Exhibit
2.6




LOAN
AND SECURITY AGREEMENT




WACOM
CO LTD. ,




as
Lender




To




INPLAY
TECHNOLOGIES, INC.




And




FINEPOINT
INNOVATIONS, INC.,




as
Borrower




June
26, 2009







LOAN
AND SECURITY AGREEMENT




This LOAN
AND SECURITY AGREEMENT (the “Agreement”) is made as of June
26, 2009 by and between Wacom Co Ltd., a corporation organized under the laws of
Japan (“Lender”) and
InPlay Technologies, Inc., a Nevada corporation (“InPlay”), and FinePoint
Innovations, Inc., a Delaware corporation (“FinePoint,”and collectively
with InPlay, the “Borrower”).




RECITALS




Lender
and Borrower are parties to that certain Asset Purchase Agreement of even date
herewith (as amended from time to time, the “Asset Purchase Agreement”),
whereby Lender, as Buyer under the Asset Purchase Agreement will purchase, and
Borrower, as Sellers, will sell substantially all the assets of
Borrower.  During the period from the signing of the Asset Purchase
Agreement to the date of Closing (as defined therein), Borrower is in need of
working capital and funds needed to comply with the conditions precedent to the
Closing.  The Asset Purchase Agreement also requires that certain
payments be made at Closing from the Purchase Price.  Lender has
agreed to lend and Borrower has agreed to borrow, the Loan on the terms and
conditions set forth herein to facilitate the Closing.




AGREEMENT




In
consideration of the Loan by the Lender and the obligations of Lender under the
Asset Purchase Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Borrower
and  Lender hereby agree as follows:




1.           Definitions.




(a)           The
following terms shall have the following meanings for purposes of this
Agreement:




“Account” means any “account,”
as such term is defined in the UCC now owned or hereafter acquired by the
Borrower or in which the Borrower now holds or hereafter acquires any interest
and, in any event, shall include, without limitation, all accounts receivable,
book debts, rights to payment and other forms of obligations (other than forms
of obligations evidenced by Chattel Paper, Documents or Instruments) now owned
or hereafter received or acquired by or belonging or owing to the Borrower
whether or not arising out of goods or software sold or services rendered by the
Borrower or from any other transaction, whether or not the same involves the
sale of goods or services by the Borrower and all of the Borrower’s rights in,
to and under all purchase orders or receipts now owned or hereafter acquired by
it for goods or services, and all of the Borrower’s rights to any goods
represented by any of the foregoing, and all monies due or to become due to the
Borrower under all purchase orders and contracts for the sale of goods or the
performance of services or both by the Borrower or in connection with any other
transaction (whether or not yet earned by performance on the part of the
Borrower), now in existence or hereafter occurring, including, without
limitation, the right to receive the proceeds of said purchase orders and
contracts, and all collateral security and guarantees of any kind given by any
Person with respect to any of the foregoing.




“Agreement” has the meaning
set forth in the first paragraph hereof and shall mean the same as it is
hereafter amended or restated in accordance with the terms
hereof.





“Asset Purchase Agreement” is
defined in the recitals to this Agreement.




“Borrower”has the meaning set
forth in the first paragraph of this Agreement, jointly and severally, and
includes any successors or permitted assigns thereof.




“Cash” means all cash, money,
currency, and liquid funds, wherever held, in which the Borrower now or
hereafter acquires any right, title, or interest.




“Certificate of Deposit” shall
mean the uncertificated Deposit Account maintained in the name of Lender at the
Seattle, Washington branch of Bank of Tokyo Mitsubishi UFJ which shall contain
the remaining Loan proceeds after the Initial Advance.  The
Certificate of Deposit is in the name of Lender for the purpose of providing the
Lender with control of the funds represented thereby within the meaning of
Section 9-104(a)(3) of the UCC.




“Chattel Paper” means any
“chattel paper,” as such term is defined in the UCC, now owned or hereafter
acquired by the Borrower or in which the Borrower now holds or hereafter
acquires any interest.




“Closing” has the meaning
assigned to that term in the Asset Purchase Agreement.




“Collateral” has the meaning
set forth in Section
2(a).




“Commercial Tort Claims” means
“commercial tort claims,” as such term is defined in the UCC, and includes all
commercial tort claims identified in Exhibit A from time to time in
accordance with the terms of this Agreement.




“Deposit Accounts” means
any “deposit accounts,” as such term is defined in the UCC, and includes any
checking account, savings account, or certificate of deposit (including without
limitation the Certificate of Deposit), now owned or hereafter acquired by the
Borrower or in which the Borrower now holds or hereafter acquires any
interest.




“Documents” means any
“documents,” as such term is defined in the UCC, now owned or hereafter acquired
by the Borrower or in which the Borrower now holds or hereafter acquires any
interest.




“Equipment” means any
“equipment,” as such term is defined in the UCC, now owned or hereafter acquired
by the Borrower or in which the Borrower now holds or hereafter acquires any
interest and any and all additions, upgrades, substitutions and replacements of
any of the foregoing, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto, now owned or
hereafter acquired by the Borrower or in which the Borrower now holds or
hereafter acquires interest.




“Event of Default” means any
one or more of the occurrences described in Section 7 hereof.




“Financing Statement” means
the financing statement on Form UCC-1 filed in favor of InPlay on the assets of
FinePoint with the Secretary of State of Delaware on July 27, 2005 under filing
no. 5232512 5.




“FinePoint” has the meaning
set forth in the first paragraph of this Agreement and includes any successors
or permitted assigns thereof.


2


“Fixtures” means any
“fixtures,” as such term is defined in the UCC, together with all right, title
and interest of the Borrower in and to all extensions, improvements,
betterments, accessions, renewals, substitutes, and replacements of, and all
additions and appurtenances to any of the foregoing property, and all
conversions of the security constituted thereby, immediately upon any
acquisition or release thereof or any such conversion, as the case may be, now
owned or hereafter acquired by the Borrower or in which the Borrower now holds
or hereafter acquires any interest.




