JACOM LEASING Exhibit 10.35
A DIVISION OF JACOM COMPUTER SERVICES INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
VENDOR (NAME & ADDRESS)
EQUIPMENT DESCRIPTION:
See Attached Equipment Listing
LEASE NUMBER 3362
SCHEDULE OF PAYMENT
60 MONTHLY PAYMENTS OF $8,798.50 (PLUS TAX)
(applicable taxes to be billed
PAYABLE AT SIGNING OF THE LEASE
Last 2 MONTHS PAYABLE IN ADVANCE
MAKE CHECKS PAYABLE TO: JACOM LEASING
EQUIPMENT LOCATION IF OTHER THAN BILLING ADDRESS:
LEASE AGREEMENT
This agreement is made the 22nd day of September 1999 between Jacom Leasing, its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Lessor") and ▇▇▇▇▇ ▇▇▇▇, ▇▇▇.,▇▇▇▇▇ South ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Lessee").
1. LEASE
Lessor agrees to lease to Lessee, and Lessee agrees to hire from Lessor, the
personal property (the "Equipment") described above. Neither Lessor nor Lessee
shall have any obligations hereunder until the execution and delivery of this
Lease Agreement. The terms and conditions contained herein (including the
Supplements, if any annexed hereto) shall govern the leasing and use of the
Equipment.
2. ADDITIONAL DEFINITIONS
(a)The "Installation Date" means the date on which the Equipment is installed
at Lessee's site. If Lessee shall fail, without reasonable cause, to execute
a delivery and acceptance certificate within seven (7) days of the delivery
of the Equipment at Lessee's site, the Installation Date will be considered
to be seven (7) days after the date of delivery of the Equipment by the
supplier.
(b)The "Commencement Date" means, as to the Equipment designated above, where
the Installation Date for such Equipment falls on the first day of the month,
that date, and in any other case, the first day of the month following the
month in which such Installation Date falls.
3. TERMS OF LEASE
(a)The term of this Agreement, as to all Equipment designated above, shall
commence on the Installation Date for such Equipment, and shall continue for
an initial period ending that number of months from the applicable
Commencement Date (the "Initial Period"); thereafter, the term of this
Agreement for all such Equipment shall be automatically extended for
successive three-month periods unless and until terminated by either party
giving to the other not less than six months' prior written notice. Any such
termination shall be effective only on the last day of the Initial Period or
the last day of any such successive periods. No Equipment Schedule may be
terminated with respect to less than all items of Equipment identified
therein.
(b)Any notice of termination given by either party under this Agreement or
under arty Supplement annexed hereto may not be revoked without the written
consent of the other party.
4. RENTALS
As to the Equipment, the monthly rental payable by Lessee to Lessor is as set
forth above. Rental shall begin on the Installation Date and shall be due and
payable by Lessee in advance on the first day of each month. If the Installation
Date does not fall on the first day of a month, the first payment shall be a pro
rata portion of the monthly rental, calculated on a 30-day basis, due and
payable on the Installation Date. In addition to the monthly rental set forth
above, Lessee shall pay to Lessor an amount equal to all taxes paid, payable or
required to be collected by Lessor, however designated, which are levied or
based on such rental, on this Agreement, or on the Equipment or its use, lease
operation, control, or value, including without limitation, state and local
privilege or excise taxes based on gross revenue, any penalties or interest in
connection therewith or taxes or amounts in lieu thereof paid or payable by
Lessor in respect of the foregoing, but excluding taxes based on Lessor's net
income. Personal property taxes on the Equipment shall be paid by Lessee. Lessee
agrees to file, on behalf of Lessor, all required property tax returns and
reports concerning the Equipment with all appropriate governmental agencies,
and, within not more than 45 days after the due date of such filing, to send
Lessor confirmation of such filing. Charges for taxes, penalties and interest
shall be promptly paid by Lessee when invoiced by Lessor.
A late charge on any past due payment shall accrue at the rate of 10% of each
such late payment for each month such payment shall be late, or if such rate
shall exceed the maximum rate allowed by law, then at such maximum rate, and
shall be payable on demand. Late payment charges shall be paid not later than
thirty (30) days following the date that the original payment was due.
