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EXHIBIT 10.22
MASTER LEASE AGREEMENT
This Master Lease Agreement (the "Lease") is made the 12th day of
February, 1999 between Leasing Technologies International, Inc., with its
principal office at 000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 (the "Lessor"), and
Virage Logic Corporation and Virage Logic International, each with its principal
office at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000 (hereinafter sometimes
collectively referred to as the "Lessee" and individually, as an "Individual
Lessee"). The parties hereto agree as follows:
1. LEASE:
This Lease establishes the general terms and conditions by which
Lessor may lease to any individual Lessee the Equipment (the "Equipment") listed
on each Equipment Schedule executed periodically pursuant to this Lease. Each
such Equipment Schedule shall incorporate by reference the terms of this Lease,
and shall be a separate lease agreement as to the Equipment listed thereon for
all purposes, including default. If the provisions of an Equipment Schedule
conflict with the provisions of this Lease, the provisions of such Equipment
Schedule shall prevail. Although each Equipment Schedule may be executed only by
an Individual Lessee, each individual Lessee and its respective successors and
assigns shall be absolutely and unconditionally jointly and severally liable for
each and every obligation arising under this Lease and any Equipment Schedule
thereto. Each Individual Lessee agrees that Lessor may proceed directly against
any Individual Lessee for the payment, performance or observance of each and
every obligation of any Individual Lessee under this Lease or any Equipment
Schedule thereto. The obligations of any Individual Lessee shall not be subject
to any counterclaim, setoff, recoupment or defense based upon any claim any
Individual Lessee may have against any other Individual Lessee or the Lessor,
and shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstance or condition
affecting any Individual Lessee, including without limitation (a) any waiver,
consent, extension, renewal, indulgence or other action or inaction under or in
respect of this Lease or any Equipment Schedule; (b) any invalidity or
unenforceability, in whole or in part, of any such agreement or instrument with
respect to any Individual Lessee; (c) any failure on the part of any Individual
Lessee for any reason to perform or comply with any term of any Equipment
Schedule; (d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to any
other Individual Lessee its properties or creditors; or (e) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing, with respect to any
other Individual Lessee. Each Individual Lessee hereby waives any requirement of
diligence or promptness on the part of the Lessor in the enforcement of the
Lessor's rights hereunder or under any other Loan Document with respect to the
obligations of itself or of any other Individual Lessee. Without limiting the
foregoing any failure to make any demand upon, to pursue or exhaust any rights
or remedies against
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Individual Lessee, or any delay with respect thereto, shall not affect the
obligations of any Individual Lessee hereunder.
2. DEFINITIONS:
(a) The "Installation Date" means the date determined in accordance with
the applicable Equipment Schedule.
(b) The "Commencement Date" means, as to any item of the Equipment
designated on any Equipment Schedule where the Installation Date for such item
of Equipment falls on the first day of the month, that date, or, in any other
case, the first day of the month following the month in which such Installation
Date falls.
(c) The "Daily Rental" means 1/30th of the amount set forth as the
monthly rental in the applicable Equipment Schedule.
3. TERM OF LEASE:
The term of this Lease, as to all Equipment designated on any Equipment
Schedule, shall commence on the Installation Date for such Equipment, and shall
continue for an initial period ending that number of months as is specified on
the applicable Equipment Schedule from the Commencement Date for the last item
of Equipment to be installed (the "Initial Term"). The term of this Lease for
all such Equipment shall be automatically extended for successive monthly
periods until terminated in accordance with this Lease. Any termination shall be
effective only on the last day of the Initial Term or the last day of any such
successive period.
4. RENTAL:
The monthly rental payable hereunder is as set forth in the Equipment
Schedule(s). Rental shall begin to accrue on the Installation Date for each item
of Equipment and shall be due and payable by Lessee in advance on the first day
of each month. If the Installation Date does not fall on the first day of a
month, the rental for that period of time from the Installation Date until the
Commencement Date shall be an amount equal to the Daily Rental multiplied by the
number of days from (and including) the Installation Date to (but not including)
the Commencement Date and shall be due and payable on the Installation Date. In
addition to the monthly rental set forth in the Equipment Schedule(s), Lessee
shall pay to Lessor an amount equal to all taxes paid, payable or required to be
collected by Lessor, however designated, which are levied or based on the
rental, on the Lease or on the Equipment or on its purchase for lease hereunder,
or on its use, lease, operation, control or value (including, without
limitation, state and local privilege or excise taxes based on gross revenue),
any penalties or interest in connection therewith which are attributable to
Lessee's negligence or taxes or amounts in lieu thereof paid or payable by
Lessor in respect of the foregoing, but excluding taxes based
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on Lessor's net income. Personal property taxes assessed on the Equipment during
the term hereof shall be paid by Lessee. Lessee agrees to file, on behalf of
Lessor, all required property tax returns and reports concerning the Equipment
with all appropriate governmental agencies, and, within not more than thirty
(30) days after the due date of such filing to send Lessor confirmation of such
filing. Lessee agrees that Lessor, or Lessor's agent may file all required
property tax returns and reports and pay all taxes thereon pertaining to the
Equipment. In such event, Lessee shall reimburse Lessor for all costs and
expenses incurred in connection therewith, provided that such costs and expenses
(including property taxes) shall not exceed the property taxes pursuant to
statutory tax rates and regulations.
Interest on any past due payments, including but not limited to
administrative charges and any other charges or fees arising out of or related
to this Lease, shall accrue at the rate of 1 1/2% per month, or if such rate
shall exceed the maximum rate allowed by law, then at such maximum rate, and
shall be payable on demand. Charges for taxes, penalties and interest shall be
promptly paid by Lessee when invoiced by Lessor.
As security for the full performance of all of the Lessee's obligations
under each Equipment Schedule, Lessee shall, simultaneously with the execution
and delivery of each Equipment Schedule, deposit with Lessor the amount set
forth on such Equipment Schedule. The security deposit shall be promptly
returned to the Lessee by the Lessor upon the expiration of such Equipment
Schedule and return of all Equipment, provided that all Lessee obligations under
such Equipment Schedule have been fulfilled.
