PREFERRED STOCK PURCHASE AGREEMENT
This Preferred Stock Purchase Agreement (the "Agreement"), entered into
AS OF this _____ th day of _____________________ 2005, by and among Green
Mountain Capital, Inc., a Nevada corporation ("GMCI"); Xxxxxxx Partners &
Company, LLC, a New York limited liability company ("Xxxxxxx"); Asset Growth
Partners & Company, LLC., a New York limited liability company doing business as
"AGP & Company" ("AGP"); and Cayman Lender, Ltd., a Cayman Island exempted
company ("Cayman").
W I T N E S S E T H :
WHEREAS, GMCI is in the process of a reorganization, which, among other
events, will entail (a) the participation by GMCI in a
business combination with a company known as Internet
Telecommunications, PLC, an existing United Kingdom company ("ITPLC");
(b) the financing of GMCI's participation in said business
combination by means of which
(i) AGP will advance funds (the "AGP Funding") to
Cayman, and, thereafter
(ii) Cayman will the re-advance the proceeds of the
AGP Funding to GMCI to be used by GMCI as working capital to
participate in said business combination; so that, thereafter
(iii) GMCI shall be responsible for repaying the AGP
Funding to Cayman; and, thereafter
(iv) once GMCI has repaid Cayman, Cayman shall be
responsible for repaying the AGP Funding to AGP; and,
thereafter
(v) once Cayman has repaid AGP, it (AGP) would be
free to distribute these proceeds to its Owners of in
accordance with the terms of the Ownership/Operating Agreement
between it and its Owners.
WHEREAS, on August 11, 2005, for the price of $500,000.00, Xxxxxxx
purchased all of the 2,500,000 Issued And Outstanding Shares of the SERIES A
Preferred Stock and all of the 3,000,000 Issued and Outstanding Shares of SERIES
C Preferred Stock of GMCI (the "GMCI Preferred") from the (prior) owner thereof;
WHEREAS, in order to acquire the GMCI Preferred from its (prior) owner,
Xxxxxxx borrowed the sum of $500,000.00 (the "Original Purchase Money
$500,000.00") from AGP, which transaction was evidenced by a promissory note
(the "Original Stock Purchase Note"), with AGP being the Payee of the Original
Stock Purchase Note, so that AGP is a creditor of, and has a claim against
Xxxxxxx for the Original Purchase Money $500,000.00;
WHEREAS, GMCI has expressed an interest in buying back the GMCI
Preferred from Xxxxxxx for a price of $500,000.00 (the "Repurchase
$500,000.00"), there being a Fairness Opinion to the effect that said
$500,000.00 price would be fair to GMCI;
WHEREAS, if there were to be a sale by Xxxxxxx of the GMCI Preferred
back to GMCI, this transaction would be evidenced by a promissory note in the
form attached hereto as EXHIBIT A (the "Stock Repurchase Note"), with Xxxxxxx
being the Payee of the Stock Repurchase Note;
WHEREAS, if there were to be a sale by Xxxxxxx of the GMCI Preferred
back to GMCI pursuant to the Stock Repurchase Note, Xxxxxxx would be a direct
creditor of, and have a direct claim against GMCI for $500,000.00, i.e., for the
Repurchase $500,000.00;
WHEREAS, Cayman Island Counsel to Cayman have advised that Xxxxxxx
should NOT be a direct creditor of GMCI; that, instead, any claim Xxxxxxx might
have against AGP should be a part of the AGP-to-Cayman-to-GMCI series of
advances and the GMCI-to-Cayman-to-AGP series of re-payments contemplated
pursuant to the reorganization of GMCI;
WHEREAS, in order that Cayman may comply with advice of counsel, the
Parties have agreed
(a) that GMCI should execute and deliver the Stock Repurchase
Note to Xxxxxxx;
(b) that, Xxxxxxx, as Payee under the Stock Repurchase Note,
should thereupon assign its rights as Payee to AGP; and
(c) that in consideration of which assignment, AGP should
issue Ownership Interests in AGP to Xxxxxxx in an amount equal to
