EQUIPMENT LEASE AGREEMENT
Exhibit 10.2
THIS AGREEMENT (the “Agreement”) is made and entered into by and between
XXX.XXXXXXXXXXXX.XXX,LLC, a Texas Based Company (“Lessor”), and XXXXXXXXX.XXX
__________________, a ___ Delaware Corporation _______________ (“Lessee” and collectively with
Lessor, the “Parties”), as of December 1, 2006.
1. EQUIPMENT LEASED. Lessor hereby leases to Lessee, and Lessee leases from Lessor,
the property (hereinafter referred to as the “Equipment”), set forth in Exhibit A, which is
attached hereto and made a part hereof. Exhibit A may be modified from time to time upon the
separate written agreement of the Parties.
2. TERM AND RENT. The term of this Agreement (the “Lease Term”) shall commence on the
date first above written and, subject to any right to terminate the Agreement herein, shall remain
in force for three years from that date; provided, however, that Lessor may terminate this
Agreement at any time by giving prior notice to Lessee, not less than three (3) days before the
date of such termination. Unless a different pay period is subsequently agreed to by the Parties,
rent in the amount of Four Thousand, Seventy Eight and 39/100 Dollars ($4,078.39) shall be paid by
Lessee to Lessor on the first day of each month during the Lease Term.
3. TITLE. This Agreement creates a lease only of the Equipment and, except as
otherwise stated in Section 6 below, nothing contained herein or the payment of rent hereunder
shall enable Lessee to acquire any right, title, or other interest in or to the Equipment other
than that of a lessee. Lessee will not (i) subject the Equipment to any claims, liens or
encumbrances, (ii) sell, sublet or lend the Equipment, or (iii) permit the Equipment to be used by
anyone other than Lessee and its employees and agents.
4. TAXES AND OTHER CHARGES. Unless subsequently agreed to otherwise by the Parties:
| (a) | Lessee shall pay and/or be responsible for all sales and use taxes imposed on the possession, use, or operation of the Equipment during the term of this Agreement. | ||
| (b) | Lessee assumes all responsibility and shall pay the cost and expense for all licensing, registrations, permits, and such other certificates as may be required for the lawful operation of the Equipment during the term of this Agreement. | ||
| (c) | Lessee shall observe all safety rules and other requirements of regulatory bodies having jurisdiction and shall pay all fines assessed. | ||
| (d) | Lessor may pay any tax, licensing, registration, or permit fee, fine, or other charge, whether levied, assessed, charged, or imposed against Lessor or the Lessee. If such payment is made by Lessor, Lessee shall reimburse Lessor. Lessor shall also have the right of offset in the event Lessor owes any monies to Lessee. |
1
5. LOCATION OF EQUIPMENT. The Equipment shall not be delivered to Lessee during the
Lease Term, but shall remain at Lessor’s place of business or other location as determined by the
Lessor.
6. PURCHASE OPTION. At the end of the Lease Term, as further consideration for the
payment of rent by the Lessee, the Lessee shall have the right, but not the obligation, to purchase
all of the Equipment for the amount of One Dollar ($1.00) (the “Purchase Option”). Lessee shall
notify Lessor no later than thirty (30) days prior to the end of the Lease Term of its intention to
exercise the Purchase Option. If Lessee fails to provide such notice, the Purchase Option shall
expire thirty (30) days prior to the end of the Lease Term.
7. MAINTENANCE AND REPAIR. Lessee shall purchase and pay all operating expenses
necessary for the operation of the Equipment, and at Lessee’s sole cost and expense keep the
Equipment in good repair, condition, and operating order. In the event Lessor pays any such costs,
Lessor shall invoice Lessee for such costs for payment. Lessor shall have the right of offset in
the event Lessor owes any monies to Lessee. At the end of the Lease Term, unless Lessee exercises
the Purchase Option, Lessee shall return the Equipment, if necessary, to Lessor at Lessor’s place
of business in operating order and in the same condition and state of repair as it was on the date
of this Agreement, ordinary wear and tear excepted.
