EXHIBIT 10.11
MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 14, 1999
This MASTER LEASE AGREEMENT ("Master Lease"), is entered into as of September
14, 1999, between Imperial Bank Equipment Leasing Division, a division of
Imperial Bank (hereinafter called "Lessor"), having its principal place of
business at 0000 Xx Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, and
Multilink Technology Corporation, a Corporation (hereinafter called "Lessee"),
having its principal place of business at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
I. LOCATION OF DEFINED TERMS
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Lease Sub-Section Lease Sub-Section
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Defined Term Section Defined Term Section
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Acceptance Date II D Interim Rent IV A
Assignee X A Interim Rental Term III C
Casualty Value VII C Item of Equipment II A
Certificate of Acceptance II D Lease Rate Factor IV A
Claims IX Lease Term III D
Damage VII A Lien VIII C
Daily Lease Rate Factor IV A Loss VII A
End of Term Notice XII A Master Lease Introduction
Equipment II A Purchase Documents II C
Event of Default XI A Rent IV A
Fair Market Value XII C Rent Due Date IV B
Improvement V C Renewal Term XII D
Initial Term III B Rental Period Option IV B
Equipment Repair Notice XIII B Schedule II B
Equipment Inspection Fee XIII B Seller II C
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II. LEASE OF EQUIPMENT
(A) Lease. Lessor agrees to lease to Lessee, and Lessee agrees to lease from
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Lessor, subject to the terms and conditions of this Master Lease, the equipment
and related operating systems and other software (collectively, together with
all substitutions and replacements, the "Equipment," and individually, an "Item
of Equipment") described in the equipment schedules (each a "Schedule") executed
from time to time pursuant to this Master Lease.
(B) Schedules. Each Schedule substantially in the form of that attached, when
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executed by Lessor and Lessee, shall constitute a separate lease and shall
incorporate by reference the terms and conditions of this Master Lease and any
additional terms and conditions agreed upon by the parties. In the event of a
conflict between the provisions of this Master Lease and a Schedule, the
provisions of the Schedule shall control.
(C) Equipment Procurement. Provided that no Event of Default or event which
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with notice or lapse of time or both would constitute an Event of Default has
occurred and is continuing and subject to the representations and warranties set
forth in Section VII, Lessor may from time to time procure equipment requested
by Lessee and lease it to Lessee pursuant to this Master Lease and a Schedule;
provided, however, Lessor shall not purchase any Equipment unless Lessee is
unconditionally bound to lease it under the terms of this Master Lease and a
Schedule. Lessee authorizes Lessor, in reliance on Lessee's request, to enter
into purchase orders, contracts or other documents ("Purchase Documents") for
acquisition of the Equipment with the seller of the Equipment ("Seller").
(D) Delivery Installation and Acceptance. Lessor or its designated
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representative shall arrange for delivery and installation of the Equipment at
the location specified in the applicable Schedule. Lessee shall pay all costs
associated with packing, transportation, taxes, duties, insurance, delivery,
installation, testing and support of the Equipment. Lessor will have no
liability for any delay or failure of the Seller to deliver or service the
Equipment or license any software. Acceptance shall be deemed to occur upon the
date of execution by Lessee of a Certificate of Acceptance in the form of that
attached. Lessee hereby authorizes Lessor to insert in any Schedule the date of
acceptance (the "Acceptance Date") for any Item of Equipment as well as such
items as serial numbers and the Equipment description and cost resulting from
any orders or change orders occurring after the Schedule is executed. In the
event of replacement by the supplier or manufacturer of any Equipment that is
determined after acceptance to be defective, the Equipment list and serial
numbers on the applicable Schedule shall be deemed amended to reflect the
substitute Equipment.
III. TERM
(A) Master Lease Term. Unless otherwise extended by the parties hereto, the
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term of this Master Lease shall begin upon execution hereof by Lessor and Lessee
and continue through the last date on which any Schedule entered into pursuant
to this Master Lease remains in effect.
(B) Initial Term. The initial term under each Schedule shall begin on the first
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Rent Due Date occurring after the Acceptance Date under such Schedule and shall
continue through the end of the month of the number of months set forth in the
Schedule as the initial term ("Initial Term").
(C) Interim Rental Term. Prior to the commencement of the Initial Term under
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each Schedule, Rent shall be due and payable to Lessor for the period beginning
on the Acceptance Date and continuing to the first Rent Due Date of the Initial
Term ("Interim Rental Term").
(D) Lease Term. "Lease Term" shall mean for each Schedule the Interim Rental
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Term, the Initial Term, and all Renewal Terms.
IV. RENT
(A) Rent. Rent for the Equipment under each Schedule for each Rental Period
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("Rent") shall be an amount equal to the product of the percentage ("Lease Rate
Factor") set forth in such Schedule multiplied by the total cost of the
Equipment, as set forth in such Schedule. Rent for the Interim Rental Term
("Interim Rent") or any other partial rent period will be prorated on a daily
basis in an amount equal to l/30/th/ of the monthly Rent ("Daily Lease Rate
Factor"). Rent is payable in immediately available funds to Lessor at the
address or in accordance with the wire transfer instructions set forth in such
Schedule or as otherwise directed by Lessor.
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(B) Rent Due Date. Rent under each Schedule (other than Rent for the Interim
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Rental Term) shall be payable in advance, on each rent due date ("Rent Due
Date") of the period ("Rental Period"), as set forth in such Schedule. Rent for
the Interim Rental Term shall be due and payable on the first Rent Due Date of
the Initial Term.
(C) Past Due Amounts. To the extent permitted by applicable law, Lessee will
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pay on demand a late charge as stipulated under each schedule on each
installment of Rent and any other sums payable hereunder which remain unpaid for
more than ten days after the due date thereof.
(D) NONCANCELABLE RENT AND LEASE OBLIGATIONS. ALL LEASES HEREUNDER SHALL BE NET
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LEASES. LESSEE'S OBLIGATION TO PAY RENT AND OTHER AMOUNTS DUE UNDER THIS MASTER
LEASE AND EACH SCHEDULE SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE
SUBJECT TO ANY SET OFF, COUNTERCLAIM, ABATEMENT, REDUCTION, RECOUPMENT,
INTERRUPTION OR DEFENSE FOR ANY REASONS WHATSOEVER. THIS AGREEMENT SHALL NOT
TERMINATE NOR SHALL THE OBLIGATIONS OF LESSEE BE AFFECTED BY REASON OF ANY
DEFECT IN OR DAMAGE TO, OR LOSS OF USE OR POSSESSION OF, OR DESTRUCTION OF, ANY
EQUIPMENT FROM ANY CAUSE WHATSOEVER. IT IS THE INTENTION OF THE PARTIES THAT,
RENTS AND OTHER AMOUNTS DUE HEREUNDER SHALL CONTINUE TO BE PAYABLE IN ALL EVENTS
IN THE MANNER AND AT THE TIMES SET FORTH HEREIN UNLESS THE OBLIGATION IS
TERMINATED PURSUANT TO THE EXPRESS TERMS HEREOF. THIS MASTER LEASE AND THE
SCHEDULES CANNOT BE PREPAID OR TERMINATED BY LESSEE DURING THE TERM THEREOF
UNLESS AGREED TO IN WRITING BY LESSOR.
