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EXHIBIT 10.22
LEASE AGREEMENT
ORDER NO. _______
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WorkingCAPITAL LESSEE
Screaming Xxxxx.xxx, Inc
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Technologies of America STREET
0000 Xxxxxx Xxxxxx - Xxxxx 000 - Xxxxxxx Xxxxx, XX 00000 000 Xxxx 00xx Xxxxxx
Telephone 714/000-0000 - Facsimile 714/436-6554 -------------------------------------------------
XXXX XXXXX XXXXXX XXX
Xxx Xxxx XX 00000
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NAME AND TITLE
Xxx Xxxxxx, Director of Financial Operations
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0.XXXXX: Subject to the following terms and conditions, Working Capital
Technologies of America ("Lessor") hereby agrees to lease to Lessee the
Hardware, Software and other Equipment ("Property") described on the Lease
Schedule(s) ("Schedule(s)") referencing this Lease Agreement ("Agreement"), and
Lessee agrees to lease the Property from the Lessor. Each Schedule that the
parties may from time to time enter into with respect to this Agreement
incorporates the terms of the Agreement and constitutes a separate lease
agreement and is referred to herein as the "Lease".
2. UNIFORM COMMERCIAL CODE ACKNOWLEDGMENT: Lessee acknowledges that it has
received and approved any written "Supply Contract" covering the Property
purchased from the Supplier for lease and Lessor has informed or advised Lessee,
either previously or by this Lease, of the following: (i) the identity of the
Supplier; (ii) that Lessee may have rights under the Supply Contract; (iii) that
Lessee may contact the Supplier for a description of any such rights. This Lease
is a "Finance Lease". (The terms "Finance Lease", "Supply Contract" and
"Supplier" as used in this Lease have the meanings only as ascribed to them
under Division 10 of the California Uniform Commercial Code and have no effect
on any tax or accounting treatment). This provision survives termination of the
Lease.
3. TERM: This Lease, with respect to any Schedule, shall become effective upon
acceptance by Lessor and the term for any Schedule(s) shall commence on the day
Lessee certifies that the Property has been delivered to and is usable by Lessee
("Commencement Date"). Lessee agrees that its remedies, should it find fault
with any of the Property, shall be and are solely against the
manufacturer/vendor/licensor ("Supplier") and not against Lessor. This Lease
shall give Lessee the right to use the Property at the location(s) delineated on
the Schedule(s). The initial base term of the Lease shall be as indicated on the
respective Schedule(s) and shall be calculated from the first day of the
calendar quarter following the Commencement Date ("Base Lease Term"). A calendar
quarter means a three-month period commencing on January 1, April 1, July 1, and
October 1 of any calendar year. The Base Lease Term shall be extended for an
additional one-year period (the "extended Base Lease Term") at the rate
delineated on the respective Schedule(s) unless Lessee provides to Lessor
written notice of Lessee's election not to extend the Base Lease Term at least
one hundred eighty (180) days prior to the expiration of the initial Base Lease
Term. Notwithstanding the provisions of Section 20 below, such written notice
may be delivered to Lessor by hand or by certified mail and shall not be
effective unless it is actually received by Lessor at least one hundred (180)
days prior to the expiration of the initial Base Lease Term. At the expiration
of the initial Base Lease Term (or, if extended, at the expiration of the
extended Base Lease Term), Lessee shall do one of the following: (i) purchase
all, but not less than all, of the Property for its then Fair Market Value
("FMV"), plus applicable sales tax; (ii) promptly return all, but not less than
all, of the Property and lease replacement property from Lessor which has a cost
equal or to greater than the original cost of the Property; or (iii) extend the
Schedule for a period of one additional year at the rental rate delineated on
the respective Schedule. With respect to Option (i), FMV is the price a willing
buyer (who is neither a used property dealer or reseller) would pay for the
Property
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THIS LEASE AGREEMENT AND THE APPLICABLE SCHEDULE(S) CONTAIN THE ENTIRE AGREEMENT
BETWEEN LESSOR AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE LEASE
CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A PERSON
AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED SIGNER OF
LESSOR. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR PROMISES SHALL
BE RELIED UPON BY, OR BE BINDING ON, THE PARTIES UNLESS MADE A PART OF THIS
LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF LESSEE AND
LESSOR.
LESSEE /s/ Xxx Xxxxxx LESSOR /s/ Xxxxxxx X. XxXxxxxxx
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Authorized Signature Authorized Signature
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OFFER ACCEPTANCE
This Lease is subject to approval and acceptance by the Working Capital ACCEPTANCE
Technologies of America Finance Committee. By signing below, the signer
certifies that he has read Agreement, INCLUDING PAGES 2 THROUGH 4, WORKING CAPITAL
and that he is authorized to sign this Lease on behalf of Lessee. Until this TECHNOLOGIES OF AMERICA
Lease has been signed by an authorized signer of Lessor, it
shall constitute a firm offer by Lessee.
OFFER
LESSEE : Screaming Xxxxx.xxx Inc.
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By : /s/ Xxx Xxxxxx By : /s/ Xxxxxxx XxXxxxxxx
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Name/Title : Xxx Xxxxxx Director of Financial Operations Name/Title : Senior Vice President
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Date : 2/17/00 Date : 3/08/00
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in an arm's length transaction to a willing seller under no compulsion to sell.
