EXHIBIT 10.36
TO
REGISTRATION STATEMENT ON FORM SB-2
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EQUIPMENT LEASE WITH FINOVA CAPITAL CORPORATION
FINOVA
FINOVA Capital Corporation 00 X. Xxxxx 00 Xxxxx P.O. Box 907 Paramus, New Jersey
07653 Telephone (000) 000-0000
EQUIPMENT LEASE
No. 5754300
FINOVA Capital Corporation, (herein called "Lessor"), with its principal place
of business at Dial Tower, Dial Corporate Center, Phoenix, Arizona, hereby
agrees to lease to the Lessee named on the signature page hereof (herein called
"Lessee") and Lessee hereby agrees to lease and rent from Lessor, the equipment
described on any attached schedule(s), (herein with all replacement parts,
repairs, additions, and accessories called "Equipment"), on the terms and
conditions hereof and as set forth on any schedule (herein called "Schedule").
Xxxxxx agrees that, at the option of Lessor, any Schedule shall be a separately
enforceable Lease which incorporates all of the terms and conditions set forth
herein.
1. ORDERING AND INSTALLATION OF EQUIPMENT. Lessee hereby requests Lessor to
order the Equipment from a supplier (herein called "Supplier"), and to arrange
for delivery thereof to Lessee at Lessee's expense. Lessee agrees to install or
cause the Equipment to be installed at the location set forth on the Schedule
thereof (the "Location") at Xxxxxx's cost.
2. DISCLAIMER OF WARRANTIES AND WAIVER OF DEFENSES.
LESSOR, NEITHER BEING THE MANUFACTURER, NOR A SUPPLIER, NOR A DEALER IN THE
EQUIPMENT, MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANYONE, AS TO DESIGN,
CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT OR ITS
MATERIAL OR WORKMANSHIP. XXXXXX ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR USE OR PURPOSE WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE.
XXXXXX FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR INJURY TO LESSEE OR
THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE EQUIPMENT
WHETHER ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY OR
OTHERWISE. AS TO THE LESSOR, XXXXXX LEASES THE EQUIPMENT "AS IS". XXXXXX
ACKNOWLEDGES THAT XXXXXX HAS SELECTED THE SUPPLIER OF THE EQUIPMENT AND THAT
XXXXXX HAS NOT RECOMMENDED SUPPLIER. LESSOR SHALL HAVE NO OBLIGATION TO INSTALL,
MAINTAIN, ERECT, TEST, ADJUST OR SERVICE THE EQUIPMENT. REGARDLESS OF CAUSE,
XXXXXX AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS OF
ANTICIPATORY PROFITS OR ANY OTHER INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
NOR SHALL LESSOR BE RESPONSIBLE FOR ANY DAMAGES OR COSTS WHICH MAY BE ASSESSED
AGAINST LESSEE IN ANY ACTION FOR INFRINGEMENT OF ANY UNITED STATES LETTERS
PATENT. XXXXXX MAKES NO WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR
ACCOUNTING PURPOSES. If the Equipment is unsatisfactory for any reason, Lessee
shall
EXHIBIT 10.36
make claim on account thereof solely against the manufacturer, the Supplier or
any dealer and shall nevertheless pay Lessor all rent and other charges payable
under the Lease. Lessor hereby assigns to Lessee, any rights which Lessor may
have against the Supplier, the manufacturer or any dealer for breach of warranty
or other representations respecting the Equipment. Xxxxxx understands and agrees
that neither the Manufacturer, the Supplier, any dealer nor any agent of the
foregoing is an agent of Lessor or is authorized to waive or alter any term or
condition of this Lease.
3. TERM AND RENT. The Lease term of each Schedule shall commence as of the date
that any of the Equipment under such Schedule is delivered to Lessee or Lessee's
Agent, or such later date as Lessor designates in writing (the "Commencement
Date.) and shall continue until the obligations of Lessee under this Lease shall
have been fully performed. Advance rentals shall not be refundable if the Lease
term for any reason does not commence or if this Lease or any Schedule is duly
terminated by Lessor. The sum of all periodic installments of rent indicated on
any Schedule shall constitute the aggregate rent reserved. The aggregate rent
reserved shall be payable periodically in advance, in the installments indicated
on any Schedule, the first such payment being due on the Commencement Date, or
such later date as Lessor designates in writing (the "First Payment Date.), and
subsequent payments shall be due on the same day of each successive rent period
thereafter until the balance of the rent and any charges or expenses payable by
Lessee under this Lease shall have been paid in full. If the First Payment Date
is later than the Commencement Date, Lessee shall, on the First Payment Date, in
addition to the periodic rent, pay Lessor interim rent from the Commencement
Date to the First Payment Date at a daily rate equal to the periodic installment
of rent divided by the number of days of the period. Xxxxxx's obligation to pay
all rent shall be absolute and unconditional and not subject to any abatement,
set-off, defense or counterclaim for any reason whatsoever.
