Exhibit 10.24 - Master Lease Agreement dated August 10, 2004
VenCore Solutions LLC
0000 XX Xxxxx Xxx, Xxxxx 000 x Xxxx Xxxxxx, XX 00000
000.000.0000 o FAX: 000.000.0000
MASTER LEASE AGREEMENT
NUMBER 4406
LESSEE NAME AND ADDRESS LESSOR NAME AND ADDRESS
QUINTEK TECHNOLOGIES, INC. VenCore Solutions llc
00000 XXXXX XXXXXX 0000 XX XXXXX XXX, XXXXX 000
XXXXXXXXXX XXXXX, XX 00000 XXXX XXXXXX, XX 00000
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Terms and Conditions
1. LEASE LINES AND LEASES.
a) Lease Lines. LESSOR and LESSEE hereby agree that LESSOR will
acquire and lease to LESSEE, EQUIPMENT with an aggregate value of
up to the amount specified under "Approved Amount of Lease Line"
on the Lease Line Schedule attached as Exhibit A-1 to this Master
Lease Agreement (such commitment is referred to as a "LEASE
LINE"). From time to time, LESSOR and LESSEE may (but are under no
obligation to) agree to establish one or more additional LEASE
LINES pursuant to which LESSOR agrees to acquire and lease to
LESSEE, EQUIPMENT with an aggregate value of up to the amount
specified for each such LEASE LINE. For each LEASE LINE agreed by
the parties, LESSOR and LESSEE will execute an additional Exhibit
A to this Master Lease Agreement, and each such Exhibit A will be
numbered sequentially (i.e., designated as Exhibit X-0, Xxxxxxx
X-0, etc.) and will incorporate the terms of this Master Lease
Agreement. No LEASE LINE shall be established, and LESSOR shall
have no liability or obligation under any LEASE LINE, unless and
until the appropriate Exhibit A is executed by both LESSOR and
LESSEE.
b) Leases. LESSOR and LESSEE agree that the terms of this Master
Lease Agreement shall apply to and be incorporated by reference in
one or more Lease Schedules, each of which reference(s) the Master
Lease Agreement Number indicated above. The word "LEASE" shall
mean any one of the individual Lease Schedules executed hereunder,
each of which shall incorporate the terms and conditions of this
Master Lease Agreement (including the terms specified on the
applicable Exhibit A hereto, as determined below) and shall be
evidenced by the original Lease Schedule and an attached copy of
this Master Lease Agreement. The word "LEASES" shall mean all of
the individual Lease Schedules executed under and incorporating
the terms of this Master Lease Agreement collectively. The word
"EQUIPMENT" shall mean (i) for purposes of each LEASE, the
EQUIPMENT, which is the subject of such LEASE, as defined and
described in the applicable Lease Schedule, and/or (ii) all of the
EQUIPMENT subject to all of the LEASES, collectively, in each case
as the context may require. Each Lease Schedule will include an
EQUIPMENT description, the EQUIPMENT location, the minimum lease
term and payment and security deposit information. Each LEASE
shall be enforceable upon execution by LESSEE and subsequent
counter-signature by LESSOR indicating acceptance. By entering
into each Lease Schedule, LESSOR and LESSEE agree that (i) the
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transaction effected by the Lease Schedule constitutes a lease
funding by LESSOR under the LEASE LINE then in effect, (ii)
LESSOR's remaining funding obligations under the applicable LEASE
LINE shall be reduced accordingly, and (iii) the initial lease
period, the initial rent payment amount, the documentation fees,
the security deposit payment and release requirements, the renewal
rent payment amounts applicable to the LEASE shall be determined
pursuant to the applicable LEASE LINE, as outlined on the Exhibit
A to this Master Lease Agreement which specifies a "Date of Lease
Line Approval" occurring on or before the date of the Lease
Schedule and a "Funding Expiration Date" occurring after the date
of acceptance of the Lease Schedule by LESSOR, and shall be set
forth with specificity on the applicable Lease Schedule.
