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EXHIBIT 6.10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT ("AGREEMENT"), dated as of the 6th day of May,
1999, is made and entered into on the terms and conditions hereinafter set
forth, by and between MIRACOM CORPORATION, a Nevada corporation authorized to do
business in Florida ("BORROWER"), and XXXXXX X. XXXXXXX, TRUSTEE FOR THE XXXXXX
X. XXXXXXX REVOCABLE TRUST, DATED FEBRUARY 3, 1998 ("LENDER").
W I T N E S S E T H:
WHEREAS, Borrower has requested and Lender has agreed to make available
to Borrower a term loan in the original principal amount of Three Hundred Fifty
Thousand and No/100ths Dollars ($350,000.00) (the "LOAN") on the terms and
conditions hereinafter set forth, and for the purpose(s) hereinafter set forth;
and
WHEREAS, in order to induce Lender to make the Loan to Borrower,
Borrower has made certain representations to Lender; and
WHEREAS, Lender, in reliance upon the representations and inducements
of Borrower, has agreed to make the Loan upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the agreement of Lender to make the
Loan, the mutual covenants and agreements hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
ARTICLE I
THE LOAN
Section 1.1 COMMITMENT; EVIDENCE OF LOAN INDEBTEDNESS AND REPAYMENT.
Subject to the terms and conditions hereof, Lender agrees to make the Loan to
Borrower by wire transfer in immediately available funds to Borrower's
Construction Escrow Agent (as hereinafter defined), or other third-party account
as mutually agreed between Lender and Borrower. The Loan shall be evidenced by a
Promissory Note in the original principal amount of Three Hundred Fifty Thousand
and No/100ths Dollars ($350,000.00), substantially in the form of EXHIBIT A
attached hereto and incorporated herein by this reference (the "NOTE"), dated
the Closing Date (as defined in Section 1.3 hereof), executed by Borrower, in
favor of Lender. The Loan shall be conditionally guaranteed by Xxxxx Xxxxx and
shall be payable in accordance with the terms of the Note.
Section 1.2 OPERATIVE DOCUMENTS. (a) As further inducement for Lender
to extend the Loan,
(i) Borrower shall execute a Mortgage and Security Agreement in
favor of Lender,
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which shall be filed in the public records of Seminole County,
Florida (the "MORTGAGE"), granting to Lender a first lien in
Borrower's real property, together with the fixtures located
thereon or attached thereto, all as more particularly
described in the Mortgage, in the form of EXHIBIT B attached
hereto and incorporated herein by reference ("Property");
(ii) XxxxxXxxxxx Investments, Inc. and/or Xxxxx Xxxxx, Xxxxx
XxXxxxx, Xxxxxxx Xxxxx, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxx
(hereinafter collectively referred to as "Pledgors") shall
enter into a Pledge and Security Agreement, substantially in
the form of EXHIBIT C attached hereto and incorporated herein
by this reference (the "PLEDGE AGREEMENT") with Lender
pursuant to which Pledgors will grant to Lender a security
interest in and to One Hundred Thousand (100,000) shares of
Common Stock of Borrower owned by Pledgors, which stock shall
be placed in escrow with Xxxxxxxxx Xxxxxxx, P.A. (the "Stock
Escrow Agent"), pursuant to an escrow agreement, the form of
which is attached to the Pledge Agreement. The parties hereto
acknowledge that XxxxxXxxxxx Investments, Inc. shall pledge
all of its stock in Borrower up to a maximum of One Hundred
Thousand (100,000) shares of Common Stock of Borrower. To the
extent XxxxxXxxxxx Investments, Inc. holds less than One
Hundred Thousand (100,000) shares of Common Stock of Borrower,
the remaining Pledgors will pledge the number of shares of
Common Stock of Borrower that is equal to the difference
between one hundred thousand (100,000) and the number of
shares pledged by XxxxxXxxxxx Investments, Inc., pro-rata as
their interests appear in the Borrower. The parties further
acknowledge that because the number of shares which
XxxxxXxxxxx Investments, Inc. will acquire in Borrower cannot
be determined until such time as Borrower has received an
appraisal on the Property, the shares shall be deposited with
the Stock Escrow Agent and the Stock Pledge Agreement shall be
finalized within thirty (30) days of the Closing. Failure on
the part of the Pledgors to deposit the stock with Stock
Escrow agent shall be an Event of Default hereunder;
(iii) Lender, Borrower and Advanced Investment Corporation, as
escrow agent ("Construction Escrow Agent") shall enter into an
Escrow Agreement, substantially in the form of EXHIBIT D
attached hereto and incorporated herein by this reference the
"ESCROW AGREEMENT"), which shall provide that the loan
proceeds shall be deposited into an account with Escrow Agent
and the funds shall be disbursed in accordance with the terms
and conditions of such Escrow Agreement.
