FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made and entered into as
of July ___, 1998, by DIMENSIONAL VISIONS INCORPORATED, a Delaware corporation
("Borrower"), whose chief executive office is located at 2301 W. Dunlap Avenue,
Suite 207, Phoenix, Arizona 85021, for the benefit of the holders (collectively,
"Lender") of the Borrower's Series A 12% Convertible Secured Debentures (the
"Debentures").
1. SECURITY INTEREST
1.1 COLLATERAL. Borrower hereby grants to Lender a security interest
(the "Security Interest") in the property, or interests in property, of
Borrower, whether now owned or existing or hereafter acquired or arising and
wherever located (collectively, the "Collateral"), as set forth below:
(a) All contract rights, leases, documents of title, deposit
accounts, certificates of deposit, and general intangibles;
(b) The Note dated September 25, 1997 payable by DataNet
Enterprises, LLC, a Texas limited liability company to InfoPak, Inc., in the
original principal amount of $410,000, as amended, by Addendum No. 1 thereto
dated __________, 199___, and Addendum No. 2 thereto dated March 11, 1998 (the
"InfoPak Note");
(c) All inventory, including, without limitation, raw
materials, work-in-process, or materials used or consumed in the business of
Borrower, whether in the possession of Borrower, warehouseman, bailee, or any
other person or entity;
(d) All machinery, furniture, fixtures, and other equipment;
(e) All negotiable and nonnegotiable documents of title;
(f) All monies, securities or other property now or hereafter
in the possession of or on deposit with Lender, whether held in a general or
special account of deposit, including, without limitation, any account or
deposit held jointly by Borrower with any other person or entity, or for
safekeeping or otherwise, except to the extent specifically prohibited by law;
(g) All rights under contracts of insurance covering any of
the above-described property;
(h) All attachments, accessions, tools, parts, supplies,
increases and additions to, and all replacements of and substitutions for any of
the above-described property;
(i) All products of any of the above-described property,
including any products evidenced by a note or other instrument;
(j) All proceeds of any of the above-described property,
including any proceeds evidenced by a note or other instrument; and
(k) All books and records pertaining to any of the
above-described property, including, without limitation, any computer readable
memory and any computer hardware or software necessary to process such memory
(collectively, the "Books and Records").
1.2 EXCLUSIONS FROM COLLATERAL. Notwithstanding the foregoing, the
Collateral shall not include any accounts, receivables, chattel paper, or other
rights to payment, except as specifically provided in SECTION 1.1. hereof, nor
shall the Collateral include any of the assets or common stock of InfoPak, Inc.,
except the Note described in SECTION1.1 HEREOF.
2. SECURED OBLIGATIONS
The Collateral shall secure, in such order of priority as Lender may
elect, the following (collectively, the "Secured Obligations"):
(a) payment and performance of all obligations of Borrower
under the terms of the Debentures, together with all extensions, modifications,
substitutions, or renewals thereof, or other advances made thereunder; and
(b) payment and performance of every obligation, covenant and
agreement of Borrower contained in this Agreement, together with all extensions,
modifications, substitutions, or renewals hereof.
Unless Borrower shall have otherwise agreed in writing, the Secured Obligations,
for purposes of this Agreement, shall not include "consumer credit" subject to
the disclosure requirements of the Federal Truth in Lending Act or any
regulations promulgated thereunder.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants to Lender that:
3.1 USE. The Collateral is or will be used or produced primarily for
business purpose of Borrower.
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3.2 LOCATION. The Collateral, including, without limitation, the Books
and Records will be kept at the facilities of Borrower at 2301 West Dunlap
Avenue, Suite 201, Phoenix, Arizona 85021, except for the InfoPak Note which
shall be held by Capital West Investment Group ("Capital West") or an affiliate
of Capital West for the benefit of Lender, or any agent designated by Lender to
hold the InfoPak Note.
3.3 BUSINESS NAMES. Borrower does not do business under any name other
than Dimensional Visions Incorporated.
