LEASE AGREEMENT
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LESSEE: Netgrocer, Inc. LEASE NO.: NET-002
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000 Xxxxx Xxxxxx Located: 000 Xxxxxxx Xxxxxx--00xx Xxxxx
Xxx Xxxx, XX 00000
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Xxx Xxxx, XX 00000
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A. MONTHLY RENT PAYMENT: $933.00 B. TERM OF LEASE: 24 Months
------------------------ -------------------------
C. COMMENCEMENT DATE: 3/1/98 D. ADVANCE RENTALS: None
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QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER
SEE ATTACHMENT "A"
COST $
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1. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the
personal property described above and in any schedule signed by the parties
and made a part hereof (herein called "Equipment").
2. The term of this lease shall be the number of months, stated in B,
commencing on the date stated in C. Lessee authorizes Lessor to insert said
commencement date, provided such a date shall not be earlier than the date
of delivery to Lessee of the Equipment or a substantial part thereof.
Lessee or Lessor may terminate any Equipment Schedule effective at the
expiration of the Initial Term thereof, by giving the other party not less
than 90 days prior written notice. If such notice is not given at least 90
days prior to such expiration then the term shall be automatically extended
for an additional period, expiring 90 days after receipt of terminating
party on the same term and conditions then in effect. Any such termination
shall be effective only on the last day on the Initial Term or any such
renewal or extension and no notice of termination may be revoked without
the prior written consent of the other party.
3. The total rent for the term is equal to the monthly rent payment stated in
A multiplied by number of months stated in B. Lessee agrees to pay the
total rent in monthly installments, in advance, each in the amount stated
in A, commencing on the date stated in C and continuing on the same day of
each month thereafter. Payment shall be made to Lessor at its above-stated
address, or as it shall otherwise designate in writing.
4. Lessor makes NO WARRANTIES as to the Equipment and none shall be implied,
including without limitation, its condition, merchantability or fitness for
a particular purpose. Lessee agrees to look solely to the manufacturer,
Seller or carrier of the Equipment for any claim arising from any defect,
breach of warranty, failure or delay in delivery, misdelivery or inability
to use the Equipment for any reason whatsoever and Lessee's obligations to
Lessor hereunder shall not in any manner be affected thereby. Lessor shall
not be liable for any loss, damage or expense caused directly or indirectly
by any item of Equipment, the use, maintenance, repair or servicing
thereof, by any delay or failure to provide same, by any interruption of
service or loss of use, or for any loss of business or damage however
caused.
5. Lessee has selected and requested Lessor to order the Equipment from the
above named Seller. Lessor agrees to order same from said Seller but shall
not be liable for specific performance or damages if for any reason the
Seller delays or fails to fill the order. Lessor has no obligation to
install Equipment.
1
6. Lessee shall accept the Equipment upon its delivery and authorizes Lessor
to insert herein the serial numbers and any additional description of the
items of Equipment so delivered. Unless Lessee gives Lessor and Seller
written notice of each defect or other proper objection to any item of
Equipment within five (5) business days after delivery thereof, it shall be
conclusively presumed that the Equipment was duly delivered and
unconditionally accepted by Lessee.
7. Lessee shall keep the Equipment at the above-stated address and shall not
remove any of the same therefrom without Lessor's prior written consent.
8. Lessee shall be entitled to unlimited usage of the Equipment without extra
charge by Lessor. So long as Lessee is not in default hereunder, Lessor
shall not interfere with Lessee's quiet enjoyment, use or possession of the
Equipment during the term of this Lease. Lessee shall use the Equipment
within manufacturer's constraint and in a reasonable manner and shall, at
its expense, keep the Equipment in good repair and comply with all laws,
ordinances, regulations or requirements of any governmental authority,
official, board or department relating to its installation possession, use
or maintenance.
9. The Equipment is, and shall at all times remain, the property of Lessor and
Lessee shall have no right, title or interest therein or thereto except as
set forth herein. Upon Lessor's request, Lessee shall affix and keep in a
prominent place on each item of Equipment labels, plates or other markings
indicating that the Equipment is owned by Lessor.
