EXHIBIT 10.1
PROMISSORY NOTE
$ 390,000.00 January 22, 2007
FOR VALUE RECEIVED FTS Group, Inc., a Nevada corporation, having a place
of business at 7610 West Hillsborough Avenue, Tampa, Florida 33615 (the "Payor")
hereby unconditionally promises to pay, without defalcation or offset and except
as may otherwise be provided, without notice or demand, to the order of Alpha
Capital Anstalt, and/or its successors, assigns, heirs and personal
representatives having an address at Pradafant 7, 9490 Furstentums, Vaduz,
Lichtenstein ("Payee"), or at such other place as the holder hereof may from
time to time designate in writing, the principal sum of Three Hundred Ninety
Thousand and No/100 ($390,000.00) Dollars, in lawful money of the United States
of America in accordance with the terms of this Note.
ARTICLE 1 PAYMENT TERMS
Payor agrees to pay sums due under this Note in installments as follows:
(a) Payment Terms; Term of the Loan. Commencing on the third (3rd) day of
May, 2007 (the "First Payment Date"), and continuing monthly thereafter, a total
of six (6) equal payments each in the sum of Twenty-Seven Thousand Dollars
($27,000) and monthly thereafter a total of six (6) equal payments each in the
sum of Thirty-Eight Thousand Dollars ($38,000) (the "Installments").
(b) Maturity. On April 3, 2008 (the "Maturity Date"), this Note shall
mature and the entire unpaid principal balance hereof, and all other sums which
may be due and payable shall become due and payable in full.
(c) Place and Manner of Payments. All payments (including prepayments) to
be made in respect of principal, interest or other amounts due from Payor
hereunder shall be payable by 2:00 p.m., Eastern time, at Payee's address set
forth on page 1 of this Note (or such other address as Payee may designate from
time to time) on the day when due. Such payments shall be made to Payee in
lawful money of the United States of America in funds immediately available at
such office without setoff, counterclaim or other deduction of any nature. Any
such payment received by Payee after 2:00 p.m., Eastern time, on any day shall
be deemed to have been received on the next succeeding Business Day (as
hereinafter defined). Whenever any payment to be made under this Note or any
other Loan Document shall be stated to be due on a day which is not a Business
Day, such payment shall be made on the next following business Day and such
extension of time shall be included in computing interest, if any, in connection
with such payment. To the extent permitted by law, after there shall have become
due beyond all applicable cure periods (by acceleration of otherwise) any other
amounts due from Payor hereunder or under, such amount shall bear interest for
each day until paid (before and after judgment), payable on demand, at the
Default Rate (as hereinafter defined).
(d) Application of Payments. All payments shall be applied to the
reduction of principal.
ARTICLE 2 INTEREST
The Note shall bear interest at a rate of twenty percent (20%) or Two
Hundred Thousand Dollars ($200,000) which shall be paid in the form of an
original issue discount to the Note.
ARTICLE 3 DEFAULT AND ACCELERATION
Upon the occurrence of an Event of Default (as defined in the Stock
Purchase Agreement of January 3, 2006): (a) the entire unpaid balance of the
Loan, and all other sums paid by any holder hereof to or on behalf of Payor, or
any successor in interest to the Payor, pursuant to the terms of this Note,
together with late charges thereon, including interest at the Default Rate as
applicable, at the option of Payee or the then holder hereof and without notice,
shall become immediately due and payable, and one or more executions may
forthwith issue on any judgment or judgments obtained by virtue hereof; and (b)
Payee or the then holder hereof may exercise all of its rights and remedies
provided it in the Stock Purchase Agreement, at law or in equity. No failure on
the part of any holder hereof to exercise any of the rights hereunder or under
the Stock Purchase Agreement shall be deemed a waiver of such rights or of any
Event of Default hereunder or thereunder.
Payor hereby releases Payee from all errors and defects whatsoever in
entering an action on account of such Event of Default and any judgment obtained
pursuant thereto.
ARTICLE 4 DEFAULT INTEREST
Notwithstanding the stated Interest Rate above, from and after the date of
any Event of Default (as hereinafter defined) until such Event of Default is
cured, and after the maturity hereof, the Loan shall bear interest at a rate per
annum equal to the highest interest rate permitted under the laws of the
Commonwealth of Pennsylvania (the "Default Rate"); which Default Rate shall be
effective before and after judgment.
