[LETTERHEAD]
MASTER LEASE AGREEMENT
NUMBER 912385
LESSEE NAME AND ADDRESS
ONLINE SPECIALTY RETAILING, INC. dba GREAT FOOD ONLINE
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TERMS AND CONDITIONS
1. LEASE, LESSOR and LESSEE agree that the terms of this Master Lease
Agreement shall apply to and be incorporated by reference in one or more
Lease Schedules in substantially the form of Exhibit A hereto (which
reference(s) the Master Lease Agreement Number indicated above). The word
"LEASE" shall mean any one of the individual Lease Schedules executed
hereunder, each of which shall incorporate the terms and conditions of this
Master Lease Agreement and shall be evidenced by the original Lease Schedule
and an attached copy of its Master Lease Agreement. The word "EQUIPMENT"
shall mean the equipment which is the subject of any one of the LEASES. Each
Lease Schedule will include an EQUIPMENT description, the EQUIPMENT location,
the minimum lease term and payment and security deposit information. Each
LEASE shall be enforceable upon execution by LESSEE and subsequent
counter-signature by LESSOR indicating acceptance.
2. RENTAL PAYMENTS. Unless otherwise agreed in writing, each regular
periodic payment of rent due during the term of each LEASE shall be due on
the first day of the month (the billing date). The first billing date under
each LEASE shall be the first day of the month following LESSEE's acceptance
of the EQUIPMENT, or, if LESSEE's acceptance occurs after the 20th day of a
month, then the first billing date shall be the first day of the second month
following LESSEE's acceptance. LESSEE shall pay pro rated rent, together with
applicable taxes, from the date of acceptance of the EQUIPMENT until the first
billing date as interim rent. In addition, LESSEE shall pay to LESSOR as
additional interim rent an amount equal to one thirtieth of the proportional
monthly rental payment per day for any amount funded by LESSOR prior to
acceptance of the EQUIPMENT by LESSEE. LESSEE agrees to pay rent for the
minimum term specified above following the interim rent period and until the
EQUIPMENT is returned to LESSOR on expiration or earlier termination of the
LEASE. Each periodic rental installment shall be the sum set forth above or
on an attached schedule plus any applicable sales and/or use taxes, and
shall, at LESSOR'S option, include a pro rata portion of that year's property
tax. Payments shall be made by LESSEE at LESSOR's address set forth herein or
as otherwise directed by LESSOR. LESSEE shall not ▇▇▇▇▇, set off, deduct any
amount or reduce any payment for any reason without the prior written consent
of LESSOR. Payments are delinquent if not in LESSOR's possession by the due
date.
3. COMMENCEMENT AND TERMINATION. The LEASE term shall commence on
acceptance of the EQUIPMENT by LESSEE. The LEASE shall terminate on the
expiration of its minimum term in months as set forth in the Lease Schedule
following the first billing date and the fulfillment of all obligations of
LESSEE thereunder or upon notice by LESSOR in the case of LESSEE default. In
the event LESSEE retains part or all of the EQUIPMENT beyond the term of the
LEASE, then the terms of the LEASE shall stay in effect during such hold-
over period, subject to LESSOR's right on default to terminate the LEASE.
4. NO WARRANTIES BY LESSOR. LESSOR makes no warranty, express, implied or
statutory, as to any matter whatsoever, including the condition of the
EQUIPMENT, its merchantability or its fitness for any particular purpose, and
as to LESSOR, LESSEE leases the EQUIPMENT "as is".
5. CHOICE OF LAW, VENUE AND JURISDICTION. The LEASE shall be deemed to have
been made and shall be construed in accordance with the laws of the State of
Oregon or breach of the LEASE must be instituted and maintained in Multnomah
County, State of Oregon, and LESSEE expressly agrees to submit to personal
jurisdiction in such venue.
6. ASSIGNMENT. Without LESSOR's prior written consent, LESSEE shall not
assign, transfer, pledge,
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hypothecate or otherwise dispose of the LEASE, any interest therein, or
sublease or loan the EQUIPMENT or permit it to be used by anyone other than
LESSEE or LESSEE's qualified employees. LESSOR may assign the LEASE and/or
grant a security interest in the EQUIPMENT, in whole or in part, to one or
more assignees, without notice to LESSEE. LESSOR's assignee(s) and/or the
secured party(ies) may reassign the LEASE, and/or such security interest
without notice to LESSEE. Each such assignee and/or such secured party shall
have all rights of LESSOR under the LEASE, but no such assignee or secured
party shall be bound to perform any obligation of LESSOR. LESSEE shall
recognize each such assignment and shall not assert against any assignee
and/or secured party any defense, counterclaim or setoff it may have against
LESSOR. LESSEE acknowledges that any assignment or transfer by LESSOR shall
not materially change LESSEE's duties or obligations under the LEASE nor
materially increase the burdens or risks imposed on LESSEE.
