AGREEMENT
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Agreement dated as of May 1, 1998 among MPEL Holdings Corp., a New York
corporation ("MPEL"), Mortgage Plus Equity & Loan Corp., a New York Corporation
and a wholly-owned subsidiary of MPEL ("Mortgage Plus"), Xxxx Xxxxx ("CW"),
Xxxxxx X. Xxxxxxx ("SL"), Xxx X. Xxxxx and Xxxxx Xxxxx ("JB"), the WLB
Partnership, a general partnership whose general partners are CW, SL and JB (the
"Partnership"), the Estate of Xxxxxxx Xxxxxxxxx (the "Estate"), as represented
by the executors and (the "Executors") and
Xxxxx Xxxxxxxxx, in her individual and representative capacities ("KS").
For consideration duly provided, the receipt of which each party hereto
acknowledges, it is agreed by each party as follows:
1. As of March , 1998 the Estate was the beneficial owner of
shares of Common Stock of Mortgage Plus (the "Mortgage Plus Common Stock"),
represented by Stock Certificate No. . Pursuant to the merger (the
"Merges") as set forth in the Merger Agreement dated 1998, (a copy of
which is attached as Exhibit A) (the "Merger Agreement"), each share of Mortgage
Plus Common Stock owned by the Estate, as well as each share of Mortgage Plus
Common Stock owned by all other Shareholders of Mortgage Plus was automatically
converted into one share of Computer Transceiver Systems, Inc., which, on March
1998, changed its name to "MPEL Holdings, Inc.," (all shares of MPEL are herein
called the "MPEL Common Stock"). Accordingly, since the effective date of the
Merger the Estate is the legal and beneficial owner of shares of MPEL
Common Stock.
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2. The Restated Shareholder's Agreement dated August 27, 1996, as amended,
(the "Shareholders Agreement") is hereby terminated in all respects and of no
further force or effect, and the parties thereto are released and discharged
from all obligations to one another created or incurred pursuant to the
Shareholders Agreement, and have no claim, right, obligation or liability to any
other party thereunder. In particular, the Estate and KS specifically
acknowledge that the proceeds of the insurance policy on the life of Xxxxxxx
Xxxxxxxxx, identified on Exhibit B hereto (the "Policy"), were not, as of the
date of Xxxxxxx Xxxxxxxxx'x death, obligated to be paid to the Estate or KS
pursuant to the provisions of Section 7of the Shareholder's Agreement.
3. The Estate hereby sells, assigns and transfers to the Partnership and
the Partnership hereby purchases from the Estate, shares of MPEL Common
Stock (the "Transaction Shares") for a purchase price of ($415,000.00 and $
, amount of ("Xxxxxxx Xxxxxxxxx Obligations" to Mortgage Plus) (the
"Consideration"), payable as follows:
(a) Commencing on May 31, 1998, and on the first and fifteenth date of
each month thereafter until the "Final Payment Date" (as herein
defined), the sum of $ , and on the Final Payment Date, an amount
equal to the difference between $115,000 and the amounts heretofore
paid pursuant to the first clause of this Paragraph 3(a);
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(b) $ , which shall be applied to the full satisfaction of the
"Xxxxxxx Xxxxxxxxx Obligations" set forth on Exhibit C hereto, and
(c) $300,000, in either (i) four installments of $75,000 on the 60th,
90th, 120th and 150th day following the date (the "Effective Date") on
which the MPEL's Registration Statement (No. ) (the ("Registration
Statement) is declared "effective" by the United States Securities and
Exchange Commission or (ii) if the benefits of the Policy is paid
prior to the 150th day following the Effective Date, within four (4)
business days following the payment of such benefits, it being agreed
that the amount payable on such date shall, when added to any amounts
paid pursuant to c(i) be equal to only $300,000. The 150th day
following the Effective Date or the date on which the c(ii) payment is
made is called the "Final Payment Date."
