Exhibit 10.22
FORBEARANCE AGREEMENT
This Forbearance Agreement (the "Agreement") is entered into between
Xxxxx Star Management, Inc., IC One, Inc. and Schimatic Cash Transactions
Xxxxxxx.xxx, Inc., effective as of March 26, 2001.
RECITALS
WHEREAS:
A. On or about August 30, 1999, Xxxxx Star Management, Inc.
("Xxxxx Star") filed a lawsuit against IC One, Inc. ("IC
One"), Xxxxx Star Management, Inc. v. IC One, Inc., Civil No.
990908764, in the Third Judicial District Court of Salt Lake
County, State of Utah (the "Lawsuit"). In the Lawsuit Xxxxx
Star sought, among other things, to collect unpaid rent owed
by IC One to Xxxxx Star, under a Lease entered into between
the parties on August 21, 1997 for certain space in the Alpine
Building, located at 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, Xxxx.
B. In the Lawsuit a Judgment was entered in favor of Xxxxx Star
and against IC One on or about December 5, 2000, in the amount
of $50,541.03, plus postjudgment interest at the rate of
twenty-four percent per annum, and other amounts as described
in the Judgment. A true and correct copy of the Judgment is
attached hereto as Exhibit A.
C. In early February, 2001, Xxxxx Star caused a Writ of Execution
to be served upon IC One, in an effort to collect the
Judgment. The Writ of Execution was served at 000 Xxxx 0000
Xxxxx, Xxxx Xxxx Xxxx, Xxxx, and attached to all personal
property of IC One located at that address.
-1-
D. In response to the Writ of Execution, Xxxxx Xxxxxx filed a
Request for Hearing, and a hearing was held before the
Xxxxxxxxx Xxxxxx Xxxxxx on March 13, 2001. At the hearing
Judge Peuler ordered that Xxxxx Star may continue to pursue
its rights under the Writ of Execution with respect to all
personal property of IC One, including the conducting of a
sheriff's sale to auction such property.
E. There is also located at the 740 East 3900 South property (the
"3900 South Property"), certain personal property owned,
according to IC One, by Schimatic Cash Transactions
Xxxxxxx.xxx, Inc. ("SCTN"), which presently is conducting its
business operations at the 0000 Xxxxx Xxxxxxxx.
F. SCTN is currently using IC One's property, including,
furniture, office equipment and other property, to conduct its
business operations at the 0000 Xxxxx Xxxxxxxx.
G. In the event Xxxxx Star were to cause a sheriff's sale to be
conducted of the IC One property located at the 3900 South
Property, this would cause a substantial disruption to the
business operations of SCTN.
H. SCTN asserts that it owns the 3900 South Property, jointly
with Big "M" Investment ("Big M"); that SCTN rents the
property from the owner; that the obligation to the landlord
is seriously delinquent; that the landlord has served on SCTN
a Three Day Notice to Pay Rent or to Vacate; and that the
landlord has announced its intention to file an unlawful
detainer complaint, to evict SCTN from the 0000 Xxxxx
Xxxxxxxx.
I. Big M has agreed to resolve the foregoing dispute, however, by
forgiving
-2-
the past due rent and allowing SCTN six months of free
occupancy of the 3900 South Property, in exchange for a
conveyance to Big M of SCTN's thirty-four percent interest in
the 3900 South Property.
J. Big M has insisted that the afore-referenced conveyance must
be free and clear of liens. However, the Judgment referred to
in paragraph B above has been listed, by Xxxxxxx Title
Company, as an encumbrance against the 3900 South Property.
K. Accordingly, in order to facilitate the sale to Big M, as
described above, SCTN has requested Xxxxx Star to provide a
release of any lien or encumbrance it may hold against the
0000 Xxxxx Xxxxxxxx.
X. Xxxxx Star has agreed to furnish such a release, and otherwise
to resolve its current dispute with IC One and SCTN, on the
terms and conditions set forth below.
AGREEMENT
WHEREFORE, to these ends and for and in consideration of the terms and
conditions herein as set forth, as well as the mutual benefits to be derived
therefrom, and for good and valuable consideration, the parties hereto agree as
follows:
1. The above Recitals are incorporated herein by reference, as material
parts of their Agreement.
2. Xxxxx Star shall execute a Release of Judgment Lien ("Release"), in the
form attached hereto as Exhibit B, of its lien, if any, against the
3900 South Property, arising
-3-
by virtue of the Judgment. By executing the Release Xxxxx Star does not
intend to release the Judgment or any rights arising under the
Judgment; it intends only to release any lien against the 3900 South
Property.
3. IC One shall execute and deliver to Xxxxx Star a Security Agreement, in
the form attached hereto as Exhibit C, to secure IC One's obligation to
Xxxxx Star pursuant to the Judgment.
4. SCTN shall deliver to Xxxxx Star a Continuing Unconditional Guaranty
(the "Guaranty"), of IC One's obligation under the Judgment, in the
form attached hereto as Exhibit D.
5. SCTN shall also execute and deliver to Xxxxx Star a Security Agreement,
in the form attached hereto as Exhibit E, to secure SCTN's obligation
to Xxxxx Star pursuant to the Guaranty.
6. IC One and Xxxxx Star represent that the schedule of personal property
attached hereto as Exhibit F describes personal property owned by IC
One, all presently located at 3900 South Property.