“General Intangible” means any
“general intangible,” as such term is defined in the UCC, now owned or hereafter
acquired by the Borrower or in which the Borrower now holds or hereafter
acquires any interest and, in any event, shall include, without limitation, all
right, title and interest that the Borrower may now or hereafter have in or
under any contracts, rights to payment, payment intangibles, confidential
information, interests in partnerships, limited liability companies,
corporations, joint ventures and other business associations (except in each
case where such interests are securities or other investment property), permits,
goodwill, claims in or under insurance policies, including unearned premiums and
premium adjustments,, , Intellectual Property (including the right to receive
all proceeds and damages therefrom), rights to receive tax refunds and other
payments and rights of indemnification.




“Goods” means any “goods,” as
such term is defined in the UCC, now owned or hereafter acquired by the Borrower
or in which the Borrower now holds or hereafter acquires any
interest.




“InPlay” has the meaning set
forth in the first paragraph of this Agreement and includes any successors or
permitted assigns thereof.




“Initial Advance” shall mean
$350,000.00, to be disbursed upon the execution of this Agreement and the
satisfaction of the conditions set forth in Section 4.




“Instruments” means any
“instrument,” as such term is defined in the UCC, now owned or hereafter
acquired by the Borrower or in which the Borrower now holds or hereafter
acquires any interest.




“Intellectual Property” means,
collectively, all rights, priorities and privileges of the Borrower relating to
intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, inventions,
patents, patent licenses, trademarks, trademark licenses and trade secrets
(including customer lists), domain names, Web sites and know-how.




“Inventory” means any
“inventory,” as such term is defined in the UCC, now owned or hereafter acquired
by the Borrower or in which the Borrower now holds or hereafter acquires any
interest, and, in any event, shall include, without limitation, all inventory,
goods and other personal property that are held by or on behalf of the Borrower
for sale or lease or are furnished or are to be furnished under a contract of
service or that constitute raw materials, work in process or materials used or
consumed or to be used or consumed in the Borrower’s business, or the
processing, packaging, promotion, delivery or shipping of the same, and all
finished goods, whether or not the same is in transit or in the constructive,
actual or exclusive possession of the Borrower or is held by others for the
Borrower’s account, including, without limitation, all goods covered by purchase
orders and contracts with suppliers and all goods billed and held by suppliers
and all such property that may be in the possession or custody of any carriers,
forwarding agents, truckers, warehousemen, vendors, selling agents or other
Persons.


3


“Investment Property” means
any “investment property,” as such term is defined in the UCC, and includes
certificated securities, uncertificated securities, securities accounts and
commodities accounts , now owned or hereafter acquired by the Borrower or in
which the Borrower now holds or hereafter acquires any interest.




“Laws” has the meaning set
forth in Section
6(f).




“Letter of Credit Right” means
any “letter of credit right,” as such term is defined in the UCC, now owned or
hereafter acquired by the Borrower or in which the Borrower now holds or
hereafter acquires any interest, including any right to payment or performance
under any letter of credit.




“Liabilities” has the meaning
set forth in Section
6(a).




“Lender” has the meaning set
forth in the first paragraph of this Agreement and includes any successors and
permitted assigns thereof.




“Lien”means any mortgage,
deed of trust, pledge, hypothecation, assignment for security, security
interest, encumbrance, levy, lien or charge of any kind, whether voluntarily
incurred or arising by operation of law or otherwise, against any property, any
conditional sale or other title retention agreement, any lease in the nature of
a security interest, and the filing of any financing statement (other than a
precautionary financing statement with respect to a lease that is not in the
nature of a security interest) under the UCC or comparable law of any
jurisdiction.




“Loan”has the meaning set
forth in Section
3(a).




“Loan Documents” means the
Transaction Documents other than the Asset Purchase Agreement.




“Margin Stock”shall have the
meaning given to it under Regulation U of the Board of Governors of the Federal
Reserve System, as amended from time to time, or any successor regulation
related to the subject matter thereof.




“Material Adverse Effect” shall
mean a material adverse effect on (a) the ability of the Borrower to pay or
perform the Obligations in accordance with the terms of this Agreement, the Note
and the other Transaction Documents and to avoid an Event of Default, or an
event which, with the giving of notice or the passage of time or both, would
constitute an Event of Default, under any Transaction Document; or (b) the
rights and remedies of Lender under this Agreement,  the Note, the
other Transaction Documents or any related document, instrument or
agreement.




“Note” has the meaning set
forth in Section
3(b).




“Obligations” shall mean and
include all loans, advances, debts, liabilities and obligations, howsoever
arising, owed by the Borrower to the Lender of every kind and description
(whether or not evidenced by any note or instrument and whether or not for the
payment of money), direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms of the Note, the
Asset Purchase Agreement and the other Transaction Documents, including without
limitation all interest, fees, charges, expenses, attorneys’ fees and
accountants’ fees chargeable to the Borrower or payable by the Borrower
thereunder.


4


“Patent, Trademark and Copyright
Security Agreement” the Patent and Trademark Security Agreement of even
date herewith granted by InPlay and FinePoint in favor of Lender and filed with
the U.S. Patent and Trademark Office and the U.S. Copyright Office.




“Permitted Liens”shall mean
(a) Liens for taxes or other governmental charges not at the time delinquent or
thereafter payable without penalty or being contested in good faith; provided,
however, that adequate reserves for the payment thereof have been established in
accordance with generally accepted accounting principles, (b) Liens of carriers,
warehousemen, mechanics, materialmen, vendors, and landlords and other similar
Liens imposed by law incurred in the ordinary course of business for sums not
overdue more than 30 days or being contested in good faith, provided, however,
that adequate reserves for the payment thereof have been established in
accordance with generally accepted accounting principles, (c) deposits under
workers’ compensation, unemployment insurance and social security laws or to
secure the performance of bids, tenders, contracts (other than for the repayment
of borrowed money) or leases, or to secure statutory obligations of surety or
appeal bonds or to secure indemnity, performance or other similar bonds in the
ordinary course of business, (d) zoning restrictions, easements, rights-of-way,
title irregularities and other similar encumbrances, which alone or in the
aggregate are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower, (e) banker’s Liens and similar Liens (including
set-off rights) in respect of bank deposits, (f)  Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties and in connection with the importation of goods in the ordinary
course of the Borrower’s business, and (g) Liens on the property or assets of
FinePoint in favor of InPlay, provided that the Financing Statement is assigned
to the Lender.




