LEASE AGREEMENT
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Date 11/8/96
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Lessee: Billing Address (if different):
Name IWL Communications, Inc. Name
Address 0000 XX Xx 2351 Address
(Include County Xxxxxxxxxxx, XX 00000 (Include County
& Zip Code) & Zip Code)
Attn: Igatus Leonards Attn:
Phone #: (000) 000-0000 Phone #:
Fax #: (000) 000-0000 Fax #:
TERMS AND CONDITIONS - ADDITIONAL TERMS ON BACK
1. LEASE. CLG, Inc. ("Lessor") hereby agrees to lease to Lessee, and Lessee
agrees to lease from Lessor the Equipment and all other items described on any
attached Supplement(s) or Certificate(s) of Delivery and Acceptance document
(the "Equipment"), under the terms and conditions set forth in this Lease
Agreement. Lessor shall designate a unique Transaction Number ("TA #") for each
Supplement and its attached Certificate(s) of Delivery and Acceptance, executed
under this Lease Agreement herein (each "Lease"). Lessor, at Lessor's sole
discretion, may elect the execution of Supplement for lease after the
execution of its Certificate(s) of Delivery and Acceptance for same lease
attached to Lease Agreement, under terms and conditions set forth hereto.
2. WARRANTIES. LESSOR HAS NOT MADE AND SPECIFICALLY DECLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE QUALITY OR CONDITION OF THE
EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor
will not be liable for any loss, cost or damage to Lessee or others arising from
defects, negligence, delays, failure of delivery, interference with any
patent, trademark, copyright or other intellectual property right or
nonperformance of the Equipment.
Lessee warrants to Lessor that; (a) the Lessee is in good standing under
applicable State law; (b) the person(s) executing this Lease Agreement and any
resulting Supplement(s) or Certificate(s) of Delivery and Acceptance document
on behalf of the Lessee shall be an authorized representative empowered to bind
the Lessee. The Lessee shall provide executed Certificate(s) of Incumbency
evidencing authorization if so requested by Lessor and; (c) this Lease
Agreement does not violate any other agreement(s) binding the Lessee.
3. TERM AND RENT. The Equipment will commence for lease rental on the date(s)
designated by Lessor (the "Acceptance Date") and in the amount(s) as set forth
in the Lease Certificate(s) of Delivery and Acceptance attached hereto and the
lease term will commence on the first day of the following month after the last
acceptance date of the lease. Upon the lease term commencement the lease will
continue throughout the set forth minimum lease term and Lessee will have a
minimum obligation for rental payments as set forth hereto from lease rental
commencement throughout the minimum lease term. Lessee agrees to lease finance
all upgrades, additions and all replacement equipment of the Equipment with
Lessor, at Lessor's sole discretion, or at a mutually agreed upon rate. Lessee
will pay all rental payments, in advance, on the date(s) specified by Lessor in
a notice(s) to Lessee. Any attached lease as set forth herein is a noncancelable
lease and cannot be cancelled under any condition or circumstance by Lessee
during the minimum term hereof. All leases shall be automatically renewed for
the sum as set forth hereto and under the terms and conditions as set forth
herein for one (1) year at the expiration of the minimum term and at the
expiration of any renewal term thereafter, unless Lessor or Lessee shall notify
the other of its intent not to renew the lease which notice shall be given in
writing at least one hundred eighty (180) days prior to the expiration of the
minimum term or the renewal term.
4. PURCHASE ORDERS AND EQUIPMENT ACCEPTANCE. Lessee agrees that; (a) Lessor
has not selected, manufactured, sold or supplied any of the Equipment, its
supplies, service(s) or software; (b) Lessee has selected all of the Equipment,
its supplies, service(s), software and all other items; (c) Lessee is
responsible for all shipping costs and Equipment installation and deinstallation
charges; (d) Lessor is purchasing the Equipment solely in connection with this
lease and; (e) Lessee has received a copy of and unconditionally approved the
purchase orders/contracts and all services for the Equipment. Lessor hereby
notifies Lessee that Lessee may have rights under such purchase orders/contracts
and all services and advises Lessee to contact such suppliers for a description
of any such rights. Lessor hereby assigns to Lessee the benefit of any
assignable manufacturer's or suppliers warranties.
