AGREEMENT FOR SECURED LINE OF CREDIT
THIS AGREEMENT FOR SECURED LINE OF CREDIT ("Agreement") is made and entered
into effective as of the 27th day of December 2004, by and between Dynasig
Corporation, an Arizona corporation with a place of business at 00000 Xxxxx
Xxxxx Xxxxx Xxxxxx Xxxx., Xxxxxxxxxx, XX 00000 ("Maker") and Visitalk Capital
Corporation, an Arizona corporation, with a place of business at 00000 X. 00xx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Lender").
RECITALS
A. Maker desires to obtain funding in anticipation of additional equity
funding.
B. Lender may be willing to provide the additional financing needed by
Maker up to $100,000 through a line of credit on a secured basis, pursuant to
the terms and conditions of this Agreement (the "Line of Credit"); and
C. A necessary precondition for Lender entering into this Agreement is
for the Maker to execute this Agreement, a Security Agreement granting a
security interest in favor of the Lender in all personal property owned by Maker
(the "Security Agreement") and a UCC-1 Financing Statement (collectively
referred to hereinafter as the "Loan Documents").
AGREEMENTS
In consideration of the above recitals, the following representations,
warranties, covenants and conditions, and other good and valuable consideration,
the receipt of which is acknowledged, the parties agree as follows:
SECTION ONE
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REPRESENTATIONS, WARRANTIES AND AFFIRMATIVE COVENANTS
Maker represents, warrants, and covenants that:
(1) Maker has been duly incorporated and organized and is existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and is duly qualified and in good standing as a foreign corporation in those
jurisdictions where the conduct of its business or the ownership of its
properties requires qualification; Maker has the power and authority to own the
property that shall serve as collateral for all of the advances and loans made
by Lender to Maker (the "Collateral"), pursuant to this Agreement and any
Secured Promissory Note, to enter into and perform this Agreement, and any other
document or instrument delivered in connection herewith.
(2) Maker has good title to the Collateral and is the legal and beneficial
owner thereof; Maker warrants and will, at its own expense, defend Lender's
security interest in and to the Collateral against the claims of any other
person; Maker has not otherwise assigned, transferred or granted a security
interest in the Collateral or any right or interest therein and has not executed
any other instrument, and is not subject to any restriction, which might prevent
or limit Lender from enjoying the benefits of this Agreement;
(3) Maker will not further assign, transfer or grant or suffer to exist a
security interest in the Collateral or any other right, encumbrance, charge or
other interest therein, except to Lender or an affiliate thereof or in
connection with a transaction as a result of which the Line of Credit and any
other amounts due and owing to Lender or its nominee are repaid in full and the
Line of Credit terminated;
(4) This Agreement has been duly authorized, executed and delivered,
constitutes the valid and binding obligation of Maker and is enforceable in
accordance with its terms;
(5) Maker will promptly (but not later than three days after receipt
thereof) deliver to Lender copies of all written notices received with respect
to the Collateral;
(6) Maker shall execute, acknowledge, deliver, record and file such further
instruments and do such further acts (including delivery of financing
statements) as Lender in its sole and absolute judgment deems necessary,
desirable or proper to carry out the purposes of this Agreement and to subject
to the security interest created hereby any property intended to be covered
hereby;
(7) No event has occurred (including, specifically, Maker's execution,
delivery of and performance under this Agreement) which will violate, constitute
(with notice and/or lapse of time) a default under, or result in the imposition
of any lien or other encumbrance upon, the Collateral pursuant to the terms of
(i) any judgment, decree, order, statute, ordinance, or regulation applicable to
Maker or any of the Collateral or (ii) any other contract or agreement to which
Maker is a party or by which its assets are bound;
(8) Maker is fully familiar with all the terms and conditions of this
Agreement;
(9) Maker has not changed its name or the location of its chief place of
