Lease No.: LEASE AGREEMENT
--------------------------------------------------------------------------------
VENDOR/SUPPLIER OF EQUIPMENT
NATIONAL DATACOMPUTER INC
NAME
CONTACT
000 XXXXXXXXX XXXXXXXX XXXXXXXX 0 XXXXXXXXX XX 00000 508-663-7677
ADDRESS CITY STATE ZIP PHONE
NOTE: VENDOR IS NOT AN AGENT OR REPRESENTATIVE OF THE LESSOR, AND IS NOT
AUTHORIZED TO MODIFY ANY OF THE TERMS OF THE LEASE
-----------------------------------------------------------------------------------------------------------------------
SCHEDULE OF PAYMENTS PAYABLE AT SIGNING OF LEASE (check one):
Term: Number of payments: 36 @ $3,117.00 per month* [ ] Security Deposit (see paragraphs 6 and 15) $
*Except as otherwise indicated: [ ] QUARTERLY X First and Last 0 Total Payment: $3,117.00
[ ] OTHER
(NOTE: APPLICABLE TAXES AND INSURANCE MAY BE ADDED; [ ] Other:
PARAGRAPHS 10 AND 12)
-----------------------------------------------------------------------------------------------------------------------
EQUIPMENT DESCRIPTION
Equipment Description Serial Numbers
--------------------- ---------------------
TWENTY-FIVE TRUCK MOUNT SYSTEMS W/PERIPHERALS 3527-0001 8853-0000
--------- ---------
2,194.90 922.10
$1.00 PURCHASE OPTION
[ ] Check here if separate equipment list is attached.
--------------------------------------------------------------------------------
EQUIPMENT LOCATION (IF OTHER THAN BELOW)
(Attach additional schedule if locations differ for each item of equipment.)
ADDRESS CITY STATE ZIP PHONE
--------------------------------------------------------------------------------
ACCEPTANCE OF LEASED EQUIPMENT
As Lessee, you acknowledge that the equipment covered by this Lease has been
completely and satisfactorily delivered, and after full inspection is accepted
for all purposes of the Lease. Your acceptance shall be deemed effective and
irrevocable forty-eight (48) hours after delivery of the Equipment if you do not
notify us of nonacceptance, or on the date you sign the Certificate of
Acknowledgment and acceptance of Leased Equipment, whichever is earlier.
--------------------------------------------------------------------------------
TERMS AND CONDITIONS WHICH ARE PART OF THIS LEASE ARE PRINTED ON THE FOLLOWING PAGES.
----------------------------------------------------------------------------------------------------------------------------
ACCEPTED BY LESSOR: GREEN TREE ACCEPTED BY LESSEE:
Vendor Services Corporation BLUE RHINO CORPORATION
FULL LEGAL NAME OF LESSEE
By___________________________________________________________
AUTHORIZED SIGNATURE TITLE FEDERAL TAX I.D. # OR SOCIAL SECURITY #
000 XXXXXXXXX XXXXX XXXXX 000-000-0000 000-000-0000
Date________________________________ BILLING XXXXXXX XXXXX # XXX #
XXXXXXX-XXXXX XX 00000
Green Tree Vendor Services Corporation CITY COUNTY STATE ZIP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000 Phone: (000) 000-0000 THE UNDERSIGNED HEREBY AGREES TO ALL OF THE TERMS
Xxxxxxxxxxx, XX 00000 Fax: (000) 000-0000 AND CONDITIONS AS SET FORTH ON BOTH SIDES OF THIS
LEASE AGREEMENT (AND ANY SCHEDULE TO THIS LEASE),
00 Xxxxx 00 Xxxxx Phone: (000) 000-0000 AND CERTIFIES THAT THE EQUIPMENT SHALL BE USED FOR
Xxxxxxx, XX 00000 Fax: (000) 000-0000 BUSINESS PURPOSES ONLY.
