Exhibit 10.9
MASTER LEASE AGREEMENT
This agreement is made the 26/th/ day of October 1994 between MARKET FINANCIAL
CORPORATION with its principal office at ▇▇ ▇. ▇▇▇▇▇▇▇▇ #▇▇ ▇▇▇ ▇▇▇▇▇ (the
"Lessor"), and Resource Objectives, Inc. with its principal office at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Lessee").
1. LEASE; TERM; RENTAL. Lessor hereby leases to Lessee and Lessee hereby
rents from Lessor the equipment described on any attached schedule (hereafter,
with all replacement parts, repairs, additions and accessories incorporated
therein and/or affixed thereto, referred to as the "Equipment"), on terms and
conditions set forth in this lease and on any such schedule (hereinafter such
lease and any schedule referred to as the "lease") commencing (the "Commencement
Date") on the first day of the month following the date that the equipment is
delivered to and installed at Lessee's premises (the "Installation Date") and
continuing thereafter for the full term indicated on such schedule. Each
monthly payment of rent shall be payable on the first day of each month
commencing with the Commencement Date provided, however, if the Installation
Date does not fall on the first day of a month, the first payment shall be a pro
rata portion of the monthly rental, calculated on a 30-day basis, and payable on
the Installation Date. All payments of rent shall be made to the Lessor at its
address or at such other place as Lessor may designate in writing. Lessee
hereby authorizes Lessor to insert in this lease the serial numbers and other
identification data of the Equipment, and dates or other omitted factual matters
when determined by Lessor.
2. PURCHASE AND ACCEPTANCE: NO WARRANTIES BY LESSOR. Lessee requests
Lessor to purchase the Equipment from a seller (the "Seller") and arrange for
delivery, to Lessee at Lessee's expense, which shall be deemed complete upon the
Installation Date. Lessor shall have no responsibility for delay or failure of
Seller to fill the order for the Equipment. LESSOR, NEITHER BEING THE
MANUFACTURER OF, NOR A DEALER IN, NOR SUPPLIER OF THE EQUIPMENT, MAKES NO
WARRANTY TO ANYONE, AS TO ANY MATTER WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THE FITNESS, MERCHANTABILITY, DESIGN, CONDITION, CAPACITY,
PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT OR ITS MATERIAL OR WORKMANSHIP
OR THE TAX OR ACCOUNTING TREATMENT OF THE LEASE. LESSOR DISCLAIMS ANY LIABILITY
FOR LOSS, DAMAGE OR INJURY TO LESSEE OR THIRD PARTIES AS A RESULT OF ANY
DEFECTS, LATENT OR OTHERWISE, IN THE EQUIPMENT. LESSOR SHALL HAVE NO OBLIGATION
TO MAINTAIN, INSTALL, ERECT, TEST, ADJUST OR SERVICE THE EQUIPMENT. LESSOR SHALL
NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES HOWSOEVER
ARISING. IF THE EQUIPMENT IS UNSATISFACTORY FOR ANY
REASON, LESSEE SHALL MAKE CLAIM ON ACCOUNT SOLELY AGAINST THE MANUFACTURER
AND/OR THE SUPPLIER AND SHALL NEVERTHELESS PAY LESSOR ALL RENT AND OTHER MONIES
PAYABLE HEREUNDER. Lessor agrees to assign to Lessee, solely for the purpose of
making and prosecuting any such claim, any rights it may have against the Seller
for breach of warranty or representation respecting the Equipment.
Notwithstanding any fees that may be paid to Seller or any agent of Seller,
Lessee understands and agrees that neither the Seller nor any agent of the
Seller is an agent of Lessor and that neither the Seller nor his agent is
authorized to waive or alter any term or condition of this lease.
3. TITLE. Lessor shall at all times retain title to the Equipment. All
documents of title and evidences of delivery shall be delivered to Lessor.
Lessee shall not change or remove any insignia or lettering which is on the
equipment at the time of delivery thereof, or which is thereafter placed
thereon, indicating Lessor's ownership thereof; and at any time during the lease
term, upon request of Lessor, Lessee shall affix to the Equipment, in a
prominent place, labels, plates or other markings supplied by Lessor stating
that the Equipment is owned by Lessor. Lessor is hereby authorized by Lessee to
cause this lease, or any statement or other instrument in respect of this lease
showing the interest of Lessor in the Equipment, including Uniform Commercial
Code Financing Statements, to be filed or recorded and refiled and re-recorded,
and grants Lessor the right to execute Lessee's name thereto. Lessee agrees to
execute and deliver any statement or instrument requested by lessor for such
purpose. Lessee shall at its expense protect and defend Lessor's title against
all persons claiming against or through Lessee, at all times keeping the
Equipment free from any legal process or encumbrance whatsoever, including but
not limited to liens, attachments, levies and executions, and shall give Lessor
immediate written notice thereof and shall inemnify Lessor from any loss caused
thereby. Lessee shall execute and deliver to Lessor, upon Lessor's request,
such further instruments and assurances as Lessor deems necessary or advisable
for the confirmation or perfection of Lessor's rights hereunder.
4. CARE AND USE OF EQUIPMENT. Lessee shall maintain the Equipment in good
operating condition, repair, and appearance, and protect the same from
deterioration, other than normal wear and tear; shall use the Equipment in the
regular course of business only, within its normal capacity, without abuse, and
in a manner contemplated by the Seller; shall comply with all laws, ordinances,
regulations, requirements and rules with respect to the use, maintenance and
operation of the equipment; shall not make any modification, alteration or
addition to the Equipment (other than normal operating accessories or controls
which shall, when added to the Equipment, become the property of the Lessor)
without the prior written consent of Lessor, which shall not be unreasonably
withheld; shall not so affix the Equipment to realty as to change its nature to
real property or fixture, and agrees that the Equipment shall remain personal
property at all times regardless of how attached or installed; shall keep the
Equipment at the location shown on the schedule, and shall not remove the
Equipment without the consent of Lessor, which shall not be unreasonably. Lessor
shall have the right during normal hours, upon reasonable prior notice to the
Lessee and subject to applicable laws and regulations, to enter upon the
premises where the Equipment is located in order to inspect, observe or remove
the Equipment, or otherwise protect Lessor's interest. For the purpose of
assuring Lessor that the Equipment will be properly serviced, Lessee agrees, in
the event that Lessor so requests, to cause
the Equipment to be maintained by the Seller pursuant to the Seller's standard
preventative maintenance contract or a comparable maintenance contract.
