EX-10.28 33 ex1028.txt LEASE AGREEMENT WITH REPUBLIC LEASING COMPANY Exhibit 10.28 REPUBLIC LEASING COMPANY, A Division of Resource Bancshares Corporation P.O. Box 527, Columbia, SC 29202 (803) 750-4100 FAX (803) 750-4112 Lease No. _______________ LEASE AGREEMENT Page 1 of 3 THIS LEASE CANNOT BE CANCELLED TERMS AND CONDITIONS ------------------------------------- PLEASE READ CAREFULLY BEFORE SIGNING SCHEDULE OF RENTAL PAYMENTS 1. Lease. Lessor hereby leases to ------------------------------------- Lessee and Lessee hereby leases from INITIAL TERM OF LEASE (MONTHS) 36 Lessor all items of equipment (individually, an "Item" and TOTAL NUMBER OF RENTAL PAYMENTS 36 collectively, the "Equipment") described on Page 3 under the terms END OF LEASE PURCHASE OPTION FMV set forth herein. The term ("Term") of the Lease commences on the date the RENT (PLUS APPLICABLE TAXES) $971.40 Acknowledgement of Delivery and ------------------------------------- Acceptance ("Acknowledgment") is 1ST MONTH'S RENT $1,041.83 signed by Lessee and ends, unless terminated as provided herein, at the SECURITY DEPOSIT +1,041.83 end of the Initial Term shown above. Lessee shall pay all rent ("Rent") AMOUNT DUE WITH LEASE $2,083.66 hereunder in advance, plus applicable ------------------------------------- taxes, on the date specified by Lessor in writing. This Lease is a "finance GUARANTY OF LEASE lease" and not a "consumer lease" as defined in the Uniform Commercial In order to induce Lessor to enter ("UCC"). Lessee will use the Equipment into this Lease, Guarantor(s), jointly only for business purposes consistent and severally. guarantees the full with the terms hereof. performance by Lessee of all terms and conditions of the Lease. This Guaranty 2. Equipment. SEE PAGE 3. Location if is continuing, absolute and different from below: unconditional and may be enforced by Lessor directly against Guarantor STREET 10825 Barely Lane Ste.D without prior action against Lessee CITY/STATE Houston, TX and Guarantor waives all demands, ZIP/CNTY 77070 - Harris notices of non-performance or default and any defense based on any Lessee agrees that (1) it has selected arrangement or agreement between the the Equipment and Supplier: (2) Lessor and Lessee. Guarantor waives neither Lessor nor any broker is the any right of subrogation against agent or affiliate of the Supplier and Lessee. This Guaranty may not be the Supplier and its salesmen are nut waived or amended except in a writing Lessor's agents or affiliates: (3) the signed by Lessor. See "Applicable Law" Equipment is leased "AS LS" and Lessor below, which applies to this Guaranty is not responsible for any failure of as well as the Lease. any Item to function properly or to conform to Lessee's needs; (4) Lessee GUARANTOR /s/ John Michael Sandel will only accept each Item when it functions as desired anti Lessee's Print Name John Michael Sandel execution of Acknowledgement is conclusive evidence of full inspection Home Address 8115 Glen Cliffe, by Lessee and Lessee's agreement that Houston, TX 77070 this Lease is non-cancellable as to such Item. Lessee waives any defense, GUARANTOR ___________________________ counterclaim or right of offset it may have arising by reason of any alleged Print Name __________________________ defect in any Item or related property. Equipment will at all times Home Address ________________________ remain personal property owned solely by Lessor. LESSOR DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND AS TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR LESSEE'S PARTICULAR PURPOSE. I am authorized to sign this Lease on behalf of Lessee (or I am the sole proprietor doing business as the Lessee. I have read this Lease and discussed it with counsel to the extent I believe necessary and, on behalf of Lessee, I acknowledge that THIS LEASE CONTAINS THE ENTIRE AGREEMENT OF LESSOR AND LESSEE AND MAY NOT BE ALTERED EXCEPT IN A WRITING SIGNED BY LESSOR. CONTACT:___________ TELE. (281) 469-9355 LESSEE Faith Walk Designs, Inc. Address 10825 Barely Lane Ste. D, Houston, TX 77070 By /s/ John Michael Sandel Title President Print Name J.M. Sandel Date _________ APPLICABLE LAW; JURISDICTION AND VANUE. Lessee hereby acknowledges that this Lease was entered into in the State of South Carolina, County of Lexington, and that the parties have agreed to the terms of this Lease with the understanding that any action or proceeding regarding this Lease or the Equipment shall be maintained in the state or federal courts in Lexington, SC and Lessee hereby submits to jurisdiction and venue in Lexington, SC, waiving any claim of improper jurisdiction or venue or forum non conveniens and agreeing to accept service at Lessee's place of business in any such action. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of South Carolina, applied without giving effect to conflict-of-laws principles, except that UCC Article 2A shall apply whether or not adopted by such state. SEE PAGES 2 AND 3 FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE MADE A PART HEREOF, ONCE SIGNED, LESSEE MAY NOT CANCEL THE LEASE OR RETURN THE EQUIPMENT UNTIL THE TERM ENDS. ACCEPTED BY LESSOR: REPUBLIC LEASING COMPANY By /s/ Its President Date 5/18/98 TERMS AND CONDITIONS OF LEASE NO. Page 2 of 3 TERMS AND CONDITIONS OF LEASE NO._________________Page 2 of 3 3. Lessee's Duties. Lessee will keep payable all sums due and to become due the Equipment free and clear of all hereunder for the full Term; (C) with liens, encumbrances and security or without terminating this Lease, interests at Lessee's sole cost and recover from Lessee as liquidated expense. Lessee will indemnify and damages and not as a penalty, the sum hold Lessor harmless from and against of (i) any accrued and unpaid Rent as any and all claims, lawsuits. actions, of the date of entry of judgment in penalties, expenses and liabilities favor of Lessor plus interest at the (including, without limitation, Contract Rate; (ii) the present value negligence, strict liability, patent, of all future Rents discounted at a copyright, trademark and tort claims) rate equal to the discount rate of the in any way arising with respect to Federal Reserve Bank of Atlanta as of this Lease or any item. Lessee will the date of entry of judgment in favor pay all license and registration fees, of Lessor: (iii) all costs and property, stamp, intangibles, excise, expenses incurred by Lessor in any ad valorem and other fees or taxes in repossession, recovery, storage, any way arising with respect to this repair, sale, lease, or other Lease or any Item during the Term. disposition of the Equipment including Lessor shall not be obligated to attorneys' fees and costs ("Recovery contest any such fee or tax. Lessee's Costs"); (iv) Lessor's estimate of the obligations under this Section shall residual value of the Equipment; and survive expiration or termination of (v) any indemnity. if then the Term. determinable, plus interest at the Contract Rate; (D) in its sole 4. Return. Unless Lessee purchases discretion, lease or sell any Item at Equipment as provided in Section 8, a public or private sale on such terms upon expiration or termination of the and notice as Lessor shall deem Term. Lessee shall at its sole cost, reasonable and recover from Lessee any (a) place the Equipment in the liquidated damages and not as a condition required by Section 12 and penalty, the amount described in in as good condition as when received, clause (C) of this Section. reduced by less normal wear and tear and (b) the amount received by Lessor upon cause the Equipment to be properly such public or private sale or lease disconnected, crated and shipped, of such Item. if any: and/or (E) insured as required under Section 14, exercise any other right or remedy to a location and by a carrier which may be available to it under the designated by Lessor. Should Lessee UCC or any other applicable law. A fail to comply fully with this termination hereunder shall occur only Section, Lessee shall continue to pay upon notice by Lessor and only as to pro rata daily Rent hereunder, such such Items as Lessor specifically noncompliance to constitute an event elects to terminate and this Lease of default hereunder, irrespective of shall continue in full force and such Rent payments. effect as to the remaining terms, if any. No remedy referred to in this 5. Assignment. LESSEE MAY NOT PLEDGE, Section is intended to be exclusive, CANCEL, REVOKE, OR ASSIGN THIS LEASE but shall be cumulative and in OR SUBLEASE, ABANDON OR TRANSFER addition to any other remedy referred POSSESSION OF ANY ITEM or any of its to above or otherwise available to rights herein or in the Equipment, any Lessor at law or in equity. attempted breach of this Section constituting a default hereunder. 8. Option to Purchase. If Lessee is Lessor reserves the right, without not in default hereunder and this notice to or consent of Lessee, to Lease has not been previously assign, mortgage, pledge or otherwise terminated. Lessee may purchase all of transfer any of its rights in this the Equipment upon expiration of the Lease or any item and Lessee shall Term upon ten (10) days prior written (upon notice) render all performance notice to Lessor for the amount shown hereunder to such transferee, who as the "End of Lease Purchase Option" shall be entitled to all rights and above plus any applicable tax or, if benefits assigned to it by Lessor, but no End of Lease Purchase Option is under no obligation to Lessee. shown, for the Fair Market Value, plus applicable taxes on the basis of and 6. Late Fees Right to Perform. If be equal to an amount which would be Lessor does not recieve Rent or any paid by an informed and willing buyer other amount due hereunder within five and accepted by a seller. under no (5) days after the date due hereunder, compulsion to sell, in an arms-length Lessee shall pay to Lessor (in transaction assuming such Items are in addition to such Rent or other the condition required