LESSEE AGREES THAT AS OF THE ACCEPTANCE DATE AS SET FORTH BY LESSOR; (A) LESSEE
HAS RECEIVED AND INSPECTED THE EQUIPMENT; (B) THE EQUIPMENT IS IN GOOD WORKING
ORDER AND COMPLIES WITH THE PURCHASE ORDERS/CONTRACTS AND ALL SERVICES; (C)
LESSEE IRREVOCABLY ACCEPTS THE EQUIPMENT FOR PURPOSES OF THIS LEASE AGREEMENT
"AS-IS, WHERE-IS, WITH ALL FAULTS" AND; (D) LESSEE UNCONDITIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO REVOKE ITS ACCEPTANCE OF THE EQUIPMENT.
LESSOR: CLG, INC. LESSEE: IWL COMMUNICATIONS, INC.
0000 XXXXXX XXXXXX XXXX
XXXXXXX, XX 00000
PHONE NO: (000) 000-0000
FAX NO: (000) 000-0000
By: /s/ XXXXX X. XXX 2/9/97 By: /s/ XXXXXXX X. XXXXXXXX 11/8/96
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Authorized Signature Date Authorized Signature Date
XXXXX X. XXX XXXXXXX X. XXXXXXXX
--------------------------------- --------------------------------------
Name Name
PRESIDENT AND CHIEF OPERATING
OFFICER CFO
--------------------------------- --------------------------------------
Title Title
THIS IS COUNTERPART NO. 2 OF 2 SERIALLY NUMBERED, MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER
UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY
BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1.
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REGARDLESS OF ANY PRIOR, PRESENT OR FUTURE ORAL AGREEMENT OR COURSE OF
DEALING, LESSEE AGREES THAT NO TERM OR CONDITION OF THIS LEASE AGREEMENT MAY
BE AMENDED, MODIFIED, WAIVED, DISCHARGED, RESCINDED OR TERMINATED EXCEPT BY A
WRITTEN DOCUMENT SIGNED BY LESSOR AND LESSEE, that Lessee has authorized
Lessor to fill in the Acceptance Date and the serial numbers of any
Equipment, LEASE IS VALID UPON AUTHORIZED SIGNATURE OF A CLG,INC. OFFICER.
By: /s/ XXXXX X. XXX
President and Chief Operating Officer
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Authorized Signature/CLG, Inc.
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PERSONAL GUARANTY
(Invalid as Corporate Guaranty)
To induce Lessor to enter into the within lease, the undersigned, jointly and
severally, unconditionally guarantees to Lessor the prompt payment when due of
all of Lessee's obligations to Lessor under this Lease Agreement. This is an
absolute and unconditional guarantee of all payments due under this Lease
Agreement and not of collection. Lessor shall not be required to proceed against
Lessee or the Equipment or enforce any other remedy before proceeding against
the undersigned. The undersigned agrees to pay all attorney's fees and all other
expenses incurred by Lessor by reason of default by the Lessee or the
undersigned. The undersigned waives notice of acceptance hereof and of all other
notices, legal action(s) or demands of any kind of which the undersigned may be
entitled. The undersigned consents to all terms and conditions set forth in
Lease Agreement, attached Supplement(s), Certificate(s) of Delivery and
Acceptance or any other attached document(s), any lease extensions or
modification(s) granted to Lessee and the release and/or compromise of any
obligations of Lessee or any other obligors hereunder. This guaranty shall
bind the heirs, administrators, representatives, successors and assigns of
the undersigned and may be enforced by or for the benefit of any assignee, or
successor of Lessor as specified; SECTION 14. The undersigned consents to
jurisdiction, as specified; SECTION 21, of any Federal or State Court,
located in the Eastern District, North Carolina, with respect to any legal
action commenced hereunder. All disputes will be settled in the courts of the
Eastern District, North Carolina. The undersigned expressly waives any right
to a trial by jury. As used in the Lease Agreement, the term "Lessee" also
includes any guarantor of all Lessee's obligations hereunder. IN THE EVENT
ORIGINAL EQUIPMENT COST OF CUMULATIVE LEASES HERETO EXCEEDS TWO HUNDRED
THOUSAND ($200,000) DOLLARS, GUARANTOR AGREES TO EXECUTE ATTACHMENT PG ("PG")
OF THIS LEASE AGREEMENT provided by and to the satisfaction of Lessor.
Execution of PG voids, in whole, PERSONAL GUARANTY herein.