5. NET LEASE: TAXES. Lessee intends the rental payments hereunder to be
net to Lessor, and Lessee shall pay all sales, use, excise, personal property,
stamp, documentary and ad valorem taxes, license and registration fees,
assessments, fines, penalties and similar charges imposed on the ownership,
possession or use of the Equipment during the term of this lease; shall pay all
taxes (except Federal or State net income taxes) imposed on Lessor or Lessee
with respect to the rental payments hereunder, and shall reimburse Lessor upon
demand for any taxes paid by or advanced by Lessor with interest from date of
Lessor's payment. Lessee shall file all returns required therefor and furnish
copies to Lessor.
6. INDEMNITY. Lessee shall and does hereby agree to indemnify and save
Lessor, its agents, servants, successors, and assigns harmless from any and all
liability, damages or loss, including reasonable counsel fees, arising out of
the ownership, selection, possession, leasing, renting, operating (regardless of
where, how and by whom operated) control, use, condition (including but not
limited to latent and other defects, whether or not discoverable by Lessee),
maintenance, delivery and return of the Equipment, or in the event that the
Lessee shall be in default hereunder, arising out of the condition of any item
of Equipment sold or disposed of after use by the Lessee. Lessor disclaims and
shall not be responsible for any loss, damage or injury to persons or property
caused by the Equipment, whether arising through the negligence of the Lessor or
imposed by law. The indemnities and obligations herein provided shall continue
in full force and effect notwithstanding the termination of this Agreement.
7. INSURANCE. Lessee shall keep the Equipment insured against all risks
of loss or damage from every cause whatsoever for not less than the replacement
cost of the Equipment or the total unpaid rentals, whichever sum is greater. The
amount of such insurance shall be sufficient so that neither Lessor nor Lessee
will be considered a co-insurer. Lessee shall also carry public liability
insurance, both personal injury and property damage, covering the Equipment. All
such insurance shall be in form and with companies satisfactory to Lessor and
shall provide that losses, if any shall be payable to Lessor or its assignee.
All liability insurance shall include Lessor and/or assignee as named insured
and all casualty insurance shall name Lessor and/or assignee as loss payee.
Lessee shall pay the premiums for such insurance and deliver to Lessor
satisfactory evidence of the insurance coverage required hereunder. Each insurer
shall agree, by endorsement upon the policy or policies issued by it or by
independent instrument furnished to Lessor, that it will give Lessor 30 days'
prior written notice of the effective date of any alteration or cancellation of
such policy. The proceeds of such insurance payable as a result of loss or of
damage to any item of the Equipment shall be applied to satisfy Lessee's
obligations as set forth in Paragraph 8 below. Lessee hereby 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 any such insurance policy.
8. RISK OF LOSS. Lessee hereby assumes the entire risk of loss, damage or
destruction of the Equipment from any and every cause whatsoever during the term
of this lease
and thereafter until redelivery to Lessor. In the event of loss, damage or
destruction of any item of equipment, Lessee at its expense (except to the
extent of any proceeds of insurance provided by Lessee which shall have been
received by Lessor as a result of such loss, damage or destruction), and at
Lessor's option, shall either (a) repair such item, returning it to its previous
condition, unless damaged beyond repair, or (b) pay Lessor all unpaid rentals as
may be allocated to such item, or (c) replace such item with a like item
acceptable to Lessor, in good condition and of equivalent value, which shall
become property of Lessor, included within the term "Equipment" as used herein,
and leased from Lessor herewith for the balance of the full term of this lease.
9. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATION. In the event Lessee
fails to comply with any provision of this lease, Lessor shall have the right,
but shall not be obligated, to effect such compliance on behalf of Lessee upon
ten (10) days prior written notice to Lessee. In such event, all moneys expended
by, and all expenses of, Lessor in effecting such compliance shall be deemed to
be additional rental, and shall be paid by Lessee to Lessor at the time of the
next monthly payment of rent.
10. LEASE IRREVOCABILITY AND OTHE COVENANTS AND WARRANTIES OF LESSEE.
Lessee agrees that this lease is irrevocable for the full term thereof; that
Lessee's obligations under this lease are absolute and shall continue without
abatement and regardless of any disability of Lessee to use the Equipment or any
part thereof because of any reason including, but not limited to war, act of
God, governmental regulations, strike, loss, damage, destruction, obsolescence,
failure of or delay in delivery, failure of the Equipment properly to operate,
termination by operation of law, or any other cause. Lessee warrants that the
application, statements and financial reports submitted by it to Lessor are
material inducements to the execution by Lessor of this lease. Lessee warrants
that such applications, statements and reports are, and all information
hereafter furnished by Lessee to Lessor will be, true and correct in all
material respects as of the date submitted and that no such application,
statement or report omits any material fact necessary to ▇▇▇▇▇ such application,
statement or report not misleading. Lessee agrees to procure for Lessor such
estoppel certificates, landlord's and mortgagee's waivers or other similar
documents as Lessor may reasonably request. Lessee warrants that this lease has
been duly authorized, and that no provisionn of this lease is inconsistent with
Lessee's charter, by-laws, or any loan or credit agreement or other instrument
to which Lessee is a party or by which Lessee or its property may be bound or
affected.