7. IC One and SCTN represent that the schedule of personal property
attached hereto as Exhibit G is personal property owned by both IC One
and SCTN, which is also presently located at the 3900 South Property.
IC One and SCTN represent that the property marked with an asterisk (*)
is owned by SCTN and that the remainder of the property on Exhibit G is
owned by IC One.
8. IC One and SCTN shall each also execute and deliver to Xxxxx Star,
UCC-1
-4-
financing statements in the form attached hereto as Exhibits H and I,
so that Xxxxx Star may perfect the security interests granted pursuant
to the Security Agreements (Exhibits C and E), to be executed by IC One
and SCTN.
9. IC One shall satisfy its obligation under the Judgment by making
monthly payments to Xxxxx Star in the amount of $5000 per month. The
first such payment shall be delivered to Xxxxx Star or its legal
counsel contemporaneously with the execution of this Agreement.
Thereafter, payments shall be due and payable on the 1st day of each
month, with the 2nd payment due and payable on May 1, 2001, and
subsequent payments due and payable the 1st day of each month
thereafter.
10. In the event IC One timely makes the first two $5000 payments, as
provided for in paragraph 9 above, Xxxxx Star will cause the Writ of
Execution, as described in paragraph C above to be vacated, and will
not seek to enforce that Writ of Execution.
11. All payments shall be applied first to accrued interest on the Judgment
and then to the principal amount of the Judgment.
12. The $5000 monthly payments provided for above shall continue until the
Judgment has been paid in full.
13. IC One and SCTN both recognize that Xxxxx Star retains the right to
seek augmentation of the amount of the Judgment in accordance with
paragraph 3 of the Judgment.
14. All payments required pursuant to this Agreement shall be made by
cashier's check or other certified funds and shall be delivered to and
received by Xxxxx Star's agent, NAI Utah Commercial Property
Management, 00 X. Xxxxx Xxxxxx, Xxxxx 0000,
-0-
Xxxx Xxxx Xxxx, XX 00000, no later than the due dates set forth above.
15. In the event IC One fails to timely make any of the payments required
under this Agreement, Xxxxx Star shall provide notice of IC One's
default to IC One, which shall then have five (5) business days
following the notice to cure the default.
16. In the event IC One fails to cure the default, Xxxxx Star may then
proceed against IC One and SCTN as follows:
x. Xxxxx Star may exercise all its rights and remedies under
the Security Agreement(s) executed by IC One and SCTN;
x. Xxxxx Star may utilize all means available to it to collect
the Judgment, including the issuance of a Writ of Execution in
accordance with Rule 69, Utah Rules of Civil Procedure;
x. Xxxxx Star may file suit against SCTN to enforce the
Guaranty; and
x. Xxxxx Star may exercise all other rights and remedies
available to it to enforce the obligations IC One and SCTN pursuant to
the Judgment and the Guaranty.
17. The parties understand and acknowledge that, by entering into this
Agreement to set forth the terms upon which IC One may make payments to
satisfy its obligations under the Judgment, Xxxxx Star does not intend
to forfeit or relinquish any of its rights pursuant to the Judgment.
Rather, the parties understand that, provided that IC One makes the
payments required pursuant to this Agreement, Xxxxx Star agrees that it
will forbear from exercising its rights under the Judgment, as
described herein.
18. The parties also understand and agree that by entering into the
Security Agreement with IC One (attached hereto as Exhibit C), Xxxxx
Star does not intend to
-6-
forfeit or relinquish any of its rights under the Judgment. Rather, the
parties understand that, by entering into the Security Agreement and
executing a UCC-1 financing statement, IC One is conveying rights to
Xxxxx Star to induce it to forbear (pending IC One's performance under
this Agreement), from immediately exercising its right to collect the
Judgment. In the event that IC One defaults in its payment obligations
pursuant to this Agreement, Xxxxx Star may then, in that event, proceed
to exercise its rights to enforce the Judgment (including seeking the
issuance of further Writs of Execution), pursuant to Rule 69, Utah
Rules of Civil Procedure, and/or to enforce its rights under the
Security Agreement entered into between Xxxxx Star and IC One, attached
hereto as Exhibit C.
19. In the event of a default under this Agreement, the defaulting party
shall pay all attorney's fees and costs incurred by the non-defaulting
party in enforcing its rights and remedies under this Agreement.
20. This Agreement and any issue arising under or relating to it shall be
construed in all respects by the law of the State of Utah, without
resort to its choice of laws or other conflicts of laws principles.
21. All covenants, agreements, representations and warranties set forth in
this Agreement shall be binding upon, and shall inure to the benefit of
the parties hereto and their successors and assigns, heirs, executors,
administrators and personal or legal representatives.
22. This Agreement contains the entire understanding of the parties, and no
other prior or contemporaneous agreement, statement, promise or conduct
-7-
(whether oral or written) by any party hereto shall have any legal
force or effect or be used in any way to vary, explain, modify or
abrogate any of the terms of this Agreement. All negotiations relating
to this Agreement are hereby superseded.
