Exhibit 10.5
SUBLEASE AND EQUIPMENT
LEASE AGREEMENT
BY AND BETWEEN
ZENGINE, INC.
AND
MIAMI COMPUTER SUPPLY CORPORATION
DATED AS OF: OCTOBER 1, 1999
TABLE OF CONTENTS
PAGE
Recitals .........................................................................................1
1. Grant .......................................................................................1
2. Provisions Constituting Sublease ............................................................1
3. Provisions Constituting Equipment Lease .....................................................2
4. Term ........................................................................................3
5. Rent ........................................................................................3
6. Use .........................................................................................3
7. Condition of the Premises and Equipment .....................................................3
8. Title; Relocation or Sublease; Assignment ...................................................4
9. Representations and Warranties ..............................................................5
10. Indemnity ..................................................................................6
11. Risk of Loss ...............................................................................7
12. Default; Remedies; Mitigation ..............................................................7
13. Additional Provisions ......................................................................9
14. Definitions ................................................................................11
Signatures........................................................................................13
SCHEDULES
Schedule A -- Master Agreement
Schedule B -- Description of the Premises
Schedule C -- Description of the Equipment
SUBLEASE AND EQUIPMENT LEASE AGREEMENT
This SUBLEASE AND EQUIPMENT LEASE AGREEMENT is effective as of October
1, 1999 ("Agreement") by and between Zengine, Inc., a Delaware corporation
("Sublessee"), and Miami Computer Supply Corporation, an Ohio corporation, the
successor in interest to TBS Printware Corporation, a California corporation
("Sublessor"), individually a "party," and collectively, the "parties."
RECITALS
WHEREAS, TBS Printware Corporation entered into a lease agreement (the
"Master Agreement") dated February 7, 1996, with SSMRT, Pacific Business Center
(1), Inc. ("Landlord"), a copy of which is set forth in SCHEDULE A, attached
hereto and made a part hereof, for certain real estate located at 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (the "Leased Property") as defined in the
Master Agreement;
WHEREAS, TBS Printware Corporation merged with and into Miami Computer
Supply Corporation effective January 3, 2000;
WHEREAS, Sublessor desires to sublease to Sublessee and Sublessee
desires to sublease from Sublessor certain office and warehouse space within the
Leased Property as set forth in SCHEDULE B, attached hereto and made a part
thereof (the "Premises");
WHEREAS, Sublessor desires to lease the equipment owned by Sublessor
which is listed on SCHEDULE C, attached hereto and made a part hereof (the
"Equipment").
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their sucessors and assigns, hereby agree as follows:
1. GRANT.
1.1 Sublessor hereby subleases the Premises to Sublessee, subject to
the terms and conditions of this Agreement.
1.2 Sublessor hereby leases the Equipment to Sublessee, subject to the
terms and conditions of this Agreement.
2. PROVISIONS CONSTITUTING SUBLEASE.
2.1 This Agreement is subject to all of the terms and conditions of the
Master Agreement to the extent applicable thereto, a copy of which is attached
as SCHEDULE A. In the event of any inconsistencies between this Sublease
Agreement and the Master Agreement, the terms of the Master Agreement will
control.
Sublease and Equipment Lease Agreement
Page 2
2.2 Sublessee shall assume and perform all monetary and nonmonetary
obligations of the Sublessor, as Sublessee in the Master Agreement to the extent
the terms and conditions are applicable to the Premises, and to pay rent as set
forth in Section 5.1 hereof. Sublessee specifically acknowledges that the Master
Agreement is a triple net lease and therefore the monetary obligations it is
assuming include, but are not limited to, its proportionate share of all
property taxes on the Premises, applicable insurance, utilities, assessments and
maintenance of the premises. Sublessee acknowledges it has reviewed the terms of
the Master Agreement and agrees to pay these monetary obligations.