11. DEFAULT. Each of the following events is an "Event of Default": (a)
Lessee's failure to pay, when due, any Rental payments or any other payment
hereunder; or (b) Lessee's failure to pay, when due, any indebtedness of Lessee
to Lessor arising independently of the Lease and such failure shall continue for
five (5) days; or (c) Lessee's failure to perform any of the other terms,
covenants or conditions of the Lease and such failure shall continue for ten
(10) days after written notice; or (d) any representation, warranty or statement
made by Lessee or any guarantor of the Lease ("Guarantor"), whether contained in
the Lease or in any guaranty, application, financial statement or other document
delivered to Lessor in connection with the Lease, shall be untrue in any
material respect; or (e) Lessee becomes insolvent or makes an assignment for the
benefit of creditors; or (f) a receiver, trustee, conservator or liquidator of
Lessee of all or a substantial part of Lessee's assets is appointed with or
without the application or consent of Lessee; or (g) a petition is filed by or
against Lessee under the Bankruptcy Code or under any other insolvency law or
laws providing for the relief of debtors.
12. REMEDIES. If an Event of Default occurs, Lessor may exercise all
remedies available to Lessor under applicable law and without limiting the
foregoing, (a) recover from Lessee all Rental payments and other payments which
are due and unpaid; (b) at any time, declare immediately due and payable the
aggregate of all Rental payments and other payments which are payable under the
Lease for the full term thereof and recover from Lessee the present value,
computed to the day of default, at the rate of six percent (6%) per annum, of
(i) such aggregate rent, plus (ii) the anticipated residual value of the
Equipment at the expiration of the term of the Lease; and (c) without notice of
any kind to Lessee, and to the fullest extent permitted by law, enter into the
premises where the Equipment is located and take possession of, and remove the
Equipment, without liability to Lessee arising out of such entry, taking of
possession or removal. Lessor may, at its option, store, use, lease, sell, or
otherwise dispose of the removed Equipment and shall credit Lessee with any sums
received from the disposition of the Equipment after deducting all expenses of
retaking and disposition.
If Lessee fails to comply with any provision of the Lease, Lessor shall
have the right, but not the obligation, to affect compliance on behalf of Lessee
upon ten (10) days prior written notice to Lessee. In such event, all monies
expended by Lessor, and all expenses of Lessor in effecting such compliance,
shall be deemed to be additional rent, and shall be paid by Lessee to Lessor at
the time of the next Rental payment.
Lessee shall also be liable for and shall pay to Lessor all (a) all
expenses incurred by Lessor in connection with the enforcement of any of
Lessor's remedies, (b) Lessor's reasonable attorney's fees and expenses, and (c)
interest on all sums due Lessor from the date when the sums became due until
paid, at the rate of one and one half percent (1 1/2%) per month but only to the
extent permitted by law.
When any payment is not made by Lessee within ten (10) days of the date
when due, Lessee agrees to pay to Lessor, not later than one month thereafter,
in addition to all amounts payable by Lessee as a result of the exercise of any
of the remedies provided in the Lease, an amount calculated at the rate of ten
cents ($.10) per one dollar of each such delayed payment, as an administrative
fee to offset Lessor's collection costs, but only to the extent permitted by
law.
All remedies of Lessor are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently. The exercise of any one remedy shall not be deemed an
election of such remedy or preclude the exercise of any other remedy. No
failure on the part of the Lessor to exercise, and no delay in exercising, any
right or remedy shall operate as a waiver thereof or modify the terms of the
Lease. In no event shall Lessor's recovery exceed the maximum recovery
permitted by law.
13. ASSIGNMENT. Lessor may, without Lessee's consent, assign or transfer
this lease or any Equipment, any rent, or any other sums due or to become due
hereunder, and in such event Lessor's assignee shall have all the rights,
powers, privileges and remedies of Lessor hereunder. Lessor hereby agrees that
upon such assignment Lessee shall not assert, as against such assignee, any
defense, setoff, recoupment, claim or counterclaim, whether arising under this
lease transaction or otherwise as a defense to the enforcement of this lease or
recovery of the
Equipment by assignee. Lessee shall not assign this lease or any interests
hereunder and shall not enter into any sublease with respect to the Equipment
covered hereby without Lessor's prior written consent.
14. RETURN OF PROPERTY. Upon the termination or expiration of this lease
or any attached schedule, or any extension thereof, the Lessee shall forthwith
deliver, freight prepaid, the Equipment to the Lessor, at an address designated
by Lessor, complete and in good order and condition, reasonable wear and tear
alone excepted. The Lessee shall also pay to the Lessor such sums as may be
necessary to cover replacement for all damaged, broken or missing parts of the
Equipment. If upon such expiration or termination the Lessee does not
immediately return the Equipment to the Lessor, the Equipment shall continue to
be held and leased hereunder, and this lease shall thereupon be extended
indefinitely as to term at the same monthly rental, subject to the right of
either the Lessee or the Lessor to terminate the Lease upon thirty (30) days'
written notice, whereupon the Lessee shall forthwith deliver the Equipment to
the Lessor as set forth in this Paragraph.
15. ENTIRE AGREEMENT; CHANGES. This lease and any attached schedule
contains the entire agreement between the parties and may not be altered,
amended, modified, terminated or otherwise changed except in writing and signed
by an officer of the Lessor and Lessee.
16. NOTICE. All notices under the Lease shall be sufficient if given
personally or mailed to the party intended at its respective address set forth
herein, or at such other address as said party may provide in writing from time
to time. Any such notice mailed to said address shall be effective when
deposited in the United States mail, duly addressed, postage prepaid.