2. RENTAL PAYMENTS. Unless otherwise agreed in writing, each regular
periodic payment of rent due during the term of each LEASE shall be due on
either the tenth (10th) day of the month or the twenty-fifth (25th) day of the
month (the "billing date"). The first billing date under each LEASE where
LESSEE's acceptance occurred after the twentieth (20th) day of the month and
prior to the sixth (6th) day of the following month shall be the tenth (10th)
day of the month immediately following LESSEE's acceptance of the EQUIPMENT, or,
if LESSEE's acceptance occurs after the fifth (5th) day of a month and prior to
the twenty-first (21st) day of the month, then the first billing date shall be
the twenty-fifth (25th) day of the month that LESSEE completed its acceptance of
the EQUIPMENT. On the date of acceptance of EQUIPMENT by LESSEE, LESSEE shall
pay to LESSOR pro rated rent, together with applicable taxes, from the date of
acceptance of the EQUIPMENT until the first billing date as interim rent. In
addition, LESSEE shall pay to LESSOR, on demand by LESSOR, an amount equal to
one thirtieth (1/30) of the proportional monthly rental payment per day for any
amount funded by LESSOR prior to acceptance of the EQUIPMENT by LESSEE as
additional interim rent. LESSEE agrees to pay rent for the minimum term
specified on the Lease Schedule, commencing on the first billing date and
continuing until the EQUIPMENT is returned to LESSOR on expiration or earlier
termination of the LEASE. Each periodic rental installment shall be the sum set
forth on the applicable Lease Schedule, plus any applicable sales and/or use
taxes, and shall, at LESSOR's option, include a pro rata portion of that year's
property tax. Payments shall be made by LESSEE at LESSOR's address set forth
herein or as otherwise directed by LESSOR. LESSEE shall not xxxxx, set off,
deduct any amount or reduce any payment for any reason without the prior written
consent of LESSOR. Payments are delinquent if not in LESSOR's possession by the
due date.
3. COMMENCEMENT AND TERMINATION. The LEASE term shall commence on
acceptance of the EQUIPMENT by LESSEE. The LEASE shall terminate on the
expiration of its minimum term in months as set forth in the Lease Schedule
following the first billing date and the fulfillment of all obligations of
LESSEE thereunder or upon notice by LESSOR in the case of LESSEE default. In the
event LESSEE retains part or all of the EQUIPMENT beyond the term of the LEASE,
then the terms of the LEASE shall stay in effect during such hold-over period,
subject to LESSOR's right on default to terminate the LEASE.
4. NO WARRANTIES BY LESSOR. LESSOR makes no warranty, express, implied or
statutory, as to any matter whatsoever, including, without limitation, the
condition of the EQUIPMENT, its merchantability or its fitness for any
particular purpose, and as to LESSOR, LESSEE leases the EQUIPMENT "AS IS".
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5. CHOICE OF LAW, VENUE AND JURISDICTION. The LEASE shall be deemed to
have been made and shall be construed in accordance with the laws of the State
of Oregon. Any and all suits or actions to enforce or for breach of the LEASE
must be instituted and maintained in Multnomah County, State of Oregon, and
LESSEE expressly agrees to submit to personal jurisdiction in such venue.
6. ASSIGNMENT. Without LESSOR's prior written consent, LESSEE shall not
assign, transfer, pledge, hypothecate or otherwise dispose of the LEASE, any
interest therein, or sublease or loan the EQUIPMENT or permit it to be used by
anyone other than LESSEE or LESSEE's qualified employees. LESSOR may assign the
LEASE and/or grant a security interest in the EQUIPMENT, in whole or in part, to
one or more assignees, without notice to LESSEE. LESSOR's assignee(s) and/or the
secured party(ies) may reassign the LEASE, and/or such security interest without
notice to LESSEE. Each such assignee and/or such secured party shall have all
rights of LESSOR under the LEASE, but no such assignee or secured party shall be
bound to perform any obligation of LESSOR. LESSEE shall recognize each such
assignment and shall not assert against any assignee and/or secured party any
defense, counterclaim or setoff it may have against LESSOR. LESSEE acknowledges
that any assignment or transfer by LESSOR shall not materially change LESSEE's
duties or obligations under the LEASE nor materially increase the burdens or
risks imposed on LESSEE.
7. SELECTION AND ACCEPTANCE OF EQUIPMENT. LESSEE has selected both the
EQUIPMENT and the supplier(s) from whom LESSOR is to purchase the EQUIPMENT.
LESSEE shall arrange for transportation, delivery and installation of the
EQUIPMENT at LESSEE's expense. LESSEE acknowledges that it has examined the
EQUIPMENT as fully as it desires. If the EQUIPMENT is not properly installed,
its delivery is delayed, it does not operate as represented by the supplier(s)
or it is unsatisfactory for any reason, LESSEE shall make no claim on account
thereof against LESSOR. LESSEE authorizes LESSOR to insert in the LEASE or other
documents the serial numbers and other identification information for the
EQUIPMENT as determined by LESSOR.
