EXHIBIT 10.1
PROMISSORY NOTE AND SECURITY AGREEMENT
$ 1,500,000 July 14, 2006
FOR VALUE RECEIVED, the undersigned, 1st GLOBAL FINANCIAL CORPORATION,
a Nevada corporation (Borrower), promises to pay to the order of Seamless Wi-Fi,
Inc. (Lender) the principal sum of up to One Million Five Hundred Thousand
Dollars ($1,500,000.00), together with all interest due thereon, on the
following terms:
1. INTEREST RATE. The unpaid principal balance shall bear interest at
the rate of Twelve percent (12%) per annum; however, in the event of Default,
the interest rate shall become Eighteen percent (18%) per annum on the principal
balance and accrued interest until paid in full. In no event shall Borrower ever
be obligated to pay interest in excess of the highest lawful rate in the state
of Nevada.
2. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall begin making
monthly installment payments ("Installment Payment(s)") in the amount of Thirty
Six Thousand Dollars ($36,000) beginning at the earlier occurrence of (the
"Installment Start Date"), and then monthly thereafter: a) 90 days after the
Borrower's Rule 504 Section D, Private Placement begins to fund; b) Forty-five
(45) days after the end of any quarter (based on a calendar year) that the
Borrower's operations generate an EATI (EATI is defined as earnings after taxes
and interest (including then current interest due on this Promissory Note). The
entire principal amount, and all interest due thereon, shall be repaid by July
14, 2009 ("Maturity Date"). At the sole discretion of Lender, the Maturity Date
may be extended, with all then due principal and interest due subject to
origination fees and to new terms and conditions, at Lender's sole discretion.
For each Installment Payment, allocation of interest and principal shall be
based on a sixty (60) month amortization ("Note Amortization Timeframe") of the
amount of principal and accrued interest due at the Installment Start Date. On
the Maturity Date, all then remaining principal and interest due shall be paid
in one final "balloon" payment. For any additional loan proceeds received by
Borrower after the Installment Start Date, the additional proceeds will be added
to the then outstanding, principal and accrued interest, and the Installment
Payments thereafter will have interest and principal payments apportioned based
on an amortization of the principal and accrued interest, then due, over the
then remaining months of the Note Amortization Timeframe. Borrower will pay
Lender a late fee of ten percent (10%) of any installment payment is not paid
within 10 days after it is due.
All Installment Payments and other payments shall be made to
Lender's address as listed in Section 9, or any other address Lender may
designate by notice, pursuant to Section 9, or to any other payee as designated
by Lender to Borrower.
3. EVENTS OF DEFAULT. An Event of Default ("Default"), wherever used
herein, means any one of the following events:
(a) The failure by Borrower to make any payment of principal
or interest when either is due, and the continuance of such failure for
a period of twenty (20) days; or
(b) The entry of a decree or order by any court having
jurisdiction adjudging Borrower bankrupt or insolvent, or approving as
properly filed, any petition seeking reorganization, arrangement,
adjustment, or composition of Borrower under the Federal Bankruptcy
Code or any other similar federal or state law, or appointing a
receiver, liquidator, assignee, or trustee, for Borrower or for any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order in effect for a period of sixty (60) consecutive days; or
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(c) The institution by Borrower of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by Borrower to the
institution of bankruptcy or insolvency proceedings against Borrower,
or the filing by Borrower of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy code or any other
similar federal or state law, or the consent by Borrower to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, or trustee, for Borrower or for any substantial part of
Borrower's property; or the making by Borrower of an assignment for the
benefit of creditors, or the admission by Borrower in writing of
Borrower's inability to pay Borrower's debts generally as they become
due, or the taking of corporate action by Borrower in furtherance of
any such action; or
(d) Borrower's default of any other Agreement between Borrower
and Lender.
4. REMEDY. If any Default shall occur and is continuing, then, in every
such event, Lender may, at Lender's option, and by written notice to Borrower,
declare the entire unpaid principal balance and all interest accrued thereon
pursuant to this Promissory Note immediately due and payable, and whereupon,
such amount shall be immediately due and payable. Lender may accelerate maturity
hereof during any default by the Borrower regardless of any prior forbearance by
Lender.
5. PREPAYMENT. Borrower may prepay the principal amount outstanding in
whole or in part without penalty at any time. Any prepayment shall apply first
to accrued interest, then to principal. Prepayments, if any, shall not alter,
change, amend, or modify installment payment amounts, or the due dates of any
succeeding payments required by this Promissory Note.
6. WAIVER. Borrower, and each surety, endorser, guarantor, and other
party now or hereafter liable for payment of this Promissory Note, severally
waive demand, presentment for payment, notice of dishonor, protest, notice of
protest, diligence in collecting or bringing suit against any party liable
hereon, and further agree to any and all extensions, renewals, modifications,
partial payments, substitutions of evidence of indebtedness, and the taking of
any security or collateral with or without notice before or after maturity.
7. COSTS AND ATTORNEY'S FEES. In the event this Promissory Note is
placed in the hands of an attorney for collection, or suit is filed hereon, or
if proceedings for Borrower are had in bankruptcy, receivership, reorganization,
and for any other legal or judicial proceedings for the collection of this
Promissory Note, Borrower hereby agrees to pay to Lender all expenses and costs
of collection, including but not limited to, reasonable attorney's fees incurred
in connection with any such collection, suit, or proceeding, in addition to the
principal and interest then due.
8. GOVERNING LAW AND JURISDICTION. This Promissory Note shall be
governed by, and construed in accordance with, the substantive laws of the State
of Nevada. Any action or proceeding brought by either party against the other
arising out of or related to this Promissory Note shall be brought exclusively
in a state or federal court in Nevada.
