EXHIBIT 10.4
TRIMARC
FINANCIAL Master Lease No. MLA-1014
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000 XXXXX XX XXXXXX XXXX XXXXX 000
XXX XXXXXXXX XX 00000
TELEPHONE (000) 000-0000
FACSIMILE (000) 000-0000
M A S T E R L E A S E
Master lease dated as of January 30, 1998, by and between TRIMARC FINANCIAL
("Lessor"), with its principal office stated above, and NETSOLVE, INCORPORATED
("Lessee") having its principal office at 0000 XXXXXXXXXX XXXX XXXXX 000,
XXXXXX, XXXXX 00000-0000.
1. MASTER LEASE: This is a Master Lease Agreement (hereafter "Lease"). The
terms of each Lease Schedule(s) (hereafter "Schedule(s)") hereto and/or
hereafter annexed are subject to any and all terms and conditions set forth
herein. Subject to the following terms and conditions, Lessor hereby leases to
and/or grants to Lessee the right to use certain items of property (regardless
of the nature of which and without distinction, collectively hereafter referred
to as "Equipment", and individually hereafter referred to as an "Item of
Equipment") as described on the attached Schedule(s). Equipment shall also
include all updates, upgrades, modifications, revisions, new versions,
substitutions, enhancements, maintenance fixes, and any portions or parts
thereof. Lessee agrees to hire and take and agrees to accept the right to use
that certain Equipment, and such other Equipment described on supplemental
Schedule(s) that the parties from time to time may annex to this Lease. This
Lease shall give Lessee the right to use the Equipment at the specific location
delineated on the Schedule(s) during the term of this Lease in accordance with
the terms and conditions herein. Lessee shall not move the Equipment without
Lessor's prior written approval which shall be subject to such terms and
conditions as Lessor may then reasonably require. Lessor, at its sole option,
may supply Items of Equipment, either new or used, that meet the specifications
of Items of Equipment delineated on the Schedule(s).
2. QUIET ENJOYMENT: Provided that no Event of Default has occurred or is
continuing hereunder, Lessor and/or its' Assignees shall not interfere with
Lessee's quiet enjoyment and use of the Equipment.
3. TERM: The term of this Lease shall commence upon acceptance of this Lease
by Lessor and shall continue thereafter so long as any Schedule(s) entered into
pursuant to this Lease remains in effect. As to each Schedule attached to this
Lease, this Lease shall be effective upon acceptance of such Schedule(s) by
Lessor. The term for any Schedule(s) shall commence on the day that the
Manufacturer/Vendor/Licensor or Lessee certifies that the Equipment has been
delivered to and is usable by Lessee ("Commencement Date"). The Base Term of
the Lease with respect to any Schedule(s) shall be indicated on the respective
Schedule(s) and shall be calculated from the first day of the calendar quarter
following the Commencement Date ("Base Lease Term"). A calendar quarter means a
three-month period commencing on January 1, April 1, July 1 or October 1 of any
calendar year. The Base Lease Term shall be extended for an additional one-year
period at the final rental
rate in effect as of the last billing period of the Base Lease Term unless
Lessee provides to Lessor written notice of Lessee's election not to extend the
Base Lease Term at least one hundred eighty (180) days' prior to its expiration.
At the expiration of the Base Lease Term (or, if extended, at the expiration of
the "Extended Base Lease Term"), Lessee shall do one of the following: (A)
purchase all of the Equipment under each Schedule for a mutually agreeable
purchase price; (B) extend the Schedule(s) for a period of one (1) additional
year at the final rental rate in effect as of the last billing period of the
Base Lease Term of the respective Schedule(s); or (C) enter into a new lease
with Lessor to lease property which replaces the Equipment under each Schedule
and which has a cost greater than or equal to the original cost of the
Equipment. With respect to options (A) and (C), Lessor and Lessee shall each
have absolute discretion regarding their agreement or lack of agreement to the
terms of either such arrangement. If the parties have not agreed to either
option (A) or option (C) by the expiration of the Base Lease Term or Extended
Base Lease Term, then option (B) shall prevail. At the end of the extension
period under option (B), this Lease shall continue subject to termination by
either Lessor or Lessee at the end of any calendar month, provided at least one
hundred twenty (120) days' prior written notice of such termination is delivered
to the other.
