AGREEMENT
This Agreement (this "Agreement") entered into as of February _, 2006, by
and between, 41A Ave. A Cafe, LLC a New York Limited Liability Company with
offices located at 00 Xxxxxx X, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as
the "Seller") and The Certo Group, Corp., a Delaware Corporation with offices
located at 000 Xxxxxx Xxxxx Xxxxx Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as the "Purchaser").
WITNESSETH
WHEREAS, Seller is engaged in the coffee newsstand business, and conducts
its business under the name Desmoines Cafe at the premises known as 00 Xxxxxx X,
Xxx Xxxx, Xxx Xxxx (hereinafter referred to as the "Business", and the premises
of the Business hereinafter referred to as the "Premises"); and
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Seller, all of the assets of
Seller relating to the operation of the Business and in connection therewith,
Purchaser has agreed to assume the Lease (as defined below), all on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
-1-
1 Sales and Assets. On the terms and subject to the conditions set forth
in this Agreement, Seller will sell, transfer, convey, assign and
deliver to Purchaser, and Purchaser will purchase, at the Closing (as
defined below), all of Seller's assets used or held for use in the
conduct of the Business, except as otherwise provided in this Agreement,
including without limitation, the following assets (collectively, the
"Transferred Assets"):
1.1 The entire interest of Seller, as tenant, under a certain lease
agreement dated as of November 1, 2003 by and between New York
city Housing Authority, as landlord (the "Landlord"), and
Seller, as tenant, with respect to the Premises (a copy of which
has been previously delivered to Purchaser's attorney, receipt
of which is hereby acknowledged, and such lease hereinafter
referred to as the "Lease", the term "Lease" shall be deemed to
include each sublease affecting the Premises).
1.2 All chattels, furniture, fixtures, trade name, telephone number
(to the extent that Seller can confer such right), and all other
assets and property used by Seller in the Business except the
following items which are not part of this sale or deemed
Transferred Assets: Espresso Grinder and Espresso machine which
are owned by Xxxxxxx Coffee Company and ATM machine.
2 Purchase Price.
2.1 The purchase price for all the Transferred Assets is the amount
of One Hundred Twenty-Five Thousand Dollars and No Cents
($125,000.00) Dollars (the "Purchase Price"), payable as
follows:
-2-
2.2 The amount of Twelve Thousand Five Hundred ($12,500.00) Dollars,
upon the execution of this Agreement, by check subject to
collection. Such sum of dollars shall be held in escrow by
Seller's attorney as escrow agent (the "Escrow Agent") subject
to the terms hereof.
2.3 The amount of One Hundred Twelve Thousand Five Hundred Dollars
and No Cents ($112,500.00) Dollars, at closing payable in
accordance with paragraph 2.4.
2.4 a) The amount of Fifty-Six Thousand Two Hundred Fifty Dollars
($56,250.000) by good unendorsed certified or bank cashier's
check; (b) The amount of Fifty-Six Thousand Two Hundred Fifty
Dollars ($56,250.000) Dollars by Purchaser executing and
delivering to the order of Seller or bearer (at Seller's option)
two separate promissory notes. The first note will be in the
amount of $50,000.00 payable over thirty-six consecutive months
at the rate of 7% per annum with monthly payments of $1,543.85.
A copy of such note and its amortization schedule is attached as
Exhibit 2.4(bl). The second note will be in the amount of
$6,250.00 with $3,125.00.00 plus interest at the rate of 7% per
annum payable five (5) months after closing and $3,125.00 plus
interest at the rate of 7% per annum payable nine (9) months
after closing. A copy of such note is set forth in Exhibit
2.4b2. The promissory note set forth as Exhibit 2.4b1 shall be
payable monthly commencing thirty days after closing (such
promissory notes hereinafter referred to as the "Promissory
Notes").
3 Escrow. The amount paid pursuant to Subsection 2.2 hereof shall be held
in escrow by the Escrow Agent until the Closing, and in accordance with
the terms of this Agreement. The amount deposited with the Escrow Agent
-3-
shall be delivered to Seller upon the happening of any of the following
events: (i) the Closing; or (ii) the failure of Purchaser to close this
sale in accordance with the terms and conditions of this Agreement. The
amount deposited with the Escrow Agent shall be delivered to Purchaser
if this Agreement is canceled either by mutual agreement or in
accordance with the terms and provisions of this Agreement.
4 Allocation, The parties agree that the Purchase Price shall be allocated
as follows:
Leasehold improvements $45,000.00
Goodwill $45,000.00
Restrictive Covenant $35,000.00
Inventory $0
Fixtures and Equipment $3,000.00
-----------
Total $125,000.00
5 Representations and Warranties of Seller. Seller represents and warrants
to its knowledge as follows:
5.1 Seller's Authority. The execution and delivery of this Agreement
by Seller to Purchaser and the sale contemplated hereby have
been duly authorized by Seller's members and its managers, if
applicable.
5.2 Ownership of Assets. Seller is the sole owner of the Transferred
Assets and has good and marketable title to the Transferred
Assets, free and clear of all mortgages, security interests,
liens or encumbrances, except as otherwise provided herein.
-4-
5.3 Judgments, Legal Actions, Etc. There are no judgments against
Seller, the Transferred Assets or the Business, and there are no
legal actions or proceedings pending against the Transferred
Assets or the Business.
5.4 Bankruptcy, Insolvency, Etc. No petition in bankruptcy or other
insolvency proceeding has been filed by or against Seller, nor
has it made any assignment for the benefit of creditors.
5.5 No Employment Agreements, Union Contract. There are no written
or oral agreements of employment with any employee of Seller
which are not terminable at will by the employer; there are no
commitments to past or present employees for expenses, vacation
or vacation pay, profit sharing or any compensation in addition
to regular salary arrangements; and there are no pension, bonus,
profit sharing, health insurance, or retirement plans for
officers or employees. There are no agreements with labor unions
in force and effect.
5.6 Lease. Seller is presently in possession of the Premises located
at 00 Xxxxxx X, Xxx Xxxx, Xxx Xxxx by virtue of the Lease with
the New York City Housing Authority as Landlord. The Lease is
(and at Closing shall be) in full force and effect in accordance
with its terms. Rent and all other charges under the Lease shall
be fully paid by Seller through the Closing. Seller's interest
in the Lease, as lessee, is a valid interest.
-5-
5.7 Contracts/Leases/Service Contracts. None of Seller's assets are
subject to any lease (e.g. equipment lease), contract or service
contract (e.g. security or alarm company), other than the
following: NONE.