V. EQUIPMENT OWNERSHIP, USE, MAINTENANCE AND PROTECTION
(A) Ownership and Use. Lessee shall use the Equipment in a manner which will
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not disqualify it for manufacturer maintenance, and in compliance with all laws,
rules and regulations of every governmental authority having jurisdiction over
the Equipment and within the provisions of all policies of insurance carried by
Lessee. Lessee shall obtain all permits, licenses or other authorizations
necessary for the operation and use of the Equipment. Lessee shall pay all
costs, expenses, fees and charges incurred in connection with the use and
operation of the Equipment. Upon Lessors request, Lessee will affix and
maintain, in a prominent place on each Item of Equipment, plates, tags or other
identifying markings indicating Lessor's ownership of the Equipment. Lessee
shall not move any Item of Equipment from the location set forth on the
applicable Schedule without the prior written consent of Lessor, which consent
shall not be unreasonably withheld. Lessor may upon reasonable prior notice to
Lessee and during regular business hours inspect the Equipment.
(B) Lessor's Entitlement to Tax Benefits. Lessee acknowledges that Lessor is
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the only party entitled to claim tax benefits provided by federal, state and
local income tax law to the owner of the Equipment ("Tax Benefits"), and Lessee
agrees to characterize the relationship herein established as a lease. If
requested by Lessor, Lessee shall furnish Lessor with records and other
information necessary to claim such Tax Benefits. Lessee shall not, and shall
not permit any permitted sub-lessee or assignee to, take or omit to take any
action that may result in the disqualification of the Equipment for, or any
recapture of all or any portion of the Tax Benefits afforded the Equipment.
(C) Improvements. Lessee shall have the right, or the right to cause the Seller
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or another nationally recognized and experienced maintenance provider, to affix
or install any accessory, feature, device, improvement, modification, addition,
accession or upgrade ("Improvement") that is compatible with the Equipment. In
the event an Improvement is financed, a party other than Lessor may not finance
it. If Lessor finances any Improvement, it will be leased under the Schedule
covering the related Equipment, and the lease term for the Improvement will be
coterminous with such Schedule. Prior to the return of the Equipment, Lessee may
(if it so chooses and if the Improvement is not financed by Lessor) and shall
(if Lessor so requests) remove the Improvements or cause the Improvements to be
removed by the Seller or another nationally recognized and experienced
maintenance provider, and restore or cause to be restored the Equipment to its
original state, ordinary wear and tear excepted. Lessee shall not remove any
original parts from the Equipment without Lessor's prior written consent. Any
Improvements not removed from the Equipment upon its return or upon the
occurrence of an Event of Default shall, at Lessor's option, become the property
of Lessor.
(D) Maintenance. Lessee shall, at its own cost and expense and at all times
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during the Lease Term, take all actions necessary to maintain or cause to be
maintained by the Seller, manufacturer or a third party maintenance provider
reasonably acceptable to Lessor, the Equipment and all Improvements in good
working order, condition and repair, at the Equipment manufacturer's most
current engineering levels (including replacement of all parts which become
damaged or worn out), and in compliance with such maintenance and repair
standards as are set forth in the manufacturer's manual pertaining to the
Equipment, and as otherwise may be required to enforce warranty claims against
each vendor and manufacturer of each item of Equipment, and in compliance with
all requirements of law. Lessee will not discriminate such maintenance between
owned and leased equipment. Lessee shall comply with all instructions issued by
the manufacturer of the Equipment, and Lessee assumes and agrees to pay any cost
necessary to have the manufacturer re-certify that the Equipment will be
eligible upon resale or release by Lessor, for the manufacturer's maintenance
contract at the manufacturer's standard rates as required under Section XII(B).
(E) Insurance. (1) Lessee will insure for the following risks with insurers of
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recognized responsibility: (a) All risk of loss and physical damage to the
Equipment in an amount not less than the greater of (i) the fair market
replacement value or (ii) the aggregate Casualty Value of all Equipment from
time to time and; (b) Comprehensive public liability and property damage
insurance with respect to the condition, possession, maintenance, operation and
use of the Equipment, in an amount not less than $1,000,000 for each
occurrence. Such insurance shall be in full force and effect by not later than
the Installation Date for each item of Equipment and shall remain in effect
until such time as each item of Equipment has been returned to, and accepted by,
Lessor in accordance with the provisions of Section XII(B) hereof.
(F) Delivery of Insurance Certificates. Lessee shall deliver to Lessor and any
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Assignee(s) a valid Certificate of Insurance for each such insurance policy upon
the execution thereof and a Certificate of Insurance for each renewal policy not
less than 30 days prior to the expiration of the original policy or any renewal
policy. Such insurance shall (1) include as additional parties insured and loss
payees Lessor and any Assignee(s), (2) provide that such insurance shall not be
materially changed or canceled without at least 30 days prior notice to Lessor
and such Assignees, and (3) provide that such policy shall not be invalidated by
any negligence of, or breach of warranty by, Lessee. Upon the request of Lessor,
Lessee shall provide any additional data related to the insurance as Lessor
reasonably requests.
VI. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDIES
LESSOR IS NOT A MANUFACTURER, SUPPLIER OR DEALER OF THE EQUIPMENT AND HAS NOT
INSPECTED THE EQUIPMENT PRIOR TO DELIVERY TO AND ACCEPTANCE BY LESSEE. LESSOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY AS TO TITLE, CONDITION, QUALITY, DESIGN, CAPACITY,
VALUE, DURABILITY, SUITABILITY, SAFETY, OR COMPLIANCE WITH ANY LAW, RULE,
REGULATION OR SPECIFICATION, AS TO MERCHANTABILITY OR FITNESS FOR USE OR FITNESS
FOR A PARTICULAR PURPOSE, OR AS TO PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT,
IT BEING AGREED THAT THE EQUIPMENT IS LEASED "AS IS" AND THAT
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ALL SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE. LESSEE
ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT FROM THE VENDOR THEREOF ON THE
BASIS OF LESSEE'S JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON ANY
STATEMENT MADE BY LESSOR OR ITS AGENTS. LESSOR SHALL NOT IN ANY EVENT BE LIABLE
FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF LESSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VII. RISK OF LOSS
(A) Risk of Loss. Lessee shall bear the entire risk of the Equipment if
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damaged, destroyed or rendered permanently unfit or unavailable for use after
its shipment to Lessee and until it is accepted by Lessor in accordance with
Section XII(B) hereof.