2.3 Neither Sublessor nor Sublessee shall commit or permit to be
committed on the Premises any act or omission that shall violate any term or
condition of the Master Agreement or breach the terms of the Master Agreement or
cause the Master Agreement to be terminated.
3. PROVISIONS CONSTITUTING EQUIPMENT LEASE.
3.1 This Agreement constitutes a net equipment lease and therefore
Sublessee's monetary obligations may include, in addition to the Equipment Rent,
property taxes, insurance, assessments and maintenance. Sublessee's obligation
to pay Equipment Rent and all other amounts due hereunder is absolute and
unconditional and is not subject to any abatement, reduction, set-off, defense,
counterclaim, interruption, deferment or recoupment for any reason whatsoever.
3.2 Sublessee will pay when due or reimburse Sublessor for all taxes,
fees or any other charges (together with any related interest or penalties not
arising from the willful misconduct or gross negligence of Sublessor) accrued
for or arising during the Term of this Agreement against Sublessor, Sublessee or
the Equipment by any governmental authority (except only Federal, state, local
and franchise taxes on the capital or the net income of Sublessor). Sublessor
will file all personal property tax returns for the Equipment and pay all such
property taxes due. Sublessee will reimburse Sublessor for all such property
taxes within thirty (30) days of receipt of an invoice.
3.3 Sublessee will maintain the Equipment in good operating order and
appearance, protect the Equipment from material deterioration, other than normal
wear and tear, and will not use the Equipment for any purpose other than that
for which it was designed. If commercially available and considered common
business practice for each item of Equipment, Sublessee will maintain in force a
standard maintenance contract with the manufacturer of the Equipment, or another
party acceptable to Sublessor, and will provide Sublessor with a complete copy
of that contract.
3.4 Upon reasonable advance notice, Sublessee, during reasonable
business hours and subject to Sublessee's security requirements, will make the
Equipment and its related log and maintenance records available to Sublessor for
inspection, which inspection shall not interfere with Sublessee's business
operations.
Sublease and Equipment Lease Agreement
Page 3
4. TERM.
4.1 The term of this Agreement shall commence on the date hereof
and shall terminate on May 1, 2001 (the "Term").
5. RENT.
5.1 Sublessee shall pay to Sublessor rent ("Premises Rent") for the
sublease of the Premises in the amount of $10,416.67 per month (plus its
pro-rata share of the other charges as required by the Master Agreement) (in
lawful money of the United States) in advance on the first day of each calendar
month during the Term of this Agreement. If any Premises Rent payment is not
made by the date due, Sublessee will pay a Late Charge on the overdue amount. A
Late Charge shall mean five percent (5%) of the payment due.
5.2 Sublessee shall pay to the Sublessor rent ("Equipment Rent") in the
amount of $2,083.33 per month (plus its pro-rata share of the other charges as
may be required by Section 3.1) (in lawful money of the United States) in
advance of the first day of each calendar month during the Term of this
Agreement. If any Equipment Rent is not paid by the due date, Sublessee will pay
a Late Charge on the overdue amount.
6. USE.
6.1 The Premises and Equipment shall be used only for the purpose of
operating an e-commerce services business and for no other purpose without the
prior express and written consent of the Sublessor.
7. CONDITION OF THE PREMISES AND EQUIPMENT.
7.1 Sublessee accepts the Premises and Equipment in its condition as of
the date hereof. Upon termination (by expiration or otherwise) of this
Agreement, Sublessee shall, pursuant to Sublessor's instructions and at
Sublessee's full expense (including, without limitation, expenses of
transportation and in transit insurance), return the Equipment to Sublessor in
the same operating order, repair, condition and appearance as when received,
less normal depreciation and wear and tear. Sublessee shall return the Equipment
to Sublessor at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 or at such other
address within the continental United States as directed by Sublessor, provided,
however, that Sublessee's expense shall be limited to the cost of returning the
equipment to Sublessor's address as set forth herein.
