EXHIBIT 10.22
Amplicon Financial
LEASE
0 XXXXXX XXXXXX XXXXX, XXXXX 000 x XXXXX XXX, XXXXXXXXXX 00000 AGREEMENT
714.751-7551 o 800.755-5055 o FACSIMILE 714.751-7557
XXXXX XX. XX-00000
XXXXXX
Valuestar, Inc.
STREET CITY STATE COUNTY ZIP
000 00xx Xxxxxx, 0xx Xxxxx Xxxxxxx XX Alameda 94612
1. AGREEMENT/'LEASE Amplicon, Inc. ("Amplicon") agrees to lease to Lessee the
hardware, software and/or other equipment ("Property") described on the Lease
Schedule(s) ("Schedule(s)") referencing this Lease Agreement ("Agreement") and
Lessee agrees to lease from Amplicon the Property subject to the terms set forth
herein and on each Schedule(s) that the parties may from time to time enter into
with respect to this Agreement. Each Schedule identified as being a part of this
Agreement incorporates the terms of this Agreement and constitutes a separate
lease agreement and is referred to herein as the "Lease". The Lease is in force
and is binding upon Lessee and Amplicon upon signed acceptance by Amplicon.
2 UNFORM COMMERCIAL CODE ACKNOWLEDGMENT: Lessee acknowledges that it has
received and approved any written "Supply Contract" covering the Property
purchased from the Supplier for lease and Amplicon has informed or advised
Lessee, either previously or by this Lease, of the following: (i) the identity
of the Supplier, (ii) that Lessee may have rights under the Supply Contract; and
(iii) that Lessee may contact the Supplier for a description of any such rights.
This Lease is a "Finance Lease". (The terms "Finance Lease", "Supply Contract"
and "Supplier" as used in this Lease have the meanings only as ascribed to them
under Division 10 of the California Uniform Commercial Code and have no effect
on any tax or accounting treatment of the Lease). This provision survives
termination of the Lease.
3. NO WARRANTIES: AMPLICON IS NOT THE MANUFACTURER, DEVELOPER, PUBLISHER,
DISTRIBUTOR, LICENSOR OR "SUPPLIER" OF THE PROPERTY AND MAKES NO EXPRESS OR
IMPLIED WARRANTY OR REPRESENTATION AS TO FITNESS, QUALITY, DESIGN, CONDITION,
CAPACITY, SUITABILITY, VALUE, MERCHANTABIUTY, OR PERFORMANCE OF THE PROPERTY OR
THE MATERIAL OR WORKMANSHIP THEREOF OR AGAINST INTERFERENCE BY LICENSORS OR
OTHER THIRD PARTIES, IT BEING AGREED THAT THE PROPERTY IS LEASED "AS IS" AND
THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE Lessee selected the Property and
represents that all the Property is suitable for Lessee's purposes. Amplicon
assigns to Lessee during the term of the Lease any warranty rights it may have
received from the Supplier as a result of Amplicon's purchase of the Property.
If Lessee has any claims regarding the Property or any other matter arising from
Lessee's relationship with the Supplier, Lessee must make them against the
Supplier. This provision survives termination of the Lease.
4. AUTHORIZATION DATE AND LEASE DURATION: A Schedule commences and rent is due
beginning on the date that Lessee certifies in writing to Amplicon that all of
the Property has been received and accepted by Lessee as installed, tested and
ready for use, and Lessee authorizes Amplicon in writing to disburse payment to
the Supplier ("Authorization Date"). Unless and until Lessee provides such
written authorization, Amplicon will not disburse payment to Suppliers. The Term
of each Schedule is reflected on the Schedule and begins on the first day of the
calendar month following the Authorization Date. Lessee has the right to use the
Property at the specific locations shown on the Schedule throughout the duration
of this Lease in accordance with the provisions of this Lease. The Term extends
for an additional twelve month period ("Extension Term") at the rental rate
delineated on the Schedule unless Lessee provides to Amplicon written notice of
Lessee's election not to extend the Term at least one hundred eighty days prior
to the expiration of the Term.