(B) Damage/Event of Loss. (1) In the event any item of Equipment is damaged to
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a material extent by any occurrence whatsoever, Lessee shall promptly notify
Lessor and shall determine within 15 days of the date of such notice whether
such item of Equipment can be repaired. If such Equipment can be repaired,
Lessee shall at its cost and expense repair such Equipment to its original
condition. (2) In the event any item of Equipment shall be lost, stolen,
destroyed, damaged beyond repair, or rendered permanently unfit or unavailable
for use (through a governmental taking or any other event), for any reason
whatsoever (any such occurrence being referred to as an "Event of Loss"), Lessee
shall promptly notify Lessor and pay to Lessor, on the first day of the month
immediately following such Event of Loss, an amount equal to the Casualty Value
applicable to such item of Equipment calculated as of the immediately preceding
Rent Due Date plus any unpaid Rent and the installment of Rent for such item of
Equipment due on the Rent Due Date following the Event of Loss. After the
payment of such amounts, Lessee's obligation to pay further Basic Rent for such
item of Equipment shall cease, but Lessee's obligation to pay Interim Rent, if
any, for such item of Equipment, and to pay Rent for all other items of
Equipment shall remain unchanged. (3) Following payment of the Casualty Value
and Rent for an item of Equipment in accordance with the provisions of sentence
2 of this Section VII(B), Lessor shall transfer title to such item of Equipment
to Lessee on an AS IS, WHERE IS basis without representation or warranty.
(C) Casualty Value. The Casualty Value from time to time for any item of
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Equipment subject to a Schedule shall be an amount equal to the greater of (1)
the item of Equipment's installed/in-place fair market value at the time of the
Casualty Value determination, or (2) 110% of the Item(s) of Equipment cost as of
the Acceptance Date, declining in even monthly steps to 20% at expiration and
remaining at that value thereafter.
(D) Disposition of Insurance and Other Proceeds. The proceeds of insurance or
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any condemnation of an item of Equipment for which an Event of Loss has occurred
shall be paid to Lessor (to the extent that Lessor has not previously received
all Casualty Value and other payments required to be made by Lessee pursuant to
the Lease), and the remainder, if any, shall be paid to Lessee. The proceeds of
insurance with respect to damage to an item of Equipment, the repair of which,
in the opinion of Lessee, is practicable shall unless an Event of Default
hereunder has occurred and is continuing be applied either to such repair or to
the reimbursement of Lessee for the cost of such repair.
VIII. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS
(A) Representations and Warranties. Lessee represents, warrants and covenants
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to Lessor, as of the date of this Master Lease and as of the date of each
Schedule, that: (1) Lessee's execution, delivery and performance of this Master
Lease and each Schedule have been duly authorized by all necessary action on the
part of Lessee, and this Master Lease and each Schedule constitute legal, valid
and binding obligations of Lessee; (2) the execution and delivery by Lessee of
this Master Lease and each Schedule and the performance of its obligations
thereunder do not conflict with or result in a material breach of Lessee's
organizational documents or applicable law, or any judgment order, writ,
injunction, decree, rule or regulation of any court, administrative agency or
other governmental authority, or any agreement or other instrument to which
Lessee is a party or by which it is bound; (3) there are no pending or, to the
knowledge of Lessee, threatened actions or proceedings that could materially
adversely affect the ability of Lessee to perform its obligations under this
Master Lease and the Schedules; (4) there has been no material adverse change in
Lessee's financial condition since the date of this Master Lease; and (5) Lessee
has obtained the proper licenses to use, or ownership of, any software which is
or may be used in connection with the Equipment.
(B) Assignment and Transfer. LESSEE SHALL NOT, WITHOUT THE PRIOR WRITTEN
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CONSENT OF LESSOR, SELL, TRANSFER, ASSIGN, SUBLEASE (EXCEPT, UPON PRIOR WRITTEN
NOTICE TO LESSOR, A SUBLEASE TO A WHOLLY OWNED OR CONTROLLED SUBSIDIARY OR TO
ITS PARENT), PLEDGE OR HYPOTHECATE THIS MASTER LEASE, ANY SCHEDULE, THE
EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST THEREIN. Lessee shall not, without
the prior written consent of Lessor, which shall not be unreasonably withheld,
merge or consolidate with any corporation or other entity (unless Lessee is the
surviving entity or the surviving entity continues the business of Lessee and
assumes this Master Lease and all Schedules) and shall not sell, transfer or
otherwise dispose of all or any substantial part of Lessee's assets.
(C) No Liens. Lessee shall not directly or indirectly create, incur, assume or
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allow to exist any lien, mortgage, pledge, security interest, charge,
encumbrance, right, or claim of any kind ("Lien") on or with respect to this
Master Lease, any Schedule or any Item of Equipment. Lessee will promptly notify
Lessor in writing of the existence of any Lien and will promptly, at Lessee's
expense, cause any such Lien to be duly discharged.
(D) Payment of Taxes. Lessee shall reimburse Lessor for, and indemnify and hold
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Lessor harmless from, all sales, use, personal property, stamp or other taxes,
and all levies, imposts, duties, charges, fees, assessments or withholdings of
any nature whatsoever (other than those measured by Lessors net income),
together with any penalties, fines or interest thereon which are at any time
levied, assessed or imposed on the Equipment or any interest of Lessor or Lessee
therein or on the sale, purchase, delivery, ownership, possession, use or
operation of the Equipment or the rentals or other amounts payable under this
Agreement or any Schedule. If requested by Lessor or if filing by Lessee is
required by law, Lessee shall prepare and file, or cause to be prepared and
filed, all necessary forms for the assessment of such taxes and shall promptly
send to Lessor a copy of such filing.
(E) Financial Reports. Lessee shall upon execution hereof, and for the term of
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this agreement and any schedules, amendments, extensions and addendums thereto,
furnish or caused to be furnished to Lessor the following: (1) the audited
annual financial statements of Lessee within 120 days after the close of each
fiscal year; (2) quarterly financial statements in a form reasonably acceptable
to Lessor within 60 days after the close of each fiscal quarter; and (3) monthly
financial statements in a form reasonably acceptable to Lessor within 30 days
after the close of each fiscal month.
(F) Further Assurances: Payment of Lessor's Expenses. Lessee shall promptly
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execute and deliver, or cause to be executed and delivered, to Lessor such
further documents and take such further action as Lessor may from time to time
request in order to more effectively carry out the intent and purpose of this
Master Lease and each Schedule, protect the rights and remedies of Lessor
created or intended to be created thereunder and perfect and protect Lessor's
interest in the Equipment. Lessee shall pay all reasonable costs (including
reasonable legal fees and costs) and expenses incurred by Lessor in the
consummation or interpretation of this Master Lease or any Schedule; in
collecting or attempting to collect any sums owed under this Master Lease or any
Schedule; or in enforcing any of Lessor's rights or remedies under this Master
Lease or any Schedule. Lessee shall also pay all filing fees, Lien search fees
recordation fees and related expenses reasonably incurred by Lessor in
connection with this Master Lease or any Schedule.
(G) Notification. Lessee shall notify Lessor within 10 days of any material
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changes in the management, ownership or control of Lessee.