23. Each of the parties hereto acknowledges that he, she, or it (as the
case may be) has obtained the advice of experienced legal counsel of
their own choosing in connection with the negotiation and execution of
this Agreement and with respect to all matters set forth in this
Agreement or that otherwise relate to this Agreement. Furthermore, the
parties acknowledge and agree that they have mutually contributed to
the drafting of this Agreement. No provision of this Agreement shall be
construed against any party on the ground that such party or its
counsel drafted the provision at issue or that the provision at issue
contains a covenant of such party.
24. There are no third-party beneficiaries of or to this Agreement.
25. The parties each covenant and agree to execute such documents as may
reasonably be required to implement and carry out the intent of this
Agreement.
26. This Agreement may be executed in any number of duplicate originals and
by different parties hereto in separate counterparts, each of which,
when so executed and delivered, shall be deemed an original document,
but all such duplicate originals and counterparts shall together
constitute but one and the same agreement.
27. In the event any party fails to strictly enforce any obligation of any
other party to this Agreement, such failure to act shall not constitute
or be deemed a waiver of the party's right to demand strict enforcement
of that obligation thereafter.
-8-
28. Each of the undersigned warrants and represents that he has authority
to execute this Agreement on behalf of the party on whose behalf he has
executed the Agreement.
DATED this ______ day of March, 2001. XXXXX STAR MANAGEMENT, INC.
By:/s/ X.X. Xxxx
---------------------------
X. X. Xxxx, Its President
DATED this 29th day of March, 2001. IC ONE, INC.
By:/s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx, Its Secretary
DATED this 29th day of March, 2001. SCHIMATIC CASH TRANSACTIONS
XXXXXXX.XXX, INC.
By:/s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx, Its Secretary
-9-
EXHIBIT A
Xxxxxx X. Xxxxx (USB #2642)
JONES, WALDO, XXXXXXXX & XxXXXXXXX Attorneys for
Plaintiff 0000 Xxxxx Xxxxx Xxxxx 000 Xxxxx Xxxx Xxxxxx
Post Xxxxxx Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY
STATE OF UTAH
XXXXX STAR MANAGEMENT, INC.,
Plaintiff,
vs.
IC ONE, INC.,
Defendant.
JUDGMENT
Civil No. 990908764
Xxxxxxxxx Xxxxxx Xxxxxx
This matter came on for trial on December 4, 2000, at 10:00 a.m. At the
trial the plaintiff, Xxxxx Star Management, Inc., was represented by its
counsel, Xxxxxx X. Xxxxx, of Jones, Waldo, Xxxxxxxx & XxXxxxxxx. The defendant,
IC One, Inc., did not appear at the trial, either through counsel or through any
other representative of defendant.
At the trial the Court received plaintiff's proffer of the testimony of
Xxxxxx Xxxxxxx and Xxxxxx Xxxxxx. It also received into evidence Plaintiff's
Exhibits 1 and 2, the Lease between the plaintiff and defendant, and the
accounting ledger showing the amount owed by defendant to
1
plaintiff pursuant to the Lease, as of the time of trial. The witnesses, who
were both present in the courtroom, stated under oath that the proffers
accurately reflected their testimony. The Court considers itself fully advised
with respect to the matters presented, and is of the opinion that judgment
should be entered in favor of the plaintiff and against the defendant, as set
forth below.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
1. Judgment is entered in favor of plaintiff Xxxxx Star Management, Inc.
against defendant IC One, Inc. in the amount of $50,541.03.
2. Post-judgment interest shall accrue on the judgment at the rate of 24%
per annum, as provided for in the Lease between the parties dated
August 21, 1997 (the "Lease").
3. This Judgment may be augmented from time to time hereafter, to add
additional amounts of rent reserved, interest, late charges, and other
amounts for which defendant becomes liable hereafter, pursuant to the
Lease, plus reasonable costs and attorney's fees expended by plaintiff
in collecting this Judgment by execution or otherwise, as shall be
established by affidavit. Although this Judgment shall be immediately
enforceable by the plaintiff, the Court shall retain jurisdiction of
this matter to permit plaintiff to seek augmentation of the amount of
the Judgment, as described above, through brief supplemental
proceedings.
DATED this 5 day of December, 2000.
/s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxxxxx Xxxxxx Xxxxxx
Third District Court Judge
2
Exhibit B
RELEASE OF JUDGMENT LIEN
WHEREAS:
A. On or about December 5, 2000, a Judgment was entered in the
Third Judicial District Court of Salt Lake County, State of
Utah, in Xxxxx Star Management, Inc. v. IC One, Inc., Civil
No. 990908764, in the amount of $50,541.03, plus interest and
other amounts as described in the Judgment (hereafter the
"Judgment").
B. The lien arising by virtue of the Judgment, pursuant to Utah
Code Xxx. xx.xx. 78-22-1, et seq., may encumber certain real
property located at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, which real property is more particularly described on
Exhibit A attached hereto.
C. IC One, Inc. ("IC One") and Schimatic Cash Transactions
Xxxxxxx.xxx, Inc. ("SCTN") have requested, in connection with
a Forbearance Agreement entered into among the parties of even
date herewith, for Xxxxx Star to release its judgment lien, if
any, encumbering the above-referenced property.
WHEREFORE, Xxxxx Star hereby releases any judgment lien arising in its
favor against the property described on Exhibit A arising by virtue of the entry
of the Judgment. Xxxxx Star reserves all other rights and remedies arising
pursuant to the Judgment.
