EXHIBIT 10.69
SECOND EXTENSION AGREEMENT
This Second Extension Agreement is made and entered into this 9th day
of July, 2001, by and between June Limited Partnership and the Xxxx X. Xxxxxxx
Revocable Living Trust (collectively "Investors") and Heartsoft, Inc.
("Heartsoft") and Xxxxxxxx X. Xxxxx, Xx. ("Shell");
WHEREAS, Investors, Heartsoft and Shell previously entered into two
Promissory Notes dated November 9, 2000 (the "Promissory Notes") and a Joint
Security Agreement dated November 9, 2000 (the "Joint Security Agreement"),
which agreements memorialize the conditions, representations and warranties
pursuant to which Investors have loaned money to or invested money in
Heartsoft and certain related collateral; and
WHEREAS, Investors, Heartsoft and Shell, both individually and as a
representative of Heartsoft, entered into an Extension Agreement and Amendment
to Joint Security Agreement dated May 9, 2001 (the "First Extension
Agreement'), which, among other things, extended the term of the Promissory
Notes and the Joint Security Agreement to July 9, 2001; and
WHEREAS, Heartsoft and Shell, both individually and as a
representative of Heartsoft, have requested additional time to arrange for the
repayment of the Promissory Notes and to make stock registration filings with
the Securities and Exchange Commission (the "SEC"); and
WHEREAS, the signatories hereto agree to such extensions on the terms
and conditions stated herein.
NOW, THEREFORE, for and in consideration of the benefits to be
received by Investors, Heartsoft and Shell by virtue of the terms of this
Second Extension Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by all signatories,
the parties agree as follows:
1. Heartsoft and Shell jointly and severally reaffirm the representations
and warranties made in the Promissory Notes, and the Joint Security
Agreement (as amended), and further warrant that neither of them shall
take any action or commit any act from the date hereof which is in
violation of any of the provisions of either the Promissory Notes, the
Joint Security Agreement (as amended) or this Second Extension
Agreement.
2. The payment date of the Promissory Notes and all provisions of the
Joint Security Agreement (as amended) are extended and shall now be due
and payable on August 9, 2001. Interest on each of the Promissory Notes
is agreed to be the rate of percent ( %) per annum from and after
May 9, 2001. Any future breach by either Heartsoft or Shell of the
representations, warranties, covenants or terms of the Promissory
Notes, the Joint Security Agreement (as amended), the First Extension
Agreement or this Second Extension Agreement shall cause an immediate
default of the Promissory Notes.
3. Heartsoft shall cause shares of the par value $0.0005 per share
common stock of Heartsoft (the "Shares") to be issued and transferred
to each of the Investors within three (3) business days of the
execution of this Second Extension Agreement. Heartsoft agrees to take
all necessary action to cause the issuance of the Shares, including the
issuance of appropriate instructions to its transfer agent.
4. Heartsoft shall, no later than August 31, 2001, file with the SEC a
registration statement of its common stock which shall include the
registration of the following shares of Heartsoft common stock owned by
Investors: (i) the Shares; (ii) the 150,000 shares each Investor
received in conjunction with the First Extension Agreement; (iii) the
125,000 shares each Investor received in conjunction with the
origination of the Promissory Notes, and (iv) the 100,000 shares each
Investor acquired August 31, 2000. Upon the approval of such
registration statement by the SEC, the restrictive legend shown upon
the certificate for such shares shall be removed, and Investors shall
be eligible to sell said shares in the open market.
5. The provisions of this Second Extension Agreement may be waived only in
writing, which writing must be executed and delivered by Investors
prior to any act or failure to act to which any such waiver is
contended to apply.
6. This Second Extension Agreement is not a resolution or waiver of any
claims which may have accrued to Investors prior to the date of this
Second Extension Agreement.
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7. This Second Extension Agreement and the terms and obligations hereunder
shall be interpreted and construed to be applicable to all of the
related entities or corporations of Heartsoft, of whatever nature, and
that none of the signatories hereto will attempt to evade the spirit
and purpose of this Second Extension Agreement by allowing, utilizing
or encouraging any other party to institute action, legal or otherwise,
regarding the subject matter of the Promissory Notes, the Joint
Security Agreement (as amended), the First Extension Agreement or this
Second Extension Agreement during the extension period described
herein.
8. This Second Extension Agreement shall be governed by Oklahoma law.
Venue for the commencement of this action shall be in any state
district court for any county in Oklahoma, at the election of
Investors.
9. Except as specifically modified herein, the provisions of the
Promissory Notes, the Joint Security Agreement (as amended) and the
First Extension Agreement remain if full force and effect.
10. This Second Extension Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter
hereof, and shall not be amended or modified without the written
consent and agreement of all signatories hereto.
11. All signatories hereto expressly acknowledge that they have had the
opportunity to consult with counsel of their choosing prior to the
execution of this Second Extension Agreement.
12. To induce Investors to enter into this Second Extension Agreement,
Heartsoft and Shell hereby represent and warrant to Investors as
follows:
A. Heartsoft is a corporation validly existing and in good
standing under the laws of the State of Delaware and has the
requisite power and authority to own or lease its properties
and to carry on its business as it is now being conducted.
Heartsoft has the requisite power and authority to issue the
Shares and to perform its obligations under this Second
Extension Agreement.
B. The Shares, when issued and delivered pursuant to terms of
this Second Extension Agreement, will be duly authorized,
validly issued, fully paid and nonassessible.
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C. This Second Extension Agreement and the issuance of the Shares
contemplated hereby have been duly authorized by all necessary
action on behalf of Heartsoft. This Second Extension Agreement
has been duly executed and delivered by authorized officers of
Heartsoft, is a valid and binding agreement on the part of
Heartsoft and is enforceable against Heartsoft and Shell in
accordance with its respective terms. All actions necessary to
cause the authorization, issuance and delivery of the Shares
as contemplated by this Second Extension Agreement have been
taken by Heartsoft.
13. Investors, Heartsoft and Shell agree that each will execute such other
documents as may be necessary or desirable in connection with the
transactions contemplated hereby.
JUNE LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, General Partner
XXXX X. XXXXXXX REVOCABLE LIVING TRUST
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Trustee
HEARTSOFT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx, President
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx, Individually
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