Such FMV shall be determined on the basis that: (a) the Property is assumed to
be in the condition in which it is to be maintained under the Lease and is in
complete compliance with all other terms of the Lease; (b) the Property is
assumed to be installed and/or in full service and is valued on an installed
basis; and (c) the cost of removal of the Property from its present location is
not deducted from the valuation. If Lessee elects to purchase the Property and
the parties are not able to agree on FMV at least 60 days prior to the
expiration of the applicable term, Lessor shall appoint an independent appraiser
(reasonably acceptable to Lessee) who shall determine FMV, and the parties
acknowledge and agree that such determination shall be final, binding and
conclusive with respect to the parties' agreed upon purchase price. Lessee shall
be responsible for the cost of the appraisal. With respect to Option (ii),
Lessee and Lessor shall each have absolute discretion regarding their agreement
or lack of agreement to the terms of a lease for replacement property. If Lessee
has not elected Option (i) or (ii) by the end of the initial Base Lease Term or,
if extended, the extended Base Lease Term, then Option (iii) shall prevail.
Thereafter, this Lease will continue subject to termination by either Lessee or
Lessor at the end of any month, provided at least ninety days' prior notice is
delivered to the other party. Each Schedule shall be deemed to incorporate
therein these specific terms and conditions and shall have an independent
initial Base Lease Term and extension period(s).
4. RENT: The monthly rent payable with respect to any Schedule(s) shall be the
amount shown with respect to such Schedule(s). Lessee shall pay to the Lessor
the monthly rent for each Schedule, in advance, for each month or any part
thereof that this Lease, with respect to said Schedule(s), is in effect. The
first such payment shall be made on the first day of the calendar quarter
following the Commencement Date. A prorata portion of the monthly rental charges
based on a daily rental of one-thirtieth (1/30th) of the monthly rental
calculated from the Commencement Date to the end of the calendar quarter, shall
be due and payable at the Commencement Date. If rent or any other amount is not
paid within ten days of its due date, Lessee agrees to pay a late charge equal
to five percent (5%) of the unpaid amount. Each month thereafter, past due
amounts remaining unpaid hereunder shall bear interest at the lesser of one and
one-half percent (1 1/2%) per month, compounded monthly or the maximum rate
allowed by law. All rent shall be paid at the place of business if Lessor shown
above or such other place as Lessor may designate by written notice to Lessee.
Except as otherwise provided in this Lease, Lessee's obligation to pay rent
shall be absolute and unconditional under all circumstances, notwithstanding:
(i) any setoff, counterclaim, recoupment, defense or other right which Lessee
may have against Lessor for any reason whatsoever; or (ii) any defect in the
title, right to use, condition, operation, fitness for use, damage or
destruction of or to the Property or any interruptions or cessations in use or
possession thereof for any reason whatsoever. Lessee hereby waives, to the
extent permitted by law, the following rights and remedies which may be
conferred upon Lessee by law: (a) the right to cancel or terminate this Lease
except in accordance with the express terms hereof, (b) right to revoke
acceptance of the Property, (c) right to recover damages from Lessor for any
breach of warranty and (d) right to recover any consequential damages
whatsoever.
5. ADDITIONS AND MODIFICATIONS: All additions and modifications to the Property
become an integral part of the Property and are owned by Lessor. Software, as
described on any Schedule(s), includes all updates, revisions, upgrades, new
versions, enhancements, modifications, derivative works, maintenance fixes,
translations, adaptations, and copies of the foregoing or of the original
version of the Software whether obtained from the Supplier, or from any source
whatsoever, and references in this Lease to Software will be interpreted as
references to any and all of the foregoing. All additions and modifications to
the Property must be free and clear of any liens or rights of other parties.
6. NO WARRANTIES: Lessor not being the Supplier, manufacturer, developer,
publisher, distributor, or licensor of the Property, MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, NOR SHALL IT BE DEEMED TO HAVE MADE ANY
SUCH WARRANTIES OR REPRESENTATIONS AS TO THE MERCHANTABILITY, COMPATIBILITY,
FITNESS, DESIGN, CONDITIONS, QUALITY OR CAPACITY OF THE LEASED PROPERTY, OR ANY
OTHER REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PROPERTY. LESSEE
REPRESENTS THAT ALL OF THE PROPERTY ARE OF A SIZE, DESIGN, AND CAPACITY SELECTED
BY IT, AND THAT IT IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES.
Lessor assigns to Lessee during the term of the Lease any warranty rights it may
have received from the Supplier as a result of Lessor's purchase of the
Property. If Lessee has any claims regarding the Property or any other matter
arising from Lessee's relationship with the Supplier, Lessee must make them
against the Supplier. This provision survives termination of the Lease.
7. MAINTENANCE: Lessee at its own expense, will provide a suitable place for the
operation of the Property, and keep in force for the term of the Lease the best
standard Supplier's maintenance agreement(s) which will cause the Supplier(s) to
make all the necessary repairs, adjustments, and replacements in accordance with
such maintenance agreement(s) and entitle Lessee (through Lessor, if necessary)
to obtain available enhancements, updates, upgrades and changes.
