U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported): September 29, 1999
Metro Global Media, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-21634 65-0025871
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1060 Park Avenue, Cranston, Rhode Island 02910
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(Address of principal executive offices) (Zip Code)
(401) 942-7876
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(Registrant's telephone number, including area code)
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(Former name or former address, if changed since last report)
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Item 2 Acquisition or Disposition of Assets
On September 29, 1999, Metro Global Media, Inc. ("Metro Global")
consummated the sale of its wholly-owned subsidiary Fanzine International, Inc.
("Fanzine") to Robert Maiello, Philip P. Salvatore, Bart Senior and Michael
Levine, the former Fanzine shareholders (the "Former Shareholders"), and
Goldtree Publishing, Inc., a company controlled by them ("Goldtree"), pursuant
to a Rescission and Purchase Agreement, dated September 29, 1999, by and among
Metro Global, Metro, Inc., Fanzine, Goldtree, and the Former Shareholders.
Fanzine operated Metro Global's publishing segment and published a series of
monthly, bi-monthly, and event-driven magazines, as well as calendars and
"how-to" digest. Metro Global acquired Fanzine in July 1998 for $4 million in
cash and one million shares of Metro Global's common stock.
As consideration for this sale of Fanzine's stock, Metro Global is
scheduled to receive total payments of $4.5 million and receive back the one
million shares of its common stock held by the Former Shareholders. Payment of
the $4.5 million is schedule to be paid as follows: $1 million is due by October
31, 1999; $1 million is due by November 30, 1999; $1 million is due by May 31,
2000; and $1.5 million is due by August 31, 2000.
Item 7 Financial Statements and Exhibits
(b) Pro forma financial information
(1) Pro forma financial statements which give effect to the
disposition of Fanzine are currently unavailable. Registrant
plans to file the pro forma financial statements within 60
days.
(c) Exhibit 2.1 - Rescission and Purchase Agreement by and among
Metro Global Media, Inc., Metro, Inc., Fanzine International,
Inc., Goldtree Publishing, Inc., Robert Maiello, Philip P.
Salvatore, Bart Senior and Michael Levine.
Exhibit 2.2 - Security Agreement between Fanzine International,
Inc. and Metro Global Media, Inc.
Exhibit 2.3 - Security Agreement between Fanzine International,
Inc. and Metro Global Media, Inc.
Exhibit 2.4 - Promissory Note from Robert Maiello, Michael
Levine, Bart Senior and Philip P. Salvatore to Metro Global
Media, Inc.
Exhibit 2.5 - Promissory Note from Goldtree Publishing, Inc. to
Metro Global Media, Inc.
Exhibit 2.6 - Personal Guarantee of Michael Levine
Exhibit 2.7 - Personal Guarantee of Robert Maiello
Exhibit 2.8 - Personal Guarantee of Philip Salvatore
Exhibit 2.9 - Personal Guarantee of Bart Senior
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
METRO GLOBAL MEDIA, INC.
By: /s/ Janet Hoey
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JANET HOEY,
TREASURER
October 4, 1999
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Exhibit 2.1
RESCISSION AND PURCHASE AGREEMENT
Agreement made this 29th day of September, 1999, by and among Metro Global
Media, Inc. ["MGM"], Metro, Inc. ["Metro"], Fanzine International, Inc.
["Fanzine"], Goldtree Publishing, Inc. ["Goldtree"], Robert Maiello ["Maiello"],
Philip P. Salvatore ["Salvatore"], Bart Senior ["Senior"] and Michael Levine
["Levine"] (MGM and Metro are sometimes collectively referred to herein as the
"Metro Group;" Fanzine, Maiello, Salvatore, Senior and Levine are sometimes
collectively referred to as the "Fanzine Group").
WHEREAS, during 1998 Metro acquired 100 shares of the capital stock of
Fanzine (as referred to in Section 1.1 of the Stock Purchase Agreement, as
hereinafter defined) [the "Fanzine Stock"] from Maiello, Salvatore, Senior and
Levine, for consideration of Four Million Dollars ($4,000,000) [the "Metro
Investment"]; and
WHEREAS, the parties hereto acknowledge that their expectations never
materialized; and
WHEREAS, the parties hereto acknowledge that a complete rescission of the
transactions, arrangements and combinations commenced by them during 1998 is in
their respective best interests, and
WHEREAS, Goldtree is desirous of acquiring a portion of the Fanzine Stock
from Metro.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Rescission Effective immediately upon the execution of this Agreement,
and the deliveries required by Sections 2 and 3 of this Rescission Agreement,
each of the agreements set forth below shall be deemed fully rescinded; and the
respective benefits, liabilities or obligations imposed under or by them shall
be cancelled or made void [the "Rescission"]:
(a) That certain Stock Pledge Agreement dated July 31, 1998 among MGM and
the individual members of the Fanzine Group [the "Stock Purchase Agreement"];
(b) That certain Pledge Agreement dated July 31, 1998 executed by MGM and
benefiting the individual members of the Fanzine Group [the "Pledge Agreement"];
(c) That certain Voting Agreement dated July 31, 1998 among MGM and the
individual members of the Fanzine Group [the "Voting Agreement"],
(d) The Employment Agreement dated July 31, 1998 among MGM, Fanzine and
Levine [the "Levine Agreement"];
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(e) The Employment Agreement dated July 31, 1998 among MGM, Fanzine and
Maiello [the "Maiello Agreement"];
(f) The Employment Agreement dated July 31, 1998 among MGM, Fanzine and
Senior [the "Senior Agreement"]; and
(g) The Employment Agreement dated July 31, 1998 among MGM, Fanzine and
Salvatore [the "Salvatore Agreement"].
The business operations, and all of the tangible and intangible assets of
Fanzine, shall revert to the Fanzine Group as of the date of this Agreement. No
member of the Metro Group shall (i) have any present or future interest in any
of the stock, business operations, or tangible or intangible assets of Fanzine,
whether presently existing, previously existing, or hereafter existing; and (ii)
be or remain liable for any past, present or future debts, liabilities or
obligations incurred by Fanzine. No member of the Fanzine Group shall (i) have
any present or future interest in any of the business operations, or tangible or
intangible assets of any member of the Metro Group, whether presently existing,
previously existing, or hereafter existing; and (ii) be or remain liable for any
past, present or future debts, liabilities or obligations incurred by any member
of the Metro Group.