5. INSTALLATION AND USE OF EQUIPMENT
(a) Lessee will provide the required suitable electric current and/or other
power source to operate the Equipment and suitable place of installation
for the Equipment with all appropriate facilities as specified by the
manufacturer.
(b) Subject to the terms of this Agreement, Lessee shall be entitled to
unlimited usage of the Equipment without extra charge by Lessor and may
sell time on the Equipment to third parties.
(c) Lessee will at all times keep the Equipment in its sole possession and
control. The Equipment shall not be moved from the locations stated
above without the prior written consent of Lessor.
(d) After prior notice to Lessor, Lessee may, at its own expense, make
alterations in or add attachments to the Equipment, provided that such
alterations or attachments do not decrease the value of the Equipment or
interfere with the normal and satisfactory operation or maintenance of the
Equipment or with Lessee's ability to obtain and maintain the maintenance
contract required by this Agreement. Unless Lessor shall otherwise agree in
writing, all such alterations and attachments shall be and become the
property of Lessor or, at the option of Lessee, shall be removed by Lessee
and the Equipment restored at Lessee's expense to its original condition,
reasonable wear and tear only accepted.
6. MAINTENANCE AND REPAIRS
(a)Lessee shall, during the continuance of this Agreement, at its expense, keep
the Equipment in good working order and condition and make all necessary
adjustments, repairs and replacements thereto. Lessee shall not use or permit
the Equipment to be used for any purpose for which, in the opinion of
manufacturer, the Equipment is not designed or reasonably suitable.
(b)Without limiting the generality of the foregoing, Lessee shall, during the
continuance of this Agreement, at its own expense, enter into and maintain in
force a contract with the manufacturer (or other qualified service
organization approved in writing by both parties) covering at least prime
shift maintenance of each item of Equipment. Such contract as to each item
shall commence upon expiration of the warranty period, if any, relating to
such items. Lessee shall furnish Lessor with a copy of such contract(s) upon
demand.
(c)At the termination of this Agreement, Lessee shall, at its expense, return
the Equipment to Lessor (at the location designated by Lessor within the
continental United States) in the same operating order, repair, condition and
appearance as on the Installation Date, reasonable wear and tear only
excepted with all engineering changes prescribed by the manufacturer prior
thereto incorporated therein, and Lessee shall arrange and pay for such
repairs (if any) as are necessary for the manufacturer to accept the
equipment under contract maintenance at its then standard rates.
(d) Lessee shall comply with all governmental laws, regulations and
requirements, and all insurance requirements, if any, with respect to the
use, maintenance and operation of the Equipment.
7. OWNERSHIP AND INSPECTION
(a)The Equipment shall at all times remain the property of the Lessor. Lessor
may affix or request Lessee to affix tags, decals or plates to the Equipment
indicating Lessor's ownership, and Lessee shall not permit their removal or
concealment.
(b)It is the intention and understanding of both Lessor and Lessee that the
Equipment shall be and at all times remain separately identifiable personal
property. Lessee shall not permit the Equipment to be installed in, or used,
stored or maintained with, any personal property in such manner or under such
circumstances that such Equipment might be or become an accession to or
confused with such other personal property; provided, however, that the use
or maintenance in accordance with normal operating procedures of Lessee of
the Equipment with arty other computer equipment owned by or leased to Lessee
shall not be a violation of the foregoing provisions of this sentence. Lessee
shall not permit the Equipment to be installed in or used, stored, or
maintained with, any real property in such a manner or under such
circumstances that any person might acquire any rights in such Equipment
paramount to the rights of Lessor by reason of such Equipment being deemed to
be real property or a fixture thereon.
(c)Lessee shall keep the Equipment free and clear of all liens and
encumbrances. Lessee shall not assign this Agreement or any of its rights
hereunder or sublease the Equipment without the prior written consent of
Lessor, except that Lessee may, at its expense, upon prior written notice to
Lessor, assign this Agreement or sublease the Equipment to any parent or
subsidiary corporation, or to a corporation which shall have acquired all or
substantially all of the property of Lessee by merger, consolidation or
purchase. No permitted assignment or sublease shall relieve Lessee of any of
its obligations hereunder.
