AMENDED AND RESTATED
SECURED PROMISSORY NOTE
Secured by Security Agreement
$3,857,911 March 31,
2000
For value received, the undersigned, Electronic Transactions &
Technologies, a Nevada corporation, and Xxxxxx X. Xxxxxx
(collectively, "Obligor"), hereby promise to pay to eConnect, a
Nevada corporation ("Obligee"), as such place or to such other
party or parties or order as Obligee may from time to time
designate, the principal sum of Three Million Eight Hundred
Fifty-Seven Thousand Nine Hundred Eleven Dollars ($3,857,911)
with interest at the legal rate of ten percent (10%) annually
beginning July 1, 1999 (March 31, 2000 for the sum of One Million
Twenty-One Thousand Five Hundred Dollars ($1,021,500)). This
promissory note ("Note"), including principal and interest, shall
be paid in full upon demand. All payments hereunder shall be
made in cash or cash equivalent funds immediately available and
acceptable to Obligee, made payable to eConnect, 2500 Xxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000,
delivered personally or in the United States mail by certified or
registered letter.
Obligor acknowledge that any default in the making or performing
of any of the payments, agreements or conditions of this Note, or
any other agreement or instrument now or hereinafter entered into
among Obligor and Obligee hereunder, will result in loss and
additional expenses to Obligee in servicing the indebtedness
evidenced hereby, handling such delinquent payments and meeting
their other financial obligations.
In the event of the failure to make full payment when due under
the terms of this Note, the Obligee may declare the entire
principal balance and accrued interest due and payable
immediately. As an alternative, Obligor shall return to Obligee
restricted stock certificates totaling 9,400,000 shares of common
stock of Obligee in the event of such failure. Obligor hereby
waive to the fullest extent allowable, any and all defenses,
offsets or counterclaims with regard to any action by Obligee for
reinforcement of this Note, including the defense of expiration
of the statute of limitations. The only issue in any such action
shall be that of payment or nonpayment hereunder and any such
action shall be so limited. No portion of this Note, or payment
hereunder, shall be subject to offset or refund by reason of any
claims of Obligor.
This Note is made in conjunction with that certain security
agreement by and between Obligor and Obligee ("Security
Agreement") and reference to the Security Agreement herein is
made for informational purposes only and in accordance with the
provisions of Section 3105(1)(c) and 3105(1)(e) of the California
Commercial Code ("Code"). Any default under the Security
Agreement or any other agreement now existing or hereinafter
entered into by and between Obligor and Obligee shall be a breach
hereunder and constitute a default allowing Obligee to accelerate
this Note. The above acceleration provision is made in
accordance with Section 3109(1)(c) of the Code. Notwithstanding
the foregoing, Obligor's promise to pay hereunder is an
unconditional promise to pay to Obligee a sum certain in money on
demand or at a definite time which does not include any other
demand or at a definite time which does not include any other
promise, obligation or power given by Obligor (except as
otherwise authorized by Division 3 of the Code) all in accordance
with the provisions of Section 3104 of the Code. This Note is
intended to constitute a negotiable instrument as defined in the
Code.
If this Note, or any payment or charge hereunder, is not paid
when due, whether at maturity or by acceleration or otherwise, or
should any controversy arise hereunder necessitating legal,
equitable or administrative action, Obligor promises to pay all
costs of collection in such action, including, but not limited
to, attorneys' fees and costs.
Obligor expressly waives presentment, protest and demand, notice
of protest, demand and dishonor and nonpayment of this Note and
all other notices of any kind, and expressly agree that this
Note, or any payment thereunder, may be extended from time to
time without affecting the liability of Obligor. No single or
partial exercise of any power hereunder, if any, shall preclude
any other or further exercise thereof or the exercise of any
other power. The release of any party liable under this Note
shall not operate to release any other party liable thereon.
Obligee expressly declares that Obligee may rely upon the
ostensible authority of the persons signing this Note to be
binding upon Obligor in all respects.
All agreements between Obligor and Obligee are expressly limited
so that in no contingency or event whatsoever, whether by
acceleration of maturity of the unpaid principal balance hereof
or otherwise, shall the amount, if any, paid or agreed to be paid
to Obligee or the use, forbearance or detention of the money to
be advanced hereunder, exceed the highest lawful rate permissible
under applicable usury laws. If, for any circumstances
whatsoever, fulfillment of any provision hereof at the time
performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a
court of competent jurisdiction may deem applicable thereto, the
ipso facto, obligation to be fulfilled shall be reduced to the
limit of such validity, and if from any circumstances, Obligee
shall ever receive an amount which would be excessive interest,
the same shall be applied to the reduction of the unpaid
principal balance due hereunder and not to the payment of
interest. This provision shall control every other provision of
all agreements between the undersigned and Obligee.
This Note has been executed and delivered in the State of
California and is to be governed by and construed according to
the laws thereof. Venue in any action arising shall lie in the
County of Los Angeles, California.
Obligor:
Electronic Transactions & Technologies
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, an individual
Obligee:
eConnect
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