(b) This Agreement, the Note, the Mortgage, the Pledge Agreement and
the Escrow Agreement, and any other instruments and documents executed by
Borrower, including any exhibits thereto, now or hereafter evidencing, securing
or in any way related to the indebtedness evidenced by the Note are herein
individually referred to as an "OPERATIVE DOCUMENT" and collectively referred to
as the "OPERATIVE DOCUMENTS."
Section 1.3 CLOSING DATE. The closing (the "CLOSING") with respect to
the borrowing under this Agreement will take place at the offices of
__________________________________ at 10:00 A.M., Orlando, Florida time on
______________, or such later date as Borrower and Lender shall agree (the
"CLOSING DATE"). Upon the Closing, Lender shall disburse the loan proceeds by
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federal funds wire transfer in immediately available funds and to the accounts
and in the amounts in accordance with Borrower's written instructions, received
twenty-four (24) hours prior to the Closing Date.
Section 1.4 LOAN FEE. Borrower shall pay Lender on the Closing Date a
loan fee payable as follows:
Borrower shall issue to Lender an option to acquire Fifty
Thousand (50,000) shares of Common Stock of Borrower exercisable immediately for
total consideration of ten dollars ($10.00) per option agreement for a period of
three (3) years. Lender acknowledges and agrees that the Common Stock issuable
upon the exercise of the option will be restricted securities and may be sold
only if registered under the Securities Act of 1933, as amended (the "Act") or
if an exemption from registration is available.
Section 1.5 BROKER FEE. Borrower shall be responsible to pay a broker's
fee to Advanced Investment Corp., an Oregon corporation ("Broker") and Xxxxxxx
Xxxxx, a licensed employee of Broker, on the Closing Date payable as follows:
(a) Borrower shall issue to Broker Twenty Eight Thousand (28,000)
shares of Common Stock of Borrower.
(b) Borrower shall issue to Xxxxxxx Xxxxx Twelve Thousand (12,000)
shares of Common Stock of Borrower.
Section 1.6. PREPAYMENT. Borrower may prepay the indebtedness evidenced
by the Note in whole or in part at any time and from time to time, without
penalty or premium.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower hereby represents and warrants to Lender as follows:
Section 2.1 CORPORATE STATUS. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, is duly qualified and in good standing under the laws of the State of
Florida, and has the corporate power to own and operate its properties, to carry
on its business as now conducted and to enter into and to perform its
obligations under this Agreement, the Note and the other Operative Documents.
Section 2.2 AUTHORIZATION. The Borrower has full legal right, power and
authority to enter into and perform its obligations under this Agreement, the
Note and the other Operative Documents, without the consent or approval of any
other person, firm, governmental agency or other legal entity. The execution and
delivery of this Agreement, the execution and delivery of the Note, the
execution and delivery of each other document in connection herewith or
therewith to which Borrower is a party, and the performance by Borrower of its
obligations hereunder and/or thereunder are within the corporate powers of
Borrower and have been duly authorized by all necessary
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corporate action properly taken. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do not
and will not contravene or conflict with the articles of incorporation or bylaws
of Borrower or any material agreement to which Borrower is now a party or by
which its properties is bound, or constitute a default thereunder, or results in
the creation or imposition of any lien, charge, security interest, or
encumbrance of any nature upon any of the property or assets of Borrower
pursuant to the terms of any such agreement or instrument. The officer(s)
executing this Agreement, the Note and the other Operative Documents is duly
authorized to act on behalf of Borrower.
