EXHIBIT 10.60
Lessor: NOTICE: THIS IS A NONCANCELABLE,
COMMERCIAL MONEY CENTER BINDING CONTRACT CONSISTING OF ALL
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ TERMS ON BOTH SIDES. IT CONTAINS
Escondido, CA 92025 IMPORTANT TERMS AND CONDITIONS AND HAS
(▇▇▇) ▇▇▇-▇▇▇▇ Fax LEGAL AND FINANCIAL CONSEQUENCES TO
(▇▇▇) ▇▇▇-▇▇▇▇ Phone YOU. PLEASE READ IT CAREFULLY; FEEL
FREE TO ASK QUESTIONS BEFORE SIGNING.
EQUIPMENT LEASE AGREEMENT K030312
DESCRIPTION OF EQUIPMENT
(Include all attachments) SERIAL NUMBER
See Attached Exhibit "A" Hereto See Attached Exhibit "A" Hereto
And Made A Part Hereof And Made A Part Hereof
VENDOR'S NAME Kaummann Machines, Inc.
SCHEDULE OF RENTAL PAYMENTS
TERM OF LEASE (IN MONTHS) TOTAL # OF RENTAL PYMTS AMOUNT OF EACH PYMT ADVANCE RENTAL
63 63 $10,267.23 $20,534.46
PAYMENT FREQ. Monthly (including tax) (last payments)
LEASING CUSTOMER (Lessee): (Complete Legal Name. If a corporation, use EXACT
registered corporate name.)
Company Name Applied Data Communications, Inc. and ▇▇▇▇▇▇ ▇▇▇▇ as
co-lessees
Billing Address ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
County Orange
Equip Location ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
YOU (THE LEASING CUSTOMER) ARE REQUESTING THE LEASING COMPANY ("WE", "US" OR
"OUR") TO PURCHASE THE ABOVE EQUIPMENT FOR YOUR USE. TO INDUCE US TO MAKE THIS
PURCHASE, YOU HAVE AGREED TO THE FOLLOWING IMPORTANT TERMS AND CONDITIONS.
1. LEASE. You agree to lease from us and we agree to lease to you the equipment
identified above together with any replacement parts, additions or repairs (the
"Equipment") under the terms stated in this Equipment Lease Agreement (the
"Lease"). You authorize us to correct obvious errors in this Lease and to
insert the Lease number, the serial numbers and other data identifying the
Equipment and other missing terms above (if any) following your execution of
this Lease. LEASE AGREEMENT CONTINUES ON REVERSE SIDE -->
By Signing this Lease, you acknowledge and agree that: (i) you have had an
opportunity to discuss the terms and conditions in this Lease with us before
signing this document; (ii) you have read and understand the terms and
conditions on the front and back of this Lease; (iii) this Lease is a Net Lease
that cannot be terminated or canceled; (iv) you have an unconditional obligation
to make all payments due under this lease and you cannot withhold, set-off or
reduce such payments for any reason; (v) the person signing below is a corporate
officer, partner, member or proprietor of yours and is authorized to sign this
lease and bind you; (vi) this Lease contains the entire agreement between the
parties and no other oral or written agreements are in effect; and (vii) this
lease may not be amended except by a written agreement signed by both parties,
their successors and assigns.
SIGNATURE SIGNATURE TELEPHONE
X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, CEO X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Applied Data Communications, Inc. ▇▇▇▇▇▇ ▇▇▇▇ as Co-Lessee
PERSONAL GUARANTY
To induce the above leasing company ("Leasing Company") to make this Lease and
purchase the equipment for the above leasing customer ("Customer"), knowing that
the Leasing Company is relying on this guaranty as a precondition to making this
Lease, I (or if more than one, then all of us, jointly and severally)
INDIVIDUALLY, PERSONALLY, ABSOLUTELY AND UNCONDITIONALLY GUARANTY to the Leasing
Company (and any person or firm the Leasing Company may transfer its interest
to) all payments and other obligations owed by the Customer to the Leasing
Company under the Lease and any add-on leases and future leases between Leasing
Company and Customer, including but not limited to the Leasing Company's
attorney's fees and legal costs incurred in enforcing the Lease. I will also
pay all reasonable costs and fees incurred by the Leasing Company in enforcing
this Guaranty. Accounts settled between the Leasing Company and the Customer
will bind me. I waive notice of acceptance hereof and all other notices or
demands of any kind to which I may be entitled and consent to the granting of
extensions of time of payments to Lessee and other obligors and guarantors and
to any other amendments or adjustments in the terms of the lease. I waive
notice of demand and notice of default, and I agree that the Leasing Company may
proceed directly against me without first proceeding against the Customer or the
security (including the equipment). This guaranty shall be governed by the
state where the Lessor is located. I FREELY CONSENT TO PERSONAL JURISDICTION OF
THE APPLICABLE JURISDICTION AND I WAIVE TRIAL BY JURY. This Guaranty will bind
my heirs, representatives and successors.
SIGNATURE (INDIVIDUALLY, NO TITLES) Date SIGNATURE (INDIVIDUALLY, NO TITLES) Date
X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ 3/13/00 X
▇▇▇▇▇▇ ▇▇▇▇
WITNESS SIGNATURE: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
DATE: 3/13/00
LEASE AGREEMENT CONTINUES ON NEXT PAGE
Lease Agreement - continued
2. TERM. You agree this lease will not start until we sign it. Once it starts,
you agree it will continue for the full term shown on the reverse side and any
extension term ("Term").