5. INSTALLATION, USE AND QUIET POSSESSION OF EQUIPMENT:
(a) Lessee, at its own expense, will provide the required suitable
electric current to operate the Equipment and appropriate installation
facilities as specified by the manufacturer.
(b) Any equipment, cards, disks, tapes or other items not specified in
the Equipment Schedule(s) which are used on or in connection with the Equipment
must meet the specifications of the manufacturer and shall be acquired by Lessee
at its own expense.
(c) Lessee shall use the Equipment solely in connection with Lessee's
business and for no other purpose. Subject to the preceding sentence, Lessee
shall be entitled to unlimited usage of the Equipment without extra charge by
Lessor.
(d) Unless otherwise set forth in the applicable Equipment Schedule,
Lessee will at all times keep the Equipment in its sole possession and control.
The Equipment shall not be moved from the location stated in the applicable
Equipment Schedule without the prior written consent of Lessor.
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(e) After prior notice to Lessor, Lessee may, at its own expense, make
alterations in or add attachments to the Equipment, provided such alterations or
attachments do not interfere with the normal and satisfactory operation or
maintenance of the Equipment or with Lessee's ability to obtain and maintain the
maintenance contract required by Section 5(h) hereof. The manufacturer or other
organization selected by Lessee and approved in writing by Lessor to maintain
the Equipment ("Maintenance Organization") may incorporate engineering changes
or make temporary alterations to the Equipment upon request of Lessee. All such
alterations and attachments shall be and become the property of Lessor or, at
the option of Lessee, shall be removed by Lessee and the Equipment restored, at
Lessee's expense, to its original condition as of the Installation Date thereof,
reasonable wear and tear only excepted. and upon the removal and restoration,
the alteration and/or attachment which was made by Lessee shall become the
property of Lessee.
(f) So long as Lessee is not in default hereunder, neither Lessor nor
any party claiming through or under Lessor shall interfere with Lessee's use or
possession of any Equipment during the term of this Lease.
(g) Lessee shall, during the term of this Lease, at its expense, keep
the Equipment in good working order and condition and make all necessary
adjustments, repairs and replacements and shall not use or permit the Equipment
to be used in any manner or for any purpose for which, in the opinion of the
manufacturer, the Equipment is not designed or reasonably suitable.
(h) Unless otherwise set forth in the applicable Equipment Schedule,
Lessee shall, during the term of this Lease, at its own expense, enter into and
maintain in force a contract with the manufacturer or the Maintenance
Organization covering at least prime shift maintenance of each item of
Equipment. Such contract shall commence upon expiration of the manufacturer's
warranty period, if any, relating to such item. Lessee shall furnish Lessor with
a copy of such contracts).
(i) At the termination of the applicable Equipment Schedule, Lessee
shall, at its expense, return not less than all the Equipment subject thereto to
Lessor (at the location designated by Lessor within the Continental United
States) in the same operating order, repair, condition and appearance as on the
Installation Date, reasonable wear and tear only excepted, with all engineering
and safety changes prescribed by the manufacturer or Maintenance Organization
incorporated therein. Lessee shall, prior to such termination, arrange and pay
for any repairs, changes and manufacturer's certifications as are necessary for
the manufacturer or Maintenance Organization to accept the Equipment under
contract maintenance at its then standard rates. Lessee shall return all
accessories supplied with the Equipment, including but not limited to all
manuals, cables and software diskettes. Lessee shall promptly pay, after receipt
of an invoice therefore, all costs and expenses pertaining to the replacement of
any missing
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items and for the repair of any Equipment, together with any audit, inspection
or certification charges reasonably incurred by Lessor.
6. LEASEHOLD RIGHTS AND INSPECTION:
(a) Lessee shall have no interest in the Equipment other than the rights
acquired as a lessee hereunder and the Equipment shall remain personalty
regardless of the manner in which it may be installed or attached. Lessee shall,
at Lessor's request, affix to the Equipment, tags, decals or plates furnished by
Lessor, indicating Lessor's ownership and Lessee shall not permit their removal
or concealment. Lessee shall replace any such tag, decal or plate which may be
removed or destroyed or become illegible. Lessee shall keep all Equipment free
from any marking or labeling which might be interpreted as a claim of ownership
thereof by Lessee or any party other than Lessor or anyone claiming through
Lessor.
(b) Lessee shall keep the Equipment free and clear of all liens and
encumbrances except liens or encumbrances arising through the actions or
omissions of Lessor. Lessee shall not assign or otherwise encumber this Lease or
any of its rights hereunder or sublease the Equipment without the prior written
consent of Lessor except that Lessee may assign this Lease or sublease the
Equipment to its parent or any subsidiary corporation, or to a corporation which
shall have acquired all or substantially all of the property of Lessee by
merger, consolidation or purchase. No permitted assignment or sublease shall
relieve Lessee of any of its obligations hereunder.
(c) Lessor or its agents shall have free access to the Equipment at all
reasonable times for the purpose of inspection and for any other purpose
contemplated by this Lease.
(d) Lessee shall immediately notify Lessor of all details concerning any
damage to, or loss of, the Equipment arising out of any event or occurrence
whatsoever, including but not limited to, the alleged or apparent improper
manufacture, functioning or operation of the Equipment.
7. NO WARRANTIES BY LESSOR:
Lessee represents that, at the Installation Date thereof, it shall have
(a) thoroughly inspected the Equipment; (b) determined for itself that all items
of Equipment are of a size, design, capacity and manufacture selected by it; and
(c) satisfied itself that the Equipment is suitable for Lessee's purposes.