Any and all income tax liabilities attributable to any earnings of Fanzine
shall be paid exclusively by, and be the sole responsibility of, the Fanzine
Group.
2. Return of consideration and Repurchase of the Fanzine Shares.
(a) Concurrently with the parties' mutual execution and delivery of this
Rescission Agreement, the Fanzine Group shall deliver to MGM a Promissory Note
substantially in the form of Exhibit "A" to this Agreement (the "Fanzine Note"),
obligating the individual members of the Fanzine Group to pay to Metro, as
consideration for the acquisition by the Fanzine Group of fifty (50) shares of
the Fanzine Stock, the sum of Two Million ($2,000,000) on or before October 31,
1999; provided, however, that (notwithstanding any cure periods to the
contrary), Fanzine shall have the option of paying up to One million Dollars
($1,000,000) of that sum on or before November 30, 1999.
(b) Concurrently with the parties' mutual execution and delivery of this
Rescission Agreement, Goldtree shall deliver to MGM a Promissory Note
substantially in the form of Exhibit "B" to this Agreement (the "Goldtree
Note"), obligating Goldtree to pay to Metro, as consideration for the
acquisition by Goldtree of fifty (50) shares of the Fanzine Stock, the sum of
Two Million ($2,500,000), as follows: (i) the sum of One Million ($1,000,000)
Dollars shall be payable on or before May 31, 2000; and (ii) the sum of One
Million, Five Hundred Thousand Dollars ($1,500,000) shall be payable on or
before August 31, 2000.
(c) The Fanzine Note and the Goldtree Note shall each be without interest,
provided, however, that if there is any default with respect to any payment
thereunder (which default remains uncured after ten days written notice
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thereof), the Note shall bear interest on the unpaid balance at the rate of
twelve percent (12%) per annum from the date thereof.
(d) The Goldtree Note shall be secured by (i) the personal guarantee by
each the individual members of Fanzine Group pro rata in a percentage equal to
each member's pro rata percentage receipt of the Metro Investment), in the form
of Exhibit "C" annexed to this Rescission Agreement (the "Guarantee
Agreements"); and (ii) a pledge of the assets of Fanzine pursuant to the terms
of a security agreement in the form of Exhibit "D" annexed to this Rescission
Agreement (the "Goldtree Security Agreement").
(e) The Fanzine Note shall be secured by a pledge of the assets of Fanzine
pursuant to the terms of a security agreement in the form of Exhibit "E" annexed
to this Rescission Agreement (the "Fanzine Security Agreement").
(e) Concurrently with the parties' mutual execution and delivery of this
Rescission Agreement, the Fanzine Group shall deliver to MGM the One Million
(1,000,000) shares of the common stock of MGM referred to in Section 2.2(a) of
the Stock Purchase Agreement.
(f) Concurrently with the parties' mutual execution and delivery of this
Rescission Agreement, and the receipt by Metro of the Fanzine Note, the Goldtree
Note, the Guarantee Agreements, the Goldtree Security Agreement, and the Fanzine
Security Agreement the Fanzine Stock shall be deemed sold and conveyed as
follows: (i) fifty (50) shares thereof to the individual members of the Fanzine
Group (in such proportions as the members of the Fanzine Group shall elect), and
(ii) fifty (50) shares thereof to Goldtree. The share certificate in the name of
Metro relating to the Fanzine Stock shall forthwith be released from escrow, and
marked "cancelled" on its face and/or destroyed, new share certificates
evidencing the ownership of the Fanzine Stock by the individual members of the
Fanzine Group and Goldtree shall be issued by Fanzine, and the books and records
of Fanzine shall be modified to reflect such fact.
3. Exchange of General Releases. Upon the execution of this Rescission
Agreement, the parties shall exchange general releases (the "General Releases"),
in the form of Exhibit "F" annexed hereto, wherein and whereby each member of
the Metro Group shall release each member of the Fanzine Group, and each member
of the Fanzine Group shall release each member of the Metro Group, from any and
all claims of any nature, whether known or unknown, whether presently existing
or hereafter coming into being, and whether a direct or third-party claim. The
General Releases shall exclude from the terms thereof any obligations the
parties may have to one another arising under this Agreement or any exhibit
annexed hereto.
4. Notices. All notices necessary or desirable to be given hereunder shall
be deemed sufficient if served personally, or by fax transmission, with a
confirming copy mailed to the parties at their addresses set forth below (or to
any other such addresses as are hereafter stated in a notice given in compliance
herewith):
If to any member of the Fanzine Group, to each of the following:
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Fanzine International, Inc.
230 West 41st Street
New York, NY 10036
Michael Levine, Esq.
15 Barclay Road
Scarsdale, NY 10583
Robert Maiello
46 Polly Way
Middletown, NJ 07748
Philip P. Salvatore
c/o Philip P. Salvatore & Associates, Inc.
599 West Hartsdale Avenue, Suite 101
White Plains, NY 10607
Bart Senior
c/o Philip P. Salvatore & Associates, Inc.
599 West Hartsdale Avenue, Suite 101
White Plains, NY 10607
If to any member of the Metro Group:
Metro Global Media, Inc.
1060 Park Avenue
Cranston, RI 02910
With a copy to:
Lipsitz, Green, Fahringer,
Roll, Salisbury & Cambria, LLP
Att: Michael Schiavone, Esq.
42 Delaware Avenue, Suite 300
Buffalo, NY 14202
If to Goldtree:
Goldtree
c/o The Law Firm of Michael Levine, P.C.
15 Barclay Road
Scarsdale, NY 10583
5. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of New York, regardless of any conflict of law considerations.
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6. Confidentiality. Each party to this Agreement shall hold and continue to
hold, indefinitely, any information it has obtained from any other party
["Information"] in strictest confidence and will not disclose same to any person
or entity whatsoever, absent the prior express written instruction of the other
parties. Nor shall any party to this Agreement make any disparaging remarks or
statements regarding any other party. The party in possession of Information
shall take all necessary steps to ensure that the same is held in the strictest
confidence by itself, its employees, representatives and agents, and that no
such person makes any disparaging remark about any other party. Notwithstanding
the foregoing, a party in possession of Information may provide access thereto,
and may make a disparaging remark about another party (i) to its partners,
officers, employees and representatives on, and only on, a need to know basis;
(ii) to the extent that any party concludes that it is required under any
applicable federal or state securities laws to make such disclosure or such
disparaging remark; (iii) if, and to the extent required by any other applicable
law provided that such party uses reasonable efforts to limit the disclosure or
disparaging statement by means of a protective order or a request for
confidential treatment and provides the other party a reasonable opportunity to
review the disclosure or disparaging statement before it is made and to
interpose its own objection thereto.