(d) Lessor or its agents shall have free access to the Equipment at all
reasonable times for the purpose of inspection and for any other purpose
contemplated in this Agreement.
(e) Lessee shall immediately notify Lessor of all details concerning any damage
or loss arising out of the improper manufacture, functioning or operation of
the Equipment.
8. WARRANTIES
(a) Lessor shall, at the request and expense of Lessee, enforce for the benefit
of Lessee any rights which Lessor shall be entitled to enforce against the
manufacturer in respect of the Equipment.
(b) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THERE ARE NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, WITH RESPECT
TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENT OR
THE LIKE. LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR
DAMAGE OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL THERE BE ANY ABATEMENT OF
RENTAL, ARISING OUT OF OR IN CONNECTION WITH (i) THE DEFICIENCY OR
INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR
DISCLOSED TO LESSOR, (ii) ANY DEFICIENCY OR DEFECT IN THE EQUIPMENT, (iii)
THE USE OR PERFORMANCE OF THE EQUIPMENT, (iv) ANY INTERRUPTION OR LOSS OF
SERVICE OR USE OF THE EQUIPMENT, or (v) ANY LOSS OF BUSINESS OR OTHER
CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT RESULTING FROM ANY OF THE
FOREGOING. LESSEE WILL DEFEND, INDEMNIFY AND HOLD LESSOR HARMLESS AGAINST
ANY AND ALL CLAIMS, DEMANDS AND LIABILITIES ARISING OUT OF OR IN CONNECTION
WITH THE DESIGN. MANUFACTURE, POSSESSION OR OPERATION OF THE EQUIPMENT.
9. SECURITY INTEREST
(a)In the event that Lessor transfers or assigns or grants a security interest
in all or any part of its rights in this Agreement, the Equipment and/or sums
payable hereunder to the third party, whether as collateral security for any
loans or advances made or to be made to Lessor by such third party or
otherwise, Lessee, upon receipt of notice of any such transfer or assignment
and instructions from Lessor, shall pay its obligations hereunder or amounts
equal thereto to the third party (or to arty other party designated by the
third party), and Lessee's obligations hereunder shall be absolute and
unconditional and shall not be subject to any abatement, reduction,
recoupment, defense, offset or counterclaim available to Lessee against
Lessor for any reason whatsoever; nor, except as otherwise expressly provided
herein, shall this Agreement terminate, or the respective obligations of
Lessor or Lessee be otherwise affected, by reason of any defect in the
Equipment, condition, design, operation or fitness for use thereof or any
loss or destruction of the Equipment or any part thereof, the prohibition of
or other restriction against Lessee's use of the Equipment, the interference
with such use by any private person or entity, or by reason of any failure by
Lessor to perform any of its obligations herein contained, or by reason of
any other indebtedness or liability, howsoever and whenever arising, of
Lessor to Lessee or to any other person, firm or corporation or to any
governmental authority or for any other cause whether similar or dissimilar
to the foregoing, any present or future law to the contrary notwithstanding,
it being the intention of the parties hereto that the Rental payable by
Lessee hereunder shall continue to be payable in all events and at the times
herein provided, except as otherwise expressly provided for herein.