BY: Xxxx Xxxxxxxx 6/26/97
-------------------------------------------------------
AUTHORIZED SIGNATURE OF LESSEE DATE
Xxxx Xxxxxxxx Controller
-------------------------------------------------------
PRINT NAME OF SIGNER TITLE
----------------------------------------------------------------------------------------------------------------------------
Page 1 of 5 Lessee's Initials________
--------------------------------------------------------------------------------
PERSONAL GUARANTY
I hereby acknowledge that I am receiving a benefit from this lease,
and I unconditionally guarantee the prompt payment in full of all obligations of
the Lessee under this Lease. I further acknowledge that this lease may be
amended from time to time by execution of lease schedules and that by signing
below I represent and acknowledge that a "continuing guaranty" is being given,
which shall be in full force and effect and apply to all such future schedules.
This guaranty shall remain and continue in full force and effect as to any
renewal, modification or extension of the lease and shall further apply to any
additional leases entered into between the lessor and the lessee from the date
of this guaranty forward, whether or not I have received notice of or consented
to such renewal, modification, extension or additional leases. I understand
that the lessor in entering into such renewals, modifications, extensions or
additional lease transactions, shall be relying upon my guarantee herein. I
also agree that you, the lessor may make other arrangements with the lessee,
such as releasing or compromising the lessee's obligations, and I will still be
responsible for those payments and other obligations. You do not have to notify
me if the Lessee fails to meet all of its obligations under the lease. If the
lessee fails to meet all of its obligations, I will immediately pay in
accordance with the default provisions of the Lease all sums due under the
original terms of the Lease, and I will perform all other obligations of the
Lessee under the Lease, and I agree that you do not have to proceed first
against the Lessee or exhaust other collateral before I am required to satisfy
my obligations under this guaranty. I will reimburse you for all the expenses
you incur in enforcing any of your rights against the Lessee or me, including
attorneys fees.
If this is a corporate or partnership guaranty, it is authorized by
the Board of Directors of the guaranteeing corporation, or by the partnership
agreement. THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MINNESOTA. I AGREE AND CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE
COURTS LOCATED IN HENNEPIN COUNTY, MINNESOTA, FOR THE DETERMINATION OF DISPUTES
BETWEEN US. I agree and consent that you may serve me by registered or
certified mail, which will be sufficient to obtain jurisdiction. No payment by
me under this guaranty shall entitle me, by subrogation or otherwise, to any
payment from the Lessee or out of the property or other assets of the Lessee. I
WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN US.
X_________________________________ X___________________________________________
WITNESS SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN DATED
INDIVIDUAL (No Titles) N/A
X_________________________________ X___________________________________________
WITNESS SIGNATURE DATED PERSONAL GUARANTOR SIGNATURE, AN DATED
INDIVIDUAL (No Titles) N/A
--------------------------------------------------------------------------------
Dear Lessee: We have written this Lease Agreement in plain language
because we want you to fully understand its terms. Please read your copy of
this Lease carefully and feel free to ask us any questions you may have about
it. We use the words YOU and YOUR to mean the Lessee indicated below. The
words WE, US, and OUR refer to the Lessor indicated below.
1. LEASE AGREEMENT: You agree to lease from us and we agree to lease to
you, the equipment listed above or on any schedule to this Lease. You
unconditionally promise to pay us the sum of all of the rental payments
indicated above or on any schedule. The amount of each rental payment shown
above or on any schedule is based on our estimated total cost of the equipment
including, if applicable, installation costs. The rental payment shall be
raised or lowered, in a proportionate manner, if the actual total cost of the
equipment is greater than or less than the estimate, and you authorize us to
adjust the rental payment by up to ten percent (10%) if it is necessary. You
authorize us to insert in this Lease any serial numbers and other identification
data about the equipment, as well as any other omitted factual matters.
