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EXHIBIT 10.9
MASTER LEASE AGREEMENT
Agreement No. 10910 Dated as of January 28, 1999
between
DOMINION VENTURES, INC.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
as Lessor
and
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, INC.
a California corporation
0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
as Lessee
Master Lease Line: $1,000,000.00
Initial Rent Factor: 3.134% Initial Lease Term 36 months
Treasury Base Rate: Treasury Note Maturity
Initial Implicit Rate
$31,340.00
Advance Rental: [PLUS APPLICABLE TAXES) Security Deposit: $0
Minimum Funding Amount: $75,000.00 Maximum Funding Frequency: monthly
Funding Expiration Date: October 15, 1999
Eligible Equipment: New and/or used furniture, communications equipment,
computers, software, leasehold improvements and office equipment. Softcosts (for
purposes of this Lease "softcosts" shall include only software and leasehold
improvements, but shall not include taxes, labor, shipping and other similar
costs) not to exceed 15% of the Master Lease Line. All Equipment to be purchased
must be approved by Lessor.
ORIGINAL COUNTERPART NO.
The terms and information set forth on this cover page are a part of the
MASTER LEASE AGREEMENT, dated as of the date first written above (this "Lease"),
entered into by and between DOMINION VENTURES, INC. ("Lessor") and the Lessee
set forth above, the terms and conditions of which are as follows:
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LESSOR'S OBLIGATIONS UNDER THIS LEASE AND EACH SCHEDULE ARE SUBJECT TO
THE PRIOR SATISFACTION OF THE CONDITIONS SET FORTH ON ADDENDUM I HERETO.
1. DEFINITIONS: Unless otherwise defined in this Lease (which term shall
include the cover page, any Addendum, any Exhibit and any Schedule hereto),
capitalized terms shall have the following meanings:
(a) "Acceptance Certificate" means the Certificate of Inspection and
Acceptance in the form attached hereto as Exhibit D.
(b) "Acceptance Date" means, with respect to each Schedule, the date
of the Acceptance Certificate executed in connection with such
Schedule.
(c) "Advance Rental" has the meaning set forth in Paragraph 5(a) and
is in the amount as set forth on the cover page.
(d) "Assignee" has the meaning set forth in Paragraph 11(b).
(e) "Xxxx of Sale" means a xxxx of sale in the form attached hereto
as Exhibit C.
(f) "Commencement Date" has the meaning set forth in Paragraph 4.
(g) "Cost" means the cost to Lessor of purchasing one or more Units
of Equipment including any sales taxes and other charges paid by
Lessor and net of any discounts and rebates.
(h) "Discount Rate" means, as of any date of determination, the
lessor of (i) the then current per annum interest rate for
one-year United States treasury bills as set forth in the Wall
Street Journal on such date and (ii) six percent (6%).
(i) "Eligible Equipment" means Equipment of the types listed
following such term on the cover page of this Lease to the
extent acceptable to Lessor.
(j) "Environmental Law" means the Resource Conservation and Recovery
Act of 1987, the Comprehensive Environmental Response,
Compensation and Liability Act, and any other Federal, state or
local statute, law, ordinance, code, rule, regulation, order or
decree (in each case having the force of law) regulating or
imposing liability or standards of conduct concerning any
Hazardous Materials or other hazardous, toxic or dangerous
waste, constituent, or other substance, whether solid, liquid or
gas, as now or at any time hereafter in effect.
(k) "Equipment" means all Units listed in any Schedule together with
all replacement parts, additions, accessions and accessories to
such Units.
(l) "Event of Default" shall have the meaning set forth in Paragraph
24 hereof.
(m) "Financial Statements" has the meaning set forth in Paragraph
19(a).
(n) "Funding Expiration Date" means the date set forth opposite such
term on the cover page of this Lease or such earlier date on
which Lessor terminates its commitment to fund Schedules
pursuant to the terms of this Lease.
(o) "Hazardous Material" means any hazardous or toxic substance,
material, pollutant or waste, whether solid, liquid or gaseous,
which is regulated by any Federal, state or local governmental
authority.
(p) "Holdover Period" has the meaning set forth in Paragraph 18.
(q) "Implicit Rate" means, with respect to a Schedule, an implicit
interest rate used in calculating the Rent Factor applicable to
such Schedule, calculated as set forth in Section 5(c) of this
Lease.
(r) "Initial Rent Factor" means the rent factor set forth following
such term on the cover page of this Lease.
(s) "Initial Implicit Rate" means the implicit interest rate set
forth following such term on the cover page of this Lease.
(t) "Initial Lease Term" means, with respect to each Schedule, the
period beginning on the first day of the calendar month
following the Acceptance Date for such Schedule and continuing
for the number of months set forth following such term on the
cover page of this Lease.
(u) "Interim Rent" shall have the meaning set forth in Paragraph
5(b) of this Lease.
(v) "Lease Term" means, with respect to each Schedule, the
Noncancellable Term and any Holdover Period.
(w) "Lessor Affiliate" has the meaning set forth in Paragraph 11(c)
hereof.
(x) "Master Lease Line" means the amount set forth following such
term on the cover page of this Lease.
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(y) "Maximum Funding Frequency" means the time interval specified
opposite such term on the cover page hereof.
(z) "Minimum Funding Amount" means the amount set forth following
such term on the cover page of this Lease.
(aa) "Noncancellable Term" means, with respect to each Schedule, the
period from the Acceptance Date for such Schedule through the
end of the Initial Lease Term for such Schedule.
(bb) "Purchase Order Assignment" means a purchase order assignment in
the form of Exhibit B hereto.
(cc) "Rent Factor" means, with respect to a Schedule, the rent factor
calculated using the Implicit Rate applicable on the date of
preparation of such Schedule.
(dd) "Rental Payment" means, for any Schedule, the monthly rent
payment for the Units identified in such Schedule.
(ee) "Residual Value" has the meaning set forth in Paragraph 22(b) of
this Lease.
(ff) "Schedule" means a schedule in the form of Exhibit F to this
Lease identifying this Lease and incorporating this Lease by
reference, which is executed by both parties hereto.
(gg) "Treasury Base Rate" means the interest rate set forth following
such term on the cover page of this Lease.
(hh) "Treasury Note Maturity" means the period of time set forth
following such term on the cover page of this Lease.
(ii) "UCC" means the Uniform Commercial Code as in effect in the
State of California from time to time.
(jj) "Unit" means an item of Equipment.
2. LEASE. Lessor leases to Lessee, and Lessee hires and takes from
Lessor, subject to the terms and conditions set forth in this Lease, the Units
described in the Schedules executed hereunder. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee
incorporating the terms of this Lease. Lessor's commitment to fund Schedules
under this Lease continues through the Funding Expiration Date and is limited to
the amount of the Master Lease Line; provided, however, that Lessor, acting in
its sole discretion, may terminate or modify its funding commitment at any time
if: (a) there is any material adverse change to the general affairs, management,
results of operations, condition (financial or otherwise) or prospects of
Lessee, whether or not arising from transactions in the ordinary course of
business, (b) there is any material adverse deviation by Lessee from the
business plan (as it may have been supplemented in writing) of Lessee presented
to Lessor, since the date first written on the cover page of this Lease, (c) any
Event of Default or event which with the passage of time or notice or both would
constitute an Event of Default exists, or (d) if any term or condition in any
Schedule is not satisfied prior to the Acceptance Date with respect to such
Schedule. Each Schedule shall be funded in an amount not less than the Minimum
Funding Amount and not more frequently than the Maximum Funding Frequency. No
Unit of Equipment shall have a unit cost of less than $1,000 or be subject to a
single invoice of less than $5,000.
3. EQUIPMENT SUBJECT TO LEASE. Lessee shall select the type and quantity
of Equipment (which Equipment shall in each case be Eligible Equipment
acceptable to Lessor) to be subject to each Schedule. Subject to the terms and
conditions of this Lease: (i) if such Equipment is not previously owned by
Lessee and is not subject to a purchase order issued by Lessee, Lessor shall at
Lessee's direction order each Unit from the respective suppliers, and upon
delivery and acceptance by Lessee each such Unit shall be leased to Lessee
hereunder; (ii) if Lessee has previously issued its purchase order to a
supplier, Lessee shall execute a Purchase Order Assignment assigning such
purchase order to Lessor and the Units subject to such purchase order, upon
delivery and acceptance by Lessee, shall be leased to Lessee hereunder; or (iii)
if Lessee owns the Equipment which it intends to make subject to this Lease,
Lessee shall execute a Xxxx of Sale transferring title to such Equipment to
Lessor at the purchase price agreed to between Lessor and Lessee according to an
appraisal undertaken at the expense of Lessee (except in the case of Equipment
placed in service by Lessee not more than sixty (60) days prior to the date of
any Schedule for which the purchase price shall be the original cost to Lessee
thereof (net of freight, taxes, installation and similar costs). Lessee
acknowledges that Lessor may have the ability to obtain discounts or rebates not
available to Lessee from suppliers from which Lessor buys in volume. Any
discounts or rebates remitted to Lessee shall be turned over to Lessor and Cost
of the Equipment set forth on any Schedule shall be deemed to be the Cost net of
such discount or rebate. Any request by Lessee to Lessor to purchase Equipment
directly or by assignment of a purchase order shall be irrevocable.