8. SUPPLIER/BROKER NOT AGENT OF LESSOR. LESSEE understands and agrees that
neither the supplier(s), nor any salesperson or agent of the supplier(s), is an
agent of LESSOR. LESSEE further agrees that if any transaction hereunder is
presented to LESSOR by a lease broker, that such broker is acting as an agent of
LESSEE and is not an agent of LESSOR. No salesperson or agent of the supplier(s)
or broker(s) is authorized to waive or alter any term or condition of the LEASE,
and no representation as to the EQUIPMENT or any matter by the supplier(s) or
broker(s) shall in any way affect LESSEE's duty to pay rent and perform its
other obligations set forth in the LEASE.
9. SECURITY DEPOSIT. Security deposits received by LESSOR are to guarantee
prompt and full payment of rent and the faithful and timely performance of all
provisions of the LEASE by LESSEE. Security deposits secure all obligations of
LESSEE to LESSOR under the LEASES or otherwise. Unless otherwise specified in
the applicable Exhibit A to this Master Lease Agreement or in another instrument
in writing signed by LESSOR and LESSEE, no interest will accrue on the security
deposit to the account of LESSEE. If LESSEE is not in default under any
agreement with LESSOR, the security deposit shall be returned to LESSEE per the
terms specified in the applicable Exhibit A to this Master Lease Agreement or
such other instrument in writing signed by LESSOR and LESSEE. In the event
LESSEE defaults on any of its obligations to LESSOR, LESSOR shall have the
right, but shall not be obligated, to apply the security deposit to cure such
default, and if so applied, LESSEE shall, within ten (10) days, restore the
security deposit to the full amount held by LESSOR prior to any application to
cure such default.
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10. CANCELLATION FOR NON-DELIVERY. If, within 30 days after the LEASE is
signed by LESSEE, the EQUIPMENT has not been delivered to and accepted by LESSEE
and if LESSOR has accepted the LEASE by signing, LESSOR, by written notice to
LESSEE, shall have the option at any time thereafter to terminate LESSOR's
obligation, if any, to lease the subject EQUIPMENT to LESSEE.
11. LEASE TERMINATION OPTIONS. Upon LEASE termination, and provided LESSEE
is not in default, LESSEE will have an option to purchase all, but not less than
all, of the EQUIPMENT, renew the term of the LEASE, or return all, but not less
than all, of the EQUIPMENT to LESSOR, as set forth in the Exhibit A-1 to the
Master Lease Agreement.
12. OWNERSHIP. The EQUIPMENT shall at all times remain the personal
property of LESSOR. LESSEE will at all times protect and defend, at its own cost
and expense, the ownership of LESSOR against all claims, liens and legal
processes of creditors of LESSEE and other persons, and keep the EQUIPMENT free
and clear from all such claims, liens and processes. If the LEASE is deemed at
any time to be one intended as security or should LESSOR agree at any time to
sell the EQUIPMENT to LESSEE, LESSEE agrees that the EQUIPMENT shall secure, in
addition to the indebtedness set forth in the LEASE, indebtedness at any time
owing by LESSEE to LESSOR. Notwithstanding any other terms and conditions of the
LEASE, in the event that the EQUIPMENT includes computer software, LESSEE agrees
that LESSOR has not had, does not have, nor shall have any title to such
computer software. LESSEE may have executed or may execute a separate software
license agreement(s) and LESSEE agrees that LESSOR is not a party to nor
responsible for any performance with regard to such license agreement(s).
13. LOCATION AND RIGHT OF INSPECTION. The EQUIPMENT shall be kept at the
location specified on the Lease Schedule or, if none is specified, at LESSEE's
address as set forth therein, and shall not be removed from there without
LESSOR's prior written consent. LESSOR shall have the right at any time during
normal business hours and upon reasonable notice to inspect the EQUIPMENT and
for that purpose have access to the location of the EQUIPMENT.
14. USE AND OPERATION. LESSEE shall use the EQUIPMENT in a careful manner
and shall comply with all laws relating to its possession, use and maintenance.
LESSEE represents that the EQUIPMENT shall be used in its business or commercial
concern and that no item of EQUIPMENT will be used for personal, family or
household purposes.
15. REPAIRS AND ALTERATIONS. LESSEE shall at its own expense maintain the
EQUIPMENT in good repair, appearance and functional order. LESSEE agrees to
comply with all maintenance schedules and procedures recommended by the
manufacturer of the EQUIPMENT and, if available, purchase or otherwise enter
into and adhere to dealer maintenance contracts. LESSEE shall not make any
alterations, additions or improvements to the EQUIPMENT without LESSOR's prior
written consent. All alterations, additions or improvements made to the
EQUIPMENT shall belong to LESSOR.
