SECURITIES PURCHASE AGREEMENT AMONG VERSADIAL, INC. AND THE LENDERS NAMED HEREIN
EXHIBIT
4.19
AMONG
AND
THE
LENDERS NAMED HEREIN
This
Securities Purchase Agreement (the “Purchase
Agreement”,
or the
“Agreement”)
dated
as of the date set forth opposite the signature of parties on the signature
pages hereto, among VERSADIAL, INC., a Nevada corporation (the “Company”), and
the Lenders listed on the signature pages hereto (each an “Lender” and
collectively, the “Lenders”) is one of a series of Purchase Agreements among the
Lenders and Company regarding the subject matter and issuance of the Notes
defined herein to be deemed a single document relating to the obligations of
the
parties to each other.
WHEREAS,
the Company desires to sell 8% promissory notes (the “Notes”), in the principal
amount of up to $2,500,000 (such total, the “Principal Amount”) in the form
attached as Exhibit
A hereto,
at a
price of ninety seven (97%) per cent of the principal
amount of Notes sold pursuant to the provisions of this Agreement, and the
Lenders desire to purchase from the Company the Notes; and
WHEREAS,
each of the Lenders has acquired one or more Notes representing a portion of
the
Principal Amount.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
in
this Agreement, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
In
consideration for the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
As used
in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the
terms defined):
“Affiliate”
of
any
Person means (a) any Person which, directly or indirectly, is in control of,
is
controlled by, or is under common control with such Person, or (b) any Person
who is a director or officer or member or partner (i) of such Person or (ii)
of
any Person described in clause (a) above. For the purposes of this definition,
“control” (including, with correlative meanings, the terms “controlling”,
“controlled by” and “under common control with”), as applied to any Person,
means either (x) the power, directly or indirectly, to vote 10% or more of
the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person, or (y) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
1
“Agreement”
means
this Purchase Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
“Business
Day”
means
a
day other than Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to close.
“Capital
Stock”
means
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
“Closing”
has
the
meaning specified in Section 2.01(b).
“Common
Stock”
means
the common stock of the Company.
“Debt”
of
any
Person at any date means (a) all indebtedness of such Person for borrowed money
or for the deferred purchase price of property or services (other than trade
liabilities incurred for goods and services used in the ordinary course of
business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
other similar instrument, (c) all obligations of such Person under Purchase
Leases, (d) all obligations of such Person in respect of acceptances issued
or
created for the account of such Person, and (e) all liabilities secured by
any
Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
“Default”
means
any event or condition that, with notice or lapse of time or both, would become
an Event of Default.
“Event
of Default”
has
the
meaning specified in Section 7.01.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Governing
Documents”
shall
mean (a) the articles or certificate of incorporation and the bylaws of a
corporation; (b) any charter, certificate of formation or similar document
adopted or filed in connection with the creation, formation or organization
of
any other entity and any operating agreement, management agreement or similar
document or an entity; and (c) any amendment or supplement to any of the
foregoing.
“Governmental
Authority”
means
any nation or government, any state or other political subdivision thereof
and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Indemnified
Party”
has
the
meaning specified in Section 8.05(a).
“Lenders”
has
the
meaning set out in the Recitals to this Agreement.
2
“Lien”
means
any lien, charge, claim, mortgage, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement, upon
or
with respect to any property, including any title retention agreement or any
leases in the nature thereof and any easement, right of way or other encumbrance
on title to real property.
“Permitted
Liens”
means
Liens for the benefit of Fursa Alternative Strategies, LLC and Fursa Master
Global Event Driven Fund, L.P.
“Transaction
Documents”
means
this Agreement and the Notes.
“Material
Adverse Effect”
means
(I) with respect to the Company, (a) a material adverse effect on the business,
operations, properties or condition (financial or otherwise) or prospects of
the
Company and its subsidiaries taken as a whole, (b) the inability of the Company
to perform any of its obligations hereunder or under any of the other
Transaction Documents to which it is a party, or (c) an adverse effect on the
validity or enforceability of this Agreement or any other Transaction Document
or the rights or remedies of the Lender hereunder or thereunder; and (II) with
respect to a Person other than the Company, a material adverse effect on the
business, operations, properties or condition (financial or otherwise) or
prospects of such Person or any Affiliates of
such
Person.