4. NON-CANCELABLE LEASE. NEITHER THE LEASE NOR ANY SCHEDULE CAN BE CANCELED BY
XXXXXX DURING THE TERM HEREOF OR THEREOF.
5. LESSOR TERMINATION BEFORE EQUIPMENT ACCEPTANCE. If within ninety (90) days
from the date Lessor orders the Equipment, the same has not been delivered,
installed and accepted by Lessee (in form satisfactory to Lessor) for all
purposes of this Lease, Lessor may, on ten (10) days' written notice to Lessee,
terminate this Lease and the related Schedule and its obligations to Lessee.
6. TITLE, RECORDING, DOCUMENTATION, ADMINISTRATIVE FEES AND PERSONAL PROPERTY.
The Equipment is, and shall at all times remain, the property of Lessor, and
except as herein set forth, Lessee shall have no right, title or interest
therein. If Lessor supplies Lessee with labels indicating that the Equipment is
owned by Lessor, Lessee shall affix such labels to and keep them in a prominent
place on the Equipment. Lessee hereby authorizes Lessor to insert in this Lease
or any Schedule the serial numbers, and other identification data, of Equipment
when determined by Lessor. In order to perfect Lessor's security interest in the
Equipment in the event this Lease is determined to be a security agreement,
Lessee hereby grants Lessor a security interest in the Equipment and authorizes
Lessor, at Lessee's expense, to cause this Lease, or any statement or other
instrument in respect of this Lease showing the interest of Lessor in the
Equipment, including Uniform Commercial Code Financing Statements, to be filed
or recorded,
EXHIBIT 10.36
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and grants Lessor, where permitted, the right to execute Xxxxxx's name thereto.
Xxxxxx agrees to pay or reimburse Lessor for its costs and out of pocket
expenses relating to any searches undertaken by Lessor, or any filing,
recording, stamp fees or taxes arising from the filing or recording of any such
instrument or statement and any other costs, expenses or charges incurred by
Lessor in documenting, administering and terminating this Lease. Lessee shall,
at its expense, protect and defend Xxxxxx's title to the Equipment against all
persons claiming against or through Lessee, at all times keeping the Equipment
free from any legal process or encumbrance whatsoever including but not limited
to liens, attachments, levies and executions, and shall give Lessor immediate
written notice thereof and shall indemnify Lessor from any loss caused thereby.
Upon Xxxxxx's request, Xxxxxx shall execute or obtain from third parties and
deliver to Lessor such further instruments and assurances as Lessor deems
necessary or advisable for the confirmation or perfection of Xxxxxx's rights
hereunder. The Equipment is, and shall at all times be and remain, personal
property notwithstanding that the Equipment or any part thereof may now be, or
hereafter become, in any manner affixed or attached to real property or any
improvements thereon.