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4. TERM. This Lease is effective upon execution hereof by Lessor and
shall continue until full performance of every provision of this Lease; provided
that Lessor's obligations to fund any Schedule are subject to the prior
satisfaction by Lessee of the conditions set forth in Part 1 of Addendum 1 to
this Lease. All obligations under each Schedule shall commence upon Lessee's
execution of an Acceptance Certificate and Schedule for the Units to be subject
to such Schedule and Lessor's countersignature on such Schedule; provided that
Lessor's obligation to fund such Schedule is subject to the prior satisfaction
by Lessee of the conditions set forth in Part 2 of Addendum I to this Lease. The
Initial Lease Term with respect to each Schedule shall begin on the first day of
the calendar month following the Acceptance Date (the "Commencement Date").
5. RENTAL PAYMENTS.
(a) Advance Rental. Upon execution of this Lease, Lessee shall pay to
Lessor an advance payment in an amount equal to the Rent Factor multiplied by
the Master Lease Line (plus applicable taxes) (the "Advance Rental"). A pro-rata
portion of the Advance Rental shall be deemed to prepay as of the date of this
Lease the last Rental Payment for each Schedule. If the Master Lease Line has
not been fully expended by the Funding Expiration Date, Lessor shall retain the
unutilized portion of the Advance Rental as compensation for expenses.
(b) Interim Rent. If the Acceptance Date with respect to any Schedule
shall be other than the first day of the calendar month, Lessee shall make
interim rental payments ("Interim Rent") for each day from and including the
Acceptance Date, through and including the last day of the calendar month prior
to the beginning of the Initial Lease Term in an amount equal to one-thirtieth
of the monthly Rental Payment set forth on the Schedule. Such Interim Rent shall
be due and payable on the first day of the calendar month following the month
for which such payment is assessed.
(c) Rental Payments. Lessee shall pay to Lessor, as rental for Equipment
during each month of the Initial Lease Term of any Schedule and during any
Holdover Period, an amount equal to the Rent Factor set forth on the cover page
of this Lease multiplied by the total Cost of the Equipment to Lessor, which
amount shall be due and payable in advance on the first day of each calendar
month during the Initial Lease Term and during any Holdover Period. The Rent
Factor will be calculated for each Schedule based on a basis point for basis
point adjustment (if any) to the Initial Implicit Rate equal to the change from
the Treasury Base Rate in the U.S. Treasury note rate for notes of a term equal
to the Treasury Note Maturity as quoted in The Wall Street Journal three days
prior to the date such Schedule is funded. It is not the intent of the parties
to create rent or other payment obligations of Lessee which will be considered
usurious under applicable law. However, if any such payment shall be found to be
usurious by a court of competent jurisdiction, then Rental Payments or such
other amounts shall automatically be reduced to the highest rate or amounts
permitted by applicable law and the usurious portion of the Rental Payments or
such other amounts shall be applied to the Lessee's remaining obligations under
the Lease in a manner reasonably determined by Lessor. In addition to any other
remedies that Lessor may have under this Lease, if Lessee fails to pay any
Rental Payment or Interim Rent or other amount herein provided within five (5)
business days after the same is due, Lessee shall pay to Lessor a late charge
calculated daily from the due date until the date of payment, at the rate of two
percent (2%) of such amount per month, or at the highest rate permitted by
applicable law, whichever is less, to compensate Lessor for additional
bookkeeping and collection expense. All Rental Payments, Advance Rental, Interim
Rent, late charges and other amounts for which Lessee is liable shall be paid to
Lessor at its address as set forth above or as otherwise directed by Lessor.
(d) Automatic Transfers. If Lessee so agrees, Lessor will initiate
monthly debit entries to Lessee's bank account for payment of Rental Payments on
the fifth business day of each month. If Lessee agrees to automatic transfers,
Lessee will provide depository and account information to Lessor and shall
execute or cause to be executed such supplemental agreements as Lessor deems
necessary in order to instate and maintain automatic transfer payments by Lessee
to Lessor. Other amounts due hereunder will be invoiced to Lessee by Lessor and
shall be due and payable within five (5) business days of receipt of invoice.
6. CHARACTERIZATION OF LEASE; WARRANTIES; WAIVER; LIABILITY.
(a) Characterization of Lease. It is the intent of Lessor and Lessee
that this Lease be a true lease and not a lease intended as security or a
conditional sales agreement. Lessor and Lessee agree to treat this Lease as a
true lease for
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income tax purposes. Lessor and Lessee agree that this Lease is a "finance
lease" as that term is defined by Section 10103(a)(7) of the UCC. With respect
to the Equipment subject to each Schedule, Lessee acknowledges and warrants as
of the date of such Schedule that (i) Lessee has received a copy of the
contract(s) pursuant to which Lessor acquired the Equipment (the "Supply
Contract"), or (ii) Lessee has reviewed and approved the Supply Contract, or
(iii) Lessor has informed Lessee in writing that Lessee may have rights under
the Supply Contract and that Lessee should contact the supplier for a
description of any such rights. LESSOR AND LESSEE AGREE THAT THIS LEASE IS A
"NET" LEASE, AND LESSEE'S OBLIGATION TO MAKE RENTAL PAYMENTS AND PAY OTHER SUMS
WHEN DUE AND OTHERWISE PERFORM ITS OBLIGATIONS UNDER THIS LEASE SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO OR AFFECTED BY OR
REDUCED BY ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT, RECOUPMENT OR OTHER RIGHT WHICH LESSEE MAY HAVE AGAINST
LESSOR, THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR ANY OTHER PERSON.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NO DEFECT OR UNFITNESS OF ANY
ITEM OF EQUIPMENT NOR OTHER CLAIM REGARDING CONDITION OR USE OF THE EQUIPMENT
SHALL RELIEVE LESSEE OF THE OBLIGATION TO MAKE RENTAL PAYMENTS, PAY ANY OTHER
SUM WHEN DUE OR OTHERWISE PERFORM ANY OTHER OBLIGATION DUE TO LESSOR AND ITS
SUCCESSORS AND ASSIGNS UNDER THIS LEASE.
(b) Warranties. Lessor warrants that, so long as no Event of Default has
occurred and is continuing, neither Lessor nor its successors or Assignees or
anyone acting or claiming through Lessor will interfere with Lessee's quiet
enjoyment and use of the Equipment. EXCEPT FOR LESSOR'S WARRANTY OF QUIET
ENJOYMENT, LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE EQUIPMENT AND
ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING WITHOUT LIMITATION
ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Until the
Lease is terminated, Lessor hereby assigns to Lessee and Lessee shall have the
benefit of, any and all manufacturer's warranties, service agreements and
intellectual property indemnities, if any, with respect to each Unit. Lessee's
sole remedy for the breach of any such warranty, indemnification or service
agreement shall be against the manufacturer or supplier of such Equipment and
not against Lessor, nor shall any such breach have any effect whatsoever on the
rights and obligations of Lessor or Lessee hereunder.
(c) Waivers. Lessee hereby specifically waives any and all rights and
remedies conferred upon Lessee by UCC Sections 10508 through 10522, including
(without limitation) Lessee's rights to (i) cancel or repudiate this Lease, (ii)
reject or revoke acceptance of any Unit, (iii) recover damages from Lessor for
breach of warranty or for any other reason, (iv) claim a security interest in
any rejected property in Lessee's possession or control, (v) deduct from Rental
Payments all or any part of any claimed damages resulting from Lessor's default
under this Lease, (vi) accept partial delivery of the Equipment, (vii) "cover"
by making any purchase or lease of other property in substitution for property
due from Lessor, (viii) recover from the Lessor any general, special, incidental
or consequential damages, for any reason whatsoever, and (ix) seek specific
performance, replevin or the like for any of the Units. To the extent permitted
by applicable law, Lessee also hereby waives any rights now or hereafter
conferred by statute or otherwise which may require Lessor to sell, lease or
otherwise use any Equipment in mitigation of Lessor's damages except as set
forth in Paragraph 26 of this Lease or which may otherwise limit or modify any
of Lessor's rights or remedies under Paragraph 25. Notwithstanding the
foregoing, nothing in this Lease shall be construed as a waiver of Lessee's
right to seek a separate recovery of any Rental Payment that is not due and
payable under this Lease, and Lessee retains the right to seek damages or other
remedies on account of Lessor's failure to perform its obligations under this
Lease.
