LESSOR TLD FUNDING GROUP, a division of Cee and Gee Funding, Inc. LEASE NUMBER
0000 X Xxxxxxx Xxx, #000 000000-001-15
Phoenix, Az 85020
LESSEE VENDOR
XXXXX, INCORPORATED AND CMP SOLUTIONS, INC. Multiple Vendors
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
JOINTLY AND SEVERALLY RESPONSIBLE
QUANTITY DESCRIPTION MODEL #, CATALOG #, SERIAL # OR OTHER IDENTIFICATION
**SEE EXHIBIT 'A' ATTACHED AND MADE APART HEREOF**
Amount of Each Payment w/Use Tax Term of Lease in Months No of Monthly Payments Security Deposit
SEE EXHIBIT B 36 36 $30,328.12
TERMS AND CONDITIONS OF LEASE
1. LEASE. Lessee hereby leases from Lessor, and Lessor leases to Lessee, the
personal property described above, together with any replacement parts,
additions, repairs or accessories now or hereafter in or affixed to it
(hereinafter referred to as the "Equipment")
2. ACCEPTANCE OF EQUIPMENT. Xxxxxx agrees to inspect the Equipment and to
execute an Acknowledgment and Acceptance of Equipment by Lessee notice, as
provided by Lessor, after the Equipment has been delivered and after Lessee is
satisfied that the Equipment is satisfactory in every respect. Lessee hereby
authorizes Lessor to insert in this Lease serial number or other identifying
data with respect to the Equipment.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. THERE ARE NO
WARRANTIES BY OR ON BEHALF OF XXXXXX. Xxxxxx acknowledges and agrees by his
signature below as follows:
(a) LESSOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED AS TO THE
CONDITION OF THE EQUIPMENT ITS MERCHANTABILITY ITS FITNESS OR SUITABILITY FOR
ANY PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY, OR WITH RESPECT
TO ANY CHARACTERISTICS OF THE EQUIPMENT.
(b) Lessee has fully inspected the equipment which it has requested Lessor
to acquired and lease to Lessee, and the Equipment is in good condition and to
Lessee's complete satisfaction;
(c) Lessee leases the Equipment "as Is" and with all faults;
(d) Lessee specifically acknowledges that the Equipment is leased to Lessee
solely for commercial or business purposes and not for personal family
household, or agricultural purposes;
(e) If the Equipment is not properly installed does not operate as
represented or warranted by the supplier or manufacturer, or is unsatisfactory
for any reason regardless of cause or conse quence, Xxxxxx's only remedy, if
any, shall be against the supplier or manufacturer of the equipment and not
against Lessor;
(f) Provided Lessee is not in default under this Lease, Lessor assigns to
Lessee any warran ties made by the supplier or manufacturer of the Equipment;
(g) LESSEE SHALL HAVE NO REMEDY FOR CONSEQUENTLY OR INCIDENTAL DAMAGES
AGAINST XXXXXX; and
(h) NO DEFECT, DAMAGE, OR UNFITNESS OF THE EQUIPMENT FOR ANY PURPOSE SHALL
RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR RELIEVE LESSEE OF ANY OTHER
OBLIGATION UNDER THIS LEASE.
4. STATUTORY FINANCE LEASE. Xxxxxx agrees and acknowledges that it qualify as a
statutory finance lease under Article 2A of the Uniform Commercial Code. Xxxxxx
acknowledges and agrees that xxxxxx has selected both: (1) the Equipment; and
(2) the supplier from whom Lessor is to purchase the Equipment. Lessee
acknowledges that Lessor has not participated in any way in Lessee's selection
of the Equipment or of the supplier, and Lessor has not selected, manufactured
or supplied the Equipment.
XXXXXX IS ADVISED THAT IT MAY HAVE RIGHTS UNDER THE CONTRACT EVIDENCING THE
LESSOR'S PURCHASE OF THE EQUIPMENT FROM THE SUPPLIER CHOSEN BY XXXXXX AND THAT
LESSEE SHOULD CONTACT THE SUPPLIER OF THE EQUIPMENT FOR A DESCRIPTION OF ANY
SUCH RIGHTS.
5. ASSIGNMENT BY LESSEE PROHIBITED. WITHOUT XXXXXX'S PRIOR WRITTEN CONSENT,
LESSEE SHALL NOT ASSIGN THIS LEASE OR SUBLEASE THE EQUIP MENT OR ANY INTEREST
THEREIN, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF THE EQUIPMENT
COVERED HEREBY.
