MANCHESTER INC.
AMENDED AND RESTATED PROMISSORY NOTE
U.S. $99,303.73 JUNE 27, 2006
THIS AMENDED AND RESTATED PROMISSORY NOTE, is hereby made by and between
Manchester Inc., a Nevada corporation (the "Borrower"), and ▇▇▇▇▇▇ ▇▇▇ (the
"Lender").
WHEREAS, in a Promissory Note dated as of November 24, 2004 (the "Original
Note"), the Borrower agreed to pay the Lender the sum of Eighty-Eight Thousand
Twenty-Five United States Dollars (U.S. $88,025.00) (the "Original Principal"),
plus all interest accrued thereon at an annual rate of 6% per annum;
WHEREAS, the Borrower and the Lender have agreed to add to the Original Note
subsequent loans made by the Lender to the Borrower;
WHEREAS, the Lender has, subsequent to the loan of Original Principal, has
loaned to the Borrower the sums of Two Thousand Nine Hundred and One Dollars
(U.S. $2,901.00) and One Hundred Thirty-Nine Dollars (U.S. $139.00), increasing
the total amount of principal loaned by Lender to Borrower to Ninety-One
Thousand Sixty-Four Dollars and Twenty-Five Cents (U.S. $91,064.25) (the
"Adjusted Principal");
WHEREAS, interest in the amount of Eight Thousand Two Hundred Fifty-Four Dollars
and Forty-Five Cents (U.S. $8,254.45) has accrued on the Adjusted Principal, and
the Borrower now owes the Lender a total amount, as of the date hereof, of
Ninety-Nine Thousand Three Hundred and Three Dollars and Seventy-Three Cents
(U.S. $99,303.73) (the "Capitalized Principal");
WHEREAS, the Original Note was due and payable to the Lender on December 24,
2005;
WHEREAS, the Lender and the Borrower have agreed to waive the default of the
Original Note in consideration for the covenants and undertakings set forth in
this Amended and Restated Promissory Note in respect the Capitalized Principal
and adjustment of the rate of interest due thereon, and the Lender and the
Borrower hereby agrees as follows;
1. NOW, THEREFORE, FOR VALUE RECEIVED, the Borrower hereby promises to pay to
the order of the Lender the Capitalized Principal and all interest due
thereon at or prior to the Due Date as defined below, at such place and in
such manner as Lender may specify in writing.
2. Any and all fees, costs, expenses and disbursements charged by financial
institutions with respect to wire transfer or other transmittal charges
incurred in connection with deliver of the Adjusted Principal from the
Lender to the Borrower shall be deemed to have been received by the
Borrower from the Lender and all such amounts shall be included in the
calculation of Capitalized Principal hereunder.
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3. The Borrower shall, effective as of June 1, 2006, pay interest on the
Capitalized Principal of this Amended and Restated Promissory Note at the
annual rate of 8% per annum, calculated based on a year of 365 days and
actual days elapsed.
4. This Amended and Restated Promissory Note, including all Capitalized
Principal and interest accrued thereon, shall be due and payable in full
not later than the close of business on June 30, 2007 (the "Due Date").
5. The Borrower may not assign or transfer its obligations under this Amended
and Restated Promissory Note and any such purported transfer shall void ab
initio. The Lender may assign, transfer or sell any and all rights and
interests in this Amended and Restated Promissory Note at its sole
discretion.
6. The failure at any time of the Lender to exercise any of its options or any
other rights hereunder shall not constitute a waiver thereof, nor shall it
be a bar to the exercise of any of its options or rights at a later date.
All rights and remedies of the Lender shall be cumulative and may be
pursued singly, successively or together, at the option of the Lender. The
acceptance by the Lender of any partial payment shall not constitute a
waiver of any default or of any of the Lender's rights under this Amended
and Restated Promissory Note. No waiver of any of its rights hereunder, and
no modification or amendment of this Amended and Restated Promissory Note,
shall be deemed to be made by the Lender unless the same shall be in
writing, duly signed on behalf of the Lender; and each such waiver shall
apply only with respect to the specific instance involved, and shall in no
way impair the rights of the Lender in any other respect at any other time.
7. Any term or condition of this Amended and Restated Promissory Note may be
waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition.
8. The Borrower represents and warrants that this Amended and Restated
Promissory Note is the valid and binding obligation of the Borrower, fully
enforceable in accordance with its terms. The execution and delivery by the
Borrower of this Amended and Restated Promissory Note, the performance by
the Borrower of its obligations hereunder and the consummation of the
transactions contemplated hereby and thereby does not and will not: (a)
conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the Borrower's charter instruments; (b)
conflict with or result in a violation or breach of any term or provision
of any law or order applicable to the Borrower or any of its assets and
properties; or (c) (i) conflict with or result in a violation or breach of,
or (ii) result in or give to any person any rights or create any additional
or increased liability of the Borrower under or create or impose any lien
upon, the Borrower or any of its assets and properties under, any contract
or permit to which the Borrower is a party or by which its assets and
properties are bound except with respect to the security interests granted
to the Holder hereof.
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9. If any provision of this Amended and Restated Promissory Note is held to be
illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Amended and
Restated Promissory Note will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Amended and
Restated Promissory Note will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, (iii)
the remaining provisions of this Amended and Restated Promissory Note will
remain in full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance here from and (iv)
in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Amended and Restated Promissory Note
a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
10. Any notice, authorization, request or demand required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly
given two days after it is sent by an internationally recognized delivery
service to the address of record of the Lender or the Borrower,
respectively. Any party may change its address for such communications by
giving notice thereof to the other parties in conformity with this Section.