“Maturity
Date”
means,
with respect to the Notes, the earliest to occur of: (a) the date that is six
(6) months following the final Closing; (b) the date on which the Company
receives no less then $4,000,000 in gross cash proceeds from the closing of
the
proposed private offering of its equity securities referred to in the Summary
of
Terms attached as Exhibit
B
hereto;
(c) if the closing referred to in clause (b) is not effected as contemplated
by
the Summary of Terms, the date on which the Company is able to effectuate a
closing of the rights offering for which Fursa Alternative Strategies, LLC
has
agreed to act as standby underwriter, as reflected in the consent signed by
Fursa Alternative Strategies, LLC to the issuance of the Notes or, (d) the
date
on which an Event of Default occurs.
“Notes”
means
the secured promissory notes of the Company payable to the order of the Lenders
in the aggregate principal amount of up to Xxx Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (US $2,500,000), in substantially the form of Exhibit
A
hereto,
evidencing the indebtedness of the Company to the Lenders under the transactions
made by the Lenders to the Company hereunder.
“Person”
means
an individual, corporation, partnership, business trust, joint venture,
association, joint stock company, trust, unincorporated organization, joint
venture, limited liability company or other entity, or a government or any
agency or political subdivision thereof.
“Securities
Act”
means
the US Securities Act of 1933, as amended.
“Subsidiary”
means
any corporation or other legal entity of which the Company (either alone or
through or together with any other Subsidiary or Subsidiaries) is the general
partner or managing entity or of which 50% or more of the Capital Stock or
other
equity interests the holders of which are generally entitled to vote for the
election of the board of directors or others performing similar functions of
such corporation or other legal entity is directly or indirectly owned or
controlled by the Company (either alone or through or together with any other
Subsidiary or Subsidiaries), including without limitation.
3
Section
1.02 Computation
of Time Periods.
In this
Agreement in the computation of periods of time from a specified date to a
later
specified date, the word “from” means “from and including” and the words “to”
and “until” each mean “to but excluding”.
Section
1.03 Accounting
Terms.
All
accounting terms not specifically defined herein shall be construed in
accordance with U.S. generally accepted accounting principles (“GAAP”).
ARTICLE
II
PURCHASE
AND SALE OF NOTES
Section
2.01 Purchase
and Sale.
(a) Commitment.
On the
terms and subject to the conditions contained in this Agreement, in reliance
upon the representations and warranties of the Company set forth herein and
in
the other Transaction Documents to which it is a party, the Lenders agree to
purchase at a Closing (as hereafter defined), and the Company agrees to issue
and sell to the respective Lenders at the Closing, the amount of Notes set
forth
opposite each Lender’s name on the signature pages hereto, for a purchase price
equal to ninety seven (97%) percent of the principal amount of the Notes (the
“Purchase Price”).
(b) Closing.
Subject
in any and all events to the satisfaction in full of the conditions set forth
in
Article III hereof, the
Company shall deliver to each Lender, a Note in the principal amount acquired
by
the Lender, against payment of the Purchase Price to the Company (each date
of
delivery of a Note, a “Closing”) The final Closing shall be no later than
September 30, 2007, subject to the right of the Company to extend the final
Closing for an additional 30 days, but in no event beyond the earliest date
that
may constitute the Maturity Date.
(c)
Notes.
The
Notes will be deemed subject to this Agreement upon their issuance. Any and
all
payments thereunder shall be made in United States dollars in immediately
available funds.
Section
2.02 Interest
Each
Note shall bear interest on the unpaid principal amount thereof from the date
of
the Closing of such Note to the date repaid in full at a monthly percentage
rate
equal to 8% per annum payable in arrears. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months for the actual number of days
elapsed.
4
Section
2.03 Repayment
(a) Maturity
Date Repayment.