4. RENTALS: The quarterly rent payable for each Schedule shall be the amount
shown on such Schedule. Lessee shall pay to Lessor the quarterly rent in
advance for each quarter or any part thereof following the Commencement Date.
The first Base Lease Term rental payment shall be made on the first day of the
calendar quarter following the Commencement Date. A prorata portion of the
quarterly rental charges, based on a daily rental of one-ninetieth (1/90th) of
the quarterly rental calculated from the Commencement Date to the end of the
calendar quarter, shall be due and payable at the Commencement Date.
Installments of rent (or any portion thereof) which are not paid within ten (10)
days after their due date shall be subject to a delinquency payment equal to
five percent (5%) of the late installment. For delinquent installments of rent
which remain unpaid at the end of each month, Lessee shall also pay to Lessor an
administrative fee equal to two percent (2%) of the aggregate unpaid amount.
All rent shall be paid at the place of business of Lessor shown above or another
place as Lessor may designate by written notice to Lessee. Except as otherwise
provided in this Lease, Lessee's obligation to pay rent shall be absolute and
unconditional under all circumstances, notwithstanding: (i) any setoff,
counterclaim, recoupment, defense or other right which Lessee may have against
Lessor for any reason whatsoever; (ii) any defect in the title, right to use,
condition, operation, fitness for use, damage or destruction of or to the
Equipment or any interruptions or cessations in use or possession for any reason
whatsoever; (iii) any insolvency, bankruptcy, reorganization or similar
proceedings instituted by or against Lessee. Any Deposit shall be returned to
Lessee (without interest) if Lessor does not accept this Lease. Otherwise, upon
acceptance of this Lease by Lessor, any Deposit shall be applied by Lessor (as
specified on the Schedule) to rental or other payments or costs of Lessor due
and owing under the Lease. Lessee hereby waives, to the extent permitted by
applicable law, any and all right which it may now or at any time hereafter have
to cancel, terminate, or surrender this Lease except in accordance with the
express terms hereof.
5. ADDITIONS AND MODIFICATIONS: Without the prior written consent of Lessor,
and completion of documentation of a form and substance required by Lessor,
Lessee shall make no addition, upgrade, modification, alteration, improvement,
or attachment to any of the Equipment. Lessor, at its sole option, may provide
lease financing for any additions and modifications to
Equipment required by Lessee during the Lease term, subject to the then
prevailing rates and subject to acceptance by Lessor's Finance Committee.
6. NO WARRANTIES: LESSOR NOT BEING THE MANUFACTURER, DEVELOPER, PUBLISHER,
DISTRIBUTOR, OR LICENSOR OF THE EQUIPMENT, MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, AS TO THE FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY,
SUITABILITY, MERCHANTABILITY OR PERFORMANCE OF THE EQUIPMENT OR OF THE MATERIAL
OR WORKMANSHIP THEREOF. LESSEE AGREES THAT THE EQUIPMENT IS LEASED "AS IS".
LESSEE REPRESENTS THAT ALL OF THE EQUIPMENT IS OF A SIZE, DESIGN AND CAPACITY
SELECTED BY IT, AND THAT IT IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S
PURPOSES. NO DEFECT, DAMAGE OR UNFITNESS FOR ANY PURPOSE OF THE EQUIPMENT SHALL
RELIEVE LESSEE OF ANY OBLIGATION UNDER THE LEASE. LESSOR HEREBY ASSIGNS TO
LESSEE ANY AND ALL VENDOR'S WARRANTIES TO THE EXTENT ASSIGNABLE BY LESSOR.
