REVOLVING LOAN AGREEMENT
THIS
REVOLVING LOAN AGREEMENT (this
“Loan
Agreement”)
is
made this
6th day
of June, 2008, by and among Dancing Bear Investments, Inc., a Florida
corporation (the “Lender”),
xxxxxxxx.xxx, inc., a Delaware corporation (the “Borrower”);
and
Chips & Bits, Inc., a Vermont corporation (“Chips”),
Strategy Plus, Inc., a Vermont corporation (“Strategy”),
xxxx.xxx, inc., a Delaware corporation (“tglo”),
Tralliance Partners International, Corp., a Delaware corporation (“TPI”),
Tralliance Corporation, a New York corporation (“Tralliance”)
and
Direct Partner Telecom, Inc., a Florida corporation (“Direct”
and
together with Chips, Strategy, tglo, TPI and Tralliance, the “Guarantors”
and
each a “Guarantor,”
and
together with the Borrower, the “Grantors”).
WITNESSETH:
WHEREAS,
the
Lender is willing to make a revolving loan to Borrower in an amount of up to
$500,000 (the “Loan”)
on the
terms and conditions and on the security hereinafter set forth.
NOW,
THEREFORE,
in
consideration of the mutual promises, conditions, representations and warranties
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
Section
I.1 Definitions
As
used
in this Loan Agreement, the Exhibits and Schedules attached hereto, if any,
and
any Loan Document executed incidental thereto, the following terms shall have
the following meanings unless the context otherwise requires:
“Agreement”
shall
mean this Loan Agreement, as the same may be amended, supplemented or otherwise
modified from time to time by an agreement in writing signed by the Borrower
and
the Lender.
“Closing
Date”
shall
mean the date on which the Loan Agreement and all related documents have been
executed.
“Collateral”
shall
have the meaning set forth in the Security Agreement attached hereto as Exhibit
“B”.
1
“Future
Advance”
shall
have the meaning set forth in Section 2.2 hereof.
“Generally
Accepted Accounting Principles” or “GAAP”
shall
mean those principles of accounting set forth in Opinions of the Financial
Accounting Standards Board of the American Institute of Public Accountants
or
which have other substantial authoritative support and are applicable in the
circumstances as of the date of any report required herein or as of the date
of
an application of such principles as required herein.
“Initial
Advance”
shall
have the meaning set forth in Section 2.2 hereof.
“Loan”
shall
mean the credit facility described in Section 2.1 hereof.
“Loan
Documents”
shall
mean this Agreement, the Note, the Security Agreement, the Unconditional
Guaranty Agreement, the UCC-1 Financing Statements, and all other documents,
agreements, instruments or certificates delivered to the Lender in connection
with the Loan (whether at, prior to or after the Closing Date).
“Maturity
Date”
shall
mean June 6, 2009.
“Note”
shall
mean the instrument of even date herewith from the Borrower evidencing the
indebtedness to the Lender created by the Loan in the amount of up to FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00).
“Permitted
Liens”
shall
have the meaning set forth in Security Agreement.
“Person”
shall
mean any corporation, business entity, natural person, firm, joint venture,
partnership, trust, unincorporated organization, association, government, or
any
department or agency of any government.
“Security
Agreement”
shall
have the meaning set forth in Section 3.1 hereof.
“Security
Documents”
shall
have the meaning set forth in Section 3.3 hereof.
ARTICLE
II
AMOUNT
AND TERMS OF LOAN
Section
2.1 Revolving
Line of Credit Loan
Subject
to the terms and conditions set forth herein (including, the discretion of
the
Lender with regard to Future Advances), the Lender agrees to make available
to
the Borrower a revolving line of credit loan (the “Loan”) in an amount not to
exceed the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00).
The Borrower will execute and deliver to the Lender the Note bearing interest
at
TEN percent (10%) per annum calculated on
the
basis of the actual number of days in the year for the actual number of days
in
the applicable period.
The
entire unpaid principal balance then outstanding plus accrued and unpaid
interest, if any, shall mature and be due and payable on the Maturity Date,
at
which time the Loan shall be reviewed by the Lender and renewed, modified or
terminated in the Lender's sole and absolute discretion.