“Person” means any individual,
sole proprietorship, partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability company, institution,
public benefit corporation, other entity or government (whether federal, state,
county, city, municipal, local, foreign, or otherwise, including any
instrumentality, division, agency, body or department thereof).




“Proceeds” means
“proceeds,” as such term is defined in the UCC and, in any event, shall include,
without limitation, (a) any and all Accounts, Chattel Paper, Instruments, cash
or other forms of money or currency or other proceeds payable to the Borrower
from time to time in respect of the Collateral, (b) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Borrower from time to
time with respect to any of the Collateral, (c) any and all payments (in any
form whatsoever) made or due and payable to the Borrower from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental authority
(or any Person acting under color of governmental authority), (d) the proceeds,
damages, or recovery based on any claim of the Borrower against third parties
(i) for past, present or future infringement of any copyright, patent or
patent license or (ii) for past, present or future infringement or dilution of
any trademark or trademark license or for injury to the goodwill associated with
any trademark, trademark registration or trademark licensed under any trademark
license and (e) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.




“Receivables” means all of the
Borrower’s Accounts, Instruments, Documents, Chattel Paper, Supporting
Obligations, and Letter of Credit Rights.




“Related Expenses”means any
and all costs, liabilities, and expenses (including, without limitation, losses,
damages, penalties, claims, actions, reasonable attorney’s fees, legal expenses,
judgments, suits and disbursements) reasonably incurred by, or imposed upon, or
asserted against, Lender in any attempt by Lender:


5


(a)           to
obtain, preserve, perfect, or enforce any security interest evidenced by (i) any
of the Loan Documents, or (ii) any other pledge agreement, mortgage, deed of
trust, hypothecation agreement, guaranty, security agreement, assignment, or
security instrument executed or given by Borrower to or in favor of
Lender;




(b)           to
obtain payment, performance, and observance of any and all of the
Obligations;




(c)           to
maintain, insure, audit, collect, preserve, repossess, and dispose of any of the
Collateral, including, without limitation, costs and expenses for appraisals,
assessments, and audits of Borrower or the Collateral; or




(d)           incidental
or related to (a) through (c) above, including, without limitation, interest
thereupon from the date incurred, imposed, or asserted until paid at the rate
payable as set forth in the Note, but in no event greater than the highest rate
permitted by law.




“Security Interest” has
the meaning set forth in Section 2(a).




“Supporting Obligation” means
any “supporting obligation,” as such term is defined in the UCC, now owned or
hereafter acquired by the Borrower or in which the Borrower now holds or
hereafter acquires any interest.




“Third Party Payments” shall
mean the payments to third parties as of Closing as contemplated by the Asset
Purchase Agreement.




“Transaction Documents”means
the Asset Purchase Agreement, the Note, this Security Agreement, , the Patent,
Trademark and Copyright Security Agreement, and agreements ancillary to any of
the foregoing.




“Treasury” has the meaning set
forth in Section
5(j).




“UCC” means the Uniform
Commercial Code as the same may, from time to time, be in effect in the State
of  Washington; provided, however, that in
the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Lender’s
Lien on any Collateral is governed by the Uniform Commercial Code as enacted and
in effect in a jurisdiction other than the State of Washington, the term “UCC”
shall mean the Uniform Commercial Code as enacted and in effect, from time to
time, in such other jurisdiction solely for purposes of the provisions thereof
relating to such attachment, perfection, priority or remedies and for purposes
of definitions related to such provisions.




Unless
otherwise defined herein, terms that are defined in the UCC and used herein
shall have the meanings given to them in the UCC.




2.           Grant of Security
Interest.  To secure the Borrower’s full and timely performance
of the Obligations, the Borrower hereby grants to the Lender a continuing Lien
on and security interest (the “Security Interest”) in, all of
the Borrower’s right, title and interest in and to the following, whether now
owned or hereafter acquired and wherever located: (a) all Receivables; (b) all
Equipment; (c) all Fixtures; (d) all General Intangibles; (e) all Inventory; (f)
all Investment Property; (g) all Deposit Accounts; (h) all Cash; (i) all other
Goods of the Borrower; (j) all Intellectual Property; (k) all Commercial Tort
Claims; and (l) all Proceeds of each of the foregoing and all accessions to, and
replacements for, each of the foregoing (collectively, the “Collateral”).


6


3.           The Loan.




(a)           The
Lender agrees to extend to the Borrower a non-revolving loan (the “Loan”) on the terms and
conditions set forth in this Agreement in the amount of
$1,900,000.00.




(b)           The
Loan shall be evidenced by a promissory note (the “Note”) and shall not bear
interest.




(c)           The
Loan shall mature on the earlier of the Closing or October 5, 2009, unless it is
earlier accelerated by Lender upon an Event of Default.




(d)           Subject
to compliance with Section
4 hereof, the Loan shall be disbursed to the Borrower as
follows:




(i)           The
Initial Advance shall be disbursed to Borrower at the time of execution of this
Agreement and the Transaction Documents.




(ii)          Upon
execution of this Agreement, the remaining proceeds of the Loan shall be
deposited in the Certificate of Deposit.   Funds in the
Certificate of Deposit shall be the property of Borrower but subject to the Lien
and control of Lender.  Interest, if any (and it is expected that the
Certificate of Deposit shall not bear interest), on the Certificate of Deposit
shall accrue to the benefit of Borrower and shall be taxable to Borrower but
shall be deposited in the Deposit Account represented by the Certificate of
Deposit in the name of Lender until disbursed in accordance with this
Agreement.