10. Lessee shall not make any modifications, alterations, additions or
improvements to the Equipment without Lessor's prior written consent. All
such additions and improvements shall belong to Lessor. The Equipment shall
remain personal property regardless of its affixation to any realty. Lessor
shall have the right to enter upon reasonable notice in writing, Lessee's
premises during business hours to inspect the Equipment and observe its
use.
11. Lessee shall bear the entire risk of loss, theft, destruction of or damage
to the Equipment or any part thereof from any cause whatsoever and shall
not be relieved of the obligations to pay the total rent or any other
obligations hereunder because of any such occurrence. In the event of
damage to any item of Equipment Lessee, at its sole expense, shall
immediately place the same in good repair. If Lessor determines that any
item of Equipment is lost, stolen, destroyed or damaged beyond repair,
Lessee, at its sole expense and at the option of Lessor, shall to the
extent not covered by insurance (a) replace the same with like equipment in
good repair, or (b) pay Lessor in cash all amounts then due hereunder and
the unpaid balance of the total rent for the unexpired term hereof
attributable to said item. Upon Lessor's receipt of such payment, Lessee
shall be entitled to Lessor's interest in said item and to possession of
same at its then location, as is, and without recourse to Lessor.
12. Lessee shall, at its expense, keep the Equipment fully insured in favor of
Lessor against loss, fire, theft, damage or destruction from any cause
whatever in an amount not less than the total rent thereunder or the full
replacement cost of the Equipment, whichever is greater, and such
additional insurance against injury, loss or damage to persons or property
arising out of the use or operation of the Equipment as is customarily
maintained by the owners of the like property, with companies satisfactory
to Lessor under policies providing for 10 days notice of cancellation to
Lessor. Lessor, shall apply any proceeds of said insurance to replace or
repair the Equipment and/or to Lessee's obligations hereunder. If Lessee
shall fail to provide said insurance or, within ten (10) days after
Lessor's request therefor, shall fail to deliver the policies or
certificates thereof to Lessor, then Lessor, at its option, shall have the
right to procure such insurance and to add the cost thereof to the rent
payment next becoming due which Lessee agrees to pay as additional rent.
13. Lessee covenants and agrees to keep the Equipment free and clear of all
levies, liens and encumbrances other than those attributed to lessor or
lessor's lenders and to pay all charges, taxes and fees which may now or
hereafter be imposed upon the ownership, leasing, rental, sale, purchase,
possession or use of the Equipment except taxes on or measured by Lessor's
income. If any of same shall remain unpaid, when due, Lessor may pay same
and add such payment to the rent payment next becoming due as additional
rent.
14. Lessee agrees to indemnify and save Lessor harmless from any and all
claims, actions, proceedings, expenses, damages and liabilities, including
attorneys' fees, arising out of or in any manner pertaining to the
Equipment or this lease including, without limitation, the ownership,
selection, possession, purchase, deliver, installation, leasing, operation,
use, control, maintenance and return of the Equipment and the recovery of
claims under insurance policies thereon.
15. Lessee shall not assign, pledge, mortgage or otherwise transfer or encumber
any of its rights under this lease or in the Equipment or any part thereof
nor sublet any part thereof, nor permit its use by anyone other than Lessee
and its regular employees, without Lessor's prior written consent. Any such
purported transfer assignment or other action without Lessor's written
consent shall be void. Lessor may, without notice, transfer or assign this
lease or any interest herein and may mortgage, encumber or transfer any of
its rights or interest in and to the Equipment or any part thereof and,
without limitation, each assignee, transferee and mortgage shall have the
right to transfer or assign its interest. Notice would be given after any
such transfer or assignment. Each such assignee, transferee and mortgagee
shall have all of the rights but none of the obligations of Lessor under
this lease and Lessee shall not assert against any of them any defense,
counterclaim or set-off that Lessee may have against Lessor.