6 Representations and Warranties of Purchaser. Purchaser and Purchaser's
shareholders represent and warrant as follows:
6.1 Organization and Standing of Purchaser. Purchaser is a
corporation duly organized, validly existing, and in good
standing under the laws of the State of New York.
6.2 Purchaser's Authority. The execution and delivery of this
Agreement by Purchaser to Seller and the sale contemplated
hereby have been duly authorized by Purchaser's board of
directors and its shareholders.
6.3 Lease. Seller has exhibited the Lease to Purchaser, Purchaser
has indicated its approval of the terms thereof. Purchaser
agrees to assume all of the terms and conditions of the Lease,
and to execute an agreement holding the Seller harmless from any
liability under the Lease, from and after the Closing Date.
6.4 Condition of the Transferred Assets. Seller has not made any
representations as to the physical or environmental condition,
income, expense, operation or any other matter or thing
affecting or related to the Business or the Transferred Assets,
except as herein specifically set forth, and Purchaser further
agrees to take the Transferred Assets and the Business "AS IS".
Seller is not liable or bound in any manner by any verbal or
-6-
written statements, representations, brokers "set-ups" or
information pertaining to the Transferred Assets or the Business
furnished by any broker, agent, employee, servant or other
person, unless the same are specifically set forth herein.
6.5 No Other Representations or Warranties. Purchaser agrees that no
other representations or warranties have been made or are being
made in connection with this Agreement or the transactions
contemplated hereby except as expressly provided for herein.
7 Conduct of Business Pending Closing.
7.1 Seller shall use its best efforts to operate and manage the
Business as follows: (i) in the same manner as heretofore
conducted by Seller; (ii) in the regular and ordinary course.
7.2 Seller will not violate the terms of the Lease.
7.3 Seller will perform all contracts executed by it in relation to
the Business which by their terms require performance by Seller.
7.4 Seller will not remove, or cause to be removed any merchandise,
except as may be consumed or disposed of in the regular course
of business.
7.5 Seller will not enter into any contract or agreement, written or
oral, in relation to the Business binding the Purchaser after
the Closing, except in the normal and ordinary course.
-7-
Creditors. At the Closing Seller shall make and deliver an affidavit
setting forth an accurate list of all of Seller's creditors and the amount due
to each creditor or an affidavit that it has no creditors (the "Affidavit").
Seller agrees to swear or affirm that the Affidavit is true and accurate to the
best of its knowledge, information and belief.
7.6 To insure the payment, satisfaction and/or discharge by Seller,
of any creditors, debts or liabilities by it to be paid or
satisfied pursuant to this Agreement, at the Closing, Seller
shall deposit with the Escrow Agent the amount of Two Thousand
($2,000.00) Dollars, plus the aggregate amount set forth in the
Affidavit, the total of which sum shall be held by the Escrow
Agent. Seller and Purchaser, at the Closing, will enter into a
written agreement with the Escrow Agent, whereby the Escrow
Agent shall hold the escrow for a period of sixty (60) days from
the Closing Date and then to be paid over to Seller, if, during
such period, no claim shall have been made to the Escrow Agent.
The Escrow Agent is authorized to pay any claims out of the
funds so held to the claims of unpaid creditors which are not
disputed either as to existence or amount by Seller.
7.7 Purchaser shall prepare and file by certified mail, at least ten
(10) days prior to the Closing Date, a Notification of Sale,
Transfer or Assignment in Bulk with the State of New York -
Department of Taxation and Finance - Sales Tax (a/k/a form
AU-196.10).
7.8 At the Closing, Seller agrees to deposit with the Escrow Agent
the amount of Three Thousand ($3,000.00) Dollars to be held by
the Escrow Agent, in escrow, as security for the payment of any
sales taxes due to the State of New York from Seller. The Escrow
-8-
Agent shall hold such sum until the earlier of 90 days or when
Seller obtains and delivers to the Escrow Agent a consent,
determination and release from the New York State Tax Commission
of the sales tax liability of Seller.
8 Closing. The closing of sale under this Agreement shall take place at
the offices of Sadis & Xxxxxxxx LLC, 551Fifth Avenue, 2P' floor Xxx
Xxxx, Xxx Xxxx 00000 within five business days of Landlord's consent to
the assignment of lease at 1 p.m. For purposes of this Agreement the
"Closing" means the closing of the transactions contemplated by this
Agreement and the "Closing Date" means the actual date of the Closing of
the transactions contemplated by this Agreement.
9 Conditions of Seller. The obligations of Purchaser hereunder to Close
are subject to Seller delivering, at or before the Closing, each of the
following:
9.1 Keys. The keys to the Premises.
9.2 Assignment of Lease. A duly executed and acknowledged
conditional assignment of the Lease in conformity with the
provision's of the Lease.
9.3 Landlord's Consent. The written consent of the Landlord
consenting to the assignment of the Lease and the security
deposit, if any, to Purchaser; provided, however, that Purchaser
shall use its best efforts to assist Seller to obtain the
Landlord's consent to the assignment and shall provide the
Landlord with all necessary information for the Landlord to
evaluate the credit worthiness and business experience of
Purchaser.
-9-
9.4 Xxxx of Sale. A duly executed and acknowledged xxxx of sale in
form and substance reasonably acceptable to Purchaser,
containing the usual warranties and affidavit of title and
covering all of the Transferred Assets.
9.5 Restrictive Covenant. The written agreement of Seller, and
Xxxxxx Xxxxx that, for a period of three (3) years from the
Closing Date, they shall not, either jointly or severally,
establish, open be engaged in, or in any manner become
interested, directly or indirectly, either as owner, partner,
member, agent, or as a shareholder, officer or director of an
entity, or otherwise (except at the request of and/or on behalf
of Purchaser) in a similar line of business, within a radius of
four (4) blocks from the Premises. Such agreement shall provide
that it shall be void if Purchaser defaults under the Promissory
Note.
9.6 Indemnification Agreement. The written agreement of Seller to
indemnify and hold harmless Purchaser from and against all
liabilities, claims, causes of action, suits or other matters
arising out of the operation and/or ownership of Seller of the
Business prior to Closing, such indemnification shall include,
but shall not be limited to, costs and reasonable attorneys'
fees incurred in connection with the defense of any claims
against Purchaser.
9.7 Telephone Letter. A letter of Seller authorizing the applicable
telephone company to transfer the Business' telephone number to
Purchaser.
-10-
9.8 Sublease. The written agreement of Seller, as subleasor, to
sublease the Premises to Purchaser, as subleasee, pursuant to
which Purchaser may operate the Business at the Premises.
9.9 Additional Documents. Any and all other instruments of sale,
conveyance or assignment required for the proper transfer of the
property, property rights, and assets referred to in this
Agreement.