6. COMMENCEMENT; RENTALS PAYMENTS; INTERIM RENTALS. This Lease shall commence
upon the written acceptance hereof by Xxxxxx and shall end upon full performance
and observance by Xxxxxx of each and every term, condition and covenant set
forth in this Lease, any Schedules hereto and any extensions hereof. Rental
payments shall be in the amounts and frequency as set forth on the face of this
Lease or any Schedules hereto. In this Lease, any Schedules hereto and any
extensions hereof Rental payments shall be in the amounts and frequency as set
forth on the face of this Lease or any Schedules hereto. In addition to regular
rentals, Lessee shall pay to Lessor interim rent for the use of the Equipment
prior to the due date of the first payment. Interim rent shall be in an amount
equal to 1/30th of the monthly rental, multiplied by the number of days elapsing
between the date on which the Equipment is accepted by Lessee and the
commencement date of this lease, together with the number of days elapsing
between commencement of the Lease and the due date of the first payment. The
payment of interim rent shall be due and payable upon Xxxxxx's receipt of
invoice from Lessor. The rental period under the Lease shall terminate following
the last day of the terms stated on the face hereof or in any Schedule hereto
unless such Lease or Schedule has been extended or otherwise
2
modified. Lessor shall have no obligation to Lessee under this Lease if Lessee
fails to execute or deliver to Lessor Acknowledgment and Acceptance of Equipment
by Lessee acknowledging its acceptance of the equipment within thirty (30) days
after it is delivered to Lessee, with respect to this Lease or any Schedule
hereto. THIS LEASE IS NOT CANCELABLE OR TERMINABLE BY LESSEE SEE REVERSE SIDE
FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THIS LEASE. XXXXXX
UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER, NOR ANY SALESMAN,
BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, IS AN AGENT OF LESSOR, NO BROKER OR
SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, IS
AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE, AND NO
REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE BROKER OR
SUPPLIER, NOR ANY SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, SHALL IN
ANY WAY AFFECT LESSEE'S DUTY TO PAY THE RENTALS AND TO PERFORM LESSEE'S
OBLIGATIONS SET FORTH IN THIS LEASE
7. CHOICE OF LAW. This Lease shall not be effective until signed by Lessor at
its principal office listed above This Lease shall be considered to have been
made in the state of Lessor's principal place of business listed above and shall
be interpreted in accordance with the laws and regulations of the state of
Lessor's principal place of business. Xxxxxx agrees to jurisdiction the state of
Lessor's principal place of business listed above by any action, suit or
proceeding regarding this Lease, and concedes that it, and each of them,
transacted business in the state of Lessor's principal place of business listed
above by entering into this Lease. In the event of any legal action with regard
to this lease or the equipment covered hereby, Xxxxxx agrees that venue may be
laid in the County of Lessor's principal place of business.
8. SECURITY DEPOSIT. As security for the prompt and full payment of the amounts
due under this Lease, and Xxxxxx'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
"Security Deposit" 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
shall not be obligated, to apply the security deposit to the curing of such
default. Within 15 days alter 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 Xxxxxx's other funds.
9. LIMITED PREARRANGED AMENDMENTS; SPECIFIC POWER OF ATTORNEY. In the event it
is necessary to amend the terms of this Lease to reflect a change in one or more
of the following conditions:
3
(a) Lessor's actual cost of procuring the Equipment, or
(b) Lessor's actual cost of providing the Equipment to Lessee, or
(c) A change in rental payments as a result of (1) or (2), above, or
(d) Description of the Equipment;
Lessee agrees that any such amendment shall be described in a letter from Lessor
to Lessee, and unless within 15 days after the date of such letter Lessee
objects in writing to Lessor, this Lease shall be deemed amended and such
amendments shall be incorporated in this Lease herein as if originally set forth
Lessee grants to Lessor a specific power of attorney for Lessor to use as
follows (1) Lessor may sign and file on Lessee's behalf any document Lessor
deems necessary to perfect or protect Lessor's interest in the Equipment or
pursuant to the Uniform Commercial Code; and (2) Lessor may sign, endorse or
negotiate for Lessor's benefit any instrument representing proceeds from any
policy of insurance covering the Equipment.
10. LOCATION. The Equipment shall be kept at the location specified above or, if
none is specified, at Xxxxxx's address as set forth above and shall not be
removed without Lessor's prior written consent.