-1-
EXECUTED this ______ day of March, 2001.
XXXXX STAR MANAGEMENT, INC.
By
-------------------------------
Xxxxxx X. Xxxxx, Its Attorney
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the ______ day of March, 2001, personally appeared before me Xxxxxx
X. Xxxxx, the signer of the foregoing instrument, who duly acknowledged to me
that he is the attorney for Xxxxx Star Management, Inc., that he is authorized
to execute this Release of Judgment Lien on behalf of Xxxxx Star Management,
Inc., and that he executed the same.
NOTARY PUBLIC
Residing at:
My Commission Expires:
-2-
Exhibit C
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into effective as of March 26, 2001,
by and between Xxxxx Star Management, Inc. and IC One, Inc.
RECITALS
WHEREAS:
X. Xxxxx Star Management, Inc., ("Xxxxx Star" or "Secured Party")
IC One, Inc. ("IC One" or "Debtor"), and Schimatic Cash
Transactions Xxxxxxx.xxx, Inc. ("SCTN") have entered into, or
will enter into contemporaneously herewith, a Forbearance
Agreement, setting forth the terms upon which Xxxxx Star will
forbear from exercising its rights under that certain Judgment
that has been entered in favor of Xxxxx Star against IC One,
as referred to in the Forbearance Agreement.
B. Under the terms of the Forbearance Agreement, IC One is
obligated to make payments to satisfy the Judgment, as
described in the Forbearance Agreement. The total obligation
owed by IC One to Xxxxx Star pursuant to the Judgment, and as
described in the Forbearance Agreement, is referred to
hereafter as the "Indebtedness."
C. In connection with the Forbearance Agreement, Xxxxx Star has
requested of IC One, and IC One has agreed, to convey to Xxxxx
Star a security interest in all IC One's personal property.
NOW, THEREFORE, Xxxxx Star and IC One agree as follows:
1. To secure the payment of the Indebtedness, IC One
hereby grants
-1-
to Xxxxx Star a security interest in all IC One's
goods (including but not limited to equipment and
furniture), inventory, accounts, and chattel paper,
whether now owned or hereafter acquired, and all
proceeds of the foregoing (hereafter collectively the
"Collateral"). The Collateral includes, but is not
necessarily limited to all the property described on
Exhibit 1 attached hereto, and all the property
described on Exhibit 2 attached hereto (with the
exceptions of those items on Exhibit 2 marked with an
asterisk (*).
2. IC One represents that all The Collateral is
currently located at the business premises of SCTN,
at 000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx.
3. IC One warrants and represents that it shall not move
any of the Collateral from the 3900 South property
without the prior written consent of Xxxxx Star.
4. The Debtor agrees to execute contemporaneously
herewith, in a form satisfactory to Secured Party, a
UCC-1 financing statement, to be filed by Secured
Party to provide public notice of the existence of
the security interest created by this Security
Agreement.
5. The Debtor shall be in default under this Security
Agreement upon the occurrence of any one or more of
the following events:
a. The Debtor shall fail to pay when due the
Indebtedness, or any part of the
Indebtedness, secured by this Security
Agreement; or
-2-
b. The Debtor shall fail to comply in any
respect with any provision contained in this
Security Agreement.
6. Upon the occurrence of any event of default as
described in the preceding paragraph, the Secured
Party shall have the following rights:
a. Secured Party may declare the entire
Indebtedness secured by this Security
Agreement immediately due and payable; and
b. Secured Party shall have the rights and
remedies of a secured party under the Utah
Uniform Commercial Code, including the right
to sell, lease, or otherwise dispose of any
or all of the Collateral in any manner
allowed by the Utah Uniform Commercial Code.
7. The remedies of Secured Party are cumulative, and the
exercise or partial exercise of any one or more of
the remedies provided for herein shall not be
construed as a waiver of any of the other remedies of
Secured Party. No delay by Secured Party in
exercising any power or right shall operate as a
waiver of such right.
8. This Security Agreement and any issue arising under
or relating to it shall be construed in all respects
by the law of the State of Utah, without resort to
its choice of laws or other conflicts of laws
principles.
9. All covenants, agreements, representations and
warranties set forth in this Security Agreement shall
be binding upon, and shall inure to the benefit of
the parties hereto and their successors and assigns,
heirs,
-3-
executors, administrators and personal or legal
representatives.
10. This Security Agreement contains the entire
understanding of the parties, and no other prior or
contemporaneous agreement, statement, promise or
conduct (whether oral or written) by any party hereto
shall have any legal force or effect or be used in
any way to vary, explain, modify or abrogate any of
the terms of this Security Agreement. All
negotiations relating to this Security Agreement are
hereby superseded.
11. Each of the parties hereto acknowledges that he, she,
or it (as the case may be) has obtained the advice of
experienced legal counsel of their own choosing in
connection with the negotiation and execution of this
Security Agreement and with respect to all matters
set forth in this Security Agreement or that
otherwise relate to this Security Agreement.
Furthermore, the parties acknowledge and agree that
they have mutually contributed to the drafting of
this Security Agreement. No provision of this
Security Agreement shall be construed against any
party on the ground that such party or its counsel
drafted the provision at issue or that the provision
at issue contains a covenant of such party.
12. There are no third-party beneficiaries of or to this
Security Agreement.
