SHARE AND OPTION PURCHASE AGREEMENT
THIS SHARE AND OPTION PURCHASE AGREEMENT (this "Agreement") is made and
entered into effective as of the 1st day of April 2000 (the "Effective Date") by
and between Xxxxxx Xxxx Xxxxxx, Xxxxx Xxx Xxxxxx and Xxxxxxx Xxxxxxx Xxxxx
(collectively "Trustee"), in their capacity as trustees of The Better Block
Trust created by Deed dated 1 January 1994, Xxxxx Dome Explorations, Inc., a
Nevada corporation ("Buyer"), and, solely as to Section 1.9 hereof, Better
Blocks International Limited.
RECITALS
A. Trustee desires to sell certain stock, which affords ownership of
companies that own certain assets, including an infomercial production
and know-how related thereto, in accordance with the terms and
conditions of this Agreement.
B. Trustee desires to sell an option to purchase certain other stock,
which affords ownership of a company that own certain assets,
including the tooling and intellectual property relating to the
product known as "Better Blocks" and know-how related thereto, in
accordance with the terms and conditions of this Agreement.
C. Buyer desires to purchase such stock and option in accordance with the
terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement, the parties agree as follows:
1. PURCHASE AND SALE OF SHARES AND OPTION
1.1 Shares and Option Subject to Sale and Purchase. Subject to the
-----------------------------------------------
terms and conditions herein, Buyer, relying on Trustee's warranties and
representations made in this Agreement, shall purchase from Trustee, and Trustee
shall transfer to Buyer all of its right, title and interest in and to the
Shares.
1.1.1 The "Shares" consist of equity interests in Windowshop
XX.Xxx Limited ("WSL"), R.J.M. Ventures Limited ("RJML") and Better Blocks
International Limited ("BBI") (WSL, RJML and BBI known collectively as the
"Companies"), all of which are limited liability companies formed under the Laws
of New Zealand. The Shares of WSL and RJML shall be known as the "Purchased
Shares" and the Shares of BBI shall be known as the "Optioned Shares"; and as
the case may warrant, Shares of specific Companies may be referred to as "WSL
Shares", "RJML Shares" or "BBI Shares".
1.1.2 Trustee represents and warrants to Buyer that:
a. The Shares constitute all of the issued and authorized
capital of the Companies;
Page 1
b. They are duly authorized to sell the Shares pursuant to the
terms and conditions of this Agreement, and that all consents, resolutions and
approvals necessary for the transactions contemplated by this Agreement to be
consummated are in place;
c. They have good and marketable title to the Shares, and upon
consummation of the transactions contemplated by this Agreement, Buyer will hold
title to the Shares free and clear of any liens or encumbrances; and
d. Upon consummation of the transactions contemplated by this
Agreement, by virtue of owning the Shares, Buyer will control the IP Assets, all
of which are owned by the Companies.
1.2 Covered Assets. The Production Rights, Proprietary Rights,
---------------
Inventory, Development Rights, Hard Assets if necessary, Licenses and any assets
or rights to be transferred to the Companies pursuant to Section 4.2.3 are
collectively referred to as the "IP Assets", including:
1.2.1 All video productions and methods of production and the
contracts and rights to sell and market related thereto (the "Production
Rights") described in Schedule 1.2.1.
1.2.2 All patents, patent application, copyrights, trade secrets,
trademarks, trade names and other proprietary rights based, in whole or in part,
or included in or covering the Production Rights, or any portion thereof (the
"Proprietary Rights"), and more specifically defined and described in Schedule
1.2.2.
1.2.3 All inventory of the Production Rights or any portions
thereof (the "Inventory"), more specifically defined and described in Schedule
1.2.3.
1.2.4 All development rights to the Production Rights, including
but not limited to, all OEM and VAR rights (the "Development Rights").
1.2.5 All hard assets relating to and necessary to run the
Production Rights or any portions thereof (the "Hard Assets") more specifically
defined and described in Schedule 1.2.5.
1.2.6 All licenses, contracts, permits and approvals relating to
or affecting the Production Rights (the "Licenses") more specifically defined
and described in Schedule 1.2.6.