8. LOSS, DAMAGE AND INSURANCE. As between the Parties, Lessee accepts all risks of
loss and damage to the Equipment (“Loss”) from the shipment of the Equipment, if applicable, to
Lessee until returned to Lessor. Lessee Must notify Lessor immediately if there is any Loss and
Lessor will demand that Lessee either (a) repair or replace the Equipment or (b) pay Lessor the
“Stipulated Loss Value” which is the sum of (i) all Rent and other amounts due, and currently owed
to Lessor under the Lease, including unpaid taxes, (ii) all future Rent payments that would accrue
over the remaining Lease Term plus Lessor’s estimated value of the residual interest of all of the
Equipment at the end of the Lease Term, such sum to be discounted to present value at a discount
rate equal to the Federal Reserve Bank Discount Rate in effect at the date of this Agreement and
(iii) any costs and expenses incurred as a result of this event. For the Lease Term set forth
above, Lessee will maintain property casualty insurance in an amount equal to the replacement value
of the Equipment naming Lessor as loss payee and public liability and third party property damage
insurance naming Lessor as an additional insured. At Lessor’s request, Lessee will deliver the
policies or certificates of insurance to Lessor. If Lessee does not give Lessor evidence of
insurance we may obtain such insurance and charge Lessee for the cost. The foregoing policies shall
provide that it may not be cancelled or materially altered without at least 30 days’ prior written
notice to Lessor.
9. DEFAULT. Each of the following is considered a default (“Default”) under this
Agreement: (i) if Lessee fails to perform any of the obligations, terms or conditions of this
Agreement including payment of rent when due, (ii) if Lessee becomes insolvent or enters into (or
has entered against Lessee) bankruptcy, receivership, reorganization, dissolution, liquidation or
other similar proceeding, (iii) if Lessee makes an attempt to sell or convert the Equipment, (iv)
or the Equipment be encumbered in any way. In the event of a Default, Lessor shall have the right
to exercise the following nonexclusive remedies:
2
| (a) | To require Lessee to pay to Lessor a sum equal to (i) the Stipulated Loss Value calculated above plus; (ii) any costs and expenses (including breakage fees) incurred as a result of the Default; | ||
| (b) | To receive payment by Lessee in the amount of $4078.39. + all appropriate sales, city, county, federal, and any other taxes , due at the beginning of the month. | ||
| (c) | To Cancel or terminate this Agreement; | ||
| (d) | To retake and retain, if necessary, the Equipment without demand or legal process free of all rights of the Lessee; and | ||
| (e) | Pursue all rights and remedies available to Lessor at law or in equity. |
10. LATE CHARGES. If any payment of rent or other amount payable to Lessor is no
received in full within 5 days after the due date, Lessee will pay to Lessor a late charge equal to
the greater of (i) 5.00% of the late payment amount or (ii) $50.00 for each late payment (or if
less, the highest amount permitted by applicable law). Payment of any late charge does not excuse
Lessee of any default under this Agreement.
11. ARBITRATION. Either Party, or anyone to whom this Lease is transferred may choose
to have any dispute arising under this Lease resolved by binding arbitration. The party demanding
arbitration may elect for the arbitration to be conducted under the rules then in effect of either
the National Arbitration Forum (“NAF”); JAMS/Endispute; or the American Arbitration Association.
Where available, the arbitration shall be conducted under the commercial rules of the selected
forum, as amended by this arbitration clause (the “Arbitration Clause”). Arbitration rules and
other information are available by contacting these arbitration forums:
American Arbitration Association 0000 Xxxxxxxxxxx Xxxxxx, XX, Xxxxx 0 Xxxxxxxxxx, XX 00000-0000 000-000-0000 |
JAMS/Endispute 000 00xx Xxxxxx, X.X., Xxxxx 000 Xxxxxxxxxx, XX 00000 000-000-0000 |
National Arbitration
Forum P. O. Xxx 00000 Xxxxxxxxxxx, XX 00000 000-000-0000 |
Any party may elect to arbitrate even if an action has been filed in court, so long as no
judgment has been rendered. However, if the party that has not demanded arbitration prefers to
proceed in small claims court instead of arbitrating the claim, the party that has demanded
arbitration shall be required to revoke the demand for arbitration and litigate in small claims
court after receiving adequate assurance that the total of all current and future claims to be
raised in the small claims court action by the party that has not demanded arbitration will not
exceed a total amount in controversy of $5,000.