17. BINDING EFFECT. The Lease shall inure to the benefit of, and be
binding upon, the parties and their respective personal representatives,
successors and assigns. Lessor and Lessee intend the Lease to be a valid and
subsisting legal instrument, and agree that no provision of the Lease which may
be deemed unenforceable shall in any way invalidate any other provision or
provisions of the Lease, all of which shall remain in full force and effect.
18. GOVERNING LAW; JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF JURY
TRIAL. The Lease shall be governed by the laws of the State of New York.
Lessee hereby consents to the jurisdiction of any Federal or State Court,
located in New York County, New York with respect to any action commenced
hereunder. Nothing contained herein is intended to preclude Lessor from
commencing any action hereunder in any court having jurisdiction thereof.
Lessee agrees that service of process in any action shall be sufficient if made
by first class certified mail, return receipt requested to the address of Lessee
hereunder. TO THE EXTENT PERMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN ANY
ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LEASE, OR THE
TRANSACTIONS CONTEMPLATED HEREIN.
LESSOR; LESSEE:
MARKET FINANCIAL CORPORATION Resource Objectives, Inc.
By /s/ By /s/
-------------------------- ------------------------
Pres. President
-------------------------- ------------------------
Title Title
MASTER LEASE AGREEMENT SCHEDULE 1
Forming a part of the Master Lease Agreement between Resource Objectives, Inc.,
Lessee and Market Financial Corporation, Lessor, dated October 26, 1994. This
schedule incorporates the terms and conditions of said Master Lease Agreement.
EQUIPMENT: Compunetix 96-Port Mini-Contex System
(5) Additional Analog Ports
(2) 24 Port Expansion Cards
EQUIPMENT LOCATION: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INSTALLATION DATE: 12/1/94
COMMENCEMENT DATE: 12/1/94
INITIAL TERM OF LEASE: 48 MONTHS
MONTHLY RENTAL: $3,750.00 and no tax. The first and last two payments
($11,250.00) are due upon the signing of this schedule. A stub payment of __ for
the period to __ is also due upon the signing of this schedule.
ADDITIONAL PROVISIONS: At the expiration of the initial lease term, Lessee
shall have the option to (a) Return the equipment to Lessor, (b) Purchase the
equipment for its then Fair Market Value, or (c) Renew the lease for a rental
amount based on the Fair Market Value. (d) Fair Market Value shall not exceed
$6,250.00.
Lessee must give Lessor at least 90 days written notice regarding its intention
to acquire the equipment at lease expiration. The lease will remain in effect
and payments will be due and payable until such notice is given.
Agreed to:
Lessee: Lessor:
RESOURCE OBJECTIVES, INC. MARKET FINANCIAL CORPORATION
By /s/ By /s/
------------------------- ----------------------------
President Pres
------------------------- ----------------------------
Dated October 26, 1994 Dated Accepted 12/1/94
GUARANTY
1. Recitals.
(a) This guaranty is made by the undersigned (hereinafter each
called a "Guarantor"), in favor of MARKET FINANCIAL CORPORATION (hereinafter
called "Market").
(b) Market intends to enter into one or more equipment leases, loans
or other financial transactions (collectively "Transactions") with Resource
Objectives, Inc. (hereinafter called "Debtor") evidenced by certain equipment
leases and schedules, notes, security agreements or other instruments
("Agreements").
(c) Guarantor has a financial or other interest in Debtor and/or the
Transactions, and expects to obtain a financial or other benefit if Market
enters into the Transactions.
2. Guaranty.
In order to induce Market to enter into the Transactions and the Agreements
with Debtor, and in consideration thereof,
(a) Guarantor, unconditionally guarantees to Market the prompt
payment, when due, of all now existing or hereafter arising indebtedness or
obligations of Debtor to Market of every kind or nature, however arising
(hereinafter called the "indebtedness");
(b) Guarantor unconditionally guarantees to Market the prompt, full
and faithful performance and discharge by Debtor of each and every term,
condition, agreement, representation, warranty and provision on the part of
Debtor made in connection with the Transactions and Agreements or in any
modification, amendment or substitution thereof.
(c) Guarantor shall, on demand, reimburse Market for all expenses,
collection charges, court costs and reasonable attorneys' fees incurred by
Market in endeavoring to collect or enforce any of Market's rights and remedies
against Debtor and/or Guarantor or any other person or concern liable thereto.
(d) Guarantor shall pay all of the foregoing amounts and perform all
of the foregoing terms, covenants and conditions notwithstanding that any part
or all of the Transactions or Agreements shall be void or voidable as against
Debtor or any of Debtor's creditors, including a trustee in bankruptcy of
Debtor, by reason of any fact or circumstances including, without limitation,
failure by any person to file any document or to take any other action to make
any of the Transactions or Agreements enorceable in accordance with their
respective terms. Guarantor also agrees that the obligations of Guarantor
hereunder shall not be relieved in the event Market fails to protect or
otherwise impairs any collateral.
3. Primary Nature of Guaranty.
The liability of Guarantor hereunder is primary, absolute, unconditional,
direct and independent of the obligations of Debtor. Nothing shall discharge or
satisfy Guarantor's liability hereunder except the full performance and payment
of all of Debtor's obligations to Market, with interest. Guarantor shall have no
right of subrogation, reimbursement or indemnity whatsoever and no right of
recourse to or with respect to any assets or property of Debtor, unless and
until all of said obligations have been paid or performed in full.
4. Waivers by Guarantor.
(a) Guarantor waives notice of acceptance hereof and of all notices
and demands of any kind to which Guarantor may be entitled including, without
limitation, all demands of payment and notice of nonpayment, protest and
dishonor to Guarantor, or Debtor, or the makers or endorsers of any notices or
other instruments for which Guarantor is or may be liable hereunder. Guarantor
further waives notice of and hereby consents to any agreement or arrangement for
subordination, composition, arrangement, discharge or release of the whole or
any part of Debtor's obligations under any of the Transactions or Agreements or
release of other guarantors, or for compromise of any sums due in any way
whatsoever, and the same shall in no way impair Guarantor's liability hereunder.