3. RENT. You agree to pay us monthly rent for the full Term in the amount shown
on the reverse side. That amount is based on the estimated cost of all
Equipment and you agree it may be adjusted upward or downward if the actual cost
exceeds or is less than this estimate. The monthly due date and the due date
for the first payment will be set by us but will not be more than 30 days from
the day you accept delivery of the Equipment. We may charge you a partial
payment for the time between the delivery date and the date the first regular
payment is due. If all or any part of a payment is late, we may charge you a
late fee of $10.00 or 12% of the amount that is late, whichever is more. Time
is of the essence with respect to all payments due and all of your other
obligations under the Lease. You have no right of prepayment.
4. ADVANCE RENT. To secure your obligations to us, you will pay the advance
rent amount shown on the reverse side at the time you sign this Lease. If the
Lease is never finalized for reasons that are not our fault, we may keep the
deposit to pay for our administrative costs, the costs for procuring the bond
and associated costs as liquidated damages. If any part of the deposit is
remaining at the end of the Term and you have complied with all of your
obligations, we will return the remainder to you without interest. All advance
rent shall represent last payments to the extent not otherwise utilized
hereinabove.
5. DELIVERY. You agree that we are not responsible for delivery or installation
of the Equipment. You will not have any claim against us if the manufacturer or
supplier (collectively called "Vendor" in this Lease) delays in delivery or
installation, or if the Equipment is unsatisfactory for any reason.
6. SELECTION AND PURCHASE OF EQUIPMENT. You understand and agree that (a) WE
DID NOT SELECT, MANUFACTURE, SUPPLY OR INSPECT THE EQUIPMENT AND HAVE NO
EXPERTISE REGARDING THE EQUIPMENT; (b) YOU SELECTED THE VENDOR AND THE EQUIPMENT
BASED ON YOUR OWN JUDGMENT; (c) WE ARE BUYING THE EQUIPMENT AT YOUR REQUEST ONLY
FOR THE PURPOSE OF LEASING IT TO YOU; (d) YOU AGREE THAT THIS LEASE QUALIFIES AS
A "FINANCING LEASE" AS THAT TERM IS DEFINED IN ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE ("UCC"); (e) Before signing this Lease, you approved the supply
contract (if any) between us and the Vendor; and (f) You have been advised in
writing (or are now advised in this Lease) that you may have rights against the
Vendor under the supply contract (if any) and that you may contact the Vendor to
find out what these rights against the Vendor are (if any).
7. IMPORTANT CONDITIONS. You understand and agree that:
(a) THE LEASE CANNOT BE CANCELED BY YOU AT ANY TIME FOR ANY REASON.;
(b) YOUR DUTY TO MAKE THE PAYMENTS IS UNCONDITIONAL DESPITE EQUIPMENT FAILURE,
DAMAGE, LOSS OR ANY OTHER PROBLEM; (c) WE ARE LEASING THE EQUIPMENT TO YOU "AS
IS" AND WE HAVE MADE NO REPRESENTATION, GUARANTEE OR WARRANTY, EXPRESS OR
IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE) REGARDING THE EQUIPMENT. WE DISCLAIM ALL SUCH WARRANTIES OR
GUARANTEES OF ANY KIND. We agree to transfer to you all warranties IF ANY made
by the Vendor to us; (d) WE WILL NOT BE LIABLE FOR ANY LOSS OR INJURY TO YOU OR
ANY OTHER PERSON OR PROPERTY (including lost profits and consequential,
incidental or special damages) CAUSED BY THE EQUIPMENT OR ITS FAILURE TO
OPERATE; (e) To the extent permitted by applicable law, YOU WAIVE ANY RIGHTS
WHICH WOULD ALLOW YOU TO: (1) cancel or repudiate the Lease; (2) reject or
revoke acceptance of the Equipment; (3) grant a security interest in the
Equipment; (4) accept partial delivery of the Equipment; (5) "cover" by making
any purchase or lease of substitute equipment; and (6) seek specific performance
against Leasing company; (f) YOU UNDERSTAND THAT WE AND THE VENDOR ARE TWO
SEPARATE AND INDEPENDENT COMPANIES AND THAT NEITHER THE VENDOR NOR ANY OTHER
PERSON IS OUR AGENT. YOU AGREE THAT NO REPRESENTATION, GUARANTEE OR WARRANTY BY
THE VENDOR OR OTHER PERSON IS BINDING ON US, AND NO BREACH BY THE VENDOR OR
OTHER PERSON WILL EXCUSE YOUR OBLIGATIONS TO US. YOU ALSO UNDERSTAND THAT ONLY
AN OFFICER IS AUTHORIZED TO WAIVE OR ALTER ANY OF THE TERMS OF THIS LEASE; (g)
IF THE EQUIPMENT DOES NOT WORK AS REPRESENTED BY THE VENDOR, OR IF THE VENDOR OR
ANY OTHER PERSON FAILS TO PROVIDE ANY SERVICE, OR IF THE EQUIPMENT IS
UNSATISFACTORY FOR ANY OTHER REASON, YOU WILL MAKE ANY SUCH CLAIM SOLELY AGAINST
THE VENDOR OR OTHER PERSON AND WILL MAKE NO CLAIM AGAINST US.
8. REPAIRS AND SERVICE. You understand that we are not responsible for repairs
or service to the Equipment. You will keep the Equipment in good condition and
will service the Equipment as and when needed. All replacement parts and
additions will become our property.
9. USE. YOU CERTIFY THAT THE EQUIPMENT WILL BE USED SOLELY FOR BUSINESS,
COMMERCIAL OR AGRICULTURAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES. You will not (a) make any alterations to the Equipment; (b) will not
allow it to be used by anyone but your employees; or (c) move it to any other
location without our permission.
