EXHIBIT 10.9
NOTE PURCHASE AND SECURITY AGREEMENT
This Note Purchase and Security Agreement, dated as of December 31, 2003
(this "AGREEMENT"), is entered into by and between WIRELESS AGE COMMUNICATIONS,
INC., a Nevada corporation (the "COMPANY"), and Xxxxxx Xxxxxxxxxxx (the
"PURCHASER").
RECITALS
WHEREAS, On December 17, 2003, Wireless Age entered into an agreement to
purchase $1,700,000 in outstanding principal amount of the 8% Convertible
Subordinated Promissory Notes (the "Special Situations Debenture") issued by
RELM WIRELESS CORPORATION (the "Issuer") for $1,870,000 (the "Purchase Price");
WHEREAS, The Special Situations Debenture is currently convertible into 904,255
shares of Common Stock of the Issuer (the "Conversion Shares");
WHEREAS, The Special Situations Debenture is one of a series issued by the
Issuer (collectively, the "Debentures");
WHEREAS, on December 31, 2003 the Company borrowed $1,930,000 (the "Initial
Loan") from the Purchaser, a private investor, in order to consummate the
acquisition of the Special Situations Debenture, which amount included various
fees, costs and expenses of the Purchaser incurred in excess of the Purchaser
Price with respect to the Purchaser providing for immediate liquidity of the
Initial Loan to the Company;
WHEREAS, the Company may from time-to-time acquire one or more other Debentures
of the Issuer in addition to the Special Situations Debenture, as to which the
Purchaser has indicated a willingness to provide further funds for such
acquisitions by the Company (collectively, "Subsequent Debenture Acquisition
Loans");
WHEREAS, the Company and the Purchaser desire to memorialize the terms and
conditions of the Initial Loan by the Purchaser to the Company with respect to
the acquisition of the Special Situations Debenture and the terms and conditions
which shall apply to any and all Subsequent Debenture Acquisition Loans;
NOW, THEREFORE, in consideration of the foregoing, and the representations,
warranties and conditions set forth below, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. The Note.
(a) Issuance of the Note. In reliance upon the representations,
warranties and covenants of the parties set forth herein, the Company hereby
issues, sells and delivers to
the Purchaser, and the Purchaser accepts delivery from the Company, of the Note
in the form attached hereto as Exhibit A, with respect to the aggregate
consideration delivered by the Purchaser to the Company in the amount set forth
upon the face of such Note.
(b) Terms of the Note. The terms and conditions of the Note are set
forth in the form of Note attached as Exhibit A hereto. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Note.
(c) Delivery of Initial Note. The Company shall upon execution
hereof simultaneously deliver to the Purchaser an executed version of the Note.
(d) Subsequent Debenture Acquisition Loans. Upon written notice by
the Company to the Purchaser of the Company's intent to acquire one or more
Debentures in addition to the Special Situations Debenture, and upon written
notice of acceptance by the Purchaser to make such Subsequent Debenture
Acquisition Loans, the Company agrees to issue, sell and deliver to the
Purchaser one or more supplemental notes which shall be in form and substance
the same as the Note, except to the extent such Note is conformed to the
respective date and amount of each such Subsequent Debenture Acquisition Loan.
Nothing herein shall be construed as an obligation or commitment by the Company
to offer the Purchaser any security instrument in connection with the purchase
of any supplemental Debentures and any determination in such regard shall be at
the sole discretion of the Company. Nothing herein shall be construed as an
obligation or commitment by the Purchaser to make any Subsequent Debenture
Acquisition Loans to the Company and any determination in such regard shall be
at the sole discretion of the Purchaser.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchaser that the statements contained in the
following paragraphs of this Section 2 are all true and correct as of the time
of issuance of the Note and shall be true and correct as of the date of each
Subsequent Debenture Acquisition Loan:
(a) Organization and Standing: Articles and Bylaws. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
carry on its business as now conducted and proposed to be conducted.
