EXHIBIT 10.32
MASTER LEASE AGREEMENT
LESSOR: GLOBAL VANTAGE LTD.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ MASTER LEASE AGREEMENT NO.:90501367
This Master Lease Agreement is made this 16th day of September, 2005,
between GLOBAL VANTAGE LTD. ("Lessor") with its principal place of business
located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. DBA ACCURATE TECHNOLOGY ("Lessee") having its principal
place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. LEASE AGREEMENT. Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor all of the personal property ("Equipment") described in Equipment Lease
Schedule(s), which are or may from time to time be executed by Lessor and Lessee
and attached hereto and incorporated herein by references ("Schedules"),
together with any attachments, replacements parts, substitutions, additions,
repairs or accessories now or hereafter incorporated in or affixed to such items
of Equipment, upon the terms and conditions of this Lease shall govern the
rights and obligations of Lessor and Lessee except as specifically modified in
writing signed by an authorized representative of Lessor. Whenever references is
made to the "Lease", it will be deemed to include each of the Schedules
identifying all items of Equipment, all of which constitute one undivided Lease
of the Equipment, and the terms and conditions of which are incorporated herein
by reference.
2. SELECTION OF EQUIPMENT. Lessee will select type, quantity and supplier of
each item of Equipment designated in the appropriate Schedule(s), and in
reliance thereon, Lessor will order such Equipment from such supplier or accept
an assignment of any existing purchase order. Lessor will have no liability for
any delivery or failure by the supplier to full the purchase order or to meet
and of the conditions contained therein. Lessee acknowledges that Lessor has not
participated and will not participate in any way in Lessee's selection of the
Equipment or of the supplier and that Lessor has not manufactured or supplied to
the Equipment.
3. ACCEPTANCE OF EQUIPMENT. Upon delivery of any Equipment to Lessee, Lessee
agrees to immediately inspect such Equipment and to execute an Acknowledgement
and Acceptance of Equipment by Lessee, as provided by Lessor, with ten (10) days
of delivery of said Equipment. Lessee's execution and delivery of said
Acknowledgment and Acceptance of Equipment by Lessee covering any Equipment
shall conclusively establish, as between Lessor and Lessee, that such Equipment
is satisfactory in every respect. Lessee authorizes Lessor to insert in this
Lease serial numbers or other identifying data with respect to the Equipment.
4. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. LESSEE
ACKNOWLEDGES THAT LESSOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, THE
MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE
DESIGN OR CONDITION OF THE EQUIPMENT, THE QUALITY OR CAPACITY OF THE EQUIPMENT,
THE WORKMANSHIP IN THAT EQUIPMENT, COMPLIANCE OF THE EQUIPMENT WITH ANY LAW,
RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO, THE ABSENSE OF ANY PATENT
INFRINGEMENT, OR THE EXISTENCE OF ANY LATENT DEFECTS. LESSEE FURTHER
ACKNOWLEDGES THAT LESSEE LEASES THE EQUIPMENT "AS IS" AND WITH ALL FAULTS, AND
THAT LESSOR SHALL HAVE NO OBLIGATION TO INSTALL, ERECT, TEST, SERVICE OR
MAINTAIN THE EQUIPMENT. BASED ON THE FOREGOING, LESSEE AGREES NOT TO ASSERT ANY
CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR
CONSEQUENTIAL DAMAGES. IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT
OPERATE AS REPRESENTED OR WARRANTED BY THE SUPPLIER OR MANUFACTURER, OR IS
UNSATISFACTORY FOR ANY REASON, REGARDLESS OF CAUSE OR CONSEQUENCE, LESSEE'S ONLY
REMEDY, IF ANY, SHALL BE AGAINST THE SUPPLIER OR MANUFACTURER OF THE EQUIPMENT
AND NOT AGAINST LESSOR. LESSEE ACKNOWLEDGES THAT ANY MANUFACTURER OR SELLER'S
WARRANTIES ARE FOR THE BENEFIT OF BOTH LESSOR AND LESSEE AND TO THE EXTENT
PERMITTED BY THE MANUFACTURER OR SELLER, AND PROVIDED LESSEE IS NOT IN DEFAULT
UNDER THIS LEASE. LESSOR SHALL MAKE AVAILABLE TO LESSEE ALL MANUFACTURER OR
SELLER WARRANTIES WITH RESPECT TO THE EQUIPMENT LESSEE SPECIFICALLY ACKNOWLEDGES
THAT THE EQUIPMENT IS LEASE TO LESSEE SOLELY FOR COMMERCIAL OR BUSINESS PURPOSES
AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR AGRICULTURAL PURPOSES, AND LESSEE'S
OBLIGATIONS TO PAY RENT OR PERFORM OTHER OBLIGATIONS UNDER THIS LEASE ARE
ABSOLUTE AND UNCONDITIONAL AND NOT SUBJECT TO REDUCTION OR SETOFF BY REASON OF
THE LOSS, DAMAGE OR DESTRUCTION OF THE EQUIPMENT OR FAILURE OF THE EQUIPMENT TO
CONFORM TO ANY WARRANTIES OR ANY DEFAULT BY LESSOR.
The parties have specifically negotiated and agreed to the foregoing
paragraph. Lessee's initials: _/s/_
5. STATUTORY FINANCE LEASE. Lessee agrees and acknowledges that it is the intent
of both parties that this Lease qualify as a statutory lease under Article 2A of
the Uniform Commercial Code. Lessee acknowledges and agrees that Lessee has
selected both the equipment and the supplier from whom Lessor is to purchase the
Equipment.
LESSEE IS HEREBY ADVISED THAT LESSEE MAY HAVE RIGHTS UNDER THE SUPPLY CONTRACT
EVIDENCING THE LESSOR'S PURCHASE OF THE EQUIPMENT FROM THE SUPPLIER CHOSEN BY
LESSEE AND THAT LESSEE SHOULD CONTACT THE SUPPLIER OF THE EQUIPMENT FOR A
DESCRIPTION OF ANY SUCH RIGHTS.
6. ASSIGNMENT BY LESSEE PROHIBITED. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE WILL NOT ASSIGN THIS LEASE OR SUBLEASE THE EQUIPMENT OR ANY INTEREST
THEREIN, OR PLEDGE OR TRANSFER ANY INTEREST IN THIS LEASE, OR OTHERWISE DISPOSE
OF LESSEE'S INTEREST IN THE EQUIPMENT COVERED BY THIS LEASE.
