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EXHIBIT 10.19
FORBEARANCE AGREEMENT
THIS AGREEMENT, entered into this 20th day of January, 2000 by and
between THE CONFEDERATED TRIBES OF THE GRAND RONDE COMMUNITY OF OREGON
(hereinafter "CTGR") and MHL DEVELOPMENT CORPORATION (F/K/A MICROHELIX LABS,
INC.)., an Oregon corporation, and XXXXXXX X. XXXX, an Oregon resident
("Obligors").
RECITALS
A. Obligors borrowed Six Hundred Sixty Seven Thousand Five Hundred and
00/100 dollars ($667,500.00) from CTGR on or about July 22, 1998, as evidenced
by a Promissory Note executed by Obligors and dated July 22, 1998. Repayment of
the Promissory Note is secured by a Security Agreement and UCC-1 Financing
Statement filed July 28, 1998, Filing No. 433145, with the Secretary of State of
the State of Oregon.
B. The above-referenced Promissory Note, in conjunction with an
extension dated July 23, 1999, calls for payment of the entire principal amount
of the Note, $667,500.00, on or before January 22, 2000 together with all
accrued interest, to be paid in full.
C. On January 20, 2000, a principal payment of $200,000 was received
reducing the principal balance owed to Four Hundred Sixty Seven Thousand Five
Hundred and 00/100 Dollars ($467,500.00). The interest shall accrue on the new
principal balance of Four Hundred Sixty Seven Thousand Five Hundred and 00/100
Dollars ($467,500.00), until maturity.
In consideration of the foregoing and the covenants set forth below, the
parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS. All the foregoing recitals are hereby
incorporated into this Agreement as if fully set forth herein.
2. FORBEARANCE BY CTGR. Subject to the conditions set forth in this
Agreement and subject to termination as provided in Paragraph 4 below, CTGR
agrees to forebear from taking any action to foreclose on the Security Agreement
and UCC-1, to bring any action to collect on the Note or to take any other
action to realize on any security for the subject Promissory Note and Security
Agreement and UCC-1 or to otherwise effect remedies permitted under Oregon law.
3. CONDITIONS OF FORBEARANCE. Each of the following shall be condition
to the obligations of CTGR to forebear in accordance with paragraph 2 above.
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a. On or before January 22, 2000 obligors shall pay to CTGR the
sum of Two Hundred Twenty Five Thousand Five Hundred Eighty Seven and 50/100
Dollars ($225,587.50), of which $200,000 shall be applied towards principal
reduction and $25,587.50 shall be applied to the quarterly interest payment due
on January 22, 2000.
b. Obligors shall pay quarterly interest payment in the sum of
$17,827.25, with the next quarterly interest payment due April 22, 2000 and
thereafter on July 22, 2000, October 22, 2000, and January 22, 2001. Obligors
shall not in any other respect be in default under the Security Agreement,
including payment of equipment securing the debt.
c. Obligors will permit no lien or other encumbrance, whether
voluntary or involuntary, to arise or affect the title of the property. Obligors
shall make no lease or other arrangement for the use or enjoyment of the
property other than those approved by CTGR in writing.
e. No bankruptcy proceeding or other federal or state proceeding
is commenced by Obligors.
f. There is no breach by Obligors of this Agreement.
If any one or more of the foregoing conditions fails to occur at any
time, CTGR may, without notice to Obligors, proceed with all remedies at law or
equity and shall have no further obligation pursuant to paragraph 2 above.
4. TERMINATION OF FORBEARANCE. The obligations of CTGR, pursuant to
paragraph 2 of this Agreement, shall terminate on January 22, 2001, or breach of
any of the conditions described in Paragraph 3. Termination shall not release or
relieve Obligors from any obligations to CTGR arising prior to termination,
including without limitation, any and all loss, damage, costs or expense to
CTGR, under the Note and Security Agreement and UCC-1.
5. DEFAULT BY OBLIGORS. The breach of any obligation of Obligors under
this Agreement shall also be a breach of the subject Promissory Note and
Security Agreement and UCC-1. In the event of a default by Obligors under this
Agreement or the failure of any of the conditions set forth above, in addition
to the remedies under this Agreement, CTGR shall have all remedies provided in
the Note and the Security Agreement and UCC-1 as well as any other remedies
provided at law or in equity.