10 Conditions of Purchaser. The obligations of Seller hereunder to Close
are subject to Purchaser delivering, at or before the Closing, each of
the following:
10.1 Funds. The funds to paid pursuant to Section 2.
10.2 Promissory Notes. A duly executed as set forth in Exhibit 2.4b
Promissory Note to be personally guaranteed by Xxxxxxxx Xxxxx.
10.3 New York State Sales Tax. Proof of payment of the New York State
Tax on the portion of the Purchase Price allocated for the
fixtures to be sold hereunder which shall be made by Purchaser
at closing.
10.4 Indemnification Agreement. The written agreement of Purchaser
providing that in the event the New York State Sales Tax Bureau
shall appraise the fixtures at an amount in excess of the
allocation herein made, then, and in that event, Purchaser will
pay the sales tax on the amount of excess, or, in the event that
-11-
Seller shall have paid the sales tax on the amount of such
excess, Purchaser upon fifteen (15) days prior written notice
will reimburse Seller for such payment.
10.5 Assumption of Lease. The written agreement of Purchaser wherein
the Purchaser agrees to assume all of the terms and conditions
of the Lease and to hold Seller harmless from any liability
under the Lease from and after the Closing Date. Purchaser shall
pay for all fees, expenses, costs, attorneys fees (including
those of the Landlord and/or its agents) associated with
obtaining consent of the landlord to the Lease.
10.6 Assumed Contracts/Leases/Service Contracts. The written
agreement of Purchaser wherein Purchaser agrees to assume the
obligations of the leases (e.g. equipment lease), contract or
service agreements (e.g. security or alarm company), that
follow: None. Such agreement, also, shall contain an
indemnification of Seller of any claims made pursuant to such
leases, contracts or service agreements.
10.7 Security Agreement. The execution and delivery of a security
agreement and UCC-1 as security for the payment of the
Promissory Note covering, as collateral, the fixtures, chattels,
equipment and merchandise located at the Premises.
10.8 Security Assignment of Lease. The execution and delivery of a
security assignment of lease (the "Security Assignment of
Lease") assigning the Lease to Seller subject to Purchaser
paying in full the Promissory Notes and complying with the terms
of the Security Agreement and Sublease .
10.9 Escrow of Documents. The execution and delivery of an escrow
agreement of documents (the "Escrow of Documents,"), pursuant to
which the Lease and the Security Assignment of Lease shall be
-12
deposited in escrow with the Escrow Agent until the Promissory
Notes have been entirely paid. The Escrow of Documents shall
provide that if there should be a default in the payment of the
Promissory Notes, Security Agreement, the Sublease or the Lease
which continues beyond the grace period provided therein, the
Escrow Agent shall deliver such instruments to Seller without
further notice to Purchaser.
10.10 Additional Documents. The parties shall otherwise execute and
deliver any and all other instruments and documents as may be
required to carry out the terms of this Agreement.
11 Destruction. Risk of loss or damage by fire, prior to the Closing, shall
be borne by Seller. In the event such loss or damage is material, either
party may cancel this Agreement, in which event Purchaser shall be
entitled to the return of the monies paid by Purchaser to Seller
pursuant to this Agreement, and thereupon neither party shall have any
further claim as against the other.
12 Adjustments.
12.1 At the Closing, the following items applicable to the Lease
shall be prorated between the parties on a per diem basis (based
upon a 365 day year and a 28, 30 or 31 day month as applicable)
as of 11:59 p.m. of the day immediately proceeding the Closing
Date (except as otherwise specifically provided herein); rent,
taxes, security, prepaid rent , if any.
12.2 Any deposit made by Seller as security to the Landlord shall be
paid by Purchaser to Seller at the Closing.
-13-
12.3 Any deposit made by Seller to any public utility and/or service
contract or lease contract (assumed by Purchaser herein) shall
not be part of this sale. Immediately after the Closing,
Purchaser and Seller shall notify any public utility prior to
the Closing of the contemplated change of ownership. In the
event such public utility is not able to adjust the xxxx, a
final meter reading will be obtained on the Closing Date and
such readings and bills presented in regard thereto shall be
used to complete such adjustment.
12.4 All income and expenses on the Closing Date shall inure to the
Purchaser.
12.5 Purchaser shall pay to Seller, Seller's cost of the inventory
existing at the Business on the day immediately prior to the
Closing Date. Parties will take an inventory of merchandise at
the premises. The amount of inventory will be paid on the date
of closing.
13 Miscellaneous.
13.1 Individual Purchaser. Not applicable.
13.2 Survival. The terms, covenants, conditions, representations and
warranties contained in this agreement shall not survive the
Closing, except as otherwise provided in this Agreement.
13.3 Payment of Attorney's Fees. Each of the parties shall be
responsible for paying their respective legal and accounting
fees incurred in connection with the transaction contemplated by
-14-
this Agreement. Purchaser acknowledges and agrees that it is its
responsibility to pay $950.00 to Seller's attorney for the
preparation of the promissory note, security agreement and the
UCC-1 Financing Statements plus costs of filing the UCC-l with
the New York State Department of State. Purchaser to pay the
$950.00 Seller's attorney fee at the first closing which occurs
among this Agreement and corresponding Agreements signed as of
the date hereof between Purchaser and Flatirion Newsbar LLC or
Xxxxxxxx Cafe LLC.
13.4 No Broker. Xxxxxx Xxxxxx was the only broker, Seller shall pay
any brokerage commission owed to the broker. and Purchaser
agrees to hold Seller harmless and to indemnify Seller from any
claims and suits for brokerage commission which may be
instituted against Seller as a result of Purchaser's action
only.
13.5 Notice. All notices provided or permitted pursuant to this
Agreement shall be in writing and shall be deemed to have been
given when either personally delivered or sent by registered or
certified mail, return receipt requested, addressed to the party
at the respective address set forth in this Agreement for such
party, unless such address has been changed by written notice to
the other party; provided, that any such change of address shall
be effective only upon receipt of such notice. A copy of all
such notices shall be sent to such parties attorney at the
addresses provided below: If to Seller, Sadis & Xxxxxxxx LLC,
000 Xxxxx Xxxxxx, 00(0)' xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxx Xxxxx, Esq. If to Purchaser: Xxx and Xxxxxxxxx,
000 Xxxxxxxx Xxxxxxxx, xxxxx 000, Xxxxxxx Xxxx, XX 00000,
attention: Xxx Xxxxxxxxx, Esq.