(b) Corporate Power. The Company has all requisite legal and
corporate power to enter into, execute and deliver this Agreement and the Note.
This Agreement is, and upon issuance the Note will be, a valid and binding
obligation of the Company, each of the Agreement and the Note (upon its
issuance) being enforceable against the Company in accordance with its
respective terms.
(c) Authorization.
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(i) Corporate Action. All corporate and legal action on the
part of the Company and its officers, directors and stockholders necessary for
the execution and delivery of this Agreement and the Note, the sale and issuance
of the Note and the performance of the Company's obligations hereunder and
thereunder have been taken.
(ii) Valid Issuance. The Note, when issued in compliance with
the provisions of this Agreement, will be validly issued, fully paid and
nonassessable and will be free of any liens or encumbrances; provided, however,
that the Note may be subject to restrictions on transfer under state and/or
federal securities laws as set forth herein, and as may be required by future
changes in such laws.
(d) Financial Statements. The Company has no material liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to September 30, 2003 or (ii) liabilities which
have been disclosed as actual or contingent liabilities in the Company's
financial statements and reports (collectively, "Commission Reports") as filed
with the U.S. Securities and Exchange Commission (the "Commission"); and (iii)
obligations under contracts or commitments incurred in the ordinary course of
business which are not material to the financial condition or operating results
of the Company.
(e) No Materially Adverse Change. Since September 30, 2003, no
transaction, arrangement, event or other circumstance has occurred or existed
which (i) has had a material adverse effect on the business, assets, properties,
operations or condition (financial or otherwise) of the Company or (ii) is, as
of the date hereof, reasonably expected to result in any such effect, except to
the extent such event or transaction has been disclosed in Commission Reports.
(f) Government Consent, Etc. No consent, approval, order or
authorization of, or designation, registration, declaration or filing with, any
federal, state, local or provincial or other governmental authority on the part
of the Company is required in connection with the valid execution, delivery and
performance of this Agreement or the Note, or the offer, sale or issuance of the
Note, other than, if required, filings or qualifications under applicable blue
sky laws.
3. Representations and Warranties by the Purchaser. The Purchaser
represents and warrants to the Company as of the time of issuance of the Note
and as of the date of each Subsequent Debenture Acquisition Loans as follows:
(a) Investment Intent: Authority. This Agreement is made with the
Purchaser in reliance upon the Purchaser's representation to the Company, as
evidenced by Purchaser's execution of this Agreement, that Purchaser is
acquiring the Note for the Purchaser's own account, not as nominee or agent, for
investment and not with a view to, or for resale in connection with, any
distribution or public offering thereof within the meaning of the Securities Act
of 1933, as amended (the "Securities Act"). The Purchaser has the full right,
power, authority and capacity to enter into and perform this Agreement, and this
Agreement will constitute a valid and binding obligation upon the Purchaser,
except as
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the same may be limited by bankruptcy, insolvency, moratorium and other laws of
general application affecting the enforcement of creditors' rights.
(b) Not Registered. The Purchaser understands and acknowledges that
the offering and sale of the Note pursuant to this Agreement will not be
registered under the Securities Act on the grounds that the offering and sale of
the Note are exempt from registration under the Securities Act, and that the
Company's reliance upon such exemption is predicated upon the Purchaser's
representations set forth in this Agreement. The Purchaser acknowledges and
understands that resale of the Note may be restricted indefinitely unless the
Note is subsequently registered under the Securities Act or an exemption from
such registration is available.
(c) No Transfer. Purchaser covenants that in no event will it
dispose of the Note other than in conjunction with an effective registration
statement under the Securities Act or pursuant to an exemption therefrom (e.g.,
Rule 144 promulgated under the Securities Act) or to an entity affiliated with
the Purchaser.
(d) Knowledge and Experience. Purchaser (i) has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the Purchaser's prospective investment in the Note; (ii) has
the ability to bear the economic risks of the Purchaser's prospective
investment; (iii) has had all questions which have been asked by the Purchaser
satisfactorily answered by the Company; and (iv) has not been offered the Note
by any form of advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any such
media.