ARTICLE 5 LATE CHARGE
In addition to the foregoing, in the event any installment of principal is
not paid within ten (10) days of the due date thereof, Payor shall, upon demand,
pay a late charge on the over due Installment(s), only as determined by Payee,
not to exceed five (5%) percent of any such overdue payment, as compensation for
the additional services resulting from such overdue payment, which "late charge"
shall be payable on demand. This charge shall be in addition to, and not in lieu
of, any other remedy Payee may have and is in addition to any fees and charges
of any agents or attorneys which Payee is entitled to employ upon the occurrence
of any default hereunder, whether authorized herein, or by law.
ARTICLE 6 PREPAYMENT
Payor shall have the right to prepay the principal indebtedness, in whole
or in part, at anytime without penalty.
ARTICLE 7 STOCK PURCHASE AGREEMENT
This Note evidences the amount payable by Payor hereunder. This Note is
secured by and entitled to the benefits of its pro-rata portion of 10,000 common
shares of See World Satellites Inc. deposited with the escrow agent pursuant to
the terms of the Escrow Agreement.
ARTICLE 8 TAXES AND REVENUE STAMPS
If at any time the United States Government, the Commonwealth of
Pennsylvania, or any subordinate political subdivision thereof, or any
department or bureau thereof shall require Internal Revenue stamps, assess a
personal property tax, or levy any similar tax, fee or assessment on this Note,
then and in such event upon demand from Payee, the Payor shall pay for same; and
upon default in such payment within fifteen (15) days after demand for same, the
holder of this Note may pay for such stamps and add the amount so paid to the
principal debt evidenced by this Note and secured by the Stock Escrow Agreement,
and said additional principal shall bear interest at the Default Interest Rate.
If any law or ordinance adopted hereafter imposes a tax on the holder hereof
with respect to this Note, the holder shall have the right at its election from
time to time to require Payor, upon thirty (30) days notice, to pay such tax
and, if not so paid, the holder hereof may pay such sum, which sum shall
thereafter be added to the principal debt evidenced by this Note and secured by
the Stock Escrow Agreement, and said additional principal shall bear interest at
the Default Interest Rate. All of the obligations herein contained shall be
absolute and unconditional, without regard to the liability of any other party
hereto. Anything to the contrary herein notwithstanding, Payor shall have no
obligation to pay any income, excess profits or similar tax based on and
measured by net profits or gross profits levied on Payee or other holder hereof.
ARTICLE 9 INDEMNITY
Payor hereby indemnifies and agrees to save and hold Payee harmless from
and against any and all liability, claim, loss or cost whatsoever, including
reasonable attorney's fees and expenses, arising from any action of any nature
whatsoever taken against Payor as the owner of See World Satellites, Inc.'s
common stock or against Payee, as successor in title thereto, for any violation,
omission, situation or condition under any law, statute, rule, regulation,
judicial determination or ordinance now or hereafter in effect. This indemnity
shall survive repayment of the Note in full and release of the Note.