11. USE. Lessee shall use the Equipment in a careful manner, make all necessary
repairs at Lessee's expense, shall comply with all laws relating to its
possession, use, or maintenance, and shall not make any alterations, additions,
or improvements to the Equipment without Lessor's prior written consent All
additions, repairs or improvements made to the Equipment shall belong to Lessor
12. OWNERSHIP; PERSONALTY. The Equipment is, and shall remain, the properly of
Lessor, and Lessee shall have no right, title, or interest in the Equipment
except as expressly set forth in this Lease. The Equipment shall remain personal
properly even though installed in or attached to real properly.
13. SURRENDER. By this Lease, Lessee acquires no ownership rights in the
Equipment, and has no option to purchase same. Upon the expiration, or earlier
termination or cancellation of this Lease, or in the event of a default under
Paragraph 21, hereof, Lessee, at its expense, shall return the Equipment in good
repair, ordinary wear and tear resulting from proper use thereof alone excepted,
by delivering it, packed and ready for shipment, to such place or carrier as
Lessor may specify.
14. RENEWAL. At the expiration of the Lease, Xxxxxx shall return the Equipment
in accordance with Paragraph 13, hereof. At Lessor's option, this Lease may be
continued on a month-to-month basis until 30 days after Xxxxxx returns the
Equipment to Lessor In the event the Lease is so continued, Lessee shall pay to
Lessor rentals in the same periodic amounts indicated un der"Amount of Each
Payment," above.
15. LOSS AND DAMAGE. Lessee shall at all times after signing this Lease bear the
entire risk of loss, theft, damage or destruction of the Equipment from any
cause whatsoever, and no loss,
4
theft, damage or destruction of the Equipment shall relieve Lessee of the
obligation to pay rent or to comply with any other obligation under this Lease
In the event of damage to any part of the Equipment, Lessee shall immediately
place the same in good repair at Lessee's expense. If Lessor determines that any
part of the Equipment is lost, stolen, destroyed, or damaged beyond repair,
Lessee shall, at Lessee's option, do one of the following:
(a) Replace the same with like equipment in good repair, acceptable to
Lessor; or
(b) Pay Lessor in cash the following: (i) all amounts due by Lessee to
Lessor under this Lease up to the date of the loss; (ii) the accelerated balance
of the total amounts due for the remaining term of this Lease attributable to
said item, discounted to present value at a discount rate of 9% as of the date
of loss; and; (iii) the Lessor's estimate as of the time this Lease was entered
into of Lessor's residual interest in the Equipment discounted to present value
at a discount rate of 9%, as of the date of loss Upon Lessor's receipt of
payment as set forth above, Lessee shall be entitled to title to the Equipment
without any warranties. If insurance proceeds are used to fully comply with this
subparagraph, the balance of any such proceeds shall go to Lessee to compensate
for loss of use of the Equipment for the remaining term of the Lease.
16. INSURANCE; LIENS; TAXES. Lessee shall provide and maintain insurance against
loss, theft, damage, or destruction of the Equipment in an amount not less than
the full replacement value of the Equipment, with loss payable to Lessor. Lessee
also shall provide and maintain comprehensive general all-risk liability
insurance including but not limited to product liability coverage, insuring
Lessor and Lessee, with a severability of interest endorsement, or its
equivalent, against any and all loss or liability for all damages, either to
persons or properly or otherwise, which might result from or happen in
connection with the condition, use, or operation of the Equipment, with such
limits and with an insurer satisfactory to Lessor Each policy shall expressly
provide that said insurance as to Lessor and its assigns shall not be
invalidated by any act, omission, or neglect of Lessee and cannot be canceled
without 30 days' prior written notice to Lessor As to each policy Lessee shall
furnish to Lessor a certificate of insurance from the insurer, which certificate
shall evidence the insurance coverage required by this paragraph Lessor shall
have no obligation to ascertain the existence of or provide any insurance
coverage for the Equipment or for Lessee's benefit If Lessee fails to provide
such insurance, Lessor will have the right, but no obligation, to have such
insurance protecting Lessor placed at Lessee's expense Such placement will
result in an increase in Lessee's periodic payments, such increase being
attributed to Lessor's costs of obtaining such insurance and any customary
charges or fees of Lessor's or its designee associated with such insurance
Lessee shall keep the Equipment free and clear of all levies, liens, and
encumbrances Lessee shall pay all charges and taxes (local, state, and federal)
which may now or hereafter be imposed upon the ownership, leasing, rental, sale,
purchase, possession, or use of the Equipment, excluding, however, all taxes on
or measured by Lessor's net income If Lessee fails to pay said charges or taxes,
Lessor shall have the right, but shall not be obligated, to pay such charges or
taxes In that event, Lessor shall notify Lessee of such payment and Lessee shall
repay to Lessor the cost thereof within 15 days after such notice is mailed to
Lessee.