7. SELECTION AND ACCEPTANCE OF EQUIPMENT. LESSEE has selected both the
EQUIPMENT and the supplier(s) from whom LESSOR is to purchase the EQUIPMENT.
LESSEE shall arrange for transportation, delivery and installation of the
EQUIPMENT at LESSEE's expense. LESSEE acknowledges that it has examined the
EQUIPMENT as fully as it desires. If the EQUIPMENT is not properly installed,
its delivery is delayed, it does not operate as represented by the
supplier(s) or it is unsatisfactory for any reason, LESSEE shall make no
claim on account thereof against LESSOR. LESSEE authorizes LESSOR to insert
in the LEASE or other documents the serial numbers and other identification
information for the EQUIPMENT as determined by LESSOR.
8. SUPPLIER/BROKER NOT AGENT OF LESSOR. LESSEE understands and agrees that
neither the supplier(s), nor any salesperson or agent of the supplier(s), is
an agent of LESSOR. LESSEE further agrees that if any transaction hereunder is
presented to LESSOR by a lease broker, that such broker is acting as an agent
of LESSEE and is not an agent of LESSOR. No salesperson or agent of the
supplier(s) or broker(s) is authorized to waive or alter any term or
condition of the LEASE, and no representation as to the EQUIPMENT or any
matter by the supplier(s) or broker(s) shall in any way affect LESSEE's duty
to pay rent and perform its other obligations set forth in the LEASE.
9. SECURITY DEPOSIT. Security deposits received by LESSOR are to guarantee
prompt and full payment of rent and the faithful and timely performance of
all provisions of the LEASE by LESSEE. Security deposits secure all
obligations of LESSEE to LESSOR under the LEASE or otherwise. No interest
shall accrue on the security deposit to the account of LESSEE. If LESSEE is
not in default under any agreement with LESSOR, the security deposit shall be
returned to LESSEE at the end of the LEASE term. In the event LESSEE defaults
on any of its obligations to LESSOR, LESSOR shall have the right, but shall
not be obligated, to apply the security deposit to cure such default. LESSEE
shall, within ten (10) days, restore the security deposit to the full amount
held by LESSOR prior to its application to cure such default.
10. CANCELLATION FOR NON-DELIVERY. If, within 30 days after the LEASE is
signed by LESSEE, the EQUIPMENT has not been delivered to and accepted by
LESSEE and if LESSOR has accepted the LEASE by signing, LESSOR, by written
notice to LESSEE, shall have the option at any time thereafter to terminate
LESSOR's obligation, if any, to lease the subject EQUIPMENT to LESSEE.
11. RETURN OF EQUIPMENT. On the expiration or earlier termination of the
LEASE, or on LESSEE default if LESSOR chooses, LESSEE, at its expense,
freight prepaid with full original value declared and insured, shall
immediately return the EQUIPMENT unencumbered to LESSOR in good repair,
condition and working order, ordinary wear and tear resulting from proper use
thereof alone excepted, by properly packing it for shipment and delivering it
to any place designated by LESSOR.
12. OWNERSHIP. The EQUIPMENT shall at all times remain the personal
property of LESSOR. LESSEE will at all times protect and defend, at its own
cost and expense, the OWNERSHIP of LESSOR against all claims, liens and legal
processes of creditors of LESSEE and other persons, and keep the EQUIPMENT
free and clear from all such claims, liens and processes. If the LEASE is
deemed at any time to be one intended as security or should LESSOR agree at
any time to sell the EQUIPMENT to LESSEE, LESSEE agrees that the EQUIPMENT
shall secure, in addition to the indebtedness set forth in the LEASE,
indebtedness at any time owing by LESSEE to LESSOR. Notwithstanding any other
terms and conditions of the LEASE, in the event that the EQUIPMENT includes
computer software, LESSEE agrees that LESSOR has not had, does not have, nor
shall have any title to such computer software. LESSEE may have executed or
may execute a separate software license agreement(s) and LESSEE agrees that
LESSOR is not a party to nor responsible for any performance with regard to
such license agreement(s).
13. LOCATION AND RIGHT OF INSPECTION. The EQUIPMENT shall be kept at the
location specified on the Lease Schedule or, if none is specified, at
LESSEE's address as set forth therein, and shall not be removed therefrom
without LESSOR's prior written consent. LESSOR shall have the right at any
time during normal business hours and upon reasonable notice to inspect the
EQUIPMENT and for that purpose have access to the location of the EQUIPMENT.
14. USE AND OPERATION. LESSEE shall use the EQUIPMENT in a careful manner
and shall comply with all laws relating to its possession, use and
maintenance. LESSEE represents that the EQUIPMENT shall be used in its
business or commercial concern and that no item of EQUIPMENT will be used for
personal, family or household purposes.