2. UCC-ARTICLE 2A: You agree that this Lease is a "Finance Lease" under
Article 2A of the Uniform Commercial Code ("UCC"). You acknowledge that: (a)
we did not select, manufacture or supply the equipment, but at your request we
have purchased the equipment for lease to you; and (b) based on your own
judgment, you have selected the vendor or supplier of the equipment (indicated
above), and you have selected the particular equipment that you are leasing from
us. You agree that you have approved any purchase or supply contract between us
and the vendor before signing this Lease; or, if you have entered into a
purchase contract for the equipment, you agree to assign it to us effective when
we pay for the equipment. You may have rights under the supply or purchase
contracts, and you may contact the supplier for a description of those rights or
any warranties. To the extent permitted by applicable law, you waive any and
all rights and remedies conferred upon you under UCC Sections 2A-303 and 2A-508
through 522.
3. NO WARRANTIES: We are leasing the equipment to you "AS IS". WE MAKE
NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ORDINARY USE IN
CONNECTION WITH THIS LEASE. YOU UNDERSTAND AND AGREE THAT WE ARE INDEPENDENT
FROM THE VENDOR OR SUPPLIER OF THE EQUIPMENT, AND THAT NEITHER THE VENDOR NOR
ANY OTHER PERSON IS OUR AGENT, NOR ARE THEY AUTHORIZED TO WAIVE OR CHANGE ANY
TERM OR CONDITION OF THIS LEASE. YOU AGREE THAT NO REPRESENTATION, GUARANTEE OR
WARRANTY BY THE VENDOR OR OTHER PERSON IS BINDING ON US. So long as you are not
in default under any of the terms of this Lease, we transfer to you any
warranties made to us, as the owner of the equipment, by the Vendor,
manufacturer or supplier. YOU AGREE THAT ANY BREACH BY THE VENDOR OR OTHER
PERSON WILL NOT RELIEVE OR EXCUSE YOUR OBLIGATIONS TO US. Regardless of cause,
you will not assert any claim whatsoever against us for loss of profits you
expected to make or any other direct, consequential, special or indirect
damages. If you have entered into a maintenance agreement for the equipment, and
the cost of the maintenance is included in your monthly payments, you
acknowledge that we are not responsible for any service, repairs, or maintenance
of the equipment, and that we are not a party to the maintenance agreement; if
you have a dispute regarding maintenance or service, you will nevertheless
continue to pay us all payments due under this Lease and any schedules to this
Lease.
4. NON-CANCELABLE LEASE: THIS LEASE CANNOT BE CANCELLED BY YOU FOR ANY
REASON.
Page 2 of 5 Lessee's Initials ______
5. DELIVERY OF EQUIPMENT: You request that we arrange delivery to you at
your expense. If the equipment has not been delivered, installed, and accepted
by you within forty-five (45) days from the date that we ordered the equipment,
we may on ten (10) days written notice to you terminate the Lease and our
obligations to you.
6. TERM OF LEASE, ADMINISTRATIVE FEE: The Lease term will start on the
date that any equipment is delivered to you or your agent (the "Commencement
Date") and will continue until you have met all of your obligations under the
Lease. Advance rentals are not refundable if the Lease does not begin for any
reason. The payments of rent are payable periodically in advance as stated above
or on any schedule to this Lease. The first payment is due on the Commencement
Date. You will be notified in writing if we change your first payment date, and
we may charge you interim rent for any adjustment period. Thereafter, your
payments will be due on the same day of each month (or other period indicated
above). All payments will be made to us at our address on this Lease, or at the
address which we designate in writing. We will apply your payments to late
charges, taxes, fees and lease payments due and payable, at our discretion. YOUR
OBLIGATION TO PAY RENTALS TO US IS UNCONDITIONAL AND IS NOT SUBJECT TO ANY
REDUCTION, SET-OFF, DEFENSE, OR COUNTERCLAIM FOR ANY REASON WHATSOEVER. If you
paid a security deposit to us, it will be held by us to secure your performance
under this Lease, and will be applied or returned pursuant to paragraph 15. On
the Commencement Date of this Lease, you shall pay to us a one-time
administrative fee, not to exceed $250.