LESSEE AGREES THAT ITS REMEDIES, SHOULD IT FIND FAULT WITH ANY OF THE EQUIPMENT,
SHALL BE AND ARE SOLELY TO THE MANUFACTURER/VENDOR/LICENSOR. THE FOREGOING
SHALL SURVIVE TERMINATION OF THE RESPECTIVE LEASE TERM AND OF THIS LEASE.
7. USE, OPERATION AND MAINTENANCE: Lessee will provide a suitable place for
the installation, operation and maintenance of all Equipment. Lessee, without
expense to Lessor, shall enter into and keep in force during the entire term of
this Lease the best Manufacturer's/Vendor's/Licensor's Maintenance Agreement and
will ensure that Manufacturer(s)/Vendor(s)/Licensor(s) make all necessary
repairs, adjustments, enhancements, updates, changes and replacements in
accordance with the Maintenance Agreement. Lessee shall not do anything, or
fail to do anything, to impair the Manufacturer's/Vendor's/Licensor's warranty
with respect to any Equipment. Lessee shall comply with all laws, rules,
regulations or order of any governmental agency with respect to the Equipment or
to its use, operation, maintenance or storage. Lessor may from time to time
during reasonable business hours enter upon any premises where any of the
Equipment may be located for the purpose of confirming the condition and proper
maintenance of the Equipment.
8. RISK OF LOSS: During any period in which the Equipment is in transit to or
from, or in the possession of Lessee, Lessee shall assume all responsibility for
loss, damage, any or all of the Equipment being confiscated, requisitioned,
lost, stolen, destroyed, irreparably damaged from any cause whatsoever, or
relinquished from Lessee's possession for any reason whatsoever, including, but
not limited to, an unauthorized sale or trade-in (collectively, "Event of
Casualty"), and shall indemnify and hold Lessor harmless against the same.
Lessee shall immediately and fully inform Lessor in writing of any Event of
Casualty. Following an Event of Casualty, Lessee, at its option, provided that
no Event of Default has occurred or is continuing, otherwise at Lessor's option,
shall do one of the following: 1) On the next succeeding rental payment date,
pay to Lessor an amount equal to the Casualty Value as determined by the
Casualty Schedule (for each respective Schedule) as of said rental payment date,
in addition to all past due rentals and other amounts then due and owing, or 2)
Replace the Equipment with identical Equipment of equal or greater value in a
commercially expedient manner, completing documentation required by Lessor to
perfect Lessor's security interest in the replacement Equipment, and provided no
interruption in rental payments. The
Casualty Value shall be calculated by multiplying the Equipment's original cost
(entire amount paid by Lessor to Manufacturer/Vendor/Licensor) by the percentage
factor agreed to by Lessee and Lessor as set forth in the Casualty Schedule.
Upon Lessee's payment to Lessor of the Casualty Value, the rental for such
Schedule(s) shall cease to accrue as of the date the payment is tendered by
Lessee to Lessor, and the term of the Lease as to the Schedule(s) shall
terminate. Insurance proceeds received by Lessor as a result of an Event of
Casualty with respect to any Schedule(s) shall be applied to reduce Lessee's
obligation to pay the Casualty Value.
9. INDEMNITY: Lessee assumes liability for, and hereby agrees, at its own cost
and expense, to indemnify, defend, and hold harmless Lessor, its agents,
employees, officers, directors, successors and assigns, from and against any and
all liabilities, losses, damages, injuries, claims (including, without
limitation, claims based upon strict liability), demands, penalties, actions,
costs and expenses, including legal expenses, of any kind or nature arising out
of the use, condition (including, without limitation, latent and other defects,
whether or not discoverable), operation, ownership, selection, delivery, leasing
or return of any items of Equipment (including, without limitation, any claim
for patent, trademark or copyright infringement), regardless of where, how and
by whom operated, or for any interruptions of service, loss of business or
consequential damages. These provisions shall survive the expiration or
termination of this Lease.
