Lease Agreement EXHIBIT 10.14
Lease Number: 7221271
Vendor/Supplier of Equipment
Corporate Networking, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000 (000) 000-0000
Note: VENDOR IS NOT AN AGENT OR REPRESENTATIVE OF THE LESSOR, AND IS NOT
AUTHORIZED TO MODIFY ANY OF THE TERMS OF THIS LEASE
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Schedule of Payments
Term: Number of Payments: [ * ] @ [ * ] per month*
*Except as otherwise indicated: / / Quarterly / / Other
(Note: Applicable taxes and insurance may be added; see Paragraphs 10 and 12)
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EQUIPMENT DESCRIPTION, (includes serial numbers)
SEE EQUIPMENT SCHEDULE "A"
/ / Check here if separate equipment is listed
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PAYABLE AT SIGNING OF LEASE (check one)
/ / Security Deposit (see paragraphs 6 and 15) $______
/ / First and Last ONE Total Payment [ * ]
/ / Other: $_______________
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EQUIPMENT LOCATION (IF OTHER THAN BELOW)
(Attach additional schedule if locations differ for each item of equipment)
0000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
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[*] We are seeking confidential treatment of these terms,
which have been omitted. The confidential portion has been
filed separately with the Securities and Exchange Commission.
ACCEPTANCE OF LEASED EQUIPMENT
As Lessee, you acknowledge that the equipment covered by this Lease has been
completely and satisfactorily delivered, and after full inspection is accepted
for all purposes of the Lease. Your acceptance shall be deemed effective and
irrevocable forty-eight (48) hours after delivery of the Equipment if you do not
notify us of nonacceptance, or on the date you sign the Certificate of
Acknowledgment and Acceptance of Leased Equipment, whichever is earlier.
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Dear Lessee: We have written this Lease Agreement in plain language because we
want you to fully understand its items. Please read your copy of this Lease
carefully and feel free to ask us any questions you may have about it. We use
the words YOU and YOUR to mean the Lessee indicated below. The words WE, US, and
OUR refer to the Lessor indicated below.
1. LEASE AGREEMENT: You agree to lease from us and we agree to lease to
you, the equipment listed above or on any schedule to this Lease. You
unconditionally promise to pay us the sum of all of the rental payments
indicated above or on any schedule. The amount of each rental payment
shown above or on any schedule is based on our estimated total cost of
the equipment including, if applicable, installation costs. The rental
payment shall be raised or lowered, in a proportionate manner, if the
actual cost of the equipment is greater than or less than the estimate,
and you authorize us to adjust the rental payment by up to ten percent
(10%) if it is necessary. You authorize us to insert in this Lease any
serial numbers and other identification data about the equipment, as
well as any other omitted factual matters.
2. UCC-ARTICLE 2A: You agree that this Lease is a "Financial Lease" under
Article 2A of the Uniform Commercial Code ("UCC"). You acknowledge
that: (a) we did not select, manufacture or supply the equipment, but
at your request we have purchased the equipment for lease to you; and
(b) based on your own judgment, you have selected the vendor or
supplier of the equipment (indicated above), and you have selected the
particular equipment that you are leasing from us. You agree that you
have approved any purchase or supply contract between us and the vendor
before signing this Lease; or, if you have entered into a purchase
contract for the equipment, you agree to assign it to us effective when
we pay for the equipment. You may have rights under the supply or
purchase contracts, and you may contact the supplier for a description
of those rights or any warranties. To the extent permitted by
applicable law, you waive any and all rights and remedies conferred
upon you under UCC Sections 2A-303 and 2A-508 through 522.
3. NO WARRANTIES: We are leasing the equipment to you "AS IS". WE MAKE NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE
OR ORDINARY USE IN CONNECTION WITH THIS LEASE. YOU UNDERSTAND AND AGREE
THAT WE ARE INDEPENDENT FROM THE VENDOR OR SUPPLIER OF THE EQUIPMENT,
AND THAT NEITHER THE VENDOR NOR ANY OTHER PERSON IS OUR AGENT, NOR ARE
THEY AUTHORIZED TO WAIVE OR CHANGE ANY TERM OR CONDITION OF THIS LEASE.