(b)On the Installation Date as to the Equipment, Lessee will furnish to Lessor,
and/or its assignee, a certificate signed by an officer of Lessee to the
effect that: Lessee has full power and authority to enter into this
Agreement; this Agreement has been duty authorized; executed and delivered by
Lessee and is its valid and binding obligation, enforceable in accordance
with its terms; no approval, consent, or withholding of obligation is
required from any governmental authority with respect to the entering into or
performance of this Agreement by Lessee; the entering into or performance of
this Agreement by Lessee does not and will not violate a judgment, order, law
or regulation applicable to Lessee or any provision of Lessee's certificate
of incorporation or by-laws or result in a breach of, or constitute a default
under, or result in the creation of any lien, charge, security interest or
other encumbrance upon any assets of Lessee or on the Equipment or this
Agreement pursuant to, any indenture, mortgage, deed of trust, bank loan,
credit agreement or other instrument to which Lessee is a party or by which
it or its assets may be bound: the Equipment is located at Lessee's facility
as shown above; the Equipment has been and is then operating to the
satisfaction of Lessee; Lessee has no right, title or interest in the
Equipment or any part thereof except the rights, title and interest therein
as Lessee thereof under this Agreement; and that, on the Installation Date,
this Agreement is in full force and effect, neither party is in default
hereunder, and Lessee's obligations hereunder are subject to no defenses,
setoffs or counterclaims. In addition, Lessee agrees promptly to execute and
deliver to Lessor standard form UCC-1 financing statements (to be filed for
information purposes only) as well as such other agreements, documents,
instruments and certificates as Lessor may reasonably request (including,
without limitation, an opinion of counsel and certified copies of Board
resolutions, both in form and substance satisfactory to Lessor) in order to
effect Lessor's purchase of the Equipment or financing thereof. Lessee
authorizes Lessor to file a financing statement with respect to the Equipment
signed only by the Lessor where permitted by the Uniform Commercial Code or
other applicable law. Lessee hereby appoints Lessor as lessee's
attorney-in-fact to execute such financing statement on Lessee's behalf and
to do all acts or things which Lessor may deem necessary to protect Lessors
fide and interest hereunder. Lessor and Lessee further agree that a carbon,
photographic or other reproduction of this Lease may be filed as a financing
statement and shall be sufficient as a financing statement under the Uniform
Commercial Code or other applicable law. It is the intent of the parties that
this is a true lease, and the filing of a financial statement under the
Uniform Commercial Code or other applicable law shall not be construed as
evidence that any security interest was intended to be created, but only to
give public notice of Lessor's ownership of the Equipment. If this Lease is
deemed at any time to be one intended as security then Lessee grants Lessor a
security interest in the Equipment and the proceeds from the sale, lease or
other disposition of the Equipment.
10. MISCELLANEOUS CHARGES
Except as otherwise specifically provided in this Agreement, it is understood
and agreed that this is a net lease, and that, as between Lessor and Lessee,
Lessee shall be responsible for all costs and expenses of every nature
whatsoever arising out of or in connection with or related to this Agreement or
the Equipment (such as, but not limited to, transportation in and out,
transportation insurance, rigging, drayage, packing, installation and disconnect
charges). On the commencement of this Lease, Lessee agrees to pay to Lessor an
administrative fee, not to exceed $100.00 to reimburse Lessor for its lease
initiation and recording costs.
11. SECURITY DEPOSIT
As security for the prompt and full payment of the amounts due under this Lease,
and Lessee's complete performance of all of its obligations under this Lease,
and any extension or renewal hereof, Lessee has deposited with Lessor the
security amount set forth in the section shown as "Schedule of Payments". In the
event any default shall be made in the performance of any of Lessee's
obligations under this Lease, Lessor shall have the right, but not the
obligation, to apply the security deposit to the curing of such default. Within
fifteen (15) days after Lessor mails notice to Lessee that Lessor has applied
any portion of the security deposit to the curing of any default, Lessee shall
restore said security deposit to the full amount set forth above. On the
expiration or earlier termination or cancellation of this Lease, or any
extension or renewal hereof, provided Lessee has paid all of the rent called for
and fully performed all other provisions of this Lease, Lessor will return to
the Lessee any then remaining balance of said security deposit, without
interest. Said security deposit may be commingled with Lessor's other funds.