business or chief executive office disclosed herein as Maker's Address or the
location of its records with respect to Receivables, as that term is defined in
the Security Agreement, the location of any returns of Inventory, as that term
is defined in the Security Agreement, the location of any of the Inventory, the
location of the Equipment, as that term is defined in the Security Agreement,
and the location of any records and documents regarding the General Intangibles,
as that term is defined in the Security Agreement;
(10) Maker will permit Lender, through its authorized attorneys, accountants
and representatives, access to all of its business premises and offices to
inspect and examine the Collateral and the books, accounts, records, ledgers and
assets of every kind and description of Maker with respect thereto at all
reasonable times;
(11) The Maker has not filed and has not had filed against it a petition for
relief under Title 11 of the United States Bankruptcy Code;
(12) Maker has paid and is current on all payroll taxes and all taxes
or assessments levied and assessed or imposed upon its property or income as
well as all claims which, if unpaid, might by law become a lien or charge upon
its property or income;
(13) Maker will furnish to Lender a consolidated profit and loss
statement and statement of shareholders' equity of the Maker and any
subsidiaries, all in conformance with GAAP, for each year of Maker's operations
and for each month that this Agreement is in force and a consolidated balance
sheet for the Maker and any subsidiaries, all in conformance with GAAP, as of
the last day of each fiscal year of its operations and for each month that this
Agreement is in force. All such financial statements and balance sheets shall
be properly footnoted to the satisfaction of Lender and each such financial
statement shall be certified as correct by the Chief Accounting Officer of
Maker; and
(14) Maker will furnish to Lender such additional financial statements
and such data and information concerning the financial condition of Maker as may
reasonably be requested by Lender, including but not limited to a detailed
monthly listing of inventory, accounts payable and accounts receivable.
SECTION TWO
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AMOUNT OF LOAN
Until further notice, and on the condition that Maker not be in default
with respect to any of the terms of this Agreement, or with respect to any
outstanding note evidencing any advance made under this Agreement, Lender, in
its sole discretion, may make available to Maker the Line of Credit not to
exceed One Hundred Thousand Dollars ($100,000.00).
SECTION THREE
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TERMS OF LOAN
Maker may from time to time request Lender to loan or advance amounts to
Maker and Lender shall make such loan or advance up to the amount of the Line of
Credit, provided that Maker has complied with Section Five below. Lender may
waive any of the conditions in Section Five in its sole discretion. Lender is
not required, but may decide at its discretion, to make such loan or advance to
Maker. In the event that Lender elects to make such loan or advance, at the
time of each such borrowing Maker shall execute and deliver to Lender a new
Secured Promissory Note payable to Lender in order to evidence each such new
loan or advance (the "Secured Promissory Note(s)"). Each Secured Promissory
Note shall be in the form of Exhibit "A" hereto, with blanks suitably filled,
shall be dated the date of the borrowing and shall mature on or before *. Such
note may be extended as provided below. All amounts advanced or loaned by
Lender hereunder and under each Secured Promissory Note shall bear interest from
the date the funds are advanced (the "Funding Date") until paid at the rate of
twelve percent (12%) per annum (the "Stated Rate"), however, in the event that
applicable law may limit the amount of interest that may be charged under this
Agreement and the Secured Promissory Notes, the Stated Rate shall be at the
highest rate allowed by applicable law. Interest shall be calculated on the
basis of a 360 day year consisting of twelve 30 day months. All amounts are
payable in lawful money of the United States. Interest under each Secured
Promissory Note shall accrue at the Stated Rate beginning on the Funding Date.
All unpaid principal, interest and other amounts payable in connection with the
Notes shall be due and payable on *, the "Loan Maturity").
