MASTER LEASE AGREEMENT
Agreement No. 10840 Dated as of September 28, 1998
between
DOMINION VENTURES, INC.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
as Lessor
and
KARTOFFELSOFT INCORPORATED (D/B/A/ HOMESTEAD TECHNOLOGIES, INC.)
a Delaware corporation
0000 Xxxxxx Xxx, Xxxxx ___
Xxxxx Xxxx, XX 00000
as Lessee
Master Lease Line: $350,000.00
Rent Factor I: .7083% Initial Lease Term: 42 months
Rent Factor II: 3.686%
Advance Rental: $12,901 Security Deposit: $ 0
(PLUS APPLICABLE TAXES)
Minimum Funding Amount: $25,000 Maximum Funding Frequency: monthly
Funding Expiration Date: May 15, 1999
Eligible Equipment: New and/or used computers, furniture, software and office
equipment. Software not to exceed fifteen (15%) of the
lease line. All equipment to be purchased must be approved
by Lessor.
ORIGINAL COUNTERPART NO. __
The terms and information set forth on this cover page are a part of
the MASTER LEASE AGREEMENT, dated as of the date first written above (this
"Lease"), entered into by and between DOMINION VENTURES, INC. ("Lessor") and
the Lessee set forth above, the terms and conditions of which are as follows:
LESSOR'S OBLIGATIONS UNDER THIS LEASE AND EACH SCHEDULE ARE SUBJECT TO
THE PRIOR SATISFACTION OF THE CONDITIONS SET FORTH ON ADDENDUM I HERETO.
1. DEFINITIONS: Unless otherwise defined in this Lease (which term
shall include the cover page, any Addendum, any Exhibit and any Schedule
hereto), capitalized terms shall have the following meanings:
(a) "ACCEPTANCE CERTIFICATE" means the Certificate of Inspection and
Acceptance in the form attached hereto as Exhibit D.
(b) "ACCEPTANCE DATE" means, with respect to each Schedule, the date
of the Acceptance Certificate executed in connection with such
Schedule.
(c) "ADVANCE RENTAL" has the meaning set forth in Paragraph 5(a) and
is in the amount as set forth on the cover page.
(d) "ASSIGNEE" has the meaning set forth in Paragraph 11(b).
(e) "XXXX OF SALE" means a xxxx of sale in the form attached hereto as
Exhibit C.
(f) "COMMENCEMENT DATE" has the meaning set forth in Paragraph 4.
(g) "COST" means the cost to Lessor of purchasing one or more Units of
Equipment including any sales taxes and other charges paid by
Lessor and net of any discounts and rebates.
(h) "DISCOUNT RATE" means, as of any date of determination, the lesser
of (i) the then current per annum interest rate for one-year
United States treasury bills as set forth in the WALL STREET
JOURNAL on such date and (ii) six percent (6%).
(i) "ELIGIBLE EQUIPMENT" means Equipment of the types listed following
such term on the cover page of this Lease to the extent acceptable
to Lessor.
(j) "ENVIRONMENTAL LAW" means the Resource Conservation and Recovery
Act of 1987, the Comprehensive Environmental Response,
Compensation and Liability Act, and any other Federal, state or
local statute, law, ordinance, code, rule, regulation, order or
decree (in each case having the force of law) regulating or
imposing liability or standards of conduct concerning any
Hazardous Materials or other hazardous, toxic or dangerous waste,
constituent, or other substance, whether solid, liquid or gas, as
now or at any time hereafter in effect.
(k) "EQUIPMENT" means all Units listed in any Schedule together with
all replacement parts, additions, accessions and accessories to
such Units.
(l) "EVENT OF DEFAULT" shall have the meaning set forth in Paragraph
24 hereof.
(m) "FINANCIAL STATEMENTS" has the meaning set forth in Paragraph
19(a).
(n) "FUNDING EXPIRATION DATE" means the date set forth opposite such
term on the cover page of this Lease or such earlier date on which
Lessor terminates its commitment to fund Schedules pursuant to the
terms of this Lease.
(o) "HAZARDOUS MATERIAL" means any hazardous or toxic substance,
material, pollutant or waste, whether solid, liquid or gaseous,
which is regulated by any Federal, state or local governmental
authority.
(p) "HOLDOVER PERIOD" has the meaning set forth in Paragraph 18.
(q) "INITIAL LEASE TERM" means, with respect to each Schedule, the
period beginning on the first day of the calendar month following
the Acceptance Date for such Schedule and continuing for the
number of months set forth following such term on the cover page
of this Lease.
(r) "INTERIM RENT" shall have the meaning set forth in Paragraph 5(b)
of this Lease.
(s) "LEASE TERM" means, with respect to each Schedule, the
Noncancellable Term and any Holdover Period.
(t) "LESSOR AFFILIATE" has the meaning set forth in Paragraph 11(c)
hereof.
(u) "MASTER LEASE LINE" means the amount set forth following such term
on the cover page of this Lease.
(v) "MAXIMUM FUNDING FREQUENCY" means the time interval specified
opposite such term on the cover page hereof.
-1-
(w) "MINIMUM FUNDING AMOUNT" means the amount set forth following such
term on the cover page of this lease.
(x) "NONCANCELLABLE TERM" means, with respect to each Schedule, the
period from the Acceptance Date for such Schedule through the end
of the Initial Lease Term for such Schedule.
(y) "PURCHASE ORDER ASSIGNMENT" means a purchase order assignment in
the form of Exhibit B hereto.
(z) "RENT FACTOR" means the Rent Factor applicable to each Schedule
which is set forth on the cover page of this Lease.
(aa) "RENTAL PAYMENT" means, for any Schedule, the monthly rent payment
for the Units identified in such Schedule.
(bb) "RESIDUAL VALUE" has the meaning set forth in Paragraph 22(b) of
this Lease.
(cc) "SCHEDULE" means a schedule in the form of Exhibit F to this Lease
identifying this Lease and incorporating this Lease by reference,
which is executed by both parties hereto.
(dd) "UCC" means the Uniform Commercial Code as in effect in the State
of California from time to time.
(ee) "UNIT" means an item of Equipment.
2. LEASE. Lessor leases to Lessee, and Lessee hires and takes from
Lessor, subject to the terms and conditions set forth in this Lease, the Units
described in the Schedules executed hereunder. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee
incorporating the terms of this Lease. Lessor's commitment to fund Schedules
under this Lease continues through the Funding Expiration Date and is limited to
the amount of the Master Lease Line; provided, however, that Lessor, acting in
its sole discretion, may terminate or modify its funding commitment at any time
if: (a) there is any material adverse change to the general affairs, management,
results of operations, condition (financial or otherwise) or prospects of
Lessee, whether or not arising from transactions in the ordinary course of
business, (b) there is any material adverse deviation by Lessee from the
business plan (as it may have been supplemented in writing) of Lessee presented
to Lessor, since the date first written on the cover page of this Lease, (c) any
Event of Default or event which with the passage of time or notice or both would
constitute an Event of Default exists, or (d) if any term or condition in any
Schedule is not satisfied prior to the Acceptance Date with respect to such
Schedule. Each Schedule shall be funded in an amount not less than the Minimum
Funding Amount and not more frequently than the Maximum Funding Frequency. No
Unit of Equipment shall have a unit cost of less than $1,000 or be subject to a
single invoice of less than $5,000.
3. EQUIPMENT SUBJECT TO LEASE. Lessee shall select the type and
quantity of Equipment (which Equipment shall in each case be Eligible Equipment
acceptable to Lessor) to be subject to each Schedule. Subject to the terms and
conditions of this Lease: (i) if such Equipment is not previously owned by
Lessee and is not subject to a purchase order issued by Lessee, Lessor shall at
Lessee's direction order each Unit from the respective suppliers, and upon
delivery and acceptance by Lessee each such Unit shall be leased to Lessee
hereunder; (ii) if Lessee has previously issued its purchase order to a
supplier, Lessee shall execute a Purchase Order Assignment assigning such
purchase order to Lessor and the Units subject to such purchase order, upon
delivery and acceptance by Lessee, shall be leased to Lessee hereunder; or (iii)
if Lessee owns the Equipment which it intends to make subject to this Lease,
Lessee shall execute a Xxxx of Sale transferring title to such Equipment to
Lessor at the purchase price agreed to between Lessor and Lessee according to an
appraisal undertaken at the expense of Lessee (except in the case of Equipment
placed in service by Lessee not more than sixty (60) days prior to the date of
any Schedule for which the purchase price shall be the original cost to Lessee
thereof (net of freight, taxes, installation and similar costs). Lessee
acknowledges that Lessor may have the ability to obtain discounts or rebates not
available to Lessee from suppliers from which Lessor buys in volume. Any
discounts or rebates remitted to Lessee shall be turned over to Lessor and Cost
of the Equipment set forth on any Schedule shall be deemed to be the Cost net of
such discount or rebate. Any request by Lessee to Lessor to purchase Equipment
directly or by assignment of a purchase order shall be irrevocable.
4. TERM. This Lease is effective upon execution hereof by Lessor and
shall continue until full performance of every provision of this Lease; provided
that Lessor's obligations to fund any Schedule are subject to the
-2-
prior satisfaction by Lessee of the conditions set forth in Part 1 of
Addendum I to this Lease. All obligations under each Schedule shall commence
upon Lessee's execution of an Acceptance Certificate and Schedule for the
Units to be subject to such Schedule and Lessor's countersignature on such
Schedule; provided that Lessor's obligation to fund such Schedule is subject
to the prior satisfaction by Lessee of the conditions set forth in Part 2 of
Addendum I to this Lease. The Initial Lease Term with respect to each
Schedule shall begin on the first day of the calendar month following the
Acceptance Date (the "Commencement Date").