16. LOSS AND DAMAGE. LESSEE shall bear the entire risk of loss, theft,
damage or destruction of the EQUIPMENT from any cause whatsoever and, as between
LESSOR and LESSEE, unless otherwise agreed between the parties, LESSEE shall
bear that risk of loss during transportation and delivery, and LESSEE shall
arrange and pay for transportation and delivery. No loss, theft, damage or
destruction of the EQUIPMENT shall relieve LESSEE of the obligation to pay rent
or to comply with any other obligation under the LEASE. In the event of damage
to any item of EQUIPMENT, LESSEE shall immediately place the same in good repair
at LESSEE's expense. If either LESSOR or LESSEE determines that any item of
EQUIPMENT is lost, stolen, destroyed or damaged beyond repair, LESSEE shall, at
LESSEE's option: (a) replace the same with like EQUIPMENT in good repair,
acceptable to LESSOR; or (b) pay LESSOR a sum equal to (i) all amounts due by
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LESSEE to LESSOR under the LEASE up to the date of the loss, (ii) the unpaid
balance of the total rent for the remaining term under the LEASE which is
attributable to said item of EQUIPMENT, and (iii) an amount equal to eighteen
percent (18%) of the original cost of said item of EQUIPMENT, which the parties
agree shall represent the fair market value of LESSOR's residual interest in
said item of EQUIPMENT. The amounts in (ii) and (iii) shall be discounted to
present value at a discount rate of six percent (6%) per annum.
17. INSURANCE. LESSEE shall provide and maintain primary insurance against
loss, theft, damage or destruction of the EQUIPMENT in an amount not less than
the full replacement value of the EQUIPMENT, with loss payable to LESSOR and
with zero deductible. At LESSOR's request, LESSEE also shall provide and
maintain primary comprehensive general all risk liability insurance. Such
insurance shall include, but shall not be limited to, product liability
coverage, insuring LESSOR and LESSEE, with a severability of interest
endorsement or its equivalent, against any and all loss or liability for all
damages, either to persons, property or otherwise, which might result from or
happen in connection with the condition, use or operation of the EQUIPMENT, with
such limits and with an insurer satisfactory to LESSOR. Each policy shall
expressly provide that the insurance as to LESSOR shall not be invalidated by
any act, omission or neglect of LESSEE and cannot be canceled without thirty
(30) days written notice to LESSOR. As to each policy, LESSEE shall furnish to
LESSOR a certificate of insurance from the insurer evidencing the insurance
coverage required by this Section. If LESSEE fails to procure or maintain such
insurance, LESSOR shall have the right, but shall not be obligated, to obtain
such insurance as to LESSOR's and/or LESSEE's interests. In that event, LESSEE
shall repay to LESSOR the cost thereof with the next payment of rent, together
with late charges as set forth in Section 24. For all EQUIPMENT leased by LESSOR
to LESSEE, LESSEE irrevocably appoints LESSOR as LESSEE's attorney-in-fact to
make claim for, receive payment of, and execute and endorse all documents,
checks or drafts received in payment for loss or damage under such insurance
policy(ies). All obligations of this Section shall extend throughout the term of
the LEASE and until the EQUIPMENT is returned to LESSOR.
18. LIENS AND TAXES. LESSEE shall keep the EQUIPMENT free and clear of all
levies, liens and encumbrances. LESSEE shall pay LESSOR, on or before the due
date, all charges and taxes, local, state or federal, which may now or hereafter
be imposed upon the ownership, leasing, rental, sale, purchase, possession or
use of the EQUIPMENT, excluding, however, all taxes on LESSOR's income. If
LESSEE fails to pay said charges or taxes to LESSOR when due, LESSOR shall have
the right, but shall not be obligated, to pay said charges or taxes, and add the
same to the next payment of rent, together with late charges as set out in
Section 24. LESSEE agrees to pay a reasonable fee to LESSOR for the processing
of property tax payments.
19. INDEMNITY. LESSEE shall indemnify LESSOR against, and hold LESSOR
harmless from, any and all claims, actions, proceedings, expenses, damages and
liabilities, including attorney fees, arising in connection with the EQUIPMENT,
including, without limitation, its manufacture, selection, purchase, delivery,
possession, use, operation or return and the recovery of claims under insurance
policies thereon. This indemnity provision shall survive termination,
cancellation or breach of the LEASE.
20. MISCELLANEOUS REPRESENTATIONS OF LESSEE. LESSEE and any guarantor of
the LEASES shall provide LESSOR with such corporate resolutions, financial
statements, and all other documents regarding the financial or credit condition
of LESSEE or any guarantor, which LESSOR may request from time to time. LESSEE
represents and warrants that all credit and financial information submitted to
LESSOR in connection with the LEASES is materially true and correct in all
respects. LESSEE agrees that LESSOR and/or its assigns may at any time
investigate the credit-worthiness of LESSEE using all available means.