Without limiting the above in any manner, no party to this Agreement shall
make any public or private statement regarding any other party to this Agreement
without first disclosing to the other party the statement that is intended to be
made and the identity of the person or entity to whom it is intended to be made
(and affording the other party an opportunity to make a counter or responding
statement), except that either party may state, to any person or entity, and
without the prior consent of any other party, the following: "The venture
between Metro and Fanzine did not work out to the satisfaction of either party,
and each party believed that its business interests would be better served by
progressing independently of each other. As a result, an amicable separation
took place, so that neither party has any farther ties or obligations to the
other for any purpose." The Metro Group and the Fanzine Group shall consult with
each other for the purpose of the drafting and release of any public
notification or governmental filings deemed necessary or desirable with respect
to the rescission undertaken herein.
7. Cooperation. The parties hereto shall each, promptly upon request,
deliver, or cause to be promptly delivered to the others, such additional
documents, instruments or writings prepared by the requesting party as may be
reasonably necessary for the purpose of carrying out this Rescission Agreement
and/or to effect the Rescission and the transactions contemplated by this
Agreement, including (but not limited to any UCC forms and/or US Patent and
Trademark forms necessary to perfect the security interest set forth in the
Goldtree Security Agreement and/or the Fanzine Security Agreement. The parties
shall also cooperate with each other in order to make all necessary financial
disclosure to the SEC and any tax filings with the IRS.
8. Headings, Construction, assignability. The headings contained in this
Rescission Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms; and the words "hereof' and "hereunder" and
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similar references refer to this Agreement in its entirety and not to any
specific paragraph or subparagraph hereof. This Agreement, the Exhibits annexed
hereto, and the benefits accruing to any party hereunder or in any Exhibit
hereto, may be assigned by any party at any time; provided, however, that such
assignment shall not effect or eliminate any liabilities or obligations of any
party set forth in this Agreement or in any Exhibit annexed hereto, which
liabilities and/or obligations shall remain in full force and effect
notwithstanding any assignment.
9. Counterparts with Faxes. This Agreement may be executed in one or more
counterpart copies. Each counterpart copy shall constitute an agreement and all
of the counterpart copies shall constitute one fully executed agreement. This
Agreement may be executed on facsimile counterparts. The signature of any party
to any counterpart shall be deemed a signature to, and may be appended to, any
other counterpart.
10. Representation. Each of the parties hereto has had an opportunity to
review this Agreement and the Exhibits annexed hereto with its respective
attorneys. No adverse inference or conclusion shall be drawn with respect to the
construction of this Agreement or the Exhibits attached hereto based upon the
drafting of the Agreement by one party or another.
11. Entire Agreement. All prior statements, agreements, representations and
warranties, if any, regarding the subject matter hereof, are totally superceded
by and merged into this Agreement, which represents the final and sole agreement
of the parties with respect to the matters which are the subject hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above-written.
METRO GLOBAL MEDIA, INC.
By: /s/ Janet Hoey
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JANET HOEY,
TREASURER
FANZINE INTERNATIONAL, INC.
By: /s/
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GOLDTREE PUBLISHING, INC.
By: /s/
----------------------
/s/ Robert Maiello
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ROBERT MAIELLO
/s/ Philip P. Salvatore
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PHILIP P. SALVATORE
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/s/ Bart Senior
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BART SENIOR
/s/ Michael Levine
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MICHAEL LEVINE
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Exhibit 2.2
EXHIBIT E
SECURITY AGREEMENT
AGREEMENT, dated September 29, 1999, between Fanzine International, Inc.,
with an office at 230 West 41st Street, New York, New York 10036 ("Fanzine"),
and Metro Global Media, Inc., with an office at 1060 Park Avenue, Cranston,
Rhode Island, New York 02910 ("Secured Party").
W I T N E S S E T H:
WHEREAS, concurrently herewith Secured Party is lending to Robert Maiello,
Michael Levine, Bart Senior and Philip Salvatore the sum of Two Million Dollars
($2,000,000.00), as evidenced by a Promissory Note of even date herewith (the
"Note"); and
WHEREAS, in order to induce Secured Party to make said loan, Debtor has
agreed to pledge to Secured Party certain property owned by Fanzine as security
for the loan.
NOW THEREFORE, in consideration of Ten Dollars ($10.00), and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. The following terms as used in this Agreement shall have
the meanings set forth below:
(a) "Collateral" shall mean all of the property and assets of Debtor,
whether real, personal, tangible, intangible, contract rights,
intellectual property, accounts receivable, rights in action, or any
and all other property of whatever nature, whether presently existing
or hereafter acquired, and all property of the same class or character
acquired by Debtor subsequent to the date hereof, and all proceeds
thereof, and all substitutions, replacements and accessions thereto.
(b) "Obligations" shall mean all principal and interest due or to become
due under the aforesaid Note.
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2. Creation Of The Security Interest. Debtor hereby grants to Secured Party
a security interest in all of the right, title and interest of Debtor in and to
the Collateral to secure the full and prompt payment and performance of all of
the Obligations.
3. Debtor's Obligations To Pay. Debtor shall pay and perform all of the
Obligations as the same may become due according to their terms. In the event of
a an uncured default under the terms of the Note, Debtor shall be liable for,
and shall reimburse to Secured Party, all expenses, including reasonable
attorneys' fees, incurred or paid in connection with collecting the unpaid
balance of the Note and/or enforcing any of Secured Party's rights and remedies
hereunder.
4. Protection of The Collateral. Debtor shall defend the title to the
Collateral against all claims and demands whatsoever. Debtor shall keep the
Collateral free and clear of all liens, charges, encumbrances, taxes and
assessments, other than any of the same incurred in the ordinary course of
business of Debtor, and shall pay all taxes, assessments and fees relating to
the Collateral. Upon request by Secured Party, Debtor shall furnish further
assurances of title, execute any further instruments and do any other acts
necessary to effectuate the purposes and provisions of this Agreement. The risk
of loss of the Collateral at all times shall be borne by Debtor. Debtor shall
keep the Collateral in good repair and condition and shall not misuse, abuse or
waste the Collateral or allow the Collateral to deteriorate except for normal
wear and tear.