5. RENTAL PAYMENTS.
(a) ADVANCE RENTAL. Upon execution of this Lease, Lessee shall pay to
Lessor an advance payment in an amount equal to Rent Factor II multiplied by the
Master Lease Line (plus applicable taxes) (the "Advance Rental"). A pro-rata
portion of the Advance Rental shall be deemed to prepay as of the date of this
Lease the last Rental Payment for each Schedule. If the Master Lease Line has
not been fully expended by the Funding Expiration Date, Lessor shall retain the
unutilized portion of the Advance Rental as compensation for expenses.
(b) INTERIM RENT. If the Acceptance Date with respect to any Schedule
shall be other than the first day of the calendar month, Lessee shall make
interim rental payments ("Interim Rent") for each day from and including the
Acceptance Date, through and including the last day of the calendar month prior
to the beginning of the Initial Lease Term in an amount equal to one-thirtieth
of the monthly Rental Payment set forth on the Schedule. Such Interim Rent
shall be due and payable on the first day of the calendar month following the
month for which such payment is assessed.
(c) RENTAL PAYMENTS. Lessee shall pay to Lessor, (i) as rental for
Equipment during the first twelve (12) months of the Initial Lease Term of any
Schedule, an amount equal to Rent Factor I set forth on the cover page of this
Lease multiplied by the total Cost of the Equipment to Lessor, which amount
shall be due and payable in advance on the first day of each calendar month
during the Initial Lease Term, and (ii) as rental for Equipment for months
thirteen (13) through month forty-two (42) of the Initial Lease Term of any
Schedule and during any Holdover Period, an amount equal to Rent Factor II set
forth on the cover page of this Lease multiplied by the total Cost of the
Equipment to Lessor, which amount shall be due and payable in advance on the
first day of each calendar month during months thirteen (13) through month
forty-two (42) of the Initial Lease Term and during any Holdover Period. In
addition to any other remedies that Lessor may have under this Lease, if Lessee
fails to pay any Rental Payment or Interim Rent or other amount herein provided
within five (5) business days after the same is due, Lessee shall pay to Lessor
a late charge calculated daily from the due date until the date of payment, at
the rate of two percent (2%) of such amount per month, or at the highest rate
permitted by applicable law, whichever is less, to compensate Lessor for
additional bookkeeping and collection expense. All Rental Payments, Advance
Rental, Interim Rent, late charges and other amounts for which Lessee is liable
shall be paid to Lessor at its address as set forth above or as otherwise
directed by Lessor.
(d) AUTOMATIC TRANSFERS. If Lessee so agrees, Lessor will initiate
monthly debit entries to Lessee's bank account for payment of Rental Payments on
the fifth business day of each month. If Lessee agrees to automatic transfers,
Lessee will provide depository and account information to Lessor and shall
execute or cause to be executed such supplemental agreements as Lessor deems
necessary in order to instate and maintain automatic transfer payments by Lessee
to Lessor. Other amounts due hereunder will be invoiced to Lessee by Lessor and
shall be due and payable within five (5) days of receipt of invoice.
6. CHARACTERIZATION OF LEASE; WARRANTIES; WAIVERS; LIABILITY.
(a) CHARACTERIZATION OF LEASE. It is the intent of Lessor and Lessee
that this Lease be a true lease and not a lease intended as security or a
conditional sales agreement. Lessor and Lessee agree to treat this Lease as a
true lease for income tax purposes. Lessor and Lessee agree that this Lease is
a "finance lease" as that term is defined by Section 10103(a)(7) of the UCC.
With respect to the Equipment subject to each Schedule, Lessee acknowledges and
warrants as
-3-
of the date of such Schedule that (i) Lessee has received a copy of
the contract(s) pursuant to which Lessor acquired the Equipment (the "Supply
Contract"), or (ii) Lessee has reviewed and approved the Supply Contract, or
(iii) Lessor has informed Lessee in writing that Lessee may have rights under
the Supply Contract and that Lessee should contact the supplier for a
description of any such rights. LESSOR AND LESSEE AGREE THAT THIS LEASE IS A
"NET" LEASE, AND LESSEE'S OBLIGATION TO MAKE RENTAL PAYMENTS AND PAY OTHER SUMS
WHEN DUE AND OTHERWISE PERFORM ITS OBLIGATIONS UNDER THIS LEASE SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO OR AFFECTED BY OR
REDUCED BY ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT, RECOUPMENT OR OTHER RIGHT WHICH LESSEE MAY HAVE AGAINST
LESSOR, THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR ANY OTHER PERSON.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO DEFECT OR UNFITNESS OF ANY
ITEM OF EQUIPMENT NOR OTHER CLAIM REGARDING CONDITION OR USE OF THE EQUIPMENT
SHALL RELIEVE LESSEE OF THE OBLIGATION TO MAKE RENTAL PAYMENTS, PAY ANY OTHER
SUM WHEN DUE OR OTHERWISE PERFORM ANY OTHER OBLIGATION DUE TO LESSOR AND ITS
SUCCESSORS AND ASSIGNS UNDER THIS LEASE.
(b) WARRANTIES. Lessor warrants that, so long as no Event of Default
has occurred and is continuing, neither Lessor nor its successors or Assignees
or anyone acting or claiming through Lessor will interfere with Lessee's quiet
enjoyment and use of the Equipment. EXCEPT FOR LESSOR'S WARRANTY OF QUIET
ENJOYMENT, LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE EQUIPMENT AND
ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT LIMITATION
ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Until the
Lease is terminated, Lessor hereby assigns to Lessee and Lessee shall have the
benefit of, any and all manufacturer's warranties, service agreements and
intellectual property indemnities, if any, with respect to each Unit. Lessee's
sole remedy for the breach of any such warranty, indemnification or service
agreement shall be against the manufacturer or supplier of such Equipment and
not against Lessor, nor shall any such breach have any effect whatsoever on the
rights and obligations of Lessor or Lessee hereunder.
(c) WAIVERS. Lessee hereby specifically waives any and all rights and
remedies conferred upon Lessee by UCC Sections 10508 through 10522, including
(without limitation) Lessee's rights to (i) cancel or repudiate this Lease, (ii)
reject or revoke acceptance of any Unit, (iii) recover damages from Lessor for
breach of warranty or for any other reason, (iv) claim a security interest in
any rejected property in Lessee's possession or control, (v) deduct from Rental
Payments all or any part of any claimed damages resulting from Lessor's default
under this Lease, (vi) accept partial delivery of the Equipment, (vii) "cover"
by making any purchase or lease of other property in substitution for properly
due from Lessor, (viii) recover from the Lessor any general, special, incidental
or consequential damages, for any reason whatsoever, and (ix) seek specific
performance, replevin or the like for any of the Units. To the extent permitted
by applicable law, Lessee also hereby waives any rights now or hereafter
conferred by statute or otherwise which may require Lessor to sell, lease or
otherwise use any Equipment in mitigation of Lessor's damages except as set
forth in Paragraph 26 of this Lease or which may otherwise limit or modify any
of Lessor's rights or remedies under Paragraph 25. Notwithstanding the
foregoing, nothing in this Lease shall be construed as a waiver of Lessee's
right to seek a separate recovery of any Rental Payment that is not due and
payable under this Lease, and Lessee retains the right to seek damages or other
remedies on account of Lessor's failure to perform its obligations under this
Lease.
(d) LIABILITY. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE
MANUFACTURER, SUPPLIER OR DISTRIBUTOR OF THE EQUIPMENT, THAT SAID ENTITIES ARE
NOT AGENTS OF LESSOR, THAT LESSEE RENTS THE EQUIPMENT "AS IS", AND THAT LESSOR
HAS ACCEPTED NO RESPONSIBILITY FOR THE TRANSPORTATION, INSTALLATION OR REQUIRED
LICENSING NECESSARY FOR THE TRANSFER, INSTALLATION OR USE OF THE EQUIPMENT.
LESSEE HEREBY
-4-
WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY
IN TORT) WHICH IT MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY
BY THE EQUIPMENT, ITS USE OR MAINTENANCE, OR ANY DELAY OR FAILURE TO PROVIDE
ANY UNIT OF EQUIPMENT, OR ANY INTERRUPTION OF SERVICE OR LOSS OF USE OF THE
EQUIPMENT. If any Unit is unsatisfactory for any reason, Lessee shall make
any claim solely against the manufacturer or supplier of the Unit. Lessor
shall not be liable for specific performance of this Lease or for damages if
for any reason a supplier declines, delays or fails to fill any order.
7. ADJUSTMENTS FOR ACTUAL COST. Upon Lessee's request, Lessor may,
but shall have no obligation to, fund a Schedule which would cause the aggregate
Cost of Equipment on all Schedules funded under this Lease to exceed the Master
Lease Line. If at any time the actual aggregate Cost of all Equipment exceeds
the Master Lease Line, the Advance Rental shall be increased proportionately.
Lessee shall pay any additional sums for Advance Rental due under this Lease
within five (5) business days after receiving notice from Lessor. Lessee may
not request funding for a Schedule which would cause the aggregate Cost of
Equipment under all Schedules funded under this Lease to exceed the Lease Line
by more than ten percent (10%).
8. TITLE. All Equipment shall remain personal property, and the
title thereto shall remain exclusively in Lessor, notwithstanding the manner in
which any Unit may be attached to realty. Lessee agrees, upon the request of
Lessor at any time during the Lease Term, to affix or permit Lessor to affix, in
a permanent place on any Unit, labels supplied by Lessor identifying the
Equipment as property of Lessor, and shall not alter or remove any such label
from any Unit. Lessee shall keep the Equipment free from any and all liens and
encumbrances except those created by Lessor. Lessee shall give Lessor immediate
notice of any judicial process or encumbrance affecting the Equipment and shall
indemnify and save Lessor harmless from any loss or damage caused thereby,
including without limitation court costs, reasonable attorney fees and expenses.
9. FILING. Lessee shall execute or cause to be executed, at Lessee's
sole expense, such supplemental instruments, financing statements and landlord's
waivers as Lessor deems necessary or advisable and shall cooperate to defend the
title of Lessor in the Equipment by filing or otherwise. Lessee authorizes
Lessor to record in any state, this Lease and any financing statements, security
agreements and landlord's waivers with respect to the Equipment or any
collateral provided by Lessee to Lessor. Lessee agrees to give Lessor thirty
(30) days written notice of any change in Lessee's name or place of business.