The IP Assets owned by virtue of or acquired in connection with the purchase of
the Purchased Shares shall be known as the "Acquired IP Assets", and the IP
Assets owned by BBI or provided by Trustee or BBI in connection with their
obligations under this Agreement shall be known as the "Licensed IP Assets".
1.3 Encumbrances. The IP Assets shall, except as disclosed in Schedule
------------
1.3, at the time of Closing be free and clear of all obligations, security
interests, liens, infringements and encumbrances whatsoever. Except as may be
permitted by Buyer during the pendency of the BBI License (as defined below),
Page 2
the Licensed IP Assets shall, except as disclosed in Schedule 1.3, at the time
of the closing of the Option (as defined below) be free and clear of all
obligations, security interests, liens, infringements and encumbrances
whatsoever.
1.4 Purchase Price. The total purchase price for the sale of the
---------------
Purchased Shares and Option to Buyer, in the aggregate, is the sum of Sixteen
Million Five Hundred and Ninety Thousand Seven Hundred and Twenty Three U.S.
Dollars and Twenty Seven U.S. Cents ($16,590,723.27 U.S.). The purchase price
shall be allocated among the Purchased Shares, Option and/or Acquired IP Assets
as determined by Buyer. The Option shall be exercised as set forth in Section
1.8. The total purchase price for the Purchased Shares and the Option shall be
payable by Buyer's issuance of Eight Million (8,000,000) shares of its stock
(the "Buyer Stock") to Trustee and a Five Hundred and Ninety Thousand Seven
Hundred and Twenty Three U.S. Dollars and Twenty Seven U.S. Cents ($590,723.27
U.S.) promissory note in substantially the form attached as Exhibit A (the
"Purchase Note").
1.5 Closing. The completion of the transactions contemplated by
-------
Section 1.4 is the "Closing", which shall take place on the 1st day of April
2000, or such later date as may be mutually agreed upon by the parties.
1.6 Access and Information. Trustee shall give to Buyer, Buyer's
------------------------
accountants, technical personnel, counsel and other representatives reasonable
access, during normal business hours both before and after Closing, to the IP
Assets, along with any books, records, contracts and commitments of Trustee in
respect of the IP Assets, and shall furnish Buyer with information concerning
the Shares and IP Assets as Buyer may reasonably request.
1.7 Conduct of Business. Trustee warrants and represents to and
---------------------
covenants and agrees with Buyer that, pending completion of the Closing, unless
otherwise agreed in writing by Buyer:
1.7.1 The Companies shall not sell, license, contract, commit or
otherwise encumber IP Assets;
1.7.2 The Companies shall carry and continue in force and effect
through Closing, fire and extended coverage insurance on the IP Assets as is in
existence as of the Effective Date;
1.7.3 The Companies shall not amend or modify any agreement to
which it is a party that relates in any way to IP Assets, without Buyer's prior
written consent;
1.7.4 The Companies and their officers, employees or contractors
shall use their best efforts to preserve the IP Assets in good and working
order. The Companies shall preserve for Buyer the good will and business
relationships they have with customers relating to IP Assets or any portion
thereof.
1.8 Option. The "Option" consists of Buyer's exclusive right to
------
purchase the Optioned Stock from Trustee according to the terms and conditions
of this Section 1.8.
1.8.1 The Option shall have an initial term of ten (10) years.
Page 3
During the first five (5) years of the Option term, the Option may be exercised
by mutual agreement between Buyer and Trustee. At the end of the first five
years, and at the end of each year thereafter during which Trustee extends the
term of the Option pursuant to this sentence, Trustee may extend the term of the
Option by one year. During any such year during which Trustee extended the term
of the Option pursuant to the preceding sentence, the Option may be exercised by
mutual agreement between Buyer and Trustee. Once less than five (5) years
remain in the term of the Option, Buyer may exercise the Option in its sole
discretion. Buyer may terminate the Option term at any time in its sole
discretion.
1.8.2 The exercise price for the sale of the Optioned Shares to
Buyer is Five Hundred Thousand (500,000) shares of Buyer's stock and shall by
satisfied by Buyer's issuance of Five Hundred Thousand (500,000) shares of its
stock to Trustee.