YOU AGREE THAT NO REPRESENTATION, GUARANTEE OR
WARRANTY BY THE VENDOR OR OTHER PERSON IS BINDING ON US. So long as you
are not in default under any of the terms of this Lease, we transfer to
you any warranties made to us, as the owner of the equipment, by the
Vendor, manufacturer or supplier. YOU AGRE THAT ANY BREACH BY THE
VENDOR OR OTHER PERSON WILL NOT RELIEVE OR EXCUSE YOUR OBLIGATIONS TO
US. Regardless of cause, you will not assert any claim whatsoever
against us for loss of proceeds you expected to make or any other
direct, consequential, special or indirect damages. If you have entered
into a maintenance agreement for the equipment, and the cost of the
maintenance is included in your monthly payments, you acknowledge that
we are not responsible for any service, repairs, or maintenance of the
equipment, and that we are not a party to the maintenance agreement; if
you have a dispute regarding maintenance or service, you will
nevertheless continue to pay us all payments due under this Lease and
any schedules to this Lease.
4. NON-CANCELLABLE LEASE: THIS LEASE CANNOT BE CANCELED BY YOU FOR ANY
REASON.
ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THIS LEASE ARE
PRINTED ON THE REVERSE SIDE
ACCEPTED BY LESSOR : Middle States Corporation
By /s/ Xxxxx X. Xxxxx PRESIDENT
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Authorized Signature Title
XXXXX X. XXXXX
8/13/97
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Date
Mailing Address: X.X. Xxx 000
Xxxxx 000
Xxxxxxxxxx, XX 00000
ACCEPTED BY LESSEE:
YOU TOOLS CORPORATION
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Full Legal Name Federal Tax ID # or Social Security #
000 XXXXXX XXXX. 000-000-0000
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BILLING XXXXXXX XXXXX # XXX #
XXXXXXXXX, XX 00000
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CITY COUNTY STATE ZIP
THE UNDERSIGNED HEREBY AGREES TO ALL OF THE TERMS AND CONDITIONS AS SET FORTH ON
BOTH SIDES OF THIS LEASE AGREEMENT (AND ANY SCHEDULE TO THIS LEASE AND CERTIFIES
THAT THE EQUIPMENT SHALL BE USED FOR BUSINESS PURPOSES ONLY.
By /s/ Xxxxx Xxx Xxxxx 7/28/97
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AUTHORIZED SIGNATURE DATE
XXXXX XXX XXXXX CEO
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PRINT NAME OF SIGNER TITLE
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PERSONAL GUARANTY
I hereby acknowledge that I am receiving a benefit from this lease, and
I unconditionally guarantee the prompt payment in full of all obligations of the
Lessee under this Lease. I further acknowledge that this lease may be amended
from time by execution of lease schedules and that by signing below I represent
and acknowledge that a "continuing guaranty" is being given, which shall be in
full force and effect and apply to all such future schedules. This guaranty
shall remain and continue in full force and effect as to any renewal,
modification or extension of the lease, and shall further apply to any
additional leases entered into between the lessor and the lessee from the date
of this guaranty forward, whether or not I have received notice of or consented
to such renewal, modification extension or additional leases. I understand that
the lessor in entering into such renewals, modifications, extensions or
additional lease transactions, shall be relying upon my guarantee herein. I also
agree that you, the lessor may make other arrangements with the lessee, such as
releasing or compromising the lessee's obligations and I will still be
responsible for those payments and other obligations. You do not have to notify
me if the Lessee fails to meet all of its obligations under the lease. If the
lessee fails to meet all of its obligations, I will immediately pay in
accordance with the default provisions of the Lease all sums due under the
original terms of the Lease, and I will perform all other obligations of the
Lessee under the Lease, and I agree that you do not have to proceed first
against the Lessee or exhaust other collateral before I am required to satisfy
my obligations under this guaranty. I will reimburse you for all the expenses
you incur in enforcing any of your rights against the Lessee or me, including
attorney's fees.