Debtor at all times shall maintain: (a) insurance covering all tangible
property of Debtor against loss or damage by fire and other hazards; (b)
insurance against liability on account of damage to persons and property; and
(c) all insurance required under applicable workmen's compensation laws in such
amounts and kinds as presently carried by Debtor with such carrier or carriers
as are presently being used by Debtor (or such other responsible insurance
carriers as Debtor may reasonably hereafter substitute).
5. Filing And Recording. Debtor, at its own cost and expense, shall execute
and deliver to Secured Party, any financing statements and/or other documents
prepared by Secured Party and accurately reflecting the terms of this Security
Agreement, which are necessary or appropriate to protect the security interest
granted to Secured Party hereunder against the rights and interests of third
patties. Secured Party shall cause the same to be duly recorded and filed in all
places necessary to perfect the security interest of Secured Party in the
Collateral. In the event that any recording or refiling thereof (or filing of
any statements of continuation or assignment of any financing statement) is
required to protect and preserve such security interest, Debtor shall execute
and return to Secured Party such documents as are prepared by Secured Party and
accurately reflects the terms of this Security Agreement. Debtor hereby
authorizes Secured Party to file or refile any financing statements or
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continuation statements with respect to the security interest granted pursuant
to this Agreement which at any time may be required or appropriate although the
same may have been executed only by Secured Party, and to execute such financing
Statement on behalf of Debtor, as accurately reflects the terms of this Security
Agreement. Debtor hereby irrevocably designates Secured Party, its agents,
representatives and designees, as agent and attorney-in-fact for Debtor for the
aforesaid purposes, and for such purposes only; provided, however, that copies
of all such documents executed by Secure party must be delivered to Debtor in
advance of any filing of the same.
6. Default. The occurrence of any one or more of the following events
(hereinafter referred to as '"Events of Default") shall constitute a default
hereunder, whether such occurrence is voluntary or involuntary or comes about or
is effected by operation of law or pursuant to or in compliance with any
judgment decree or order of any court or any order, rule or regulation of any
administrative or governmental authority:
(a) If Debtor shall fail to cure any default under the Note within the
applicable cure period as set forth thereunder; or
(b) If Debtor shall admit in writing its inability to pay its debts
generally as they become due; file a petition for relief under the
bankruptcy laws or a petition to take advantage of any insolvency act;
make an assignment for the benefit of creditors; commence a proceeding
for the appointment of a receiver, trustee, liquidator or conservator
of itself or the whole or any substantial part of its property; file a
petition or answer seeking reorganization or arrangement or similar
relief under the Federal Bankruptcy Laws or any other applicable law
or statute of the United States or any State; or if Debtor shall be
adjudged a bankrupt or insolvent, or a court of competent jurisdiction
shall enter any order, judgment or decree appointing a receiver,
trustee, liquidator or conservator of Debtor or of the whole or any
substantial part of the property of Debtor or approves a petition
filed against Debtor seeking reorganization or similar relief under
the Federal Bankruptcy Laws or any other applicable law or statute of
the United States or any State (unless such proceeding was commenced
by the Secured Party); or if, under the provisions of any other law
for the relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of Debtor or the whole or any
substantial part of its property (unless such action is taken at the
request of the Secured Party); or if there is commenced against Debtor
any proceeding for any of the foregoing relief by anyone other than
the Secured Party (which proceeding remains undismissed for a period
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of ninety (90) days; or if Debtor by any act indicates its consent to,
approval of, or acquiescence in any such proceeding; or
(c) If any creditor of Debtor (who is not subordinated to the interests of
the Secured Party) for any reason whatsoever hereafter shall
accelerate payment in whole or in part of any outstanding obligation
owed to it by Debtor under any agreement or arrangement, or if any
judgment against the Debtor or any execution against any of its
property for any amount remains unpaid, unstayed or undismissed for a
period in excess of ninety days; or
7. Rights And Remedies. Upon the occurrence of an Event of Default, the
Obligations shall immediately become due and payable in full without notice or
demand. Secured Party shall have all rights and remedies provided by the Uniform
Commercial Code in effect in the State of New York on the date hereof. In
addition to, or in conjunction with, or in substitution for such rights and
remedies, Secured Party may at any time and from and after the occurrence of an
Event of Default hereunder:
(a) with notice to Debtor, foreclose the security interest created herein
by any available judicial procedure; or
(b) remedy any default by Debtor hereunder, without waiving such default,
and any monies expended in so doing shall be chargeable with interest
to Debtor and added to the Obligations secured hereby; and
(c) apply for an injunction to restrain a breach of this Agreement by
Debtor.
8. Cumulative Rights. All rights and remedies and powers granted to Secured
Party herein, or in any instrument or document related hereto, or provided or
implied by law or in equity shall be cumulative and may be exercised singly or
concurrently on any one or more occasions.
9.Debtor's Representations And Warranties. Debtor hereby represents arid
warrants to Secured Party that:
(a) Debtor is not in default under any indenture, mortgage, or deed of
trust to which it is a parry or by which it may be bound. Neither the
execution nor the delivery of this Agreement, nor the consummation of
the transactions herein contemplated, nor compliance with the
provisions hereof, will violate any law or regulation, or any order or
decree of any court of governmental authority, or will conflict with,
or result in the breach of, or constitute a default under, any
indenture, mortgage, deed or trust, agreement or other instrument to
which Debtor is a party or by which Debtor may be bound, or result in
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the creation or imposition of any lien, claim or encumbrance upon any
property of Debtor.
(b) Debtor has the power to execute, deliver and perform the provisions of
this Agreement and all instruments and documents delivered or to be
delivered pursuant hereto, and has taken or caused to be taken all
necessary or appropriate actions to authorize the execution, delivery
arid performance of this Agreement and all such instruments and
documents.
(c) Debtor is the legal and equitable owner of the Collateral, free and
clear of all security interests, liens, claims and encumbrances of
every kind and nature (other than those incurred in the ordinary
course of business). No financing statement covering the Collateral or
its proceeds is on file in any public office to the knowledge of
Debtor.
(d) No default exists, and no event exists which, with notice or the
passage of time, or both, would constitute a default under any
contract or agreement regarding the Collateral by any party thereto,
and there are no offsets, claims or defenses against the Debtor's
ownership of the Collateral which are presently known to the Debtor,
except as may be set forth in Debtor's contracts with various
distributors of its magazines (who have the right to offset any funds
due and owing against any receivables due to Debtor from such
distributors).