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Guarantor Signature Date Guarantor Signature Date
(No Title) (No Title)
--------------------------------- --------------------------------------
Guarantor Name Guarantor Name
(CORPORATE GUARANTY - SEE ATTACHMENT CG)
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ADDITIONAL TERMS AND CONDITIONS
5. ADVANCE PAYMENT. Any Advance Payments set forth in Certificate(s) of
Delivery and Acceptance shall be held as security for the performance of the
lease contained hereto. Lessor may apply Advance Payment to cure any default
under this Lease Agreement.
6. UNCONDITIONAL LEASE. Lessee's obligation to pay all rent and other
amounts under this Lease Agreement is ABSOLUTE AND UNCONDITIONAL UNDER ALL
CIRCUMSTANCES WHATSOEVER and shall not be affected by any defect in
condition, design, or operation of the Equipment, any lack of maintenance or
service for any Equipment, its supplies or software, or any setoff,
counterclaim, defense or reduction which Lessee may have against Lessor or
any other party.
7. OWNERSHIP OF EQUIPMENT. Lessor shall at all times retain title to the
Equipment. Lessee will defend Lessor's title to the Equipment and will keep
it free and clear of any and all claims, liens and encumbrances. Lessee will
obtain and maintain all required, customary or appropriate licenses, titles,
registrations and permits reflecting Lessor as owner.
8. CARE, USE AND LOCATION. During the entire term of lease and at Lessee's
sole expense, Lessee shall keep and maintain the Equipment by the original
manufacturer or shall keep and maintain the Equipment, per original
manufacturer's maintenance specifications by a maintenance concern approved by
the original manufacturer, in like new operating condition, repair, and
appearance. Lessee shall use the Equipment in the regular course of its
business, and shall comply with all laws and regulations relating to the
Equipment. Lessee will not modify the Equipment unless in accordance with a
recommendation by the manufacturer, without the prior written approval of
Lessor. All alterations, additions and replacements become the property of
Lessor. The Equipment shall always be deemed personal property of the Lessor.
Lessee shall keep the Equipment at the location shown hereto and shall not
remove the Equipment under any condition or circumstance without Lessor's
written approval. Lessor, assignee or representative of Lessor shall have the
right to enter Lessee's premises at reasonable times to inspect the Equipment.
9. TAXES. Lessee will pay all excise taxes, sales and use taxes, personal
property taxes and all other taxes and charges which may be imposed by any
governmental entity during the term of any lease under this Lease Agreement
arising from the acquisition, use, ownership or leasing of the Equipment whether
due before or after termination of any lease under Lease Agreement. Lessor shall
file personal property tax returns with respect to the Equipment, Lessee shall
pay to Lessor, in advance and at the time(s) required by Lessor, the taxes which
Lessor anticipates will be due during the year.
10. INSURANCE. Lessee shall provide and maintain from insurance companies
satisfactory to Lessor (a) property damage insurance against loss, fire,
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 and (b)
comprehensive general all-risk liability insurance including without
limitation, product liability coverage, insuring Lessor and Lessee, with a
severability of interest endorsement or its equivalent, against any and all
loss of liability for all damages, either to persons or property, or
otherwise, which might result, or happen in connection with the condition,
use or operation of the Equipment, with such limits as are satisfactory to
Lessor. Each policy shall expressly provide that said insurance as to Lessor
and Lessor's assigns shall not be invalidated by any act, omission or neglect
of Lessee and cannot be cancelled or modified without 60 days prior written
notice to Lessor. As to each policy, Lessee shall immediately furnish to
Lessor a certificate of insurance from the insurer, which certificate shall
evidence the insurance coverage required by this SECTION 10 ("Valid
Evidence"). Lessor shall have no obligation to ascertain the existence of or
provide any insurance coverage for the Equipment or for Lessee's benefit. The
insurance proceeds shall be the sole property of Lessor, and shall be used by
Lessor for the repair or replacement of the Equipment, or if Lessee is in
default under the terms of the Lease Agreement toward any payment of Lessee's
obligations to Lessor. In the event Lessee fails to procure the insurance
required above prior to the commencement of this Lease or if Lessee fails to
provide valid evidence, or in the event Lessee fails to maintain the required
insurance after the commencement date of this Lease, Lessor may, but will not
be required to, and without notice to Lessee, purchase such insurance and add
the cost, including customary charges or fees associated with the placement,
maintenance or service of such insurance (collectively "Insurance Charge"),
to the next monthly rental payment to become due hereunder. Lessor may
terminate or allow to lapse any coverage obtained by Lessor without having
any liability to Lessee. Lessee hereby appoints Lessor as Lessee's
attorney-in-fact to make a claim for, receive payment of, and execute and
endorse all documents, checks or drafts for loss, theft, damage or
destruction to the Equipment under any property insurance.