Lessee agrees to give written notice to Lessor as soon as Lessee has knowledge
of any change of ownership of the real property upon which or within which the
Equipment is located.
10. TAXES. Lessee shall pay in a timely fashion, and shall indemnify
and hold Lessor harmless against all federal, state and local taxes,
assessments, license and registration fees, and other governmental charges of
any kind including, without limitation, those levied on motor vehicles or
trailers, and any interest or penalties thereon, which may be levied, directly
or indirectly, against the Equipment or with respect to its ordering,
purchasing, delivery, ownership, possession, use, leasing, documentation, and
return or other disposition thereof, regardless of whether such taxes and fees
are levied against Lessor or Lessee. Such taxes and fees to be paid by Lessee
shall include, without limitation, property, sales, rent, franchise, gross
receipts, lease, and use taxes, and any other tax measured by gross Rental
Payments, but shall not include income or franchise taxes based on Lessor's net
income and payable by Lessor on its receipt of Rental Payments hereunder.
Personal property taxes shall be reasonably estimated by Lessor and billed to
Lessee as of the date of assessment each year. Upon receipt by Lessor of the
final personal property tax assessment and invoice, Lessor shall invoice or
credit Lessee, as applicable, for any differences of such final assessment and
Lessor's original estimate. Lessor shall have the right, but not the
obligation, to pay any such taxes or fees regardless of whether levied against
Lessor or Lessee. Any and all sales or use taxes levied against Lessor's
purchase of Equipment shall be added to the total Cost of such Equipment as
specified on the Schedule under which such Equipment is added to this Lease.
With the exception of taxes and fees which are added to the total Cost of
Equipment hereunder, Lessee shall reimburse Lessor within five (5)
-5-
days after receipt of invoice from Lessor specifying the amount of, and
reason for, any payment by Lessor of amounts for which Lessee is liable under
this Paragraph 10. Lessee shall timely prepare and file all reports and
returns which are required to be made with respect to such taxes and/or fees,
and all such reports shall show Lessor as owner of the Equipment.
11. ASSIGNMENTS AND SUBLEASES.
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT
ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR
TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL
OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF
EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If
notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of
the sublessee or other transferee will be subject and subordinate to all of the
terms of this Lease, including Lessor's right of repossession on the occurrence
of an Event of Default. Lessee will remain primarily liable for the performance
of all of the terms of this Lease to the same extent as if the sublease or
transfer of possession had not occurred. Lessor and Lessee agree that any
purchase of all or substantially all of Lessee's assets, any merger or
consolidation into or with Lessee regardless of whether Lessee is the surviving
entity or any entity acquiring more than twenty percent (20%) of Lessee's voting
securities shall be deemed to be a Transfer under this Lease.
(b) Lessor shall have the right, in its sole discretion, to assign,
sell, pledge, grant a security interest in or otherwise encumber its rights
under this Lease or one or more Schedules and/or with respect to the Equipment
subject to this Lease or such Schedule(s) to one or more persons or entities
(each, an "Assignee"). Lessee acknowledges that an assignment, sale or other
encumbrance by Lessor would not materially change Lessee's duties under the
Lease or materially increase its burdens or risks. Even if such an assignment,
sale or other encumbrance could be deemed to have that effect, Lessee agrees
that the assignment, sale or other encumbrance will nevertheless be permitted.
Without prejudice to any rights that Lessee may have against Lessor, Lessee
agrees that it will not assert against an Assignee any claim or defense that it
may have against Lessor.
(c) Lessee acknowledges that it is Lessor's intention to assign this
Lease and/or one or more Schedules and the related Equipment to one or more
limited partnerships with which Lessor is affiliated (each, a "Lessor
Affiliate") and agrees that upon any such assignment the sole liability for
performance of Lessor's obligations hereunder shall fall upon such Lessor
Affiliate which shall assume such obligations and Lessor shall be fully released
from such liabilities and that the limited partners of such Lessor Affiliate
shall have no personal liability for the performance or observance of this
Lease. A Lessor Affiliate which succeeds to the rights and interests of Lessor
under this Paragraph 11(c) shall be bound by the terms of this Lease without
alteration and any claim or defense which Lessee may have had against Lessor
prior to such assignment may only be asserted against the assignee Lessor
Affiliate.
(d) Subject to the foregoing, this Lease inures to the benefit
of, and is binding upon, the heirs, legatees, representatives, successors and
assigns of Lessee and Lessor.
12. REPRESENTATIONS AND WARRANTIES.
(a) Lessee warrants and represents the following as of the date
hereof: (i) Lessee is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and is duly qualified
and authorized to do business in the state(s) where the Equipment will be
located; (ii) Lessee has the full corporate power, authority and legal right and
has obtained all approvals and consents and has given all notices necessary to
execute and deliver this Lease and perform the terms hereof and of each
Schedule; (iii) there is no action, proceeding or claim pending or, insofar as
Lessee knows, threatened against Lessee or any of its subsidiaries before any
court or administrative agency which might have a material adverse effect on the
business, condition or operations of Lessee or any subsidiary; and
-6-
(iv) this Lease has been and each Schedule will be duly executed and
delivered by Lessee and constitute or will constitute the valid, binding and
enforceable obligations of Lessee.
(b) Lessee agrees that by its signature on each Schedule it
shall be deemed to have warranted and represented the following as of the
Acceptance Date of such Schedule: (i) all of the Units subject to such
Schedule are accurately described in Annex A attached to such Schedule, have
been fully assembled and conform to all applicable performance criteria; (ii)
the requirements of this Lease and of Lessor with respect to the
identification of the Units have been met; and (iii) each of the
representations and warranties set forth in clause (a) of this Section 12
remains true and correct.
13. USE AND INDEMNITY. Lessee shall use the Equipment only in
Lessee's business. Lessee agrees not to allow the Equipment to be used by
other than its employees, consultants and agents. Lessee acknowledges that
the Equipment is leased for commercial purposes and not for personal, family
or household use. Lessee agrees to indemnify and hold Lessor, and Lessor's
officers, directors, shareholders, partners, affiliates, agents, servants,
successors and Assignees, harmless against any and all liabilities, losses,
damages, actions, claims and expenses of any kind and nature, including,
without limitation, court costs and reasonable attorneys' fees and expenses
(each, a "Claim"), directly or indirectly related to or arising in connection
with the breach of any representation or warranty of Lessee under this Lease
or the manufacture, purchase, licensing, lease or sublease, delivery,
installation, operation, use, ownership, maintenance, storage, relocation,
return or condition of any Unit of the Equipment (regardless of whether such
Unit is at the time in the possession or control of Lessee), except to the
extent any such claims, actions, liabilities and expenses result from the
willful misconduct of Lessor. The foregoing indemnity shall cover, without
limitation, (i) any Claim in connection with a design or other defect (latent
or patent) in any Unit, (ii) any Claim for infringement of any patent,
copyright, trademark or other intellectual property right, (iii) any Claim
resulting from the presence on or under or the escape, seepage, leakage,
spillage, discharge, emission or release from any Unit of any Hazardous
Materials, including, without limitation, any Claims asserted or arising
under any Environmental Law, or (iv) any Claim for negligence or strict or
absolute liability in tort. Upon Lessor's written demand, Lessee shall
assume and diligently conduct, at its sole cost and expense, the entire
defense of Lessor and its agents, employees, successors and assigns against
any indemnified Claim described in this Paragraph 5. Lessee shall not settle
or compromise any Claim against or involving Lessor without first obtaining
Lessor's written consent thereto, which consent shall not be unreasonably
withheld. The foregoing indemnity shall continue in full force and effect
notwithstanding termination or cancellation of this Lease, whether by
expiration of time, operation of law or otherwise.
14. LOCATION. Lessee shall keep the Equipment at its place of
business as specified above or on the Schedules. Lessee shall not permit any
Equipment to be moved to a new location without the prior written consent of
Lessor.
15. RIGHT OF INSPECTION. Lessor and its agents shall have the
right, at any time during normal business hours, to inspect and photograph
the Equipment, to review all maintenance records related to the Equipment and,
during the last ninety (90) days of the Noncancellable Term of each
respective Schedule, to demonstrate the Equipment specified thereon to
prospective purchasers; provided, however, Lessor shall give five (5) days'
notice to Lessee of any such demonstration.
16. MAINTENANCE. Lessee shall exercise due and proper care in the
use, repair and servicing of the Equipment. Lessee shall, at its own
expense, make all repairs and replacements required to maintain the Equipment
in good working condition in accordance with manufacturers' specifications
and Lessor's requirements, and shall pay all other operating expenses
relating to the Equipment. Lessee shall have the right, upon (10) days prior
written notice to Lessor, to make any alterations, additions or improvements
to any Unit which do not render the Unit in such a condition that it cannot,
prior to the expiration, cancellation or other termination of this Lease, be
restored to its original condition, reasonable wear and tear alone excepted;
provided that no such alteration, addition or improvement shall be made by
-7-
Lessee if as a result thereof any warranties made by the supplier of the Unit
would be canceled or terminated. If Lessee does not exercise its option to
purchase the Equipment, as specified in Paragraph 17, or if this Lease shall
be earlier terminated or cancelled for any reason, Lessee shall restore each
Unit to its original condition, reasonable wear and tear alone excepted,
prior to the expiration, cancellation or other termination of each respective
Schedule. All replacement parts and additions incorporated into a Unit shall
become the property of Lessor immediately upon incorporation; provided,
however, that Lessor shall transfer to Lessee title to any alterations,
additions and improvements which were made by Lessee at its own expense to
each item of Equipment purchased by Lessee pursuant to the provisions of
Paragraph 17. Lessee agrees to maintain and provide upon request of Lessor
ail internal maintenance reports relating to the Equipment.