(iii)         Upon
satisfaction or written waiver by Lender of the conditions in Article 6 of the
Asset Purchase Agreement, the Lender shall issue instructions to the bank
holding the Certificate of Deposit to disburse funds therefrom to the third
parties entitled to the Third Party Payments.




(iv)        Upon
satisfaction or written waiver by Lender of the conditions in Article 6 of the
Asset Purchase Agreement, the Lender shall issue instructions to the bank
holding the Certificate of Deposit to disburse funds therefrom to or for the
account of Borrowers at Closing.




(v)         In
no event may Borrower exercise any rights with respect to the Certificate of
Deposit other than in accordance with this Agreement.




4.           Conditions Precedent to the
Loan.  The obligation of the Lender to disburse the Initial
Advance and to fund the Certificate of Deposit shall be subject to satisfaction
of the following conditions, unless waived in writing by the
Lender:  (a) all legal matters and all Transaction Documents incident
to the transactions contemplated hereby shall be reasonably satisfactory, in
form and substance, to Lender's counsel; (b) the Lender shall have received (i)
certificates by an authorized officer or representative of Borrower upon which
the Lender may conclusively rely until superseded by similar certificates
delivered to the Lender, certifying that (1) all requisite action taken in
connection with the transactions contemplated hereby has been duly authorized
and (2) the names, signatures, and authority of Borrower’s authorized signers
executing the Loan Documents, and (ii) such other documents as the Lender may
reasonably require to be executed by, or delivered on behalf of, Borrower; (c)
the Lender shall have received the Note with all blanks appropriately completed,
executed by an authorized signer for Borrower; (d) Borrower shall have
maintained its financial condition in a manner satisfactory to the Lender (it
being understood that Borrower has ceased operations, is currently without funds
other than the Loan and that the Loan will not, unless the transactions
contemplated by the Asset Purchase Agreement are consummated, satisfy all of
Borrower’s known creditors’ claims), and no material adverse change shall have
occurred in Borrower’s financial condition or prospects; (f) the Financing
Statement shall be assigned of record to the Lender; and (g) the Lender shall
have received written instructions from the Borrower with respect to
disbursement of the proceeds of the Loan then disbursable
hereunder.


7


5.           Representations and
Warranties.  The Borrower hereby represents and warrants to
each Lender that:




(a)          Ownership of
Collateral.  The Borrower is the legal and beneficial owner of
the Collateral (or, in the case of after-acquired Collateral, at the time the
Borrower acquires rights in the Collateral, will be the legal and beneficial
owner thereof).  Except for the Security Interest granted to the
Lender pursuant to this Agreement and except for Permitted Liens, the Borrower
has rights in or the power to transfer the Collateral free and clear of any
adverse Lien, security interest or encumbrance.   Borrower has no
Commercial Tort Claims except as identified on Exhibit A.




(b)          Valid Security
Interest.  The Security Interest granted pursuant to this
Agreement will constitute a valid and continuing security interest in favor of
the Lender in the Collateral.  Upon the filing of UCC-1 financing
statements in the appropriate filing office(s), and  the U.S. Patent
and Trademark Office and the U.S. Copyright Office with respect to the Patent,
Trademark and Copyright Security Agreement, the Lender has (or, in the case of
after-acquired Collateral, at the time the Borrower acquires rights in the
Collateral, will have) a perfected security interest in the Collateral to the
extent that a security interest in the Collateral can be perfected by such
filing.  Such Security Interest will be prior to all other Liens on
the Collateral, except for Permitted Liens.




(c)          Organization,  Good
Standing and Due Authorization.  InPlay is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
it has all necessary corporate power and authority to own, lease and operate its
properties and assets and to carry on its business asnowconducted.  FinePoint is a
corporation duly organized, validly existing and in goodstandingunder the laws of the State of
Delaware and it has all necessary corporate power and authority to own, lease
and operate its properties and assets and to carry on its business as now
conducted.  Borrower has full power, authority and legal right to
incur the Obligations provided for in, and to execute and deliver and to perform
and observe the terms and provisions of, the Loan Documents to which it is a
party, and each of them has been duly executed and delivered by Borrower and has
been authorized by all required action, and Borrower has obtained all requisite
consents to the transactions contemplated thereby under any instrument to which
it is a party, and the Loan Documents constitute the legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditors'
rights generally




(d)          Valid Lien.  This
Agreement is effective to create a valid and continuing Lien upon the
Collateral.  All action by the Borrower necessary to protect such Lien
on each item of the Collateral has been duly taken.




(e)          Collateral.  (i) 
All Receivables  are genuine and enforceable against the party
obligated to pay the same; (ii) the originals of all documents evidencing all
Receivables of Borrower and the only original books of account and records of
Borrower relating thereto are, and will continue to be, kept at the chief
executive office of Borrower set forth on Exhibit A or at such other
locations as Borrower may establish in accordance with Section 5(k), and (iii) all
information set forth in Exhibit A hereto and all
Exhibits and Schedules to the Asset Purchase Agreement is true and
correct.


8


(f)           No Breach.  Neither
the execution and delivery of the Loan Documents, nor the compliance by Borrower
with the terms and conditions of the Loan Documents, nor the consummation of the
transactions contemplated thereby, will conflict with or result in a breach of
the Articles of Incorporation or other governing documents of Borrower, or any
of the terms, conditions or provisions of any agreement or instrument or any
charter or other corporate restriction or law, regulation, rule or order of any
governmental body or agency to which Borrower is now a party or is subject, or
imposition of a lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of Borrower pursuant to the terms of any such agreement
or instrument.




(g)          Governmental
Consents.  .  No consent, approval, authorization or
order of any court or governmental agency or body is required for the
consummation by Borrower of the transactions contemplated by the Loan Documents,
other than the filing of financing statements with the appropriate office, and
the U.S. Patent and Trademark Office and the U.S. Copyright Office with respect
to the Patent, Trademark and Copyright Security Agreement.




