Exhibit 99.2
LEASE NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PM
LEASE AGREEMENT
- -----------------------------------------------------------------------------------------------------------------------------
Lessee Full Legal Name and Address: Lessee Fed ID/Social Lessor Name and Address:
Security No. DELL FINANCIAL SERVICES L.P.
CALL COMPLIANCE, INC ONE DELL WAY
113639202 ROUND ROCK, TX 78682
(Please do not remit Rent payments to this
address. For payment address, see Rent
90 PRATT OVAL section noted below.)
GLEN COVE NY, 11542
Attn: BARRY BROOKSTEIN
- -----------------------------------------------------------------------------------------------------------------------------
Shipping Address (if different) See Attachment A Type of Business Commencement Date
Corporation
- -----------------------------------------------------------------------------------------------------------------------------
Dell Order Information Lease Information
- -----------------------------------------------------------------------------------------------------------------------------
Dell Order Number: See Attachment A Monthly Rent:" $374.92 ("Rent")(payable in arrears)
Asubject to Applicable Tax
- -----------------------------------------------------------------------------------------------------------------------------
Dell Equipment Order Total: $: 11,532.00 Lease Term: 36 months from the Commencement Date (defined below)
- -----------------------------------------------------------------------------------------------------------------------------
Financed Sales Tax: $: 0.00 Monthly Property Tax Management Fee:" 0.00 ("PPT Fee")
ASubject to Applicable Tax
- -----------------------------------------------------------------------------------------------------------------------------
Shipping and Handling: $: 14.00 Lease Processing Fee: $ 75.00 ("Processing Fee")
- -----------------------------------------------------------------------------------------------------------------------------
Dell Order Total: $ 11,546.00 End of Lease Purchase Option: $1.00
- -----------------------------------------------------------------------------------------------------------------------------
TERMS AND CONDITIONS OF LEASE AGREEMENT
Acceptance of Lease: In return for this Lease Agreement ("Lease") from Dell
Financial Services L.P. ("Lessor" or "we" or "us"), you, the Lessee ("Lessee" or
"you" or "your"~, promise to pay the Rent and perform all of the obligations of
Lessee to us or our transferees. We will pay the total amount of the invoice to
Dell Computer Corporation or its affiliates (hereinafter "Dell" or "Supplier"),
for the purchase of equipment, services and software you ordered from Dell (the
"Products") plus shipping and handling as shown above in the Dell Order
Information and on Attachment A. The Rent includes the Dell Order Total above
plus the PPT Fee and the Processing Fee. At your request, this written copy of
the Lease is being provided to you by electronic means or otherwise. LESSEE
ACKNOWLEDGES THAT THE PASS CODE APPEARING AT THE BOTTOM OF THIS LEASE REPRESENTS
LESSEE'S SIGNATURE PROVIDED BY AN AUTHORIZED REPRESENTATIVE OF LESSEE TO US BY
TELEPHONE. YOU ACKNOWLEDGE THAT LESSEE OR LESSEE'S AUTHORIZED REPRESENTATIVE
AUTHORIZED US TO PLACE THE LESSEE'S PASS CODE SIGNATURE ON THE LEASE WITH THE
INTENTION OF BINDING LESSEE TO THE TERMS AND CONDITIONS OF THE LEASE. IF THERE
IS ALSO A PERSONAL GUARANTOR ("GUARANTOR") OF THE LEASE, GUARANTOR ACKNOWLEDGES
THAT THE PASS CODE, WITH THE LETTERS "PG" IN FRONT OF IT, THAT APPEARS AT THE
BOTTOM OF THE LEASE REPRESENTS GUARANTOR'S SIGNATURE. GUARANTOR ALSO
ACKNOWLEDGES THAT GUARANTOR AUTHORIZED US TO PLACE HIS OR HER SIGNATURE ON THE
LEASE WiTH THE INTENTION OF BINDING GUARANTOR. YOU (OR GUARANTOR, IF APPLICABLE)
MUST NOTIFY US THAT YOU DO NOT AGREE TO THIS LEASE WITHIN I BUSINESS DAY AFTER
YOU RECEIVE IT. AFTER I BUSINESS DAY, WE WILL AUTHORIZE DELL TO FULFILL YOUR
PRODUCT ORDER. A BUSINESS DAY IS ANY DAY (EXCEPT SATURDAY, SUNDAY OR A LEGAL
HOLIDAY) THAT COMMERCIAL BANKING INSTITUTIONS IN CHICAGO, ILLINOIS ARE OPEN FOR
BUSINESS. You acknowledge that we are relying upon the accuracy of the
information you (and Guarantor, if applicable) have provided during the lease
application process. If we learn that this information is incorrect, inaccurate
or misleading in any way, you agree that we may void this Lease and instruct
Dell not to ship the Products. You further acknowledge that this Lease Is for
business purposes and not for personal, family or household uses and that the
Lease Is a valid, binding and authorized obligation of the Lessee named above
and the person entering into this Lease for the Lessee Is authorized to do so.