4(A). The Estate and KS each represent and warrant to the Partnership
that: the Estate is the legal and beneficial owner of all of the Transaction
Shares being sold to the Partnership; the Estate has full power, capacity and
lawful authority to sell, assign, transfer and deliver all the Transaction
Shares, and its title thereto is good, valid and enforceable, free and clear of
all claims, liens, encumbrances or restriction of any nature; neither the
Estate,
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any Executor nor KS has granted any option or right to any person to acquire any
right title or interest to any or all of the Transaction Shares; there are no
proceedings of any kind pending or threatened, and no agreements, understandings
or promises (whether oral or written in existence) which will or which could
interfere with the full sale and delivery of the Transaction Shares to the
Partnership, or the Partnership's full ownership of all right, marketable title
and interest in the Transaction Shares; this Agreement has been duly and validly
executed and delivered by the Estate and is fully enforceable against the
Estate, the Executors and KS and no consent or approval of, or filing with, any
court or governmental body is necessary to the Estate's full performance of its
obligations hereunder; the execution, delivery or performance of this Agreement
by the Estate will not (i) violate or conflict with any judgment, order, trust
agreement (ii) result in the creation or imposition of any lien, claim, charge,
restriction or limitation on any of the Transaction Shares, or (iii) impose on
the Partnership or MPEL or Mortgage Plus any cost, expense or liability
(including, but not limited to, any lien, cost, expense or liability arising at
any time from the failure by the Estate or KS to satisfy any tax obligations
which it or she may be subject to for any reason).
4(B). MPEL and the Estate agree that the law firms of Ruskin, Moscou,
Xxxxx and Faltischek ("RMEF"), and Xxxxxxx Xxxxx ("FF") are appointed by the
Estate and MPEL as attorneys-in-fact to take all actions necessary to cause (i)
share certificates for shares of MPEL Common Stock in the name of the Estate to
be delivered to the
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Estate and (ii) share certificates for shares of MPEL Common Stock in
the name of the Partnership to be delivered to FF, as escrow agreement for the
Estate (pursuant to an escrow agreement in the form attached hereto as Exhibit
D), in each case within five (5) business days from the date hereof.
5. MPEL agrees that on one occasion, for a period commencing one year
after the date hereof, but not later than three years form the date hereof,
MPEL, upon a written request therefor from the Estate (so long as it owns at
least 50% of the shares of MPEL Common Stock which it owns following the sale of
the Transaction Shares, such shares called the "Registrable Securities") shall
prepare and file with the United State Securities Commission ("SEC") a
registration statement under the Securities Act of 1933 (the "Act") covering the
Registrable Securities which are the subject of such request.
6. If CW, SL, JB or the Partnership at any time propose to sell any of his
or their MPEL Common Stock to the public pursuant to a registration statement
filed with the SEC in excess of 200,000 shares of MPEL Common Stock contemplated
to be sold pursuant to the Registration Statement, they will give at least 30
days' prior written notice to the Estate of their intentions so to do. Upon the
written request of the Estate received by MPEL within 30 days after the giving
of any such notice MPEL will cause such Registrable Securities as to which
registration shall have been so requested by the Estate to be included with the
securities to be covered by the registration
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statement filed by the Company for the MPEL Common Stock being sold by CW, SL,
JB or the Partnership, all to the extent required to permit the sale or other
disposition of the Registrable Securities so registered by the Estate to the
public.
7. If any whenever MPEL is required by the provisions hereof to effect
the registration of any shares of Registrable Securities under the Act, MPEL
will, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect
to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the
distribution contemplated the Estate;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for the period specified in paragraph (a) above and comply
with the provisions of the Act with respect to the disposition of all
of the Registrable Securities covered by such registration statement
in accordance with the Estate's intended method of disposition set
forth in such registration statement for such period;
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(c) furnish to the of copies of the therein Estate, and to registration
(including each each underwriter statement and the preliminary if any,
such number prospectus included prospectus) as such persons reasonably
may request in order to facilitate the public sale or their
disposition of the securities covered by such registration statement;
(d) use its best covered by such efforts to registration register or
statement under qualify the the securities or Registrable "blue
Securities sky" laws of such jurisdictions as the Seller or, in the
case of any underwritten reasonably such purpose be a foreign or to
consent to public offering, request, provided, required to corporation
in any general service of the managing however, that MPEL qualify
generally jurisdiction where process in any such underwriter shall
shall not for any to transact it is not so jurisdiction; business as
qualified
(e) list the statement with any Common Stock is Registrable securities
then listed; Securities covered exchange on which by such the MPEL
registration
(f) immediately notify registration thereto is the Estate and statement,
at any required to be each underwriter time when a delivered under
under such prospectus relating the Act of the happening
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of any event of which MPEL has knowledge as a result of which the
prospectus contained in such registration statement, as then in
effect, state a make the circumstances then existing; included an
material statements untrue fact therein not statement required to
misleading of a be stated in light of material therein or the fact or
necessary to omits to
(g) make available for inspection by the Estate any under writer
participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained Estate
or underwriter, all financial and other records, pertinent corporate
documents and properties of the MPEL, and cause the MPEL's officers,
directors and employees to supply all information reasonably requested
by the Estate, underwriter, attorney, accountant or agent in
connection with such registration statement.