If this is a corporate or partnership guaranty, it is authorized by the
Board of Directors of the guaranteeing corporation, or by the partnership
agreement. THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MINNESOTA. I AGREE AND CONSENT TO THE JURISDSICTION OF THE FEDERAL AND STATE
COURTS LOCATED IN HENNEPIN COUNTY, MINNESOTA, FOR THE DETERMINATION OF DISPUTES
BETWEEN US. I agree and consent that you may serve me by registered or certified
mail, which will be sufficient to obtain jurisdiction. No payment by me under
this guaranty shall entitle me, by subrogation or otherwise, to any payment from
the Lessee or out of the property or other assets of the Lease. I WAIVE TRIAL BY
JURY IN ANY ACTION BETWEEN US.
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WITNESS SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN INDIVIDUAL (No titles) DATED
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WITNESS SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN INDIVIDUAL (No titles) DATED
5. DELIVERY OF EQUIPMENT: You request that we arrange delivery to you at
your expense. If the equipment has not been delivered, installed, and
accepted by you within forty-five (45) days from the date that we
ordered the equipment, we may on ten (10) days written notice to you
terminate
6. TERM OF LEASE, ADMINISTRATIVE FEE: The Lease term will start on the
date that any equipment is delivered to you or your agent ("the
Commencement Date") and will continue until you have met all of your
obligations under the Lease. Advance rentals are not refundable if the
Lease does not begin for any reason. The payments of rent are payable
periodically in advance as stated above or on any schedule to this
Lease. The first payment is due on the Commencement Date. You will be
notified in writing if we change your first payment date, and we may
charge you interim rent for any adjustment period. Thereafter, your
payments will be due on the same day of each month (or other period
indicated on the reverse side). All payments will be made to us at our
address on this Lease, or at the address which we designate in writing.
YOUR OBLIGATION TO PAY RENTALS TO US IS UNCONDITI9NAL AND IS NOT
SUBJECT TO ANY REDUCDTION, SET-OFF, DEFENSE, OR COUNTERCLAIM FOR ANY
REASON WHATSOEVER. If you paid a security deposit to us, it will be
held by us to secure your performance under this Lease, and will be
applied or returned pursuant to paragraph 15. On the Commencement Date
of this Lease, you shall pay to us a one-time administrative fee, not
to exceed $250.
7. ASSIGNMENT. You may not sell, transfer, assign or sublease the
equipment without our prior written approval. We may sell, assign or
transfer this Lease and ownership of the equipment without notifying
you; and you agree that if we do, the new lessor will have the same
rights and benefits that we now have, and will not have to perform any
of our obligations. You agree that the rights of the new lessor will
not subject to any claims, defenses or setoffs that may have against
us. However, any such assignment, sale, or transfer of this Lease or
the equipment will not relieve us of our obligations to you under this
Lease.
8. OWNERSHIP, RIGHTS, AND QUIET ENJOYMENT: Except with regard to any
computer software which may be covered by this Lease, you agree that we
are the owner of and have title to the equipment. If the Equipment
includes computer software, with respect to that software, you
acknowledge and agree that (a) we do not have, have not had, nor will
in the future have any title to or ownership in the software; and (b)
you have executed or will execute a separate Software License Agreement
with the Licensor of the software, and we are not a party to and shall
have no responsibilities whatsoever in regards to that Software License
Agreement. You agreed, at your expense, to protect and defend our title
or other rights to the equipment. Further, you agree that you will at
all times keep the equipment free from any legal process or lien
whatsoever, and you shall give us immediate notice if any legal process
or lien is asserted or made against the equipment. You shall have the
right to quiet use and enjoyment of the equipment for the term of this
Lease, provided you are not in default.
9. CARE, USE AND LOCATION; LOSS OF EQUIPMENT: You are responsible for
installing and keeping the equipment in good working order and repair.