2
Subject
to the terms and conditions set forth herein, the Borrower may borrow, repay
and
reborrow at any time while the Note is outstanding, but at no time shall the
aggregate principal amount outstanding be greater than FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00). Furthermore, at no time will the Borrower reduce the
principal balance under the Note to less than ONE THOUSAND DOLLARS ($1,000.00)
unless the Borrower intends to pay the Note in full. All advances must be
supported by a Certificate and Loan Advance Request in the form attached hereto
as Exhibit “A.”
Section
2.2 Initial
and Future Advances under the Loan
The
Lender shall fund to the Borrower [One Hundred Thousand Dollars ($100,000)]
on
the Closing Date (the “Initial
Advance”).
All
or part of the [Four Hundred Thousand Dollar ($400,000)] balance of the Loan
may
be drawn down from time to time during the term of this Agreement only upon
Lender’s receipt of a Certificate and Loan Advance Request, and then solely in
the discretion of the Lender. Any such amounts which Lender shall in its
discretion elect to fund, shall be referred to herein as a “Future
Advance”.
Section
2.3 Prepayment
of Loan
The
Note
may be prepaid in whole or in part without penalty. Any voluntary or mandatory
partial prepayment shall be applied first to any accrued and unpaid interest
and
the balance (if any) in reduction of the principal amount
outstanding.
Section
2.4 Intent
Not to Commit Usury
The
Borrower does not intend or expect to pay, nor does the Lender intend or expect
to charge, accept or collect, any interest under the Note, this Agreement or
any
other instrument executed in connection herewith greater than the maximum legal
rate of interest which may be charged under applicable law. Should any event
result in the computation or earning of interest in excess of such maximum
legal
rate, any and all such excess shall be refunded to the Borrower. Notwithstanding
anything to the contrary contained in this Agreement, the Note, or any other
instrument delivered in connection herewith, the amount of interest due under
the terms of this Agreement, the Note or any other instrument shall in no event
exceed the maximum amount of interest permitted to be charged by
law.
Section
2.5 Use
of Proceeds
The
proceeds of the Loan will be disbursed to the Borrower to be used solely for
working capital purposes.
3
ARTICLE
III
SECURITY
AND GUARANTY
Section
3.1 Security
Interest
As
security for the full and timely payment of the principal and interest under
the
Note, and for any and all other indebtedness or liability of the Borrower to
the
Lender pursuant to the Loan Documents, whether now existing or hereafter
arising, the Borrower, together with the Guarantors, shall duly execute and
deliver to the Lender a security agreement in the form attached hereto as
Exhibit “B” (the “Security
Agreement”)
pursuant to which they will grant to Lender a security interest in the
Collateral.
Section
3.2 Guarantees
The
Guarantors shall duly execute and deliver to the Lender their absolute,
unconditional, continuing and unlimited guarantee, in the form attached hereto
as Exhibit “C”, whereby each Guarantor, jointly and severally, if more than one,
guarantees the Borrower's obligations hereunder and under the Note, as well
as
any other liability of the Borrower to the Lender.
Section
3.3 Security
Documents
The
Borrower and the Guarantors, shall execute and deliver to the Lender, in form
and substance satisfactory to the Lender and its Counsel, any and all additional
security agreements, financing statements, guarantees and any other documents
relating to any security as the Lender shall require from time to time (all
herein referred to collectively as the “Security
Documents”).
ARTICLE
IV
BORROWER'S
REPRESENTATIONS AND WARRANTIES
To
induce
the Lender to enter into this Agreement, the Borrower and each Guarantor, as
applicable, make the following representations and warranties which shall be
deemed to be continuing representations and warranties so long as the Note
or
other indebtedness of the Borrower to the Lender remains unpaid:
Section
4.1 Organization,
Good Standing and Qualification.
The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. Each Guarantor is duly organized,
validly existing and in good standing under the laws of its state of
organization. The Borrower and each Guarantor is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
to so
qualify would have a material adverse effect on its business or
properties.
Section
4.2 Authorization. All
corporate action on the part of the Borrower and Guarantors, their officers,
directors and stockholders necessary for the authorization, execution and
delivery of this Agreement, the Note, the Security Agreement, the Guaranty
and
the performance of all obligations of the Borrower and Guarantors hereunder
and
thereunder have been taken on or prior to the date hereof.