(b) Guarantor waives any right to require Market to: (i) proceed
against Debtor; (ii) proceed against or exhaust any security held by Market of
Debtor or others; or (iii) pursue any other remedy which Market may have,
including against any other guarantor of Debtor's obligations to Market.
(c) Guarantor waives any and all right to a trial by jury in any
action or proceeding based hereon. Guarantor also waives the benefit of any
statue of limitations affecting Guarantor's liability hereunder or the
enforcement thereof.
5. Guarantor's Property as Security for Guaranty.
All sums at any time to Guarantor's credit and any of Guarantor's property
at any time in Market's possession shall be deemed held by Market as security
for any and all of Guarantor's obligations to Market hereunder.
6. Subordination
Any and all present and future indebtedness and obligations of Debtor to
Guarantor are hereby postponed in favor of and subordinated to the full payment
and performance of all present and future obligations of Debtor to Market.
7. Events of Default.
If Guarantor or Debtor should at any time become insolvent, or make a
general assignment for the benefit of creditors, or if a proceeding shall be
commenced by, against or in respect of Guarantor or Debtor under the Federal
Bankruptcy Code or any state insolvency law, or if any individual Guarantor
dies, any and all of Guarantor's obligations under this Guaranty shall, at
Market's option, forthwith become due and payable without notice.
8. Continuing Nature of Guaranty.
This is a continuing Guaranty. This instrument shall continue in full force
and effect until terminated by the actual receipt by Market of written notice of
termination from Guarantor. Such termination shall be applicable only to
Agreements or Transactions having their inception thereafter, and rights and
obligations arising out of Agreements or Transactions having their inception
prior to such termination shall not be affected.
9. No Waiver by Market
No failure, omission or delay on the part of Market in exercising any
rights hereunder or in taking any action to collect or enforce payment or
performance of any of the Agreements or
any Transactions, either against Debtor or any other person liable therefore,
shall operate as a waiver of any such right or shall, in any manner, prejudice
the rights of Market against Guarantor.
10. Cumulative Remedies
All of Markets' rights, remedies and recourse under the Agreements or
Transactions or this Guaranty, are separate and cumulative and may be pursued
separately, successively or concurrently, are non-exclusive and the exercise of
any one or more of them, shall in no way limit or prejudice any other legal or
equitable right, remedy or recourse to which Market may be entitled.
11. Modifications.
No provision hereof shall be modified or limited, except by a written
agreement expressly referring hereto and to the provision so modified or
limited, and signed by Guarantor and Market.
12. Merger.
This writing is intended by the parties as a final expression of this
agreement of guaranty and is intended also as a complete and exclusive statement
of the terms of this agreement of guaranty. No course of prior dealings between
the parties, no usage of the trade, and no parole or extrinsic evidence of any
nature shall be used or be relevant to supplement or explain or modify any term
used in this agreement of guaranty.
13. Severability.
In case any one or more of the provisions contained in this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Guaranty shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. Notices.
Guarantor agrees that any notice or demand upon Guarantor shall be deemed
to be sufficiently given or served if it is in writing and is personally served,
or in lieu of personal service is mailed by first class certified mail, postage
prepaid, or by private courier such as Federal Express, addressed to Guarantor
at the addresses set forth below. Any notice or demand so mailed shall be deemed
received on the date of actual receipt or the first business day following
mailing, whichever first occurs.
15. Governing Law.
This instrument shall for all purposes be governed by and interpreted in
accordance with the laws of the State of New York. Guarantor consents to the
personal jurisdiction of any Federal Court in the State of New York or any State
Court located in New York County, New York with respect to any legal action
commenced hereunder and to the fullest extent allowed by law Guarantor hereby
waives any objection Guarantor may have to the venue of such Courts or the
convenience of this forum. Nothing contained herein is intended to preclude
Market from commencing any action hereunder in any court having jurisdiction
thereof.
16. Successors and Assigns.
This Guaranty shall inure to the benefit of Market, its successors and
assigns and shall be binding on Guarantor and its successors and assigns or if
Guarantor is an individual his or her executors, administrators and/or heirs.
IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this Guaranty
this 26/th/ day of Oct 1994.
INDIVIDUAL GUARANTORS
WITNESS: /s/ /s/
----------------------------- -------------------------------------
Signature of Guarantor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------
Home Address and Social Security
Number ###-##-####
WITNESS:
----------------------------- -------------------------------------
Signature of Guarantor
-------------------------------------
Home Address and Social Security
Number
Home Tel # (▇▇▇) ▇▇▇-▇▇▇▇
GUARANTY
1. Recitals.
(a) This guaranty is made by the undersigned (hereinafter each called
a "Guarantor"), in favor of MARKET FINANCIAL CORPORATION (hereinafter called
"Market").
(b) Market intends to enter into one or more equipment leases, loans
or other financial transactions (collectively "Transactions") with Resource
Objectives, Inc. (hereinafter called "Debtor") evidenced by certain equipment
leases and schedules, notes, security agreements or other instruments
("Agreements").
(c) Guarantor has a financial or other interest in Debtor and/or the
Transactions, and expects to obtain a financial or other benefit if Market
enters into the Transactions.
2. Guaranty.
In order to induce Market to enter into the Transactions and the Agreements
with Debtor, and in consideration thereof,
(a) Guarantor, unconditionally guarantees to Market the prompt
payment, when due, of all now existing or hereafter arising indebtedness or
obligations of Debtor to Market of every kind or nature, however arising
(hereinafter called the "indebtedness");
(b) Guarantor unconditionally guarantees to Market the prompt, full
and faithful performance and discharge by Debtor of each and every term,
condition, agreement, representation, warranty and provision of the part of
Debtor made in connection with the Transactions and Agreements or in any
modification, amendment or substitution thereof.