13. The parties each covenant and agree to execute such
documents as may reasonably be required to implement
and carry out the intent of this Security Agreement.
-4-
14. This Security Agreement may be executed in any number
of duplicate originals and by different parties
hereto in separate counterparts, each of which, when
so executed and delivered, shall be deemed an
original document, but all such duplicate originals
and counterparts shall together constitute but one
and the same agreement.
15. In the event any party fails to strictly enforce any
obligation of any other party to this agreement, such
failure to act shall not constitute or be deemed a
waiver of the party's right to demand strict
enforcement of that obligation thereafter.
DATED this ______ day of March, 2001.
XXXXX STAR MANAGEMENT, INC.
By:
---------------------------
X. X. Xxxx, Its President
DATED this _______ day of March, 2001.
IC ONE, INC.
By
----------------------------
Xxxxx Xxxxxx, Its Secretary
-5-
Exhibit 1 to
Security Agreement
[Description of furniture and office equipment, with quantity and location]
-6-
Exhibit 2 to
Security Agreement
[Description of computer equipment and office furniture]
-7-
Exhibit D
CONTINUING UNCONDITIONAL GUARANTY
OF SCHIMATIC CASH TRANSACTIONS XXXXXXX.XXX, INC.
1. UNCONDITIONAL GUARANTY. For valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as a necessary inducement to
XXXXX STAR MANAGEMENT, INC. to enter into that certain Forbearance Agreement
entered into effective as of March 20, 2001("the Forbearance Agreement"), by and
between Xxxxx Star Management, Inc. ("Xxxxx Star"), IC One, Inc. ("IC One"), and
Schematic Cash Transactions Xxxxxxx.Xxx, Inc. (hereafter "Guarantor"), Guarantor
enters into this Continuing Unconditional Guaranty ("Guaranty") and, pursuant to
the terms and conditions herein, unconditionally and absolutely guaranties to
Xxxxx Star the due and punctual payment and performance of any and all
Indebtedness (as defined below) of IC One to Xxxxx Star. This Guaranty is
continuing and absolute and is not subject to any condition. This is a
continuing guaranty of all of the Indebtedness as described below.
2. DEFINITION OF INDEBTEDNESS. The word "Indebtedness" as used herein
refers to the obligation of IC One to Xxxxx Star under the Judgment entered on
or about December 5, 2001, in favor of Xxxxx Star against IC One, in Xxxxx Star
Management, Inc. v. IC One, Inc., Civil No. 990908764 in the Third Judicial
District Court of Salt Lake County, State of Utah. A true and correct copy of
the Judgment is attached hereto.
3. REVOCATION, MODIFICATION, AND AMENDMENT. This Guaranty cannot be
waived, abandoned, terminated, released, amended, or modified in any way, except
by a specific written instrument signed by Xxxxx Star.
4. NATURE OF GUARANTOR'S OBLIGATIONS. Guarantor's obligations are
independent of the obligations of IC One. Guarantor's obligations are also
independent of the obligations of any other guarantor of the obligations of IC
One. Xxxxx Star may bring and prosecute a separate action or actions against
Guarantor at any time, regardless of whether action is or has been brought
against IC One, or any other guarantor. This Guaranty is a guaranty of payment
and performance and not of collectibility or collection.
5. GUARANTOR'S AUTHORIZATIONS. Guarantor authorizes Xxxxx Star, without
notice or demand and without affecting Guarantor's liability hereunder, from
time to time, to (a) renew, compromise, extend, or change the terms of the
Indebtedness or any part thereof, or enter into additional or different
agreements with IC One; (b) compromise disputes with IC One, any other
Guarantor, or with anyone acting on behalf of IC One, including, without
limitation, a trustee in bankruptcy, liquidation, or reorganization of IC One,
other trustees, receivers, assignees for the benefit of creditors, or agents of
IC One; (c) take and hold security for the payment of this Guaranty or the
Indebtedness and exchange, enforce, waive, impair or release any or all such
security; and (d) apply any payments received and the proceeds of any security,
and direct the order or manner of sale of such security, as Xxxxx Star, in its
discretion, may determine. Xxxxx Star may, without notice, assign this Guaranty
in whole or in part.
6. GUARANTOR'S WAIVERS.
(a) Election of Remedies. Guarantor waives any right to
require Xxxxx Star to (i) proceed against IC One or any other guarantor
of the obligations of IC One; (ii) proceed against or exhaust any
security obtained by Xxxxx Star from IC One or Guarantor; (iii) proceed
against IC One in a timely manner; or (iv) pursue any other remedy in
Xxxxx Star's power whatsoever. Without limitation, Guarantor agrees not
to assert any right or defense
1
under Utah Code Annotated Section 78-37-1 (one-action rule) and Utah
Code Annotated Section 57-1-32 to 34 (limitations on deficiency
judgments) and any successor provisions to these statutes.
(b) Defenses of IC One. Guarantor waives any right to assert
any claim, defense, counterclaim, and setoff, other than prior
performance, that IC One may have or assert against Xxxxx Star. This
waiver includes, without limitation, Guarantor's waiver of any right to
assert any defense arising by reason of: (i) any disability of IC One;
(ii) any conduct or omission of Xxxxx Star in enforcing or failing to
enforce any provision of any agreement between IC One and Xxxxx Star;
(iii) any tort, contract, or other claim of IC One (including, without
limitation, lender liability, fraud, accord and satisfaction, bad
faith, usury, equitable subordination, and interference with contract);
and (iv) the cessation for any cause whatsoever of the liability of IC
One to Xxxxx Star. Guarantor waives the benefit of any statute of
limitations affecting Guarantor's liability hereunder or the
enforcement hereof.