7.2 Upon request, Sublessee will xxxx the Equipment indicating
Sublessor's interest with labels provided by Sublessor. Sublessee will keep all
Equipment free from any other marking or labeling which might be interpreted as
a claim of ownership.
Sublease and Equipment Lease Agreement
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8. TITLE; RELOCATION OR SUBLEASE; AND ASSIGNMENT.
8.1 Sublessee holds the Equipment subject and subordinate to the rights
of the Owner (if other than the Sublessor), the Sublessor and any Secured Party.
Sublessee authorizes Sublessor, as Sublessee's agent, and at Sublessor's
expense, to prepare, execute and file in Sublessee's name one or more
precautionary Uniform Commercial Code financing statements showing the interest
of the Owner, Sublessor, and any Assignee or Secured Party in the Equipment.
Sublessee will, at its expense, keep the Equipment free and clear from any liens
or encumbrances of any kind (except any caused by Sublessor) and will indemnify
and hold the Owner (if other than the Sublessor), the Sublessor, any Assignee
and Secured Party harmless from and against any loss caused by Sublessee's
failure to do so, except where such failure is caused by Sublessor.
8.2 Upon prior written notice, Sublessee may relocate Equipment to any
location within the continental United States provided: (i) Sublessee notifies
the Sublessor of such relocation and the new address at which the Equipment will
be located in writing; (ii) the Equipment will not be used by an entity exempt
from federal income tax, and (iii) all additional costs (including any
administrative fees, additional taxes and insurance coverage) are reconciled and
promptly paid by Sublessee.
8.3 Sublessee may sublease the Equipment upon the consent of the
Sublessor and any Secured Party, in their sole discretion, and any such consent
to sublease will be conditioned upon the following: (i) Sublessee meets the
relocation requirements set out in Section 9.2, above, (ii) Sublessee assigns
its rights in the sublease to Sublessor and any Secured Party as additional
collateral and security, (iii) Sublessee's obligation to maintain and insure the
Equipment is not altered, (iv) all financing statements required to continue any
Secured Party's prior perfected security interest are filed, and (v) Sublessee
executes sublease documents acceptable to Sublessor.
8.4 No relocation or sublease will relieve Sublessee from any of its
obligations under this Agreement.
8.5 The terms and conditions of this Agreement permit Sublessor to sell
and/or assign or transfer its interest or grant a security interest in each item
of Equipment to a Secured Party or Assignee. In that event, the term "Sublessor"
will mean the Assignee and any Secured Party. However, any assignment, sale, or
other transfer by Sublessor will not relieve Sublessor of its obligations to
Sublessee and will not materially change Sublessee's duties or materially
increase the burdens or risks imposed on Sublessee. The Sublessee consents to
and will acknowledge such assignments in a written notice given to Sublessor.
Sublessee also agrees that:
(a) Upon default by the Sublessor or otherwise as set forth in
Sublessor's agreement with the Secured Party, the Secured Party will be entitled
to exercise all of Sublessor's rights, but will not be obligated to perform any
of the obligations of Sublessor. The Secured Party will not disturb Sublessee's
quiet and peaceful possession and unrestricted use of the
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Equipment so long as Sublessee is not in default and the Secured Party continues
to receive all Equipment Rent payable under this Agreement;
(b) Sublessee will pay all Equipment Rent and all other
amounts payable to the Secured Party, despite any defense or claim which it has
against Sublessor. Sublessee reserves its right to have recourse directly
against Sublessor for any defense or claim; and
(c) Subject to and without impairment of Sublessee's leasehold
rights in the Equipment, Sublessee holds the Equipment for the Secured Party to
the extent of the Secured Party's rights in the Equipment.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Sublessee hereby represents and warrants to Sublessor:
(a) The Sublessee is a corporation duly organized and validly
existing in good standing under the laws of Delaware, is duly qualified to do
business in each jurisdiction (including the jurisdiction where the Premises and
the Equipment are located) where its ownership or lease of property or the
conduct of its business requires such qualification, except for where such lack
of qualification would not have a material adverse effect on the Sublessee's
business, and has full corporate power and authority to hold property under this
Agreement and to enter into and perform its obligations under this Agreement.