4
Section
4.3 Public Reports. The
Borrower is current in its filing obligations under the Securities Act of 1934,
as amended (the “1934 Act”), including without limitation as to its filings of
Annual Reports on Form 10-K (or 10-KSB, as applicable) and Quarterly Reports
on
Form 10-Q (or 10-QSB, as applicable) (collectively, the “Public Reports”). The
Public Reports do not contain any untrue statement of a material fact or omit
to
state any fact necessary to make any statement therein not misleading. The
financial statements included within the Public Reports for the fiscal year
ended December 31, 2006, and for the fiscal year ended December 31, 2007 (the
“Financial Statements”), have been prepared in accordance with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout
the periods indicated. The Financial Statements fairly present, in all material
respects, the financial condition and operating results of the Borrower as
of
the dates, and for the periods, indicated therein.
Section
4.6 Compliance
With
Laws.
Neither
the Borrower nor any Guarantor has violated any law or any governmental
regulation or requirement which violation has had or would reasonably be
expected to have a material adverse effect on its business or prospects, and
neither the Borrower nor any Guarantor has received written notice of any such
violation.
Section
4.7 Violations.
The
consummation of the transactions contemplated by this Agreement and all other
documents and instruments required to be delivered in connection herewith and
therewith, including without limitation, the Security Agreement, the Guaranty
and the Note, will not result in or constitute any of the following: (a) a
violation of any provision of the certificate of incorporation, bylaws or other
governing documents of the Borrower or any Guarantor; (b) a violation of any
provisions of any applicable law or of any writ or decree of any court or
governmental instrumentality; (c) a default or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of a lease,
license, promissory note, conditional sales contract, commitment, indenture,
mortgage, deed of trust, or other agreement, instrument, or arrangement to
which
the Borrower or any Guarantor is a party or by which the Borrower, any Guarantor
or their property is bound; (d) an event that would permit any party to
terminate any agreement or to accelerate the maturity of any indebtedness or
other obligation of the Borrower or any Guarantor; or (e) the creation or
imposition of any lien, pledge, option, security agreement, equity, claim,
charge, encumbrance or other restriction or limitation on the capital stock
or
on any of the properties or assets of the Borrower or any
Guarantor.
Section
4.8 Consents;
Waivers.
No
consent, waiver, approval or authority of any nature, or other formal action,
by
any person, firm or corporation, or any agency, bureau or department of any
government or any subdivision thereof, not already obtained, is required in
connection with the execution and delivery of this Agreement by the Borrower
or
any Guarantor or the consummation by the Borrower or any Guarantor of the
transactions provided for herein and therein.
5
ARTICLE
V
BORROWER'S
AFFIRMATIVE COVENANTS
The
Borrower, and each Guarantor, as applicable, covenants and agrees that until
the
Note, together with interest and all other indebtedness to the Lender under
the
terms of this Agreement, are paid in full, unless specifically waived by the
Lender in writing:
Section
5.1 Corporate
Existence and Qualification
The
Borrower and each Guarantor shall do, or cause to be done, all things necessary
to preserve, renew and keep in full force and effect their corporate
existence.
Section
5.2 Financial
Statements
The
Borrower shall keep its books of account in accordance with GAAP and shall
furnish to the Lender within ninety (90) days after the close of its fiscal
year
a balance sheet as of the close of such year, a profit and loss statement and
statements of income, retained earnings and reconciliation of surplus for such
year. Such statements shall be prepared by an independent certified public
accountant acceptable to the Lender and in the form of a financial statement
review. Such statements shall also be certified by the Chief Financial Officer
of Borrower. Within forty-five (45) days after each second quarter, the Borrower
shall furnish to the Lender a balance sheet, income statement and reconciliation
of surplus for such six month period certified by the Chief Financial Officer
of
the Borrower. The Borrower and each Guarantor also, with reasonable promptness,
shall furnish to the Lender copies of their respective tax returns and such
other data as the Lender may request.
Section
5.3 Taxes
and Claims
The
Borrower and each Guarantor shall properly pay and discharge all taxes,
assessments and governmental charges upon or against the Borrower, the Guarantor
or their assets, including payroll taxes, prior to the date on which penalties
attach thereto.