(d) Liability. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER,
SUPPLIER OR DISTRIBUTOR OF THE EQUIPMENT, THAT SAID ENTITIES ARE NOT AGENTS OF
LESSOR, THAT LESSEE RENTS THE EQUIPMENT "AS IS", AND THAT LESSOR HAS ACCEPTED NO
RESPONSIBILITY FOR THE TRANSPORTATION, INSTALLATION OR REQUIRED LICENSING
NECESSARY FOR THE TRANSFER, INSTALLATION OR USE OF THE EQUIPMENT. LESSEE HEREBY
WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN
TORT) WHICH IT MIGHT HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (INCLUDING
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INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY BY
THE EQUIPMENT, ITS USE OR MAINTENANCE, OR ANY DELAY OR FAILURE TO PROVIDE ANY
UNIT OF EQUIPMENT, OR ANY INTERRUPTION OF SERVICE OR LOSS OF USE OF THE
EQUIPMENT. If any Unit is unsatisfactory for any reason, Lessee shall make any
claim solely against the manufacturer or supplier of the Unit. Lessor shall not
be liable for specific performance of this Lease or for damages if for any
reason a supplier declines, delays or fails to fill any order.
7. ADJUSTMENTS FOR ACTUAL COST. Upon Lessee's request, Lessor may, but
shall have no obligation to, fund a Schedule which would cause the aggregate
Cost of Equipment on all Schedules funded under this Lease to exceed the Master
Lease Line. If at any time the actual aggregate Cost of all Equipment exceeds
the Master Lease Line, the Advance Rental shall be increased proportionately.
Lessee shall pay any additional sums for Advance Rental due under this Lease
within five (5) business days after receiving notice from Lessor. Lessee may not
request funding for a Schedule which would cause the aggregate Cost of Equipment
under all Schedules funded under this Lease to exceed the Master Lease Line by
more than ten percent (10%).
8. TITLE. All Equipment shall remain personal property, and the title
thereto shall remain exclusively in Lessor, notwithstanding the manner in which
any Unit may be attached to realty. Lessee agrees, upon the request of Lessor at
any time during the Lease Term, to affix or permit Lessor to affix, in a
permanent place on any Unit, labels supplied by Lessor identifying the Equipment
as property of Lessor, and shall not alter or remove any such label from any
Unit. Lessee shall keep the Equipment free from any and all liens and
encumbrances except those created by Lessor. Lessee shall give Lessor immediate
notice of any judicial process or encumbrance affecting the Equipment and shall
indemnify and save Lessor harmless from any loss or damage caused thereby,
including without limitation court costs, reasonable attorney fees and expenses.
9. FILING. Lessee shall execute or cause to be executed, at Lessee's
sole expense, such supplemental instruments, financing statements and landlord's
waivers as Lessor deems necessary or advisable to protect Lessor's interest and
shall cooperate to defend the title of Lessor in the Equipment by filing or
otherwise. Lessee authorizes Lessor to record in any state, this Lease and any
financing statements, security agreements and landlord's waivers with respect to
the Equipment or any collateral provided by Lessee to Lessor. Lessee agrees to
give Lessor thirty (30) days written notice of any change in Lessee's name or
place of business. Lessee agrees to give written notice to Lessor as soon as
Lessee has knowledge of any change of ownership of the real property upon which
or within which the Equipment is located.
10. TAXES. Lessee shall pay in a timely fashion, and shall indemnify and
hold Lessor harmless against all federal, state and local taxes, assessments,
license and registration fees, and other governmental charges of any kind,
including, without limitation, those levied on motor vehicles or trailers, and
any interest or penalties thereon, which may be levied, directly or indirectly,
against the Equipment or with respect to its ordering, purchasing, delivery,
ownership, possession, use, leasing, documentation, and return or other
disposition thereof, regardless of whether such taxes and fees are levied
against Lessor or Lessee. Such taxes and fees to be paid by Lessee shall
include, without limitation, personal property, sales, rent, franchise, gross
receipts, lease, and use taxes, and any other tax measured by gross Rental
Payments, but shall not include income or franchise taxes based on Lessor's net
income and payable by Lessor on its receipt of Rental Payments hereunder.
Personal property taxes shall be reasonably estimated by Lessor and billed to
Lessee as of the date of assessment each year. Upon receipt by Lessor of the
final personal property tax assessment and invoice, Lessor shall invoice or
credit Lessee, as applicable, for any differences of such final assessment and
Lessor's original estimate. Lessor shall have the right, but not the obligation,
to pay any such taxes or fees regardless of whether levied against Lessor or
Lessee. Any and all sales or use taxes levied against Lessor's purchase of
Equipment shall be added to the total Cost of such Equipment as specified on the
Schedule under which such Equipment is added to this Lease. With the exception
of taxes and fees which are added to the total Cost of Equipment hereunder,
Lessee shall reimburse Lessor within five (5) business days after receipt of
invoice from Lessor specifying the amount of, and reason for, any payment by
Lessor of amounts for which Lessee is liable under this Paragraph 10. Lessee
shall timely prepare and file all reports and returns which are required to be
made with respect to such taxes and/or fees, and all such reports shall show
Lessor as owner of the Equipment.
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11. ASSIGNMENTS AND SUBLEASES.
(a) WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL NOT
ASSIGN, PLEDGE, GRANT A SECURITY INTEREST IN, OTHERWISE ENCUMBER, SUBLEASE OR
TRANSFER, OR IN ANY WAY DISPOSE OF OR OTHERWISE RELINQUISH POSSESSION OR CONTROL
OVER (COLLECTIVELY, A "TRANSFER") ITS RIGHTS WITH RESPECT TO ANY UNIT OF
EQUIPMENT OR ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS UNDER THIS LEASE. If
notwithstanding the foregoing, a Transfer by Lessee takes place, the rights of
the sublessee or other transferee will be subject and subordinate to all of the
terms of this Lease, including Lessor's right of repossession on the occurrence
of an Event of Default. Lessee will remain primarily liable for the performance
of all of the terms of this Lease to the same extent as if the sublease or
transfer of possession had not occurred. Lessor and Lessee agree that any
purchase of all or substantially all of Lessee's assets, any merger or
consolidation into or with Lessee regardless of whether Lessee is the surviving
entity or any entity acquiring more than forty percent (40%) of Lessee's voting
securities shall be deemed to be a Transfer under this Lease.
(b) Lessor shall have the right, in its sole discretion, to assign,
sell, pledge, grant a security interest in or otherwise encumber its rights
under this Lease or one or more Schedules and/or with respect to the Equipment
subject to this Lease or such Schedule(s) to one or more persons or entities
(each, an "Assignee"). Lessee acknowledges that an assignment, sale or other
encumbrance by Lessor would not materially change Lessee's duties under the
Lease or materially increase its burdens or risks. Even if such an assignment,
sale or other encumbrance could be deemed to have that effect, Lessee agrees
that the assignment, sale or other encumbrance will nevertheless be permitted.
Without prejudice to any rights that Lessee may have against Lessor, Lessee
agrees that it will not assert against an Assignee any claim or defense that it
may have against Lessor.
(c) Subject to the foregoing, this Lease inures to the benefit of, and
is binding upon, the heirs, legatees, representatives, successors and assigns of
Lessee and Lessor.
12. REPRESENTATIONS AND WARRANTIES.
(a) Lessee warrants and represents the following as of the date hereof:
(i) Lessee is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and is duly qualified
and authorized to do business in the state(s) where the Equipment will be
located; (ii) Lessee has the full corporate power, authority and legal right and
has obtained all approvals and consents and has given all notices necessary to
execute and deliver this Lease and perform the terms hereof and of each
Schedule; (iii) there is no action, proceeding or claim pending or, insofar as
Lessee knows, threatened against Lessee or any of its subsidiaries before any
court or administrative agency which might have a material adverse effect on the
business, condition or operations of Lessee or any subsidiary; and (iv) this
Lease has been and each Schedule will be duly executed and delivered by Lessee
and constitute or will constitute the valid, binding and enforceable obligations
of Lessee.
(b) Lessee agrees that by its signature on each Schedule it shall be
deemed to have warranted and represented the following as of the Acceptance Date
of such Schedule: (i) all of the Units subject to such Schedule are accurately
described in Annex A attached to such Schedule, have been fully assembled and
conform to all applicable performance criteria; (ii) the requirements of this
Lease and of Lessor with respect to the identification of the Units have been
met; and (iii) each of the representations and warranties set forth in clause
(a) of this Section 12 remains true and correct.
13. USE AND INDEMNITY. Lessee shall use the Equipment only in Lessee's
business. Lessee agrees not to allow the Equipment to be used by other than its
employees, consultants and agents. Lessee acknowledges that the Equipment is
leased for commercial purposes and not for personal, family or household use.