10. Notices. All notices, requests, demands or other communications
provided for herein shall be in writing and shall be deemed to have been
properly given if personally delivered or sent by facsimile transmission to the
party to receive such notice, with a copy sent to such party by registered or
certified mail, return receipt requested, addressed to the patties at their
respective addresses hereinabove set forth or at such other addresses as the
parties may hereafter designate in writing. Debtor immediately shall notify
Secured Party of all changes in the address of Debtor or discontinuance of the
place of business of Debtor.
11. Modification And Waiver. No modification or waiver of any provision of
this Agreement, and no consent by Secured Parry to any breach thereof by Debtor,
shall be effective unless such modification or waiver shall be in writing and
signed by Secured Party, and the same shall then be effective only for the
period and on the conditions and for the specific instances and purposes
specified in such writing. No course of dealing between Debtor and Secured Party
in exercising any fights or remedies hereunder shall operate as a waiver or
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preclude the exercise of any other rights or remedies hereunder. All such rights
and remedies shall continue unimpaired, notwithstanding any delay, extension of
time, renewal, compromise or other indulgence granted with respect to any of the
Obligations. Debtor hereby waives all notice of any such delay, extension of
time, renewal, compromise or indulgence, and consents to be bound thereby as
fully and effectually as if Debtor expressly had agreed thereto in advance. The
aforesaid Note may be negotiated by Secured Party, without releasing Debtor or
the Collateral.
12. Applicable Law. This Agreement shall be construed in accordance with
and shall be governed by the laws of the State of New York. The invalidity or
unenforceability of any provision of this Agreement shall not effect the
validity or enforceability of any other provision of this Agreement. The parties
agrees to execute and deliver to the other such additional assurances, writings
and instruments as may be required for purposes of effectuating the intent of
this Agreement. The captions in this Agreement are for convenience only, and
shall not be considered in construing this Agreement.
13. Benefit. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
successors and assigns. Secured Patty may assign this Agreement, and if
assigned, the assignee shall be entitled, upon notice to the Debtor, to the
payment and performance of all of the Obligations and agreements of Debtor
hereunder and to all of the rights and remedies of Secured Patty hereunder. The
gender and number used in this Agreement are used for reference term only and
shall apply with the same effect whether the parties are masculine, feminine,
neuter, singular or plural.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
DEBTOR:
FANZINE INTERNATIONAL, INC.
By: ____________________________________
SECURED PARTY:
METRO GLOBAL MEDIA, INC.
By: /s/ Janet Hoey
-------------------
JANET HOEY,
TREASURER
6
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September, in the year 1999, before me personally came
Robert Maiello, to me known, who being by me duly sworn, did depose and say that
he is resides at 46 Polly Way, Middletown, NJ 07748; that he is the President of
Fanzine International, Inc., the corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
------------------------------------
NOTARY PUBLIC
STATE OF RHODE ISLAND
COUNTY OF ______________
On the _____ day of September, in the year 1999, before me personally came
___________________________, to me known, who being by me duly sworn, did depose
and say that he is resides at _____________________________________; that he is
the President of Metro Global Media, Inc., the corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
------------------------------------
NOTARY PUBLIC
7
Exhibit 2.3
EXHIBIT D
SECURITY AGREEMENT
AGREEMENT, dated September 29, 1999, between Fanzine International, Inc.,
with an office at 230 West 41st Street, New York, New York 10036 ("Fanzine"),
and Metro Global Media, Inc., with an office at 1060 Park Avenue, Cranston,
Rhode Island, New York 02910 ("Secured Party").
W I T N E S S E T H:
WHEREAS, concurrently herewith Secured Party is lending to Goldtree
Publishing, Inc. the sum of Two Million Five Hundred Thousand Dollars
($2,500,000.00), as evidenced by a Promissory Note of even date herewith (the
"Note"); and
WHEREAS, in order to induce Secured Party to make said loan, Debtor has
agreed to pledge to Secured Party certain property owned by Fanzine as security
for the loan.
NOW THEREFORE, in consideration of Ten Dollars ($10.00), and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. The following terms as used in this Agreement shall have
the meanings set forth below:
(a) "Collateral" shall mean all of the property and assets of Debtor,
whether real, personal, tangible, intangible, contract rights,
intellectual property, accounts receivable, rights in action, or any
and all other property of whatever nature, whether presently existing
or hereafter acquired, and all property of the same class or character
acquired by Debtor subsequent to the date hereof, and all proceeds
thereof, and all substitutions, replacements and accessions thereto.
(b) "Obligations" shall mean all principal and interest due or to become
due under the aforesaid Note.
<PAGE>
2. Creation Of The Security Interest. Debtor hereby grants to Secured Party
a security interest in all of the right, title and interest of Debtor in and to
the Collateral to secure the full and prompt payment and performance of all of
the Obligations.
3. Debtor's Obligations To Pay. Debtor shall pay and perform all of the
Obligations as the same may become due according to their terms. In the event of
a an uncured default under the terms of the Note, Debtor shall be liable for,
and shall reimburse to Secured Party, all expenses, including reasonable
attorneys' fees, incurred or paid in connection with collecting the unpaid
balance of the Note and/or enforcing any of Secured Party's rights and remedies
hereunder.
4. Protection of The Collateral. Debtor shall defend the title to the
Collateral against all claims and demands whatsoever. Debtor shall keep the
Collateral free and clear of all liens, charges, encumbrances, taxes and
assessments, other than any of the same incurred in the ordinary course of
business of Debtor, and shall pay all taxes, assessments and fees relating to
the Collateral. Upon request by Secured Party, Debtor shall furnish further
assurances of title, execute any further instruments and do any other acts
necessary to effectuate the purposes and provisions of this Agreement. The risk
of loss of the Collateral at all times shall be borne by Debtor. Debtor shall
keep the Collateral in good repair and condition and shall not misuse, abuse or
waste the Collateral or allow the Collateral to deteriorate except for normal
wear and tear.
Debtor at all times shall maintain: (a) insurance covering all tangible
property of Debtor against loss or damage by fire and other hazards; (b)
insurance against liability on account of damage to persons and property; and
(c) all insurance required under applicable workmen's compensation laws in such
amounts and kinds as presently carried by Debtor with such carrier or carriers
as are presently being used by Debtor (or such other responsible insurance
carriers as Debtor may reasonably hereafter substitute).