SECTION FOUR
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TERMINATION OF AGREEMENT
This Agreement, each of the Loan Documents and each of the other related
agreements, documents and instruments executed or entered into in connection
herewith or therewith, and the rights and obligations of each of the parties
hereunder and thereunder shall terminate and be of no further force or effect,
with the exception of the rights granted to Lender pursuant to the terms of the
Rights Agreement, on the earlier of (a) the date that all amounts due and owing
under this Agreement and/or each of executed Secured Promissory Notes or any of
the other Loan Documents, including but limited to principal, interest, late
charges, fees, costs or penalties have been paid in full to Lender (the
"Termination Date"). Upon such termination, Lender shall (and Lender shall
cause its nominees, other loan participants and any affiliates that have any
rights under this Agreement or any of the Loan Documents to) execute,
acknowledge, deliver, record and/or file any and documents, releases,
termination of security interest statements and the like, execute, deliver,
record and/or file such documents of reassignment, reconveyance and the like,
and take any and all actions reasonably requested by Maker as may be necessary
or advisable to release all security interests, liens, charges and the like on
the assets of Maker, any securities of Maker or which otherwise arise under or
with respect to this Agreement, the Loan Documents or any such related
agreements, documents or instruments.
SECTION FIVE
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CONDITIONS FOR LOANS AND ADVANCES
AND USE OF PROCEEDS
It is specifically understood and agreed that Lender will only make loans
and advance funds to Maker if Maker satisfies the following conditions and meets
the following benchmarks:
(1) Maker is not in default under the terms and conditions of this
Agreement or any of the other Loan Documents as defined above;
(2) No condition exists which, but for the giving of notice or the
lapse of time or both, would constitute a default under the terms and conditions
of this Agreement or any of the other Loan Documents as defined above;
(3) The Maker has not filed and has not had filed against it a petition
for relief under Title 11 of the United States Bankruptcy Code;
(4) The Maker utilized all funds from prior advances or loans made by
Lender in the manner set forth below;
(5) The Maker has furnished to Lender a consolidated profit and loss
statement and statement of shareholders' equity, all in conformance with GAAP,
of the Maker and any subsidiaries for each year of Maker's operations within
sixty (60) days of the execution of this Agreement and for each month that this
Agreement is in force and a consolidated balance sheet, in conformance with
GAAP, for the Maker and any subsidiaries as of the last day of each fiscal year
of its operations and for each month that this Agreement is in force. All such
financial statements and balance sheets shall have been properly footnoted to
the satisfaction of Lender and each such financial statement shall have been
certified as correct by the Chief Accounting Officer of Maker;
(6) The Maker has furnished to Lender such additional financial
statements and such data and information concerning the financial condition of
the Maker as may reasonably be requested by Lender;
(7) Maker has paid and is current on all payroll taxes and is current
on all payroll taxes all taxes or assessments levied and assessed or imposed
upon its property or income as well as all claims which, if unpaid, might by law
become a lien or charge upon its property or income; and.
(8) Maker has permitted Lender, through its authorized attorneys,
accountants and representatives, reasonable access to all of its business
premises and offices to inspect and examine the Collateral and the books,
accounts, records, ledgers and assets of every kind and description of Maker.
SECTION SIX
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SECURITY FOR LOANS
All funds advanced or loaned to Maker by Lender including all amounts
evidenced by any and all Secured Promissory Notes as having been loaned or
advanced by Lender to Maker are secured by collateral pursuant to a security
agreement of even date herewith for the benefit of Lender (the "Security
Agreement"). Such instruments and documents, together with any other
instruments and documents evidencing or securing the indebtedness evidenced by
this Agreement and any Secured Promissory Notes, are referred to herein as the
"Security Documents". In the event of any inconsistency between the terms of
this Agreement, any Secured Promissory Note and any of the Security Documents,
the terms of this Agreement shall control; however, this provision shall not be
deemed to limit, abrogate, restrict or impair any provision in any one or more
of the Security Documents which provides for more extensive or expansive
obligations, requirements or restrictions by or upon Maker or more extensive or
expansive rights or remedies of Lender, than are contained in this Agreement.