Lessee agrees to indemnify and hold Lessor, and Lessor's officers, directors,
shareholders, partners, affiliates, agents, servants, successors and Assignees,
harmless against any and all liabilities, losses, damages, actions, claims and
expenses of any kind and nature, including, without limitation, court costs and
reasonable attorneys' fees and expenses (each, a "Claim"), directly or
indirectly related to or arising in connection with the breach of any
representation or warranty of Lessee under this
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Lease or the manufacture, purchase, licensing, lease or sublease, delivery,
installation, operation, use, ownership, maintenance, storage, relocation,
return or condition of any Unit of the Equipment (regardless of whether such
Unit is at the time in the possession or control of Lessee), except to the
extent any such claims, actions, liabilities and expenses result from the
willful misconduct of Lessor. The foregoing indemnity shall cover, without
limitation, (i) any Claim in connection with a design or other defect (latent or
patent) in any Unit, (ii) any Claim for infringement of any patent, copyright,
trademark or other intellectual property right, (iii) any Claim resulting from
the presence on or under or the escape, seepage, leakage, spillage, discharge,
emission or release from any Unit of any Hazardous Materials, including, without
limitation, any Claims asserted or arising under any Environmental Law, or (iv)
any Claim for negligence or strict or absolute liability in tort. Upon Lessor's
written demand, Lessee shall assume and diligently conduct, at its sole cost and
expense, the entire defense of Lessor and its agents, employees, successors and
assigns against any indemnified Claim described in this Paragraph 13. Lessee
shall not settle or compromise any Claim against or involving Lessor without
first obtaining Lessor's written consent thereto, which consent shall not be
unreasonably withheld. The foregoing indemnity shall continue in full force and
effect notwithstanding the termination or cancellation of this Lease, whether by
expiration of time, operation of law or otherwise.
14. LOCATION. Lessee shall keep the Equipment at its place of business
as specified above or on the Schedules. Lessee shall not permit any Equipment to
be moved to a new location without the prior written consent of Lessor.
15. RIGHT OF INSPECTION. Lessor and its agents shall have the right, at
any time during normal business hours, to inspect and photograph the Equipment,
to review all maintenance records related to the Equipment and, during the last
ninety (90) days of the Noncancellable Term of each respective Schedule, to
demonstrate the Equipment specified thereon to prospective purchasers; provided,
however, Lessor shall give five (5) business days' notice to Lessee of any such
demonstration.
16. MAINTENANCE. Lessee shall exercise due and proper care in the use,
repair and servicing of the Equipment. Lessee shall, at its own expense, make
all repairs and replacements required to maintain the Equipment in good working
condition in accordance with manufacturers' specifications and Lessor's
requirements, and shall pay all other operating expenses relating to the
Equipment. Lessee shall have the right, upon ten (10) days' prior written notice
to Lessor, to make any alterations, additions or improvements to any Unit,
provided that such alterations, additions or improvements (i) do not reduce the
Fair Market Value of such Unit, (ii) do not impair the originally intended
function or use of such Unit, (iii) do not render such Unit in such a condition
that it cannot, prior to the expiration, cancellation or other termination of
the Lease for such Unit, be restored to its original condition, reasonable wear
and tear alone excepted, and (iv) do not result in the cancellation or
termination of any warranties made by the supplier of such Unit. If Lessee does
not exercise its option to purchase the Equipment, as specified in Paragraph 17,
or if this Lease shall be earlier terminated or cancelled for any reason, Lessee
shall restore each Unit to its original condition, reasonable wear and tear
alone excepted, prior to the expiration, cancellation or other termination of
each respective Schedule. All replacement parts and additions incorporated into
a Unit shall become the property of Lessor immediately upon incorporation;
provided, however, that Lessor shall transfer to Lessee title to any
alterations, additions and improvements which were made by Lessee at its own
expense to each item of Equipment purchased by Lessee pursuant to the provisions
of Paragraph 17. Lessee agrees to maintain and provide upon request of Lessor
all internal maintenance reports relating to the Equipment.
17. PURCHASE OPTION. Upon written notice to Lessor not less than ninety
(90) days nor more than one hundred eighty (180) days prior to the last day of
the Noncancellable Term of any Schedule executed pursuant to this Lease, if
Lessee has fulfilled all of its obligations hereunder with respect to such
Schedule, Lessee shall have the right to purchase all, but not less than all, of
the Equipment under such Schedule, for the aggregate Fair Market Value of such
Equipment, provided that such purchase price shall not exceed thirteen percent
(13%) of the aggregate Cost of such Equipment (plus applicable taxes). Should
Lessor and Lessee fail to agree upon the Fair Market Value of the Equipment,
said price shall be determined by an independent appraiser, and the cost of the
appraisal shall be borne equally by both Lessor and Lessee. Notwithstanding
anything contained in this Paragraph 17, upon the expiration of the
Noncancellable Term of each Schedule, Lessee shall be required to purchase all
Equipment consisting of software ("Software") under such Schedule at fifteen
percent(15%) of total cost of such Software to Lessor. Notwithstanding the
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date on which Lessee exercises this purchase option or satisfies its purchase
obligations with respect to Software on a Schedule, Lessee shall acquire no
rights of title to any Equipment, nor shall title to any Unit be transferred to
Lessee after the exercise of this purchase option or satisfaction of Lessees'
purchase obligation until the expiration of the Noncancellable Term for the
Schedule on which such Unit is specified. Lessee shall remain liable for all
Rental Payments and other obligations due under each Schedule until the
expiration of the Noncancellable Term of such Schedule. Any Equipment sold by
Lessor shall be sold "AS IS", "WHERE IS", and with no warranties, express or
implied, including without limitation implied warranties of merchantability and
fitness for any particular purpose. "Fair Market Value" is defined as the
estimated amount at which the property might be expected to exchange in an arm's
length transaction between a willing buyer (other than a used equipment dealer)
and a willing seller, neither being under compulsion, each having reasonable
knowledge of all relevant facts, and with equity to both, with the assumptions
that the Units (i) are being sold "in place and in use," (ii) are free and clear
of all liens and encumbrances, and (iii) are in the condition required by
Paragraph 16 of this Lease.
18. RETURN OF EQUIPMENT. Upon ninety (90) days' written notice to
Lessor, in the event Lessee has not exercised its purchase option as specified
in Paragraph 17, after such notification and upon the expiration, cancellation
or other termination of the Noncancellable Term of each Schedule, Lessee shall,
at Lessee's sole expense, properly pack and return the Equipment, insured,
unencumbered and in the same condition as when received by Lessee, reasonable
wear and tear alone excepted, by such carriers as Lessor shall approve and to
such place as designated by Lessor within the state of California. Should Lessee
fail to give notice of its intent to return or fail to return the Equipment as
directed above, all obligations of Lessee under this Lease, including Rental
Payments, shall remain in full force and effect for the period from the end of
the Initial Lease Term until ninety (90) days after notice is given to Lessor of
Lessee's intent to return or purchase the Equipment (the "Holdover Period").
19. FINANCIAL STATEMENTS; OTHER INFORMATION.
(a) Lessee shall provide to Lessor the financial statements specified in
this Paragraph 19 (a), prepared in accordance with generally accepted accounting
principles, consistently applied (the "Financial Statements"); provided,
however, that after the effective date of the initial registration statement
covering a public offering of Lessee's securities, the term "Financial
Statements" shall be deemed to refer only to those statements required to be
filed by the Securities and Exchange Commission, to be provided no less
frequently than quarterly.
(i) As soon as practicable (and in any event within thirty (30)
days after the end of each month), a reasonably detailed balance sheet as of the
end of such month and the related statements of income or loss, cash flow and
capital structure of the Lessee during such month (including notification of the
commencement of any material litigation by or against Lessee), certified by
Lessee's Chief Executive Officer or Chief Financial Officer fairly to present
the data reflected therein.
(ii) As soon as practicable (and in any event within ninety (90)
days after the end of each fiscal year), unaudited balance sheets as of the end
of such year (consolidated if applicable), and related statements of income or
loss, retained earnings or deficit, cash flows and capital structure of Lessee
for such year, setting forth in comparative form the corresponding figures for
the preceding fiscal year. As soon as practicable (and in any event within two
hundred and seventy (270) days after the end of each fiscal year), audited
balance sheets as of the end of such year (consolidated if applicable), and
related statements of income or loss, retained earnings or deficit, cash flows
and capital structure of Lessee for such year, setting forth in comparative form
the corresponding figures for the preceding fiscal year and accompanied by an
audit report and opinion of the independent certified public accountants of
recognized national standing selected by Lessee.
(b) Lessee shall promptly provide to Lessor copies of all notices,
minutes, consents and other material that it provides to its directors at the
same time they are delivered to the directors. Lessee shall promptly furnish to
Lessor any additional information (including but not limited to tax returns,
income statements, balance sheets, and names of principal creditors) as Lessor
reasonably believes necessary to evaluate Lessee's continuing financial
obligations (the "Additional Information").
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(c) Lessor agrees to preserve the confidentiality of all information
provided to it hereunder by Lessee regarding the Lessee and its business which
Lessee designates in writing as confidential and which is otherwise not
generally known (except to the extent any disclosure of such information is
required by a court of competent jurisdiction or governmental authority).