3.4 OTHER AGREEMENTS. The execution, delivery and performance by
Borrower of this Agreement and all other documents and instruments relating to
the Secured Obligations will not result in any material breach of the terms and
conditions or constitute a material default under any agreement or instrument
under which Borrower is a party or is obligated. Borrower is not in material
default in the performance or observance of any covenants, conditions or
provisions of any such agreement or instrument.
3.5 PRIORITY. The Security Interest in the Collateral granted to Lender
constitutes, and hereafter will constitute, a security interest of first
priority, except with respect to any liens existing as of the date hereof and
except for any purchase money security interests as defined in A.R.S.
ss.47-9312.
3.6 AUTHORITY. Borrower has the full power, authority and legal right
to grant to Lender the Security Interest, and no further consent, authorization,
approval, or other action is required for the grant of the Security Interest or
for Lender's exercise of its rights and remedies under this Agreement, except as
may be required in connection with the sale of the Collateral by Lender by the
laws affecting the offering and sale of securities.
3.7 CHIEF EXECUTIVE OFFICE. The address of Borrower set forth in the
preamble of this Agreement is the chief executive office of Borrower.
3.8 OBLIGORS. To the knowledge of Borrower, each account, chattel
paper, instrument, or general intangible included in the Collateral is genuine
and enforceable in accordance with its terms against the party named therein who
is obligated to pay the same ("Obligor"), and the security interests that are
part of each item of chattel paper included in the Collateral are valid security
interests. To the knowledge of Borrower, each Obligor is solvent, and the amount
that Borrower has represented to Lender as owing by each Obligor is the amount
actually and unconditionally owing by that Obligor, without deduction except for
normal cash discounts where applicable. To the knowledge of Borrower, no Obligor
has any material defense, setoff, claim or counterclaim of a material nature
against Borrower that can be asserted against Lender whether in any proceeding
to enforce the Security Interest or otherwise. To the knowledge of Borrower,
each document,
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instrument and chattel paper included in the Collateral is complete and regular
on its face and free from evidence of forgery or alteration. To the knowledge of
Borrower, no material default has occurred in connection with any instrument,
document or chattel paper included in the Collateral. To the knowledge of
Borrower, no material payment in connection therewith is overdue and to the
knowledge of Borrower, no presentment, dishonor or protest has occurred in
connection therewith.
4. COVENANTS OF BORROWER
4.1 TRANSFERS. Borrower shall not sell, transfer, assign or otherwise
dispose of any Collateral or any interest therein (except as permitted herein)
without obtaining the prior written consent of Lender and shall keep the
Collateral free of all security interests or other encumbrances except the
Security Interest, except any liens existing as of the date hereof and any liens
junior to the Security Interest. Although proceeds of Collateral are covered by
this Agreement, this shall not be construed to mean that Lender consents to any
sale or other transfers of the Collateral.
4.2 MAINTENANCE. Borrower shall keep and maintain the Collateral in
good condition and repair and shall not use the Collateral in violation of any
provision of this Agreement or any applicable statute, ordinance or regulation
or any policy of insurance insuring the Collateral.
4.3 INSURANCE. Borrower shall provide and maintain insurance in
accordance with its customary practices.
4.4 PAYMENTS OF CHARGES. Borrower shall pay when due all taxes,
assessments and other charges which may be levied or assessed against the
Collateral.
4.5 FIXTURES AND ACCESSIONS. Borrower shall prevent any portion of the
Collateral that is not a fixture from being or becoming a fixture and shall
prevent any portion of the Collateral from being or becoming an accession to
other goods that are not part of the Collateral.
4.6 POSSESSION BY LENDER. Borrower, upon demand, shall promptly deliver
to Lender all instruments, documents and chattel paper included in the
Collateral. Borrower shall notify Lender immediately of any material default by
any Obligor in the payment or performance of its obligations with respect to any
Collateral, upon Borrower obtaining actual knowledge of such default. Borrower,
without Lender's prior written consent, shall not make or agree to make any
material alteration, modification or cancellation of, or substitution for, or
credit, adjustment or allowance on, any Collateral.
