Convertible Loan Agreement
This Convertible Loan Agreement (the "Agreement" or the "Convertible Loan
Agreement") is entered into by and between The Yankee Companies, Inc., a Florida
corporation ("Yankees") and AmeriNet Xxxxx.xxx, Inc., a Delaware corporation
("AmeriNet"; Yankees and AmeriNet being sometimes hereinafter collectively
referred to as the "Parties" and each being sometimes hereinafter generically
referred to as a "Party").
Preamble:
WHEREAS, AmeriNet requires a short term loan of $200,000 for use as a
deposit in conjunction with its execution of a letter of intent to acquire
98% or more of the capital stock and securities of Park City Group, Inc., a
Delaware corporation headquartered in Park City, Utah; and
WHEREAS, AmeriNet is willing to pledge all of its assets, wherever located
or whenever acquired, and 20,000,000 shares of its common stock, $0.01 par
value, as security for such financing (the "Collateral"); and
WHEREAS, subject to the following terms and conditions, Yankees is willing
to loan AmeriNet the sum of $200,000, in two installments of $100,000, upon
the collateral security of the Collateral, subject to the terms and
conditions set forth below:
NOW, THEREFORE, in consideration of the sum of $10, other good and valuable
consideration, the receipt of which is hereby acknowledged, and, upon the
mutual covenants and conditions contained herein, the Parties hereby agree
as follows:
Witnesseth:
1. DEFINITIONS & INTERPRETATION
(a) Definitions:
The following terms, whether or not initially capitalized, will have the
meanings set forth below:
(1) Accredited Investor:
A person or entity that meets the asset or income
requirements for treatment as an accredited investor
specified in Rule 501 of Commission Regulation D promulgated
under the Securities Act
(2) Affiliate: An entity or person that controls, is controlled by or is
under common control with another person.
(3) AmeriNet: The term for AmeriNet Xxxxx.xxx, Inc., a publicly held
Delaware corporation with a class of securities registered
under Section 12(g) of the Exchange Act, and a Party to this
Agreement, together with all of its subsidiaries.
(4) AmeriNet Financial
Statements:
Financial statements, including all related schedules and
the Notes thereto, of AmeriNet included in AmeriNet's last
report filed on Commission Form 10-KSB; the reports on
Commission Form 10-QSB filed subsequent
thereto and the financial statements for subsidiaries
subsequently acquired by AmeriNet included in current
reports on Commission Form 8-K filed since the dates of the
Subsequent Quarterly Reports (the "Subsequent Current
Reports"); all such financial statements being hereinafter
collectively and generically referred to as the "AmeriNet
Financial Statements,"
(5) Capital Stock:
The generic term used for equity securities, whether common,
preferred or otherwise.
(6) Collateral: All of AmeriNet's assets, whenever acquired or wherever
located, whether real or personal, tangible or intangible,
current or inchoate, including, without limitation,
20,000,000 shares of its Common Stock, all capital stock of
its subsidiaries, rights under agreements, notes, financial
accounts, intellectual property rights, claims, if any, that
may arise against PCG pertaining to violations of its
obligations to AmeriNet, and, all other things of whatever
nature which the Parties may define as Collateral subject to
this Agreement in any future agreements.
(7) Commission: The United States Securities and Exchange Commission.
(8) Code: The Internal Revenue Code of 1986, as amended.
(9) Default: The occurrence of any of the following events during the
term of this Agreement or any extensions or renewals
thereof:
(A) The failure of AmeriNet to pay any amount when due hereunder for
a period of 5 business days after written notice by Yankees to
AmeriNet;
(B) The failure by AmeriNet to perform any material agreement or
material undertaking under this Agreement or any other material
agreement or material document given to evidence or secure any of
the Secured Obligations;
(C) The material inaccuracy of any warranty, representation, covenant
or agreement made by AmeriNet to Yankees under this Agreement
relating to any related document or this Agreement, at the time
when made;
(D) AmeriNet's insolvency, termination of business as a going concern
or inability to pay debts generally as they become due;
(E) The filing of a petition or order for relief under the bankruptcy
laws or insolvency laws or for reorganization, composition,
adjustment, or other relief of debtors under any law by or
against AmeriNet if such petition is not dismissed within 30
days;
(F) The making of an assignment for the benefit of creditors by
AmeriNet, or the appointment of a receiver or liquidator for
AmeriNet;
(G) The order by a court of competent jurisdiction winding up or
liquidation of the affairs of AmeriNet;
(H) The dissolution of AmeriNet; or
(I) The initiation of a claim by any person, juridical entity or
governmental instrumentality against AmeriNet or any part of the
Collateral; or
(J) Any event defined as a default under any of the agreements, Notes
or instruments ancillary to this Agreement.
(10) Exchange Act:
The Securities Exchange Act of 1934, as amended.
(11) Exchange Act Reports:
All reports filed by AmeriNet with the Commission pursuant
to Sections 12(g), 13 and 15(d) of the Exchange Act.
(12) GAAP: Generally accepted accounting principles, consistently applied.
(13) Initial Funding
Installment:
The sum of $100,000 payable to the order of PCG, in
satisfaction of AmeriNet's deposit obligations under the
Letter of Intent with PCG.
(14) IRS: The United States Internal Revenue Service.
(15) Knowledge: When used to qualify a representation or warranty, the word
"knowledge" or any derivations or variations thereof,
whether in the form of a word or phrase, will mean knowledge
after reasonable inquiry by an executive officer of the
legal entity on whose behalf the assertion is made and will
include information that such legal entity should have had
in the exercise of reasonable diligence.
(16) Letter of Intent:
The letter of intent between AmeriNet and PCG, a copy of
which is annexed hereto and made a part hereof as exhibit
1(a)(16);
(17) Loans: The funds advanced by AmeriNet to Yankees from time to time,
including all funds heretofore advanced by Yankees to
AmeriNet, which are the objects of this Agreement.
(18) Material: When used to qualify a representation or warranty, the word
"material" or any derivations or variations thereof, whether
in the form of a word or phrase, will mean a variance that
could have negatively affected a decision by a reasonably
prudent person to engage in the transactions contemplated by
this Agreement, and will be measured both on the occasion in
which such term is referenced as well as on an aggregate
basis with other similar matters.
(19) NASD: The National Association of Securities Dealers, Inc., a
Delaware corporation and self regulatory organization
registered with the Commission.
(20) Note(s): The convertible negotiable securities in the form of
promissory notes issued to evince the Loans, substantially
in the form annexed hereto and made a part hereof as exhibit
1(a)(20).
(21) Obligations: Yankees rights and AmeriNet's duties under this Agreement
and the ancillary instruments referred to herein, including,
without limitation, the Note(s) notes to be executed from
time to time by AmeriNet in favor of
Yankees, as described in this Agreement executed
concurrently herewith and incorporated by reference herein,
together with all other indebtedness of AmeriNet or its
affiliates to Yankees, direct or indirect, primary or
secondary, fixed or contingent, or otherwise due or to
become due now existing or hereinafter acquired.
(22) OTC Bulletin Board:
The over the counter electronic securities market operated
by the NASD.
(23) PCG: Park City Group, Inc., a Delaware corporation headquartered
in Park City, Utah.
(24) Secured Obligations:
All indebtedness and other obligations of AmeriNet to
Yankees under or arising out of this Agreement, including
any currently outstanding or future loans, or any extensions
or renewals thereof.
(25) Securities Act: The Securities Act of 1933, as amended.
(26) Subsequent Current
Reports: AmeriNet's reports on Commission Form 8-K filed after the
Subsequent Quarterly Reports but prior to the date of this
Agreement.