-15-
13.6 Entire Agreement. This Agreement and the agreements delivered at
the Closing supersede all prior discussions and agreements
between the parties with respect to the subject matter hereof
and thereof, and contain the sole and entire agreement of the
parties.
13.7 Governing Law; Jurisdiction. This Agreement shall be governed by
and construed under the substantive laws of the State of New
York. Notwithstanding such fact, the parties agree that in the
event any action is brought to enforce obligations created under
this Agreement or otherwise hereunder, the Supreme Court of the
State of New York shall have personal jurisdiction over the
parties and venue shall be fixed in the County of New York.
13.8 Escrow Agreements. The Escrow Agent shall be entitled to rely
upon facts set forth in notices directed to it in the
performance of its obligations pursuant hereto. Seller and
Purchaser, jointly and severally, agree to and do hereby release
and discharge the Escrow Agent from and against any and all
claims and liability of every nature in respect of any payment
made by the Escrow Agent in good faith, regardless of to whom
such payment is made, and in respect of any retention of funds
by the Escrow Agent in good faith. The parties expressly
acknowledge and agree that the Escrow Agent is only a stake
holder, and each of the parties and its officers, managers,
directors, members and shareholders) agrees to reimburse,
indemnify and hold harmless the Escrow Agent from and against
any expenses and counsel fees the Escrow Agent may pay or incur
in connection with or arising out of the escrow undertaken
pursuant to this Agreement.
-16-
13.9 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any
term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any
future occasion. All remedies, either under this Agreement or by
law or otherwise afforded, will be cumulative and not
alternative.
13.10 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on
behalf of each party hereto.
13.11 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and
it is not the intention of the parties to confer third-party
beneficiary rights upon any other person other than any person.
13.12 No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other
party hereto and any attempt to do so will be void, except as
provided in Section 16.1 hereof. Subject to the preceding
sentence, this Agreement is binding upon, inures to the benefit
of and is enforceable by the parties hereto and their respective
successors and assigns.
-17-
13.13 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the
provisions hereof.
13.14 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the year
and date first above written.
41 Ave. A Cafe, LLC
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Managing Mem er
The Certo Group, Corp.
By: /s/Xxxxxxxx Xxxxx
-----------------
Name: Xxxxxxxx Xxxxx
Title: President
The undersigned acknowledges receipt of checks aggregating Twelve
Thousand Five Hundred ($12,500.00) Dollars the proceeds of which are to be held
in escrow pursuant to the terms of this Agreement.
Sadis & Xxxxxxxx LLC
By: ______________________
Name: Xxxx Xxxxx
Title: Member
-18-
Schedule of Merchandise included in Sale
41A Ave A Cafe, LLC
1. 2 refrigerators, I for cake, 1 for sandwiches
2. 1 dry case for muffin
3. 4 lowboy refrigerators
4. 1 dishwasher
5. 1 register
6. 1 soda cooler
7. 1 ice machine
8. 1 computer
9. 2 drip coffee machine
10. 1 bagel toaster
11. 1 coffee grinder
---------------------------------------------------------------------------------------------------------------
Payment Intr. Reqrd. Addtnl. Monthly Month. Accumul. Accumul. Principal
date rate paymt. paymt. princ. intr. interest princpl. remaining
---------------------------------------------------------------------------------------------------------------
1 05-06 7.000 1543.85 0.00 1252.18 291.67 291.67 1252.18 48747.82
2 06-06 7.000 1543.85 0.00 1259.49 284.36 576.03 2511.67 47488.33
3 07-06 7.000 1543.85 0.00 1266.83 277.02 853.05 3778.50 46221.50
4 08-06 7.000 1543.85 0.00 1274.22 269.63 1122.68 5052.72 44947.28
5 09-06 7.000 1543.85 0.00 1281.66 262.19 1384.87 6334.38 43665.62
6 10-06 7.000 1543.85 0.00 1289.13 254.72 1639.59 7623.51 42376.49
7 11-06 7.000 1543.85 0.00 1296.65 247.20 1886.79 8920.16 41079.84
8 12-06 7.000 1543.85 0.00 1304.22 239.63 2126.42 10224.38 39775.62
---------------------------------------------------------------------------------------------------------------
Totals for 2006: Principal: 10224.38 P+I: 12350.80
Interest: 2126.42 Balance: 39775.62
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Payment Intr. Reqrd. Addtnl. Monthly Month. Accumul. Accumul. Principal
date rate paymt. paymt. princ. intr. interest princpl. remaining
---------------------------------------------------------------------------------------------------------------
9 01-07 7.000 1543.85 0.00 1311.83 232.02 2358.44 11536.21 38463.79
10 02-07 7.000 1543.85 0.00 1319.48 224.37 2582.81 12855.69 37144.31
11 03-07 7.000 1543.85 0.00 1327.17 216.68 2799.49 14182.86 35817.14
12 04-07 7.000 1543.85 0.00 1334.92 208.93 3008.42 15517.78 34482.22
13 05-07 7.000 1543.85 0.00 1342.70 201.15 3209.57 16860.48 33139.52
14 06-07 7.000 1543.85 0.00 1350.54 193.31 3402.88 18211.02 31788.98
15 07-07 7.000 1543.85 0.00 1358.41 185.44 3588.32 19569.43 30430.57
16 08-07 7,000 1543.85 0.00 1366.34 177.51 3765.83 20935.77 29064.23
17 09-07 7.000 1543.85 0.00 1374.31 169.54 3935.37 22310.08 27689.92
18 10-07 7.000 1543.85 0.00 1382.33 161.52 4096.89 23692.41 26307.59
19 11-07 7.000 1543.85 0.00 1390.39 153.46 4250.35 25082.80 24917.20
20 12-07 7.000 1543.85 0.00 1398.50 145.35 4395.70 26481.30 23518.70
---------------------------------------------------------------------------------------------------------------
Totals for 2007: Principal: 16256.92 P+I: 18526.20
Interest: 2269.28 Balance: 23518.70
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Payment Intr. Reqrd. Addtnl. Monthly Month. Accumul. Accumul. Principal
date rate paymt. paymt. princ. intr. interest princpl. remaining
---------------------------------------------------------------------------------------------------------------
21 01-08 7.000 1543.85 0.00 1406.66 137.19 4532.89 27887.96 22112.04
22 02-08 7.000 1543.85 0.00 1414.86 128.99 4661.88 29302.82 20697.18
23 03-08 7.000 1543.85 0.00 1423.12 120.73 4782.61 30725.94 19274.06
24 04-08 7.000 1543.85 0.00 1431.42 112.43 4895.04 32157.36 17842.64
25 05-08 7.000 1543.85 0.00 1439.77 104.08 4999.12 33597.13 16402.87
26 06-08 7.000 1543.85 0.00 1448.17 95.68 5094.80 35045.30 14954.70
27 07-08 7.000 1543.85 0.00 1456.61 87.24 5182.04 36501.91 13498.09
28 08-08 7.000 1543.85 0.00 1465.11 78.74 5260.78 37967.02 12032.98
29 09-08 7.000 1543.85 0.00 1473.66 70.19 5330.97 39440.68 10559.32
30 10-08 7.000 1543.85 0.00 1482.25 61.60 5392.57 40922.93 9077.07