4.7 NOTICE TO LENDER. Borrower shall give Lender 45 days' prior written
notice of any change: (i) in the location of any of the facilities of Borrower;
(ii) in the location of the Collateral, including, without limitation, the Books
and Records; or (iii) of the names under which it does business.
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4.8 INSPECTIONS. Lender or its agents may inspect the Collateral at
reasonable times and may enter into any premises where the Collateral is or may
be located. Borrower shall keep the Books and Records in accordance with
generally accepted accounting principles, to the extent applicable. Unless
waived in writing by Lender, Borrower shall, when applicable, mark the
Collateral, including, without limitation, the Books and Records, to indicate
the Security Interest. Lender shall have free and complete access to the Books
and Records and shall have the right to make extracts therefrom or copies
thereof. Upon the reasonable request of Lender from time to time, Borrower shall
submit up-to-date schedules of the accounts receivable comprising the Collateral
in such detail as Lender may reasonably require and shall deliver to Lender
confirming specific assignments of all accounts, instruments, documents and
chattel paper included in such accounts receivable. After the occurrence of any
Event of Default (as defined below), upon the request of Lender, Borrower shall
submit up-to-date schedules of inventory comprising the Collateral in such
detail as Lender may reasonably require.
4.9 DEFENSE OF COLLATERAL. Borrower, at its cost and expense, shall
protect and defend this Agreement, all of the rights of Lender hereunder, and
the Collateral against all claims and demands of other parties, including,
without limitation, defenses, setoffs, claims and counterclaims asserted by any
Obligor against Borrower and/or Lender. Borrower shall pay all claims and
charges that in the reasonable opinion of Lender might prejudice, imperil or
otherwise affect the Collateral or the Security Interest. Borrower shall
promptly notify Lender of any levy, distraint or other seizure by legal process
or otherwise of any part of the Collateral and of any threatened or filed claims
or proceedings that might in any way affect or impair the terms of this
Agreement.
4.10 PERFECTION OF SECURITY INTEREST. The Security Interest, at all
times, shall be perfected and except as otherwise agreed by Lender shall be
prior to any other interests in the Collateral. Borrower shall act and perform
as necessary and shall execute and file all security agreements, financing
statements, continuation statements and other documents requested by Lender to
establish, maintain and continue the perfected Security Interest. Borrower, on
written demand, shall promptly pay all reasonable costs and expenses of filing
and recording, including, without limitation, the reasonable costs of any
searches, deemed necessary by Lender from time to time to establish and
determine the validity and the continuing priority of the Security Interest.
4.11 PAYMENT OF CHARGES. Except with respect to any payment less than
$25,000 other than for income taxes or payroll taxes, if Borrower fails to pay
any taxes, assessments, expenses or charges, or fails to keep all of the
Collateral free from other security interests, encumbrances or claims except for
Permitted Liens, or fails to keep the Collateral in good condition and repair,
or fails to procure and maintain insurance thereon, or to perform otherwise as
required herein, Lender may advance the monies necessary to pay the same, to
accomplish such repairs, to procure and maintain such insurance or to so
perform. Lender is hereby authorized to enter upon any property in the
possession or control of Borrower for such purposes.
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4.12 RIGHTS AND POWERS. Any actions of Lender hereunder may be taken by
the holders of the Debentures owning the majority in outstanding principal
amount of the Debentures, or any agent acting on their behalf. The costs and
expenses of any agent appointed by Lender, including any agent appointed to hold
the InfoPak Note, shall be borne by Borrower. All rights, powers, and remedies
granted Lender herein, or otherwise available to Lender, are for the sole
benefit and protection of Lender, and Lender may exercise any such right, power,
or remedy at its option and in its sole and absolute discretion without any
obligation to do so. In addition, if under the terms hereof, Lender is given two
or more alternative courses of action, Lender may elect any alternative or
combination of alternatives at its option and in its sole and absolute
discretion. All monies advanced by Lender under the terms hereof and all amounts
paid, suffered, or incurred by Lender in exercising any authority granted
herein, including, without limitation, reasonable attorneys' fees, shall be
added to the Secured Obligations, shall be secured by the Collateral, shall bear
interest at the highest rate payable on any of the Debentures until paid, and
shall be due and payable by Borrower to Lender immediately without demand.
5. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF COLLATERAL BY
BORROWER
5.1 NOTICE TO OBLIGORS. Lender, after the occurrence of any Event of
Default, and without notice to Borrower, may notify any or all Obligors of the
existence of the Security Interest and may direct the Obligors to make all
payments on the Collateral to Lender. Until Lender has notified the Obligors to
remit payments directly to it, Borrower, at Borrower's own cost and expense,
shall collect or cause to be collected the accounts and monies due under the
accounts, documents, instruments and general intangibles or pursuant to the
terms of the chattel paper. Lender shall not be liable or responsible for any
embezzlement, conversion, negligence or default by Borrower or Borrower's agents
with respect to such collections. All agents used in such collections shall be
agents of Borrower and not agents of Lender. Unless Lender notifies Borrower in
writing that it waives one or more of the requirements set forth in this
sentence, any payments or other proceeds of Collateral received by Borrower,
after notification to Obligors, shall be held by Borrower in trust for Lender in
the same form in which received, shall not be commingled with any assets of
Borrower and shall be turned over to Lender not later than the next business day
following the day of receipt. All payments and other proceeds of Collateral
received by Lender directly or from Borrower shall be applied to the Secured
Obligations in such order and manner and at such time as Lender, in its sole
discretion, shall determine.
5.2 COLLECTION. Lender, after the occurrence of an Event of Default and
without notice to Borrower, may demand, collect and sue on the Collateral
(either in Borrower's or Lender's name), enforce, compromise, settle or
discharge the Collateral and endorse Borrower's name on any instruments,
documents, or chattel paper included in or pertaining to the Collateral.
5.3 USE OF COLLATERAL. Until the occurrence of an Event of Default,
Borrower may: (i) use, consume, and sell any inventory included in the
Collateral in any lawful manner in the
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ordinary course of Borrower's business provided that all sales shall be at
commercially reasonable prices; (ii) make all transfers permitted by SECTION 4.1
hereof; and (iii) subject to SECTION 5.1 and SECTION 5.2 hereof, retain
possession of any other Collateral and use it in any lawful manner consistent
with this Agreement.
6. COLLATERAL IN THE POSSESSION OF LENDER
6.1 CARE. Lender shall use such reasonable care in handling, preserving
and protecting the Collateral in its possession as it uses in handling similar
property for its own account. Lender, however, shall have no liability for the
loss, destruction or disappearance of any Collateral unless there is affirmative
proof of a lack of due care. A lack of due care shall not be implied solely by
virtue of any loss, destruction, or disappearance.
6.2 PRESERVATION OF COLLATERAL. Borrower shall be solely responsible
for taking any and all actions to preserve rights against all Obligors. Lender
shall not be obligated to take any such actions whether or not the Collateral is
in Lender's possession. Borrower waives presentment and protest with respect to
any instrument included in the Collateral on which Borrower is in any way liable
and waives notice of any action taken by Lender with respect to any instrument,
document, or chattel paper included in any Collateral that is in the possession
of Lender.
7. EVENTS OF DEFAULT; REMEDIES
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events or
conditions shall constitute an "Event of Default":
(i) Any failure to pay any principal or interest or any other
part of the Secured Obligations when the same shall become due and
payable.
(ii) Borrower shall breach any warranty, representation,
covenant, or agreement made herein.
(iii) Any warranty, representation, or statement made or
furnished to Lender by or on behalf of Borrower shall prove to have
been false or misleading in any material respect when made or
furnished.
(iv) The abandonment by Borrower of all or any part of the
Collateral with a value in excess of $25,000.