4. Security Interest.
(a) Security Interest. As security for the full, prompt and complete
payment and performance of the Company's obligations hereunder, the Company
hereby grants to the Purchaser and any subsequent transferee, assignee, or other
holder of the Note (the Purchaser and each such other transferee, assignee or
holder, a "Holder"), a security interest in and to the collateral as defined
with specificity on the signature page of the Note (the "Collateral"), and as to
which this Agreement shall constitute a security agreement. The definition of
security interest in the Collateral shall include and apply to the Conversion
Shares and any and all other shares of common stock and/or other equity or debt
instrument of the Issuer into which the Collateral is converted. The security
interest granted in the Collateral shall terminate upon payment in full of the
Company's obligations under the Note. The Company undertakes not to cause or
permit the conversion of the Collateral without the express written consent of
the Holder of the Note.
(b) Exclusivity of First Priority Security Interest. As inducement
to the Holder to purchase this Note from the Company, the Holder expressly
covenants and agrees that the Holder shall have a first priority security
interest in the Collateral, as such term is defined in the Note and the Company
shall not grant or permit to exist any other obligations or liens or any other
type of encumbrance which may result, directly or indirectly, contingent or
otherwise, in the existence or establishment of a security interest in the
Collateral which is senior to the Holder of the Note.
(c) Further Action. Company agrees that from time to time, at its
expense, it will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Holder may reasonably request, in order to perfect and protect any
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security interest granted or purported to be granted hereby or to enable the
Holder to exercise and enforce their rights and remedies hereunder with respect
to any Collateral. Without limiting the generality of the foregoing, Company
will: execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Holder may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby.
(d) Financing And Continuation Statements. The Company hereby
authorizes the Holder to file one or more financing or continuation statements,
and amendments thereto, relative to all or any part of the Collateral without
the signature of Company where permitted by law. A carbon, photographic, or
other reproduction of this Agreement or any part thereof shall be sufficient as
a financing statement where permitted by law.
(e) Escrow of Collateral. The Collateral shall be held in escrow
pursuant to the Escrow Agreement in the form attached hereto. The Company will
furnish to the Holder from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Holder may request, all in reasonable detail.
(f) Termination Filings: Upon payment in full of the Note
Obligations, the Holder shall take any and all reasonable actions and cause the
execution and delivery to Company for filing of any financing statements
necessary in the Company's reasonable discretion to terminate any liens the
Holder may have on such Collateral.
(g) Holder's Rights And Remedies. Upon the occurrence and during the
continuance of any Event of Default, as defined in the Note, the Holder may
proceed to exercise (i) any one or more of the rights or remedies afforded by
the Uniform Commercial Code of any applicable jurisdiction, including, without
limitation, the right to sell any or all of the Collateral at one or more public
or private sales in accordance with the rules of the Uniform Commercial Code,
and of the date on which the Collateral will first be offered for sale in the
case of any private sale, and to bid thereat or purchase any part or all thereof
in their own or a nominee's name, free and clear of any equity of redemption;
and to apply the net proceeds of the sale, after deduction for any costs and
expenses of sale (including any liabilities incurred in connection therewith),
including reasonable attorneys fees, to the payment of Company's Obligations in
any manner or order which the Holder, in their sole discretion, may elect, to
the payment of any other amount required by law and to the payment of any
remaining net proceeds to whomsoever may lawfully be entitled to receive the
same or as a court of competent jurisdiction may direct, without further notice
and without regard to any equitable principles of marshaling or other like
equitable doctrines; (ii) any rights or remedies upon any judgment entered upon
the Note; in each case simultaneously or consecutively, against or in respect of
Company, all of which rights and remedies shall, to the full extent permitted by
law, be cumulative. The choice of one or more rights or remedies shall not be
construed as a waiver or election barring other rights and remedies. Company
hereby acknowledges and agrees that the Holder are not required to exercise all
remedies and rights available to them equally with respect to all of the
Collateral and that the Holder may select less than all of the Collateral with
respect to which the remedies as determined by the Holder may be exercised.