5. Rentals: The rent payable is shown on the Schedule(s). The monthly rent is
due to Amplicon, in advance, for each month or portion of a month beginning on
the Authorization Date and continuing for each month that this Lease is in
effect. Rent for portions of a month are based on a daily rental equal to
ore-thirtieth of the monthly rent. All RENTS SHALL BE PAID WITHOUT NOTICE OR
DEMAND AND WITHOUT ABATEMENT, DEDUCTION OR SETOFF OF ANY AMOUNT WHATSOEVER. THE
OPERATION AND USE OF THE PROPERTY IS SOLELY AT THE RISK OF LESSEE AND THE
OBLIGATION OF LESSEE TO PAY ITEM UNDER THE LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES
THE FOLLOWING RIGHTS AND REMEDIES CONFERRED UPON LESSEE BY LAW: (l) RIGHT TO
CANCEL OR TERMINATE THIS LEASE, (11) RIGHT TO REJECT THE PROPERTY, (III) RIGHT
TO REVOKE ACCEPTANCE OF THE PROPERTY, (IV) RIGHT TO RECOVER DAMAGES FROM AMPICON
FOR ANY BREACH OF WARRANTY, AND (V) RIGHT TO RECOVER ANY CONSEQUENTIAL DAMAGES
WHATSOEVER. Rents will be paid to Amplicon unless otherwise instructed in
writing by Amplicon or its assignee.
THIS LEASE AGREEMENT AND THE APPLICABLE SCHEDULE(S) CONTAIN THE ENTIRE AGREEMENT
BETWEEN AMPLICON AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE LEASE
CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A PERSON
AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED SIGNER OF
AMPUCON. NO ORAL OR OTHER WRITTEN AGREEMENT'S, REPRESENTATIONS OR PROMISES SHALL
BE RELIED UPON BY, OR BE BINDING ON, THE PARTIES UNLESS MADE A PART OF THIS
LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZIZED SIGNER OF LESSEE AND
AMPLICON.
LESSEE: Xxxxxxx Xxxxx, ValueStar. Inc. AMPLICON, INC. Xxxxxx X. Xxxxxxx
-------------------------------- ---------------------
(Signature) (Signature)
This Lease is subject to acceptance by Amplicon's Finance Committee. By signing
below, the signer certifies that he or she has read this Lease Agreement,
INCLUDING THE REVERSE SIDE, has had an opportunity to discuss its terms with
Amplicon, and is authorized to sign an behalf of Lessee. Until this Lease has
been signed by an authorized signer of Amplicon, it will constitute a firm offer
by Lessee.
LESSEE/OFFEROR AMPLICON, INC.
OFFER: ACCEPTANCE:
By. /s/ Xxxxxxx Xxxxx By. /s/ Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
Title: Secretary/Controller Title: Assistant Vice President
--------------------------- ----------------------------
Date: March 20, 2000 Date: 03/23/00
--------------------------- ----------------------------
AMP-MM98
6. INDEMNITY: Lessee assumes liability for, and agrees at its own expense to
indemnify and defend Amplicon. its employees, officers, directors and assigns,
from and against any and all claims, liabilities, losses, damages, and expenses
(including legal expenses) of every kind or nature (including, without
limitation, claims based upon strict liability) arising out of the use,
condition (including latent and other defects, whether or not discoverable by
Lessee or Amplicon), operation or ownership of any items of Property (including,
without limitation, any claim for patent, trademark or copyright infringement)
or for any interruptions of service, loss of business or consequential damages.
These indemnities and assumptions survive the termination of this Lease.
7. PERFORMANCE OF LESSEE'S OBLIGATI0NS BY AMPLICON: If Lessee fails to perform
any of its obligations under this Lease, Amplicon may, at its option, perform
them for Lessee without waiving Lessee's default. Any amount paid by Amplicon,
and any expense (including reasonable attorneys' fees) or any other liability
incurred by Amplicon as a result of its performance of Lessee's obligations will
be payable by Lessee to Amplicon upon demand.
8. FURTHER ASSURANCES AND NOTICES: Lessee's signing of this Lease constitutes a
firm offer. In consideration of Amplicon's time and effort in reviewing and
acting on the offer, Lessee agrees that its offer is irrevocable for twenty
business days after Amplicon's receipt of the offer and of all credit
information requested by Amplicon. Amplicon's signing of the Lease, including
the Schedule, constitutes acceptance of Lessee's offer. Lessee agrees to sign
and provide any documents, which Amplicon deems necessary for confirmation.
assignment and assurance of performance by Lessee of its obligations under the
Lease or for perfection of this Lease and the Property including, but not
limited, to the signing and filing of Uniform Commercial Code (UCC) Financing
Statements (which Lessee agrees may be signed by Amplicon on Lessee's behalf).
Lessee authorizes Amplicon to insert applicable dates as necessary to complete
all documentation for the Lease. Prior to Amplicon's acceptance of the Lease and
for the duration of the Lease, Lessee agrees to promptly provide Amplicon with
all credit information reasonably requested by Amplicon including, but not
limited to, comparative audited financial statements for the most current annual
and interim reporting periods. Lessee's failure to provide such information to
Amplicon is an event of default under the Lease. All notices to Amplicon must be
in writing and sent certified mail return receipt requested to the address shown
above or such other address as to which Lessee has been notified in writing.