(h)          Solvency.  Borrower
has ceased operations, is currently without funds other than the Loan and that
the Loan will not, unless the transactions contemplated by the Asset Purchase
Agreement are consummated, satisfy all of Borrower’s known creditors’
claims.    The Borrower is not engaged or about to engage in
any business or transaction for which the assets retained by it shall constitute
an unreasonably small capital, taking into consideration the obligations to
Lender incurred hereunder and factors described in the preceding
sentence.  Borrower does not intend to, nor does it believe that it
will, incur debts beyond its ability to pay them as they mature other than debts
incurred to complete the transactions contemplated by the Asset Purchase
Agreement.




(i)           Federal Reserve Regulations; Use of
Loan Proceeds.  Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying any Margin Stock.  No part of the proceeds
of the Loans will be used, directly or indirectly, for a purpose which violates
any law, rule or regulation of any governmental body, including without
limitation the provisions of Regulations T, U, or X of the Board of Governors of
the Federal Reserve System, as amended.  No part of the proceeds of
the Loans will be used, directly or indirectly, to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock.




(j)           OFAC/USA PATRIOT Act
Restrictions.  Neither Borrower is (or will be) a Person with
whom Lender is restricted from doing business under regulations of the Office of
Foreign Asset Control of the Department of the Treasury of the United States of
America (“Treasury”) or
under any list of known or suspected terrorists or terrorist organizations
issued by any federal government agency and designated as such by Treasury in
consultation with the federal functional regulators, or under any statute,
executive order, or other governmental action, and neither Borrower is engaging,
or shall engage, in any dealings or transactions or shall otherwise be
associated with such Persons.  In addition, Borrower hereby agrees to
provide to the Lender with any additional information that the Lender deems
necessary from to time in order to ensure compliance with all applicable laws
concerning money laundering and similar activities.




(k)          Borrower’s
Location.  The sole jurisdiction of organization of each
Borrower is as set forth on Exhibit A.




6.           Covenants.  The
Borrower covenants and agrees with the Lender that, from and after the date of
this Agreement until the Obligations are paid in full:


9


(a)           Other Liens.  Except
for the Security Interest and Permitted Liens, the Borrower has rights in or the
power to transfer the Collateral and its title and will be able to do so
hereafter free from any adverse Lien, security interest or encumbrance, and the
Borrower will defend the Collateral against the claims and demands of all
persons at any time claiming the same or any interest therein.




(b)           Further
Documentation.  At any time and from time to time, upon the
written request of the Lender, and at the sole expense of the Borrower, the
Borrower will promptly and duly authenticate and deliver such further
instruments and documents and take such further action as the Lender determines
necessary or desirablefor the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted including, without limitation, filing any financing or
continuation statements under the UCC in effect with respect to the Liens
created hereby or filing with the U.S. Patent and Trademark Office, U.S.
Copyright Office or any foreign or international body registering rights in
Intellectual Property.  The Borrower also hereby authorizes the Lender
to file any such financing, amendment or continuation statement without the
authentication of the Borrower to the extent permitted by applicable law,
including specifically and without limitation a financing statement that
describes the Collateral as “all assets” of the Borrower.  A
reproduction of this Agreement shall be sufficient as a financing statement (or
as an exhibit to a financing statement on form UCC-1) for filing in any
jurisdiction.




(c)           Indemnification.  The
Borrower agrees to defend, indemnify and hold harmless the Lender against any
and all liabilities, costs and expenses (including, without limitation, legal
fees and expenses) (“Liabilities”): (i) with
respect to, or resulting from, any delay in paying, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Collateral or the Loan (except for taxes measurable by the gross or net
income of the Lender), (ii) with respect to, or resulting from, any delay
in complying with any law, rule, regulation or order of any governmental
authority applicable to any of the Collateral or (iii) in connection with
any of the transactions contemplated by this Agreement.




(d)           Maintenance of
Records.  The Borrower will keep and maintain at its own
expense complete and satisfactory, in all material respects,records of the
Collateral.




(e)           Inspection
Rights.  The Lender shall have full access during normal
business hours, and upon reasonable prior notice, to all the books,
correspondence and other records of the Borrower relating to the Collateral and
the application of the Loan proceeds.  The Lender or their
representatives may examine such records and make photocopies or otherwise take
extracts from such records.  The Borrower agrees to render to the
Lender, at the Borrower’s expense, such clerical and other assistance as the
Lender  may reasonably request with regard to the exercise of their
respective rights pursuant to this paragraph.




(f)           Compliance with Laws,
etc.  The Borrower (i) will comply with all material laws
(including, without limitation, the Fair Labor Standards Act), rules,
regulations and orders of any governmental authority applicable to the
Collateral (collectively, “Laws”), and (ii) shall not use
or permit any Collateral to be used in violation of any provision of the Note,
Laws, or any policy of insurance covering any portion of the Collateral; provided, however, that in
each case, the Borrower may contest Laws in any manner which does not, in the
reasonable opinion of the Borrower, adversely affect the Lender’s rights or the
priority of its Liens on the Collateral.


10


(g)           Payment of
Obligations.  Provided that the Lender permits the Borrower to
use funds in the Certificate of Deposit to do so (which is in Lender’s sole
discretion), the Borrower will pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon the Collateral or with respect to
any of its income or profits derived from the Collateral, as well as all claims
of any kind (including, without limitation, claims for labor, materials and
supplies) against or with respect to the Collateral, except that no such charge
need be paid if (i) the validity of such charge is being contested in good
faith by appropriate proceedings, (ii) such proceedings do not involve any
material danger of the sale, forfeiture or loss of any of the Collateral or any
interest in the Collateral and (iii) such charge is adequately reserved
against on the Borrower’s books in accordance with generally accepted accounting
principles.




(h)           Limitation on Liens on
Collateral.  The Borrower will not create, incur or permit to
exist, will defend the Collateral against, and will take such other action as is
necessary to remove, any Lien or claim on or to the Collateral (provided that
the Lender permits the Borrower to use funds in the Certificate of Deposit to do
so which is in Lender’s sole discretion), other than the Security Interest and
Permitted Liens, and will defend the right, title and interest of the Lender in
and to any of the Collateral against the claims and demands of all other
persons.