10. RISK OF LOSS; DAMAGE; INSURANCE. You are responsible for any loss,
destruction or damage to the Equipment from any cause at all, whether or not
insured, from the time the Equipment is shipped to you until it is returned to
us. NO SUCH LOSS OR DAMAGE SHALL IMPAIR YOUR OBLIGATIONS UNDER THIS LEASE,
WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT. You will keep the equipment
insured against all risks of loss in an amount not less than the replacement
cost, and will list us as the loss payee. If required, you will also carry
public liability insurance listing us as additional insured in amounts
acceptable to us. You agree to provide us with satisfactory written evidence of
all such insurance. YOU AGREE THAT IF YOU FAIL TO OBTAIN SUCH INSURANCE, WE MAY
(BUT ARE NOT OBLIGATED TO) OBTAIN IT AND CHARGE YOU A FEE IN WHICH CASE, WE WILL
BE THE SOLE INSURED PARTY AND YOU WILL HAVE NO RIGHTS UNDER THE INSURANCE
POLICY. In addition, because of the increased risk of loss to us when the
equipment is not insured, you agree to pay us each month a risk charge
stipulated at 0.25% of our original cost of the Equipment until you provide
adequate proof of insurance; however, you agree that while you have no right to
any insurance benefits from us, you are still liable for all losses, and such
risk charge is not a substitute for the insurance requirements under this Lease.
YOU HEREBY APPOINT CMC POWER OF ATTORNEY TO APPLY FOR INSURANCE BENEFITS AND TO
ENDORSE CHECKS RECEIVED IN PAYMENT.
11. TAXES AND OTHER FEES. You agree that this is a "net" lease and agree to pay
us upon demand for all taxes (including sales, use, personal property and other
taxes) and other fees of any kind which may be charged regarding the leasing,
use or ownership of the Equipment. With regard to yearly taxes and fees, such
as personal property tax. We may charge you once a year or estimate the amount
of the yearly charge and bill you monthly for a portion.
12. INDEMNITY. You agree to defend us against and indemnify (reimburse) us for
all claims, liabilities, costs and legal fees arising out of the leasing, use or
possession of the Equipment, including claims for property damage or injury to
persons. This promise will continue after the end of the Lease Term.
13. TITLE. You understand that we retain sole ownership and title to the
Equipment. You get the use of the equipment and we receive the tax benefits.
This lease is a financing lease as defined under Article 2A of the Uniform
Commercial Code. The lease comports with the Internal Revenue Service
requirements of a financing lease. YOU HEREBY GIVE US POWER OF ATTORNEY TO SIGN
AND FILE FINANCING STATEMENTS, AND YOU AGREE TO PAY FOR FILING FEES. You hereby
grant to us a security interest in the Equipment and agree that the financing
statements will create a perfected security interest in our favor. You will not
allow any liens or encumbrances to be placed on the Equipment.
▇▇▇▇▇▇ ▇▇▇▇ INITIALS /s/ WJK
14. DEFAULT. You agree that we may declare you in default if you (a) fail to
make any payment for a period of 20 days after the due date; (b) do not comply
with any other term of this Lease or any other agreement you have with Leasing
Company; (c) any action is brought against you causing the Equipment to be taken
or encumbered; (d) you die, become insolvent, make or consent to an assignment
for the benefit of creditors, file or have filed against you a bankruptcy, sell
all or substantially all your assets, make or consent to the appointment of a
receiver or trustee, or go out of business. ▇▇▇▇▇▇ agrees that in the event of
multiple leases that a default by the lessee in any lease shall at the option of
the lessor constitutes a default of all other leases. If any of these defaults
occurs, you agree that we may take one or both of the following actions, in
addition to other actions available under law:
(a) terminate the Lease and/or sue for: (1) past due rent and all future rent to
become during the unexpired Term; (2) the residual value placed on the Equipment
by us at the commencement of the Lease; (3) all late fees and any other charges
due and to become due; and (4) the costs listed in Section 15 below; AND
(b) enter the Equipment site and repossess the Equipment or sue for a
repossession court order. Following repossession: (1) All of your rights to the
equipment will end; (2) we may remarket the Equipment without advance notice to
you; and (3) we may also sue for the amounts listed in Section 14(A) above
without first remarketing the Equipment. You agree that we are not required to
repossess and remarket the equipment, and you waive any rights under any law
that provides otherwise.
15. RECOVERY COSTS. You agree to pay all of our recovery costs after a default,
including: (1) attorney's fees equal to 25% of the amount of our claim or $1500,
whichever is greater; (2) reasonable attorney's fees for getting a repossession
order; (3) costs of suit; (4) $250 to cover our internal collection overhead;
(5) $225 to cover our internal repossession and remarketing overhead if an
internal repossession is made or attempted; and (6) all other reasonable out-of-
pocket costs. You agree now that the above amounts are good and reasonable
predictions of what our actual costs and overhead will be and are not penalties.
16. NO VOLUNTARY RETURN OF EQUIPMENT. You agree to become the owner of the
goods for the "fair market value" of the asset at the end of the lease term or
renegotiate a new lease upon mutually agreeable terms and conditions. You
understand that any person who refuses to comply herewith or prevents us from
repossessing the Equipment may be personally liable for conversion.
17. ASSIGNMENT; SUBLEASE. BECAUSE THIS LEASE WAS GRANTED TO YOU ON THE STRENGTH
OF YOUR OWN CREDIT, YOU AGREE THAT YOU MAY NOT SELL OR ASSIGN (TRANSFER) ANY OF
YOUR INTEREST UNDER THE LEASE TO ANY OTHER PERSON OR SUB-LEASE ANY OF THE
EQUIPMENT. You agree that we may assign (transfer) any or all of its interest
under this Lease and/or the Equipment to a new owner or a secured party at any
time without prior notice to you, and such new owner or secured party will have
the same rights we had under this Lease but will not have to perform any of our
obligations (in which case we will keep those obligations). You also agree that
the rights of the new owner or secured party will not be subject to any claims,
defenses or set-offs that you may have against us or any other person. You
agree that any transfer by us would not materially charge your obligations under
the lease or substantially increase your risks.
