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Gateway Lease EXHIBIT 10(qqq)
Lease Agreement # 06274300 Dated: 06/27/2000
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COPELCO CAPITAL, INC.
Xxx Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxx, XX 00000 Phone 000-000-0000 Fax 000-000-0000
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Number of Monthly Payments 36 Monthly Payment* $2054.34 Security Deposit/ Purchase Option FMV
Advanced Rental $0.0
*Plus applicable taxes to
be billed
EQUIPMENT DESCRIPTION ("EQUIPMENT") REFER TO EQUIPMENT QUOTE #
06164019;06164033;06163916 FOR EQUIPMENT DESCRIPTION ONLY
Equipment Location if different from billing address:
DEAR CUSTOMER: This Lease Agreement (the "Lease") contains the terms of your
agreement with us. Please read it carefully and ask us any questions you may
have. The words, You, Your and Lessee mean you, our customer. The words we, us,
our and the lessor, mean Copelco Capital, Inc.
1. EQUIPMENT LEASED; TERM, RENT AND FEES: We agree to lease to you and you agree
to lease from us the equipment ("Equipment") identified above. You certify that
the Equipment will be used for a business purpose, and not for personal, family
or household purposes. This Lease shall commence on the date that any of the
Equipment is delivered to you ("Commencement Date"). The lease payments shall be
payable in arrears. Your first monthly payment shown above ("Monthly Payments")
is due in 30 days from the Commencement Date, and your remaining Monthly
Payments shall be due on the same day of each subsequent month until you have
paid all the Monthly Payments due under this Lease. You agree that this Lease is
a net lease which may not be terminated or cancelled; that you have an
unconditional obligation to make all payments due under the Lease according to
the terms set forth above, and that you cannot withhold, set-off or reduce such
payments for any reason. You authorize us to adjust the lease payment by not
more than 20% if the actual total cash price for the Equipment differs from the
estimated total cash price. You agree to pay us a documentation fee of $55.00
upon execution of this Lease.
2. PURCHASE ORDER: You authorize us to purchase the Equipment from Gateway
Companies, Inc. or one of its affiliates. You will arrange for the delivery of
the Equipment. When you receive the Equipment, you agree to inspect it to
determine if it is in good working order.
3. ASSIGNMENT: YOU MAY NOT SELL, PLEDGE, TRANSFER, ASSIGN OR SUBLEASE THE
EQUIPMENT OR THIS LEASE. We may sell, assign or transfer all or any part of this
lease and/or the Equipment without notifying you. The new owner will have the
same rights that we have, but not our obligations. You agree you will not assert
against the new owner any claims, defenses or set-offs that you may have against
the supplier.
4. NO WARRANTIES: We are leasing the Equipment to you "AS-IS". YOU ACKNOWLEDGE
THAT WE DO NOT MANUFACTURE THE EQUIPMENT, WE DO NOT REPRESENT THE MANUFACTURER
OR THE SUPPLIER, AND YOU HAVE SELECTED THE EQUIPMENT AND SUPPLIER BASED UPON
YOUR OWN JUDGMENT. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
We transfer to you for the term of this Lease any warranties made to us by the
manufacturer or supplier. You agree that you will not assert against us any
claim or defense that you have against the supplier.
5. EQUIPMENT LOCATION; USE AND REPAIR; RETURN: We are the owner of the
Equipment. You agree to keep the Equipment free from liens and encumbrances. You
will keep and use the Equipment only at the address set forth above. You may not
move the Equipment without our prior written consent. At your own cost, you will
keep the Equipment eligible for any manufacturer's certification, in compliance
with all applicable laws and in good condition, except for ordinary wear and
tear. You will not make any alterations, additions or replacements to the
Equipment without our prior written consent. All permitted alterations,
additions and replacements will become our property at no cost to us. We may
inspect the Equipment during normal business hours. Unless you purchase the
Equipment at the end of this Lease, you will immediately deliver the Equipment
to the party and location directed by us in as good condition as when you
received it, except for ordinary wear and tear. You will pay all shipping and
other expenses, and you will insure the Equipment for its full replacement value
during shipping.
6. TAXES: You agree to pay when due or reimburse us for all taxes, fines, and
penalties relating to the use or ownership of the Equipment or to this Lease,
now or hereafter imposed, or assessed by any state, federal or local government
or agency, including any taxes to be paid at the inception of this lease. We do
not have to contest any taxes, fines or penalties.
THIS LEASE MAY NOT BE CANCELED COPELCO CAPITAL, INC. (LESSOR)
ACCEPTANCE
(LESSEE) CERPROBE CORPORATION
By: Xxxx Xxxxx By:
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Authorized Signer
Print Name: XXXX XXXXX Title
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Title Director of Materials
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Street Address: 0000 X. XXXXXX XXXX Date:
XXXXXXX, XX 00000 --------------------------
FAX EXECUTION: A fax version of this Lease when received by us shall be binding
on you for all purposes as if originally signed.