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21. FINANCIAL STATEMENTS AND FIXED ASSET LISTS. So long as any monies are
owed by LESSEE to LESSOR under the terms of any LEASE, and/or until all terms
under each LEASE have been fulfilled, LESSEE will provide LESSOR with financial
statements on a monthly basis and will provide LESSOR with fixed asset lists on
a quarterly basis. LESSEE represents and warrants that all credit and financial
information submitted to LESSOR in connection with the LEASE is materially true
and correct in all respects.
22. UNIFORM PERSONAL PROPERTY LEASING ACT. To the extent permitted by
applicable law, and to the extent the LEASE is governed by the law of a
jurisdiction which has adopted a version of the Uniform Personal Property
Leasing Act (also known as "Uniform Commercial Code - Leases"), the parties
hereto agree that: (1) the provisions thereof conferring remedies upon a LESSEE
or imposing obligations upon a LESSOR shall not apply to the LEASE, its
interpretation, or its enforcement; and (2) each LEASE is a Finance Lease as
defined by Uniform Commercial Code - Section 2A-103(g). LESSEE acknowledges that
LESSEE has reviewed and approved any written Supply Contract(s) covering the
EQUIPMENT purchased from the Supplier(s) for lease to LESSEE. LESSEE further
acknowledges that LESSOR has informed or advised LESSEE, in writing, either
previously or in the LEASE, of the following: (a) the identity of the
Supplier(s); (b) that the LESSEE may have rights under the Supply Contract(s);
and (c) that the LESSEE may contact the Supplier(s) for a description of any
such rights LESSEE may have under the Supply Contract(s).
23. FINANCING STATEMENTS. At the request of LESSOR, LESSEE will join LESSOR
in executing financing statements pursuant to the Uniform Commercial Code. For
any and all EQUIPMENT leased by LESSOR to LESSEE, LESSEE hereby authorizes
LESSOR or its agents or assigns to execute financing statements on LESSEE's
behalf, and to file such financing statements in all jurisdictions where such
execution and filing is permitted. It is agreed that a carbon or photocopy of
any financing statement may be filed in place of the original and that a copy
hereof may be filed as a financing statement.
24. LATE CHARGES AND INTEREST. If LESSEE fails to pay LESSOR any amount
when due or, in the case of an amount due to one other than LESSOR, if LESSOR
pays an amount on LESSEE's behalf, then LESSEE shall pay LESSOR a late charge of
five percent (5%) of such amount for each calendar month or part thereof for
which rent or other sum shall be delinquent or shall have been paid by LESSOR on
LESSEE's behalf. LESSEE also agrees to pay LESSOR the sum of thirty-five dollars
($35.00) for each check of LESSEE's returned uncollectable by LESSEE's bank. The
amount of any charges assessed hereunder shall be added to and become part of
the next rental payment or shall be separately invoiced, at LESSOR's option.
Interest shall accrue on any unpaid or unreimbursed amounts at the maximum rate
allowable by law or eighteen percent (18%), whichever is less, from the due date
until paid by LESSEE.
25. TIME IS OF THE ESSENCE. Time is of the essence of the LEASE. This
provision shall not be waived by the acceptance on occasion of late or defective
performance.
26. DEFAULT. LESSEE shall be in default if (a) LESSEE shall fail to pay
rent or any other amount provided for under the LEASE within ten (10) days after
the same becomes due and payable; or (b) LESSEE fails to observe, keep or
perform any other provision of the LEASE or of any other agreement with LESSOR,
and such failure shall continue for a period of ten (10) days; or (c) LESSEE
shall abandon the EQUIPMENT; or (d) except as inconsistent with Federal
Bankruptcy Law, any proceeding in bankruptcy, receivership or insolvency shall
be commenced against LESSEE or its property or any guarantor or such guarantor's
property, LESSEE or any guarantor files voluntarily for bankruptcy or
reorganization, or LESSEE or any guarantor makes an assignment for the benefit
of its creditors; or (e) LESSEE or any guarantor makes any material
misrepresentation or materially false statement as to its credit or financial
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standing in connection with the execution or the further performance of the
LEASE; or (f) any attachment or execution be levied on any of LESSEE's property;
or (g) LESSEE permits any other entity or person to use the EQUIPMENT without
the prior written consent of LESSOR; or (h) in the business and affairs of
LESSEE or any guarantor there occurs a material change which shall impair the
security of the EQUIPMENT or increase LESSOR's credit risk involved in the
LEASE; or (i) LESSEE moves any EQUIPMENT under LEASE to any location outside of
the United States and/or moves any EQUIPMENT under LEASE to any other location
not previously authorized in writing by LESSOR.