31 11-08 7.000 1543.85 0.00 1490.90 52.95 5445.52 42413.83 7586.17
32 12-08 7.000 1543.85 0.00 1499.60 44.25 5489.77 43913.43 6086.57
---------------------------------------------------------------------------------------------------------------
Totals for 2008: Principal: 17432.13 P+I: 18526.20
Interest: 1094.07 Balance: 6086.57
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Payment Intr. Reqrd. Addtnl. Monthly Month. Accumul. Accumul. Principal
date rate paymt. paymt. princ. intr. interest princpl. remaining
---------------------------------------------------------------------------------------------------------------
33 01-09 7.000 1543.85 0.00 1508.35 35.50 5525.27 45421.78 4578.22
34 02-09 7.000 1543.85 0.00 1517.14 26.71 5551.98 46938.92 3061.08
35 03-09 7.000 1543.85 0.00 1525.99 17.86 5569.84 48464.91 1535.09
36 04-09 7.000 1543.85 0.00 1535.09 8.95 5578.79 50000.00 0.00
---------------------------------------------------------------------------------------------------------------
Totals for 2009: Principal: 6086.57 P+I: 6175.59
Interest: 89.02 Balance: 0.00
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Payment Intr. Reqrd. Addtnl. Monthly Month. Accumul. Accumul. Principal
date rate paymt. paymt. princ. intr. interest princpl. remaining
---------------------------------------------------------------------------------------------------------------
PROMISSORY NOTE
$50,000.00 April , 2006
FOR VALUE RECEIVED, The Certo Group Corp. ("Maker"), promises to pay to the
order of 41A Ave. A Cafe, LLC or assignee ("Payee"), the principal sum of Fifty
Thousand ($50,000.00) Dollars, lawful money of the United States of America, in
the form of a direct reduction loan, amortized over Thirty-Six (36) months with
interest calculated at the rate of 7% per annum, which principal and interest
shall be payable in Thirty-Six (36) monthly installments of One Thousand Five
Hundred Forty-Three and 85/100 ($1,543.85) Dollars each, commencing on the 1St
day of 2006, and continuing on the 1st day of each month thereafter, until all
Thirty-Six (36) consecutive monthly payments have been made as per the attached
schedule. "Note" means this Promissory Note.
All payments of principal and interest to be made by Maker shall be made
to Payee at the address as follows: Flatiron Newsbar
LLC____________________________or such other address as Payee may designate in
writing to Maker.
The occurrence of one or more of the following events shall constitute
an "Event of Default" for the purposes of this Note: (a) Maker fails to pay any
amount owing under this Note or any other promissory note by Maker to Payee
within fifteen (15) days of its due date (whether at stated maturity, by
acceleration, or otherwise); or (b) Maker shall file, or have filed against
Maker, a petition seeking to take advantage of any law relating to bankruptcy,
insolvency, reorganization, liquidation or dissolution. If any Event of Default
occurs and is continuing, then and in every such case Payee may declare the
unpaid principal and interest of this Note to be due and payable immediately,
without further notice, and upon any such declaration such principal shall
become due and payable immediately, without presentment, demand, protest, notice
of protest or other formalities of any kind, all of which are hereby expressly
waived by Maker. No delay or omission of Payee to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. In
the Event of Default, Maker shall pay to the Payee any and all costs, filing
fees, and reasonable attorneys fees necessary to enforce the terms and
collection of any payments due under this Note.
If any payment is not made within fifteen (15) days of its due date, a
late charge equal to the lesser of five percent (5%) of such overdue payment or
the maximum amount permitted by applicable law shall automatically become due to
Payee.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York without regard to the conflicts of laws provisions
thereof. All agreements of Maker in this Note shall bind its heirs, executors,
successors and assigns.
-1-
The Certo Group Corp.
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: President
The undersigned personally guarantees the prompt and full performance
and payment in full of the Note made by The Certo Group, Corp. to Payee, and, in
the event of default, authorizes the Payee to proceed against any or all of the
undersigned, for the full amount due including reasonable attorneys' fees, and
hereby waives presentment, demand, protest or notice. This is a guaranty of
payment and not of collection.
/s/ Xxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxx Xxxxx
S.S.# ###-##-####
PROMISSORY NOTE
$6,250.00 ______, 2006
FOR VALUE RECEIVED, The Certo Group, Corp. ("Maker"), promises to pay to the
order of 41A Ave. A Cafe, LLC ("Payee"), the principal sum of Six Thousand Two
Hundred Fifty ($6,250.00) Dollars, lawful money of the United States of America,
in the form of a direct loan, payable in two (2) payments of $3,125.00 each plus
accrued interest calculated at the rate of 7.0% per annum until paid in full.
The first payment shall be due five months from the date hereof plus accrued
interest. The second and final payment shall be due nine months from the date
hereof plus accrued interest.
The payment of principal and interest to be made by Maker shall be made
to Payee at the address as follows: or such other address as Payee may designate
in writing to Maker.
The occurrence of one or more of the following events shall constitute
an "Event of Default" for the purposes of this Note: (a) Maker fails to pay any
amount owing under this Note or any other promissory note by Maker to Payee
within fifteen (15) days of its due date {whether at stated maturity, by
acceleration, or otherwise); or (b) Maker shall file, or have filed against
Maker, a petition seeking to take advantage of any law relating to bankruptcy,
insolvency, reorganization, liquidation or dissolution. If any Event of Default
occurs and is continuing, then and in every such case Payee may declare the
unpaid principal and interest of this Note to be due and payable immediately,
without further notice, and upon any such declaration such principal shall
become due and payable immediately, without presentment, demand, protest, notice
of protest or other formalities of any kind, all of which are hereby expressly
waived by Maker. In the Event of Default, Maker shall pay to the Payee any and
all costs, filing fees, and reasonable attorneys fees necessary to enforce the
terms and collection of any payments due under this Note.
If any payment is not made within fifteen (15) days of its due date, a
late charge equal to the lesser of five percent (5%) of such overdue payment or
the maximum amount permitted by applicable law shall automatically become due to
Payee.