(b) The execution and delivery by the Sublessee of this
Agreement and its performance thereunder have been duly authorized by all
necessary corporate action on the part of the Sublessee, and this Agreement is
not inconsistent with the Sublessee's Certificate of Incorporation or Bylaws,
does not contravene any law or governmental rule, regulation or order applicable
to it, does not and will not contravene any provision of, or constitute a
default under, any indenture, mortgage, contract or other instrument to which it
is a party or by which it is bound, and this Agreement constitutes the legal,
valid and binding agreement of the Sublessee, enforceable against Sublessee in
accordance with its terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and rules of law
concerning equitable remedies.
(c) The Equipment is personal property and when subjected to
use by the Sublessee will not be or become fixtures under applicable law.
9.2 Sublessor hereby represents and warrants and covenants to
Sublessee:
(a) The Sublessor is a corporation duly organized and validly
existing in good standing under the laws of California, is duly qualified to do
business in each jurisdiction (including the jurisdiction where the Premises and
Equipment are located) where its ownership or lease of property or the conduct
of its business requires such qualification, except for where such lack of
qualification would not have a material adverse effect on the Sublessor's
business,
Sublease and Equipment Lease Agreement
Page 6
and has full corporate power and authority to hold property under this Agreement
and to enter into and perform its obligations under this Agreement.
(b) The execution and delivery by the Sublessor of this
Agreement and its performance thereunder have been duly authorized by all
necessary corporate action on the part of the Sublessor, and this Agreement is
not inconsistent with the Sublessor's Articles of Incorporation or Bylaws, does
not contravene any law or governmental rule, regulation or order applicable to
it, does not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument to which it is a
party or by which it is bound, and this Agreement constitutes legal, valid and
binding agreement of the Sublessor, enforceable against Sublessor in accordance
with its terms, subject to the effect of applicable bankruptcy and other similar
laws affecting the rights of creditors generally and rules of law concerning
equitable remedies.
(c) The Equipment is personal property and when subjected to
use by the Sublessee will not be or become fixtures under applicable law.
(d) Sublessor warrants to Sublessee that, so long as Sublessee
is not in default, Sublessor will not disturb Sublessee's quiet and peaceful
possession, and unrestricted use of the Premises and the Equipment.
(e) To the extent permitted by the manufacturer, Sublessor
assigns to Sublessee during the Term of this Agreement any manufacturer's
warranties for the Equipment. SUBLESSOR MAKES NO OTHER WARRANTY, WITH RESPECT TO
THE EQUIPMENT, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR A
PARTICULAR PURPOSE. Sublessor is not responsible for any liability, claim, loss,
damage or expense of any kind (including strict liability in tort) caused by the
Equipment except for any loss or damage finally determined by a court of
competent jurisdiction to have been directly caused by the misconduct or
negligence of Sublessor. In no event shall Sublessor responsible for special,
incidental, consequential or punitive damages.
10. INDEMNITY.
10.1 With regard to bodily injury and property damage liability only,
Sublessee will indemnify and hold Sublessor, any Assignee and any Secured Party
harmless from and against any and all claims, costs, expenses, damages and
liabilities, including reasonable attorneys' fees, arising out of the ownership
(for strict liability in tort only), selection, possession, leasing, operation,
control, use, maintenance, delivery, return or other disposition of the
Equipment during the Term of this Agreement. However, Sublessee is not
responsible to a party indemnified hereunder for any claims, costs, expenses,
damages and liabilities occasioned by the misconduct or negligence of such
indemnified party. Sublessor agrees to carry bodily injury and property damage
liability insurance during the Term of this Agreement in amounts and against
risks customarily insured against by the Sublessor on equipment owned by it. Any
amounts
Sublease and Equipment Lease Agreement
Page 7
received by Sublessor under the insurance will be credited against Sublessee's
obligations under this Section.
