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EXHIBIT 10.16
LOAN EXTENSION AND MODIFICATION AGREEMENT
THIS LOAN EXTENSION AND MODIFICATION AGREEMENT is made and entered into
as of the 10th day of December, 1999, by and among xxxxxxx.xxx, inc., a Georgia
corporation (the "Borrower"), Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxx, Xx., each of
whom is a resident of the State of Georgia (each an "Founder Lender" and
together, the "Founder Lenders"), and db Telecom Technologies, Inc., a Georgia
corporation with its principal office in Gainesville, Georgia (the "db Lender"
and together with the Founder Lenders, the "Lenders").
RECITALS:
WHEREAS, the Founder Lenders made a loan to the Borrower in the
original principal amount of Six Hundred Eighteen Thousand Five Hundred
Forty-Nine Dollars ($618,549) and the db Lender made a loan to the Borrower in
the original principal amount of Two Hundred Seventy Thousand One Hundred
Eighty-Eight Dollars ($270,188) (collectively, the "Loans"), both of which are
evidenced by a letter agreement dated April 6, 1999 and subsequently amended by
further letter agreements on each of December 4, 1996, May 5, 1999 and August
10, 1999 (collectively, the "Loan Agreement");
WHEREAS, the Borrower and the Lenders have agreed to extend the
maturity dates of the Loans as described in this Agreement; and
WHEREAS, the Borrower, and the Lenders desire to modify the terms of
the Loan Agreement to evidence the extension of the maturity dates and to
require the Borrower to make certain other promises with respect to the Loans;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein, the agreement of the Lenders to extend the maturity
dates of the Loans, and the sum of Ten and No/100 Dollars ($10.00), paid in hand
by each party to the other, the receipt, adequacy, and sufficiency of all of
which are hereby acknowledged, the parties agree as follows:
1. Extension of Maturity Date. The Loan Agreement is hereby modified by
substituting April 30, 2000 (the "Extended Maturity Date") for the maturity date
set forth in the Loan Agreement, with the effect that the entire principal
balance of the Loans outstanding on the Extended Maturity Date, together with
all accrued and unpaid interest thereon, shall be due and payable on the
Extended Maturity Date.
2. Outstanding Amounts Owed Founder Lenders. The Borrower and the
Founder Lenders hereby acknowledge and agree that the outstanding principal
balance of the Loan between them as of the date of this Agreement is $618,549.
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3. Outstanding Amounts Owed db Lender. The Borrower and the db Lender
hereby acknowledge and agree that the outstanding principal balance of the Loan
between them as of the date of this Agreement is $270,188.
4. Effect of Modification on Loan Agreement. The Loan Agreement, as
modified by this Agreement, remains in full force and effect in accordance with
its terms, and the Lenders and the Borrower hereby ratify and confirm the same.
The Borrower acknowledges that it is fully obligated under the terms of the Loan
Agreement.
5. Repayment of Short-Term Debt. The parties hereto hereby acknowledge
that the Borrower shall use a portion of the net proceeds of the sale of the
Borrower's Series 1999 Convertible Notes to repay the $140,000 loaned to the
Borrower by Xxxxxx X. Xxxxxx in November 1999 to finance the short term
liquidity needs of the Borrower, as evidenced by a Promissory Note between Xx.
Xxxxxx and the Borrower dated November 9, 1999.
6. Successors and Assigns. This Agreement shall bind each party hereto
and his or its heirs, executors, administrators, legal representatives,
successors, and assigns and shall inure to the benefit of, and be enforceable
by, each party hereto and his, its or their successors and assigns, including,
without limitation, each and every person who shall from time to time be or
become the holder of any of the Loan Documents.
7. Notices. Notices under this Agreement shall be given in writing and
shall be deemed served at the earlier of (a) receipt, (b) five (5) days after
deposit in the United States mail, sent certified or registered mail, return
receipt requested, postage prepaid, or (c) upon transmission via facsimile
machine, and addressed to the parties at the following addresses, or at such
other addresses as the parties shall designate in writing:
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If to the Founder Lenders:
Xxxxxx X. Xxxxxx
db Telecom Technologies, Inc.
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx X-0
Xxxxxxxxxxx, Xxxxxxx 00000
Xxxxx X. Xxxxx, Xx.
Yonah Manufacturing Company
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to the db Lender:
db Telecom Technologies, Inc.
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx X-0
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: President
If to the Borrower:
xxxxxxx.xxx, inc.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Personal delivery to a party or to any officer, partner, agent, or employee of
such party at its address herein shall constitute receipt. Rejection or other
refusal to accept or inability to deliver because of changed address of which no
notice has been received also shall constitute receipt.
8. Amendment. This Agreement may be terminated, amended, supplemented,
waived, released or modified only by an instrument in writing signed by the
party against whom the enforcement of the termination, amendment,
supplementation, waiver, release, or modification is sought.
9. Governing Law. This Agreement shall be deemed to be a contract made
under, and for all purposes shall be governed by and construed in accordance
with, the internal laws of the State of Georgia.
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10. Multiple Counterparts; Pronouns; Captions; Severability. This
Agreement may be executed in multiple counterparts (including by facsimile),
each of which shall be deemed an original but all of which shall constitute but
one and the same document. Captions are for reference only and in no way limit
the terms of this Agreement. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but invalidation of any one or more of the provisions of this
Agreement shall in no way affect any of the other provisions hereof, which shall
remain in full force and effect.
IN WITNESS WHEREOF, the Borrower, the Lenders, the db Lender have
executed and sealed this Loan Extension and Modification Agreement as of the day
and year first above written.
BORROWER:
xxxxxxx.xxx, inc.
[CORPORATE SEAL]
By: /s/ X. Xxxx Xxxxxx, CEO
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Name and Title: X. Xxxx Xxxxxx, CEO
LENDERS:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
db LENDER:
db Telecom Technologies, Inc.
[CORPORATE SEAL]
By: /s/Xxxxxx X. Xxxxxx
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Name and Title: Xxxxxx X. Xxxxxx
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