$500,000.00, so that
(i) Xxxxxxx would not be a direct creditor of GMCI;
but, instead, that
(ii) any claim Xxxxxxx might have against AGP would
be a part of the AGP-to-Cayman-to-GMCI series of advances and
the GMCI-to-Cayman-to-AGP series of repayments contemplated
pursuant to the re-organization of GMCI; and,
(iii) AGP would have Xxxxxxx'x (former) right to
receive the Repurchase $500,000.00 from GMCI pursuant to the
Stock Repurchase Note, and, by virtue of having this claim
against GMCI,
(A) AGP would receive be entitled to repaid
the Repurchase $500.000.00 as part of the
GMCI-to-Cayman-to-AGP series of repayments;
WHEREAS, the fact remains that Xxxxxxx is still indebted to AGP for the
$500,000.00 Xxxxxxx borrowed from AGP to purchase the GMCI Preferred from its
(prior) owner, i.e., for the Original Purchase Money $500,000.00 pursuant to the
Original Stock Purchase Note for that sum; so that,
(a) even if Xxxxxxx were to assign to AGP its (Xxxxxxx'x)
rights as Payee to receive the Repurchase $500,000.00 from GMCI under
the Stock Repurchase Note, and even if AGP were eventually to be repaid
the Repurchase $500,000.00 pursuant to the GMCI-to-Cayman-to-AGP series
of repayments,
(i) Xxxxxxx would still owe AGP the Original Purchase
Money $500,000.00;
WHEREAS, as a condition to the assignment by Xxxxxxx to AGP of its
(Xxxxxxx'x) rights as Payee to receive the Repurchase $500,000.00 from GMCI
under the Stock Repurchase Note,
(a) Xxxxxxx has insisted that AGP cancel the Original Purchase
Money $500,000.00 debt owed by Xxxxxxx to AGP in connection with the
original acquisition of the GMCI Preferred from its (prior) owner, as
evidenced by the Original Stock Purchase Note;
WHEREAS, If Xxxxxxx were to make this demand,
(a) AGP would, in turn, insist that once the Repurchase
$500,000.00 had been received by AGP pursuant to the
GMCI-to-Cayman-to-AGP series of repayments,
(i) Xxxxxxx, as an Owner of AGP, would forego its
right to receive a PRO RATA distribution of that Repurchase
$500,000.00, so that,
(A) AGP - as the Limited Liability Company
itself - would retain that Repurchase $500,000.00 as
a Company asset; and in effect
(B) the original claim AGP had against
Xxxxxxx for having financed the acquisition of the
GMCI Preferred would be satisfied by the receipt by
AGP of the Repurchase $500,000.00 which would have
been received by Xxxxxxx from AGP but for the
assignment by Xxxxxxx to AGP of its (Xxxxxxx'x)
rights to receive that money from GMCI pursuant to
the Stock Repurchase Note.
N O W T H E R E F O R E,
In consideration of the representations, warranties, covenants, and
agreements herein contained, which are given by each Party to the other Parties
in order to induce them to enter into this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, each intending to be legally bound hereby,
agree as follows:
1. RE-PURCHASE BY GMCI OF THE GMCI PREFERRED FROM XXXXXXX.
(a) GMCI agrees to buy the GMCI Preferred from Xxxxxxx, and Xxxxxxx
hereby agrees to sell the GMCI Preferred to GMCI, for the sum of $500,000.00,
i.e., for the Repurchase $500,000.00.
(b) To evidence this transaction, simultaneously with the execution of
this Agreement, GMCI will execute and deliver the Stock Repurchase Note to
Xxxxxxx in the form set forth as EXHIBIT A to this Agreement.
2. ASSIGNMENT BY XXXXXXX TO AGP OF THE STOCK REPURCHASE NOTE.
(a) Immediately following the execution of the Stock Repurchase Note,
Xxxxxxx, as Payee under said Note, shall assign to AGP its (Xxxxxxx'x) rights to
be repaid by GMCI under said Note, so that, pursuant to this Assignment, AGP
shall be a creditor of, and have a claim against GMCI in the amount of
$500,000.00, i.e., for the Repurchase $500,000.00.