(27) Subsequent Quarterly
Reports: AmeriNet's reports on Commission Form 10-QSB for the
quarterly periods following AmeriNet's last 10-KSB filed
with the Commission.
(28) Substantial Compliance:
Compliance which the Party for whose benefit or at whose
request an act is performed, or for whose benefit or at
whose request an act is refrained from could under the
circumstances be reasonably expected to accept as full
compliance.
(29) Tax: For the purposes of this Agreement, a "Tax" or,
collectively, "Taxes," means any and all federal, state,
local and foreign taxes, assessments and other governmental
charges, duties, impositions and liabilities, including
taxes based upon or measured by gross receipts, income,
profits, sales, use and occupation, and value added, ad
valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together
with all interest, penalties and additions imposed with
respect to such amounts and any obligations under any
agreements or arrangements with any other person with
respect to such amounts.
(b) Interpretation
(1) When a reference is made in this Agreement to schedules or
exhibits, such reference will be to a schedule or exhibit to this
Agreement unless otherwise indicated.
(2) The words "include," "includes" and "including" when used herein
will be deemed in each case to be followed by the words "without
limitation."
(3) The table of contents and headings contained in this Agreement
are for reference purposes only and will not affect in any way
the meaning or interpretation of this Agreement.
(4) The captions in this Agreement are for convenience and reference
only and in no way define, describe, extend or limit the scope of
this Agreement or the intent of any provisions hereof.
(5) All pronouns and any variations thereof will be deemed to refer
to the masculine, feminine, neuter, singular or plural, as the
identity of the Party or Parties, or their personal
representatives, successors and assigns may require.
(6) The Parties agree that they have been represented by counsel
during the negotiation and execution of this Agreement and,
therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party
drafting such agreement or document.
2. LOANS.
Subject to the terms of this Agreement, Yankees agrees to lend AmeriNet, on
the terms hereof, the sum of $200,000 for a period ending on or before May 31,
2001 (the "Loan(s)"), as follows:
(a) The obligations of Yankees to loan funds to AmeriNet shall commence on
the date hereof and expire on May 31, 2001, at which time all
outstanding loans hereunder must be repaid, together with accrued
interest; however, all outstanding obligations under this Agreement
shall be accelerated in the event that AmeriNet or any corporate
entity with which AmeriNet becomes subject to a reorganization under
Section 368 of the Code, completes a public offering of its securities
yielding at least $2,000,000 in net proceeds, or, terminates the
Letter of Intent with PCG.
(b) Loans hereunder will be made in $100,000 increments, and each loan
will be represented by its own separate negotiable Note and security
agreement.
(c) Each Note shall be:
(1) For a term ending on May 31, 2001; shall bear interest at the
annualized rate of 2% over the prime rate charged during the
subject period by Chase Manhattan Bank, N.A. (New York City) to
its most favored corporate borrowers for unsecured obligations
having a term of one year or less; and shall be payable in one
balloon installment, at maturity (May 31, 2001);
(2) Secured by a security interest in all of AmeriNet's assets,
including after acquired assets.
(d) AmeriNet shall be directly responsible for payment of all taxes, fees
and recording costs associated with the Loans, the hereinafter
described Notes, required stock transfers, UCC-1 financing statement,
security agreements and collateral assignments.
(e) This Agreement is being executed simultaneously with a Security
Agreement, a UCC Form One, and a Note the terms and conditions of
which are all hereby incorporated by reference herein.
3. TERM.
(a) This Agreement shall commence on the date Yankees provides funding on
the first Loan following this Agreement's execution and shall
terminate on the earlier of:
(1) The date on which AmeriNet first fully and completely discharges
all obligations to Yankees under this Agreement; or
(2) The termination of the PCG Letter of Intent.
(3) The acquisition of PCG by AmeriNet; or
(4) May 31, 2001.
(b) Notwithstanding the foregoing, Yankees may terminate this Agreement and
accelerate all of AmeriNet's obligations hereunder at any time that a
Default hereunder by AmeriNet takes place.
4. RIGHT OF FIRST REFUSAL
(a) Throughout the term of this Agreement and any renewals thereof, Yankees
shall have a right of first refusal to provide any debt or debt-equity
hybrid financing required by AmeriNet and its subsidiaries (the "Right of
First Refusal").
(b) In the event that AmeriNet has a definite opportunity to obtain financing
from some person or entity other than Yankees, it shall reduce such offer
to written form specifying each and every applicable term and identifying
the person or entity involved (the "Notice of Offer") and shall provide the
Notice of Offer to Yankees in the manner generally hereinafter provided for
submission of notices.
(c) Within ten business days following receipt of a Notice of Offer, Yankees
shall, by written response to AmeriNet in the manner generally hereinafter
provided for submission of notices either:
(1) Consent to the proposed funding;
(2) Request additional data which AmeriNet shall immediately provide;
or
(3) Agree to provide the funding on the terms contained in the Notice
of Offer.
(d) In the event that Yankees demands additional data, the ten business day
response period shall not commence until Yankees is provided with the
required data.
(e) If Yankees has been provided with all required data but has not responded
to the Notice of Offer within the ten business days response period, it
shall be presumed that Yankees has consented to the funding; however, no
consent to funding or presumed consent to funding shall result in the
waiver of Yankees' Right of First Refusal to provide any future funding.
(f) In the event that the terms of the proposed funding vary in any material
manner from the terms described in the Notice of Offer, then any consent or
presumed consent shall be deemed void and AmeriNet will be required to
notify Yankees of such change and resubmit the Notice of Offer to Yankees,
on the revised basis.
5. CONDITIONS PRECEDENT.
The obligation of Yankees to make the Loan shall be subject to the
following conditions:
(a) There shall have occurred no material adverse change in the business or the
financial condition of AmeriNet since the date of the latest financial
information filed by AmeriNet with the Commission, copies of which shall be
contemporaneously furnished by AmeriNet to Yankees;
(b) All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any
required filings, recordings or registrations) required to be done or
performed and to have happened precedent to the execution, delivery and
performance of this Agreement and the related security agreements,
collateral assignments and Notes shall have been done and performed to the
satisfaction of Yankees and its legal counsel;
(c) All corporate, and legal proceedings and all documents and instruments in
connection with the authorization of this Agreement and the related
security agreements, collateral assignments and Notes and all related
instruments and ancillary documentation thereto shall have been delivered
to Yankees and its legal counsel and Yankees shall have received all
information and copies of all other related documents and instruments,
including records of corporate proceedings, which Yankees and its legal
counsel may reasonably have requested in connection therewith, such
documents and instruments, where appropriate, to be certified by proper
corporate, or governmental authorities;
(d) Yankees shall have received the duly executed originals of this Agreement
and the related security agreements, collateral assignments and Notes and
all related ancillary documentation thereto and copies or originals of all
other documents, agreements and instruments relating to any aspect of the
transactions contemplated hereby, including evidence of insurance coverage
required by Yankees; and
(e) Yankees shall have received, in form and substance satisfactory to Yankees
and its legal counsel, such legal opinions, consents, and/or additional
documents relating to any of the foregoing which it may reasonably require.
6. MANDATORY PREPAYMENT IN THE EVENT OF LOSS; LOAN REPAYMENT.
(a) AmeriNet shall keep all of the Collateral (as that term is defined
hereinafter and from time to time in documents entered into by the Parties)
fully insured under all risk insurance policies acceptable in form and
substance to Yankees, such insurance to be in an amount adequate to fully
replace all the Collateral in the event of its damage or loss.
(b) In the event that the Collateral shall be lost, stolen, destroyed, damaged
beyond repair or rendered permanently unfit for normal use, or in the event
of any condemnation, confiscation, seizure, or requisition of title to or
use of the Collateral, AmeriNet agrees to make available any insurance
proceeds for the exclusive purpose of replacing the Collateral.