7. ASSIGNMENT: You may not sell, transfer, assign or sublease the
equipment without our prior written approval. We may sell, assign or transfer
this Lease and ownership of the equipment without notifying you; and you agree
that if we do, the new lessor will have the same rights and benefits that we now
have, and will not have to perform any of our obligations. You agree that the
rights of the new lessor will not be subject to any claims, defenses or setoffs
that you may have against us. However, any such assignment, sale, or transfer of
this Lease or the equipment will not relieve us of our obligations to you under
this Lease.
8. OWNERSHIP, RIGHTS, AND QUIET ENJOYMENT: Except with regard to any
computer software which may be covered by this Lease, you agree that we are the
owner of and have title to the equipment. If the Equipment includes computer
software, with respect to that software, you acknowledge and agree that (a) we
do not have, have not had, nor will in the future have any title to or ownership
in the software; and (b) you have executed or will execute a separate Software
License Agreement with the Licensor of the software, and we are not a party to
and shall have no responsibilities whatsoever in regards to that Software
License Agreement. You agree, at your expense, to protect and defend our title
or other rights to the equipment. Further, you agree that you will at all times
keep the equipment free from any legal process or lien whatsoever, and you shall
give us immediate notice if any legal process or lien is asserted or made
against the equipment. You shall have the right to quiet use and enjoyment of
the equipment for the term of this Lease, provided you are not in default.
9. CARE, USE AND LOCATION; LOSS OF EQUIPMENT: You are responsible for
installing and keeping the equipment in good working order and repair. You will
keep and use the equipment only at your address shown above, or on any attached
schedule, and you will only use it for business or commercial purposes and in
compliance with all applicable laws. You will not make any alterations to the
equipment without our prior written consent, nor will you permanently attach the
equipment to your real estate. At the end of the Lease term, you will return the
equipment to us at your expense. You are responsible for protecting the
equipment from damage, except for ordinary wear and tear, and from any other
kind of loss while you have the equipment or while it is being delivered to you.
In the event the equipment is lost or damaged, so long as you are not in default
under this Lease, then you shall have the option to: (a) repair or replace the
equipment, or (b) pay to us both the unpaid balance of the remaining rent under
the Lease and our residual interest in the equipment, present valued using a
discount rate of six (6%) percent per year (or other rate required by law).
10. TAXES AND FEES: You agree to pay when due all taxes, fines and
penalties relating to this Lease. You also agree that we may estimate the yearly
personal property taxes that will be due for the equipment, and you agree to pay
us the estimated taxes when we request payment. At our election, we may xxxx you
and you must pay us a monthly personal property tax fee of up to three hundred
and thirteen thousandths of one percent (0.313%) of the original equipment cost
to reimburse us for the taxes we are paying and for our costs for preparing,
reviewing and filing the returns. If we pay any taxes, fines or penalties for
you, you agree to reimburse us on demand, and your payment will be based on the
full amount of such taxes, without regard to any discounts we may obtain due to
early payment or otherwise. You also agree that we have the right to sign your
name to any document for the purpose of such filing, so long as the filing does
not interfere with your right to use the equipment.
11. INDEMNITY: We are not responsible for any injuries or losses to you or
any other person caused by the installation or use of the equipment. You agree
to reimburse us for and to defend us against any claims for such losses or
injuries, including those arising out of negligence, tort or strict liability
claims. This indemnity shall continue even after the term of this Lease has
expired.