17. PURCHASE OPTION. Upon written notice to Lessor not less than
ninety (90) days nor more than one hundred eighty (180) days prior to the
last day of the Noncancellable Term of the first Schedule executed pursuant
to this Lease, if Lessee has fulfilled all of its obligations hereunder,
Lessee shall have the right to purchase all, but not less than all, of the
Equipment under all Schedules, for the aggregate Fair Market Value of such
Equipment (plus applicable taxes). Should Lessor and Lessee fail to agree
upon the Fair Market Value of the Equipment, said price shall be determined
by an independent appraiser, and the cost of the appraisal shall be borne
equally by both Lessor and Lessee. Notwithstanding anything contained in
this Section 17, not less than thirty (30) days prior to the last day of the
Noncancellable Term of each Schedule, Lessee shall be required to purchase
all Equipment consisting of software under such Schedule at ten percent (10%)
of total Cost of such Equipment to Lessor. Notwithstanding the date on which
Lessee exercises this option, Lessee shall acquire no rights of title to any
Equipment, nor shall title to any Unit be transferred to Lessee after the
exercise of this purchase option until the expiration of the Noncancellable
Term for the Schedule on which such Unit is specified. Lessee shall remain
liable for all Rental Payments and other obligations due under each Schedule
until the expiration of the Noncancellable Term of such Schedule. Any
Equipment sold by Lessor shall be sold "AS IS", "WHERE IS", and with no
warranties, express or implied, including without limitation implied
warranties of merchantability and fitness for any particular purpose. "Fair
Market Value" is defined as the estimated amount at which the property might
be expected to exchange in an arm's length transaction between a willing
buyer (other than a used equipment dealer) and a willing seller, neither
being under compulsion, each having reasonable knowledge of all relevant
facts, and with equity to both, with the assumptions that the Units (i) are
being sold "in place and in use," (ii) are free and clear of all liens and
encumbrances, and (iii) are in the condition required by Paragraph 16 of this
Lease.
18. RETURN OF EQUIPMENT. Upon ninety (90) days' written notice to
Lessor, in the event Lessee has not exercised its purchase option as
specified in Paragraph 17, after such notification and upon the expiration,
cancellation or other termination of the Noncancellable Term of each
Schedule, Lessee shall, at Lessee's sole expense, properly pack and return
the Equipment, insured, unencumbered and in the same condition as when
received by Lessee, reasonable wear and tear alone excepted, by such carriers
as Lessor shall approve and to such place as designated by Lessor. Should
Lessee fail to give notice of its intent to return or fail to return the
Equipment as directed above, all obligations of Lessee under this Lease,
including Rental Payments, shall remain in full force and effect for the
period from the end of the Initial Lease Term until ninety (90) days after
notice is given to Lessor of Lessee's intent to return or purchase the
Equipment (the "Holdover Period").
19. FINANCIAL STATEMENTS; OTHER INFORMATION.
(a) Lessee shall provide to Lessor the financial statements
specified in this Paragraph 19 (a), prepared in accordance with generally
accepted accounting principles, consistently applied (the "Financial
Statements"); provided, however, that after the effective date of the initial
registration statement covering a public offering of Lessee's securities, the
term "Financial Statements" shall be deemed to refer only to those statements
required to be filed by the Securities and Exchange Commission, to be
provided no less frequently than quarterly.
-8-
(i) As soon as practicable (and in any event within thirty
(30) days after the end of each month), a reasonably detailed balance sheet
as of the end of such month and the related statements of income or loss,
cash flow and capital structure of the Lessee during such month (including
notification of the commencement of any material litigation by or against
Lessee), certified by Lessee's Chief Executive Officer or Chief Financial
Officer fairly to present the data reflected therein.
(ii) As soon as practicable (and in any event within ninety
(90) days after the end of each fiscal year), audited balance sheets as of
the end of such year (consolidated if applicable), and related statements of
income or loss, retained earnings or deficit, cash flows and capital
structure of Lessee for such year, setting forth in comparative form the
corresponding figures for the preceding fiscal year, and accompanied by an
audit report and opinion of the independent certified public accountants of
recognized national standing selected by Lessee.
(b) Lessee shall promptly provide to Lessor copies of all notices,
minutes, consents and other material that it provides to Lessee's equity
securities holders at the same time they are delivered to such equity
securities holders. Lessee shall promptly furnish to Lessor any additional
information (including but not limited to tax returns, income statements,
balance sheets, and names of principal creditors) as Lessor reasonably
believes necessary to evaluate Lessee's continuing financial obligations (the
"Additional Information").
(c) Lessor agrees to preserve the confidentiality of all
information provided to it hereunder by Lessee regarding the Lessee and its
business which Lessee designates in writing as confidential and which is
otherwise not generally known (except to the extent any disclosure of such
information is required by a court of competent jurisdiction or governmental
authority).
20. TAX INDEMNIFICATION. Lessee acknowledges that this Lease has
been entered into on the basis that Lessor or Lessor's Assignee intends to
claim such depreciation, interest deductions and other tax benefits (the "Tax
Benefits") as are provided to an owner of Equipment under the Internal
Revenue Code of 1986, as amended (the "Code") and corresponding provisions of
state law. If Lessor or Lessor's Assignee shall not have the right to claim
or there shall be disallowed, deferred, recaptured or otherwise made
unavailable with respect to Lessor or Lessor's Assignee all or any portion of
the Tax Benefits as a result of an act or failure to act by Lessee in
contravention of any of the terms and conditions of the Lease, Lessee shall
promptly pay to Lessor or Lessor's Assignee, an amount which, on an after-tax
basis, will compensate Lessor or Lessor's Assignee for the value of the lost
Tax Benefits. The Tax Benefits shall be deemed to have been disallowed or
recaptured upon the earliest of (i) the adjustment by a taxing authority of
the tax return of Lessor to reflect such loss; or (ii) the payment by Lessor
to the Internal Revenue Service or state taxing authority of the tax increase
resulting from such lost Tax Benefits. Lessor or Lessor's Assignee shall be
deemed not to have the right to claim the Tax Benefits if, in the opinion of
Lessor's independent tax counsel, reasonably acceptable to Lessee, there is
no reasonable basis for claiming the Tax Benefits.
21. ADDITIONAL LESSOR RIGHTS. Lessor shall be entitled to consult
with and advise management of Lessee on significant business issues,
including management's proposed annual and quarterly operating plans, and
management will meet with Lessor within thirty days after the end of each
fiscal quarter at the Lessee's facilities at mutually agreeable times for
such consultation and advice and to review progress in achieving said plans;
22. RISK OF LOSS. Lessee assumes the entire risk of loss, theft
and damage of the Equipment from any cause whatsoever, and no such event
shall relieve Lessee of any obligation under this Lease. Lessee shall notify
Lessor in writing within ten (10) days after any such event. Lessee agrees
that Lessor shall have the following remedies upon each occurrence of the
following events:
(a) In the case of damage of any kind whatsoever to any Unit
(unless such Unit is damaged beyond repair), Lessee shall, at Lessee's sole
expense and with Lessor's reasonable consent, (i) restore such Equipment to
its original
-9-
condition, reasonable wear and tear alone excepted, or (ii) replace it with
like equipment of the same or later model in good condition. Upon Lessee's
replacement of any Equipment as specified in clause (ii) of this Paragraph
22(a), Lessee shall transfer title to such replaced Equipment to Lessor.
(b) If any Unit is determined by Lessor to be damaged beyond
repair, or if Lessor has reasonable cause to believe that any Unit is stolen
or lost and such Unit is not returned to its proper location within thirty
(30) days after notice thereof to Lessee, Lessee shall, with Lessor's
reasonable consent, immediately pay to Lessor: (i) the amount required to
replace such Unit with like equipment of the same or later model in good
condition, in which case such Unit shall be substituted for the damaged Unit
on the relevant Schedule, and Rental Payments shall continue throughout the
Lease Term of the Schedule to which the Unit becomes subject without any
interruption, or (ii) the sum of (A) the aggregate unpaid rent due for the
balance of the Noncancellable Term for the Unit involved, discounted to
present value at the Discount Rate; PLUS (B) the then estimated Fair Market
Value of the Unit involved, calculated as of the expiration of the
Noncancellable Term (the "Residual Value"), discounted to present value at
the Discount Rate; PLUS (C) any tax payments or indemnification for which
Lessee is liable under Paragraphs 10 and 20; PLUS any other amounts with
respect to such Unit for which Lessee is liable under this Lease; provided,
however, the option specified in clause (i) of this Paragraph 22(b) shall not
be available if an Event of Default has occurred and is continuing. Upon
payment under clause (ii) of Paragraph 22(b), this Lease shall terminate with
respect to the Unit(s) paid for, and Lessee shall become entitled to such
Unit(s) "AS IS" and "WHERE IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
(c) Any proceeds paid to Lessor from the personal property
insurance specified in Paragraph 23(a)(i) shall be applied to Lessee's
obligations under this Paragraph 22.
23. INSURANCE.
(a) Lessee shall, at its own expense, maintain the following types
of insurance, with companies with an A-5 Best rating or better, acceptable to
Lessor, until such time as Lessee has returned the Equipment as specified in
Paragraph 18 or taken title to the Equipment pursuant to Paragraph 17:
(i) Personal property insurance on all property owned by
Lessee (including without limitation all of the Equipment) in an agreed
amount based upon the following:
(A) Standard "all risk" property insurance,
including boiler and machinery insurance, earthquake insurance, if
applicable, and flood insurance if any Equipment is located in an
identified "flood hazard area," in which flood insurance has been
made available pursuant to the National Flood Insurance Act of
1968;
(B) The amount of such insurance shall be not
less than the greater of the fair market value or the full
undepreciated replacement value of the Equipment. The amount of
such insurance allocable to loss or damage or personal property
shall not have a deductible in excess of one thousand dollars
($1,000.00) per occurrence.