18. GOVERNING LAW. As used in this paragraph 18, "Applicable Jurisdiction"
means the state, as the same may change from time to time, where the holder of
the Lessor's interest in this Lease maintains its principal office responsible
for administering this Lease. This Lease and any guaranty hereof shall be
interpreted and construed in accordance with, and governed by, the laws of the
Applicable Jurisdiction applicable to lease and guaranty agreements
respectively, made and to be fully performed in the Applicable Jurisdiction.
19. LESSEE'S REPRESENTATIONS. You represent to us that (1) you have complete
power and are properly authorized to enter into this Lease; (2) the Lease is
legal, valid, binding on you, and enforceable against you in accordance with its
terms; (3) all information supplied by you or your agents (for example, the
Vendor) to us, including all financial information, is true, correct and
complete. YOU HEREBY AUTHORIZE LEASING COMPANY TO SHARE AND EXCHANGE WITH ANY
OF ITS AFFILIATES CREDIT AND OTHER INFORMATION IT HAS OBTAINED ON YOU AND YOUR
BUSINESS.
20. FAXED AND COPIED DOCUMENTS. The parties intend and agree that a carbon
copy, photocopy or facsimile of this document with their signature thereon shall
be treated as an original and shall be deemed to be as binding, valid, genuine
and authentic as an original-signature document for all purposes, including all
matters of evidence and the "best evidence".
21. ▇▇▇▇▇▇ understands and agrees that Lessor at their option may obtain a
surety bond from an insurance company that guarantees Lessee's obligation in
this lease. All costs for the bond(s) shall be paid by the Lessor and all
rights of the Lessor shall be subrogated to the Surety. ▇▇▇▇▇▇ hereby
authorizes Lessor to execute such instruments in the place and stead of ▇▇▇▇▇▇
as may be necessary to obtain such surety bond. ▇▇▇▇▇▇ specifically authorizes
Lessor to execute and deliver a non-revocable indemnity agreement to the Surety
obligating the Lessee to the Surety for monies due in this lease. IN
CONSIDERATION of the execution of such bond, and in compliance with a promise of
the undersigned made prior thereto, the undersigned hereby agree for themselves,
their personal representatives, successors and assigns, jointly and severally,
as follows:
a. To reimburse Surety, upon demand for all payments made for; and to
indemnify and keep indemnified Surety from all loss, contingent loss,
liability and contingent liability claim, expense, including attorney's
fees, for which Surety shall become liable or shall become contingently
liable by reason of such suretyship, whether or not Surety shall have paid
same at the time of demand; and
b. Surety shall have the exclusive right to determine whether any claim of
suit shall, on the basis of liability, expediency or otherwise, be denied,
paid, compromised, defended or appealed. An itemized statement of payments
made by Surety for loss, contingent loss, liability or contingent
liability, and/or expense, sworn to by an officer of Surety, or the voucher
or vouchers for such payments, shall be prima facia evidence of the
obligation of the obligation of the undersigned to reimburse Surety.
c. The parties agree that at all times the place and formation of the
suretyship herein applied for and the place of performance of any and all
obligations that might arise under it shall be the local jurisdiction.
d. Each of the undersigned agrees to pay the full amount of the foregoing
regardless of (a) the failure of the principal to sign any such bond or (b)
any claim that other indemnities, securities, or collateral was to have
been obtained or (c) the release, return or exchange by Surety with or
without the consent of the undersigned, of any indemnity, security, or
collateral that may have been obtained or (d) the fact that any party
signing this instrument not bound for any reason.
e. The undersigned hereby expressly waive notice from Surety of any claim
or demand made against Surety or the principal is under bond or any
information Surety may receive concerning the principal, or bond. Surety
shall have the right to decline any or all bonds herein applied for.
Whenever used in this instrument the plural term shall include the singular
and the singular shall include the plural, as the circumstances require.
If any portion of this agreement be in conflict with any law controlling
the construction hereof, such portion of this instrument shall be
considered to be deleted and the remainder shall continue in full force and
effect.
22. I have read and understand paragraph 21.
▇▇▇▇▇▇ ▇▇▇▇ INITIALS /s/ WJK
ACCEPTED BY ▇▇▇▇▇▇
By: Title: Date: Lease#:
DELIVERY AND ACCEPTANCE RECEIPT
LESSEE: Applied Data Communications, Inc.
VENDOR: Kaummann Machines, Inc.
Lessee hereby represents, warrants and certifies:
1. All the equipment described on the Lease Agreement or on any attached
schedule has been delivered to the Lessee and properly installed; the Equipment
has been inspected and tested by Lessee and is in good and satisfactory
operating order; and the Equipment is therefore irrevocably accepted by Lessee
for all purposes under the Equipment Lease Agreement.
2. Lessee unconditionally accepts the Equipment and acknowledges that it has not
been accepted on a "trial" basis.
3. ▇▇▇▇▇▇ has read and agrees to all terms and conditions of the Lease,
including all attachments and addendums thereto, if any. As more particularly
stated in the Lease, ▇▇▇▇▇▇ understands that the Equipment is leased to Lessee
"as is"; that Lessor disclaims all warranties, express and implied; that Lessor
is not responsible for installation, service, training or repairs; that the
Lease cannot be cancelled for any reason and that ▇▇▇▇▇▇'s obligation to make
the lease payments and perform its other obligations under the Lease are
absolute, unconditional, independent and not subject to any counterclaim, setoff
or defense. This paragraph shall not be construed to alter or limit the terms
and conditions of the Lease.