8. RISK OF LOSS: During the period the Property is in transit, is in the
possession of Lessee, and until the Property is returned to Lessor, Lessee shall
assume all responsibility for loss or damage and shall hold Lessor harmless
against the same. In the event that, during the term of the Lease or until the
Property shall have been returned, if any of the Property shall be confiscated,
taken, requisitioned, lost, stolen, destroyed or irreparably damaged for any
cause whatsoever (such occurrences being hereinafter called "Casualty
Occurrences"), Lessee shall immediately and fully inform Lessor. In the case of
Software, the erasure, inoperability or other incapacity of the Software
triggered by a preprogrammed termination or limiting design or routine embedded
in the Software shall also be deemed a "Casualty Occurrence". Following a
Casualty Occurrence, on the next succeeding rent payment date, Lessee shall pay
to Lessor, in addition to all past due rentals and other amounts then late and
outstanding, an amount equal to the Casualty Value as determined by the attached
Casualty Schedule as of the date of the Casualty Occurrence. Upon the making of
such payment by Lessee, the rental for such Schedule(s) shall cease to accrue as
of the date of such payment and the term of the Lease as to such Schedule(s)
shall terminate, Insurance proceeds received by Lessor as the result of a
Casualty Occurrence with respect to any Schedule(s) shall be applied in
reduction of Lessee's obligation to pay the Casualty Value. The Casualty Value
as of any rent payment date (or as of any other date on which Casualty Value is
payable shall be an amount equal to that percentage of the Purchase Price or
License Fee as is set forth in the Casualty Schedule attached hereto, opposite
the number of such rent payment date or such other date. The Purchase Price or
License Fee of any Property shall be the
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total cost paid by Lessor with respect to the Property.
9. INDEMNIFICATIONS AND INSURANCE: Lessee assumes liability for, and agrees at
its own expense to indemnify and defend Lessor, its employees, officers,
directors and assigns, from and against any and all claims, liabilities, losses,
damages, and expenses (including legal expenses) of every kind or nature
(including, without limitation, claims based upon strict liability) arising out
of the use, condition (including latent and other defects, whether or not
discoverable by Lessee or Lessor), operation or ownership of any items of
Property (including, without limitation, any claim for patent, trademark or
copyright infringement) or for any interruptions of service, loss of business,
or consequential damages. These indemnities and assumptions survive termination
of this Lease. Lessee, at its expense, shall procure and maintain in full force
and effect such public liability (including, without limitation, contractual
liability insurance), property damage liability, fire with extended coverage,
theft, and other insurance in such form and amounts and with such companies as
shall be satisfactory to Lessor. Lessor shall be named as an additional insured
and loss payee on all policies which shall provide that no cancellation thereof
shall be effective without thirty (30) days' prior written notice to Lessor and
shall not be invalidated as to Lessor by any act, omission or neglect of Lessee.
10. TAXES: Lessee shall pay directly, all License fees, registration fees,
assessments and taxes which may now or hereafter be imposed upon the ownership,
sale (if authorized), possession or use of the Property, excepting only those
based on Lessor's income, and shall keep the Property free and clear of all
levies, liens or encumbrances arising therefrom. While Lessee is responsible for
payment of all personal property taxes, Lessor will file all personal property
tax returns. Lessor shall not be responsible for contesting any valuation of or
tax imposed on the Property, but may do so strictly as an accommodation to
Lessee and shall not be liable or accountable to Lessee therefor.
11. OWNERSHIP: Lessor at all times retains ownership, title and/or control over
Lessee's right to use the Property in accordance with the terms of the Lease. To
the extent Software subject to this Lease may also be the subject of a license
agreement between the Supplier and Lessee, Lessee acknowledges that the License
to use the Software is being provided to Lessee solely because of payments made
by Lessor to the Supplier and, accordingly, Lessee agrees that Lessor has an
interest in the license. Lessee agrees that if it or any of its affiliates
receives anything of value from the Supplier (including without limitation, a
trade-in, substitution, discount or upgrade allowance) other than Lessee's
rights to use the Software reflected on the Schedule for the term of this Lease,
Lessee will advise Lessor and pay to Lessor an amount equal to such additional
value obtained by Lessee. Lessee agrees that it will not surrender, transfer or
modify the license agreement without first obtaining the written consent of
Lessor. Lessee will at all times protect and defend, at its own cost and
expense, the title and/or License rights of Lessor from and against all claims,
liens and legal processes and keep all Property free and clear from all such
claims, liens and processes. The Property is and shall remain personal property
of Lessor.
12. EFFECTS OF TERMINATION OR EXPIRATION OF LEASE TERM: In the event Lessee
elects to return the Property to Lessor in accordance with the express terms of
the Lease, Lessee will discontinue its use of the Property, pay to Lessor an
inspection, refurbishment and restocking fee equal to five percent (5%) of the
Lessor's original cost of the Property, and immediately, at its own expense,
ship the Property, with all manuals, cables, cartons and packing materials as
originally furnished by Supplier, to a location within the United States in
accordance with the Property return instructions provided by Lessor. In the case
of Software, Lessee will destroy all intangible Software items, and deliver to
Lessor all tangible items constituting Software. At Lessor's request, Lessee
will also certify in a written form acceptable to Lessor that: (i) all the
tangible Software has been delivered to Lessor; (ii) all intangible records have
been destroyed; (iii) Lessee has not retained the Software in any form; (iv)
Lessee will not use the Software after termination and (v) Lessee has not
received from Supplier(s) anything of value relating to or in exchange for
Lessee's use, rental or possession of the Software during the term of the Lease
(including a trade-in, substitution or upgrade allowance). Until Lessee has
complied with all of the requirements of this Section, rent payment obligations
will continue from month to month at the rental rate delineated on the Schedule.