(b) In consideration, of which assignment, AGP shall issue Ownership
Interests in AGP to Xxxxxxx in an amount equal to $500,000.00.
3. CANCELLATION BY AGP OF THE DEBT OWED TO AGP BY XXXXXXX.
(a) Simultaneously with the execution of this Agreement, and pursuant
to demand made upon it by Xxxxxxx, AGP shall cancel the Original Purchase Money
$500,000.00 debt owed by Xxxxxxx to AGP in connection with the original
acquisition of the GMCI Preferred from its (prior) owner, as the same is
evidenced by the Original Stock Purchase Note; PROVIDED, HOWEVER, that,
(i) if AGP's claim against GMCI in the amount of $500,000.00
as Assignee of Xxxxxxx under the Stock Repurchase Note, i.e., for the
Repurchase $500,000.00, is NOT satisfied, then
(A) the Original Stock Purchase Note shall be deemed
to have been revived and to continue to be in full force and
effect;
(B) Xxxxxxx shall continue to be in debt to AGP for
$500,000.00, i.e., for the Repurchase $500,000.00; and
(C) Xxxxxxx'x relinquishment of its rights to receive
a pro rata distribution of the Repurchase $500,000.00 (as set
forth below) shall be deemed to be null and void.
4. RELINQUISHMENT BY XXXXXXX OF ITS RIGHT TO RECEIVE CERTAIN
DISTRIBUTIONS FROM AGP UNDER THE AGP OWNERSHIP/OPERATING
AGREEMENT.
(a) If and when AGP's claim against GMCI in the amount of $500,000.00
as Assignee of Xxxxxxx under the Stock Repurchase Note, i.e., for the Repurchase
$500,000.00, is satisfied, then Xxxxxxx, as an Owner of AGP shall relinquish its
rights to receive a PRO RATA distribution of that Repurchase $500,000.00;
PROVIDED, HOWEVER, that
(i) the relinquishment by Xxxxxxx of its rights to receive a
PRO RATA distribution of the Repurchase $500,000.00 shall not be deemed
to be a relinquishment of any other rights Xxxxxxx may have in the
Ownership/Operating Agreement between AGP and its Owners, including but
not limited to a relinquishment of the right to receive distributions
from other sources or of other assets of AGP.
5. SATISFACTIONS OF DEBTS.
(a) If and when AGP's claim against GMCI (as Assignee of Xxxxxxx under
the Stock Repurchase Note) in the amount of $500,000.00, i.e., for the
Repurchase $500,000.00, is satisfied, then
(i) the Original Stock Purchase Note shall be cancelled and be
of no force and effect, so that,
(A) Xxxxxxx shall not be liable to AGP for the
Original Purchase Money $500,000.00 evidenced by the Original
Stock Purchase Note; and
(ii) the Stock Repurchase Note shall be cancelled and be of no
force and effect, so that,
(A) GMCI, as Maker, shall not be liable to
(1) neither Xxxxxxx (as the original Payee)
nor to AGP (as the Assignee of the Payee's rights)
for the Repurchase $500,000.00 evidenced by the Stock
Repurchase Note; nor
(B) shall Xxxxxxx (as Assignor) be liable
to AGP (as Xxxxxxx'x Assignee) for the Repurchase
$500,000.00 evidenced by the Stock Repurchase Note.
6. GMCI'S WARRANTIES AND REPRESENTATIONS.
In order to induce the other Parties to enter into this Agreement, GMCI
represents and warrants to, and covenants and agrees with the other Parties as
follows:
(a) GMCI is not now, nor in the future will be, or allow itself to
become, an Affiliate of Xxxxxxx or of AGP or of Cayman.