17. INDEMNITY. Lessee shall indemnify Lessor against any claims, actions,
damages, or
5
liabilities, including all attorney fees, arising out of or connected with
Equipment, without limitation. Such indemnification shall survive the
expiration, cancellation, or termination of this Lease Lessee waives any
immunity Lessee may have under any industrial insurance act, with regard to
indemnification of Lessor.
18. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all of the rights
but none of the obligations of Lessor under this Lease Lessee shall recognize
and hereby consents to any assignment of this Lease by Xxxxxx, and shall not
assert against the assignee any defense, counterclaim, or setoff that Lessee may
have against Lessor Subject to the foregoing, this Lease inures to the benefit
of and is binding upon the heirs, devisees, personal representatives, survivors,
successors in interest, and assigns of the parties hereto.
19. SERVICE CHARGES; INTEREST. If Lessee shall fail to make any payment required
by this Lease within 10 days of the due date thereof, Lessee shall pay to Lessor
a service charge of 8% of the amount due; provided, however, that not more than
one such service charge shall be made on any delinquent payment, regardless of
the length of the delinquency In addition to the foregoing service charge,
Lessee shall pay to Lessor a $100 default fee with respect to any payment which
becomes thirty (30) days past due In addition, Lessee shall pay to Lessor any
actual additional expenses incurred by Lessor in collection efforts, including
but not limited to long-distance telephone charges and travel expenses Lessee
shall pay to Lessor interest on any delinquent payment or amount due under this
Lease from the due date thereof until paid, at the lesser of the maximum rate of
interest allowed by law or 18% per annum.
20. TIME OF ESSENCE. Time is of the essence of this Lease, and this provision
shall not be impliedly waived by the acceptance on occasion of late or defective
performance.
21. DEFAULT. Lessee shall be in default if:
(a) Lessee shall fail to make any payment due under the terms of tis Lease
for a period of 10 days from the due date thereof; or
(b) Lessee shall fail to observe, keep, or perform any provision of this
Lease, and such failure shall continue for a period of 10 days; or
(c) Lessee has made any misleading or false statement in connection with
application for or performance of this Lease; or
(d) The Equipment or any part thereof shall be subject to any lien, levy,
seizure, assignment, transfer, bulk transfer, encumbrance, application,
attachment, execution, sublease, or sale without prior written consent
of Lessor, or if Lessee shall abandon the Equipment or permit any other
entity or person to use the Equipment without the prior written consent
of Lessor; or
(e) Lessee dies or ceases to exist; or
(f) Lessee defaults on any other agreement it has with Lessor; or
(g) Any guarantor of this Lease defaults on any obligation to Lessor or any
of the above listed events of default occur with respect to any
guarantor or any such guarantor files or has filed against it a
petition under the bankruptcy laws.
6
22. REMEDIES. If Lessee is in default, Lessor, with or without notice to Lessee,
shall have the right to exercise any one or more of the following remedies,
concurrently or separately, and without any election of remedies being deemed to
have been made:
(a) Lessor may enter upon Xxxxxx's premises and without any court order or
other process of law may repossess and remove the Equipment, or render the
Equipment unusable without removal, either with or without notice to Lessee
hereby waives any trespass or right of action for damages by reason of such
entry, removal, or disabling Any such repossession shall not constitute a
termination of this Lease unless Lessor so notifies Lessee in writing;
(b) Lessor may require Lessee, at its expense, to return the Equipment in
good repair, ordinary wear and tear resulting from proper use thereof alone
excepted, by delivering it, packed and ready for shipment, to such place or
carrier as Lessor may specify;
(c) Lessor may cancel or terminate this Lease and may retain any and all
prior payments paid by Xxxxxx;
(d) Lessor may declare all sums due and to become due under this Lease
immediately due and payable, including as to any or all items of Equipment,
without notice or demand to Lessee;
(e) Lessor may re- lease the Equipment, without notice to Lessee, to any
third party, upon such terms and conditions as Lessor alone shall determine, or
may sell the Equipment, without notice to Lessee, at private or public sale, at
which sale Lessor may be the purchaser;
(f) Lessor may sue for and recover from Lessee the sum of all unpaid rents
and other payments due under this Lease then accrued, all accelerated future
payments due under this Lease, discounted to their present value at a discount
rate of 9% as of the date of default, plus Lessor's estimate at the time this
Lease was entered into of Lessor's residual interest in the Equipment, reduced
to present value at a discount rate of 9% as of the date of default, less the
net proceeds of disposition, if any, of the Equipment;
(g) To pursue any other remedy available at law, by statute or in equity No
right or remedy herein conferred upon or reserved to Lessor is exclusive of any
other right or remedy herein or by law or by equity provided or permitted, but
each shall be cumulative of every other right or remedy given herein or now or
hereafter existing by law or equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time No single or partial
exercise by Lessor of any right or remedy hereunder shall preclude any other or
further exercise of any other right or remedy.
