Exhibit 10.3
EQUIPMENT LEASE AGREEMENT
AGREEMENT NO: 120 EFFECTIVE DATE: 5/15/98
MONTHLY $6,537.22 MODEL:1 CONCEPT I
RENTAL: S/N 2555
TERM OF LEASE:24 MONTHS INSTALLED DATE:
UNIT PRICE: $204,000.00
INSTALLED AT: 0000 XXXXXX XXXXX SHIPPED DATE: XXX
XXXXXX, XXXXX 00000
This EQUIPMENT LEASE AGREEMENT made by and between EXCELLON AUTOMATION CO.,
a California Corporation, having an office at 00000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 ("EXELLON") and PERFORMANCE INTERCONNECT, INC.,
having an office at 0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 ("PERFORMANCE
INTERCONNECT").
WHEREAS PERFORMANCE INTERCONNECT desires to lease certain equipment from
EXCELLON; WHEREAS EXCELLON lease this equipment to PERFORMANCE INTERCONNECT;
The parties hereto agree as follows:
I. DEFINITIONS I
(a) Equipment shall mean the EXCELLON System leased pursuant to this Lease
Agreement, including the basic unit and any extra equipment, and all
repair and renewal parts installed therein.
(b) Rent shall mean the amount specified above which is the combination
of(l) EXCELLON's charge for exclusive availability of the Equipment at
all times for use by PERFORMANCE INTERCONNECT; and (1) EXCELLON's
charge for servicing and maintaining Equipment at 100% of EXCELLON's
published performance standards(excluding travel time expense.
PERFORMANCE INTERCONNECT will pay for the travel nine expense).
(c) Effective Date shall mean the date specified above on which this Lease
was accepted at EXCELLON's office by its authorized representative.
2. LEASE OF EQUIPMENT
(a) Term. Excellon shall lease the Equipment for a term of 24 months
specified above, commencing on the date of this agreement and
continuing for the duration of the Lease term, unless PERFORMANCE
INTERCONNECT shall exercise the purchase option set forth in Section 10
of this Agreement prior to such date.
(b) Delivery Schedule. Excellon will ship the Equipment to PERFORMANCE
INTERCONNECT'S installation site.
3. RENTAL PAYMENT
PERFORMANCE INTERCONNECT shall pay to EXCELLON rental at the monthly
rate specified above. First Rental Payment is due on June 1, 1998 and
payable in advance of each monthly rental period. Should PERFORMANCE
INTERCONNECT fail to pay any part of the rent or any other sum required
hereunder, Excellon shall be entitled to assess a late charge on such
delinquent payment at the lesser of ten percent (10%) of the highest
legal interest rate from the date when such payment was due until paid.
Payment received after 5 days from due date is considered late.
4. TRANSPORTATION
Excellon will ship the Equipment to PERFORMANCE INTERCONNECT at the
install site as noted above, FOB Factory, freight collect.
5. SITE PREPARATION
PERFORMANCE INTERCONNECT shall be responsible for preparing and
maintaining the installation site for the Equipment in accordance with
EXCELLON' s specifications.
6. TITLE, RISK OF LOSS AND INSURANCE
(a) The Equipment is and all times shall remain the property of
EXCELLON. No right, title or interest in the Equipment shall pass to
PERFORMANCE INTERCONNECT other that the right to maintain possession
and use of the Equipment for the full Lease term; provided that in the
event PERFORMANCE INTERCONNECT exercised the purchase option, such
title and interest shall pass to PERFORMANCE INTERCONNECT upon full
payment to EXCELLON of the purchase price in cash.
(b) During the Lease term, PERFORMANCE INTERCONNECT shall assume all
risk of loss or damage to the Equipment, whether or not insured, until
the Equipment is returned to EXCELLON. No loss or damage to the
EQUIPMENT at PERFORMANCE INTERCONNECT's site shall relieve PERFORMANCE
INTERCONNECT from any obligation under this Lease which shall continue
in full force and effect
(c) PERFORMANCE INTERCONNECT shall keep the Equipment insured against
theft awl all risks of loss or damage for not less than the replacement
cost of the Equipment and shall carry public liability insurance
covering the Equipment and its use.
7. WARRANTIES AND LIMITATION OF REMEDIES
(a) Excellon warrants that the Equipment leased hereunder shall be
free from defects in material and workmanship in accordance with its
standard warranty terms.
(1) During the term of this Lease, Excellon will, at its option,
repair or replace any defective Equipment components at no
additional expense or labor charges Replacement components will be
either reconditioned or new. When returning defective components,
PERFORMANCE INTERCONNECT must obtain a return material
authorization "RMA" from Excellon, and prepay any shipping costs.