(i)           Limitations on Dispositions of
Collateral.  The Borrower will not surrender or lose possession
of (other than to Lender), sell, transfer, lease, license or otherwise dispose
of any Collateral, or attempt, offer or contract to do so.




(j)           Further Identification of
Collateral.  Upon the request of the Lender, the Borrower will
furnish to the Lender such statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Lender may reasonably request.




(k)           Intellectual Property
Matters.  The Borrower shall notify the Lender immediately if
it knows (i) that any application or registration relating to any of its
Intellectual Property may become abandoned or dedicated to the public domain, or
(ii) of any adverse determination or development (including the institution of,
or any such determination or development in, any proceeding in the U.S. Patent
and Trademark Office, the U.S. Copyright Office or any court) regarding the
Borrower’s ownership of any Intellectual Property.




(l)           Intellectual Property
Applications.  In the event Borrower files any new applications
for the registration of any patent or trademark with the U. S. Patent and
Trademark Office or any similar office or agency, it shall give the Lender
prompt (and in any event within 5 days) written notice thereof, and, upon
request of the Lender, the Borrower shall execute and deliver any and all
security documents as the Lender may request to evidence the Lender’s Lien on
such Intellectual Property and the general intangibles of the Borrower relating
thereto or represented thereby,including without limitationan amendment to the
Patent, Trademark and Copyright Security Agreement in a form satisfactory to the
Lender.  In the event Borrower registers any copyright with the U.S.
Copyright Office or similar office or agency, it shall give the Lender prompt
(and in any event within 5 days) written notice thereof, and, upon request of
the Lender, the Borrower shall execute and deliver any and all security
documents as the Lender may request to evidence the Lender’s Lien on such
Intellectual Property and the general intangibles of the Borrower relating
thereto or represented thereby,including without limitationan amendment to the
Patent, Trademark and Copyright Security Agreement in a form satisfactory to the
Lender.  The Borrower hereby authorizes the Lender to amend this
Agreement (without any further action or consent from the Borrower) to include
any such patent, trademark, copyright or application therefor as Collateral
hereunder.


11


(m)          Intellectual Property
Abandonment.Except as approved in writing by the Lender, the
Borrower shall take all actions reasonably necessary to maintain and pursue each
application, to obtain the relevant registration and to maintain the
registration of its Intellectual Property, including the prosecution of patent
applications in due course, the filing of applications for renewal, affidavits
of use, affidavits of noncontestability and opposition and interference and
cancellation proceedings, provided that, to the extent expenditures are required
so to do, the Lender permits the Borrower to use funds in the Certificate of
Deposit to do so (which is in Lender’s sole discretion).




(n)          Protection of Intellectual
Property.In the event that any of the Borrower’s Intellectual
Property is infringed upon, or misappropriated or diluted by a third party, the
Borrower shall notify the Lender promptly after the Borrower learns
thereof.  Except as approved in writing by the Lender, and provided
that the Lender provides funds to Borrower from a source other than the
Certificate of Deposit to do so (which is in Lender’s sole discretion), which
funds Borrower shall have no obligation to repay, the Borrower shall promptly
sue for, and seek recovery of any and all damages resulting from such
infringement, misappropriation or dilution, and shall take such other actions as
the Lender shall deem appropriate or desirable under the circumstances to
protect such Intellectual Property.




(o)          Limitation on Filing of Financing
Statements.The Borrower acknowledges that it is not
authorized to file any financing statement or amendment or termination statement
with respect to any financing statement without the prior consent of the Lender
and agrees that it will not do so without the prior consent of the Lender,
subject to the Borrower’s rights under Section 9-509(d) (2) of the
UCC.  Notwithstanding the foregoing, by signing below the Lender
hereby authorizes and directs the Borrower to file all necessary financing
statements covering the Collateral to perfect the Security Interest granted
hereunder.




(p)          Borrower’s
Location.Without 30 days' prior written notice to the Lender,
(i) not to change Borrower’s name or place of business (or, if Borrower has
more than one place of business, its chief executive office), or the office in
which Borrower’s records relating to accounts receivable and payment intangibles
are kept, and (ii) not to change Borrower’s state of
incorporation.




(q)          Commercial Tort
Claims.  If the Borrower shall at any time hold or acquire a
Commercial Tort Claim, the Borrower shall immediately notify the Lender in a
writing signed by the Borrower of the particulars thereof and grant to the
Lender in such writing a security interest therein and in the Proceeds thereof,
all upon the terms of this Agreement, with such writing to be in form and
substance satisfactory to the Lender.




7.           Event of Default; the Lender’s
Appointment as Attorney-in-Fact.




(a)           Event of
Default.  For purposes of this Agreement, the occurrence of any
one of the following events (each, an “Event of Default”) shall
constitute a default hereunder and under the Note:




(i)           The
Borrower’s failure to pay or discharge the Obligations in full in accordance
with the terms of the Note;




(ii)          A
material breach of any representation or warranty made by the Borrower in this
Agreement or the other Transaction Documents;




(iii)         The
Borrower’s failure to observe or perform any other material covenant,
obligation, condition or agreement contained in this Agreement, the Note or the
other Transaction Documents;


12


(iv)        Any
indebtedness under any bonds, debentures, notes or other evidences of
indebtedness for money borrowed (or any guarantees thereof, excluding the Note
and the other Transactions Documents) by the Borrower in an aggregate principal
amount in excess of $25,000 is not paid when due either at its stated maturity
or upon acceleration thereof, and such indebtedness is not discharged, or such
acceleration is not rescinded or annulled;




(v)         The
commission of any act of bankruptcy by the Borrower, the execution by the
Borrower of a general assignment for the benefit of creditors, the filing by the
Borrower of a petition in bankruptcy or any petition for relief under the
federal bankruptcy act or any other bankruptcy, insolvency or similar law, the
application or consent to the appointment of a receiver or trustee to take
possession of the property or assets of the Borrower, the inability, or the
admission in writing by Borrower of its inability, to pay its debts generally as
they mature, the dissolution or liquidation of the Borrower, or the taking of
any action by the Borrower to effect any of the foregoing;