On the
Maturity Date, the Company shall be liable to pay to the Lenders the aggregate
outstanding principal amount of the Notes, together with all interest accrued
thereon (such outstanding principal amount, together with such accrued interest,
being called the “Aggregate
Amount”),
together with all other amounts in respect of the Notes then owing to the Lender
hereunder and under the other Transaction Documents, whether for costs and
expenses or otherwise,
as
limited by Section 8.13.
(b) Prepayment.
The
Company shall have the right to prepay the Notes at any time at 100% of the
principal amount together with accrued interest.
ARTICLE
III
CONDITIONS
OF
LENDER OBLIGATIONS AT CLOSING
Section
3.01 Conditions
Precedent to the Closing.The
obligations of the Lenders under subsection 1.1 of this Agreement is
subject to the fulfillment on or before a Closing of each of the following
conditions:
(a) Transaction
Documents Delivered.
The
Company shall have duly executed and delivered the Transaction Documents to
which it is a party and all documents contemplated hereby and
thereby.
(b) No
Event of Default.
As of
the Closing no event shall have occurred or be continuing or could reasonably
be
expected to result from the Transaction or from the application of the proceeds
therefrom, that could constitute a Default or an Event of Default.
(c) Absence
of Material Change.
As of
the Closing there has been no event that has caused or may cause a Material
Adverse Effect on the Company since the date of this Agreement.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF COMPANY
The
Company hereby represents and warrants that, at the date of this
Agreement:
Section
4.01 Due
Incorporation, Etc.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has full corporate
power and corporate authority to own, lease and operate its property and assets
and to conduct its business as presently conducted and as proposed to be
conducted by it. The Company has full corporate power and corporate authority
to
enter into and perform its obligations under the Transaction Documents and
to
carry out the transactions contemplated by the Transaction Documents.
5
Section
4.02 Enforceability:
No Conflict.
Each of
the Transaction Documents constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms, subject to laws of general
application applying to the Company and relating to bankruptcy, insolvency,
and
the relief of debtors and rules of law applying to the Company and governing
specific performance, injunctive relief and other equitable remedies. Neither
the execution and delivery of any Transaction Document to which the Company
is a
party, nor the performance by the Company of its obligations thereunder, (i)
will conflict with or result in a breach of, or constitute a default under
the
Company’s Governing Documents or any other document to which Company or its
Affiliates is a party, or (ii) will conflict with or result in a breach of,
or
constitute a default under or result in the creation or imposition of any Lien
upon any of the property or assets of the Company under any applicable law,
rule, governmental regulation, judgment, decree, indenture, mortgage, deed
of
trust or other instrument or agreement to which the Company or any of its
Affiliates may be or become a party or by which it may be or become
bound.
Section
4.03 Litigation.
There
is no pending or, to the Company’s knowledge, threatened litigation,
investigation, action or proceeding of or before any court, arbitrator or
governmental agency (i) which purports to affect the legality, validity or
enforceability of any Transaction Document or (ii) that could have a Material
Adverse Effect against (a) the Company or any of its officers, directors or
employees (in their capacity as such) or (b) any of the properties of the
Company. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or governmental agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending which is likely to have a Material Adverse
Effect.
Section
4.04 Valid
Issuance of Notes.
The
Notes being purchased by the Lenders hereunder, when issued, sold, and delivered
in accordance with the terms hereof for the consideration provided for herein,
will be duly and validly issued and, based in part upon the representations
of
the Lenders in this Agreement, will be issued in compliance with all applicable
federal and state securities laws.
Section
4.05 No
Violation.
The
Company is not in violation of, nor does the execution of any of the Transaction
Documents by the Company or the consummation of the transactions contemplated
hereby or thereby result in the violation of, (i) any term of the Company’s
Governing Documents or (ii) any term of any agreement or instrument to which
the
Company is a party or by which any are bound in any respect which has or could
be reasonably expected to have a Material Adverse Effect.
6
Section
4.06 Governmental
Consents.