1.8.3 To commence the closing of the exercise of the Option, Buyer
shall deliver to Trustee a notice specifying the time and place at which Trustee
shall close the Option (the "Option Closing"). At the Option Closing, Trustee
shall deliver to Buyer with respect to the Optioned Shares and Licensed IP
Assets those items called for, mutatis mutandi, by Section 4.1, and Buyer shall
deliver to Trustee with respect to the Optioned Shares and Licensed IP Assets
those items called for, mutatis mutandi, by Section 4.3.
1.8.4 At the Option Closing, except with respect to matters
permitted by Buyer during the pendency of the BBI License, Trustee shall be
deemed to restate, as of the date of the Option Closing and with respect to the
Optioned Shares, the Licensed IP Assets and the Option Closing, the
representations and warranties contained in Sections 1.1.2 and 2.1 through 2.11.
1.8.5 At the Option Closing, Buyer shall be deemed to restate, as
of the date of the Option Closing and with respect to the Optioned Shares, the
Licensed IP Assets and the Option Closing, the representations and warranties
contained in Sections 3.1 and 3.2.
1.8.6 If Buyer terminates the Option term, or if the Option term
expires before Buyer has exercised the Option, the consideration paid to Trustee
under Section 1.4 in connection with the acquisition of the Option shall remain
the property of Trustee.
1.9 BBI License. During the Option term specified in Section 1.8.1
------------
above, BBI hereby grants and Trustee hereby guaranties (without requirement for
prior demand of BBI) to Buyer a license (the "BBI License") to the Licensed IP
Assets according to the terms and conditions of this Section 1.9.
1.9.1 Buyer shall have an exclusive worldwide license to all of
the Licensed IP Assets, including without limitation rights to manufacture,
market, distribute and provide services with respect thereto. No fee, royalty
or payment other than those made under Sections 1.4 and 1.8 shall be due in
connection with the BBI License. In this regard, BBI hereby acknowledges that
it has received benefit in connection with its determination to enter into the
BBI License.
1.9.2 Buyer shall have the right to further develop and enhance
the Proprietary Rights contained in the Licensed IP Assets, provided that any
such developments and enhancements shall become Licensed IP Assets and remain
Page 4
the property of BBI. Buyer shall pay all fees and costs necessary to protect
and preserve the Proprietary Rights contained in the Licensed IP Assets as and
when they fall due.
1.9.3 Buyer may use or license the Licensed IP Assets in
furtherance of its business in any manner Buyer sees fit, including without
limitation granting sublicenses, distribution or marketing rights or any other
subdivision of the rights granted to Buyer hereunder.
2. TRUSTEE'S REPRESENTATIONS AND WARRANTIES. Trustee represents and
warrants to Buyer as follows:
2.1 Corporate Authority. The execution and delivery of this Agreement
--------------------
to Buyer and carrying out the provisions hereof by Trustee have been duly
authorized, and at Closing, Trustee shall furnish Buyer duly certified copies of
the authorizing resolutions of Trustee.
2.2 Non-infringement. The IP Assets, in whole or in part, do not
----------------
infringe any patents, copyrights, trade secrets, trademarks or other proprietary
rights of any third parties and no rights or licenses are required from third
parties to exercise any rights with respect to IP Assets or any portion thereof.
2.3 Proprietary Rights. The Proprietary Rights are in full force and
-------------------
effect. There are no liens, claims, proceedings or causes of action that in any
way affect the validity or enforceability of the Proprietary Rights. No rights
or license, express or implied, have been granted to any third parties under the
Proprietary Rights or any portion thereof.
2.4 Contracts, Licenses, Permits and Approvals. Trustee and the
----------------------------------------------
Companies have no presently existing contracts or commitments that in any way
relate to IP Assets that are not included in Schedule 1.2.6.
2.5 Compliance. Neither the execution and delivery of this Agreement,
----------
nor any instrument or agreement to be delivered by Trustee to Buyer at the
Closing pursuant to this Agreement, nor the compliance with the terms and
provisions thereof by Trustee, will result in the breach of any applicable
statute or regulation, or any administrative or court order or decree, nor will
compliance conflict with or result in the breach of, any of the terms,
conditions or provisions of the organizational documents of Trustee, as amended,
or any agreement or other instrument to which Trustee is a party, or by which
the Trustee is or may be bound, or constitute an event of default or default
thereunder, or with the lapse of time or giving of notice or both constitute an
event of default thereunder.