IX. GENERAL INDEMNITY
(A) LESSEE SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND LESSOR AND ITS SUCCESSORS
AND ASSIGNS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
AGAINST ALL CLAIMS DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
EQUIPMENT, THIS MASTER LEASE OR ANY SCHEDULE, EXCEPT FOR CLAIMS RESULTING SOLELY
FROM LESSOR'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. "CLAIMS" REFERS TO ALL
LOSSES, LIABILITIES, DAMAGES, PENALTIES, EXPENSES (INCLUDING REASONABLE LEGAL
FEES AND COSTS), CLAIMS, ACTIONS AND SUITS, WHETHER IN CONTRACT OR IN TORT AND
WHETHER BASED ON A THEORY OF STRICT LIABILITY OF LESSOR OR OTHERWISE, AND
INCLUDES, BUT IS NOT LIMITED TO, MATTERS RELATING TO: (1) THE SELECTION,
MANUFACTURE, PURCHASE, ACCEPTANCE, REJECTION, OWNERSHIP, DELIVERY, LEASE,
POSSESSION, STORAGE, MAINTENANCE, USE, CONDITION, RETURN OR OPERATION OF THE
EQUIPMENT; (2) ANY LATENT DEFECTS OR OTHER DEFECTS IN ANY EQUIPMENT, WHETHER OR
NOT DISCOVERABLE BY LESSOR OR LESSEE; (3) ANY PATENT, TRADEMARK OR COPYRIGHT
INFRINGEMENT; AND (4) THE CONDITION OF ANY EQUIPMENT ARISING OR EXISTING DURING
LESSEE'S USE. (B) LESSOR SHALL PROMPTLY NOTIFY LESSEE OF ANY CLAIM AFTER RECEIPT
OF A WRITTEN NOTICE OF SUCH CLAIM BY LESSOR, AND LESSEE SHALL HAVE THIRTY (30)
DAYS TO ELECT TO DEFEND, COMPROMISE OR SETTLE THE CLAIM. IF LESSEE ELECTS TO
DEFEND THE CLAIM, (1) LESSOR SHALL HAVE THE RIGHT TO APPROVE LESSEE'S SELECTION
OF COUNSEL, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, AND SHALL HAVE
THE RIGHT AT ITS ELECTION TO PARTICIPATE IN SUCH DEFENSE, AND (2) LESSEE SHALL
NOT BE RESPONSIBLE FOR ANY LEGAL FEES OR OTHER EXPENSES RELATING TO DEFENSE OF
THAT CLAIM THAT LESSOR MAY THEREAFTER ELECT TO INCUR. LESSEE SHALL NOT CONSENT
TO ENTRY OF ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT WITHOUT THE EXPRESS
WRITTEN CONSENT OF LESSOR. THIS INDEMNIFICATION OBLIGATION SHALL SURVIVE
TERMINATION OR EXPIRATION OF THIS MASTER LEASE OR ANY SCHEDULE.
X. LESSOR RIGHTS
(A) Assignment. Lessor (and any assignee of Lessor) shall have the right to
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sell, assign, transfer, pledge, mortgage or otherwise convey its interest in
this Master Lease, one or more Schedules, any or all of the Equipment or any of
its rights, interests or obligations with respect thereto, in whole or in part,
to one or more persons or entities (each, an "Assignee") without notice to, or
consent of, Lessee. Notwithstanding such assignment, Lessor shall not be
relieved of its obligations hereunder except to the extent of such assignment.
Lessee agrees that if any Schedule is assigned, (1) Lessee shall, if instructed
by Lessor, pay all amounts due under such Schedule to the Assignee, (2) Lessee
shall execute such acknowledgments to such assignment as are reasonably required
by the Assignee to perfect and protect its right, title and interest in and to
the Equipment, the applicable Schedule and the Rent due thereunder, and (3)
Lessee shall not require the Assignee to perform any obligation of Lessor, other
than those that are expressly assumed by such Assignee, and shall not assert
against any Assignee any claim, defense, counterclaim or set-off that Lessee may
at any time have against Lessor.
LESSEE ACKNOWLEDGES THAT ANY ASSIGNMENT OR TRANSFER IN ACCORDANCE WITH THIS
SECTION BY LESSOR OR AN ASSIGNEE WILL NOT MATERIALLY CHANGE LESSEE'S DUTIES OR
OBLIGATIONS UNDER THIS MASTER LEASE OR THE ASSIGNED SCHEDULE NOR MATERIALLY
INCREASE THE BURDENS OR RISKS IMPOSED ON LESSEE.
(B) Lessor's Performance of Lessee's Obligations. If Lessee fails to perform
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its obligations under this Master Lease or any Schedule, Lessor shall have the
right but not the obligation, without releasing Lessee from any obligation
hereunder or under any Schedule, to perform any act or make any payment that
Lessor reasonably deems necessary for the maintenance and protection of the
Equipment and Lessor's interests in the Equipment and in this Master Lease and
the Schedules, and in exercising any such rights, incur any liability and expend
any amounts reasonably necessary to protect such interests. All sums so incurred
and expended by Lessor, together with expenses (including reasonable legal fees
and costs) incurred in connection therewith, shall be immediately due and
payable by Lessee and shall bear interest at the interest rate for late payments
set forth in the applicable Schedule (or such lesser rate or amount as may then
be the maximum permitted by applicable law), from the date so incurred or
expended by Lessor to the date payment is received by Lessor.
(C) Financing Statements. Lessor may, at its option, file with such authorities
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and in such locations, as it may deem appropriate, Uniform Commercial Code
financing statements relating to the Equipment, this Master Lease, the Schedules
and the rents payable thereunder. Lessee agrees to promptly execute and deliver
to Lessor any such financing statements requested by Lessor: provided that
Lessor may, at its option, file Uniform Commercial Code financing statements
signed by Lessor only, and if Lessee's signature is required by law, Lessee
appoints Lessor as Lessee's attorney-in-fact to execute such financing
statements or file a copy of this Master Lease or any Schedule as a financing
statement. Lessee will promptly notify Lessor of any change in the location of
its principal place of business or chief executive office.
XI. DEFAULT AND REMEDIES
(A) Events of Default. An "Event of Default" shall occur hereunder and under
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all Schedules if Lessee (1) fails to pay any installment of Rent or other
payment required hereunder or under any Schedule within the time period set
forth in a Schedule; (2) is in default subject to the terms of any other loan or
lease agreement with Imperial Bank or any other party; (3) fails to timely
perform or observe any covenant, condition or agreement set forth in this Master
Lease or any Schedule; (4) experiences a material adverse change in its
financial condition as reasonably determined by Lessor; (5) becomes insolvent or
makes an assignment for the benefit of creditors, or institutes or has
instituted against it bankruptcy, reorganization or insolvency proceedings (and,
in the case of any such proceedings instituted against Lessee, such proceeding
is not stayed or dismissed within thirty (30) days), or a trustee, administrator
or receiver shall be appointed for Lessee or for a substantial part of its
property; or (6) makes any statement, representation or warranty in this Master
Lease or any Schedule that is false or misleading in any material respect when
made.