23. MULTIPLE LESSEES. Lessor may, with the consent of any one of the Lessees
hereunder, modify, extend, or change any of the terms hereof without consent or
knowledge of the others, without in any way releasing, waiving, or impairing any
right granted to Lessor against the others Lessees and each of them are jointly
and severally responsible and liable to Lessor under this Lease.
24. EXPENSE OF ENFORCEMENT. In the event of any legal action with respect to
this Lease, the prevailing party In any such action shall be entitled to
reasonable attorney fees, including attorney fees incurred at the trial level,
including action in bankruptcy court, on appeal or review, or incurred without
action, suits, or proceedings, together with all costs and expenses incurred In
pursuit thereof.
7
25. ENTIRE AGREEMENT; NO ORAL MODIFICATIONS; NO WAIVER. This instru ment
constitutes the entire agreement between Lessor and Lessee. No provision of this
Lease shall be modified or rescinded unless in writing signed by a
representative of Lessor Waiver by Lessor of any provision hereof in one
instance shall not constitute a waiver as to any other instance.
26. SEVERABILITY. This Lease Is intended to constitute a valid and enforceable
legal instrument, and no provision of this Lease that may be deemed
unenforceable shall in any way invalidate any other provision or provisions
hereof, all of which shall remain in full force and effect.
LESSEE: XXXXX, Incorporated LESSOR: TLD Funding Group, a division
and CMP Solutions, Inc. of Cee and Gee Funding, Inc.
/s/ Xxx X. Xxxxxxx, Xx. 2/5/99 /s/ Xxxx X. Xxxxxxx 2/5/99
-------------------------- ------- ------------------------------ -------
Xxx X. Xxxxxxx, Xx., Date
President, XXXXX,
Incorporated
/s/ Xxxx Xxxxx 2/5/99
-------------------------- -------
Xxxx Xxxxx, President,
CMP Solutions
8
Page 1 of 1
EXHIBIT "A"
EQUIPMENT DESCRIPTION
VENDOR: ATSI
0000 X. 00xx Xxxxxx, Xxxxx 0
Xxxxx, Xxxxxxx 00000
Qty. Description
1 Tencor 6420 S/N 0496-268
1 Prometrix FT-750 S/N 95-1154
1 OmniMap RS75 Sheet Resistance Maping System S/N 960624RS75TCA
1 Tencor P2 S/N 5920179
VENDOR: CMP SOLUTIONS
0000 X. 00xx Xxxxxx, Xxxxx 0
Xxxxx, Xxxxxxx 00000-0000
Qty. Description
2 IPEC 472 Polishers
S/N 043
S/N 044
1 IPEC Avanti 9000 cleaner S/N 006
VENDOR: CIW SERVICES
0000 X. 00xx Xxxxx
Xxxxxxx, XX 00000
Qty. Description
1 Reverse Osmosis Water Purification System S/N HG101398CMP
INCLUDES: 1 ea. Carbon filter; 2 ea. Water Softeners, 1 ea. RO Unit,
1 ea. Storage tank;
2 ea. Distribution pumps, 1 ea. Control Panel; 2 ea. 1.0 micron
prefilter housing;
1 ea. Ultraviolet sterilized unit; 2 ea. 0.2 micron final filter
housing;
1 ea. Resistivity monitor
This Exhibit "A" is attached to and a part of _____________________ Lease No.
903601-001-15 and constitutes a true and accurate description of the equipment.