Section 2.3 TITLE TO PROPERTY. The Borrower has good and marketable
title to the Property securing the Mortgage, free and clear of all liens,
security interests, pledges, encumbrances, except for the Permitted Exceptions
as set forth in the title commitment issued on Buyer's behalf pertaining to the
acquisition of the Property.
Section 2.4 FEES/COMMISSIONS. Except as disclosed herein, the Borrower
has not agreed to pay any finder's fee, commission, loan fee or other fee or
charge to any person or entity with respect to the loan and investment
transactions contemplated hereunder.
ARTICLE III
COVENANTS AND AGREEMENTS
From and after the Closing Date and continuing during the term of this
Agreement:
Section 3.1 USE OF PROCEEDS. The Borrower shall use the proceeds of the
Note to acquire the Property and to construct the improvements to the building
situated on the Property.
Section 3.2 PAYMENT OF OBLIGATIONS. The Borrower shall pay the
indebtedness evidenced by the Note according to the terms thereof, and shall
timely pay or perform, as the case may be, all of the other obligations of
Borrower to Lender, direct or contingent, however evidenced or denominated, and
however and whenever incurred, including but not limited to indebtedness
incurred pursuant to any present or future commitment of Lender to Borrower,
together with interest thereon, and any extensions, modifications,
consolidations and/or renewals thereof and any notes given in payment thereof.
Section 3.3 CORPORATE EXISTENCE, ETC. The Borrower will preserve and
keep in force and effect its corporate existence and good standing in the State
of Nevada and its qualification to conduct business in the State of Florida, and
all licenses and permits necessary to the proper conduct of its business.
ARTICLE IV
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF LENDER
The obligation of Lender to fund the Loan on Closing Date is subject to
the fulfillment, on or prior to the Closing Date, of each of the following
conditions:
Section 4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of
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Borrower contained in this Agreement and in any Exhibit hereto or any document
or instrument delivered to Lender or its representatives hereunder, shall have
been true and correct when made and shall be true and correct as of the Closing
Date as if made on such date, except to the extent such representations and
warranties expressly relate to a specific date. The Borrower shall have duly
performed all of the covenants and agreements to be performed by it hereunder on
or prior to the Closing Date.
Section 4.2 DELIVERIES BY/ON BEHALF OF BORROWER. The following executed
documents shall have been delivered and received:
(a) NOTE. The Borrower shall have delivered to Lender the Note
executed by Borrower, in the form of EXHIBIT A attached hereto and
incorporated herein by this reference.
(b) MORTGAGE. Borrower shall have delivered to Lender for
recording a Mortgage and Security Agreement in the Form attached hereto
as EXHIBIT B.
(c) STOCK OPTION AGREEMENT. Borrower shall have delivered to
Lender a Stock Option Agreement executed by the Borrower, substantially
in the form of EXHIBIT E attached hereto and incorporated herein by
this reference.
(d) ESCROW AGREEMENT FOR MONEY. The Borrower shall have
delivered to Lender an escrow agreement, executed by Borrower and the
Escrow Agent, substantially in the form of EXHIBIT D attached hereto
and incorporated herein by this reference.
(e) PLEDGE AND SECURITY AGREEMENT. Borrower shall have
delivered to Lender a Pledge and Security Agreement, executed by
Borrower, and related stock certificates and undated stock powers,
executed in blank by Borrower, substantially in the form of EXHIBIT C
attached hereto and incorporated herein by this reference.
(f) ESCROW AGREEMENT FOR STOCK. Borrower shall have delivered
to Lender an escrow agreement for the stock pledged in the form
attached to the Stock Pledge Agreement; provided, however, that the
number of shares shall not be completed and the shares shall not be
deposited with Stock Escrow Agent until thirty (30) days after the
Closing.