11. INDEMNITY. Lessee will indemnify and defend Lessor, its affiliates,
their officers, agents and employees, assigns, successors, heirs and personal
representatives of Lessor against all loss, liability and expense, including,
without limitation, all attorney's fees (including costs of a successful
defense) from claims for negligence, tort, strict liability, bodily injury,
including death or property damage or for any alleged violation of rights of
others, including contract, patent, trademark, copyright or intellectual
property rights or for any alleged violation of any law, ordinance, rule,
regulation, decree, or otherwise arising from or in any way related to the
Equipment, supplies, software, Lease Agreement, lease or otherwise, including,
without limitation, the ownership, operation, manufacturing, maintenance or
services of the Equipment. This provision shall survive expiration, assignment
or termination of any lease under Lease Agreement.
12. LOSS OR DAMAGE. Lessee shall bear all the risks of loss of and damage
to the Equipment from any cause and the occurrence of such loss or damage shall
not relieve Lessee of any obligation hereunder. In the event of such loss or
damage, Lessee shall immediately notify the Lessor in writing and, at the
election of Lessor, shall; (a) place the same in like new condition and
working order, certified for original manufacturer's maintenance and deliver
to Lessor written confirmation or; (b) replace the same with like equipment
in like new condition and working order, certified for original
manufacturer's maintenance, free and clear of encumbrances and deliver to
Lessor written confirmation, a xxxx of sale and serial number(s) conveying
the replacement equipment to Lessor.
13. FEES, COLLECTION EXPENSES AND LATE CHARGES. Lessee shall also pay to
Lessor with the first rental payment an administration fee of one hundred
dollars ($100.00). If any amount payable herein is not paid when due, Lessor
may elect for the Lessee to pay any or all amounts hereunder with respect to
each overdue payment on demand; (a) any collection agency fees and expenses
plus; (b) a late payment service fee equal to the greater of fifteen dollars
($15.00) or ten percent (10%) of the late payment (but not to exceed $50.00),
which is a reasonable approximation of the internal costs that Lessor will
incur as a result of Lessee's delay in payment plus; (c) interest at a
minimum of eighteen percent (18%) per annum (but not to exceed the highest
rate permitted by law) ("Late Charge Rate") on such overdue payment for the
period for which it is overdue. If Lessee fails to make any payment of any
lease under this Lease Agreement or perform any of its other agreements in
this Lease Agreement (including, without limitation, its agreement to provide
insurance coverage and valid evidence as stated herein), Lessor may make such
payment or perform such agreement and the amount of such payment and the
expense of Lessor shall be additional rent, payable by Lessee on demand.
Lessee shall pay to Lessor a fee of one hundred dollars ($100.00) for each
check returned to Lessor unpaid in addition to any other fee provided for
herein for a delinquent payment.
14. ASSIGNMENT. LESSEE SHALL NOT, DIRECTLY OR INDIRECTLY; (A) ASSIGN, SELL
OR OTHERWISE DISPOSE OF ANY LEASE UNDER LEASE AGREEMENT OR ANY INTEREST THEREIN
OR THE EQUIPMENT OR ANY PART THEREOF OR; (B) SUBLEASE, CREATE, GRANT, ASSUME OR
ALLOW TO EXIST ANY LIEN OR OTHER CLAIM TO THE EQUIPMENT OR ANY PART HEREOF.
Lessor, any assignee or representative of Lessor, may sell or grant a security
interest in all or any part of Lessor's rights, obligations, title or interest
in the Equipment and any lease under Lease Agreement or any amount payable under
this Lease Agreement or the Lease Agreement to any entity (a "Transferee") and
in such event the transferee shall have all of the rights, powers and remedies
of Lessor hereunder. Lessee shall execute all documentation deemed necessary by
Lessor, any assignee or transferee of Lessor for said assignment. Lessee agrees
that after written notice by Lessor of any such assignment, Lessee shall pay all
rent payable by Lessee hereunder to such assignee or transferee, and agrees to
make all such payments of rent to such assignee or transferee whether or not any
lease under Lease Agreement or the Lease Agreement is terminated by operation of
law, any act of the parties or otherwise. Lessee will not (a) assert against any
such assignee or transferee, any claims by way of abatement, defense, setoff,
counterclaim, recoupment or otherwise which Lessee may have, (b) look to such
assignee or transferee to perform any of Lessor's obligations hereunder or (c)
terminate or attempt to terminate any lease under Lease Agreement on account
of any default by Lessor. Lessee acknowledges that any such transfer transaction
will not materially increase or change its obligations, burdens, duties or risks
under this Lease Agreement. This Lease Agreement and its leases shall inure to
the benefit of and be binding upon the successors and assigns of the
respective parties hereto and the heirs, executors and administrators of the
Lessee, if an individual, always providing that nothing in this paragraph
contained shall impair any of the provisions hereinbefore set forth
inhibiting assignment without written approval of Lessor.