(c) If, however, AmeriNet elects not to repair or replace the Collateral within
30 days of AmeriNet's receipt of the insurance proceeds, all insurance
proceeds shall be applied to a then mandatory prepayment of the Secured
Obligations (as such term is defined in Section 9 hereof) by paying in full
an amount determined by:
(1) Obtaining a fraction, the numerator of which will be the total number
of payments remaining due on the Note unpaid after such prepayment is
made (including the payment, if any, due on the date on which
prepayment is made) multiplied by the actual dollar amount of each
payment due and the denominator of which shall be the total number of
payments required to be paid under the Note, multiplied by the actual
dollar amount of each payment due under the Note;
(2) Multiplying the resultant fraction by 10%;
(3) Multiplying the resulting percentage by the outstanding balance due on
the Note on the date of such prepayment;
(4) Adding the resulting dollar amount to the outstanding balance then due
on the Note (such aggregate sum being the mandatory prepayment
required to be paid hereunder).
(d) Notwithstanding the foregoing, Yankees shall be named as the primary
beneficiary on all insurance policies carried by AmeriNet which directly,
indirectly or incidentally cover the Collateral.
7. PLACE OF PAYMENTS.
Payment of principal, interest and other sums due or to become due with
respect to the Loan and all the Secured Obligations are to be made at the
principal executive offices of Yankees, or such other place as Yankees shall
designate to AmeriNet in writing, in lawful money of the United States of
America in immediately available funds.
8. LATE PAYMENTS & OTHER CHARGES.
(a) If any installment or other amount due with respect to the repayment of
the Loan or any portion of the Secured Obligations is not paid when the
same shall be due, AmeriNet will pay interest on any such overdue
amount at the highest rate permitted by law until the date such amount
is paid.
(b) AmeriNet shall pay or cause to be paid, in addition to all other
amounts payable hereunder:
(1) Premiums for insurance required to be obtained in connection with
the Loan and the Collateral;
(2) Fees paid for filing documents in public offices in connection
with the Loan and the transactions contemplated hereby; and
(3) Actual expenditures, including reasonable attorney's fees, for
proceedings to collect the Secured Obligations or to enforce,
preserve and protect the Collateral (as such term is defined
herein) and the rights and interest of Yankees therein.
9. ASSIGNMENT, GRANT OF SECURITY INTEREST.
As collateral security for the payment of the Secured Obligations,
AmeriNet, for the benefit and enforcement of its payment of the Secured
Obligations, hereby sells, assigns, and transfers to Yankees, its successors and
assigns, and grants to Yankees, a continuing first priority security interest in
and to all of its present and future right, title and interest in and to all of
its unissued and treasury securities, securities in other corporations
(including subsidiaries), assets, receivables, chattel paper and all cash and
non-cash proceeds (including proceeds of insurance), subject only to the prior
liens reflected in exhibit 2.1(c)(2).
10. RIGHTS AND POWERS WITH RESPECT TO THE COLLATERAL.
AmeriNet hereby authorizes Yankees to do every act and thing in the name of
AmeriNet or Yankees or otherwise which Yankees may deem advisable to enforce
effectively its rights and interest in and to the Collateral and AmeriNet hereby
irrevocably appoints Yankees, with full power of substitution and delegation, as
its true and lawful attorney-in-fact, with full right to demand, enforce,
collect, receive, receipt and give releases for any funds due or to become due
under or arising out of or with respect to, any of the Collateral and to endorse
all deeds, notes, receipts, checks, stock certificates and other instruments,
and to do and take all such other actions relating to any of the Collateral, to
file any claims or institute any proceedings with respect to any of the
foregoing which Yankees deems necessary to advisable and to compromise any such
demand, claim or action.
11. ASSIGNMENTS, ENCUMBRANCES, TRANSFERS.
(a) AmeriNet will not, without the prior consent of Yankees, assign or transfer
any of its rights or delegate any of its obligations with respect to this
Agreement or sell, dispose or otherwise grant any interest in or to any of
the Collateral, incur or suffer to exist any lien, charge, mortgage,
security interest or encumbrances upon any of the Collateral, except the
lien of Yankees created by this Agreement.
(b) In the event of any conveyance, foreclosure or other disposition of the
Collateral without Yankees's consent, then the entire principal balance,
together with all accrued interest shall be immediately due and payable.
12. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES.
AmeriNet acknowledges, represents and warrants that:
(a) As of the date of this Agreement, AmeriNet is not insolvent within the
meaning of applicable state and federal laws dealing with debtors and
creditors, including, without limitation, the Federal Bankruptcy Code;
(b) AmeriNet is a Delaware corporation duly organized and validly existing
in good standing under the laws of the State of Delaware, all of its
subsidiaries are duly organized, validly existing and in good standing
under the laws of their respective states of organization, AmeriNet and
all of its subsidiaries are qualified to engage in business in all
jurisdictions where such qualification is required and AmeriNet has
full power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby and thereby;
(c) This Agreement and the related security agreements, collateral
assignments and Notes provided for herein have been duly authorized by
all necessary corporate action and hereby and thereby constitute the
legal, valid and binding obligations of AmeriNet enforceable in
accordance with their respective terms;
(d) The making and performance by AmeriNet of this Agreement and the
related security agreements, collateral assignments, Notes and any
related documents and the transactions contemplated hereby and thereby
do not contravene any provisions of law applicable to AmeriNet and do
not conflict or are not inconsistent with, and will not result (with
or without the giving of notice or both) in a breach of or constitute
a default or require any consent under, or result in the creation of
any lien, charge or encumbrance upon the Collateral pursuant to the
terms of any credit agreement, indenture, mortgage, purchase
agreement, deed of trust, security agreement, lease guarantee or other
instrument to which AmeriNet is a party or by which AmeriNet or its
assets may be bound or to which its properties may be subject;
(e) All sales, use, property or other taxes, licenses, tolls, inspection or
other fees, bonds, permits or certificates which were or may be
required to be paid or obtained in connection with the acquisition or
ownership by AmeriNet of the Collateral will have been, or when due
will be, paid in full or obtained;
(f) AmeriNet has good, valid and marketable title to the Collateral free
and clear of all liens, claims and encumbrances, except as specifically
disclosed in exhibit 2.1(c)(2), if any;
(g) Concurrently with or prior to the time the initial Loan is made,
Yankees will have a perfected continuing first priority security
interest in and to all the Collateral, except as specifically disclosed
in exhibit 2.1(c)(2), if any; and
(h) AmeriNet has not entered into any understanding or agreement, (oral or
in writing) relating to the transactions contemplated herein, or any
other transactions contemplated or permitted by this Agreement, with
any person or entity which understanding, agreement or other writing
would, in the reasonable determination of Yankees, affect the
Collateral in any manner whatsoever or any of the rights or interests
of Yankees with respect thereto.
13. DEFAULT; REMEDIES.
(a) If a Default occurs under this Agreement, Yankees may accelerate the
full amount of the then outstanding Secured Obligations (in which event
such amount will become immediately due and payable by AmeriNet)
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived, and, if not paid in full within
10 business days thereafter, Yankees shall, at its election, become
vested with the Collateral in fee simple absolute, without further
action or legal recourse, this Section being deemed a full warranty
xxxx of sale absolute with reference to the Collateral.
(c) In the event that for any reason Yankees is not in possession or
control of any of the Collateral, or disclaims its right to assume
ownership thereof because of public policies or otherwise, then,
Yankees may pursue all of the rights and remedies with respect to the
Collateral accruing to Yankees hereunder or by operation of law as a
secured creditor under the Uniform Commercial Code or other applicable
law and all such available rights and remedies, to the full extent
permitted by the law, shall be cumulative and not exclusive.