10. INSURANCE: Lessee, at its expense, shall procure and maintain at all times
that this Lease is in effect comprehensive public liability insurance for bodily
injury and property damage resulting from the maintenance, use or transport of
the Equipment; and property and casualty insurance covering all risks of loss or
damage to the Equipment from every cause whatsoever including, without
limitation, fire and theft. All such insurance shall be in such form and amounts
and with such companies as shall be reasonably satisfactory to Lessor. Lessor,
its successor or assigns, shall be named the loss payee with respect to
insurance for damage to or loss of the Equipment and shall be named as an
additional insured on the public liability insurance. All policies shall provide
that no cancellation or material modification of such insurance shall be
effective without thirty (30) days' prior written notice to Lessor, and shall
not be invalidated as to Lessor by any act, omission or neglect of Lessee.
11. TAXES: Lessee shall pay directly, all License fees, registration fees,
assessments and taxes (federal, state and local), which may now or hereafter be
imposed upon the ownership, possession or use of the Equipment, excepting only
those based on Lessor's income, and Lessee shall keep the Equipment free and
clear of all levies, liens or encumbrances arising therefrom. ALL REQUIRED
PERSONAL PROPERTY TAX RETURNS RELATING TO THE EQUIPMENT SHALL BE FILED BY
LESSEE. Lessee covenants and agrees that Lessor shall be entitled to receive any
and all federal and state tax credits and benefits, if any, applicable to the
Equipment.
12. OWNERSHIP: Lessee shall at all times acknowledge, protect and defend, at
its own cost and expense, the title and/or rights of Lessor from and against all
claims, liens and legal processes, and keep all Equipment free and clear from
all such claims, liens, and processes. The Equipment is and shall remain
personal property of Lessor. Upon the expiration or termination of this Lease
with respect to any Schedule(s), Lessee at its expense shall return all
Equipment, free of liens or encumbrances, to Lessor. Title to all Equipment
shall at all times remain in Lessor. In the event that
any of the Equipment is Software, as reflected on any Schedule(s), regardless of
the manner in which Lessee obtained the right to possess and use such Software,
and any underlying agreement(s) between Lessee and Licensor, Lessee and Lessor
hereby agree that, for purposes of this Lease, Lessor shall be deemed the
Licensor, with all Licensor rights, but not any of the obligations, legal and
otherwise. Lessee acknowledges that Lessor has paid Licensor for a perpetual
license on any Software included in this Lease, and that Lessee's use of the
Software during the term of this Lease constitutes full and adequate
consideration from Lessor. Lessee hereby agrees that it will not surrender,
transfer, substitute or modify any license agreement pertaining to any Software
that is the subject of any Schedule(s) without first obtaining the written
consent of Lessor.
13. EFFECTS OF TERMINATION OR EXPIRATION OF LEASE TERM: Immediately upon
expiration or termination of the last applicable Lease Term ("Lease
Termination") as defined under this Lease, Lessee shall fully discontinue its
use of and return to Lessor all of the Equipment. In addition to Lessee's
completing any documentation requested by Lessor to ensure that Lessee is
returning to Lessor all of the Equipment in a manner consistent with the terms
of this Lease, upon Lessor's written request, an authorized officer of Lessee
shall, within ten (10) days thereafter, provide Lessor with a certified written
statement, that: (i) all such tangible Equipment, and/or Software has been
delivered to Lessor; (ii) all intangible records thereof have been destroyed;
(iii) Lessee has not retained such Equipment and/or Software in any form; (iv)
Lessee will not use any Software after termination; and (v) Lessee has not
received from Licensor(s) anything of value relating to or in exchange for
Lessee's use, lease or possession of the Software (including, without
limitation, a trade-in, substitution or upgrade allowance, the right to use the
Software for additional periods or on additional hardware or at additional
locations) other than Lessee's rights to use the Software during the term(s) of
this Lease. Lessee hereby grants Lessor the right (which shall survive
termination of this Lease) to inspect all of Lessee's locations during
reasonable business hours to insure compliance with the provisions of this
paragraph. If for any reason whatsoever Lessee does not immediately return all
of the Equipment upon any Schedule's effective expiration date, the Lease will
continue in full force and effect as to the Equipment not being returned
(hereafter the "Holdover Equipment"), on a month-to-month rental subject to one
hundred twenty (120) days' prior written notice of termination by either party.