11. This Amended and Restated Promissory Note shall be governed by and
construed under the laws of the State of Nevada as applied to agreements
entered into and to be performed entirely within such State. Each party
hereby irrevocably consents to the jurisdiction of the courts of any
competent jurisdiction over one or more of the parties. In any such
litigation the Borrower waives personal service of any summons, complaint
or other process and agrees that the service thereof may be made by
certified or registered mail directed to the registered corporate office of
Borrower in the State of its incorporation. The company hereby waives trial
by jury in any litigation in any court with respect to, in connection with,
or arising out of this note or the validity, protection, interpretation,
collection or enforcement hereof and the company hereby waives the right to
interpose any setoff or non-compulsory counterclaim or cross-claim in
connection with any such litigation, irrespective of the nature of such
setoff, counterclaim or cross-claim.
12. A default shall exist on this Amended and Restated Promissory Note if any
of the following occurs and is continuing: (i) Failure to pay Capitalized
Principal on the Amended and Restated Promissory Note on or before the date
such payment is due; (ii) Failure by the Borrower to perform or observe any
other covenant or agreement of the Borrower contained in this Amended and
Restated Promissory Note; (iii) A custodian, receiver, liquidator or
trustee of the Borrower, or any other person acting under actual or
purported force of law takes ownership, possession or title to Borrower
property; (iv) any of the property of the Borrower is sequestered by court
order; (v) a petition or other proceeding, voluntary or otherwise is filed
by or against the Borrower under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of indebtedness, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in effect; or
(vi) the Borrower makes an assignment for the benefit of its creditors, or
generally fails to pay its obligations as they become due, or consents to
the appointment of or taking possession by a custodian, receiver,
liquidator or trustee of the Borrower or all or any part of its property.
Upon any such default, the Borrower shall immediately notify the Lender,
and upon notice to the Borrower, the Lender may declare the Capitalized
Principal of the Amended and Restated Promissory Note, plus accrued
Interest, to be immediately due and payable, upon which such Capitalized
Principal and accrued Interest shall become due and payable immediately.
Interest upon default shall thereafter accrue at the rate of 15% per annum,
calculated based on a year of 365 days and actual days elapsed from the
date of such default.
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13. The Borrower, any endorser, or guarantor hereof or in the future
(individually an "Obligor" and collectively "Obligors") and each of them
jointly and severally: (a) waive presentment, demand, protest, notice of
demand, notice of intent to accelerate, notice of acceleration of maturity,
notice of protest, notice of nonpayment, notice of dishonor, and any other
notice required to be given under the law to any Obligor in connection with
the delivery, acceptance, performance, default or enforcement of this
Amended and Restated Promissory Note, any endorsement or guaranty of this
Amended and Restated Promissory Note, any pledge, security, guaranty or
other documents executed in connection with this Amended and Restated
Promissory Note; (b) consent to all delays, extensions, renewals or other
modifications of this Amended and Restated Promissory Note, or waivers of
any term hereof or thereof, or release or discharge by the Lender of any of
Obligors, or release, substitution or exchange of any security for the
payment hereof, or the failure to act on the part of the Lender or any
indulgence shown by the Lender (without notice to or further assent from
any of Obligors), and agree that no such action, failure to act or failure
to exercise any right or remedy by the Lender shall in any way affect or
impair the Obligations (as hereinafter defined) of any Obligors or be
construed as a waiver by the Lender of, or otherwise affect, any of the
Lender's rights under this Amended and Restated Promissory Note, under any
endorsement or guaranty of this Amended and Restated Promissory Note; (c)
if the Borrower fails to fulfill its obligations hereunder when due, agrees
to pay, on demand, all costs and expenses of enforcement of collection of
this Amended and Restated Promissory Note or of any endorsement or guaranty
hereof and/or the enforcement of the Lender's rights with respect to, or
the administration, supervision, preservation, protection of, or
realization upon, any property securing payment hereof, including, without
limitation, all attorney's fees, costs, expenses and disbursements,
including, without further limitation, any and all fees related to any
legal proceeding, suit, mediation arbitration, out of court payment
agreement, trial, appeal, bankruptcy proceedings or any other actions of
any nature whatsoever required on the part of Lender or Lender's
representatives to enforce this Amended and Restated Promissory Note and
the rights hereunder; and (d) waive the right to interpose any defense,
set-off or counterclaim of any nature or description.
14. The Borrower will not, by amendment of its Certificate of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed hereunder by
the Borrower, but will at all times in good faith assist in the carrying
out of all the provisions of this Agreement and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of
the Lender of this Amended and Restated Promissory Note against impairment.
This Amended and Restated Promissory Note shall be enforceable against all
successors and assigns of Borrower. Borrower hereby covenants that all of
its subsidiaries and affiliates shall jointly and severally perform this
Agreement to the same and full extent on behalf of Borrower if Borrower is
unable to perform.
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15. This Amended and Restated Promissory Note supersedes all prior discussions
and agreements between the parties with respect to the subject matter
hereof and thereof and contains the sole and entire agreement between the
parties hereto with respect to the subject matter hereof.
16. This Amended and Restated Promissory Note may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
17. If the Holder loses this Amended and Restated Promissory Note, the Borrower
shall issue an identical replacement note to the Holder upon the Holder's
delivery to the Borrower of a customary agreement to indemnify the Borrower
reasonably satisfactory to the Borrower for any losses resulting from
issuance of the replacement note.
18. The terms and conditions of this Amended and Restated Promissory Note shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Amended and Restated Promissory
Note, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Amended
and Restated Promissory Note, except as expressly provided in this Amended
and Restated Promissory Note.
IN WITNESS WHEREOF, the Borrower has caused this Amended and Restated Note to be
dated, executed and issued on its behalf, by its duly appointed and authorized
officer, as of this June 27, 2006.
LENDER:
/s/ ▇▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇ ▇▇▇
BORROWER:
Manchester Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director; Corporate Secretary
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