12. INSURANCE: You agree that we have the right (but not the obligation)
to place, at your expense, property insurance against loss, theft, damage or
destruction of the equipment, for up to the full replacement value, unless you
provide us with written evidence of your own insurance coverage which is
satisfactory to us and which identifies us as the loss payee. You also agree to
provide and maintain public liability insurance naming us as an additional
insured. If we place insurance for you, you agree to pay the expenses for that
insurance in equal installments allocated to each rental payment (plus interest
on such amount at 1.5% per month, or the highest rate permitted by law); the
expenses shall include the full premium for the insurance and service fees which
we or our designee customarily charge for placing insurance. If any insurance
proceeds are paid, you shall apply the insurance proceeds toward your total
obligations under this Lease; or, if you are not in default under this Lease or
any other obligation to us, and we otherwise consent in writing, you shall have
the option to use the insurance proceeds to repair or replace the equipment. If
we place insurance for you, you shall cooperate with our insurance agent in
connection with the placement and the processing of any claims. Nothing in this
Lease shall create any insurance relationship of any type whatsoever between us
and any other person or party. You agree that we are not required to secure or
maintain in force any insurance, in any amounts or upon any specific terms and
conditions. We reserve the right to terminate any insurance coverage which we
may arrange, and we may allow any such insurance coverage to lapse without
having any liability to you. You hereby appoint us as your attorney-in-fact to
make claims for, receive payment of, and execute and endorse all documents,
checks, or drafts for loss or damage under any insurance policies.
13. DEFAULT AND REMEDIES: If you do not pay rent when due, or if you break
any of your promises under this Lease or under any other agreement with us, or
you become insolvent, assign your assets for the benefit of your creditors, or
enter (voluntarily or involuntarily) into a bankruptcy proceeding, you will be
in default. If your default is caused by your failure to make any payment when
due, we can require that you return the equipment to us and pay to us the
remaining balance of all of the rental payments due under this Lease, present
valued using a six (6%) percent per year discount rate. If you fail to return
the equipment to us, in addition we can also require that you pay to us our
residual interest in the equipment, present valued as noted above. You also
agree to pay us interest on all sums due us from the date of default until paid
at the rate of one and one-half (1-1/2%) percent per month, but only to the
extent permitted by law. If your default is caused by your
Page 3 of 5
breaking any of your other promises under this Lease, we shall be entitled to
recover from you all damages caused by that default. We can also use any of the
remedies available to us under the Uniform Commercial Code or any other law. If
we refer this Lease to an attorney for enforcement or collection, you agree to
pay our reasonable attorney's fees of at least 20% of the remaining balance of
all the rental payments, plus our actual costs. If we have to take possession of
the equipment, you agree to pay the cost of repossession, storing, shipping,
repairing and selling the equipment. Although you agree that we are not
obligated to do so, if we decide to sell the equipment, and we are able to sell
the equipment for a price that exceeds the sum of (a) our cost of repossession
and sale of the equipment and (b) the residual value of the equipment, present
valued as calculated above, then we shall give you a credit for the amount of
such excess. You agree that we do not have to notify you that we are selling the
equipment.
14. OTHER RIGHTS: You agree that any delay or failure to enforce our rights
under this Lease (or under any schedule(s) to this Lease or any other
agreements) shall not prevent us from enforcing any rights at a later time. Both
parties intend this Lease to be a valid and legal document, and agree that if
any part is determined to be unenforceable, all other parts will remain in full
force and effect. If this document is found not to be a Lease, then you grant us
a security interest in the equipment. You also give us the right to immediately
file, at your expense, any Uniform Commercial Code ("UCC") financing statements
or related filings, as well as the right to sign your name to any such filings
that we make.
15. REDELIVERY OF EQUIPMENT; RENEWAL: You shall provide us with written
notice, by certified mail, sent not less than 90 days nor more than 150 days
prior to the expiration of the Lease term, of your intention either to exercise
any option to purchase the equipment (if we grant you such an option) or to
return the equipment to us at the end of the Lease term. For this notice to be
effective, you must not be in default of any of your obligations to us. If you
elect to return the equipment to us at the expiration of the original or any
renewal term of the Lease, you shall disconnect, properly package for shipping,
and return the equipment, to us, insured and freight prepaid by you in good
repair, condition and working order to a location designated by us. Upon your
purchase or return of the equipment, we may charge you a title transfer or lease
termination fee of up to $250.00 If we have not received written notice from you
of your intention to purchase or return the equipment, this Lease will
automatically renew for succeeding one-year periods, commencing at the
expiration of the original Lease term. If this Lease is renewed, the advance
payment of the last month's lease payment (as set forth on the reverse side)
shall apply to the last month of the renewal period, and shall not apply to the
last month of the initial term. Any security deposit held by us shall continue
to be held to secure your performance for the renewal period. If you
specifically request in writing, and provided you have fulfilled all of your
obligations to us (including, if you elect, the return of the equipment in good
repair, condition and working order), we will refund your security deposit to
you without interest within 90 days after the end of the original or renewed
lease term (or as otherwise required by applicable law), or at your direction we
may apply the security deposit toward your purchase of the equipment (if we
grant you a purchase option).