(h) In connection with each registration hereunder, the Estate will
furnish to MPEL in writing such information with respect to itself and
the proposed distribution by it as reasonable shall be necessary in
order to assure compliance with federal and applicable state
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securities laws. In connection with each registration covering an
underwritten public offering, MPEL agrees to enter into a written
agreement with the managing underwriter in such form and containing
such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the MPEL's
size and investment stature.
8. In accordance with the Registration Statement ("Use of Proceeds"), MPEL
will pay the Estate the sum of $ (401K advance) upon the closing of
the "Minimum Sale of Securities."
9. Simultaneously, with the execution and delivery of this Agreement, the
parties are exchanging Irrevocable and Unconditional Releases, in the form
attached as Exhibit E-1 and E-2 hereof.
10. The Estate and KS agree to promptly and fully cooperate with the
Equitable Insurance Company (or with any of its authorized representatives) in
order to assist Mortgage Plus' collection of the proceeds of the Policy; will
not take any action or make any statement which would delay or hinder the
payment of such proceeds; and will take all other actions (at the expense of
Mortgage Plus) as Mortgage Plus may reasonably request to assist Mortgage Plus'
prompt collection of such proceeds.
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11. MPEL represents that the Registration Statement delivered to the
Estate and KS is, in all mutual respects, accurate as of the date it was filed
with the SEC, and, in particular, that as of the date hereof, a total of
shares of MPEL Common Stock are authorized and outstanding, of which a total of
shares are owned by CW, SL and JB.
12. The Estate and KS acknowledge that they have sought independent legal
and financial advice in connection with the negotiation and execution of this
Agreement, and that no promise or representation has been made with respect to
the present or future release of any shares of MPEL Common Stock. The Estate
and KS acknowledge and understand that the shares of MPEL Common Stock owned by
the Estate have not been registered with the SEC and are not freely tradable or
saleable (and will carry a restricted legend to that effect) and may only be
sold in compliance with the Act.
13. All notices permitted or required under this Agreement shall be in
writing and shall be either: (a) delivered by personal service, (b) delivered by
courier service, or (c) sent by certified or registered mail, postage prepaid,
return receipt requested, to the parties hereto at their addresses set forth
below or at such other address which may be designated in writing by the
parties:
If to MPEL, Mortgage Plus, or CW, SL, JB or the Partnership:
Mortgage Plus Equity & Loan Corp.
0000 Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
with a copy to: Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
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Attention: Xx. Xxxxxx Xxxxxxxxx
If to the Estate or KS:
Xxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to: Xxxxxxx Xxxxx, P.C.
EAB Plaza
Uniondale, New York 11556
Attention: Xx. Xxxx Xxxxxxxx
Such notices shall be effective upon receipt in the case of personal or courier
service and on the third(3rd) day after posting in the U.S. mail.
14. (a) Entire Agreement. This Agreement represents the entire
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agreement between the parties with respect to the subject matter hereof, and
superseded all prior agreements, arrangements and understandings between the
parties, whether oral or written, with respect thereto.
(b) Governing Law. All questions concerning this Agreement, including
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but not limited to, the execution, interpretation and performance shall be
governed by the laws of the State of New York without regard to any law or rule
which would require the selection or application of the law of any other
jurisdiction.
