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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$20,000,000.00 September 30, 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 twenty million ($20,000,000.00) 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) November
30, 2002, if on or prior to such date, neither Borrower nor Guarantors have
received a loan for a period of 12 months in the amount of at least
US$5,000,000.
Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Loan Agreement, dated as of the date hereof,
between the Borrower, the Lender, Phone1Globalwide, Inc. ("Global") and
Globaltron Communications Corporation ("GCC" and together with Global, the
"Guarantors").
The Borrower shall pay interest in respect of the unpaid
principal amount of the Loan from the date hereof until the Repayment Date
(whether by acceleration or otherwise) at a rate per annum which shall be equal
to the Interest Rate in effect from time to time plus 2%. If principal or
interest on the Loan is not paid when due, thereafter the Borrower shall pay
interest in respect of the unpaid principal amount of the Loan 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 Loan shall be
payable (i) monthly in arrears commencing on October 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 the Loan and the Note have not been fully paid) to
convert the Loan and the 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 and interest accrued thereon under
the Note that the Lender elects to convert divided by the Per Share Price. 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 the
Loan and the 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.
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