9. DEFAULT: If rent or any other amount is not paid within ten days of its due
date, Lessee agrees to pay a late charge equal to five percent (5%) (changed to
one and one half percent 1 1/2%) of the unpaid amount. Each month thereafter,
past due amounts remaining unpaid hereunder shall bear interest at the lesser of
one and one half percent (1 1/2%) per month, compounded monthly or the maximum
rate allowed by law. An Event of Default shall occur if: (a) Lessee fails to pay
any rent or other payment under the Lease when due and the failure continues for
ten days; (b) Lessee fails to perform or observe any of the covenants or
obligations in this Lease other than Lessee's rental obligations, and such
failure is not cured within ten days after written notice has been provided; (c)
Lessee makes an assignment for the benefit of its creditors, files any petition
or takes any action under any bankruptcy, reorganization or insolvency laws; (d)
an involuntary petition is filed under any bankruptcy statute against Lessee or
any receiver, trustee or custodian is appointed to take possession of Lessee's
properties, unless such petition or appointment is set aside or withdrawn within
sixty days of said filing or appointment; (e) Lessee attempts to or does remove,
transfer, sell, sublicense, encumber, part with possession, or sublet any of the
Property; (f) Lessee attempts to assign or transfer this Lease or its interest
under the Lease or moves any of the Property from the location(s) set forth on
the Schedule without Amplicon's prior written consent: or (g) Lessee undergoes a
sale, buyout, change in control, or change in ownership of any type, form or
manner which, as judged solely by Amplicon, results in a material deterioration
in Lessee's credit worthiness.
10. REMEDIES: Upon an Event of Default, Amplicon may exercise at its sole option
any one or more of the remedies permitted by law, including but not limited to
the following: (a) through legal action, enforce performance by Lessee of the
applicable covenants and obligations of this Lease or recover damages for the
breach of those covenants or obligations; (b) terminate the Lease and Lessee's
rights under the Lease; (c) by notice in writing to Lessee, recover all amounts
due on or before the date Amplicon declared this Lease to be in default, plus,
as liquidated damages for the loss of a bargain and not as a penalty, accelerate
and declare to be immediately due and payable all rentals and other sums payable
under the Lease without any presentment, demand, protest or further notice (all
of which are hereby expressly waived by Lessee), at which time the same shall
become immediately due and payable; and (d) take immediate possession of the
Property, or any part of the Property, from Lessee free from claims by Lessee.
In the case of Software, it is agreed that Lessee's unauthorized use,
disclosure, or transfer of the Software will cause Amplicon significant damages
which, at the time the parties enter the Lease, are impossible to quantify or
predict. Therefore, if Lessee is found to be using (in any manner) all or any
portion of the Software after the termination of this Lease, or if Supplier
terminates a license of Lessee's right to use the Software for an alleged breach
of the use, disclosure, or transfer restrictions imposed on Lessee, the parties
hereby agree that liquidated damages shall be payable immediately by Lessee to
Amplicon in an amount which is equal to two times the amount paid by Amplicon
for the Software. The exercise of any of the foregoing remedies by Amplicon will
not constitute a termination of this Lease unless Amplicon so notifies Lessee in
writing. If Amplicon repossesses the Property, Amplicon may rent or sell the
Property in such a manner and at such times as Amplicon may determine and
without notice to Lessee. In the event Amplicon rents the Property, any rentals
received by Amplicon for the remaining Term(s) of the Schedule shall be applied
to the payment of: (i) all costs and expenses (including reasonable attorneys'
fees) incurred by Amplicon in enforcing its remedies under this Lease, and (ii)
the rentals for the remainder of the Term(s) and all other sums then remaining
unpaid under this Lease. All rentals received by Amplicon for the period
commencing after the remaining Term(s) shall be retained by Amplicon. Lessee
will remain liable to Amplicon to the extent that the aggregate amount of the
sums referred to in clauses (i) and (ii) above exceed the aggregate rentals
received by Amplicon under such agreements for the remaining Term(s) applicable
to the Property covered by such agreements. In the event that Amplicon sells the
Property, the proceeds will be applied to the sum of: (1) all costs and expenses
(including reasonable attorneys' fees) incurred by Amplicon in enforcing its
remedies under this Lease and in disposing of the Property, (2) the rentals
accrued under this Lease, but unpaid up to the time of such disposition, (3) any
and all other sums other than rentals then owing to Amplicon by Lessee under the
Lease, and (4) the stipulated value as would be determined in the event of a
Casualty Occurrence (as defined in the terms and conditions to the Schedule) on
the date of the Property's disposition. The remaining balance of such proceeds,
if any, will be applied first to reimburse Lessee for any sums previously paid
by Lessee as liquidated damages (as set forth in (c) above), and any remaining
amounts will be retained by Amplicon. Lessee will remain liable to Amplicon to
the extent that the aggregate amount of the sums referred to in clauses (1)
through (4) above exceeds the proceeds received by Amplicon in connection with
the disposition of the Property. Amplicon's remedies under this Lease shall not
be deemed exclusive. Waiver of any default or breach of this Lease shall not be
construed as a waiver of subsequent or continuing defaults or breaches.
