New York, New York
August 7, 2000
$13,000,000.00
Borrowers: Gold & Appel Transfer, S.A., Revision LLC and
Walter C. Anderson, jointly and severally
1. Promise to Repay; Payments of Principal and Interest. Gold & Appel
Transfer, S.A., a corporation duly organized and existing under the laws of
the British Virgin Islands ("Gold & Appel"), Revision LLC, a limited liability
company duly organized and existing under the laws of the State of Delaware
("Revision"), and Walter C. Anderson, an individual ("Anderson") (each of
"Gold & Appel," "Revision" and "Anderson" referred to herein, individually, as
a "Borrower" and, collectively, as the "Borrowers"), for value received,
hereby jointly and severally promise to pay to the order of Donald A. Burns
(the "Lender") the principal amount of $13,000,000.00 on March 1, 2001 (the
"Maturity Date"), with interest (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid balance of such principal amount at the
rate of 18% per annum from the date hereof, payable on the Maturity Date, and
with interest on any overdue principal and (to the extent permitted by
applicable law) on any overdue interest, at the rate of 20% per annum until
paid, payable on demand. Payments of principal of and interest on this Note
shall be made in lawful money of the United States of America at the office of
the Lender, 450 Royal Palm Way, Suite 450, Palm Beach, FL 33480, or at such
other office as the Lender shall have designated by written notice to the
Borrowers.
2. Defined Terms. The following capitalized terms are used herein with
the respective meanings set forth below:
Borrowers: has the meaning set forth in Section 1 hereof.
Business Day: a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close.
Closing Date: means August 7, 2000.
Collateral: has the meaning ascribed to such term in the Stock Pledge
Agreement.
Contractual Obligations: as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
Default: any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
Event of Default: any of the events specified in Section 7, provided that any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
Excluded Taxes: means, with respect to the Lender, (a) income taxes imposed
on (or measured by) his net income by the United States of America (or its
political subdivision or taxing authority therein or thereof) and (b) any
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other taxes imposed as a result of the Lender's present or former connection
with the jurisdiction imposing such taxes (other than a connection arising
solely from the transactions contemplated hereby and by the Stock Pledge
Agreement).
Financing Lease: any lease of property, real or personal, the obligations of
the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
GAAP: generally accepted accounting principles in the United States of
America in effect from time to time.
Governmental Authority: means the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to
government.
Indemnified Taxes: Taxes other than Excluded Taxes.
Issuer: has the meaning ascribed to such term in the Stock Pledge Agreement.
Lender: has the meaning set forth in Section 1 hereof.
Lien: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security arrangement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement and any Financing
Lease having substantially the same economic effect as any of the foregoing).
Loan: the loan by the Lender to the Borrowers in the aggregate principal
amount of $13,000,000.00, the repayment and other obligations with respect to
which are the subject matter of this Note.
Material Adverse Effect: a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of any
Borrower and its Subsidiaries, if any, taken as a whole, or (b) the validity
or enforceability of this Note or the Stock Pledge Agreement or the rights or
remedies of the Lender hereunder or thereunder.
Maturity Date: has the meaning set forth in Section 1 hereof.
Other Taxes: means any and all present or future recording, stamp,
documentary, excise, transfer, sale or similar taxes, charges or levies
arising solely from any payment made under the Note or the Stock Pledge
Agreement or from the execution, delivery or enforcement of the Note or the
Stock Pledge Agreement.
Person: natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
Requirements of Law: as to any Person, the certificate of incorporation and
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by-laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
Stock Pledge Agreement: that certain Stock Pledge Agreement, dated as of even
date herewith, by and among Gold & Appel Transfer S.A., Revision LLC,
Foundation for the International Non-governmental Development of Space and
Walter C. Anderson, as pledgors, and Donald A. Burns, as pledgee.
Subsidiary: as to any Person, a corporation, partnership or other entity of
which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only be reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both
by such Person.
Taxes: means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
3. Prepayments. Borrowers may prepay the principal balance due under
this Note, in whole but not in part, at any time without penalty or premium,
together with the interest accrued thereon to the date of such prepayment.
4. Use of Proceeds. The Borrowers will use the proceeds derived by it
from the Loan for the following purposes: (i) approximately $12 million will
be used to make a loan to NETtel Communications, Inc. and (ii) approximately
$1 million will be used to fund working capital needs of the Borrowers.