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(c) Amendments. This Agreement may not be amended except in writing
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signed by each of the parties hereto.
(d) Assignment. This Agreement may not be assigned by any of the
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parties without the prior written consent of the other parties.
(e) Counterparts. This Agreement may be executed in counterparts,
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including facsimile counterparts, each of which shall be deemed an original, and
all of which, when taken together, shall be deemed one and the same instrument.
(f) Further Assurances. Each party hereto agrees to execute and
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deliver all such other instruments and take all such other action as another
party hereto may reasonably request from time to time hereafter and without
payment of further consideration in order to effectuate or evidence the
transactions contemplated thereby.
(g) No Adverse Construction. The rule that a contract is to be
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construed against the party drafting the contract is hereby waived, and shall
have no applicability in construing this Agreement or any provision hereof.
MPEL HOLDINGS CORP. ESTATE OF XXXXXXX XXXXXXXXX
By:______________________ By:______________________
MORTGAGE PLUS EQUITY
& LOAN CORP.
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By:______________________ By:______________________
XXXXX XXXXXXXXX
By:______________________
XXXX XXXXX
By:______________________
XXXXXX X. XXXXXXX
By:______________________
XXX X. XXXXX
By:______________________
XXXXX XXXXX
WLB PARTNERSHIP
By:______________________
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Exhibit E-1
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IRREVOCABLE AND UNCONDITIONAL RELEASE
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The Estate and KS (individually a "Releasor" and collectively, the
"Releasors"), in consideration MPEL Holdings Corp. ("MPEL"), Mortgage Plus
Equity & Loan Corp. ("Mortgage Plus") Xxxx Xxxxx, Xxxxxx X. Xxxxxxx, Xxx Xxxxx
and Xxxxx Xxxxx, and the WLB Partnership entering into an agreement with the
Releasors dated the date hereof (the "Agreement") jointly, and jointly and
severally, fully and unconditionally release (i) MPEL and Mortgage Plus and all
its affiliated businesses (herein called the "Company"), and (ii) all officers,
employees, shareholders, directors, partners, advisors and agents of the
Company, and (iii) all successors, assigns and heirs of the foregoing and (iv)
all other parties to the Agreement (each aforementioned entity or person called
a "Releasee" and all such entities and persons called the "Releasees:) form and
against any and all claims, rights, fees, payments, compensation of any kind,
accountings, actions, causes of action, suits, debts, dues, sums of money,
property, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, damages (including consequential damages),
judgments and demands whatsoever (whether or not
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existing, contingent, matures or known on the date hereof) in law, admiralty or
equity, which against any Releasee or all Releasees, any Releasor or the
Releasors, or it or their heirs,
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executors, administrators, successors and assigns, ever had, now have or
hereafter can, shall or may, have for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date of this Release,
provided, however, the obligations of the Purchaser set forth in Paragraph 3 of
the Agreement and the obligations of MPEL set forth in Paragraph 5, 6, 7 and 8
of the Agreement shall remain in full force and effect.
The Irrevocable and Unconditional Release further specifically confirms
that no Releasor has heretofore assigned, pledged, sold or transferred all or a
portion of any of the foregoing claims, rights, etc., and the Estate and KS each
agree to fully and promptly indemnify each and every Releasee from any claim or
expense that may be incurred in connection with any misrepresentation with
respect to the foregoing.
Each of the Releasors acknowledges that it/she has received legal advice
with respect to the Unconditional Release and that it/she intends to be bound
by the provisions hereof.
This Irrevocable and Unconditional Release shall be governed by New York
law.
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This Irrevocable and Unconditional Release may not be modified, rescinded
or altered without the written consent of each Releasee.
ESTATE OF XXXXXXX XXXXXXXXX
By:_____________________________
By:_____________________________
XXXXX XXXXXXXXX
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came Executor, to me known, who, by me
duly sworn, did depose and say that deponent is the ______________________ of
Estate of Xxxxxxx Xxxxxxxxx which executed the foregoing Irrevocable and
Unconditional Release, and that deponent signed deponent's name.
__________________________
NOTARY PUBLIC
STATE OF NEW YORK )
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)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came Xxxxx Xxxxxxxxx, to me known, and
known to me to be the individual described in, and executed the foregoing
Irrevocable and Unconditional Release, and duly acknowledged to me that he
executed same.