15. REPAIRS AND ALTERATIONS. LESSEE shall at its own expense maintain the
EQUIPMENT in good repair, appearance and functional order. LESSEE agrees to
comply with all maintenance schedules and procedures recommended by the
manufacturer of the EQUIPMENT and, if available, purchase or
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otherwise enter into and adhere to dealer maintenance contracts. LESSEE shall
not make any alterations, additions or improvements to the EQUIPMENT without
LESSOR'S prior written consent. All alterations, additions or improvements
made to the EQUIPMENT shall belong to LESSOR.
16. LOSS AND DAMAGE. LESSEE shall bear the entire risk of loss, theft,
damage or destruction of the EQUIPMENT from any cause whatsoever and, as
between LESSOR and LESSEE, unless otherwise agreed between the parties,
LESSEE shall bear that risk of loss during transportation and delivery, and
LESSEE shall arrange and pay for transportation and delivery. No loss, theft,
damage or destruction of the EQUIPMENT shall relieve LESSEE of the obligation
to pay rent or to comply with any other obligation under the LEASE. In the
event of damage to any item of EQUIPMENT, LESSEE shall immediately place the
same in good repair at LESSEE's expense. If LESSOR determines that any item
of EQUIPMENT is lost, stolen, destroyed or damaged beyond repair, LESSEE
shall, at LESSEE's option: (a) replace the same with like equipment in good
repair, acceptable to LESSOR; or (b) pay LESSOR a sum equal to (i) all
amounts due by LESSEE to LESSOR under the LEASE up to the date of the loss,
(ii) the unpaid balance of the total rent for the remaining term under the
LEASE which is attributable to said item of EQUIPMENT, and (iii) an amount
equal to eighteen percent (18%) of the original cost of said item of
EQUIPMENT, which the parties agree shall represent the fair market value of
LESSOR's residual interest in said item of EQUIPMENT. The amounts in (ii) and
(iii) shall be discounted to present value at a discount rate of six percent
(6%) per annum.
17. INSURANCE. LESSEE shall provide and maintain primary insurance against
loss, theft, damage or destruction of the EQUIPMENT in an amount not less
than the full replacement value of the EQUIPMENT, with loss payable to
LESSOR. At LESSOR's request, LESSEE also shall provide and maintain primary
comprehensive general all risk liability insurance. Such insurance shall
include, but shall not be limited to, product liability coverage, insuring
LESSOR and LESSEE, with a severability of interest endorsement or its
equivalent, against any and all loss or liability for all damages, either to
persons, property or otherwise, which might result from or happen in
connection with the condition, use or operation of the EQUIPMENT, with such
limits and with an insurer satisfactory to LESSOR. Each policy shall
expressly provide that the insurance as to LESSOR shall not be invalidated by
any act, omission or neglect of LESSEE and cannot be canceled without ten
(10) days written notice to LESSOR. As to each policy, LESSEE shall furnish
to LESSOR a certificate of insurance from the insurer evidencing the
insurance coverage required by this Section. If LESSEE fails to procure or
maintain such insurance, LESSOR shall have the right, but shall not be
obligated, to obtain such insurance as to LESSOR's and/or LESSEE's interests.
In that event, LESSEE shall repay to LESSOR the cost thereof with the next
payment of rent, together with late charges as set forth in Section 23.
LESSEE irrevocably appoints LESSOR as LESSEE's attorney-in-fact to make claim
for, receive payment of, and execute and endorse all documents, checks or
drafts received in payment for loss or damage under such insurance
policy(ies). All obligations of this Section shall extend throughout the term
of the LEASE and until the EQUIPMENT is returned to LESSOR.
18. LIENS AND TAXES. LESSEE shall keep the EQUIPMENT free and clear of all
levies, liens and encumbrances. LESSEE shall pay LESSOR, on or before the due
date, all charges and taxes, local, state or federal, which may now or
hereafter be imposed upon the ownership, leasing, rental, sale, purchase,
possession or use of the EQUIPMENT, excluding, however, all taxes on LESSOR's
income. If LESSEE fails to pay said charges or taxes to LESSOR when due
LESSOR shall have the right, but shall not be obligated, to pay said charges
or taxes, and add the same to the next payment of rent, together with late
charges as set out in Section 23. LESSEE agrees to pay a reasonable fee to
LESSOR for the processing of property tax payments.
19. INDEMNITY. LESSEE shall indemnify LESSOR against, and hold LESSOR
harmless from, any and all claims, actions, proceedings, expenses, damages and
liabilities, including attorney fees, arising in connection with the
EQUIPMENT, including, with limitation, its manufacture, selection, purchase,
delivery, possession, use, operation or return and the recovery of claims
under insurance policies thereon. This indemnity provision shall survive
termination, cancellation or breach of the LEASE.