(v) The loss, theft, or destruction of, or any substantial
damage to, in excess of $25,000 in amount, any portion of the
Collateral, that is not adequately covered by insurance.
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(vi) The occurrence of a Default or an Event of Default under
and as defined in the Debentures.
7.2 REMEDIES. Upon the occurrence of any Event of Default, and at any
time while such Event of Default is continuing, Lender shall have the following
rights and remedies and may do one or more of the following:
(i) Declare all or any part of the Secured Obligations to be
immediately due and payable, and the same, with all costs and charges,
shall be collectible thereupon by action at law.
(ii) Without further notice or demand and without legal
process, take possession of the Collateral wherever found and, for this
purpose, enter upon any property occupied by or in the control of
Borrower. Borrower, upon demand by Lender, shall assemble the
Collateral and deliver it to Lender or to a place designated by Lender
that is reasonably convenient to both parties.
(iii) Operate the business of Borrower as a going concern,
including, without limitation, extend sales or services to new
customers and advance funds for such operation. Lender shall not be
liable for any depreciation, loss, damage, or injury to the Collateral
or other property of Borrower as a result of such action. Borrower
hereby waives any claim of trespass or replevin arising as a result of
such action.
(iv) Pursue any legal or equitable remedy available to collect
the Secured Obligations, to enforce its title in and right to
possession of the Collateral and to enforce any and all other rights or
remedies available to it.
(v) Upon obtaining possession of the Collateral or any part
thereof, after written notice to Borrower as provided in SECTION 7.4
hereof, sell such Collateral at public or private sale either with or
without having such Collateral at the place of sale. The proceeds of
such sale, after deducting therefrom all expenses of Lender in taking,
storing, repairing, and selling the Collateral (including, without
limitation, reasonable attorneys' fees) shall be applied to the payment
of the Secured Obligations, and any surplus thereafter remaining shall
be paid to Borrower or any other person that may be legally entitled
thereto. In the event of a deficiency between such net proceeds from
the sale of the Collateral and the total amount of the Secured
Obligations, Borrower, upon demand, shall promptly pay the amount of
such deficiency to Lender.
7.3 PURCHASE OF COLLATERAL. Lender, so far as may be lawful, may
purchase all or any part of the Collateral offered at any public or private sale
made in the enforcement of Lender's rights and remedies hereunder.
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7.4 NOTICE. Any demand or notice of sale, disposition or other intended
action hereunder or in connection herewith, whether required by the UCC or
otherwise, shall be deemed to be commercially reasonable and effective if such
demand or notice is given to Borrower at least 10 days prior to such sale,
disposition or other intended action, in the manner provided herein for the
giving of notices.
7.5 COSTS AND EXPENSES. Borrower shall pay all reasonable costs and
expenses of Lender, including, without limitation, costs of uniform commercial
code searches, court costs and reasonable attorneys' fees, incurred by Lender in
enforcing payment and performance of the Secured Obligations or in exercising
the rights and remedies of Lender hereunder. All such reasonable costs and
expenses shall be secured by this Agreement and by other lien and security
documents securing the Secured Obligations. In the event of any court
proceedings, court costs and attorneys' fees shall be set by the court and not
by jury and shall be included in any judgment obtained by Lender.
7.6 ADDITIONAL REMEDIES. In addition to any remedies provided herein
for an Event of Default, Lender shall have all the rights and remedies afforded
a secured party under the UCC and all other legal and equitable remedies allowed
under applicable law. No failure on the part of Lender to exercise any of its
rights hereunder arising upon any Event of Default shall be construed to
prejudice its rights upon the occurrence of any other or subsequent Event of
Default. No delay on the part of Lender in exercising any such rights shall be
construed to preclude it from the exercise thereof at any time while that Event
of Default is continuing. Lender may enforce any one or more rights or remedies
hereunder successively or concurrently. By accepting payment or performance of
any of the Secured Obligations after its due date, Lender shall not thereby
waive the agreement contained herein that time is of the essence, nor shall
Lender waive either its right to require prompt payment or performance when due
of the remainder of the Secured Obligations or its right to consider the failure
to so pay or perform an Event of Default.