(C) Such insurance shall contain an endorsement
issued by the insurer (as opposed to a certificate issued by an
agent of the insurer) in which Lessor is named as loss payee with
respect to the Equipment, and shall set aside the amount stated in
Paragraph 23(a)(i)(B) for the sole benefit of, and payable
directly to, Lessor.
(ii) Employee dishonesty insurance payable to Lessor with
respect to the theft of the Equipment.
-10-
(iii) Business interruption insurance in an amount at all
times equal to the total Rental Payments to become due during the six months
following the date of calculation. In the event of any interruption of
Lessee's business, the amount payable to Lessor shall be equal to the actual
loss of Rental Payments suffered by Lessor as the result of such
interruption, and shall be payable to Lessor within thirty (30) days from
the date of loss, and on a month-to-month basis thereafter, until Lessee's
business is returned to a fully operational state, plus ninety (90) days.
(iv) Commercial general liability insurance covering bodily
injury (including death) and property damage, naming Lessor, its directors,
officers, agents and employees as an Additional Insureds on all policies
(evidenced by an endorsement issued by the insurer (as opposed to a
certificate issued by an agent of the insurer)), and providing total limits
in amounts as are at the time carried by entities engaged in the same or
similar business and which are similarly situated, but in no event less than
two million dollars ($2,000,000.00) for combined single limit occurrence.
All such policies shall cover any injury or damage occasioned by, or
occurring upon, Lessee's premises, products, operations and, at Lessor's
option, explosion, collapse and underground hazards. All such policies shall
contain contractual liability coverage including all liability assumed under
this agreement, and a cross liability clause providing that such insurance
shall, except with respect to the limits of liability, apply separately to
each insured.
(v) Workers compensation insurance.
(b) All insurance specified in this Paragraph 23 shall be primary
over, and in no event shall, any insurance carried by Lessor be called upon
to contribute to any loss relating to or arising out of this Lease. All
insurance shall be in effect, and shall be evidenced by policies and/or
endorsements delivered to Lessor no later than twenty (20) days after the
date upon which Lessee executes this Lease. Notwithstanding anything to the
contrary contained in this Lease, Lessor shall have no obligation to purchase
any Equipment until all policies are in place. All such policies shall
provide for at least thirty (30) days' prior written notice to Lessor in the
event of any cancellation, non-renewal or material change in coverage, and
Lessor shall receive a copy of any and all endorsements or other
documentation relating to such policies.
(c) Should Lessee, at any time during the Lease Term, be without
sufficient insurance, as determined by Lessor in accordance with the
provisions of this Paragraph 23, Lessee appoints Lessor as its agent to
obtain such coverage, and promises to pay to Lessor the entire cost of such
coverage.
24. DEFAULT. Each of the following events shall constitute an
"Event of Default" under this Lease:
(a) Nonpayment, by the due date specified herein, of any Rental
Payment or other payment required of Lessee under the terms of this Lease,
and such nonpayment shall continue for a period of five (5) business days;
(b) Noncompliance with any or all of the provisions of Paragraph
23, and such noncompliance shall continue for a period of five (5) days after
notice thereof is given to Lessee;
(c) If Lessor shall determine that Lessee has made a misstatement
or false statement of, or omitted to state, a material fact in connection
with the execution, performance or nonperformance of this Lease or any
Schedule, or if any representation or warranty of Lessee in this Lease, any
Schedule or any Acceptance Certificate is inaccurate or false;
(d) If Lessee, without Lessor's prior written consent, shall have
removed, parted possession with, sold transferred, encumbered, assigned or
sublet the Equipment or Lessee's interest under this Lease or attempted to do
any of the foregoing; or if Lessee shall have converted any interest of
Lessor arising under this Lease or any purchase order, or resulting from the
purchase of Equipment or attempted to convert any of the foregoing;
(e) If Lessee, without Lessor's prior written consent, shall
encumber or grant a security interest in (other than for valid business
purposes in the ordinary course of business with respect to license
agreements or similar
-11-
agreements), sell, transfer or assign Lessee's rights, title and interest in
all patents, patent applications, invention disclosures, copyrights,
copyright applications, trademarks (including service marks), trademark
registrations, trade names, computer software and hardware, microcode and
source code, trade secrets, know-how and processes owned by Lessee or other
intellectual property rights;
(f) If any of Lessee's credit or financial information submitted to
Lessor at any time (including but not limited to due diligence materials,
Financial Statements and Additional Information) contains any misstatement or
false statement of a material fact, or fails to state therein any material
fact necessary to make the statements made, in light of the circumstances
under which they were made, not misleading;
(g) If in the determination of Lessor the present fair salable
value of Lessee's assets is less than the amount that will be required to pay
the probable liability on Lessee's existing debts as they become absolute and
matured;
(h) If any single judgment for payment of money damages in excess
of twenty-five thousand dollars ($25,000.00), or aggregate judgments for
payment of money damages in excess of fifty thousand dollars ($50,000.00),
shall be rendered against Lessee and shall remain undischarged for a period
of sixty (60) days (unless during such period execution shall not be
effectively stayed in which case there shall be no grace period under this
Paragraph 24(h));
(i) If any substantial part of Lessee's property shall be subjected
to any levy, seizure, involuntary assignment, attachment, application or sale
for or by any creditor or governmental agency;
(j) If any single indebtedness of Lessee exceeding the sum of
twenty-five thousand dollars ($25,000.00), or aggregate indebtedness
exceeding the sum of fifty thousand dollars ($50,000.00), under any other
lease or contract for the borrowing of money or on account of the deferred
purchase price of property shall be accelerated, or subject to acceleration
upon the giving of notice, passage of time or both as a result of a default
by Lessee, or the obligee with respect to such indebtedness shall exercise
any other remedy it may have as a result of such default;
(k) If an order, judgement or decree shall be entered by any court
having jurisdiction for (i) relief in respect of Lessee in an involuntary
case under any applicable bankruptcy, insolvency or other similar law (as now
or hereafter in effect), (ii) appointing of receiver, liquidator, assignee,
trustee, custodian, sequestrator (or similar official) for Lessee or for any
substantial part of its property, or sequestering any substantial part of the
property of Lessee, or (iii) liquidating of Lessee's affairs, and any such
order, judgement or decree shall remain in force undismissed, unstayed or
unvacated for a period of sixty (60) days after the date of entry thereof; or
if Lessee shall seek relief of any kind under any such law or consent to any
of the foregoing; or
(l) Nonperformance of any of Lessee's obligations under this Lease
other than those described elsewhere in this Paragraph 24, and such
nonperformance shall continue for a period of ten (10) days after notice
thereof is given to Lessee.
25. REMEDIES. Upon the occurrence and during the continuance of
any Event of Default, with or without cancelling or terminating this Lease,
Lessor or its agent shall have the right, without demand or prior notice, in
Lessor's sole discretion, to exercise any one or more of the following
remedies:
(a) To cancel this Lease and all Schedules;
(b) To declare the damages specified in Paragraph 26 to be
immediately due and payable;
(c) To take possession of any or all Units of Equipment with or
without any court order or other process of law, and for this purpose Lessor
and/or its agents may enter upon any premises of or under the control or
jurisdiction of
-12-
Lessee or any agent of Lessee, without liability for suit, action or other
proceeding by Lessee and remove the Equipment therefrom; Lessee further
agrees, on demand, to assemble the Equipment and make it available to Lessor
at a place to be designated by Lessor which is reasonably convenient to
Lessor and Lessee; notwithstanding the foregoing, such taking of possession
shall not relieve Lessee of its obligations to pay damages as set forth in
Paragraph 26. Lessee further waives any and all damages occasioned by such
taking of possession.
(d) To exercise any other right or remedy which may be available to
Lessor under the UCC or any other applicable law.
26. DAMAGES. Lessor's damages, in the event of default by Lessee,
shall include (in addition to all other damages available to Lessor under
applicable law): (i) the due and unpaid balance of Rental Payments and all
other amounts payable hereunder plus late charges and interest due under
Paragraph 5(c) (but not more than the maximum rate permitted by law) for the
period after the date such payments were due, (ii) the aggregate of all
remaining Rental Payments through the end of the Noncancellable Term of each
Schedule, discounted to present value at the Discount Rate, (iii) the
Residual Value, discounted to present value at the Discount Rate, (iv) any
indemnification payments due hereunder plus interest at a rate equal to the
lesser of 1.5 % per month or the maximum rate permitted by law for the period
after the date such payments were due, (v) costs of repossession, recovery,
storage and repairs and of lease or sale to a third party, plus (vi) all
other expenses including court costs and reasonable attorneys' fees and
expenses. Lessor's obligation to mitigate said damages and any reduction of
the amounts due to Lessor shall be limited as follows:
(a) Lessor shall make best efforts to mitigate its damages by
re-leasing the Equipment to a third party, and any rentals received in
consideration for such third party's use of said Equipment during any period
of the Noncancellable Term of any Schedule shall be applied only to that
portion of Lessor's damages resulting from loss of rentals that Lessor would
have received from Lessee during the same period had Lessee not become in
default. Amounts received from such third party shall be applied in
mitigation of Lessor's damages only to the extent such amounts are payable in
connection with such third party's periodic rental obligations as specified
in the preceding sentence; in no event shall any other amount received from
such third party, including without limitation as a security deposit or as an
advance on periodic rental obligations, be applied in mitigation of Lessor's
damages hereunder.
(b) Lessor shall have no obligation to sell any of the Equipment;
however, any amounts received from a sale to a third party shall be applied
to Lessor's damages as specified in this Paragraph 26.
27. MISCELLANEOUS.
(a) If more than one Lessee is named in or added to this Lease, the
liability of each shall be joint and several.
(b) All notices related hereto shall be mailed to Lessor or Lessee
at its respective address as specified on the cover page of this
Lease, or at such other address as either party may designate upon ten days
written notice to the other party.
(c) Paragraph titles are solely for convenience and are not an aid
in the interpretation of this Lease.