20. MISCELLANEOUS REPRESENTATIONS OF LESSEE. LESSEE and any guarantor of
the LEASE shall provide LESSOR with such corporate resolutions, financial
statements not less than quarterly, and all other documents regarding the
financial or credit condition of LESSEE or any guarantor which LESSOR may
request from time to time. LESSEE represents and warrants that all credit and
financial information submitted to LESSOR in connection with the LEASE is
true and correct in all respects. LESSEE agrees that LESSOR and/or its
assigns may at any time investigate the credit-worthiness of LESSEE using all
available means.
21. UNIFORM PERSONAL PROPERTY LEASING ACT. To the extent permitted by
applicable law, and to the extent the LEASE is governed by the law of a
jurisdiction which has adopted a version of the Uniform Personal Property
Leasing Act (also known as "Uniform Commercial Code - Leases"), the parties
hereto agree that: (1) the provisions thereof conferring remedies upon a
LESSEE or imposing obligations upon a LESSOR shall not apply to the LEASE,
its interpretation, or its enforcement; and (2) the LEASE is a Finance Lease
as defined by Uniform Commercial Code - Section 2A-103(g). LESSEE
acknowledges that LESSEE has reviewed and approved any written Supply
Contract(s) covering the EQUIPMENT purchased from the Supplier(s) for lease
to LESSEE. LESSEE further acknowledges that LESSOR has informed or advised
LESSEE in writing, either previously or in the LEASE, of the following: (a)
the identity of the Supplier(s); (b) that the LESSEE may have rights under
the Supply Contract(s); and (c) that the LESSEE may contact the Supplier(s)
for a description of any such rights LESSEE may have under the Supply
Contract(s).
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22. FINANCING STATEMENTS. At the request of LESSOR, LESSEE will join LESSOR
in executing financing statements pursuant to the Uniform Commercial Code.
Lessee hereby authorizes Lessor or its agents or assigns to execute financing
statements on LESSEE's behalf, and to file such financing statements in all
jurisdictions where such execution and filing is permitted. It is agreed that
a carbon or photocopy of any financing statement may be filed in place of the
original and that a copy hereof may be filed as a financing statement.
23. LATE CHARGES AND INTEREST. If LESSEE fails to pay LESSOR any amount
when due or, in the case of an amount due to one other than LESSOR if LESSOR
pays an amount on LESSEE's behalf, then LESSEE shall pay LESSOR a late charge
of $29, plus five percent (5%) of such amount or $5, whichever is greater,
for each calendar month or part thereof for which rent or other sum shall be
delinquent or shall have been paid by LESSOR on LESSEE's behalf. If LESSEE
fails to pay or fails to perform other LEASE obligations, LESSEE agrees to
pay LESSOR $19 for each contact necessitated because of such failure. LESSEE
also agrees to pay LESSOR the sum of $29 for each check of LESSEE's returned
uncollectable by LESSEE's bank. The amount of any charges assessed hereunder
shall be added to and become part of the next rental payment or shall be
separately invoiced, at LESSOR's option. Interest shall accrue on any unpaid
or unreimbursed amounts at the maximum rate allowable by law or eighteen
percent (18%), whichever is less, from the due date until paid by LESSEE.
24. TIME OF THE ESSENCE. Time is of the essence of the LEASE. This
provision shall not be waived by the acceptance on occasion of late or
defective performance.
25. DEFAULT. LESSEE shall be in default if (a) LESSEE shall fail to pay
rent or any other amount provided for under the LEASE within five (5) days
after the same becomes due and payable, or (b) LESSEE fails to observe, keep
or perform any other provision of the LEASE or of any other agreement with
LESSOR, and such failure shall continue for a period of ten (10) days; or (c)
LESSEE shall abandon the EQUIPMENT; or (d) except as inconsistent with
Federal Bankruptcy Law, any proceeding in bankruptcy, receivership or
insolvency shall be commenced against LESSEE or its property or any guarantor
or such guarantor's property, LESSEE or any guarantor files voluntarily for
bankruptcy or reorganization, or LESSEE or any guarantor makes an assignment
for the benefit of its creditors; or (e) LESSEE or any guarantor makes any
misrepresentation or false statement as to its credit or financial standing
in connection with the execution or the further performance of the LEASE; or
(f) any attachment or execution be levied on any of LESSEE's property; or (g)
LESSEE permits any other entity or person to use the EQUIPMENT without the
prior written consent of LESSOR; or (h) in the business and affairs of LESSEE
or any guarantor there occurs a material change which shall impair the
security of the EQUIPMENT or increase LESSOR's credit risk involved in the
LEASE.