7. COMMENCEMENT AND TERMINATION; RENTAL PAYMENTS; INTERIM RENTALS. The
obligations under this Lease will commence upon the written acceptance of the
Equipment by Lessee and will end upon full performance and observance by Lessee
of each and every term, condition and covenant set forth in this Lease and any
extensions hereof. The rental term for the Equipment listed in each Schedule
will commence on the first day of the month immediately following the Acceptance
Date and will terminate on the last day of the term stated in each Schedule
unless such Schedule has been extended or otherwise modified. Rental payments
will be in the amounts and frequency as set forth on the face of this Lease or
any Schedules hereto. If the Acceptance Date does not fall on the first day of
the month, the rental charge for the period of the Acceptance Date to the
Commencement Date will be an amount equal to the Monthly Rental Charge divided
by thirty (30) multiplied by the number of days from and including the
Acceptance Date to the Commencement Date and such amount will be due and payable
upon receipt of invoice. Lessor will have no obligation to Lessee under this
Lease if the Equipment, for whatever reason, is not delivered to Lessee within
ninety (90) days after Lessee signs this Lease. Lessor will have no obligation
to Lessee under this Lease if Lessee fails to execute and deliver to Lessor an
Acknowledgement and Acceptance of Equipment by Lessee for the Equipment within
ten (10) days after it is delivered to Lessee, with respect to any Schedule.
8. SECURITY DEPOSIT. As security for the prompt and full payment of the amounts
due under this Lease, and Lessee's complete, faithful and timely performance of
all its obligations under the provisions of this Lease, and any extensions or
renewals thereof, Lessee will pledge and deposit with Lessor the security amount
set forth in the section shown as "Security Deposit" on each respective
Schedule. In the event of any default in the performance of any of Lessee's
obligations under this Lease, Lessor may, but is not obligated to, apply said
security deposit to the curing of such default. Within 15 days after Lessor
mails notice to Lessee that Lessor has applied any portion of the Security
Deposit to cure such default, Lessee will restore said Security Deposit to the
full amount set forth in the respective Schedules. On the expiration of earlier
termination of each Schedule to this Lease, or any extension or renewal thereof,
provided Lessee has paid all of the rent called for and fully performed all
other provisions of this Lease with respect to such Schedule, Lessor will return
to Lessee any remaining balance of the Security Deposit with respect to such
Schedule, without interest. Lessee acknowledges that said security deposit may
be commingled with Lessor's other funds.
9. LIMITED PREARRANGED AMENDMENTS; SPECIFIC POWER OF ATTORNEY. In the event it
is necessary to amend the terms of this Lease of the terms of any Schedule to
reflect a change in one or more of the following conditions:
a. Lessor's actual cost of procuring the Equipment;
▇. ▇▇▇▇▇▇'▇ actual cost of providing Equipment to Lessee;
c. A change in the rental payments as a result of (a) or (b) above: or
d. Description of the leased Equipment; Lessee agrees that any such
amendment will be described in a letter from Lessor to Lessee and this Lease and
any affected Schedules will be deemed amended and such amendments shall be
incorporated herein/therein as if originally set forth herein/therein.
Lessee grants to Lessor a specific power of attorney for Lessor to use as
follows: (1) Lessor may prepare, execute, sign and file on Lessee's behalf any
instrument, document or financing statement Lessor deems necessary to perfect or
protect Lessor's interest in the Equipment or pursuant to the Uniform Commercial
Code and Lessee does hereby appoint Lessor its true and lawful attorney-in-fact
to sign the name of Lessee with the same force and effect as if signed by Lessee
for these purposes; and (2) Lessor may make a claim for, receive payment of, or
sign, endorse or negotiate for Lessor's benefit any instrument representing
proceeds from any policy of insurance covering the Equipment.
10. LOCATION. The Equipment shall be kept at the location specified in each
Schedule or, if none is specified, at Lessee's address as set forth above, and
shall not be removed from that location without Lessor's prior written consent.
Lessor has the right to enter upon the premises where the Equipment is located
to inspect the Equipment during normal business hours.
11. USE. Lessee will use the Equipment in a careful manner, make all necessary
repairs at Lessee's expense, comply with all laws relating to its possession,
use or maintenance, and will not make any alterations, additions or improvements
to the Equipment without Lessor's prior written consent. All additions, repairs
or improvements made to the equipment will belong to the Lessor.
12. OWNERSHIP; PERSONALITY. The Equipment is, and will remain, the property of
Lessor, and Lessee will have no right, title or interest therein or thereto
except as expressly set forth in this Lease. The Equipment will remain personal
property even though installed in or attached to real property.
13. SURRENDER AND RENEWAL. Through this Lease, Lessee does not acquire any
ownership rights in the Equipment and has no option to purchase same. Upon at
least ninety (90) days written notice to Lessor prior to the expiration of the
Lease term, Lessee shall advise Lessor of its intention to return the Equipment
to Lessor at the end of the Lease term. Lessee shall advise Lessor of its
intention to return the Equipment to Lessor at the end of the Lease term.
Provided Lessee has given such timely notice. Lessee shall return the Equipment,
freight and insurance prepaid, to Lessor in good repair, condition and working
order, ordinary wear and tear excepted, in a manner and to a location designated
by Lessor. If Lessee fails to notify Lessor, or having notified Lessor, you fail
to return the Equipment as provided herein, this Lease shall renew for
consecutive ninety (90) days period and Lessee agrees to continue to make Lease
Payments as set forth in the Lease subjects to the right of either party to
terminate the Lease upon ninety (90) days written notice, in which case Lessee
will immediately deliver the Equipment to Lessor as stated in this paragraph. In
the event of default pursuant to ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ at its sole and exclusive
expense shall return the equipment to Lessor in a manner and at a location to be
determined by Lessor. Lessee will incur any risk of loss associated with the
shipping and return of the Equipment pursuant to this paragraph.
14. LOSS AND DAMAGE. Lessee will at all times bear the entire risk of loss,
theft, damage or destruction of the Equipment from any cause whatsoever, and 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 this Lease.