___________________________
NOTARY PUBLIC
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________________ _______________
EXHIBIT E-2
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IRREVOCABLE AND UNCONDITIONAL RELEASE
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MPEL Holdings Corp., ("MPEL") its wholly-owned subsidiary Mortgage Plus
Equity & Loan Corporation and the persons on Exhibit A hereto (a "Releasor" and
collectively, the "Releasors" ), in consideration of the Estate of Xxxxxxx
Xxxxxxxxx (the "Estate") and Xxxxx Xxxxxxxxx entering into an agreement with the
Releasors dated the date hereof (the "Agreement"), jointly, and jointly and
severally, fully and unconditionally release (i) the Estate and KS and all
advisors and agents of the Estate and (ii) all successors, assigns and heirs of
the foregoing (each such aforementioned entity or person called a "Releasee" and
all such entities and persons called the "Releasees") from and against any and
claims, rights, fees, payments, compensation of any kind, accountings, actions,
causes of action, suits, debts, dues, sums of money, property, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, damages (including consequential damages), judgments and
demands whatsoever (whether or not existing, contingent, matured or know on the
date hereof) in
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law, admiralty or equity, which against any Releasee or all Releasess, any
Releasor or the Releasors, or it or their heirs, executors, administrators,
successors and assigns, ever had, now have or hereafter can, shall or may, have
for, upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of the date of this
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______________ ______________
Release, provided, however, the obligations of the Estate and KS set forth in
Paragraph ____ of the Agreement shall remain in full force and effect.
The Irrevocable and Unconditional Release further specifically confirms
that no Releasor has heretofore assigned, pledged, sold or transferred all or a
portion of any of the foregoing claim, rights, etc., and each Releasor agrees to
fully and promptly indemnify each and every Releasee from any claim or expense
that may be incurred in connection with any misrepresentation with respect to
the foregoing.
Each of the undersigned acknowledges that it/he has received legal advice
with respect to this Unconditional Release and that it/he intends to be bound by
the provisions hereof.
This Irrevocable and Unconditional Release shall be governed by New York
law.
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This Irrevocable and Unconditional Release may not be modified, rescinded
or altered without the written consent of each Releasee.
MPEL HOLDINGS CORP.
MORTGAGE PLUS EQUITY & LOAN CORP.
By:_____________________________
By:_____________________________
XXXX XXXXX
By:_____________________________
XXXXXX X. XXXXXXX
By:_____________________________
XXX X. XXXXX
WLB PARTNERSHIP
By:_____________________________
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_____________ _____________
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came to me known, who, by me duly
sworn, did depose and say that deponent is the ______________________ of MPEL
Holdings Corp., and Mortgage Plus Equity & Loan Corp. the corporation described
in, and which executed the foregoing Irrevocable and Unconditional Release, and
that deponent knows the seal of the corporation, that the seal affixed to the
Irrevocable and Unconditional Release is the corporate seal, that it was affixed
by order of the Board of Directors of the corporation; and that deponent signed
deponent's name by like order.
__________________________
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came Xxxx Xxxxx, to me known, and
known to me to be the individual described in, and executed the foregoing
Irrevocable and Unconditional Release, and duly acknowledged to me that he
executed same.
___________________________
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
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On May 6, 1998, before me personally came Xxxxxx X. Xxxxxxx, to me known,
and known to me to be the individual described in, and executed the foregoing
Irrevocable and Unconditional Release, and duly acknowledged to me that he
executed same.
___________________________
Initials: NOTARY PUBLIC
_______________ ______________
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came Xxx X. Xxxxx, to me known, and
known to me to be the individual described in, and executed the foregoing
Irrevocable and Unconditional Release, and duly acknowledged to me that he
executed same.
___________________________
NOTARY PUBLIC
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
On May 6, 1998, before me personally came General Partner of WLB
Partnership, to me known, and known to me to be the individual described in, and
executed the foregoing Irrevocable and Unconditional Release, and duly
acknowledged to me that he executed same.
___________________________
NOTARY PUBLIC
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