15. DEFAULT. Any of the following events or conditions shall constitute an
event of default hereunder; (a) Lessee fails to pay any rental or any other
payment hereunder when due; (b) Lessee fails to perform any covenant, in part
or whole, herein; (c) Lessee becomes insolvent or makes an assignment for the
benefit of creditors or ceases doing business as a going concern; (d) a
receiver, trustee, conservator, or liquidator of Lessee is appointed with or
without the application or approval of Lessee; (e) the filing by or against
Lessee of a petition under the Bankruptcy Code of any Amendment thereto; or
under any other insolvency law or laws providing for, but not limited to, the
relief of Debtors or; (f) any representation or statement made or furnished to
Lessor by or on behalf of Lessee which could prove to have been false,
misleading or have a material effect on Lessee in any respect when made or
furnished; (g) liquidate, dissolve or suspend business; (h) sell, transfer or
otherwise dispose of all or a majority of its assets, except that Lessee may
sell its inventory in the ordinary course of its business; (i) enter into any
merger, consolidation or similar reorganization unless it is the surviving
corporation; (j) transfer all or any substantial part of its operations or
assets outside of the United States of America; or (k) without 30 days
advance written notice to Lessor, change its name or chief place of business.
Lessee shall at all times maintain a tangible net worth which is no less than
the greater of 49% of its tangible net worth as of the date of the Lease
Agreement or 49% of its highest tangible net worth thereafter. As used in this
SECTION 15, the term "Lessee" also includes any guarantor of all of Lessee's
obligations hereunder.
16. REMEDIES. If any event of default exists, Lessor, at Lessor's sole
discretion, may, at any time, do one or more of the following in any order and
Lessee shall perform its obligations imposed immediately thereby; (a) Lessor may
require Lessee to return any or all Equipment executed under this Lease
Agreement within a minimum of ten (10) days; (b) Lessor or its agent may
repossess any or all Equipment wherever found; (c) Lessor may sell any or all
Equipment at public or private sale, with or without advertisement or
publication, may re-lease or otherwise dispose of it or may use, hold or keep
it; (d) Lessor may require Lessee to pay to Lessor on a date specified by
Lessor, with respect to any or all Equipment (i) all accrued and unpaid rent,
late charges and other amounts due under this Lease Agreement on or before such
date specified by Lessor plus (ii) the present value, discounted in advance at
two percent (2%) per annum, of the remaining rents through the end of the lease
term and all other amounts payable under this Lease Agreement plus (iii) the
anticipated market value of the Equipment as determined by Lessor ("Stipulated
Loss Value") as liquidated damages for loss of the bargain and not as a penalty
plus (iv) interest at the Late Charge Rate on the total of the foregoing; (e)
Lessee shall immediately pay all costs, expenses, damages and loss of reasonable
profits incurred by Lessor because of the event of default or its actions under
this section, including, without limitation, any collection agency and
attorney's fees and expenses and; (f) Lessor may terminate this Lease Agreement
and all its leases, may xxx to enforce Lessee's performance of its obligation
under this Lease Agreement and may exercise any other right or remedy then
available to Lessor at law or in equity. Lessor is not required to take any
legal process or give Lessee any notice before exercising any of the above
remedies. Lessee expressly waives all rights to Lessor notice prior to
exercising such remedies and pursue any and all legal action(s) against Lessor.