In the event of damage to any Equipment, Lessee shall immediately place the same
in good repaid at Lessee's expense. If Lessor determined that any Equipment is
lost, stolen, destroyed or damaged beyond repair. Lessee shall at Lessee's
option do one of the following:
a. Replace the same with like Equipment in good repaid, acceptable to
Lessor in which case title to such Equipment shall immediately vest in Lessor
and this Lease will continue as though such event had not occurred; or
b. Pay Lessor in cash the following:
(i) All amounts due by Lessee to Lessor with respect to all affected
Schedules up to the date of the loss; and
(ii) The unpaid balance of the total amounts due for the remaining term
of the affected Schedules attribute to said item, discounted to
present value at a discount rate of 8% as of the date of loss; and
(iii) The Lessor's estimate as of the time this Lease was entered into of
Lessor's residual interest in the Equipment, discounted to present
value at a discount rate of 8% as of the date of loss. Upon Lessor's
receipt of payment as set forth above, Lessee shall be entitled to
Lessor's interest in such Equipment "as is, where is" and without
any warranty, express of implied from Lessor. If insurance proceeds
are used to fully comply with this subparagraph, the balance of any
such proceeds shall go to Lessee to compensate for loss of use of
the Equipment for the remaining term of the Lease.
15. INSURANCE; LIENS; TAXES. Lessee will provide and maintain from insurance
companies satisfactory to Lessor, 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. Lessee will also provide
and maintain comprehensive general all-risk liability insurance, included but
not 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 or 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 as are
satisfactory to Lessor. Each policy shall expressly provide that said insurance
as to Lessor and its assigns will not be invalidated by any act, omission or
neglect of Lessee and cannot be canceled or modified without 30 days prior
written notice to Lessor. As to each policy, Lessee shall furnish to Lessor a
certificate of insurance from the insurer, which certificate shall evidence the
insurance coverage required by this Paragraph and shall designate Lessor as loss
payee and/or additional insured. Lessor will have no obligation to ascertain the
existence or adequacy of insurance, or to provide any insurance coverage for the
Equipment or for Lessee's benefit.
Lessee must keep the Equipment free and clear of all levies, liens and
encumbrances. Lessee will pay all charges, assessments and taxes (local, state
and 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 or measured by Lessor's net income.
If Lessee fails to procure or maintain said insurance or to pay said charges,
assessments, or taxes, Lessor has the right, but is not obligated to, effect
such insurance at Lessee's expense, or pay such charges, assessments, or taxes.
In that event, Lessor shall notify Lessee of such payment and Lessee will repay
to Lessor the cost thereof within 15 days after such notice is mailed to Lessee.
16. INDEMNITY. Lessee will hold Lessor harmless and indemnify and defend Lessor
against any claims, actions, damages or liabilities, including all attorney
fee's, arising out of or connected with the Equipment or this Lease without
limitation. Such indemnification shall survive the expiration, cancellation or
termination of this Lease and Lessee waives any and all immunity Lessee may have
under any industrial insurance act, with regard to indemnification of Lessor.
17. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all of the rights
but none of the obligations of Lessor under this Lease. Lessee shall recognize
and hereby consent to any assignment of this Lease by Lessor, and Lessee shall
not assert against the assignee any defense, counterclaim, or set-off that
Lessee may have against Lessor. Subject to the foregoing, this Lease inures to
the benefit of and is binding upon the heirs, devisees, personal
representatives, survivors, successors in interest, and assigns of the parties
hereto.
18. SERVICE CHARGES; INTEREST. If Lessee fails to make any payment required by
this Lease within 10 days of the due date thereof, Lessee shall pay to Lessor:
a. A default fee of 10% of the amount due, provided however, that not
more than one such fee shall be made on any delinquent payment
regardless of the length of the delinquency;
b. Any actual additional expenses incurred by Lessor in collection
efforts, including, but not limited to, attorney's fees,
long-distance telephone charges and travel expenses; and
c. Interest on any delinquent payment or amount due under thus Lease
from the due date thereof until paid, at the lesser of the maximum
rate of interest allowed by law or 18% per annum.
19. TIME OF ESSENCE. Time is of the essence for this Lease, and this provision
will not be waived by the acceptance of late payments or defective performance.
20. DEFAULT. Lessee shall be in default of this Lease if:
a. Lessee fails to make any payment due under the terms of this Lease for
a period of 10 days from the due date thereof;
b. Lessee fails to observe, keep or perform any term, covenant or
provision contained in this Lease or any Schedule, and such failure
continues for a period of 10 days;
c. Lessee has made any misleading of false statement in connection with
application for or performance of this Lease;
d. The Equipment or any part thereof is subjected to any lien, levy,
seizure, assignment, transfer, bulk transfer, encumbrance, application
attachment, execution, sublease, or sale without prior written consent of
Lessor, or if Lessee abandons the Equipment or permits any other entity or
person to use the Equipment without the prior written consent of the
Lessor;
e. Lessee or any guarantor of this Lease defaults on any obligation to
Lessor, dies or ceases to exist;
f. Lessee defaults on any other agreement it has with Lessor;
g. A petition in bankruptcy is filed by or against Lessee, or if Lessee
sells all or a substantial part of Lessee's assets, or if Lessee is a
corporation and a majority of Lessee's voting stock is transferred, or if
Lessee makes an assignment for the benefit of creditors; or
h. Any of the above-listed events of default occur with any respect to any
guarantor.
21. REMEDIES. If Lessee is in default Lessor, with or without notice of any to
Lessee of any kind, may exercise any one or more of the following remedies,
cumulatively, concurrently or separately, and without any election of remedies
being deemed to have been made:
a. Lessor may enter upon Lessee's premises and without any court order
or other process of law may repossess and remove the Equipment, or
render the Equipment unusable without removal, either with or
without notice to Lessee. Lessee hereby waives any trespass or right
of action for damages by reason of such entry, removal or disabling,
and any such repossession shall not constitute a termination of this
Lease.
▇. ▇▇▇▇▇▇ may require Lessee, at its expense, to return the Equipment
in good repair, excepting ordinary wear and tear resulting from
proper use thereof, by delivering it, packed and ready for shipment,
to such place or carrier as Lessor may specify.
▇. ▇▇▇▇▇▇ may cancel or terminate this Lease and may retain any and all
prior payments paid by Lessee;
▇. ▇▇▇▇▇▇ may declare all current and future payments under this Lease
immediately due and payable, including as to any or all items of
Equipment, without notice or demand to Lessee;
▇. ▇▇▇▇▇▇ may re-release the Equipment to any third party, without
notice to Lessee, upon such terms and conditions as Lessor alone
shall determine, or may sell the Equipment without notice to Lessee,
at private or public sale, at which sale Lessor may be the
purchaser.