LESSOR SUPPLIES THE EQUIPMENT AS IS AND NOT BEING THE MANUFACTURER OF THE
EQUIPMENT, THE MANUFACTURER'S AGENT OR THE SELLER'S AGENT, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED AS TO THE EQUIPMENT'S MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL
OR
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WORKMANSHIP OR AS TO PATENT INFRINGEMENT OR THE LIKE, it being agreed that all
such risks, as between Lessor and Lessee, are to be borne by Lessee. Lessee
agrees to look solely to the manufacturer or to suppliers of the Equipment for
any and all warranty claims and any and all warranties made by the manufacturer
or the supplier of Lessor are, to the extent to which the same may be
assignable, hereby assigned to Lessee for the term of the applicable Equipment
Schedule. Lessee agrees that Lessor shall not be responsible for the delivery,
installation, maintenance, operation or service of the Equipment or for delay or
inadequacy of any or all of the foregoing. Lessor shall not be responsible for
any direct or consequential loss or damage resulting from the installation,
operation or use of the Equipment or otherwise. Lessee will defend, indemnify
and hold Lessor harmless against any and all claims, demands and liabilities
arising Out of or in connection with the design, manufacture. possession or
operation of the Equipment.
8. RISK OF LOSS ON LESSEE:
(a) Beginning on the Installation Date thereof and continuing until the
Equipment is returned to Lessor as provided in this Lease, Lessee relieves
Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment, howsoever caused. During the term of this Lease as
to any Equipment Schedule, Lessee shall, at its own expense, keep in effect "all
risk" property insurance and public liability insurance policies covering the
Equipment designated in each Equipment Schedule. The public liability insurance
policy shall be in such amount as is reasonably acceptable to Lessor. The "all
risk" property insurance policy shall be for an amount not less than the
replacement cost of the Equipment Lessor, its successors and assigns and/or such
other party as may be designated by any thereof to Lessee, in writing, shall be
named as additional insureds and loss payees on such policies, which shall be
written by an insurance company of recognized responsibility which is reasonably
acceptable to Lessor. Evidence of such insurance coverage shall be furnished to
Lessor no later than the Installation Date set forth in the Equipment
Schedule(s) and, from time to time, thereafter as Lessor may request. Such
policies shall provide that no less than ten days written notice shall be given
Lessor and any other party named as loss payee prior to cancellation of such
policies for any reason. To the extent of Lessor's interest therein, Lessee
hereby irrevocably appoints Lessor or any other party named as loss payee as
Lessees attorney-in-fact coupled with an interest to make claim for, receive
payment of, and execute any and all documents that may be required to be
provided to the insurance carrier in substantiation of any such claim for loss
or damage under said insurance policies, and to endorse Lessee's name to any and
all drafts or checks in payment of the loss proceeds.
(b) If any item of Equipment is rendered unusable as a result of any
physical damage to, or destruction of, the Equipment, Lessee shall give to
Lessor immediate notice thereof and this Lease shall continue in full force and
effect without any abatement
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of rental. Lessee shall determine, within fifteen (15) days after the date of
occurrence of such damage or destruction, whether such item of Equipment can be
repaired. In the event Lessee determines that the item of Equipment cannot be
repaired, Lessee shall either, at its expense, promptly replace such item of
Equipment and convey title to such replacement to Lessor free and clear of all
liens and encumbrances, and this Lease shall continue in full force and effect
as though such damage or destruction had not occurred, or pay Lessor therefor in
cash the Stipulated Loss Value (defined below) within thirty (30) days of such
loss or damage. "Stipulated Loss Value," as used herein, shall be an amount as
shown on Exhibit A to the applicable Equipment Schedule. In the event Lessee
determines that such item of Equipment can be repaired, Lessee shall cause such
item of Equipment to be promptly repaired. All proceeds of insurance received by
Lessor, the designated loss payee, or Lessee under the policy referred to in the
preceding paragraph of this Section shall be applied toward the cost of any such
repair or replacement so long as Lessee shall not be in default of its
obligations hereunder.
9. EVENTS OF DEFAULT AND REMEDIES:
The occurrence of any one of the following shall constitute an Event of
Default hereunder:
(a) Lessee fails to pay an installment of rent on or before the date
when the same becomes due and payable and such failure continues for a period of
five days;
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part
with possession of the Equipment or any items thereof, except as expressly
permitted herein.
(c) Lessee shall fail to observe or perform any of the other obligations
required to be observed or performed by Lessee hereunder and such failure shall
continue uncured for ten (10) days after written notice thereof to Lessee by
Lessor or the then assignee hereof.
(d) Lessee ceases doing business as a going concern, makes an assignment
for the benefit of creditors, admits in writing its inability to pay its debts
as they become due, files a voluntary petition of bankruptcy, is adjudicated a
bankrupt or an insolvent, files a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar arrangement under any present or future statute, law or regulation or
files an answer admitting the material allegations of the petition filed against
it in any such proceeding, consents to or acquiesces in the appointment of a
trustee, receiver, or liquidator of it or of all or any substantial part of its
assets or properties, or if it or its shareholders shall take any action looking
to its dissolution or liquidation.
(e) Within thirty (30) days after the commencement of any proceedings
against Lessee seeking reorganization, arrangement, readjustment, liquidation,
dissolution or
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similar relief under any present or future statute, law or regulation, such
proceedings shall not have been dismissed, or if within thirty (30) days after
the appointment without Lessee's consent or acquiescence of any trustee,
receiver or liquidator of it or of all or any substantial part of its assets and
properties, such appointment shall not be vacated.
(f) Lessee defaults in the performance or observation of any term,
condition or covenant of any loan agreement, indenture, trust agreement, lease
or similar agreement to which Lessee is a party or by which Lessee is bound and
such default continues beyond any applicable cure period;
(g) Lessee enters into any transaction which adversely affects a
significant portion of the business value of Lessee and which affects the
ability of the Lessee to repay the Lessee's obligations under the Lease.