7. CARE, USE, LOCATION AND ALTERATION. Lessee shall, at its sole cost and
expense, service, repair, overhaul and maintain each item of Equipment in good
operating order and in the condition when delivered to Lessee, ordinary wear and
tear excepted. All such maintenance shall be consistent with prudent industry
practice and all maintenance practices recommended by the Supplier or
manufacturer and meet all legal and regulatory requirements. Upon request,
Lessee shall provide Lessor with evidence of such compliance. Lessee shall
maintain logs of the maintenance and service of the Equipment and permit Lessor,
on reasonable prior notice to inspect the Equipment and the right to make copies
of the logs and service reports. Lessee shall forthwith correct any deficiencies
disclosed by such inspection. Lessee shall use the Equipment solely for business
purposes, in compliance with all applicable laws, ordinances, regulations, and
the conditions of all insurance policies required to be maintained by Lessee
pursuant to the Lease. Lessee shall make all additions, modifications and
improvements to the Equipment required by applicable law and except for such
required changes, shall not alter the Equipment without Lessor's prior written
consent. Lessee shall replace all worn, lost, stolen or destroyed parts of the
Equipment with replacement parts at least meeting the standards required herein,
all of which shall become the property of Lessor, except for such additions,
modifications and improvements that can be readily removed without causing
damage to, or impairing the commercial value or utility of, such Equipment,
which shall remain Lessee's property and may be removed by Lessee at its expense
before the Equipment is surrendered to Lessor. Lessee shall repair all damage to
any item resulting from such installation or removal. If Lessee has not
purchased an item of Equipment pursuant to any option to purchase granted to
Lessee at the end of the Lease term for such item, Lessor shall be entitled to
purchase any such addition, modifications and improvements from Lessee for its
then fair market value. The Equipment shall not be removed from the Location
without Xxxxxx's prior written consent.
8. NOTICE AND CONDITIONS OF REDELIVERY. Lessee shall provide Lessor not less
than One Hundred Twenty (120) days prior written notice of its intention to
exercise its option to purchase the Equipment if granted on the related Schedule
or return the Equipment to Lessor (the "Required Notice.). If Lessee shall have
timely provided such Required Notice and has elected to return the Equipment to
Lessor upon the expiration of the Term of the Schedule, Lessee shall, at
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its sole expense, return the Equipment covered thereby, freight prepaid, to
Lessor in a manner and to a location within the continental United States
designated by Lessor in the condition and repair required by the terms of this
Lease, free of all liens and advertising insignia. If Lessee shall fail to
return any item of Equipment as provided herein, Lessee shall be responsible for
all cost and expense incurred by Xxxxxx in returning the Equipment to such
required condition or any reduction in value as a result thereof. If the
Equipment or its component parts were packed or crated for shipping when new,
Lessee shall pack or crate the same carefully and in accordance with any
recommendations of the Supplier or manufacturer before redelivering the item to
Lessor. Lessee shall also deliver to Lessor the plans, specifications, operating
manuals, software documentation, discs, warranties and other documents furnished
by the manufacturer or Supplier of the Equipment and such other documents in
Lessee's possession relating to the maintenance and method of operation of such
Equipment. At Lessor's written request, Lessee shall provide free storage for
any item of Equipment for a period not to exceed sixty (60) days after the
expiration of the Schedule term before returning such item to Lessor and permit
Lessor access to the Equipment for inspection and/or resale. If Lessee fails to
timely provide such Required Notice the Equipment shall continue to be held and
leased hereunder, and this Lease and the related Schedule term shall thereupon
be extended for a period ending one hundred twenty (120) days following receipt
by Lessor of Xxxxxx's notice of intent to return the Equipment, for the fair
market rental value of the Equipment as determined by Lessor not to exceed the
periodic installment of rent with respect to such Equipment for such period. If
Lessee has timely provided the Required Notice but upon expiration Lessee does
not immediately return the Equipment to Lessor, (unless otherwise requested by
Lessor) the Equipment shall continue to be held and leased hereunder, and this
Lease and the related Schedule term shall thereupon be extended for successive
thirty (30) day periods at the fair market rental value of the Equipment as
determined by Lessor not to exceed the periodic installment of rent with respect
to such Equipment for such period.
9. RISK OF LOSS. Lessee shall bear all risks of loss of and damage to the
Equipment from any cause and the occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of loss or damage,
Lessee, at its option, provided it is not in default hereunder, otherwise at
Lessor's option, shall: (a) place the damaged Equipment in good repair,
condition and working order; or (b) replace lost or damaged Equipment with like
equipment in good repair, condition and working order with documentation
creating clear title thereto in Lessor; or (c) pay to Lessor the then present
value computed at five (5 %) percent per annum of both the unpaid balance of the
aggregate rent reserved under the Lease and related Schedule and the value of
Lessor's residual interest in the Equipment. Upon Xxxxxx's receipt of such
payment, Lessee and/or Xxxxxx's insurer shall be entitled to Xxxxxx's interest
in said item for salvage purposes, in its then condition and location, as is,
without warranty, express or implied.