TERMINATION OF ANY LEASE TERM (OR TERMINATION OF THE LICENSE SHALL NOT ABSOLVE
USER FROM PAYMENT OF ACCRUED PERIODIC PAYMENTS OR FROM COMPLIANCE WITH THE USE
AND DISCLOSURE RESTRICTIONS OF THIS AGREEMENT, OR FROM ITS OBLIGATIONS TO
INDEMNIFY LESSOR.
13. PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR: If Lessee fails duly and
promptly to perform any of its obligations under this Lease, Lessor may, at its
option, immediately or at any time thereafter perform the same for the account
of Lessee without thereby waiving Lessee's default, and any amount paid, expense
(including reasonable attorney's fees), penalty or other liability incurred by
Lessor in such performance shall be payable by Lessee to Lessor upon demand,
with interest thereon at the rate set forth in Paragraph 3, above.
14. INSPECTION: In addition to its rights of entry and inspection stated
elsewhere in this Lease, Lessor may from time to time during reasonable business
hours enter upon any premises where any of the Property may be located for the
purpose of confirming the existence, condition, and proper maintenance of the
Property.
15. DEFAULT: An Event of Default shall occur if: (a) Lessee fails to pay within
ten (10) days after the due date, any installment of rent; (b) Lessee fails to
perform or observe any covenant, condition, or obligation to be performed or
observed by it under this Lease and such failure continues uncured for fifteen
(15) days after written notice thereof to Lessee by Lessor; (c) Lessee makes an
assignment for the benefit of its creditors, files any petition or takes any
action under any bankruptcy, reorganization or insolvency laws; (d) an
involuntary petition is filed under any bankruptcy statute against Lessee or any
receiver, trustee or custodian is appointed to take possession of Lessee's
properties, unless such petition or appointment is set aside or withdrawn within
sixty days of said filing or appointment; (e) Lessee attempts to or does remove,
transfer, sell, sublicense, encumber, part with possession, or sublet any of the
Property; (f) Lessee attempts to assign or transfer this Lease or its interest
under the Lease or moves the Property from the location(s) set forth on the
Schedule without Lessor's prior written consent; or (g) Lessee undergoes a sale,
buyout, change in control, or change in ownership of any type, form or manner
which, as judged solely by Lessor, results in a material deterioration in
Lessee's credit worthiness.
16. REMEDIES: If an Event of Default shall occur and be continuing, Lessor may
exercise at its sole option, but not specifically limited thereto, any one or
more of the following remedies: (a) terminate this Lease and Lessee's rights
hereunder, (b) proceed, by
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appropriate court action or actions either at law or in equity, to enforce
performance by Lessee of the applicable covenants of this Lease or to recover
damages for the breach thereof, (c) by notice in writing to Lessee, recover all
amounts due on or before the date Lessor declared this Lease to be in default,
plus, as liquidated damages for loss of a bargain and not as a penalty,
accelerate, and declare to be immediately due and payable, all rentals and other
sums payable hereunder, without any presentment, demand, protest or further
notice (all of which hereby are expressly waived by Lessee), whereupon the same
shall be and become immediately due and payable, and (d) take immediate
possession of the Property, or any part thereof, from Lessee free from all
claims by Lessee. In the case of Software, it is acknowledged and agreed that
the unauthorized use, disclosure, or transfer of the Software could cause Lessor
incalculable, irreparable, and serious harm. Therefore, if Lessee is found to be
using (in whatever manner) any portion of the Software after the applicable
Lease Term or if Licensor terminates a License or Lessee's right to use the
Software thereunder for an alleged breach of the License's use, disclosure, or
transfer restrictions, then liquidated damages shall be payable immediately to
Lessor in an amount equal to two (2) times the amount paid by Lessor with
respect to the Software. The exercise of any of the foregoing remedies by Lessor
shall not constitute a termination of this Lease unless Lessor so notifies
Lessee in writing. In the event Lessor repossesses the Hardware, Lessor may (A)
lease the Hardware or any portion thereof, in such a manner, for such time and
upon such terms as Lessor may determine, or (B) sell the Hardware or any portion
thereof, at one or more public or private sales, in such manner, and at such
times and upon such terms as Lessor may determine. In the event that Lessor
leases the Hardware, any rentals received by Lessor for the remaining lease term
(the period ending on the date when the initial Base Lease Term for the Hardware
would have expired) shall be applied to the payment of: (i) all costs and
expenses (including reasonable attorney's fees) incurred by Lessor in retaking
possession of, and removing, storing, repairing, refurbishing and leasing such
Hardware, and (ii) the rentals for the remainder of the initial term and all
other sums then remaining unpaid under this lease. The remaining balance of such
rentals, if any, shall be applied to reimburse Lessee for any sums previously
paid by Lessee as liquidated damages. All rentals received by Lessor for the
period commencing after the remaining Initial Base Lease Term shall be retained
by Lessor. Lessee shall remain liable to Lessor to the extent that the aggregate
amount of the sums referred to in clauses (i) and (ii) above shall exceed the
aggregate rentals received by Lessor under such leases for the respective
remaining lease term applicable to the Hardware covered by such leases. In the
event that Lessor shall sell or otherwise dispose of (other than pursuant to a
lease) the Hardware, the proceeds thereof shall be applied to the sum of (1) all
costs and expenses (including reasonable attorney's fees) incurred by Lessor in
retaking possession of, and removing, storing, repairing, refurbishing and
selling or otherwise disposing of such Hardware, (2) the rentals accrued under
this Lease, but unpaid up to the time of such sale or other disposition, (3) any
and all other sums (other than rentals) then owing to Lessor by Lessee
hereunder, and (4) the Casualty Value of such Hardware determined as of the date
of such sale or other disposition in accordance with the Casualty Schedule,
attached hereto. The remaining balance of such proceeds, if any, shall be
applied first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages, and any remaining amounts shall be retained by Lessor.