5. Filing And Recording. Debtor, at its own cost and expense, shall execute
and deliver to Secured Party, any financing statements and/or other documents
prepared by Secured Party and accurately reflecting the terms of this Security
Agreement, which are necessary or appropriate to protect the security interest
granted to Secured Party hereunder against the rights and interests of third
patties. Secured Party shall cause the same to be duly recorded and filed in all
places necessary to perfect the security interest of Secured Party in the
Collateral. In the event that any recording or refiling thereof (or filing of
any statements of continuation or assignment of any financing statement) is
required to protect and preserve such security interest, Debtor shall execute
and return to Secured Party such documents as are prepared by Secured Party and
accurately reflects the terms of this Security Agreement. Debtor hereby
authorizes Secured Party to file or refile any financing statements or
2
<PAGE>
continuation statements with respect to the security interest granted pursuant
to this Agreement which at any time may be required or appropriate although the
same may have been executed only by Secured Party, and to execute such financing
Statement on behalf of Debtor, as accurately reflects the terms of this Security
Agreement. Debtor hereby irrevocably designates Secured Party, its agents,
representatives and designees, as agent and attorney-in-fact for Debtor for the
aforesaid purposes, and for such purposes only; provided, however, that copies
of all such documents executed by Secure party must be delivered to Debtor in
advance of any filing of the same.
6. Default. The occurrence of any one or more of the following events
(hereinafter referred to as '"Events of Default") shall constitute a default
hereunder, whether such occurrence is voluntary or involuntary or comes about or
is effected by operation of law or pursuant to or in compliance with any
judgment decree or order of any court or any order, rule or regulation of any
administrative or governmental authority:
(a) If Debtor shall fail to cure any default under the Note within the
applicable cure period as set forth thereunder; or
(b) If Debtor shall admit in writing its inability to pay its debts
generally as they become due; file a petition for relief under the
bankruptcy laws or a petition to take advantage of any insolvency act;
make an assignment for the benefit of creditors; commence a proceeding
for the appointment of a receiver, trustee, liquidator or conservator
of itself or the whole or any substantial part of its property; file a
petition or answer seeking reorganization or arrangement or similar
relief under the Federal Bankruptcy Laws or any other applicable law
or statute of the United States or any State; or if Debtor shall be
adjudged a bankrupt or insolvent, or a court of competent jurisdiction
shall enter any order, judgment or decree appointing a receiver,
trustee, liquidator or conservator of Debtor or of the whole or any
substantial part of the property of Debtor or approves a petition
filed against Debtor seeking reorganization or similar relief under
the Federal Bankruptcy Laws or any other applicable law or statute of
the United States or any State (unless such proceeding was commenced
by the Secured Party); or if, under the provisions of any other law
for the relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of Debtor or the whole or any
substantial part of its property (unless such action is taken at the
request of the Secured Party); or if there is commenced against Debtor
any proceeding for any of the foregoing relief by anyone other than
the Secured Party (which proceeding remains undismissed for a period
of ninety (90) days; or if Debtor by
3
<PAGE>
any act indicates its consent to, approval of, or acquiescence in any such
proceeding; or
(c) If any creditor of Debtor (who is not subordinated to the interests of
the Secured Party) for any reason whatsoever hereafter shall
accelerate payment in whole or in part of any outstanding obligation
owed to it by Debtor under any agreement or arrangement, or if any
judgment against the Debtor or any execution against any of its
property for any amount remains unpaid, unstayed or undismissed for a
period in excess of ninety days; or
7. Rights And Remedies. Upon the occurrence of an Event of Default, the
Obligations shall immediately become due and payable in full without notice or
demand. Secured Party shall have all rights and remedies provided by the Uniform
Commercial Code in effect in the State of New York on the date hereof. In
addition to, or in conjunction with, or in substitution for such rights and
remedies, Secured Party may at any time and from and after the occurrence of an
Event of Default hereunder:
(a) with notice to Debtor, foreclose the security interest created herein
by any available judicial procedure; or
(b) remedy any default by Debtor hereunder, without waiving such default,
and any monies expended in so doing shall be chargeable with interest
to Debtor and added to the Obligations secured hereby; and
(c) apply for an injunction to restrain a breach of this Agreement by
Debtor.
8. Cumulative Rights. All rights and remedies and powers granted to Secured
Party herein, or in any instrument or document related hereto, or provided or
implied by law or in equity shall be cumulative and may be exercised singly or
concurrently on any one or more occasions.
9.Debtor's Representations And Warranties. Debtor hereby represents arid
warrants to Secured Party that:
(a) Debtor is not in default under any indenture, mortgage, or deed of
trust to which it is a parry or by which it may be bound. Neither the
execution nor the delivery of this Agreement, nor the consummation of
the transactions herein contemplated, nor compliance with the
provisions hereof, will violate any law or regulation, or any order or
decree of any court of governmental authority, or will conflict with,
or result in the breach of, or constitute a default under, any
indenture, mortgage, deed or trust, agreement or other instrument to
which Debtor is a party or by which Debtor may be bound, or result
4
<PAGE>
in the creation or imposition of any lien, claim or encumbrance upon any
property of Debtor.
(b) Debtor has the power to execute, deliver and perform the provisions of
this Agreement and all instruments and documents delivered or to be
delivered pursuant hereto, and has taken or caused to be taken all
necessary or appropriate actions to authorize the execution, delivery
arid performance of this Agreement and all such instruments and
documents.
(c) Debtor is the legal and equitable owner of the Collateral, free and
clear of all security interests, liens, claims and encumbrances of
every kind and nature (other than those incurred in the ordinary
course of business). No financing statement covering the Collateral or
its proceeds is on file in any public office to the knowledge of
Debtor.
(d) No default exists, and no event exists which, with notice or the
passage of time, or both, would constitute a default under any
contract or agreement regarding the Collateral by any party thereto,
and there are no offsets, claims or defenses against the Debtor's
ownership of the Collateral which are presently known to the Debtor,
except as may be set forth in Debtor's contracts with various
distributors of its magazines (who have the right to offset any funds
due and owing against any receivables due to Debtor from such
distributors).
10. Notices. All notices, requests, demands or other communications
provided for herein shall be in writing and shall be deemed to have been
properly given if personally delivered or sent by facsimile transmission to the
party to receive such notice, with a copy sent to such party by registered or
certified mail, return receipt requested, addressed to the patties at their
respective addresses hereinabove set forth or at such other addresses as the
parties may hereafter designate in writing. Debtor immediately shall notify
Secured Party of all changes in the address of Debtor or discontinuance of the
place of business of Debtor.