We now request that you sign the lease and pay the equipment vendor. We
understand the importance of this certification to you prior to paying the
vendor, and we understand we will be precluded from denying the truth of this
certification in the future.
X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Lessee Authorized Signature
Applied Data Communications, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Print Name and Title
3-13-00
Date
Prior to actual starting of your Lease, we will contact you to verify that your
equipment is in acceptable working order.
Should you wish to authorize someone else in your office to do this, please
complete and sign the section below.
Otherwise, we will assume that we must speak directly to you for this purpose.
I, _______________________________________ authorize ________________________
who holds the position of _____________________, to conduct a telephone audit
in my absence with the Leasing Company. I authorize him/her to accept equipment
with regards to Lease #K030312 and to agree to release funds to the vendor.
X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Lessee Authorized Signature
Applied Data Communications, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Print Name and Title
3-13-00
Date
AUTHORIZATION TO CHARGE ACCOUNT
This Authorization to Charge Account ("Authorization") is part of the
consideration given to Commercial Money Center, Inc. or its assigns ("CMC") to
induce CMC to enter into Lease Agreement No. K030312 ("the lease") with us. We
understand that THIS IS A NONCANCELABLE AUTHORIZATION DURING THE TERM OF THE
LEASE.
The Authorization to charge our account at our bank shall be the same as if
we had personally signed a check to CMC. This Authorization shall remain in
effect until CMC notifies our bank in writing that wish to end this
Authorization. CMC will so notify our bank when all sums due and owing to it
pursuant to the Lease have been received by CMC.
This Authorization is entered into concurrently with the Lease and is
hereby incorporated therein. If this Authorization, with or without our
knowledge or consent or, by the act of any third party, is in anyway terminated,
stayed, modified, or suspended without the written consent of CMC, such act or
omission shall be deemed a default under terms and provisions of the Lease and
CMC may thereupon exercise any and all rights and remedies as stated in the
Lease.
A record of your payment shall be included in our bank statement and will
serve as our receipt. In the event of an error and with the written consent of
CMC, we have the right to reverse any transfer. However, we must notify our
bank within fifteen days of the date of our bank statement or within forty-five
days after transfer was made.
We understand and agree that our bank is not responsible for an error in
the amount of any transferred payment. In the event of such an error, we will
reconcile directly with CMC.
IMPORTANT INFORMATION ON YOUR
PRE-AUTHORIZED LEASE PAYMENT
-A MUST READ!!-
IN THE EVENT A PAYMENT DEBIT IS NOT HONORED BY YOUR BANK FOR INSUFFICIENT
FUNDS, ACCOUNT CLOSED, PAYMENT STOPPED OR ANY OTHER REASON, AN AUTOMATIC SERVICE
CHARGE OF $10.00 WILL BE ASSESSED AND BILLED TO YOU.
I (We) hereby authorize our bank to charge our account each month and to
pay CMC the amount shown below. I (We) have read, understand and agree with the
terms of this Authorization.
Monthly payments: $10,267.23 (including tax) due on the 1st of each month.
LESSEE: Applied Data Communications, Inc.
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Date: 3-13-00
Bank Name: City National Bank
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇
City, State, Zip: NEWPORT BEACH, CA 92660
Account No. 023-720205
ABA Routing No. ▇▇▇▇▇▇▇▇▇
CERTIFICATE OF INCUMBENCY
(If Corporation)
I, ______________________(Name) as Secretary (Title) of Applied Data
Communications, Inc. (Lessee), hereby certify that the following Officer(s) of
this Corporation on the date hereof and at all times since _____________, _____
is (are) authorized and directed to negotiate, execute and deliver on behalf of
the Corporation all Lease Agreements and related documents with Commercial Money
Center, Inc. ("Lessor") whereby this Corporation will lease from time to time
various items of property to be used in the operation in the business of the
Corporation on terms and conditions which shall be determined by said Officer(s)
to be advisable and in the best interests of this Corporation, and that the
execution of such Lease Agreements by said Officer(s) shall be conclusive
evidence of their approval(s) thereof and that the signature(s) set forth
opposite the name(s) of the Officer(s) below is (are) the genuine signature(s)
of said person(s).
Section 1
▇▇▇▇▇▇ ▇. ▇▇▇▇ Pres/CEO /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
(Type Name) (Title) (Specimen Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. CFO/Secretary /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
(Type Name) (Title) (Specimen Authorized Signature)
Section 2 (specimen signatures of Secretary of Corporation and the person
authorized to sign these documents)
IN WITNESS WHEREOF, I have affixed my name as SECRETARY (Title) of said
Corporation and have caused the Corporate Seal of said Corporation to be
hereunder affixed.
Applied Data Communications, Inc.
(Lessee)
(SEAL)
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Title: SECRETARY
Date: March 13, 2000
This document must be signed by the Secretary of the Corporation. If authorized
signer is also the Secretary, please include Articles of Incorporation.
CERTIFICATE OF SECRETARY
AS TO ADOPTION OF RESOLUTIONS
(Corporate Customer)
The undersigned, ________ (Corporate Secretary), hereby certifies that
he/she is now, and at all times herein mentioned has been, the duly elected,
qualified and acting Secretary of Applied Data Communications, Inc., (Name of
Corporation) a duly organized and existing corporation, and in charge of the
minute book and corporate records of said corporation; that the following is a
full, true and correct copy of certain resolutions adopted by the Board of
Directors of said corporation at a meeting thereof duly held on
_______________________ (Date), at which meeting a quorum of said Board was at
all times present and acting; and that said resolutions have not been modified
nor rescinded and are at the date of this certificate in full force and effect:
WHEREAS it is in the best interest of this corporation to enter into a
certain Equipment Lease Agreement, Equipment Financing Agreement or other
agreement with Commercial Money Center, Inc. ("Lessor/Secured Party") and,
where appropriate, commitments now or hereafter contemplating the receipt
by this corporation of financial accommodation from Lessor/Secured Party
under the terms and conditions of said Equipment Lease Agreement, Equipment
Financing Agreement or other agreement and may in the future be in this
corporation's best interests to enter into further such agreements or other
agreements with Lessor/Secured Party.