(b) GMCI is a corporation duly organized and validly existing under the
laws of the jurisdiction in which it was incorporated. GMCI has all requisite
corporate power and authority to own, lease and operate its properties and
assets, and to carry on its business as presently conducted. GMCI is qualified
to do business as a foreign corporation in each jurisdiction in which the
ownership of its property or the nature of its business requires such
qualification, except where failure to so qualify would not have a material
adverse effect on GMCI.
(c) This Agreement has been duly authorized, validly executed and
delivered on behalf of GMCI and is a valid and binding agreement in accordance
with its terms, subject to general principles of equity and to bankruptcy or
other laws affecting the enforcement of creditors' rights generally. All
corporate action on the part of GMCI, its directors and shareholders necessary
for the authorization, execution, delivery and performance of this Agreement has
been taken.
(d) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both), or give rise to a right of termination, cancellation or acceleration
of any obligation or to a loss of a material benefit, under, any provision of
the Articles of Incorporation, and any amendments thereto, By-laws, Stockholders
Agreements and any amendments thereto of GMCI or any material mortgage,
indenture, lease or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law ordinance, rule or
regulation applicable to GMCI , its properties or assets.
7. XXXXXXX'X WARRANTIES AND REPRESENTATIONS.
In order to induce the other Parties to enter into this Agreement,
Xxxxxxx represents and warrants to, and covenants and agrees with the other
Parties as follows:
(a) Xxxxxxx is not now, nor in the future will be, or allow itself to
become, an Affiliate of GMCI or of Cayman or of ITPLC.
(b) Xxxxxxx is a limited liability company duly organized and validly
existing under the laws of the jurisdiction in which it was incorporated.
Xxxxxxx has all requisite corporate power and authority to own, lease and
operate its properties and assets, and to carry on its business as presently
conducted. Xxxxxxx is qualified to do business as a foreign business
organization in each jurisdiction in which the ownership of its property or the
nature of its business requires such qualification, except where failure to so
qualify would not have a material adverse effect on Xxxxxxx.
(c) This Agreement has been duly authorized, validly executed and
delivered on behalf of Xxxxxxx and is a valid and binding agreement in
accordance with its terms, subject to general principles of equity and to
bankruptcy or other laws affecting the enforcement of creditors' rights
generally. All corporate action on the part of Xxxxxxx or its members necessary
for the authorization, execution, delivery and performance of this Agreement has
been taken.
(d) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both), or give rise to a right of termination, cancellation or acceleration
of any obligation or to a loss of a material benefit, under, any provision of
the charter or operating agreement of Xxxxxxx, and any amendments thereto, or
any material mortgage, indenture, lease or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law
ordinance, rule or regulation applicable to Xxxxxxx its properties or assets.
8. AGP'S WARRANTIES AND REPRESENTATIONS.
In order to induce the other Parties to enter into this Agreement, AGP
represents and warrants to, and covenants and agrees with the other Parties as
follows:
(a) AGP is not now, nor in the future will be, or allow itself to
become, an Affiliate of GMCI or of Cayman or of ITPLC.
(b) AGP is a limited liability company duly organized and validly
existing under the laws of the jurisdiction in which it was incorporated. AGP
has all requisite corporate power and authority to own, lease and operate its
properties and assets, and to carry on its business as presently conducted. AGP
is qualified to do business as a foreign business organization in each
jurisdiction in which the ownership of its property or the nature of its
business requires such qualification, except where failure to so qualify would
not have a material adverse effect on AGP.
(c) This Agreement has been duly authorized, validly executed and
delivered on behalf of AGP and is a valid and binding agreement in accordance
with its terms, subject to general principles of equity and to bankruptcy or
other laws affecting the enforcement of creditors' rights generally. All
corporate action on the part of AGP or its members necessary for the
authorization, execution, delivery and performance of this Agreement has been
taken.
(d) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both), or give rise to a right of termination, cancellation or acceleration
of any obligation or to a loss of a material benefit, under, any provision of
the charter or operating agreement of AGP, and any amendments thereto, or any
material mortgage, indenture, lease or other agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law ordinance,
rule or regulation applicable to AGP its properties or assets.