16. If Lessee fails to make any payment when due hereunder, or under any other
lease or agreement with Lessor independent of this lease, heretofore or
hereafter made, or breaches any warranty contained herein, or defaults in
performance of any other obligation on its part to be performed and such
default continues for five (5) days after Lessor gives notice thereof to
Lessee, or if Lessee becomes insolvent or makes an assignment for the
benefit of creditors or if any bankruptcy, receivership, reorganization or
insolvency proceedings shall be commenced by or against Lessee, or if any
attachment or levy is made against any of Lessee's property, then, at
Lessor's option, the entire unpaid total rent for the balance of the term
hereof shall be at once due and payable and Lessor may, without demand or
legal process, terminate this lease and enter upon the premises where the
Equipment is located, take possession of and remove same, and exercise any
one or more of the following rights and remedies, without liability to
Lessee therefor and without affecting Lessee's obligations hereunder; (i)
sell, lease or otherwise dispose of the Equipment or any part thereof at
one or more public or private sales, leases or other dispositions, at
wholesale or retail, for such consideration, on such terms, for cash or on
credit, as Lessor may deem advisable, on at least ten (10) days notice to
Lessee of any public sale or of the time after which a private sale, lease
or other disposition may be made (which notice Lessee acknowledges is
reasonable); or (ii) retain the Equipment or any part thereof, crediting
Lessee with the reasonable value thereof; or (iii) pursue any other remedy
granted by any existing or future document executed by Lessee or by law. At
any public sale, Lessor may be the purchaser. Lessee agrees to pay all
Lessor's expenses, including but not limited to the costs of repossessing,
storing, repairing and preparing Equipment for sale or lease, commissions
payable in connection with any sale or lease, and reasonable attorney's
fees if an attorney shall be consulted. The net proceeds realized from any
such sale, lease or another disposition or the exercise of any other
remedy, after deducting all expenses, shall be applied toward payment of
the unpaid balance then due Lessor hereunder, Lessee to remain liable for
any deficiency. Any
2
amount due Lessor under this paragraph shall be deemed liquidated damages
for the breach hereof and not a penalty. All rights and remedies of Lessor
shall be cumulative and not alternative. Lessor's failure to exercise or
delay in exercising any right or remedy shall not be construed as a waiver
thereof, nor shall a waiver on one occasion be construed to bar the
exercise of any right or remedy on a future occasion.
17. Lessee agrees to pay a late charge of 1 1/2% per month on any rent
installation in default ten (10) days or more not theretofore accelerated.
18. Lessee warrants that the application, statements and credit or financial
information submitted by it to Lessor are true and correct and made to
induce Lessor to enter into this lease and to order the Equipment from
Seller.
19. Upon expiration or termination of this lease and any renewal hereof, Lessee
shall, at its expense, return the Equipment in the same condition as
received, reasonable wear and tear excepted, by delivering same to Lessor
or to a place designated by Lessor, unless Lessor shall elect to abandon
all or part of the Equipment.
20. Lessee hereby waives any right of counterclaim or set-off in any action
involving or arising out of this lease and the parties hereto waive the
right to a jury trial.
21. Any notice to a party hereunder shall be sufficiently given if mailed to
said party by certified mail, return receipt requested, at its address set
forth herein or such other address as either may designate for itself in
such notice to the other.
22. Whenever the sense of this agreement requires, words in the singular shall
be deemed to include the plural, singular. If more than one Lessee is named
herein, the liability of each shall be joint and several.
23. This agreement constitutes the entire mutual understanding of the parties
regarding the within subject matter and may not be modified except in
writing, signed by the party against whom such modification is asserted.
24. Lessee hereby authorizes Lessor, at its option, to file a financing
statement covering the Equipment signed only by Lessor, and agrees to pay
Lessor the actual fee for such filing.
25. This lease shall be construed under the laws of the State of Nevada and
shall not become effective until accepted by Lessor at its above office and
upon such acceptance shall, subject to Paragraph 15 hereof, inure to and
bind the parties, their successors, legal representatives and assigns. No
provision hereof which may be construed as unenforceable shall in any way
invalidate any other provision hereof, all of which shall remain in full
force and effect.
ACCEPTED: DATE: 2/27/98 LESSEE: Netgrocer, Inc.