20. TAX INDEMNIFICATION. Lessee acknowledges that this Lease has been
entered into on the basis that Lessor or Lessor's Assignee intends to claim such
depreciation, interest deductions and other tax benefits (the "Tax Benefits") as
are provided to an owner of Equipment under the Internal Revenue Code of 1986,
as amended (the "Code") and corresponding provisions of state law. If Lessor or
Lessor's Assignee shall not have the right to claim or there shall be
disallowed, deferred, recaptured or otherwise made unavailable with respect to
Lessor or Lessor's Assignee all or any portion of the Tax Benefits as a result
of an act or failure to act by Lessee in contravention of any of the terms and
conditions of the Lease, Lessee shall promptly pay to Lessor or Lessor's
Assignee, an amount which, on an after-tax basis, will compensate Lessor or
Lessor's Assignee for the value of the lost Tax Benefits. The Tax Benefits shall
be deemed to have been disallowed or recaptured upon the earliest of (i) the
adjustment by a taxing authority of the tax return of Lessor to reflect such
loss; or (ii) the payment by Lessor to the Internal Revenue Service or state
taxing authority of the tax increase resulting from such lost Tax Benefits.
Lessor or Lessor's Assignee shall be deemed not to have the right to claim the
Tax Benefits if, in the opinion of Lessor's independent tax counsel, reasonably
acceptable to Lessee, there is no reasonable basis for claiming the Tax
Benefits.
21. ADDITIONAL LESSOR RIGHTS. A representative of Lessor shall have the
right to meet with Lessee's Chief Executive Officer and Chief Financial Officer
once each quarter throughout the lease term to review and discuss the operating
performance and financial condition of the Company.
22. RISK OF LOSS. Lessee assumes the entire risk of loss, theft and
damage of the Equipment from any cause whatsoever, and no such event shall
relieve Lessee of any obligation under this Lease. Lessee shall notify Lessor in
writing within ten (10) days after any such event. Lessee agrees that Lessor
shall have the following remedies upon each occurrence of the following events:
(a) In the case of damage of any kind whatsoever to any Unit (unless
such Unit is damaged beyond repair), Lessee shall, at Lessee's sole expense and
with Lessor's reasonable consent, (i) restore such Equipment to its original
condition, reasonable wear and tear alone excepted, or (ii) replace it with like
equipment of the same or later model in good condition. Upon Lessee's
replacement of any Equipment as specified in clause (ii) of this Paragraph
22(a), Lessee shall transfer title to such replaced Equipment to Lessor.
(b) If any Unit is determined by Lessor to be damaged beyond repair, or
if Lessor has reasonable cause to believe that any Unit is stolen or lost and
such Unit is not returned to its proper location within thirty (30) days after
notice thereof to Lessee, Lessee shall, with Lessor's reasonable consent,
immediately pay to Lessor: (i) the amount required to replace such Unit with
like equipment of the same or later model in good condition, in which case such
Unit shall be substituted for the damaged Unit on the relevant Schedule, and
Rental Payments shall continue throughout the Lease Term of the Schedule to
which the Unit becomes subject without any interruption, or (ii) the sum of (A)
the aggregate unpaid rent due for the balance of the Noncancellable Term for the
Unit involved, discounted to present value at the Discount Rate; plus (B) the
then estimated Fair Market Value of the Unit involved, calculated as of the
expiration of the Noncancellable Term (the "Residual Value"), discounted to
present value at the Discount Rate; plus (C) any tax payments or indemnification
for which Lessee is liable under Paragraphs 10 and 20; plus any other amounts
with respect to such Unit for which Lessee is liable under this Lease; provided,
however, the option specified in clause (i) of this Paragraph 22(b) shall not be
available if an Event of Default has occurred and is continuing. Upon payment
under clause (ii) of Paragraph 22(b), this Lease shall terminate with respect to
the Unit(s) paid for, and Lessee shall become entitled to such Unit(s) "AS IS"
AND "WHERE IS" WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(c) Any proceeds paid to Lessor from the personal property insurance
specified in Paragraph 23(a)(i) shall be applied to Lessee's obligations under
this Xxxxxxxxx 00.
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00. INSURANCE.
(a) Lessee shall, at its own expense, maintain the following types of
insurance, with companies with an A-5 Best rating or better, acceptable to
Lessor, until such time as Lessee has returned the Equipment as specified in
Paragraph 18 or taken title to the Equipment pursuant to Paragraph 17:
(i) Personal property insurance on all property owned by Lessee
(including without limitation all of the Equipment) in an agreed amount based
upon the following:
(1) Standard "all risk" property insurance, including boiler
and machinery insurance, and flood insurance if any Equipment is located
in an identified "flood hazard area," in which flood insurance has been
made available pursuant to the National Flood Insurance Act of 1968;
(2) The amount of such insurance shall be not less than the
greater of the fair market value or the full undepreciated replacement
value of the Equipment. The amount of such insurance allocable to loss
or damage or personal property shall not have a deductible in excess of
one thousand dollars ($ 1,000.00) per occurrence.
(3) Such insurance shall name Lessor as loss payee with
respect to the Equipment, and shall set aside the amount stated in
Paragraph 23(a)(i)(2) for the sole benefit of, and payable directly to,
Lessor.
(ii) Employee dishonesty insurance payable to Lessor with respect
to the theft of the Equipment.
(iii)Business interruption insurance in an amount at all times
equal to the total Rental Payments to become due during the six months following
the date of calculation. In the event of any interruption of Lessee's business,
the amount payable to Lessor shall be equal to the actual loss of Rental
Payments suffered by Lessor as the result of such interruption, and shall be
payable to Lessor within thirty (30) days from the date of loss, and on a
month-to-month basis thereafter, until Lessee's business is returned to a fully
operational state, plus ninety (90) days.
(iv) Commercial general liability insurance covering bodily
injury (including death) and property damage, naming Lessor, its directors,
officers, agents and employees as an Additional Insureds on all policies
(evidenced by an endorsement issued by the insurer (as opposed to a certificate
issued by an agent of the insurer)), and providing total limits in amounts as
are at the time carried by entities engaged in the same or similar business and
which are similarly situated, but in no event less than two million dollars
($2,000,000.00) for combined single limit occurrence. All such policies shall
cover any injury or damage occasioned by, or occurring upon, Lessee's premises,
products, operations and, at Lessor's option, explosion, collapse and
underground hazards. All such policies shall contain contractual liability
coverage including all liability assumed under this agreement, and a cross
liability clause providing that such insurance shall, except with respect to the
limits of liability, apply separately to each insured.
(v) Workers compensation insurance.
(b) All insurance specified in this Paragraph 23 shall be primary over,
and in no event shall, any insurance carried by Lessor be called upon to
contribute to any loss relating to or arising out of this Lease. All insurance
shall be in effect, and shall be evidenced by a certificate of insurance with
all required endorsements as required pursuant to this Paragraph 23 delivered to
Lessor on or prior to the date upon which Lessee executes this Lease.
Notwithstanding anything to the contrary contained in this Lease, Lessor shall
have no obligation to purchase any Equipment until all policies are in place.
All such policies shall provide for at least thirty (30) days' prior written
notice to Lessor in the event of any cancellation, non-renewal or material
change `in coverage, and upon request by Lessor shall provide a copy of any and
all endorsements or other documentation relating to such policies.
(c) Should Lessee, at any time during the Lease Term, be without
sufficient insurance, as determined by Lessor in accordance with the provisions
of this Paragraph 23, Lessee appoints Lessor as its agent to obtain such
coverage, and promises to pay to Lessor the entire cost of such coverage.
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24. DEFAULT. Each of the following events shall constitute an "Event of
Default" under this Lease:
(a) Nonpayment, by the due date specified herein, of any Rental Payment
or other payment required of Lessee under the terms of this Lease, and such
nonpayment shall continue for a period of five (5) business days;
(b) Noncompliance with any or all of the provisions of Paragraph 23, and
such noncompliance shall continue for a period of five (5) days after notice
thereof is given to Lessee;
(c) If Lessor shall determine that Lessee has made a misstatement or
false statement of, or omitted to state, a material fact in connection with the
execution, performance or nonperformance of this Lease or any Schedule, or if
any representation or warranty of Lessee in this Lease, any Schedule or any
Acceptance Certificate is inaccurate or false;
(d) If Lessee, without Lessor's prior written consent, shall have
removed, parted possession with, sold transferred, encumbered, assigned or
sublet the Equipment or Lessee's interest under this Lease or attempted to do
any of the foregoing; or if Lessee shall have converted any interest of Lessor
arising under this Lease or any purchase order, or resulting from the purchase
of Equipment or attempted to convert any of the foregoing;
(e) If any of Lessee's credit or financial information submitted to
Lessor at any time (including but not limited to due diligence materials,
Financial Statements and Additional Information) contains any misstatement or
false statement of a material fact, or fails to state therein any material fact
necessary to make the statements made, in light of the circumstances under which
they were made, not misleading;
(f) If any single judgment for payment of money damages in excess of
fifty thousand dollars ($50,000.00), or aggregate judgments for payment of money
damages in excess of fifty thousand dollars ($100,000.00), shall be rendered
against Lessee and shall remain undischarged for a period of thirty (30) days
during which execution shall not be effectively stayed;
(g) If any substantial part of Lessee's property shall be subjected to
any levy, seizure, involuntary assignment, attachment, application or sale for
or by any creditor or governmental agency;
(h) If any single indebtedness of Lessee exceeding the sum of
twenty-five thousand dollars ($50,000.00), or aggregate indebtedness exceeding
the sum of fifty thousand dollars ($100,000.00), under any other lease or
contract for the borrowing of money or on account of the deferred purchase price
of property shall be accelerated, or subject to acceleration upon the giving of
notice, passage of time or both as a result of a default by Lessee, or the
obligee with respect to such indebtedness shall exercise any other remedy it may
have as a result of such default;
(i) If an order, judgment or decree shall be entered by any court having
jurisdiction for (i) relief in respect of Lessee in an involuntary case under
any applicable bankruptcy, insolvency or other similar law (as now or hereafter
in effect), (ii) appointing of receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) for Lessee or for any substantial
part of its property, or sequestering any substantial part of the property of
Lessee, or (iii) liquidating of Lessee's affairs, and any such order, judgement
or decree shall remain in force undismissed, unstayed or unvacated for a period
of sixty (60) days after the date of entry thereof, or if Lessee shall become
insolvent or generally not pay, or shall be unable to pay, or shall admit in
writing its inability to pay its debts as such debts become due; or if Lessee
shall seek relief of any kind under any such law or consent to any of the
foregoing; or
(j) Nonperformance of any of Lessee's obligations under this Lease other
than those described elsewhere in this Paragraph 24, and such nonperformance
shall continue for a period of twenty (20) days after notice thereof is given to
Lessee.