(g) EXISTENCE AND AUTHORITY. The Borrower shall have delivered
to Lender the following certificates of public officials, in each case
as of a recent date:
(i) the certificate of incorporation of Borrower,
certified by the Secretary of State or other appropriate
official in the jurisdiction Borrower is incorporated;
(ii) a copy of Borrower's qualification to do
business in Florida, certified by the Secretary of State of
Florida; and
(iii) certificates as to the legal existence and good
standing of Borrower issued by the Secretary of State of
Nevada and the Secretary of State of Florida.
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(h) MISCELLANEOUS DOCUMENTS. Such other documentation as may
be reasonably necessary to effectuate this transaction.
Section 4.3 WAIVER OF CONDITIONS. If on the Closing Date Borrower fails
to execute and deliver to Lender the Note or if the conditions specified in this
ARTICLE IV have not been fulfilled, Lender may thereupon elect to be relieved of
all further obligations under this Agreement. Without limiting the foregoing, if
the conditions specified in this ARTICLE IV have not been fulfilled, Lender may
waive compliance by Borrower with any such condition to such extent as Lender,
in Lender's sole discretion, may determine. Nothing in this Section 4.3 shall
operate to relieve Borrower of any of its obligations hereunder or to waive any
of Lender's rights against Borrower.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BORROWER
The obligation of Borrower to close the Loan on the Closing Date is
subject to the fulfillment, on or prior to the Closing Date, of each of the
following conditions:
Section 5.1 DELIVERIES BY/ON BEHALF OF LENDER. The following executed
documents shall have been delivered and received:
(a) STOCK OPTION AGREEMENT. Lender shall have delivered to
Borrower a Stock Option Agreement executed by Lender, substantially in
the form of EXHIBIT E attached hereto and incorporated herein by this
reference.
(b) ESCROW AGREEMENT FOR CONSTRUCTION. Lender shall have
delivered to Borrower an escrow agreement, executed by Lender and the
Escrow Agent, substantially in the form of EXHIBIT D attached hereto
and incorporated herein by this reference.
(c) PLEDGE AND SECURITY AGREEMENT. Lender shall have delivered
to Borrower a Pledge and Security Agreement, executed by Lender,
substantially in the form of EXHIBIT C attached hereto and incorporated
herein by this reference.
(d) ESCROW AGREEMENT FOR STOCK. Lender shall have delivered to
Borrower an escrow agreement executed by Lender with respect to the
stock pledged pursuant to the Stock Pledge Agreement; provided,
however, that the number of shares shall not be completed and the
shares shall not be deposited with Stock Escrow Agent until thirty (30)
days after the closing.
(e) MISCELLANEOUS DOCUMENTS. Such other documentation as may
be reasonably necessary to effectuate this transaction.
Section 5.2 DELIVERY OF FUNDS. Lender shall wire Three Hundred Fifty
Thousand and No/100ths Dollars ($350,000.00) to Construction Escrow Agent's
account, or such other third-party account as Borrower and Lender may designate.
Section 5.3 WAIVER OF CONDITIONS. If on the Closing Date Lender has not
fulfilled the
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conditions specified in this ARTICLE V, Borrower may thereupon elect to be
relieved of all further obligations under this Agreement. Without limiting the
foregoing, if the conditions specified in this ARTICLE V have not been
fulfilled, Borrower may waive compliance by Lender with any such condition to
such extent as Borrower, in Borrower's sole discretion, may determine. Nothing
in this Section 5.3 shall operate to relieve Lender of any of its obligations
hereunder or to waive any of Borrower's rights against Lender.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.1 EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an event of default hereunder (an "Event of Default"):
(a) Default in the payment of the principal of or interest on
the indebtedness evidenced by the Note in accordance with the terms of
the Note;
(b) Failure of Pledgors to deliver stock and Stock Pledge
Agreement to Stock Escrow Agent within thirty (30) days of the date of
Closing;
(c) Borrower (i) shall make an assignment for the benefit of
creditors or petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its
assets; or (ii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (iii) shall have had a petition in bankruptcy
or insolvency, or for reorganization, or for the appointment of a
receiver or trustee of all or a portion of its property filed against
it in any court, pursuant to any statute of the United States or of any
State, and any such proceeding shall not be dismissed within sixty (60)
days following the commencement thereof;
(d) Borrower shall be liquidated, dissolved, partitioned or
terminated, or the charter thereof shall expire or be revoked; or
(e) An Event of Default shall occur under this Agreement or
any of the other Operative Documents and, if subject to a cure right,
such Event of Default shall not be cured within the applicable cure
period.
