Exhibit 10.20
AMENDED AND RESTATED PROMISSORY NOTE
THIS AMENDED AND RESTATED PROMISSORY NOTE AMENDS AND RESTATES THAT CERTAIN
OCTOBER 28, 2002 LOAN AGREEMENT AND NOTE
$705,000.00 December 31, 2004
St. Marys, Georgia
FOR VALUE RECEIVED, the undersigned, AmeriFirst, Inc., a Delaware
corporation, whose address is 000 X. X0X, Xxxxx 000, Xxxxx Xxxxx Xxxxx, Xxxxxxx
00000 (the "Borrower"), hereby promises to pay to the order of Xxxxxx X.
Xxxxxxxxxxx Revocable Living Trust (the "Lender"), whose address is 0000 Xxxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, the principal sum of SEVEN HUNDRED FIVE
THOUSAND and no/100 Dollars ($705,000.00). This Note is the Amended and Restated
Infinity Note referred to in Section 5.4 of that certain Recapitalization
Agreement dated of even date herewith by and between Borrower, Lender and
certain other stockholders of Borrower (the "Recapitalization Agreement").
Capitalized terms used and not otherwise defined in this Note shall have the
meanings assigned thereto in the Recapitalization Agreement. This Note shall be
governed by the following provisions:
1. Advances; Current Amount Due. The Borrower and the Lender acknowledge
and agree that Xxxxxx has previously made advances to Borrower from proceeds of
the sales of common stock in Infinity, Inc. ("Infinity") in various amounts and
at various times, but that Xxxxxx has no further obligation under any agreement
to make additional advances to Borrower. The Borrower and Xxxxxx agree that the
amount now due from Borrower to Lender, as of the date hereof, and inclusive of
accrued and unpaid interest, is $705,000.00. The Borrower agrees to repay the
amounts outstanding hereunder only by purchasing and transferring to Lender
163,418 shares of common stock of Infinity in full satisfaction of all amounts
due hereunder and not by any other method of payment.
2. Payments. Subject to the provisions of Section 1.6 of the
Recapitalization Agreement, the Borrower will apply one hundred percent (100%)
of its Net Operating Income to the purchase of stock in Infinity to be delivered
to Lender in repayment of this Note. This Note shall be due and payable in full
on September 10, 2014.
3. Prepayments. The Borrower shall be entitled to prepay this Note in
common stock of Infinity and by no other means of payment, in whole or in part,
at any time without penalty.
4. Default. Nonpayment of principal, any fee or any other amount due
hereunder as and when due and payable shall be considered an Event of Default
hereunder.
If any Event of Default shall occur, the Lender may declare the outstanding
principal of this Note,
and all other amounts payable under this Note to be forthwith due and payable.
Thereupon, the outstanding principal of this Note and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower.
5. Expenses. The Borrower and all parties liable for the payment of this
Note agree to pay the Lender all costs incurred by it in connection with the
collection of this Note. Such costs include, without limitation, fees for the
services of counsel and legal assistants employed to collect this Note, whether
or not suit be brought, and whether incurred in connection with collection,
trial, appeal or otherwise, and any brokerage commissions or transfer fees.
6. Miscellaneous. The Borrower and all sureties, endorsers and guarantors
of this Note shall make all payments hereunder in common stock of Infinity by
delivering same to the Lender at such address as the Lender may designate in
writing. The remedies of the Lender as provided herein shall be cumulative and
concurrent, and may be pursued singly, successively or together, at the sole
discretion of the Lender and may be exercised as often as occasion therefor
shall arise. No act of omission or commission of the Lender, including
specifically any failure to exercise any right, remedy or recourse, shall be
effective, unless set forth in a written document executed by the Lender, and
then only to the extent specifically recited therein. A waiver or release with
reference to one event shall not be construed as continuing, as a bar to, or as
a waiver or release of any subsequent right, remedy or recourse as to any
subsequent event. This Note shall be construed and enforced in accordance with
Michigan law and shall be binding on the successors and assigns of the parties
hereto. The term "Lender" as used herein shall mean any holder of this Note.
AMERIFIRST, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx, President
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered before
me this 30th day of January 2005, by Xxxx X. Xxxxx. He is personally known to me
or has produced Florida Drivers ID as identification and did, in my presence,
execute this Promissory Note to and in favor of the forenamed Lender and
delivered the same to me, whereupon I have received same and placed it in
Federal Express for overnight delivery to Xxxxx Xxxxxxxxx, Xxxxx & Xxxxxxxxxx,
0000 X. Xxx Xxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000, as agent for and on
behalf of Lender.
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Notary Public, State and County Aforesaid
Print Name: Xxxxxxxx X. Xxxxxxx
-----------------------------
SEAL My commission expires: 3/6/07