27. REMEDIES. In the event of LESSEE default, LESSOR shall have the right
and option, but shall not be obligated, to exercise any one or more of the
following remedies, which remedies or any of them may be exercised by LESSOR
without notice to LESSEE and without any election of remedies by LESSOR and, if
the obligations of LESSEE are guaranteed by a guarantor or guarantors, LESSOR
shall not be obligated to proceed against any such guarantor or guarantors
before resorting to its remedies against LESSEE under the LEASE: (a) to the
extent permitted under applicable law, LESSOR and/or its agents may, without
notice or legal process, enter onto any premises of or under control of LESSEE
or any agent of LESSEE where the EQUIPMENT may be or is believed to be located
and repossess the EQUIPMENT, disconnecting and separating all thereof from any
other property, using all means necessary or permitted by law, LESSEE hereby
expressly waiving any right of action of any kind whatsoever against LESSOR
arising out of such access to or removal, repossession or retention of the
EQUIPMENT; (b) LESSOR may declare all sums due and to become due under the LEASE
immediately due and payable and institute litigation to collect the same; (c)
LESSOR may institute litigation to collect all rents and other amounts due as of
the date of such default together with any sums that may accrue up to the date
of trial; (d) LESSOR may institute litigation to specifically enforce the terms
of the LEASE; (e) LESSOR may terminate the LEASE; (f) LESSOR may require LESSEE
to return the EQUIPMENT pursuant to Section 11; and/or (g) LESSOR may pursue any
other remedy now, or hereafter, existing in law or equity. However, damages for
any future rentals and/or LESSOR's residual value in the EQUIPMENT shall be
discounted to present value at a discount rate equal to six percent (6%) per
annum. In the event of any default by LESSEE under the LEASE, LESSOR may at its
sole discretion, although it shall not be obligated to do so, sell the EQUIPMENT
at a private or public, cash or credit sale, or may re-let the EQUIPMENT for a
term and a rental which may be equal to, greater than, or less than provided in
the LEASE. Any proceeds of sale or any rental payments received under the new
lease, less LESSOR's expenses of taking possession, reasonable attorney fees
and/or collection fees, storage and/or reconditioning costs, the costs of sale
or re-letting, and less LESSOR's FMV residual in the EQUIPMENT, shall be applied
to LESSEE's obligations under the LEASE, and LESSEE shall remain liable for the
balance. LESSEE's liability shall not be reduced by reason of any failure of
LESSOR to sell or re-let.
28. EXPENSES OF ENFORCEMENT, ATTORNEY FEES. In the event of any default,
LESSEE shall pay LESSOR a sum equal to all expenses, including attorney fees, if
any, incurred by LESSOR in connection with the enforcement of any of LESSOR's
remedies and all expenses of repossessing, storing, repairing, and selling or
re-letting the EQUIPMENT together with interest on such amount at the maximum
rate allowable by law or eighteen percent (18%), whichever is less, from the
date such amount is paid by LESSOR. In the event litigation is instituted to
enforce any of the terms of the LEASE, the prevailing party shall be entitled to
recover from the other party such sum as the court may judge reasonable as
attorney fees at trial and upon appeal, in addition to all other sums provided
for by law.
29. SUCCESSOR INTERESTS. Subject to any prohibition against assignment
contained herein, each LEASE shall be binding upon and inure to the benefit of
the heirs, successors and assigns of the parties. As used in each LEASE, the
term "LESSOR" shall include any assignee or secured party of LESSOR where
appropriate.
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30. MULTIPLE LESSEES. If more than one LESSEE is named herein, the
reference to LESSEE refers to each and the liability of each shall be joint and
several.
31. NOTICES. Any written notice or demand under the LEASE may be given to a
party by mail at its address set forth on the Lease Schedule or at such address
as the party may provide in writing from time to time. Notice and demand so made
shall be effective when deposited in the United States mail duly addressed with
postage prepaid.
32. WAIVER. Failure of LESSOR at any time to require performance of any
provision of the LEASE shall not limit any right of LESSOR to enforce that
provision, nor shall any waiver by LESSOR of any breach of any provision be a
waiver of any succeeding breach of that provision or a waiver of that provision
itself or any other provision.
33. NUMBER AND CAPTIONS. As used herein, the singular shall include the
plural, and the plural the singular. All captions used herein are intended
solely for convenience of reference and shall in no way limit or explain any of
the provisions of the LEASE.
34. DUPLICATE ENFORCEABLE AS ORIGINAL. LESSEE hereby consents to the use of
each original Lease Schedule, along with a photocopy of the fully executed
Master Lease Agreement, for all purposes including, but not limited to, evidence
the applicable LEASE in litigation or any other judicial proceeding.