(vi)        Proceedings
for the appointment of a receiver, trustee, liquidator or custodian of the
Borrower or of all or a substantial part of the property thereof, or an
involuntary case or other proceedings seeking liquidation, reorganization or
other relief with respect to the Borrower or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within 60 days of commencement;




(vii)       Any
Transaction Document or any material term thereof shall cease to be, or be
asserted by the Borrower not to be, a legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms or if the Liens of the Lender
in any of the assets of the Borrower shall cease to be or shall not be valid,
first priority perfected Liens, subject to Permitted Liens, or the Borrower
shall assert that such Liens are not valid, first priority and perfected Liens,
subject to Permitted Liens; or




(viii)      The
Asset Purchase Agreement shall have been terminated for any reason.




(b)           Powers.  The
Borrower hereby appoints each Lender and any officer or agent of such Lender,
with full power of substitution, as its attorney-in-fact with full irrevocable
power and authority in the place of the Borrower and in the name of the Borrower
or its own name, from time to time in the Lender discretion so long as an Event
of Default has occurred and is continuing, for the purpose of carrying out the
terms of this Agreement, to take any appropriate action and to authenticate any
instrument which may be necessary or desirable to accomplish the purposes of
this Agreement.  Without limiting the foregoing, so long as an Event
of Default has occurred and is continuing, the Lender shall have the right,
without notice to, or the consent of, the Borrower, to do any of the following
on the Borrower’s behalf:




(i)           to
pay or discharge any taxes or Liens levied or placed on or threatened against
the Collateral and to pay any indebtedness of the Borrower relating to the
Collateral and to insure, process and preserve the Collateral;




(ii)          to
direct any party liable for any payment under any of the Collateral to make
payment of any and all amounts due or to become due thereunder directly to the
Lender;




(iii)         to
ask for or demand, collect, and receive payment of and receipt for, any payments
due or to become due at any time in respect of or arising out of any
Collateral;




(iv)        to
commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to enforce any right in respect of any
Collateral;


13


(v)         to
defend any suit, action or proceeding brought against the Borrower with respect
to any Collateral;




(vi)        to
settle, compromise or adjust any suit, action or proceeding described in
subsection (v) above and to give such discharges or releases in connection
therewith as the Lender may deem appropriate;




(vii)       to
assign any patent right included in the Collateral of the Borrower (along with
the goodwill of the business to which any such patent right pertains),
throughout the world for such term or terms, on such conditions, and in such
manner, as the Lender shall in their sole discretion shall determine;
and




(viii)      generally,
to sell, transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral and to take, at the Lender’s option and the
Borrower’s expense, any actions which the Lender deem necessary to protect,
preserve or realize upon the Collateral and the Lender’s Liens on the Collateral
and to carry out the intent of this Agreement, in each case to the same extent
as if the Lender were the absolute owner of the Collateral for all
purposes.




The
Borrower hereby ratifies whatever actions the Lender shall lawfully do or cause
to be done in accordance with this Section 5.  This
power of attorney shall be a power coupled with an interest and shall be
irrevocable.




(c)           No Duty on the Lender’s
Part.  The powers conferred on the Lender by this Section 7 are solely to
protect the Lender’s interests in the Collateral and shall not impose any duty
upon it to exercise any such powers.  The Lender shall be accountable
only for amounts that it actually receives as a result of the exercise of such
powers, and neither the Lender nor any of its respective officers, directors,
employees or agents shall be responsible to the Borrower for any act or failure
to act pursuant to this Section
7.  It is further agreed and understood between the parties
hereto that such care as the Lender gives to the safekeeping of its own property
of like kind shall constitute reasonable care of the Collateral when in the
Lender’s possession; provided,
however, that the Lender shall not be required to make any presentment,
demand or protest, or give any notice and need not take any action to preserve
any rights against any prior party or any other person in connection with the
Obligations or with respect to the Collateral.




8.           Performance by the Lender of the
Borrower’s Obligations.  If the Borrower fails to perform or
comply with any of its agreements or covenants contained in this Agreement and
the Lender performs or complies, or otherwise causes performance or compliance,
with such agreement or covenant in accordance with the terms of this Agreement,
then the reasonable expenses of the Lender incurred in connection with such
performance or compliance shall be payable by the Borrower to the Lender on
demand and shall constitute Obligationssecured by this
Agreement.


14


9.           Remedies.  Lender’s Remedies.  If an Event of Default has occurred and is continuing, the
Lender may exercise, in addition to all other rights and remedies granted to
them in this Agreement and in any other instrument or agreement relating to the
Obligations, all rights and remedies of a Lender under the
UCC.  Without limiting the foregoing, the Lender, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law) to or upon the Borrower or any
other person (all of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances require Borrower to assemble the
Collateral and make it available to the Lender at a place to be designated by
the Lender; prior to the disposition of the Collateral, store, process, repair
or recondition it or otherwise prepare it for disposition in any manner and to
the extent the Lender deems appropriate; collect, receive, appropriate and
realize upon any or all of the Collateral, and/or may sell, lease, assign, give
an option or options to purchase, or otherwise dispose of and deliver any or all
of the Collateral (or contract to do any of the foregoing), in one or more
parcels at a public or private sale or sales, at any exchange, broker’s board or
office of any Lender or elsewhere upon such terms and conditions as the Lender
may deem advisable, for cash or on credit or for future delivery without
assumption of any credit risk.  The Lender shall have the right upon
any such public sale or sales and, to the extent permitted by law, upon any such
private sale or sales, to purchase all or any part of the Collateral so sold,
free of any right or equity of redemption in the Borrower, which right or equity
is hereby waived or released.  The Lender shall apply the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable expenses incurred therein or in connection with
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Lender under this Agreement (including, without
limitation, reasonable attorneys’ fees and expenses) to the payment in whole or
in part of the Obligations, in such order as the Lender may elect, and only
after such application and after the payment by the Lender of any other amount
required by any provision of law, need the Lender account for the surplus, if
any, to the Borrower.  To the extent permitted by applicable law, the
Borrower waives all claims, damages and demands it may acquire against the
Lender arising out of the exercise by the Lender of any of its rights
hereunder.  If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least ten days before such sale or other
disposition.  The Borrower shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay the Obligations and the fees and disbursements of any attorneys employed
by the Lender to collect such deficiency.  In furtherance of the
Lender’s rights hereunder, Borrower hereby grants to the Lender an irrevocable,
non-exclusive license, exercisable without royalty or other payment by the
Lender, and only in connection with the exercise of remedies hereunder, to use,
license or sublicense any patent, trademark, trade name, copyright or other
intellectual property in which Borrower now or hereafter has any right, title or
interest together with the right of access to all media in which any of the
foregoing may be recorded or stored.




