THIS NOTE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SUBORDINATION AGREEMENT OF EVEN DATE HEREWITH BY AND AMONG THE MAKER, THE HOLDER AND OTHERS, AND IS SUBORDINATED AS PROVIDED THEREIN. A COPY OF THE SUBORDINATION AGREEMENT IS ON FILE AT THE...
EXHIBIT
10.62
THIS
NOTE
IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN SUBORDINATION AGREEMENT
OF
EVEN DATE HEREWITH BY AND AMONG THE MAKER, THE HOLDER AND OTHERS, AND IS
SUBORDINATED AS PROVIDED THEREIN. A COPY OF THE SUBORDINATION AGREEMENT IS
ON
FILE AT THE OFFICES OF SPECIAL SITUATIONS FUND, L.P., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
2007
AMENDED AND RESTATED SECURED PROMISSORY NOTE
| $982,243.40 |
Irvine, CA
|
|
January
1,
2007
|
WHEREAS, Wireless Billing Systems, a California corporation (“Wireless Billing;” “Maker”), executed that certain Secured Promissory Note dated May 26, 1999, in the principal amount of Two Million Two Hundred Thirty-Eight Thousand Two Hundred Forty-Two Dollars ($2,238,242.00) in favor of Corsair Communications, Inc. (“Corsair”) (the “Original Note”); and
WHEREAS,
Wireless Billing executed that certain Note Agreement dated as of January 1,
2001 (the “Note Agreement”), and that certain Amended and Restated Secured
Promissory Note on January 1, 2001, in the principal amount of One Million
Six
Hundred Ninety-Six Thousand Three Hundred Ninety-Four Dollars and Eighteen
Cents
($1,696,394.18) in favor of Corsair (together, the “January 2001 Amended Note”);
and
WHEREAS,
Wireless Billing and Corsair executed a letter agreement dated December 20,
2001, revising the terms of the January 2001 Amended Note. The January 2001
Amended Note, as amended by said letter agreement (the “December 2001 Amended
Note”), amended and restated the Original Note; and
WHEREAS,
Lightbridge, Inc. (“Holder”) succeeded to the assets and liabilities of Corsair
by way of merger; and
WHEREAS,
Maker executed that certain 2002 Amended and Restated Secured Promissory Note
dated December 27, 2002, in the principal amount of One Million Seven Hundred
Twenty-Two Thousand Four Hundred Seventeen Dollars ($1,722,417.00) in favor
of
Holder (the “2002 Amended Note”), which amended and restated the December 2001
Amended Note; and
WHEREAS,
Maker executed that certain 2004 Amended and Restated Secured Promissory Note
dated March 27, 2004, in the principal amount of One Million Five Hundred Nine
Thousand Nine Hundred Nineteen Dollars ($1,509,919) in favor of Holder (the
“2004 Amended Note”), which amended and restated the December 2002 Amended Note;
WHEREAS,
Maker executed that certain 2005 Amended and Restated Secured Promissory Note
dated June 30, 2005, in the principal amount of Nine Hundred Eighty Two Thousand
Two Hundred Forty Three Dollars and Forty Cents ($982,243.40) in favor of Holder
(the “2005 Amended Note”), which amended and restated the March 2004 Amended
Note;
WHEREAS,
Maker executed that certain 2006 Amended and Restated Secured Promissory Note
dated March 31, 2006, in the principal amount of Nine Hundred Eighty Two
Thousand Two Hundred Forty Three Dollars and Forty Cents ($982,243.40) in favor
of Holder (the “2006 Amended Note”), which amended and restated the 2005 Amended
Note;
WHEREAS,
the balance of all outstanding principal and accrued but unpaid interest under
the 2006 Amended Note on the date hereof is $982,243.40
and
the
2006 Amended Note matures on December 1, 2011; and
WHEREAS,
Maker and Holder desire to amend and restate the 2006 Amended Note as provided
herein;
NOW
THEREFORE:
FOR
VALUE
RECEIVED, Maker hereby promises to pay to the order of Holder, at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Holder may
designate from time to time in writing, in lawful money of the United States
of
America and in immediately available funds, the principal amount of
Nine
Hundred Eighty Two Thousand Two Hundred Forty Three Dollars and Forty Cents
($982,243.40), together with interest accrued on the unpaid principal amount
hereof from the date hereof at the rate of eight percent (8%) per annum,
compounded annually, payable as follows:
(i) Six
monthly installments of Six Thousand Five Hundred Forty Eight Dollars and Twenty
Nine Cents ($6,548.29) each, commencing on January 1, 2007 and ending on June
1,
2007 (the “Initial Term”).
