AMENDMENT NO. 1 TO TRANSACTION DOCUMENTS
Exhibit 10.1
FTS
GROUP
INC., a Nevada corporation (hereinafter called "Borrower"), and the parties
identified on the signature page hereto (each a “Holder” collectively the
“Holder”) or their registered assigns or successors in interest agree to the
following Amendments to the following documents:
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·
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Secured
Convertible Promissory Note between the FTS Group, Inc. and the Holders
dated December 29, 2005 (the “Note”); Subscription Agreement
between the Company and the Subscribers, dated, December 29, 2005
(the
“Subscription Agreement”);
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·
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Guaranty
Agreement between FTS Wireless, Inc. and Xxxxxxx Xxxxxxx as collateral
agent acting in the manner and to the extent described in the Collateral
Agent Agreement for the benefit of the parties identified on Schedule
A of
the Guaranty Agreement, dated December 29, 2005 (the “Guaranty
Agreement”);
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·
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Security
Agreement between the Company and Xxxxxxx Xxxxxxx, as collateral
agent
acting in the manner and to the extent described in the Collateral
Agent
Agreement for the benefit of the parties identified on Schedule A
of the
Security Agreement, dated December 29, 2005 (the “Security
Agreement”);
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·
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Security
and Pledge Agreement between FTS Wireless, Inc. and Xxxxxxx Xxxxxxx,
as
collateral agent acting in the manner and to the extent described
in the
Collateral Agent Agreement for the benefit of the parties identified
on
Schedule A of the Security and Pledge Agreement, dated December 29,
2005
(the “Security and Pledge Agreement”);
and
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Collateral
Agent Agreement among Xxxxxxx X. Xxxxxxx and the parties identified
on
Schedule A of the Collateral Agent Agreement dated December 29, 2005
(the
“Collateral Agent
Agreement),
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each
a
“Transaction Document” and together the “Transaction Documents”)
(the "Amendment"), dated as of December 13, 2007, among FTS Group, Inc.,
a Nevada corporation (the “Company” and/or “Payor”) and the
Holders;
WHEREAS,
in connection with a Subscription Agreement, the Company issued to Holders
Notes
in the aggregate principal amount of $1,896,551, secured by the Collateral
described in the Security Agreement (“Collateral”); and
WHEREAS,
the parties desire to amend the terms of the Note as set forth in the Amended
Secured Convertible Note, dated December 13, 2007 and hereby amend the terms
of
the remaining Transaction Documents on the terms set forth in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE
I
AMENDMENT
OF TRANSACTION
DOCUMENTS
1.1 The
terms of the Note shall be amended and restated as set forth in the form of
the
Amended and Restated Secured Convertible Promissory Note, dated December 13,
2007 attached hereto as Exhibit A (the “Amended Note”). If any of the
terms of the Transaction Documents contradict the Amended Note the terms of
the
Amended Note shall control
1.2 The
Holders agree to waive any and all past defaults and liquidated damages in
the
transaction Documents through the date of this Agreement.
1.3 All
other
terms of the Transaction Documents shall remain in full force and
effect.
1.4 Original
amount of the Notes will be increased from $1,896,551 to $1,991,379 as set
forth
more fully in Schedule 1.4 hereto.
ARTICLE
II
MISCELLANEOUS
2.1 Entire
Agreement; Amendments. The Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules.
2.2 Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
New
York, without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in New York County, New
York for the adjudication of any dispute hereunder or in connection herewith
or
with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery). Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. Each party irrevocably
waives, to the fullest extent permitted by applicable law, any and all right
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of the documents
contemplated herein, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its attorney’s fees and other costs
and expenses incurred with the investigation, preparation and prosecution of
such action or proceeding.
2.4 Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing.
2.5 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
2.6 No
Waiver. The waiver by any party of the breach of any of the
terms and conditions of, or any right under, this Agreement shall not be deemed
to constitute the waiver of any other breach of the same or any other term
or
condition or of any similar right. No such waiver shall be binding or
effective unless expressed in writing and signed by the party giving such
waiver.
2.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
2.8 Construction.
The article and section headings contained in this agreement are inserted for
reference purposes only and shall not affect the meaning or interpretation
of
this Agreement.
2.9 Capitalized
Terms. Unless otherwise defined, all capitalized terms used
herein shall have the meanings as defined in the Note, Subscription Agreement,
Guaranty Agreement, Security Agreement Security and Pledge Agreement and
Collateral Agent Agreement.
2.10 Further
Assurances. Each party will execute and deliver such further
agreements, documents and instruments and take such further action as may be
reasonably requested by the other party to carry out the provisions and purposes
of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Transaction Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
COMPANY:
FTS GROUP, INC.
/s/
Xxxxx Xxxxxxxxx
____________________________________________
By:
Xxxxx Xxxxxxxxx
Its:
President and Chief Executive
Officer
HOLDERS:
________________________________________ _______________________________________
ALPHA
CAPITAL
ANSTALT
BRISTOL INVESTMENT FUND, LTD.
________________________________________ _______________________________________
XXXXX
INTERNATIONAL
LTD. WHALEHAVEN
CAPITAL FUND LIMITED
________________________________________ _______________________________________
OMEGA
CAPITAL SNMALL CAP
FUND CMS
CAPITAL
________________________________________
_______________________________________
IROQUOIS
MASTER
FUND XXXXX
XXXXX
________________________________________
MOMONA
CAPITAL CORP.
SCHEDULE
1.5
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Holder
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Original
Amount
of
the Note
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Amount
outstanding
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Additional
5%
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New
Note Amount
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Alpha
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$505,747.00
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$505,747.00
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$25,287.35
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$531,034.35
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Bristol
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$252,874.00
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$252,874.00
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$12,643.70
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$265,517.70
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Xxxxx
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$252,873.00
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$232,873.00
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$12,643.65
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$245,516.65
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Whalehaven
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$379,310.00
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$379,310.00
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$18,965.50
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$398,275.50
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Omega
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$126,437.00
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$126,437.00
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$6,321.85
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$132,758.85
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CMS
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$94,828.00
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$94,828.00
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$4,741.40
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$99,569.40
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Iroquois
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$189,655.00
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$149,655.00
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$9,482.75
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$159,137.75
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Brand
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$18,966.00
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$0.00
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$948.30
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$948.30
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Mamona
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$37,932.00
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$12,651.00
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$1,896.60
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$14,547.60
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Total
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$1,858,622.00
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$1,754,375.00
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$92,931.10
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$1,847,306.10
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