NOW THEREFORE BE IT RESOLVED: That the officers of this corporation listed
below, and each of them, are hereby authorized and directed to execute,
acknowledge and deliver in the name of and on behalf of this corporation
said Equipment Lease Agreement, Equipment Financing Agreement or other
agreement, said commitments and any such further agreement.
RESOLVED FURTHER: That the officers, agents and employees of this
corporation be and each of them is hereby authorized and empowered to do
and perform such other acts and things, and to make, execute, acknowledge,
procure and deliver all such other instruments and documents, on behalf of
this corporation as may be necessary or be by such officer, agent or
employee deemed appropriate to comply with, or to evidence compliance with,
the terms, conditions or provisions of said Equipment Lease Agreement,
Equipment Financing Agreement or other agreement, any such commitment or
any said further agreement and to consummate the transactions from time to
time contemplated thereby.
RESOLVED FURTHER: That this corporation hereby ratifies and confirms the
acts of the officer, agents or employees of this corporation in heretofore
entering into any Equipment Lease Agreement, Equipment Financing Agreement,
commitment or other agreement with Lessor/Secured Party together with any
other acts performed in relation thereto.
RESOLVED FURTHER: That the Secretary of this corporation be and he/she is
hereby authorized and directed to execute, acknowledge and deliver a
certified copy of these resolutions to Lessor/Secured Party and any other
person or agency which may require a copy of these resolutions.
RESOLVED FURTHER: That the following are the true names and specimen
signatures of the incumbent officers of this corporation authorized by
these resolutions to so execute, acknowledge and deliver said Equipment
Lease Agreement, Equipment Financing Agreement or other agreement, said
commitments and said further agreements.
(Type names below) (Title) (For Signature)
▇▇▇▇▇▇ ▇. ▇▇▇▇ President /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice-President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. Secretary /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. Treasurer /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
RESOLVED FURTHER: That Lessor/Secured Party is authorized to act upon
these resolutions until written notice of the revocation thereof is
delivered to Lessor/Secured Party, any such revocation in no way to affect
the obligations of this corporation to Lessor/Secured Party under any
agreements entered into by this corporation pursuant to the terms of these
resolutions prior to receipt by Lessor/Secured Party of such notice of
revocation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of March
13, 2000 (Date).
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
(Secretary)
Single Officer Addendum
I further certify that I am the duly elected President and Secretary of said
corporation and that I am the only officer of said corporation and therefore the
only person authorized to execute documents and incur liabilities on the behalf
of said corporation as of the date of this Certificate.
(Secretary)
(Corporate Seal Must Be Affixed Commercial Money Center, Inc.
But Failure Not To Affect ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Validity Or Reliance) Escondido, CA 92025
ADDENDUM A Pg. 1 of 2
This Addendum is made part of that certain Lease Agreement No. K030312 dated
______________ between Applied Data Communications, Inc. as Lessee ("Lessee")
and Commercial Money Center as Lessor (the "Lease Agreement").
To secure the prompt payment, performance and observance in full of all of
▇▇▇▇▇▇'s obligations under and pursuant to the Lease Agreement and the schedules
thereto. Lessee hereby pledges, transfers, sets over and assigns to Lessor, its
successors and assigns, and grants to Lessor a first priority and continuing
general security interest in, and a lien upon and a right of setoff against (a)
all of ▇▇▇▇▇▇'s accounts, accounts receivables, contract rights, instruments,
documents, notes, chattel paper, other forms of obligations, and general
intangibles, arising from the use, from time to time, by Lessee or by third
parties under an employment or service contract with Lessee, of any item of
equipment which is the subject matter of the Lease Agreement or otherwise
arising in connection with any item of equipment, whether secured or unsecured,
whether now existing or hereafter created or arising, and whether or not
specifically assigned to Lessor or not (hereinafter the "Receivables"), (b) all
guaranties, mortgages on real or personal property, agreements or other property
relating to any of the Receivable or acquired for the purpose of securing and
enforcing any of such Receivables, (c) all books, records, ledger cards,
computer tapes, disks and software relating thereto, and other property and
general intangibles at any time evidencing or relating to Receivables
("Records") and (d) all proceeds of any of the foregoing in whatever form,
including, without limitation, any claims against third parties related to the
foregoing (hereafter all of the foregoing referred to collectively as
"Collateral"). Records reflecting the Receivables shall, until delivered to or
removed by Lessor, be kept by Lessee in trust for Lessor, and without cost to
Lessor, in appropriate containers in safe places. Each confirmatory assignment,
schedule or other form of assignment at any time executed by ▇▇▇▇▇▇ shall be
deemed to include the foregoing whether or not the same appears therein.
Lessee will, at such intervals as Lessor may from time to time require,
provide Lessor with confirmatory assignment schedules of outstanding
Receivables, copies of all document evidencing any Receivable, and such further
lists and/or information as Lessor may reasonably require including monthly
accounts receivable aging reports. The items to be provided under this
paragraph are to be in form satisfactory to Lessor and are executed and
delivered to Lessor for its convenience in maintaining records of the
Collateral. Lessee's failure to give any of such items to Lessor or otherwise
comply with the provisions hereof shall not affect, terminate, modify or
otherwise limit Lessor's lien or security interest in the Collateral.