9. NOTICE. Any notice or demand required to be given hereunder to
Borrower hereof shall be in writing and shall be deemed to have been duly given
and received, if sent by United States mail, certified, return receipt
requested, with postage prepaid, when deposited in the United States mail,
addressed to Borrower and sent to:
1st GLOBAL FINANCIAL CORPORATION
0000 X. Xxxxx Xxxx Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
or such other place as Borrower may designate to Lender
pursuant to this section.
Any correspondence or notice required to be given hereunder to
Lender hereof shall be in writing and shall be deemed to have been duly given
and received, if sent by United States mail, certified, return receipt
requested, with postage prepaid, when deposited in the United States mail,
addressed to Lender and sent to:
Seamless Wi-Fi, Inc.
000 X. Xxxxxxx Xxxx Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
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or such other place as Lender may designate to Borrower
pursuant to this section.
10. SUBSEQUENT HOLDER(S). Lender shall be and includes, any subsequent
holder of this Promissory Note, and any partial assignee of Lender, holding an
interest in this Promissory Note.
11. SUCCESSORS AND ASSIGNS. This Promissory Note and all of the
covenants, promises and agreements contained in it shall be binding on and inure
to the benefit or obligation of the respective legal and personal
representatives, devisees, heirs, successors and assigns of the Borrower, or the
Lender, as applicable.
12. INSURANCE. Borrower, at its own expense, will provide during the
term of this Promissory Note, such insurance of the type and in an amount
satisfactory to Lender as is necessary to insure Lender for and against any loss
resulting from the destruction or damage to any tangible asset, real or
personal, now or hereafter owned during the time any amount hereunder remains
due and owing to Lender. Borrower will keep the tangible assets insured at the
full insurable value amount available against loss or damage to them resulting
from theft, fire or other casualty. Borrower shall deliver to Lender policies or
certificate(s) of insurance naming Lender as an insured and an agreement by the
insuring company not to cancel such insurance without at least a ten (10) day
notice to Lender.
13. SEVERABILITY. If a court of competent jurisdiction finds and holds
any provision of this Promissory Note, or any related agreements, to be illegal,
unenforceable, or invalid in whole or in part for any reason, the validity and
enforceability of the remaining provisions, or portions of them, will not be
affected. In the event of any such finding and holding, the maker and the holder
of this Promissory Note, each, agree to as nearly and closely as possible
conform to the intent of the illegal, unenforceable, or invalid provision or
provisions, or portion of them.
14. AUTHORIZATION TO LENDER. Borrower irrevocably authorizes Lender to
exercise the following powers, with such limitations as described within this
section, until all of the Obligations have been paid in full: (a) File any
initial financing statements and/or amendments that: (1) Indicate the collateral
as all assets of the Borrower or words of similar effect; (2) Contain any other
information required by part 5 of Article 9 of the UCC for the sufficiency or
filing office acceptance of any financing statement or amendment, including
whether the Borrower is an organization, the type of organization, and any
organization identification number issued to the Borrower; (b) File any
Correction Statement in the name of Borrower under Section 9-518 of the Uniform
Commercial Code that Lender reasonably deems necessary to preserve its rights
hereunder; and upon any uncured Default A) receive, take, endorse, assign,
deliver, accept and deposit, in the name of Borrower or Lender, any and all
proceeds of any collateral securing the obligations or the proceeds thereof; B)
take or bring, in the name of Borrower or Lender, all steps, actions, suits or
proceedings deemed by Lender necessary or desirable to effect collection of or
other realization upon Borrower's Accounts; C) Pay any sums necessary to
discharge any lien or encumbrance which is senior to Lender's security interest
in any assets of Borrower, which sums shall be included as Obligations
hereunder, and in connection with which sums interest shall accrue and shall be
due and payable; D)Notify any person obligated with respect to any obligation to
Borrower, that the underlying such obligation has been assigned to Lender by
Borrower and that payment thereof is to be made to the order of and directly and
solely to Lender; E) Communicate directly with Borrower's obligees to verify the
amount and validity of any obligation of theirs owed to Borrower; F) Change the
address for delivery of mail to Borrower and to receive and open mail addressed
to Borrower; G)Extend the time of payment of, compromise or settle for cash,
credit, return of merchandise, and upon any terms or conditions, any and all
obligations to Borrower, and discharge or release any of Borrower's obligee(s)
(including filing of any public record releasing any lien granted to Borrower by
such obligee), without affecting any such obligations; H) In order to satisfy
any of Borrower's obligations under this Promissory Note, Borrower authorizes
Lender to initiate electronic debit or credit entries through the ACH system to
any deposit account maintained by Borrower.
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15. SECURITY. The indebtedness evidenced by this Promissory Note is
secured by: All assets of the Borrower including chattel paper, general
intangibles, including but not limited to, tax refunds, registered and
unregistered patents, trademarks, service marks, copyrights, trade names, trade
secrets, customer lists, licenses, documents, instruments, deposit accounts,
certificates of deposit. All goods, including but not limited to the following:
All inventory, wherever located; All equipment and fixtures, wherever located,
and all additions, substitutions, replacements (including spare parts), and
accessions thereof and thereto; and All books and records relating to all of the
foregoing, including, but not limited to, all insurance proceeds, all claims
against third parties for loss or destruction of or damage to any of the
foregoing, and all proceeds from any of them. Notwithstanding anything else in
this section, Borrower may transfer, sell, assign, or dispose of any of its
assets in the ordinary course of business, as it deems, in its best business
judgment, necessary and proper for the normal operation of Borrower's business,
but where such action(s) is/are taken, shall not diminish Lender's position and
interests.
IN WITNESS THEREOF, the Borrower, by its authorized representatives, has
executed this Promissory Note on the day and date first above written.
BORROWER:
1st GLOBAL FINANCIAL CORPORATION,
By its President,
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