The monthly rental for the Holdover Equipment shall be the original cost of the
Equipment multiplied by a monthly lease rental factor of eight percent (8%). The
resulting monthly rental shall become due from and payable by Lessee to Lessor,
pursuant to all the terms and conditions of the Lease.
14. PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR: If Lessee fails to perform
any of its obligations under this Lease, Lessor may, at its option, perform the
same for the account of Lessee without thereby waiving Lessee's default, and any
amount paid, expense (including reasonable attorneys' fees), penalty or other
liability incurred by Lessor in such performance shall be payable by Lessee to
Lessor upon demand.
15. DEFAULT: An Event of Default shall occur if: (a) Lessee fails to pay any
installment of rent, or other payment when due, and such failure is not cured
within ten (10) days after written notice thereof; (b) Lessee fails to perform
or observe any of its covenants or obligations set forth in this Lease, and such
failure is not cured for fifteen (15) days after written notice thereof; (c) Any
representation or warranty made by Lessee in this Lease or in any documents in
connection with this
Lease shall be untrue in any material respect; (d) Lessee ceases doing business
as a going concern, makes an assignment for the benefit of creditors, admits in
writing its insolvency, files a voluntary petition in bankruptcy, is adjudicated
bankrupt or insolvent, files a petition, or takes any action seeking any
reorganization, liquidation, dissolution or similar arrangement, or files an
answer admitting the material allegations of a petition filed against it in any
such proceeding, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator of it or of all or a substantial part of its assets; (e)
within sixty (60) days after the commencement of proceedings against Lessee or
its assets seeking reorganization, liquidation, dissolution, attachment or
execution or similar relief, such proceeding shall not have been dismissed, or
if within sixty (60) days after the appointment, without Lessee's consent, of
any trustee, receiver of liquidator of it or all or any substantial part of its
assets, such appointment shall not be vacated; (f) Lessee attempts to remove,
transfer, sell, sublicense, encumber, part with possession, or sublet the
Equipment without Lessor's prior written consent; (g) Lessee attempts to assign
or transfer this Lease or its interest hereunder without Lessor's prior written
consent, or (h) through sale, assignment, buyout, bankruptcy, merger, or any
change of ownership of any type, form or manner, Lessee's credit worthiness
materially deteriorates as judged solely by Lessor.
