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Exhibit 10.12 Equipment Lease Agreement
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement (this "Lease") is made as of the first
day of April, 2000, by and between XxxxxxXxxx.xxx International, Inc., a
Delaware corporation ("Lessor"), and The Player's Network, Inc., a Delaware
corporation ("Lessee"), collectively referred to herein as the "Parties" and
individually as a "Party."
R E C I T A L S
WHEREAS, Lessor owns the equipment ("Equipment") listed on the Equipment
Schedule attached hereto as Exhibit "A" and incorporated herein by reference
("Equipment Schedule"); and
WHEREAS, Lessor desires to lease the Equipment to Lessee according to
the terms described herein.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Lease and Purchase Option.
1.1 Lease. Lessor hereby leases the Equipment to Lessee, and Lessee
hereby leases the Equipment from Lessor, upon and subject to all of the
provisions herein.
1.2 Purchase Option. Provided no event of default has occurred and is
continuing, Lessor hereby grants to Lessee an option to purchase the Equipment.
Such option shall be exercised by Lessee by providing written notice thereof to
Lessor. The purchase price for the Equipment shall be the fair market value of
the Equipment on the date such option is exercised (the "Option Price"). In the
event that Lessee exercises this purchase option, Lessor shall, upon receipt of
the Option Price, transfer title to the Equipment by xxxx of sale in its "as is"
condition and without warranty except as to title. The xxxx of sale shall be
substantially in the form attached hereto as Exhibit B.
2. Term. The term of the Lease shall be one (1) year from the effective date
hereof.
3. Rent; Late Charges; Option Price.
3.1 Payment. During the Term, Lessee shall pay rent for the Lease at
such place as designated by Lessor in the amount of Two Thousand Dollars
($2,000.00) per month. Rent shall be payable on the 1st day of each month. If
any rent date shall fall due on a Saturday, Sunday or holiday, the rental
payment shall be made on the next business day. Lessee shall pay rent without
demand from Lessor. The Lease shall be a "net" lease and, therefore, Lessee
shall pay all taxes (other than federal, state or local franchise or income
taxes based on or measured by the net income to Lessor), fees or other charges
of any nature now or hereafter imposed against Lessee or Lessor during the Term
arising from any of the transactions contemplated pursuant to the Lease.
3.2 Late Charges. If any rent payment is not made within fifteen (15)
days of when due, such payment shall bear interest at the rate of eighteen
percent (18%) per annum until paid in full.
4. Taxes and Maintenance. Lessee shall be responsible for all taxes incurred in
connection with the Equipment. Lessee shall be free to conduct any maintenance
or repairs on the Equipment necessary in its
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discretion to keep the Equipment operating properly. Lessor shall have no
obligation or responsibility with respect to the maintenance or operation of the
Equipment under this Agreement.
5. Ownership, Security, and Default.
5.1 Ownership. Nothing with respect to the Lease shall transfer or
convey to Lessee any right, title or interest in or to the Equipment, except as
Lessee has set forth herein and Lessee represents and agrees that it shall hold
the Equipment subject and subordinate to the rights of Lessor.
5.2 Security. Lessor shall be responsible for the execution, delivery,
and filing of UCC-1 financing statements under the Uniform Commercial Code,
showing Lessor as secured party, Lessee as debtor, and providing notice of the
Lease.
5.3 Default. In the event that Lessee fails to pay any sum payable
hereunder within thirty (30) days after the date such payment is due, Lessor
shall then, and at any time thereafter, have the right to (i) proceed by court
action or other actions in law or in equity to enforce this Lease and recover
from Lessee any and all damages and expenses, together with interest thereon at
the rate of eighteen percent (18%) per annum, or the highest legal rate of
interest, whichever is lower, from the date such amounts are due until paid,
(ii) without notice or demand, accelerate the balance of the monthly rental
thereafter accruing under the Lease, which, together with all rent and other
amounts then due, shall become immediately due and payable as liquidated damages
and not as a penalty, (iii) to retake immediate possession of the Equipment
without any process of law and without notice and to sell, lease or otherwise
dispose of the Equipment, with the privilege of being the purchaser thereof, at
public or private sale, for cash or on credit and without notice except as may
be required by law, and/or (ii) terminate this Lease and the Lease upon written
notice to Lessee. No remedy shall be deemed exclusive or in lieu of any other
remedy available to Lessor at law or in equity.