2.6 Fitness of Inventory. The Inventory as of the Effective Date
----------------------
consists of, and at Closing will consist of items of a quality and quantity
usable or salable in the ordinary course of business of Trustee and are
currently used by Trustee in the ordinary course of business.
2.7 Litigation. There is no suit or action, legal, administrative,
----------
arbitration or other proceeding or governmental investigation affecting IP
Assets pending, or to the best knowledge and belief of Trustee, threatened
against Trustee that materially or adversely affects the IP Assets. Trustee
further warrants and represents that there is no outstanding judgment, decree or
Page 5
order against Trustee that affects IP Assets in any way.
2.8 Good Title. The Companies have and shall have at Closing good and
-----------
marketable title to the IP Assets, free and clear of any and all security
interest, encumbrances or liens.
2.9 Right of Trustee in Production Rights. The Production Rights have
--------------------------------------
been created solely by employees of the Companies who are under an obligation to
assign all right, title and interest therein to the Companies pursuant to the
terms and conditions of their employment.
2.10 Performance. Trustee warrants that at Closing, the Production
-----------
Rights are in the same condition and perform as previously demonstrated to
Buyer.
2.11 Totality of Assets. Trustee represents and warrants that the IP
--------------------
Assets include all assets, rights and interests necessary to the proper and
efficient operation of the infomercials generally described and documented to
Buyer as the "Derma Wand Show" and the methods of manufacture and distribution
for the "Better Blocks" product just before Closing.
3. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer warrants and represent to
Trustee as follows:
3.1 Corporate Authority. The execution and delivery of this Agreement
--------------------
to Trustee and carrying out the provisions hereof have been duly authorized by
Buyer's Board, and at Closing, Buyer shall furnish Trustee duly certified copies
of the authorizing resolutions of Buyer's Board.
3.2 Inspection and Value. Buyer has formed its own opinion as to the
--------------------
value of the Shares being purchased hereunder. Trustee's warranties include only
such express written warranties as are contained in this Agreement. Any other
express warranties, oral or written, not contained in this Agreement are of no
force and effect. Trustee hereby disclaims all implied warranties, including
without limitation, implied warranties of merchantability and implied warranties
of fitness for special or ordinary uses or purposes. Buyer has inspected IP
Assets to the full extent of Buyer's desire, and Trustee has given Buyer ample
opportunity to conduct such inspections. IP Assets except as expressly warranted
or represented herein, are purchased "As Is."
4. CLOSING OBLIGATIONS.
4.1 Trustee's Obligations at Closing. At Closing, Trustee shall
-----------------------------------
execute and deliver to Buyer:
4.1.1 Documents of conveyance and transfer to Buyer of all of the
Shares.
4.1.2 Appropriate original instruments of consent or waiver
executed by third parties with respect to all contract rights of the Companies
being purchased by Buyer hereunder in order more fully to effect Buyer's use of
and control over the IP Assets, including, without limitation, consents by all
appropriate governmental agencies, if any.
4.1.3 Possession of the originals of all IP Assets and all copies
Page 6
thereof; it being understood and agreed that no IP Assets or any portion thereof
shall remain in the possession or control of Trustee after Closing.
4.1.4 True and correct copies of resolutions duly accepted by
Trustee's governing body confirming this Agreement, authorizing and carrying out
all transactions contemplated herein and the execution and delivery by Trustee
of all instruments then or thereafter required to do so; said resolutions to be
duly certified.
4.1.5 Such other instruments and documents as may be elsewhere
herein required or reasonably requested by Buyer or its counsel.
4.1.6 A certificate signed by the authorized representative of
Trustee, dated the date of Closing, certifying that all of Trustee's
representations and warranties set forth in this Agreement continue to be true
on the Closing Date as if originally made on such date, except to the extent
otherwise expressly provided or permitted in this Agreement.
4.2 Trustee's Further Assurances. From time to time, at Buyer's request
----------------------------
and expense, whether at or after the Closing and without further consideration,
Trustee shall:
4.2.1 Execute and deliver to Buyer such instruments as may
reasonably be required to carry out the intent and purpose of this Agreement.