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However, the Lease shall only become effective and binding against us when
originally signed by us in our corporate office. You agree that the only version
of the Lease that is the original for all purposes is the version containing
your fax signature and our original signature. If you elect to sign and transmit
a Lease by fax, you waive notice of our acceptance of this Lease and receipt of
a copy of the originally signed Lease.
PERSONAL GUARANTY
When we use the words you and your in this Guaranty, we mean the Guarantor(s)
indicated below. When we use the words we, us and our in this Guaranty, we mean
Copelco Capital, Inc. All other terms shall have the same meanings as used in
the Lease. You guaranty that the Lessee will make all payments and perform all
other obligations under the Lease until completed. Your obligations shall be
continuing, direct and unconditional. You waive notice of Lessee's default,
acceptance, demand and protest and you consent to any modifications to the
Lease. You shall not assign this Guaranty. This Guaranty shall be binding upon
your permitted successors and assigns and inure to the benefit or our successors
and assigns. If there is more than one Guarantor, your obligations are joint and
several. You authorize us or any of our affiliates to obtain credit bureau
reports regarding your credit and make other credit inquiries that we determine
are necessary. You will reimburse us for all expenses we incur in enforcing any
of our rights against you or the lessee/customer, including reasonable
attorney's fees and costs (both pre and post judgement). THIS GUARANTY IS
GOVERNED BY THE LAWS OF THE STATE OF NEW JERSEY. YOU CONSENT TO THE JURISDICTION
OF ANY COURT LOCATED WITHIN NEW JERSEY. YOU EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY.
Guarantor (Signature) X /s/ Xxxx Xxxxx Guarantor (Signature) X
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Do not include Title Do not include
Title
Print Name: Xxxx Xxxxx Print Name:
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Date 6/30/00 Date
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7. LOSS OR DAMAGE; INSURANCE: You are responsible for any loss, theft,
destruction or damage to, the Equipment (collectively "Loss") from any cause,
whether or not insured, until the Equipment is delivered to us at the end of
this Lease. You are required to make all lease payments even if there is a Loss.
You must notify us in writing immediately of any Loss. Then, at our option, you
will either (a) repair the Equipment so that it is in good condition and working
order, eligible for any manufacturer's certification, or (b) pay us the amounts
specified in Section 9 below. You agree to keep the Equipment insured for its
full replacement value against any type of Loss, and name us as loss payee until
the Lease is paid in full. You also agree to obtain a general liability
insurance policy, and include us as an additional insured on the policy. If you
do not give us evidence of insurance acceptable to us, we have the right, but
not the obligation, to obtain insurance covering our interest in the Equipment
from an insurer of our choice. We may add the costs of acquiring such insurance
("Insurance Charge") to the amounts due from you under this Lease. You will pay
the Insurance Charge to us upon demand.
8. LATE CHARGES; SECURITY DEPOSIT; SECURITY INTEREST: If any payment is not made
when due, you agree to pay a late charge at the rate of ten percent (10%) of
such late payment or up to $50.00, at lessor's discretion; and each month
thereafter, a finance charge of one and one-third percent (1.3%) on any unpaid
delinquent balance, but in no event greater than the maximum rate allowable
under applicable law. Any Security Deposit under this Lease will either be
returned to you or used to offset any unpaid charges at the end of the Lease
provided that you have met all obligations under the Lease. In the event this
transaction is deemed to create a security interest, you grant us a purchase
money security interest in the Equipment (including any replacements,
substitutions, additions, attachments and proceeds). You will deliver to us
signed financing statements or other documents we request to protect our
interest in the Equipment. You appoint us or our agent as attorney in fact to
execute, deliver and record financing statements on your behalf to perfect our
interest in the Equipment.
9. DEFAULT; REMEDIES: Each of the following is a "Default" under this Lease: (a)
you fail to pay any lease payment or any other payment when due, (b) you fail to
perform any of your other obligations under this Lease or in any other agreement
with us or with any of our affiliates, and this failure continues for 10 days
after we have notified you of it, (c) you become insolvent, you dissolve or are
dissolved, you fail to pay your debts as they mature, you assign your assets for
the benefit of your creditors, or you enter (voluntarily or involuntarily) any
bankruptcy or reorganization proceeding, or (d) any guarantor of this Lease
dies, does not perform its obligations under the guaranty, or becomes subject to
one of the events listed above. If a Default occurs, we may do one or more of
the following: (a) cancel or terminate this Lease or any or all other agreements
that we have entered into with you; (b) require you to immediately pay us, as
compensation for loss of our bargain and not as a penalty, a sum equal to (i)
all amounts then due under this Lease plus, (ii) all unpaid lease payments for
the remainder of the term plus our anticipated residual interest in the
Equipment each discounted to present value at the rate of 6% per annum; (c)
deliver the Equipment to us as set forth in Section 5; (d) peacefully repossess
the Equipment without court order and you will not make any claims against us
for damages or trespass or any other reason; and (e) exercise any other right or
remedy available at law or in equity. You agree to pay all of our costs of
enforcing our rights against you, including reasonable attorneys' fees and costs
(pre and post judgements). If we take possession of the Equipment, we may sell
or otherwise dispose of it with or without notice, at a public or private sale,
and apply the net proceeds (after we have deducted all costs related to the sale
or disposition of the Equipment) to the amounts that you owe us. You agree that
if notice of sale is required by law to be given, 10 days notice shall
constitute reasonable notice. You will remain responsible for any amounts that
are due after we have applied such net proceeds. All our remedies are
cumulative, are in addition to any other remedies provided for by law and may be
exercised either concurrently or separately. Any failure or delay by us to
exercise any right shall not operate as a waiver of any right, other or future
rights or to modify the terms of this Lease.