14. APPLICATION OF PROCEEDS.
In the event that Yankees is unable or unwilling to take possession of
all the Collateral in the event of a Default, then, upon enforcement of this
Agreement, all funds received upon the foreclosure and liquidation of the
Collateral shall be applied by Yankees in the following order:
(a) To the payment of all costs, expenses, liabilities and compensation of
Yankees (including fees and expenses of its agents and legal counsel)
incurred or accrued in connection with any action or proceeding brought
by Yankees or in connection with the maintenance , sale or other
disposition of the Collateral or any portion thereof;
(b) To the payments of all interest then due and payable on the Loans;
(c) To the payments of all principal then due and payable on the Loans;
(d) To the payment of all other obligations to Yankees;
(e) To the payment of all other Secured Obligations;
(f) To the payment of any surplus then remaining to AmeriNet or other
person legally entitled thereto.
15. RECEIPT OF FUNDS BY AMERINET.
Notwithstanding the granting to Yankees of a first priority security
interest in and to the Collateral, if, at any time while the Secured Obligations
remain unsatisfied, AmeriNet shall receive any amount representing funds due, or
proceeds of, any of the Collateral, such sums shall be held by AmeriNet in trust
for Yankees and shall be immediately paid by AmeriNet to Yankees in the form so
received, together with any necessary endorsement thereon.
16. FURTHER ASSURANCES.
AmeriNet agrees to execute and deliver to Yankees, or cause to be executed
and delivered to Yankees, such further instruments and documents as may be
reasonably requested by Yankees to carry out fully the intent and accomplish the
purposes of this Agreement, and the transactions referred to herein and therein,
and to protect and maintain the first priority security interest of Yankees in
and to the Collateral or the immediate conveyance of the Collateral to Yankees
in the event of a default hereunder.
17. FINANCIALS.
AmeriNet hereby represents, warrants, and covenants to Yankees that it will
cause to be delivered to Yankees as soon as practicable, but in any event within
90 days after the end of each fiscal year, statements of earnings and retained
earnings and changes in its financial position for such year, and its balance
sheet at the end to such fiscal year, setting forth in each case in comparative
form the corresponding figures of the previous annual audit, all in reasonable
detail and certified by, and accompanied by a report or opinion of, independent
certified public accountants of recognized standing acceptable to Yankees, and
(b) within 45 days after the end of each fiscal quarter, its statements of
earnings and retained earnings and changes in financial position for such fiscal
quarter, and its balance sheet at the end of such fiscal quarter, setting forth
in each case in comparative form the corresponding figures of the previous
quarterly audit, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, consistently applied, and certified by
AmeriNet's Chief Financial Officer.
18. DISPUTE RESOLUTION.
(a) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement any
proceedings pertaining directly or indirectly to the rights or
obligations of the Parties hereunder will, to the extent legally
permitted, be held in Xxxxxx County, Florida, and the prevailing Party
will be entitled to recover its costs and expenses, including
reasonable attorneys' fees up to and including all negotiations, trials
and appeals, whether or not any formal proceedings are initiated.
(b) In the event of any dispute arising under this Agreement, or the
negotiation thereof or inducements to enter into the Agreement, the
dispute will, at the request of any Party, be exclusively resolved
through the following procedures:
(1) (A) First, the issue will be submitted to mediation
before a mediation service in Xxxxxx County, Florida
to be selected by lot from six alternatives to be
provided, three by AmeriNet and three by Yankees.
(B) The mediation efforts will be concluded within ten
business days after their initiation unless the
Parties unanimously agree to an extended mediation
period;
(2) In the event that mediation does not lead to a resolution of
the dispute then at the request of any Party, the Parties will
submit the dispute to binding arbitration before an
arbitration service located in Xxxxxx County, Florida to be
selected by lot, from six alternatives to be provided, three
by AmeriNet and three by Yankees.
(3) (A) Expenses of mediation will be borne equally by the
Parties, if successful.
(B) Expenses of mediation, if unsuccessful and of
arbitration will be borne by the Party or Parties
against whom the arbitration decision is rendered.
(C) If the terms of the arbitral award do not establish a
prevailing Party, then the expenses of unsuccessful
mediation and arbitration will be borne equally by
the Parties involved.
(c) Jurisdiction.
(1) AmeriNet irrevocably consents to service of any summons and/or
legal process by registered or certified United States air
mail, postage prepaid, to AmeriNet at the address set forth in
Section 18(b) hereof, such method of service to constitute, in
every respect, sufficient and effective service of process in
any such legal action or proceeding.
(2) Nothing in this Agreement shall affect the right to service of
process in any other manner permitted by law or limit the
right of Yankees to bring actions, suits or proceedings in the
courts of any other jurisdiction.
(3) AmeriNet further agrees that final judgment against it in any
such legal action, suit or proceeding shall be conclusive and
may be enforced in any other jurisdiction, within or outside
the United States of America, by suit on the judgment, a
certified or exemplified copy of which shall be conclusive
evidence of the fact and the amount of AmeriNet's liability.
18. MISCELLANEOUS.
(a) No Waiver; Cumulative Remedies.
(1) No failure or delay on the part of Yankees in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege.
(2) No right or remedy in this Agreement is intended to be
exclusive but each shall be cumulative and in addition to any
given Yankees at law or in equity; and the exercise by Yankees
of any one or more of such remedies shall not preclude the
simultaneous or later exercise by Yankees of any or all such
other remedies.
(3) No express or implied waiver by Yankees of any future or
subsequent Default.
(4) To the extent permitted by law, AmeriNet waives any rights now
or hereafter conferred by statute or otherwise which limit or
modify any of Yankees's rights or remedies under this
Agreement.
(b) Notices.
(1) All notices, requests and demands to or upon any party hereto
shall be deemed to have been duly given or made when deposited
in the United States mail, first class postage prepaid,
addressed to such party at such address as may be hereafter
designated in writing by such party to the other party hereto.
(2) Notices will initially be addressed as follows:
(A) To AmeriNet:
AmeriNet Xxxxx.xxx, Inc.
Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X;
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, President
Telephone (000) 000-0000, Fax (000) 000-0000; and, e-mail
Xxxxxxxx@xxxxxxxxxxxxx.xxx.
(B) To Yankees:
The Yankee Companies, Inc.
Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000;
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx Xxxxxx, President
Telephone (000) 000-0000, Fax (000) 000-0000;
and, e-mail Xxxxx@xxxxxxxxxxxxxxx.xxx;
(3) At the request of any Party, notice will also be provided by
overnight delivery, facsimile transmission or e-mail, provided
that a transmission receipt is retained.
(4) (A) The Parties acknowledge that Yankees serves as a
strategic consultant to AmeriNet and has acted as
scrivener for the Parties in this transaction but
that Yankees is neither a law firm nor an agency
subject to any professional regulation or oversight.
(B) Because of the inherent conflict of interests
involved, Yankees has advised AmeriNet to retain
independent legal counsel to review this Agreement
and its exhibits and incorporated materials on its
behalf.
(C) The decision by any Party not to use the services of
legal counsel in conjunction with this transaction
will be solely at its own risk, each Party
acknowledging that applicable rules of the Florida
Bar prevent Yankees' general counsel, who has
reviewed, approved and caused modifications on behalf
of Yankees, from representing anyone other than
Yankees in this transaction.
(D) This Agreement shall not be construed more strictly
against Yankees nor will it be interpreted in any
manner based on the fact that it was authored by
Yankees.