16. LATE CHARGE: If any part of a payment is not made you when due, you
agree to pay us a late charge of ten (10%) percent of each such late payment to
cover our additional internal collection overhead (to the extent permitted by
law). You agree to pay us the late charge not later than one month following the
date that the original payment was due.
17. ENTIRE AGREEMENT; CHANGES: This Lease contains the entire agreement
between you and us, and it may not be altered, amended, modified, terminated or
otherwise changed except in writing and signed both by you and us. A limiting
endorsement on a check or other form of payment will not be effective to modify
your obligations or any of the other terms and conditions of this Lease, and we
may apply any payments received without being bound by such limiting
endorsements.
18. COMPLIANCE; NOTICES: In the event you fail to comply with any part of
this Lease, we can, but we do not have to, take any action necessary to effect
your compliance upon ten (10) days prior written notice to you. If we are
required to pay any amount to obtain your compliance, the amount we pay plus all
of our expenses in causing your compliance, shall become additional rent and
shall be paid by you at the time of the next due rental payment. If any notices
are required under this Lease, they shall be sufficient if given personally or
mailed to the address set forth in this Lease by certified or registered mail,
postage prepaid. This Lease is for the benefit of and is binding upon you and
your personal representatives, successors and assigns.
19. CHOICE OF LAW; JURISDICTION: YOU AND WE AGREE THAT THIS LEASE SHALL BE
BINDING WHEN ACCEPTED IN WRITING BY US AT OUR OFFICES, AND SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF MINNESOTA. YOU AND WE EACH CONSENT TO THE JURISDICTION
OF THE FEDERAL AND STATE COURTS LOCATED IN HENNEPIN COUNTY, MINNESOTA, FOR THE
DETERMINATION OF ALL DISPUTES ARISING UNDER THIS LEASE. However, you agree that
we will have the right to commence any action in any court having the proper
jurisdiction for that action. You agree and consent that we may serve you by
registered or certified mail, which shall be sufficient to obtain jurisdiction.
YOU AND WE WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN US.
20. REPRESENTATIONS AND COVENANTS OF LESSEE: You represent that all
financial and other information furnished to us was, at the time of delivery,
true and correct. During the term of the Lease, you shall provide us with such
interim or annual financial statements as we may request.
[LOGO OF GREENTREE]
GREEN TREE Vendor Services Corporation
--------------------------------------------------------------------------------
CERTIFICATE OF ACKNOWLEDGMENT AND
ACCEPTANCE OF LEASE EQUIPMENT
Lessee hereby acknowledges receipt of the equipment described in its Lease with
Lessor (the "Equipment") and accepts the Equipment after full inspection
thereof and to the best of his knowledge is satisfactory for all purposes of the
Lease only. Lessee acknowledges that Lessor has fully and satisfactorily
performed all covenants and conditions to be performed by Lessor.
6/1/97 BLUE RHINO CORPORATION
---------------------- LESSEE
DATE OF DELIVERY
6/27/97 By: /s/ Xxxx Xxxxxxxx
---------------------- ----------------------------------
DATE OF LEASE SIGNATURE
Controller
----------------------
TITLE
Xxxx Xxxxxxxx
----------------------
PRINT NAME OF SIGNER