by this Lease payment) a late fee of ten percent and are sold at retail. (10%) of such Rent or other payment. If Lessor refers any collection or 9. Security Deposit. The security other enforcement of this Lease to deposit stated above has been counsel. Lessee shall reimburse Lessor deposited with Lessor as security for for all fees and costs, together with full performance of all of the terms interest at eighteen percent (18%) per and conditions of this Lease. Upon annum ("the Contract Rate"). If Lessee acceptance of this Lease, Lessor shall shall fail to carry any insurance, pay deduct from the security deposit a any tax, or render any other nonrefundable document filling fee of performance hereunder. Lessor, at its eighty-seven dollars for nontitled sole option and without obligation, equipment and ninety-seven dollars for may do so. On demand. Lessee shall titled equipment. Lessor may, but reimburse Lessor for all costs shall not be required to apply all or incurred hereunder together with any portion of the security deposit to interest at the Contract Rate. any obligation of Lessee hereunder. The security deposit may be commingled 7. Default: Remedies. An event of by Lessor with other funds and shall default shall occur hereunder if not bear interest. If Lessor applies Lessor does not receive Rent or other the security deposit to Lessee's sum when due hereunder; or if Lessee: obligations hereunder. Lessee shall (a) fails to perform or observe any immediately restore same. Upon other covenant, condition or agreement Lessee's full performance of all terms hereunder or breaches any and conditions of this Lease, Lessor representation of Lessee herein or in shall, at the request of Lessee, any other writing furnished to Lessor return any remaining Security Deposit in connection herewith: or (b) shall to Lessee. (1) be adjudicated insolvent or bankrupt or cease to pay its debts as 10. Lessee Waivers. Lessee, to the they mature, make a general assignment extent permitted by applicable law, for the benefit of or enter into an HEREBY WAIVES ALL RIGHT TO TRIAL BY arrangement with creditors, (2) apply JURY IN ANY ACTION ARISING HEREUNDER for or consent to the appointment of a OR IN ANY WAY CONNECTED WITH THIS receiver, trustee or liquidator of it LEASE OR THE EQUIPMENT. As this Lease or a substantial part of its property, has been drafted by Lessor's counsel or (3) authorize or file a voluntary as a convenience to the parties and petition in bankruptcy or under any Lessee has had the opportunity to similar law, consent to such a review it with counsel of its choice, petition or suffer such a petition or this Lease shall not be construed proceedings to be instituted against against any party by reason of it and remain undismissed for a period draftsmanship. LESSEE FURTHER WAIVES of sixty (60) days; or (c) shall AND RELEASES ANY RIGHTS AND REMEDIES evidence to Lessor reasonable grounds CONFERRED UPON LESSEES BY SECTIONS for insecurity in Lessee's business or 2A-508 THROUGH 2A-522 OF THE UCC OR financial condition after the date ANY SIMILAR LAWS, including, without hereof (or such grounds shall exist as limitation, any right to cancel or to any guarantor of this Lease); or repudiate this Lease, reject or (d) shall default under any other revokes acceptance of the Equipment, agreement with Lessor, or any or assert any claim for damages or agreement with any third party security interest in any of the material to Lessee's business or Equipment. providing for the repayment of money borrowed. Upon the occurrence of an event of default and at any time thereafter, Lessor may in its sole discretion, do any one or more of the following: (A) terminate this Lease and recover the Equipment: (B) declare immediately due and Signor's Initials /s/ JMS TERMS AND CONDITIONS OF LEASE NO. 00008069 Page 3 of 3 11. Miscellaneous. This Lease shall replacement parts being automatically only be valid when accepted in writing transferred to Lessor. Any property by Lessor at its home office. If, attached to any Item shall contrary to the parties' intention, automatically become Lessor's property this lease is held to create a unless removable without damage to security interest in any Item, Rent such Item. for such Item shall be reduced so that any interest portion is the highest 13. Loss; Damage. Lessee assumes the rate permitted by applicable law. All entire risk of loss (including, interest due hereunder shall be without limitation, theft or reduced if required to equal the requisition) or destruction of the highest rate permitted by applicable Equipment or damage to the Equipment law, provided, Lessee waives, to the from any cause whatsoever, whether or extent permitted by law, the right to not insured until the Equipment is seek such reduction. No forbearance or delivered to Lessor under Section 4. delay by Lessor shall be deemed to In the event of any loss, damage or create a waiver or course of dealing destruction as to any Item, Lessee between the