With respect to any Event of Default described above that is capable of
being cured and that does not already provide its own cure procedure (a "CURABLE
DEFAULT"), the occurrence of such Curable Default shall not constitute an Event
of Default hereunder if such Curable Default is fully cured and/or corrected
within thirty (30) days of notice thereof to Borrower given by Lender in
accordance with the provisions hereof.
Section 6.2 RIGHT TO CURE BY XXXXXXXXXXX INVESTMENTS, INC. Lender and
Borrower hereby acknowledge that XxxxxXxxxxx Investments, Inc., as a shareholder
of Borrower, shall benefit from the granting of the Loan from Lender to
Borrower. Consequently, notwithstanding anything contained herein to the
contrary, Lender hereby agrees that XxxxxXxxxxx Investments, Inc. shall be
provided
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with any and all notices regarding a default under the Note or the Mortgage, so
that XxxxxXxxxxx Investments, Inc. may, although it is under no obligation to,
remedy such defaults by or on behalf of Borrower.
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Section 6.3 ACCELERATION OF MATURITY; REMEDIES. Upon the occurrence of
any Event of Default described in subsection 6.1 which is not cured within the
applicable cure period provided therein, the indebtedness evidenced by the Note
shall be immediately due and payable in full, and Lender at any time thereafter
may at its option accelerate the maturity of the indebtedness evidenced by the
Note, with thirty (30) days prior written notice to Borrower and XxxxxXxxxxx
Investments, Inc. Upon the occurrence of any such Event of Default and the
acceleration of the maturity of the indebtedness evidenced by the Note:
(a) Lender shall exercise any and all remedies it may have
under the Operative Documents with respect to the pledged stock and the
Property;
(b) Thereafter, Lender shall be immediately entitled to
exercise any and all rights and remedies possessed by Lender pursuant
to the terms of the Note and all of the other Operative Documents,
including without limitation filing a foreclosure action with respect
to the Property;
(c) To the extent that Lender has exhausted its remedies in
accordance with provision 6.3(a) and (b) herein, Lender may look to
Xxxxx Xxxxx, conditional guarantor of the Loan, to satisfy the
remaining obligations; and
(d) Lender shall have any and all other rights and remedies
that Lender may now or hereafter possess at law, in equity or by
statute.
Section 6.4 REMEDIES CUMULATIVE; NO WAIVER. No right, power or remedy
conferred upon or reserved to Lender by this Agreement or any of the other
Operative Documents is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder, under any of the other Operative Documents or now or hereafter
existing at law, in equity or by statute. No delay or omission by Lender to
exercise any right, power or remedy accruing upon the occurrence of any Event of
Default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein, and every right, power and remedy given by this Agreement and the other
Operative Documents to Lender may be exercised from time to time and as often as
may be deemed expedient by Lender.