(B) Remedies. (1) If an Event of Default occurs under the Lease, Lessor may
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give Lessee notice of the Event of Default and upon the giving of such notice or
at any time thereafter do any or all of the following (as Lessor in its sole
discretion elects): (a) proceed by appropriate court action or actions to
enforce performance by Lessee of the applicable covenants and terms of the Lease
or to recover damages for the breach thereof; (b) take possession (by summary
proceedings or otherwise) of any or all items of Equipment subject to the Lease
without prejudice to any other remedy or claim herein referred to; (c) hold,
sell, lease, or otherwise dispose of, any or all items of Equipment subject to
the Lease, in any manner Lessor (in its sole discretion) elects: (d) receive
from Lessee upon demand for any or all Equipment subject to the Lease the
following amounts which Lessee shall be obligated to pay: (i) any unpaid Rent
past due, (ii) as liquidated damages for loss of bargain and not as a penalty,
the aggregate Casualty Value for such Equipment under the Lease in effect as of
the date on which such Event of Default occurred, (iii) all costs and expenses
incurred in searching for, taking, removing, keeping, storing, repairing, and
restoring such items of Equipment, (iv) all other amounts then owing by Lessee
hereunder; and (v) all costs and expenses, including (without limitation)
reasonable legal fees and expenses, incurred by Lessor as a result of an Event
of Default, or the exercise by
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Lessor of its remedies under this Section XI(A) or in connection with any
bankruptcy proceeding of the Lessee (including, without limitation, fees and
expenses incurred in connection with relief from stay motions relating to the
Equipment, cash collateral disputes, assumption/rejection motions relating to
the Equipment and disputes relating to any proposed plan and/or disclosure
statement); (e) by notice to Lessee, declare the Lease (for any or all
Equipment) canceled without prejudice to Lessor's rights in respect of all
obligations set forth in this Section XI(A) and any other obligations under the
Lease then accrued and remaining unsatisfied; or (f) avail itself of any other
remedy or remedies provided for by any statute or otherwise available by law, in
equity or in bankruptcy or insolvency proceedings; or (g) terminate any other
Lease that Lessor may have with Lessee.
(C) The remedies set forth in this Section XI(A), (Remedies), are not intended
to be exclusive, and each shall be cumulative. The amounts to be paid to Lessor
under clause (d) of Section XI(A) shall be increased by interest, at the Overdue
Rate, to the date of receipt by Lessor of the amount payable under said clause,
from the respective due dates of such amounts or (with respect to costs,
expenses, and losses for which Lessor is entitled to payment or reimbursement
under said clause) from the respective dates incurred by Lessor.
(D) Any amounts received by Lessor as the result of its sale, lease during the
original term hereof, or other disposition of the Equipment hereunder shall be
paid or applied in the following order: (1) to any remaining obligation of
Lessee under clause (d) of Section XI(A), (2) to reimburse Lessee for the
Casualty Value previously paid as liquidated damages, and (3) to Lessor, any
remaining balance.
XII. END OF LEASE TERM
(A) End of Term Notice. Lessee shall give Lessor no less than ninety (90) days
------------------
and no more than 365 days written notice prior to the expiration of the Lease
Term under any Schedule, as to whether it will purchase, return or extend the
term of the leased Equipment on the applicable Schedule at expiration of the
Lease Term ("End of Term Notice"). If Lessee fails to give timely notice or
fails to return the Equipment to Lessor upon expiration of the Lease Term as
provided herein, the Schedule shall continue in full force and effect and will
extend on a month to month basis at the applicable Rent, until Lessee provides
Lessor with ninety (90) days prior written notice of Lessee's intent to
purchase, return or extend the term of the leased Equipment on the applicable
Schedule. Such notice once given shall be irrevocable.
(B) Return. (l) Upon the expiration or other permitted termination of this
------
Schedule or any extension thereof, Lessee, at its sole cost, risk, and expense,
will return to Lessor all, (but not less than all), of the Equipment then
subject to the Schedule to a location in the Continental United States specified
by Lessor. Lessee shall be responsible at its sole cost and expense, for (a) the
de-installation, removal and packaging of the Equipment (including, but not
limited to, any and all software, all manuals, maintenance records, maintenance
record jackets, repair orders and all other similar documents) in a manner
suitable for cartage by a common commercial carrier acceptable to Lessor, and
(b) the transportation of the Equipment, upon written notification by Lessor, as
to the date and destination of the shipping. Such Equipment, upon return, shall
be free and clear of all mortgages, liens, security interest, charges,
encumbrances and claims. If Lessor shall so require, Lessee shall provide free
and safe storage, as well as maintain sufficient insurance coverage (as
specified in the Master Lease) for such Equipment for a period not to exceed 120
days from the expiration date or the last day of any extension period therefor.
(2) Upon return of such Equipment, Lessor or its agent shall inspect the
Equipment. If any item of Equipment is not returned to Lessor, it shall be
deemed to be a casualty and an Event of Loss during the Lease Term. In the event
Lessor determines that repairs, additions or replacements are necessary to place
the Equipment in the same condition as when originally leased to Lessee
(reasonable wear and tear excepted), which at a minimum will require that the
Equipment be in complete and running condition with no missing or damaged
components and/or certified as being eligible for the Seller's or the
manufacturer's generally available maintenance contract at then prevailing
prices. (3) If Lessor determines that the Equipment (after inspection) is
damaged or worn beyond normal wear and tear, Lessor or Lessor's agent will
prepare an invoice which fully describes the repairs and the estimated cost
required to place the Equipment in complete and running condition, and certified
as being eligible for the Seller's or the manufacturer's generally available
maintenance contract ("Equipment Repair Notice"). Lessee shall pay such invoiced
costs in addition to an inspection fee equal to one-tenth (.1%) percent of the
applicable Equipment's Cost ("Equipment Inspection Fee"), within ten (10) days
of the date of such notice. (4) In the event Lessee fails to remit payment to
Lessor within ten (10) days of receiving such Equipment Repair Notice, Lessee
shall pay to Lessor, Interim Rent equal to the Daily Lease Rate Factor,
multiplied by the Equipment cost as set forth in the applicable Schedule, for
each day in excess of the Lease Term, until such Equipment Repair Notice payment
is made.
(C) Purchase Option. Provided that no Event of Default has occurred and the
---------------
applicable Equipment Schedule has not been previously terminated, Lessee shall
have the right at its option, upon not less than 90 days and no more than 365
days written notice to Lessor prior to the Expiration Date, to purchase all (but
not less than all) of the Equipment subject to the applicable Equipment Schedule
on its Expiration Date. In such case, Lessee's purchase price shall be payable
to Lessor on the Expiration Date and shall be an amount equal to the Equipment's
fair market value as determined by Lessor in good faith. Lessor shall transfer
to Lessee, "AS IS" "WHERE IS," without recourse or warranty, expressed or
implied, of any nature (except to warrant to those claiming by, under or through
Lessee, the absence of any liens created by Lessor), all of Lessor's right,
title and interest in and to the Item(s) of Equipment with respect to which such
payment has been received.
(D) Renewal Option. Provided that no Event of Default has occurred and the
--------------
applicable lease Schedule has not been earlier terminated, Lessee shall have the
right at its option, upon not less than ninety (90) days and no more than 365
days written notice to Lessor prior to the Expiration Date, to renew all (but
not less than all) of the Equipment subject to the applicable Equipment Schedule
for a firm term renewal period not less than six months.
