Pinnacle Capital, LLC
0000 00xx Xx. X. Xxx. X 159 X. Xxxxxxx St. Ste. 300 11180 Xxx Xxxxxx Xxxxx Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Xxxxxx Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
Agreement Xx. 0000000
Date: February __, 2005
EQUIPMENT FINANCING AGREEMENT
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COMPLETE LEGAL NAME AND ADDRESS OF DEBTOR Billing Address: NAME AND ADDRESS OF EQUIPMENT SUPPLIER
("Debtor") ("Supplier")
HomeNet Communications, Inc. XX Xxx 0000
5252 North Edgewood Drive Provo, UT, 84603
Xxxxx, XX 00000 See Exhibit "A" attached hereto and made a part
CONTACT: Xxxxxx Xxxxx Xxxx hereof
TELEPHONE: (000) 000-0000
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EQUIPMENT DESCRIPTION (including quantity, make, model, year, serial numbers)
See Exhibit "A" attached hereto and made a part hereof
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EQUIPMENT LOCATION (if differs from legal address) 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxx, XX 00000
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NUMBER OF PAYMENT TIMING AMOUNT (plus tax INITIAL PAYMENT BALLOON ADVANCE
PAYMENTS X Monthly if X First PAYMENT Equipment: $41,127.00
(Includes any balloon) applicable) $1,426.55 Lien Search Fee: $
? ____________ X Last $1,426.55 Pre-Fund Fee: $
36 Months $1,426.55 ? Deposit $.00 Site Inspection Fee:$
? See Exhibit C X Doc Fee $250.00 $____________ Titling Fee: $
? See Exhibit C ? Other Sales Tax: $
Total Advance $41,127.00
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Under this Equipment Financing Agreement ("agreement") Creditor will finance the
above-described personal property (collectively and including replacements the
"Equipment" and individually an "Item") for Debtor under the terms set forth
below and on the reverse side.
1. SECURITY INTEREST. Debtor hereby grants Creditor a security interest under
the Uniform Commercial Code in the Equipment. The security interest secures
Debtor's performance of Debtor's obligations hereunder and under any other
agreement under which Debtor now or hereafter has obligations to Creditor.
Debtor shall insure that such security interest is and remains a sole first lien
security interest.
2. PAYMENTS. The payment amount shown above is based on the Total Advance.
Actual payments to repay Creditor's advance will be adjusted based on the actual
advance by Creditor as to the Equipment. If this transaction is not consummated,
any initial payment may be retained by Creditor as partial compensation for
Creditor's costs and expenses incurred. Any excess or deficiency between the
first payment and the payment amount as finally determined will be payable with
or credited to the second payment. The initial payment together with an interim
prorata payment for the number of days between Creditor's advance respecting the
Equipment and the due date of the initial payment will be due on a date selected
by Creditor following Debtor's execution of the Certificate of Acceptance for
the Equipment. Subsequent payments will be due on the same day of each period
set forth above thereafter, whether or not an invoice is rendered or received.
Any balloon payment will be due one payment period after the last level payment.
Other amounts due hereunder are payable upon Debtor's receipt of an invoice
therefor. Debtor will pay Creditor amounts due under this agreement at
Creditor's address shown above or as Creditor may otherwise notify Debtor.
Amounts to be applied to the last payment(s) will be applied in inverse order
until exhausted provided there has been no default under the agreement. If there
is a default, payments may be applied to Debtor's obligations as Creditor
chooses.
3. COMMITMENT PERIOD. If the Certificate of Acceptance has not been executed and
delivered to Creditor, Creditor may terminate its obligations to finance the
Equipment on notice to Debtor, (a) subsequent to 90 days from the agreement
date, (b) upon a material adverse change in Debtor's financial condition, (c) if
the actual advance would exceed the Total Advance by more than 10% or (d) if the
agreement is in default or upon occurrence of an event which with the giving of
notice and/or lapse of time would be a default.
4. FINANCING; NO OFFSET. THIS IS A FINANCING AGREEMENT ONLY. DEBTOR'S OBLIGATION
TO MAKE ALL PAYMENTS UNDER THIS AGREEMENT IS ABSOLUTE AND WILL NOT BE SUBJECT TO
ANY RIGHT OF PREPAYMENT, ABATEMENT, COUNTERCLAIM, RECOUPMENT, OFFSET OR DEFENSE.
DEBTOR'S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE MAKING OF ALL PAYMENTS.
5. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO SUPPLIER NOR ANY FINANCIAL
INTERMEDIARY NOR ANY AGENT OF EITHER IS AN AGENT OF CREDITOR, THAT NONE OF SUCH
PARTIES IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS AGREEMENT
AND THAT NO REPRESENTATION AS
TO
THE EQUIPMENT OR ANY OTHER MATTER BY ANY SUCH PARTY IS BINDING UPON CREDITOR
6. NO WARRANTIES. BECAUSE THIS AGREEMENT IS A FINANCING, CREDITOR MAKES NO
EXPRESS OR IMPLIED WARRANTIES AS TO THE EQUIPMENT. Debtor requests Creditor to
finance the Equipment for Debtor hereunder. Creditor's execution hereof by an
authorized officer indicates Creditor's acceptance of such offer. Debtor
authorizes Creditor to insert identification data as to the Equipment above.
Debtor warrants that Debtor will use the Equipment solely for commercial or
business purposes.
PINNACLE CAPITAL, LLC
Creditor HomeNet Communications, Inc.
LEGAL NAME OF DEBTOR
By: /s/ Xxxxxx Xxxxxxxx-Xxxxx By: /s/ Xxxxxx Xxxxx Xxxx Date: February 2005
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Title: CEO Xxxxxx Xxxxx Xxxx, CEO
GUARANTY
Each of us unconditionally guarantees and promises to make all of the payments
and perform all Debtor's obligations as specified in the above agreement. Each
of our liabilities is primary and joint and several and will not be affected by
any settlement, extension, renewal or modification of the agreement, by the
discharge or release of the Debtor's obligations or by the taking or release of
additional guarantors or security for the performance of the agreement. Each of
us waives any rights we may have to (a) presentment, demand, protest, notice of
protest, notice of dishonor, notice of default under the agreement and any other
notices related to this guaranty or the agreement and (b) the right to require
Creditor to proceed against Debtor or to pursue any other remedy in Creditor's
power. Each of us also waives any other rights and defenses available to a
guarantor by reason of applicable case or statutory law. Each of us agrees that
we are liable for Creditor's attorney's fees and costs in enforcing this
guaranty, whether or not suit is filed, and that the venue provided in the
agreement applies to this guaranty. Each of us acknowledges that this guaranty
inures to the benefit of Creditor's assigns.
/s/ Xxxxxx Xxxxx Xxxx Date: February 2005
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Xxxxxx Xxxxx Xxxx (NO TITLE)
TERMS CONTINUED ON REVERSE SIDE
7. LOCATION; INSPECTION; USE. Debtor will keep, or permanently garage and not
remove from such location for more than 30 days or from the United States for
any period, each Item in Debtor's possession and control at the Equipment
Location or such other location to which Creditor may consent in writing. Upon
request, Debtor will advise Creditor as to the exact location of an Item.
Creditor may inspect an Item during normal business hours, and Debtor will
ensure Creditor's access for such purpose. Each Item will be operated carefully
and properly in compliance with all applicable governmental, insurance and
manufacturer's warranty requirements and all manufacturers' instructions.
8. MAINTENANCE; ALTERATIONS. Debtor will maintain each Item in good condition
and repair and as specified in such requirements. Debtor will cause each Item of
a type generally covered by a service contract to be covered under a contract
providing sufficient coverage issued by a competent servicing entity. Debtor
will not make any alterations or additions to an Item which detracts from its
economic value or functional utility except as stated in the second preceding
sentence. Alterations or additions not readily removable or made to comply with
governmental requirements will be deemed accessions and will remain with the
Item.
9. LOSS AND DAMAGE;STIPULATED VALUE. In the event of loss, theft, destruction or
requisition of or damage to an Item ("Casualty Occurrence") Debtor will give
Creditor prompt notice thereof and will then repair the Item; provided, if the
Item is deemed by Creditor to be lost, stolen, destroyed or damaged beyond
repair or is requisitioned or suffers a constructive loss under an insurance
policy carried hereunder, Debtor will pay Creditor the "Stipulated Value" equal
to (a) any amounts due Creditor from Debtor at the time of the payment and (b)
the remaining payments as to the Item, including any balloon payment, with each
discounted to present value at 6% per annum from the date due to the date of
payment. Upon such payment, Creditor's security interest as to the Item shall
terminate. For these purposes capitalized amounts unrelated to the Equipment
will be allocated to each Item on a prorata cost basis.
10. TITLING; REGISTRATION. Debtor shall cause each Item subject to title
registration laws at all times to be titled and/or registered in such a manner
and jurisdiction as Creditor directs. Debtor will promptly notify Creditor of
and effect any necessary or advisable retitling and/or re-registration of an
Item in a different jurisdiction.
11. TAXES. Debtor will make all filings and pay all taxes and other governmental
assessments relative to the Equipment as required by law. Debtor will pay or
reimburse Creditor for any other taxes and other governmental assessments other
than Creditor's net income taxes related to the payments due under or otherwise
related to this agreement. Returns in connection with these latter matters will
be filed by Creditor or Debtor as Creditor specifies.