▇. ▇▇▇▇▇▇ may ▇▇▇ for and recover from Lessee the sum of all unpaid
rents and other payments due under this Lease, plus all accelerated
future payments due under this Lease, discounted to their present
value at a discount rate of 8%, as of the date of default, plus
Lessor's estimate at the time this Lease was entered into of the
value of Lessor's residual interest in the Equipment, reduced to
present value at a discount rate of 8%, as of the date of default,
less the net proceeds of disposition, if any, of the Equipment; and
▇. ▇▇▇▇▇▇ may pursue any other remedy available at law, by statute or
in equity
No right or remedy conferred upon or reserved to Lessor is exclusive of any
other right or remedy provided or permitted herein, but each shall be cumulative
of every other right or remedy given herein or now or hereafter existing by law,
equity, statute or otherwise, and may be enforced concurrently therewith or from
time to time. No single or partial exercise by Lessor of any right or remedy
hereunder shall preclude any other or further exercise of any other right or
remedy.
22. MULTIPLE LESSEES. Each Lessee is jointly and severally responsible and
liable to Lessor under this Lease. Lessor may, with the consent of any Lessee
hereunder, modify, extend or change any of the terms hereof without consent or
knowledge of any other Lessee, without in any way releasing, waiving or
impairing any right granted to Lessor against any other Lessee.
23. EXPENSE OF ENFORCEMENT. In the event any legal action is undertaken with
respect to this Lease, the prevailing party (whether at trial or on appeal) in
any such action shall be entitled to recover its costs and expenses including,
but not limited to reasonable attorney's fee and costs for the services rendered
to such prevailing party.
24. MISCELLANEOUS.
a. LESSEE ACKNOWLEDGES THAT THIS LEASE IS NONCANCELABLE BY LESSEE FOR
THE RENTAL TERM SET FORTH IN EACH SCHEDULE.
b. LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER, NOR
ANY SALEMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLIER, IS AN AGENT
OF LESSOR. NO BROKER OR SUPPLIER, NOT ANY SALESMAN, BROKER OR AGENT
OF ANY VROKER OR SUPPLIER IS AUTHORIZED TO WAIVE OR ALTER ANY TERM
OR CONDITION OF THIS LEASE, AND NO REPRESENTATION AS TO THE
EQUIPMENT OR ANY OTHER MATTER BY A BROKER OR SUPPLIER, NOR ANY
SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLIER, SHALL IN ANY
WAY AFFECT LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM LESSEE'S
OBLIGATIONS SET FORTH IN THIS LEASE.
c. SEVERABILTY. This Lease is intended to constitute a valid and
enforceable legal instrument. In the event any provision hereof is
declared invalid or unenforceable, such provision will be deemed
severable from the remaining provisions of this Lease, all of which
will remain in full force and effect.
d. ENTIRE AGREEMENT; NO ORAL MODIFICATION; WAIVER. This instrument and
the Schedules executed by Lessor and Lessee constitute the entire
agreement between Lessor and Lessee with respect to the Equipment
and the subject matter of this Lease. No provision of this Lease
will be modified or rescinded unless in writing signed by an
authorized representative of Lessor. WAIVER BY Lessor of any
provision hereof in one instance shall not constitute a waiver as to
any other instance.
e. JURISDICTION; VENUE. WITHOUT LIMITING THE RIGHT OF THE LESSOR TO
BRING ANY ACTION OR PROCEEDING AGAINST THE LESSEE OR AGAINST
PROPERTY OF THE LESSEE ARISING OUT OF OR RELATING TO THE EQUIPMENT
OR THIS LEASE IN THE COURTS OF OTHER JURISDICTIONS, THE LESSEE
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY CALIFORNIA STATE OR
FEDERAL COURT, AND THE LESSEE IRREVOCABLY AGREES THAT ANY SUCH
ACTION MAY BE HEARD AND DETERMINED IN SUCH CALIFORNIA STATE COURT OR
FEDERAL COURT. LESSEE AGREES THAT IF ANY ACTION IS BROUGHT TO
ENFORCE ANY OF THE PROVISIONS OF THIS LEASE BY EITHER PARTY IN
CALIFORNIA, ORANGE COUNTY SHALL BE A PROPER PLACE FOR THE TRIAL OF
SUCH ACTION.
LESSEE: ▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. LESSOR: GLOBAL VANTAGE LTD.
DBA ACCURATE TECHNOLOGY
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/_Sheri ▇▇▇▇▇▇
--------------------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: Documentation Manager
Date: 9-16-05 Date: 9-22-05
GLOBAL VANTAGE LTD.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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EQUIPMENT LEASE SCHEDULE A
LEASE AGREEMENT NO.: 90501367
LESSOR: GLOBAL VANTAGE LTD.
LESSEE: ▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. DBA ACCURATE TECHNOLOGY
REFERENCE DATE: 9-16-05
Equipment leased (the Equipment) is described as follows:
QUANTITY ITEM DESCRIPTION
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Vendor: All American CNC Sales, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1 Used Mori Seiki sh-40 W/Fanuc 16 M CNC Control, 40 Station
Tool Changer, High Pressure Coolant, Serial #335
This schedule is attached to and made a part of that Mater Lease Agreement
referenced above.
LESSEE: ▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. LESSOR: GLOBAL VANTAGE LTD.
DBA ACCURATE TECHNOLOGY
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/_Sheri ▇▇▇▇▇▇
--------------------------------- --------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: Documentation Manager
Date: 9-16-05 Date: 9-22-05
DISCLAIMER OF OWNERSHIP
This undersigned (the "Lessee") proposes to be the Lessee of certain equipment
from Global Vantage Ltd. (the "Lessor") pursuant to an Equipment Lease between
Lessor and Lessee signed by the Lessee on September 16, 2005 (the "Lease"). The
equipment covered by the Lease is hereinafter referred to as the "Equipment".
The Equipment will be purchased by Lessor from Elite Machine Tool Company. (the
"Vendor"). Lessee has made a down payment to the Vendor as part of the original
purchase order, and it is contemplated that, upon Lessor's receipt of all
necessary documentation and satisfaction of all conditions to Lessor entering
into the Lease, Lessor shall pay the Vendor the remaining balance of the
purchase price and receive a ▇▇▇▇ of sale/invoice from the Vendor covering a
100% interest in the Equipment.
The Lessee, being satisfied that its payments under the Lease are based only
upon Lessor's payments to the Vendor and not Lessee's down payment, hereby
consents to the Vendor transferring the entire ownership in the Equipment to
Lessor, and, effective on the actual transfer of the Equipment to Lessor,
disclaims any ownership interest or rights in the Equipment except those the
Lessee has by virtue of being the Lessee under the Lease.