10. FINANCE LEASE STATUS: You agree that if Article 2A - Leases of the Uniform
Commercial Code applies to this Lease, this Lease will be considered a "finance
lease" as that term is defined in Article 2A. By signing this Lease, you agree
that either (a) you have reviewed, approved and received a copy of the purchase
agreement/order or (b) that we have informed you of the identity of the
supplier, that you may have rights under the purchase agreement/order, and that
you may contact the supplier for a description of those rights. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, YOU WAIVE ANY AND ALL RIGHTS AND REMEDIES CONFERRED
UPON A LESSEE BY ARTICLE 2A.
11. PURCHASE OPTION; AUTOMATIC RENEWAL: If no Default exists under this Lease,
you may have the option at the end of the original or any renewal term to
purchase all (but not less than all) of the Equipment at the purchase option
above, plus any applicable taxes. Unless the purchase option price is $1.00, you
must give us at least 90 days written notice before the end of the original term
or renewal term that you will purchase the Equipment or that you will return the
Equipment to us. If you do not give us such written notice or if you do not
purchase or deliver the Equipment to us in accordance with the terms of this
Lease, this Lease will automatically renew for successive one month terms until
you deliver the Equipment to us. During such renewal term(s) the lease payment
will remain the same. We may cancel an automatic renewal term by sending you
written notice 10 days prior to such renewal term. If the Fair Market Value
Purchase Option has been selected, we will use our reasonable judgment to
determine the Equipment's fair market value. If you do not agree with our
determination of the Equipment's fair market value, the fair market value will
be determined at your expense by an independent appraiser
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selected by us. Upon payment of the purchase option price, we shall transfer our
interest in the Equipment to you "AS IS, WHERE IS" without any representation or
warranty whatsoever, and this Lease will terminate.
12. INDEMNIFICATION: You are responsible for and agree to indemnify and hold us
harmless from any (a) losses, damages, penalties, claims, suits and actions
(collectively "Claims") caused by or related to the manufacture, installation,
ownership, use, lease, possession, or delivery of the Equipment or any defects
in the Equipment and (b) as costs and attorney's fees incurred by us relating to
any Claim. You agree to reimburse us for and if we request to defend us, at your
own cost and expense against any Claims. You agree that your obligations under
this Section 12 shall survive the termination of this Lease.
13. SOFTWARE: The Equipment may include certain software ("Software") which we
do not own. Where required by the Software owner, you agree to execute a
separate license agreement with the owner for the use of the Software ("License
Agreement"). The License Agreement shall be separate and distinct from this
Lease, and we are not a party to such agreement and do not have any obligations
under the License Agreement. Except as expressly modified by this Section 13,
all the terms and conditions of this Lease shall apply to the Software
including, without limitation, Section 4. Upon expiration or earlier termination
of this Lease, we have no obligation to return the Software and/or any data
stored therein to you or any other party.
14. MISCELLANEOUS: (a) Choice of Law. THIS LEASE SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW JERSEY (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF
SUCH STATE). (b) Jurisdiction. You consent to the jurisdiction of any local,
state or federal court located within the State of New Jersey. (c) Jury Trial.
YOU EXPRESSLY WAIVE TRIAL BY JURY AS TO ALL ISSUES ARISING OUT OF OR RELATED TO
THIS LEASE. (d) Entire Agreement. The Lease constitutes the entire agreement
between you and us and supercedes all prior agreements. (e) Enforceability. If
any provision of this Lease is unenforceable, illegal or invalid, the remaining
provisions shall continue to be effective. (f) Amendment. This Lease may not be
modified or amended except by a writing signed by you and us. You agree however,
that we are authorized, without notice to you, to supply missing information or
correct obvious errors in the Lease. (g) Notice. All notices shall be in writing
and shall be delivered to the appropriate party personally, by private courier,
by facsimile transmission or by mail, postage prepaid, at its address shown
herein or to such other address as directed in writing by such party. (h) Usury.
It is the express intent of both of us not to violate any applicable usury laws
or to exceed the maximum amount of interest permitted to be charged or collected
by applicable law, and any excess payment will be applied to the lease payments
in inverse order of maturity, and any remaining excess will be refunded to you.