11. DISPUTE RESOLUTION: THE PARTIES AGREE THAT ALL DISPUTES, WHETHER BASED IN
TORT OR CONTRACT, RELATING TO OR ARISING OUT OF THIS LEASE (COLLECTIVELY, "LEASE
DISPUTES") WILL BE SUBMITTED TO THE ORANGE COUNTY, CALIFORNIA OFFICE OF
ENDISPUTE, INC., DBA J-A-M-S/ENDISPUTE ("JAMS") FOR A TRIAL OF ALL ISSUES OF LAW
AND FACT CONDUCTED BY A RETIRED JUDGE OR JUSTICE FROM THE PANEL OF JAMS,
APPOINTED PURSUANT TO A GENERAL REFERENCE UNDER CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 638(1) (OR ANY AMENDMENT, ADDITION OR SUCCESSOR SECTION
THERETO) UNLESS AMPLICON OR ITS ASSIGNEE SELECTS AN ALTERNATIVE FORUM. IF THE
PARTIES ARE UNABLE TO AGREE ON A MEMBER OF THE JAMS PANEL, THEN ONE SHALL BE
APPOINTED BY THE PRESIDING JUDGE OF THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY
OF ORANGE. IN THE EVENT THAT JAMS IN THE COUNTY OF ORANGE CEASES TO EXIST, THEN
THE PARTIES AGREE THAT ALL LEASE DISPUTES WILL BE FILED AND CONDUCTED IN THE
CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF ORANGE, UNLESS AMPLICON OR ITS
ASSIGNEE SELECTS AN ALTERNATIVE FORUM. LESSEE AGREES TO SUBMIT TO THE PERSONAL
JURISDICTION OF THE CALIFORNIA SUPERIOR COURT FOR ALL LEASE DISPUTES. LESSEE
WANES ITS RIGHTS TO A JURY TRIAL IN ANY ACTION ARISING OUT OF OR RELATING TO
THIS LEASE. If any party to this Lease brings any action to enforce any of the
terms, or to recover for any breach, then the prevailing party is entitled to
recover from the other party reasonable attorneys' fees and costs, including all
JAMS-related costs and costs of collection (including judgment enforcement and
collection costs).
12. MISCELLANEOUS: All agreements, representations and warranties contained in
this Lease, or in any document or certificate delivered pursuant to or in
connection with this Lease, shall expressly survive the termination of this
Lease. If any provision of this Lease is determined by competent authority to be
unenforceable, such determination shall not invalidate the remaining provisions
of the Lease. To the extent permitted by applicable law, Lessee waives any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect. This Lease has been entered into and shall be performed in
California and, therefore, THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA (EXCLUSIVE OF
PRINCIPLES OF CONFLICT OF LAWS). Time is of the essence of this Lease and each
provision thereof.
Amplicon Financial
LEASE
0 XXXXXX XXXXXX XXXXX, XXXXX 000 x XXXXX XXX, XXXXXXXXXX 00000 SCHEDULE
714.751-7551 o 800.755-5055 FACSIMILE 714.751-7557
NO. 01
LESSEE CONTACT
Valuestar, Inc. Xxxxxxx X. Xxxxx
STREET PHONE XX.
000 00xx Xxxxxx, 0xx Xxxxx (000) 000-0000
CITY XXXXX XXXXXX XXX XXXXXXXXX XX.
Xxxxxxx XX Xxxxxxx 00000 510 808-1400
A. This Schedule is issued with respect to the Lease dated
Agreement Order No. VL_00618 03/23/00
All of the terms of the Lease Agreement are incorporated into this Schedule as
if fully reflected on the Schedule. The terms of this Schedule and the Lease
Agreement combine to form an individual Lease with an independent Term.