A single arbitrator shall hold the arbitration hearing in the federal judicial district where
Lessee is located. The arbitrator shall apply applicable law. The arbitrator’s award shall be final
and binding on all parties, except that in the event of an award in excess of $100,000, the non
prevailing party may request a new arbitration by a three-arbitrator panel under the
selected forum’s rules.
3
Each party shall pay its own arbitration costs and expenses, including attorneys’ fees, except that
the arbitrator may award attorneys’ fees, court costs and other charges if applicable law permits.
Either party may enter judgment on the award in the highest local, state or federal court or before
any administrative body that has jurisdiction. This Arbitration Clause shall survive termination or
expiration of the Lease Term. No class action arbitration may be brought or ordered under this
Arbitration Clause and there shall be no joinder of parties, except for joinder of parties
mentioned in this Arbitration Clause.
UNDER THIS ARBITRATION CLAUSE, DISPUTES BETWEEN THE PARTIES MAY BE RESOLVED BY BINDING
ARBITRATION EVEN IF ONE PARTY WOULD PREFER TO SETTLE THE DISPUTE IN COURT; A PARTY MAY NOT HAVE
THE RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL; THE ABILITY TO COMPEL
OTHER PARTIES TO PRODUCE DOCUMENTS OR TO BE EXAMINED IS MORE LIMITED IN ARBITRATION THAN IN A
LAWSUIT; AND, RIGHTS TO APPEAL OR CHANGE AN ARBITRATION AWARD IN COURT ARE VERY LIMITED. IF LESSEE
IS IN DEFAULT, LESSOR RETAINS AN OPTION TO USE JUDICIAL OR NON-JUDICIAL RELIEF TO ENFORCE ITS
INTEREST IN THE EQUIPMENT AND TO ENFORCE THE MONETARY OBLIGATION. JUDICIAL RELIEF WOULD TAKE THE
FORM OF A LAWSUIT THAT WILL NOT CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY TO COMPEL ARBITRATION
REGARDING ANY OTHER DISPUTE OR REMEDY SUBJECT TO ARBITRATION IN THIS LEASE, INCLUDING THE FILING OF
A COUNTERCLAIM IN A LAWSUIT BROUGHT BY EITHER PARTY PURSUANT TO THIS PROVISION.
12. WAIVER. Lessor’s forbearance in exercising any right or remedy available
hereunder upon Lessee’s breach of the terms, covenants, and conditions of this Agreement or
Lessor’s failure to demand the punctual performance thereof shall not be deemed a waiver of:
| (a) | such right or remedy; | ||
| (b) | the requirement of punctual performance; or | ||
| (c) | any subsequent breach or default on the part of Lessee; |
13. DISCLAIMER OF WARRANTIES. Lessee acknowledges that (i) Lessor is not the
manufacturer of the Equipment nor the manufacturer’s agent, and (ii) Lessor has not made any
representation or warranty regarding the Equipment not contained herein, and (iii) Lessee is
responsible for reading the operating instructions and warnings provided by the manufacturer of the
Equipment. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LESSOR DISCLAIMS ALL EXPRESS OR IMPLIED
WARRANTIES WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4
14. NOTICES. All notices or other documents under this Agreement shall be in writing
and delivered personally or mailed by certified mail, postage prepaid, addressed to the Parties at
their last known address.
15. GOVERNING LAW. This Agreement shall be construed in accordance with and governed
by the laws of the State of Texas. All civil actions filed as a result of disputes arising out of
this Agreement shall be filed in the court of proper jurisdiction in the State of Texas.