5. Post-Closing Conditions. The Borrowers hereby agree to take the
following actions, or cause the Issuer or other relevant Persons to take the
following actions, by no later than August 15, 2000:
(a) Corporate Proceedings of Borrowers and Issuer. With respect to each
Borrower that is a corporation, limited liability company or similar entity,
the Lender shall be provided with a copy of the resolutions (or comparable
authorizing document), in form and substance satisfactory to the Lender, of
the Board of Directors (or comparable governing body) of each such Borrower
authorizing and ratifying (i) the execution, delivery and performance of this
Note and the Stock Pledge Agreement and (ii) the granting by it of the Liens
created pursuant to the Stock Pledge Agreement, certified by the Secretary or
an Assistant Secretary (or comparable officer) of such Borrower, which
certificate shall be in form and substance reasonably satisfactory to the
Lender and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded and were in effect as of the Closing
Date. With respect to the Foundation for the International Non-governmental
Development of Space ("FINDS"), the Lender shall be provided with a copy of
the resolutions of the Board of Directors (or comparable governing body) of
FINDS authorizing and ratifying the execution, delivery and performance of the
Stock Pledge Agreement, certified by the Secretary or Assistant Secretary of
FINDS, which certificate shall be in form and substance reasonably
satisfactory to the Lender and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded and were in
effect as of the Closing Date. With respect to the Issuer, the Lender shall
be provided with a copy of the resolutions of the Board of Directors of the
Issuer authorizing and ratifying the execution, delivery and performance of
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the Stock Pledge Agreement to the extent set forth in the Stock Pledge
Agreement, certified by the Secretary or Assistant Secretary of the Issuer,
which certificate shall be in form and substance reasonably satisfactory to
the Lender and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded and were in effect as of the
Closing Date.
(b) Incumbency Certificates. The Lender shall be provided with a
certificate of the Issuer and of each Borrower that is a corporation, limited
liability company or similar entity as to the incumbency and signature of the
officers of such Borrower or Issuer executing the Note or the Stock Pledge
Agreement reasonably satisfactory in form and substance to the Lender,
executed by the President or any Vice-President (or similar officer) and the
Secretary or any Assistant Secretary (or similar officer) of such Borrower or
Issuer.
(c) Legal Opinions. The Lender shall be provided with legal opinions of
counsel to the Borrowers and of counsel to the Issuer, each in form and
substance reasonably satisfactory to the Lender.
(d) Signature Guaranties. To the extent that any stock power provided to
the Lender does not contain a signature guaranty at the time that it is
delivered to the Lender, the Lender shall be provided with replacement stock
powers containing a signature guaranteed by a participant of the Securities
Transfer Agents Medallion Program or another approved signature guaranty
program acceptable to the Securities and Exchange Commission, the Securities
Transfer Association and the transfer agent of the Issuer.
6. Covenants of Borrowers. The Borrowers hereby agree that, so long as
the Note remains outstanding and unpaid or any other amount is owing to the
Lender hereunder or under the Stock Pledge Agreement, each Borrower shall:
(a) Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its material obligations of
whatever nature.
(b) In the case of each Borrower that is a corporation, limited liability
company or other similar entity, continue to engage in business primarily of
the same general types as now conducted by it, and preserve, renew and keep in
full force and effect the corporate, limited liability company or other
existence of such Borrower; and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, and comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to maintain such rights, privileges
and franchises and to comply with Contractual Obligations and Requirements of
Law could not, in the aggregate, be reasonably expected to have a Material
Adverse Effect.
(c) Promptly give notice to the Lender of: (i) the occurrence of any Default
or Event of Default; (ii) any default or event of default under any
Contractual Obligation of any Borrower or any Subsidiaries of any Borrower
which if not cured could reasonably be expected to have a Material Adverse
Effect; (iii) any litigation, investigation or proceeding affecting any
Borrower or any Subsidiaries of any Borrower (A) which is reasonably likely to
involve a payment of $250,000 or more not covered by insurance, (B) in which
injunctive or similar relief reasonably likely to have a Material Adverse
Effect is reasonably likely to be obtained or (C) which if not cured or if
adversely determined, as the case may be, could reasonably be expected to have
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a Material Adverse Effect; and (iv) any development or event known to any
Borrower which could reasonably be expected to have a Material Adverse Effect.
(d) At any time and from time to time, upon the Lender's request and at the
expense of the Borrowers, promptly and duly execute and deliver or cause to be
executed and delivered any and all further instruments and documents and take
such further action as the Lender may reasonably request to effect the purpose
of the Stock Pledge Agreement.
