EXHIBIT 10.134
FIXTURE FINANCING AGREEMENT WITH LONGWATER CAPITAL CORPORATION
LESSOR: LONGWATER CAPITAL CORPORATION
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LEASE NUMBER
BUSINESS LEASE AGREEMENT
LESSEE NAME
PLAY CO. TOYS & ENTERTAINMENT CORP.
LESSEE ADDRESS CITY COUNTY STATE ZIP
550 Rancheros Drive San Marcos CA 92069
VENDOR NAME ADDRESS CITY STATE ZIP
QUANTITY DESCRIPTION MODEL No, Serial No., or other identification COST
SEE EQUIPMENT SCHEDULE "A" $70,699.75
EQUIPMENT LOCATION: STREET CITY COUNTY STATE ZIP
If Other Than TOYS INTERNATIONAL
Billing Address 20 CITY BLVD. WEST #203 ORANGE CA 92868
PAYMENT DUE RENT PAYMENTS SALES/USE TAX TOTAL PAYMENT LEASE TERM
DATE
X Monthly Quarterly
Of Each
Month $ 2,485.10 Semi-Annually Annually $ 142.88 $ 2,627.98 36 Month
Advance Payment of $ 5,355.96 which equals the first and la5,255.96 payment(s) and a $ 100.00
documentation fee MUST ACCOMPANY LEASE.
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from
Lessor the personal property described above (herein called the "Equipment").
Upon Lessor signing below, this Lease shall become NONCANCELLABLE DURING THE
TERM STATED ABOVE by Lessee for any reason whatsoever, and Lessee shall be
obligated to pay Lessor all sums called for in this Business Lease Agreement
(Herein call the "Lease").
2. COMMENCEMENT AND TERMINATION. This Lease shall commence on the "Lease
Start Date" appearing below and, provided Lessee has successfully performed all
its duties and obligations under the Lease, shall terminate upon expiration of
the number of months (following the Lease Start Date) stated as the Lease Term.
3. RENT AND OTHER PAYMENTS. Lessee shall pay the advance rentals due under
the Lease, as stated above, upon signing the Lease. All such amounts shall be
non-refundable. Monthly rent payments due after the first month's rent shall be
payable on the "Payment Due Date" indicated above or on the first business day
thereafter if a Payment Due Date falls on a non-business day. Lessee agrees to
pay to Lessor a service charge of 5% per month, but not to exceed the maximum
amount permitted by law, on any payment due under the Lease which is not paid
within five days of the Payment Due Date. Lessee shall pay all sales, use,
excise, personal property, stamp, documentary, and ad valorem taxes, licenses
and registration fees, assessments, fines, penalties, and other charges imposed
on the ownership, possession, or use of the Equipment during the term of this
Lease, and Lessee shall pay all taxes (except income taxes imposed on Lessor)
with respect to the rental payments hereunder, and shall, with the next
scheduled payment reimburse Lessor for any taxes paid by or advanced by Lessor.
Lessee's obligations to pay such taxes, fees, assessments, fines, penalties and
other charges shall survive termination of the Lease. Lessee agrees that Lessor
may adjust the rent payment proportionally up or down if the actual cost of the
Equipment exceeds or is less than the amount stated in the Lease. All payments
under the Lease shall be made to Lessor at the address set forth above or at any
other address Lessor subsequently gives to Lessee for purposes of making
payment. In the event of default, payments made under the Lease may be applied
to Lessee's obligation to Lessor in any order Lessor chooses. Time is of the
essence with respect to all payments due and all other obligations of Lessee
under the Lease. All payments shall be made to Lessor via automatic draft
pursuant to Lessee's Pre-Authorized Draft Request or as Lessor may otherwise
designate in writing. In the event Lessee does not authorize the Draft Request,
a monthly billing charge of $5 per month shall be added to the Monthly Rental
Payment.
4. SELECTION OF EQUIPMENT. Lessee acknowledges that Lessor did not
participate in the selection, manufacture or supply of the Equipment and that
Lessee has made the selection of the Equipment and the supplier of such
Equipment based upon its own judgment. Lessee agrees to inspect the Equipment
and to execute the "Certificate of Acceptance," which is attached hereto, only
after the Lessee is satisfied that the Equipment is satisfactory in every
respect. Lessee hereby authorizes Lessor to insert in the Lease any equipment
serial numbers and other identification data relating to the Equipment as
needed.