(ii) Maker
shall pay to Holder all outstanding principal and accrued but unpaid interest
existing hereunder as of June 1, 2007, in fifty three monthly installments
of
Twenty One Thousand Seven Hundred Fifty Dollars ($21,750.00) each, and one
monthly payment of Nineteen Thousand Seven Hundred Ninety Three Dollars and
Forty Nine Cents ($19,793.49), each in the amount necessary to cause all
outstanding principal and accrued and unpaid interest to be repaid in full
as of
December 1, 2011 (the “Maturity Date”), commencing on June 1, 2007, and ending
on the Maturity Date.
Upon payment in full of the outstanding principal and all accrued but unpaid interest thereon, this 2007 Amended and Restated Secured Promissory Note (“2007 Amended Note”) shall be surrendered to Maker for cancellation.
Except
as
otherwise set forth herein, all payments on this 2007 Amended Note shall be
applied first against accrued and unpaid interest and then against the
outstanding principal. Maker shall have the right to prepay all or any portion
of the principal obligation hereunder without penalty at any time or from time
to time.
Maker
hereby waives presentment, demand for payment, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this 2007 Amended Note. Maker hereby promises to
pay
on demand all reasonable legal fees and other costs and expenses paid or
incurred by Holder in enforcing or collecting this 2007 Amended
Note.
The
occurrence of any of the following events is an “Event of Default”
hereunder:
| (a) |
Maker
fails to pay when due any payments under this 2007 Amended Note,
which
failure remains unremedied for five (5) business days following Maker’s
receipt of written notice from Holder of any such
non-payment(s).
|
| (b) |
Without
the application or consent of Maker (i) a receiver, trustee, custodian
or
similar officer is appointed for Maker or for any substantial part
of
Maker’s property, or (ii) any bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings for relief under any
bankruptcy law or any law for the relief of debtors under the laws
of any
jurisdiction is instituted (by petition, application, or otherwise)
against Maker and such appointment or proceedings remains unstayed
or
undismissed for a period of ninety (90)
days.
|
| (c) |
In
a transaction or a series of related transactions, (i) the sale of
all or
substantially all of the assets of Maker, or (ii) any merger,
consolidation, reorganization or recapitalization of Maker; provided,
however,
that such a merger, consolidation, reorganization or recapitalization
of
Maker (A) whereby Primal Solutions, Inc. (“Primal”), a Delaware
corporation, continues to own 66 2/3% or more of the voting power
in the
surviving company following such transaction or transactions and
the
tangible net worth (as determined in accordance with generally accepted
accounting principles consistently applied) of Maker following such
transaction or transactions is not less than the tangible net worth
of
Maker immediately prior to such transaction or transactions, or (B)
with
and into Primal shall not be deemed to be an Event of Default.
|
| (d) |
Any
sale of the then outstanding common stock of Maker that results in
Primal
holding less than a 66 2/3% equity or voting interest in Maker.
|
| (e) |
Maker
(i) admits in writing Maker’s inability to pay Maker’s debts when due,
(ii) makes an assignment for the benefit of creditors, (iii) applies
for
or consents to the appointment of any receiver, trustee, custodian
or
similar officer for Maker or for any substantial part of Maker’s property,
or (iv) institutes (by petition, application, or otherwise) or consents
to
any bankruptcy, insolvency, reorganization or liquidation proceedings
or
other proceedings from relief under any bankruptcy law or any law
for the
relief of debtors under the laws of any jurisdiction against
Maker.
|
Upon
the
occurrence of any Event of Default, all obligations hereunder shall become
immediately due and payable.
In
case
any Event of Default shall have occurred, Holder may proceed to protect and
enforce its rights hereunder by suit in equity, action at law or any other
appropriate proceeding.