LESSEE: XXXXX, Incorporated and CMP Solutions, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
/s/ Xxx X. Xxxxxxx, Xx.
---------------------------------------------------
Xxx X. Xxxxxxx, Xx., President, XXXXX, Incorporated
/s/ Xxxx Xxxxx
---------------------------------------------------
Xxxx Xxxxx, President, CMP Solutions
Page 1 of 1
EXHIBIT "B"
PAYMENT SCHEDULE
Xxxxx CMP
Payments 1 - 12 $19,000.00 /S/ DMJ /S/ MSS
-------- --------
Payments 13 - 24 $23,000.00 /S/ DMJ /S/ MSS
-------- --------
Payments 25 - 36 $30,328.12 /S/ DMJ /S/ MSS
-------- --------
This Exhibit "B" is attached to and a part of _____________________________
Lease No. 903601-001-15 and constitutes a payment schedule.
LESSEE: XXXXX, INCORPORATED AND CMP SOLUTIONS, INC.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
/s/ Xxx X. Xxxxxxx, Xx.
---------------------------------------------------
Xxx X. Xxxxxxx, Xx., President, XXXXX, Incorporated
/s/ Xxxx Xxxxx
---------------------------------------------------
Xxxx Xxxxx, President, CMP Solutions
AMENDMENT TO THE
EQUIPMENT LEASE AGREEMENT
February 5, 1999
This Amendment to the Lease (the "Amendment") is by and among XXXXX
Incorporated, a Delaware corporation, CMP Solutions, Inc, an Arizona corporation
(collectively, "Lessee") and Cee and Gee Funding, Inc., an Arizona corporation
d/b/a TLD Funding Group ("Lessor").
1. AMENDMENT AND EFFECTIVE DATE. This Amendment, which is effective as of
February 5, 1999, amends the Equipment Lease Agreement dated February 5,
1999 (the "Lease") between the Lessee and Lessor. Except as modified
specifically by the Amendment, the Lease will remain in full force and
effect.
2. DEFINITIONS. The defined terms in the Lease have the same meanings in this
Amendment.
3. AMENDMENTS TO LEASE. The following sections of the Lease are hereby amended
and restated in their entirety as follows:
"5. ASSIGNMENT BY LESSEE. WITHOUT XXXXXX'S PRIOR WRITTEN CONSENT,
WHICH WILL NOT BE WITHHELD UNREASONABLY, LESSEE WILL NOT ASSIGN
THIS LEASE OR SUBLEASE THE EQUIPMENT OR ANY INTEREST IN THE EQUIP
MENT, OR PLEDGE OR TRANSFER THIS LEASE, OR OTHERWISE DISPOSE OF
THE EQUIPMENT COVERED HEREBY."
"7. CHOICE OF LAW. Arizona law governs the construction and enforcement of
this Agreement. The parties will arbitrate any disputes pertaining to this
Lease. The parties will select an arbitrator, who will set the procedural
and evidentiary rules for the arbitra tion. If the parties cannot agree on
an arbitrator, they will ask the Superior Court in Maricopa County, Arizona
to appoint an arbitrator. The arbitrator must set a hearing and issue a
ruling within 90 days after the arbitrator is selected. The arbitrator's
ruling will be binding on the parties. The prevailing party will be
entitled to recover from the other party its attorneys' fees, costs and
expenses incurred in connection with the dispute, including the
arbitrator's fee. Any claim or cause of action pertaining to the
arbitration will be brought only in courts of competent jurisdiction
located in Maricopa County, Arizona. The parties waive any objections
related to jurisdiction or venue, including objections on the grounds of
FORUM NON CONVENIENS."
"11. USE. Lessee will: (i) use the Equipment in a careful manner; (ii) make
all necessary repairs at Xxxxxx's expense; and (iii) use commercially
reasonable efforts comply with all applicable laws relating to the
Equipment's use, possession and maintenance. All repairs to the Equipment
will be deemed part of the Equipment. All improvements made to the
Equipment that can be removed without damaging the Equipment will belong to
Lessee."
"13. SURRENDER OF EQUIPMENT. Lessee, at its expense, will return the
Equipment to Lessor in good repair, ordinary wear and tear resulting from
proper use of the Equipment excepted, by delivering it to Lessor in
Phoenix, Arizona within 10 days after the expiration or the earlier
termination or cancellation of this Lease, or in the event of a default
under Paragraph 21 of this Lease."