26. REMEDIES. In the event of LESSEE default, LESSOR shall have the right
and option, but shall not be obligated, to exercise any one or more of the
following remedies, which remedies or any of them may be exercised by LESSOR
without notice to LESSEE and without any election of remedies by LESSOR and,
if the obligations of LESSEE are guaranteed by a guarantor or guarantors,
LESSOR shall not be obligated to proceed against any such guarantor or
guarantors before resorting to its remedies against LESSEE under the LEASE:
(a) to the extent permitted under applicable law, LESSOR and/or its agents
may, without notice or legal process, enter onto any premises of or under
control of LESSEE or any agent of LESSEE where the EQUIPMENT may be or is
believed to be located and repossess the EQUIPMENT, disconnecting and
separating all thereof from any other property, using all means necessary or
permitted by law, LESSEE hereby expressly waiving any right of action of any
kind whatsoever against LESSOR arising out of such access to or removal,
repossession or retention of the EQUIPMENT; (b) LESSOR may declare all sums
due and to become due under the LEASE immediately due and payable and
institute litigation to collect the same; (c) LESSOR may institute litigation
to collect all rents and other amounts due as of the date of such default
together with any sums that may accrue up to the date of trial; (d) LESSOR
may institute litigation to specifically enforce the terms of the LEASE; (e)
LESSOR may terminate the LEASE; (f) LESSOR may require LESSEE to return the
EQUIPMENT pursuant to Section II; and/or (g) LESSOR may pursue any other
remedy now, or hereafter, existing in law or equity. However, damages for any
future rentals and/or LESSOR's residual value in the EQUIPMENT shall be
discounted to present value at a discount rate equal to six percent (6%) per
annum. In the event of any default by LESSEE under the LEASE, LESSOR may at
its sole discretion, although it shall not be obligated to do so, sell the
EQUIPMENT at a private or public, cash or credit sale, or may re-let the
EQUIPMENT for a term and a rental which may be equal to, greater than, or
less than provided in the LEASE. Any proceeds of sale or any rental payments
received under the new lease - less LESSOR's expenses of taking possession,
reasonable attorney fees and/or collection fees, storage and/or
reconditioning costs, the costs of sale or re-letting, and less LESSOR's fair
market residual value in the EQUIPMENT - shall be applied to LESSEE's
obligations under the LEASE, and LESSEE shall remain liable for the balance.
LESSEE's liability shall not be reduced by reason of any failure of LESSOR to
sell or re-let.
27. EXPENSES OF ENFORCEMENT, ATTORNEY FEES. In the event of any default,
LESSEE shall pay LESSOR a sum equal to all expenses, including attorney fees,
if any, incurred by LESSOR in connection with the enforcement of any of
LESSOR's remedies and all expenses of repossessing, storing, repairing, and
selling or re-letting the EQUIPMENT together with interest on such amount at
the maximum rate allowable by law or eighteen percent (18%), whichever is
less, from the date such amount is paid by LESSOR. In the event litigation is
instituted to enforce any of the terms of the LEASE, the prevailing party
shall be entitled to recover from the other party such sum as the court may
judge reasonable as attorney fees at trial and upon appeal, in addition to
all other sums provided for by law.
28. SUCCESSOR INTERESTS. Subject to any prohibition against assignment
contained herein, the LEASE
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shall be binding upon and inure to the benefit of the heirs, successors and
assigns of the parties. As used in the LEASE, the term "LESSOR" shall include
any assignee or secured party of LESSOR where appropriate.
29. MULTIPLE LESSEES. If more than one LESSEE is named herein, the
reference to LESSEE refers to each and the liability of each shall be joint
and several.
30. NOTICES. Any written notice or demand under the LEASE may be given to a
party by mail at its address set forth on the Lease Schedule or at such
address as the party may provide in writing from time to time. Notice and
demand so made shall be effective when deposited in the United States mail
duly addressed with postage prepaid.
31. WAIVER. Failure of LESSOR at any time to require performance of any
provision of the LEASE shall not limit any right of LESSOR to enforce that
provision, nor shall any waiver by LESSOR of any breach of any provision be a
waiver of any succeeding breach of that provision or a waiver of that
provision itself or any other provision.
32. NUMBER AND CAPTIONS. As used herein, the singular shall include the
plural, and the plural the singular. All captions used herein are intended
solely for convenience of reference and shall in no way limit or explain any
of the provisions of the LEASE.
33. DUPLICATE ENFORCEABLE AS ORIGINAL. LESSEE hereby consents to the use of
the original Lease Schedule, along with a photocopy of the fully executed
Master Lease Agreement, for all purposes including, but not limited to,
evidence in litigation or any other judicial proceeding.
34. SEVERABILITY. If any provision of the LEASE is held invalid, such
invalidity shall not affect other provisions which can be given effect
without the invalid provision.
35. ENTIRE AGREEMENT. This Master Lease Agreement and the Lease Schedule,
represent the entire, final and complete agreement of the parties pertaining
to the lease of the EQUIPMENT and supersede or replace all written and oral
agreements heretofore made or existing by and between the parties of their
representatives insofar as the lease of the EQUIPMENT is concerned, and no
modification or addition to the LEASE shall be binding unless agreed by a
corporate officer, against whom enforcement is sought.