None of the above remedies is exclusive, but each is cumulative and in addition
to any other remedy available to Lessor. Lessor's exercise of one or more
remedies shall not preclude its exercise of any other remedy at any time. No
delay or failure on the part of Lessor to exercise any right hereunder shall
operate as a waiver thereof nor as an acquiescence in any default, nor shall
any single or partial exercise of any right preclude any other exercise
thereof or the exercise of any other right at any future and all Lessor's
rights and remedies contained herein shall survive the termination of Lease
Agreement and any attached lease(s) hereto. Lessor shall not be required to
sell, re-lease or otherwise dispose of any Equipment prior to Lessor
enforcing any of the remedies described above. Lessor may sell or re-lease
the Equipment in any manner it chooses, free and clear of any claims or
rights of Lessee and without any duty to account to Lessee with respect
thereto except, at Lessor's sole discretion, as provided below. If Lessor
actually sells or re-leases the Equipment, Lessor, at its sole discretion,
may elect to credit the net proceeds of any sale of the Equipment, or the net
present value (discounted at the rate of eighteen percent (18%) per annum) of
the rents payable under any new lease of the Equipment, against and up to
(but not exceeding) the Stipulated Loss Value of the Equipment and any other
amounts Lessee owes Lessor, or may elect to reimburse Lessee for and up to
(but not exceeding) such amount after deducting the costs, expenses and
reasonable profits described in above "(e)." Lessor may credit excess net
proceeds against any short fall (residual position) in the lease (future
valued at eighteen percent (18%) from the lease commencement date) before
stated election of any reimbursement(s) to Lessee. If Lessor elects in
writing to sell or re-lease any Equipment, it may similarly elect to credit
or reimburse Lessee for Lessor's reasonable estimate of such Equipment's
market value.
17. RETURN OF EQUIPMENT. Upon lease term expiration, at Lessee's sole expense,
Lessee shall; (a) immediately return the Equipment to Lessor, in like new
condition, including, without limitation, certified for maintenance by the
original manufacturer, all owner's manuals and Equipment cables, to a location
designated by Lessor; (b) bear all expenses incurred by Lessor to bring the
Equipment to such like new condition, as set forth and Lessee agrees to
immediately pay Lessor for such expenses incurred upon written notice by Lessor;
(c) agree that all shortfall positions (residual position) taken in soft costs
and the lease by Lessor, including, without limitation, (i) system software,
(ii) application software, (iii) installation, (iv) maintenance and (v) fees,
shall be immediately paid by Lessee, future valued at eighteen percent (18%)
from lease rental commencement until termination of the lease, upon written
notice by Lessor, and; (d) agree to lease finance any lease term extensions,
and all replacement equipment with Lessor, at Lessor's sole discretion, or at
a mutually agreed upon rate; (e) purchase Equipment. In the event Lessee elects
to purchase Equipment, Lessor will provide a market value of the Equipment for
Lessee's option to purchase in its entirety as owner. Should Lessee not return
or purchase the Equipment, Lessee shall continue to pay rent to Lessor as
specified; SECTION 3.
18. UCC FILINGS AND FINANCIAL STATEMENTS. Lessor and Lessee agree that a
reproduction of this Lease Agreement and its attaches may be filed as a
financing statement and shall be sufficient as a financing statement under the
Uniform Commercial Code. Lessee hereby ratifies all action of the Lessor in
executing and filing financing statements prior to the execution of this Lease
Agreement. Lessee shall execute or obtain or deliver to Lessor, upon Lessor's
request, such other documents as Lessor deems necessary or advisable for the
protection or perfection of this Lease Agreement and its attaches and Lessor's
rights hereunder and shall pay all costs incident thereto. Lessee authorizes
Lessor to insert in this Lease Agreement and its attaches, in any filings, the
serial number(s) of all the leased Equipment, and irrevocably appoints Lessor as
Lessee's attorney-in-fact to sign any such filings. Lessee shall make available
to the Lessor all financial statements and tax returns upon request. At a
minimum, Lessee agrees to provide Lessor such statements during any lease term
attached hereto.
19. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL, COMPLETE, AND
ENTIRE AGREEMENT BETWEEN THE PARTIES. THERE ARE NO ORAL OR WRITTEN AGREEMENTS
OR UNDERSTANDINGS AFFECTING THIS LEASE AGREEMENT, THE LEASE OR EQUIPMENT. No
manufacturer, vendor or supplier or software manufacturer, vendor or supplier
is the agent of Lessor. Any representation, warranty or agreement made by a
manufacturer, vendor or supplier or software manufacturer, vendor or supplier or
their employees, sales representatives or agents shall not be binding on Lessor.