16. BINDING EFFECT. The provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties and their respective heirs, executors, administrators, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth
above.
| WWW.ELINK XXXXXXX.XXX, LLC | XXXXXXXXX.XXX | |||||||||
| 0000 Xxxxxx Xxxxx | ||||||||||
| Xxxxx 000 | ||||||||||
| Xxxxxx, XX 00000 | ||||||||||
By:
|
/s/ Blake York
|
By: | /s/ Xxx Xxxxxxx
|
|||||||
| Title: President | Title: CEO | |||||||||
5
EXHIBIT A
| Product | Vendor | Price | qty | Ext Price | ||||||||||
Cisco 2950 24 Port Switch |
eLink | $ | 1,950.00 | 2 | $ | 3,900.00 | ||||||||
Cisco ASA5510 firewall w/Intrusion Detection Option |
eLink | $ | 7,000.00 | 1 | $ | 7,000.00 | ||||||||
TrendMicro AntiVirus license |
eLink | $ | 35.00 | 8 | $ | 280.00 | ||||||||
Misc Hardware |
eLink | $ | 125.00 | 1 | $ | 125.00 | ||||||||
Installation |
eLink | $ | 3,800.00 | 2 | $ | 7,600.00 | ||||||||
MS Server Enterprise Edition 2003 R2 — *** and **** |
eLink | $ | 2,175.00 | 1 | $ | 2,175.00 | ||||||||
MS Server Enterprise Edition 2003 R2 — Media |
eLink | $ | 25.96 | 1 | $ | 25.96 | ||||||||
MS Server 2003 Web Edition |
eLink | $ | 399.00 | 2 | $ | 798.00 | ||||||||
MS Server 2003 |
eLink | $ | 650.26 | 3 | $ | 1,950.78 | ||||||||
MS Server CAL |
eLink | $ | 25.96 | 20 | $ | 519.20 | ||||||||
MS Server Media Kit |
eLink | $ | 27.00 | 1 | $ | 27.00 | ||||||||
MS Terminal Server CALS |
eLink | $ | 71.79 | 20 | $ | 1,435.80 | ||||||||
MS SQL Server Standard Per Processor |
eLink | $ | 5,300.00 | 2 | $ | 10,600.00 | ||||||||
MS SQL Server Standard Media |
eLink | $ | 25.96 | 1 | $ | 25.96 | ||||||||
HP DL580 G4 |
HP | $ | 20,950.63 | 2 | $ | 41,901.26 | ||||||||
HP Care Pack DL580 24x7 |
HP | $ | 1,102.50 | 2 | $ | 2,205.00 | ||||||||
HP ILO2 License |
HP | $ | 226.85 | 2 | $ | 453.70 | ||||||||
MSA1500 SAN Kit |
HP | $ | 9,235.00 | 1 | $ | 9,235.00 | ||||||||
256MB Ram |
HP | $ | 377.65 | 2 | $ | 755.30 | ||||||||
MSA1500 HA Bundle |
HP | $ | 6,250.00 | 1 | $ | 6,250.00 | ||||||||
146GB U320 15K RPM HD |
HP | $ | 419.30 | 14 | $ | 5,870.20 | ||||||||
HP Care Pack 24x7 MSA1500 |
HP | $ | 2,382.10 | 1 | $ | 2,382.10 | ||||||||
HP DL380 G5 |
HP | $ | 5,545.22 | 1 | $ | 5,545.22 | ||||||||
HP Care Pack DL380 24x7 |
HP | $ | 616.85 | 1 | $ | 616.85 | ||||||||
HP ILO2 License |
HP | $ | 226.85 | 1 | $ | 226.85 | ||||||||
HP Dl360 G5 |
HP | $ | 1,982.24 | 1 | $ | 1,982.24 | ||||||||
HP Care Pack DL360 24x7 |
HP | $ | 357.50 | 2 | $ | 715.00 | ||||||||
HP ILO2 License |
HP | $ | 226.85 | 2 | $ | 453.70 | ||||||||
HP Dl360 G5 |
HP | $ | 2,042.55 | 2 | $ | 4,085.10 | ||||||||
HP Care Pack DL360 24x7 |
HP | $ | 357.50 | 2 | $ | 715.00 | ||||||||
HP ILO2 License |
HP | $ | 226.85 | 2 | $ | 453.70 | ||||||||
HP DL360 G4 — Send mail Server |
eLink | $ | 1,000.00 | 1 | $ | 1,000.00 | ||||||||
TOTAL |
$ | 121,308.92 | ||||||||||||
| *** | - Claimsnet needs qty2 — Claimsnet will provide 1 copy | |
| **** | - No User counts included |
Lease Options 36 months