8. MISCELLANEOUS PROVISIONS
8.1 POWER OF ATTORNEY. Borrower hereby appoints Lender as its true and
lawful attorney-in-fact, with full power of substitution to do the following:
(i) to demand, collect, receive, receipt for, sue and recover all sums of money
or other property which may now or hereafter become due, owing, or payable from
the Collateral; (ii) to execute, sign, and endorse any and all claims,
instruments, receipts, checks, drafts or warrants issued in payment for the
Collateral; (ii) to settle or compromise any and all claims arising under the
Collateral, and, in the place and stead of Borrower to execute and deliver its
release and settlement for the claim; (iv) to file any claim or claims or to
take any action or institute or take part in any proceedings, either in its own
name or in the name of Borrower, or otherwise, which in the sole and absolute
discretion of Lender may seem to be necessary or advisable; and (v) to execute
any documents necessary to perfect or continue the
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Security Interest. This power is a power coupled with an interest and is given
as security for the Secured Obligations, and the authority hereby conferred is
and shall be irrevocable and shall remain in full force and effect until
renounced by Lender.
8.2 INDEMNIFICATION. Borrower agrees to indemnify, defend, protect, and
hold harmless Lender, and its affiliates and their respective heirs, personal
representatives, successors, assigns and shareholders and the directors,
officers, employees, agents, and attorneys of the foregoing (collectively, the
"Indemnified Parties") for, from, and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses, and disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for such Indemnified
Parties in connection with any investigative, administrative, or judicial
proceeding commenced or threatened, whether or not such Indemnified Parties are
designated parties thereto) that may be imposed on, incurred by, or asserted
against the Indemnified Parties, in any manner relating to or arising out of
this Agreement or the Debentures (the "Indemnified Liabilities"); provided,
however, that Borrower shall have no obligation to an Indemnified Party
hereunder with respect to Indemnified Liabilities arising from the gross
negligence or willful misconduct of that Indemnified Party.
8.3 OTHER SECURITY. The acceptance of this Agreement by Lender shall
not be considered a waiver of or in any way to affect or impair any other
security that Lender may have, acquire simultaneously herewith, or hereafter
acquire for the payment or performance of the Secured Obligations, nor shall the
taking by Lender at any time of any such additional security be construed as a
waiver of or in any way to affect or impair the Security Interest. Lender may
resort, for the payment or performance of the Secured Obligations, to its
several securities therefor in such order and manner as it may determine.
8.4 ACTIONS BY LENDER. Without notice or demand, without affecting the
obligations of Borrower hereunder, and without affecting the Security Interest
or the priority thereof, Lender, from time to time, may: (i) extend the time for
payment of all or any part of the Secured Obligations, accept a renewal note
therefor, reduce the payments thereon, release any person liable for all or any
part thereof, or otherwise change the terms of all or any part of the Secured
Obligations; (ii) take and hold other security for the payment or performance of
the Secured Obligations and enforce, exchange, substitute, subordinate, waive,
or release any such security; (iii) join in any extension or subordination
agreement; or (iv) release any part of the Collateral from the Security
Interest.
8.5 WAIVERS. Borrower waives and agrees not to assert: (i) any right to
require Lender to proceed against any guarantor, to proceed against or exhaust
any other security for the Secured Obligations, to pursue any other remedy
available to Lender, or to pursue any remedy in any particular order or manner;
(ii) the benefits of any legal or equitable doctrine or principle of
marshalling; (iii) the benefits of any statute of limitations affecting the
enforcement hereof; (iv) demand, diligence, presentment for payment, protest and
demand, and notice of extension, dishonor, protest, demand and nonpayment,
relating to the Secured Obligations; and (v) any benefit of, and any right to
participate in, any other security now or hereafter held by Lender.