9. CAYMAN'S WARRANTIES AND REPRESENTATIONS
In order to induce the other Parties to enter into this Agreement,
Cayman represents and warrants to, and covenants and agrees with the other
Parties as follows:
(a) Cayman is not now, nor in the future will be, or allow itself to
become, an Affiliate of GMCI or of ITPLC.
(b) Cayman is a corporation duly organized and validly existing under
the laws of the jurisdiction in which it was incorporated. Cayman has all
requisite corporate power and authority to own, lease and operate its properties
and assets, and to carry on its business as presently conducted. Cayman is
qualified to do business as a foreign corporation in each jurisdiction in which
the ownership of its property or the nature of its business requires such
qualification, except where failure to so qualify would not have a material
adverse effect on Cayman.
(c) This Agreement has been duly authorized, validly executed and
delivered on behalf of Cayman and is a valid and binding agreement in accordance
with its terms, subject to general principles of equity and to bankruptcy or
other laws affecting the enforcement of creditors' rights generally. All
corporate action on the part of Cayman, its directors and shareholders necessary
for the authorization, execution, delivery and performance of this Agreement has
been taken.
(d) The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of time,
or both), or give rise to a right of termination, cancellation or acceleration
of any obligation or to a loss of a material benefit, under, any provision of
the Articles of Incorporation, and any amendments thereto, By-laws, Stockholders
Agreements and any amendments thereto of Cayman or any material mortgage,
indenture, lease or other agreement or instrument, permit, concession,
franchise, license, judgment, order, decree, statute, law ordinance, rule or
regulation applicable to Cayman , its properties or assets.
10. TRUTH OF STATEMENTS; COMPLETENESS OF DOCUMENTS.
In order to induce the other Parties to enter into this Agreement, each
Party states and undertakes as follows:
(a) All documents or other materials delivered or to be delivered by or
on behalf of each Party to the others in connection with this Agreement and the
transactions contemplated hereby are to the best of its knowledge true and
complete;
(b) The information furnished by or on behalf of each Party to the
others in connection with this Agreement and the transactions contemplated
hereby does not, to the best of its knowledge, contain any untrue statement of a
material fact and does not omit to state any material fact required to be stated
therein or necessary to make the statements therein not false or misleading.
(c) There is no fact known to any of the Parties which has not been
disclosed to the other Parties in writing which has, or insofar as any such
Party can foresee, which will have, a Material Adverse Effect on any of the
other Parties, as the term "Material Adverse Effect" is generally known to be
used in stock purchase agreements.
(d) The representations and warranties of the Parties contained in this
Agreement were true when made and shall be true as at the execution of this
Agreement.
11. NOTICE.
(a) Any notice, request, instruction or other document required by the
terms of this Agreement to be given to any other Party hereto shall be in
writing and shall be given either
(i) by telephonic facsimile, in which case notice shall be
presumptively deemed to have been given at the date and time displayed
on the sender's transmission confirmation receipt showing the
successful receipt thereof by the recipient;
(ii) by nationally recognized courier or overnight delivery
service in which the date of delivery is recorded by the delivery
service, in which case notice shall be presumptively deemed to have
been given at the time that records of the delivery service indicate
the writing was delivered to the addressee;
(iii) by United States or Royal Mail sent by registered or
certified mail, postage prepaid, with return receipt requested, in
which case notice shall be presumptively deemed to have been given at
the time that records of the United States Postal Service or Her
Majesty's Royal Mail indicate the writing was delivered to the
addressee.
(b) Notice shall be sent:
(i) If to GMCI, to:
Green Mountain Capital, Inc.,
000 Xxxxx Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx, President
Telephone Number: (917) 620 - 6401
Facsimile Telephone Number:(925) 955 - 0800
(i) If to AGP, to:
AGP & Company, LLC
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Managing Partner
Telephone Number: (212) 274 - 8101
Facsimile Telephone Number:(212) 274 - 8102
(iii) If to Xxxxxxx:
Xxxxxxx Partners & Company, LLC.
c/o AGP & Company, LLC
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Managing Partner
Telephone Number: (212) 274 - 8101
Facsimile Telephone Number:(212) 274 - 8102
(iv) If to Cayman, to:
Cayman Lender, Ltd.
x/x Xxxx & Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxx Town
Grand Cayman, Cayman Islands
Attention: Xxxxxxx Xxxxxx
Telephone Number: (345) 949 - 4123
Facsimile Telephone Number:(345) 949 - 4647
(v) or to such other address as a Party may have specified in
writing to the other Parties using the procedures specified above in this
Section.