(c) Subrogation and Indemnity. Until the Indebtedness has been
paid in full, Guarantor waives any right: (i) to enforce any indemnity
Guarantor has or may have under any agreement or law against IC One;
(ii) to enforce any remedy Guarantor has or may have against IC One;
and (iii) to participate in, or benefit from, any security for the
Indebtedness or this Guaranty now or hereafter held by Xxxxx Star. If
any bankruptcy proceeding is filed at any time by or against IC One,
and if the Indebtedness is not at that time fully paid or fully
secured, each Guarantor waives any claim such Guarantor may have
against IC One as a creditor or holder of a claim.
(d) Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of dishonor,
and notices of acceptance of this Guaranty.
7. GUARANTOR'S RELEASE OF XXXXX STAR. In exchange for the consideration
recited in this Guaranty, the Guarantor hereby waives, releases and forever
discharges Xxxxx Star and all of its parent, subsidiary and affiliated
corporations and entities, and their respective former and present agents,
employees, officers, directors, shareholders, and attorneys from any and all
rights, claims, demands, actions, causes of action, proceedings, liability,
damages, injuries, losses, fees, costs, expenses, and sums of money, of whatever
kind or nature, whether in law or in equity, which the Guarantor may now have.
Guarantor acknowledges that Xxxxx Star has in fact relied on this release as a
condition to entering into the Forbearance Agreement. Guarantor does not waive,
release or discharge any rights or claims that may arise after the date of this
Guaranty.
8. SUBORDINATION. All debts, obligations, and liabilities of IC One now
or hereafter held by Guarantor (collectively, "Guarantor's Claims") are hereby
subordinated to the Indebtedness. Upon Xxxxx Star's request, Guarantor will
collect, enforce, and receive any or all of Guarantor's Claims as trustee for
Xxxxx Star and pay the proceeds over to Xxxxx Star on account of the
Indebtedness without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
9. LIENS AND SETOFF. In addition to all liens and rights of setoff
given to Xxxxx Star by law, Xxxxx Star is hereby given a lien upon and a right
of setoff against all moneys, securities, and other property of Guarantor now or
hereafter in the constructive or actual possession of or on deposit with Xxxxx
Star, whether held in general or special accounts, for safekeeping or otherwise.
2
10. MISCELLANEOUS PROVISIONS.
(a) Change of Name or Form. The liability of Guarantor is not
excused or limited by a change in the name of IC One or a change in the
form of IC One by reason of merger, acquisition, or consolidation, or
by a change in the type or nature of business carried on by IC One, or
by any sale, lease, or transfer of any or all of the assets or stock of
IC One.
(b) Costs and Fees. Guarantor will pay to Xxxxx Star
reasonable attorneys' fees and all other costs and expenses which may
be incurred by Xxxxx Star in the enforcement of this Guaranty, whether
or not any court action is involved, including, without limitation,
legal expenses in connection with bankruptcy, appeals, and
post-judgment collection services.
(c) Successors. This Guaranty is binding on Guarantor, and its
legal representatives, assigns, and successors in interest the same as
if Guarantor had contracted for payment of the Indebtedness rather than
IC One.
(d) Construction. The obligations of this Guaranty shall be
liberally construed to effectuate the purpose of providing an absolute
and unconditional guaranty to Xxxxx Star or its order as to all
Indebtedness. This Guaranty is made in and shall be governed by the
laws of the State of Utah. Guarantor hereby submits to the jurisdiction
of any state or federal court in the State of Utah. Whenever possible,
each provision of this Guaranty shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision
of this Guaranty is prohibited by or invalid under such law, such
provision is ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of this
______ day of March, 2001.
SCHIMATIC CASH TRANSACTIONS
XXXXXXX.XXX, INC.
By
-----------------------------
Xxxxx Xxxxxx, Its Secretary
3
Exhibit E
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into effective as of March 26, 2001,
by and between Xxxxx Star Management, Inc. and Schimatic Cash Transactions
Xxxxxxx.xxx, Inc.
RECITALS
WHEREAS:
X. Xxxxx Star Management, Inc. ("Xxxxx Star" or "Secured Party"),
IC One, Inc.("IC One"), and Schimatic Cash Transactions
Xxxxxxx.xxx, Inc. ("SCTN" or "Debtor") have entered into, or
will enter into contemporaneously herewith, a Forbearance
Agreement, setting forth the terms upon which Xxxxx Star will
forbear from exercising its rights under that certain Judgment
that has been entered in favor of Xxxxx Star against IC One,
as referred to in the Forbearance Agreement.
B. Under the terms of the Forbearance Agreement, IC One is
obligated to make payments to satisfy the Judgment, as
described in the Forbearance Agreement.
C. In connection with the Forbearance Agreement, Xxxxx Star has
requested of IC One, and IC One has agreed, to convey to Xxxxx
Star a security interest in all IC One's personal property.
D. Pursuant to the Forbearance Agreement SCTN has executed, or
intends to execute, contemporaneously herewith, a Continuing
Unconditional Guaranty (hereafter the "Guaranty"). The total
obligation owed by SCTN to Xxxxx Star pursuant to the Guaranty
is referred to hereafter as the "Indebtedness".
-1-
X. Xxxxx Star has requested SCTN to secure the Indebtedness owed
pursuant to the Guaranty by conveying to Xxxxx Star a security
interest in all SCTN's personal property, as described below.
NOW, THEREFORE, Xxxxx Star and SCTN agree as follows:
1. To secure the payment of the Indebtedness, SCTN
hereby grants to Xxxxx Star a security interest in
all SCTN's goods (including but not limited to
equipment and furniture), inventory, accounts, and
chattel paper, whether now owned or hereafter
acquired, and all proceeds of the foregoing
(hereafter collectively the "Collateral"). The
Collateral includes, but is not necessarily limited
to all the property described on Exhibit 1 attached
hereto, that is marked with an asterisk (*).
2. SCTN represents that all the Collateral is currently
located at the business premises of SCTN, at 000 Xxxx
0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx.
3. SCTN warrants and represents that it shall not move
any of the Collateral from the 3900 South Property
without the prior written consent of Xxxxx Star.
4. The Debtor agrees to execute contemporaneously
herewith, in a form satisfactory to Secured Party, a
UCC-1 financing statement, to be filed by Secured
Party to provide public notice of the existence of
the security interest created by this Security
Agreement.
5. The Debtor shall be in default under this Security
Agreement upon the occurrence of any one or more of
the following events:
-2-
a. IC One shall fail to pay when due any
payment that is owed under the Forbearance
Agreement; or
b. The Debtor shall fail to comply in any
respect with any provision contained in this
Security Agreement.
6. Upon the occurrence of any event of default as
described in the preceding paragraph, the Secured
Party shall have the following rights:
a. Secured Party may declare the entire
Indebtedness secured by this Security
Agreement immediately due and payable; and
b. Secured Party shall have the rights and
remedies of a secured party under the Utah
Uniform Commercial Code, including the right
to sell, lease, or otherwise dispose of any
or all of the Collateral in any manner
allowed by the Utah Uniform Commercial Code.
7. The remedies of Secured Party are cumulative, and the
exercise or partial exercise of any one or more of
the remedies provided for herein shall not be
construed as a waiver of any of the other remedies of
Secured Party. No delay by Secured Party in
exercising any power or right shall operate as a
waiver of such right.
8. This Security Agreement and any issue arising under
or relating to it shall be construed in all respects
by the law of the State of Utah, without resort to
its choice of laws or other conflicts of laws
principles.
-3-
9. All covenants, agreements, representations and
warranties set forth in this Security Agreement shall
be binding upon, and shall inure to the benefit of
the parties hereto and their successors and assigns,
heirs, executors, administrators and personal or
legal representatives.
10. This Security Agreement contains the entire
understanding of the parties, and no other prior or
contemporaneous agreement, statement, promise or
conduct (whether oral or written) by any party hereto
shall have any legal force or effect or be used in
any way to vary, explain, modify or abrogate any of
the terms of this Security Agreement. All
negotiations relating to this Security Agreement are
hereby superseded.
11. Each of the parties hereto acknowledges that he, she,
or it (as the case may be) has obtained the advice of
experienced legal counsel of their own choosing in
connection with the negotiation and execution of this
Security Agreement and with respect to all matters
set forth in this Security Agreement or that
otherwise relate to this Security Agreement.
Furthermore, the parties acknowledge and agree that
they have mutually contributed to the drafting of
this Security Agreement. No provision of this
Security Agreement shall be construed against any
party on the ground that such party or its counsel
drafted the provision at issue or that the provision
at issue contains a covenant of such party.
12. There are no third-party beneficiaries of or to this
Security Agreement.
-4-
13. The parties each covenant and agree to execute such
documents as may reasonably be required to implement
and carry out the intent of this Security Agreement.
14. This Security Agreement may be executed in any number
of duplicate originals and by different parties
hereto in separate counterparts, each of which, when
so executed and delivered, shall be deemed an
original document, but all such duplicate originals
and counterparts shall together constitute but one
and the same agreement.
15. In the event any party fails to strictly enforce any
obligation of any other party to this agreement, such
failure to act shall not constitute or be deemed a
waiver of the party's right to demand strict
enforcement of that obligation thereafter.
DATED this ______ day of March, 2001.
XXXXX STAR MANAGEMENT, INC.
By:
---------------------------
X. X. Xxxx, Its President
DATED this _______ day of March, 2001.
SCHIMATIC CASH TRANSACTIONS
XXXXXXX.XXX, INC.