No
consent, approval, order, or authorization of, or registration, qualification,
designation, declaration, or filing with, any federal, state, local or foreign
Governmental Authority to which the Company is subject is required in connection
with the consummation of the transactions contemplated by this
Agreement.
Section
4.07 Full
Disclosure.
This
Agreement, the attached schedules and exhibits, the other Transaction Documents
and other documents called for hereby delivered by the Company to the Lenders
or
its attorneys or agents in connection herewith or therewith or with the
transactions contemplated hereby or thereby, all taken together, do not contain
any untrue statement of a material fact nor omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
ARTICLE
V
COVENANTS
Section
5.01 Affirmative
Covenants.
The
Company covenants and agrees that, so long as any amount is outstanding under
any of the Transaction Documents, the Company shall, unless waived by all the
Lenders in writing:
(a) Corporate
Existence.
The
Company shall at all times preserve and keep in full force and effect its
corporate existence and all of its material rights and shall continue to conduct
its business in the ordinary course.
(b) Maintenance
of Properties; Insurance.
The
Company will maintain in good repair, working order and condition, ordinary
wear
and tear excepted, all material properties used or useful in the business of
the
Company and from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof which it deems necessary in its
reasonable business judgment. The Company will maintain, with financially sound
and reputable insurers, insurance with respect to its properties and business
against loss or damage of the kinds and with respect to liability customarily
carried or maintained under similar circumstances by corporations of established
reputation engaged in similar businesses.
(c) Compliance
with Laws.
The
Company shall comply with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority, noncompliance with which,
individually or in the aggregate with other non-compliances, could reasonably
be
expected to cause a Material Adverse Effect on the Company.
(d) Use
of
Proceeds.
The
Company shall use the proceeds from the sale of the Notes for working capital
purposes.
7
Section
5.02 Negative
Covenants.
The
Company covenants and agrees that, so long as any amount is outstanding under
any of the Transaction Documents, neither it nor any of its Subsidiaries shall,
without the written consent of all the Lenders, make
any
material change in the nature of its business as it exists on the date
hereof.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES OF THE LENDERS.
Each
of
the Lenders, severally and not jointly, hereby represent and warrant as to
itself that:
Section
6.01 Authorization.
The
Transaction Documents constitute valid and legally binding obligations of the
Lender enforceable in accordance with their terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
of
general application affecting enforcement of creditors’ rights generally and
(ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
Section
6.02 Purchase
Entirely for Own Account.
The
Notes to be purchased by the Lender will be acquired for investment for the
Lender’s own account and not with a view to the resale or distribution of any
part thereof. The Lender represents that it has full power and authority to
enter into this Agreement.
Section
6.03 Accredited
Investor.
The
Lender is an “accredited investor” within the meaning of Rule 501 of
Regulation D of the Securities and Exchange Commission (the “SEC”), as presently
in effect.
Section
6.04 Restricted
Securities.
The
Lender understands that the Note that it is purchasing is characterized as
“restricted securities” under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public
offering, and that under such laws and applicable regulations such securities
may be resold without registration under the Act, only in certain limited
circumstances. In this connection, the Lender represents that it is familiar
with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.
Section
6.05 Legends.
It is
understood that each of the Notes may bear a legend in substantially the
following form:
“THIS
PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (“THE ACT”), OR THE SECURITIES LAWS OF ANY STATE. THIS PROMISSORY NOTE
MAY NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS.”
8
ARTICLE
VII
DEFAULT
Section
7.01 Events
of Default.