10. INSURANCE. Until redelivered to Lessor, Lessee shall maintain and deliver
evidence to Lessor of such insurance required by, written by insurers, and in
amounts satisfactory to Lessor. Should Lessee fail to provide such insurance
coverage, Lessor may obtain coverage for part or all of the term of this Lease
or any Schedule or such period beyond the term as is required by the insurance
company issuing such coverage protecting interests of Lessor and Lessee or the
interest of Lessor only. The proceeds of such insurance, at the option of
Lessee, provided it is not in default hereunder, otherwise at Lessor's option,
shall be applied toward (i) the replacement,
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restoration or repair of the Equipment or (ii) payment of the obligations of
Lessee hereunder. Lessee hereby appoints Lessor as Xxxxxx's attorney-in-fact to
make claims for, receive payment of, and execute and endorse all documents,
checks, or drafts for loss or damage under any said insurance policies.
11. NET LEASE; TAXES. Lessee intends the rental payments hereunder to be net to
Lessor, and Lessee shall pay all sales, use, excise, stamp, documentary and ad
valorem taxes, license and registration fees, assessments, fines, penalties and
similar charges imposed on the ownership, possession or use of the Equipment
during the term of this Lease or any Schedule; shall pay all taxes (except
Lessor's Federal or State net income taxes) imposed on Lessor or Lessee with
respect to the rental payments hereunder, and shall reimburse Lessor upon demand
for any taxes paid by or advanced by Xxxxxx. Unless Lessee is otherwise directed
by Xxxxxx, in writing, Lessor shall file for and pay all personal property taxes
assessed with respect to the Equipment during the term of this Lease and Lessee
shall, upon Xxxxxx's demand, forthwith reimburse Lessor for the full amount of
such taxes without regard to any discounts obtained by Lessor due to early
payment or otherwise. Lessor may, if it elects, estimate such personal property
taxes and xxxx Xxxxxx periodically in advance therefor.
12. INDEMNITY. Lessee shall hold Lessor harmless from, indemnify and defend
Lessor against, any and all claims, actions, suits, proceedings, costs,
expenses, damages and liabilities, including attorney's fees arising out of,
connected with or resulting from the Equipment or this Lease or any Schedule,
including, without limitation, the manufacture, selection, delivery, possession,
use, operation or return of the Equipment. These indemnities shall survive the
termination or expiration of this Lease or any Schedule.
13. DEFAULT AND REMEDIES. If (i) Lessee defaults in any payment required under
this Lease or any Schedules or under any other lease or agreement between Lessor
and Lessee, or (ii) Lessee breaches any of the representations or warranties
contained herein or fails to perform any of the terms, covenants or conditions
of this Lease or any Schedule or (iii) a petition in bankruptcy, arrangement,
insolvency or reorganization is filed by or against Lessee or any guarantor of
Lessee's obligations hereunder, or (iv) Lessee or any guarantor of Lessee's
obligations makes an assignment for the benefit of creditors, or (v) without
Lessor's written consent, which shall not be unreasonably withheld, Lessee sells
all or a substantial part of Lessee's assets or a majority of Lessee's voting
stock is transferred, or (vi) during the term of the Lease or any Schedule there
is a material adverse change in the financial condition of Lessee or any
guarantor of Lessee's obligations then Lessor may, to the extent permitted by
law, exercise any one or more of the following remedies: (a) to declare the
entire balance of rent for the full term of any or all Schedules covered hereby
immediately due and payable and to similarly accelerate the balances under any
other leases or agreements between Lessor and Lessee without notice or demand,
(b) to sue for and recover all rents, and other monies due and to become due
under any or all Schedules hereunder and the residual value of the Equipment
covered thereby discounted to the date of default at five (5%) percent per
annum; (c) to require Lessee at Lessee's expense, to assemble all the Equipment
at a place reasonably designated by Lessor, (d) to remove any physical
obstructions for removal of the Equipment from the place where the Equipment is
located and take possession of any or all items of Equipment, without demand or
notice, wherever same may be located, disconnecting separating all such
Equipment from any other
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property, with or without any court order or pre-taking hearing or other process
of law, it being understood that facility of repossession in the event of
default is a basis for the financial accommodation reflected by this Lease.
Lessee hereby waives any and all damages occasioned by such retaking. Lessor
may, at its option, use, ship, store, repair or lease all Equipment so removed
and sell or otherwise dispose of any such Equipment at a private or public sale.