4.2.2 Deliver to Buyer such other data, papers and information as
may be requested by Buyer to assist Buyer in the use of IP Assets.
4.2.3 Transfer or cause the transfer to the Companies of any asset
or right necessary to prevent Trustee from being in breach of its representation
and warranty set forth in Section 2.11.
4.3 Buyer's Obligations at Closing. At Closing, Buyer shall execute and
------------------------------
deliver to Trustee:
4.3.1 The Buyer Stock and the Purchase Note provided for herein.
4.3.2 True and complete copies of resolutions duly adopted by
Buyer's Board duly certified by the Secretary of Buyer, which provide all
necessary corporate authorization for the execution and carrying out of this
Agreement and the provisions hereof.
4.3.3 A certificate signed by the President and the Secretary of
Buyer, dated the date of Closing, certifying that all representations and
warranties set forth in this Agreement continue to be true on the Closing Date
as if originally made on such date and the fulfillment of the covenants and
agreements as of the Closing.
5. MISCELLANEOUS.
5.1 Governing Law and Venue. This Agreement shall be governed by and
-------------------------
construed in accordance with the laws of the State of Washington applicable to
agreements made and to be performed therein. The parties agree that venue for
Page 7
any action to enforce the terms of this Agreement shall be in a federal or state
court in King County, Washington.
5.2 Notices. Any notice or other communication under this Agreement
-------
shall be in writing and shall be considered given when delivered personally or
five business days after mailing by registered mail, return receipt requested,
to the parties at the following addresses or at such other address as a party
may specify by notice to the other.
5.2.1 If to Trustee: Reece & Co
Xxxxx 0
0 Xxxx Xxxxxx
Xxxxxxxx
Xxx Xxxxxxx
Attention: W A Reece - Trustee
5.2.2 If to Buyer: Xxxxx Dome Explorations, Inc
000 XX 0xx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx
Xxxxxxx 00000
Attention: Xxx Xxxxxxx - President
5.2.3 With a copy to: Xxxxx Xxxxxx Xxxxxxx, P.L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
5.3 Entire Agreement; Amendment. This Agreement shall supersede all
-----------------------------
existing agreements between Trustee and Buyer relating to the terms of this
Agreement. This Agreement may not be amended except by a written agreement
signed by both parties.
5.4 Role of Trustee. Trustee does not hold the Shares as an
-----------------
individual, but solely as Trustee of The Better Block Trust. Trustee does not
covenant in this Agreement, nor make representations and warranties, in a
personal capacity but solely as and with intent to bind themselves and others
for the time being trustees of The Better Block Trust, and the joint and several
liability of the persons comprising the Trustee shall at all times and for all
purposes not be a personal liability but shall be limited to the assets for the
time being in their hands as such trustees; provided, however, that any scheme,
device or artifice undertaken substantially for the purpose of benefiting the
trustees or beneficiaries of The Better Block Trust at the expense of being able
to satisfy contractual obligations under this Agreement shall result in personal
liability for the Trustee.
5.5 Waiver. The failure of a party to insist upon strict adherence to
------
any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
5.6 Assignment. Subject to the limitations below, this Agreement shall
----------
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, representatives, successors and assigns. This Agreement is
Page 8
personal in nature and shall not be assignable by Trustee, and shall be
assignable by Buyer only to any corporation resulting from the reorganization,
merger or consolidation of Buyer with any other corporation or any corporation
to which Buyer may sell all or substantially all of its assets, and it must be
so assigned by Buyer to, and accepted as binding upon it by such other
corporation, in connection with any such reorganization, merger, consolidation
or sale.
5.7 Enforcement and Severability. Buyer and Trustee agree that the
------------------------------
provisions of this Agreement shall be enforced to the fullest extent possible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, to the extent that a restriction contained
in this Agreement is more restrictive than permitted by the laws of any
jurisdiction where this Agreement may be subject to review and interpretation,
the terms of such restriction, for the purpose only of the operation of such
restriction in such jurisdiction, shall be the maximum restriction allowed by
the laws of such jurisdiction and such restriction shall be deemed to have been
revised accordingly. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5.8 Attorneys' Fees. In any action at law or in equity to enforce any
----------------
of the provisions or rights under this Agreement, the prevailing party shall be
entitled to recover from the other party or parties all of its costs, expense
and reasonable attorneys' fees incurred therein by the prevailing party,
including costs, expenses and attorneys' fees incurred on appeal.