Date: Sept 16, 2005
LESSEE:
▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------
Title: President
DELIVERY AND ACCEPTANCE
CERTIFICATE
RE: Master Lease Agreement No.: 90501367
To: Global Vantage Ltd.
This will certify that all of the equipment listed on Equipment Lease Schedule A
("Schedule A") attached hereto has been delivered to and installed at the
installation address(es) set forth on said Schedule A, and is hereby accepted as
of the date of this Certificate under the terms of Mater Lease Agreement No.
90501367 between Lessor and ▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology as
Lessee (the "Lease")
Each item of equipment listed on said Schedule A has been inspected by a
representative of Lessee and is found satisfactory and acceptable in all
respects for acceptance under said Lease.
Lessee hereby authorizes and directs Lessor to: (a) attached said Schedule A to
(i) the referenced Lease Schedule, (ii) each UCC financing statement executed in
connection with said Lease Schedule and (iii) all other related documents
referencing the equipment; (b) insert all serial numbers and all other
identifying information and to make all corrections, additions or deletions in
such documents as necessary to reflect such final listing of the equipment and
the differences from any preliminary listing of the equipment originally
attached to or included in the Lease Schedule; and (c) make payments to each
vendor of the equipment pursuant to such Vendor's invoice or any purchase order,
purchase agreement or supply contract with such vendor, receipt and approval of
which are hereby reaffirmed by Lessee.
Lessee hereby also reaffirms all of its representations, warranties and
covenants as set forth in the Lease as of the date hereof and certified that no
event or condition has occurred and is continuing which constitutes an Event of
Default under the Lease or would constitute such an Event of Default with the
passage of tie or the giving of notice or both.
Acceptance Date: 9-22-05
Lessee: ▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc.
dba Accurate Technology
By Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇
` ------------------------
Typed Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
GLOBAL VANTAGE LTD.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
PURCHASE OPTION
The undersigned Lessor and Lessee agree with reference to Lease Agreement No.
90501367, as follows:
Lessee shall have the right option (on the terms and conditions contained
herein) to purchase all, but not less than all, of Lessor's right, title and
interest in and to the Equipment covered by the above-referenced Lease between
Lessor and Lessee, AS IS, in its then conditioned and at its then location, on
the last day of the term of the Lease. The option herein granted shall
terminate, without notice, upon the earlier of:
1. The occurrence of an event of default under the Lease and the continuance of
such default for ten (10) days;
2. Repossession of the Equipment; or
3. Sixty (60) days prior to the last day of the tern of the Lease.
The option may not be assigned by Lessee. It shall be a condition precedent to
Lessee's right to exercise the option that:
a. All amounts due under the Lease have been paid;
b. All amounts to become due under the Lease or this Purchase Option
have been prepaid;
c. Lessee is not in default under the Lease; and
d. No event has occurred which, with the giving of notice or the
passage of time, or both, would constitute an event of default under
the Lease.
This option shall be exercised by delivery of written notice to Lessor by Lessee
of Lessee's exercise of this option not earlier than 120 days prior to, nor
later than 60 days prior to, the last day of the term of the Lease together with
payment to Lessor of the purchase price of said Equipment as set forth below and
payment to Lessor all sales and other taxes applicable to Lessee's purchase of
the Equipment.
If litigation arises in connection with the option, the prevailing party shall
be entitled to recover its attorney's fees. Time is the essence hereof.
The purchase price under this option is: $101.00
LESSEE: LESSOR:
▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology GLOBAL VANTAGE LTD.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------- ---------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: President Title: Documentation Manager
DATE: 9-16-05 DATE: 9-21-05
Note: Use full legal name(s). Signature(s) must be only
Those duly authorized corporate officers, partners
Or proprietors, with title indicated.
Lease # 90501367
Equipment Location:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE CERTIFICATION
In connection with the above referenced lease between Global Vantage Ltd as
Lender and ▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology as Lessee,
Lessee hereby certifies the following is true and correct:
1: That the credit, financial statements, and tax returns of the Lessees
and guarantors are as presented in the lease submission without
substantial deviation.
2: That no Lessee(s) or any guarantor of the lease are currently parties
to any bankruptcy, reorganization or Insolvency proceeding.
3: That no part of the security property has been damaged, unless repaired
to the satisfaction of Lender
4: That no part of the security property has been taken in condemnation or
other like proceeding not is any such proceeding pending or known to be
contemplated.
The undersigned executed this certificate the 16th day of September, 2005.
LESSEE:
▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
▇▇▇▇▇ ▇▇▇▇▇
CERTIFICATE CONERNING AUTHORITY AND INCUMBENCY
▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC.
I hereby certify that I am the duly elected and serving Secretary or Assistance
Secretary of the Corporation named above, am duly authorized to make and deliver
this Certificate and that as of the date hereof:
1. The officers listed below have been duly authorized by all necessary
corporate action to enter into equipment leasing or finance transactions
with Global Vantage Ltd. And in connection therewith to execute master
lease agreements, related lease schedules, security agreements, promissory
notes, financing transactions, on such terms and conditions as said
officers or ant one of them determines are in the best interest of the
Corporation and that such determination is properly evidenced by their
signature of signatures on said documents or instruments and that the
corporate action granting or creating such authority is still valid not
having been amended, modified or withdrawn.
2. The following persons hold the corporate offices listed next to their
names, and were duly elected or appointed to such offices by all necessary
corporate action and that the signatures affixed hereto are their true
signatures.
NAME OFFICE HELD SIGNATURE
1. ▇▇▇▇▇ ▇▇▇▇▇ President /s/ ▇▇▇▇▇ ▇▇▇▇▇
2. ____________________________________________________________________________
3. ____________________________________________________________________________
4. ____________________________________________________________________________
3. Global Vantage Ltd., is successors and assigns may rely upon this
Certificate and the continued incumbency and corporate authority of the
individuals named in the preceding paragraph until they receive written
notice from the Corporation to the contrary (and in no event shall such
notice affect the right of Global Vantage, Ltd., its successors and
assigns to so rely hereon with respect to any documents or instruments
executed and delivered or any transactions undertaken prior to the date
upon which such notice is received by them).
IN WITNESS WHEREOF, I have unto set my hand and affixed the seal of this
Corporation this 16th day of September, 2005.