Lessee shall look solely to manufacturer, vendor or supplier or software
manufacturer, vendor or supplier for all claims arising under its performance;
that Lessor makes no expressed or implied warranties or representations
whatsoever, including warranties of merchantability or fitness for a particular
purpose, concerning said performance or the obligations thereunder, and that
Lessee shall continue to pay Lessor all monthly rental charges and perform all
other obligations of Lessee under this Lease Agreement without asserting any
setoff, counterclaims, or other defense for any reason whatsoever, including
without limitation, the failure of manufacturer, vendor or supplier or software
manufacturer, vendor or supplier to perform its obligations; and Lessee shall
not attempt to terminate this Lease Agreement or its leases under any condition
or circumstance for a default or non performance by manufacturer, vendor or
supplier or software manufacturer, vendor or supplier.
20. MISCELLANEOUS. In the event any provision, in part or whole, hereof shall
be invalid or unenforceable, the remaining provision(s), in part or whole,
hereof shall remain and survive in full force and effect. The provisions of this
Lease Agreement shall be binding upon and shall inure to the benefit of the
permitted assigns, transfers, successors, heirs and personal representatives of
Lessor and Lessee. Lessor shall not be liable to Lessee for any direct,
indirect, consequential, special or other damages for any reason whatsoever. If
this Lease Agreement or any lease hereunder is signed by more than one Lessee,
each of such Lessees shall be jointly and severally liable for payment and
performance of all of the Lessee's obligations under this Lease Agreement. In
the event(s) unauthorized party(s) execute signature authority or represents as
the Lessee in action, commitment, deed or otherwise such event(s) shall be
deemed unconditionally binding as being authorized by Lessee and Lessee herein
as set forth; SECTION 2 shall be liable and such event(s) shall be enforceable
by Lessor, at Lessor's sole discretion, under the terms of this Lease Agreement
and attaches hereto unless otherwise specified by Lessor in writing.
21. JURISDICTION. This Lease Agreement shall be binding when accepted in
writing by the Lessor in the State of North Carolina and shall be deemed to
have been made in the Eastern District, North Carolina. The interpretation,
construction and validity of this Lease Agreement shall be governed by the
laws of the State of North Carolina, where Lessor has its principal place of
business, where the lease is accepted and executed by Lessor, and where
payments are to be made by Lessee unless otherwise specified by Lessor.
Lessee hereby voluntarily consents to the jurisdiction of any Federal or
State Court, located in the Eastern District, North Carolina with respect to
any legal action commenced hereunder. Lessee expressly waives any right to a
trial by jury.
22. STATEMENT OF PURPOSE. Lessee hereby warrants and represents that all
leased Equipment under this Lease Agreement will be used for business
purposes and not for personal, family or household purposes and Lessee
acknowledges that Lessor has relied upon this representation entering into
this Lease Agreement.
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[LOGO] SUPPLEMENT
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Lease Agreement # _______________ Dated: 11/8/96
T.A. #5400110
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Equipment Model Equipment
Qty. Type Number Description
--- --------- ------ -----------
LOCATION - 0000 XX XXXX 0000, XXXXXXXXXXX, XX 00000
1 TELESTAR BASE UNIT
4 T1 LINE CARDS
1 ISDN CARD
4 STANDARD I/O MODULES
4 LC SW LICENSE FEE
2 MFDSP CARD
2 VRAS SIMM MODULE
4 C31 MODULE
1 ISDN S/W FEATURE
1 REDUNDANT PC VERSION
2 CRAFT WORKSTATIONS
THIS IS COUNTERPART NO. 2 OF 2 SERIALLY NUMBERED, MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER
UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY
BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1.
LESSOR: CLG, Inc. LESSEE: IWL Communications, Inc.
By: /s/ XXXXX X. XXX By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------- -----------------------------------
Name: Xxxxx X. Xxx Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------- -----------------------------------
Title: President and Chief Operating Officer Title: CFO
--------------------------------------- -----------------------------------
Date: 2/9/97 Date: 11/8/96
--------------------------------------- ------------------------------------
Page 1 of 1
[LOGO] CERTIFICATE OF DELIVERY AND ACCEPTANCE
#1
Lease Agreement #____________________
T.A. #5400110
---------- Supplement #1
Equipment Model Equipment Serial
Qty. Type Number Description Number
--- --------- ------ ----------- ------
LOCATION - 0000 XX XXXX 0000, XXXXXXXXXXX, XX 00000
1 TELESTAR BASE UNIT
4 T1 LINE CARDS
1 ISDN CARD
4 STANDARD I/O MODULES
4 LC SW LICENSE FEE
2 MFDSP CARD
2 VRAS SIMM MODULE
4 C31 MODULE
1 ISDN S/W FEATURE
1 REDUNDANT PC VERSION
2 CRAFT WORKSTATIONS
THIS IS COUNTERPART NO. 2 OF 2 SERIALLY NUMBERED, MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER
UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY
BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1.