Neither
any course of dealing by Holder nor any failure or delay by Holder to exercise
any right, power or privilege hereunder shall operate as a waiver hereunder,
and
any single or partial exercise of any such right, power or privilege shall
not
preclude any later exercise thereof or any exercise of any other right, power
or
privilege hereunder. No covenant, obligation or other provision hereof may
be
waived by Holder and no consent contemplated hereby may be given by Holder
other
than in a writing signed by Holder explicitly waiving such covenant, obligation
or provision or giving such consent. If at any time any applicable usury law
would ever render usurious any amounts called for hereunder, then it is Holder’s
and Maker’s express intention that Maker shall not be required to pay interest
on this 2007 Amended Note at a rate in excess of the maximum lawful rate, that
the provisions of this paragraph shall control over all other provisions of
this
2007 Amended Note which may be in apparent conflict hereunder, that such excess
amount shall be immediately credited on the principal balance of this 2007
Amended Note (or, if this 2007 Amended Note has been fully paid, refunded by
Holder to Maker), and the provisions hereof shall be immediately reformed and
the amounts thereafter collectible under this 2007 Amended Note reduced, without
the necessity of the execution of any further documents, so as to comply with
the then-applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder. Any such crediting or refund shall not cure
or
waive any default by Maker under this 2007 Amended Note. If at any time
following any reduction in the interest rate payable by Maker there remains
unpaid any principal amount under this 2007 Amended Note and the maximum
interest rate allowed by applicable law is increased or eliminated, then the
interest rate payable under this 2007 Amended Note shall be readjusted, to
the
extent not prohibited by applicable law, so that the total dollar amount of
interest payable hereunder shall be equal to the dollar amount of interest
which
would have been paid by Maker without giving effect to the reduction in interest
resulting from compliance with applicable usury laws.
This
2007
Amended Note amends and restates (and does not constitute an extinguishment
or
novation of) the Original Note, the December 2001 Amended Note, the 2002 Amended
Note, the 2004 Amended Note, and the 2005 Amended Note, copies of which are
attached hereto as Exhibits A, B, C, D, and E respectively, and each of which
is
hereby acknowledged by Maker as a true, correct, and complete copy of the
original. This 2007 Amended Note amends and restates the Original Note, the
December 2001 Amended Note, the 2002 Amended Note, the 2004 Amended Note, and
the 2005 Amended Note and does not evidence or effect a refinancing of all
or
any portion of the indebtedness evidenced thereby, a release or relinquishment
of the priority of the security interest of Holder in any assets (real and
personal) of Maker, including without limitation pursuant to the Security
Agreement (as hereinafter defined).
This
2007
Amended Note may not be changed, modified, amended or terminated except in
a
writing signed by Maker and Holder. The covenants and agreements contained
in
this 2007 Amended Note shall bind Maker, and the rights hereunder shall inure
to
the benefit of the respective successors and assigns of Holder. This 2007
Amended Note shall not be transferred or assigned to any third party,
except:
(1)
By
Holder upon the prior written consent of Maker, which consent shall not be
unreasonably withheld;
(2)
By
Holder pursuant to (i) the sale of more than 33 1/3% of the then outstanding
common stock of Holder, (ii) the sale of all or substantially all of the assets
of Holder, or (iii) any merger, consolidation, reorganization or
recapitalization of Holder, exclusive of any merger, consolidation,
reorganization or recapitalization whereby stockholders prior to such
transactions continue to own more than 66 2/3% of the voting power in the
surviving company following such transactions; and
(3)
By
Holder to any of its affiliates;
Provided,
however,
in no
event shall Holder transfer or assign this 2007 Amended Note to any person
or
entity engaging
in any business which is or may be competitive with the business of Maker or
any
of its affiliates.
For the
purposes hereof, the “business of Maker or any its affiliates” shall mean (i)
the
development, licensing, rental, marketing or selling of software that performs
mediation, rating or billing functions for communication service providers,
and
(ii)
upon Maker’s written notice to Holder, such other business(es) as Maker or any
of its affiliates may engage in from time to time. In the event that Holder
transfers or assigns this 2007 Amended Note pursuant to paragraphs (2) or (3)
above, Holder shall provide Maker with prompt written notice of such transfer
or
assignment.
This
2007
Amended Note shall be governed by, interpreted under, and construed and enforced
in accordance with, the laws of the State of California.
The
indebtedness evidenced by this 2007 Amended Note is secured by and pursuant
to
that certain Security Agreement, dated as of May 26, 1999, between Wireless
Billing and Corsair (the “Security Agreement”).
[THE
REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
IN
WITNESS WHEREOF, the undersigned have executed this 2007 Amended Note as an
instrument under seal as of the date first set forth above.
|
“MAKER:”
|
||
|
WIRELESS
BILLING SYSTEMS
|
||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Chief Executive Officer, Chairman | ||
|
“HOLDER:”
|
||
|
LIGHTBRIDGE,
INC.
|
||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇▇ | ||
| Chief Financial Officer | ||