Section 6.5 PROCEEDS OF REMEDIES. Any or all proceeds resulting from
the exercise of any or all of the foregoing remedies shall be applied as set
forth in the Operative Document(s) providing the remedy or remedies exercised;
if none is specified, or if the remedy is provided by this Agreement, then as
follows:
First, to the costs and expenses, including without limitation
reasonable attorney's fees, incurred by Lender in connection with the
exercise of its remedies;
Second, to the expenses of curing the default that has
occurred, in the event that Lender elects, in its sole discretion, to
cure the default that has occurred;
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Third, to the payment of the obligations of Borrower under the
Operative Documents (the "OBLIGATIONS"), including but not limited to
the payment of the principal of and interest on the indebtedness
evidenced by the Note, in such order of priority as Lender shall
determine in its sole discretion; and
Fourth, the remainder, if any, to Borrower or to any other
person lawfully thereunto entitled.
ARTICLE VII
TERMINATION
Section 7.1 TERMINATION OF THIS AGREEMENT. This Agreement shall remain
in full force and effect until the payment by Borrower of all amounts owed to
Lender, at which time Lender shall cancel the Note and deliver it to Borrower;
PROVIDED, HOWEVER, that if at any time Borrower has satisfied all obligations to
Lender, Borrower may terminate this Agreement by providing written notice to
Lender.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 PERFORMANCE BY LENDER. If Borrower shall default in the
payment, performance or observance of any covenant, term or condition of this
Agreement, which default is not cured within the applicable cure period by
Borrower or XxxxxXxxxxx Investments, Inc., then Lender may, at its option, pay,
perform or observe the same, and all payments made or costs or expenses incurred
by Lender in connection therewith (including but not limited to reasonable
attorney's fees), with interest thereon at the highest default rate provided in
the Note (if none, then at the maximum rate from time to time allowed by
applicable law), shall be immediately repaid to Lender by Borrower and shall
constitute a part of the Obligations. Lender shall be the sole judge of the
necessity for any such actions and of the amounts to be paid.
Section 8.2 SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever in
this Agreement one of the parties hereto is named or referred to, the heirs,
legal representatives, successors, successors-in-title and assigns of such
parties shall be included, and all covenants and agreements contained in this
Agreement by or on behalf of Borrower or by or on behalf of Lender shall bind
and inure to the benefit of their respective heirs, legal representatives,
successors-in-title and assigns, whether so expressed or not.
Section 8.3 ASSIGNMENT. The Note, this Agreement and the other
Operative Documents may be endorsed, assigned and/or transferred in whole or in
part by Lender, and any such holder and/or assignee of the same shall succeed to
and be possessed of the rights and powers of Lender under all of the same to the
extent transferred and assigned. Borrower may assign its rights and delegate its
duties hereunder or under any of the other Operative Documents with the prior
written consent of Lender, which shall not be unreasonably withheld; provided,
however, that Borrower may assign its rights and obligations hereunder to an
affiliated entity without the consent of Lender.
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Section 8.4 TIME OF THE ESSENCE. Time is of the essence with respect to
each and every covenant, agreement and obligation of Borrower hereunder and
under all of the other Operative Documents.
Section 8.5 SEVERABILITY. If any provision(s) of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
Section 8.6 INTEREST AND LOAN CHARGES NOT TO EXCEED MAXIMUM ALLOWED BY
LAW. Anything in this Agreement, the Note or any of the other Operative
Documents to the contrary notwithstanding, in no event whatsoever, whether by
reason of advancement of proceeds of the Loan, acceleration of the maturity of
the unpaid balance of the Loan or otherwise, shall the interest and loan charges
agreed to be paid to Lender for the use of the money advanced or to be advanced
hereunder exceed the maximum amounts collectible under applicable laws in effect
from time to time. It is understood and agreed by the parties that, if for any
reason whatsoever the interest or loan charges paid or contracted to be paid by
Borrower in respect of the indebtedness evidenced by the Note shall exceed the
maximum amounts collectible under applicable laws in effect from time to time,
then IPSO FACTO, the obligation to pay such interest and/or loan charges shall
be reduced to the maximum amounts collectible under applicable laws in effect
from time to time, and any amounts collected by Lender that exceed such maximum
amounts shall be applied to the reduction of the principal balance of the
indebtedness evidenced by the Note and/or refunded to Borrower so that at no
time shall the interest or loan charges paid or payable in respect of the
indebtedness evidenced by the Note exceed the maximum amounts permitted from
time to time by applicable law.