If any
of the following events shall occur and be continuing (any such event shall
be
an “Event
of Default”):
(a) The
Company shall fail to pay the principal of, or any interest on, the Notes or
any
other amount payable under any Transaction Document to which it is a party
within ten (10) business days after such amount becomes due and payable`and
such
sum is not paid within fifteen (15) business days after notice of such failure
to pay is delivered in writing to the Company; or
(b) Any
representation or warranty made by the Company under or in connection with
any
Transaction Document to which it is a party shall prove to have been incorrect
in any material respect when made; or
(c) The
Company shall fail to perform or observe any other term, covenant or agreement
contained in any Transaction Document to which it is a party and such failure
shall continue unremedied for a period of fifteen (15) business days after
notice of such failure to perform is delivered in writing to the Company;
or
(d) The
Company shall generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or either shall
make
a general assignment for the benefit of creditors; or any proceeding shall
be
instituted by or against the Company seeking to adjudicate the Company as
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of the Company
or
its debt under any law relating to bankruptcy, insolvency or reorganization
or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for the Company
or
for any substantial part of its property, or seeking a warrant of attachment,
execution or similar process against any substantial part of its property and,
in the case of any such proceeding instituted against the Company, either such
proceeding shall remain undismissed or unstayed for a period of 90 days, or
any
of the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, or for any substantial part of, the
Company’s property) shall occur; or the Company shall take corporate action to
authorize any of the actions set forth above in this subsection (d);
or
9
(e) Any
judgment or order for the payment of money in excess of US$500,000 shall be
rendered against the Company, and either (i) an enforcement proceeding shall
have been commenced by any creditor upon such judgment or order or (ii) there
shall have been a period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(f) Any
non-monetary judgment or order shall be rendered against the Company that could
be reasonably likely to have a Material Adverse Effect on the Company, and
there
shall be any period of 10 consecutive days during which a stay of enforcement
or
such judgment or order, by reason of a pending appeal or otherwise, shall not
be
in effect; or
(g) Any
provision of any Transaction Document after delivery thereof shall for any
reason cease to be valid and binding on the Company or the Company shall so
state in writing.
Section
7.02 Remedies.
In the
case of an Event of Default:
(a) with
respect to Section 7.01(a) through 7.01(c) and with respect to Sections 7.01(e)
through (g), the Lenders may, individually with respect to its respective Note,
or in the aggregate, by notice to the Company, declare the principal amount
then
outstanding of, and the accrued interest on, the Notes and all other amounts
payable by the Company hereunder and under the Notes.
(b)
to be
forthwith due and payable, whereupon such amounts shall be immediately due
and
payable in cash, without presentment, demand, protest or other formalities
of
any kind, all of which are hereby expressly waived by the Company;
and
(c) with
respect to Section 7.01(d), the unpaid principal amount of and accrued interest
on the Notes and all other amounts payable by the Company hereunder and under
the Notes shall automatically become immediately due and payable, in cash,
without presentment, demand, protest or other formalities of any kind, all
of
which are hereby expressly waived by the Company.
10
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Amendments.
(a) No
amendment, modification, termination or waiver of any provision of this
Agreement, the Notes or any other Transaction Document, or consent to any
departure by the Company or the Lenders therefrom, shall in any event be
effective without the written concurrence of the Company and all of the Lenders
provided however, each Lender may individually extend the Maturity Date of
its
Note in its sole and absolute discretion.
(b) Any
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which it was given. No notice to or demand on the Company
in any case shall entitle the Company to any other or further notice or demand
in similar or other circumstances. Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 8 time outstanding,
its assigns and, if signed by the Company, the Company.
Section
8.02 Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement and the notes will be in writing
and
will be deemed to have been given when delivered personally or mailed by
certified or registered mail, return receipt requested and postage prepaid,
to
the recipient. Such notices, defends and other communications will be sent
to
the addresses set forth below:
If
to the
Lenders, to them at their respective addresses set forth in the signature pages
hereof:
If
to the
Company, to:
000
Xxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
XX 00000
Attn:
Xx.
Xxxxxxxx Xxxxxxxxx, Chief Executive Officer
Telephone:
000-000-0000
Fax:
000-000-0000
With
a
copy to (which shall not constitute notice):
Beckman,
Lieberman, & Barandes, LLP
000
Xxxx
Xxxxxx
Xxxxx
0000
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxx, Esq.
Telephone:
000-000-0000
Fax:
000-000-0000
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Section
8.03 No
Waiver; Remedies.
No
failure on the part of the Lenders to exercise, and no delay in exercising,
any
right hereunder or under any Transaction Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right preclude
any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section
8.04 Binding
Effect.