Lessee shall remain liable to Lessor to the extent that the aggregate amount of
the sums referred to in clauses (1) through (4) above shall exceed the aggregate
proceeds received by Lessor in connection with the sale or disposition of the
Property. Lessor's remedies, as discussed in this Agreement, including but not
limited to remedies discussed in this paragraph shall not be deemed exclusive.
Waiver of any defaults or breach of this Lease shall not be construed as a
waiver of subsequent or continuing defaults or breaches.
17 ATTORNEY'S FEES AND VENUE OF LITIGATION: THE PARTIES AGREE THAT ALL
DISPUTES, WHETHER BASED IN TORT OR CONTRACT, RELATING TO OR ARISING OUT OF THIS
LEASE WILL BE SUBMITTED TO THE ORANGE COUNTY, CALIFORNIA OFFICE OF ENDISPUTE,
INC., DBA J-A-M-S/ENDISPUTE ("JAMS") FOR A TRIAL OF ALL ISSUES OF LAW AND FACT
CONDUCTED BY A RETIRED JUDGE OR JUSTICE FROM THE PANEL OF JAMS, APPOINTED
PURSUANT TO A GENERAL REFERENCE UNDER CALIFORNIA CODE OR CIVIL PROCEDURE SECTION
838(1) OR ANY AMENDMENT, ADDITION OR SUCCESSOR SECTION THERETO) UNLESS LESSOR OR
ITS ASSIGNEE SELECTS AN ALTERNATIVE FORUM. IF THE PARTIES ARE UNABLE TO AGREE ON
A MEMBER OF THE JAMS PANEL, THEN ONE SHALL BE APPOINTED BY THE PRESIDING JUDGE
OF THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF ORANGE, IN THE EVENT THAT
JAMS IN THE COUNTY OF ORANGE CEASES TO EXIST, THEN THE PARTIES AGREE THAT ALL
DISPUTES ARISING UNDER THIS LEASE FOR ANY BREACH WILL BE FILED AND CONDUCTED IN
THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF ORANGE, UNLESS LESSOR OR ITS
ASSIGNEE SELECTS AN ALTERNATIVE FORUM, LESSEE AGREES TO SUBMIT TO THE PERSONAL
JURISDICTION OF THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF ORANGE. LESSEE
AND LESSOR WAIVE THEIR RIGHTS TO A JUST TRIAL IN ANY ACTION ARISING OUT OF OR
RELATING TO THIS LEASE. If any party to this Lease brings any action to enforce
any of the terms, or to recover for any breach, then the prevailing party is
entitled to recover reasonable attorneys' fees, and cost, including all
JAMS-related costs and costs of collection, from the other party.
18 TRANSPORTATION; INSTALLATION/DEINSTALLATION: All transportation, rigging
and damage charges on delivery or redelivery of the Property to and from Lessee
shall be paid by Lessee. All installation and deinstallation charges including
packing materials and any fees and charges for maintenance certification or
recertification by the Manufacturer/Supplier/Licensor shall be paid by Lesser.
19 OFFER AND ACCEPTANCE; FURTHER ASSURANCES; LESSEE'S FINANCIAL INFORMATION:
Lessee's signing of this, Lease shall constitute a firm offer. In consideration
of Lessor's time and effort in reviewing and acting on the offer, Lessee agrees
that its offer shall be Irrevocable for a period of twenty (20) business days
after the date it is submitted to Lessor. Lessor's signing of this Lease shall
constitute acceptance of Lessor's offer to enter into the Lease. Upon acceptance
by Lessor, Lessee shall execute and deliver such instruments and assurances as
Lessor deems necessary for confirmation, assignment and assurance of performance
by Lessee of its obligation hereunder or for perfection of this Lease, including
but not limited to the filing of Uniform Commercial Code Financing Statements
(which Lessee agrees may be executed by Lessor on Lessee's behalf. Lessee
further authorizes Lessor to insert in each Lease Schedule and in other
appropriate documentation the serial number(s) and other identifying data of the
Property, and to insert applicable lease dates and assignment dates as necessary
to complete such supplemental documentation. Prior to Lessor's acceptance of the
Lease and throughout the term of the Lease, Lessee shall provide Lessor with all
credit information reasonably requested by Lessor, including but not limited to
comparative audited financial statements for the most current annual and interim
reporting period.
20 NOTICES: All notices to Lessor must be in writing and sent certified mail
return receipt requested to the address above or such other address as to which
Lessee has been notified in writing.
21 AGREEMENTS: All agreements, representations, and warranties contained in
this Lease, or in any document or certificate delivered pursuant hereto or in
connection herewith, shall survive the expiration or other termination of this
Lease. Any provision of this Lease which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability. In any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, Lessee hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any respect. THIS
LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF CALIFORNIA. Time is of the essence of this Lease.