B. Any Deposit under this Schedule shall be returned to Lessee (without
interest thereon) if Amplicon does not accept this Schedule. Upon acceptance
of this Lease by Amplicon any such Deposit shall be applied to the rent due in
the last month of the Term unless otherwise specified herein.
C. Term (months): Twenty-four (24)
D. Deposit: $ 24,864.00
E. Monthly Rent: $ 24,864.00
F Property: Total Property Cost: $592,000.00
Quantity Property Description Serial #
Property to consist of Davox Call Center Software and Related Softcosts to be
more fully described on Exhibit "A" to related documents at a later date.
G. AT THE EXPIRATION OF THE TERM OR, IF EXTENDED, AT THE EXPIRATION OF THE
EXTENSION TERM LESSEE SHALL: (I) PURCHASE ALL, BUT NOT LESS THAN ALL, OF THE
PROPERTY FOR A PRICE EQUAL TO 10 % OF THE TOTAL COST PAID BY AMPLICON WITH
RESPECT TO THE PROPERTY, PLUS ALL APPLICABLE SALES/USE TAXES THEREON AND ALL
ACCRUED BUT UNPAID INTEREST, TAXES, PENALTIES AND/OR OTHER SUMS DUE UNDER THE
LEASE; (II) PROMPTLY RETURN ALL, BUT NOT LESS THAN ALL, OF THE PROPERTY AND
LEASE REPLACEMENT PROPERTY FROM AMPLICON WHICH HAS A COST EQUAL TO OR GREATER
THAN THE ORIGINAL TOTAL COST OF THE PROPERTY; OR (III) EXTEND THE SCHEDULE FOR
A PERIOD OF ONE ADDITIONAL YEAR AT THE RENTAL RATE DELINEATED HEREIN. WITH
RESPECT TO OPTION (ll), LESSEE AND AMPLICON SHALL EACH HAVE ABSOLUTE
DISCRETION REGARDING THEIR AGREEMENT OR LACK OF AGREEMENT TO THE TERMS OF A
LEASE FOR REPLACEMENT PROPERTY. IF LESSEE HAS NOT ELECTED OPTION (I) OR (II)
BY THE END OF THE TERM OR, IF EXTENDED, THE EXTENSION TERM, THEN OPTION (lll)
SHALL PREVAIL. THEREAFTER, THIS LEASE WILL CONTINUE SUBJECT TO TERMINATION BY
EITHER LESSEE OR AMPLICON AT THE END OF ANY MONTH, PROVIDED AT LEAST NINETY
DAYS' PRIOR WRITTEN NOTICE IS DELIVERED TO THE OTHER PARTY
THE INDIVIDUAL SIGNING BELOW CERTIFIES THAT HE OR SHE HAS READ THIS SCHEDULE
(INCLUDING THE TERMS ON THE REVERSE SIDE) AND THE LEASE AGREEMENT, AND IS
AUTHORIZED TO SIGN THIS SCHEDULE ON BEHALF OF LESSEE.
THIS SCHEDULE ALONG WITH THE LEASE AGREEMENT CONTAIN THE ENTIRE AGREEMENT
BETWEEN AMPLICON AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS
AGREEMENT CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A
PERSON AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED
SIGNER OF AMPLICON. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR
PROMISES SHALL BE RELIED UPON OR BE BINDING ON THE PARTIES UNLESS MADE A PART OF
THIS LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF BOTH
LESSEE AND AMPLICON.
LESSEE/OFFEROR AMPLICON, INC.
OFFER: ACCEPTANCE:
Valuestar, Inc.
Signature: /s/ Xxxxxxx Xxxxx Signature: /s/ Xxxxxx X. Xxxxxxx
-------------------------- --------------------------
Name: Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
-------------------------- --------------------------
Title: Secretary/Controller Title: Assistant Vice President
-------------------------- --------------------------
Date: March 20, 2000 Date: 03/23/00
-------------------------- --------------------------
Rev. AMP
D/98
8
TERMS AND CONDITIONS
APPLICABLE TO THIS LEASE SCHEDULE
H. RIGHT TO INSPECT THE PROPERTY: Amplicon may during reasonable business hours
enter upon any premises where the Property is located; to confirm compliance
with the terms of the Lease.
I. TAXES ON THE PROPERTY: All fees, assessments and taxes (except those based
upon the net income of Amplicon) which may now or hereafter become due or are
imposed upon the ownership, sale, possession and/or use of the Property are to
be paid by Lessee. While Lessee will be responsible for payment of all personal
property taxes, Amplicon will file all personal property tax returns. Amplicon
is not responsible for contesting any valuation of, or tax imposed on, the
Property (but may do so strictly as an accommodation to Lessee) and will not be
liable or accountable to Lessee therefor. Amplicon retains any and all federal
and state tax credits or benefits relating to the Property.