XIII. MISCELLANEOUS
(A) Captions: Counterparts: Integration: Entire Agreement. The captions
-----------------------------------------------------
contained in this Master Lease are for convenience only and shall not affect the
interpretation of this Master Lease. This Master Lease and the Schedules may be
executed by the parties in one or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
agreement. Only one counterpart of this Master Lease and each Schedule shall be
marked "Original," and all other counterparts shall be marked "Duplicate." To
the extent, if any, that this Master Lease or any Schedule constitutes chattel
paper (as such term is defined in the Uniform Commercial Code in effect in any
applicable jurisdiction), no security interest in this Master Lease or any such
Schedule may be created through the transfer or possession of any counterpart
other than the Original. THIS AGREEMENT, TOGETHER WITH ALL SCHEDULES, ANNEXES
AND EXHIBITS THERETO, CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF. NO VARIATION OR MODIFICATION OF THIS
AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS SHALL BE VALID
UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE
PARTIES HERETO.
(B) Notices. All notices under this Master Lease and the Schedules shall be in
-------
writing and shall be delivered to the parties by certified mail, return receipt
requested, by courier service or by facsimile transmission, at their respective
addresses or facsimile numbers set forth in the Schedules (or such other address
or number as either party may designate in writing from time to time). Notice
shall be deemed to have been given (1) on the third day after being deposited in
the United States mail, by certified mail, return receipt requested, properly
addressed and with postage prepaid; or (2) on the day delivered by courier
service or transmitted by facsimile.
Page 5 of 6
(C) No Waiver: Lessor Approval. Any failure of Lessor to require strict
--------------------------
performance by Lessee or any written waiver by Lessor of any provision of this
Master Lease or any Schedule shall not constitute consent to or waiver of any
other breach of the same or any other provision of this Master Lease or any
Schedule. This Master Lease and each Schedule shall not be binding upon Lessor
unless and until executed by Lessor.
(D) Governing Law: Severability. THIS MASTER LEASE AND EACH SCHEDULE SHALL BE
---------------------------
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE
STATE OF CALIFORNIA. If any provision of this Master Lease or any Schedule is
illegal, invalid or unenforceable under any applicable law of any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent such
laws apply without invalidating the remaining provisions of this Master Lease or
such Schedule or causing such provision to be ineffective or unenforceable under
the laws of any other jurisdiction.
(E) Quiet Enjoyment. So long as no Event of Default has occurred and is
---------------
continuing, neither Lessor nor any Assignee will interfere with Lessee's quiet
enjoyment and use of the Equipment.
(F) Survival. All obligations of Lessee to make payments to Lessor under this
--------
Master Lease or any Schedule or to indemnify Lessor pursuant to the terms of
this Master Lease or any Schedule, and all rights of Lessor under this Master
Lease and each Schedule shall survive the expiration or termination of this
Master Lease and each Schedule.
(G) Software. Any software or other licensed products attached to or provided
--------
in connection with the Equipment shall at all time remain property of the owner
thereof, and Lessee shall not obtain title to any such software.
(H) Export Laws. Lessee shall not export or re-export, directly or indirectly,
-----------
any software or technology received by it in connection with this Master Lease
or any Schedule, or allow the direct product thereof to be exported or re-
exported directly or indirectly, in violation of applicable law, including
without limitation the regulations of the United States Department of Commerce.
(I) Present Value. In the event it is necessary to determine the present value
-------------
of rentals under any Schedule, the parties agree that the discount rate to be
used in determining such present values shall be the then prevailing Federal
Reserve Bank Discount Rate as published in the Wall Street Journal as of the
date of discounting.
(J) Foreign Corrupt Practices Act. The parties shall comply with all applicable
-----------------------------
laws affecting this Agreement and the performance of this Agreement. The parties
shall maintain all registrations with governmental agencies, commercial
registries xxxxxxxx of commerce, or other offices which may required under local
law in order to conduct their commercial business. The parties shall also comply
with United States laws applicable to the sale of the Equipment, including the
Foreign Corrupt Practices Act (which prohibits certain payments to governmental
officials or political parties).
(K) True Lease: Maximum Rate. This Master Lease and the Schedules are intended
------------------------
to be a "Finance Lease," as defined in Article 2A of the Uniform Commercial
Code, unless otherwise indicated in a Schedule. Lessor hereby informs Lessee
that (i) the identity of the Seller is set forth in the applicable Schedule,
(ii) the Lessee is entitled under Article 2A to the promises and warranties,
including those of any third party, provided to Lessor in connection with, or as
part of, the contract by which Lessor acquired the Equipment, and (iii) Lessee
may communicate with the Seller and receive an accurate and complete statement
of the promises and warranties, including any disclaimers and limitations of
them or of remedies. As a precaution in the event that, notwithstanding the
express intention of the parties hereto to enter into a true lease, this Master
Lease or any Schedule is ever deemed to be other than a true lease, or in the
event that the parties hereto intend to enter into a lease intended as security,
if so indicated on the applicable Schedule, Lessee hereby grants Lessor a
security interest in the Equipment and all proceeds thereof, including, without
limitation, insurance proceeds. In any such event, notwithstanding any
provisions contained herein or in any Schedule, neither Lessor nor any Assignee
shall be entitled to receive, collect or apply as interest any amount in excess
of the maximum rate or amount permitted by applicable law. In the event Lessor
or any Assignee ever receives, collects or applies as interest any amount in
excess of the maximum amount permitted by applicable law, such excess amount
shall be applied to the unpaid principal balance and any remaining excess
refunded to Lessee. In determining whether the interest paid or payable under
any specific contingency exceeds the maximum rate or amount permitted by
applicable law, Lessor and Lessee shall, to the maximum extent permitted under
applicable law, characterize any non principal payment as an expense or fee
rather than interest, exclude voluntary prepayments and the effect thereof, and
spread the total amount of interest over the entire term of this Master Lease
and the Schedules.
(L) Waiver of Jury Trial, Etc. The Lessee and the Lessor each hereby waives any
-------------------------
right to trial by jury in any litigation in any court with respect to, in
connection with, or arising out of this master lease or any schedule entered
into in connection therewith, or any other claim or dispute howsoever arising,
between the Lessor and the Lessee.
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE,
ACKNOWLEDGES THAT IT HAS READ THIS MASTER LEASE, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
LESSEE: MULTILINK TECHNOLOGY LESSOR: IMPERIAL BANK EQUIPMENT LEASING
CORPORATION DIVISION,
A Division of Imperial Bank
Signature: /s/ Xxxxxxx X. Xxxxxxxxxx Signature:_____________________________
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: _____________________________
----------------------------
Title: President Title _____________________________
----------------------------
Page 6 of 6
SCHEDULE NO. 001
Dated as of September 14, 1999
A Schedule Made Pursuant to Master Lease Agreement
Dated as of September 14, 1999,
- Between Imperial Bank Equipment Leasing Division, a division of
Imperial Bank, as Lessor,
and Multilink Technology Corporation, as Lessee
The terms and conditions of this Schedule incorporate the terms and conditions
of the Master Lease Agreement identified above. Capitalized terms not defined in
this Schedule shall have the meanings assigned to them in the Master Lease
Agreement.