12. RISK OF LOSS ON LESSEE
Lessee shall obtain and maintain from the time Lessee executes a document
evidencing physical receipt of the Equipment and for the entire term of this
Agreement, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including, without limitation,
loss by fire (including so-called extended coverage) theft and such other risks
of loss as are customarily insured against the type of Equipment leased
hereunder by any businesses in which Lessee is engaged, in such amounts, in such
form and with such insurers as shall be satisfactory to Lessor; provided,
however, that the amount of insurance against loss or damage to the Equipment
shall not be less than the greater of the full replacement value of the
Equipment or the installments of rent then remaining unpaid hereunder plus any
renewal or purchase options contained herein. Each insurance policy will name
Lessee as an insured and Lessor as an additional insured and loss payee thereof
as Lessor's interest may appear, and shall contain a clause requiring the
insurer to give Lessor at least 10 days prior written notice of any alteration
in the terms of such policy or of the cancellation thereof. Lessee shall furnish
to Lessor a certificate of insurance or other evidence satisfactory to Lessor
that such insurance coverage is in effect provided, however, that Lessor shall
be under no duty either to ascertain the existence of or to examine such
insurance policy or to advise Lessee in the event such insurance coverage shall
not comply with the requirements hereof. Lessee further agrees to give Lessor
prompt notice of any damage to, or loss of, the Equipment, or any part thereof.
Lessor shall be named as the Loss Payee on such policies, which shall be written
by an insurance company of recognized responsibility Lessee agrees to insure the
interest of any third party (referred to in Paragraph 9 of this Agreement) under
a standard mortgagee clause. Evidence of such insurance coverage shall be
furnished to Lessor upon demand. If Lessee shall fail to provide such insurance
coverage or evidence thereof, then Lessor will have the right, but not the
obligation, to have such insurance protecting Lessor placed at Lessee's expense.
Lessee's expense shall include the full premium paid for such insurance and any
customary charges or fees of Lessor or of Lessor's assignees associated with
such insurance. Lessee shall pay such amounts upon presentation by the Lessor of
such premiums and associated charges. If any item of Equipment is rendered
unusable as a result of any physical damage to, or destruction of, the
Equipment, the Lessee shall give Lessor immediate notice thereof and this
Agreement shall continue in full force and effect without any abatement of
rental. Lessee shall determine, within fifteen (15) days after the date of
occurrence of such damage or destruction, whether such item of Equipment can be
repaired. In the event Lessee determines that such item of Equipment can be
repaired, Lessee, at its expense, shall cause such item of Equipment to be
promptly repaired. In the event Lessee determines that the item of Equipment
cannot be repaired, Lessee, at its expense. shall promptly replace such item of
Equipment and convey title to such replacement to Lessor free of all liens and
encumbrances, and this Lease shall continue in full force and effect as though
such damage or destruction had not occurred. All proceeds of insurance received
by Lessor or Lessee under the policy referred to in the preceding paragraph of
this section shall be applied toward the cost of any such repair or replacement.
13. INDEMNIFICATION
Lessee hereby agrees to assume liability for, and does hereby agree to
indemnify, protect, save and keep harmless Lessor and its respective successors,
assigns, legal representatives, agents and servants, from and against, any and
all liabilities, obligations, losses, damages, penalties, claims. actions,
suits, costs, expenses or disbursements (including legal fees and expenses) of
any kind and nature whatsoever which may be imposed on, incurred by or asserted
against Lessor or any of its respective successors, assigns, legal
representatives, agents and servants (whether or not also indemnified against by
the manufacturer(s) or any other person), in any way relating to or arising out
of this Lease or any document contemplated hereby, or the performance or
enforcement of any of the terms hereof, or in any way relating to or arising out
of the manufacture, purchase, acceptance, rejection, return lease, ownership,
possession, use, condition, operation, sale or other disposition of the
Equipment or any accident in connection therewith (including, without
limitation, latent or other defects, whether or not discoverable); provided,
however, that Lessee shall not be required to indemnity Lessor or its respective
successors, assigns, legal representatives, agents and servants, for loss or
liability in respect of any item of Equipment arising from acts or events which
occur after possession of such item of Equipment has been returned to Lessor or
loss or liability resulting from the willful misconduct or gross negligence of
the party otherwise to be indemnified hereunder. Lessee agrees that Lessor shall
not be liable to Lessee for any liability, claim, loss, damage or expense of any
kind or nature arising in strict liability or caused directly or indirectly by
the inadequacy of the Equipment for any purpose or any deficiency or defect
therein or the use or maintenance, thereof or any repairs, servicing or
adjustments thereto or any delay in providing or failure to provide any thereof
or any interruption or loss of service or use thereof or any loss of business.