11. RISK OF LOSS.
11.1 Effective upon delivery and until the Equipment is returned
pursuant to Section 7.1 hereof, Sublessor shall have responsibility for all
risks of physical damage to or loss or destruction of the Equipment. Sublessor
will carry casualty insurance for each item of Equipment in an amount not less
than the Casualty Value. All policies for such insurance will name the Sublessor
and any Secured Party as additional insureds and as loss payees, and will
provide for at least thirty (30) days prior written notice to the Sublessor of
cancellation or expiration, and will insure Sublessor's interests regardless of
any breach or violation by Sublessee of any representation, warranty or
condition contained in such policies and will be primary without right to
contribution from any insurance effected by Sublessor. Upon the execution of
this Agreement, the Sublessee will furnish appropriate evidence of such
insurance acceptable to Sublessor.
11.2 Sublessee will promptly repair any damaged item of Equipment
unless such Equipment has suffered a Casualty Loss. Within fifteen (15) days of
a Casualty Loss, Sublessee will provide written notice of that loss to Sublessor
and Sublessee will, at Sublessee's option, either (a) replace the item of
Equipment with Like Equipment and marketable title to the Like Equipment will
automatically vest in Sublessor, or (b) pay the Casualty Value and after that
payment and the payment of all other amounts due and owing with respect to that
item of Equipment, Sublessee's obligation to pay further Equipment Rent for that
item of Equipment will cease.
12. DEFAULT; REMEDIES; MITIGATION.
12.1 The occurrence of any one or more of the following Events of
Default constitutes a default under this Agreement:
(a) Sublessee's failure to pay the Premises Rent or the
Equipment Rent or other amounts payable by Sublessee when due if that failure
continues for five (5) business days after written notice; or
(b) Sublessee's failure to perform any other term or condition
of this Agreement or the material inaccuracy of any representation or warranty
made by the Sublessee in this Agreement or in any document or certificate
furnished to the Sublessor hereunder if that failure or inaccuracy continues for
ten (10) business days after written notice; or
(c) An assignment by Sublessee for the benefit of its
creditors, the failure by Sublessee to pay its debts when due, the insolvency of
Sublessee, the filing by Sublessee or the filing against Sublessee of any
petition under any bankruptcy or insolvency law or for the appointment of a
trustee or other officer with similar powers, the adjudication of Sublessee as
Sublease and Equipment Lease Agreement
Page 8
insolvent, the liquidation of Sublessee, or the taking of any action for the
purpose of the foregoing which, in the case of an involuntary petition or
action, remains unstayed and undismissed for at least sixty (60) days.
12.2 Upon the occurrence of any of the above Events of Default,
Sublessor, at its option, may:
(a) enforce Sublessee's performance of the provisions of
this Agreement by appropriate court action in law or in equity;
(b) recover from Sublessee any damages and or expenses,
including Default Costs;
(c) if a default in the payment of Equipment Rent, with notice
and demand, recover all sums due and accelerate and recover the present value of
the remaining payment stream of all Equipment Rent due hereunder (discounted at
the same rate of interest at which Equipment was discounted with a Secured Party
plus any prepayment fees charged to Sublessor by the Secured Party or, if there
is no Secured Party, then discounted at 6%) together with all Equipment Rent and
other amounts currently, due as liquidated damages and not as a penalty;
(d) with reasonable prior notice and pursuant to the process
of law and in compliance with Sublessee's security requirements, Sublessor may
enter on Sublessee's premises to remove and repossess the Equipment without
being liable to Sublessee for damages due to the repossession except those
resulting from Sublessor's, its Assignees', agents' or representatives' gross
negligence or willful misconduct; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Sublessor's discretion and to the extent
permitted by law, are cumulative and may be exercised successively or
concurrently.