(d) Time is of the essence of this Lease and each of its provisions.
(e) If notwithstanding the intent of the parties this Lease and any
Schedules hereto are determined to be a lease for security or a security
agreement, Lessee shall have been deemed to have granted to Lessor a security
interest in
-13-
all of Lessee's right, title and interest in and to the Equipment and the
proceeds thereof to secure all of Lessee's obligations to Lessor arising
hereunder or otherwise.
(f) This Lease may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the
same instrument; PROVIDED, HOWEVER, that to the extent, if any, that this
Lease constitutes chattel paper (as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction), no security
interest in this Lease may be created through the transfer or possession of
any counterpart of this Lease or any Schedule other than the original
counterparts marked "Original Counterpart No. 1".
28. RIGHT OF FIRST OFFER. During the lease term, Lessee shall
provide Lessor with all requests for additional debt or lease financing prior
to the time that such requests are provided to other financing sources.
Should Lessor and Lessee fail to agree on the terms and conditions of such
financing, then Lessee may accept a funding source other than Lessor.
29. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee shall
fail duly and promptly to perform any of its obligations under this Lease,
Lessor may, at its option and at any time, perform the same without waiving
any default on the part of Lessee, or any of Lessor's rights. Lessee shall
reimburse Lessor, within five (5) days after notice thereof is given to
Lessee, for all expenses and liabilities incurred by Lessor in the
performance of Lessee's obligations.
30. NONWAIVER; RIGHTS AND REMEDIES CUMULATIVE. Lessor's failure at
any time to require strict performance by Lessee shall not constitute waiver
of, or diminish, Lessor's right to demand strict compliance with any
provision of this Lease. Waiver by Lessor of any default shall not
constitute waiver of any other default. No rights or remedies referred to
herein shall be exclusive, but shall be cumulative and in addition to any
other right or remedy set forth herein or otherwise available to Lessee at
law or in equity.
31. SURVIVAL OF OBLIGATIONS; LIMITATIONS ON ACTIONS. All
agreements, covenants, representations and warranties of Lessee contained in
this Lease or in the Schedules or other documents delivered pursuant hereto
or in connection herewith shall survive the execution and delivery, and the
expiration, cancellation or other termination of this Lease. Any action by
Lessee against Lessor for any default by Lessor under this Lease shall be
commenced within one (1) year after any such cause of action accrues.
32. SEVERABILITY. If any provision or remedy herein provided is
determined invalid under applicable law, such provision shall be inapplicable
and deemed omitted; but the remaining provisions, including remaining default
remedies, shall be given effect in accordance with their terms.
33. UPGRADES, ADDITIONS AND ATTACHMENTS. Any added memory,
upgrades, additions and attachments to Equipment previously placed under this
Lease shall, upon approval by Lessor, be included on a Schedule, with a
Noncancellable Term that is coterminous with the Equipment to which such
added memory, upgrade, addition or attachment is being attached.
-14-
34. CHOICE OF LAW. THIS LEASE SHALL BE DEEMED TO HAVE BEEN MADE
AND ACCEPTED AND PERFORMED IN THE COUNTY OF SAN FRANCISCO, IN THE STATE OF
CALIFORNIA, WHERE THE LESSOR'S PRINCIPAL PLACE OF BUSINESS IS LOCATED. THIS
LEASE AND ALL TRANSACTIONS HEREUNDER, AND ALL RIGHTS AND LIABILITIES OF THE
PARTIES HERETO, SHALL BE DETERMINED AND GOVERNED AS TO THE VALIDITY,
INTERPRETATION, ENFORCEMENT AND EFFECT BY THE LAWS OF THE STATE OF
CALIFORNIA. THE LESSEE HEREBY CONSENTS, IN ALL ACTIONS AND PROCEEDINGS
ARISING DIRECTLY OR INDIRECTLY FROM THIS LEASE, TO THE EXCLUSIVE JURISDICTION
OF THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OR ANY
STATE COURT LOCATED WITHIN SAN FRANCISCO COUNTY IN THE STATE OF CALIFORNIA.
LESSEE HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS LEASE. IN ADDITION, ANY CLAIM
OR DISPUTE ARISING UNDER OR RELATING TO THIS LEASE MAY, AT LESSOR'S
DISCRETION, BE SUBMITTED TO BINDING ARBITRATION IN SAN FRANCISCO, CALIFORNIA
PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
Lessee Initials: Lessor Initials
------------- -------------
35. ENTIRE AGREEMENT. This instrument constitutes the entire
agreement between the parties and may not be modified except in writing
executed by Lessor and Lessee. No supplier or agent of Lessor is authorized
to bind Lessor or to waive or modify any term of this Lease.
Lessee Initials: Lessor Initials
------------- -------------
The undersigned representative of Lessee affirms that he or she has
read and understood this Lease and is duly authorized to execute this Lease
on behalf of Lessee and that, if Lessee is a corporation, this Lease is
entered into with consent of Lessee's Board of Directors and stockholders if
so required.
IN WITNESS WHEREOF, the parties hereto execute this noncancellable
Lease as of the date on the cover page hereof.
LESSEE: LESSOR:
KARTOFFELSOFT INCORPORATED DOMINION VENTURES, INC.
(d/b/a Homestead Technologies, Inc.)
By: /s/ Xxxxxx Xxxxxx Xxxxx By: /s/ [ILLEGIBLE]
---------------------------------- ---------------------------------
Name: Name:
-------------------------------- -------------------------------
Title: Title:
------------------------------- ------------------------------
This Lease incorporates the following Addenda as if fully set forth herein:
Addendum I.
-15-
FIRST AMENDMENT TO MASTER LEASE AGREEMENT NO. 10840
This First Amendment, dated as of March 23, 1999, to Master Lease
Agreement No. 10840 dated September 28, 1998 (the "Lease"), is entered into
by and between Kartoffelsoft Incorporated (d/b/a Homestead Technologies,
Inc.), a Delaware corporation (the "Lessee" and Dominion Ventures, Inc., a
California corporation (the "Lessor").
WHEREAS, Lessee has requested an increase in Master Lease Line to
allow additional Equipment to be purchased pursuant to the terms of the
Lease; and
WHEREAS, Lessor has agreed to extend the Master Lease Line to allow
for the purchase of additional Equipment, subject to the approval of Lessor
and pursuant to the terms of the Lease. All capitalized terms used and not
otherwise defined herein shall have the meanings given in the Lease.
NOW, THEREFORE, the parties hereto agree to amend the Lease as follows:
1. The Master Lease Line shall be increased by $400,000 for a total
of $750,000, subject to the terms of the Lease.
2. The Advance Rental Amount of $12,901.00, specified on page 1 of
the Lease shall be increased by $14,744.00 for a total of
$27,645.00 (plus applicable taxes).
3. The Funding Expiration Date shall be amended to August 15, 1999.
Except as specifically provided herein, all terms and conditions of the
Lease shall remain in full force and effect, without waiver or
modification.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to
be executed as of the date first written above.
LESSEE: LESSOR:
KARTOFFELSOFT INCORPORATED DOMINION VENTURES, INC.
(d/b/a Homestead Technologies)
By: /s/ Xxxxxx Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Xxxxx Name: Xxxxx X. Xxxxx
-------------------------------- -------------------------------
Title: CEO Title: V.P.
------------------------------- ------------------------------
SECOND AMENDMENT TO MASTER LEASE AGREEMENT NO. 10840
This Second Amendment dated August 15, 1999 to Master Lease Agreement No.
10840 dated September 28, 1998 (the "Lease"), is entered into by and between
Homestead Technologies, Inc., a Delaware corporation (the "Lessee") and
Dominion Venture Finance, L.L.C. (the "Lessor").
WHEREAS, Lessee has requested an increase in Master Lease Line to
allow addition Equipment to be purchased pursuant to the terms of the Lease;
and
WHEREAS, Lessor has agreed to extend the Master Lease Line to allow
for the purchase of additional Equipment, subject to the approval of Lessor
and pursuant to the terms of the Lease. All capitalized terms used and not
otherwise defined herein shall have the meanings given in the Lease.
NOW, THEREFORE, the parties hereto agree to amend the Lease as follows:
1. The Master Lease Line shall be increased by $1,000,000.00 for a
total of $1,750,000.00.
2. The Funding Expiration Date of August 15, 1999 as set forth in
the First Amendment to the Master Lease, shall be extended to
August 15, 2000.
3. The Advance Rental Amount of $27,645.00 as specified in the First
Amendment to the Master Lease, shall be increased by $36,860.00
(plus applicable taxes) for a total of $64,505.00 (plus applicable
taxes). The increase in the Advance Rental shall be paid to
Lessor upon execution of this Second Amendment and shall be
credited to the last complete calendar month's rent for each item
of Equipment, subject to the conditions set forth in paragraph 5
of the Lease.
4. The Rent Factor shall remain at .7083%, for the first twelve (12)
months for each Schedule, and thereafter shall remain at 3.686%
for months thirteen (13) through forty-two (42), consisting of
equal payments of interest and principle.
5. Software shall not exceed twenty-five percent (25%) of total
aggregate cost of Equipment funded pursuant to this increase in
the Master Lease Line.
Except as specifically provided herein, all terms and conditions of
the Lease shall remain in full force and effect, without waiver or
modification.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
Page 1 of 2
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed as of the date first written above.
LESSEE: HOMESTEAD TECHNOLOGIES, INC. LESSOR: DOMINION VENTURE FINANCE
L.L.C.
By: /s/ Xxxxxx Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Its: Its: VP Finance
-------------------------------- --------------------------------
Page 2 of 2
EQUIPMENT SCHEDULE
NO. 10840-1
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURES, INC. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead Technologies, Inc.)
Suite 4200 0000 Xxxxxx Xxx, Xxxxx X
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $81,585.78
FUNDING EXPIRATION DATE.................... May 15, 1999
RENTAL AMOUNT
Months 1-12............................ $ 577.87
Months 13-42........................... $3,007.25
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... December 1, 1998
ADVANCE RENTAL............................. $3,007.25
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION..... KARTOFFELSOFT INCORPORATED d/b/a
Homestead Technologies, Inc.