Acceptance of Products; Commencement of Lease; Modification of Order; Return of
Products: The Products will be deemed Irrevocably accepted for purposes of this
Lease five (5) days after shipment from the Supplier (the "Acceptance Date").
This Lease will begin on the Commencement Date specified on the first page of
this Lease, or if no date is specified, you give us the right to insert the
Commencement Date as the closest ~ ~ ~th 13TH, l7~ or 21ST of the month
following the Acceptance Date (the "Commencoment
LEASE NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PM
Date"). Your acceptance of the Products is subject to the Dell "Total
Satisfaction Return Policy" (the "Policy"), which Policy can be found at
www.dell.com. The Policy allows you to ask Dell to allow you to return the
Products to Dell within 30 days after shipment from Dell, in the condition and
manner required by Dell under the Policy. When Dell gives us a credit for
Products you properly returned under the Policy, we will apply any such payment
we receive from Dell as a credit against the amounts owed under this Lease,
however, you agree that you shall continue to owe all unpaid amounts.
YOU ACKNOWLEDGE THAT: (I) YOU SELECTED THE PRODUCTS AND YOU WILL NOT ASSERT ANY
CLAIMS THAT YOU MAY HAVE WITH RESPECT TO THE PRODUCTS AGAINST US; (2) YOU HAVE
AN UNCONDITIONAL OBLIGATION TO PAY ALL AMOUNTS UNDER THIS LEASE AND YOU CANNOT
WITHHOLD, SET OFF OR DEDUCT PAYMENTS FOR ANY REASON; AND (3) YOU MAY NOT CANCEL
OR TERMINATE THIS LEASE.
Rent; Rent Adjustment: You agree to pay us the monthly Rent in the amount and
for the number of months of the Lease Term stated above. Payments are in arrears
with the first Rent payment due on the thirtieth (30th) day after the
Commencement Date and following Rent payments will be due on the same day of
each subsequent month; provided, however, that added to the first payment of
Rent shall be a prorated portion of Rent calculated based on a 30-day month or
90-day quarter (as appropriate) for the period from the Acceptance Date to the
Commencement Date. You agree to make all Rent payments required under this Lease
to us at the address noted on your invoice. You authorize us to adjust the Rent
amount shown above (increase up to 15% or decrease) based on changes in the
final Dell Total Order (which is all amounts we have paid or will pay in
connection with the purchase, delivery, and installation of the Products,
including any trade up and buyout amounts and including any changes by you in
your Product order). If we adjust your Rent amount based on the prior sentence,
the new Rent amount will be in your invoice. You may contact us to request
written confirmation of a Rent adjustment
Late Charges; Returned Checks: You must pay a late charge of 1.5 % of the Rent
(or the highest interest rate permitted by law, whichever is less) for each
payment not received in full within 5 days after the due date. Your payment of a
late charge or our acceptance of a late payment does not excuse your default or
mean that you can keep paying Rent late. You agree to pay a charge of $25 for
any check you give that is returned unpaid for any reason.