SECTION SEVEN
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EVENTS OF DEFAULT AND LENDER'S RIGHTS AND REMEDIES
A. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an "Event of Default" hereunder:
(1) Nonpayment of principal, interest or any other amount when due
under this Agreement or any of the Secured Promissory Notes;
(2) Failure to perform any duty or obligation of Maker under this
Agreement or to pay any sum due or otherwise advanced under this Agreement, any
of the Secured Promissory Notes, any Security Document or any other default by
Maker thereunder;
(3) The adjudication of the Maker as a bankrupt or insolvent, or entry
of any order appointing a receiver or trustee for the Maker or for all or any of
their property, or the vote or the decision by the Maker's Board of Directors,
shareholders or officers or the entry of an order approving a petition seeking
relief for Maker or other similar relief under Title 11 of the United States
Bankruptcy Code or other similar laws of the United States of America or any
other competent jurisdiction, or the filing by or against Maker of a petition
seeking any of the foregoing or consenting to any of the foregoing, or the
filing of a petition to take advantage of any Maker's act, or making a general
assignment for the benefit of creditors, or the admission in writing by Maker of
its inability to pay its debts as they become due;
(4) Any material representation or warranty made by Maker to Lender in
connection with or pursuant to this Agreement is false in any material respect
on the date as of which it was made or becomes false in any material respect;
(5) Makers default in the performance or observance of any of the other
Loan Documents or Security Documents;
(6) The failure of Maker to pay any taxes, including payroll taxes,
when due to any governmental entity; or
(7) The occurrence of any of the Events of Default as defined and set
forth in the Security Agreement, any of the Secured Promissory Notes or any of
the other Loan Documents.
B. UNDERTAKINGS IN THE EVENT OF DEFAULT.
(1) Upon the occurrence of an Event of Default or Maker otherwise fails
to perform any of its duties, covenants, undertakings and responsibilities
contained herein or in any of the other Loan Documents, Lender shall provide to
Maker a written Notice of Default at the address set forth herein and provide to
Maker a period of seven (7) business days from the date of the Notice of Default
in order to cure all defaults under this Agreement and/or any of the other Loan
Documents. If any such defaults remain uncured as of the close of business on
the seventh business day following the date of the Notice of Default: (i) the
unpaid principal balance, and accrued unpaid interest and all other amounts due
or otherwise advanced under this Agreement, all of the Secured Promissory Notes
and/or the Security Documents shall automatically without notice bear interest
at a rate equal to eight (8) percentage points above the "prime rate" of
interest charged by Xxxxx Fargo Bank to large business borrowers in Arizona, as
announced by that bank from time to time, per annum (the "Default Rate"),
however, in the event that applicable law may limit the amount of interest that
may be charged under this Agreement and the Secured Promissory Notes, such
Default Rate shall be at the highest rate allowed by applicable law, until the
default has been cured, at which time interest shall again accrue at the Stated
Rate; (ii) the whole sum of principal, accrued interest and all other amounts
due under this Agreement, the Secured Promissory Notes and/or the Security
Documents may, at the option of the Lender, its nominee and any holder of any of
the Secured Promissory Notes, be declared due and payable, with interest thereon
to accrue at the Default Rate from the date of the Event of Default until the
Event of Default has been cured at which time interest shall again accrue at the
Stated Rate; and (iii) the Lender may exercise any of the rights and remedies
contained herein, in any of the Secured Promissory Notes, in the Security
Agreement or in any of the other Loan Documents.
(2) The rights or remedies of Lender as provided in this Agreement, the
Secured Promissory Notes and the Security Documents shall be cumulative and
concurrent, and may be pursued singly, successively, or together against Maker,
any other funds, property or security held by Lender for payment hereof or
otherwise at the sole, absolute and uncontrolled discretion of Lender. No
single or partial exercise of any power hereunder or under any Security Document
securing this Agreement and the Secured Promissory Notes or any guaranty shall
preclude other or further exercise of such power or the exercise of any other
right, remedy or power. The Lender, its nominee and/or the holder of any of the
Secured Promissory Notes shall at all times have the right to proceed against
any portion of the security in such order and in such manner as the holder may
elect, without waiving any rights with respect to any other security. Neither
(i) the acceptance by Lender, its nominee or the holder of any of the Secured
Promissory Notes of any payment in an amount less than payment in full of the
amount due and payable at the time of such payment, nor (ii) any delay or
omission on the part of the holder hereof in exercising any right, remedy or
power hereunder, shall operate as a waiver by the holder of the right to
exercise any right, remedy or power at the time or at any subsequent time, or
nullify any prior exercise of a right, remedy or power.
(3) Maker acknowledges and agrees that it is impractical and extremely
difficult to fix in advance the actual damages incurred by Lender, its nominee
and/or the holder of any of the Secured Promissory Notes if the required
payments are not made at Loan Maturity, due to the fact that (i) interest rates
and administrative costs fluctuate, (ii) it is impossible to predict how long a
default will continue, and (iii) the economic cost of ascertaining actual
damages in each instance of default would be excessive in relation to the actual
damages sustained. Therefore, Maker agrees to pay to Lender, its nominee and/or
the holder of any of the Secured Promissory Notes a late charge equal to eight
percent (8%) of the aggregate amount of principal plus interest due and owing at
Loan Maturity on the date that is thirty days after Loan Maturity if all amounts
due and owing to Lender, its nominee and/or any holder of any Secured Promissory
Note under this Agreement and all of the Secured Promissory Notes are not paid
in full at Loan Maturity. Maker further agrees to pay to Lender, its nominee
and/or the holder of any of the Secured Promissory Notes an additional late
charge equal to five percent (5%) of the aggregate amount of principal plus
interest due and owing at Loan Maturity on each successive thirtieth day
following Loan Maturity if all amounts due and owing to Lender under this
Agreement and all of the Secured Promissory Notes are not paid in full prior to
that date. Said late charges are intended as liquidated damages in lieu of
actual damages and not as a penalty. Maker agrees that said late charge
represents a fair and reasonable estimate of the average compensation for the
actual economic loss sustained because of a default in payment. All late
charges shall be due and payable, without further notice, on each successive
thirty day anniversary of the Loan Maturity. Late charges are in addition to
any interest charged at the Default Rate. However, in the event that applicable
law may limit the amount of late charges or the aggregate amount of late charges
plus interest that may be charged under this Agreement and the Secured
Promissory Notes, such late charges shall be at the highest rate allowed by
applicable law.
(4) Notwithstanding the foregoing, the Lender, its nominee and/or any holder
of any Secured Promissory Note shall not be obligated to accept any delinquent
payment, nor shall acceptance of any delinquent payment or any late charges
prejudice Lender's, its nominee's or any holder's right to collect any other
amounts under this Agreement or any Secured Promissory Note, to declare a
default under or to accelerate this Agreement or any of the Secured Promissory
Note in the event of any subsequent Event of Default or to exercise any other
rights or remedies provided herein or by law. Acceptance of any delinquent
payment without the applicable late charge shall not be deemed a waiver of the
right to collect that or any subsequent late charge. Acceptance of late charge
and/or default interest payments will be made "without prejudice" and with
explicit reservation of all rights - this notification to that effect being
intended in lieu of specific notification being set out on a check or other
instrument by which a payment may be tendered and regardless of what notations
on Maker's part may accompany any tendered payment. Specifically this means
that partial payment of amounts due and payable does not, and will not,
accomplish a reinstatement of this Agreement or any Secured Promissory Note,
unless Maker and Lender have a specific written understanding to allow
reinstatement on that basis. Such payments will simply reduce the accelerated
balance owing. Any such payment, if accepted, will be retained without
prejudice to Maker's right to proceed.
(5) All payments on this Agreement and any of the Secured Promissory
Notes shall be applied first to late charges and any costs, added charges or
advances made by Lender, its nominee or any holder of any of the Secured
Promissory Notes under the terms of any of the Security Documents, then to
discharge all interest including Default Interest due on the unpaid principal
balance hereof, and the remainder shall be applied to the reduction of the
principal balance.
(6) Maker (i) waives all applicable exemption rights, whether under the
state constitution, homestead laws or otherwise, (ii) waives diligence,
presentment, protest and demand and also notice of protest of demand, of
nonpayment, of dishonor and of maturity and also recourse to suretyship defenses
generally, marshaling of assets, laches, estoppel and equitable defenses
generally, and (iii) waives offset rights against the debt evidenced by this
Note.