In connection with the foregoing, Lessee hereby irrevocably constitutes and
appoints ▇▇▇▇▇▇ and any agent and designee (collectively and individually
"Agent") as its true and lawful agent and attorney in fact, coupled with an
interest with the power to do any or all of the following: 1. At Agent's sole
discretion, Agent may require ▇▇▇▇▇▇ to direct all accounts receivable,
including all of ▇▇▇▇▇▇'s accounts, contract rights, instruments, documents,
notes chattel paper, other forms of obligations and general intangibles of
Lessee to a Lock Box Account to be established at ▇▇▇▇▇▇'s primary bank. Such
account will inure to the benefit of Lessor and ▇▇▇▇▇▇. Any proceeds of this
Lock Box Account, of which Lessor is not then entitled to, under the terms of
the Lease Agreement, shall then be available to Lessee; 2. To endorse any and
all checks, drafts or items payable to bearer or to the order of Lessee, and to
receive, retain and use the proceeds thereof;
ADDENDUM A Pg. 2 of 2
3. To enter into, execute, or deliver all instructions, agreements, contracts,
documents, receipts and other instruments necessary or convenient in the
exercise of the foregoing power; 4. To delegate any or all of the powers
contained herein to one or more sub-attorneys and to revoke all or part of this
delegation while as ▇▇▇▇▇▇ could have taken but for this Agreement. All acts of
Agent are hereby ratified and approved and Agent shall not be liable for any
acts of omission or commission, nor for any error of judgment or mistake of law
or fact. The powers of Agent granted herein shall commence in full as of the
date of hereof and shall remain in effect until all obligations of Lessee to
Agent, under the Contract or under any other agreement, now existing or executed
hereafter, between Agent and Lessee have been discharged by performance.
▇▇▇▇▇▇ agrees that any and all payments due by Lessee to Lessor will be
made and all other monthly obligations under the Lease Agreement met before any
cash distribution, compensation including salaries, commissions, bonus, fees,
dividends and earnings and income generated or other payments are made to the
investors and or principals of Lessee. To the extent such payments are not made
in accordance with the foregoing and to the extent that insufficient funds are
available to pay amounts owed to Lessor for any schedule under the Lease
Agreement, the entire Lease Agreement and all schedules thereunder will be
deemed in default pursuant to Section 11 of the Lease Agreement and such
delinquent payments will be subject to a late charge of 5% of the amount of such
payment, or such other lesser sum as permitted by applicable law, for each month
or part thereof for which said payments will be delinquent."
The powers and authorities granted herein shall not be affected, impaired
or exhausted by any non-exercise thereof or by any one or more exercises
thereof.
No person relying upon this Power of Attorney shall be required to see to
the application and disposition of any moneys, or other property paid to or
delivered to the Agent pursuant to the provisions hereof.
Reproductions of this executed original (with reproduced signatures and a
certificate of acknowledgement signed by Agent) shall be deemed to be original
counterparts of this Power of Attorney.
Agent agrees that it will not exercise its powers as agent unless ▇▇▇▇▇▇ is
in default of the Contract, this agreement or any other agreement, between
Lessee and Lessor, whether now existing or entered into hereafter.
▇▇▇▇▇▇ agrees it is liable for all costs and expenses, including without
limitation attorney's fees and court costs, incurred by ▇▇▇▇▇▇, either as
assignee or as Agent, in enforcing its rights under this agreement.
IN WITNESS WHEREOF, the parties have hereunto placed their hand and seal
the day written above.
Accepted and Agreed to: Accepted and Agreed to:
Commercial Money Center, Inc. Applied Data Communications, Inc.
(Lessor) (Lessee)
By: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
(Signature)
▇▇▇▇▇▇ ▇. ▇▇▇▇
(Please Print Name) (Please Print Name)
Title: Title: CEO
Date: Date: March 13, 2000
OPTIONS OF LESSEE
10% PURCHASE OPTION/FMV
Lease #K030312 between COMMERCIAL MONEY CENTERS, INC., Lessor, and Applied Data
Communications, Inc., Lessee.
Provided the Lease has not terminated early, Lessee shall have the following
option at the end of the original term.
BUY: Purchase the Equipment for 10% ($27,500.00) of Lessors cost of the
equipment or the Fair Market Value, whichever is greater.
This amount payable in a single sum immediately upon expiration of the
lease.
OR
RENEW: Renew the lease contract.
COMMERCIAL MONEY CENTERS, INC. Applied Data Communications, Inc.
Lessor Lessee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Authorized Representative Signature of Lessee
▇▇▇▇▇▇ ▇. ▇▇▇▇, CEO
Title Title
March 13, 2000
Date Date
NOTE: SIGNATURE MUST BE SAME AS ON LEASE
REQUEST FOR CERTIFICATE OF INSURANCE
See Attached Exhibit "A" for Equipment List
To: Insurance Agent ▇▇▇▇▇▇▇ INSURANCE Phone: ▇▇▇-▇▇▇-▇▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ 206 Fax: ▇▇▇-▇▇▇-▇▇▇▇
City: Laguna Hills State: CA Zip: 92653
Insurance Co. GOLDEN EAGLE INSURANCE CO Policy #: CCP-598241-00
Lessee: Applied Data Communications, Inc.
We have entered into a lease agreement for the above listed equipment with a
value of $275,000.00
This is a net lease and we are not responsible for the insurance cost. Please
see that we have immediate coverage and notify below parties at once, in the
form of a copy of the insurance policy or a certificate of insurance. If the
latter is sent please include herein the standard ten-day notice of cancellation
clause.