Title; Location and Use; Security Interest: Except for software that is subject
to a separate license ("License"), we are the owner of and will hold title to
the Products. You will keep the Products free from any and all liens,
encumbrances and claims. You will keep and use the Products at the location
shown in the Lease and you may not move the Products without our prior written
consent. You will keep the Products in good condition and repair and use all
software in accordance with the terms of its end user License. You may make
additions or improvements to the Products unless the addition or improvement
would violate any License, decrease the value of Products, result in any lien,
encumbrance or claim on or to the Products or impair their utility. You are
responsible for the shipping, installation, deinstallation and maintenance of
the Products. You agree that this is intended to be a true lease under UCC
Article 2A but if It is later deemed to be A lease intended for security under
UCC Article 9, this Lease constitutes the grant to us of a purchase money
security interest in the Products and any replacements, substitutions,
additions, attachments and proceeds.
Loss or Damage; Insurance: As between you and us, you accept all risks of loss
and damage to the Products ("Loss") from the shipment of the Products to you
until you return them to us. You must notify us immediately if there is any Loss
and we will tell you to either (a) repair or replace the Products or (b) pay us
the "Stipulated Loss Value" which is the sum of: (i) all Rent and other amounts
due, and currently owed to us under the Lease, including unpaid taxes, (ii) all
future Rent payments that would accrue over the remaining Lease Term plus our
estimated value of our residual interest of all of the Products at the end of
the Term, such sum to be discounted to present value at a discount rate equal to
the Federal Reserve Bank Discount Rate in effect at the Commencement Date of the
Lease and (iii) any costs and expenses Incurred as a result of this event. For
the Lease Term set forth above, you will maintain property casualty Insurance in
an amount equal to the replacement value of the Products naming us as loss payee
and public liability and third party property damage insurance naming us as an
additional insured. At our request, you will deliver the policies or
certificates of insurance to us. If you do not give us evidence of insurance we
may obtain such insurance and charge you for the cost. The foregoing poiicy(ies)
shall provide that It may not be cancelled or materially altered without at
least 30 days' prior written notice to us.
Taxes: You will pay when due, either directly or to us on demand, all local,
state and federal taxes, fines or penalties which may be imposed or levied upon
the Lease and the Products. We may, at our option, charge you the monthly PPT
Fee in the amount above, for the administration of the property taxes on the
Products.
Assignment: YOU MAY NOT ASSIGN, SELL, TRANSFER, OR SUBLEASE THE PRODUCTS OR YOUR
INTEREST IN THiS LEASE. We may, without notifying you, sell, assign or transfer
the Lease and our rights in the Products. The transferee will have all of our
rights, but none of our obligations. The rights of the transferee will not be
subject to any claim, defense, or setoff that you may have against us.
Default; Remedies: Each of the following is a default ("Default") under the
Lease: (a) you fail to pay any Rent when due, (b) you don't perform your Lease
obligations, (c) you become insolvent or enter into (or have entered against
you) bankruptcy, receivership, reorganization, dissolution, liquidation or other
similar proceeding and (d) you provide us with incorrect or untrue Information.
If a Default occurs, we may (a) cancel or terminate the Lease; (b) require you
to pay us a sum equal to (I) the Stipulated Loss Value calculated above plus;
(ii) any costs and expenses (including breakage fees) incurred as a result of
the Default; (c) require you to deliver
LEASE NO. 003-006029745-003
DATE:OCTOBER 18 200401:59:15 PM
the Products to us; (d) peacefully repossess the Products withou?court order;
and (e) exercise any other right at law or in equity. You agree to pay all of
our costs of enforcing our rights against you, including reasonable attorney's
fees.
End of Lease; Return: This Lease will automatically renew for additional
three-month periods on the same terms and conditions (including the same monthly
Rent payments) unless you notify us 90 days before the expiration of the term or
any renewal term. If you are not in Default and your 90 day notice specifies it,
you may purchase all, but not less than all, of the Products for the option
price specified above. If the option is Fair Market Value, we will determine the
purchase price based on our reasonable discretion. On the last day of the Lease
term, or any renewal term, you will pay us the full purchase price for the
Products in cash (plus applicable taxes) and we will sell the Products to you
"AS IS-WHERE IS". Unless the Lease is renewed or you purchase the Products, you
will immediately deliver the Products (including but not limited to cables,
power cords, keys, etc.) in good repair, operable condition and able to qualify
for the manufacturer's warranty service (ordinary wear and tear excepted) to any
place in the continental United States that we direct. Upon your return of the
Products, you agree that your license with respect to Microsoft operating system
software terminates and you certify that you will either (I) return all copies
of the manuals, printed material, certificates of authenticity and media (the
"Operating System Software Kit") or (ii) destroy all copies of the Operating
System Software Kit, leaving the original operating system installed and
functional. You will pay all expenses for deinstalling, packing and shipping and
you will insure the Products for the full replacement value during shipping. You
will immediately pay us on demand the costs and expenses of all missing or
damaged Products.