Lease Term: 60 Months Stipulated Loss Value: $620,270.22
Total Monthly Rental: $11,446.81 + Tax Acceptance Date 12/15/96
(Specified by Lessor)
Security Deposit Equal To: $22,893.61 LESSOR Initials: EJL
-------------
This equipment and items listed above (the "Equipment") have been delivered,
inspected, found satisfactory and are accepted by Lessee for all purposes as
stated in the terms and conditions set forth in Lease Agreement #__________,
Dated 11/8/96, with the lease commencing for this attachment on the
acceptance date as specified by Lessor. The lease term commencement will be
the first day of the following month after the last acceptance date for all
rental Equipment on the above Supplement Number.
Upon execution by Lessee, the Equipment listed above will be included in the
above stated Lease Agreement and all terms and conditions of Lease Agreement
shall apply. The Lessee is committed to the above payment from the lease
rental commencement throughout the above stated lease term.
LESSOR: CLG, Inc. LESSEE: IWL Communications, Inc.
By: /s/ XXXXX X. XXX By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------- -----------------------------------
Name: Xxxxx X. Xxx Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------- -----------------------------------
Title: President and Chief Operating Officer Title: CFO
--------------------------------------- -----------------------------------
Date: 2/9/97 Date: 11/8/96
--------------------------------------- ------------------------------------
Page 1 of 1
[LOGO] SUPPLEMENT
#2
Lease Agreement # _______________ Dated: 11/8/96
T.A. #5400111
----------
Equipment Model Equipment
Qty. Type Number Description
--- --------- ------ -----------
LOCATION - 0000 XX XXXX 0000, XXXXXXXXXXX, XX 00000
1 SUPPORT AND MAINTENANCE FOR NEXUS AND TELESTAR BASE UNIT
THIS IS COUNTERPART NO. 2 OF 2 SERIALLY NUMBERED, MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER
UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY
BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1.
LESSOR: CLG, Inc. LESSEE: IWL Communications, Inc.
By: /s/ XXXXX X. XXX By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------- -----------------------------------
Name: Xxxxx X. Xxx Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------- -----------------------------------
Title: President and Chief Operating Officer Title: CFO
--------------------------------------- -----------------------------------
Date: 2/9/97 Date: 11/8/96
--------------------------------------- ------------------------------------
Page 1 of 1
[LOGO] CERTIFICATE OF DELIVERY AND ACCEPTANCE
#1
Lease Agreement #____________________
T.A. #5400111
---------- Supplement #2
Equipment Model Equipment Serial
Qty. Type Number Description Number
--- --------- ------ ----------- ------
LOCATION - 0000 XX XXXX 0000, XXXXXXXXXXX, XX 00000
1 SUPPORT AND MAINTENANCE FOR NEXUS AND TELESTAR BASE UNIT
THIS IS COUNTERPART NO. 2 OF 2 SERIALLY NUMBERED, MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER
UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY
BE CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1.
Lease Term: 24 Months Stipulated Loss Value: $56,435.50
Total Monthly Rental: $2,294.21 + Tax Acceptance Date 12/15/96
(Specified by Lessor)
Security Deposit Equal To: $4,588.42 LESSOR Initials: EJL
-------------
This equipment and items listed above (the "Equipment") have been delivered,
inspected, found satisfactory and are accepted by Lessee for all purposes as
stated in the terms and conditions set forth in Lease Agreement #__________,
Dated 11/8/96, with the lease commencing for this attachment on the
acceptance date as specified by Lessor. The lease term commencement will be
the first day of the following month after the last acceptance date for all
rental Equipment on the above stated Supplement Number.
Upon execution by Lessee, the Equipment listed above will be included in the
above stated Lease Agreement and all terms and conditions of Lease Agreement
shall apply. The Lessee is committed to the above payment from the lease
rental commencement throughout the above stated lease term.
LESSOR: CLG, Inc. LESSEE: IWL Communications, Inc.
By: /s/ XXXXX X. XXX By: /s/ XXXXXXX X. XXXXXXXX
--------------------------------------- -----------------------------------
Name: Xxxxx X. Xxx Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------- -----------------------------------
Title: President and Chief Operating Officer Title: CFO
--------------------------------------- -----------------------------------
Date: 2/9/97 Date: 11/8/96
--------------------------------------- ------------------------------------