(7) Maker agrees to pay all costs of collection, including reasonable
attorney's fees and all costs of suit, in the Event of Default hereunder.
SECTION EIGHT
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MISCELLANEOUS
(1) Amendment And Modification. This Agreement and the Secured
Promissory Notes may not be amended, modified or changed, nor shall any waiver
of any provision hereof be effective, except only by an instrument in writing
and signed by the party against whom enforcement of any waiver, amendment,
change, modification or discharge is sought; provided, however, that this
paragraph shall in no way be a limitation on the provisions of the consents and
waivers set forth above.
(2) Severability, Enforceability And Construction. Each provision of
this Agreement is intended to be severable. Maker and Lender further intend and
believe that each provision in this Agreement and each of the Secured Promissory
Notes complies with all applicable local, state and federal laws and court
decisions. However, if any provision or provisions in this Agreement or any of
the Secured Promissory Notes is or are found by a court of law to be in
violation of an applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion or provision(s) of this Agreement or any Secured Promissory
Note to be illegal, invalid, unlawful, void or unenforceable as written, then it
is the intent of Maker that such portion, provision(s) shall be given full force
and effect to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Agreement and such Notes shall be
construed as if such illegal, invalid, unlawful, void or unenforceable portion,
provision(s) are not contained herein, and that the rights, obligations and
interests of the Maker and the holder hereof under the remainder of this
Agreement and such Notes shall continue in full force and effect.
(3) Additional Sums. All fees, additional interest, charges, points,
loan origination fees, goods, things in action or any other sums or things of
value, including any compensating balance requirements or other contractual
obligations (collectively, the "Additional Sums") paid by Maker to Lender,
whether pursuant to this Agreement or any Secured Promissory Note or otherwise
with respect to the indebtedness evidenced hereby, or with respect to the
Security Agreement securing this Agreement and the Secured Promissory Notes, or
any other Security Document, which, under the law of the State of Arizona may be
deemed to be interest with respect to such indebtedness, shall, for the purpose
of any laws of the State of Arizona which may limit the maximum rate of interest
to be charged with respect to such indebtedness, be payable by Maker as, and
shall be deemed to be, additional interest, and for such purposes only, the
agreed upon and contracted for rate of interest shall be the sum of the Stated
Rate or the Default Rate, as applicable, plus the rate of interest resulting
from the Additional Sums being considered as interest. Maker understands and
believes that this transaction complies with the usury laws of Arizona; however,
if any interest or other charges are ever deemed to exceed the maximum amount
permitted by law, then: (i) the amount of interest or charges payable hereunder
by Maker shall be reduced to the maximum amount permitted by law; and (ii) any
excess amount previously collected from Maker which exceeded the maximum amount
permitted by law will be credited against the outstanding principal
indebtedness. If the principal indebtedness has already been paid, the excess
amount paid will be refunded to Maker. If this paragraph becomes operative, the
total unpaid balance shall, at the option of Payee, become immediately due and
payable and shall bear interest at a maximum rate then permitted by the
applicable usury laws until all the then obligations of this Note, as modified
by this paragraph, are paid and performed in full. The acceleration provided in
this paragraph may not be avoided by Maker and all parties liable to Payee on
the Note, waiving any and all usury claims and defenses they then have.
(4) Time of the Essence. Time is of the essence of this Agreement.
(5) Governing Law, Jurisdiction And Venue. The enforcement,
performance, discharge, lack of performance and formation of this Agreement
shall be governed by, and construed and enforced in accordance with, the law of
the State of Arizona, regardless of any applicable conflict-of-law rules to the
contrary. Maker and Lender also hereby:
(A) irrevocably submit to the jurisdiction of the Superior Court of
Maricopa County, State of Arizona, or any successor to said court, and to the
jurisdiction of the United States District Court for the District of Arizona, or
any successor to said court (hereinafter referred to as the "Arizona Courts")
for purposes of any suit, action or other proceeding which relates to the
transactions contemplated in this Agreement;
(B) to the extent permitted by applicable law, waive and agree not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that they are not personally subject to the jurisdiction
of the Arizona Courts; that the suit, action or proceeding is brought in an
inconvenient forum; that the venue of the suit, action or proceeding is
improper; or that this Agreement or any transaction provided for herein may not
be enforced in or by the Arizona Courts; and
(C) agree not to seek, and hereby waive, any collateral review by any
other court, which may be called upon to enforce the judgment or any of the
Arizona Courts, of the merits of any such suit, action or proceeding or the
jurisdiction of said Arizona Court.