(c) Guarantor shall, on demand, reimburse Market for all expenses,
collection charges, court costs and reasonable attorneys' fees incurred by
Market in endeavoring to collect or enforce any of Market's rights and remedies
against Debtor and/or Guarantor or any other person or concern liable thereto.
(d) Guarantor shall pay all of the foregoing amounts and perform all
of the foregoing terms, covenants and conditions notwithstanding that any part
or all of the Transactions or Agreements shall be void or voidable as against
Debtor or any of Debtor's creditors, including a trustee in bankruptcy of
Debtor, by reason of any fact or circumstances including, without limitation,
failure by any person to file any document or to take any other action to make
any of the Transactions or Agreements enorceable in accordance with their
respective terms. Guarantor also agrees that the obligations of Guarantor
hereunder shall not be relieved in the event Market fails to protect or
otherwise impairs any collateral.
3. Primary Nature of Guaranty.
The liability of Guarantor hereunder is primary, absolute, unconditional,
direct and independent of the obligations of Debtor. Nothing shall discharge or
satisfy Guarantor's liability hereunder except the full performance and payment
of all of Debtor's obligations to Market, with interest. Guarantor shall have no
right of subrogation, reimbursement or indemnity whatsoever and no right of
recourse to or with respect to any assets or property of Debtor, unless and
until all of said obligations have been paid or performed in full.
4. Waivers by Guarantor.
(a) Guarantor waives notice of acceptance hereof and of all notices
and demands of any kind to which Guarantor may be entitled including, without
limitation, all demands of payment and notice of nonpayment, protest and
dishonor to Guarantor, or Debtor, or the makers or endorsers of any notices or
other instruments for which Guarantor is or may be liable hereunder. Guarantor
further waives notice of and hereby consents to any agreement or arrangement for
subordination, composition, arrangement, discharge or release of the whole or
any part of Debtor's obligations under any of the Transactions or Agreements or
release of other guarantors, or for compromise of any sums due in any way
whatsoever, and the same shall in no way impair Guarantor's liability hereunder.
(b) Guarantor waives any right to require Market to: (i) proceed
against Debtor; (ii) proceed against or exhaust any security held by Market of
Debtor or others; or (iii) pursue any other remedy which Market may have,
including against any other guarantor of Debtor's obligations to Market.
(c) Guarantor waives any and all right to a trial by jury in any
action or proceeding based hereon. Guarantor also waives the benefit of any
statue of limitations affecting Guarantor's liability hereunder or the
enforcement thereof.
5. Guarantor's Property as Security for Guaranty.
All sums at any time to Guarantor's credit and any of Guarantor's property
at any time in Market's possession shall be deemed held by Market as security
for any and all of Guarantor's obligations to Market hereunder.
6. Subordination
Any and all present and future indebtedness and obligations of Debtor to
Guarantor are hereby postponed in favor of and subordinated to the full payment
and performance of all present and future obligations of Debtor to Market.
7. Events of Default.
If Guarantor or Debtor should at any time become insolvent, or make a
general assignment for the benefit of creditors, or if a proceeding shall be
commenced by, against or in respect of Guarantor or Debtor under the Federal
Bankruptcy Code or any state insolvency law, or if any individual Guarantor
dies, any and all of Guarantor's obligations under this Guaranty shall, at
Market's option, forthwith become due and payable without notice.
8. Continuing Nature of Guaranty.
This is a continuing Guaranty. This instrument shall continue in full force
and effect until terminated by the actual receipt by Market of written notice of
termination from Guarantor. Such termination shall be applicable only to
Agreements or Transactions having their inception thereafter, and rights and
obligations arising out of Agreements or Transactions having their inception
prior to such termination shall not be affected.
9. No Waiver by Market
No failure, omission or delay on the part of Market in exercising any
rights hereunder or in taking any action to collect or enforce payment or
performance of any of the Agreements or
any Transactions, either against Debtor or any other person liable therefore,
shall operate as a waiver of any such right or shall, in any manner, prejudice
the rights of Market against Guarantor.
10. Cumulative Remedies
All of Markets' rights, remedies and recourse under the Agreements or
Transactions or this Guaranty, are separate and cumulative and may be pursued
separately, successively or concurrently, are non-exclusive and the exercise of
any one or more of them, shall in no way limit or prejudice any other legal or
equitable right, remedy or recourse to which Market may be entitled.
11. Modifications.
No provision hereof shall be modified or limited, except by a written
agreement expressly referring hereto and to the provision so modified or
limited, and signed by Guarantor and Market.
12. Merger.
This writing is intended by the parties as a final expression of this
agreement of guaranty and is intended also as a complete and exclusive statement
of the terms of this agreement of guaranty. No course of prior dealings between
the parties, no usage of the trade, and no parole or extrinsic evidence of any
nature shall be used or be relevant to supplement or explain or modify any term
used in this agreement of guaranty.
13. Severability.
In case any one or more of the provisions contained in this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Guaranty shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. Notices.
Guarantor agrees that any notice or demand upon Guarantor shall be deemed
to be sufficiently given or served if it is in writing and is personally served,
or in lieu of personal service is mailed by first class certified mail, postage
prepaid, or by private courier such as Federal Express, addressed to Guarantor
at the addresses set forth below. Any notice or demand so mailed shall be deemed
received on the date of actual receipt or the first business day following
mailing, whichever first occurs.
15. Governing Law.
This instrument shall for all purposes be governed by and interpreted in
accordance with the laws of the State of New York. Guarantor consents to the
personal jurisdiction of any Federal Court in the State of New York or any State
Court located in New York County, New York with respect to any legal action
commenced hereunder and to the fullest extent allowed by law Guarantor hereby
waives any objection Guarantor may have to the venue of such Courts or the
convenience of this forum. Nothing contained herein is intended to preclude
Market from commencing any action hereunder in any court having jurisdiction
thereof.