12. CHOICE OF LAW, VENUE.
(a) All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the Cayman Islands without
regard to the rules of private international law thereof.
(b) The Parties agree that the Grand Court of the Cayman Islands shall
have exclusive jurisdiction in respect of any dispute, suit, action or
proceeding ("Proceedings") which may arise out of or in connection with this
Agreement and that, without prejudice to the rules of service of said Court,
Proceedings may be served by delivering the same in an envelope addressed to the
Party to be served at the address for such Party set out in Section 8 of this
Agreement.
13. MISCELLANEOUS.
(a) EXHIBITS; ENTIRE AGREEMENT. All Exhibits to this Agreement are
incorporated herein by reference and shall constitute part of this Agreement.
This Agreement sets forth the entire agreement and understanding of the Parties
relating to the subject matter hereof and thereof, and it supersede all prior
and contemporaneous agreements, negotiations and understandings between the
Parties, both oral and written, relating to the subject matter hereof.
(b) TITLE AND SUBTITLES. The titles and subtitles used in this
Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the Parties.
each of which shall be deemed to be an original instrument which shall be
enforceable against the Parties actually executing such counterparts, and all of
which together shall constitute one and the same instrument.
(d) SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court or other tribunal of competent jurisdiction to
be illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision.
(e) AMENDMENT; NO WAIVER. No Party shall be liable or bound to any
other Party in any manner by any warranties, representations or covenants except
as specifically set forth in this Agreement. Except as expressly provided in
this Agreement, neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
all Parties hereto. The failure of the any Party to insist on strict compliance
with this Agreement, or to exercise any right or remedy under this Agreement,
shall not constitute a waiver of any rights provided under this Agreement, nor
estop a Party from thereafter demanding full and complete compliance nor prevent
a Party from exercising such a right or remedy in the future.
(f) TRANSACTION COSTS. Each Party shall bear its own legal fees and
other out of pocket costs in connecting with the negotiation and execution of
this Agreement.
IN WITNESS WHEREOF, the undersigned Parties have executed this
Agreement as of the date first set forth above.
GMCI:
Green Mountain Capital, Inc.
By:_______________________________
Xxxxxx Xxxxxxxxx, President
XXXXXXX:
Xxxxxxx Partners & Company, LLC
By:_______________________________
Xxxxxx X. Xxxxxxxx, Managing Member
THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.
SIGNATURES CONTINUE ON THE FOLLOWING PAGE.
AGP:
Asset Growth Partners & Company, LLC., a New York limited
liability company doing business as "AGP & Company"
By:______________________________
Xxxxxx X. Xxxxxxxx, Managing Member
CAYMAN:
Cayman Lender, Ltd.
By:_______________________________
Xxxxxx X Xxxxxxxx, President
THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.
EXHIBITS BEGIN ON THE FOLLOWING PAGE
EXHIBIT A
TO PREFERRED STOCK PURCHASE AGREEMENT
STOCK REPURCHASE NOT __________ ___ , 200___
FOR VALUE RECEIVED, on or before __________ ____, 200 ___, the
undersigned, Green Mountain Capital, Inc. (the "Maker" or "GMCI"), promises to
pay to the order of Xxxxxxx Partners & Company, LLC, a New York limited
liability company (the "Payee" or "Xxxxxxx") at the address set forth herein, or
at such other place as the Payee may from time to time designate by written
notice to the Maker, the principal sum of $500,000.00, together with interest at
the rate of 8% PER ANNUM on any unpaid principal balance in accordance with the
terms set forth below.