I. EQUIPMENT
The Equipment covered by this Schedule is described on Schedule A, attached.
II. ADDRESSES FOR LESSEE AND LESSOR:
(A) Lessee's Address(es):
--------------------
(1) Chief Executive Office Address: 0000 Xxxxx Xxxx Xxxxxxxxx,
Xxxxx 000 Xxxxx Xxxxxx,
XX 00000
(2) Lessee's Address to Receive Invoices: 0000 Xxxxx Xxxx Xxxxxxxxx,
Xxxxx 000 Xxxxx Xxxxxx,
XX 00000
Contact Name: Xx. Xxxx Xxxxxxx, Director of
Finance
Contact Phone Number: (000) 000-0000
Contact Facsimile Number: (000) 000-0000
(3) Lessee's Address to Receive Notices: Same
Contact Name: Same
Contact Phone Number:
Contact Facsimile Number:
(B) Lessor's Addresses:
------------------
(1) Chief Executive Office: Imperial Bank Equipment Leasing
Division
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx,
Xxxxx 000 Xxxxxxxxx, XX 00000
(2) Address for Payments: Imperial Bank Equipment Leasing
Division Payment Processing
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx,
Xxxxx 000 Xxxxxxxxx, XX 00000
III. FINANCIAL TERMS
(A) Equipment Acquisition Cost: $2,000,000.00
(B) Equipment Location: 0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
(C) Initial Term Commencement Date: 1/st/ day of the month following
Acceptance Date
(D) Acceptance Date: TBD
(E) Initial Term (number of months): 36 Months
(F) Lessee's Federal Tax ID: TBD
(G) Seller: TBD
(H) Lease Rate Factor: Float to Fund:
-------------
Upon acceptance of the equipment, the
monthly lease rate factor of 0.03175 may
be adjusted by .00012 for every 25 basis
point (0.25%) increase or decrease in
the yield of the Like Term U.S. Treasury
Note ("T-Note"). The Like Term T-Note is
defined as that security issued by the
U.S. Department of Treasury with a
maturity most closely matching the
maturity of the proposed lease as quoted
in the Wall Street Journal. The Like
Term T-Note as of the date of the
proposal yields 5.77%. The monthly lease
rate factor shall be fixed as of the
date of acceptance and will remain
constant throughout the term of the
lease.
(I) Daily Lease Rate Factor: 0.001058 (Refer to item H)
(J) Casualty Value: See Master Lease Agreement para VII(c)
(K) Security Deposit: On a per Schedule basis, equal to one
month rent plus applicable tax to be
applied to the last initial term rental
(L) Purchase Option: On a per Schedule basis, Fair Market
Value in continued use not less than 10%
of the Equipment Acquisition Cost
(M) Restocking Fee On a per Schedule basis, there will be a
restocking fee of 10% of the Equipment
Acquisition Cost for all returned
equipment
(N) Documentation Fee: $2,500.00
IV. RENT AND TERM
(A) Rent: On a per Schedule basis, monthly rent
will be based upon the Lease Rate
Factor(s) multiplied by the Equipment
Acquisition Cost.
(B) Due with Documentation: On a per Schedule basis, First Month
Rent (including tax), and Security
Deposit (including tax).
(C) Rent Due Date: 1/st/ of the month
(D) Rent past due after: 10 days
(E) Late Payment Fee: 1.5%
(Not to exceed maximum rate
permitted by applicable law)
(F) Rental Period: Monthly in advance
(G) Required Notice: No less than 90 days or no more than 365
days prior to Lease Termination
LESSEE, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, ACKNOWLEDGES
THAT IT HAS READ THIS LEASE, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS
AND CONDITIONS.
LESSEE: MULTILINK TECHNOLOGY LESSOR: IMPERIAL LEASING
CORPORATION A Division of Imperial Bank
Signature: /s/ Xxxxxxx X. Xxxxxxxxxx Signature: _____________________________
---------------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: ______________________________
---------------------------
Title: President Title ______________________________
---------------------------
SCHEDULE "A"
TO EQUIPMENT SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT (THE "MASTER LEASE")
DATED AS OF SEPTEMBER 14, 1999
BETWEEN IMPERIAL BANK EQUIPMENT LEASING DIVISION, A DIVISION OF
IMPERIAL BANK, AS LESSOR,
AND MULTILINK TECHNOLOGY CORPORATION, AS LESSEE
EQUIPMENT LIST
Equipment Description
---------------------
Computer hardware (to include servers, PC's, HP printers), electronic test
equipment (to include HP and Tektrinix), furniture, and other miscellaneous
equipment
Up to 12% of the lease line may be used for software and soft costs.
Total Lease Line for Multilink Technology Corporation $2,000,000.00
Lessor Initials: ______________________ Lessee Initials: R.N.N.
----------------------
SCHEDULE "B"
TO EQUIPMENT SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT (THE "MASTER LEASE")
DATED AS OF SEPTEMBER 14, 1999
BETWEEN IMPERIAL BANK EQUIPMENT LEASING DIVISION, A DIVISION OF
IMPERIAL BANK, AS LESSOR,
AND MULTILINK TECHNOLOGY CORPORATION, AS LESSEE
EQUIPMENT RETURN PROVISIONS
Upon the expiration or other permitted termination of this Schedule or any
extension thereof, Lessee, at its sole cost, risk, and expense, will return to
Lessor all, (but not less than all), of the Equipment then subject Schedule to a
location in the continental United States specified by Lessor. Lessee shall be
responsible at its sole cost and expense, for (a) the de-installation, removal
and packaging of the Equipment (including, but not limited to, any and all
applicable software, all manuals, maintenance records, maintenance record
jackets, repair orders and all other similar documents) in a manner suitable for
cartage by a common commercial carrier acceptable to Lessor, and (b) the
transportation of the Equipment, upon written notification by Lessor, as to the
date and destination of the shipping. Such Equipment, upon return, shall be free
and clear of all mortgages, liens, security interest, charges, encumbrances and
claims. If Lessor shall so require, Lessee shall provide free and safe storage,
as well as maintain sufficient insurance coverage (as specified in the Master
Lease) for such Equipment for a period not to exceed 120 days from the
expiration date or the last day of any extension period therefor.
Upon return of such Equipment, Lessor or its agent shall inspect the Equipment.
If any item of Equipment is not returned to Lessor, it shall be deemed to be a
casualty and an Event of Loss during the Lease Term. In the event Lessor
determines that repairs, additions or replacements are necessary to place the
Equipment in the same condition as when originally leased to Lessee (reasonable
wear and tear excepted), which at a minimum will require that the Equipment be
in complete and running condition with no missing or damaged components and
certified as being eligible for the Seller's or the manufacturer's generally
available maintenance contract at then prevailing prices.