You will keep and use the equipment only at your address shown on the
reverse side, or on any attached schedule, and you will only use it for
business or commercial purpose and in compliance with all applicable
laws. You will not make any alterations to the equipment without our
prior written consent, nor will you permanently attach the equipment to
your real estate. At the end of the Lease term, you will return the
equipment to us at your expense. You are responsible for protecting the
equipment from damage, except for ordinary wear and tear, and from any
other kind of loss while you have the equipment or while it is being
delivered to you. In the event the equipment is lost or damaged, so
long as you are not in default under this Lease, then you shall have
the option to: (a) repair or replace the equipment, or (b) pay to us
both the unpaid balance of the remaining rent under the Lease and our
residual interest in the equipment, present valued using a discount rte
of six (6%) percent per year (or other rate required by law).
10. TAXES AND FEES: You agree to pay when due all taxes, fines and
penalties relating to this Lease. You also agree that we may estimate
the yearly personal property taxes that will be due for the equipment,
and you agree to pay us the estimated taxes when we request payment. At
our election, we may xxxx you and you must pay us a monthly personal
property tax fee of up to three hundred and thirteen thousands of one
percent (0.313%) of the original equipment cost to reimburse us for the
taxes we are paying and for our costs for preparing, reviewing and
filing the returns. If we pay any taxes, fines or penalties for us, you
agree to reimburse us on demand, and your payment will be based on the
full amount of such taxes, without regard to any discounts we may be
obtain due to early payment or otherwise. You also agree that we have
the right to sign your name to any document for the purpose of such
filing, so long as the filing does not interfere with your right to use
the equipment.
11. INDEMNITY. We are not responsible for any injuries or losses to you or
any other person caused by the installation or use of the equipment.
You agree to reimburse us for and to defend us against any claims for
such losses or injuries, including those arising out of negligence,
tort or strict liability claims. This indemnity shall continue even
after the term of this Lease has expired.
12. INSURANCE: You agree that we have the right (but not the obligation) to
place, at your expense, property insurance against loss, theft, damage
or destruction of the equipment for up to the full replacement value,
unless you provide us with written evidence of your own insurance
coverage which is satisfactory to us and which identifies us as the
loss payee. You also agree to provide and maintain public liability
insurance naming us as an additional insured. If we place insurance for
you, you agree to pay the expense for that insurance in equal
installments allocated to each rental payment (plus interest on such
amount at 1.5% per month, or the highest rate permitted by law); the
expenses shall include the full premium for the insurance and service
fees which we or our designee customarily charge for placing insurance.
If any insurance proceeds are paid, you shall apply the insurance
proceeds toward your total obligations under this lease; or, if you are
not in default under this Lease or any other obligation to us, and we
otherwise consent in writing, you shall have the option to use the
insurance proceeds to repair or replace the equipment. If we place
insurance for you, you shall cooperate with our insurance agent
in connection with the placement and the processing of any claims.
Nothing in this Lease shall create any insurance relationship of any
type whatsoever between us and any other person or party. You agree
that we are not required to secure or maintain in force any insurance,
in any amounts or upon any specific terms and conditions. We reserve
the right to terminate any insurance coverage which we may arrange, and
we may allow any such insurance coverage to lapse without having any
liability to you. You hereby appoint us as your attorney-in-fact to
make claims for, receive payment off, and execute and endorse all
documents, checks, or drafts for loss or damage under any insurance
policies.
13. DEFAULT AND REMEDIES: If you do not pay rent when due, or it you break
any your promises under this Lease or under any other agreement with
us, or you become insolvent, assign your assets for the benefit of your
creditors, or enter (voluntarily or involuntarily) into bankruptcy
proceeding, you will be in default. If your default is caused by your
failure to make any payment when due, we can require that you return
the equipment to us and pay to us the remaining balance of all the
rental payments due under this ease, present valued using a six percent
(6%) per year discount rate. If you fail to return the equipment to us,
in addition we can also require you pay to us our residual interest in
the equipment present valued as noted above. You also agree to pay us
interest on all sums due us from the date of default until paid at the
rate of one and half (1-1/2%) percent per month, but only to the extent
permitted by law. If your default is caused by your breaking any of
your other promises under this Lease, we shall be entitled to recover
from you all damages caused by that default. We can also use any of the
remedies available to us under the Uniform Commercial Code or any other
law. If we refer this Lease to an attorney for enforcement or
collection, you agree to pay our reasonable attorney's fees of at least
20% of the remaining balance of all the rental payments, plus our
actual costs. If we have to take possession of the equipment, you agree
to pay the cost of repossession, storing, shipping, repairing and
selling the equipment for a price that exceed the sum of (a) our cost
of repossession and sale of the equipment and (b) the residual value of
the equipment, present valued as calculated above, then we shall give
you a credit for the amount of such excess. You agree that we do not
have to notify you that we are selling the equipment.
14. OTHER RIGHTS: You agree that any delay or failure to enforce our rights
under the Lease (or under any schedule(s) to this Lease or any other
agreements) shall not prevent us from enforcing any rights at a later
time. Both parties intend this Lease to be a valid and legal document,
and agree that if any part is determined to be unenforceable, all other
parts will remain in full force and effect. If this document is found
not to be a Lease, then you grant us a security interest in the
equipment. You also give us the right to immediately file, at your
expense, any Uniform Commercial Code ("UCC") financing statements or
related filings, as well as the right to sign your name to any such
filings that we make.
15. REDELIVERY OF EQUIPMENT; RENEWAL: You shall provide us with written
notice, by certified mail, sent not less than 90 days nor more than 150
days prior to the expiration of the Lease term, of your intention
either to exercise any option to purchase the equipment (if we grant
you such an option) or to return the equipment to us at the end of the
Lease term. For this notice to be effective, you must not be in default
of any of
your obligations to us. If you elect to return the equipment to us at
the expiration of the original or any renewal term of the Lease, you
shall disconnect, properly package for shipping, and return the
equipment to us, insured and freight prepaid by you, in good repair,
condition and working order to a location designated by us. Upon your
purchase or return of the equipment, we may charge you a title transfer
or lease termination fee of up to $150.00. If we have not received
written notice from you of your intention to purchase or return the
equipment, this Lease will automatically renew for succeeding one-year
periods, commencing at the expiration of the original Lease term. If
this Lease is renewed, the advance payment of the last month's lease
payment (as set forth on the reverse side) shall apply to the last
month of the renewal period, and shall not apply to the last month of
the initial term. Any security deposit held by us shall continue to
secure your performance for the renewal period. If you specifically
request in writing, and provided you have fulfilled all of your
obligations to us (including, if you elect, the return of the equipment
in good repair, condition and working order), we will refund your
security deposit to you without interest within 90 days after the end
of the original or renewed lease term (or as otherwise required by
applicable law), or at your direction we may apply the security deposit
toward your purchase of the equipment (if we grant you a purchase
option).
16. LATE CHARGE: If any part of a payment is not made by you when due, you
agree to pay us a late charge of ten (10%) percent of each such late
payment to cover our additional internal collection overhead (to the
extent permitted by law). You agree to pay us the late charge not later
than one month following the date that the original payment was due.
17. ENTIRE AGREEMENT; CHANGES: This Lease contains the entire agreement
between you and us, and it may not be altered, amended, modified,
terminated or otherwise changed except in writing and signed both by
you and us. A limiting endorsement on a check or other form of payment
will not be effective to modify your obligations or any of the other
terms and conditions of this Lease, and we may apply any payments
received without being bound by such limiting endorsements.
18. COMPLIANCE; NOTICES: In the event you fail to comply with any part of
this Lease, we can, but we do not have to, take any action necessary to
effect your compliance upon ten (10) days prior written notice to you.
If we are required to pay any amount to obtain your compliance, the
amount we pay plus all of our expenses in causing your compliance,
shall become additional rend and shall be paid by you at the time of
the next due rental payment. If any notices are required under this
Lease, they shall be sufficient if given personally or mailed to the
address set forth in this Lease by certified or registered mail,
postage prepaid. This Lease is for the benefit of and is binding upon
you and your personal representatives, successors and assigns.
19. CHOICE OF LAW; JURISDICTION: YOU AND WE AGREE THAT THIS LEASE SHALL BE
BINDING WHEN ACCEPTED IN WRITING BY US AT OUR OFFICES, AND SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA. YOU AND WE EACH CONSENT
TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN HENNEPIN
COUNTY,
MINNESOTA, FOR THE DETERMINATION OF ALL DISPUTES ARISING UNDER THIS
LEASE. However, you agree that we will have the right to commence any
action in any Court having the proper jurisdiction for that action. You
agree and consent that we may serve you by registered or certified
mail, which shall be sufficient to obtain jurisdiction. YOU AGREE TO
WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN US.
20. REPRESENTATIONS AND COVENANTS OF LESSEE: You represent that all
financial and other information furnished to us was, at the time of
delivery, true and correct. During the term of the Lease, you shall
provide us with such interim or annual financial statements as we
request.
ADDENDUM TO LEASE AGREEMENT NO. _________
BETWEEN MIDDLE STATES CAPITAL CORPORATION AS LESSOR, AND
YOU TOOLS CORPORATION, LESSEE, DATED 7/28/97
Lessee shall have the option to purchase all (but not less than all) of the
equipment described in the Lease upon the expiration of the initial lease term
for its fair market -value plus applicable sales tax (and any other tax
applicable to such sale) provided that Lessee has performed all terms and
conditions of said Lease at the time. The option contained herein replaces and
supersedes all prior purchase options respecting the equipment subject to the
Lease.
To exercise this option, Lessee must give Lessor notice of such exercise at
lease sixty (60) days prior to the end of the lease term. Such notice shall be
irrevocable. If the Lessee and Lessor do not agree on such fair market value
within thirty (30) days of the end of the lease term, Lessor may engage an
independent appraiser to determine such fair market value. The appraiser shall
assume that the equipment was maintained as required by the Lease and the
appraisers determination shall be conclusive. Lessee will reimburse Lessor for
the appraisers fees.
Upon receipt by the Lessor of the full purchase price, Lessor will furnish to
Lessee a xxxx of sale warranting title to the equipment excepting any impairment
thereof by reason of any acts by the Lessee or those making claim against the
Lessee. The xxxx of sale will provide that the purchase shall be "AS IS, WHERE
IS, WITHOUT FURTHER WARRANTEES, EXPRESS OR IMPLIED."
Lessor: Lessee:
MIDDLE STATES CAPITAL CORP. YOU TOOLS CORPORATION
By: By /s/ Xxxxx Xxx Xxxxx
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XXXXX X.XXXXX XXXXX XXX XXXXX
Title: PRESIDENT Title: CEO
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Date: Date: 7/28/97
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EQUIPMENT SCHEDULE "A"
LEASE # 7221271
This Equipment Schedule "A" is to be attached to and become a part of that
Schedule of Leased Equipment dated 7/28/97 , 19___________- by and between the
undersigned and MIDDLE STATES CAPITAL CORPORATION, RT 202 & HILLSIDE AVENUE,
BEDMINSTER, NJ 107921 (Lessor)
QTY DESCRIPTION MODEL NO. SERIAL NO.
VENDOR: CORPORATE NETWORKING INC. 610-584-0196
0000 XXXXXXXX XXXX
XXXXXXXX, XX 00000
1 NETWORK GENERAL FAST ETHERNET PORTABLE SNIFFER NETWORK ANALYZER
1 NETWORK GENERAL SNIFFER INTERNETWORKING ANALYZER (WAN)
1 NETWORK GENERAL ISDN ANALYSIS SOFTWARE WITH BASIC RATE INTERFACE
1 TELE-PATH INSTRUMENTS ISDN U-INTERFACE
1 DOLCH PENTIUM COMPUTER
This Equipment Schedule "A" is hereby verified as correct by the undersigned
Lessee, who acknowledges receipt of a copy.
Lessee: YOU TOOLS CORPORATION
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SIGNATURE /s/ Xxxxx Xxx Xxxxx
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XXXXX XXX XXXXX
TITLE: CEO