Section 8.7 ARTICLE AND SECTION HEADINGS; DEFINED TERMS. Numbered and
titled article and section headings and defined terms are for convenience only
and shall not be construed as amplifying or limiting any of the provisions of
this Agreement.
Section 8.8 NOTICES. Any and all notices, elections or demands
permitted or required to be made under this Agreement shall be in writing,
signed by the party giving such notice, election or demand and shall be
delivered personally, telecopied, telexed, or sent by certified mail or
overnight via nationally recognized courier service (such as Federal Express),
to the other party at the address set forth below, or at such other address as
may be supplied in writing and of which receipt has been acknowledged in
writing. The date of personal delivery or telecopy or two (2) business days
after the date of mailing (or the next business day after delivery to such
courier service), as the case may be, shall be the date of such notice, election
or demand. For the purposes of this Agreement:
The Address of Lender is: Xxxxxx X. Xxxxxxx, Trustee for the
Xxxxxx X. Xxxxxxx Revocable Trust
Dated February 3, 1998
c/o Advanced Investment Corp.
321 Good Pasture Island Road
Xxxxxx, Xxxxxx 00000
Attention: Xxxx Xxxx
Telecopy No.: (000) 000-0000
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with a copy to: Xxxxxxx X. Xxxxxxx, P.C.
000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxxx 00000
The Address of Borrower is: Miracom Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx XxXxxxx, President
Telecopy No.: (000) 000-0000
with a copy to: XxxxxXxxxxx Investments, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxxxx Traurig, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Section 8.9 ENTIRE AGREEMENT. This Agreement and the other written
agreements between Borrower and Lender represent the entire agreement between
the parties concerning the subject matter hereof, and all oral discussions and
prior agreements are merged herein; provided, if there is a conflict between
this Agreement and any other document executed contemporaneously herewith with
respect to the Obligations, the provision of this Agreement shall control.
Section 8.10 GOVERNING LAW AND AMENDMENTS. This Agreement and all of
the other Operative Documents shall be construed and enforced under the laws of
the State of Florida applicable to contracts to be wholly performed in such
State. No amendment or modification hereof shall be effective except in a
writing executed by each of the parties hereto.
Section 8.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any of the Loan documents
or made by or furnished on behalf of Borrower in connection herewith or in any
of the other Operative Documents shall survive the execution and delivery of
this Agreement and all other Operative Documents.
Section 8.12 JURISDICTION AND VENUE. Borrower and Lender hereby consent
to the jurisdiction of the courts located in Seminole County, State of Florida
and the United States District Court for the Middle District of Florida, Orlando
Division, as well as to the jurisdiction of all courts from which an appeal may
be taken from such courts, for the purpose of any suit, action or other
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proceeding arising out of any of its obligations arising under this Agreement or
any other Operative Documents or with respect to the transactions contemplated
hereby, and expressly waives any and all objections it may have as to venue in
any of such courts.
Section 8.13 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
Section 8.14 CONSTRUCTION AND INTERPRETATION. Should any provision of
this Agreement require judicial interpretation, the parties hereto agree that
the court interpreting or construing the same shall not apply a presumption that
the terms hereof shall be more strictly construed against one party by reason of
the rule of construction that a document is to be more strictly construed
against the party that itself or through its agent prepared the same, it being
agreed that Borrower, Lender and their respective agents have participated in
the preparation hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers, as
of the day and year first above written.
LENDER:
-------
XXXXXX X. XXXXXXX, TRUSTEE FOR THE
XXXXXX X. XXXXXXX REVOCABLE TRUST
DATED FEBRUARY 3, 1998
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
BORROWER:
---------
MIRACOM CORPORATION,
a Nevada corporation
By: /s/ Xxxxx XxXxxxx
------------------------------
Name: Xxxxx XxXxxxx
Title: President
(Corporate Seal)
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