parties. Lessee hereby will immediately notify Lessor and adopts the typed version of its name, Lessee's inured in writing. No such inserted by Lessor in any financing loss, damage or destruction will statement, or related continuation, relieve Lessee of its duties hereunder termination or amendment filed by or end the Term. At Lessor's option. Lessor in connection herewith. Lessee Lessee will either (a) repair such authorizes Lessor to by endorse or Item. (b) replace such item with otherwise sign any such financing equipment of like value and utility statement or any other document or (assuming proper maintenance) instrument necessary to protect or acceptable to Lessor, or (c) pay to preserve Lessor's interest herein, in Lessor an amount, reasonably the Equipment or in any insurance or calculated by Lessor (without retard other proceeds of the Equipment. to insurance) to give Lessor all of Nothing herein shall imply that Lessor the benefits of its ownership of such is a "merchant" under the UCC. Lessee item and amounts payable hereunder but agrees to execute and deliver any for such loss, destruction or damage. additional writings and take any other actions Lessor reasonably requests to 14. Insurance. Lessee will keep the evidence or effect Lessee's agreements Equipment insured against all risks in and obligations hereunder. The amounts specified by Lessor from provisions of this Agreement shall be time-to-time but in no event less than severable, and if any provision shall the greater of replacement value or be invalid, void or unenforceable in the total of all Rents for the full whole or in part for any reason, the Term. Lessee will at all times carry remaining provisions shall remain in commercial liability insurance in full force and effect. This Agreement amounts specified by Lessor. In the shall be binding upon and shall inure event that Lessee does not provide to the benefit of the parties hereto Lessor with proof of insurance, Lessor and their respective heirs, personal has the right, but not the obligation, representatives, successors and to obtain insurance on Lessees behalf. assigns (subject nevertheless to Lessee will reimburse Lessor on a restrictions provided in Section 5). monthly basis for full cost of premium, including charges and Fees of 12. Use: Maintenance. Lessee will not lessor and/or the highest rate legally move any Item from the location permissible. All insurance shall be in specified above without Lessor's prior form, amounts and with insurance written consent. Lessor may inspect companies satisfactory to Lessor, who the Equipment at any time during may on reasonable notice require normal business hours. Lessee will, at Lessee to change such form, amount or its own expense (a) use and maintain company. Lessor shall be named loss the Equipment only in accordance with payee on all property damage insurance applicable law, insurance requirements and additional insured on all and operating manuals and liability insurance provided hereunder instructions, (b) keep the Equipment and shall have the right to acceptable in good working order and condition certificates or other evidence of and (c) make all modifications insurance at any time, together with required by applicable law, operating standard lender/lessor waivers of instructions or requirements of any premium, subrogation and insurer or maintenance organization cancellations. Insurance proceeds servicing the Equipment. Lessee will shall be applied first to Lessee's not modify or alter any Item without obligations under Sections 6 and 7, Lessor's prior written consent then to Lessee's other obligations excepting regular maintenance, hereunder. ownership of all repair or 15. Equipment List: Supplier Networked Financial Systems, Inc. Navision Financial Software -------------------------------------------------------------------------------- ACKNOWLEDGEMENT OF DELIVERY AND ACCEPTANCE: Date of Acceptance__________________ Lessee Faith Walk Designs, Inc. By /s/ John Michael Sandel Title President Print Name J.M. Sandel -------------------------- ----------------- -------------------------- The above signed hereby authorizes, in Signer's absence,_______________to orally verify acceptance of the equipment and permission to pay Supplier. On behalf of the Lessee, I hereby state (1) I am authorized to sign this Acknowledgement, (2) all Items of Equipment have been delivered in a satisfactory manner, are in good condition and working order, are satisfactory in all respects and are HEREBY ACCEPTED; (3) the Lessor may rely on these representations (which may be confirmed orally) in making full payment to the Supplier; and (4) the Lease commences on the Date of Acceptance shown above and is now NON-CANCELLABLE, ABSOLUTE, and IRREVOCABLE, the Lessee waiving any right it might have to return any Item for any reason except as expressly provided in the Lease at the end of the Term. --------------------------------------------------------------------------------