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- PLEASE REQUEST ANY CHANGES DESIRED -
LESSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL OF THE TERMS AND
CONDITIONS CONTAINED IN THIS MASTER LEASE AGREEMENT AND THAT THESE TERMS AND
CONDITIONS SHALL GOVERN EACH LEASE ENTERED INTO BY THE PARTIES.
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LESSOR Date 8/27/98 LESSEE Date 8/23/98
FIRST CORP ONLINE SPECIALTY RETAILING, INC.
dba GREAT FOOD ONLINE
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Full Legal Name Of Lessee
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO BY: X ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ CHAIRMAN
------------------- ------------------------------
▇▇▇ ▇▇▇▇▇▇ (TITLE)
THIS MASTER LEASE AGREEMENT WILL NOT BY:
BIND LESSOR OR BECOME EFFECTIVE UNTIL ------------------------------
AND UNLESS LESSOR ACCEPTS IT BY (TITLE)
SIGNING ABOVE.
BY:
------------------------------
(TITLE)
[ILLEGIBLE]
------------------------------
WITNESS
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[LETTERHEAD]
MASTER LEASE AGREEMENT NUMBER 912385
CONTINUING CORPORATE RESOLUTION AUTHORIZING LEASES
Resolution of the Board of Directors of ONLINE SPECIALTY RETAILING, INC. dba
GREAT FOOD ONLINE (the "Corporation").
Recitals
WHEREAS, the jurisdiction of the Corporation's incorporation empowers
corporations to lease real and personal property; and
WHEREAS, the jurisdiction of the Corporation's incorporation expressly
provides that the powers of the Corporation are to be exercised by its Board
of Directors, subject to certain limitations; and
WHEREAS, the Board of Directors of the Corporation deems it to be in the
best interests of the Corporation and its shareholders to enter into a Master
Lease Agreement and one or more Lease Schedules thereunder with LESSOR,
whether now or hereafter, for the lease of certain personal property
described in each such Lease Schedule.
Resolutions
NOW THEREFORE, IT IS RESOLVED, that the Corporation enter into the Master
Lease Agreement and one or more Lease Schedules thereunder, for the lease of
certain personal property described in the Lease Schedules on the terms and
conditions set forth in the Master Lease Agreement and the Lease Schedules,
and that the Corporation consents to the use of original Lease Schedules,
along with a photocopy of the fully executed Master Lease Agreement, and
photocopies of the related documents (includeding this Corporate Resolution
Authorizing Leases), for all purposes including, but not limited to, evidence
in litigation or any other judicial proceeding; and it is further
RESOLVED, that ▇▇▇ ▇▇▇▇▇▇, who is the CHAIRMAN of this Corporation, is
authorized and directed to execute and deliver the Master Lease Agreement,
the Lease Schedules, and any other related documents; and it is further
RESOLVED, that ▇▇▇ ▇▇▇▇▇▇, who is the CHAIRMAN of this Corporation, is
authorized to appoint an alternative employee or agent of the Corporation,
via telephonic or other communication with LESSOR, to provide verbal
verification of delivery and acceptance of equipment under the Master Lease
Agreement and Lease Schedules. Such appointment and subsequent verification
and acceptance shall be binding upon the Corporation.
CERTIFICATE
I, ▇▇▇ ▇▇▇▇▇▇, certify:
That I am the duly elected and acting Secretary of ONLINE SPECIALTY
RETAILING, INC. dba GREAT FOOD ONLINE, a corporation;
That the foregoing Corporate Resolution Authorizing Leases was duly adopted
by the Board of Directors in conformity with the Articles of Incorporation
and Bylaws of the Corporation; and
That the resolution has been neither modified nor rescinded and is, as of the
date of this Certificate, in full force and effect, and will remain in full
force and effect until such time as the Board of Directors terminates the
resolution and notifies LESSOR of such termination in writing. Such
termination shall not affect the Master Lease Agreement and Lease Schedules
executed prior to LESSOR's receipt of the notice of termination.
IN WITNESS WHEREOF, I set my hand this 23rd day of August, 1998
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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CORPORATE SECRETARY
▇▇▇ ▇▇▇▇▇▇
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SECURITY AGREEMENT
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It is hereby agreed this 23rd day of August 1998, by and between ONLINE
SPECIALTY RETAILING, INC. dba GREAT FOOD ONLINE of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Debtor") and FIRSTCORP of ▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Secured Party"):
1. To secure the payment, with interest thereon, and the performance
and fulfillment of all Obligations (as hereinafter defined) of Debtor to
Secured Party, Debtor hereby grants to Secured Party a security interest in
all equipment of every kind and nature, together with all proceeds, products
and replacements thereof and substitutions and accessions thereto
(hereinafter collectively called "Property"), wherever located, now or
hereafter belonging to Debtor.