Entire Agreement; Electronic Signatures and Records: You agree that the terms
and conditions of this Lease make up the entire agreement between you and us
regarding the lease of the Products and supercede any prior written or oral
communications, agreements or the like between you and us. To the extent (if
any) that this Lease constitutes chattel paper under the Uniform Commercial
Code, the authoritative copy of the Lease shall be the copy designated by our,
assignee, or us from time to time, as the copy available for access and review
by you and us or our assignee. All other copies are deemed identified as copies
of the authoritative copy. In the event of inadvertent destruction of the
authoritative copy, or corruption of the authoritative copy for any reason or as
the result of any cause, the authoritative copy may be restored from a backup or
archive copy, and the restored copy shall become the authoritative copy. At our
option, this electronic record may be converted into paper form. At such time,
such paper copy will be designated or marked as the original copy of the Lease.
You agree that the printed pass code(s) on the original paper Lease is/are
authorized signature(s). You agree that, notwithstanding any rule of evidence to
the contrary, in any hearing, trial or proceeding of any kind with respect to
this Lease, we may produce a tangible copy of the Lease with the signature(s) in
the form of pass code(s) and such signed copy shall be deemed to be the original
of this Lease.
Notices; Miscellaneous: All notices under this Lease will be given in writing or
electronically and will be considered given when deposited in the U.S. mail,
postage prepaid, or when sent by fax or e-mail addressed to the respective
address given in the Lease or to a substitute address specified in writing or
electronically by one of us to the other. It is the express intent of both of us
not to violate any usury laws, or to exceed the maximum amount of time price
differential, or interest as applicable permitted to be charged, or collected
under applicable law and any such excess payment will be applied to payments
under the Lease in inverse order of maturity and the remaining payments will be
refunded to you. This Lease is a final expression of the agreement between you
and us and may not be contradicted by evidence of any oral agreement or
statement.
Governing Law: THIS LEASE IS GOVERNED BY THE LAW OF ILLINOIS AND, TO THE EXTENT
APPLICABLE, THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. YOU
CONSENT TO THE JURISDICTION OF ANY COURT LOCATED WITHIN ILLINOIS AND EXPRESSLY
WAIVE THE RIGHT TO A TRIAL BY JURY. If this applicable law does not allow all
the agreements in this Lease, the ones that are not allowed will be void. The
rest of this Lease will still be valid.
ARBITRATION: Either you, the Lessor, or anyone to whom this Lease is transferred
may choose to have any dispute arising under this Lease resolved by binding
arbitration. The party demanding arbitration may elect for the arbitration to be
conducted under the rules then in effect of either the National ArbItration
Forum ("NAF"); JAMS/Endispute; or the American ArbitratIon Association. Where
available, the arbitration shall be conducted under the commercIal rules of the
selected forum, as amended by this Arbitration Clause. Arbitration rules and
other information are available by contacting these arbitration forums:
American Arbitration Association JAMS/Endispute National Arbitration Forum
1150 Connecticut Avenue, NW, Floor 6 700 11th Street, N.W., Suite 450 P.O. Box 50191
Washington, D.C. 20036-4104 Washington, D.C. 20001 Minneapolis, MN 55405
www.adr.org www.jams.endlspute.com www.arb-forum.com
202-296-8510 800-352-5267 612-631-1105
Any party may elect to arbitrate even If an action has been filed in court, so
long as no judgment has been rendered. However, if the party that has not
demanded arbitration prefers to proceed In small claims court instead of
arbitrating the claim, the party that has demanded arbitration shall be required
to revoke the demand for arbitration and litigate in small claims court after
receiving adequate assurance that the total of all current and future claims to
be raised in the small claims court action by the party that has not demanded
arbitration will not exceed a total amount in controversy of $5,000.