Lessor may expose and resell the Equipment at Lessee's premises at reasonable
business hours without being required to remove the Equipment. In the event
Lessor takes possession of the Equipment, Lessor shall give Lessee credit for
any sums received by Lessor from the sale, or present value of the rental, of
the Equipment computed at the implicit rate of the Schedule after deduction of
the expenses of sale or rental. Lessee shall also be liable for and shall pay to
Lessor on demand (a) all expenses incurred by Lessor in connection with the
enforcement of any of Lessor's remedies, including all expenses of repossession,
storing, shipping, repairing and selling the Equipment, (b) Lessor's reasonable
attorney's fees and (c) interest on all sums due Lessor from the date of default
until paid at the rate of one and one-half (1.5%) percent per month, but only to
the extent permitted by law. Xxxxxx and Xxxxxx acknowledge the difficulty in
establishing a value for the unexpired Lease term and owing to such difficulty
agree that the provisions of this paragraph represent an agreed measure of
damages and are not to be deemed a forfeiture or penalty.
Whenever any payment hereunder is not made by Xxxxxx within ten (10) days when
due, Xxxxxx agrees to pay to Lessor, not later than one month thereafter, an
amount calculated at the rate of ten cents per one dollar of each such delayed
payment, as an administrative fee to offset Lessor's collection costs, but only
to the extent allowed by law. Such amount shall be payable in addition to all
amounts payable by Xxxxxx as a result of exercise of any of the remedies herein
provided.
All remedies of Lessor hereunder are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy or to preclude the exercise of any
other remedy. No failure on the part of the Lessor to exercise and no delay in
exercising any right or remedy shall operate as a waiver thereof or modify the
terms of this Lease. A waiver of default by Lessor on any one occasion shall not
be deemed a waiver of any other or subsequent default. In the event this Lease
is determined to be a security agreement, Xxxxxx's recovery shall in no event
exceed the maximum permitted by law.
14. PERFORMANCE BY XXXXXX OF XXXXXX'S OBLIGATIONS. In the event Lessee fails to
comply with any provision of this Lease, Lessor shall have the right, but shall
not be obligated, to effect such compliance on behalf of Lessee upon ten (10)
days prior written notice to Xxxxxx. In such event, all monies advanced or
expended by Xxxxxx, and all expenses of Lessor in effecting such compliance,
shall be deemed to be additional rent, and shall be paid by Lessee to Lessor at
the time of the next periodic payment of rent.
15. ASSIGNMENT: QUIET ENJOYMENT. LESSOR MAY, WITHOUT XXXXXX'S CONSENT, ASSIGN
THIS LEASE OR ANY SCHEDULE AND/OR THE RENTALS DUE THEREUNDER OR SELL OR GRANT A
SECURITY INTEREST IN THE EQUIPMENT AND LESSEE AGREES THAT NO ASSIGNEE OF LESSOR
SHALL BE BOUND TO PERFORM ANY DUTY, COVENANT OR CONDITION OR WARRANTY (EXPRESS
OR IMPLIED) ATTRIBUTABLE TO LESSOR AND XXXXXX FURTHER AGREES NOT TO
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RAISE ANY CLAIM OR DEFENSE ARISING OUT OF THIS LEASE OR OTHERWISE AGAINST LESSOR
AS A DEFENSE, COUNTERCLAIM OR OFFSET TO ANY ACTION BY ANY ASSIGNEE HEREUNDER.
NOTWITHSTANDING ANY ASSIGNMENT BY XXXXXX, PROVIDING LESSEE IS NOT IN DEFAULT
HEREUNDER, LESSEE SHALL QUIETLY ENJOY USE OF THE EQUIPMENT, SUBJECT TO THE TERMS
AND CONDITIONS OF THE LEASE.
WITHOUT XXXXXX'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THE EQUIPMENT OR ANY INTEREST
THEREIN, OR SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES.
16. NOTICES. Service of all notices under this Lease shall be sufficient if
given personally or mailed to the intended party at its respective address set
forth herein, or at such other address as said party may provide in writing from
time to time. Any such notice mailed to said address shall be effective three
(3) days following the date when deposited in the United States mail, duly
addressed and with postage prepaid.