J. USE, OPERATION AND MAINTENANCE OF THE PROPERTY: Lessee at its own expense,
will provide a suitable place for the operation of the Property, and keep in
force for the duration of the Lease the best standard Supplier's maintenance
agreement(s) which will cause the Supplier(s) to make all the necessary repairs,
adjustments, and replacements in accordance with such maintenance agreement(s)
and entitle Lessee (through Amplicon, if necessary) to obtain available
enhancements, updates, upgrades and changes.
K. ADDITIONS AND MODIFICATIONS TO THE PROPERTY: All additions and modifications
to the Property become a part of the Property and are owned by Amplicon.
Software, as described on any Schedule(s), includes all updates, revisions,
upgrades, new versions, enhancements, modifications, derivative works,
maintenance fixes, translations, adaptations, and copies of the foregoing or of
the original version of the Software whether obtained from the Supplier,
licensor or from any source whatsoever, and references in this Lease to Software
will be interpreted as references to any and all of the foregoing. All additions
and modifications to the Property must be free and clear of any liens or rights
of other parties.
L. INSURING THE PROPERTY: While the Property is in transit and for the duration
of the Lease. Lessee at its own expense shall maintain (i) comprehensive public
liability insurance (naming Amplicon or its assigns as additional insured) for
bodily injury and property damage resulting from the maintenance. use or
transport of the Property and (ii) property and casualty insurance (naming
Amplicon and/or its assigns as sole loss payee) covering all risks of loss or
damage to the Property from any cause whatsoever including, without limitation,
fire and theft. All insurance will be from an insurer(s) and in a form and
amount satisfactory to Amplicon. Lessee shall deliver to Amplicon the original
policies or certificates of such insurance (and each renewal or replacement
thereof) and evidence of the payment of the premiums for such insurance
policies. All policies will provide that no cancellation or material
modification of such insurance shall be effective without thirty days prior
written notice to Amplicon.
M. RISK OF LOSS TO THE PROPERTY: While the Property is in transit and throughout
the duration of the Lease. Lessee assumes all responsibility for loss or damage
or other Casualty Occurrence. as defined herein, to the Property and shall hold
Amplicon harmless. A Casualty Occurrence occurs if, for any reason whatsoever,
any of the Property is lost, stolen, requisitioned. taken, confiscated,
destroyed or irreparably damaged by any cause whatsoever. In the case of
Software. the erasure, inoperability or other incapacity of the Software
triggered by a preprogrammed termination or limiting design or routine embedded
in the Software is also deemed a Casualty Occurrence. In the event of a Casualty
Occurrence as to any Property, Lessee will immediately inform Amplicon in
writing. On the next succeeding rental payment date, Lessee will (i) either
replace the Property with like-kind Property, free and clear of any liens or
rights of other parties, acceptable to Amplicon or Amplicon's assignee and
continue to pay all rentals without interruption as they come due, or (ii) pay
to Amplicon all past due rentals and other amounts then late or due and an
amount equal to the stipulated value as determined by the Casualty Schedule
annexed to the Lease ("Stipulated Value"). When Lessee makes this payment to
Amplicon, the rentals cease to accrue and the Lease with respect to that
Schedule ends. Insurance proceeds received by Amplicon as a result of a Casualty
Occurrence will be applied to reduce Lessee's obligation to pay the Stipulated
Value.
N. OWNERSHIP OF THE PROPERTY: Amplicon at all times retains ownership, title
and/or control over Lessee's right to use the Property in accordance with the
terms of the Lease. Lessee shall protect and defend, at its own expense.
Amplicon's title and/or rights in the Property against all claims and liens and
keep the Property free and clear of all such claims and liens. The Property is
and shall remain personal property of Amplicon. To the extent Software subject
to this Lease may also be the subject of a license agreement between the
Supplier and Lessee, Lessee acknowledges that the license to use the Software is
being provided to Lessee solely because of payments made by Amplicon to the
Supplier and, accordingly, Lessee agrees that Amplicon has an interest in the
license. Lessee agrees that if it or any of its affiliates receives anything of
value from the Supplier (including without limitation. a trade-in, substitution,
discount or upgrade allowance) other than Lessee's rights to use the Software
reflected on the Schedule for the duration of this Lease, Lessee will advise
Amplicon and pay to Amplicon an amount equal to such additional value obtained
by Lessee. Lessee agrees that it will not surrender, transfer or modify the
license agreement without first obtaining the written consent of Amplicon.