A SINGLE ARBITRATOR SHALL HOLD THE ARBITRATION HEARING IN THE FEDERAL JUDICIAL
DISTRICT WHERE YOU ARE LOCATED. THE ARBITRATOR SHALL
LEASE NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PM
apply applicable law. The arbitrator's award shall be final and binding on all
parties, except that in the event of an award in excess of $100,000, the non
prevailing party may request a new arbitration by a three-arbitrator panel under
the selected `forum's rules.
Each party shall pay its own arbitration costs and expenses, including
attorneys' fees, except that the arbitrator may award attorneys' fees, court
costs and other charges If applicable law permits. Either party may enter
judgment on the award in the highest local, state or federal court or before any
administrative body that has jurisdiction. This Arbitration Clause shall survive
termination or expiration of this Lease. No class action arbitration may be
brought or ordered under this Arbitration Clause and there shall be no joinder
of parties, except for joinder of parties mentioned In this Arbitration Clause.
UNDER THIS ARBITRATION AGREEMENT, DISPUTES BETWEEN THE PARTIES MAY BE RESOLVED
BY BINDING ARBITRATION EVEN IF YOU WOULD PREFER TO SETTLE YOUR DISPUTE IN COURT;
YOU MAY NOT HAVE THE RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A
JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR TO BE
EXAMINED IS MORE LIMITED IN ARBITRATION THAN IN A LAWSUIT; AND, YOUR RIGHTS TO
APPEAL OR CHANGE AN ARBITRATION AWARD IN COURT ARE VERY LIMITED. IF YOU ARE IN
DEFAULT, WE RETAIN AN OPTION TO USE JUDICIAL OR NON-JUDICIAL RELIEF TO ENFORCE
OUR INTEREST IN THE PRODUCTS AND TO ENFORCE THE MONETARY OBLIGATION. JUDICIAL
RELIEF WOULD TAKE THE FORM OF A LAWSUIT THAT WILL NOT CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY TO COMPEL ARBITRATION REGARDING ANY OTHER DISPUTE OR REMEDY
SUBJECT TO ARBITRATION IN THIS LEASE, INCLUDING YOUR FILING OF A COUNTERCLAIM IN
A LAWSUIT BROUGHT BY US PURSUANT TO THIS PROVISION.
Personal Guaranty: In consideration for us entering into this Lease, the
Guarantor whose signature pass code is below, If any, unconditionally and
irrevocably guarantees to us the prompt payment and performance of all
obligations of Lessee under this Lease regardless of any circumstance which
might otherwise be a defense available to or a discharge of Lessee or the
Guarantor. Guarantor agrees that this is a guaranty of payment and not of
collection, and that we can proceed directly against Guarantor without first
proceeding against Lessee or the Equipment. Guarantor waives all defenses and
notices, including those of protest, presentment and demand, notice of
acceptance hereof and all other notices of any kind. Guarantor agrees that we
can renew, extend or otherwise modify the terms of this Lease without releasing
Guarantor. Guarantor will pay to us all expenses including attorneys' fees
incurred by us in enforcing our rights against Guarantor. This is a continuing
guaranty that will not be discharged or affected by Guarantor's death and will
bind Guarantor's heirs, administrators and personal representatives. We may,
without affecting Guarantor's liability hereunder, compromise or release any
rights against Lessee or the Equipment or any Guarantor. Guarantor consents to
the transfer, sale or any other disposition of the Equipment and the Lease. This
Guaranty may be enforced by any assignee or successor of ours to the same extent
that we may enforce it. Guarantor authorizes us and any of our affiliates and
assigns to obtain credit bureau reports regarding Guarantor's personal credit
and make other credit inquiries that we determine are necessary. Guarantor
agrees to the terms of this Personal Guaranty including being governed by the
laws of the State of Illinois and to arbitration as provided above.