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BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx Xxxxxxx
President & CEO Chief Operating Officer
3
[LOGO]
LEASE AGREEMENT
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LESSEE: Netgrocer, Inc. LEASE NO.: NET-002
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000 Xxxxx Xxxxxx Located: 000 Xxxxxxx Xxxxxx--00xx Xxxxx
Xxx Xxxx, XX 00000
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Xxx Xxxx, XX 00000
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PURCHASE ORDER
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QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER
SEE ATTACHMENT "A"
COST $
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TERMS AND CONDITIONS
1. Seller shall bear the entire risk of loss or damage until the equipment is
delivered and accepted by the Lessee at the location specified hereon.
2. This order shall be subject to acceptance of the equipment by Buyer and
Lessee, either of whom shall have the right to reject and return all or any
part thereof to Seller, at Seller's expense, if same is not in compliance
herewith, in which event Buyer may cancel all or any part hereof.
3. Buyer shall be under no obligation to Seller until Buyer shall have
received Lessee's acknowledgment in writing that the Equipment has been
delivered, and assembled or installed if this order so requires, in
satisfactory working condition nor if Lessee become insolvent before
delivery or is unable to take delivery for any reason beyond its control.
4. All warranties and representations made by Seller to Buyer or Lessee shall
be enforceable by Buyer or by Lessee in its own name. Without limiting the
foregoing Seller expressly represents and warrants to Buyer and Lessee that
the Equipment is new unless otherwise stated hereon; will be merchantable,
of good material and workmanship, fit for the purpose intended and free
from any defects; will have been produced, sold, transported, delivered,
assembled and installed in compliance with all applicable law, ordinances
and regulations; the sale or use thereof will not infringe any patent,
trademark or copyright; that this order has been approved and any other
documents reasonably required by Buyer in connection herewith will be
executed by a duly authorized representative of Lessee.
5. Seller agrees that it will indemnify, defend, protect and save harmless
Buyer, Lessee and any user of the equipment from and against all suits,
damages, claims and demands, including attorneys' fees, arising out of
performance of this contract, any failure of the equipment or any part
thereof, injuries to persons or property caused by defects therein, actual
or alleged infringement of any patent trademark or copyright by reason of
its sale or use, and any other cause whatsoever. Buyer shall give Seller
reasonable written notice of any such claim presented to Buyer.
6. Seller shall not assign any right or interest in this order nor delegate
any obligation hereunder without the written consent of Buyer. Any such
attempted assignment or delegation shall be void.
4
7. This order is given on Seller's assurance and representation that Lessee
has selected the Equipment described herein and will accept same upon
delivery and that all signatures of Lessee in connection herewith shall be
genuine and duly authorized.
8. All captions and heading hereon are part of this Purchase Order.
9. Subject to all of the terms and conditions hereof, Buyer will pay the Total
Price specified hereon, less discount provided in Seller's invoice.
10. No local, general or trade custom or usage or course of prior dealings
between the parties shall be relevant to supplement or explain any term
used herein.
11. This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement thereof. No variation
of any of the terms and conditions herein shall be effective without Buyers
written consent, irrespective of the wording of Seller's acceptance.
This order is given subject to the term and conditions set forth above. Your
compliance with this order shall be deemed an acceptance of all the terms and
conditions set forth above.
DATE:
-----------------------------------
SELLER: Dell Direct Sales LESSEE: Netgrocer, Inc.
