement of any amendment, modification, extension,
discharge, or waiver is sought; A waiver of any provision of this Note or of
any breach thereof shall not be deemed or construed as a general waiver of
such provision or any other provision hereof or of any rights hereunder; No
failure or delay in exercising any right or remedy hereunder operates as a
waiver thereof; No single or partial exercise of any right or remedy
hereunder precludes any other or further exercise of any right or remedy
hereunder and the exercise of any right or remedy hereunder does not preclude
the simultaneous or later exercise of any other rights or remedies available
at law or in equity.
(a) Notwithstanding anything to the contrary herein, each of the
parties hereto acknowledges and agrees that certain of the provisions
contained herein (including the subordination provisions of Section 4 hereof)
are solely for the benefit of the Lender Parties and their representatives,
assignees and beneficiaries, and this Note may not be rescinded, cancelled,
amended or modified in any way, and this Note may not be assigned, sold,
pledged as security or otherwise transferred nor may any provision of this
Note be waived or changed, nor may the indebtedness evidenced hereby be
cancelled, compromised or discharged in whole or in part, in each case,
without the prior written consent thereto of, so long as the Guaranty
Obligations shall remain in effect, the Administrative Agent (on behalf of
the Lender Parties), provided that such consent shall not be unreasonably
withheld in connection with an assignment to the Holder's spouse or children
or trusts for the benefit of the Holder's spouse, children or more remote
descendants of such persons.
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12. HEADINGS. All headings in this Note are for convenience of reference
only and do not affect the meaning of any provision.
13. PARTIAL INVALIDITY. If any provision of this Note is at any time held
to be invalid by any court of competent jurisdiction, such invalidity shall not
effect the remaining provisions of this Note, which shall continue to be in full
force and effect.
14. NO THIRD PARTIES BENEFITTED. The provisions contained in this Note
are solely for the benefit of Maker, Xxxxxx and Lender Parties and their
respective successors and permitted assignees, and no other person or entity,
including, without limitation, any guarantor of the obligations of Maker or a
trustee in bankruptcy, is intended to be a third party beneficiary hereunder, or
to have any right, remedy, claim, benefit, priority or interest under (or
because of the existence of), or shall have any right to enforce, this Note.
15. WAIVERS. The Maker hereby waives presentment, demand for payment,
protest, notice of protest and notice of dishonor of this Note. The Maker
hereby further waives any claim, right or remedy, direct or indirect, that
Maker may now or hereafter have to enforce the subordination provisions
contained herein against Holder, in each case whether any such claim, right
or remedy arises in equity, by contract or statute, under common law or
otherwise and based on any claim, right or remedy whatsoever, including,
without limitation, (a) any right of subrogation, reimbursement or
indemnification that Maker may now or hereafter have against Borrower, (b)
any claim or right to enforce, or participate in, any claim, right or remedy
which the Lender Parties may now or hereafter have against Borrower, and (c)
any benefit of, or any right to participate in, any collateral or security
for the benefit of Lender Parties.
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16. GOVERNING LAW. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
MAKER:
AEGIS COMMUNICATIONS GROUP, INC.
By:
-----------------------------------
An Authorized Officer
The terms and conditions set forth in this Convertible
Promissory Note are acknowledged, understood and accepted.
-----------------------------------
By:
--------------------------------
An Authorized Person
THE BANK OF NOVA SCOTIA,
as Administrative Agent for Lenders under the Credit
Agreement (as such terms are defined in the foregoing
Convertible Promissory Note)
By:
--------------------------------
An Authorized Person
13