LESSEE OR AN AUTHORIZED REPRESENTATIVE OF LESSEE HAS PROVIDED US WITH A PASS
CODE, TO REPRESENT LESSEE'S SIGNATURE AND HAS AUTHORIZED US TO PLACE THE PASS
CODE ON THIS LEASE TO SIGNIFY THE LESSEE'S INTENT TO BE BOUND BY THE TERMS AND
CONDITIONS OF THE LEASE. THE GUARANTOR, IF ANY, HAS AUTHORIZED US TO PLACE A
PASS CODE WITH THE LETTERS "PG". TO REPRESENT HIS OR HER SIGNATURE AND TO
SIGNIFY GUARANTOR'S IN TENT TO PERSONALLY GUARANTEE THE LEASE.
BUSINESS APPROVAL
PASS CODE: 090341
18-OCT-04 01 :59:15 PM
PG Required? Yes
PERSONAL GUARANTOR APPROVAL
PG NAME: BARRY BROOKSTEIN
PASS CODE: PG
LEASE NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PM
Attachment A
Attached hereto and made a part hereof Lease No: 003-006029745-003 between
Lessor and CALL COMPLIANCE, INC as Lessee
Product Location General Product Description Quantity
90 PRATT OVAL Dell Order #943455460
GLEN COVE Description Quantity
NY Latitude D505, Celeron M 340 (1.5GHz), 15.0 XGA, English 1
11542 1GB,Double Data Rate SDRAM 2 Dimms,for Dell Latitude D Family Notebooks,Factory 1
30GB Hard Drive 9.5MM for DellLatitude D505, Factory Install 1
No Modular Floppy Drive Modulefor Latitude D505, Tied 1
Windows XP Professional, SP2 with media, for Latitude English, Factory Installed i
Internal 56K Modem for Dell Latitude D-Family Notebooks Factory Install i
AC Adapter,65 Watt for Dell Latitude D-Family Notebooks Factory Tied i
24X CDRW/DVD for Latitude 0-Family, Factory Install i
Intel PRO/Wireless 2100 WLAN (802.llb,llMbps) miniPCl Card Latitude 0, Fact 1
Resource CD for Latitude 0505 1
6-CeII/53-WHr Primary Battery,Latitude D505, Factory Install 1
Deluxe Nylon Carrying Case Latitude D505,600,800,IOOL Factory Tied i
Readyware Installation Fee 1
Reference Guide for Latitude D505, Factory Tied 1
Readyware Installation Fee 1
Adobe Acrobat 6 Standard Rh Package English, CD W/Docs, Factory Installed, Bundle 1
Microsoft Office 2003 Professional Edition for Latitude 1
Type 3 Contract - Next Business Day Parts and Labor On-Site Response, Initial Year 1
Type 3 Contract - Next Business Day Parts + Labor On-Site Response 2YR Extended 1
CompleteCare Accidental DamageSvc, Lat, 3Yr ,1-800-624-9896 1
Standard On-Site Installation Declined 1
System not eligible for hardware mail-in rebate 1
Purchase is NOT intended for resell i
Thank you for your purchase 1
55 BROAD ST Dell Order #943455510
NEW YORK Description Quantity
NY 2.8GHz/i MB Cache, Xeon, 800MHzFront Side Bus for PowerEdge 2850 2
10004 2.8GHzJ1MB Cache, Xeon, 800MHzFront Side Bus 2nd processor for PowerEdge 2850 2
2GB DDR2 400MHz (4X512MB) Single Ranked DIMMs 2
No Keyboard Option 2
No Monitor Option 2
Riser,ROMB,PCI-X,PE21
73GB,U320,SCSI,1 IN 15
Embedded RAID - PERC
No Floppy Drive
No Operating System, M
Mouse Option None
Dual On-Board NICS Ot'~
24X IDE CD-ROM
Bezel for PE2850
1x6 Hard Drive Backplan
Electronic Documentatloi
73GB,U320,SCSI,llN 15
LEASE NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PW
73GB,U320,SCSI,ilN i5K,PE2850 2
Yes 2
Purchase is NOT Intended for resell 2
Thank you foryourpurchase 2
ALL OTHER TERMS AND CONDITIONS OF ThE LEASE SHALL REMAIN UNCHANGED.
L~A~ NO. 003-006029745-003
DATE: OCTOBER 18, 2004 01:59:15 PI~i1