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EXHIBIT
10.1
NOTICE: THIS PROMISSORY NOTE (“NOTE”) AND THE
SECURITIES ISSUABLE UNDER THIS NOTE (COLLECTIVELY WITH THIS NOTE,
THE “ SECURITIES ”)
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ ACT ”) OR ANY
APPLICABLE STATE SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED, UNLESS REGISTERED
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UPON
DELIVERY TO THE ISSUER OF THE SECURITIES OF AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THE
SECURITIES THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS PURSUANT TO AVAILABLE
EXEMPTIONS THEREFROM. THE TRANSFER OF THE SECURITIES REPRESENTED
HEREBY IS RESTRICTED PURSUANT TO THE TERMS HEREOF.
NOTICE: THIS NOTE PROVIDES FOR A SINGLE LUMP SUM PAYMENT
OF PRINCIPAL AND INTEREST ACCRUED THEREON ON THE MATURITY
DATE.
CHDT CORPORATION, a Florida Corporation
8% Promissory Note
PRINCIPAL: $250,000.00
Deerfield Beach, Florida
Date: July 11, 2008
CHDT Corporation , a Florida corporation (the “Company”
), for value received, hereby promises unconditionally to pay to
JEFFREY
POSTAL , a natural person and director of the Company, or
his p2
ermitted
transferees or assigns (collectively, the “Holder”
), in immediately available and lawful money of the United
States of America ( “Dollars”
or “$”
), the principal amount of TWO HUNDRED FIFTY
THOUSAND DOLLARS AND NO CENTS ($250,000.00) (the
”Principal”) shall mean the total amount of unpaid
money loaned under this Note to the Company by the Holder.
All unpaid
Principal
plus any accrued and unpaid Interest thereon shall be due and
payable in full in a single lump-sum payment on the
“Maturity Date” (as such terms are defined below),
unless paid earlier by the Company. No payment of
Principal or Interest accrued thereon shall be due and payable
to the Holder by the Company prior to the Maturity Date,
provided, however, that the Company may prepay any unpaid
Principal and/or Interest without charge or penalty prior to
the Maturity Date.
This
Note is issued to the Holder for money received for the
purpose of general working capital funding. The Company agrees
that this Note evidences a valid debt of the Company and that
the Company has entered into this Note not as a guarantor but
rather as the corporate debtor of the obligation evidenced by
this Note. This debt is a commercial debt and
not a consumer debt.
1. Certain Definitions; Certain
Interpretations.
1.1. Certain
Definitions . As used herein, the following terms shall have
the following meanings:
“Business Day” means any day that is not a
Saturday, Sunday or a legal holiday for banks doing business in the
State of Florida.
“Common Stock” means the common stock, par value
$0.0001 per share, of the Company.
“
Exercise
Price ” means $0.025 per share purchase price per
share of Common Stock available under the Warrant issued
concurrently with this Note and pursuant the terms of this
Note to the Holder by the Company.
“Issue Date” means the first date written above,
which is the date of execution and issuance of this
Note.
“Maturity Date” means January 11, 2009,
which date can be extended for an additional six (6) consecutive
month period with the mutual agreement of both
parties.
“Person” means any individual, corporation,
limited liability company, partnership, limited partnership,
limited liability partnership, firm, joint venture, association,
joint stock company, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
“Securities Act” means the Securities Act of
1933, as amended.
“Warrant” means the warrant issued to the
Company to the Holder to purchase FOUR MILLION(4,000,000) shares of
Common Stock for a five year period and at the Exercise Price,
which warrant is attached hereto as Exhibit A.
1.2. Certain
Interpretations . The definitions of terms herein shall
apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference to any law, rule or
regulation herein shall be construed as referring to any amendment
or modification of such law, rule or regulation, (c) any
reference herein to any Person shall be construed to include such
Person’s permitted successors and assigns, (d) the words
“herein”, “hereof” and
“hereunder”, and words of similar import, shall be
construed to refer to this Note in its entirety and not to any
particular provision hereof, (e) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, except as otherwise expressly provided, and
(f) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer
to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract
rights.