ATTEST: _______________ SIGNATURE: /s/_Bill ▇▇▇▇▇▇▇▇
----------------------------
TYPED NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: Secretary
(Corporate Seal)
GLOBAL VANTAGE LTD.
LEASE SCHEDULE
LEASE AGREEMENT NO.: 90501367
Between Global Vantage Ltd. (LESSOR)
And ▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology (LESSEE)
1. EQUIPMENT DESCRIPTION:
Quantity Item Model/Serial No.
See attached Equipment Lease Schedule A
2. EQUIPMENT LOCATION:
The above-referenced Equipment is to be delivered to and located on
Lessee's premises at:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. RENTAL TERM: 36 Months
4. RENTAL:
The first payment in the amount of $3,162.50 is due 9-22-05.
Subsequent rental payments will be in the same amount and due on the same
day monthly thereafter.
5. NUMBER AND AMOUNT OF ADVANCE RENTAL PAYMENTS:
NUMBER: First AMOUNT: $3,162.50
6. Purchase Amount: $101.00
7. THIS SCHEDULE AND ITS TERMS AND CONDITIONS ARE HEREBY INCORPORATED BY
REFERENCE IN THE ABOVE EQUIPMENT LEASE AGREEMENT. LESSEE PERMITS LESSOR TO
INSERT MODEL AND SERIAL NUMBERS OF EQUIPMENT WHEN DETERMINED BY LESSOR.
LESSEE: LESSOR:
▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. DBA
ACCURATE TEHCNOLOGY GLOBAL VANTAGE LTD.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------ ---------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: President TITLE: Documentation Manager
DATE: 9-16-05 DATE: 9-21-05
------- -------
CERTIFIED COPY OF CORPORATE RESOLUTION TO GUARANTY
LEASE AGREEMENT # 90501367
The undersigned hereby certifies that he/she is the CFO of GATEWAY INTERNATIONAL
HOLDINGS, INC. a corporation validly existing and organized under the laws of
the State of NEVADA which Corporation is presently operating and in good
standing under the laws of such State and is duly qualified to conduct business
within the State of CALIFORNIA at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; that
the following is a true and accurate transcript of resolutions duly adopted by
the Board of Directors of said Corporation in accordance with the Articles of
Incorporation and By-Laws of said Corporation, and that said resolutions have
not been amended, rescinded, modified or revoked, and are in full force and
effect:
RESOLVED, that the officer(s) of this Corporation, whose name(s) and title
appear below, is/are hereby authorized and empowered in the name and an behalf
or this Corporation to enter into, execute and deliver to Global Vantage, Ltd.
("Global") any guaranty that may be required by Global in connection with the
leasing of personal property by Global to ▇▇▇▇▇▇▇▇/▇▇▇▇▇, INC. DBA ACCURATE
TECHNOLOGY.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
---------------------------- ----------------------------
(Insert name and title of (Insert name and title of
authorize officer) authorize officer)
Signature Specimen: Signature Specimen
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
FURTHER RESOLVED, that the above designated officer(s) of this Corporation are
hereby authorized to do and perform all other acts and deeds that may be
required or necessary to fully carry into effect the foregoing resolution; and
FURTHER RESOLVED, that Global is authorized to rely upon the aforesaid
resolutions until, receipt by it of written notice of any change, which changes
of whatever name shall nor be effective as to Global to the extent i t has
relied upon the foregoing resolutions.
I FURTHER CERTIFY that the duly elected officer(s) of this Corporation named in
the foregoing Resolution continues to hold his/her/their respective office.
I FURTHER CERTIFY that I have set my hand and affixed the seal of said
Corporation on this 16th day of September, 2005.
(CORPORATE SEAL)
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇▇▇▇▇▇, CFO
CONTINUING GUARANTY OF LEASE
The undersigned ("Guarantor") is executing this guaranty at the solicitation of
▇▇▇▇▇▇▇▇/▇▇▇▇▇, Inc. dba Accurate Technology ("Lessee") to induce Global Vantage
Ltd. ("Lessor"), whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ to extend credit to Lessee pursuant to that
certain Lease Agreement No. 90501367 between Lessor and Lessee dated September
16th, 2005 (the "Lease").
1. For valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor unconditionally and absolutely guarantees to Lessor the
due and punctual payment and performance of all of Lessee's present and future
indebtedness and obligation to Lessor under the Lease, and under all
modifications, amendments, renewals and extensions of the Lease, including
payment to Lessor of all rents and monies due and to become due to Lessor from
Lessee under the Lease in the amounts and at the times set out in the Lease, and
performance of all the terms, covenants and conditions of the Lease. All such
indebtedness and obligations are referred to in this guaranty as the
"Indebtedness" and will be payable by Guarantor to Lessor, or order, immediately
on demand in the events of any default by Lessee with respect to the
Indebtedness or any part thereof. All payments shall be made to Lessor at the
address indicated above, or such other address as Lessor may direct in writing,
in lawful money of the United States without setoff, deduction or counterclaim.
Time is of the essence in the performance by Guarantor under this guaranty.
2. Guarantor is fully aware of the financial condition of Lessee. Guarantor
represents and warrants that he is in a position to obtain any additional
information concerning Lessee as Guarantor may desire. Guarantor assumes the
fully responsibility for being and keeping himself informed of the financial
condition and assets of Lessee and of all other circumstances bearing upon the
risks of nonpayment of the Indebtedness which diligent inquiry would reveal.
Absent a written request for such information by Guarantor, Lessor shall have no
duty to advise Guarantor of information known to it regarding such conditions or
any such circumstances, regardless of whether Lessor has reason to believe that
any such information materially increases the risk beyond that which Guarantor
intends to assume or has reason to believe that such information is unknown to
Guarantor or has a reasonable opportunity to communicate such information to
Guarantor. By executing this guaranty, Guarantor knowingly accepts the full
range of risks encompassed within a contract of continuing guaranty which risks
Guarantor acknowledges includes the possibility that Lessee will incur
additional Indebtedness for which Guarantor will be liable after Lessee's
financial condition or ability to pay such Indebtedness has deteriorated.