5. DISCLAIMER OF WARRANTIES. BY SIGNING BELOW, LESSEE ACKNOWLEDGES THAT
LESSOR IS LEASING THE EQUIPMENT TO LESSEE "AS IS" AND WITH ALL FAULTS. LESSOR
MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
CONCERNING THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. LESSEE HEREBY WAIVES ANY CLAIM
(INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) IT MIGHT
HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGE) OR EXPENSE CAUSED BY THE EQUIPMENT. Provided Lessee is not in default of
this Lease, Lessor hereby assigns to Lessee and Lessee shall have the benefit
of, any and all manufacturer's warranties, service agreement and patent
indemnities, if any, with respect to the Equipment provided, however, that
Lessee's sole remedy for breach of any such warranty, indemnification or service
agreement shall be against the manufacturer of such Equipment and not against
the Lessor, nor shall such breach have any effect whatsoever on the rights and
obligations of Lessor or Lessee hereunder, LESSEE ACKNOWLEDGES THAT NETHER THE
SUPPLIER, BROKER NOR THEIR AGENTS OR EMPLOYEES ARE AGENTS OF LESSOR NOR ARE THEY
AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE WITHOUT THE
WRITTEN CONSENT OF LESSOR. NO AGREEMENT, EITHER WRITTEN OR VERBAL, BETWEEN
SUPPLIER AND LESSEE OR BROKER AND LESSEE SHALL BIND LESSOR UNLESS LESSOR
SPECIFICALLY CONSENTS TO SUCH AGREEMENT IN WRITING.
6. AMENDMENTS. No term or provision of this lease may be amended, altered,
waived, discharge or terminated except by written instrument signed by the
parties hereto, and, in compliance with UCC S2A-208(2) requiring a separate
signature of this provision. SEE REVERSE SIDE FOR ADDITIONAL TERMS AND
CONDITIONS WHICH ARE A PART OF THIS LEASE
ACCEPTED BY LESSOR: This agreement shall not be effective until executed by the
Lessee and accepted by an authorized representative of Lessor
at its principal place of business.
LONGWATER CAPITAL CORPORATION LESSEE PLAY CO. TOYS & ENTERTAINMENT CORP.
BY BY
TITLE
DATE (LEASE START DATE) WITNESS DATE
PERSONAL GUARANTY
In consideration Lessor entering into the above Business Lease Agreement
(the "Lease"), the undersigned (the "Undersigned'), jointly and severally,
personally and unconditionally guarantee to Lessor the prompt payment in full,
when due, of all of Lessee's obligations under the Lease including, without
limitation, every rental payable and the accelerated balance of rentals if
demanded by Lessor. Lessor shall not be required to proceed against Lessee or
Equipment or to enforce any other remedy before proceeding against the
Undersigned. The Undersigned agree to pay all attorneys' fees and other expenses
incurred by Lessor by reason of any default of Lessee or in enforcing the Lease
or this Guaranty. The undersigned waive notice of acceptance hereof and all
other notices or demands of any kind to which the Undersigned may be entitled
and consent to the granting of extensions of time for payment to Lessee and
other obligors and guarantors and to any other amendments or adjustments in the
terms of the Lease. This Guaranty shall bind the heirs, administrators,
representatives, successors and assigns of each of the Undersigned and may be
enforced by or for the benefit of any assignee or successor of Lessor. This
Guaranty shall be governed by the laws of the State of Missouri. The Undersigned
acknowledge that for purposes of enforcement of this Guaranty, each of the
Undersigned is conducting business n the State of Missouri and each agrees that
in the event of any litigation related to the Lease or this Guaranty, venue and
jurisdiction shall be proper in the Circuit Court for the City or County of St.
Louis, State of Missouri
SIGNATURE SIGNATURE
(INDIVIDUAL CAPACITY) (INDIVIDUAL CAPACITY)
(PRINT NAME) (PRINT NAME)
HOME ADDRESS AND PHONE NUMBER HOME ADDRESS AND PHONE NUMBER
DATE DATE
EQUIPMENT SCHEDULE "A"
DATE
This schedule is made a part of lease number between: PLAY CO. TOYS &
ENTERTAINMENT CORP. and LONGWATER CAPITAL CORP.
