EX-10.38 9 ex10-38.htm
Demand Promissory Note
FOR VALUE RECEIVED, FTE NETWORKS, INC. a Nevada corporation (“Borrower”), unconditionally promises to pay to the order of PETER GHISHAN (“Lender”), the principal sum of THIRTY THOUSAND DOLLARS ($30,000.00) (the “Loan”) outstanding hereunder together with all accrued interest thereon, ON DEMAND, as provided in this Promissory Note (the “Note”). This Note has an effective date as noted above (the “Effective Date”).
1. Due on Demand. Borrower promises to pay to the order of Lender the Loan, together with interest thereon as hereinafter provided, immediately ON DEMAND given by Lender to Borrower without the need for any advance notice of any kind.
2.1 Manner of Payments. All payments of interest and principal shall be made in lawful money of the United States of America by wire transfer of immediately available funds to Lender’s account at a bank specified by Lender in writing to Borrower from time to time.
3. Interest. Interest under this Note shall be as follows:
3.1 Interest Rate. The Loan shall bear interest on the initial principal sum borrowed commencing on and as of the date hereof, to and including the date the Loan is repaid in full, at a rate of five percent (5%) per annum.
3.2 Interest Payable. Interest, at the rate described above, shall be payable ON DEMAND. Borrower may make whole or partial interest payments at any time prior to demand, without penalty and without affecting any other provisions of this Note.
4. Representations and Warranties. Borrower hereby represents and warrants as of the date of this Note, as follows:
4.1 Existence. Borrower is a corporation duly incorporated validly existing and in good standing under the laws of its state of organization.
4.2 Power and Authority. Borrower has the power and authority, and the legal right, to execute and deliver this Note and to perform its obligations hereunder.
4.3 Authorization, Execution and Delivery. The execution and delivery of this Note by Borrower and the performance of its obligations hereunder have been duly authorized by all necessary corporate action in accordance with all applicable laws. Borrower has duly executed and delivered this Note.
4.4 Enforceability. The Note is a valid, legal and binding obligation of Borrower, enforceable against Borrower in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
4.5 No Approvals. No consent or authorization of, filing with, notice to or other act by, or in respect of, any governmental authority or any other person is required in order for Borrower to execute, deliver, or perform any of its obligations under this Note.
4.6 No Violations. The execution and delivery of this Note and the consummation by Borrower of the transactions contemplated hereby do not and will not (a) violate any provision of Borrower’s organizational documents; (b) violate any law or order applicable to Borrower or by which any of its properties or assets may be bound; or (c) constitute a default under any material agreement or contract by which Borrower may be bound.
5.1 Notices. All notices, requests or other communications required or permitted to be delivered hereunder shall be delivered in writing at the addresses set forth in this Note or such other address as either Borrower or Lender may from time to time specify in writing. Notices mailed by certified or registered mail or sent by hand or overnight courier service shall be deemed to have been given when received. Notices sent by facsimile during the recipient’s normal business hours shall be deemed to have been given when sent (and if sent after normal business hours shall be deemed to have been given at the opening of the recipient’s business on the next business day). Notices sent by e-mail shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment).
5.2 Costs and Expenses. Borrower shall reimburse Lender for all reasonable and documented out-of-pocket costs, expenses and fees (including reasonable expenses and fees of its counsel incurred by Lender in connection with the transactions contemplated hereby including the negotiation, documentation and execution of this Note and the enforcement of Lender’s rights hereunder.
5.3 Governing Law. This Note and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Note and the transactions contemplated hereby shall be governed by the laws of the State of New York.
5.4 Waiver of Jury Trial. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY.
5.5 Counterparts, Integration, Effectiveness. This Note and any amendments, waivers, consents or supplements hereto may be executed in counterparts, each of which shall constitute an original, but all taken together shall constitute a single contract. This Note [and the Security Agreement] constitute the entire contract between the parties with respect to the subject matter hereof and supersede all previous agreements and understandings, oral or written, with respect thereto. Delivery of an executed counterpart of a signature page to this Note by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Note.
5.6 Amendment and Waiver. No term of this Note may be waived, modified or amended except by an instrument in writing signed by both of the parties hereto. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given.
5.7 Headings. The headings of the various Sections and subsections herein are for reference only and shall not define, modify, expand or limit any of the terms or provisions hereof.
5.8 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising on the part of Lender, of any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
5.9 Severability. If any term or provision of this Note is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Note or invalidate or render unenforceable such term or provision in any other jurisdiction.
[signature page follows]
IN WITNESS WHEREOF, Borrower has executed this Note as of the Effective Date.
| ||FTE NETWORKS, INC., as Borrower|
| || || |
| ||By: |
/s/ Michael P. Beys
| ||Name: |
Michael P. Beys
| ||Title: ||Interim CEO|