14. REMEDIES
Lessee shall be in default hereunder, and there shall be a breach of this
Agreement, if:
(a) Lessee fails to pay any installment of rent within twenty (20) days when the
same becomes due and payable.
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with
possession of the Equipment or any items thereof, except as expressly
permitted herein.
(c) Lessee shall fail to observe or perform any of the other obligations
required to be observed or performed by Lessee hereunder, and such failure
shall continue uncured for ten (10) days after written notice thereof to
Lessee by Lessor.
(d) Lessee ceases doing business as a going concern, makes an assignment for
the benefit of creditors, admits in writing its inability to pay its debts as
they become due, files a voluntary petition in bankruptcy, is adjudicated a
bankrupt or an insolvent, files a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar arrangement under any present or future statute, law
or regulation, or files an answer admitting the material allegations of a
petition filed against it in any such proceeding, consents to, or acquiesces
in the appointment of, a trustee, receiver, or liquidator of it or of all or
any substantial part of its assets or properties, or if it or its
shareholders shall take any action looking to its dissolution or liquidation.
(e) Within 30 days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation,
such proceedings shall not have been dismissed, or if within 30 days after
the appointment without Lessee's consent or acquiescence of any trustee,
receiver or liquidator of it or of all or any substantial part of its assets
and properties, such appointment shall not be vacated.
In the event that Lessee is in default hereunder, then, in any such event,
Lessor may at its option do any or all of the following: (i) by notice to Lessee
terminate this Agreement as to all the Equipment; (ii) whether or not this
Agreement is terminated as to all or any Equipment, take possession of any or
all of the Equipment wherever situated, and for such purpose, enter upon any
premises without liability for so doing; (iii) sell, dispose of, hold, use or
lease any of the Equipment as Lessor in its sole discretion may decide, without
any duty to account to Lessee; (iv) by notice to Lessee, declare immediately due
and payable all monies to be paid by Lessee during the Initial Period or, if the
Initial Period has then expired, declare immediately due and payable all monies
to be paid during any term (extended as provided in Paragraph 3(a) hereof) then
in effect, and Lessee shall thereupon be obliged to pay such monies to Lessor
immediately. Lessee shall in any event remain fully liable for reasonable
damages as provided by law and for all costs and expenses incurred by Lessor on
account of such default, including all court costs and reasonable attorney's
fees. The waiver by Lessor of any breach of any obligation of Lessee shall not
be deemed a waiver of such obligation or of any subsequent breach of the same or
any other obligation. The subsequent acceptance of rental payments hereunder by
Lessor shall not be deemed a waiver of any prior existing breach by Lessee
regardless of Lessor's knowledge of such prior existing breach at the time of
acceptance of such rental payments. The rights afforded Lessor under this
Paragraph shall not be deemed to be exclusive, but shall be in addition to any
rights or remedies provided by law.
15. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR
If Lessee shall be in default hereunder, Lessor may thereafter, without thereby
waiving any obligation of Lessee or such default make the payment or perform or
comply with the agreement, the nonpayment, nonperformance or noncompliance with
which caused such default, and the amount of such payment and the amount of the
reasonable expenses of Lessor incurred in connection with such payment or the
performance of or compliance with such agreement, as the case may be, shall be
payable by Lessee upon demand.
LEASE APPLICATION
Vendor Vendor Full Name Telephone
Lessee Full Company Name Fax
Tower Tech, Inc.