7. Events of Default and Remedies. If any of the following events shall
occur and be continuing:
(a) The Borrowers shall fail to pay any principal of or interest on the Note
when due in accordance with the terms hereof; or the Borrowers shall fail to
pay any other amount payable hereunder or under the Stock Pledge Agreement
within three Business Days after any such other amount becomes due in
accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Borrower in the
Stock Pledge Agreement or which is contained in any certificate, document or
statement furnished by any Borrower under or in connection with this Note or
the Stock Pledge Agreement shall prove, either individually or in the
aggregate, to have been incorrect or misleading in any material respect on or
as of the date made or deemed made; or
(c) Any Borrower shall default in the observance or performance of any
covenant or other agreement contained in this Note or in the Stock Pledge
Agreement (including, without limitation, the satisfaction of any post-closing
condition set forth in Section 5 of this Note); or
(d) Any Borrower shall fail to pay any of the Secured Obligations (as defined
in and set forth in the Stock Pledge Agreement) when the same shall become due
and payable; or
(e) Any Borrower shall (i) default in any payment of principal of or interest
on any indebtedness (other than the loan that is the subject of this Note) or
in the payment of any guarantee obligation, aggregating $250,000 or more,
beyond the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such indebtedness or guarantee obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition following any applicable grace periods relating to any
indebtedness or guarantee obligation referred to in clause (i) immediately
above or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or holders of any indebtedness referred to in clause (i)
immediately above or beneficiary or beneficiaries of such guarantee obligation
referred to in clause (i) immediately above (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice, lapse of time or both, if required, such indebtedness to
become due prior to its stated maturity or such guarantee obligation to become
payable, provided, however, that if the default described in this clause (e)
is cured, the Event of Default under this clause (e) shall simultaneously be
cured; or
(f) One or more judgments or decrees shall be entered against any Borrower
involving in the aggregate (for such Borrower or for all Borrowers combined) a
liability (to the extent not paid or covered by insurance less any applicable
and customary retention or deductible) of $250,000 or more, and all such
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judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(g) (i) The Stock Pledge Agreement shall cease, for any reason, to be in full
force and effect (other than pursuant to the terms hereof or thereof), or any
Borrower shall so assert in writing or (ii) the Lien created by the Stock
Pledge Agreement on any material portion of the Collateral shall cease to be
enforceable and of the same effect and priority purported to be created
thereby and, if such condition is correctable, such condition is not corrected
within 30 days;
(h) (i) Any Borrower shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or any Borrower shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Borrower any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for relief
or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against any Borrower any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) any Borrower shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) any Borrower shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts
as they become due; then, and in any such event the principal of, and all
accrued interest on, this Note, and all other amounts owing under this Note or
the Stock Pledge Agreement, shall immediately become due and payable upon
written demand of the Lender.
8. Tax Indemnification. (a) Any and all payments by or on account of any
obligation of the Borrowers hereunder or under the Stock Pledge Agreement
shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if any Borrower shall be required to
deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions of Indemnified Taxes and Other Taxes (including deductions
applicable to additional sums payable under this Section) the Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the relevant Borrower shall make such deductions and (iii) the
relevant Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
governmental or taxing authority in accordance with applicable law.
(c) The Borrowers hereby indemnify the Lender for the full amount of any
Indemnified Taxes or Other Taxes paid by the Lender on or with respect to any
payment by or on account of any obligation of the Borrowers hereunder or under
the Stock Pledge Agreement (including Indemnified Taxes or Other Taxes imposed
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or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority, unless
such penalties, interest or expenses are incurred solely as a result of any
gross negligence or willful misconduct of the Lender. A certificate setting
forth in reasonable detail the amount of such payment or liability and the
reasonable basis of such payment or liability delivered to the Borrowers by
the Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver
to the Lender the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Lender.
9. Governing Law. This Note shall be construed and enforced in accordance
with and governed by the internal laws of the State of New York without
reference to principles of conflicts of law, including all matters of
construction, validity and performance.
10. Amendments, Etc. Any amendment, modification or waiver of any term or
provision of this Note must be in writing and signed by the Lender. Any such
waiver will be effective only in the specific instance and for the specific
purpose for which it is given.