"14. RENEWAL. At the expiration of this Lease, Xxxxxx and Xxxxxx may agree
to continue the Lease on a month-to-month basis pursuant to the terms
described in this Lease. Either party may terminate the month-to-month
Lease by giving the other party 30 days' notice."
"17. INDEMNITY. Each party will indemnify the other parties against any
costs, liabilities or expenses (including attorneys' fees) incurred by the
other parties and arising from the indemnifying party's acts or omissions
in connection with the Equipment. Such indemnifica tion will survive for
three years following the expiration, cancellation or termination of this
Lease."
"18. ASSIGNMENT BY LESSOR. Lessor may assign its rights and obligations
under this Lease. Lessee will recognize and consent to any assignment of
this Lease by Xxxxxx, subject to the assignee assuming all liabilities and
obligations of Lessor under this Lease, including any defenses,
counterclaims or setoffs Lessee may have against Lessor."
"21. DEFAULT. Lessee will be in default of this Lease if any of the
following events or conditions occur and continue for 10 days after
Xxxxxx's receipt of written notice of default from Lessor:
(a) Lessee fails to make any payment due under this Lease on the due date
of such payment;
(b) any Lessee breaches materially any material term of this Lease;
(c) Lessee has made any material false written statement to Lessor in
connection with entering into this Lease;
(d) the Equipment is subject to any lien, levy, seizure, assignment,
transfer, encumbrance, attachment, execution, sublease or sale without
prior written permission of Lessor;
(e) Lessee ceases to exist by way of dissolution, winding-up or otherwise;
(f) Lessee defaults on any other written agreement it has with Lessor; or
(g) any guarantor of Lessee's obligations under this Lease defaults on its
obligations to Lessor or has filed against it a petition of involuntary
bankruptcy that is not dismissed within 90 days of filing."
10
"25. ENTIRE AGREEMENT; NO ORAL MODIFICATIONS; NO WAIVER. This
Lease, as amended by a written amendment between the Lessee and Xxxxxx
dated February 5, 1999, along with the Exhibits attached to it, constitute
the entire agreement between the parties with respect to the subject matter
of it and supersedes all prior or contemporaneous offers, understandings or
agreements in regard to that subject matter. No modification or addition to
this Lease will be valid unless in writing, specifically referring to this
Lease and signed by all the parties to this Lease. No waiver of any rights
under this Lease will be valid unless in writing and signed by the party to
be charged with such waiver. No waiver of any term or condition contained
in this Lease will be deemed or construed as a further or continuing waiver
of that term or condition, unless the waiver specifically provides
otherwise."
4. PARTIAL AMENDMENT OF PARAGRAPHS 15 AND 22 OF THE LEASE. Paragraphs 15 and
22 of the Lease are amended in part as follows. The remainders of
Paragraphs 15 and 22 will remain in full force and effect.
"15. LOSS AND DAMAGE.
....
(b) Pay Lessor the following: (i) the sum of all unpaid rents and other
payments due under this Lease up to the date of loss; (ii) all future payments
attributable to the lost/destroyed portion of the Equipment due under this
Lease, discounted to their present value at a discount rate of 9% as of the date
of default; (iii) the residual value of the Equipment as of the date this Lease
was entered into, as estimated by an appraiser selected by Lessor and Lessee,
reduced to present value at a discount rate of 9% as of the date of the loss of
use of the Equipment. Upon Xxxxxx's receipt of payment as set forth above,
Lessor will transfer to Lessee title to the Equipment without any warranties
from Lessor. If insurance proceeds are used to fully comply with this
subparagraph, the balance for any such proceeds will go to Lessee to compensate
for loss of use of the Equipment for the remaining term of the Lease."
"22. REMEDIES. If Lessee is in default under this Lease 10 days after
receiving written notice from Lessor pursuant to Paragraph 21, Lessor will
have the right to exercise any one or more of the following remedies,
concurrently or separately, and without any election of remedies being
deemed to have been made:
(a) Lessor may enter upon Xxxxxx's premises during regular business hours
and without any court order or other process of law may repossess and
remove the Equipment without notice to Lessee. Lessee hereby waives any
trespass or right of action for damages incurred by reason of Xxxxxx's
peaceful entry or removal of the Equipment;
....