35. SEVERABILITY. If any provision of the LEASE is held invalid, such
invalidity shall not affect other provisions, which can be given effect without
the invalid provision.
36. ENTIRE AGREEMENT. This Master Lease Agreement and each Lease Schedule,
represent the entire, final and complete agreement of the parties pertaining to
the lease of the EQUIPMENT under such LEASE and supersedes or replaces all
written and oral agreements heretofore made or existing by and between the
parties or their representatives insofar as the lease of the EQUIPMENT is
concerned, and no modification or addition to the LEASE shall be binding unless
agreed by a corporate officer, against whom enforcement is sought.
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PLEASE REQUEST ANY CHANGES
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LESSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL OF THE TERMS AND
CONDITIONS CONTAINED IN THIS MASTER LEASE AGREEMENT AND THAT THESE TERMS AND
CONDITIONS SHALL GOVERN EACH LEASE ENTERED INTO BY THE PARTIES.
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:
:
LESSOR Date : LESSEE Date
-------------------- : ---------------------
:
VenCore Solutions LLC : QUINTEK TECHNOLOGIES, INC.
---------------------------------------------------- : ------------------------------------------------------
: FULL LEGAL NAME OF LESSEE
:
BY: : BY: /s/ XXXXXX XXXXXX CHAIRMAN/CEO
---------------------------------------------- : ------------------------------------------------
: XXXXXX XXXXXX (TITLE)
THIS MASTER LEASE AGREEMENT WILL NOT BIND LESSOR OR :
BECOME EFFECTIVE UNTIL AND UNLESS LESSOR ACCEPTS IT : BY:
BY SIGNING ABOVE. : -----------------------------------------------
: (TITLE)
:
: BY:
: -----------------------------------------------
: WITNESS (TITLE)
:
:
: -----------------------------------------------
: PRINT NAME OF WITNESS
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9
VENCORE SOLUTIONS LLC
VENCORE SOLUTIONS LLC
0000 XX Xxxxx Xxx, Xxxxx 000 x Xxxx Xxxxxx, XX 00000
000.000.0000 o FAX: 000.000.0000
EXHIBIT A - 1
TO
MASTER LEASE AGREEMENT NUMBER
4406
LESSEE NAME AND ADDRESS LESSOR NAME AND ADDRESS
QUINTEK TECHNOLOGIES, INC. VENCORE SOLUTIONS LLC
00000 XXXXX XXXXXX 0000 XX XXXXX XXX, XXXXX 000
XXXXXXXXXX XXXXX, XX 00000 XXXX XXXXXX, XX 00000
Date of Lease Line Approval: August 10, 2004
Funding Expiration Date: December 31, 2004
Approved Amount of Lease Line: $ 240,000.00
Minimum Funding Amount: $ 25,000.00
Initial Monthly Rent Factor:
Hardware Facility: 3.45%
Software Facility: 6.35%
Initial Lease Term:
Hardware Facility: 36 Months
Software Facility: 18 Months
Documentation Fees: 1.25 % of the total equipment
invoice amount included on each
individual Lease Schedule, or $
250.00, whichever is greater.
Security Deposit Percentage: 10 %
Security Deposit Amount: $ 24,000.00 (based on Approved
Amount of Lease Line)
Security Deposit Early Releases:
Hardware Facility: Before releasing Security Deposits prior to Lease
end the following three conditions must exist: 1) Lessor must be in receipt of
Lessee's financial statements (Income / Profit & Loss Statement, Balance Sheet,
Cash Flow Statement and Fixed Asset List) that are no more than 30 days old, 2)
Lessee must demonstrate that they have cash reserves to service their debt for
at least the subsequent six months, and 3) all payments must have been paid as
agreed and all Lease Schedules must be current.
Software Facility: Before releasing Security Deposits at the end of
each individual Lease Schedule, the following three conditions must exist: 1)
Lessor must be in receipt of Lessee's financial statements (Income / Profit &
Loss Statement, Balance Sheet, Cash Flow Statement and Fixed Asset List) that
are no more than 30 days old, 2) Lessee must demonstrate that they have cash
reserves to service their debt for at least the subsequent six months, and 3)
all payments must have been paid as agreed and all Lease Schedules must be
current.
11
On each individual Lease Schedule under the Hardware Facility, providing the
above requirements for "early security deposit releases" have been met, Lessor
will release 50 % of the Security Deposit to Lessee after Lessee has paid Lessor
20 payments. There will be no early releases under the Software Facility.
At the time Security Deposits, or any portion thereof, are released by Lessor to
Lessee, Lessor will pay 1 % interest per annum on the Security Deposit amount
being released. At the time of a Security Deposit release, interest will be
calculated from the date the Security Deposit was received by Lessor until the
date Lessor releases the Security Deposit.