17. REPRESENTATIONS AND COVENANTS OF LESSEE. Lessee represents that all
financial and other information furnished to Lessor was, at the time of
delivery, true and correct. During the term of the Lease, Lessee shall provide
Lessor, on an ongoing basis, audited annual financial statements within 120 days
of each fiscal year end and quarterly financial statements within sixty (60)
days of each quarter signed by Xxxxxx's chief financial officer and such interim
financial statements as Lessor requests. Such financial and other information
shall be kept confidential except that Lessor may disclose such information to
its accountants, attorneys and employees and as may be required in accordance
with law. During the term of the Lease, Xxxxxx shall not incur any additional
indebtedness other than the indebtedness incurred in the ordinary course of
business
18. GOVERNING LAW; JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF TRIAL BY
JURY. THIS LEASE SHALL BE BINDING WHEN ACCEPTED IN WRITING BY THE LESSOR AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, PROVIDED, HOWEVER, IN THE
EVENT THIS LEASE OR ANY PROVISION HEREOF IS NOT ENFORCEABLE UNDER THE LAWS OF
THE STATE OF ARIZONA THEN THE LAWS OF THE STATE WHERE THE EQUIPMENT IS LOCATED
SHALL GOVERN. ANY DISPUTE UNDER THIS LEASE SHALL BE LITIGATED BY LESSEE ONLY IN
FEDERAL OR STATE COURTS LOCATED IN MARICOPA COUNTY, ARIZONA, AND LESSEE
IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS AND WAIVES ANY
OBJECTION THAT MAY EXIST AS TO VENUE OR CONVENIENCE OF SUCH FORUMS. NOTHING
CONTAINED HEREIN SHALL PRECLUDE LESSOR FROM COMMENCING ANY ACTION IN ANY COURT
HAVING JURISDICTION THEREOF. SERVICE OF PROCESS IN ANY SUCH ACTION SHALL BE
SUFFICIENT IF SERVED BY CERTIFIED MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS
OF THE PARTY SET FORTH FOLLOWING THE SIGNATURES AT THE END OF THIS LEASE. TO THE
EXTENT PERMITTED BY LAW, XXXXXX XXXXXX TRIAL BY JURY IN ANY ACTION BY OR AGAINST
XXXXXX XXXXXXXXX.
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19. GENERAL. This Lease inures to the benefit of and is binding upon the heirs,
legatees, personal representatives, successors and assigns of the parties
hereto. Time is of the essence of this Lease. This Lease and all Schedules
attached hereto contain the entire agreement between Lessor and Lessee, and no
modification of this Lease or any Schedule shall be effective unless in writing
and executed by an executive officer of Lessor. If more than one Lessee is named
in this Lease, the liability of each shall be joint and several. In the event
any provision of this Lease should be unenforceable, then such provision shall
be deemed deleted, however, no other provision hereof shall be affected thereby.
20. FINANCE LEASE STATUS. Xxxxxx and Xxxxxx agree that if Article 2A - Leases of
the Uniform Commercial Code ("Code") governs the terms of this Lease, then this
Lease will be deemed a "finance lease". By executing this Lease, Lessee
acknowledges that (a) Xxxxxx has advised Xxxxxx of (i) the identity of the
Supplier; (ii) that Lessee may have rights under the "supply contract" as
defined in the Code, pursuant to which Lessor is purchasing the Equipment, and
(iii) that Lessee may contact the Supplier for a description of any such rights.
TO THE EXTENT PERMUTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE BY THE CODE, INCLUDING SECTIONS 2A - 508
THROUGH 522 THEREOF.
21. PUBLICITY. Lessor is hereby authorized to issue appropriate press releases
and to cause a tombstone to be published announcing the consummation of this
transaction and the aggregate amount thereof.
LESSOR:
FINOVA CAPITAL CORPORATION
BY:
PRINTED NAME: XXX XXXXXXXX
TITLE: V.P.
ADDRESS: 00 X. XXXXX 00 XXXXX, P.O. BOX 907 PARAMUS, NEW JERSEY 07653
DATE ACCEPTED:
LESSEE:
MENDOCINO BREWING COMPANY, INC.
BY /s/ Xxxxxx Xxxxxx
PRINTED NAME: XXXXXX XXXXXX
TITLE: V. P.
Taxpayer Identification No.: 00-0000000
ADDRESS: 00000 XXXXX XXXXXXX 000 XXXXXXX, XXXXXXXXXX 00000
DATED: 9/10/96
EXHIBIT 10.36
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