Upon the occurrence of an Event of Default, Lessor may at its option do
any one or more of the following: (i) by notice to Lessee terminate this Lease
as to any or all Equipment Schedules; (ii) whether or not this Lease is
terminated as to any or all Equipment Schedules, take possession on not less
than three (3) days' notice of any or all of the Equipment listed on any or all
Equipment Schedules, wherever situated, and for such purpose, enter upon any
premises without liability for so doing or Lessor may cause Lessee and Lessee
hereby agrees, to return said Equipment to Lessor as provided in this Lease;
(iii) recover from Lessee, as liquidated damages for loss of a bargain and not
as a penalty, all past due amounts as well as an amount equal to the present
value of all monies to be paid by Lessee during the remaining Initial Term or
any successive period then in effect, calculated by discounting at the rate of
six percent (6%) per annum compounded monthly, which payment shall become
immediately due and payable; and (iv) sell, dispose of, hold, use or lease any
Equipment as Lessor in its sole discretion may determine (and Lessor shall not
be obligated to give preference to the sale, lease or other disposition of the
Equipment over the sale, lease or other disposition of similar equipment owned
or leased by Lessor).
In the event that Lessee shall have first paid to Lessor or its assigns
the liquidated damages referred to in (iii) above Lessee shall thereafter be
entitled to receive all rentals or proceeds received from any reletting of the
Equipment during the balance of the Initial Term (after deduction of Lessors
expected residual value of the Equipment at the expiration of the Initial Term
or any extension thereof and of all expenses incurred in connection therewith)
said amount never to exceed the amount of the liquidated damages paid by Lessee.
Lessee agrees that Lessor shall have no obligation to sell the Equipment. Lessee
shall in any event remain fully liable for reasonable damages as provided by law
and for all costs and expenses incurred by Lessor or its assigns on account of
such default including but not limited to all court costs and reasonable
attorney's fees. Lessee hereby agrees that, in any event, it will be liable for
any deficiency after any lease or other
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disposition of the Equipment. The rights afforded Lessor hereunder shall not be
deemed to be exclusive, but shall be in addition to any rights or remedies
provided by law.
10. NET LEASE:
Except as otherwise specifically provided in this Lease, it is
understood and agreed that this is a net lease, and that, as between Lessor and
Lessee, Lessee shall be responsible for all costs and expenses of every nature
whatsoever arising out of or in connection with or related to this Lease or the
Equipment (including, but not limited to, transportation in and out, rigging,
manufacturer's approved packing, installation, certification costs and
disconnect charges). Lessee hereby agrees that in the event that Lessee fails to
pay or perform any obligation under this Lease, Lessor may, at its option, pay
or perform said obligation and any payment made or expense incurred by Lessor in
connection therewith shall become additional rent which shall be due and payable
by Lessee upon demand. Lessee acknowledges that Lessor may, from time to time,
and at Lessee's request, execute and deliver purchase orders pertaining to the
purchase of equipment to be leased pursuant to this Lease. Lessee agrees that it
will indemnify and hold Lessor harmless from and against any and all loss, cost,
liability and expense that Lessor may incur as a result of the execution and
delivery of such purchase orders.
11. ASSIGNMENT:
Lessee agrees that Lessor may transfer or assign all or any part of
Lessor's right, title, and interest in, under or to the Equipment and this Lease
and any or all sums due or to become due pursuant to any of the above, to any
third party (the "Assignee") for any reason and that the Assignee may so
re-assign and transfer. Lessee agrees that upon receipt of written notice from
Lessor or Assignee of such assignment, Lessee shall perform all of its
obligations hereunder for the benefit of Assignee and any successor assignee
and, if so directed, shall pay all sums due or to become due thereunder directly
to the Assignee or to any other party designated by the Assignee. Lessee hereby
covenants, represents and warrants as follows and agrees that the Assignee and
any successor assignee shall be entitled to rely on and shall be considered a
third party beneficiary of the following covenants, representations and
warranties: (i) Lessee's obligations hereunder are absolute and unconditional
and are not subject to any abatement, reduction, recoupment, defense, offset or
counterclaim available to Lessee for any reason whatsoever including operation
of law, defect in the Equipment, failure of Lessor or Assignee to perform any of
its obligations hereunder or for any other cause or reason whatsoever, whether
similar or dissimilar to the foregoing; (ii) Lessee shall not look to Assignee
or any successor assignee to perform any of Lessor's obligations hereunder;
(iii) Lessee will not amend or modify this Agreement without the prior written
consent of the Assignee and any successor assignee; and (iv) Lessee will send a
copy to Assignee and any successor assignee of each notice which Lessee sends to
Lessor.
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12. REPRESENTATIONS AND WARRANTIES OF LESSEE:
Lessee represents and warrants to Lessor and its assigns, as follows:
1. The execution, delivery and performance of this Lease has been duly
authorized and, upon execution by Lessor and Lessee, will constitute a valid
obligation bin ding upon and enforceable against Lessee in accordance with its
terms, subject to laws governing creditors' rights;
2. The performance by Lessee will not result in any breach, default or
violation of, Lessee's certificate of incorporation or by-laws or any agreement
to which Lessee is a party;
3. Lessee is in good standing in its jurisdiction of incorporation and
in any jurisdiction in which any of the Equipment is to be located; and
4. Any and all financial statements or other information with respect to
Lessee heretofore furnished by Lessee to Lessor was, when furnished, and remains
at the time of execution of this Lease, true and complete.
Lessor represents and warrants to Lessee as follows:
1. The execution, delivery and performance of this Lease has been duly
authorized and, upon execution by Lessor and Lessee, will constitute a valid
obligation bin ding upon and enforceable against Lessor in accordance with its
terms, subject to laws governing creditors' rights ;and
2. The performance by Lessor will not result in any breach, default or
violation of, Lessor's certificate of incorporation or by-laws or any agreement
to which Lessor is a party:
The foregoing representations and warranties shall survive the
expiration or termination of this Lease.
13. END OF LEASE:
Provided (i) no Event of Default has occurred and is continuing and (ii)
Lessee has made all payments in accordance with the Lease, upon written notice
furnished by Lessee no later than four (4) months prior to the expiration of the
Initial Term, Lessee shall, with respect to each Equipment Schedule elect only
such alternatives as may be set forth on the Equipment Schedule.