25. REMEDIES. Upon the occurrence and during the continuance of any
Event of Default, with or without cancelling or terminating this Lease, Lessor
or its agent shall have the right, without demand or prior notice, in Lessor's
sole discretion, to exercise any one or more of the following remedies:
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(a) To cancel this Lease and all Schedules;
(b) To declare the damages specified in Paragraph 26 to be immediately
due and payable;
(c) To take possession of any or all Units of Equipment with or without
any court order or other process of law, and for this purpose Lessor and/or its
agents may enter upon any premises of or under the control or jurisdiction of
Lessee or any agent of Lessee, without liability for suit, action or other
proceeding by Lessee and remove the Equipment therefrom; Lessee further agrees,
on demand, to assemble the Equipment and make it available to Lessor at a place
to be designated by Lessor which is reasonably convenient to Lessor and Lessee;
notwithstanding the foregoing, such taking of possession shall not relieve
Lessee of its obligations to pay damages as set forth in Paragraph 26. Lessee
further waives any and all damages occasioned by such taking of possession.
(d) To exercise any other right or remedy which may be available to
Lessor under the UCC or any other applicable law.
26. DAMAGES. Lessor's damages, in the event of default by Lessee, shall
include (in addition to all other damages available to Lessor under applicable
law): (i) the due and unpaid balance of Rental Payments and all other amounts
payable hereunder plus late charges and interest due under Paragraph 5(c) (but
not more than the maximum rate permitted by law) for the period after the date
such payments were due, (ii) the aggregate of all remaining Rental Payments
through the end of the Noncancellable Term of each Schedule, discounted to
present value at the Discount Rate, (iii) the Residual Value, discounted to
present value at the Discount Rate, (iv) any indemnification payments due
hereunder plus interest at a rate equal to the lesser of 1.5% per month or the
maximum rate permitted by law for the period after the date such payments were
due, (v) costs of repossession, recovery, storage and repairs and of lease or
sale to a third party, plus (vi) all other expenses including court costs and
reasonable attorneys' fees and expenses. Lessor's obligation to mitigate said
damages and any reduction of the amounts due to Lessor shall be limited as
follows:
(a) Lessor shall make best efforts to mitigate its damages by either
selling or re-leasing the Equipment to a third party for the highest net cash
proceeds available on the date of sale or re-lease. In the case of a sale of the
Equipment to a third party, any amounts received from the sale (or any loan
proceeds received by Lessor from financing a re-lease with a third party lender)
shall be applied to Lessor's damages as specified in this Paragraph 26. In the
case of a re-lease of the Equipment to a third party, any rentals received in
consideration for such third party's use of said Equipment during any of the
remaining Noncancellable Term of the original Schedule shall be applied only to
that portion of Lessor's damages resulting from loss of rentals that Lessor
would have received from Lessee during the same period had Lessee not become in
default. Amounts received from such third party shall be applied in mitigation
of Lessor's damages only to the extent such amounts are payable in connection
with such third party's periodic rental obligations as specified in the
preceding sentence; in no event shall any other amount received from such third
party, including without limitation as a security deposit or as an advance on
periodic rental obligations, be applied in mitigation of Lessor's damages
hereunder.
27. MISCELLANEOUS.
(a) If more than one Lessee is named in or added to this Lease, the
liability of each shall be joint and several.
(b) All notices related hereto shall be mailed to Lessor or Lessee at
its respective address as specified on the cover page of this Lease, or at such
other address as either party may designate upon ten days written notice to the
other party.
(c) Paragraph titles are solely for convenience and are not an aid in
the interpretation of this Lease.
(d) Time is of the essence of this Lease and each of its provisions.
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(e) If notwithstanding the intent of the parties this Lease and any
Schedules hereto are determined to be a lease for security or a security
agreement, Lessee shall have been deemed to have granted to Lessor a security
interest in all of Lessee's right, title and interest in and to the Equipment
and the proceeds thereof to secure all of Lessee's obligations to Lessor arising
hereunder or otherwise.
(f) This Lease may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered together shall
constitute one and the same instrument. Any Schedule to this Lease may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered together shall constitute one and the same instrument. To
the extent that this Lease and any Schedule constitute chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction), only the copy of each Schedule that is executed and marked
"Original Counterpart No. 1", when held by an Assignee as secured party,
together with a machine copy of this executed Lease, shall enable such holder to
perfect by possession a security interest in such Schedule and this Lease as it
relates to such Schedule, and any other copies of the Schedule shall not enable
the holder thereof to perfect by possession a security interest therein.
28. RIGHT OF FIRST OFFER. During the lease term, Lessee shall provide
Lessor with all requests for additional debt or lease financing prior to the
time that such requests are provided to other financing sources. Should Lessor
and Lessee fail to agree on the terms and conditions of such financing within
twenty (20) days of such notice, then Lessee may accept a funding source other
than Lessor.
29. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee shall fail
duly and promptly to perform any of its obligations under this Lease, Lessor
may, at its option and at any time, perform the same without waiving any default
on the part of Lessee, or any of Lessor's rights. Lessee shall reimburse Lessor,
within five (5) business days after notice thereof is given to Lessee, for all
expenses and liabilities incurred by Lessor in the performance of Lessee's
obligations.
30. NONWAIVER, RIGHTS AND REMEDIES CUMULATIVE. Lessor's failure at any
time to require strict performance by Lessee shall not constitute waiver of, or
diminish, Lessor's right to demand strict compliance with any provision of this
Lease. Waiver by Lessor of any default shall not constitute waiver of any other
default. No rights or remedies referred to herein shall be exclusive, but shall
be cumulative and in addition to any other right or remedy set forth herein or
otherwise available to Lessee at law or in equity.
31. SURVIVAL OF OBLIGATIONS; LIMITATIONS ON ACTIONS. All agreements,
covenants, representations and warranties of Lessee contained in this Lease or
in the Schedules or other documents delivered pursuant hereto or in connection
herewith shall survive the execution and delivery, and the expiration,
cancellation or other termination of this Lease. Any action by Lessee against
Lessor for any default by Lessor under this Lease shall be commenced within two
(2) year after any such cause of action accrues.
32. SEVERABILITY. If any provision or remedy herein provided is
determined invalid under applicable law, such provision shall be inapplicable
and deemed omitted; but the remaining provisions, including remaining default
remedies, shall be given effect in accordance with their terms.
33. UPGRADES, ADDITIONS AND ATTACHMENTS. Any added memory, upgrades,
additions and attachments to Equipment previously placed under this Lease shall,
upon approval by Lessor, be included on a Schedule, with a Noncancellable Term
that is coterminous with the Equipment to which such added memory, upgrade,
addition or attachment is being attached.
34. CHOICE OF LAW. THIS LEASE SHALL BE DEEMED TO HAVE BEEN MADE AND
ACCEPTED AND PERFORMED IN THE COUNTY OF SAN FRANCISCO, IN THE STATE OF
CALIFORNIA, WHERE THE LESSOR'S PRINCIPAL PLACE OF BUSINESS IS LOCATED. THIS
LEASE AND ALL TRANSACTIONS HEREUNDER, AND ALL RIGHTS AND LIABILITIES OF THE
PARTIES HERETO, SHALL BE DETERMINED AND GOVERNED AS TO THE VALIDITY,
INTERPRETATION, ENFORCEMENT AND EFFECT BY THE LAWS OF THE STATE OF CALIFORNIA.