11. Successors and Assigns. All the covenants, stipulations, promises and
agreements contained in this Note by or on behalf of the Borrowers shall bind
their respective successors and assigns, whether so expressed or not.
12. Headings. The headings of the sections and paragraphs of this Note
are for purposes of reference only and shall not limit or define the meaning
hereof.
13. Submission to Jurisdiction; Waiver of Immunity; Agent for Service of
Process. For the purpose of assuring that the Lender may enforce its rights
under this Note, each Borrower, for itself and its successors and assigns,
hereby irrevocably (a) agrees that any legal or equitable action, suit or
proceeding against any Borrower arising out of or relating to this Note or any
transaction contemplated hereby or the subject matter of any of the foregoing
may be instituted, at the election of the Lender, in any state or federal
court in the State of Virginia (including, without limitation, the U.S.
Federal District Court for the Eastern District of Virginia) or in any state
or federal court in the State of Florida, (b) waives any objection which it
may now or hereafter have to the venue of any action, suit or proceeding, (c)
irrevocably submits itself to the nonexclusive jurisdiction of any state or
federal court of competent jurisdiction in the State of Virginia or the State
of Florida, and (d) irrevocably waives any immunity from jurisdiction to which
it might otherwise be entitled in any such action, suit or proceeding which
may be instituted in any state or federal court of the State of Virginia or
the State of Florida, and any immunity from the maintaining of an action
against it to enforce any judgment for money obtained in any such action, suit
or proceeding and, to the extent permitted by applicable law, any immunity
from execution. Not later than August 15, 2000, each Borrower shall
irrevocably designate and appoint CT Corporation System (or any successor
corporation), at its office in Virginia and its office in Florida, as its
authorized agent to accept and acknowledge on its behalf service of any and
all process which may be served in any such action, suit or proceeding with
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respect to any matter as to which it has submitted to jurisdiction as set
forth in this Section 13 and agrees that service upon such authorized agent
shall be deemed in every respect service of process upon such Borrower or its
successors or assigns, and, to the extent permitted by applicable law, shall
be taken and held to be valid personal service upon it. Each Borrower will
take all action necessary to ensure that such Borrower shall at all times have
an agent for service of process for the above purposes in the State of
Virginia and the State of Florida. This Section 13 does not affect the right
of the Lender to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against any Borrower in any
jurisdiction.
14. Notices, Etc. All notices and other communications provided for
hereunder must be in writing (including telegraphic, telex, telecopy or cable
communication) and must be sent (a) if to any Borrower, at its address set
forth below, (b) if to Lender, at 450 Royal Palm Way, Suite 450, Palm Beach,
FL 33480, Telephone: 561-655-7550, Facsimile: 561-655-9692, or (c) as to each
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications are
effective when received.
The notice addresses for the respective Borrowers are as follows:
(a) If to Gold & Appel:
Omar Hodge Building
Wickams Cay
Road Town, Tortolla
British Virgin Islands
with copies to:
Sean P. McGuinness
Swidler Berlin Shereff Friedman, LLP
3000 K Street NW
Washington, D.C. 20007-5116
Facsimile: 202-424-7643
and
Walter C. Anderson
Revision LLC
1023 31st Street, NW
Suite 300
Washington, D.C. 20007
Facsimile: 202-736-5065
(b) If to Revision:
Revision LLC
1023 31st Street, NW
Suite 300
Washington, D.C. 20007
Attention: Walter C. Anderson
Facsimile: 202-736-5065
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with a copy to:
Sean P. McGuinness
Swidler Berlin Shereff Friedman, LLP
3000 K Street NW
Washington, D.C. 20007-5116
Facsimile: 202-424-7643
(c) If to Anderson:
c/o Revision LLC
1023 31st Street, NW
Suite 300
Washington, D.C. 20007
Attention: Walter C. Anderson
Facsimile: 202-736-5065
with a copy to:
Sean P. McGuinness
Swidler Berlin Shereff Friedman, LLP
3000 K Street NW
Washington, D.C. 20007-5116
Facsimile: 202-424-7643
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IN WITNESS WHEREOF, the Borrowers have caused this Note to be duly
executed and delivered personally or by their representative officers or
agents thereunto duly authorized as of the date first above written.
GOLD & APPEL TRANSFER, S.A.
By:
---------------------------
Walter C. Anderson,
Attorney-in-Fact
REVISION LLC
By:
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Walter C. Anderson,
Manager
WALTER C. ANDERSON
By:
----------------------
Walter C. Anderson