2. The term "Obligations" as used herein shall mean and include any
and all contract or account payables, leases, loans, advances, payments,
extensions of credit, endorsements, guaranties, benefits, and financial
accommodations heretofore and hereafter made, granted, or extended by Secured
Party to Debtor or which Secured Party has or will become obligated to make,
grant or extend to or for the account of Debtor; any and all interest,
commissions, obligations, liabilities, indebtedness, charges, and expenses
heretofore and hereafter chargeable against Debtor by Secured Party or owing
by Debtor to Secured Party or upon which Debtor may be or have become liable
as endorser or guarantor; any and all renewals or extensions of any of the
foregoing, no matter how or when arising and whether under any present or
future agreement or instrument between Debtor and Secured party or otherwise,
and the amount due upon any notes or other instruments or documents given to
or received by Secured Party for or on account of the foregoing; and the
performance and fulfillment by Debtor of all the terms, conditions, promises,
covenants, provisions, and warranties contained in the Agreement and in any
note, instrument, or document secured hereby and in any present or future
agreement or instrument between Debtor and Secured Party.
3. Debtor covenants and warrants to Secured Party that:
(a) Debtor is the lawful owner of the Property and has the sole
right and lawful authority to make this Agreement; the Property and every
part thereof is free and clear of all liens and encumbrances of every kind
and description (except any held by Secured Party); and Debtor will warrant
and defend the Property against all claims and demands of all persons.
Secured Party is hereby authorized to file one or more financing statements,
signed only by Secured Party, and/or a reproduction hereof as a financing
statement in order to perfect its security interest.
(b) Debtor will keep the Property free and clear of all
attachments, levies, taxes, and lien encumbrances of every kind, nature, and
description; Debtor, at its own cost and expense, will maintain and keep the
Property in a good state of repair; and Debtor will not sell, assign,
mortgage, lease, pledge, or otherwise dispose of the Property or any interest
therein without the prior written consent of Secured Party.
(c) Debtor will insure the Property in the name of Secured Party
or its assignee against loss or damage by fire and extended coverage perils,
theft, burglary and pilferage, in amounts and under policies acceptable to
Secured Party, the proceeds to be payable to Secured Party or assignee. All
premiums thereon shall be paid by Debtor. Debtor hereby irrevocably appoints
Secured Party as Debtor's Attorney-in-Fact to make claim for, receive payment
of, and execute and endorse all documents, checks, or drafts received in
payment for any loss or damage under any of said insurance policies.
(d) The Obligations are undertaken for commercial purposes only
and the Property is in the possession of Debtor at its principal place of
business, or, if not, at a location which has been agreed to by Secured Party
prior to the execution hereof. Debtor will not remove the Property from said
location without prior written consent of Secured Party, nor change its
present business location(s) or name(s) without at least thirty days prior
written notice to Secured Party. At all times, Debtor will allow Secured
Party or its representatives free access to and right of inspection of the
Property. At Secured Party's request, Debtor shall furnish its current
financial statements to Secured Party.
(e) Debtor shall comply (so far as may be necessary to protect
the Property and the lien of this Agreement thereon) with all of the terms
and conditions of leases, mortgages, or deeds of trust covering the premises
where the Property, or any portion thereof is located. Debtor shall also
comply with any orders, ordinances, laws, or statutes of any city, state, or
other governmental entity having jurisdiction with respect to the premises or
the conduct of business thereon.
4. Debtor shall be in default upon occurrence of any of the following
(hereinafter referred to as "Event of Default"):
(a) Debtor shall cease doing business, shall become insolvent, or
make an assignment for the benefit of creditors;
(b) Bankruptcy proceedings or proceedings for arrangement or
reorganization under any Bankruptcy Act or proceeding for the appointment of
a receiver, trustee, liquidator, or custodian for Debtor or any of Debtor's
property shall be commenced by or against Debtor;
(c) Debtor shall fail punctually and faithfully to fulfill,
observe, or perform any of the Obligations; or
(d) Any of the warranties, covenants, or representations made to
Secured Party by Debtor are to become untrue or incorrect in any adverse
respect, or if there shall be a substantial change in the management,
ownership, or control of Debtor.
5. If Debtor shall be in default hereunder, Secured Party shall have
the right to pursue any other now, or hereafter, existing in law or equity,
without prior notice or demand, and specially may enforce any one or more of
the following remedies, successively, alternately, or concurrently, without
waiving its right to enforce any other remedy or any Obligation according to
its terms:
(a) To the extent Debtor has failed to perform or fulfill an
Obligation, Secured Party may perform or fulfill the same, or cause the
performance or fulfillment thereof. The costs and expenses of performance or
fulfillment, including reasonable attorney fees, shall be a lien on the
Property, added to the amount of the Obligations, and payable on demand.
(b) Secured Party may take possession of the Property wherever it
may be, and enter any of the premises of Debtor with or without process of
law, and search for, take possession of, remove, or keep and store the same
in said premises, without liability for trespass nor charge for storage of
the Property, until sold. Debtor expressly waives any right to notice or
hearing in any action to recover possession of any or all of the Property.