0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
EQUIPMENT SCHEDULE
NO. 10840-2
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURES, INC. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead Technologies, Inc.)
Suite 4200 0000 Xxxxxx Xxx, Xxxxx X
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $9,423.00
FUNDING EXPIRATION DATE..................... May 15, 1999
RENTAL AMOUNT
Months 1-12............................. $ 66.74
Months 13-42............................ $347.33
FREQUENCY................................... Monthly, in advance
INITIAL TERM................................ 42 Months
COMMENCEMENT DATE........................... December 1, 1998
ADVANCE RENTAL.............................. $347.33
SECURITY DEPOSIT............................ $0.00
EQUIPMENT LOCATION............... KARTOFFELSOFT INCORPORATED
d/b/a Homestead Technologies, Inc.
0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
EQUIPMENT SCHEDULE
NO. 10840-3
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURES, INC. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead Technologies, Inc.)
Suite 4200 0000 Xxxxxx Xxx, Xxxxx X
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto, and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $71,352.00
FUNDING EXPIRATION DATE..................... May 15, 1999
RENTAL AMOUNT
Months 1-12............................. $ 505.39
Months 13-42............................ $ 2,630.03
FREQUENCY................................... Monthly, in advance
INITIAL TERM................................ 42 Months
COMMENCEMENT DATE........................... March 1, 1999
ADVANCE RENTAL.............................. $2,630.03
SECURITY DEPOSIT............................ $0.00
EQUIPMENT LOCATION................ KARTOFFELSOFT INCORPORATED
d/b/a Homestead Technologies, Inc.
.................................. 0000 Xxxxxx Xxx, Xxxxx X
.................................. Xxxxx Xxxx, XX 00000
LESSEE CONTACT.............................. XXXXXX XXXXXXXXXX, CFA
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
KARTOFFELSOFT INCORPORATED DOMINION VENTURES, INC.
(d/b/a Homestead Technologies, Inc.)
By: By:
---------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Xxxxx Name:
-------------------------------- -------------------------------
Title: President & CEO Title:
------------------------------- ------------------------------
Date: Date:
-------------------------------- -------------------------------
EQUIPMENT SCHEDULE
NO. 10840-4
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURES, INC. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead Technologies, Inc.)
Suite 4200 0000 Xxxxxx Xxx, Xxxxx X
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $64,888.00
FUNDING EXPIRATION DATE.................... May 15, 1999
RENTAL AMOUNT
Months 1-12............................ $ 459.60
Months 13-42........................... $ 2,391.77
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... April 1, 1999
ADVANCE RENTAL............................. $2,391.77
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION................. KARTOFFELSOFT INCORPORATED
d/b/a Homestead Technologies, Inc.
................................... 0000 Xxxxxx Xxx, Xxxxx X
................................... Xxxxx Xxxx, XX 00000
EQUIPMENT SCHEDULE
NO. 10840-5
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURES, INC. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead Technologies, Inc.)
Suite 4200 0000 Xxxxxx Xxx, Xxxxx X
Xxx Xxxxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $115,335.95
FUNDING EXPIRATION DATE.................... May 15, 1999
RENTAL AMOUNT
Months 1-12............................ $ 816.92
Months 13-42........................... $ 4,251.28
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... May 1, 1999
ADVANCE RENTAL............................. $4,251.28
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION................. KARTOFFELSOFT INCORPORATED
d/b/a Homestead Technologies, Inc.
................................... 0000 Xxxxxx Xxx, Xxxxx X
................................... Xxxxx Xxxx, XX 00000
EQUIPMENT SCHEDULE
NO. 10840-6
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: KARTOFFELSOFT INCORPORATED
00 Xxxxxxxxxx Xxxxxx (d/b/a Homestead
Suite 4200 Technologies, Inc.)
Xxx Xxxxxxxxx, XX 00000 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto, and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $200,710.75
FUNDING EXPIRATION DATE.................... August 15, 1999
RENTAL AMOUNT
Months 1-12............................ $1,421.63
Months 13-42........................... $7,398.20
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... July 1, 1999
ADVANCE RENTAL............................. $7,398.20
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION................ KARTOFFELSOFT INCORPORATED
d/b/a Homestead Technologies, Inc.
.................................. 0000 Xxxxxx Xxx, Xxxxx X
.................................. Xxxxx Xxxx, XX 00000
LESSEE CONTACT.................... XXXXXX XXXXXXXXXX, CFA
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
KARTOFFELSOFT INCORPORATED DOMINION VENTURE FINANCE L.L.C.
(d/b/a Homestead Technologies, Inc.) By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By:
--------------------------------- ------------------------------------
Name: Xxxxxx Xxxxxx Xxxxx Name:
------------------------------- ----------------------------------
Title: President & CEO Title:
------------------------------ ---------------------------------
6/14/99 Date:
----------------------------------
EQUIPMENT SCHEDULE
NO. 10840-7
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: HOMESTEAD TECHNOLOGIES, INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $95,668.76
FUNDING EXPIRATION DATE.................... August 15, 1999
RENTAL AMOUNT
Months 1-12............................ $ 677.62
Months 13-42........................... $ 3,526.35
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... August 1, 1999
ADVANCE RENTAL.............................. $3,526.35
SECURITY DEPOSIT............................ $0.00
EQUIPMENT LOCATION............... Homestead Technologies, Inc.
................................. 0000 Xxxxxx Xxx, Xxxxx X
................................. Xxxxx Xxxx, XX 00000
LESSEE CONTACT................... XXX XXXXXX
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
HOMESTEAD TECHNOLOGIES DOMINION VENTURE FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By: /s/ [ILLEGIBLE]
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Xxxxx Name: [ILLEGIBLE]
------------------------------- -------------------------------
Title: President and CEO Title: Portfolio Manager
------------------------------ ------------------------------
Date: 7/30/99
-------------------------------
EQUIPMENT SCHEDULE
NO. 10840-8
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: HOMESTEAD TECHNOLOGIES, INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $109,490.00
FUNDING EXPIRATION DATE.................... August 15, 1999
RENTAL AMOUNT
Months 1-12............................ $ 775.52
Months 13-42........................... $4,035.80
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... September 1, 1999
ADVANCE RENTAL............................. $4,035.80
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION.............. Homestead Technologies, Inc.
................................ 0000 Xxxxxx Xxx, Xxxxx X
................................ Xxxxx Xxxx, XX 00000
LESSEE CONTACT.................. XXX XXXXXX
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
HOMESTEAD TECHNOLOGIES DOMINION VENTURE FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By: /s/ [ILLEGIBLE]
----------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Xxxxx Name: [ILLEGIBLE]
--------------------------------- -------------------------------
Title: C.E.O. Title: PORTFOLIO MANAGER
-------------------------------- ------------------------------
Date: [ILLEGIBLE]
-------------------------------
EQUIPMENT SCHEDULE
NO. 10840-9
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: HOMESTEAD TECHNOLOGIES, INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and
conditions of the Lease are hereby expressly incorporated into this Schedule
and made a part hereof by this reference. By their execution of this
Schedule, the parties reaffirm all terms and conditions of the Master Lease
Agreement except as they may be modified hereby. This Schedule shall become
effective on the later of the date executed by Lessor or the date on which
each of the conditions set forth in Part 2 of Addendum I to the Lease are
satisfied or waived. Capitalized terms used in this Schedule and not
otherwise defined herein shall have the respective meanings set forth in the
Lease.
TOTAL EQUIPMENT COST....................... $47,811.04
FUNDING EXPIRATION DATE.................... August 15, 2000
RENTAL AMOUNT
Months 1-12............................ $ 338.65
Months 13-42........................... $1,762.31
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... October 1, 1999
ADVANCE RENTAL............................. $1,762.31
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION............... Homestead Technologies, Inc.
................................. 0000 Xxxxxx Xxx, Xxxxx X
................................. Xxxxx Xxxx, XX 00000
LESSEE CONTACT................... XXX XXXXXX
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
HOMESTEAD TECHNOLOGIES, INC. DOMINION VENTURE FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By:
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxx Name:
------------------------------- -------------------------------
Title: President Title:
------------------------------ ------------------------------
Date:
-------------------------------
CERTIFICATE OF INSPECTION AND ACCEPTANCE
This document is an "Acceptance Certificate" referred to in Paragraph 1
of the Master Lease Agreement Number 10840 (the "Lease") dated as of
September 28, 1998, between Dominion Venture Finance, L.L.C. ("Lessor") and
Homestead Technologies, Inc. ("Lessee"). This Acceptance Certificate relates
to the Equipment described in Schedule 10840-9 to the Lease (the "Schedule").
All capitalized terms used without definition herein shall have the
respective meanings given to such terms in the Lease.
LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE TYPE AND QUANTITY OF
THE EQUIPMENT AND ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT,
INCLUDING WITHOUT LIMITATION ITS CONDITION, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE. Lessee further acknowledges that Lessor has accepted
no responsibility for the transportation, installation or required licensing
necessary for the transfer, installation or use of the equipment.
Lessee certifies that the Equipment (i) has been delivered to Lessee at
the location specified in the Schedule, (ii) has been inspected by Lessee and
has been found to be in good working order, repair and condition, (iii) has
been installed to Lessee's satisfaction, and (iv) is of a size, design,
capacity and manufacture to satisfy Lessee's requirements. Lessee
understands that it may have rights under the contract pursuant to which the
Equipment was acquired and should contact the supplier of the Equipment for a
description of such rights.
Lessee hereby represents and warrants to Lessor that (i) no event of
default under Paragraph 24 of the Lease or event which, with the giving of
notice or the lapse of time, or both, would become such an event of default
has occurred and is continuing, except as disclosed in writing to Lessor,
which disclosed event has either been cured by Lessee or concerning which
Lessee has provided evidence to Lessor that Lessee is in the process of
curing such default and is diligently prosecuting such cure to completion
(nothing herein shall constitute a waiver by Lessor of any rights or remedies
which it may have under the Lease with respect to any event of default); (ii)
each of the representations and warranties set forth in Paragraph 12(b) of
the Lease is true and correct and (iii) Lessee has obtained, and there are
in full force and effect, all insurance policies with respect to the
Equipment required to be obtained under the terms of the Lease.
Date: LESSEE:
------------------------------
HOMESTEAD TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
---------------------------------
Title: President
--------------------------------
EQUIPMENT SCHEDULE
NO. 10840-10
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: HOMESTEAD TECHNOLOGIES, INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and conditions
of the Lease are hereby expressly incorporated into this Schedule and made a
part hereof by this reference. By their execution of this Schedule, the parties
reaffirm all terms and conditions of the Master Lease Agreement except as they
may be modified hereby. This Schedule shall become effective on the later of
the date executed by Lessor or the date on which each of the conditions set
forth in Part 2 of Addendum I to the Lease are satisfied or waived. Capitalized
terms used in this Schedule and not otherwise defined herein shall have the
respective meanings set forth in the Lease.
TOTAL EQUIPMENT COST....................... $57,233.70
FUNDING EXPIRATION DATE.................... August 15, 2000
RENTAL AMOUNT
Months 1-12............................ $ 405.39
Months 13-42........................... $2,109.63
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... November 1, 1999
ADVANCE RENTAL............................. $2,109.63
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION........... Homestead Technologies, Inc.
0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
LESSEE CONTACT............... Xxxxxx Xxxxx
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of the
date set forth below.
LESSEE: LESSOR:
HOMESTEAD TECHNOLOGIES, INC. DOMINION VENTURES FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By:
---------------------------------- -----------------------------------
Name: Xxxxxx Xxxxx Name:
------------------------------- --------------------------------
Title: President Title:
------------------------------- --------------------------------
Date:
--------------------------------
CERTIFICATE OF INSPECTION AND ACCEPTANCE
This document is an "Acceptance Certificate" referred to in Paragraph 1 of
the Master Lease Agreement Number 10840 (the "Lease") dated as of September 28,
1998, between Dominion Venture Finance, L.L.C. ("Lessor") and Homestead
Technologies, Inc. ("Lessee"). This Acceptance Certificate relates to the
Equipment described in Schedule 10840-10 to the Lease (the "Schedule"). All
capitalized terms used without definition herein shall have the respective
meanings given to such terms in the Lease.
LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE TYPE AND QUANTITY OF THE
EQUIPMENT AND ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT
LIMITATION ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Lessee further acknowledges that Lessor has accepted no responsibility for the
transportation, installation or required licensing necessary for the transfer,
installation or use of the equipment.
Lessee certifies that the Equipment (i) has been delivered to Lessee at
the location specified in the Schedule, (ii) has been inspected by Lessee and
has been found to be in good working order, repair and condition, (iii) has
been installed to Lessee's satisfaction, and (iv) is of a size, design,
capacity and manufacture to satisfy Lessee's requirements. Lessee
understands that it may have rights under the contract pursuant to which the
Equipment was acquired and should contact the supplier of the Equipment for a
description of such rights.
Lessee hereby represents and warrants to Lessor that (i) no event of
default under Paragraph 24 of the Lease or event which, with the giving of
notice or the lapse of time, or both, would become such an event of default has
occurred and is continuing, except as disclosed in writing to Lessor, which
disclosed event has either been cured by Lessee or concerning which Lessee has
provided evidence to Lessor that Lessee is in the process of curing such default
and is diligently prosecuting such cure to completion (nothing herein shall
constitute a waiver by Lessor of any rights or remedies which it may have under
the Lease with respect to any event of default); (ii) each of the
representations and warranties set forth in Paragraph 12(b) of the Lease is true
and correct and (iii) Lessee has obtained, and there are in full force and
effect, all insurance policies with respect to the Equipment required to be
obtained under the terms of the Lease.
Date: 10/14/99 LESSEE:
-------------
HOMESTEAD TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
-------------------------------
Title: President
-------------------------------
EQUIPMENT SCHEDULE
NO. 10840-11
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: HOMESTEAD TECHNOLOGIES, INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and conditions
of the Lease are hereby expressly incorporated into this Schedule and made a
part hereof by this reference. By their execution of this Schedule, the parties
reaffirm all terms and conditions of the Master Lease Agreement except as they
may be modified hereby. This Schedule shall become effective on the later of
the date executed by Lessor or the date on which each of the conditions set
forth in Part 2 of Addendum I to the Lease are satisfied or waived. Capitalized
terms used in this Schedule and not otherwise defined herein shall have the
respective meanings set forth in the Lease.
TOTAL EQUIPMENT COST....................... $104,479.80
FUNDING EXPIRATION DATE.................... August 15, 2000
RENTAL AMOUNT
Months 1-12............................ $ 740.03
Months 13-42........................... $3,851.13
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... December 1, 1999
ADVANCE RENTAL............................. $4,591.16
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION.............. Homestead Technologies, Inc.
0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
LESSEE CONTACT.................. Xxxxxx Xxxxx
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of the
date set forth below.
LESSEE: LESSOR:
HOMESTEAD TECHNOLOGIES, INC. DOMINION VENTURE FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By:
------------------------------- ----------------------------------
Name: Xxxxxx Xxxxx Name:
----------------------------- --------------------------------
Title: CEO Title:
---------------------------- -------------------------------
Date:
-------------------------------
CERTIFICATE OF INSPECTION AND ACCEPTANCE
This document is an "Acceptance Certificate" referred to in Paragraph 1 of
the Master Lease Agreement Number 10840 (the "Lease") dated as of September 28,
1998, between Dominion Venture Finance, L.L.C. ("Lessor") and Homestead
Technologies, Inc. ("Lessee"). This Acceptance Certificate relates to the
Equipment described in Schedule 10840-11 to the Lease (the "Schedule"). All
capitalized terms used without definition herein shall have the respective
meanings given to such terms in the Lease.
LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE TYPE AND QUANTITY OF THE
EQUIPMENT AND ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT
LIMITATION ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Lessee further acknowledges that Lessor has accepted no responsibility for the
transportation, installation or required licensing necessary for the transfer,
installation or use of the equipment.
Lessee certifies that the Equipment (i) has been delivered to Lessee at the
location specified in the Schedule, (ii) has been inspected by Lessee and has
been found to be in good working order, repair and condition (iii) has been
installed to Lessee's satisfaction, and (iv) is of a size, design, capacity and
manufacture to satisfy Lessee's requirements. Lessee understands that it may
have rights under the contract pursuant to which the Equipment was acquired and
should contact the supplier of the Equipment for a description of such rights.
Lessee hereby represents and warrants to Lessor that (i) no event of
default under Paragraph 24 of the Lease or event which, with the giving of
notice or the lapse of time, or both, would become such an event of default has
occurred and is continuing, except as disclosed in writing to Lessor, which
disclosed event has either been cured by Lessee or concerning which Lessee has
provided evidence to Lessor that Lessee is in the process of curing such default
and is diligently prosecuting such cure to completion (nothing herein shall
constitute a waiver by Lessor of any rights or remedies which it may have under
the Lease with respect to any event of default); (ii) each of the
representations and warranties set forth in Paragraph 12(b) of the Lease is true
and correct; and (iii) Lessee has obtained, and there are in full force and
effect, all insurance policies with respect to the Equipment required to be
obtained under the terms of the Lease.
Date: Nov. 29, 99 LESSEE:
---------------
HOMESTEAD TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: CEO
-------------------------------
EQUIPMENT SCHEDULE
NO. 10840-12
TO MASTER LEASE AGREEMENT NUMBER 10840 DATED SEPTEMBER 28, 1998
LESSOR: DOMINION VENTURE FINANCE L.L.C. LESSEE: XXXXXXXXX.xxx
00 Xxxxxxxxxx Xxxxxx 0000 Xxxxxx Xxx, Xxxxx X
Xxxxx 0000 Xxxxx Xxxx, XX 00000
Xxx Xxxxxxxxx, XX 00000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and conditions
of the Lease are hereby expressly incorporated into this Schedule and made a
part hereof by this reference. By their execution of this Schedule, the parties
reaffirm all terms and conditions of the Master Lease Agreement except as they
may be modified hereby. This Schedule shall become effective on the later of
the date executed by Lessor or the date on which each of the conditions set
forth in Part 2 of Addendum I to the Lease are satisfied or waived. Capitalized
terms used in this Schedule and not otherwise defined herein shall have the
respective meanings set forth in the Lease.
TOTAL EQUIPMENT COST....................... $487,280.73
FUNDING EXPIRATION DATE.................... August 15, 2000
RENTAL AMOUNT
Months 1-12............................ $ 3,451.41
Months 13-42........................... $ 17,961.17
FREQUENCY.................................. Monthly, in advance
INITIAL TERM............................... 42 Months
COMMENCEMENT DATE.......................... January 1, 2000
ADVANCE RENTAL............................. $ 17,961.17
SECURITY DEPOSIT........................... $0.00
EQUIPMENT LOCATION............. Xxxxxxxxx.xxx
0000 Xxxxxx Xxx, Xxxxx X
Xxxxx Xxxx, XX 00000
LESSEE CONTACT................. Xxxxxx Xxxxx
(000) 000-0000
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of the
date set forth below.
LESSEE: LESSOR:
XXXXXXXXX.xxx DOMINION VENTURE FINANCE L.L.C.
By: DOMINION CAPITAL MANAGEMENT
L.L.C., as Managing Member
By: /s/ Xxxxxx Xxxxxx Xxxxx By:
------------------------------- -----------------------------------
Name: Xxxxxx Xxxxx Name:
----------------------------- ---------------------------------
Title: CEO Title:
---------------------------- --------------------------------
Date:
---------------------------------