3. Guarantor authorizes Lessor, whether before or after revocation or this
guaranty, without notice or demand and without affecting or impairing
Guarantor's liability hereunder, from time to time to do one or more of the
following: (a) renew, compromise, settle, extend, increase, accelerate or
otherwise change the time for payment, discharge or performance of the new
Indebtedness or any part thereof; (b) change the terms of the Indebtedness or
any part thereof, including increase or decrease of the rate of interest thereon
or the rent; (c) take and hold security for the payment of the Indebtedness or
any part thereof or any guarantee thereof, and subordinate, exchange, modify,
vary, enforce, waive, release (intentionally or unintentionally), renew or
abstain from perfecting or taking advantage of any security; (d) apply any sums
received from Lessee or any other person or from the disposition of any security
to any indebtedness whatsoever owing from Lessee or such person or secured by
such security, in such manner and order as Lessor determines, and regardless of
whether such Indebtedness is secured or is due and payable; or (f) release,
substitute or add any one or more cosigners, endorsers or other guarantors of
the Indebtedness.
4. Guarantor waives: (a) all presentments, demands for performance, notices of
nonperformance, protests, and all other notices, including notices of all of the
following: protest, dishonor. Acceptance of this guaranty, any default, partial
payment or nonpayment of all or any part of the Indebtedness and the existence,
creation or incurring of new or additional Indebtedness; (b) any right to
require Lessor to proceed against Lessee or any other person, to proceed against
or exhaust any security held from Lessee or any other person for the
Indebtedness, to proceed against or exhaust any security held from Guarantor or
any other person for this guaranty or to pursue any other remedy in Lessor's
power whatsoever; (c) the benefits of any laws which provide that the obligation
of guarantor must neither be larger in amount not in other respects more
burdensome than that if the principal or which reduce a guarantor's obligation
in proportion to the principal obligation; (d) any defense arising by reason of
the invalidity, illegality or lack or enforceability of the Indebtedness or any
part thereof, or by reason of any incapacity, lack of authority, death,
disability or other defense of Lessee or any other person, or by reason of the
failure of Lessor to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of Lessee or any other
person, by or by reason of the cessation from any cause whatsoever of the
liability of Lessee or any other person with respect to all or any part of the
Indebtedness, or by reason of any act or omission of Lessor or others which
directly or indirectly results in the discharge or release of Lessee or any
other person or any Indebtedness or any security therefore, whether by operation
or law or otherwise; (e) any defense arising because of Lessor's election, in
any proceeding instituted under the federal Bankruptcy Code, of the application
of Section 1111 (b)(2) of the federal Bankruptcy Code; (f) any defense based on
any borrowing or grant of a security interest under Section 364 of the federal
Bankruptcy Code; (g) any defense arising by reason or Lessor's failure to
obtain, perfect, continue, maintain or keep in force any security interest in,
lien or encumbrance upon, any property, whether as owner thereof or the holder
of a security interest or lien or encumbrance thereon, being invalidated,
avoided, declared void, fraudulent or preferential or otherwise set aside, or by
reason of any impairment by Lessor of any right to recourse or collateral; (h)
any right to require Lessor to ▇▇▇▇▇▇▇▇ any assets in favor or Guarantor; (i)
any defense based upon any failure of Lessor to give Lessee or Guarantor notice
of any sale or other disposition of any property securing any or all of the
indebtedness or any guarantee t hereof, or any defect in any notice that may be
given in connection with any sale or other disposition of any such property, or
any failure of Lessor to comply with any provision of applicable law in
enforcing any security interest in or lien upon any such property, including any
failure by Lessor to dispose of any such property in a commercially reasonable
manner; (j) any defense based upon or arising out of any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against Lessee or any other person, including any
discharge of, or bar against collecting, any of the Indebtedness (including any
interest thereon), in or as a result of any such processing; and (k) any defense
based on any dissolution or termination of, or increase, decrease or change in
membership of any guarantor or Lessee which is a partnership.
5. Guarantor expressly waives all rights of, or to, subrogation, reimbursement,
indemnity, exoneration, contribution, or any other rights, remedies or claims,
whether contractual, legal, equitable, or otherwise, which Lessor o any other
party may have or acquire, against Lessee, and waives any benefit of, and any
right to participate in, any security now or hereafter held by Lessor.
6. Lessor may, at its election, but without obligation to do so, exercise any
right or remedy it may have against Lessee or any other person or real or
personal property security it holds for the Indebtedness or any part thereof or
any guaranty thereof, including foreclosing a trust deed judicially or
nonjudicially to taking a deed, assignment or transfer in lieu of foreclosure as
to any such property, without affecting or impairing in any way the liability of
Guarantor hereunder except to the extent of the Indebtedness has been paid, even
if the effect of such action is to destroy or diminish Guarantors subrogation
rights, Guarantors right to proceed against Lessee for reimbursement, Guarantors
right to recover contribution from any other guarantor or any other right or
security, and Guarantor waives any defense arising out of the absence,
impairment or loss of any right of Guarantor of subrogation, reimbursement or
contribution or o any other right or security, whether resulting from an
election of remedies by Lessor or any act or omission by Lessor or otherwise,
Without limiting are foregoing, Guarantor understands that if Lessor
nonjudicially forecloses any trust deed now of hereafter securing any of the
Indebtedness or any part thereof, Guarantor will remain liable to Lessor for any
deficiency for which Guarantor is liable and may lose other rights, and even
though Guarantor would have retained such rights if Lessor had foreclosed said
trust deed by judicial rather than nonjudicial foreclosure. Without in any
manner limiting the generality of the foregoing or any other provision of this
guaranty, Guarantor waives the benefits of the provisions of Sections 2809,
2810, 2819, 2839, 2845, 2850, 2899 and 3433 of the California Civil Code and
Sections 580a, 580d and 726 of the California Code of Civil Procedure, and any
similar or analogous statues of this or any other jurisdiction.
7. The obligations of Guarantor hereunder are independent of the obligations of
Lessee. A separate action or actions may be brought and prosecuted against
Guarantor without first proceeding against Lessee or any other person or any
security held by Lessor and without pursuing any other remedy and without
joining Lessee or any other person in any such action or actions. Guarantor
waives the benefit of any statue of limitations affecting his liability
hereunder of the enforcement thereof. Any payment of any Indebtedness or other
act which shall toll any statute of limitations applicable thereto shall also
operate to toll such statute of limitations applicable to Guarantor's liability
hereunder.
8. Any indebtedness of Lessee now or hereafter held by Guarantor is hereby
subordinated to the Indebtedness of Lessee to Lessor; and such indebtedness of
Lessee to Guarantor if Lessor so requests shall be collected, enforced and
received by Guarantor as trustee for Lessor and be paid over to Lessor on
account of the Indebtedness of Lessee to Lessor but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this guaranty. Should Guarantor fail to collect proceeds of debt owed to it by
Lessee and pay the proceeds to Lessor, Lessor as Guarantor's attorney-in-fact
may do such acts and sign such documents in Guarantor's name as Lessor considers
necessary to effect such collection.