22 ASSIGNMENT: WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT
ASSIGN THIS LEASE OR ITS INTEREST HEREUNDER IN ANY FORM OR MANNER INCLUDING, BUT
NOT LIMITED TO, AN ASSIGNMENT DUE TO A SALE, MERGER, LIQUIDATION, SUB-LEASE,
LEVERAGED BUYOUT, CHANGE OF OWNERSHIP OR CHANGE-IN-CONTROL, LESSOR MAY ASSIGN
ANY OF ITS RIGHTS IN THE LEASE AND/OR THE PROPERTY TO AN ASSIGNEE ("ASSIGNEE").
LESSEE HEREBY CONSENTS TO SUCH ASSIGNMENT AS SHALL BE DESIGNATED BY WRITTEN
NOTICE GIVEN TO LESSEE AND FURTHER AGREES AS FOLLOWS: (1) THAT ASSIGNEE DOES NOT
ASSUME ANY OF THE OBLIGATIONS OF LESSOR HEREUNDER; (2) TO PAY ALL ASSIGNED
AMOUNTS DUE UNDER THE LEASE DIRECTLY TO ASSIGNEE UNCONDITIONALLY WITHOUT OFFSET
AND LESSEE FURTHER AGREES THAT SUCH MONIES SHALL BE PAYABLE NOTWITHSTANDING ANY
DEFENSE OR COUNTERCLAIM WHATSOEVER, WHETHER BY REASON OF BREACH OF THE LEASE,
THE EXERCISE OF ANY RIGHT HEREUNDER, OR OTHERWISE, WHICH IT MAY OR MIGHT NOW OR
HEREAFTER HAVE AS AGAINST LESSOR (LESSEE RESERVING ITS RIGHT TO ASSERT ANY SUCH
DEFENSE OR COUNTERCLAIM DIRECTLY AGAINST LESSOR) AND (3) THAT SUBJECT TO AND
WITHOUT IMPAIRMENT OF LESSEE'S LEASEHOLD RIGHTS IN AND TO THE PROPERTY, LESSEE
SHALL HOLD POSSESSION OF THE PROPERTY FOR ASSIGNEE TO THE EXTENT OF ASSIGNEE'S
RIGHTS THEREIN.
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ADDENDUM "1"
WITH RESPECT TO
LEASE AGREEMENT ORDER NO. RA-00787
This Addendum is supplemental to and made a part of Lease Agreement Order No.
RA-00787 dated 03/08/00 (the "Agreement") and other related documents under the
Agreement. The parties to the Agreement include Screaming Xxxxx.xxx Inc.
("Lessee") and Working Capital Technologies of America ("Lessor").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in the Agreement, unless specifically modified. This Addendum
is to be construed as supplemental to, and part of, the Agreement.
It is hereby agreed and acknowledged that any reference (on any of the
documents relating to the above referenced Agreement) to the Lessee as
"Screaming Xxxxx.xxx, Inc." or any other name other than the exact
current legal name, shall hereinafter refer to the actual Lessee as
"Screaming Xxxxx.xxx Inc."
In all other respects, the terms and conditions of the Agreement, as originally
written, shall remain in full force and effect. The Agreement, as amended
herein, sets forth the entire and final understanding between the parties with
respect hereto. The terms of this Addendum have been negotiated and jointly
drafted by Lessor and Lessee and, therefore, the language of the Addendum shall
not be construed in favor or against other party. The undersigned represent that
they have the authority to enter into the Agreement, and that the same shall be
legally binding and enforceable on the respective principals.
IN WITNESS WHEREOF the parties hereto, by their authorized signatories, have
executed this Addendum at the date set forth below their respective signatures.
LESSEE: Screaming Xxxxx.xxx Inc. Working Capital Technologies of
------------------------------ America
--------------------------------
BY: /s/ Xxx Xxxxxx BY: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------ --------------------------------
NAME: Xxx Xxxxxx NAME: Xxxxxxx X. XxXxxxxxx
------------------------------ --------------------------------
TITLE: Director Financial Operations TITLE: Senior Vice President
------------------------------ --------------------------------
DATE: 3-8-00 DATE: 03/13/00
------------------------------ --------------------------------
6
ADDENDUM "2"
WITH RESPECT TO
LEASE AGREEMENT ORDER NO. RA-00757
This Addendum is supplemental to and made a part of Lease Agreement Order No.
RA-00757 dated 03/08/00 (the "Agreement") and other related documents under The
Agreement. The parties to the Agreement include Screaming Xxxxx.xxx Inc.
("Lessee") and Working Capital Technologies of America ("Lessor").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in the Agreement, unless specifically modified. This
Addendum is to be construed as supplemental to, and part of, the Agreement.
It is hereby agreed and acknowledged that any reference (on any of
the documents relating to the above referenced Agreement) to Lessee's
address as "601 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000" or any other
address other than the exact current legal address, shall hereinafter
refer to the actual address as "601 X. 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000".
In all other respects, the terms and conditions of the Agreement, as originally
written, shall remain in full force and effect. The Agreement, as amended
herein, sets forth the entire and final understanding between the parties with
respect hereto. The terms of this Addendum have been negotiated and jointly
drafted by Lessor and Leasee and, therefore, the language of the Addendum shall
not be construed in favor or against either party. The undersigned represent
that they have the authority to enter into the Agreement, and that the same
shall be legally binding and enforceable on the respective principals.