16. Successors and Assigns.
This Guaranty shall inure to the benefit of Market, its successors and
assigns and shall be binding on Guarantor and its successors and assigns or if
Guarantor is an individual his or her executors, administrators and/or heirs.
IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this Guaranty
this 26/th/ day of Oct., 1994.
CORPORATE GUARANTOR
WITNESS: /s/ American Conferencing Company, Inc.
--------------------------- -------------------------------------
(Name of Guarantor)
By: /s/ Pres.
----------------------------------
(Title)
SECRETARY'S CERTIFICATE
I, _____________________ certify that I am the (assistant) secretary of American
Conferencing Company, Inc., a _________ corporation; that at a meeting of the
Board of Directors held on the ____ day of ___________, 19__, the foregoing
Guaranty and the terms thereof was regularly introduced and it was resolved that
the officers of this corporation were duly authorized to sign and deliver the
same and a resolution to such effect appears in the minute book and is in full
force and effect.
WITNESS OUR HANDS AND SEAL THIS _____ day of __________ ,
19__.
/s/
-------------------------------
(Assistant) Secretary
[SEAL HERE]
COLLATERAL SECURITY AGREEMENT
-----------------------------
As security for the payment and performance by Resource Objectives, Inc.
("Lessee") to Market Financial Corporation its successors and assigns
(hereinafter collectively referred to as "Lessor") of (a) equipment lease
agreement executed by Lessee and Lessor dated October 26, 1994, in the amount of
One Hundred Twenty Five Thousand Dollars ($125,000.00), together with renewals
or extensions thereof ("Lease"); (b) any and all obligations of any Lessee
hereunder to Lessor, direct, indirect or contingent, joint or several, whether
or not otherwise secured, and whether now existing or hereafter incurred; and
(c) any and all amounts advanced or expended by Lessor for the maintenance or
preservation of the personal property described below; Lessee hereby pledges,
assigns and grants to Lessor a security interest in the following (hereinafter
collectively referred to as the "Collateral"):
All of the personal property, fixtures, trade fixtures, furniture and
furnishings of the Lessee and of the Guarantor, American Conferencing
Company, Inc., wherever located and whether now owned or in existence or
hereafter acquired or created, of every kind and description, tangible or
intangible, including, without limitation, all inventory, equipment,
documents, instruments, chattel paper, accounts, contract rights and
general intangibles.
The Lessor and the Lessee agree to the following Terms and Conditions:
TERMS AND CONDITIONS
1. Lessee hereby warrants that he is the sole owner and in possession of
all of said specifically described Collateral except such items as are
specifically stated herein as not yet having been acquired by Lessee and as to
such property, if any Lessee agrees, in order to effectuate the purposes of this
agreement, forthwith to acquire and install in the herein described premises
each and every item thereof, or its equivalent in quantity and quality; that the
Collateral is, or when acquired will be, free and clear of all liens,
encumbrances and adverse claims, with the exception of the security interest
herein created. Lessee agrees to execute and deliver to Lessor at any time and
from time to time such other security agreement or mortgages of chattels as
Lessor may request, covering the Collateral or property the ownership of which
is contemplated hereunder. Lessee agrees, at his own expense, to appear in and
defend any and all actions and proceedings affecting title to the Collateral or
any part thereof, or affecting the security interest of Lessor therein.
2. Lessee hereby agrees: to do all acts which may be necessary to
maintain, preserve and protect the Collateral and to keep the Collateral in good
condition and repair; not to cause or permit any waste or unusual or
unreasonable depreciation thereof or any act for which the Collateral might be
confiscated; to pay before delinquency all taxes, assessments and liens now or
hereafter imposed upon the Collateral; not to sell, lease, encumber or dispose
of all or any part of the Collateral; at any time upon demand of Lessor to
exhibit to and allow inspection by Lessor of the Collateral; not to remove or
permit the removal of the Collateral, other than motor vehicles, from the
premises where it is now located, nor of any motor vehicle from the Lessee's
state, nor to change the address where any motor vehicle is regularly garaged,
without the prior written consent of Lessor; to provide, maintain and deliver to
Lessor policies insuring the Collateral against loss or damage by such risks and
in such amounts, forms and companies as Lessor requires and with loss payable
solely to Lessor. If Lessor takes possession of the Collateral, the insurance
policy or policies and any unearned or returned premium thereon shall, at the
option of Lessor, become the sole property of Lessor, upon Lessor crediting the
amount of any unearned premium upon the obligations secured hereby, such
policies being hereby pledged and assigned to Lessor.
3. If Lessee fails to make any payment or do any act as herein required,
then Lessor, but without obligation so to do, and without notice to or demand
upon Lessee, may make such payments and do such acts as Lessor may deem
necessary to protect its security interest in the Collateral, Lessor being
hereby authorized (without limiting the general nature of the authority
hereinabove conferred) to take possession of the Collateral, to pay, purchase,
contest, and compromise any encumbrance, charge or lien which in the judgment of
Lessor appears to be prior or superior to its security interest, and in
exercising any such powers and authority to pay necessary expenses, employ
counsel and pay reasonable fees therefor. Lessee hereby agrees to repay
immediately, and without demand, all sums so expended by Lessor, with interest
from date of expenditure at the rate of 1 1/2 percent per month or the maximum
legal rate, whichever is less.
4. Any officer of Lessor is hereby irrevocably appointed the attorney in
fact of Lessee, with full power of substitution, to sign any certificate of
ownership, registration card, application therefor, affidavits or documents
necessary to transfer title to any of the Collateral, to receive and receipt for
all licenses, registration cards and certificates of ownership and to do all
acts necessary or incident to the powers granted to Lessor herein, as fully as
Lessee might.
5. Lessee hereby assigns to Lessor all rents, issues, income and profits
of or from the Collateral. Any moneys received by Lessor under the provisions
hereof may at its option be applied upon any indebtedness secured hereby, or
released.
6. It is specifically understood and agreed that Lessor may from time to
time and without notice release or otherwise deal with any person now or
hereafter liable for the payment or performance of any obligation hereunder or
secured hereby, and renew, extend or alter the time or terms of payment of any
such obligation, and release, surrender, or substitute any Collateral or other
security for any such obligation, or accept any type of further security
therefor, without in any way affecting the obligation hereunder of any Lessee,
and consent is hereby given to delay or indulgence in enforcing payment or
performance of any such obligation, and diligence, presentment, protest and
demand and notice of every kind, as well as the right to require Lessor to
proceed against any person liable for the payment of any such obligation or to
foreclose upon, sell, or otherwise realize upon or collect or apply any other
property, real or personal, securing any such obligation, as a condition or
prior to proceeding hereunder, are hereby waived.
7. Should: (1) default be made in the payment of any obligation, or
breach be made of any warranty, statement, promise, term or condition, contained
herein or hereby secured;
2
(2) any statement or representation made for the purpose of obtaining credit
hereunder prove false; or (3) Lessor deems the Collateral inadequate or unsafe
or in danger of misuse; then in any such event Lessor may, at its option and
without demand first made and without notice to Lessee (if given, notice by
ordinary mail to Lessee's address shown herein being sufficient), do any one or
more of the following: (a) declare all sums secured hereby immediately due and
payable; (b) immediately take possession of the Collateral wherever it may be
found, using all necessary force to do so, or require Lessee to assemble the
Collateral and make it available to Lessor at a place designated by Lessor which
is reasonably convenient to Lessee and Lessor, and Lessee waives all claims for
damages due to or arising from or connected with any such taking; (c) proceed in
the foreclosure of Lessor's security interest and sale of the Collateral in any
manner permitted by law, or provided for herein; (d) sell, lease or otherwise
dispose of the Collateral at public or private sale, with or without having the
Collateral at the place of sale, and upon terms and in such manner as Lessor may
determine, and Lessor may purchase same at any such sale; (e) retain the
Collateral in full satisfaction of the obligations secured thereby; (f) exercise
any remedies of a secured party under the Uniform Commercial Code. Prior to any
such disposition, Lessor may, at its option, cause any of the Collateral to be
repaired or reconditioned in such manner and to such extent as to Lessor may
seem advisable; and any sums expended therefor by Lessor shall be repaid by
Lessee and secured hereby; Lessor shall have the right to enforce one or more
remedies hereunder successively or concurrently, and any such action shall not
stop or prevent Lessor from pursuing any further remedy which it may have
hereunder or by law. If a sufficient sum is not realized from any such
disposition of Collateral to pay all obligations secured by this security
agreement, Lessee hereby promises and agrees to pay Lessor any deficiency.
8. In any action of foreclosure plaintiff shall be entitled to the
appointment of a receiver, without notice, to take possession of all or any part
of the Collateral and to exercise such powers as the Court shall confer upon
him.
9. Should a receiver for the real property hereinbefore described be
appointed under any deed of trust or other security held by Lessor, Lessee
consents and agrees that said receiver (with the consent of Lessor) may, without
compensation to Lessee, use the Collateral in operating said real property, and
may take possession of the Collateral independent of the operation of said real
property.
10. The right to plead the statute of limitations as a defense to any and
all obligations secured hereby is hereby waived, to the full extent permissible
by law.
11. Time and exactitude of each of the terms, obligations, covenants and
conditions are hereby declared to be the essence hereof. No waiver by Lessor of
any breach or default shall be deemed a waiver of any breach or default
thereafter occurring and the taking of any action by Lessor shall not be deemed
to be an election of that action but rather the rights and privileges and
options granted to Lessor under the terms hereof shall be deemed cumulative, the
one with the other and not alternative.
3
12. Should the Collateral be sold, with or without the consent of the
Lessor, then it is expressly agreed that the proceeds from said sale are hereby
assigned to the Lessor, NOT TO EXCEED THE PAYOFF OF THE LEASE AT THAT TIME.
13. Lessee agrees to execute any additional documents deemed necessary by
Lessor to assure the perfection of the security interest created hereunder and
to pay any fees or charges paid by Lessor in connection with the perfection of
or continue the perfection of the security interest created hereunder.
Dated: Oct. 26, 1994
Market Financial Corporation Resource Objectives, Inc.
Lessor Lessee
By: /s/ By: /s/
----------------------------- -----------------------------
Title: Pres Title: President
-------------------------- --------------------------
4
MARKET FINANCIAL
CORPORATION
October 26, 1994
▇▇▇▇▇ ▇▇▇▇▇▇
Resource Objectives, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Lease with Resource Objectives, Inc.
American Conferencing Company, Inc. as Guarantor
Dear ▇▇▇▇▇:
It is a condition of our Lease that Resource Objectives, Inc. agrees to
subordinate any and all liens and security interests that you may have, whether
now in existence or hereafter arising to Market Financial Corporation's lien on
all of the assets of American Conferencing Company, Inc.
Market Financial Corporation will have a priority interest in all of the assets
of American Conferencing Company, Inc. irrespective of time or order of
attachment or perfection of the security interests or the time or order of the
filings of Uniform Commercial Code financing statements or amendments.
This agreement will be binding between Resource Objectives, Inc. and Market
Financial Corporation and their respective successors and assigns.
Sincerely,
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
President
SR/ish
Accepted and Agreed:
Resource Objectives, Inc.
By: /s/
-----------------------------
90 West Broadway #14 New York, New York ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ tel (212)
▇▇▇-▇▇▇▇ fax