O. RETURN OF PROPERTY: If Lessee elects to return the Property as provided for
in the Lease, Lessee will discontinue the use of the Property, pay to Amplicon
an inspection, refurbishment and restocking fee equal to five percent of the
Property's original cost, and immediately, at its own expense, ship the
Property, with all manuals, cables, cartons and packing materials as originally
furnished by Supplier, to a location within the United States in accordance with
the Property return instructions provided by Amplicon. In the case of Software,
Lessee will destroy all intangible Software items, and deliver to Amplicon all
tangible items constituting Software. At Amplicon's request, Lessee will also
certify in a written form acceptable to Amplicon that: (i) all the tangible
Software has been delivered to Amplicon; (ii) all intangible records have been
destroyed; (iii) Lessee has not retained the Software in any form; (iv) Lessee
will not use the Software after termination and (v) Lessee has not received from
Supplier(s) anything of value relating to or in exchange for Lessee's use,
rental or possession of the Software during the duration of the Lease (including
a trade-in, substitution or upgrade allowance). Until Lessee has complied with
all of the requirements of this Section, rent payment obligations will continue
from month to month at the rental rate delineated on the Schedule.
P. ASSIGNMENT OF LEASE AND/OR PROPERTY: AMPLICON MAY ASSIGN ANY OF ITS RIGHTS IN
THE LEASE AND/OR THE PROPERTY TO AN ASSIGNEE ("ASSIGNEE"). LESSEE HEREBY
CONSENTS TO SUCH ASSIGNMENT AND FURTHER AGREES AS FOLLOWS: (1) ASSIGNEE DOES NOT
ASSUME ANY OF THE OBLIGATIONS OF AMPLICON UNDER THE LEASE; (2) TO PAY ALL
ASSIGNED MONIES DUE UNDER THE LEASE UNCONDITIONALLY WITHOUT OFFSET AND LESSEE
FURTHER AGREES THAT SUCH MONIES SHALL BE PAYABLE NOTWITHSTANDING ANY DEFENSE OR
COUNTERCLAIM WHATSOEVER WHETHER BY REASON OF BREACH OF THE LEASE, THE EXERCISE
OF ANY RIGHT HEREUNDER, OR OTHERWISE, WHICH LESSEE MAY NOW OR HEREAFTER HAVE
AGAINST AMPLICON (LESSEE RESERVES ITS RIGHT TO ASSERT ANY SUCH DEFENSE OR
COUNTERCLAIM DIRECTLY AGAINST AMPLICON); (3) TO PROVIDE AMPLICON WITH A COPY OF
ANY NOTICES SENT BY LESSEE TO ASSIGNEE UNDER THE LEASE; (4) THAT SUBJECT TO AND
WITHOUT IMPAIRMENT OF LESSEE'S LEASEHOLD RIGHTS IN AND TO THE PROPERTY COVERED
UNDER THE LEASE, LESSEE SHALL HOLD SAID PROPERTY AND THE POSSESSION THEREOF FOR
THE ASSIGNEE TO THE EXTENT OF THE ASSIGNEE'S RIGHTS THEREIN, AND (5) SUCH
ASSIGNMENT DOES NOT CHANGE LESSEE'S OBLIGATIONS UNDER THIS LEASE OR INCREASE THE
BURDEN AND RISKS IMPOSED ON LESSEE, WITHOUT THE PRIOR WRITTEN CONSENT OF
AMPLICON, LESSEE SHALL NOT ASSIGN THIS LEASE OR ITS INTEREST IN THE LEASE IN ANY
FORM OR MANNER INCLUDING, BUT NOT LIMITED TO, AN ASSIGNMENT DUE TO A SALE,
MERGER, LIQUIDATION, SUB-LEASE, LEVERAGED BUYOUT, CHANGE OF OWNERSHIP OR
CHANGE-IN-CONTROL.
ADDENDUM "A"
TO
LEASE SCHEDULE NO. _01
TO
LEASE AGREEMENT ORDER NO. VL-00618
This Addendum is supplemental to and made a part of Lease Agreement Order No.
VL-00618 dated 03/23/00 (the "Agreement"), Lease Schedule(s) No. 01 dated
03/23/00 and other related documents under the Lease and Lease Schedule
(collectively forming the "Lease"). The parties to the Lease include Valuestar,
Inc. ("Lessee") and Amplicon, Inc.
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in then Lease, unless specifically modified. This Addendum is
to be construed as supplemental to, and part of, the Lease.