(6) Additional actions. Each party hereto agrees to do all acts and
things and to make, execute, and deliver such written instruments and documents
as shall from time to time be reasonably required to carry out the terms and
provisions of this Agreement.
(7) Attorneys' fees. All attorneys' fees and costs of Lender related
to the costs for the preparation of this Agreement and any of the other Loan
Documents shall be paid by the Lender. However, in the event of any claim,
controversy or dispute arising out of or relating to this Agreement, or the
breach thereof, the prevailing party shall be entitled to recover reasonable
attorneys' fees incurred in connection with any court proceeding set by the
court sitting without a jury.
(8) Remedies Cumulative. The remedies of the parties hereto under this
Agreement are cumulative and shall not exclude any other remedies to which any
party may be lawfully entitled.
(9) Computation of Time. Whenever the last day for the exercise of any
privilege or discharge of any duty hereunder shall fall upon Saturday, Sunday or
any public or legal holiday, whether under federal or state law, the party
having such privilege or duty shall have until 5:00 p.m. (Pacific time) on the
next succeeding regular business day to exercise such right or to discharge such
duty.
(10) Authority. Any individual signing below on behalf of a
corporation, partnership or other entity hereby personally represents that he or
she has full authority to bind the party or parties on whose behalf he or she is
signing.
(11) Entire Agreement. This Agreement, including the exhibits and
schedules hereto, and the Loan Documents contain the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements and understandings, express or implied, oral
or written, among the parties with respect to such subject matter. The express
terms of this Agreement shall control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof. Each of the
exhibits and schedules hereto is incorporated herein by this reference and
constitutes a part of this Agreement.
(12) Terminology. All captions, headings or titles in the paragraphs
or sections of this Agreement are inserted for convenience of reference only and
shall not constitute a part of this Agreement or a limitation of the scope of
the particular paragraph or section to which they apply. All personal pronouns
used in this Agreement, whether used in the masculine, feminine, or neuter
gender, shall, where appropriate, include all other genders and the singular
shall include the plural and vice versa.
(13) Notices. All communications or notices required or permitted to
be given or served under this Agreement shall be in writing and shall be deemed
to have been duly given or made if: (a) delivered in person or by courier (e.g.,
Federal Express), (b) deposited in the United States mail, postage prepaid, for
mailing by certified or registered mail, return receipt requested, or (c) sent
by facsimile and addressed to the intended recipient at the address and/or the
facsimile number set forth below such party's signature at the end of this
Agreement. All communications and notices shall be effective upon delivery in
person or by courier, three (3) days after being deposited in the United States
mail or two (2) business hours after being sent by facsimile. Any party may
change his or her address and/or facsimile number by giving notice in writing,
stating his or her new address and/or facsimile number, to all of the other
parties in the foregoing manner.
(14) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective assigns, legal
representatives, executors, heirs and successors, provided, however, that no
party hereto shall have the right to assign any right hereunder or delegate any
obligation hereunder, in whole or in part, without the prior written consent of
the other parties hereto, and any attempt to do so shall be void.
(15) Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which together shall
constitute one and the same agreement. This Agreement shall become binding when
one or more counterparts have been signed by each of the parties hereto and
delivered to the other parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above,
LENDER MAKER
Visitalk Capital Corporation Dynasig Corporation
/s/ X. X. Xxxxxxxx /s/ Xxxxxxx X. Xxx
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx Xxx
Its: President Its: President