16. REMEDIES: If an Event of Default shall occur, Lessor may exercise at its
sole option, but not specifically limited thereto, any one or more of the
following remedies: (a) terminate this Lease and any and/or all of the Schedules
annexed hereto and Lessee's rights hereunder, (b) by court action or other legal
proceeding, enforce performance by Lessee of the applicable covenants of this
Lease or recover damages for the breach, (c) by notice in writing to Lessee,
recover all amounts due on or before the date Lessor declared this Lease to be
in default, plus, as liquidated damages for loss of a bargain and not as a
penalty, accelerate, and declare to be immediately due and payable the present
value of all rentals and other sums payable hereunder discounted at six percent
(6%) without any presentment, demand, protest or further notice (all of which
hereby are expressly waived by Lessee), whereupon the same shall be immediately
due and payable, and (d) enter upon Lessee's premises where any of the Equipment
is located with or without notice or process of law and free from all claims by
Lessee and take immediate possession of the Equipment. The exercise of any of
the foregoing remedies by Lessor shall not constitute a termination of this
Lease unless Lessor so notifies Lessee in writing. At Lessor's sole option,
Lessor may sell, lease or otherwise dispose of the Equipment in any form or
manner determined by Lessor. In the event that Lessor releases the Equipment,
any rental received therefrom by Lessor for the remaining Lease Term (as defined
in this Lease) shall be applied to the payment of: (i) all costs and expenses
(including reasonable attorneys' fees) incurred by Lessor, and (ii) the rentals
for the remainder of the Lease Term and all other sums then remaining unpaid
under this Lease. All rentals received by Lessor for the period commencing after
the remaining Lease Term shall be retained by Lessor. In the event that Lessor
shall sell the Equipment, the proceeds thereof shall be applied to the sum of:
(i) all costs and expenses (including reasonable attorneys' fees) incurred by
Lessor in repossessing and disposing of such Equipment, (ii) rentals accrued
under this Lease, but unpaid up to the time of such disposition, (iii) any and
all other sums other than rentals then owing to Lessor by Lessee hereunder, and
(iv) the Casualty Value of such Equipment determined as of the date of such
disposition in accordance with Section 8 herein. The remaining balance of such
proceeds, if any, shall be applied first to reimburse Lessee for any sums
previously paid by Lessee as liquidated damages, and any remaining amounts shall
be retained by Lessor. Lessee shall remain liable to Lessor to the extent that
the aggregate amount of the sums
referred to in clauses (i) and (ii) above in the event of a release, and clauses
(i), (ii), (iii) and (iv) in a sale and/or disposition exceed the aggregate
rentals received by Lessor under such Schedule(s) for the respective remaining
Lease Term and/or aggregate proceeds received by Lessor in connection with the
disposition of the Equipment covered by such Schedule(s). Lessor'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.
17. APPLICABLE LAW: THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND ALL
ACTIONS ARISING THEREUNDER, WHETHER BASED IN TORT AND/OR ON CONTRACT, OR
OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF
CALIFORNIA (EXCLUSIVE OF PRINCIPLES OF CONFLICT OF LAWS). 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 shall be entitled to recover reasonable
attorneys' fees, costs of suit and collection from the other party. Lessee
agrees that any causes of action, disputes or demands whatsoever which relate to
or arise from this Lease shall, at the election of Lessor or its assignee, be
filed and conducted exclusively in the Courts of the State of California, County
of Orange, including but not limited to Superior or Municipal Court. Lessee
hereby voluntarily and irrevocably consents, and agrees to submit to the
personal jurisdiction of the Courts of the State of California, County of
Orange, and Lessee hereby waives its rights to a jury trial in any litigation
arising out of this Lease or Equipment.
18. TRANSPORTATION; INSTALLATION/DEINSTALLATION; RETURN: All installation,
deinstallation, including packing materials and maintenance
certification/recertification by the Manufacturer/Vendor/Licensor,
transportation, rigging and drayage charges on delivery or redelivery of the
Equipment to and from Lessee shall be paid by Lessee. Upon expiration or
termination of the Lease for any item of Equipment, Lessee shall promptly return
the Equipment, freight prepaid, to a location in the continental United States
specified by Lessor, and shall pay to Lessor an amount equal to three percent
(3%) of the Equipment's original cost as an inspection, refurbishment and
restocking fee.