This Note shall be governed by, and construed in accordance with, the
law of the State of New York without regard to the conflicts of laws provisions
thereof.
The Certo Group Corp.
By: /s/ Xxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxx Xxxxx
Titile: President
The undersigned personally guarantees the prompt and full performance
and payment in full of the Note made by The Certo Group, Corp. to Payee, and, in
the event of default, authorizes the Payee to proceed against any or all of the
undersigned, for the full amount due including reasonable attorneys' fees, and
hereby waives presentment, demand, protest or notice. This is a guaranty of
payment and not of collection.
/s/ Xxxxxxxx Xxxxx
--------------
Name: Xxxxxxxx Xxxxx
S.S. # ###-##-####
SECURITY AGREEMENT
(Chattel Mortgage)
THIS SECURITY AGREEMENT (this "Agreement"), dated as
of____________________________________________________ by and between The Certo
Group Corp. a Delaware corporation whose principal business address
is__________________________________(the "Debtor") and 41A Ave. A Cafe, LLC LLC,
a New York limited liability company whose principal business address is do
Xxxxxx Xxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx (the "Secured Party"). The
Debtor's principal place of business is the same as its principal business
address.
WITNESSETH:
To induce the Secured Party to extend the credit evidenced by the
Promissory Note (as defined below) and to extend credit to the Debtor that would
constitute the Obligations (as defined below), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Debtor has agreed to pledge and grant a security interest in the Collateral (as
defined below) as security for the Obligations.
Accordingly, the parties hereto agree as follows:
1.1. Obligations. To secure the payment of an indebtedness in the amount
of $56,250.00 plus interest, payable in accordance with the two promissory notes
attached hereto (the "Promissory Note"); and also to secure any other
indebtedness or liability of the Debtor to the Secured Party direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
including all future advances or loans which may be made at the option of the
Secured Party, (collectively, the "Obligations"). The term "Promissory Note"
shall be deemed to include any additional promissory note(s) issued by Debtor as
Maker to the Secured Party, as Payee,.
1.2. Security Interest. Debtor hereby grants and conveys to the Secured
Party a security interest in, and mortgages to the Secured Party: (i) the
property described in the schedule attached hereto (the "Schedule"), which the
Debtor represents will be used primarily for business; (ii) all property, goods
and chattels of the same classes as those described in the Schedule, acquired by
the Debtor subsequent to the execution of this Agreement and prior to its
termination.; (iii) all proceeds thereof, if any; and (iv) all substitutions,
replacements and accessions thereto (collectively, (i), (ii), (iii) and (iv),
the "Collateral").
1.3. Replacement Collateral. Subject to obtaining the consents of any
necessary prior secured parties, the Debtor, with the consent of the Secured
Party, may replace any items of the Collateral, provided that such replacement
is of equal or greater value to the item(s) so replaced, that the same are fully
paid for, or that such purchase be secured by a security agreement under the
Uniform Commercial Code, which security agreement shall be subordinate to this
Agreement, and further, provided that within five (5) days of any such
replacement, a supplemental security agreement covering such new chattel,
fixtures and equipment which shall be executed and delivered by the Debtor to
-1-
the Secured Party c/o its attorney, together with an appropriate resolution of
the Board of Directors of the Debtor, by certified mail, return receipt
requested. The new chattels, fixtures and equipment shall be deemed additional
items of collateral hereunder and shall be of equal or better quality than the
replaced items of collateral, and shall be deemed to be included in the term
"Collateral".
2.1 Debtor represents, warrants, covenants and agrees as follows:
(a) Payment. To pay and perform all of the Obligations in accordance
with their terms.
(b) Defend Title. To defend the title to the Collateral against all
persons and against all claims and demands whatsoever, which Collateral, except
for the security interest granted hereby, is now lawfully owned by the Debtor
and is now free and clear of any and all liens, security interests, claims,
charges, encumbrances, taxes and assessments, except as may be set forth in the
Schedule.
(c) Assurance of Title. On demand of the Secured Party to deliver to the
Secured Party, the following: to furnish further assurance of title, execute any
written agreement or do any other acts necessary to effectuate the purposes and
provisions of this Agreement, to execute any instrument or statement required by
law, or otherwise, in order to perfect, continue or terminate the security
interest of the Secured Party in the Collateral and to pay all costs of filing
in connection therewith.
(d) Location. To keep the Collateral at the location specified in the
Schedule and not to remove same {except in the usual and ordinary course of
business for temporary periods), without the prior written consent of the
Secured Party.
(e) Possession. To retain possession of the Collateral during the
existence of this Agreement and not to sell, exchange, assign, loan, deliver,
lease, mortgage or otherwise dispose of the same without the written consent of
the Secured Party.
(f) Taxes. To pay, when due, all taxes, assessments and license fees
relating to the Collateral.
(g) Liens. To keep the Collateral free and clear of all Liens, charges,
encumbrances, taxes and assessments.
(h) Repairs. To keep the Collateral, at Debtor's own cost and expense,
in good repair and condition, and not to misuse, abuse, waste or allow to
deteriorate, except for normal wear and tear, and to make same available for
inspection by the Secured Parry at all reasonable times.
(i) Use of Proceeds. This Agreement is security for a loan to be used to
pay a part or all of the purchase price of the Collateral (which is referred to
-2-
under the Uniform Commercial Code as a Purchase Money Security Agreement); the
proceeds of the loan shall be used to pay the purchase price, filing fees and
insurance premiums. The Secured Party however, may pay the proceeds directly to
the seller of the Collateral.
(j) Purchase Money Security Agreement. This is a Purchase Money Security
Agreement.
(k) Collateral. Unless otherwise stated, the Collateral is located at
the premises of the Debtor set forth above. This Security Agreement covers all
instruments, documents, goods, inventory, equipment, chattel paper, contract
rights, accounts, general intangibles and fixtures, all as defined by the
Uniform Commercial Code, including all present or future personal property and
fixtures of Debtor now existing or hereafter acquired, and wherever located.
(1) Change of Address. To immediately notify the Secured Party in
writing of any change, in or discontinuance of, Debtor's place or places of
business and/or residence.
(m) Affixed to Realty. That if the Collateral has been attached to, or
is to be attached to, real estate, a description of the real estate and the name
and address of the record owner is set forth in the Schedule.
3.1 Default. The following shall constitute a default by Debtor
(collectively, each a "Default"):
(a) Non-payment. Default in the payment of any installment of the
Promissory Notes (principal and interest) and such default continues beyond the
grace period of the Promissory Notes.