DEFAULT
If one or more of the following described event (the "Events of
Default") shall occur and continue for 30 days, unless a different time frame is
noted below:
(a) the failure of the Maker to make any payment when due; or
(b) any of the representations or warranties made by the Maker herein,
or in any certificate or financial or other written statements heretofore or
hereafter furnished by or on behalf of the Maker in connection with the
execution and delivery of this Note shall be false or misleading in any material
respect at the time made; or
(c) the Maker shall (i) become insolvent; (ii) admit in writing its
inability to pay its debts generally as they mature; (iii) make an assignment
for the benefit of creditors or commence proceedings for its dissolution; (iv)
apply for or consent to the appointment of a trustee, liquidator or receiver for
its or for a substantial part of its property or business; (v) file a petition
for bankruptcy relief, consent to the filing of such petition or have filed
against it an involuntary petition for bankruptcy relief, all under federal or
state laws as applicable; or
then, or at any time thereafter, unless cured, and in each and every such case,
unless such Event of Default shall have been waived in writing by the Payee
(which waiver shall not be deemed to be a waiver of any subsequent default) at
the option of the Payee and in the Payee's sole discretion, the Payee may
consider this Note immediately due and payable, without presentment, demand,
protest or (further) notice of any kind (other than notice of acceleration), all
of which are hereby expressly waived, anything herein or in any note or other
instruments contained to the contrary notwithstanding, and the Payee may
immediately, and without expiration of any period of grace, enforce any and all
of the Payee's rights and remedies provided herein or any other rights or
remedies afforded by law.
PLACE OF PAYMENT
Unless directed otherwise by the Payee, payment shall paid to the Payee
at the following address:
Xxxxxxx Partners & Company, LLC.
c/o AGP & Company, LLC
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Managing Partner
Telephone Number: (212) 274 - 8101
Facsimile Telephone Number: (212) 274 - 8102
WAIVERS
(a) The Maker waives demand, presentment, protest, notice of protest,
notice of dishonor, and all other notices or demands of any kind or nature with
respect to this Note other than the initial demand for payment.
(b) The Maker agrees that a waiver of rights under this Note shall not
be deemed to be made by the Payee unless such waiver shall be in writing, duly
signed by the Payee, and each such waiver, if any, shall apply only with respect
to the specific instance involved and shall in no way impair the rights of the
Payee or the obligations of the Maker in any other respect at any other time.
(c) The Maker agrees that in the event the Payee accepts partial
payment of this Note, such acceptance shall not be deemed to constitute a waiver
of any right to demand the entire unpaid balance of this Note at any time in
accordance with the terms of this Note.
COLLECTION COSTS.
If the indebtedness represented hereby is not paid in full when due,
the Maker will, upon demand, pay to the Payee the amount of any and all
reasonable costs and expenses, including, without limitation, the reasonable
fees and disbursements of its counsel (whether or not suit is instituted) and of
any experts and agents, which the Payee may incur in connection with the
following: (i) the enforcement of this Note, and (ii) the enforcement of payment
of all obligations of Maker by any action or participation in, or in connection
with the U. S. Bankruptcy Code, or any successor statute hereto.
OTHER AGREEMENT
This Note is subject to the terms and conditions of that certain
Preferred Stock Purchase Agreement of even date between GMCI (the Maker),
Xxxxxxx (the Payee) and Asset Growth Partners & Company, LLC., a New York
limited liability company doing business as "AGP & Company" ("AGP"); and Cayman
Lender, Ltd., a Cayman Island exempted company ("Cayman"), unless explicitly
stated otherwise by this Note or by the subject Preferred Stock Purchase
Agreement.
..
MISCELLANEOUS.
The covenants, terms, and conditions contained in this Note apply to
and bind the heirs, successors, executors, administrators and assigns of the
Parties.
IN WITNESS WHEREOF, the Maker has executed this Note intending it to be
effective as of the date first set forth above.
MAKER:
Green Mountain Capital, Inc..
By: _______________________________
Xxxxxx Xxxxxxxxx, as President, and not Individually