IN WITNESS WHEREOF the parties hereto, by their authorized signatories, have
executed this Addendum at the date set forth below their respective signatures.
LESSEE: Screaming Xxxxx.xxx Inc. Working Capital Technologies of America
______________________________ ________________________________________
BY: /s/ Xxx Xxxxxxx BY: /s/ Xxxxxxx X. XxXxxxxxx
______________________________ _______________________________________
NAME: Xxx Xxxxxxx NAME: Xxxxxxx X. XxXxxxxxx
______________________________ _______________________________________
TITLE: Director Financial Operations TITLE: Senior Vice President
______________________________ _______________________________________
DATE: 3-8-00 DATE: 03/13/00
______________________________ _______________________________________
7
WorkingCAPITAL LEASE
Technologies of America SCHEDULE 01
0000 Xxxxxx Xxxxxx - Xxxxx 000 - Xxxxxxx Xxxxx, XX 00000 ---------------
ANNEXED TO AND MADE A PART OF THE
Telephone 000-000-0000 - Facsimile 000-000-0000 LEASE AGREEMENT ORDER NO. RA-00757
DATED ________ BETWEEN WORKING
CAPITAL TECHNOLOGIES OF AMERICA,
LESSOR, AND LESSEE INDICATED
HEREIN.
----------------------------------------------------------------------------------------------------------------
LESSEE LOCATION OF PROPERTY
Screaming Xxxxx.xxx, Inc Various Locations
----------------------------------------------------------------------------------------------------------------
XXXXXX XXXXXX
000 Xxxx 00xx Xxxxxx
----------------------------------------------------------------------------------------------------------------
CITY
New York NY 10001 CITY STATE COUNTY ZIP
----------------------------------------------------------------------------------------------------------------
ATTENTION
Xxx Xxxxxx ATTENTION
----------------------------------------------------------------------------------------------------------------
TITLE/PHONE NO.
Director of Financial Operations TITLE/PHONE NO.
----------------------------------------------------------------------------------------------------------------
This Schedule is issued pursuant to the Lease Agreement Order
No._RA-00757. All of the terms and conditions of the Lease Agreement
are hereby incorporated herein and made a part hereof as if such
terms and conditions were set forth in this Schedule as a separate
lease with independent initial Base Lease Term and written addenda,
if any. By their execution and delivery of this Schedule, the parties
hereby reaffirm all of the terms and conditions of the Lease
Agreement.
-----------------------------------------------------------------------------------------------------------------------------
ITEM QUANTITY DESCRIPTION OF PROPERTY
-----------------------------------------------------------------------------------------------------------------------------
PROPERTY TO CONSIST OF COMPUTER HARDWARE ($53,979.00), ORACLE SOFTWARE
(1,961,304.55) AND SOFT COSTS ($831,486.98) TO BE MORE FULLY DESCRIBED ON
EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF AT A LATER DATE. ANY
VARIANCES IN THE ACTUAL PROPERTY COSTS OR CONFIGURATION MAY REQUIRE
CORRESPONDING ADJUSTMENTS IN THE RENTAL PAYMENT AMOUNT.
PROPERTY COST: $2,792,791.43
THE MONTHLY EQUIVALENT LEASE RATE FACTOR ("MELRF") OF 0.019922 MAY BE
ADJUSTED TO REFLECT THE MOVEMENT OF EQUALLY MATURING U.S. TREASURY NOTES
AS QUOTED IN THE WALL STREET JOURNAL FROM A BASE RATE OF 6.66%. THE RENT
WILL THEREAFTER BE FIXED FOR THE TERM.
PROPERTY ACCEPTANCE DATES TO BE: MARCH 1, 2000 THROUGH DECEMBER 31, 2000.
-----------------------------------------------------------------------------------------------------------------------------
INITIAL BASE LEASE TERM DEPOSIT MONTHLY RENT
IN MONTHS
$55,637.99 due now; the remainder to be
billed upon approval.
Sixty (60) $111,275.98 $55,637.99
-----------------------------------------------------------------------------------------------------------------------------
THIS SCHEDULE ALONG WITH THE LEASE AGREEMENT CONTAINS THE ENTIRE AGREEMENT
BETWEEN LESSOR AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS
AGREEMENT CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A
PERSON AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED
SIGNER OF LESSOR. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR
PROMISES SHALL BE RELIED UPON OR BE BINDING ON THE PARTIES UNLESS MADE A PART
OF THIS LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF BOTH
LESSEE AND LESSOR.
OFFER ACCEPTANCE
LESSEE: Screaming Xxxxx.xxx, Inc WORKING CAPITAL TECHNOLOGIES OF AMERICA
-------------------------------------------------
BY: /s/ Xxx Xxxxxx BY: /s/ Xxxxxxx X. XxXxxxxxx
----------------------------------------------------- -------------------------------------------------
NAME: Xxx Xxxxxx NAME: Xxxxxxx X. XxXxxxxxx
----------------------------------------------------- ------------------------------------------------
TITLE:Director of Financial Operations DATE: 2/17/00 TITLE: Senior Vice President DATE: 3/8/00
--------------------------------------------------------- ----------------------- ----------------
8
ADDENDUM "A"
TO
LEASE AGREEMENT ORDER NO. RA-00757
WITH RESPECT TO LEASE SCHEDULE 01
This Addendum is supplemental to and made a part of Lease Agreement Order No.