(b) Violation. Default under any of the terms of this Agreement
other than payment of the Promissory Notes and such default continues beyond the
grace period of fifteen (15) days.
(c) Rent. Default in the payment of rent under the lease and/or sublease
covering the premises wherein the Collateral is located, and such default
continues for a period of fifteen (15) days or default under any of the other
terms and conditions of said lease and/or sublease (other than in the payment of
rent) and such default continues for a period of fifteen (15) days.
(d) Levy. A levy made by an Xxxxxxxx or Sheriff which is not removed
within a period of fifteen (15) days.
(e) Insolvency. A petition in bankruptcy is filed by the Debtor or the
Debtor is adjusted a bankrupt, or the Debtor makes an assignment for the benefit
of creditors, or the Debtor takes advantage of any insolvency act.
-3-
(f) Custodian. A custodian or receiver or trustee is appointed over the
Collateral who is not removed within a period of fifteen (15) days.
(g) Death. Death of the Debtor or of any Guarantor of, or surety for,
the Debtor's obligations.
(h) Due on Sale. If the Debtor, its successors or assigns, transfers the
business located in the premises described in this Agreement or in the event of
a sale of substantially all of the assets of the business or a sale, transfer or
issuance of so much of the capital stock of the business, or the rights
attendant thereto so as to result in a change of control of the Debtor, then the
entire obligation of Debtor shall be immediately due and payable.
(i) Default. Default under any of the terms of payments required by any
prior existing mortgage or sublease if any, which default continues beyond any
applicable grace and notification period provided by such instrument.
3.2 Remedies on Default. Upon any Default of the Debtor which shall
continue uncured beyond any applicable written notice of default period within
which to cure such default and then at the option of the Secured Parry, the
Obligations shall immediately become due and payable in full, without further
notice or demand and the Secured Parry shall have all the rights, remedies and
privileges with respect to repossession, retention and sale of the Collateral
and disposition of the proceeds as are accorded to a secured party by the
applicable sections of the Uniform Commercial Code respecting "Default", in
effect as of the date of this Agreement.
3.3 Acceleration. In the event of a Default by Debtor which continues
beyond any applicable grace or notice of default period, provided for curing
such default, the Secured Party or the holder of any of the Promissory Notes
shall have the right, at its option, to declare the entire unpaid balance of
principal and interest then unpaid hereunder, immediately due and payable.
3.4 Deficiency. The Debtor shall remain liable for any deficiency
resulting from a sale of the collateral, which deficiency shall be chargeable to
the Debtor.
3.5 Attorneys' fees etc. Upon any Default, the Secured Party's
reasonable attorneys' fees together with all legal and other expenses from
pursuing, searching for, receiving, taking, keeping, storing, advertising, and
selling the Collateral shall be chargeable to the Debtor,
3.6 Monies Advanced. If the Debtor shall default in the performance of
any of the provisions of this Agreement on the Debtor's part to be performed,
the Secured Parry may perform same for the Debtor's account and any monies
expended in so doing shall be chargeable with interest to the Debtor and added
to the indebtedness secured party.
-4-
3.7 Seizure; Assembling Collateral; Notice of Sale. In conjunction with,
addition to or substitution for, those rights, the Secured Party, at the Secured
Party's discretion, after expiration of any applicable grace and/or written
notice of default period, provided such default remains uncured, the Secured
Parry, may: (i) enter upon the Debtor's premises peaceably by the Secured
Party's own means, or with legal process, and take possession of the Collateral,
or render it unusable, or dispose of the Collateral on the Debtor's premises,
and the Debtor agrees not to resist or interfere; (ii) require the Debtor to
assemble the Collateral and make it available to the Secured Party at a place to
be designated by the Secured Parry, reasonably convenient to both parties
(Debtor agrees that the Secured Parry's address as set forth above is a place
reasonably convenient for such assembling); and (iii) unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Secured Party will give the Debtor reasonable
notice of the time and place of any public sale thereof, or of the time after
which any private sale or any other intended disposition thereof is to be made.
The requirements or reasonable notice will be met if such notice is mailed;
postage prepaid, to the address of the Debtor shown above, at least (3) three
days before the time of sale or disposition.
4.1 Further Agreements. Debtor further covenants and agrees as follows:
(a) Insurance. To keep the Collateral insured against loss by fire
(including extended coverage), theft and other hazards, as the Secured Parry may
require. The aggregate amount of such insurance shall at least equal but need
not exceed the replacement value of the Collateral. Policies shall be obtained
from reputable insurers licensed to do business in New York State. Certificates
of insurance policies, payable to the respective parties, as their interest may
appear, shall be deposited with the Secured Parry who is authorized, but under
no duty, to obtain such insurance upon failure of the Debtor to do so. Debtor
shall give immediate written notice to the Secured Party and to insurers of loss
or damage to the Collateral and shall promptly file proofs of loss with
insurers. Debtor hereby appoints the Secured Party the attorney for the Debtor
in obtaining, adjusting and canceling any such insurance and endorsing
settlement drafts and hereby assigns to the Secured Party all sums which may
become payable under such insurance, including return premiums and dividends, as
additional security for the indebtedness.
(b) Damage. In the event of any damage or loss to the Collateral, or any
part thereof, resulting from fire, which loss shall be covered by appropriate
fire insurance, the proceeds received from any casualty company insuring such
risk, shall, subject to the rights of prior secured parties if any, be held and
retained in escrow by the attorney for the Secured Party (the "Escrow Agent"),
who shall apply same for repairing or replacing any such damaged or lost items
of the Collateral. The substituted chattels and equipment shall be deemed
covered by this Agreement. Any balance thereon remaining shall be paid to the
Debtor. Nothing herein contained shall vary or modify the obligation of the
Debtor to pay the Promissory Notes as and when they become due and payable.
However, should such casualty result in a termination of the real property lease
for the premises where the Collateral is situated, then and in such event, such
proceeds shall be_applied by the Escrow Agent subject to the rights of any prior
secured
-5-
parties, if any, to the payment of the then principal sums and interest due and
owing under this Agreement, and the balance, if any, shall be paid to the
Debtor. The Debtor and the Secured Party agree to endorse any draft issued by
such casualty company upon the payment of such loss to the order of the Escrow
Agent, so as to enable the Escrow Agent to deposit the said draft for
collection, and to apply the funds as provided herein.
(c) Prepayment. Debtor shall have the privilege of prepaying with
interest to the date of such prepayment the principal sum remaining unpaid
hereunder or any part hereof in inverse order of the due dates.