6. NO NOVATION OR RELEASE. This Agreement is not intended to be nor
shall it be deemed to be construed to be a reinstatement, novation or release of
the subject Promissory Note or Security Agreement, or UCC-1 or other security
interest. This Agreement is not intended to be nor shall it be deemed or
construed to be a modification, amendment or waiver of the loan or the Loan
documents, or any of them. Neither this Agreement nor any payments or other
actions taken pursuant to this Agreement shall be deemed to cure the existing
defaults under the Note, Security Agreement or UCC-1 nor the maturity date of
the Note, Security Agreement or UCC-1 it being the intention of the parties
hereto that the Promissory Note and Security Agreement and UCC-1 shall remain in
default and immediately due and payable in
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full notwithstanding this Agreement and, except as otherwise expressly provided,
CTGR reserves all of its rights and remedies in connection with such defaults
under the loan documents at law and in equity.
Notwithstanding the foregoing, CTGR agrees that during the one-year
period of this Agreement and so long as there is no breach or default of the
terms of this Agreement, the default interest rate set forth in paragraph 5 of
the Promissory Note shall not be charged to Obligor; it being the intent of the
parties that the interest rate for this one-year forbearance period be Fifteen
percent (15%) per annum, up to and through January 22, 2001. Nothing herein is
to be construed or intended by the parties to be a waiver of the default
interest rate should Obligors fail to make the principal payment due on January
22, 2001 upon termination of the Agreement, or otherwise breach this Agreement.
7. BANKRUPTCY. Each of the Obligors hereby covenants and agrees that in
the event the property of any portion thereof securing the subject Promissory
Note becomes property of any bankruptcy estate or the subject of any state,
local, federal or other bankruptcy dissolution liquidation or receivership
proceeding, then CTGR shall immediately become entitled, in addition to other
relief to which CTGR may be entitled under this Agreement, to an order from the
Bankruptcy court granting immediately relief from automatic stay pursuant to
Section 362 of the Bankruptcy Code so as to permit CTGR to foreclose upon the
property and exercise all other rights and remedies under the Note and Security
Agreement.
8. CONFIRMATION OF INDEBTEDNESS. The subject Promissory Note and
Security Agreement and UCC-1 to CTGR are hereby confirmed by Obligors as being
in full force and effect. Obligors acknowledge that they are liable under the
Note, Security Agreement and UCC-1 in accordance with the terms and conditions
of such instruments. As of the date of this Agreement, Obligors are not aware of
any defense or offsets to their obligations under the Note, Security Agreement
and UCC-1. Obligors, as a material inducement to cause CTGR to enter into this
Agreement, hereby waive any and all defenses they may now have relating to the
Note, Security Agreement and UCC-1, past or present, known or unknown,
liquidated or unliquidated. The foregoing waiver shall survive termination of
this Agreement.
9. MISCELLANEOUS.
a. Obligors acknowledge that they have had the opportunity to
seek legal counsel of their own choosing before executing this Agreement and
that they fully understand that this Agreement and all its provisions, including
without limitation, the waiver set forth in this Agreement, are freely and
voluntarily executed and intend to be bound thereby.
b. Any notice that the parties require or may desire to give to
the other shall be in writing and may be sent by personal delivery, by prepaid
U.S. Mail, or by overnight courier, addressed as follows.
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If to CTGR: c/o Xxxxxxx X. Xxxxxxxx, President
STRATEGIC WEALTH MANAGEMENT, INC.
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
If to Obligor: c/o Xxxxxxx X. Xxxx
MHL Development Corporation
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000
10. MODIFICATIONS. This Agreement may be modified or amended only by an
agreement in writing signed by both parties. This Agreement shall be governed by
Washington Law.
11. ATTORNEYS' FEES. If any party hereto shall bring any action or suit
against another for relief, declaratory or otherwise arising out of this
Agreement, the prevailing party shall have and recover against the defaulting
party in addition to court costs and disbursement such sums as the court may
adjudge to be reasonable attorneys' fees.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO
LOAN MONEY, TO EXTEND CREDIT, OR TO FOR-
BEAR FROM ENFORCING REPAYMENT OF A DEBT
ARE NOT ENFORCEABLE UNDER OREGON LAW.
MHL DEVELOPMENT CORPORATION
(f/k/a microHelix Labs, Inc.)
DATED: January 20, 2000 By: /S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Its: CEO
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DATED: January 20, 2000 By: /S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx, Personal Guarantee
THE CONFEDERATED TRIBES OF THE
GRAND RONDE COMMUNITY OF
OREGON
DATED: By: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer
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