(c) Secured Party may sell the Property or any part thereof and all
of Debtor's equity of redemption therein, if any, at public or private sale,
without notice or advertisement (such notice or advertisement being expressly
waived by Debtor), for cash or on credit and on such terms as Secured Party
may in its sole discretion elect. The proceeds of any sale shall be applied
first to pay all costs, expenses, and charges for repossessing, storing,
repairing, selling and/or leasing the Property, including attorney fees, and
second to the payment, partly or entirely, of the Obligations as Secured
Party may in its sole discretion elect. Debtor shall remain liable to
Secured Party for any deficiency.
(d) Secured Party may, upon filing suit to enforce or preserve its
rights under this Agreement or at any time while such suit is pending, apply
for and secure the appointment of a receiver to take possession of and
operate and manage Debtor's business or the Property and the income, rents,
and proceeds therefrom. The receiver may be an employee of Secured Party.
Debtor hereby expressly waives the requirement that Secured Party or the
receiver post bond upon the appointment of such receiver.
(e) Secured Party may appropriate and apply toward the payment of
the Obligations any and all balances, sums, property, credits, deposits,
accounts, reserves, collections, drafts, notes, or checks in or coming into
Secured Party's possession and belonging or owing to Debtor. For such
purposes, Secured Party may endorse the name of Debtor on any such instrument
made payable to Debtor for deposit, discount, or collection.
6. Debtor will indemnify and save Secured Party harmless from all
loss, damage, liability, and expense, including reasonable attorney fees,
that Secured Party may sustain or incur to obtain or enforce payment,
performance, or fulfillment of any of the Obligations; in the enforcement or
foreclosure of this Agreement; or in the prosecution or defense of any action
or proceeding either against Debtor or against Secured Party concerning any
matter growing out of or connected with this Agreement and/or any of the
Obligations or Property.
7. This Agreement cannot be changed or terminated orally. With respect
to Secured Party, only a writing, signed by an officer of Secured Party,
shall be effective to change, modify, waive, or terminate any of the
Obligations, this Agreement, or any other agreement between Debtor and
Secured Party. If Debtor is in default hereunder, and Secured Party fails to
demand full payment, performance, or fulfillment hereunder or fails to
otherwise exercise any right, privilege, remedy or option available to
Secured Party, such shall not be deemed a waiver of any right of Secured
Party. The acceptance by Secured Party of any payments subsequent to such
default shall not be deemed a waiver of any rights of Secured Party.
8. This Agreement may be assigned by Secured Party along with any and
all Obligations without notice to Debtor. Upon such assignment, Debtor agrees
not to assert against any assignee any defense, set-off, recoupment, claim,
counterclaim, or cross-complaint which Debtor may have against Secured Party,
whether arising hereunder or otherwise. All rights, remedies, options,
privileges, and elections given to Secured Party hereunder or otherwise shall
inure to the benefit of Secured Party or any assignee, and their respective
successors and assigns. Debtor may not transfer, pledge, or assign its
interests and obligations hereunder without the prior written approval of
Secured Party.
9. This Agreement shall not adversely affect any rights of Secured
Party under any other security agreement. This Agreement shall not be
construed as a waiver of any of the terms and provisions of any other
agreement, guaranty, or endorsement, all of which remain and continue in full
force and effect.
10. Any notices given or required hereunder shall be in writing, and
shall be delivered in person or shall be mailed to a party at its last known
address. Reasonable notification hereunder shall be any notification given or
sent at least five (5) days prior to the event for which such notification is
sent.
11. If Debtor shall be in default hereunder, Debtor shall pay Secured
Party a sum equal to all expenses, including attorney fees, if any, incurred
by Secured Party in connection with the enforcement of any of Secured Party's
remedies, together with all expenses of repossessing, storing, repairing and
selling and/or leasing the Property. If litigation is instituted to enforce
any of the terms of this Agreement, the prevailing party shall be entitled to
recover such sum as the court may judge reasonable as attorney fees and costs
of litigation, trial, and appeal, in addition to all other sums provided for
by law.
12. It is intended that each and every provision of this Agreement be
fully effective and enforceable according to its terms. If, however, any one
or more provisions hereof are in conflict with any statute or law and
therefore are not valid or enforceable, then each such provision shall be
deemed null and void, but to the extent of such conflict only and without
invalidating or affecting the remaining provisions hereof.
13. The Agreement shall be deemed to have been made and shall be
construed and enforced in accordance with the laws of the State of Oregon.
Any and all suits or actions for any and every breach hereof shall be
instituted and maintained in Multnomah County, Oregon.
IN WITNESS WHEREOF, this Agreement has been executed effective the date first
above-written.
SECURED PARTY: DEBTOR:
FIRSTCORP ONLINE SPECIALTY RETAILING, INC. dba GREAT FOOD
ONLINE
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇
Title: CEO Title: CHAIRMAN
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Date: 8/27/98 Date: 8/23/98
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