EQUIPMENT LOCATED AT: TOYS INTERNATIONAL
20 CITY BLVD. WEST #203
ORANGE, CA 92868
QUANTITY EQUIPMENT SERIAL #
1 1 THEMED TREE HOUSE
1 24' LETTERSET (TOYS INTERNATIONAL)
1 14' BEAR LOGO
1 CUSTOM AWNING
EQUIPMENT LOCATED AT: TOYCO
6170 WEST GRAND AVENUE
GURNEE, IL 60031
3 READING CORNER INTERIOR WALL SIGNS
Lessor: Longwater Capital Corporation Lessee: PLAY CO. TOYS & ENTERTAINMENT
CORP.
By: By:
LCC
LONGWATER CAPITAL CORPORATION
PURCHASE OPTION
Provided Lessee is not in default under the terms of a certain Equipment
Lease dated between Longwater Capital Corp. as lessor and PLAY CO. TOYS &
ENTERTAINMENT CORP. as Lessee and upon 60 days prior written notice, Lessee
shall have the right to purchase the equipment leased thereunder at the end of
the original or any renewal term of said Lease in whole and not in part, and on
an as-is where-is basis, for the sum of $1.00.
By: _________________________ Date: _________________________
Lessee:
By: _________________________ Date: _________________________
Barry Longwater
President
3251 Poplar Ave., Suite 130 Memphis, TN 38111
tel (901) 323-7009 toll-free (800) 246-7122 fax (901) 323-4030
Assignment of Lease and Equipment
For value received, the undersigned as lessor (the "Lessor") hereby sells,
assigns, transfers and sets over unto TRUSTCORP CAPITAL LEASING (the
"Assignee"), its successors and assigns, without recourse, except for a breach
of any representation of warranty contained herein, all its right, title and
interest in and to, but none of the obligation, duties, or liabilities of Lessor
contained in that certain lease dated 5/7/99 (the "Contract"), the original of
which is annexed hereto, between the undersigned as Lessor and PLAY CO. TOYS &
ENTERTAINMENT CORP. as Lessee (the "Lessee"), together with all other rights,
powers, and remedies of the Lessor under said Contract and the monies due
thereunder, including all guarantees or collateral of any kind pertaining
thereto, and Lessor shall transfer to Assignee all of Lessor's rights, title,
and interest in the personal property described therein (the "Equipment").
Assignee shall have the right, either in it's own name or in the name of the
Lessor, to take all legal, collection, billing, and other proceedings which
Lessor could have taken but for this Assignment, plus the right to endorse
Lessor's name upon any and all negotiable instruments for the payment of money.
Lessor warrants that said Contract and all related instruments of
guaranties are genuine and enforceable in accordance with their respective
terms; represent valid obligations; are not subject to defense, set off or
counterclaim; and are the only ones executed with respect to the Equipment.
Lessor further warrants all statements, including but not limited to amounts
due, contained in the Contract, related instruments and guaranties are true; the
Equipment described in said Contract has been delivered to, and accepted by
Lessee in condition satisfactory to Lessee; there are no maintenance or service
payments included in the rental payments due under the Contract; Lessor has the
power and authority to convey the Contract to Assignee, and to transfer title to
the Equipment to Assignee; at the time of this Assignment, title to the Contract
and to the Equipment was vested in the Lessor free and clear of all liens,
claims, and encumbrances; and Lessor will comply with all its warranties and
other obligations to Lessee.
In the event of the breach of any warranty or representation herein, Lessor
shall, upon demand, repurchase the Contract from Assignee for the unpaid balance
due thereon, and Assignee shall have the same rights and remedies against Lessor
the Lessor would have had against Lessee if there had been a breach of the
Contract by Lessee.
This Assignment and the rights and obligations of the parties hereunder
shall in all respects be governed by, and construed in accordance with the laws
of the State of MO including all matters of construction, validity and
performance.
Lessor: Longwater Capital Corp.
Barry Longwater, President
Date: