EXHIBIT 10.1

 

 

 

LEASE SCHEDULE TERMINATION, LOAN AND GENERAL RELEASE AGREEMENT

 

 

This Lease Schedule Termination, Loan and General Release Agreement (this “Agreement”) is made as of this 31 day of July, 2015, by and between SignalShare, LLC, a limited liability company duly organized under the laws of The State of Delaware, having a principal place of business at 4700 Falls of Neuse Rd., Suite 340, Raleigh, NC, 27609 (the "Borrower"), and NFS Leasing, Inc., having an office at 900 Cummings Center-Suite 226-U, Beverly, Massachusetts 01915 (the "Lender")

 

WHEREAS, Lender and Borrower are parties to that certain Equipment Lease (defined below), pursuant to which there are numerous outstanding equipment lease schedules (the “Schedules”); and

 

WHEREAS, the parties desire to terminate some of the Schedules and convert the amounts owed under these Terminated Schedules (defined below) to a loan from Lender to Borrower;  and

 

WHEREAS, the parties are entering into this Agreement to provide for Borrower’s repayment to Lender of all amounts owed to Lender on account of the Terminated Schedules.

 

1.              Definitions .

 

1.1.           Defined Terms .  As used in this Agreement, the following terms shall have the meanings set forth below:

 

" Affiliate " means, as to Borrower, individually and collectively, as of this date and/or subsequent to this date, any other person(s), trust, limited liability company, limited liability partnership, corporation(s) or other entity or entities which directly or indirectly control, or is controlled by, or is under common control with the Borrower, and/or any member or relative of any member of the Borrower.

 

" Collateral " means the “Collateral” as defined in the Security Agreement, and any other collateral given by, or on behalf of, the Borrower in connection with this Agreement, whether pursuant to Section 3.1 or otherwise, whether as of this date or subsequent to this date.

 

“ Equipment Lease” - means the Master Equipment Lease Number: 2013-218 dated as of March 11, 2013 between Borrower as Lessee and Lender as Lessor.

 

“ Equipment ” – means all Equipment leased to Borrower by Lender under the Equipment Lease

 

" ERISA " – means the Employee Retirement Income Security Act of 1974, as amended.

 

" Event of Default " – means as defined in Section 8.1.

 

" GAAP " – means generally accepted accounting principles consistently applied.

 

“ Guarantors/Guarantor ” – means either collectively or individually, as the context so permits, each of Signal Point Holdings Corp., Christopher Barnes and Joseph Costanzo.

 

 

 

 

 

 

 

 

 

" Indebtedness " – means the total of all obligations of a Person, whether current or long-term, which in accordance with generally accepted accounting principles would be included as liabilities upon such Person's balance sheet at the date as of which Indebtedness is to be determined, and shall also include guaranties, endorsements (other than for collection in the ordinary course of business) or other arrangements whereby responsibility is assumed for the obligations of others, whether by agreement to purchase or otherwise acquire the obligations of others, including any agreement, contingent or otherwise, to furnish funds through the purchase of goods, supplies or services for the purpose of payment of the obligations of others.

 

" Lien " means, any mortgage, pledge, assignment, lien, charge, encumbrance or security interest of any kind whatsoever, or the interest of a vendor or lessor under a conditional sale, title retention or capital lease agreement.

 

" Loan(s) " means, all amounts owed to Lender on account of the Terminated Schedules, which the parties agree totals $4,946,212.91, and Borrower’s obligation to repay such amounts to the Lender under this Agreement or any of the other Loan Documents.

 

" Loan Documents " means, collectively, this Agreement, the Note, the Security Agreement (as amended by First Amendment to Security Agreement), the Personal Guaranty of Christopher Barnes, the Personal Guaranty of Joseph Costanzo, the Guaranty Agreement of Signal Point Holdings Corp., the Signal Point Holdings Corp. Security Agreement, and each and all documents executed and/or delivered to the Lender as of this date and hereafter in connection with the Loan, all as may be modified, amended, substituted and/or restated.

 

" Material Adverse Change " means any event, fact, circumstance, change in, or effect on, the business of the Borrower which, individually or in the aggregate, on a cumulative basis with any other circumstances, changes in, or effect on the Borrower or its respective assets which:

 

(a)           is, or could be reasonably expected to be, materially adverse to the business, operations, assets or liabilities (including, without limitation, contingent liabilities), employee relationships, customer or supplier relationships, results of operations or the condition (financial or otherwise) of the Borrower;

 

(b)           could be reasonably expected to materially adversely affect the ability of the Borrower to operate or conduct business in all material respects in the manner in which they are currently operated or conducted by the Borrower, or to perform its obligations under the Loan Documents; or

 

(c)           could be reasonably expected to have a material adverse effect or result in an adverse change in value, enforceability, collectability or the nature of its assets.

 

" Maturity Date " means December 19, 2016.

 

" Note " means that certain Term Note of even date herewith made by the Borrower in favor of the Lender in the original principal amount of $4,946,212.91 as such may be amended, extended and/or restated

 

" Obligations " means all loans, advances, debts, liabilities, obligations, agreements, undertakings, covenants and duties owing or to be performed or observed by the Borrower to or in favor of Lender in connection with the Loan, of every kind and description (whether or not evidenced by any note or other instrument; for the payment of money under any of the Loan Documents; arising out of this Agreement or any other agreement between the Lender and the Borrower evidencing the Loan, or any other instrument in favor of the Lender in connection with the Loan; arising out of or relating to transactions described herein), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including without limitation all interest, fees, charges, and amounts chargeable to the Borrower under this Agreement.

 

 

 

 

 

 

 

" PBGC " - means the Pension Benefit Guaranty Corporation.

 

" Permitted Liens " as to the Borrower means any of the liens identified in Section 7.1(f).

 

“ Permitted Indebtedness ” shall mean any Indebtedness incurred by Borrower on or after the date of this Agreement which has been approved by Lender in accordance with Section 7.1 (e) or Indebtedness incurred in the ordinary course of business or financing agreements or equipment leases and associated liens for equipment used in the business of the Borrower.

 

" Person " – means, an individual, corporation, limited liability company, partnership, limited liability partnership, joint venture, trust, or unincorporated organization or other business entity, or a government or any agency or political subdivision thereof.

 

" Security Agreement " means that certain Security Agreement dated July 3, 2013 given by the Borrower to the Lender to secure Borrower’s obligations under the Equipment Lease, granting to the Lender a first priority security interest in all assets of the Borrower, as such may be amended and/or restated.

 

“ Senior Lender” means, Brookville Special Purpose Fund, Veritas and Allied

 

" Subsidiary " or " Subsidiaries " means any partnership, corporation, association, trust, limited liability company or partnership or other business entity which the Borrower shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a majority of the outstanding voting interests.

 

“ Terminated Schedules ” means those Schedules to the Equipment Lease which are itemized n the attached “Exhibit A-Listing of Terminated Schedules”.

 

1.2.   Use of Defined Terms .  Any defined term used in the plural preceded by the definite article shall be taken to encompass all members of the relevant class.  Any defined term used in the singular preceded by "any" shall be taken to indicate any number of the members of the relevant class.  All references to Borrower in this Agreement shall be deemed to include, where the context permits, any Subsidiary of Borrower.  Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, the singular the plural and the part the whole, and “or” has the inclusive meaning represented by the phrase “and/or”.

 

2.          Loan Facility .

 

2.1            General Terms .   Pursuant to this Agreement, the Lender agrees to lend to the Borrower, as of the date hereof, a term loan in the original principal amount of Four Million Nine Hundred Forty-Six Thousand Two Hundred Twelve and 91/100 ($4,946,212.91) Dollars, to be evidenced by the Note of the Borrower.

 

2.2            Interest.   During the term of the Note, interest shall accrue and be due and payable as provided in the Note.

 

2.3.          Payments Due from Borrower Under Note and Schedules and Application of Payments .

 

2 .3.1 Weekly Payments to Lender .   Commencing retroactive to July 13, 2015, and on each successive Monday (or the next business day thereafter for any Monday which is a bank holiday) for seventy four (74) consecutive weeks, Borrower shall pay Lender, via wire transfer to Lender’s designated account, the weekly sum of $100,000.00 (the “Weekly Payment”).  Lender acknowledges its receipt of the Weekly Payment due on each of July 13, July 20 and July 27, 2015 and has reflected these payments on it books.

 

 

 

 

 

 

 

 

2.3.2   Application of Weekly Payments . Each Weekly Payment shall be applied by Lender as follows:

 

A.     Loan Payments :   The amount of $71,207.24 of each Weekly Payment shall be applied by Lender on account of the Loan in accordance with the principal and interest payments due under the Note.    The Lender acknowledges that the Senior Lenders must be paid in a timely Monthly fashion. In the event cash flows are not sufficient to pay the Senior Lenders, Lender acknowledges that the Borrower may not be able to pay the obligations hereunder. Notwithstanding the foregoing acknowledgment, Lender reserves it rights to proceed against Borrower, and to enforce all of its rights and remedies against Borrower and the Guarantors in the event of such non-payment, all as provided for in this Agreement and the Loan Documents.  

 

B.     Schedules :  The amount of $28,792.76 of each Weekly Payment shall be applied by Lender towards the total monthly amounts due from Borrower as “Rent” under the Equipment Lease on all then outstanding Schedules.  Borrower shall remain liable for payment to Lender of any additional amounts owed on a monthly basis on account of the Schedules after application of the Weekly Payments.  Lender shall duly account for and credit Borrower with respect to any excess payment received by Lender on account of the Schedules.

 

2.3.3      Maturity Date and Effect of Late Fees or Other Charges . On the Maturity Date, or on such earlier date as required under the terms of the Note or this Agreement, the Borrower shall pay to the Lender the entire then unpaid balance of principal and interest due under the Note.  Upon such payment, Borrower’s obligation to make the Weekly Payment shall immediately terminate, and Borrower shall thereafter make payments to Lender on account of the Schedules in accordance with the provisions of the Equipment Lease.  In the event Borrower’s failure to timely make any Weekly Payment results in any late fee, default interest rate, or other cost or expense chargeable to Borrower under the Note, then in such event, any subsequent Weekly Payments received by Lender shall first be applied to make Lender whole with respect to any such fees or charges, then to the principal and interest payment due under the Note, and the balance applied towards the amounts due under the Schedules.

 

2.4         Notations Reflecting Loan .  The Borrower hereby irrevocably authorizes the Lender to make or cause to be made on the books of the Lender, at or following the time of making each payment on account of the Equipment and of receiving any payment of interest or principal, an appropriate notation reflecting such transaction and the then aggregate unpaid interest and principal due from Borrower to Lender. The amount so noted, and other regular entries by the Lender on its books with respect to interest and other charges, shall constitute presumptive evidence as to the amount owed by the Borrower with respect to principal of the Loan and with respect to interest and other charges, absent manifest error.

 

2.5            Borrower's Designation .  The Borrower hereby designates Aaron Dobrinsky to act on behalf of the Borrower with respect to any correspondence and/or notices between the Borrower and the Lender under any of the Loan Documents.  Notices to the Borrower may be sent care of the Borrower, 4700 Falls of Neuse Rd., Suite 340, Raleigh, NC, 27609, or such other address as the Borrower may designate in writing delivered to the Lender in accordance with the terms of this Agreement.

 

 

 

 

 

 

 

3.            Security for Loan.

 

3.1.        The Obligations under the Loan shall be secured by the Security Agreement and the other Loan Documents, as applicable.

 

4.            Representations and Warranties .

 

4.1.           The Borrower represents and warrants to the Lender that it is a duly organized, validly existing limited liability company, in good standing under the laws of The State of Delaware, and is in good standing under the laws of each other jurisdiction in which its business is conducted or properties owned requiring such qualification. The Borrower further represents and warrants as to itself that: (a) it has full power to enter into and perform this Agreement, and the other Loan Documents to which it is a party and has taken all necessary action to authorize, or to cause, the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; (b) this Agreement, and the other Loan Documents to which it is a party constitute the legal, valid and binding obligations of the Borrower, enforceable in accordance with their respective terms; (c) the execution, delivery and performance of this Agreement, and the other Loan Documents will not violate any provision of any existing law or regulation applicable to it or its governing documents or of any order or decree of any court, arbitrator or governmental authority or of any contractual undertaking to which it is a party or by which it may be bound; (d) no consents, licenses, approvals or authorizations of, exemptions by or registrations or declarations with, any governmental authority are required with respect to this Agreement, or the other Loan Documents, which shall not have been obtained by the closing of this Loan; (e) the Borrower has filed all federal income and other material tax returns required to be filed by it, or has obtained extensions for such filings, and has paid all taxes due under this Agreement or under any assessment received by it, other than those set forth on Schedule 4.1 or those being contested in good faith by appropriate proceedings and where appropriate reserves have been established; (f) except as set forth on Schedule 4.1 attached hereto, there is no assessment, claim, action, suit or proceeding pending against, or to the Borrower's actual knowledge threatened in writing against or affecting the Borrower before any court, arbitrator or governmental authority in which there is a reasonable possibility of an adverse decision which could affect materially the business or financial condition of the Borrower or any of its ability to enter into and perform its obligations under this Agreement, or the other Loan Documents; (h) the Borrower’s balance sheets and the related statements of operations for the fiscal period then ended last provided to Lender, fairly present the financial condition and results of operations of the Borrower as of such date and for such period, and there has occurred no Material Adverse Change since such date; and ; and (i) Borrower has obtained the consent of the Senior Lender to its entering into this Agreement and the other Loan Documents to which Borrower is a party, as may be required under the applicable agreements with the Senior Lender.

 

4.2            Subsidiaries .  The Borrower does not have any Subsidiaries.

 

5.            Covenants of Borrower.

 

5.1.            Covenants . The Borrower covenants and agrees with the Lender as follows:

 

a.            Loan Payments .  The Borrower shall pay all amounts due under this Agreement at the times and places and in the manner provided for herein, and promptly pay when due all other amounts owing to the Lender with respect to fees and otherwise as required by the Loan Documents.

 

 

 

 

 

 

 

 

 

b.            Licenses etc .  The Borrower shall preserve its existence as it is as of the date of this Agreement, and all Licenses and franchises necessary or convenient for its business as currently operated; comply with all applicable laws and regulations; maintain all material property necessary or useful in its business as currently operated in good working order and repair reasonable wear and tear and insured casualty excepted; pay when due all taxes and all lawful claims which otherwise might result in liens on its property; and comply with all funding and other material requirements under the Employee Retirement Income Security Act of 1976, as amended

 

c.            Merger; Ownership.    The Borrower shall not merge or consolidate with any Person or sell any material assets, except in the ordinary course of business.  There shall occur no change in the controlling management of the Borrower, and there shall be no change of Borrower’s majority ownership permitted at any time the Loan remains outstanding

 

d.            Indebtedness .  On and after the date of this Agreement, the Borrower shall not incur or become liable for any new Indebtedness, other than the Permitted Indebtedness, without the Lender's prior written consent (which consent shall be within the Lender's sole discretion).

 

e.            Liens . The Borrower shall not create, permit to be created or suffer to exist any security interest, mortgage, lien or other encumbrance upon any material asset or property of the Borrower, except liens securing the indebtedness of the Loan and those liens set forth on the attached Schedule 5.1 (f) or as described in Section 5.1 (d), and as otherwise subsequently expressly permitted by the Lender in writing (collectively, the "Permitted Liens").

 

g.            Loans .  The Borrower shall not make any loans or advances to (or guaranty or become contingently liable for obligations of any Person, except (i) endorsement of negotiable instruments for deposit or collection in the ordinary course of business, (ii) customary advances for reimbursable employee business expenses in the ordinary course of business, and (iii) as related to Permitted Indebtedness.

 

h.            Investments . The Borrower shall not make any investments in securities or obligations of another person except deposits with or under the control of the Lender or financial institutions approved by the Lender, U.S. Treasury securities or money market mutual funds of nationally-recognized sponsors, and provided that Borrower executes and delivers to the Lender such documents as the Lender requires to maintain a properly perfected security interest in such assets.

 

i.            Event of Default . The Borrower shall immediately notify the Lender upon the Borrower's  actual knowledge of the occurrence of any Event of Default or any event that, with notice or lapse of time or both, would become such an event.

 

j.            Taxes .  Except as noted in Schedule 4.1, the Borrower will pay and discharge all taxes, assessments and governmental charges or levies imposed upon it, or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties or interest would attach thereto, and all lawful claims which, if unpaid, might become a Lien upon any property of the Borrower; provided that the Borrower shall not be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings which serve as a matter of law to stay the enforcement of any remedy of the taxing authority or claimant and as to which the Borrower shall have set aside on its books adequate reserves satisfactory to the Lender.

 

 

 

 

 

 

 

 

k.            Insurance .  The Borrower shall maintain insurance with responsible and reputable insurance companies or associations reasonably satisfactory to the Lender in such amounts and covering such risks as shall be reasonably satisfactory to the Lender from time to time consistent with common commercial lending practice for similar loans and collateral within the geographical area in which any of the Collateral is located, but in any event in amounts sufficient to prevent the Borrower from becoming a co-insurer.  The Borrower shall keep all inventory, equipment, furnishings and other tangible personal property owned by it and kept or used therein in connection with the business as currently operated fully insured against fire, lightning and extended coverage perils and against such other risks as the Lender may from time to time reasonably require consistent with common commercial lending practice for similar loans and collateral within the geographical area in which any of the Collateral is located, in an amount equal to the aggregate full insurable value thereof.  The Borrower shall in addition ensure compliance with the requirements of the Security Agreement with respect to insurance.

 

l.            Asset Sales .   Sales of assets by the Borrower shall only be permitted with the Lender's prior written consent, except for: (i) sales in the Borrower's ordinary course of business, and (ii) sales of equipment, furniture or other tangible personal property deemed obsolete or which is replaced by other equipment, furniture or tangible personal property (as is applicable) of equal or greater value.

 

m.            Transactions with Affiliates .  Transactions by the Borrower with shareholders, officers or Affiliates shall not be permitted except on an “arms-length” basis on terms no less favorable than those which might be obtained at the time from Persons who are not such a shareholder, officer or Affiliate. Notwithstanding any provision of this Agreement to the contrary, Borrower may make payments to Affiliates or conduct intercompany transfers for its allocated costs associated with corporate overhead (e.g. insurance, accounting, legal debt service and similar costs) and costs of services provided by Affiliates so long as such services are provided at market rates.

 

n.            Field Examinations.   At all times that any part of the Loan is outstanding, the Lender shall be entitled to conduct one (1) annual field audit of the Borrower at Borrower's sole reasonable cost, not to exceed $5,000, provided that prior to an Event of Default, the Lender shall give the Borrower not less than three (3) business days prior written notice. Upon an Event of Default after giving effect to any applicable grace or cure periods, and during the continuation of such Event of Default,  Lender shall have the right, at Borrower’s sole reasonable cost, to conduct such additional field audits as Lender deems warranted upon the giving of one (1) business day advance written notice to Borrower.   

 

o.            Inspection.    The Borrower shall permit the Lender and/or its designees to discuss the affairs, finances and accounts of the Borrower with its officers, representatives, its accountants upon prior written notice of not less than three (3) business days (except upon the occurrence of an Event of Default) to visit and inspect the Collateral and other property of the Borrower, and to examine and make copies of and take abstracts from the books and records of the Borrower.  If any of the Borrower's properties, books or records is in the possession of a third party, the Borrower shall promptly upon Lender’s request (but no later than two (2) business days following each such request, authorize that third party to permit the Lender or its agents to have access to perform inspections or audits and to respond to the Lender's requests for information concerning such properties, books and records.

 

 

 

 

 

 

 

 

 

p.            Other Information . The Borrower shall provide the Lender with such other information as the Lender may from time to time reasonably request related to the Borrower's financial condition, the Collateral or the operation of the Borrower's business as currently operated, provided disclosure of such information does not violate any terms of an agreement between Borrower and a third-party.

 

q.            Material Non-Public Information .   Lender hereby acknowledges that some of the information disclosed pursuant to the terms of this Agreement may be deemed material non-public information in accordance with the requirements of the Securities and Exchange Commission (the “SEC”).  Lender acknowledges that they shall be liable for any violations of the SEC Insider Trading laws and shall indemnify the Borrower, Roomlinx, Inc and the Corporate Guarantor and its principal officers to the fullest extent permitted by law for any claims, losses or damages arising from such violations.  The obligation to indemnify hereunder shall survive the termination of this Agreement.

 

6.             Events of Default; Remedies.

 

6.1            Events of Default .   The occurrence of any of the following events shall constitute an "Event of Default" under this Agreement.

 

a.           The Borrower shall fail to make any Weekly Payment due under this Agreement within three (3) business days of its due date, and fails to cure such nonpayment within five (5) business days of written notice thereof..

 

b.           The Borrower shall fail to make any other payment in respect of this Agreement or any of the other Loan Documents within ten days (10) of written notice thereof; or

 

c.           Any material representation or warranty of the Borrower contained herein or in any of the other Loan Documents shall at any time prove to have been incorrect in any material respect when made or any representation or warranty made by the Borrower in connection with the execution and delivery of this Agreement or any other instrument, document, certificate or statement executed and delivered in connection with any Loan shall at any time prove to have been incorrect in any material respect when made; or

 

d.           The Borrower shall default in the performance of any other term, covenant or agreement contained in this Agreement or other Loan Documents, which is not remedied within twenty (20) days after written notice thereof, or

 

e.           The Borrower shall default under the Equipment Lease after giving effect to any applicable cure periods; or

 

f.           Any default shall exist and remain unwaived or uncured with respect to any material Indebtedness of the Borrower or any such material Indebtedness shall not have been paid when due (but after passage of applicable grace and cure periods without remedy), whether by acceleration or otherwise, or shall have been declared to be due and payable prior to its stated maturity, or any event or circumstance shall occur which permits, or with the lapse of time or giving of notice or both would permit, the acceleration of the maturity of any such material Indebtedness by the holder or holders thereof; or

 

 

 

 

 

 

 

 

 

 

g.           The Borrower shall be dissolved, shall become insolvent or bankrupt or shall cease paying its debts as they mature or shall make an assignment for the benefit of creditors; or a trustee, receiver or liquidator shall be appointed for the Borrower or for a substantial part of the property of the Borrower; or bankruptcy, reorganization, arrangement, insolvency or similar proceedings shall be instituted by or against the Borrower under the laws of any jurisdiction ( provided that, if involuntary, such proceedings shall not be an Event of Default unless they are not stayed or dismissed within forty-five (45) days); or

 

h.           Any execution or similar process claiming an amount in excess of $100,000.00 shall be issued or levied against the Borrower or any of its property and such writ, attachment, execution or similar process shall not be paid, released, vacated or fully bonded within twenty (20) days after its issue or levy; or any writ of attachment or trustee process shall be served upon the Lender relating to goods, effects or credits of the Borrower in the possession of or maintained with the Lender; or

 

i.           The Borrower shall fail to meet its minimum funding requirements under ERISA with respect to any employee benefit plan (or other class of benefit which the PBGC has elected to insure) or any such plan shall be the subject of termination proceedings (whether voluntary or involuntary) and there shall result from such termination proceedings a liability of the Borrower to the PBGC which in the reasonable opinion of the Lender may have a material adverse effect upon the business, operations or financial condition of the Borrower; or

 

j.           The Borrower shall suffer any Material Adverse Change or shall suffer substantial loss, theft, taking, damage or destruction to or of any of its property, not covered by insurance; or

 

k.           There shall be entered against the Borrower any final judgment not covered by insurance in excess of $100,000.00; or

 

l.           The Borrower shall become liable (beyond all applicable appeals) under federal or state law for environmental remediation or other measures, the cost of compliance with which is not covered by insurance; or

 

m.      Entry of any court order against the Borrower which enjoins, restrains or in any way prevents the Borrower from conducting all or any material part of its business activities as currently conducted by the Borrower, or materially interferes with the ownership, use or occupation of any if its assets, which court order is not rescinded or dismissed within ten (10) days of its issuance; or

 

n.           The death of both individual guarantors (Joseph Costanzo and Christopher Barnes), or dissolution of the corporate guarantor (Signal Point Holdings Corp.).

 

For purposes of clauses (j), (k) and (l) above, a loss or liability shall not be deemed to be "not covered by insurance," notwithstanding that the insurer has not paid the claim, if a claim has been submitted in writing and the Borrower reasonably believes that it is covered by the relevant insurance, provided that any claim not paid or agreed to be covered by the insurer within one hundred twenty (120) days after it is submitted shall be deemed to be not covered by insurance.

 

 

 

 

 

 

 

 

 

Rights and Remedies on Default .  Upon the occurrence of any Event of Default and at any time thereafter, taking into account any applicable notice, grace or cure period and provided such Event of Default, in the case of payment obligations, is not cured by a Guarantor, in addition to any other rights and remedies available to the Lender under this Agreement or otherwise, the Lender may exercise any one or more of the following rights and remedies (all of which shall be cumulative):

 

a.           Declare the entire unpaid principal amount due Lender then outstanding, all interest accrued and unpaid thereon and all other amounts payable under this Agreement, and all other Indebtedness of the Borrower to the Lender due under or in connection with this Agreement or the Loan Documents, to be forthwith due and payable, whereupon the same shall become forthwith due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower.

 

b.           Enforce the provisions of this Agreement and/or the other Loan Documents by legal proceedings for the specific performance of any covenant or agreement contained herein or therein or for the enforcement of any other appropriate legal or equitable remedy, and the Lender may recover damages caused by any breach by the Borrower of the provisions of this Agreement or the other Loan Documents, including court costs, reasonable out-of-pocket attorneys' fees and other reasonable out-of-pocket costs and expenses incurred in the enforcement of the obligations of the Borrower under this Agreement.

 

c.           Exercise all rights and remedies under this Agreement and/or under the other Loan Documents and any other agreement with the Lender; and exercise all other rights and remedies which the Lender may have under applicable law.

 

d.           Exercise all rights and remedies provided for in the Equipment Lease with respect to any and all Schedules or Terminated Schedules (as if no termination of the Terminated Schedules occurred), or any combination thereof. Borrower hereby acknowledges and agrees that a default under this Agreement constitutes a default by Borrower as Lessee under the Equipment Lease, and shall be enforceable as such.

 

6.3.           Set-off .   In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default, the Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to the Borrower, all of which are hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held (directly or indirectly) or owing by the Lender to or for the credit or the account of the Borrower against and on account of the obligations and liabilities of the Borrower to the Lender under this Agreement or otherwise, irrespective of whether or not the Lender shall have made any demand under this Agreement and although said obligations, liabilities or claims, or any of them, may then be contingent or unmatured and without regard for the availability or adequacy of other collateral.  The Borrower also grants to the Lender a security interest with respect to all its deposits and all securities or other property in the possession or under the control of the Lender from time to time, and, upon the occurrence of any Event of Default, the Lender may exercise all rights and remedies of a secured party under the Uniform Commercial Code with respect thereto.

 

 

 

 

 

 

 

7.             Assignment.

 

This Agreement shall inure to the benefit of and be binding upon the parties' respective successors and assigns, provided that the Borrower may not assign any rights or obligations under this Agreement without the prior written consent of the Lender.  It is agreed that the Lender may grant to third parties participations in the Loan under this Agreement.

 

8.              Interpretation, Etc .

 

This Agreement and the other Loan Documents constitute the entire agreement of the parties with respect to the subject matter hereof and supersede any prior correspondence or agreements relating thereto.  The headings herein are for convenience of reference only and shall not affect the interpretation hereof.  No provision of this Agreement, or the other Loan Documents may be amended or waived except by a written instrument signed by the party or parties to be charged.  No failure or delay by the Lender in exercising any right, power or privilege under this Agreement or under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other right, power or privilege.  The rights and remedies herein and therein provided shall be cumulative and not exclusive of any rights or remedies provided by law.  If any provision hereof or thereof is prohibited or unenforceable in any jurisdiction, the same shall not affect the remaining provisions hereof and thereof nor affect the validity or enforceability of such provision in any other jurisdiction.  This Agreement shall remain in effect as long as there remains outstanding any sum under the Note or prior to demand for repayment by Lender or the maturity dates contained herein.  This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts and shall take effect as a sealed instrument. The Borrower irrevocably submits to the exclusive jurisdiction of any Massachusetts court or any federal court sitting within The Commonwealth of Massachusetts over any suit, action or proceeding arising out of or relating to this Agreement.  The Borrower irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. Notwithstanding the foregoing. Borrower agrees that Lender shall be entitled to protect and/or enforce its rights with respect to any Collateral by bringing an action in any State or Federal court in each jurisdiction in which any such Collateral is located.

 

9.              Waiver Of Jury Trial.

 

The Lender and Borrower agree that neither of them nor any assignee or successor shall (a) seek a jury trial in any lawsuit, proceeding, counterclaim or any other action based upon, or arising out of, this agreement, any related instruments, any collateral or the dealings or the relationship between them, or (b) seek to consolidate any such action with any other action in which a jury trial cannot be or has not been waived.  The provisions of this paragraph have been fully discussed by the Lender and the Borrower and these provisions shall be subject to no exceptions.  Neither the Lender nor the Borrower has agreed with or represented to the other that the provisions of this paragraph will not be fully enforced in all instances.

 

 

 

 

 

 

 

 

 

10.            Notices.

 

Any notice, request, demand or other communication required or permitted under this Agreement shall be given in writing by delivering the same in person to the intended addressee, under Section 2.5 above, by overnight courier service with guaranteed next day delivery or by certified United States Mail, postage prepaid sent to the Borrower at the applicable address set forth in Section 2.5 of this Agreement, and if to Lender, at 900 Cummings Center-Suite 226-U, Beverly, Massachusetts 01915, or to such different address as the Borrower or the Lender shall have designated by written notice to the other sent in accordance herewith.  Copies of all notices shall be sent simultaneously via electronic mail to the Lender at markb@nfsleasing.com and to the Borrower at adobrinsky@sigpt.com and legal@sigpt.com.   Such notices shall be deemed given, in the case of overnight or hand delivery, on the next business day or other business day specified for delivery,  or in the case of delivery by certified United States Mail, the earlier of three days after deposit therein or the date any such delivery is either accepted or refused.

 

11.            Costs and Expenses.

 

The Borrower agrees to pay on demand all reasonable and customary out-of-pocket costs and expenses (including, without limitation, the reasonable out-of-pocket fees and reasonable out-of-pocket expenses of legal counsel and independent public accountants) incurred by the Lender in connection with interpreting, administering, preserving, enforcing or exercising any rights or remedies under this Agreement, the Note and the other Loan Documents, all whether or not legal action is instituted.

 

12.            Counterparts.

 

This Agreement and any amendment hereof may be, executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute instrument.  In proving this Agreement it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. The counterpart signature pages signed by each party hereto are expressly agreed and acknowledged to be integrated parts of this Agreement.

 

13.            Release and Indemnification .

 

13.1.  The Borrower hereby unconditionally releases, remises and forever discharges the Lender and all past, present and future officers, directors, stockholders, agents, employees, attorneys, subsidiaries, affiliates, participants, successors and assigns of the Lender from any and all claims, demands and causes of action of any kind, whether known or unknown, arising out of or related to the Loan, this Agreement and/or the other Loan Documents including, without limitation, any so-called “lender liability” claims or defenses which they may have to the effect that the Lender or any of its affiliates, officers, directors, employees, agents or attorneys may have in any way acted or failed to act in such a manner as to cause injury to the Borrower or anyone claiming through the Borrower, from the beginning of time through the date of this Agreement.  Except for the Lender's gross negligence, willful misconduct or illegal action, the Borrower will indemnify and save the Lender harmless from all loss, cost, damage, liability or expenses (including, without limitation, court costs and reasonable out-of-pocket attorneys' fees) that the Lender may sustain or incur by reason of defending or protecting its liens and security interests in the collateral securing the Loan(s) or the priority thereof or in enforcing or collecting the Obligations, or in the prosecution or defense of any action or proceeding concerning any matter growing out of or in connection with the Loan, this Agreement, the other Loan Documents or any other documents, instruments or agreements now or hereafter executed in connection with the Loan, this Agreement, the other Loan Documents, the Obligations or the Collateral. This indemnity shall survive the repayment of the Obligations, and the termination of any agreement by the Lender to make the Loan to the Borrower.

 

 

 

 

 

 

 

 

13.2.  Lender, from the beginning of time through the date herein, hereby unconditionally releases, remises and forever discharges the Borrower, Steven Vella, Aaron Dobrinsky, Robert DePalo, Andrew Bressman, Christopher Broderick, Anna Setola, Peter Stefanou, RBSM LLP, Signal Point Holdings Corp. (“Signal Point”),  RoomLinx and its Affiliates, Subsidiaries (the “Borrower Releases”) and all past, present and future officers, directors, stockholders, agents, consultants, employees, attorneys, subsidiaries, affiliates, participants, successors and assigns of the Borrower Releases from any and all claims, including but not limited to claims of fraud, misrepresentation or similar acts, whether known or unknown from the beginning of time through the date of this Agreement demands and causes of action of any kind, whether known or unknown, arising out of or related to all Equipment Leases and with respect to the Equipment Leases Terminated Schedules, including, without limitation, any claims or defenses which they may have to the effect that the Borrower Releases may have in any way acted or failed to act in such a manner as to cause injury to Lender or any claims of fraud, misrepresentation or similar acts, whether known or unknown from the beginning of time through the date of this Agreement and forever discharges the Borrower Releases from any liability with respect to the Terminated Schedules, provided however, that the foregoing release shall not be effective with respect to Borrower, Christopher Barnes, Deborah Costanzo and Joseph Costanzo unless and until the Loan has been paid in full, nor with respect to Signal Point  until such time as all obligations of Borrower guaranteed by Signal Point relating to any outstanding Equipment Schedule and/or the Loan are satisfied in full.

 

 

 

 

 

 

 

 

 

 

 

 

SIGNATURE PAGE TO FOLLOW

 

 

 

 

 

 

EXECUTED as a sealed instrument this 31st day of July, 2015.

 

 

 

 

 

 

 

 

 

EXHIBIT 10.2

 

 

 

SECURITY AGREEMENT

 

Date:  July 31, 2015

 

In order to secure the due and punctual payment of all of the Obligations (as herein defined), Signal Point Holdings Corp, a Delaware corporation having its place of business located at 433 Hackensack Avenue, 6th Floor, Hackensack, New Jersey 07601 ("Debtor"), hereby grants to NFS Leasing, Inc., a Massachusetts Corporation ("Secured Party"), having an address of 900 Cummings Center, Suite 226-U, Beverly, MA 01915, a continuing security interest in the following item(s) of collateral:

 

SUBORDINATION:   Notwithstanding any provision of this Security Agreement to the contrary, the interest granted herein is subordinated to Brookville Special Purpose Fund, LLC, Veritas High Yield Fund, LLC, The Robert Depalo Special Opportunity Fund LLC and Allied International Fund, Inc, the senior creditors of the Debtor.

 

ACCOUNTS RECEIVABLE:   All of Debtor's now owned and hereafter acquired accounts, accounts receivable, contract rights, instruments, and chattel paper.

 

PERSONAL PROPERTY:   All of Debtor's now owned and hereafter acquired tangible and intangible personal property (including, but not limited to computer hardware and software, intellectual property, patents, inventions, equipment, furnishings and fixtures).

 

The foregoing security interest(s) is hereby granted together with a continuing security interest in the following additional items of collateral:

 

(a)           All money, instruments, documents of title, deposit accounts and other property of Debtor .

 

(b)           All replacements and substitutions for, and all proceeds (including insurance proceeds) and products of, any or all of the foregoing.

 

(c)           All of Debtor's books and records relating to any or all of the foregoing.

 

All of the foregoing items of collateral are hereinafter collectively referred to as the "Collateral".

 

"Obligations" shall mean:

 

(a)           all indebtedness and liabilities whatsoever of Debtor to Secured Party which in any manner relate to or arise from payments owed to Secured Party under a certain Corporate Guaranty Agreement dated as of January 21, 2015, whereby Debtor has guaranteed the payment and other obligations of SignalShare, LLC to Secured party under a certain Master Equipment Lease Number 2013-218 dated as of  March 11, 2013, whether direct, indirect, absolute or contingent, due or to become due, now existing or hereafter arising; and

 

 

 

 

 

 

 

 

 

(b)           all indebtedness and liabilities whatsoever of Debtor to Secured Party which in any manner relate to or arise from payments owed to Secured Party under a certain Corporate Guaranty Agreement of even date herewith, whereby Debtor is guaranteeing the payments and other obligations of SignalShare, LLC to Secured Party under that certain Lease Schedule Termination and Loan Agreement and the related Loan Documents described therein, all dated as of even date herewith, whether direct, indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

 

Section 1. Representations, Warranties And Covenants Of Debtor.   Debtor hereby represents, warrants and covenants as follows:

 

(a)           Debtor is or, to the extent that certain of the Collateral is to be acquired after the date hereof, will be, the owner of the Collateral free from any adverse lien, security interest or encumbrance, except as appears as a matter of public record as of the date hereof with respect to the security interest filings of Brookville Special Purpose Fund, LLC, Veritas High Yield Fund, LLC and The Robert Depalo Special Opportunity Fund LLC (collectively the “Permitted Liens”). Debtor will defend the Collateral against all other claims and demands of all persons at any time claiming any interest therein.

 

(b)           At the request of Secured Party, Debtor will join with Secured Party in executing one or more (i) financing statements pursuant to the Uniform Commercial Code, (ii) title certificate lien application forms, and (iii) other documents necessary or advisable to perfect the security interests granted hereby, all in form satisfactory to Secured Party, and Debtor will pay the cost of filing the same or filing or recording this Agreement in all public offices wherever filing or recording is deemed by Secured Party to be necessary or desirable.  A carbon, photographic, or other reproduction of this Agreement or a financing statement is sufficient as a financing statement.

 

(c)           Debtor will immediately notify Secured Party of any event causing a substantial loss or diminution in the value of all or any material part of the Collateral.

 

(d)           Debtor agrees not to increase the underlying financial obligations secured by the Permitted Liens except to the extent additional capital is received by Debtor in the form of new loan proceeds.

 

(e)           Unless otherwise specified, the chief executive office of Debtor, the location where Debtor maintains its books and records and the location of the Collateral is the address of Debtor set forth above.

 

(f)            Upon an Event of Default, Debtor shall permit Secured Party and its agents to inspect any or all of the Collateral at all reasonable times and shall promptly deliver to Secured Party and its agents such information with respect to the Collateral as Secured Party may reasonably request from time to time.  The Secured Party may in its own name or in the names of others, communicate with account debtors in order to verify with them, to Secured Party's satisfaction, the existence, amount and terms of any accounts.

 

 

 

 

 

 

 

 

(g)           Debtor will have and maintain insurance at all times with respect to the Collateral against risks of fire (including so-called extended coverage), business interruption and such other risks as Secured Party may require, containing such terms, in such form, for such periods and written by such companies as may be acceptable to Secured Party, such insurance to be payable to Secured Party and to provide for at least twenty (20) days' prior written cancellation notice to Secured Party. Debtor shall furnish Secured Party with certificates or other evidence satisfactory to Secured Party of compliance with the foregoing insurance provisions.

 

(h)           Neither the execution of this Agreement nor the granting of the security interest in the Collateral as provided for herein is prohibited by or violates the terms of any agreement, undertaking, order or decree to which Debtor or the Collateral is subject to or bound by.

 

(i)           No consent of any third party, including but not limited to the holders of the Permitted Liens, is required to enable Debtor to grant the security interest in the Collateral under this Agreement, or in the event any such consent is required, all such consents have been duly obtained by Debtor prior to its execution hereof.

 

(j)           The individual executing this Agreement on behalf of Debtor is duly authorized to do so without the need to obtain any additional authorization or consent.

 

Section 2. Events Of Default.   Debtor shall be in default under this Agreement upon the occurrence of any one of the following events (herein referred to as an "Event of Default"):

 

(a)           Any representation or warranty made by Debtor to Secured Party herein shall prove to be false or misleading in any material respect when made;

 

(b)           Default by Debtor in the due observance or performance of any covenant or agreement herein contained;

 

(c)           Default in the payment when due of any indebtedness of Debtor to Secured Party secured hereby;

 

(d)           The occurrence of any other default or Event of Default on the part of Debtor under any of the documents evidencing or securing the Obligations; or

 

(e)           Loss, theft, substantial damage or destruction of any of the Collateral which is not fully and adequately covered by insurance.

 

 

 

 

 

 

 

 

Section 3. Remedies Upon Event Of Default.   If any Event of Default occurs, Secured Party may declare all obligations secured hereby to be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived. Secured Party may exercise all the rights and remedies of a secured party under the Uniform Commercial Code. Secured Party may require Debtor to assemble the Collateral and make it available to Secured Party at a place designated by Secured Party. The requirements of reasonable notice shall be met if notice is mailed, postage prepaid, to Debtor at its address set forth above at least ten (10) days before the time of sale or disposition of the Collateral.  The Secured Party shall have the right to demand from the Debtor a list of all accounts assigned hereunder and to notify any and all account debtors to make payment thereof directly to Secured Party.  Secured Party shall also have the right to (i) open all mail addressed to Debtor; (ii) change the Post Office box or mailing address of Debtor; and (iii) use Debtor's stationery and billing forms or facsimiles thereof, for the purpose of collecting accounts and realizing upon the Collateral.  Debtor understands and agrees the Secured Party may exercise its rights hereunder without affording Debtor an opportunity for a preseizure hearing before Secured Party, through judicial process or otherwise, takes possession of the Collateral upon the occurrence of an Event of Default, and Debtor expressly waives its constitutional right, if any, to such prior hearing. Notwithstanding any provision of this Security Agreement to the contrary, Secured Party acknowledges and agrees that its rights under this Security Agreement are subordinate to those of the holders of the Permitted Liens, which are senior perfected lien holders.

 

Section 4. Expenses.   Debtor will pay to Secured Party on demand any and all expenses, including attorneys' fees, incurred or paid by Secured Party in protecting or enforcing any of its rights hereunder, including its right to take possession of the Collateral, store and dispose of the same or collect the proceeds thereof.

 

Section 5. Waivers, Non-Exclusive Remedies.   No failure or delay on the part of Secured Party in exercising any rights under this Security Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by Secured Party of any of such rights preclude any other or further exercise thereof or the exercise of any other rights with respect to the Collateral, and no waiver as to one Event of Default shall affect the rights of Secured Party as to any other or subsequent Event of Default.

 

Section 6. Changes In Writing.   This Agreement and any provision hereof may not be amended, waived or terminated except by a written instrument signed by Secured Party and Debtor.

 

Section 7. Governing Law.   This Agreement shall be construed in accordance with and governed by the laws of the jurisdiction where the Collateral is located.

 

Section 8. Successors And Assigns.   All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, personal representatives, successors and assigns of the parties hereto.

 

 

 

 

 

 

 

Section 9. Further Assurances.   Debtor will execute and deliver to Secured Party, upon Secured Party's request and at Debtor's sole cost and expense, any documents Secured Party deems necessary for the perfection of its security interests or preservation of its rights hereunder.

 

Section 10. General Authority.   Secured Party may, at its election, discharge taxes, liens or security interests or other encumbrances at any time levied or placed upon the Collateral, pay for insurance on the Collateral and pay for the maintenance and preservation of the Collateral. Debtor agrees to reimburse Secured Party on demand for any payment made, or any expense incurred by Secured Party pursuant to the foregoing authorization. Upon an Event of Default,  and if requested by Secured Party, Debtor will deliver to Secured Party a detailed aging of accounts receivable in form acceptable to Secured Party.

 

Section 11. Power Of Attorney.   Debtor hereby appoints Secured Party its true and lawful attorney with full power of substitution to execute any and all documents Secured Party deems necessary to perfect its security interests hereunder, to demand, collect, receive, receipt for, sue for, compound and give acquittance for, any and all amounts due and to become due on any accounts and to endorse the name of the Debtor on all commercial paper given in payment or part-payment thereof and in its discretion to file any claim or take any other action which Secured Party may deem necessary or appropriate to protect and preserve and realize upon the security interest of the Secured Party in any accounts or the proceeds thereof, to obtain, adjust, settle and cancel any insurance and endorse any drafts in payment of any loss, to take any actions permitted by Section 10 hereof and to do all other acts or things contemplated by this Agreement.

 

Section 12. Substitution of Security. At any time while this Agreement is in effect, Debtor shall have the right to post an irrevocable letter of credit in substitution for this Agreement in an amount equal to the then outstanding balance of the Obligations and containing such terms as are reasonably acceptable to Secured Party, and upon such posting Secured Party shall discharge all security interests with respect to the Collateral.

 

IN WITNESS WHEREOF, this Agreement is executed by Debtor and Secured Party under seal on the date set forth above.

 

 

 

 

 

EXHIBIT 10.4

 

 

The undersigned, as "Guarantor", in consideration of, and as inducement to, NFS Leasing Inc.’s (“NFS”) entering into that certain Lease Schedule Termination and Loan Agreement and the other Loan Documents described therein, all of even date herewith, between NFS as Lender and SignalShare, LLC (“SignalShare”) as Borrower (collectively the “Loan Documents”), and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agrees as follows:

1.            Financial Guaranty :  Guarantor hereby unconditionally guarantees payment to NFS of all sums due from SignalShare under the Loan Documents, including but not specifically limited to, all principal and interest payments, delinquency charges, expenses incurred by NFS to cure any default by SignalShare or to protect or preserve its rights in any collateral securing the Loan as defined in the Loan Documents,  costs, expenses, attorneys’ fees, liquidated damages and other amounts or damages which may be due or awarded to NFS upon the default of SignalShare as provided in the Loan Documents. By executing this Guaranty Agreement, Guarantor hereby acknowledges that Guarantor has reviewed the Loan Documents, has had sufficient opportunity to consult with legal counsel, and fully understands Guarantor's financial obligations and exposure under this Guaranty Agreement. Guarantor acknowledges that Guarantor owns a controlling interest in SignalShare and that it will benefit from the loan transaction evidenced by the Loan Documents.

2.            Payment by Guarantor :  Guarantor hereby agrees that in the event SignalShare fails to pay any amount due NFS under the Loan Documents within five (5) business days after the date such payment is due and after the applicable notice period under the Loan Documents has expired, Guarantor will pay any such amounts in full to NFS within five (5) business days of the date Guarantor receives a written notice of payment due from NFS.  NFS agrees that such payments by Guarantor shall cure the applicable default under the Loan Documents.  Guarantor agrees that all such notices shall be sent to Guarantor at the address, facsimile number or e-mail address listed below, or at such other address, facsimile number or e-mail address as Guarantor may from time to time provide to NFS in writing.  Any such notice may be mailed by overnight delivery or certified mail return receipt requested, postage pre-paid, and/or sent via facsimile and/or via e-mail. If sent by certified mail or overnight delivery, such notice shall be deemed received by Guarantor on the date of receipt or the date delivery was first attempted if such delivery was refused. If such notice is sent via facsimile or e-mail, it shall be deemed received by Guarantor at the time proof of successful transmission or receipt is documented  Guarantor’s failure to provide any change of its mailing address, facsimile number or e-mail address shall not constitute a defense of lack of notice.

3.            Nature of Guarantor's Liability :  Guarantor agrees that Guarantor's payment obligations under this Guaranty Agreement are an independent contractual undertaking on the part of Guarantor, and that Guarantor's liability to NFS shall be joint and several with SignalShare's obligations towards NFS under the Loan Agreements.  The obligations of Guarantor hereunder are a guaranty of payment and not of collection. Guarantor further agrees that NFS's remedies against Guarantor for breach of this Guaranty Agreement shall be separate and distinct from its remedies against SignalShare, and NFS may, at its sole option, proceed directly against Guarantor without first proceeding against SignalShare. Neither the failure of NFS in any particular instance to insist upon Guarantor's strict performance, nor the granting by NFS of any particular indulgence, forbearance or concession to either Guarantor or SignalShare, shall operate as a waiver on the part of NFS to thereafter insist upon Guarantor's strict performance of this Guaranty Agreement.  Guarantor agrees that, absent an express agreement in writing to the contrary signed by NFS, this Guaranty Agreement shall be irrevocable by Guarantor until such time as the SignalShare’s obligations under the Loan Documents have terminated and all sums due NFS thereunder have been paid in full.

4.            [INTENTIONALLY OMITTED]

5.            Due Authority and Binding Effect .  Guarantor represents and warrants to NFS that the individual who is executing this Guaranty on behalf of Guarantor is duly authorized to do so without the need to obtain any additional consent or authorization, and that once so executed, this Guaranty will constitute a binding and enforceable agreement in accordance with its terms, to which Guarantor is duly bound.

 

 

 

 

 

 

 

 

 

 

6.            Governing Law and Venue .  Guarantor acknowledges that transactions evidenced by the Loan Documents, the obligations of SignalShare thereunder, and the Guarantor’s obligations under this Guaranty Agreement, are primarily to be performed in the Commonwealth of Massachusetts. Guarantor agrees that the execution of this Guaranty Agreement and performance of the Guarantor's obligations hereunder shall be deemed to have a Commonwealth of Massachusetts situs. Guarantor agrees to be subject to the personal jurisdiction of the courts of the Commonwealth of Massachusetts or the Federal District Courts located in the Commonwealth of Massachusetts with respect to any action NFS or its successors or assigns, may commence hereunder.  Accordingly, the undersigned hereby specifically and irrevocably consents to the jurisdiction of the courts of the Commonwealth of Massachusetts with respect to all matters concerning this Guaranty Agreement or the enforcement thereof. Notwithstanding the foregoing, Guarantor agrees that NFS shall be entitled to protect and/or enforce its rights with respect to any collateral which is described in the Guarantor’s Security Agreement by bringing an action in any other State or Federal court having exclusive jurisdiction over any such collateral.

7.            Waiver Of Jury Trial .

Guarantor and NFS agree that neither of them, nor any assignee or successor, shall (a) seek a jury trial in any lawsuit, proceeding, counterclaim or any other action based upon, or arising out of, this Guaranty Agreement, any related instruments, any collateral or the dealings or the relationship between them, or (b) seek to consolidate any such action with any other action in which a jury trial cannot be or has not been waived.  The provisions of this paragraph have been fully discussed by the NFS and Guarantor and these provisions shall be subject to no exceptions.  Neither NFS nor Guarantor has agreed with or represented to the other that the provisions of this paragraph will not be fully enforced in all instances.

Executed as a document under seal on this 31 st   day of July, 2015.

Guarantor: Signal Point Holdings Corp.

 

 

 

By: /s/   Aaron Dobrinsky

Name:     Aaron Dobrinsky

Title:       Chief Executive Officer

 

 

FEIN:  __________________________

 

FOR NOTICES TO GUARANTOR

Principal Street Address: 433 Hackensack Avenue, 6th Floor, Hackensack, New Jersey 07601

E-mail Address:   adobrinsky@sigpt.com

 

 

 

 

 

EXHIBIT 10.5

 

 

 

FIRST AMENDMENT TO SECURITY AGREEMENT

 

Reference is made to that certain Security Agreement dated as of July 3, 2013 between SignalShare, LLC as Debtor and NFS Leasing, Inc as Secured Party. (the “Security Agreement”).

 

For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Debtor and Secured Party herby agree to the following amendment of the Security Agreement:

 

The definition of “Obligations” contained in the Security Agreement is hereby deleted in its entirety and replaced with the following definition:

 

"Obligations" shall mean:

 

(a)           all indebtedness and liabilities whatsoever of Debtor to Secured Party which in any manner relate to or arise from payments owed to Secured Party under a certain Master Equipment Lease Number 2013-218  dated as of  March 11, 2013 (“Master Lease”), whether direct, indirect, absolute or contingent, due or to become due, now existing or hereafter arising; and

 

(b)           all indebtedness and liabilities whatsoever of Debtor to Secured Party which in any manner relate to or arise from payments owed to Secured Party under a certain Lease Schedule Termination and Loan Agreement and the related Loan Documents described therein, all dated as of even date herewith, whether direct, indirect, absolute or contingent, due or to become due, now existing or hereafter arising.

 

Except to the extent modified by this First Amendment to Security Agreement, the Security Agreement is hereby ratified and affirmed in its entirety.

 

Witnessed our hands and seals and effective as of this 31st day of July, 2015.

 

	Debtor: SIGNALSHARE, LLC
________________________________________	By:  /s/   Aaron Dobrinsky
Witness	Name:   Aaron Dobrinsky
	Title:     Manager
	Secured Party:  NFS LEASING, INC.
________________________________________	By:   /s/    Clifford L. Rucker
Witness	Title:    President

 

 

 

 

 

 

 

EXHIBIT 10.6

 

 

 

NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.

 

Warrant No. 2015 - 2

 

COMMON STOCK PURCHASE WARRANT

 

To Purchase 1,111,111 Shares of Common Stock of

 

ROOMLINX, INC.

 

(Void after Expiration Date – August 4, 2020)

Issue Date: August 4, 2015

 

THIS COMMON STOCK PURCHASE WARRANT (this “ Warrant ”) CERTIFIES that, for value received, NFS Leasing, Inc. (the “ Holder ”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after August 4,   2015 (the “ Initial Exercise Date ”) and on or prior to 5:00 p.m. (New York time) on August 4,   2020 (the “ Termination Date ”) but not thereafter, to subscribe for and purchase from Roomlinx, Inc., a Nevada corporation (the “ Company ”), up to One Million One Hundred Eleven Thousand One Hundred Eleven (1,111,111) shares (the “ Warrant Shares ”) of Common Stock, par value $0.001 per share, of the Company (the “ Common Stock ”).  The purchase price per share of Common Stock (the “ Exercise Price ”) under this Warrant shall be $1.80 subject to adjustment hereunder.  This Warrant is being issued in consideration of the conversion of certain leases by and between the Company and the Holder into a Loan Agreement.

 

In addition to the terms defined elsewhere in this Warrant the following capitalized terms shall have the following meanings:

 

“ Business Day ” means any day other than a Saturday, Sunday or legal holiday in the State of New York.

 

“ Market Price ” means for any security as of any date, the last closing bid price or last closing trade price, respectively, for such security on the Trading Market, as reported by Bloomberg, or, if the Trading Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may be, then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York Time, as reported by Bloomberg, or, if the Trading Market is not the principal securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported by OTC Markets Group, Inc. (formerly the “Pink Sheets”)  If the Market Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Market Price of such security on such date shall be the fair market value as determined by the board of directors of the Company.  All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.

 

 

 

 

 

 

 

 

 

 

“ Person ” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or any other entity of any kind.

 

“ Registration Statement ” means a registration statement filed by the Company with the Securities and Exchange Commission (“ SEC ”) for a public offering and sale of securities of the Company (other than a registration statement on Form S-8 or Form S-4, or their successors, or any other form for a limited purpose, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another corporation).

 

“ Trading Day ” means (i) a day on which the Common Stock is traded or quoted on a Trading Market, or (ii) if the Common Stock is not traded or quoted on a Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported by the OTC Markets Group, Inc. (or any similar organization or agency succeeding to its functions of reporting price); provided , that in the event that the Common Stock is not traded or quoted as set forth in (i), and (ii) hereof, that Trading Day shall mean a Business Day.

 

“ Trading Market ” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NASDAQ Capital Market, the NYSE Euronext, NYSE Markets LLC, the NASDAQ Global Market, the NASDAQ Global Select Market, the OTC Bulletin Board or the OTC QB or OTC QX.

 

1.   Title to Warrant .  Prior to the Termination Date and subject to compliance with applicable laws and Section 7 of this Warrant, this Warrant and all rights hereunder are transferable, in whole or in part, at the office or agency of the Company by the Holder in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed.  The transferee shall sign an investment letter in form and substance reasonably satisfactory to the Company.

 

2.   Authorization of Shares .  The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of such purchase rights in accordance with the terms and conditions of this Warrant, including, without limitation, payment of the Exercise Price, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).

 

3.   Exercise of Warrant .

 

(a)           Exercise of the purchase rights represented by this Warrant may be made at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy of the Notice of Exercise Form annexed hereto (the “ Notice of Exercise Form ”), at the office of the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of such Holder appearing on the books of the Company); provided , however , the Holder shall also have surrendered the original of this Warrant to the Company and the Company shall have received  payment of the aggregate Exercise Price of the Warrant Shares thereby purchased by wire transfer or cashier’s check drawn on a United States bank.  Certificates for shares purchased hereunder shall be delivered to the Holder promptly following the latest to occur of delivery to the Company of the Notice of Exercise Form, surrender of this Warrant and payment of the aggregate Exercise Price as set forth above.  This Warrant shall be deemed to have been exercised and the Warrant Shares (to which the exercise relates) shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date of the latest to occur of (i) delivery to the Company of the Notice of Exercise Form, (ii) surrender of this Warrant and (iii) payment of the aggregate Exercise Price as set forth above and all taxes required to be paid by the Holder, if any, pursuant to Section 5 (“ Exercise Date ”).

 

(b)   If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.

4.   No Fractional Shares or Scrip .  No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant.  As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price.

 

 

 

 

 

 

 

 

 

5.   Charges, Taxes and Expenses .  Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided , however , that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.

 

6.   Closing of Books .  The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.

 

7.   Transfer, Division and Combination .

 

(a)   Subject to compliance with any applicable securities laws, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.  Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.

 

(b)   This Warrant may be divided or combined with other Warrants (if such other Warrants are upon the same terms, other than number of Warrant Shares, as this Warrant) upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney.  Subject to compliance with Section 7(a) , as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.

 

(c)   The Company shall prepare, issue and deliver at its own expense (other than transfer taxes) the new Warrant or Warrants under this Section 7 .

 

(d)   The Company agrees to maintain, at its aforesaid office, books for the registration and the registration of transfer of the Warrants.

 

(e)   The Holder acknowledges that it has been advised by the Company that this Warrant and the Warrant Shares issuable upon exercise hereof (collectively the “Securities” ) have not been registered under the Securities Act, that the Warrant is being issued, and the shares issuable upon exercise of the Warrant will be issued, on the basis of the statutory exemption provided by section 4(a)(2) of the Securities Act relating to transactions by an issuer not involving any public offering, and that the Company’s reliance upon this statutory exemption is based in part upon the representations made by the Holder contained herein. The Holder acknowledges that he has been informed by the Company of, or is otherwise familiar with, the nature of the limitations imposed by the Securities Act and the rules and regulations thereunder on the transfer of securities. In particular, the Holder agrees that no sale, assignment or transfer of the Securities shall be valid or effective, and the Company shall not be required to give any effect to any such sale, assignment or transfer, unless (i) the sale, assignment or transfer of the Securities is registered under the Securities Act, and the Company has no obligations or intention to so register the Securities except as may otherwise be provided herein, or (ii) the Securities are sold, assigned or transferred in accordance with all the requirements and limitations of Rule 144 under the Securities Act or such sale, assignment, or transfer is otherwise exempt from registration under the Securities Act.  The Holder represents and warrants that he has acquired this Warrant and will acquire the Securities for his own account for investment and not with a view to the sale or distribution thereof or the granting of any participation therein, and that he has no present intention of distributing or selling to others any of such interest or granting any participation therein. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be registered pursuant to an effective Registration Statement and under applicable state securities or blue sky laws, the Company may require, as a condition of allowing such transfer (i) that the Holder or transferee of this Warrant, as the case may be, furnish to the Company a written opinion of counsel reasonably acceptable to the Company (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that such transfer may be made without registration under the Securities Act and under applicable state securities or blue sky laws, (ii) that the holder or transferee execute and deliver to the Company an investment letter in form and substance acceptable to the Company and (iii) that the transferee be an “accredited investor” as defined in Rule 501 promulgated under the Securities Act or a qualified institutional buyer as defined in Rule 144A(a) under the Securities Act.

 

           (f)           The Holder acknowledges that the Warrant Shares shall bear the following legend:

 

 

 

 

 

 

 

 

 

8.   No Rights as Shareholder until Exercise .  This Warrant does not entitle the Holder to any voting rights or other rights as a shareholder of the Company prior to the exercise hereof.  Upon the exercise of this Warrant, the Warrant Shares so purchased shall be, and be deemed to be, issued to such Holder as the record owner of such shares as of the close of business on the Exercise Date with respect to such exercise.

 

9.   Loss, Theft, Destruction or Mutilation of Warrant .  The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon surrender and cancellation of such Warrant, if mutilated, the Company will make and deliver a new Warrant of like tenor and dated as of such cancellation, in lieu of such Warrant.

 

10.   Business Days .  If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

 

11.   Adjustments of Exercise Price and Number of Warrant Shares; Stock Splits, etc.   The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the happening of any of the following.  In case the Company shall (i) pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or (iv) issue any shares of its capital stock in a reclassification of the Common Stock, then the Exercise Price in effect at the time of the record date for such dividend or distribution or the effective date of such subdivision, combination or reclassification shall be proportionately adjusted. Any adjustment made herein that result in a decrease (or increase) in the Exercise Price shall also result in a proportional increase (or decrease) in the number of shares of Common Stock into which this Warrant is exercisable. Successive adjustments in the Exercise Price and number of Warrant Shares shall be made whenever any event specified above shall occur. An adjustment made pursuant to this paragraph shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.

 

12.   Reorganization, Reclassification, Merger, Consolidation or Disposition of Assets .  In case the Company shall reorganize its capital, reclassify its capital stock, consolidate or merge with or into another corporation (where the Company is not the surviving corporation or where there is a change in or distribution with respect to the Common Stock of the Company), or sell, transfer or otherwise dispose all or substantially all of its property, assets or business to another corporation and, pursuant to the terms of such reorganization, reclassification, merger, consolidation or disposition of assets, shares of common stock of the successor or acquiring corporation, or any cash, shares of stock or other securities or property of any nature whatsoever (including warrants or other subscription or purchase rights) in addition to or in lieu of common stock of the successor or acquiring corporation (“ Other Property ”), are to be received by or distributed to the holders of Common Stock of the Company, then the Holder shall have the right thereafter to receive, upon exercise of this Warrant, the number of shares of common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and Other Property receivable upon or as a result of such reorganization, reclassification, merger, consolidation or disposition of assets by a Holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event. In case of any such reorganization, reclassification, merger, consolidation or disposition of assets (“ Extraordinary Transaction ”), the successor or acquiring corporation (if other than the Company) shall expressly assume the due and punctual observance and performance of each and every covenant and condition of this Warrant to be performed and observed by the Company and all the obligations and liabilities hereunder, subject to such modifications as may be deemed appropriate (as determined in good faith by resolution of the Board of Directors of the Company) in order to provide for adjustments of Warrant Shares for which this Warrant is exercisable which shall be as nearly equivalent as practicable to the adjustments provided for in this Section 12 .  As soon as commercially practicable following the Extraordinary Transaction, the successor or acquiring corporation (if other than the Company), shall deliver to Holder a new warrant in repacement of this Warrant consistent with the provisions referenced in the immediately preceding sentence against receipt by such successor or acquiring corporation of the original of this Warrant.  For purposes of this Section 12 , “common stock of the successor or acquiring corporation” shall include stock of such corporation of any class which is not preferred as to dividends or assets over any other class of stock of such corporation and which is not subject to redemption and shall also include any evidences of indebtedness, shares of stock or other securities which are convertible into or exchangeable for any such stock, either immediately or upon the arrival of a specified date or the happening of a specified event and any warrants or other rights to subscribe for or purchase any such stock.  The foregoing provisions of this Section 12 shall similarly apply to successive reorganizations, reclassifications, mergers, consolidations or disposition of assets.

 

 

 

 

 

 

 

 

 

 

13.   Voluntary Adjustment by the Company .  The Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company.

 

14.   Notice of Adjustment .  Whenever the number of Warrant Shares or number or kind of securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is adjusted, as herein provided, the Company shall give prior written notice thereof to the Holder of at least 15 days prior to the date on which the Company closes its books or takes a record for determining the particular event, which notice shall state the number of Warrant Shares (and other securities or property) purchasable upon the exercise of this Warrant and the Exercise Price of such Warrant Shares (and other securities or property) after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.

 

15.   Notice of Corporate Action .  If at any time:

 

(a)           the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, or any right to subscribe for or purchase any evidences of its indebtedness, any shares of stock of any class or any other securities or property, or to receive any other right, or

 

(b)           there shall be any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company or any consolidation or merger of the Company with (other than a consolidation or merger in which the Company is the surviving corporation), or any sale, transfer or other disposition of all or substantially all the property, assets or business of the Company to, another corporation, or

 

 (c)           there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company;

 

then, in any one or more of such cases, the Company shall give to Holder (i) at least fifteen (15) days’ prior written notice of the date on which a record date shall be selected for such dividend, distribution or right or for determining rights to vote in respect of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, liquidation or winding up, and (ii) in the case of any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up, at least fifteen (15) days’ prior written notice of the date when the same shall take place.  Such notice in accordance with the foregoing clause also shall specify (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, the date on which the holders of Common Stock shall be entitled to any such dividend, distribution or right, and the amount and character thereof, and (ii) the date on which any such reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the time, if any such time is to be fixed, as of which the holders of Common Stock shall be entitled to exchange their Warrant Shares for securities or other property deliverable upon such disposition, dissolution, liquidation or winding up.  Each such written notice shall be sufficiently given if addressed to Holder at the last address of Holder appearing on the books of the Company and delivered in accordance with Section 17(d) .

 

16.   Authorized Shares .  The Company covenants that during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant (the “ Required Minimum ”).  If, on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum on such date, then the Board of Directors of the Company shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the number of shares of Common Stock that would result from the full exercise of the Warrant Shares at such time, as soon as possible and in any event not later than the 75th day after such date.  The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant.  The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed.

 

 

 

 

 

 

 

Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant.  Without limiting the generality of the foregoing, the Company will (a) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (b) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant.

 

Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

 

17.   Miscellaneous.

 

(a)   Governing Law . This Warrant shall be governed by and construed in accordance with the internal laws of the State of Nevada without regard to the conflicts of law principles thereof.  The parties hereto hereby irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under this Warrant, shall be brought solely in a federal or state court located in the State of New Jersey.  By its execution hereof, the parties hereby covenant and irrevocably submit to the in personam jurisdiction of the federal and state courts located in the State of New Jersey and agree that any process in any such action may be served upon any of them personally, or by certified mail or registered mail upon them or their agent, return receipt requested, with the same full force and effect as if personally served upon them in the State of New Jersey.  The parties hereto waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense or lack of in personam jurisdiction with respect thereto.

 

(b)   Restrictions .  The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.

 

(c)   Nonwaiver and Attorneys’ Fees .  No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice Holder’s rights, powers or remedies, notwithstanding the fact that all rights hereunder terminate on the Termination Date.  If any action, suit, arbitration or other proceeding for the enforcement of this Warrant is brought with respect to or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions hereof, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that proceeding, in addition to any other relief to which it or he may be entitled.

 

 

 

 

 

 

 

(d)   Notices . All notices that are required or may be given pursuant to this Warrant must be in writing and delivered personally, by a recognized courier service, by a recognized overnight delivery service, or by registered or certified mail, postage prepaid, to the parties at the following addresses (or to the attention of such other Person or such other address as any party may provide to the other parties by notice in accordance with this section):

 

If to the Holder:

 

NFS Leasing, Inc.

900 Cummings Center #309

Beverly, Massachusetts 01915

Attn:  _____________________

 

If to the Company:

 

Roomlinx, Inc.

433 Hackensack Avenue, 6 th Floor

Hackensack, New Jersey 07601

Facsimile: (201) 968-1886

 

With a copy to:

 

Davidoff Hutcher & Citron LLP

605 Third Avenue

New York, NY 10158

Attention: Elliot H. Lutzker, Esq.

Facsimile: (212) 286-1884

 

Any such notice or other communication will be deemed to have been given and received (whether actually received or not) on the day it is personally delivered or delivered by courier or overnight delivery service or, if mailed, when actually received.

 

(e)   Remedies .  Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant.  The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.

 

(f)   Successors and Assigns .  Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of Holder.  The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and shall be enforceable by any such Holder.

 

 

 

 

 

 

 

 

 

(g)   Amendment .  This Warrant may be modified or amended only with the written consent of the Company and the Holder.  Waiver of any provision of this Warrant shall be in writing.

 

(h)   Severability .  Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.

 

(i)   Headings .  The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

 

********************

 

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized.

 

Dated:  As of August 4, 2015

 

ROOMLINX, INC.

 

 

 

 

By: /s/   Aaron Dobrinsky                                                              

             Aaron Dobrinsky, Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

NOTICE OF EXERCISE

To:           Roomlinx, Inc.

 

(1)   The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.

 

(2)   Payment shall take the form of lawful money of the United States.

 

(3)   Please issue a certificate or certificates representing said Warrant Shares in the name of the undersigned or in such other name as is specified below:

_______________________________

 

The Warrant Shares shall be delivered to the following:

_______________________________

 

_______________________________

 

_______________________________

 

(4)   Accredited Investor .  The undersigned is an “accredited investor” as defined in Regulation D under the Securities Act of 1933, as amended.

 

[PURCHASER]

 

 

By: ______________________________

Name:

Title:

Dated:  ___________________________

 

 

 

 

 

 

ASSIGNMENT FORM

(To assign the foregoing Warrant, execute

this form and supply required information.

Do not use this form to exercise the warrant.)

 

FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to

 

________________________________________________________________________ whose address is

__________________________________________________________________________________________.

__________________________________________________________________________________________

 

Dated:  ______________, _______

 

 

 

NOTE:  The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatsoever, and must be guaranteed by a bank or trust company.  Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.