12. INSURANCE. Debtor will maintain all risk insurance on the Equipment for not
less than its full replacement value naming Creditor as Loss Payee. This
insurance must be in a form and with companies approved by Creditor, must name
Debtor as a named insured, must provide at least 10 days advance written notice
to Creditor of change or cancellation, must provide breach of warranty
protection, where relevant, and must provide that the coverage is "primary."
Insurance proceeds, at Creditor's option, will be applied to (a) the repair of
applicable Items, (b) payment of the Stipulated Value and/or (c) payment of
other obligations to Creditor. Any excess will belong to Debtor. Debtor appoints
Creditor as Debtor's attorney-in-fact to do all things necessary or advisable to
secure payments under any policy contemplated hereby on account of a Casualty
Occurrence. Debtor will cause Creditor to receive evidence reasonably requested
by Creditor of this insurance. If required by Creditor, Debtor will procure
liability insurance covering the Equipment protecting Creditor as an additional
insured with liability limits reasonably specified by Creditor.
13. CREDITOR'S PAYMENT. If Debtor fails to perform any obligation hereunder,
Creditor may, at Creditor's sole option, perform the obligation, and Debtor will
reimburse Creditor's related costs. Before Creditor purchases insurance because
Debtor has failed to comply with paragraph 12, Creditor will give Debtor notice
and an opportunity to obtain the required coverage. If Debtor does not do so and
Creditor places coverage, the charge for the replacement insurance Creditor
obtains, which will be billed with the installment payments, will include a fee
Creditor retains plus interest on Creditor's premium as well as the allocable
premium. Also, any insurance Creditor obtains will not provide any liability
coverage whatsoever, will insure Creditor only, would typically be more
expensive than coverage a business might obtain on its own and will not relieve
Debtor from Debtor's liability for the difference between the insurance proceeds
and Debtor's responsibility for the amount set forth in paragraph 9 if the
agreement must be paid off as to any Equipment after a casualty loss or cover
any equity Debtor may have. No further insurance charges will be imposed once
and for so long as Debtor complies with paragraph 12.
14. INDEMNITY. Debtor will indemnify, defend and hold harmless Creditor against
any liabilities, losses, claims, actions and expenses, including court costs and
legal expenses, incurred by Creditor relating to this agreement or the
Equipment, including claims of latent or other defects, strict liability claims,
environmental remediation claims and claims for patent, trademark or copyright
infringement. Each party will give the other notice of any covered event
promptly after learning thereof.
15. DEFAULT. This agreement will be in default if (a) Debtor fails to pay any
amount hereunder when due; (b) Debtor fails to perform any other obligation
hereunder or under any other agreement between Creditor and Debtor; (c) Debtor
dies or is declared legally incompetent, if an individual; (d) a petition is
filed by or against Debtor under the Bankruptcy Act or under any other law
providing relief for debtors; (e) Debtor makes an assignment for the benefit of
creditors, a receiver or trustee is appointed for Debtor, a proceeding
contemplating winding up of Debtor's affairs is instituted, Debtor ceases
business affairs or Debtor makes an abnormal transfer of a material portion of
Debtor's assets; (f) an event described in (c), (d) or (e) occurs as to a
guarantor of Debtor's obligations hereunder, or (g) there is a material
misrepresentation to Creditor by Debtor or a guarantor in connection with this
Agreement.
16. REMEDIES. If the agreement is in default, Creditor may, at its option, do
any one of more of the following: (a) declare due the Stipulated Value or such
lesser amount as is set by law; (b) use self-help and other lawful remedies to
take possession of any Items; (c) sell or otherwise dispose of any Items in a
manner which is commercially reasonable; (d) recover from Debtor all amounts
then due and owing hereunder less the net sales price (net of all Creditor's
costs and expenses of sale) of any Items Creditor has repossessed and sold; or
(3) utilize any other remedy available to Creditor under the Uniform Commercial
Code or otherwise at law or in equity. All remedies are cumulative and may be
exercised concurrently or separately from time to time. Debtor will also pay
Creditor all costs and expenses not offset against the proceeds of sale of any
Equipment incurred by Creditor in enforcing the agreement, including court costs
and attorneys' fees, including those incurred by using Creditor's salaried
employees and those prior to filing of an action, in connection with a dismissed
action or in connection with a bankruptcy proceeding. Any waiver by Creditor of
a provision of this lease must be in writing, and forbearance by Creditor will
not constitute a waiver. Post-default amounts will bear interest at 18% per
annum or at such lesser default rate as is set by law until paid.
17. ASSIGNMENT. Without the prior written consent of Creditor, Debtor will not
lease, transfer an interest in or allow a lien against any Item, except a lien
in an Item created by Creditor, or transfer any obligation under this agreement.