(c) Payment of Expenses and Taxes; Performance by Yankees of AmeriNet's
Obligations.
(1) AmeriNet agrees, whether or not the transactions contemplated
by this Agreement shall be consummated, to pay
(A) All costs and expenses of Yankees in connection with
the negotiation, preparation, execution and delivery
of this Agreement, and the other documents relating
hereto;
(B) All fees and taxes in connection with the recording
of this Agreement or any other document or instrument
required hereby; and
(C) All costs and expenses of Yankees in connection with
the enforcement of this Agreement including all legal
fees and disbursements arising in connection
therewith.
(2) AmeriNet agrees to pay, and to indemnify and hold Yankees
harmless from any delay in paying, all taxes, including
without limitation, sales, use, stamp and personal property
taxes (other than any corporate income, capital, franchise or
similar taxes payable by Yankees with respect to the payments
made to Yankees hereunder or thereunder) and all license,
filing, and registration fees and assessments and other
charges, if any, which may be payable in connection with the
execution, delivery and performance of this Agreement, or any
modification thereof.
(3) If AmeriNet fails to perform or comply with any of its
agreements contained herein and Yankees shall itself perform
or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of Yankees incurred in connection
with such performance or compliance, together with interest
thereon at the rate provided for in the Notes shall be payable
by AmeriNet to Yankees on demand and until such payment shall
constitute part of the Secured Obligations secured hereby.
(d) Survival of Representations and Warranties.
All representations and warranties made in this Agreement and any
documents delivered pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the making of the Loans
hereunder.
(e) Amendments.
Neither this Agreement, nor any instruments related thereto, may be
changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the Party against whom enforcement of a
change, waiver, discharge or termination is sought.
(f) Counterparts & Facsimile Execution.
(1) This Agreement may be executed by the Parties hereto on any
number of separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
(2) Execution by original signature on a document delivered to a
Party through facsimile transmission shall be deemed full
execution for all purposes by the Party executing and
transmitting such document.
(g) Headings.
The headings of the Sections and Paragraphs are for convenience only,
are not part of this Agreement and shall not be deemed to effect the
meaning or construction of any of the provisions hereof.
(h) Successors or Assigns.
This Agreement shall be binding upon and inure to the benefit of
AmeriNet and Yankees and their respective successors and assigns,
except that AmeriNet may not assign or transfer its rights or
obligations hereunder or any interest herein without the prior written
consent of Yankees.
(i) Governing Law
This Agreement shall be governed by, and construed and interpreted in
accordance with the laws of State of Delaware, other than its rules
pertaining to conflicts of laws.
(j) Severability & Reconstruction.
(1) If any provision or any portion of any provision of this
Agreement, or the application of such provision or any portion
thereof to any person or circumstance shall be held invalid or
unenforceable, the remaining portions of such provision and
the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held
invalid or unenforceable to persons or circumstances other
than those to which it is held invalid or unenforceable, shall
not be affected thereby.
(2) In the event any provision in this Agreement or related
instruments is found to be unenforceable, the Parties hereby
request that the Court interpreting such provision restructure
it in the manner consistent with applicable law most closely
meeting the intent of the Parties, as reflected hereby.
(k) Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the
party or parties, or their personal representatives, successors and
assigns may require.
(j) License.
(1) This Agreement is the property of Yankees.
(2) The use hereof by the Parties is authorized hereby solely for
purposes of this transaction and, the use of this form of
agreement or of any derivation thereof without Yankees's prior
written permission is prohibited.
In Witness Whereof, the Parties have caused this Agreement to be executed
on their behalf by their duly authorized representatives as of the day last set
forth below.
Signed, Sealed and Delivered
In Our Presence
AmeriNet Xxxxx.xxx, Inc.
-------------------------------
_______________________________ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
[Corporate Seal]
Dated: May 7, 2001
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx,
known to me who, being duly sworn, did state that they are the duly elected and
serving president and secretary of AmeriNet Xxxxx.xxx, Inc., a Delaware
corporation ("AmeriNet"), and that pursuant to authority duly delegated by its
board of directors, they executed the foregoing Agreement on behalf of AmeriNet,
effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxx Xxx Xxxxxxxx
Notary Public
The Yankee Companies, Inc.
-------------------------------
_______________________________ By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx, President
[Corporate Seal]
Dated: May 7, 2001
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxxx Xxxxx Xxxxxx and Xxxxxxx X.
Xxxxxxx, known to me who, being duly sworn, did state that they are the duly
elected and serving president and secretary of The Yankee Companies, Inc., a
Florida corporation ("Yankees"), and that pursuant to authority duly delegated
by its board of directors, they executed the foregoing Agreement on behalf of
Yankees, effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxxxx X. Xxxxxxx
Notary Public
Security Agreement
THIS SECURITY AGREEMENT (the "Agreement") is entered into by and between
The Yankee Companies, Inc., a Florida corporation ("Yankees") and AmeriNet
Xxxxx.xxx, Inc., a Delaware corporation ("AmeriNet"; Yankees and AmeriNet being
sometimes hereinafter collectively referred to as the "Parties" and each being
sometimes hereinafter generically referred to as a "Party").
Witnesseth
In consideration of the sum of TEN DOLLARS ($10.00) and other good and
valuable consideration given by Yankees to AmeriNet, and for other value
received by AmeriNet; the Parties, intending to be legally bound, hereby agree
as follows:
1. DEFINITIONS:
The definitions and rules of constructions contained in Section 1 of the
Convertible Loan Agreement executed by the Parties concurrently herewith (the
"Convertible Loan Agreement") are hereby incorporated by reference.
2. ASSIGNMENT OF COLLATERAL:
(a) As security for the payment of the Obligations and all Loans and
advances heretofore made, made concurrently with the execution of the
Convertible Loan Agreement or made in the future made by Yankees to
AmeriNet and for all AmeriNet's liabilities to Yankees, including any
extensions, renewals or changes in form of any thereof, AmeriNet hereby
assigns to Yankees and grants to Yankees a security interest under the
Uniform Commercial Code in the Collateral.
(b) The Collateral shall be deemed to have been constructively delivered by
AmeriNet to Yankees immediately following execution of this Agreement
and shall be deemed to remain in the possession of AmeriNet, as trustee
for Yankees, for so long as any obligations of AmeriNet to Yankees
remain unfulfilled; provided, however, that, if AmeriNet defaults in
its obligations to Yankees, then at Yankees sole option and without any
required further action or legal process by Yankees, all of the
Collateral shall become the sole and exclusive property of Yankees,
this Section being deemed a full warranty xxxx of sale, deed and
securities power separate from certificate for all of the Collateral.
3. RESTRAINT:
So long as any Liability to Yankees is outstanding, AmeriNet will not
without prior written consent of Yankees borrow from anyone on the security of,
or pledge, or grant any security interest in, any Collateral, or permit any lien
or encumbrance to attach to any of the foregoing, or any levy to be made
thereon, or any financing statement to be on file with respect thereto.
4. OFFICE:
(a) AmeriNet represents that its principal place of business is at Crystal
Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000-X; Xxxx Xxxxx,
Xxxxxxx 00000.
(b) AmeriNet will immediately advise Yankees in writing of the opening of
any new place of business or the closing of its existing places of
business, and of any changes in the location of the place where any new
Collateral not in the possession of Yankees is kept or where AmeriNet's
records concerning the Collateral are kept.
5. DOCUMENTS:
AmeriNet will promptly:
(a) Join with Yankees in executing a financing statement and pay the cost
of filing the same in any public office deemed advisable by Yankees;
(b) Execute and deliver to Yankees upon demand such additional assurances
and instruments as may be required by Yankees to maintain the security
of Yankees in good standing and effectuate the intent of this
Agreement, including additional security agreements on a Loan by Loan
basis; and
(c) In the event of Default either of the terms hereof, or as enumerated in
the Convertible Loan Agreement or in the Notes, execute all such
documents and do all such acts necessary to have the Collateral
transferred into the name of Yankees as Yankees shall request.
6. INDEMNIFICATION:
AmeriNet hereby indemnifies and holds harmless Yankees for all loss, cost,
expense or damage resulting from AmeriNet's Default under this Agreement.
7. INSURANCE:
(a) AmeriNet shall keep all Collateral insured under policies of all-risk
insurance (which shall include, but not be limited to, fire, extended
coverage and vandalism) placed with companies and agents approved by
Yankees and such insurance shall be carried in amounts which Yankees
may deem sufficient for its complete protection, but in no event less
than the greater of (i) the aggregate principal sum of the Liabilities
or (ii) the aggregate replacement value of the Collateral.
(b) (1) The premiums for all such insurance shall be paid by AmeriNet
not later than fifteen (15) days before the same are due.
(2) The original certificates of such policy or policies shall be
delivered to and held by Yankees and shall be made payable to
Yankees In the event any sum of money becomes payable under
such policy or policies, Yankees shall have the option to
receive and apply the same on account of the indebtedness
hereby secured against payments of principal in the inverse
order of their maturity, or to permit AmeriNet to receive and
use it, or any part thereof, for other purposes, without
thereby waiving or impairing any equity, lien or right under
and by virtue of this Agreement.
(3) The placing of such insurance and the paying of the premium of
such insurance, or any part thereof, by Yankees shall not be
deemed to waive or affect any right of Yankees hereunder.
(c) (1) If Yankees acquires title to the Collateral, any unearned
premiums on any hazard insurance covering the Collateral and
held by Yankees are hereby assigned to and shall belong to
Yankees.
(2) If at any time during the term of this Agreement any insurance
policies shall be canceled and returned premiums become
available (excluding return of premium in whole on or before
such time as a new fully paid insurance policy is issued in
accordance with the terms of this Agreement), these returned
premiums shall belong to Yankees and, at the option of
Yankees, may be credited by Yankees against the Liabilities
secured hereunder.
(d) Any rights of Yankees to any insurance proceeds shall in no way be
affected or impaired by reason of the fact that Yankees may have
exercised any remedy available to Yankees In the event any losses shall
be payable on
any insurance policies covering the Collateral, AmeriNet and all
successors in title and all persons now or hereafter holding inferior
liens on such damaged and/or destroyed property hereby appoint Yankees
agent and attorney-in-fact to endorse such proceeds, checks(s) or
drafts(s) for the purpose, at the option of Yankees, of applying them
against the Liabilities.
8. COVENANTS:
AmeriNet covenants and agrees that it shall:
(a) (1) Receive as the sole property of Yankees and hold as
trustee for Yankees all funds, checks, notes, drafts, and
other property ("Items of Payment") representing the proceeds
of any Collateral in which Yankees has a security interest,
which come into the possession of AmeriNet;
(2) Deposit all such items of payment immediately in the exact
form received in a special account of AmeriNet in a federally
insured, state or federal savings and loan association or
commercial bank ("Bank") entitled "Cash Collateral Account;"
and
(3) Execute such documents and do such acts as Yankees may require
to insure that Yankees shall have a perfected security
interest in such Cash Collateral Account to additionally
secure all AmeriNet's Liabilities; provided, however, that
AmeriNet shall have the right to use all or a portion of the
Cash Collateral Account to purchase new Collateral of like
kind and quality free and clear of all liens;
(b) Furnish a landlord's waiver of lien where AmeriNet is a tenant in
possession of leased premises, in form acceptable to Yankees wherein
landlord waives its lien for rent and all claims and demands of every
kind against AmeriNet's Collateral and authorizes Yankees to enter upon
the leased premises for the purpose of enabling Yankees to take
possession of AmeriNet's Collateral, pursuant to the terms of this
Agreement;
(c) (1) Make all payments of taxes, including but not limited to
assessments, levies, liabilities, obligations and encumbrances of
every nature upon the Collateral before same become delinquent;
(2) AmeriNet shall deliver to Yankees receipts evidencing the payment
of said taxes, assessments, levies, liabilities, obligations, and
encumbrances immediately on the payment thereof as required in
this Section.
(3) In default thereof, Yankees may at any time pay the same without
waiving or affecting any rights hereunder and every payment so
made shall bear interest from the date hereof at the highest rate
permitted by law;
(d) Pay on demand any cost, charge and expense, including reasonable
attorneys' fees through all trial and appellate levels, incurred or
paid at any time by Yankees arising out of the failure of AmeriNet to
perform timely and comply with and abide by any of the stipulations,
agreements, conditions and covenants of the Agreement and every such
payment after the same becomes due shall bear interest from date at the
highest rate permitted by law;
(e) Keep adequate records and books of account on accordance with generally
accepted accounting principles with respect to AmeriNet's business and
will permit Yankees, its agents, accountants and attorneys to visit and
inspect the Collateral and examine its records and books of account and
to discuss its affairs, finances and accounts with Yankees, at such
reasonable times during normal business hours, as may be requested by
Yankees upon twenty-four (24) hours notice;
(f) Keep the Collateral in good repair and operating order.
9. NO EXEMPTION:
AmeriNet hereby declares that the Collateral forms no part of any
property owned, used or claimed by AmeriNet as exempted from forced sale under
the laws of any state and disclaims, waives and renounces all and every claim to
exemption under any homestead exemption.
10. CONVEYANCE:
(a) The sale, lease, transfer or other conveyance of the Collateral or any
part thereof to another party or parties without the prior written
consent of Yankees, shall at Yankees's option, constitute a default
under this Agreement. No Collateral shall be removed, demolished or
substantially altered, nor shall any Collateral be removed without the
prior written consent of Yankees.
(b) In the event that AmeriNet is in possession of any of the Collateral,
for whatever purpose or reason, upon the failure of AmeriNet to keep
such Collateral in good condition or repair, Yankees may at its option,
make such repairs, and any such sums expended by Yankees shall be
immediately due and payable and shall bear interest from the date
thereof at the highest rate permitted by law.
11. ENCUMBRANCES:
The encumbrance of the Collateral in any manner, including, without
limitation, the obtaining by AmeriNet or its successors or assigns of any
additional financing secured by any part of the Collateral, without the prior
written consent of Yankees (which consent shall be either granted or withheld in
Yankees's sole and unfettered discretion) shall constitute a Default under this
Agreement.
12. LAWFUL PURPOSE:
To the extent that it is in possession of any of the Collateral,
AmeriNet shall not use the Collateral or allow the same to be used for any
unlawful purpose or in violation of any law, ordinance or regulation now or
hereafter covering or affecting the use thereof.
13. DEFAULT:
The default provisions of the Convertible Loan Agreement, the Notes and
of the other agreements pertaining to this transaction executed concurrently
herewith or hereafter pursuant to the terms of the Convertible Loan Agreement
are hereby, herein incorporated by reference.
14. OTHER ACTIONS:
(a) In the event AmeriNet fails to pay any charges or obligations required
to be paid or perform any acts required to be performed by AmeriNet
hereunder within the time set forth for such payment or performance,
Yankees shall have the right to pay such charge or obligation and
perform such act without waiving or affecting the option of Yankees to
consider this Agreement in Default.
(b) All funds advanced by Yankees pursuant to this Section shall be deemed
additional funds owed by AmeriNet to Yankees, shall be payable with
interest from the date of advance thereof at the highest rate permitted
by law, upon demand of Yankees thereof and shall be secured by the lien
of this Agreement.
(c) If any action or proceeding shall be commenced by any person to which
action or proceeding Yankees is made a party, or in which it shall
become necessary to defend or uphold the lien of this Agreement, all
sums paid by Yankees for the expenses of any such litigation (including
reasonable attorney's fees through all trial and
appellate levels) shall be paid by AmeriNet to Yankees together with
interest thereon at the highest rate permitted by law.
15. COSTS:
AmeriNet shall pay to Yankees all lawful charges and disbursements,
including attorneys' fees through all negotiations, administrative, trial and
appellate levels incurred by Yankees in connection with the protecting or
enforcing the rights of Yankees hereunder and all such sums shall be secured by
the lien of this Agreement.
16. WAIVER:
(a) AmeriNet waives notice of non-payment and protest of all commercial
paper, including, but not limited to the liabilities at any time held
by Yankees on which AmeriNet is in any way liable.
(b) (1) No waiver by Yankees of any default shall operate as a waiver
of any other default or of the same default on a future
occasion.
(2) No delay or omission on the part of Yankees in exercising any
right or remedy shall operate as a waiver thereof, and no
single or partial exercise by Yankees of any right or remedy
shall preclude any other or further exercise thereof or the
exercise of any other right or remedy.
(3) Time is of the essence of this Agreement.
(4) The provisions of this Agreement are cumulative and in
addition to the provisions of any remedy under any Note or
other writing evidencing any liability secured hereby.
(c) AmeriNet releases Yankees from all claims for loss or damage caused by
any failure to protect the Collateral or by any act or omission on the
part of Yankees, its officers, agents and employees, except willful
misconduct.
17. MISCELLANEOUS:
The miscellaneous provisions of the Convertible Loan Agreement are
hereby incorporated by reference.
In Witness Whereof, the Parties have caused this Agreement to be executed
on their behalf by their duly authorized representatives as of the day last set
forth below.
Signed, Sealed and Delivered
In Our Presence
AmeriNet Xxxxx.xxx, Inc.
-------------------------------
_______________________________ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
[Corporate Seal]
Dated: May 7, 2001
Attest: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx,
known to me who, being duly sworn, did state that they are the duly elected and
serving president and secretary of AmeriNet Xxxxx.xxx, Inc., a Delaware
corporation ("AmeriNet"), and that pursuant to authority duly delegated by its
board of directors, they executed the foregoing Agreement on behalf of Yankees,
effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxx Xxx Xxxxxxxx
Notary Public
The Yankee Companies, Inc.
-------------------------------
_______________________________ By: _____________________________
Xxxxxxx Xxxxx Xxxxxx, President
[Corporate Seal]
Dated: May 7, 2001
Attest: _______________________________
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxxx Xxxxx Xxxxxx and Xxxxxxx X.
Xxxxxxx, known to me who, being duly sworn, did state that they are the duly
elected and serving president and secretary of The Yankee Companies, Inc., a
Florida corporation ("Yankees"), and that pursuant to authority duly delegated
by its board of directors, they executed the foregoing Agreement on behalf of
Yankees, effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxxxx X. Scimceca
Notary Public
Full Recourse Secured Promissory Note
$ 75,000 May 7, 2001
FOR VALUE RECEIVED, AmeriNet Xxxxx.xxx, Inc., a publicly held Delaware
corporation with a class of securities registered under Section 12(g) of the
Exchange Act and with offices at Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000 ("AmeriNet") hereby agrees to pay
to the order of Xxxxxxxx Xxxxxx, a Florida resident, with offices at The Crystal
Corporate Center; 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000; Xxxx Xxxxx, Xxxxxxx
00000 ("Xxx. Xxxxxx"), the principal sum of $75,000, yielding interest
commencing to run from the date hereof at a compound annual rate of 2% over the
prime rate charged during the subject period by Chase Manhattan Bank, N.A. (New
York City) or its successor in interest to its most favored corporate borrowers
for unsecured obligations having a term of one year or less, on the following
terms:
Terms:
1. INCORPORATED TERMS
(a) The terms and provisions of the Convertible Loan Agreement entered into
between AmeriNet and Yankees on May 7, 2001, a copy of which is annexed
hereto and made a part hereof as exhibit 1 (the "Convertible Loan
Agreement"), are hereby incorporated by reference herein as if here fully
set forth.
(b) Any provisions in this Note dealing with a subject or object also dealt
with in the Convertible Loan Agreement shall, to the extent of any
inconsistencies, be deemed to provide Yankees with additional rights and
options which will be exercisable in Yankees' sole discretion.
2. PAYMENTS & COLLATERAL
(a) This Note shall be payable in one balloon installment of principal and
interest on or before May 31, 2001.
(b) All payments are to be made at the offices of Xxx. Xxxxxx or at such other
address as Xxx. Xxxxxx shall designate for such purposes.
(c) This Promissory Note is secured by all of the Assets of AmeriNet, whether
currently owned or hereafter acquired.
3. ACCELERATION
In the event that any payment due hereunder is not made when due, or on the
occurrence of any one or more of the events of Default specified in the
Convertible Loan Agreement, the entire remaining unpaid principal, all accrued
interest and any related reimbursements for costs and expenses shall immediately
become due and payable, without notice or demand, at the option of the holder
hereof.
4. PREPAYMENTS
AmeriNet may prepay this Note, in whole or in part, without penalty, at any
time, provided however, that any partial payments shall first be applied to
related reimbursable costs and expenses, then to interest, and then to
principal; and, provided further, that in the event of a partial prepayment of
principal, the monthly payments shall be re-amortized, at AmeriNet's sole cost
and expense, over the remaining term of this Note.
5. ASSUMPTION
(a) This Note may be assigned at will by Yankees but shall be assumable only
with the express, prior written consent of Xxx. Xxxxxx.
(b) In the event of any permitted assumption, all prior obligors will remain
liable to Xxx. Xxxxxx as guarantors of the permitted assignee's performance
but Xxx. Xxxxxx shall have the right to enforce such guarantees directly
against them without first having to seek performance, payment or relief
from the permitted assignee.
6. DEMANDS & NOTICES
(a) Any demand or notice made or given by Xxx. Xxxxxx pursuant hereto or in
connection herewith, shall be made on or given to AmeriNet and its
successors in interest by registered mail, return receipt requested,
postage prepaid, directed to AmeriNet's address hereinbefore provided or
such updated address as Xxx. Xxxxxx shall have in its records, in each case
with copies to Office of the General Counsel, The Yankee Companies, Inc.,
0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000, attorney for Xxx.
Xxxxxx, and to any legal counsel designated by AmeriNet; but making or
giving or attempting to make or give any demand or notice shall not waive
any right granted hereunder or otherwise to act without demand or notice.
(b) Notice shall be effective when delivered by Xxx. Xxxxxx to United States
Post Office personnel, whether or not such personnel actually succeed in
effecting delivery on AmeriNet or its successors in interest.
7. EXPENSES
AmeriNet hereby agrees to pay all expenses, including the attorney's fees,
which the holder may incur upon default or at maturity.
8. COVENANTS
AmeriNet and any guarantor, surety or endorser, and all others who are, to
whom may become, liable for the payment hereof:
(a) Expressly consent to all extensions of time, renewals, postponements of
time of payment of this Note, from time to time, prior to or after the day
that they become due without notice, consent or consideration to any of the
foregoing; and
(b) Expressly agree to the additional release by Yankees of any party or person
primarily liable herein or any portion of the Collateral.
9. ENFORCEMENT
No delay by the holder in enforcing any covenant or right hereunder shall
be deemed a waiver of such covenant or right and no waiver by the holder of any
particular provision hereof shall be deemed a waiver of any other provision or a
continuing waiver of such particular provision, and except as so expressly
waived, all provisions hereof shall continue in full force and effect.