ARTICLE 10 CONFESSION OF JUDGEMENT
PAYOR DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE
UNITED STATES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT (AS DEFINED IN THE LOAN
AGREEMENT OF JANUARY 3, 2006) TO APPEAR FOR PAYOR AND, WITH OR WITHOUT
DECLARATION FILED, CONFESS JUDGMENT AGAINST PAYOR AND IN FAVOR OF PAYEE, ITS
SUCCESSORS AND ASSIGNS, FOR SUCH SUMS AS SHALL HAVE BECOME DUE UNDER THIS NOTE,
BY ACCELERATION OR OTHERWISE, AND FOR SUCH SUMS DUE BY REASON OF ANY BREACH BY
PAYOR OF ANY COVENANT OR CONDITION OF THIS NOTE, WITH COSTS OF SUIT AND A
REASONABLE ATTORNEYS' COMMISSION FOR COLLECTION, AND FORTHWITH ISSUE A WRIT OR
WRITS OF EXECUTION THEREON, WITH RELEASE OF ALL ERRORS, AND WITHOUT STAY OF
EXECUTION, AND INQUISITION AND EXTENSION UPON ANY LEVY ON THE STOCK ARE HEREBY
EXPRESSLY WAIVED, AND EXEMPTION OF ANY AND ALL STOCK FROM LEVY OR SALE BY VIRTUE
OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY HEREAFTER BE ENACTED IS ALSO
EXPRESSLY WAIVED BY PAYOR. PAYOR FURTHER AUTHORIZES AND EMPOWERS ANY ATTORNEY,
EITHER IN ADDITION TO OR WITHOUT SUCH JUDGMENT FOR SPECIFIC SUMS DUE UNDER THIS
NOTE, AS HEREINABOVE PROVIDED, TO APPEAR FOR PAYOR AND FOR ANY OTHER PERSON
CLAIMING UNDER, BY OR THROUGH PAYOR, AND CONFESS JUDGMENT FORTHWITH AGAINST
PAYOR AND SUCH OTHER PERSONS AND IN FAVOR OF PAYEE, WITH ALL THE CONDITIONS,
FEES, RELEASES, WAIVERS OF STAY OF EXECUTION AND WAIVER OF EXEMPTION TO
ACCOMPANY SAID CONFESSION OF JUDGMENT FOR AMOUNTS DUE. IF A COPY OF THIS NOTE,
VERIFIED BY AFFIDAVIT OF PAYEE, OR SOMEONE ON PAYEE'S BEHALF, SHALL HAVE BEEN
FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS
NOTE AS A WARRANT OF ATTORNEY. THE ENTRY OF JUDGMENT UNDER THE FOREGOING WARRANT
SHALL NOT EXHAUST THE WARRANT, BUT SUCCESSIVE JUDGMENTS MAY BE ENTERED
THEREUNDER FROM TIME TO TIME AS OFTEN AS AN EVENT OF DEFAULT OCCURS. PAYEE MAY
FORTHWITH ISSUE A WRIT OR WRITS OF EXECUTION FOR THE AMOUNT OF ANY JUDGMENT AND
COSTS, WITHOUT LEAVE OF COURT. PAYOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED
BY LEGAL COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS NOTE, THE
STOCK PURCHASE AGREEMENT AND ANY OTHER MATERIAL DOCUMENTS. PAYOR HEREBY
EXPRESSLY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO THE CONFESSION
OF JUDGMENT PROVISIONS SET FORTH HEREIN.
ARTICLE 11 WAIVER OF TRIAL BY JURY
PAYOR AND PAYEE, BY ACCEPTANCE OF THIS NOTE, HEREBY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, THE APPLICATION FOR THE LOAN
EVIDENCED BY THIS NOTE OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS
OF PAYEE OR PAYOR.
ARTICLE 12 SUCCESSORS AND ASSIGNS
This obligation shall bind Payor and its successors and assigns, and the
benefits hereof shall inure to Payee and its successors and assigns, and
subsequent holders hereof.
ARTICLE 13 GOVERNING LAW
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the Commonwealth of Pennsylvania without regard to its
principles of choice of law.
ARTICLE 14 PARTIAL INVALIDITY
In case any term or provision of this Note or the application thereof to
any Person (as hereinafter defined) or any circumstances shall to any extent be
unenforceable or invalid for any reason, the remainder of this Note, or the
application of such term or provision to Persons or circumstances other than
those as to which it is invalid or unenforceable, shall not be impaired thereby,
and such provision shall be deemed modified to the extent necessary to be
enforceable, or if such modification is not practicable, shall be deleted from
this Note.
ARTICLE 15 DEFINITIONS
All capitalized terms used herein and not defined herein shall have the
same meaning as set forth in the Stock Purchase Agreement. The word "Business
Day" shall mean any day other than a Saturday, Sunday, public holiday under the
laws of the commonwealth of Pennsylvania or other day on which banking
institutions are authorized or obligated to close in Pennsylvania. The word
"Payor" shall mean the corporation named in this Note, and the successors and
assigns of Payor. The word "Person" shall mean an individual, corporation,
partnership, trust, unincorporated association, joint venture, joint-stock
company, government (including political subdivisions), governmental authority
or agency, or any other entity.
ARTICLE 16 AUTHORIZATION
The Persons exceeding this instrument for and on behalf of Payor, hereby
warrant, covenant, represent and confirm that they are duly and legally
designated and authorized to execute and deliver this Note and that this
instrument is valid and binding on Payor and the Land in accordance with its
terms by reason of such execution.