5.9 Headings and Recitals. The section headings contained in this
-----------------------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. The Recitals are incorporated
herein and are a part of this Agreement, by this reference.
5.10 Counterpart and Facsimile Signatures. This Agreement may be
---------------------------------------
signed in counterparts, each of which shall be an original, but all of which
shall constitute one and the same document. Signatures transmitted by facsimile
shall be deemed valid execution of this Agreement binding on the parties.
[remainder of page intentionally left blank]
Page 9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives as of the date first written
above.
BUYER: TRUSTEE:
XXXXX DOME EXPLORATIONS, INC. Each UNDERSIGNED in their capacity as a
trustee of THE BETTER BLOCKS TRUST created
by Deed 1 January 1994
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxx
----------------------------------- -----------------------------------
[Print Name] Xxxxxx Xxxx Xxxxxx
Its: President /s/ Xxxxx Xxx Xxxxxx
-----------------------------------
Xxxxx Xxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxxxx Xxxxx
SOLELY AS TO SECTION 1.9:
BETTER BLOCKS INTERNATIONAL
LIMITED
By /s/ Xxxxxxx Xxxxxx
---------------------------------
Its Director
Page 10
EXHIBIT A
----------
FORM OF
PROMISSORY NOTE
Seattle, Washington
____________ __, 2000 $500,000
FOR VALUE RECEIVED, the undersigned, two (2) years from the date hereof,
promises to pay to the order of Xxxxxx Xxxx Xxxxxx, Xxxxx Xxx Xxxxxx and Xxxxxxx
Xxxxxxx Xxxxx, in their capacity as trustees of The Better Block Trust created
by Deed dated 1 January 1994, the sum of Five Hundred Thousand Seven Hundred and
Twenty Three Dollars and Twenty Seven Cents ($590,723.27), in legal tender of
the United States with interest thereon at the rate specified below, compounded
monthly from the date hereof.
1. Interest Rate. The rate of interest shall be determined monthly and
-------------
shall be the prime lending rate, as set forth in the Money Rates section of the
Wall Street Journal on the fifteenth (15th) day of each month, plus one percent
(1%) per annum.
2. Application of Payments. All payments made shall be applied first
-------------------------
to late payment charges outstanding (if any), then to accrued interest, and then
to principal.
3. Prepayment of Principal. So long as there is no default under the
-------------------------
terms of this note, the undersigned shall have the right to make a prepayment of
the principal balance or any portion thereof without charge or premium.
4. Default. If any payment is not paid when due, or if the undersigned
-------
breach any other agreement with the holder of this note, the undersigned will be
in default. Upon default, the holder may declare the unpaid principal balance
and all accrued interest and unpaid late charges, if any, immediately due and
payable, without notice, and Obligors will then pay that amount.
Upon default, the holder may also increase the interest rate to a rate
equal to four (4) percentage points greater than the rate otherwise provided in
this note, and such interest rate shall apply until the note is fully paid. In
addition, the holder may include any unpaid interest and late charges at the
time of acceleration as part of the amount due under this note and subject to
interest at the higher rate determined according to this paragraph.
The holder may employ attorneys or other agents to collect amounts due
under this note if the undersigned is in default or to otherwise enforce the
terms of this note and any agreement securing this note, and the undersigned
agrees to pay all fees, costs and expenses incurred by the holder as a
consequence of its default. Such fees, costs and expenses include attorneys'
fees whether or not litigation is commenced and including any appeal, fees or
expenses incurred in any bankruptcy, receivership, or other insolvency
proceedings, any anticipated post-judgment collection charges, and all other
costs of collection, including court costs.
5. Waiver. The undersigned hereby waives presentment, demand for
------
payment, protest, notice of nonpayment or dishonor, and any relief, waiver or
discharge arising from any extension of time for payment granted before, at or
after maturity, or for any other causes.
ORAL PROMISES TO FORGIVE PAYMENT OR TO FOREBEAR ENFORCEMENT OF PAYMENT ARE NOT
ENFORCEABLE.
___________________________________
By: ______________________________
___________________________________
[Print Name]
Its: _____________________________