(h) Direct Interest Payments. Upon the occurrence of any Event of
Default, or at any time thereafter if any Event of Default shall then be
continuing, the Holder shall notify the Issuer of the Debenture and instruct
such Issuer to make interest payments directly to the Holder.
(i) Additional Remedies. In addition to or in conjunction with the
rights and remedies referred to in Section 6.1 hereof, after the occurrence and
during the continuance of an Event of Default:
i. Written notice mailed to Company at the address
designated herein ten (10) business days or more prior to the date of public or
private sale of any of the Collateral shall constitute reasonable notice. For
purposes of this agreement and the Note, a business day shall be deemed to be
any day on which the New York Stock Exchange is open for business.
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ii. The Holder may require Company to assemble any of
the Collateral and to make it available to the Holder at a place the Holder
designate and reasonably convenient to Company and the Holder.
iii. The Holder may require Company to use its best
efforts to obtain any approvals that are required by any governmental or
regulatory body in order to permit the sale of the Collateral pursuant to this
Agreement.
5. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Agreement may be
amended, waived or modified upon the written consent of the Company and the
Purchaser.
(b) Governing Law. This Agreement and all actions arising out of or
in connection with this Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without regard to the conflicts
of law provisions of the State of Nevada or of any other state.
(c) Entire Agreement. This Agreement, together with the form of the
Note attached hereto, constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
(d) Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent via overnight courier
service or mailed by certified or registered mail, postage prepaid, return
receipt requested, addressed or sent (a) if to the Purchaser, at the address of
the Purchaser set forth below such party's name on the signature page hereto, or
at such other address or number as the Purchaser shall have furnished to the
Company in writing, or (b) if to the Company, at 00000 Xxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxx, X0X 0X0 or at such other address or number as the Company shall have
furnished to the Purchaser in writing.
(e) Validity. If any provision of this Agreement or the Note shall
be judicially determined to be invalid, unlawful or unenforceable, the validity,
lawfulness and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
(g) Disclosure. The Company may issue any and all press releases
and/or make any and all other announcements or filings with such persons and
authorities regarding this Agreement and/or any of the terms hereof, or any
amendment hereto, as may be required to satisfy the disclosure obligations of
the Company which determinations shall be made at the sole and reasonable
discretion of the Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
WIRELESS AGE COMMUNICATIONS, INC.
By:
---------------------------
Name
Title
THE PURCHASER:
--------------------------------
Xxxxxx Xxxxxxxxxxx
Address for Notices:
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
IT MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE NOTE UNDER SAID ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
$1,930,000.00 December 31, 2003
FOR VALUE RECEIVED, WIRELESS AGE COMMUNICATIONS, INC., a Nevada
corporation (the "Company"), promises to pay to Xxxxxx Xxxxxxxxxxx (the
"HOLDER"), or her registered assigns, the principal sum of $1,930,000.00 (one
million nine hundred thirty thousand U.S. Dollars), or such lesser amount as
shall then equal the outstanding principal amount hereof, together with interest
from the date of this Note on the unpaid principal balance at a rate equal to
eight percent (8%) per annum. All accrued and unpaid interest hereunder shall be
payable in arrears in calendar quarterly installments commencing on the date
which is the first day after the end of the earliest calendar quarter after the
date hereof and continuing every three (3) months thereafter until payment in
full of this Note. The interest rate shall be computed on the basis of the
actual number of days elapsed and a year of 365 days. For purposes of clarity, a
calendar quarter shall be deemed to end on March 31, June 30, September 30 and
December 31 of each calendar year. All unpaid principal, together with the
balance of accrued and unpaid interest and any other amounts payable hereunder,
shall be due and payable on demand at any time after the earlier of six months
from the date first set forth above; or (ii) an Event of Default (defined
below). Moreover, promptly upon the Company's receipt of interest paid upon the
Collateral (as defined on the Signature Page hereto), the Company shall pay to
the Holder any and all such Collateral interest received as interest due upon
this Note and to the extent of any surplus thereof, the Company shall prepay all
unpaid principal, together with the balance of accrued and unpaid interest and
any other amounts payable hereunder, to the extent of the net proceeds received
by the Company from such Collateral. As used in this Note, the term
"Obligations" shall mean all principal and accrued interest due hereunder. This
Note is issued pursuant to that certain Note Purchase and Security Agreement
between the Company and the Holder dated December 31, 2003 (the "Note Purchase
and Security Agreement"). All terms not otherwise defined herein shall have the
meaning set forth in the Note Purchase and Security Agreement. This Note shall
be governed by and interpreted in accordance with the terms and conditions set
forth in the Note Purchase and Security Agreement.