This
Agreement shall become effective when it shall have been executed by the Company
and the Lenders and thereafter shall be binding upon and inure to the benefit
of
the Company and the Lenders and their respective successors and assigns, except
that the Company shall not have the right to assign or otherwise transfer all
or
any part of its rights or obligations hereunder or any interest herein without
the prior written consent of the Lender.
Section
8.07 Governing
Law.
This
Agreement and the Notes shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to principles of conflicts
of
laws.
Section
8.08 Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
thereto 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
8.09 Consent
to Jurisdiction The
Company hereby irrevocably submits to the jurisdiction of any New York State
or
federal court sitting in the City of New York, New York, in any action or
proceeding arising out of or relating to this Agreement or any other Transaction
Document, and the Company hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such New York,
New
York state court or such federal court. The Company hereby irrevocably waives,
to the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Company hereby
irrevocably consents to the service of copies of any summons and complaint
and
any other process which may be served in any such action or proceeding by
certified mail, return receipt requested, or by delivering a copy of such
process to the Company, at its address specified in Section 8.02 or by any
other
method permitted by law. The Company agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or by any other manner provided by
law.
Nothing
in this Section 8.09 shall affect the right of the Lenders to serve legal
process in any other manner permitted by law or affect the right of the Lenders
to bring any action or proceeding against the Company or their property in
the
courts of other jurisdictions.
12
Section
8.10 Waiver
Of Jury Trial.
EACH OF
THE COMPANY, AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY
JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTION DOCUMENTS,
ANY
DOCUMENT DELIVERED UNDER THE TRANSACTION DOCUMENTS, THE NOTES OR THE ACTIONS
OF
THE COMPANY AND THE LENDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR
ENFORCEMENT THEREOF.
Section
8.11 Decisions
and Other Determinations.
For all
purposes of this Agreement, any provision which provides for a decision or
other
determination to be made by any party hereto at its option or election, or
in
its discretion, shall be made in the sole and absolute discretion of such party,
which each of the parties hereto hereby acknowledges and confirms may be
arbitrary.
Section
8.12 Interest
Laws.
Notwithstanding any provision to the contrary contained in this Agreement,
the
Company shall not be required to pay, and the Lender shall not be permitted
to
contract for, take, reserve, charge or receive, any compensation which
constitutes interest under applicable law in excess of the maximum amount of
interest permitted by law (“Excess
Interest”).
If
any Excess Interest is provided for or determined in a final, non-appealable
judgment by a court of competent jurisdiction to have been provided for in
this
Agreement or otherwise contracted for, taken, reserved, charged or received,
then in such event: (A) the provisions of this Section shall govern and control;
(B) the Company shall not be obligated to pay any Excess Interest; (C) any
Excess Interest that the Lenders may have contracted for, taken, reserved,
charged or received hereunder shall be, at the Lender’s option, (I) applied as a
credit against the outstanding balance of the Note (not to exceed the maximum
amount permitted by law), (II) refunded to the payor thereof, or (III) any
combination of the foregoing; (D) the interest provided for shall be
automatically reduced to the maximum lawful rate allowed from time to time
under
applicable law (the “Maximum
Rate”),
and
this Agreement shall be deemed to have been, and shall be, reformed and modified
to reflect such reduction; and (E) the Company shall have no action against
the
Lenders due to any Excess Interest. The terms of this Section shall be deemed
incorporated into the Notes.
Section
8.13 Further
Assurances.
To the
extent permitted by applicable law, the Company shall use its best efforts
to
obtain any consent of any Person which may be required in connection with the
performance or enforcement of any Transaction Document.
13
Company
Signature Page
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
| VERSADIAL, INC. | ||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxxxx | |
| Title: | CEO | |
14
Lender
Signature Page
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
| LENDER: | |||
| _______________________________________ | |||
| Principal Amount of Note: $ _______________________ | |||
| Date of Signature:_______________________________ | |||
| EIN #_________________________________________ | |||
| Address: ______________________________________ | |||
| _______________________________________ | |||
| _______________________________________ |
15