Debtor's obligations are not assignable by operation of law. All Creditor's
rights under this agreement and interest in the Equipment may be disposed of
without notice to Debtor. Debtor will acknowledge receipt of any notice of
assignment in writing and will pay any assigned amounts as directed in the
notice. If Creditor assigns this agreement or any interest herein, Debtor will
not assert against the assignee any claim or defense it may have against
Creditor, and Debtor will pursue any rights on account thereof solely against
Creditor personally. No assigneee will be obligated to perform any obligation of
Creditor under this agreement unless assumed by the assignee. Subject to the
foregoing, this agreement is for the benefit of, and binds, the heirs, legatees,
personal representatives, successors and assigns of the parties.
18. ADDITIONAL DOCUMENTS; DEBTOR REPRESENTATIONS. Debtor will obtain and deliver
to Creditor such documents, including real property waivers in form satisfactory
to Creditor from all persons claiming an interest in the real property on which
an Item is or is to be located as Creditor requests to protect its interest in
this agreement and the Equipment. Debtor authorizes Creditor to file financing
statements and appropriate related Uniform Commercial Code forms respecting the
Equipment and ratifies Creditor's authority to make any such filings previously
made. Debtor will reimburse Creditor for all Creditors' search, filing and
appraisal fees and other costs paid third parties in connection with this
agreement. Debtor will furnish Creditor such financial data or information
relative to this agreement or the Equipment as Creditor may from time to time
reasonably request. Debtor warrants that Debtor has title to the Equipment.
Debtor represents that this agreement has been duly authorized, executed and
delivered by Debtor and constitutes Debtor's valid and binding obligation
enforceable in accordance with its terms. Debtor also represents that this
agreement does not violate Debtor's organizational documents, any agreement by
which Debtor is bound or any law or obligation binding on Debtor, that Debtor's
name, state of formation, if an organization, and principal office location set
forth above are correct and that all financial and other information previously
or later provided to Creditor in connection with this agreement fairly
represents or will represent the matters covered. Debtor will give Creditor not
less than 30 days prior notice of a change in Debtor's name, state of formation,
principal office address or, if an individual, residence address.
19. LATE PAYMENT. If Debtor fails to pay an amount hereunder within 5 days of
when due, Debtor will pay Creditor (a) a 10% late charge, (b) amounts Creditor
pays others in connection with collection of the amount and (c) Creditor's
standard returned check charge, if relevant.
20. DEPOSIT. Any deposit Debtor furnishes in connection with this agreement will
not bear interest and may be applied by Creditor to any obligations of Debtor to
Creditor which are in default. When Debtor has satisfied all Debtor's
obligations hereunder, Creditor will return any remaining balance of the deposit
to Debtor.
21. GOVERNING LAW;VENUE. This agreement will be governed by the laws of
Washington. Venue for any related actions will be in an appropriate court in a
county where Creditor or its assignee has its principal office to which Debtor
consents or in another court selected by that party having jurisdiction. THE
PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
22. GENERAL. This agreement contains the entire agreement between Creditor and
Debtor concerning the financing of the Equipment and may be amended only by a
written agreement signed by the party to be charged. Notices hereunder must be
in writing and mailed with appropriate U.S. First Class Mail postage prepaid,
personally delivered or transmitted by facsimile to the party involved at its
respective address set forth above or at such other address or number as such
party may provide the other on notice. Notices to Debtor will be effective upon
deposit, delivery or transmittal and to Creditor upon receipt. Each party will
promptly notify the other of any change in address or facsimile number. Debtor
will give Creditor 30 days prior notice of a reorganization, name change or
change of principal office location. The singular includes the plural and the
words "Creditor" and "Debtor" includes their assignees. The liability of
co-Debtors is joint and several. Paragraph titles are not an aid in
interpretation.
/s/ WKR (initial here)
Pinnacle Capital, LLC Exhibit "A"
Debtor: HomeNet Communications, Inc. Agreement
#3001647
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Quantity:_________Equipment Description:
Dynavar Networking Corp. 000 Xxxxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000
1 NAT/FW ON ASP-INTEGRATED-MULTI
1 PWR-M101-M71-AC-R
SIN: QJ10131
1 FEB-M71-SVCS-BB
S/N: CF0327
1 M7i AND M10i ROURING ENGINE-256M
S/N:1000538496
1 PROMOTIONAL BUNDLE CONSISTING OF M7i
SIN: CE5883
1 JUNOS US DOMESTIC VERSION-BASE B
SIN:P010641-01
1 PE-4FE-TX
SIN: CC9878
2 CBL-PWR-IOAC-STR-US
It is expressly understood that this Exhibit "A" is an exhibit of, attached to
and made a part here of the above numbered agreement. Creditor and Debtor have
executed this Exhibit "A" to the above agreement as of the date of the
agreement.
By:/s/ Xxxxxx Xxxxx Xxxx
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Xxxxxx Xxxxx Xxxx, CEO