Address City State zip
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Telephone No. Contact Person Title
Business Structure:
Proprietorship
Partnership
Corporation
X Monthly Rental Lease Term No. of Mos. 6
No. of Years in Business
Equipment cost
Equipment Description Type of Business
See Attached Equipment Listing
NOTICE: IF YOUR APPLICATION FOR BUSINESS CREDIT IS DENIED, YOU HAVE THE
RIGHT TO A WRITTEN STATEMENT OF THE SPECIFIC REASONS FOR THE DENIAL. TO OBTAIN
THE STATEMENT, PLEASE CONTACT THE LESSOR NAMED HEREIN WITHIN 60 DAYS FROM THE
DUE YOU ARE NOTIFIED OF OUR DECISION. WE WILL SEND YOU A WRITTEN STATEMENT OF
REASONS FOR THE DENIAL WITHIN 30 DAYS OF RECEIVING YOUR REQUEST FOR THE
STATEMENT THE FEDERAL EQUAL CREDIT OPPORTUNITY ACT PROHIBITS CREDITORS FROM
DISCRIMINATING AGAINST CREDIT APPLICANTS ON THE BASIS OF RACE, COLOR, RELIGION,
NATIONAL ORIGIN, SEX, MARITAL STATUS, AGE (PROVIDED THE APPLICANT HAS THE
CAPACITY TO ENTER INTO A BINDING CONTRACT); BECAUSE ALL OR PART OF THE
APPLICANTS INCOME DERIVES FROM ANY PUBLIC ASSISTANCE PROGRAM; OR BECAUSE THE
APPLICANT HAS IN GOOD FAITH EXERCISED ANY RIGHT UNDER THE CONSUMER CREDIT
PROTECTION ACT. THE FEDERAL AGENCY THAT ADMINISTERS COMPLIANCE WITH THIS LAW
CONCERNING THIS CREDITOR IS FEDERAL TRADE COMMISSION, ECOA COMPLIANCE,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
GUARANTOR INFORMATION REQUESTED FOR ALL CORPORATIONS IN
BUSINESS LESS THAN THREE YEARS, AND ALL PARTNERSHIPS,
PROPRIETORS, PROFESSIONALS AND SERVICE RELATED BUSINESSES.
NAME:
HOME ADDRESS
NAME: .. ADDRESS
SOC.SEC. NO.
SOC. SEC. NO
REFERENCES: (LIST BANK OR BANKS. PREVIOUS BANK REQUIRED IF APPLICANT HAS BEEN AT
PRESENT BANK LESS THAN TWO YEARS)
PRESENT BANK
OF APPLICANT
PREVIOUS OR SECOND BANK OF APPLICANT
BRANCH: PHONE:
NAME OF ACCOUNT NO.
BANK OFFICER:
LOAN-LEASE-TRADE REFERENCES: NAME AND ADDRESS
1.
2.
3.
BRANCH: PHONE:
NAME OF ACCOUNT NQ
BANK OFFICER:
PHONE:
CONTACT
1 AUTHORIZE THE RELEASE OF ANY CREDIT OR FINANCIAL INFORMATION TO:
AUTHORIZED SIGNER & TITLE
FINANCIAL STATEMENTS GENERALLY REOUIRED ON TRANSACTIONS OVER $15,000.
CERTIFICATE OF DELIVERY AND ACCEPTANCE OF LEASED EQUIPMENT
Lease Number: 3362
Lessee hereby acknowledges receipt of the equipment described in its
Lease with Lessor (the "Equipment") and accepts the
Equipment after full inspection thereof as satisfactory for all
purposes of the Lease. Lessee acknowledges that Lessor has fully and
satisfactorily performed all covenants and conditions to be performed
by Lessor.
TOWER TECH, INC.
DATE OF DELIVERY LESSEE
September 22, 1999 ss/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, C.F.O.
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DATE OF LEASE LESSEE
9/24/99 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Print Name of ▇▇▇▇▇▇)
16.GENERAL
(a)This Agreement shall not be binding upon Lessor unless signed on its behalf
by a duly authorized officer. This Agreement shall be deemed to have been
made in the State at New Jersey and shall be governed in all respects by the
laws of such State.
(b)This Agreement constitutes the entire Agreement between Lessee and Lessor
with respect to the Equipment, and no covenant, condition or other term or
provision may be waived or modified orally.
(c)All notices hereunder shall be in writing and shall be delivered in person
or sent by registered or certified mail, postage prepaid, to the address of
the other party as set forth herein or to such other address as such party
shall have designated by proper notice.
ACCEPTED: JACOM LEASING
A Division of Jacom Computer Services Inc.
TITLE
LESSEE (FULL LEGAL NAME)
Tower Tech, Inc.