12.3 Upon return of the Equipment pursuant to the terms of Section
12.2, Sublessor will use its best efforts in accordance with its normal business
procedures (and without obligation to give any priority to such Equipment) to
mitigate Sublessor's damages as described below. EXCEPT AS SET FORTH IN THIS
SECTION, SUBLESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE SUBLESSOR TO MITIGATE ITS DAMAGES OR
MODIFY ANY OF SUBLESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Sublessor may sell,
lease or otherwise dispose of all or any part of the Equipment at a public or
private sale for cash or credit with the privilege of purchasing the Equipment.
The proceeds from any sale, lease or other disposition of the Equipment are
defined as either:
(a) if sold or otherwise disposed of, the cash proceeds less
the Fair Market Value of the Equipment at the expiration of the Term less the
Default Costs; or
Sublease and Equipment Lease Agreement
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(b) if leased, the present value (discounted at 3 percent (3%)
over the interest rate of U.S. Treasury Notes of comparable maturity to the term
of the re-lease) of the rentals for a term not to exceed the Term, less the
Default Costs.
Any proceeds will be applied against liquidated damages and any other
sums due to Sublessor from Sublessee. However, Sublessee is liable to Sublessor
for, and Sublessor may recover, the amount by which the proceeds are less than
the liquidated damages and other sums due to Sublessor from Sublessee.
13. ADDITIONAL PROVISIONS.
13.1 Sublessee will notify Sublessor of any proposed Merger at least
twenty (20) days prior to the closing date thereof. Sublessor may, in its
discretion, either (i) consent to the assignment of this Agreement to the
successor entity (which consent shall not be unreasonably withheld, conditioned
or delayed), or (ii) terminate this Agreement. If Sublessor elects to consent to
the assignment, Sublessee and its successor will sign the assignment
documentation provided by Sublessor. If Sublessor elects to terminate this
Agreement, then Sublessee will pay Sublessor all amounts then due and owing and
a termination fee equal to the present value (discounted at 6%) of the remaining
Premises Rent and Equipment Rent for the balance of the Term, and will return
the Equipment in accordance with Section 7.2.
13.2 This Agreement supersedes all other oral or written agreements or
understandings between the parties concerning the sublease of the Premises and
the lease of the Equipment. Any amendment of this Agreement, may only be
accomplished by a writing signed by the party against whom the amendment is
sought to be enforced.
13.3 No action taken by Sublessor or Sublessor will be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Agreement. The waiver by Sublessor or Sublessee of a breach of
any provision of this Agreement will not operate or be construed as a waiver of
any subsequent breach.
13.4 This Agreement is binding upon, and inures to the benefit of the
parties hereto and their permitted successors and assigns. Sublessee May Not
Assign Its Rights Or Obligations, Except As Provided In Section 13.1. Nothing in
this Agreement is intended to benefit any person not a party to this Agreement.
13.5 All agreements, obligations, representations and warranties
contained in this Agreement, or in any document delivered in connection
herewith, are for the benefit of Sublessor and any Assignee or Secured Party and
survive the execution, delivery, expiration or termination of this Agreement.
13.6 Any notice, request or other communication to either party by the
other will be given in writing and deemed received upon the earlier of (i)
actual receipt, or (ii) three (3) days
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after mailing if mailed, postage prepaid by regular or airmail, or (iii) one (1)
day after it is sent by nationally recognized overnight courier, or (4) on the
same day as sent via facsimile transmission, provided the original is sent by
personal delivery or mail by the sending party, at the following addresses.
If to Sublessor:
Miami Computer Supply Corporation (successor in interest to
TBS Printware Corporation)
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Vice President
If to Sublessee:
Zengine, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, President
or at such other address as the parties may, by notice set forth above, provide.
13.7 This Agreement has been made, executed and delivered in the State
of California and will be governed and construed for all purposes in accordance
with the laws of the State of California without giving effect to conflict of
law provisions. No rights or remedies referred to in Article 2a of the Uniform
Commercial Code will be conferred on Sublessee unless expressly granted in this
Agreement.