The following is a statement of the rights of the Holder and the
conditions to which this Note is subject, and to which the Holder hereof, by the
acceptance of this Note, agrees:
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1. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" under this Note:
(a) Failure to Pay. The Company shall fail to pay when due any
amount of principal or interest hereunder or any other amount payable by the
Company hereunder;
(b) Breach of Representation. Any representation or warranty of the
Company made in this Note or with respect to or in connection with the issuance
of this Note (including, without limitation, any representation or warranty of
the Company set forth in that certain Note Purchase and Security Agreement)
shall have been false and shall have materially and adversely affected the
operations of the Company.
(c) Breach of Covenant. Without limiting the foregoing, the Company
shall fail in any respect to perform or observe when required any covenant,
condition or agreement for performance or observance by the Company where the
same (i) is either set forth in this Note or in any document or instrument
entered into or delivered by the Company with respect to or in connection with
the issuance of this Note (including, without limitation, any covenant,
condition or agreement set forth in the Note Purchase and Security Agreement)
and, (ii) if capable of being remedied in twenty (20) or fewer business days,
has not been remedied within twenty (20) business days after the Company's
receipt of written notice with respect thereto.
(d) Voluntary Bankruptcy or Insolvency Proceedings. The Company
shall (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its
property, (ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the benefit of its
or any of its creditors, (iv) be dissolved or liquidated in full or in part, (v)
become insolvent (as such term may be defined or interpreted under any
applicable statute), (vi) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or consent to any such relief or to the appointment of or taking possession of
its property by any official in an involuntary case or other proceeding
commenced against it, or (vii) take any action for the purpose of effecting any
of the foregoing; or
(e) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the assets thereof, or an involuntary
case or other proceedings seeking liquidation, reorganization or other relief
with respect to the Company or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be commenced,
and such proceedings shall not have been stayed or dismissed within sixty (60)
days after commencement of the same.
2. Rights of Holder Upon Default. Without limiting any other rights set
forth herein, upon the occurrence or existence of any Event of Default and at
any time thereafter during the continuance of such Event of Default, the Holder
may declare all
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outstanding Obligations payable by the Company hereunder to be immediately due
and payable without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default, the Holder
may exercise any other right, power or remedy granted to it or otherwise
permitted to it by law, either by suit in equity or by action at law, or both.
Without limiting the foregoing, effective upon an Event of Default, the Company
hereby irrevocably designates and appoints the Holder as its agent and
attorney-in-fact to act for, and in the Company's behalf, to execute and file
any document with respect to enforcement of all of Holder's rights with respect
to the Collateral and to do all other lawfully permitted acts hereunder with the
same legal force and effect as if executed by a duly authorized officer of the
Company, which power-of-attorney is coupled with an interest and shall be
irrevocable.
4. Successors and Assigns. Subject to the restrictions on transfer
described in Sections 6 and 7 below, the rights and obligations of the Company
and the Holder of this Note shall be binding upon and benefit the successors,
assigns, heirs, administrators and transferees of the parties. Any and all
rights with respect to the continuing security interest in the Collateral as set
forth in the Note Purchase and Security Agreement shall inure to the benefit of
any and all assigns, heirs, administrators and transferees of the Holder.
