EXHIBIT 5
Renewal, Extension and Revision Agreement
This Renewal, Extension and Revision Agreement ("Revision Agreement") is
made and entered into effective the 1st day of December, 2000 by and among
Imagine Investments, Inc., a Delaware corporation ("Lender"), MB Software
Corporation, a Colorado corporation ("Borrower").
Whereas, Lender loaned Borrower $1,400,000.00 pursuant to the terms of that
certain promissory note dated April 1, 1998, in the original principal amount of
$1,400,000.00 bearing interest and being due and payable on or before October 1,
1998 (the "Note").
Whereas, pursuant to the terms of the Notes the Borrower had the option,
and on November 12, 1998, did repay the outstanding principal on the Note by
issuing Lender, 140,000 Class A Senior Cumulative Convertible Participating
Preferred Stock, par value $10.00 per share, of Borrower, however, Borrower did
not pay cash equal to all accrued and outstanding interest due on the Note as
required by the terms of the Note.
Whereas, Borrower has requested that the Note be renewed, extended and
revised in accordance with the terms hereby.
Now Therefore, Borrower and Lender hereby agree that the Note is renewed,
extended and revised as follows:
1. Amendment
---------
Maturity date amended to: On demand or if no prior demand then July 1,
2001.
Repayment terms amended to: Borrower's next payment of accrued interest is
due on April 1, 2001 and on July 1, 2001 at which time all outstanding
principal, accrued interest, attorneys' fees and all other monies owed and
remaining unpaid on the Note shall be due and payable in full.
2. Reaffirmation
-------------
A. Note. Borrower ratifies, reaffirms and confirms the Note and all of
----
the terms and provisions of same to and for the benefit of Lender
including Borrower's obligation and promise to pay principal, interest
and all other obligations contracted for and due and owing or to be
due and owing under the Note.
Borrower acknowledges and consents to each and every one of the terms
and provisions of the Note, as amended hereby and agrees that
Borrower's rights and obligations under the Note are not released,
impaired, diminished, reduced or adversely affected in any respects.
Borrower agrees that the Note is in full force and effect and
represents, warrants and acknowledges that there are no claims or
offsets against, or defenses or counterclaims to, the obligations or
any other obligations of Borrower created or evidenced by the Note.
B. Amounts Due. Borrower and Lender agree that the following
-----------
amounts are due and owing pursuant to the Note:
1. Accrued interest and late charges as of December 1, 2001,
$69,693.15.
2. Attorneys' fees and expenses as of December 12, 2000, $400.00.
C. Revision Only
-------------
This revision agreement is a revision only, and not a novation. It is
not the intent of either Borrower or Lender that this Revision
Agreement operate as a novation or release of the original debt.
Except as amended hereby, all terms, covenants and conditions of the
Note, the Agreement, and of any deed of trust, security agreement, or
other document of lien or encumbrance, together with any prior
amendments thereto, shall remain in full force and effect.
3. Miscellaneous
-------------
A. Notices.
-------
All notices, requests, demands or other communications to or upon the
respective parties hereto shall be in writing and shall be deemed to
have been given or made when deposited in the mail, postage prepaid,
certified mail, return receipt requested, and addressed to the
respective parties as set forth below:
Lender: Borrower:
Stone Capital, Inc. MB Software
Attn: Xxxx Xxxxx, Esq. Attn: Xxxxx Xxxxx
8150 North Central Expressway 0000 X. Xxxxxx Xxxx Xxxx
Xxxxx 0000 Xxxxx 000
Xxxxxx, Xxxxx 00000 Xxxxxxxxx, Xxxxx 00000
B. Binding Agreement; Assigns; Parties Bound
-----------------------------------------
This Revision Agreement has been duly executed and delivered by all
parties and constitutes a legal, valid and binding obligation of the
parties, their successors, and or assigns.
C. Amendment
---------
This Revision Agreement may not be amended except in a written
instrument specifically referring to this Revision Agreement and
signed by the Parties hereto.
D. No Further Agreements
---------------------
In accordance with Section 26.02(a)(2) of the Texas Business and
Commerce Code, as amended, Borrower hereby acknowledges, with respect to the
note this Revision Agreement and all other written agreements constituting the
loan document (the "Loan Documents") that:
1. THE RIGHTS AND OBLIGATIONS OF BORROWER AND LENDER SHALL BE
DETERMINED SOLELY FROM THE WRITTEN LOAN DOCUMENTS AND ANY PRIOR
ORAL AGREEMENTS BETWEEN LENDER AND BORROWER ARE SUPERSEDED BY AND
MERGED INTO THE LOAN DOCUMENTS.
2. THE LOAN DOCUMENTS MAY NOT BE VARIED BY ANY ORAL AGREEMENTS OR
DISCUSSIONS THAT OCCUR BEFORE, CONTEMPORANEOUSLY WITH, OR
SUBSEQUENT TO THE EXECUTION OF SUCH LOAN DOCUMENTS.
3. THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENTS BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
E. Applicable Law
--------------
This Revision Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and IS PERFORMABLE IN
DALLAS COUNTY, TEXAS AND venue of any legal action filed shall be in
Dallas County, Texas.
F. Counterparts
------------
This Revision Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
G. Authority
---------
That each person executing this Revision Agreement on behalf of each
party represents and warrants that they have full right and authority
to enter into this Revision Agreement and each person signing on
behalf of a corporation or company, is authorized to do so. If
requested Borrower shall furnish to Lender upon execution of this
Revision Agreement, a Certificate of authority certifying that the
person signing on behalf of Borrower has authority to do so. The
execution of this Revision Agreement constitutes a legal and binding
obligation of the parties, their successors and permitted assigns.
IN WITNESS WHEREOF, the undersigned have hereunto set their names by their
respective representatives.
Lender: Attest:
Imagine Investments, Inc.
A Delaware corporation
By: /s/ XXXX X. XXXXX /s/ XXXXX XXXXXX
--------------------------------- ----------------------------------
Its: Vice President
Borrower:
MB Software Corporation Attest:
a Colorado corporation
By: /s/ XXXXX X. XXXXX /s/ XXXX X. XXXXXXXXX
--------------------------------- ----------------------------------
Its: President Secretary
STATE OF Texas
-----------
COUNTY OF Tarrant
-----------
This instrument was acknowledged before me on this 3rd day of January 2001,
by Xxxxx X. Xxxxx, President of MB Software Corporation, a Colorado corporation
on behalf of said corporation.
/s/ XXXX X. XXXXXXXXX
----------------------------------
Notary Public in and for the
State of Texas
Name printed: Xxxx X. Xxxxxxxxx
My Commission Expires:
[NOTARY STAMP]
STATE OF Texas
-----------
COUNTY OF Dallas
-----------
This instrument was acknowledged before me on this 10th day of January
2001, by Xxxx X. Xxxxx, Vice President of Imagine Investments, Inc., a Delaware
corporation on behalf of said corporation.
/s/ XXXXX X. XXXXXX
----------------------------------
Notary Public in and for the
State of Texas
Name printed: Xxxxx X. Xxxxxx
My Commission Expires:
[NOTARY STAMP]