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BY: BY: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx Xxxxxxx
Chief Operating Officer
5
ATTACHMENT "A"
NET-002
Located at: 000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
QTY DESCRIPTION
(3) 220-0007 Dell PowerEdge 2200 Base, 233 MHz Processor with 512K Cache
(3) 310-0016 Logitec System Mouse, w/Disks Not Factory Installed
(3) 310-7002 Silitek Quiet Key, 104 Key Keyboard, Factory Installed
(3) 311-0246 Dell PowerEdge 2200, 233 MHz, 512K, Second Processor, Single, Factory Installed
(3) 313-0158 12/24X SCSI CD ROM, for Dell PowerEdge Servers, Factory Install
(3) 320-3316 Monitor Option-None
(3) 340-0045 Hard Drive Configuration for Dell PowerEdge 2100 Factory Install
(3) 340-0081 1.44MB FloppyDrive for Dell PowerEdge 2200, Factory Install
(3) 365-1234 ReadyWare Installation Fee per System
(3) 430-0061 3COM 3C905 10/100 Ethernet, PCI Adapter, Twisted Pair Only
(3) 430-2184 Microsoft NTS 4.0 on CD, 10 Client Access Licenses, OEM Packaging, US Version Non-
Factory Install
(3) 900-1700 SelectCare, Initial Year, Next Business Day On-Site Service Contract, DEC
(3) 900-1702 SelectCare, 2 Years Extended, Next Business Day On-Site Service Contract, DEC
6
[LOGO]
LEASE AGREEMENT
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LESSEE: Netgrocer, Inc. LEASE NO.: NET-002
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000 Xxxxx Xxxxxx Located: 000 Xxxxxxx Xxxxxx--00xx Xxxxx
Xxx Xxxx, XX 00000
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Xxx Xxxx, XX 00000
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DELIVERY AND ACCEPTANCE RECEIPT
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QUANTITY DESCRIPTION OF EQUIPMENT SERIAL NUMBER
SEE ATTACHMENT "A"
COST $
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In the event of conflict between this receipt and the original Lease, the terms
and conditions of this receipt shall govern.
TO: LEASING EDGE CORPORATION
We hereby acknowledge that the delivery and installation in our premises of
the Equipment described above, leased from you, was satisfactorily completed on
the date stated below; that said Equipment complies in all respects with your
Purchase Order as approved by us: that you have made NO WARRANTIES, expressed
or implied, regarding said Equipment, and that our obligations to you and your
assigns as set forth in the lease of said Equipment are not subject to any
claims, counterclaims, defense or setoffs.
DATED: LESSEE: Netgrocer, Inc.
------------------------ ----------------------------------
BY:
----------------------------------
Xxxxxxx Xxxxxxx
Chief Operating Officer
512928
ATTACHMENT "A"
NET-002
Located at: 000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
QTY DESCRIPTION
(3) 220-0007 Dell PowerEdge 2200 Base, 233 MHz Processor with 512K Cache
(3) 310-0016 Logitec System Mouse, w/Disks Not Factory Installed
(3) 310-7002 Silitek Quiet Key, 104 Key Keyboard, Factory Installed
(3) 311-0246 Dell PowerEdge 2200, 233 MHz, 512K, Second Processor, Single, Factory Installed
(3) 313-0158 12/24X SCSI CD ROM, for Dell PowerEdge Servers, Factory Install
(3) 320-3316 Monitor Option-None
(3) 340-0045 Hard Drive Configuration for Dell PowerEdge 2100 Factory Install
(3) 340-0081 1.44MB FloppyDrive for Dell PowerEdge 2200, Factory Install
(3) 365-1234 ReadyWare Installation Fee per System
(3) 430-0061 3COM 3C905 10/100 Ethernet, PCI Adapter, Twisted Pair Only
(3) 430-2184 Microsoft NTS 4.0 on CD, 10 Client Access Licenses, OEM Packaging, US Version Non-
Factory Install
(3) 900-1700 SelectCare, Initial Year, Next Business Day On-Site Service Contract, DEC
(3) 900-1702 SelectCare, 2 Years Extended, Next Business Day On-Site Service Contract, DEC
8
ATTACHMENT "A"
NET-002
Located at: 000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
QTY DESCRIPTION
(3) 220-0007 Dell PowerEdge 2200 Base, 233 MHz Processor with 512K Cache
(3) 310-0016 Logitec System Mouse, w/Disks Not Factory Installed
(3) 310-7002 Silitek Quiet Key, 104 Key Keyboard, Factory Installed
(3) 311-0246 Dell PowerEdge 2200, 233 MHz, 512K, Second Processor, Single, Factory Installed