To the extent that any of such alternatives involves a determination of
Fair Market Value, the Fair Market Value shall be defined and determined by the
provisions of this Section. For purposes hereof, Fair Market Value shall mean
the amount that would obtain
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in a retail arm's length transaction between an informed and willing
lessee-buyer in possession and an informed and willing lessor-seller. Rental
charges previously paid pursuant to the applicable Equipment Schedule shall have
no effect on the determination of Fair Market Value. Unless otherwise stated in
the Equipment Schedule, the Fair Market Value for items set forth on the
Equipment Schedule which do not have a readily ascertainable market value,
(including but not limited to software, cabling and certain equipment) shall be
determined by multiplying the Lessor's acquisition cost of such items by a
fraction, the numerator of which shall be the Fair Market Value of the other
items and the denominator of which shall be the Lessor's acquisition cost of
such other items; and the determination of Fair Market Value shall be based upon
the assumption that all items set forth on the Equipment Schedule or included
with the Equipment may be transferred to, and used by, a third party user. In
such determination, all alternative uses in the hands of each buyer or lessee,
including, without limitation, the further leasing of the Equipment shall be
taken into account in making such determination.
If on or before a date which is sixty (60) days prior to the expiration
of the Initial Term, Lessor and Lessee are unable to agree upon a determination
of the Fair Market Value of the Equipment, the Fair Market Value (to be
determined in accordance with the definition set forth in this Section) shall,
upon written request by Lessee therefor, be conclusively established not less
than thirty (30) days prior to the expiration of the Initial Term by an
independent appraiser selected by Lessor. Lessor shall notify Lessee of the name
and address of said appraiser. The costs of such appraiser shall be paid by
Lessee within ten (10) days after receipt of an invoice therefor. The Lease,
including the obligation to pay monthly rentals, shall remain in effect pending
the determination of Fair Market Value.
14. MISCELLANEOUS:
(a) During the term of this Lease, Lessee hereby agrees to deliver to
Lessor or Assignee and any successor assignee a copy of Lessee's monthly
unaudited financial statements, and the annual financial budget for the upcoming
year as soon as available and as it may be adjusted during the year. Lessee
shall also furnish, as soon as available and in any event within ninety (90)
days after the last day of Lessee's fiscal year, a copy of Lessee's annual
audited statements and consolidating and consolidated balance sheet, if any, as
of the end of such fiscal year, accompanied by the opinion of an independent
certified public accounting firm of recognized standing. The Lessee shall
furnish such other financial information as may be reasonably requested by
Lessor, including but not limited to any material changes in budgets or
financial reports furnished to the Lessee's Board of Directors or Shareholders.
(b) This Lease constitutes the entire agreement between Lessee and
Lessor with respect to the Equipment, and except as agreed upon in writing no
covenant, condition or other term or provision hereof may be waived or modified
orally.
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(c) All notices hereunder shall be in writing and shall be delivered in
person or sent by registered or certified mail, postage prepaid, or by facsimile
transmission (confirmed by registered mail as set forth in this section) to the
address of the other party as set forth herein or to such other address as such
party shall have designated by proper notice.
(d) This Lease shall be binding upon and inure to the benefit of Lessor
and Lessee and their respective successors and assigns (including any subsequent
assignee of Assignee).
(e) If any term or provision of this Lease or the application thereof to
any person is, to any extent, invalid or unenforceable, the remainder of this
Lease, or the application of such provision to the person other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
(f) No waiver of any of the terms and conditions hereof shall be
effective unless in writing and signed by the party against whom such waiver is
sought to be enforced. Any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given. The subsequent
acceptance of rental payments hereunder by Lessor shall not be deemed a waiver
of any prior existing breach by Lessee regardless of Lessor's knowledge of such
prior existing breach at the time of acceptance of such rental payments. Where
permitted by law, Lessee authorizes any attorney of record, Clerk of Court or
Prothonotary of any state to appear for and confess judgment (a) against Lessee
for all amounts as to which Lessee is in default under this Agreement and (b)
against Lessee in any action for writ of replevin or possession of the
Equipment. No bond shall be required.
(g) Lessor is hereby authorized by Lessee to cause this Lease or other
instruments, including Uniform Commercial Code Financing Statements to be filed
or recorded for the purpose of showing Lessor's interest in the Equipment and
Lessee agrees that Lessor may execute such instruments for and on behalf of
Lessee. All filing fees reasonably incurred by Lessor in connection therewith
and filing fees incurred by Lessor's assignees in perfecting security interests
shall be paid by Lessee or reimbursed to Lessor by Lessee.
(h) In the event of any conflict between the terms and conditions of
this Lease and the terms and conditions of any Equipment Schedule(s) or Rider(s)
thereto, the terms and conditions of such Equipment Schedule(s) or Rider(s)
shall prevail.
(i) No consent or approval provided for herein shall be binding upon
Lessor unless signed on its behalf by an officer of Lessor. THIS LEASE SHALL BE
DEEMED TO HAVE BEEN MADE IN THE STATE OF CONNECTICUT AND SHALL BE GOVERNED IN
ALL RESPECTS BY THE LAWS OF SUCH STATE. The Lessee
12
13
accepts for itself the non-exclusive jurisdiction of any Federal or State court
of competent jurisdiction in the State of Connecticut in any action, suit or
proceeding of any kind against it which arises out of or by reason of this Lease
or any Equipment Schedule.
(j) Lessee acknowledges that the late payment by Lessee to Lessor of
monthly rental and other sums due hereunder will cause Lessor harm and to incur
costs not contemplated by this Lease, the precise amount and severity of which
will be difficult to ascertain. Such costs include, but are not limited to,
administrative, accounting and legal charges which Lessor may incur due to such
late payment. Accordingly, if any monthly rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's assignee within twenty (20) days
after the same is due, Lessee shall pay to Lessor or Lessor's assignee a late
charge equal to five per cent (5%) of such overdue amount monthly until such
overdue amount is paid. Lessee acknowledges that such late charge represents a
fair and reasonable estimate of the cost Lessor will incur by reason of a late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default, if any, with respect to such overdue
amounts, nor prevent Lessor from exercising any of the other rights and remedies
which Lessor may have pursuant to this Lease.