RA-00757, dated 2/19/00 (the "Agreement"), Lease Schedule 01, dated 2/19/00 and
other related documents under the Agreement and Lease Schedule (collectively
the "Lease"). The parties to the Lease include Screaming Xxxxx.xxx, Inc
("Lessee") and Working Capital Technologies of America ("Lessor").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in the Lease, unless specifically modified. This Addendum is
to be construed as supplemental to, and a part of, the Lease.
Lessee and Lessor acknowledge and agree that the Lease is hereby amended with
respect to Lease Schedule 01, as follows:
SECTION 3. TERM
Option (i) shall be modified to the limited extent as follows:
In lines twenty-six through twenty-eight, delete the phrase: "(A) purchase
all, but not less than all, of the Property for its then Fair Market Value
("FMV"), plus applicable sales tax;" and replace it with "(i) purchase
all, but not less than all, of the Property for its then Fair Market Value
("FMV") not to exceed 10% of the total cost paid by Lessor with respect to
the Property, plus all applicable sales/use taxes thereon and all accrued
but unpaid interest, taxes, penalties and/or other sums due under the
Lease;"
In all other respects, the terms and conditions of the Lease, as originally
written, shall remain in full force and effect. The Lease, as amended herein,
sets forth the entire and final understanding between the parties with respect
hereto. The terms of this Addendum have been negotiated and jointly drafted by
Lessor and Lessee and, therefore, the language of the Addendum shall not be
construed in favor or against either party. The undersigned represent that they
have the authority to enter into the Lease, and that the same shall be legally
binding and enforceable on the respective principals.
IN WITNESS WHEREOF the parties hereto, by their authorized signatories, have
executed this Addendum at the date set forth below their respective signatures.
Lessee: Screaming Media. Com Inc. Lessor: Working Capital Technologies of America
--------------------------------------------- --------------------------------------------
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------------------- --------------------------------------------
Name: Xxx Xxxxxx Name: Xxxxxxx X. XxXxxxxxx
--------------------------------------------- --------------------------------------------
Title: Director of Financial Operations Title: Senior Vice President
--------------------------------------------- --------------------------------------------
Date: 2/17/00 Date: 3/13/00
--------------------------------------------- --------------------------------------------
6
9
ADDENDUM "B"
TO
LEASE SCHEDULE NO.01
TO
LEASE AGREEMENT ORDER NO. RA-00757
This Addendum is supplemental to and made a part of Lease Agreement Order No.
RA-00757, dated 2/19/00 (the "Agreement"), Lease Schedule(s) No. 01 dated
2/19/00 and other related documents under the Lease and Lease Schedule
(collectively forming the "Lease"). The parties to the Lease include Screaming
Xxxxx.xxx, Inc ("Lessee") and Working Capital Technologies of America ("WCT").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in then Lease, unless specifically modified. This Addendum
is to be construed as supplemental to, and part of, the Lease.
Throughout the term of the Lease, as security for Lessee's obligations
hereunder, Lessee agrees to maintain at its sole cost and expense an
unconditional and irrevocable stand by letter of credit ("Letter of Credit") in
the amount of Two Million Seven Hundred Ninety-Two Thousand Seven Hundred
Ninety-One dollars and 43/100 U.S. Dollars ($2,792,791.43), in form, substance,
and issued by a bank satisfactory to WCT. Such Letter of Credit will be
considered for full or partial release at WCT's absolute and sole discretion,
not less than biannually. Lessee agrees to obligate the issuer to notify WCT in
writing at least ninety (90) days in advance of any date of expiration of such
Letter of Credit that such Letter of Credit has not been renewed. In addition
to the provisions of Section 9 of the Agreement, it shall be an Event of
Default hereunder if WCT does not receive a satisfactory replacement Letter of
Credit, at least sixty (60) days in advance of any expiration or cancellation
of any Letter of Credit issued pursuant to this Lease. If there is any Event of
Default under the Lease, WCT may draw all or part of the amount available under
such Letter of Credit, and may pursue any or all of its other remedies
available. WCT may draw upon the Letter of Credit to obtain payment of any
amounts due and unpaid under the Lease.
In all other respects, the terms and conditions of the Lease, as originally set
forth, shall remain in full force and effect. The Lease sets forth the entire
and final understanding between the parties with respect hereto. The terms of
this Addendum have been negotiated and jointly drafted by WCT and Lessee and,
therefore, the language of the Addendum shalt not be construed in favor or
against either party. The undersigned represent that they have the authority to
enter into this Lease, and that the same shall be legally binding and
enforceable on the respective principals.
IN WITNESS WHEREOF, the parties hereto, by their authorized signatories, have
executed this Addendum "B" at the date set forth below their respective
signatures.
LESSEE:
Screaming Media. Com Inc. Working Capital Technologies of America
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------------------- --------------------------------------------
Name: Xxx Xxxxxx Name: Xxxxxxx X. XxXxxxxxx
--------------------------------------------- --------------------------------------------
Title: Director of Financial Operations Title: Senior Vice President
--------------------------------------------- --------------------------------------------
Date: 2/17/00 Date: 3/13/00
--------------------------------------------- --------------------------------------------