(3) 313-0158 12/24X SCSI CD ROM, for Dell PowerEdge Servers, Factory Install
(3) 320-3316 Monitor Option-None
(3) 340-0045 Hard Drive Configuration for Dell PowerEdge 2100 Factory Install
(3) 340-0081 1.44MB FloppyDrive for Dell PowerEdge 2200, Factory Install
(3) 365-1234 ReadyWare Installation Fee per System
(3) 430-0061 3COM 3C905 10/100 Ethernet, PCI Adapter, Twisted Pair Only
(3) 430-2184 Microsoft NTS 4.0 on CD, 10 Client Access Licenses, OEM Packaging, US Version Non-
Factory Install
(3) 900-1700 SelectCare, Initial Year, Next Business Day On-Site Service Contract, DEC
(3) 900-1702 SelectCare, 2 Years Extended, Next Business Day On-Site Service Contract, DEC
9
ATTACHMENT "A"
NET-002
Located at: 000 Xxxxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
QTY DESCRIPTION
(3) 220-0007 Dell PowerEdge 2200 Base, 233 MHz Processor with 512K Cache
(3) 310-0016 Logitec System Mouse, w/Disks Not Factory Installed
(3) 310-7002 Silitek Quiet Key, 104 Key Keyboard, Factory Installed
(3) 311-0246 Dell PowerEdge 2200, 233 MHz, 512K, Second Processor, Single, Factory Installed
(3) 313-0158 12/24X SCSI CD ROM, for Dell PowerEdge Servers, Factory Install
(3) 320-3316 Monitor Option-None
(3) 340-0045 Hard Drive Configuration for Dell PowerEdge 2100 Factory Install
(3) 340-0081 1.44MB FloppyDrive for Dell PowerEdge 2200, Factory Install
(3) 365-1234 ReadyWare Installation Fee per System
(3) 430-0061 3COM 3C905 10/100 Ethernet, PCI Adapter, Twisted Pair Only
(3) 430-2184 Microsoft NTS 4.0 on CD, 10 Client Access Licenses, OEM Packaging, US Version Non-
Factory Install
(3) 900-1700 SelectCare, Initial Year, Next Business Day On-Site Service Contract, DEC
(3) 900-1702 SelectCare, 2 Years Extended, Next Business Day On-Site Service Contract, DEC
10
HIGHLIGHTS OF LEASE
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LESSEE: Netgrocer, Inc. LESSOR: Leasing Edge Corporation
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000 Xxxxx Xxxxxx 0000 X. Xxxxx Xxxx Ste103
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Xxx Xxxx, XX 00000 Xxx Xxxxx, XX 00000
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DESCRIPTION OF EQUIPMENT: SEE ATTACHED "A"
-----------------------------------
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ORIGINAL TERM: 24 Months MONTHLY RENT: $933.00 SALES TAX: $79.31
-------------------- ---------------- ---------------
24 Payment Remaining To Be Paid To: Excel Bank, N.A.
------------------- ----------------------------------------------------------------
(ASSIGNEE)
First Payment Due: Excel Bank, N.A. DATE: 3/1/98
---------------------------------- -------------------------
(ASSIGNEE)
Services Included: Insurance Yes No Maintenance Yes No
------------ ---------- -------- --------
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The Undersigned Lessee and Lessor acknowledge and confirm the above Highlights
and Consent Agreement to: Excel Bank, N.A.
Lessee: Netgrocer, Inc. Lessor: Leasing Edge Corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------- ----------------------------
(Signature) (Signature)
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
----------------------------- ----------------------------
Title: Chief Operating Officer Title: President & CEO
---------------------------- ----------------------------
Date: March 6, 1998 Date: February 27, 1998
---------------------------- ----------------------------
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THIS IS THE ONLY COUNTERPART OF THE LEASE SCHEDULE AND IS THE "ORIGINAL"
COUNTERPART. POSSESSION OF THIS ORIGINAL IS REQUIRED TO PERFECT, BY POSSESSION,
A SECURITY INTEREST IN THIS LEASE SCHEDULE AS CHATTEL PAPER UNDER THE UCC.
11
CONSENT AND AGREEMENT
Dated: 02/27/98
Excel Bank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Reference is made to the Lease Agreement dated 02/27/98 and Equipment
Supplement No. NET-002 thereto (collectively the "Lease"), between LEASING EDGE
CORPORATION as lessor ("Lessor") and NETGROCER, INC. (the "Company"), as
lessee, the Security Agreement and Assignment of Lease Dated 03/01/98 (the
"Assignment") between Lessor (as the "Borrower") and Excel Bank, N.A. (the
"Lender").