Throughout the term of the Lease, as security for Lessee's obligations
hereunder, Lessee agrees to maintain at its sole cost and expense an
unconditional and irrevocable stand by letter of credit ("Letter of Credit") in
the amount of Two-Hundred Ninety-Six Thousand and 00/100 U.S. Dollars
($296,000.00), in form, substance, and issued by a bank satisfactory to
Amplicon, Inc. Lessee agrees to obligate the issuer to notify Amplicon, Inc. in
writing at least ninety (90) days in advance of any date of expiration of such
Letter of Credit that such Letter of Credit has not been renewed. In addition to
the provisions of Section 9 of the Agreement, it shall be an Event of Default
hereunder if Amplicon, Inc. does not receive a satisfactory replacement Letter
of Credit, at least sixty (60) days in advance of any expiration or cancellation
of any Letter of Credit issued pursuant to this Lease. If there is any Event of
Default under the Lease, Amplicon, Inc. may draw all or part of the amount
available under such Letter of Credit, and may pursue any or all of its other
remedies available. Amplicon, Inc. may draw upon the Letter of Credit to obtain
payment of any amounts due and unpaid under the Lease.
In all other respects, the terms and conditions of the Lease, as originally set
forth, shall remain in full force and effect. The Lease sets forth the entire
and final understanding between the parties with respect hereto. The terms of
this Addendum have been negotiated and jointly drafted by Amplicon, Inc. and
Lessee and, therefore, the language of the Addendum shall not be construed in
favor or against either party. The undersigned represent that they have the
authority to enter into this Lease, and that the same shall be legally binding
and enforceable on the respective principals.
IN WITNESS WHEREOF, the parties hereto, by their authorized signatories, have
executed this Addendum "A" at the date set forth below their respective
signatures.
LESSEE:
Valuestar, Inc. Amplicon, Inc.
--------------- --------------
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ -----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
------------------------------ -----------------------------
Title: Secretary/Controller Title: Assistant Vice President
------------------------------ -----------------------------
Date: March 20, 2000 Date: 03/23/00
------------------------------ -----------------------------
INITIAL DSH
ADDENDUM "A"
(Changed to "B")
WITH RESPECT TO
LEASE AGREEMENT ORDER NO. VL-00618
AND LEASE SCHEDULE NO. 01
This Addendum is supplemental to and made a part of Lease Agreement Order No.
VL-00618, dated 03/23/00 (the "Agreement"), Lease Schedule No. 01, dated
03/23/00 and other related documents under the Agreement and Lease Schedule
(collectively the "Lease"). The parties to the Lease include Valuestar. Inc.
("Lessee") and Amplicon, Inc. ("Amplicon").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in the Lease, unless specifically modified. This Addendum is
to be construed as supplemental to, and a part of, the Lease.
Lessee and Amplicon acknowledge and agree that the Lease is hereby amended with
respect to Lease Schedule No. 01, as follows:
On the front page of the Lease Schedule, delete paragraph G. in its
entirety, and replace it with the following language:
"G. AT THE EXPIRATION OF THE TERM, ONE FINAL PAYMENT OF $59,200.00 (10%
OF ORIGINAL COST OF THE PROPERTY), PLUS ALL ACCRUED BUT UNPAID LATE
CHARGES, INTEREST, TAXES, PENALTIES AND/OR OTHER SUMS DUE AND OWING
UNDER THE LEASE, SHALL BECOME DUE, OWING AND PAYABLE BY LESSEE TO
AMPLICON OR AMPLICON'S ASSIGNEE, IF APPLICABLE, FOR WHICH AMPLICON WILL
PASS ITS TITLE IN THE PROPERTY TO LESSEE."
In all other respects, the terms and conditions of the Lease, as originally
written, shall remain in full force and effect. The Lease as amended herein,
sets forth the entire and final understanding between the parties with respect
hereto. The terms of this Addendum have been negotiated and jointly drafted by
Amplicon and Lessee and, therefore, the language of the Addendum shall not be
construed in favor or against either party. The undersigned represent that they
have the authority to enter into the Lease, and that the same shall be legally
binding and enforceable on the respective principals.
IN WITNESS WHEREOF the parties hereto, by their authorized signatories, have
executed this Addendum at the date set forth below their respective signatures.
LESSEE: Valuestar Inc. Amplicon, Inc.
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
NAME: Xxxxxxx X. Xxxxx NAME: Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
TITLE: Secretary/Controller TITLE: Assistant Vice President
--------------------------- ----------------------------
DATE: March 20, 2000 DATE: 03/23/00
--------------------------- ----------------------------