11. Modification And Waiver. No modification or waiver of any provision of
this Agreement, and no consent by Secured Parry to any breach thereof by Debtor,
shall be effective unless such modification or waiver shall be in writing and
signed by Secured Party, and the same shall then be effective only for the
period and on the conditions and for the specific instances and purposes
specified in such writing. No course of dealing between Debtor and Secured Party
5
<PAGE>
in exercising any fights or remedies hereunder shall operate as a waiver or
preclude the exercise of any other rights or remedies hereunder. All such rights
and remedies shall continue unimpaired, notwithstanding any delay, extension of
time, renewal, compromise or other indulgence granted with respect to any of the
Obligations. Debtor hereby waives all notice of any such delay, extension of
time, renewal, compromise or indulgence, and consents to be bound thereby as
fully and effectually as if Debtor expressly had agreed thereto in advance. The
aforesaid Note may be negotiated by Secured Party, without releasing Debtor or
the Collateral.
12. Applicable Law. This Agreement shall be construed in accordance with
and shall be governed by the laws of the State of New York. The invalidity or
unenforceability of any provision of this Agreement shall not effect the
validity or enforceability of any other provision of this Agreement. The parties
agrees to execute and deliver to the other such additional assurances, writings
and instruments as may be required for purposes of effectuating the intent of
this Agreement. The captions in this Agreement are for convenience only, and
shall not be considered in construing this Agreement.
13. Benefit. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
successors and assigns. Secured Patty may assign this Agreement, and if
assigned, the assignee shall be entitled, upon notice to the Debtor, to the
payment and performance of all of the Obligations and agreements of Debtor
hereunder and to all of the rights and remedies of Secured Patty hereunder. The
gender and number used in this Agreement are used for reference term only and
shall apply with the same effect whether the parties are masculine, feminine,
neuter, singular or plural.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the date first above written.
DEBTOR:
FANZINE INTERNATIONAL, INC.
By: ____________________________________
SECURED PARTY:
METRO GLOBAL MEDIA, INC.
By: /s/ Janet Hoey
-------------------
JANET HOEY,
TREASURER
6
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September, in the year 1999, before me personally came
Robert Maiello, to me known, who being by me duly sworn, did depose and say that
he is resides at 46 Polly Way, Middletown, NJ 07748; that he is the President of
Fanzine International, Inc., the corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
------------------------------------
NOTARY PUBLIC
STATE OF RHODE ISLAND
COUNTY OF __________________
On the _____ day of September, in the year 1999, before me personally came
___________________________, to me known, who being by me duly sworn, did depose
and say that he is resides at _____________________________________; that he is
the President of Metro Global Media, Inc., the corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
------------------------------------
NOTARY PUBLIC
7
Exhibit 2.4
EXHIBIT A
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Robert Maiello, Michael Levine, Bart
Senior and Philip Salvatore [collectively, the "Maker"] jointly and severally
promise to pay to the order of Metro Global Media, Inc., a Delaware corporation
with an office at 1060 Park Avenue, Cranston, Rhode Island 02910 [the "Holder"]
the principal sum of Two Million Dollars ($2,000,00), without interest, on or
before October 31, 1999; provided, however, that, at the option of Maker,
payment of up to One Million Dollars ($1,000,000) of the said sum may be
extended to November 30, 1999, without any additional interest, and without such
extension constituting a default hereunder.
This Note may be prepaid at any time, at the option of Maker, without
penalty or additional fee to Holder.
Payment of this Note shall be made at 1060 Park Avenue, Cranston, Rhode
Island 02910, or at such other address as Holder may hereafter designate in
writing.
This Note and all sums payable hereunder may be declared immediately due
and payable, at the option of the Holder, upon the happening of any of the
following events:
(a) Non-payment when due of any sum payable hereunder, provided that
holder shall give Maker ten (10) days written notice of such default
and an opportunity to cure same during said period. Any sum remaining
unpaid after any uncured default shall accrue interest from the date
of this Note at the rate of twelve percent (12%) per annum until such
time as the balance is paid in full. Any assessment and/or collection
of interest hereunder shall in no way impair the Holder's right to
pursue any other remedy on default; or
(b) The appointment of a receiver or similar officer for the Maker or for
any property of the Maker (unless such receiver was appointed on the
application of Holder), which receiver remains undischarged for a
period of at least thirty (30) days; or
(c) The filing of a petition in bankruptcy, the commencement of any
proceeding under any bankruptcy or debtor's law (or similar law
analogous in purpose or effect) for the relief, reorganization,
recomposition, extension, arrangement or readjustment of any of the
obligations by or against the Maker (unless such petition was filed by
Holder).
<PAGE>
This Note is subject to the express condition that at no time shall Maker
be obligated or required to pay interest on the principal balance of this Note
at a rate which could subject the Holder to either civil or criminal liability
as a result of being in excess of the maximum rate which Maker is at any time
required or obligated to pay on the principal balance of the Note at a rate in
excess of such maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate, and interest payable
hereunder shall be computed at such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance of this Note.
The Holder's waiver of any default in payment by the Maker shall not
constitute a waiver of any other default of the Maker.
In the event of any uncured default under the terms of this Note, the
Maker, and all others who may become liable for all or any part of the
obligations evidenced and secured hereby, agree to pay all costs and reasonable
attorney fees for the collection of any unpaid balance hereof.
Presentment for payment, notice of dishonor, protest and notice of protest
are hereby waived.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, regardless of any conflict of laws considerations.
Dated: September 29, 1999
/s/ Robert Maiello
------------------------------
ROBERT MAIELLO
/s/ Michael Levine
------------------------------
MICHAEL LEVINE
/s/ Bart Senior
------------------------------
BART SENIOR
/s/ Philip Salvatore
------------------------------
PHILIP SALVATORE
2
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Robert Maiello, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Philip Salvatore, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared Bart
Senior, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
3
<PAGE>
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Michael Levine, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
4
Exhibit 2.5
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Goldtree Publishing, Inc. [the
"Maker"] promises to pay to the order of Metro Global Media, Inc., a Delaware
corporation with an office at 1060 Park Avenue, Cranston, Rhode Island 02910
[the "Holder"] the principal sum of Two Million Five Hundred Thousand Dollars
($2,500,000), without interest, as follows: (i) One Million Dollars ($1,000,000)
on or before May 31, 2000; and (ii) the sum of One Million Five Hundred Thousand
Dollars ($1,500,000) on or before August 31, 2000.