(d) Impairment. It is further agreed that the lien of this Agreement
shall in no wise be affected or impaired, but shall continue until payment in
full of the Obligations have been completed in the event, among other things,
that (i) any one or more of the installments or Promissory Notes shall be
increased or decreased in amount, provided that the monthly payments shall not
be increased; or (ii) the due dates of any one or more of the installments of
the Promissory Notes shall be changed, provided the term is not shortened nor
the frequency changed; or (iii) any promissory note shall be substituted for the
Promissory Notes.
(e) Negotiate. It is further agreed that the Secured Party shall have
the right to discount, sell, pledge, negotiate or otherwise dispose of any of
the Promissory Notes without in any wise prejudicing or affecting the security
herein, and it is further expressly agreed that, should any of the Promissory
Notes, mature and remain unpaid, action may be brought and judgment be obtained
and collected on such Promissory Notes by any holder thereof, without in any way
or manner affecting or impairing this Agreement and without in any wise
altering, impairing or prejudicing the right of the Secured Parry under the
terms, covenants and conditions of this Agreement.
(f) Lease. The Debtor agrees to assign any new lease, modification or
extension thereof, procured by it to the Secured Party, its successors or
assigns, or its designee under the same terms upon which the existing lease has,
as of the date hereof, been assigned. The Debtor, or any one procuring such
lease, modification or extension, shall be declared a trustee of such lease for
the benefit of the Secured Party, its successors or assigns, or its designee.
Nothing contained herein shall be deemed to authorize or empower the Debtor to
execute any such new lease, modification or extension thereof with the landlord.
(g) Non-Compete. If there should be a default in the payment of any of
the Promissory Notes beyond the grace and applicable notice of default periods
resulting in a foreclosure of the lien of this Agreement or the repossession of
the Collateral, then the Debtor and/or its shareholders, officers, director,
partners or members if the Debtor should be a corporation, limited liability
company or partnership, jointly and severally, agree not to engage directly or
indirectly in the same or similar business of any kind or nature within a radius
of five blocks in every direction of the premises herein described for a period
of three years from the date of such foreclosure or repossession.
-6-
(h) Financing Statement. The Secured Party is hereby authorized to file
Financing Statements in the state and county wherein the business is situated,
duly executed by Debtor, currently herewith. (i) Further Assurances. Debtor
agrees that, from time to time, upon the written request of the Secured Party,
Debtor will execute and deliver such documents and do such acts and things as
the Secured Party may reasonably request in order fully to effect the purposes
of this Agreement and to secure the Collateral.
5.1 General Terms.
(a) Notes. Notes, if any, executed in connection with this Agreement,
are separate instruments and may be negotiated by Secured Party without
releasing Debtor, the Collateral, or any guarantor or co-maker. Debtor consents
to any extension of time of payment. If there be more than one Debtor, guarantor
or co-maker of this Agreement or of notes secured hereby, the obligation of each
such party shall be primary, joint and several. The term "Promissory Notes"
shall be deemed to include any additional or substitute promissory notes given
by Debtor hereunder, now or in the future.
(b) Notices. Notice of any Default, a default in the payment of any of
the Promissory Notes, or any other Notices to either parry shall be in writing
and shall be delivered personally or by certified mail, return receipt
requested, addressed to the party at the address set forth herein or otherwise
designated in writing. Debtor, its successor or assigns, shall have fifteen (15)
days from the mailing of any such notice within which to cure any such default
before the Secured Parry shall have the right to assert any remedy, or to
accelerate the payment of the Promissory Notes. The date stamped upon the
certification receipt by the United States Post Office shall be deemed the date
of mailing of such notice. Nothing contained herein shall be deemed to grant to
the party in the actual possession of the premises any extension of time to
perform any such covenant or to make any such payment, other than the Debtor.
(c) Expenses. Upon any Default or any request by Debtor to amend or
waive any term of this Agreement, the Debtor shall pay the Secured Party's
attorneys' fees and the legal and other expenses incurred by the Secured Parry
in connection with such default, amendment or waiver.
(d) Non-Waiver. Waiver or acquiescence in any Default by the Debtor, or
failure of the Secured Parry to insist upon strict performance by the Debtor of
any representations, warranties, covenants or agreements in this Agreement,
shall not constitute a waiver of any subsequent or other default or failure, and
no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Secured Parry of any right, power or remedy
hereunder preclude any other or further exercise thereof, or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
-7-
(e) Law Applicable. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, and the Unifoiin
Commercial Code enacted in the State of New York shall govern the rights, duties
and remedies of the parties and any provisions herein declared invalid under any
law shall not invalidate any other provision or this Agreement.
(f) Assigns. The terms, warranties and agreements herein contained shall
bind and inure to the benefit of the respective parties hereto, and their
respective legal representatives, successors and assigns.
(g) Amendments. This Agreement may only be altered or amended by an
instrument in writing duly executed by the parties to this Agreement.
(h) Severability. If any provision hereof is invalid and unenforceable,
then, to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect and shall be liberally construed in favor
of the Secured Party in order to carry out the intentions of the parties hereto
as nearly as may be possible.
(i) Captions. The captions and section headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement nor the intent of any provision thereof.
(j)
Gender/Singular-Plural. The gender and number used in this Agreement are used a
reference term only and shall apply with the same effect whether the parties are
of the masculine or feminine gender, corporate or other form, and the singular
shall likewise include the plural.
IN WITNESS WHEREOF, the Parties have respectively signed and sealed
these presents the day and year first above written.
Secured Parry: 41A Ave. A Cafe, LLC
By:________________________________
Name: Xxxxxx Xxxxx
Title: Managing Member
Debtor: The Certo Group, Corp.
By:/s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: President
Agreed as to Section 4 1(g) only
/s/ Xxxxxxxx Xxxxx
---------------------
Xxxxxxxx Xxxxx
________________________
-8-
SCHEDULE
List the items of Collateral, the address where each item will be located and
describe any prior liens, and the amounts due thereon, and describe the real
estate and the list the name and addresses of the record owner of the real
estate that the Collateral is attached to, if applicable. Items Location
All fixtures and equipment in the Business 00 Xxxxxx X, Xxx Xxxx,
Xxxxxxxx Xxx Xxxx 00000
GUARANTEE
The undersigned personally guarantees prompt and full performance and
payment according to the tenor of the within agreement to the holder hereof,
and, in the event of default, authorizes any holder hereof to proceed against
the undersigned, for the full amount due including reasonable attorneys' fees,
and hereby waives presentment, demand, protest, notice. This is a guaranty of
payment and not of collection.
/s/ Xxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxx Xxxxx
000 Xxxx Xxxx
Xxxxxxxxxxx, XX 00000
S.S.# ###-##-####
-9-