By____________________________
Xxxxx Xxxxxx, Its Secretary
-5-
Exhibit 1 to
Security Agreement
[Description of furniture and office equipment, with quantity and location]
-6-
Exhibit 2 to
Security Agreement
[Description of computer equipment and office furniture]
-7-
Exhibit F
[Description of furniture and office equipment, with quantiy and location]
Exhibit G
[Description of computer equipment and office furniture]
Exhibit H
EXHIBIT A
Loan No. 2429zv
STANDARD FORM
UNIFORM COMMERCIAL CODE - FINANCING STATEMENT - FORM UCC-1
------------------------------------------------------------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a filing officer for filing pursuant to |
the Uniform Commercial Code. |
-------------------------------------------------------------------------------------------------- |
1. Debtor(s) (Last Name First) and address(es) 2. Secured Party(ies) and address(es) |
|
IC One, Inc. Xxxxx Star Management, Inc. |
740 East 3900 South c/o NAI Utah Commercial Property Management |
Xxxx Xxxx Xxxx, XX 00000 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 |
Xxxx Xxxx Xxxx, XX 00000 |
Social Security or _____________ |
Emp. Fed. I.D. No. 00-0000000 |
------------- |
-------------------------------------------------------------------------------------------------- |
4. This Financing Statement covers the following |
types (or items) of property: 6. Gross Sales price |For Filing Officer (Date, Time,
of collateral |Number, and Filing Office)
All goods (including but not limited to equipment and furniture), |-------------------------------
inventory, accounts, and chattel paper, whether now owned or hereafter $____________________ |
acquired, and all proceeds of the foregoing, including but not limited |
to the equipment and furniture described on Exhibit 1 attached hereto. $______________ Sales |
|
The Secured party is _____ is not _____ a seller or or use tax paid to |5. Assignee(s) of Secured Party
Purchase money lender of the collateral State of | and Address(es)
------------------------------------------------------------------------------------------------------------------------------------
|
|
This statement is filed without the debtor's signature to perfect a security interest in collateral (Check if so) | Microfilm No.
___________________________________________________________________________________________________ |
|
already subject to a security interest in another jurisdiction when it was brought into this state. |
___________________________________________________________________________________________________ |
|
which is proceeds of the original collateral described above in which a security interest was perfected. |
________________________________________________________________________________________________________ |
|
------------------------------------------------------------------------------------------------------------------------------------
Check if covered: [ ]Proceeds of Collateral are also covered.
[ ] Products of Collateral are also covered. No. of additional Sheets presented:
____________________________________________________________________________________________________________________________________
3. Maturity date (if any): Approved by Division of Corporation and Commercial Code,
Department of Business Regulations.
------------------------------------------------------------------------------------------------------------------------------------
By:______________________________________________ By:_____________________________________________________
Signature of Debtor: Xxxxx Xxxxxx, Secretary Signature of Secured Party: X.X. Xxxx, President
------------------------------------------------------------------------------------------------------------------------------------
STANDARD FORM - FORM UCC-1
Exhibit 1 contains a list of furniture, office equipment and computer equipment
Exhibit I
EXHIBIT A
Loan No. 2429zv
STANDARD FORM
UNIFORM COMMERCIAL CODE - FINANCING STATEMENT - FORM UCC-1
------------------------------------------------------------------------------------------------------------------------------------
This FINANCING STATEMENT is presented to a filing officer for filing pursuant to |
the Uniform Commercial Code. |
-------------------------------------------------------------------------------------------------- |
1. Debtor(s) (Last Name First) and address(es) 2. Secured Party(ies) and address(es) |
|
Schimatic Cash Transactions Xxxxxxx.Xxx, Inc. Xxxxx Star Management, Inc. |
740 East 3900 South c/o NAI Utah Commercial Property Management |
Xxxx Xxxx Xxxx, XX 00000 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 |
Xxxx Xxxx Xxxx, XX 00000 |
Social Security or _____________ |
Emp. Fed. I.D. No. 00-0000000 |
------------- |
-------------------------------------------------------------------------------------------------- |
4. This Financing Statement covers the following |
types (or items) of property: 6. Gross Sales price |For Filing Officer (Date, Time,
of collateral |Number, and Filing Office)
All goods (including but not limited to equipment and furniture), |-------------------------------
inventory, accounts, and chattel paper, whether now owned or hereafter $____________________ |
acquired, and all proceeds of the foregoing, including but not limited |
to the equipment and furniture described on Exhibit 1 attached hereto. $______________ Sales |
|
The Secured party is _____ is not _____ a seller or or use tax paid to |5. Assignee(s) of Secured Party
Purchase money lender of the collateral State of | and Address(es)
------------------------------------------------------------------------------------------------------------------------------------
This statement is filed without the debtor's signature to perfect a security interest in collateral (Check if so) | Microfilm No.
___________________________________________________________________________________________________ |
|
already subject to a security interest in another jurisdiction when it was brought into this state. |
___________________________________________________________________________________________________ |
|
which is proceeds of the original collateral described above in which a security interest was perfected. |
________________________________________________________________________________________________________ |
|
------------------------------------------------------------------------------------------------------------------------------------
Check if covered: [ ]Proceeds of Collateral are also covered.
[ ] Products of Collateral are also covered. No. of additional Sheets presented:
____________________________________________________________________________________________________________________________________
3. Maturity date (if any): Approved by Division of Corporation and Commercial Code,
Department of Business Regulations.
------------------------------------------------------------------------------------------------------------------------------------
By:______________________________________________ By:_____________________________________________________
Signature of Debtor: Xxxxx Xxxxxx, Secretary Signature of Secured Party: X.X. Xxxx, President
------------------------------------------------------------------------------------------------------------------------------------
STANDARD FORM - FORM UCC-1
Exhibit 1 contains a list of furniture, office equipment and computer equipment