If Lessor determines that the Equipment (after inspection) is damaged or worn
beyond normal wear and tear, Lessor or Lessor's agent will prepare an Equipment
Repair Notice ("ERN") which fully describes the repairs and the estimated cost
required to place the Equipment in complete and running condition, and certified
as being eligible for the Seller's or the manufacturer's generally available
maintenance contract. Lessee shall pay such invoiced costs which shall include
an Equipment Inspection Fee equal to one-tenth (.1%) percent of the applicable
Equipment Schedule's "first cost," within ten (10) days of the date of the
Equipment Repair Notice. In the event Lessee fails to remit payment to Lessor
within ten (10) days of receiving such Equipment Repair Notice, Lessee shall pay
to Lessor, interim Rent equal to the Daily Lease Rate Factor, multiplied by the
Equipment Cost as specified in the applicable Schedule, for each day in excess
of Lease Term of the applicable Equipment Schedule, until such payment is made.
At the time of return, the Equipment shall be (I) in compliance with all
applicable federal, state and local laws: and (II) free of all advertising or
insignia thereon by Lessee.
Hold Harmless. Lessee agrees that Lessor will be held harmless for any damages
-------------
to disassembly site if Lessee or Lessee's agent causes disassembly.
Insurance on Equipment during return. Lessee will obtain and pay for a policy of
------------------------------------
transit insurance for the delivery period in an amount equal to the higher of
Replacement Value or Casualty Value of the Equipment and Lessor shall be named
as loss payee on such policies.
Any further Return Instructions more specifically related to the Equipment (if
applicable) shall be attached as Exhibit "C" Additional Return Provisions.
Lessor Initials: _______________________ Lessee Initials: R.N.N
------------------
LESSEE REQUEST FOR PROJECT FUNDING PRIOR TO PROJECT COMPLETION DATE
Ladies/Gentlemen:
Reference is made to Master Lease Agreement dated September 14, 1999 ("Master
Agreement") by and between Imperial Bank Equipment Leasing Division, a division
of Imperial Bank ("Lessor") and Multilink Technology Corporation, as Lessee, and
to Equipment Schedule No. 001 the ("Schedule") and all related subsidiary
documents under the Master Agreement and Schedule (collectively, the "Lease").
Notwithstanding anything to the contrary contained therein, and to the limited
extent hereof, this Letter Agreement amends and supersedes the Lease and is
hereby incorporated by reference herein.
Lessor has received a request from Lessee to advance funds to
supplier/manufacturer(s) for certain Equipment, including amounts for deposits
and/or progress payments ("Project Funding Services"), prior to Lessee's
certification in writing to Lessor, that all of the Equipment under the Schedule
has been deemed delivered, accepted by Lessee and subject to the terms and
conditions of the Lease ("Project Funding Period"). As adequate and valuable
consideration for Lessor providing project funding services and advancing funds
to supplier/manufacturer(s) on behalf of Lessee prior to Lessee's written
certification of receipt and acceptance of all of the subject Equipment, Lessee
agrees that the following terms and conditions mutually binding under the Lease:
Lessee will pay to Lessor rent ("Daily Supplemental Rent") calculated from the
installation date of each Item of Equipment, (as defined in Section II. (A) of
the Master Agreement). If Lessor has advanced funds either as a deposit or a
progress payment on items of Equipment not yet installed, the Daily Supplemental
Rent will be calculated from the date of Lessor's disbursement. The Daily
Supplemental Rent will be calculated as follows: (.0125 X (the cost of each item
of installed Equipment + amount of progress payments and deposits made)/30).
Daily Supplemental Rent will be billed monthly in arrears and will continue
until the date ("Project Completion Date"), on which the "final" Item of
Equipment on the Schedule shall be deemed delivered, accepted by Lessee and
subject to the terms and conditions of the Lease. Upon Lessor's request, Lessee
will promptly execute and deliver a Certificate of Acceptance (prepared by
Lessor), confirming such Project Completion Date. Lessor may complete
information, on Lessee's behalf, on the Certificate of Acceptance if it is
returned incomplete by Lessee. Lessor will not be required to advance funds on
any Item of Equipment not installed, tested and ready for use by Lessee on or
before December 14, 1999 (the "Funding Cut-Off Date"). If all of the Equipment
to be included in the above-referenced Lease is not certified in writing to
Lessor to be installed, tested and ready for use by Lessee and a certificate of
acceptance on or before the Funding Cut-Off Date, or if in the sole opinion of
Lessor there has been a deterioration in the credit worthiness of Lessee, Lessor
may, at its sole option, pursue one of the following alternatives: (a) Lessor
may commence the Lease (using the Funding Cut-Off Date or the date Lessor
determines that there is a deterioration in the credit worthiness of Lessee, as
the Acceptance Date) based on the portion of the Equipment which has been
certified by Lessee to be installed, tested and ready for use and paid for by
Lessor, and demand that Lessee pay to Lessor an amount equal to that which
Lessor has paid to vendor(s) on behalf of Lessee for Items of Equipment not yet
installed, tested and ready for use, plus all Daily Supplemental Rent, fees,
taxes, late fees, and other charges which are due and owing; (b) Lessor may, at
its sole and absolute discretion, extend the allowed Project Funding Period and
establish a new Funding Cut-Off Date; or (c) Lessor may demand that Lessee pay
to Lessor a total amount equal to that which Lessor has paid to
supplier/manufacturer(s) on behalf of Lessee, plus all Daily Supplemental Rent,
taxes, late fees, and other charges which are due and owing under the terms of
the above-referenced Lease. Should such a demand be made by Lessor, Lessee
hereby unconditionally agrees to reimburse said funds to Lessor in full within
ten business days of said demand, and Lessor upon receipt of such payment in
full, shall release Lessee from further payment obligations under the Lease
Lessee shall provide Lessor with updated financial information as periodically
requested by Lessor. Irrespective of this Letter Agreement, all other terms and
conditions including, without limitation, all payment obligations by Lessee
under the Lease shall remain absolute and unconditional without regard in any
manner whatsoever to the Daily Supplemental Rent obligations and/or Project
Funding Period set forth herein. The Daily Supplemental Rent under this Letter
Agreement does not apply to, or offset rentals due after the Project Completion
Date. The certification in writing to Lessor that all Items of Equipment have
been deemed delivered, accepted by Lessee and subject to the terms and
conditions of the Lease, is not a pre-condition to Lessee's performance of any
of its obligations under the Lease, including all rental and other payment
obligations.
The Lease is hereby duly amended to incorporate the foregoing revisions. Please
acknowledge your acceptance of the same by your authorized signature below and
return the original of this Letter Agreement to Lessor within five days of the
date hereof, retaining the enclosed copy for your records.
"LESSOR" "LESSEE"
IMPERIAL BANK, EQUIPMENT LEASING DIVISION MULTILINK TECHNOLOGY CORPORATION
By:__________________________________ By: /s/ Xxxxxxx X Xxxxxxxxxx
--------------------------------------------
Print Name: _________________________ Print Name: Xxxxxxx X Xxxxxxxxxx
------------------------------------
Title:_______________________________ Title: President
-----------------------------------------
Federal I.D. Number: 00-0000000
___________________________