(k) The obligations which Lessee is required to perform during the term
of this Lease shall survive the expiration or other termination of this Lease.
(l) Lessee will promptly execute and deliver to Lessor such further
documents and assurances and take such further action as Lessor may reasonably
request in order to effectuate the intent and purpose of this Lease and to
establish and protect the tights, interests and remedies intended to be created
in favor of Lessor hereunder, including without limitation, the execution and
filing of financing statements and continuation statements with respect to this
Lease, the Equipment and any Equipment Schedule. Lessee authorizes Lessor to
effect any such Filing and Lessor's reasonable expenses (together with the
reasonable expenses of Lessor's assignees in this regard) shall be payable by
Lessee on demand.
13
14
LESSOR: LESSEE:
Leasing Technologies International, Inc. Virage Logic Corporation
BY: /s/ BY: /s/
------------------------------- ---------------------------------
NAME: NAME: Xxxxxx Xxxxxx
----------------------------- -------------------------------
TITLE: TITLE: CFO (VP Finance)
---------------------------- ------------------------------
DATE: DATE: Feb 19, 1999
----------------------------- -------------------------------
Virage Logic International
BY: /s/
---------------------------------
TITLE: CFO (VP Finance)
------------------------------
TITLE: CFO (VP Finance)
------------------------------
DATE: Feb 19, 1999
-------------------------------
14
15
CERTIFICATE OF INCUMBENCY
Re: Master Lease Agreement dated February 12, 1999
Between Leasing Technologies International, Inc.
and Virage Logic Corporation
I, * Xxxx Xxxxxx , hereby certify that I am the duly
--------------------------
[print name of certifying officer, other than signatory]
elected, qualified, and presently serving CTO & Secretary of Virage Logic
----------------
[office of certifying officer]
Corporation, (the "Company").
I further certify that each of the persons listed below was duly elected
to and on the date hereof holds the office set forth opposite his name and that
the signature appearing opposite the name of such officer is the genuine
signature of such officer. Such person has the power and authority to execute
any and all documents on behalf of the Company relating to the above referenced
transaction and to bind the Company to perform in accordance with the terms
thereof,
NAME OF SIGNATORY OFFICE SIGNATURE
----------------- ------ ---------
Xxxxxx Xxxxxx VP Finance, CFO /s/ XXXXXX XXXXXX
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
the Company this 19 day of Feb 1999.
---------- ------------
*BY: /s/ XXXX XXXXXX
----------------------------------
[signature of certifying officer]
NAME: Xxxx Xxxxxx
---------------------------------
TITLE: VP Engineering, CTO, Secretary
--------------------------------
* certifying officer must be other than signatory.
16
REQUEST FOR INSURANCE
LESSOR: LEASING TECHNOLOGIES INTERNATIONAL, INC.
000 XXXXXXX XXXX
XXXXXX, XX 00000
LESSEE: VIRAGE LOGIC CORPORATION AND
VIRAGE LOGIC INTERNATIONAL
00000 XXXXXXXX XXXXXXXXX
XXXXXXX, XX 00000
Pursuant to Section 8(a) of the Master Lease Agreement dated February 12, 1999
("Lease"), Lessor hereby requests that Lessee provide a Certificate(s) of
Insurance as evidence of both casualty and liability insurance coverage on the
equipment leased to Lessee under the Lease. Such Certificate(s) should name
Leasing Technologies International, Inc., 000 Xxxxxxx Xxxx, Xxxxxx, XX 00000 and
its assigns as loss payees and additional insureds as their interests may
appear. Please refer to Section 8(a) of the Lease and the attached Leasing
Insurance Requirements for additional instructions.
Lessee, by authorized signature below, acknowledges the obligations under the
Lease to protect the equipment identified therein against all risks of loss, and
hereby confirms that applicable Certificate(s) of Insurance have been requested
from __________ (Fill in name of Insurance Agent/Broker).
LESSEE: VIRAGE LOGIC CORPORATION LESSEE: VIRAGE LOGIC INTERNATIONAL
BY: /s/ XXXXXX XXXXXX BY: /s/ XXXXXX XXXXXX
----------------------------- ---------------------------------
NAME: Xxxxxx Xxxxxx NAME: Xxxxxx Xxxxxx
--------------------------- -------------------------------
TITLE: VP Finance, CFO TITLE: VP Finance, CFO
-------------------------- ------------------------------
DATE: Feb 19, 1999 DATE: Feb 19, 1999
--------------------------- -------------------------------
17
LEASING INSURANCE REQUIREMENTS
LIABILITY INSURANCE:
All liability policies are to meet, at the minimum, the following requirements:
(a) Minimum limits of liability are:
Bodily Injury: $1,000,000 per occurrence
Property Damage: $50,000 per occurrence
(b) All liability insurance policies are to specify Lessor, its assigns,
and/or such other party designated by Lessor as additional insureds, and
must be effective at the time of shipment of the Equipment from the
seller.
PROPERTY INSURANCE:
All property insurance policies are to meet, at the minimum, the following
requirements:
(a) All-risk Property insurance coverage in an amount equal to the
replacement cost of the Equipment.
(b) All property insurance policies are to specify Lessor, its assigns,
and/or such other party designated by Lessor as loss payees and must be
effective at the time of shipment of the Equipment from the seller.
GENERAL:
(1) All insurance policies are to provide that in the event of material
change to the policy (i.e., terms, conditions, limits, broker or insurer, or
cancellation of the policy or any part) either by the insured or the insurance
company, the insurer will provide 10 days' prior written notice of such material
change or cancellation to Lessor and its specified assigns.
(2) All insurance policies are to provide that violation of terms,
conditions, or warranties of the policy by the insured or others will not
invalidate the insurance insofar as the interest of Lessor and its specified
assigns is concerned.