Minimum Renewal Rent Factor:
Hardware Facility: 3.45 % for a minimum of three
months.
Software Facility: 6.35% for a minimum of three
months.
Eligible Equipment: Scanners, Computer Hardware and Software. Up to $75,000.00
of the total Approved Amount of the Lease line may be comprised of Soft Costs
("SOFT") where SOFT will include, but not be limited to, delivery costs, design
and engineering costs, extended warranties, installation costs, labor, leasehold
improvements, maintenance and upgrade contracts, sales tax, software, trade show
booths, training, and upgrades to any equipment in which Lessor does not hold a
security interest. No equipment may be shipped to and / or located at a
co-location facility, or any facility other than Lessee's principal place of
business, unless the co-location facility first provides Lessor with a waiver
acknowledging Lessor's ownership of the equipment. All equipment to be leased
must be approved by Lessor.
Lease Termination Options: Upon Lease termination, and provided Lessee is not in
default, Lessee will have an option to purchase all, but not less than all, of
the Equipment, renew the term of the Lease, or return all, but not less than
all, of the Equipment to Lessor, as set forth below:
Software Facility: Upon Lease termination and providing Lessee is not
in default, Lessee will exercise the option to purchase, providing no Event of
Default has occurred and is then continuing, Lessee will at the expiration of
the Lease term, purchase all, but not less than all, of the Equipment. The
purchase price will be Ten Percent (10 %) of each individual Lease Schedule
under the Master Lease.
Hardware Facility:
a) Purchase Option. If Lessee exercises the option to
purchase, then provided no Event of Default has occurred and is then continuing,
Lessee will at the expiration of the Lease term, renewal term or extension, as
the case may be, purchase all, but not less than all, of the Equipment. The
purchase price shall be the Equipment's then fair market value ("FMV") plus any
applicable sales or other transfer tax. FMV, as applied to a purchase option,
will be determined by Lessor based on a price a willing buyer would pay and a
willing seller would accept (neither buyer nor seller being compelled to act)
for the Equipment as installed and in use, giving due consideration to its
condition, utility, revenue-producing capability, and replacement costs and
shall not exceed 15% of the original cost of Equipment.
b) Renewal. If Lessee exercises the option to renew,
then provided no Event of Default has occurred and is then continuing, Lessee
will at the expiration of the Lease term renew the Lease with respect to all,
but not less than all, of the Equipment for a period of Three (3) months. Such
renewal will be upon the terms of the Lease and the applicable Lease Schedule
and the monthly rental amount will be the same as the contracted monthly payment
amount on the applicable Lease Schedule.
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c) Return. On the expiration of the Lease, or earlier
termination of the Lease, or on Lessee default if Lessor chooses, Lessee, at its
expense, freight prepaid with full original value declared and insured, shall
immediately return all, but not less than all, of the Equipment unencumbered to
Lessor in good repair, condition and working order, ordinary wear and tear
resulting from proper use thereof alone excepted, by properly packing it for
shipment and delivering it to any reasonable place designated by Lessor. Lessee
will also pay Lessor an amount equal to Five Percent (5 %) of the original
invoice amount of the Equipment specified in the applicable Lease Schedule as a
restocking fee.
d) Extension / Automatic Renewal. In the event Lessee
has not exercised one of the three above options within Five (5) days after the
expiration of the Lease, the Lease will automatically renew and be extended for
a period of Six (6) months. Payments will continue to be paid in advance and the
first payment due under the extension will be due no later than Ten (10) days
after the expiration of the Lease.
Condition Precedent to Funding: Prior to issuing any Purchase Orders or funding
any Lease Schedules, Lessor must be in receipt of written authorization from
Xxxxxx X. Xxxx to obtain a Personal Credit Bureau Report from one or more Credit
Reporting Agencies.
The terms and information set forth above are a part of the Master Lease
Agreement Number 4406, entered into by and between VenCore Solutions LLC
("Lessor") and the Lessee set forth above.
The undersigned representative of Lessee affirms that he or she has read and
understands this Exhibit A - 1 to Master Lease Agreement Number 4406 and is duly
authorized to execute this Exhibit A - 1 on behalf of the Lessee, and that, if
Lessee is a corporation, this Exhibit A - 1 is entered into with consent of
Lessee's Board of Directors and stockholders, if so required.
LESSOR: LESSEE:
VENCORE SOLUTIONS LLC QUINTEK TECHNOLOGIES, INC.
By: By:
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Name: Name: XXXXXX XXXXXX
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Title: Title: CHAIRMAN/CEO
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Date: Date:
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