THE LESSEE HEREBY
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CONSENTS, IN ALL ACTIONS AND PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY FROM
THIS LEASE, TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA OR ANY STATE COURT LOCATED WITHIN SAN FRANCISCO
COUNTY IN THE STATE OF CALIFORNIA. LESSEE HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
LEASE.
Lessee Initials: XX Xxxxxx Initials: EW
35. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
between the parties and may not be modified except in writing executed by Lessor
and Lessee. No supplier or agent of Lessor is authorized to bind Lessor or to
waive or modify any term of this Lease.
Lessee Initials: XX Xxxxxx Initials: EW
The undersigned representative of Lessee affirms that he or she has read
and understood this Lease and is duly authorized to execute this Lease on behalf
of Lessee and that, if Lessee is a corporation, this Lease is entered into with
consent of Lessee's Board of Directors and stockholders if so required.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto execute this noncancellable Lease
as of the date on the cover page hereof.
LESSEE: LESSOR:
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, DOMINION VENTURES, INC.
INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------- ---------------------------------
Name: Xxxx Xxxxxx Name: Xxxxx Xxxxxxx
----------------------------- -------------------------------
Title: CEO Title: VP Finance
---------------------------- ------------------------------
This Lease incorporates the following Addenda as if fully set forth herein:
Addendum I.
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ADDENDUM I
TO MASTER EQUIPMENT
LEASE AGREEMENT NO. 10910
DATED January 28, 1999
Conditions to Lessor's Obligations
By their initials below and on the signature page of the Master Lease
Agreement referenced in the upper right xxxxx of this page, Lessor and Lessee
agree that the Lease incorporates the following terms:
Part 1: On or prior to the date of execution of the Lease by Lessor,
Lessor shall have received in form and substance satisfactory to
Lessor:
(a) Copies, certified, in substantially the manner set forth in
Exhibit E to the Lease, by the Secretary or Assistant
Secretary of: (A) the Articles of Incorporation and By-Laws of
Lessee (as amended to the date of the Lease) and (B) the
resolutions adopted by Lessee's board of directors authorizing
the transaction and the documents being executed in connection
therewith.
(b) A Good Standing Certificate (including tax status if
available) with respect to Lessee from Lessee's state of
incorporation, dated a date reasonably close to the date of
acceptance of the Lease by Lessor.
(c) A Certificate of Insurance evidencing the insurance coverage
required by Paragraph 23 of the Lease.
(d) All necessary consents of shareholders and other third parties
with respect to the subject matter of the Lease and the other
documents being executed in connection therewith.
(e) Landlord waiver(s) in the form of Exhibit A.
(f) The Advance Rental plus applicable taxes.
(g) All other documents as Lessor shall have reasonably requested.
Part 2: Prior to any funding of a Schedule, each of the conditions set
forth in Part 1 of this Addendum I shall have been satisfied and
Lessor shall have received in form and substance satisfactory to
Lessor:
(a) Such documentation as Lessor may request with respect to
invoices, purchase orders, canceled checks and the like
relating to the Equipment to be subject to the Schedule.
(b) A Purchase Order Assignment or Xxxx of Sale if applicable.
(c) A UCC-1 financing statement duly executed by Lessee.
(d) An Acceptance Certificate with respect to the Equipment to be
subject to the Schedule.
Initials GS (Lessor)
----
Initials EW (Lessee)
----
ADDENDUM I
18
INDEX OF EXHIBITS
TO
MASTER LEASE AGREEMENT
Exhibit A -- Landlord Waiver
Exhibit B -- Purchase Order Assignment
Exhibit C -- Xxxx of Sale
Exhibit D -- Certificate of Inspection and Acceptance
Exhibit E -- Secretary's or Assistant Secretary's Certificate
Exhibit F -- Form of Schedule
19
EXHIBIT A
LANDLORD WAIVER
20
LANDLORD WAIVER
("Landlord") is the owner of real property commonly known
as_______________________________ (the "Premises") and has leased the Premises
to FAIRBANKS SYSTEMS GROUP d/b/a (&.BACKUP, INC. ("Tenant").
1. Landlord acknowledges that it has received notice that Tenant has or
will enter into a Master Lease Agreement (the "Equipment Lease") with DOMINION
VENTURES, INC., a California corporation (together with any assignee of the
Equipment Lease, "Dominion"), whereby Tenant will lease from Dominion certain
equipment (the "Equipment"), all or part of which is currently or may be located
upon or affixed to the Premises.
2. Landlord agrees that Dominion's rights in the Equipment are superior
to any right or claim which Landlord may have and waives and releases any and
all rights it may have against the Equipment for any rent or other sums due or
to become due, under any lease for the Premises or otherwise, and all claims and
demands of every kind against the Equipment.
3. Landlord agrees that the Equipment will remain personal property and
will not become part of the Premises, regardless of the manner in which it may
be affixed to real property, and will allow Dominion or its agents to enter the
Premises any time to remove the Equipment in the exercise of its rights and
remedies arising under the Equipment Lease.
4. This Waiver shall be binding upon the heirs, administrators,
executors, successors and assigns of the Landlord, and shall inure to the
benefit of the successors and assigns of Dominion.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Waiver this ____ day of ______________, 1998.
LANDLORD:
--------------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
21
EXHIBIT B
PURCHASE ORDER ASSIGNMENT
22
PURCHASE ORDER ASSIGNMENT
THIS PURCHASE ORDER ASSIGNMENT, dated as of ____________, 1998 (this
"Assignment") between FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, INC., a California
corporation ("Assignor") and DOMINION VENTURES, INC. ("Assignee");
WHEREAS, Assignor has submitted its Purchase Orders and/or Invoices
listed in Schedule I hereto (collectively, the "Purchase Orders"), to
_______________________ (the "Vendor") concerning certain Units of equipment
(the "Units") listed in Schedule I hereto to be subject to a Master Lease
Agreement, dated as of January 28, 1999 (the "Lease"), between Assignor and
Assignee (all terms used but not otherwise defined herein shall have the meaning
given to them in the Lease):
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Assignor does hereby sell, assign, transfer and set over unto
Assignee, all of the Assignor's rights to and interests in the Purchase Orders
as and to the extent that the same relates to the Units. The assignment herein
shall include, without limitation, the right of Assignee to purchase the Units
pursuant to the Purchase Orders and to take title to the Units, all claims for
damages in respect of the Units arising as a result of any default by Vendor
under the Purchase Orders, together with any and all rights of Assignor to
compel performance of the terms of the Purchase Orders in respect of the Units.
2. The exercise by Assignee of any of the rights assigned hereunder
shall not release Assignor from any of its duties or obligations to Vendor under
the Purchase Orders except to the extent that such exercise by Assignee shall
constitute performance of such duties and obligations.
3. Upon satisfaction of the conditions set forth in the applicable
Schedule to the Lease with respect to the Units, Assignee shall purchase such
Unit by paying or causing to be paid, by check mailed or delivered to Vendor, on
such date or thereafter as permitted by Vendor, an amount equal to the purchase
price of the Unit, as such amount may be adjusted in accordance with the terms
of the Purchase Orders and reflected on invoices prepared by Vendor to Assignee
on or before the date of delivery and acceptance of the Unit.
4. Assignor agrees that it will, at any time and from time to time, upon
the written request of Assignee, promptly and duly execute and deliver any and
all such further instruments and documents and take such further action as
Assignee may reasonably request in order that Assignee may obtain the full
benefits of this Agreement and of the rights and powers herein granted.
5. Assignor does hereby represent and warrant that the Purchase Orders
are in full force and effect and that Assignor is not in default under any of
them. Assignor does hereby further represent and warrant that Assignor has not
assigned or pledged, and so long as this Assignment shall remain in effect, will
not assign or pledge, the whole or any part of the rights hereby assigned or any
of its rights with respect to the Units under the Purchase Orders to anyone
other than Assignee.
23
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Order
Assignment to be duly executed as of the day and year first above written.
ASSIGNOR: ASSIGNEE:
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, DOMINION VENTURES, INC.
INC.
By: By:
-------------------------------- -----------------------------------
Name: Name:
------------------------------ ---------------------------------
Title: Title:
----------------------------- --------------------------------
Acknowledged and Consented to this _____ day of __________, 199__.
VENDOR:
[VENDOR]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
24
EXHIBIT C
XXXX OF SALE
25
XXXX OF SALE
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, INC.
(herein "Seller"), does hereby sell, grant, transfer and deliver all right,
title and interest in and to the equipment further described on Annex A hereto
(herein the "Equipment"), together with all warranties, guarantees or other
similar rights with respect to the Equipment ("Equipment Warranties") unto
DOMINION VENTURES, INC. (herein "Purchaser") and to its successors and assigns
to have and to hold said Equipment and the Equipment Warranties forever.