19. FURTHER ASSURANCES: Lessee's signing of this Lease and each Schedule
attached thereto, or any Schedule later signed by Lessee that is to be attached
to this executed Lease, shall constitute an offer to Lessor to enter into the
Lease. In consideration of Lessor's time and efforts in reviewing and acting on
the offer, Lessee agrees that its offer shall be irrevocable unless and until
revoked by Lessee by providing twenty (20) business days' prior written notice
of such revocation to Lessor. Lessor's signing of this Lease and each Schedule
attached thereto, or any Schedule later signed by Lessee that is to be attached
to this executed Lease, shall constitute acceptance of Lessee's offer to enter
into the Lease. Upon acceptance of the Lease by Lessor and/or Lessor's
assignment of the Lease, Lessee shall execute such instruments and other
documents as Lessor deems necessary or desirable for confirmation, assignment
and assurance of performance by Lessee of its obligations hereunder or for
perfection of the Lease including, but not limited to, the filing of the Lease
or the filing of Uniform Commercial Code Financing Statements (which Lessee
agrees may be executed by Lessor on Lessee's behalf). Lessee will promptly
reimburse Lessor for any filing or recordation fees or expenses (including lien
search fees, legal fees and costs) incurred by Lessor in perfecting or
protecting its interests in the Equipment and under the Lease. Lessee further
authorizes Lessor
to insert applicable dates as necessary to complete such supplemental
documentation. Prior to Lessor's acceptance of the Lease and during the Base
Lease Term or any extension period, Lessee shall also provide Lessor with all
credit information reasonably requested by Lessor, including but not limited to
comparative audited financial statements for the most current year and interim
reporting period. Lessee's failure to provide such information to Lessor shall
be an event of default under Section 15 herein. With respect to each Schedule
attached to this Lease, Lessor, in its sole and absolute discretion, may
require, as a condition of its approval, Lessee to provide Lessor with a lease
guarantee(s) in form and substance acceptable to Lessor (the "Lease
Guarantee(s)") from such individual(s), partner(s) and/or affiliated
corporation(s) who have substantial control over Lessee's operations. Lessee
agrees to procure such Lease Guarantee(s) promptly upon Lessor's written
request.
20. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents,
warrants and covenants that with respect to this Lease or any attachment
executed thereunder, that: a) the execution, delivery and performance thereof by
Lessee has been duly authorized by Lessee; b) the individual(s) signing on
behalf of Lessee has authority to do so; c) any and all financial statements or
other information supplied to Lessor are accurate and complete and d) the
execution and/or performance thereof will not result in any default under or
breach of any judgment, order, law or regulation applicable to Lessee, or of any
provision of Lessee's articles of incorporation, bylaws, or any agreement to
which Lessee is a party.
21. NOTICES: All notices to Lessor must be delivered in person to an officer of
Lessor or sent certified mail return receipt requested to Lessor at its address
shown above or at any later address last known to sender. All notices to Lessee
shall be in writing and shall be delivered by mail at its address shown herein
or at any later address last known to the sender.
22. AGREEMENTS: All agreements and representations contained in this Lease, or
in any document or certificate in connection herewith, shall survive the
expiration or other termination of this Lease. Any provision of this Lease which
may be determined by competent authority to be unenforceable in any jurisdiction
shall be ineffective, as to such jurisdiction, to the extent of such
unenforceability without invalidating the remaining provisions hereof. To the
extent permitted by applicable law, Lessee hereby waives any provision of law
which renders any provision hereof prohibited or unenforceable. Time is of the
essence for this Lease.
23. ASSIGNMENT: WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT
ASSIGN THIS LEASE OR ITS INTEREST HEREUNDER IN ANY FORM OR MANNER. LESSOR MAY
WITHOUT NOTICE TO LESSEE ASSIGN ALL OR ANY PORTION OF ITS RIGHT, TITLE,
INTEREST, OR ANY OTHER RIGHTS IT MAY HAVE AS AN OWNER AND LESSOR OF THE
EQUIPMENT TO ANY ASSIGNEE ("ASSIGNEE"). LESSEE HEREBY CONSENTS TO SUCH
ASSIGNMENT AND FURTHER ACKNOWLEDGES AND AGREES THAT ASSIGNEE DOES NOT ASSUME ANY
OF THE OBLIGATIONS OF LESSOR HEREUNDER, AND, IF SO DIRECTED BY LESSOR, TO PAY
ALL ASSIGNED RENTALS DUE UNDER THE LEASE DIRECTLY TO ASSIGNEE UNCONDITIONALLY
WITHOUT OFFSET AND THAT SUCH RENTALS 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 IT MAY OR MIGHT NOW OR HEREAFTER HAVE AS AGAINST
LESSOR (LESSEE RESERVING ITS RIGHT TO HAVE RECOURSE DIRECTLY AGAINST LESSOR ON
ACCOUNT OF ANY SUCH DEFENSE OR COUNTERCLAIM), AND THAT SUBJECT TO AND WITHOUT
IMPAIRMENT OF LESSEE'S LEASEHOLD RIGHTS IN AND TO THE EQUIPMENT, LESSEE SHALL
HOLD THE EQUIPMENT AND THE POSSESSION THEREOF FOR THE ASSIGNEE TO THE EXTENT OF
THE ASSIGNEE'S RIGHTS THEREIN, AND THAT ANY ASSIGNMENT BY LESSOR WOULD NOT
MATERIALLY ALTER THE DUTIES OF, NOR THE BURDEN OF RISK IMPOSED ON THE LESSEE.
24. UNIFORM COMMERCIAL CODE ACKNOWLEDGMENT: This Lease is a "Finance Lease" as
defined in, and for the purpose only of Division 10 of the California Commercial
Code and not necessarily for any accounting purpose or otherwise. Lessee
acknowledges that Lessor 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. The terms "Finance Lease",
"Supply Contract" and "Supplier" as used herein have the meanings ascribed to
them under Division 10 of the California Commercial Code.
THIS LEASE CAN BE MODIFIED BY WRITTEN ADDENDUM DULY SIGNED BY PERSONS AUTHORIZED
TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY A DULY AUTHORIZED OFFICER OF
TRIMARC FINANCIAL. LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT LESSOR DOES NOT AND
HAS NOT ENGAGED ANYONE TO REPRESENT LESSOR IN ANY CONNECTION WHATSOEVER WITH
THIS LEASE. NO WRITTEN AND/OR ORAL REPRESENTATION BY ANY THIRD PARTY OR ANYONE
EMPLOYED BY LESSOR (OTHER THAN WRITTEN REPRESENTATIONS DULY EXECUTED BY
AUTHORIZED OFFICERS OF LESSOR) IS BINDING UPON LESSOR. LESSOR AND LESSEE
ACKNOWLEDGE THAT THERE ARE NO AGREEMENTS OR UNDERSTANDINGS, WRITTEN OR ORAL,
BETWEEN THEM WITH RESPECT TO THE EQUIPMENT OTHER THAN THE TERMS AND CONDITIONS
OF THIS LEASE, AND THE SCHEDULE(S) HERETO, AND ADDENDA A. B. AND C.
Lessee:x Lessor: [Signature of Xxxxx X. Xxxxx]
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Authorized Signature Authorized Signature
THIS LEASE IS SUBJECT TO APPROVAL AND ACCEPTANCE BY TRIMARC FINANCIAL'S FINANCE
COMMITTEE.
By execution hereof, the signer hereby certifies that he has read this Lease,
and all Schedule(s) attached hereto. Until this Lease (or an identical
counterpart thereof) has been signed by a duly authorized officer of Trimarc
Financial it shall constitute an offer by Lessee to enter into this Lease
Agreement with Lessor on the terms stated herein.
Lessee: NETSOLVE, INCORPORATED LESSOR: T r i m a r c F i n a n c i a l
---------------------------------
Signature: Signature:
[Signature of Xxxxx X. Xxxxxx] [Signature of Xxxxx X. Xxxxx]
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Name: XXXXX X. XXXXXX Name: XXXXX X. XXXXX
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Title: PRESIDENT & CEO Title: VICE PRESIDENT
-------------------------------------- ----------------------------------------
Date Offered:x JANUARY 30, 1998 Date Accepted: JANUARY 30, 1998
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