(3) In order to eliminate multiple certifications, we encourage blanket
liability and All-Risk coverage warranted to remain in force until at lease 10
days' prior written notice is provided as aforesaid.
18
LTI
LEASING TECHNOLOGIES INTERNATIONAL, INC.
Date:________ Return by mail or fax to: Leasing Technologies International, Inc.,
000 Xxxxxxx Xxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
LEASE APPLICATION
LESSEE
Legal Name_________________________ Trade Name__________________________________
Address_____________________ City_________________ State________ Zip____________
Phone_________________ Fax_______________ Years in Business_____________________
Description of Business_________________________________________________________
Business Type: Corporation___ Proprietorship ___ Partnership ___ Fed I.D. #_____
CEO's Name______________________ Title__________________ Phone _________________
Address_________________________________________________________________________
Contact Officer's Name_______________________ Title_____________________________
Address_________________________________________________________________________
Auditor & Partner________________________ Phone #_______________________________
Law Firm & Partner_________________________ Phone #_____________________________
Duns #_____________________________________
BANK AND CREDIT REFERENCES
Bank Name_________________________ Address______________________________________
Contact_________________ Phone #______________ Checking Acct #__________________
Date Opened________________ Loan Acct #______________ Date______________________
Lessor Name______________________________ Address_______________________________
Contact________________ Phone #____________________ Acct #______________________
Other Creditor________________________ Address__________________________________
Contact__________________ Phone #____________________ Acct #____________________
TRADE SUPPLIER REFERENCES
Trade Name__________________ Phone #______________ Contact_____________________
Trade Name__________________ Phone #______________ Contact_____________________
Trade Name__________________ Phone #______________ Contact_____________________
OTHER INFORMATION TO BE SUPPLIED
1) Financials: Last two fiscal audits & year-to-date interim financials
2) Most recent business plan and/or offering memorandum
3) List of all company Officers & Directors
4) List of major shareholders with percentage ownership
5) List of equipment to be leased. Include qty, descriptions, brands,
models, cost
I hereby authorize the investigation and review of all the above credit
information.
BY:_______________________________ Title________________________________________
19
EQUIPMENT SCHEDULE NO. _____ ("EQUIPMENT SCHEDULE")
TO
MASTER LEASE AGREEMENT DATED __________, 199__ ("LEASE")
BETWEEN LEASING TECHNOLOGIES INTERNATIONAL, INC. ("LESSOR")
AND __________("LESSEE")
1. EQUIPMENT:
MODEL/ PURCHASE SERIAL
QTY FEATURE DESCRIPTION MFR PRICE NUMBER
--- ------- ----------- --- ----- ------
2. EQUIPMENT LOCATION:
3. INSTALLATION DATE:__________. If this space is not completed, the
Installation Date shall be: the date which the Vendor(s) determines to
be the date of installation, which, Lessee agrees, will not occur
without Lessor's prior written consent or the fifth day following
delivery of the Equipment to the location set forth in Section 2,
whichever is earlier; or in the case of Equipment which is the subject
of a sale and leaseback between Lessor and Lessee, the date upon which
Lessor obtains title to the Equipment from Lessee (but not later than
the date Lessor pays for the Equipment).
4. COMMENCEMENT DATE:__________. (Subject to the terms and conditions of
Section , of the Lease, if all of the Equipment is not installed on the
same date).
5. INITIAL TERM:__________ months.
6. MONTHLY RENTAL: $__________. The Monthly Rental set forth in this
section is conditional upon Lessor acquiring the Equipment at a purchase
price of $__________ and Lessor obtaining financing for such purchase at
a 8.25% Prime Interest Rate. Lessor and Lessee agree that the Monthly
Rental shall be increased by $__________ for each one-quarter of one
percent (1/4 of 1%) by which the Prime Interest Rate (as stated by
Citibank N.A.) increases prior to the Commencement Date, or the date
Lessor has received sufficient documentation so as to finance the Lease,
whichever is later. Lessee agrees that it shall confirm the amount of
the rental payable hereunder after adjustment, if any, in such form as
Lessor may request.
Page 1 of 3
20
EQUIPMENT SCHEDULE NO. _____ ("EQUIPMENT SCHEDULE")
TO
MASTER LEASE AGREEMENT DATED __________, 199__ ("LEASE")
BETWEEN LEASING TECHNOLOGIES INTERNATIONAL, INC. ("LESSOR")
AND __________("LESSEE")
7. LESSOR'S OBLIGATIONS: Lessor's obligations under this Equipment Schedule
are subject to there being no tax legislation enacted prior to the
Installation Date which would have an adverse effect on the rights or
anticipated benefits to Lessor or any Assignee.
8. SECURITY DEPOSIT: $__________.
9. END OF LEASE: Provided (i) no Event of Default has occurred and is
continuing and (ii) Lessee has made all payments in accordance with the
Lease, upon written notice furnished by Lessee to Lessor no earlier than
one hundred eighty (180) days and no later than ninety (90) days prior
to the expiration of the Initial Term, Lessee may either:
(a) Extend the Initial Term for not less than all the Equipment for
an additional 12 months at Fair Market Value rental;
(b) Purchase not less than all the Equipment at Fair Market Value
for a purchase price equal to the Fair Market Value thereof as
of the end of the Initial Term, plus any taxes applicable at the
time of purchase. The purchase price shall be paid by Lessee to
Lessor at least thirty (30) days before the expiration of the
Initial Term; or
(c) Extend the Initial Term for not less than all the Equipment for
an additional 12 months at a Monthly Rental equal to _____% of
the Monthly Rental paid by Lessee during the Initial Term,
provided all payments have been made in accordance with the
Lease and there shall be no default under the Lease by Lessee,
title to the Equipment shall pass to Lessee at the expiration of
the 12 month extension and upon payment of $1.00;
(d) Return not less than all the Equipment, subject to a remarketing
charge equal to ____% of the Purchase Price.