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CITY COUNTY STATE zip
PHONE NO. ( DATED:
(The undersigned certifies that the Equipment shall be used for business
purposes and agrees that no modification to this Lease will be effective unless
made in writing and
signed by both parties.
BY ss/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, CFO
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PRINT NAME ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
PERSONAL GUARANTY
*Guarantor must provide Personal Financial Statements and
most recent, Personal Tax Return before Lease will be
approved.
I guarantee that the Lessee will make all payments and pay all the other
required charges required under this Lease when they are due and will perform
all other obligations under the Lease fully and promptly. I also agree that you
may make other arrangements with the Lessee and I will still be responsible for
those payments and other obligations. You do not have to notify me if the Lessee
fails to meet all of its obligations under the Lease. If Lessee fails to meet
all of its obligations, I will immediately pay in accordance with the default
provisions of the Lease all sums due under the anginal terms of the Lease and
will perform all other obligations of Lessee under the Lease. I will reimburse
you for all the expenses you incur in enforcing any of your rights against the
Lessee or me, including attorney fees. If this is a corporate guaranty, it is
authorized by the Board of Directors of the guaranteeing corporation. If this is
a partnership guaranty, it is authorized under the partnership agreement. THIS
GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY. I AGREE AND
CONSENT THAT THE COURT OF THE STATE OF NEW JERSEY FOR BERGEN COUNTY OR ANY
FEDERAL DISTRICT COURT HAVING JURISDICTION IN THAT COUNTY SHALL HAVE
JURISDICTION AND SHALL BE PROPER LOCATION FOR THE DETERMINATION OF DISPUTES
ARISING UNDER THIS LEASE. I agree and consent that you may serve me by
registered or certified mail, which will be sufficient to obtain jurisdiction. I
waive trial by jury in any action between us
WITNESS SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN INDIVIDUAL DATED
X X
witness SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN INDIVIDUAL DATED
SECRETARY'S CERTIFICATE RELATING TO
INCUMBENCY AN CORPORATE RESOLUTIONS
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Secretary of TOWER TECH, INC.
An Oklahoma Corporation (herein the "Corporation"), does hereby certify:
1 . That he/she is the duly elected, qualified and acting Secretary of
the Corporation and has the custody of the corporate records, minutes and
corporate seal.
2. That the following names person(s) has/have been properly
designated, elected and assigned to the office in such corporation as indicated
below; that such person(s) hold(s) such office at this time an that the specimen
signature appearing beside the name of such officer is his true and correct
signature:
NAME TITLE SPECIMEN SIGNATURE
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3. Under the Certificate of Incorporation and By-Laws of the
Corporation all corporate officers have the authority to bind the Corporation to
contractual obligations.
4. That he/she is one of the duly authorized and proper officers of
such corporation to make certificates in its behalf and that she has caused this
certificate to be executed and the seal of the corporation to be hereunto
appended this 28th day of September, 1999.
(Corporate Seal)
ss/▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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SECRETARY
EQUIPMENT SCHEDULE NO. 2
LEASE AGREEMENT NO. 3362 DATED SEPTEMBER 22,1999 ("LEASE")
BETWEEN JACOM LEASING
A DIVISION OF JACOM COMPUTER SERVICES, INC
("LESSOR")
AND TOWER TECH. INC. ("LESSEE")
1. Equipment:
Item No. Qty Equip. Type Model/Feature Description
-------- --- ----------- ------------- -----------
EXTRUSION MACHINE
2. Equipment Location:
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3. Initial Period: 60 Months from Commencement Date
(Last 2 Months payable in advance)
4. Monthly Rental: $6,460.88
All of the terms and conditions of the above described Lease Agreement #3362
dated September 22, 1999 are incorporated herein by reference. Each Equipment
Schedule shall constitute a separate Lease Agreement.
Lessor: Lessee:
JACOM LEASING A DIVISION TOWER TECH, INC.
OF JACOM COMPUTER SERVICES, INC.
By:__________________ By ss/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:________________ Title: CFO
Date:________________ Date: 11/9/99