13.8 If any one or more of the provisions of this Agreement is for any
reason held invalid, illegal or unenforceable, the remaining provisions of this
Agreement will be unimpaired, and the invalid, illegal or unenforceable
provision replaced by a mutually acceptable valid legal and enforceable
provision that is closest to the original intention of the parties.
13.9 This Agreement may be executed in any number of counterparts, each
of which will be deemed an original, but all such counterparts together
constitute one and the same instrument.
13.10 Sublessee will obtain no title to Licensed Products which will at
all times remain the property of the owner of the Licensed Products. A license
from the owner may be required and it is Sublessee's responsibility to obtain
any required license before the use of the Licensed Products. Sublessee agrees
to treat the Licensed Products as confidential information of the owner, to
observe all copyright restrictions, and not to reproduce or sell the Licensed
Products, except as may be permitted by the applicable license agreement.
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13.11 Each of the parties may communicate with the other by electronic
means under mutually agreeable terms.
13.12 Sublessee agrees to provide Sublessor with a Landlord/Mortgagee
Waiver with respect to the Premises and/or the Equipment. Such waiver shall be
in a form reasonably satisfactory to Sublessor.
13.13 Sublessee hereby agrees that Sublessor shall not, by virtue of
its entering into this Agreement, be required to remit any payments to any
manufacturer or other third party until Sublessee accepts the Equipment subject
to this Agreement.
14. DEFINITIONS.
14.1 ASSIGNEE - means an entity to whom Sublessor has sold or assigned
its rights as owner and Sublessor of Equipment.
14.2 CASUALTY LOSS - means the irreparable loss or destruction of
Equipment.
14.3 CASUALTY VALUE - means the greater of the aggregate Equipment Rent
remaining to be paid for the balance of the Equipment lease Term or the Fair
Market Value of the Equipment immediately prior to the Casualty Loss.
14.4 COMMENCEMENT DATE - means October 1, 1999.
14.5 DEFAULT COSTS - means reasonable attorney's fees and remarketing
costs resulting from a Sublessee default or Sublessor's enforcement of its
remedies.
14.6 EQUIPMENT - means the property described on SCHEDULE B hereto and
any replacement for that property required or permitted by this Agreement.
14.7 EVENT OF DEFAULT - means the events described in Subsection 12.1.
14.8 FAIR MARKET VALUE - means the aggregate amount which would be
obtainable in an arm's-length transaction between an informed and willing
buyer/user and an informed and willing seller under no compulsion to sell.
14.9 TERM - means the period of time beginning on the Commencement Date
until May 1, 2001.
14.10 LATE CHARGE - is defined in Subsection 5.1.
14.11 LICENSED PRODUCTS - means any software or other licensed products
attached to the Equipment.
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14.12 LIKE EQUIPMENT - means replacement Equipment which is lien free
and of the same model, type, configuration and manufacture as Equipment.
14.13 MERGER - means any consolidation or merger of the Sublessee with
or into any other corporation or entity, any sale or conveyance of all or
substantially all of the assets or stock of the Sublessee by or to any other
person or entity in which Sublessee is not the surviving entity.
14.14 OWNER - means the owner of Equipment.
14.15 SECURED PARTY - means an entity to whom Sublessor has granted a
security interest (for the purpose of securing a loan).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written on the date written below.
ZENGINE, INC. MIAMI COMPUTER SUPPLY CORPORATION,
THE SUCCESSOR IN INTEREST TO
TBS PRINTWARE CORPORATION
as Sublessee as Sublessor
By:/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
---------------------- --------------------------
Title: President and CEO Title: Chief Executive Officer
---------------------- --------------------------
Date: February 29, 2000 Date: February 29, 2000
SCHEDULE A
MASTER AGREEMENT
SCHEDULE B
DESCRIPTION OF THE PREMISES
SUBJECT TO THE SUBLEASE
SCHEDULE C
DESCRIPTION OF THE EQUIPMENT