6. Waiver. The waiver of either Party of any default in the performance of the
other Party of any covenant contained herein shall not be construed to be a
waiver of any preceding or subsequent default of the same or any other covenants
contained herein.
7. Attorneys' Fees. In the event either Party brings or commences a legal
proceeding to enforce any of the terms of this Lease, the prevailing Party in
such action shall have the right to recover reasonable attorneys' fees and costs
from the other Party to be fixed by the court if pursuant to a legal proceeding.
8. Insurance and Indemnification.
8.1 Insurance. Lessee shall maintain throughout the Term of this Lease
at its expense: (i) adequate public liability and property damage insurance and
standard fire and extended coverage insurance to cover the full replacement cost
of the Equipment. In the event of damage or destruction to the Equipment, the
proceeds of such insurance shall be available for the repair or replacement of
the Equipment.
8.2 Indemnification. During the Term of this Lease, each Party agrees to
indemnify, hold harmless and defend the other from all claims, actions,
liabilities, damages, expenses and judgments (including but not limited to
attorneys' fees, reasonable investigative and discovery costs and all other
sums) on account of such Party's breach of this Lease and any injury to persons,
loss of life or damage to property occurring with respect to the Equipment
arising out of such Party's negligent actions or negligent failure to act.
9. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing
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and shall be given (1) by Federal Express (or other established express delivery
service which maintains delivery records), (2) by hand delivery, or (3) by
postage prepaid certified or registered mail (return receipt requested), to the
Parties at the following addresses, or at such other address as the Parties may
designate by written notice in the manner aforesaid:
To Lessor: To Lessee:
XxxxxxXxxx.xxx International, Inc. The Player's Network, Inc.
00000 Xxxxx 000 Xxxx, Xxxxx 000 754 North, 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000 Xxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx Attention: Xxxxxx Xxxxxx
Such communications may also be given by facsimile transmission,
provided any such communication is concurrently given by one (1) of the three
(3) methods used above. Notices shall be deemed effective upon receipt, or upon
attempted delivery thereof if delivery is refused by the intended recipient or
if delivery is impossible because the intended recipient has failed to provide a
reasonable means for accomplishing delivery. The person and place to which
notices are given may be changed by a Party by giving written notice to the
other Party. Any required payments under this Lease shall be paid to Lessor at
the address set forth in this Section.
10. Severability. Each provision hereof shall be separate and independent and
breach of any such provision by Lessor shall not discharge or relieve Lessee
from the obligation to perform the same. If any provision hereof or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remaining provisions hereof, or the application of
such provisions to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the extent permitted by law.
11. Miscellaneous.
11.1 Entire Agreement. This Lease constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
and all other agreements relating to the subject matter hereof, either oral or
in writing, between the Parties and contains all the covenants and agreements
between the Parties with respect to the subject matter herein.
11.2 Successors and Assigns. All the rights and obligations of the
Parties under this Lease shall bind and the benefits shall inure to their heirs,
legal representatives, successors and assigns.
11.3 Counterparts. This Lease may be executed in counterparts, each of
which when executed and delivered shall be an original, but which together shall
constitute one and the same instrument.
11.4 Governing Law. This Lease shall be construed in accordance with the
laws of the State of Utah and the Parties agree that jurisdiction with respect
to any controversy regarding this Lease shall lie solely in the state or federal
courts within the State of Utah and the Parties consent to the exercise of
personal jurisdiction over the Parties and their officers by such courts.
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IN WITNESS WHEREOF, the Parties have executed this Lease as of the day
and year first above written.
"Lessor" "Lessee"
XXXXXXXXXX.XXX INTERNATIONAL, INC. THE PLAYER'S NETWORK, INC.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxx Xxxxxx
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Xxxxxxx Xxxxx Xxxxxx Xxxxxx
Executive Vice President President
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EXHIBIT A
EQUIPMENT SCHEDULE TO
LEASE DATED JUNE 1, 1998
BETWEEN REP, INC. AND BHS MARKETING L.L.C.
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EXHIBIT B
XXXX OF SALE
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