ARTICLE 17 PAYEE"S RECORDS CONTROLLING
The unpaid principal amount of this Note, the unpaid interest accrued
hereon, the interest rate or rates applicable to such unpaid principal amount
and the duration of such applicability shall at all times be ascertained from
the records of Payee, which shall be conclusive absent manifest error.
ARTICLE 18 WAIVERS
Except as expressly provided herein or therein, Payor hereby expressly
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, the Stock Purchase Agreement, the Stock Escrow Agreement and other
Material Documents, and an action for amounts due hereunder or thereunder shall
immediately accrue.
ARTICLE 19 NOTICES
All notices, requests, demands, directions and other communications
(collectively, "Notices") under the provisions hereof shall be in writing unless
otherwise expressly permitted hereunder, shall be sent as provided in the Stock
Purchase Agreement and shall be effective when received. Payee may rely on any
notice purportedly made by or on behalf of Payor, and shall have no duly to
verify the identity or authority of the person giving such notice.
ARTICLE 20 ATTORNEYS' FEES
If this Note is placed in the hands of an attorney at law for collection
by reason of an Event of Default on the part of Payor, Payor hereby agrees to
pay to Payee, in addition to the sums stated above, the costs of collection,
including reasonably attorneys' fees incurred in connection therewith.
ARTICLE 21 NO ORAL MODIFICATION
This Note may not be amended, modified or supplemented orally, but only by
an agreement in writing signed by the parties.
ARTICLE 22 JOINT AND SEVERAL OBLIGATIONS
The obligations of each person or entity comprising Payor hereunder and
under the Stock Purchase Agreement and Stock Escrow Agreement shall be joint and
several obligations.
ARTICLE 23 COMPLIANCE WITH USURY LAWS
It is the intention of the parties to conform strictly to the usury laws,
whether state or federal, which are applicable to this Note. All agreements
between Payee and Payor, whether now existing or hereafter arising and whether
oral or written, are hereby expressly limited so that in no contingency or event
whatsoever, whether by acceleration of maturity hereof or otherwise, shall the
amount paid or agreed to be paid to Payee or the holder hereof, or collected by
Payee or such holder, for the use, forbearance or detention of the money to be
loaned hereunder or otherwise, or for the payment or performance of any covenant
or obligation contained herein, or in any of the Loan Documents, exceed the
maximum amount permissible under applicable federal or state usury laws. If
under any circumstances whatsoever fulfillment of any provision hereof or of the
Loan Documents, at the time performance of such provision shall be due, shall
involve exceeding the limit of validity prescribed by law, then the obligation
to be fulfilled shall be reduced to the limit of such validity; and if under any
circumstances Payee or other holder hereof shall ever receive an amount deemed
interest by applicable law, which would exceed the highest lawful rate, such
amount that would be excessive interest under applicable usury laws shall be
applied to the reduction of the principal amount owing hereunder or to other
indebtedness secured by the Loan Documents and not the payment of interest, or
if such excessive interest exceeds the unpaid balance of principal and such
other indebtedness, the excess shall be deemed to have been a payment made by
mistake and shall be refunded to Payor or to any other person making such
payment on Payor's behalf. All sums paid or agreed to be paid to the holder
hereof for the use, forbearance or detention of the indebtedness of Payor
evidenced hereby, outstanding from time to time shall, to the extent permitted
by applicable law, and to the extent necessary to preclude exceeding the limit
of validity prescribed by law, be amortized, pro-rated, allocated and spread
from the date of disbursement of the proceeds of this Note until payment in full
of the Loan evidenced hereby and thereby so that the actual rate of interest on
account of such indebtedness is uniform throughout the term hereof and thereof.
The terms and provisions of this paragraph shall control and supersede every
other provision of all agreements between Payor, any endorser or Guarantor and
Payee.
ARTICLE 24 DEFINED TERMS
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Stock Purchase Agreement.
IN WITNESS WHEREOF, Payor has duly executed and delivered this Note as of the
day and year first above written.
ATTEST: FTS Group, Inc., a Nevada corporation
By: /s/ Scott Gallagher
- ---------------------------- ----------------------------
Scott Gallagher, President & CEO