10.         Application of Initial
Advance.  The proceeds of the Initial Advance shall be paid to
and applied to the payment of costs and expenses reasonably necessary to
preserve the value of the Collateral.




11.         Limitation on Duties Regarding
Preservation of Collateral.  The Lender’s sole duty with
respect to the custody, safekeeping and preservation of the Collateral, under
Section 9-207 of the UCC or otherwise, shall be to deal with it in the same
manner as the Lender deal with similar property for its own
account.  Neither the Lender nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Borrower or otherwise.




12.         Powers Coupled with an
Interest.  All authorizations and agencies contained in this
Agreement with respect to the Collateral are irrevocable and are powers coupled
with an interest.




13.         No Waiver; Cumulative
Remedies.  The Lender shall not by any act (except by a written
instrument pursuant to Section 17(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any default under the Note or in any
breach of any of the terms and conditions of this Agreement.  No
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder shall operate as a waiver
thereof.  No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.  A waiver by the
Lender of any right or remedy under this Agreement on any one occasion shall not
be construed as a bar to any right or remedy which the Lender would otherwise
have on any subsequent occasion.  The rights and remedies provided in
this Agreement are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.


15


14.           Payments Free of Taxes,
Etc.  All payments made by Borrower under the Transaction
Documents shall be made by Borrower free and clear of and without deduction for
any and all present and future taxes, levies, charges, deductions and
withholdings.  In addition, Borrower shall pay upon demand any stamp
or other taxes, levies or charges of any jurisdiction with respect to the
execution, delivery, registration, performance and enforcement of this
Agreement.  Upon request by the Lender, Borrower shall furnish
evidence satisfactory to the Lender that all requisite authorizations and
approvals by, and notices to and filings with, governmental authorities and
regulatory bodies have been obtained and made and that all requisite taxes,
levies and charges have been paid.




15.           Expenses.  Borrower
shall pay on demand all Related Expenses incurred by the Lender in connection
with custody, preservation or sale of, or other realization on, any of the
Collateral or the enforcement or attempt to enforce any of the Obligations which
is not performed as and when required by this Agreement.




16.           Termination of Security
Interest.  Upon satisfaction of the Borrower’s obligations
pursuant to the Note, the security interest granted herein shall terminate and
all rights to the Collateral shall revert to the Borrower.  Upon any
such termination, the Lender shall, at Borrower’s sole expense, authenticate and
deliver to the Borrower such documents as the Borrower may reasonably request to
evidence such termination.




17.           Miscellaneous.




(a)           Amendments and
Waivers.  Any term of this Agreement may be amended with the
written consent of (i) the Borrower and (ii) the Lender; provided, however, that any
affiliate of Lender  purchasing Note from Lender. may become a party
to this Agreement by executing a counterpart of this Agreement without any
amendment of this Agreement pursuant to this paragraph or any consent or
approval of Borrower.  Any amendment or waiver effected in accordance
with this Section 17(a) shall be
binding upon the parties and their respective successors and
assigns.




(b)           Transfer; Successors and
Assigns. The terms and conditions
of this Agreement shall be binding upon the Borrower and its successors and
assigns, as well as all persons who become bound as a Borrower to this Agreement
and inure to the benefit of the Lender and its successors and assigns; provided, however, that
Borrower may not sell, assign or delegate rights and obligations hereunder
without the prior written consent of the Lender.  Nothing in this
Agreement, 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 Agreement,
except as expressly provided in this Agreement.




(c)           Governing Law.  This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of Washington, without giving effect to
principles of conflicts of law.




(d)           Counterparts.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.


16


(e)           Titles and
Subtitles.  The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.




(f)           Notices.  Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon receipt, when delivered personally or by courier, overnight
delivery service, confirmed email or confirmed facsimile, or 48 hours after
being deposited in the U.S. mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such Party’s
address, email address or facsimile numberas set forth below or as
subsequently modified by written notice.




(g)           Severability.  If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as
possible to that under the provision rendered unenforceable.  In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.




(h)           Entire
Agreement.  This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
existing between the parties hereto concerning such subject matter are expressly
canceled.





ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.


[Signature
Page Follows]


17


The
Borrower and the Lender have caused this Agreement to be duly executed and
delivered as of the date first above written.




BORROWER:





INPLAY
TECHNOLOGIES, INC.





By:
                /s/ Van PotterVan
      PotterChief
      Executive Officer





Notice
Information:





Address:
              PO
      Box 28936Scottsdale,
      AZ 85255Email:
              vpotter@inplaytechnologies.com





FINEPOINT
INNOVATIONS, INC.




By:
              /s/ Van PotterVan
      PotterChief
      Executive Officer





Notice
Information:





Address:
              PO
      Box 28936Scottsdale,
      AZ 85255Email:
              vpotter@inplaytechnologies.com





LENDER:





WACOM
CO. LTD.





By:
              /s/ Masahiko YamadaMasahiko
      Yamada





Notice
Information:





Address:
Harmony Tower 21F


1-32-2
      Hon-cho, Nakano-kuTokyo
      164-0012 JapanFax:
              +81
      (3) 5309-1503Email