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8.6 DEFINITIONS. All undefined capitalized terms used herein shall have
the meaning given them in the Debentures. Otherwise the terms herein shall have
the meanings in and be construed under the UCC.
8.7 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware, without regard to the choice
of law rules of the State of Delaware.
8.8 JURISDICTION AND VENUE. Borrower hereby expressly agrees that in
the event any actions or other legal proceedings are initiated by or against
Borrower or Lender involving any alleged breach or failure by any party to pay,
perform or observe any sums, obligations or covenants to be paid, performed or
observed by it under this Agreement, or involving any other claims or
allegations arising out of the transactions evidenced or contemplated by this
Agreement, regardless of whether such actions or proceedings shall be for
damages, specific performance or declaratory relief or otherwise, such actions,
in the sole and absolute discretion of Lender, may be required to be brought in
Maricopa County, Arizona; and Borrower hereby submits to the jurisdiction of the
State of Arizona for such purposes and agrees that the venue of such actions or
proceedings shall properly lie in Maricopa County, Arizona; and Borrower hereby
waives any and all defenses to such jurisdiction and venue.
8.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement.
8.10 ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof,
supersede all other prior understandings, oral or written, with respect to the
subject matter hereof, and are intended by Lender and Borrower as the final,
complete and exclusive statement of the terms agreed to by them.
8.11 AMENDMENTS. No amendment, modification, change, waiver, release,
or discharge hereof and hereunder shall be effective unless evidenced by an
instrument in writing and signed by the party against whom enforcement is
sought.
8.12 SECTION HEADINGS. The section headings set forth in this Agreement
are for convenience only and shall not have substantive meaning hereunder or be
deemed part of this Agreement.
8.13 TIME OF ESSENCE. Time is of the essence of this Agreement and each
and every provision hereof.
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8.14 SEVERABILITY. If any provision hereof is invalid or unenforceable,
the other provisions hereof shall remain in full force and effect and shall be
liberally construed in favor of Lender in order to effectuate the other
provisions hereof.
8.15 BINDING NATURE. This provisions of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their heirs,
personal representatives, successors and assigns. The term "Lender" shall
include not only the original Lender hereunder but also any future owner and
holder, including, without limitation, pledgees, of Debenture or Debentures or
note or notes evidencing the Secured Obligations. The provisions hereof shall
apply to the parties according to the context thereof and without regard to the
number or gender of words or expressions used.
8.16 CONSTRUCTION. This Agreement shall be construed as a whole, in
accordance with its fair meaning, and without regard to or taking into account
any presumption or other rule of law requiring construction against the party
preparing this Agreement.
8.17 CONTINUING AGREEMENT. This is a continuing Agreement which shall
remain in full force and effect until actual receipt by Lender of written notice
of its revocation as to future transactions and shall remain in full force and
effect thereafter until all of the Secured Obligations incurred before the
receipt of such notice, and all of the Secured Obligations incurred thereafter
under commitments extended by Lender before the receipt of such notice, shall
have been paid and performed in full.
8.18 NO SETOFFS BY BORROWER. No setoff or claim that Borrower now has
or may in the future have against Lender shall relieve Borrower from paying or
performing the Secured Obligations.
8.19 NOTICES. All notices required or permitted to be given hereunder
shall be in accordance with provisions of the Debentures.
8.20 COPY. A carbon, photographic or other reproduced copy of this
Agreement and/or any financing statement relating hereto shall be sufficient for
filing and/or recording as a financing statement.
8.21 CONFLICTS. In the event any provision of this Agreement is
inconsistent with any provisions of the Debentures, the provision of the Loan
Agreement shall prevail.
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IN WITNESS WHEREOF, this Agreement was executed by Borrower as of the
date first set forth above.
BORROWER
DIMENSIONAL VISIONS INCORPORATED,
a Delaware corporation
By:___________________________________
Name: John D. McPhilimy
Title: President
[INSERT POWER OF ATTORNEY] - LOO
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