This Note may be prepaid at any time, at the option of Maker, without
penalty or additional fee to Holder.
Payment of this Note shall be made at 1060 Park Avenue, Cranston, Rhode
Island 02910, or at such other address as Holder may hereafter designate in
writing.
This Note and all sums payable hereunder may be declared immediately due
and payable, at the option of the Holder, upon the happening of any of the
following events:
(a) Non-payment when due of any sum payable hereunder, provided that
holder shall give Maker ten (10) days written notice of such default
and an opportunity to cure same during said period. Any sum remaining
unpaid after any uncured default shall accrue interest from the date
of this Note at the rate of twelve percent (12%) per annum until such
time as the balance is paid in full. Any assessment and/or collection
of interest hereunder shall in no way impair the Holder's right to
pursue any other remedy on default; or
(b) The appointment of a receiver or similar officer for the Maker or for
any property of the Maker (unless such receiver was appointed on the
application of Holder), which receiver remains undischarged for a
period of at least thirty (30) days; or
(c) The filing of a petition in bankruptcy, the commencement of any
proceeding under any bankruptcy or debtor's law (or similar law
analogous in purpose or effect) for the relief, reorganization,
recomposition, extension, arrangement or readjustment of any of the
obligations by or against the Maker (unless such petition was filed by
Holder).
<PAGE>
This Note is subject to the express condition that at no time shall Maker
be obligated or required to pay interest on the principal balance of this Note
at a rate which could subject the Holder to either civil or criminal liability
as a result of being in excess of the maximum rate which Maker is at any time
required or obligated to pay on the principal balance of the Note at a rate in
excess of such maximum rate, the rate of interest under this Note shall be
deemed to be immediately reduced to such maximum rate, and interest payable
hereunder shall be computed at such maximum rate, and the portion of all prior
interest payments in excess of such maximum rate shall be applied and shall be
deemed to have been payments in reduction of the principal balance of this Note.
The Holder's waiver of any default in payment by the Maker shall not
constitute a waiver of any other default of the Maker.
In the event of any uncured default under the terms of this Note, the
Maker, and all others who may become liable for all or any part of the
obligations evidenced and secured hereby, agree to pay all costs and reasonable
attorney fees for the collection of any unpaid balance hereof.
Presentment for payment, notice of dishonor, protest and notice of protest
are hereby waived.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, regardless of any conflict of laws considerations.
Dated: September 29, 1999
GOLDTREE PUBLISHING, INC.
By: ________________________________
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September, in the year 1999, before me personally came
Robert Maiello, to me known, who being by me duly sworn, did depose and say that
he is resides at 46 Polly Way, Middletown, NJ 07748; that he is the President of
Goldtree Publishing, Inc., the corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
------------------------------------
NOTARY PUBLIC
2
Exhibit 2.6
EXHIBIT C-4
PERSONAL GUARANTEE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby guarantees the prompt and punctual payment
when due of all payments under and in accordance with the terms of this
Promissory Note. The undersigned hereby consents and agrees that renewals and
other guarantees and any and all other forbearances or indulgences granted by
the Holder to the Maker, may be made, granted and effected by the Holder without
notice to the undersigned. This guarantee shall become effective immediately and
shall remain in full force and effect until such time as all the obligations of
the Maker to the Holder have been satisfied and fulfilled. Notwithstanding the
foregoing, the liability of the undersigned hereunder shall be limited to the
principal aggregate sum of $416,500, together with accrued interest and the cost
of collection.
/s/ Michael Levine
------------------
MICHAEL LEVINE
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Michael Levine, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
Exhibit 2.7
EXHIBIT C-1
PERSONAL GUARANTEE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby guarantees the prompt and punctual payment
when due of all payments under and in accordance with the terms of this
Promissory Note. The undersigned hereby consents and agrees that renewals and
other guarantees and any and all other forbearances or indulgences granted by
the Holder to the Maker, may be made, granted and effected by the Holder without
notice to the undersigned. This guarantee shall become effective immediately and
shall remain in full force and effect until such time as all the obligations of
the Maker to the Holder have been satisfied and fulfilled. Notwithstanding the
foregoing, the liability of the undersigned hereunder shall be limited to the
aggregate principal sum of $694,500, together with accrued interest and the
costs of collection.
/s/ Robert Maiello
------------------
ROBERT MAIELLO
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Robert Maiello, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
------------------------------
NOTARY PUBLIC
Exhibit 2.8
EXHIBIT C-2
PERSONAL GUARANTEE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby guarantees the prompt and punctual payment
when due of all payments under and in accordance with the terms of this
Promissory Note. The undersigned hereby consents and agrees that renewals and
other guarantees and any and all other forbearances or indulgences granted by
the Holder to the Maker, may be made, granted and effected by the Holder without
notice to the undersigned. This guarantee shall become effective immediately and
shall remain in full force and effect until such time as all the obligations of
the Maker to the Holder have been satisfied and fulfilled. Notwithstanding the
foregoing, the liability of the undersigned hereunder shall be limited to the
aggregate principal sum of $694,500, together with accrued interest and costs of
collection.
/s/ Philip Salvatore
--------------------
PHILIP SALVATORE
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared
Philip Salvatore, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual or the
person upon behalf of which the individual acted, executed this instrument.
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NOTARY PUBLIC
Exhibit 2.9
EXHIBIT C-3
PERSONAL GUARANTEE
For valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby guarantees the prompt and punctual payment
when due of all payments under and in accordance with the terms of this
Promissory Note. The undersigned hereby consents and agrees that renewals and
other guarantees and any and all other forbearances or indulgences granted by
the Holder to the Maker, may be made, granted and effected by the Holder without
notice to the undersigned. This guarantee shall become effective immediately and
shall remain in full force and effect until such time as all the obligations of
the Maker to the Holder have been satisfied and fulfilled. Notwithstanding the
foregoing, the liability of the undersigned hereunder shall be limited to the
aggregate principal sum of $694,500, together with accrued interest and costs of
collection.
/s/ Bart Senior
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BART SENIOR
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 29th day of September in the year of 1999 before me, the
undersigned, a notary public in and for the said state, personally appeared Bart
Senior, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed this instrument.
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NOTARY PUBLIC