10. SPECIAL WAIVERS
The undersigned, and all guarantors and all endorsers, hereby severally
waive presentment for payment, protest and notice of protest for non-payment of
this Note.
11. TIMELINESS
Time shall be of the essence.
12. LICENSE
(a) This form of Note is the property of The Yankee Companies, Inc.
("Yankees").
(b) The use hereof by the Parties is authorized hereby solely for purposes of
this transaction and, the use of this form of agreement or of any
derivation thereof without Yankees's prior written permission is
prohibited.
In Witness Whereof, AmeriNet has caused this Note to be executed on its
behalf by their duly authorized representatives as of the date first set forth
below.
Signed, Sealed and Delivered
In Our Presence
AmeriNet Xxxxx.xxx, Inc.
-------------------------------
_______________________________ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Dated: May 7, 2001
[Corporate Seal]
Attest: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx,
known to me who, being duly sworn, did state that they are the duly elected and
serving president and secretary of AmeriNet Xxxxx.xxx, Inc., a Delaware
corporation ("AmeriNet"), and that pursuant to authority duly delegated by its
board of directors, they executed the foregoing Note on behalf of AmeriNet,
effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxx Xxx Xxxxxxxx
Notary Public
Full Recourse Secured Promissory Note
$ 25,000 May 7, 2001
FOR VALUE RECEIVED, AmeriNet Xxxxx.xxx, Inc., a publicly held Delaware
corporation with a class of securities registered under Section 12(g) of the
Exchange Act and with offices at Crystal Corporate Center; 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 000-X; Xxxx Xxxxx, Xxxxxxx 00000 ("AmeriNet") hereby agrees to pay
to the order of The Xxxxx Family Spendthrift Trust, a Florida trust, with
offices at 1941 Southeast 51st Terace; Xxxxx, Xxxxxxx 00000 ("Xxxxx Family"),
the principal sum of $25,000, yielding interest commencing to run from the date
hereof at a compound annual rate of 2% over the prime rate charged during the
subject period by Chase Manhattan Bank, N.A. (New York City) or its successor in
interest to its most favored corporate borrowers for unsecured obligations
having a term of one year or less, on the following terms:
Terms:
1. INCORPORATED TERMS
(a) The terms and provisions of the Convertible Loan Agreement entered into
between AmeriNet and Yankees on May 7, 2001, a copy of which is annexed
hereto and made a part hereof as exhibit 1 (the "Convertible Loan
Agreement"), are hereby incorporated by reference herein as if here fully
set forth.
(b) Any provisions in this Note dealing with a subject or object also dealt
with in the Convertible Loan Agreement shall, to the extent of any
inconsistencies, be deemed to provide Yankees with additional rights and
options which will be exercisable in Yankees' sole discretion.
2. PAYMENTS & COLLATERAL
(a) This Note shall be payable in one balloon installment of principal and
interest on or before May 31, 2001.
(b) All payments are to be made at the offices of Xxxxx Family or at such other
address as Yankees shall designate for such purposes.
(c) This Promissory Note is secured by all of the Assets of AmeriNet, whether
currently owned or hereafter acquired.
3. ACCELERATION
In the event that any payment due hereunder is not made when due, or on the
occurrence of any one or more of the events of Default specified in the
Convertible Loan Agreement, the entire remaining unpaid principal, all accrued
interest and any related reimbursements for costs and expenses shall immediately
become due and payable, without notice or demand, at the option of the holder
hereof.
4. PREPAYMENTS
AmeriNet may prepay this Note, in whole or in part, without penalty, at any
time, provided however, that any partial payments shall first be applied to
related reimbursable costs and expenses, then to interest, and then to
principal; and, provided further, that in the event of a partial prepayment of
principal, the monthly payments shall be re-amortized, at AmeriNet's sole cost
and expense, over the remaining term of this Note.
5. ASSUMPTION
(a) This Note may be assigned at will by Xxxxx Family but shall be assumable
only with the express, prior written consent of Yankees.
(b) In the event of any permitted assumption, all prior obligors will remain
liable to Xxxxx Family as guarantors of the permitted assignee's
performance but Xxxxx Family shall have the right to enforce such
guarantees directly against them without first having to seek performance,
payment or relief from the permitted assignee.
6. DEMANDS & NOTICES
(a) Any demand or notice made or given by Xxxxx Family pursuant hereto or in
connection herewith, shall be made on or given to AmeriNet and its
successors in interest by registered mail, return receipt requested,
postage prepaid, directed to AmeriNet's address hereinbefore provided or
such updated address as Xxxxx Family shall have in its records, in each
case with copies to Office of the General Counsel, The Yankee Companies,
Inc., 0000 Xxxxxxxxx 00xx Xxxxxxx; Xxxxx, Xxxxxxx 00000, attorney for Xxxxx
family, and to any legal counsel designated by AmeriNet; but making or
giving or attempting to make or give any demand or notice shall not waive
any right granted hereunder or otherwise to act without demand or notice.
(b) Notice shall be effective when delivered by Xxxxx Family to United States
Post Office personnel, whether or not such personnel actually succeed in
effecting delivery on AmeriNet or its successors in interest.
7. EXPENSES
AmeriNet hereby agrees to pay all expenses, including the attorney's fees,
which the holder may incur upon default or at maturity.
8. COVENANTS
AmeriNet and any guarantor, surety or endorser, and all others who are, to
whom may become, liable for the payment hereof:
(a) Expressly consent to all extensions of time, renewals, postponements of
time of payment of this Note, from time to time, prior to or after the day
that they become due without notice, consent or consideration to any of the
foregoing; and
(b) Expressly agree to the additional release by Xxxxx Family of any party or
person primarily liable herein or any portion of the Collateral.
9. ENFORCEMENT
No delay by the holder in enforcing any covenant or right hereunder shall
be deemed a waiver of such covenant or right and no waiver by the holder of any
particular provision hereof shall be deemed a waiver of any other provision or a
continuing waiver of such particular provision, and except as so expressly
waived, all provisions hereof shall continue in full force and effect.
10. SPECIAL WAIVERS
The undersigned, and all guarantors and all endorsers, hereby severally
waive presentment for payment, protest and notice of protest for non-payment of
this Note.
11. TIMELINESS
Time shall be of the essence.
12. LICENSE
(a) This form of Note is the property of The Yankee Companies, Inc.
("Yankees").
(b) The use hereof by the Parties is authorized hereby solely for purposes of
this transaction and, the use of this form of agreement or of any
derivation thereof without Yankees's prior written permission is
prohibited.
In Witness Whereof, AmeriNet has caused this Note to be executed on its
behalf by their duly authorized representatives as of the date first set forth
below.
Signed, Sealed and Delivered
In Our Presence
AmeriNet Xxxxx.xxx, Inc.
-------------------------------
_______________________________ By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Dated: May 7, 2001
[Corporate Seal]
Attest: Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Secretary
STATE OF FLORIDA }
COUNTY OF XXXXXX } SS.:
BEFORE ME, an officer duly authorized to administer oaths, did personally
appear on this 7th day of May, 2001, Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx,
known to me who, being duly sworn, did state that they are the duly elected and
serving president and secretary of AmeriNet Xxxxx.xxx, Inc., a Delaware
corporation ("AmeriNet"), and that pursuant to authority duly delegated by its
board of directors, they executed the foregoing Note on behalf of AmeriNet,
effective as of the date set forth therein. My commission expires:
[NOTARIAL SEAL]
/s/ Xxxxx Xxx Xxxxxxxx
Notary Public