10. LEASE AGREEMENT: All of the terms, covenants and conditions set forth in
the Lease are incorporated herein by reference as if the same had been
set forth herein in full.
21
EQUIPMENT SCHEDULE NO. _____ ("EQUIPMENT SCHEDULE")
TO
MASTER LEASE AGREEMENT DATED __________, 199__ ("LEASE")
BETWEEN LEASING TECHNOLOGIES INTERNATIONAL, INC. ("LESSOR")
AND __________("LESSEE")
LESSOR: LESSEE:
LEASING TECHNOLOGIES INTERNATIONAL, INC.
BY:______________________________ BY:_________________________________
NAME:____________________________ NAME:_______________________________
TITLE:___________________________ TITLE:______________________________
DATE:____________________________ DATE:_______________________________
LESSEE:
BY:_________________________________
NAME:_______________________________
TITLE:______________________________
DATE:_______________________________
22
CERTIFICATE OF ACCEPTANCE
To: Leasing Technologies International, Inc.
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
From: ________________ Lessee under that certain Master Lease Agreement
("Lease") dated _____________ hereby certifies to Leasing Technologies
International, Inc., Lessor under the said Lease, that, to wit:
1. The Lessee is a corporation in good standing in ______, the state of
its incorporation.
2. The signatures which appear in said Lease have been duly authorized
by the Lessee and the Lease constitutes a valid and binding obligation
of, and is enforceable by its terms against Lessee.
3. All items of computer equipment ("Equipment") described in Equipment
Schedule No. __ to the said Lease, have been delivered to Lessee.
4. The equipment has been received and inspected, and is approved and
accepted by Lessee, effective __________, 1999.
5. As of the date hereof, the Lessee's interest in the Equipment is free
and clear of any liens and encumbrances other than those created by and
in favor of the Lessor.
6. The Lessee hereby represents and warrants that no event of Default or
event which, with the giving of notice or the lapse of time, or both,
would become such an Event of Default has occurred and is continuing
under the Lease.
7. The Lessee hereby represents and warrants that the Lessee has
obtained all insurance policies, with respect to the Equipment, that may
be required under the terms of the Lease and such policies are in full
force and effect.
Lessee is delivering this Certificate to Lessor pursuant to and in connection
with the said Lease.
LESSEE: LESSEE:
BY:______________________________ BY:_________________________________
NAME:____________________________ NAME:_______________________________
TITLE:___________________________ TITLE:______________________________
DATE:____________________________ DATE:_______________________________
23
EQUIPMENT SCHEDULE NO. _____
TO
MASTER LEASE AGREEMENT DATED_______
EXHIBIT A
STATEMENT OF CASUALTY VALUES
MONTHLY STIPULATED MONTHLY STIPULATED LOSS
PMT. MADE VALUE* PMTS. MADE VALUE
--------- ----- ---------- -----
1 125.00 19 94.22
2 123.29 20 92.51
3 121.58 21 90.80
4 119.87 22 89.09
5 118.16 23 87.38
6 116.45 24 85.67
7 114.74 25 83.96
8 113.03 26 82.25
9 111.32 27 80.54
10 109.61 28 78.83
11 107.90 29 77.12
12 106.19 30 75.41
13 104.48 31 73.70
14 102.77 32 71.99
15 101.66 33 70.28
16 99.35 34 68.57
17 97.64 35 66.86
18 95.93 36 65.15
* Expressed as a percentage of Lessor's original purchase price for the
equipment.
LESSOR: LESSEE:
LEASING TECHNOLOGIES INTERNATIONAL, INC.
BY:______________________________ BY:_________________________________
NAME:____________________________ NAME:_______________________________
TITLE:___________________________ TITLE:______________________________
DATE:____________________________ DATE:_______________________________
LESSEE:
BY:_________________________________
NAME:_______________________________
TITLE:______________________________
DATE:_______________________________
24
EQUIPMENT SCHEDULE NO. _____
TO
MASTER LEASE AGREEMENT DATED_______
EXHIBIT A
STATEMENT OF CASUALTY VALUES
MONTHLY STIPULATED LOSS
PMT. MADE VALUE*
--------- -----
1 125.00
2 123.29
4 119.87
5 118.16
8 113.03
9 111.32
11 107.90
12 106.19
13 104.48
14 102.77
15 101.66
16 99.35
17 97.64
18 95.93
19 94.22
20 92.51
21 90.80
22 89.09
23 87.38
24 85.67
* Expressed as a percentage of Lessor's original purchase price for the
equipment.
LESSOR: LESSEE:
LEASING TECHNOLOGIES INTERNATIONAL, INC.
BY:______________________________ BY:_________________________________
NAME:____________________________ NAME:_______________________________
TITLE:___________________________ TITLE:______________________________
DATE:____________________________ DATE:_______________________________
LESSEE:
BY:_________________________________
NAME:_______________________________
TITLE:______________________________
DATE:_______________________________
25
EQUIPMENT SCHEDULE NO. _____
TO
MASTER LEASE AGREEMENT DATED_______
EXHIBIT A
STATEMENT OF CASUALTY VALUES
MONTHLY STIPULATED LOSS
PMT. MADE VALUE*
--------- -----
1 125.00
2 123.29
4 119.87
5 118.16
8 113.03
9 111.32
11 107.90
12 106.19
13 104.48
14 102.77
15 101.66
16 99.35
17 97.64
18 95.93
19 94.22
20 92.51
21 90.80
22 89.09
23 87.38
24 85.67
25 83.96
26 82.25
27 80.54
28 78.83
29 77.12
30 75.41
* Expressed as a percentage of Lessor's original purchase price for the
equipment.
LESSOR: LESSEE:
LEASING TECHNOLOGIES INTERNATIONAL, INC.
BY:______________________________ BY:_________________________________
NAME:____________________________ NAME:_______________________________
TITLE:___________________________ TITLE:______________________________
DATE:____________________________ DATE:_______________________________
LESSEE:
BY:_________________________________
NAME:_______________________________
TITLE:______________________________
DATE:_______________________________