Section
5.4 Insurance
The
Borrower and each Guarantor shall: (i) keep its properties adequately insured
at
all times with insurance carriers acceptable to the Lender against loss or
damage by fire and other hazards; (ii) maintain adequate insurance at all times
with responsible insurance carriers against liability on account of damaged
persons and property and under all applicable worker's compensation laws; and
(iii) maintain adequate insurance covering such other risks as the Lender may
request.
6
Section
5.5 Books
and Reserves
The
Borrower and each Guarantor shall: (a) maintain at all times true and complete
books, records and accounts in which true and correct entries shall be made
of
its transactions in accordance with GAAP consistently applied and consistent
with those applied in the preparation of the financial statements referred
to in
Section 5.2; and (b) by means of appropriate quarterly entries reflected in
its
accounts and in all financial statements furnished pursuant to Section 5.2,
proper liabilities and reserves for all taxes and proper reserves for
depreciation, renewal and replacement, obsolescence and amortization of its
properties and bad debts, all in accordance with GAAP consistently applied
as
above.
Section
5.6 Inspection
by the Lender; Audits
The
Borrower and each Guarantor shall allow any representative of the Lender to
visit and inspect any of the properties of the Borrower and each Guarantor,
to
examine and audit the books of account and other records and files of the
Borrower and each Guarantor, to make copies thereof and to discuss the affairs,
business, finances and accounts of the Borrower and each Guarantor with their
officers and employees, all at such reasonable times and as often as the Lender
may request.
Section
5.7 Litigation
The
Borrower and each Guarantor will promptly notify the Lender upon the
commencement of any action, suit, claim, counterclaim or proceeding against
or
investigation of the Borrower or such Guarantor where the damage claim is in
excess of $25,000 or where the litigation may materially adversely affect the
Borrower's or such Guarantor’s business.
Section
5.8 Assessments
The
Borrower and each Guarantor shall promptly notify the Lender in writing of
any
material assessment by any taxing authority for unpaid taxes as soon as the
Borrower or such Guarantor has knowledge thereof and shall supply the Lender
with copies of all notices from the Internal Revenue Service or any other taxing
authority.
Section
5.9 Change
of Name, Principal Place of Business, Etc.
The
Borrower and each Guarantor shall notify the Lender immediately of any change
in
the name of the Borrower or such Guarantor, the principal place of business
of
the Borrower or such Guarantor, the office where the books and records of the
Borrower or such Guarantor are kept or any change in the registered agent of
the
Borrower or such Guarantor for the purpose or service of
process.
7
ARTICLE
VI
BORROWER'S
NEGATIVE COVENANTS
The
Borrower and each Guarantor, as applicable, covenants and agrees that from
the
date hereof and until payment in full of the principal of and interest on the
Note, and all other indebtedness to the Lender under this Agreement, unless
the
Lender shall otherwise consent in writing, it will not, either directly or
indirectly, do the following:
Section
6.1 Merger,
Sale of Assets, Dissolution, Etc.
The
Borrower and the Guarantors will not enter into any transaction of merger or
consolidation, or transfer, sell, assign, lease or otherwise dispose of (other
than sales of products and services in the ordinary course of business) all
or a
substantial part of its properties or assets without prior consent of the
Lender.
Section
6.2 Change
of Fiscal Year, Etc.
The
Borrower and the Guarantors shall not change their fiscal year nor will the
Borrower or any Guarantor amend in any respect its Certificate of Incorporation
or Bylaws from those in existence on the date of this Agreement or change its
accounting methods or practices, its depreciation or amortization policy or
rates, except as required to comply with law or with Generally Accepted
Accounting Principles.
ARTICLE
VII
DEFAULTS
AND REMEDIES
Section
7.1 Defaults
The
occurrence of any one or more of the following events shall constitute an “Event
of Default” by Borrower hereunder:
(a) the
failure of the Borrower to pay when due any of the Obligations under the
Note;
(b) the
failure of the Borrower or any Guarantor to perform, keep or observe any of
the
covenants, conditions, promises, agreements or obligations of such party under
this Agreement or any of the Loan Documents, after notice thereof and a fifteen
day opportunity to cure (without such cure);
(c) the
making or furnishing by the Borrower or any Guarantor to Lender of any
representation or warranty within this Agreement or the other Loan Documents
or
in connection with any Certificate relating to a Future Advance, which is untrue
or misleading in any material respect, after notice thereof and a fifteen day
opportunity to cure such misstatement (without such cure);
8
(d) the
creation (whether voluntary or involuntary) of, or any attempt by the Borrower
or any Guarantor to create, any lien or other encumbrance upon any of the
Collateral, other than the Permitted Liens, or the making or any attempt to
make
any levy, seizure or attachment thereof;
(e) the
commencement of any proceedings in bankruptcy by or against the Borrower or
any
Guarantor or for the liquidation or reorganization of the Borrower or any
Guarantor, or alleging that such Borrower or Guarantor is insolvent or unable
to
pay its debts as they mature, or for the readjustment or arrangement of the
Borrower's or any Guarantor’s debts, whether under the United States Bankruptcy
Code or under any other law, whether state or federal, now or hereafter existing
for the relief of debtors, or the commencement of any analogous statutory or
non-statutory proceedings involving the Borrower or any Guarantor; provided,
however, that if such commencement of proceedings against the Borrower or any
Guarantor is involuntary, such action shall not constitute an Event of Default
unless such proceedings are not dismissed within sixty (60) days after the
commencement of such proceedings;
(f) the
appointment of a receiver or trustee for the Borrower or any Guarantor, for
any
of the Collateral or for any substantial part of the Borrower's or any
Guarantor’s assets or the institution of any proceedings for the dissolution, or
the full or partial liquidation, or the merger or consolidation, of the Borrower
or any Guarantor which is a corporation, limited liability company or a
partnership; provided, however, that if such appointment or commencement of
proceedings against the Borrower or any Guarantor is involuntary, such action
shall not constitute an Event of Default unless such appointment is not revoked
or such proceedings are not dismissed within sixty (60) days after the
commencement of such proceedings; and
(g) the
entry
of any judgment or order against the Borrower or any Guarantor which remains
unsatisfied or undischarged and in effect for thirty (30) days after such entry
without a stay of enforcement or execution;
Section
7.2 Action
for Enforcement
Upon
the
occurrence of an Event of Default, the Lender may proceed to protect and enforce
its rights or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein, in the Note, or in any document or instrument
delivered in connection with or pursuant to this Agreement, or to enforce the
payment of the Note or any other legal or equitable right or
remedy.
Section
7.3 Suit
Against the Guarantors
Upon
the
occurrence of an Event of Default, the Lender may proceed directly against
any
Guarantor with or without exercising its rights against the Borrower and obtain
judgment against such Guarantor. The liability of any Guarantor shall be joint
and several, if more than one Guarantor.
9
Section
7.4 Rights
and Remedies Cumulative
No
right
or remedy herein conferred upon the Lender is intended to be exclusive of any
other right or remedy contained herein, in the Note, Security Documents or
in
any instrument or document delivered in connection with or pursuant to this
Agreement, and every such right or remedy shall be cumulative and shall be
in
addition to every other such right or remedy contained herein and therein or
now
or hereafter existing at law or in equity or by statute or otherwise. In the
event of any conflict among the Loan Documents as to the notice required before
resort to any remedy, the shortest notice provision shall control all others
with respect to the remedy in question (for purposes of this Section only,
“without notice” shall be deemed a notice provision).
Section
7.5 Rights
and Remedies Not Waived
No
course
of dealing between the Lender and any party hereto, or any failure or delay
on
the part of the Lender in exercising any rights or remedies hereunder shall
operate as a waiver of any rights or remedies of the Lender and no single or
partial exercise of any rights or remedies hereunder shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder.
ARTICLE
VIII
FEES
AND PAYMENTS
Section
8.1 Costs,
Taxes and Attorneys' Fees
Whether
or not the closing is effectuated and the transactions contemplated hereby
shall
be consummated, the Borrower and the Guarantors agree: (a) to pay all
out-of-pocket costs, expenses, disbursements and fees incurred by the Lender
in
connection with the preparation, execution and delivery of any amendment,
supplement or modification to, any of the Loan Documents and any other documents
prepared in connection herewith, (b) to pay or reimburse the Lender for all
its
out-of-pocket (i.e.,
non-overhead) costs and expenses incurred in connection with the administration,
audit and/or enforcement or preservation of any rights under the Loan Documents
and any such other documents; and (c) to indemnify and hold the Lender harmless
from any and all recording and filing fees (including all intangible and
documentary stamp taxes) and any and all liabilities with respect to, or
resulting from, any delay in paying stamp, excise, documentary and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the origination, administration, audit, execution and delivery of, or
consummation of, any of the transactions contemplated by, or any amendment,
supplement or modification to, or any waiver or consent under or in respect
of,
the Loan Documents and any such other document. The agreements contained in
this
Section shall survive repayment of the Note and all other amounts payable
hereunder or under the other Loan Documents. Furthermore, the Borrower and
the
Guarantors shall be liable for post-closing collection expenses, including,
but
not limited to, expenses related to the repossession, storage or sale of the
Collateral and to the collection of obligations of the Borrower hereunder,
including reasonable attorneys' fees, including appellate proceedings,
post-judgment proceedings and bankruptcy proceedings.
10
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Notices
All
notices, requests, consents and other communications hereunder to any party,
shall be deemed to be sufficient if in writing and contained (i) delivered
in
person, (ii) delivered and received by facsimile or telecopier, if a
confirmatory mailing in accordance herewith is also made, (iii) duly sent by
first class, registered or certified mail return receipt requested and postage
prepaid or (iv) duly sent by overnight delivery service, addressed to such
party
at the address set forth below (or at such other addresses as shall be specified
by like notice):
|
To
the Borrower:
|
xxxxxxxx.xxx,
inc.
|
|
and
Guarantors
|
000
X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
|
|
Xxxx
Xxxxxxxxxx, XX 00000
|
|
|
Attn:
Xxxxxx X. Xxxxxxxx
|
|
|
with
a copy to:
|
Xxxxxx
“Rocky” X. Xxxxxxxx, XX, Esq.
|
|
Xxxxxxx
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
|
|
|
000
X. Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
|
|
|
Xxxx
Xxxxxxxxxx, XX 00000
|
|
|
To
the Lender:
|
Dancing
Bear Investments, Inc.
|
|
000
X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
|
|
|
Xxxx
Xxxxxxxxxx, XX 00000
|
|
|
Attn:
Xxxxxxx X. Xxxx
|
|
|
with
a copy to:
|
Xxxxxxx
X. Xxxxx, Esq.
|
|
Xxxxx
Xxxxx, P.A.
|
|
|
000
X.X. 0xx Xxxxxx
|
|
|
Xxxx
Xxxxxxxxxx, XX 00000
|
11
All
such
notices and communications shall be deemed to have been received when personally
delivered or mailed to the foregoing persons at the addresses set forth above;
provided, however, that the time period in which a response to any such notice
must be given shall commence on the date of receipt thereof; provided, further,
that rejection or other refusal to accept or inability to deliver because of
changed address for which no notice has been received shall also constitute
receipt.
Section
9.2 Further
Assurances
At
any
time and from time to time, upon the Lender's request and at the expense of
the
Borrower, the Borrower and each Guarantor will promptly (and in no event within
more than 10 days) execute and deliver any and all further instruments and
documents and take such further action as the Lender may deem reasonable to
effect the purposes of this Agreement and/or any of the other Loan Documents.
Section
9.3 Survival
of Representations and Warranties
All
representations and warranties made hereunder, in the other Loan Documents
or in
any document, certificate or statement delivered pursuant hereto or thereto
or
in connection herewith or therewith shall survive the execution and delivery
of
this Agreement, the Note, and the other Loan Documents.
Section
9.4 Attorneys'
Fees
Any
and
all references to the payment of attorneys' fees and disbursements herein or
in
any of the other Loan Documents shall include those incurred before, during
and
after litigation, whether in negotiating, drafting, closing, attempting
collection without litigation, investigating and litigating in all trial and
appellate levels, as well as those incurred in any bankruptcy proceedings and
post-judgment proceedings. Attorneys' fees includes fees of paraprofessionals
such as paralegals and investigators, administrative costs and all other charges
whatsoever billed by Counsel to the Lender.
Section
9.5 Severability
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
12
Section
9.6 Conflict
If
the
terms and provisions of any of the other Loan Documents should conflict with
any
of the terms and provisions of this Agreement, the terms and provisions of
this
Agreement shall be interpreted as being paramount, superior and
controlling.
Section
9.7 Jurisdiction
and Venue
Each
of
the parties irrevocably and unconditionally: (a) agrees that any suit, action
or
other legal proceeding arising out of or relating to this Agreement may, and
to
the extent permitted by the courts of the State of Florida shall be brought
in
the courts of record of the State of Florida in Broward County or the District
Court of the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such court; and (d) agrees that service of any
court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws
or
court rules in the State of Florida.
Section
9.8 Amendments
The
provisions of this Agreement may not be amended, supplemented, waived or changed
orally, but only by a writing signed by the party as to whom enforcement of
any
such amendment, supplement, waiver or modification is sought and making specific
reference to this Agreement.
Section
9.9 Waivers
The
Borrower and the Guarantors waive presentment, demand, protest, notice of
default, nonpayment, partial payments and all other notices and formalities
relating to this Agreement other than notices specifically required hereunder.
The Borrower and the Guarantors consent to and waive notice of the granting
of
indulgences or extensions of time of payment, the taking or releasing of
security, the addition or release of persons primarily or secondarily liable
on
or with respect to liabilities of the Borrower or any Guarantor to the Lender,
all in such manner and at such time or times as the Lender may deem advisable.
No act or omission of the Lender shall in any way impair or affect any of the
indebtedness or liabilities of the Borrower or any Guarantor to the Lender
or
rights of the Lender in any security. No delay by the Lender to exercise any
right, power or remedy hereunder or under any Security Documents, and no
indulgence given to the Borrower or any Guarantor in case of any default, shall
impair any such right, power or remedy or be construed as having created a
course of dealing or performance contrary to the specific provisions of this
Agreement or as a waiver of any default by the Borrower or any Guarantor or
any
acquiescence therein or as a violation of any of the terms or provisions of
this
Agreement.
13
Section
9.10 Governing
Law; Benefit
This
Agreement and all rights hereunder shall be governed by the laws of the State
of
Florida and of the United States.
Section
9.11 WAIVER
OF JURY TRIAL
THE
PARTIES HERETO DO HEREBY MUTUALLY AND WILLINGLY WAIVE THE RIGHT TO A TRIAL
BY
JURY OF ANY AND ALL CLAIMS MADE AMONG THEM WHETHER NOW EXISTING OR ARISING
IN
THE FUTURE, INCLUDING WITHOUT LIMITATION, ANY AND ALL CLAIMS, DEFENSES,
COUNTERCLAIMS, CROSSCLAIMS, THIRD PARTY CLAIMS AND INTERVENOR'S CLAIMS WHETHER
ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION AND PERFORMANCE OF THE
TRANSACTION TO WHICH THIS LOAN AGREEMENT RELATES.
[SIGNATURES
ARE ON THE FOLLOWING PAGES]
14
| LENDER: | ||
| DANCING BEAR INVESTMENTS, INC. | ||
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
|
Xxxxxxx
X. Xxxx, President
|
||
| BORROWER: | ||
| xxxxxxxx.xxx, inc. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| GUARANTORS: | ||
| Chips & Bits, Inc. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| Strategy Plus, Inc. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| xxxx.xxx, inc. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| Tralliance Partners International, Corp. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| Tralliance Corporation | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
| Direct Partner Telecom, Inc. | ||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx, President
|
||
15
EXHIBIT
“A”
CERTIFICATE
AND LOAN ADVANCE REQUEST
DATE:
____________, 2008
Dear
Sir:
Pursuant
to Section 2.1 of the Revolving Loan Agreement between Dancing Bear Investments,
Inc. (the “Lender”) and xxxxxxxx.xxx, inc. (the “Borrower”), dated June 6, 2008,
the undersigned, being the President of the Borrower, applies for an advance
of
$ ____________ to be credited to the account of xxxxxxxx.xxx, inc. and certifies
that:
| 1. |
No
Event of Default as defined in the Loan Agreement
|
|
2.
|
The
advance applied for hereunder plus the present principal balance
of the
Loan does not exceed $500,000.
|
|
xxxxxxxx.xxx,
inc.
|
|
|
By:
________________________
|
16
WORKSHEET
|
$
____________
|
|
|
Less:
Outstanding Principal Balance
|
(____________)
|
|
Gross
Available Loan Advance
|
$
____________
|
|
After
this Advance
|
$
____________
|
17
EXHIBIT
“B”
SECURITY
AGREEMENT
18
EXHIBIT
“C”
UNCONDITIONAL
GUARANTY AGREEMENT
19