11
(c) Lessor may cancel or terminate this Lease and retain any and all prior
payments paid by Lessee, provided that Lessor apply those prior payments,
including Lessee's security deposit, to any amounts due under the Lease;
(d) Lessor may declare all sums due and to become due under this Lease to
be immediately due and payable, with all accelerated sums discounted at the
rate and in the manner set forth in Paragraph 22(f);
(e) Lessor may re-lease the Equipment, without further notice to Lessee, to
any third party on any commercially reasonable terms determined by Lessor,
or sell the Equipment to any party, including itself, at any private or
public sale conducted in accordance with Arizona law; or
(f) Lessor may sue for and recover from Lessee: (i) the sum of all unpaid
rents and other payments due under this Lease then accrued; (ii) all
accelerated future payments due under this Lease, less the security
deposit, discounted to their present value at a discount rate of 9% as of
the date of default; (iii) the residual value of the Equipment as of the
date this Lease was entered into, as estimated by and appraiser selected by
Lessor and Lessee, reduced to present value at a discount rate of 9% as of
the date of default; and (iv) less the net proceeds of disposition from,
including re-leasing, the Equipment."
5. CONSIDERATION. Lessee and Lessor are entering into the Lease simultaneously
with entering into this Amendment. Xxxxxx and Xxxxxx acknowledge the
consideration exchanged between them in the Lease is the same consideration
for this Amendment. The parties acknowledge the receipt and sufficiency of
the consideration for this Amendment.
6. AUTHORIZATION AND SIGNATURES. By signing below, each party represents that
this Amendment has been duly authorized and constitutes an agreement by
which it is bound.
Xxxxxx and Xxxxxx have executed this Amendment as of the date set forth in
the first paragraph of this Amendment.
LESSEE: LESSOR:
XXXXX INCORPORATED, CEE AND GEE FUNDING, INC.,
a Delaware corporation an Arizona corporation d/b/a
TLD Funding Group
By: /s/ Xxx X. Xxxxxxx, Xx. By: /s/ Xxxx X. Xxxxxxx
-------------------------------- ----------------------------------
Xxx X. Xxxxxxx, Xx., President Xxxx X. Xxxxxxx, President
12
CMP SOLUTIONS, INC.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx, President
13
TLD Funding Group
Division of Cee & Gee Funding, Inc.
(LESSOR)
XXXXX INCORPORATED AND
CMP SOLUTIONS, INC.
(LESSEE)
DATED: FEBRUARY 5, 1999
At the expiration of the initial term or any renewal term of the Lease
between Lessor and Lessee of even date herewith, as amended, Lessee will have a
non-assignable exclusive option to purchase not less than all of the Equipment
covered by the Lease for the greater of $336,768.55 or then current fair market
value of the Equipment, which will be determined by a qualified appraiser
acceptable to Lessor and Lessee not more than 60 days nor less than 30 days
prior to the expiration of the initial term or any renewal term of the Lease,
plus all applicable taxes.
Xxxxxx's right to exercise said option is conditioned upon (a) Lessee
having performed all of the terms and conditions of the Lease at the time and in
the manner required therein; (b) Lessor having received written notice of
Xxxxxx's election to exercise said option no less than 30 days prior to the date
upon which the term of the Lease expires; and (c) Lessee's payment to Lessor of
said purchase price, together with all taxes on or measured by such purchase
price, on or before the expiration of the initial term or any renewal term of
the Lease.
In the event Lessee does not exercise the above purchase option, and does
not renew the Lease in accordance with the Lease provisions, Xxxxxx will
surrender the Equipment in accordance with the Lease provisions. The defined
terms in the Lease, as amended by Xxxxxx and Xxxxxx on February 5, 1999 in
writing (the "Amendment") have the same meanings in this Addendum to the Lease.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS ADDENDUM TO THE LEASE AND THE
AMENDMENT AS OF THE DATE OF THE LEASE. EXCEPT AS MODIFIED SPECIFICALLY BY THIS
ADDENDUM, THE LEASE, AS AMENDED BY THE AMENDMENT, WILL REMAIN IN FULL FORCE AND
EFFECT.
DATED as of the date first written above.
LESSEE LESSOR
XXXXX INCORPORATED, CEE AND GEE FUNDING, INC.,
a Delaware corporation an Arizona corporation
d/b/a TLD FUNDING GROUP
By: /s/ Xxx X. Xxxxxxx, Xx. By: /s/ Xxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Xxx X. Xxxxxxx, Xx., President Xxxx X. Xxxxxxx, President
CMP SOLUTIONS, INC.,
an Arizona corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx, President
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