Loss Payee Endorsement:
Lessor: Commercial Money Center, Inc. (▇▇▇) ▇▇▇-▇▇▇▇
and or their Assigns
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (▇▇▇)▇▇▇-▇▇▇▇ (fax)
Escondido, CA 92025
Lessor must be named as additional insured under a certificate of insurance so
indicating and further acknowledging that said policy may not be canceled for a
period of 30 days following written notice by insurance carrier.
PHYSICAL DAMAGE: Insurance is to be provided for fire, extended coverage,
vandalism and malicious mischief for the full value of the equipment.
LIABILITY: Coverage should be written with minimum limits of $100,000/$300,000
of BODILY INJURY and $50,000 property damage.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Lessee Signature
▇▇▇▇▇▇ ▇. ▇▇▇▇
Date: March 13, 2000
PLEASE NOTE: You agree that you must maintain the insured limits as stated above
for the duration of the lease. You agree that if you fail to obtain such
insurance, we may (but are not obligated to) obtain it and charge you a fee, in
which case, we will be the sole insured party and you will have no rights under
the insurance policy.
Exhibit "A"
Quantity Description Serial Number
1 K-14-I 5-color Silkscreen Printer for CD's
This Exhibit "A" is attached to and a part of Commercial Money Center, Inc.,
lease number K030312 and constitute a true accurate description of the
equipment. In signing Exhibit "A", ▇▇▇▇▇▇ acknowledges that Commercial Money
Center, Inc. will add or correct missing additional information to Exhibit "A"
upon completion of the equipment inspection report, and receipt of an original
vendor invoice.
LESSEE: Applied Data Communications, Inc.
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Date: March 13, 2000
INDEMNITY AGREEMENT
READ CAREFULLY
Each of the undersigned hereby affirms that the foregoing statements made and
answers given are the truth and are made to induce ___________________________
__________________________ (hereinafter called Surety) to execute or procure the
execution of any and all of the bonds described therein, and any extension,
modification, or renewal thereof, or substitution therefore. Each of the
undersigned further affirms that he understands the bond applied for is credit
relationship, and hereby authorizes Surety or its authorized agent, to gather
such credit information considers necessary and appropriate for purposes of
evaluating whether such credit should be granted.
IN CONSIDERATION of the execution of such bond, and in compliance with a promise
of the undersigned made prior thereto, the undersigned hereby agree, for
themselves, their personal representatives, successors and assigns, jointly and
severally, as follows:
1. To reimburse Surety, upon demand made for; and to indemnify and keep
indemnified Surety from:
(a) all loss, contingent loss, liability and contingent liability claim,
expense, including attorney's fees, for which Surety shall become
contingently liable by reason of such suretyship, whether or not Surety
shall have paid same at the time of demand; and
2. Surety shall have the exclusive right to determine whether any claim of suit
shall, on the basis of liability, expediency or otherwise, be denied, paid,
compromised, defended or appealed. An itemized statement of payments made by
Surety for loss, contingent loss, liability or contingent liability, and/or
expense, sworn to by an officer of Surety, or the voucher or vouchers for
such payments, shall be prima facie evidence of the obligation of the
undersigned to reimburse Surety.
3. The parties agree that at all times the place and formation of the
suretyship herein applied for and the place of performance of any and all
obligations that might arise under it shall be
__________________________________________
4. Each of the undersigned agrees to pay in full amount of the foregoing
regardless of (a) the failure of the principle to sign any such bond or (b)
any claim that other indemnities, securities, or collateral was to have been
obtained or (c) the release, return or exchange by Surety with or without
the consent of the undersigned, of any indemnity, security, or collateral
that may have been obtained or (d) the fact that any party signed this
instrument not bound for any reason.
5. The undersigned hereby expressly waive notice from Surety of any claim or
demand made against Surety or the principal is under the bond or of any
information Surety may receive concerning the principal, or bond.
6. Whenever used in this instrument the plural term shall include the singular
and the singular shall include the plural, as the circumstances require. If
any portion of this agreement be in conflict with any law controlling the
construction hereof, such portion of this instrument shall be considered
deleted and the remainder shall continue in full force and effect.
7. It is understood and agreed that it is the responsibility of each and every
indemnitor to notify the surety in writing when there is a change of address
and/or change of names.
8. "All parties agree that any microfilmed, scanned or electrically digitized
copy of this document made by Surety as a part of its record storage and
retention program shall be effective as the original for all purposes."
IMPORTANT Signed this ____ day of ________, 200__
If sole owner, applicant must sign
on behalf of firm. Owner and spouse
must sign personal indemnity below. Applied Data Communications, Inc.
FIRM NAME
If a partnership, two authorized
partners must sign on behalf of firm.
The two authorized partners and their
spouses must sign personal indemnity
below. ▇▇▇▇▇▇ ▇▇▇▇
PRINT NAME & TITLE
If a corporation, two corporate
officers must sign on behalf of firm.
Owners of the corporation and their
spouses must sign personal indemnity
below. SIGNATURE
PRINT NAME & TITLE
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. CFO/Secy.
SIGNATURE
STATEMENT OF PERSONAL INDEMNITORS
In consideration of the execution by
____________________________________________________________ of the suretyship
applied for, each of the undersigned, jointly and severally, agrees to be bound
by all of the terms of the foregoing indemnity agreement, executed by the
applicant, as fully as though each of the undersigned were sole applicant named
herein, and admit to being financially interested in the performance of the
obligation which the surety applied for is given secure.
▇▇▇▇▇▇ ▇▇▇▇
Print Name or Names Print Name or Names
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Indemnitor's Signature Indemnitor's Signature
/s/ ▇▇▇▇▇ ▇▇▇▇
Spouse's Signature Spouse's Signature
(If Single, So Indicate) (If Single, So Indicate)
▇▇▇▇▇ ▇▇▇▇
Print Name or Names
Indemnitor's Signature
Spouse's Signature (If Single, So Indicate)