5. Waiver and Amendment. Any provision of this Note may be amended, waived
or modified upon the written consent of the Company and the Holder.
6. Transfer of this Note. This Note may not be transferred or assigned in
violation of any restrictive legend set forth hereon; provided, however, that
the Company acknowledges and agrees that any transfer or assignment by the
Holder of this Note to any family member of the Holder shall not be deemed to be
a violation of such legend and, notwithstanding any other provision of this Note
to the contrary, any such transfer or assignment shall be permitted without the
performance or observance of any requirements by the Holder (except for notice
to the Company). Each new Note issued upon transfer or assignment of this Note
shall bear a legend as to the applicable restrictions on transferability in
order to ensure compliance with the Securities Act, unless in the opinion of
counsel for the Company such legend is not required in order to ensure
compliance with the Securities Act. Prior to presentation of this Note for
registration of transfer or assignment, the Company shall treat the registered
holder hereof as the owner and holder of this Note for the purpose of receiving
all payments of principal and interest hereon and for all other purposes
whatsoever, whether or not this Note shall be overdue, and the Company shall not
be affected by notice to the contrary.
7. Assignment by the Company. Neither this Note nor any of the rights,
interests or obligations hereunder may be assigned, by operation of law or
otherwise, in whole or in part, by the Company without the prior written consent
of the Holder, provided, however, the Company may assign and transfer the
obligation upon this Note to a subsidiary of the Company so long as a continuing
security interest in the Collateral is maintained by the Holder to the same
extent as provided herein.
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8. Treatment of Notes To the extent permitted by generally accepted
accounting principles, the Company will treat, account and report this Note as
debt and not equity for accounting purposes and with respect to any returns
filed with federal, state or local tax authorities.
9. Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or mailed by registered or certified mail, postage
prepaid, or by recognized overnight courier or personal delivery at the
principal executive offices of the Company, in the instance of the Company, or
the address of the Holder as set forth in the records maintained by the Company,
in the instance of the Holder. Any party hereto may by notice so given change
its address for future notice hereunder. Notice shall conclusively be deemed to
have been given when received.
10. Payment. Payment shall be made in lawful tender of the United States
at such reasonable place and time and in such reasonable manner as specified by
the Holder.
11. Expenses; Waivers. If any action or other proceeding is instituted to
collect this Note, the Company shall pay all costs and expenses, including,
without limitation, reasonable attorneys' fees and costs, incurred by the Holder
or its transferees or assigns in connection with such action or other
proceeding. The Company hereby waives notice of default, presentment or demand
for payment, protest or notice of nonpayment or dishonor and all other notices
or demands relative to this instrument.
12. Governing Law. This Note and all actions arising out of or in
connection with this Note shall be governed by and construed in accordance with
the laws of the State of Nevada, without regard to the conflicts of law
provisions of the State of Nevada or of any other state.
13. Validity. If any provision of this Note shall be judicially determined
to be invalid, unlawful or unenforceable, the validity, lawfulness and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
14. Excessive Interest. Notwithstanding any other provision herein to the
contrary, this Note is hereby expressly limited so that the interest rate
charged hereunder shall at no time exceed the maximum rate permitted by
applicable law. If, for any circumstance whatsoever, the interest rate charged
exceeds the maximum rate permitted by applicable law, the interest rate shall be
reduced to the maximum rate permitted, and if the Holder shall have received an
amount that would cause the interest rate charged to be in excess of the maximum
rate permitted, such amount that would be excessive interest shall be applied to
the reduction of the principal amount owing hereunder (without charge for
prepayment) and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal, such excess shall be refunded to the
Company.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Note to be issued as of
the date first written above.
WIRELESS AGE COMMUNICATIONS, INC.
By:
--------------------------
Name
Title
Description of the Collateral: 8% Convertible Subordinated Promissory Note
issued by Relm Wireless Corporation for $1,700,000, Number 21, issued March 13,
2000 and due December 31, 2004.
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