The Company hereby acknowledges and consents to the assignment by Lessor to the
Lender, pursuant to the Assignment, of all of its right, title and interest in
and to the Lease and the equipment leased thereunder, as provided for
therein,including, but without limitation, (a) all amounts of rent payable
under the Lease (commencing with rental payment due on MARCH 1, 1998) insurance
proceeds, indemnity (but specifically excluding any tax indemnity pursuant to
provisions in the Lease or indemnity of expenses incurred by Lessor which
expenses Lessee is obligated to pay under the Lease), or other payments of any
kind by Lessee for or with respect to any personal property which is the
subject of the Lease, and all replacement parts, repairs, additions and
accessories incorporated therein and/or affixed thereto and/or substitutions
therefore (the "Equipment") and, (b) any and all payments or proceeds received
by Borrower both before and after the termination of the Lease with respect to
any item of Equipment as the result of the sale, lease or other disposition
thereof (all such amounts included in (a) and (b) hereinafter referred to as
the "Monies").
The Company agrees, notwithstanding anything to the contrary which may be
contained in the Lease, (i) to remit and deliver all Monies due or to become
due directly to the Lender at the above address without abatement, reduction,
counterclaim, setoff or offset of any nature whatsoever, (ii) to deliver copies
of all notices and other communications given or made by the Company pursuant
to the Lease to the Lender at the address shown above, (iii) that it will not
assert against the Lender any clam or defense it may now or hereafter have
against Lessor, and (iv) that it shall not amend, modify, or terminate the
Lease without the prior written consent of the Lender, and any such attempted
amendment, modification or termination of the Lease without such consent shall
be void. In addition, as of the date hereof, the Company agrees that it has no
defense to its obligations under the Lease.
The Company acknowledges and agrees that Lessor has assigned its rights in (but
not its obligations under) the Lease to the Lender, and that notwithstanding
any breach of the Lease by Lessor including but not limited to a failure by
Lessor to perform any obligations which may be set forth in the Lease, or the
bankruptcy of Lessor, or the breach of any other obligation of Lessor to the
Company (whether arising under the Lease or otherwise), the Company shall be
obligated to perform all the terms and conditions of the Lease, including all
of the Company's obligations with respect to maintenance of the Equipment (as
defined in the Lease) and the Company shall continue to make payment of all
Monies to Lender as scheduled, the Company's remedies for each breach by Lessor
being solely against Lessor.
The Lender agrees, notwithstanding the bankruptcy or insolvency of Lessor, and
so long as no event of default by Company shall have occurred and be continuing
under the Lease, and provided further that the Company shall not be in default
of its obligations hereunder, not to disturb the Company's quiet and peaceful
possession of the Equipment in accordance with the terms of the Lease. It is
understood and agreed that Lender shall have no responsibility for any such
disturbance by a third party, whether claiming by or through Lessor or
otherwise, and any such disturbance shall in no manner restrict or otherwise
limit the obligations of the Company under the Lease and as provided for
hereunder.
12
The Company represents, warrants and agrees that, (i) it has received
possession of all of the Equipment subject to the Lease, (ii) it has accepted
the same for all purposes under the Lease, (iii) the Lease is in full force and
effect, (iv) no defaults exist on the part of the Company, and (v) as of the
date hereof there are 24 MONTHLY rental installments of $933.00 each due under
the Lease, the next installment being due on MARCH 1, 1998.
IN WITNESS WHEREOF, the Company, the Lender and the Lessor have executed this
Consent and Agreement as of the ___________ day of _______________________,
______.
ACKNOWLEDGED AND AGREED: Netgrocer, Inc. (Lessee)
---------------------------------------------
/s/ Xxxxxxx X. Xxxxxxx
By: ---------------------------------------------------------------------------
Xxxxxxx Xxxxxxx
Title: Chief Operating Officer
----------------------------------------------------------------------
ACKNOWLEDGED AND AGREED: Leasing Edge Corporation (Lessor)
---------------------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Title: President & CEO
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ACKNOWLEDGED AND AGREED: Excel Bank, N.A. (Assignee)
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By:
Title:
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