Seller hereby represents and warrants that it holds all right, title and
interest in and to the Equipment being transferred hereby free and clear of all
liens and encumbrances of any kind and Seller does for itself, its successors
and assigns covenant and agree with Purchaser, its successors and assigns, to
warrant and defend the sale of the Equipment and the transfer of the Equipment
Warranties unto Purchaser, its successors and assigns against all and every
person and persons whomsoever claiming or laying claim to the same, except for
any defects in title or liens or encumbrances in or to the Equipment arising
solely by reason of Purchaser's own acts.
THE WARRANTY SET FORTH IN THE FOREGOING PARAGRAPH AND THE EQUIPMENT
WARRANTEES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF SELLER, WHETHER
WRITTEN, ORAL OR IMPLIED, AND SELLER SHALL NOT, BY VIRTUE OF HAVING SOLD THE
EQUIPMENT HEREWITH, BE DEEMED TO HAVE MADE ANY REPRESENTATION OF WARRANTY AS TO
THE MERCHANTABILITY, FITNESS, DESIGN OR CONDITION OF, OR AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP IN, THE EQUIPMENT.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale this ___ day
of ____________, 199__.
SELLER:
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP,
INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
26
ANNEX A
TO
XXXX OF SALE
Equipment Description
27
EXHIBIT D
CERTIFICATE OF INSPECTION AND ACCEPTANCE
28
CERTIFICATE OF INSPECTION AND ACCEPTANCE
This document is an "Acceptance Certificate" referred to in Paragraph 1
of the Master Lease Agreement Number 10910 (the "Lease") dated as of January 28,
1999, between DOMINION VENTURES, INC. ("Lessor") and FAIRBANKS SYSTEMS GROUP
d/b/a @BACKUP, INC. ("Lessee"). This Acceptance Certificate relates to the
Equipment described in SCHEDULE __ to the Lease (the "Schedule"). All
capitalized terms used without definition herein shall have the respective
meanings given to such terms in the Lease.
LESSEE HAS NOT RELIED UPON LESSOR IN SELECTING THE TYPE AND QUANTITY OF
THE EQUIPMENT AND ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT,
INCLUDING WITHOUT LIMITATION ITS CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. Lessee further acknowledges that Lessor has accepted no
responsibility for the transportation, installation or required licensing
necessary for the transfer, installation or use of the equipment.
Lessee certifies that the Equipment (i) has been delivered to Lessee at
the location specified in the Schedule, (ii) has been inspected by Lessee and
has been found to be in good working order, repair and condition, (iii) has been
installed to Lessee's satisfaction, and (iv) is of a size, design, capacity and
manufacture to satisfy Lessee's requirements. Lessee understands that it may
have rights under the contract pursuant to which the Equipment was acquired and
should contact the supplier of the Equipment for a description of such rights.
Lessee hereby represents and warrants to Lessor that (i) no event of
default under Paragraph 24 of the Lease 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, except as disclosed in writing to Lessor, which
disclosed event has either been cured by Lessee or concerning which Lessee has
provided evidence to Lessor that Lessee is in the process of curing such default
and is diligently prosecuting such cure to completion (nothing herein shall
constitute a waiver by Lessor of any rights or remedies which it may have under
the Lease with respect to any event of default); (ii) each of the
representations and warranties set forth in Paragraph 12(b) of the Lease is true
and correct and (iii) Lessee has obtained, and there are in full force and
effect, all insurance policies with respect to the Equipment required to be
obtained under the terms of the Lease.
Date: LESSEE:
-------------
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP,
INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
29
EXHIBIT E
FORM OF CERTIFICATE
OF
SECRETARY OR ASSISTANT SECRETARY
30
FORM OF CERTIFICATE OF SECRETARY OR ASSISTANT SECRETARY
I, the undersigned, ____________________, certify that I am the
Secretary of FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, INC. (the "Company"), and
that I have been duly elected and am presently serving in such capacity in
accordance with the Bylaws of the Company. I hereby further certify on behalf of
the Company as follows:
1. Attached as Exhibit A to this Certificate are true and correct copies
certified by an official of the jurisdiction of incorporation of the Company of
the Company's Articles of Incorporation. No amendment or other document relating
to or affecting the Articles of Incorporation of the Company has been filed
since the filing of the Articles of Incorporation attached hereto, and no action
has been taken by the Company or its stockholders, directors or officers in
contemplation of the liquidation or dissolution of the Company.
2. Attached as Exhibit B to this Certificate is a true and correct copy
of the Bylaws of the Company in full force and effect of the date hereof.
3. The following is a true and correct copy of the resolutions adopted
by the Board of Directors of the Company with respect to the transaction
contemplated by the Master Lease Agreement between the Company and DOMINION
VENTURES, INC. (the "Resolutions"). Such Resolutions, which constitute all the
resolutions adopted by such Board of Directors, have not been modified, amended,
rescinded or revoked, and are in full force and effect on the date hereof:
"RESOLVED, that this corporation, lease from DOMINION VENTURES,
INC. or an affiliate, hereinafter referred to as Lessor, such items of
personal property, and upon such terms and conditions, as the officer or
officers hereinafter authorized in their discretion may deem necessary
or advisable.
"RESOLVED FURTHER, that Xxxx Xxxxxx and Xxx Xxxxxx of this
corporation (the officer or officers, authorized to act pursuant hereto
being hereinafter designated as "authorized officers") be and they
hereby are, authorized, directed and empowered, in the name of this
corporation, to execute and deliver to Lessor, and Lessor is requested
to accept, any lease that may be required by Lessor in connection with
such leasing of personal property.
"RESOLVED FURTHER, that the authorized officers be, and they
hereby are, authorized, directed and empowered, in the name of this
corporation, to make, execute and deliver any and all master lease
agreements, schedules, warrants, notes, mortgages, agreements,
assignments, acceptances, contracts and documents of whatever kind or
character and any supplements thereto, that in their judgment may be
necessary or which may reasonably be required by Lessor under or in
connection with any such lease. The corporation shall reserve such
shares of stock as officers deem necessary pursuant to the terms of
warrants issued. Such stock when issued in accordance with the terms of
the warrants, will be duly and validly issued, fully paid, and
nonassessable.
"RESOLVED FURTHER, that Lessor is authorized to act upon this
resolution until written notice of its revocation is delivered to
Lessor, and that the authority hereby granted shall apply with equal
force and effect to the successors in office of authorized officers
herein named."
4. The following persons have been duly elected and now hold the
respective offices of the Company indicated below and the
signature appearing opposite each such officer's name is the
genuine signature of such person:
31
NAME OFFICE SIGNATURE
Xxxx Xxxxxx Chief Executive Officer
------------------------------ ---------------------------- ----------------------------
Xxx Xxxxxx Chief Financial Officer
------------------------------ ---------------------------- ----------------------------
------------------------------ ---------------------------- ----------------------------
IN WITNESS WHEREOF, I have hereunto signed my name as of
_________________, 199__.
By:
-----------------------------------
Name: Xxxxxx Xxxx
Title: Secretary
-2-
32
EXHIBIT F
FORM OF SCHEDULE
33
SEE ANNEX A ATTACHED HERETO FOR EQUIPMENT DESCRIPTION.
-2-
34
IN WITNESS WHEREOF, the undersigned have executed this Schedule as of
the date set forth below.
LESSEE: LESSOR:
FAIRBANKS SYSTEMS GROUP d/b/a @BACKUP, DOMINION VENTURES, INC.
INC.
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
-3-
35
ANNEX A
TO
EQUIPMENT SCHEDULE ___
Equipment Description
36
EQUIPMENT SCHEDULE
NO.____
TO MASTER LEASE AGREEMENT NUMBER 10910 DATED JANUARY 28, 1999
LESSOR: DOMINION VENTURES, INC. LESSEE: FAIRBANKS SYSTEMS GROUP d/b/a
00 Xxxxxxxxxx Xxxxxx @BACKUP, INC.
Xxxxx 0000 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000-0000
This is one of the "Schedules" to the above-referenced Master Lease
Agreement (the "Lease"). This Schedule together with the Lease constitutes a
lease of the Equipment described on Annex A hereto and all terms and conditions
of the Lease are hereby expressly incorporated into this Schedule and made a
part hereof by this reference. By their execution of this Schedule, the parties
reaffirm all terms and conditions of the Master Lease Agreement except as they
may be modified hereby. This Schedule shall become effective on the later of the
date executed by Lessor or the date on which each of the conditions set forth in
Part 2 of Addendum I to the Lease are satisfied or waived. Capitalized terms
used in this Schedule and not otherwise defined herein shall have the respective
meanings set forth in the Lease.
TOTAL EQUIPMENT COST.......................$_______________
FUNDING EXPIRATION DATE....................________________
RENTAL PAYMENT.............................$_______________
RENT FACTOR................................ ______________%
FREQUENCY..................................Monthly, in advance
INITIAL LEASE TERM.........................________________
COMMENCEMENT DATE..........................________________
ADVANCE RENTAL.............................$_______________
SECURITY DEPOSIT...........................$0.00
EQUIPMENT LOCATION.........................________________
________________
________________
________________
LESSEE CONTACT.............................________________
________________
________________
________________