9. It is not necessary for Lessor to inquire into the powers of Lessee or of the
officers, directors, partners or agents acting or purporting to act on its
behalf, and any Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
10. Guarantor agrees to pay reasonable attorney's fee and all other costs and
expenses which may be incurred by Lessor in any effort to collect or enforce the
Indebtedness or this guaranty.
11. Nothing shall discharge or satisfy the liability of Guarantor hereunder
except the full performance and payment of the Indebtedness of Lessee to Lessor.
If any payment with respect to any or all of the Indebtedness by any person or
from any property is subsequently invalidated, avoided, declared to be void,
fraudulent, or preferential or otherwise set aside, and is required to be repaid
by Lessor to a trustee, receiver or any other party under any bankruptcy act,
state or federal, common low or equitable cause or otherwise, then to the extent
of such repayment, the obligation or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not
been made. When any claim is asserted that any such payment is invalid, void,
fraudulent, preferential or otherwise subject to being set aside, Lessor may
compromise or settle any such claim and to the extent of any repayment by Lessor
as part of any such compromise or settlement, the obligation or part thereof
intended to be satisfied shall likewise be revived and continued in full force
and effect as if such payment had not been made. In each case, payments received
by Lessor which are so repaid shall not discharge, satisfy or reduce the
liability of Guarantor hereunder and Guarantor shall be and remain fully liable
therefore.
12. Guarantor warrants, represents and covenants to Lessor that all Guarantor's
financial statements, including income statement(s) and balance sheet(s), which
may have been delivered to Lessor, properly state Guarantor's financial
condition, that there has been no material adverse change in the financial
condition of Guarantor as reflected in the statements since the date thereof and
that the statements do not fail to disclose any facts or facts which might
materially and adversely affect Guarantor's financial conditions, including
litigation commenced, tax lien filed, defaults claimed under his indebtedness
for borrowed money or bankruptcy proceedings commenced against Guarantor by any
person.
13. This guaranty shall inure to the benefit or Lessor, its successors and
assigns, and shall bind the heirs, executors, administrators, successors and
assigns of Guarantor. Any married person who signs this guaranty agrees that
recourse may be had against his or her separate property for all of his or her
obligations hereunder. This guaranty is assignable by Lessor without notice with
respects to all or any portion of the Indebtedness hereby guaranteed, and when
so assigned, Guarantor shall be liable to the assignees under this guaranty
without in any manner affecting the liability or Guarantor hereunder with
respects to any Indebtedness retained by Lessor and, in such event, unless the
context otherwise requires, the term "Lessor" as used herein shall also include
such assignees.
14. This guaranty shall be governed by and construed according to the laws of
the State of California. Whenever the context so requires, the masculine gender
includes the feminine or neuter, and the singular includes the plural. As used
herein, "any other person" shall include without limitation, any other guarantor
of the Indebtedness or any part thereof, any endorsement thereof or any co-maker
thereof, "including" shall not be limiting, and "or" shall not be exclusive. All
authorizations, consents and waivers made by Guarantor with respect to any
security shall be applicable to any property lease under the Lease. If this
guaranty is executed by more than one Guarantor, their obligations hereunder
shall be joint and several. The invalidity or unenforceability of any one or
more provisions of this guaranty will not affect any other provision.
15. All actions or proceedings relating directly or indirectly to this guaranty
shall, at the option of Lessor, be litigated in courts of the State of
California or of the United States of California, located in the county where
Lessor's address set forth above is located. Guarantor consents and submits to
the jurisdiction of any such court. Guarantor consents to service of process by
means authorized by California or federal law. Guarantor waives any and all
objections which Guarantor may have as to the jurisdiction or venue or such
courts and any and all rights Guarantor may have to transfer or change the venue
of any such action on proceeding.
16. This guaranty constitutes the entire agreement of Guarantor and Lessor with
respects to the subject matter hereof and there are no promises, statements or
representations of any kind or nature whatsoever other than those herein
contained. No delay or failure by Lessor to exercise any right or remedy against
Guarantor will be construed as a waiver of that right or remedy. The terms and
provisions of this guaranty may not be waived, altered, modified or amended
except by written instrument executed by Guaranty and Lessor. All rights and
remedies of Lessor against Guarantor are cumulative and not exclusive and maybe
exercised successively or concurrently. No exercise or any right or remedy shall
be deemed to be an election of remedies and preclude exercise of any other right
or remedy.
17. Any notice, demand or request to Guarantor shall be given in writing and
shall be deemed given when personally served on Guarantor or mailed (first class
U.S. mail postage prepaid) or delivered to Guarantor's Address for Notice set
forth below. Any notice, demand, or request to Lessor shall be in writing and be
deemed given when received by Lessor by personal delivery or first class U.S.
mail postage prepaid at the address indicated above.
18. This is a continuing guaranty. Revocation shall be effective only upon
written notice being received personally by an officer of Lessor at Lessor's
address indicated above, or being received by Lessor at such address by
certified or registered United States mail, return, receipt, requested, postage
prepaid addressed to such address. Notice shall be effective at any office or
Lessor should the office at the address above no longer be in existence.
Revocation shall be effective at the close of the Lessor's business day when
such notice is received. The revocation shall be effective only as to the
revoking party and notwithstanding such revocation, this guaranty and all
authorizations, waivers and provisions hereof shall remain in full force and
effect as to that party's obligations with respect to Indebtedness outstanding
on the effective date of the revocation and all extensions, renewals, amendments
and modifications thereof.
19. No person executing this guaranty is doing so in consideration of or in
reliance on any other person executing this guaranty or any other guaranty of
Indebtedness.
20. There is no limitation on Guarantor's liability under this guaranty.
Guarantor:
GATEWAY INTERNATIONAL HOLDINGS, INC.
BY:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Printed Name: Gateway International Holdings, Inc.
Address: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTOR'S SIGNATURE MAY NOT
BE WITNESSED BY GUARANTOR'S
SPOUSE OR OTHER FAMILY MEMBER
Date:_9-16-05
Witness By: /s/▇▇▇▇▇▇▇ LeToon
-------------------
Printed Name: ▇▇▇▇▇▇▇ LeToon
Home Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