2. Repayment.
2.1. Principal .
Unless earlier paid or accelerated in accordance with the
provisions hereof, the entire outstanding Principal shall be due
and payable on the Maturity Date. At the Maturity Date the
Principal Repayment could be extended for an additional six (6)
months with the mutual consent of both parties. Promptly following
the payment in full of this Note, the Holder shall surrender this
Note to the Company for cancellation.
2.2. Interest;
Adjustment . Interest on the unpaid Principal ( “Interest”
) during the period from the Issue Date through the Maturity Date,
shall accrue at a rate of eight percent (8%) simple interest
per annum,
non-compounding. Interest shall be computed on the basis of a
365-day year applied to actual days elapsed. Unless the Interest on
this Note is earlier paid or accelerated in accordance with the
provisions hereof, all Interest then accrued and unpaid shall be
due and payable in cash on the Maturity Date (concurrently with the
payment of Principal as provided in
Section 2.1). In the “Event of a
Default”, as defined below, and to the extent allowed by
applicable laws, the interest on any unpaid principal or accrued
interest shall increase from 8% to 12% per annum until such unpaid
sum is paid in full. In the event of any legal or arbitration
proceeding required to collect any payment of Principal, Interest
or other charges due hereunder, the Holder shall be entitled to
recover reasonable attorneys’ fees and proceeding
costs.
2.3. Location and
Extension of Time for Repayments . All payments (including
any prepayments) of Principal, Interest and other amounts due and
payable by the Company pursuant to this Note shall be paid to the
Holder at such Holder’s address for notice pursuant to
Section 7.8. If the outstanding Principal and Interest become
due and payable on any day other than a Business Day, the payment
date thereof (including, without limitation, the Maturity Date)
shall be extended without any action or further consent of the
Company or Holder to the next succeeding Business Day, and to such
payable amounts shall automatically be added the Interest which
shall have accrued during such extension period at the rate per
annum herein specified.
3. Prepayments.
3.1. Optional
Prepayment . Outstanding amounts under this Note may be
prepaid, in whole or in part, at any time at the option of the
Company upon at least five (5) days’ prior written notice to
the Holder (a “ Prepayment Notice
”), which Prepayment Notice shall set forth the amount of
Principal and Interest to be prepaid by the Company and the date
thereof.
3.2. Application of
Prepayments . Prepayments made by the Company pursuant to
this Section 3 shall be applied first to unpaid Principal and
then second to accrued, unpaid Interest and any other amounts due
hereunder.
3.4. No Premiums,
Penalties or Consent . No premium or penalty shall be
payable, and no consent of the Holder shall be required, in
connection with any prepayment of this Note .
3.5 Subordination
. This Note and the payment of Principal and Interest
shall be subordinate to the payment of any amounts due and payable
by the Company, whether as guarantor or debtor, to Sterling
National Bank or any of its successors and assigns.
4. Events of Default.
If
one or more of the following events shall have occurred and be
continuing (each, an “Event of
Default” ):
(a) the Company shall fail to pay within ten
(10) days of when due any Principal of, or accrued Interest
on, this Note;
(b) the Company shall consummate the sale of all or
substantially all of its operating assets, or liquidate, dissolve
or wind up its affairs as part of a dissolution;
(c) the Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall
take any corporate action to authorize any of the foregoing;
or
(d) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization
or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or
other proceeding shall remain not dismissed for a period of sixty
(60) days; or an order for relief shall be entered against the
Company under the federal bankruptcy laws as now or hereafter in
effect;
then , and in each and every such Event of Default, the
Holder may, by written notice to the Company, declare this Note to
be, and this Note shall thereupon become, immediately due and
payable in full without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Company;
provided,
however, that in the case of any of the Events of Default
specified in clauses (c) or (d) above, without any notice
to the Company or any other act by the Holder or the other
Investors, this Note shall become immediately due and payable in
full without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Company.
5.
Warrant. The Company shall issue to the
Holder concurrently with the delivery of this Note to the
Holder a Warrant to purchase Four Million (4,000,000)
“restricted shares” (as defined in Rule 144 of the
Securities Act) of the Common Stock at an exercise price of
$0.025 per share. The term of the Warrant shall be
five years, commencing July 11, 2008 and ending July 11, 2013.
In the event that the Holde
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