(2) The foregoing warranties do not extend to any (i) disposable or
consumable materials supplied for use with the Equipment including
but not limited to, collets, hoses, lamps, fuses, cassettes, and
other similar items, or (ii) routine adjustments, alignments or
repairs due to normal wear or tear.
(3) EXCELLON shall have no obligation to repair or replace any
Equipment component (i) which has been modified in any respect
without the prior written approval of EXCELLON, (ii) which has
been installed, serviced or repaired by PERFORMANCE INTERCONNECT
or other third party without the prior written approval of
EXCELLON, (iii) which has been damaged due to PERFORMANCE
INTERCONNECT's failure to conform to the site and environmental
conditions as specified in EXCELLON's installation specifications,
(iv) which has been removed from its officially designated
location without the prior written approval of EXCELLON, (v) which
has been subject to unusual physical or electrical stress, and
(vi) which has been damaged or rendered defective by reason of
accident neglect, misuse, transportation, or exposure to corrosive
agents.
(b) The foregoing warranty is exclusive and in lieu of all other
warranties, whether express or implied (including any warranty of
merchantability or fitness for particular purpose).
(c) IN NO EVENT SHALL EXCELLON BE LIABLE TO PERFORMANCE INTERCONNET OR
OTHER END-USER, ON THE BASIS OF CONTRACT, NEGLIGENCE, STRICT PRODUCTS
LIABILITY OROTHERWISE, FOR LOSS OR DAMAGE TO PROPERTY OF PERFORMANCE
INTERCONNECT OR OTHERS, INJURY TO PERSONS, LOSS OF USE, EXPENSES
INVOLVING COSTS OF CAPITAL, LOSS OF REVENUES OR PROEIT, OR FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER
8. LOCATION OF EQUIPMENT
PERFORMANCE INTERCONNECT shall not move the Equipment from the
installed site location without the prior written consent of EXCELLON,
which consent shall not be unreasonably withheld.
9. TAXES
PERFORMANCE INTERCONNECT shall pay SALES TAX to EXCELLON at the rate of
8.25%, and must pay all license and registration fees, assessments,
stamp and documentary taxes, use taxes, personal property taxes, gross
receipts taxes, excise taxes, ad valorem and all other taxes and other
taxes and charges, however designated, which may now or hereafter,
during the term of this Lease, be imposed by any government body or
agency upon this Lease or the ownership, leasing, rental, sale,
purchase, possession or use of the Equipment, if applicable.
10. PURCHASE OPTION
(a) This Lease may be canceled at any time during the Lease term by
written notification to EXCELLON by PERFORMANCE INTERCONNECT of its
intention to purchase the equipment and full payment of the purchase
price in cash pursuant to the terms of this paragraph 10.
(b) The purchase price will be the stated Unit Price of the Equipment
less 60% of all lease payments made by PERFORMANCE INTERCONNECT.
(c) The Equipment warranty will be for a period of one year. A full
service maintenance agreement will be in effect for the second year,
and is included in the purchase price.
11. DEFAULT
The following events shall constitute default by PERFORMANCE
INTERCONNECT under the Lease: (a) PERFORMANCE INTERCONNECT shall fail
to timely pay rent or any other payment hereunder when due and such
failure to pay shall continue for 20 days after written notice thereof
to PERFORMANCE INTERCONNECT, or (b) PERFORMANCE INTERCONNECT shall
default in the performance of any other covenant of this Lease arid
such default shall continue for 20 days after written notice thereof to
PERFORMANCE INTERCONNECT, or (c) PERFORMANCE INTERCONNECT shall become
insolvent or make an assignment for the benefit of creditors, or (d)
PERFORMANCE INTERCONNECT shall apply for or consent to the appointment
of a receiver, trustee or liquidator of PERFORMANCE INTERCONNECT of all
or a substantial part of the assets of PERFORMANCE INTERCONNECT, or if
such receiver, trust or liquidator is appointed without the application
or consent of PERFORMANCE INTERCONNECT, or (e) any proceeding shall be
commenced or other action taken by or against PERFORMANCE INTERCONNECT
under the BANKRUPTCY Act or any other insolvency law providing for the
relief of creditors including, without limitation a petition for
reorganization, arrangement or extension), or (f) PERFORMANCE
INTERCONNECT shall discontinue its business or dissolve, sell or
otherwise dispose of substantially all of its assets.
12. REMEDIES
Upon the occurrence of an event of default EXCELLON may immediately
exercise, at its sole discretion1 any one or more of the following
remedies: (a) by written notice to the PERFORMANCE INTERCONNECT,
declare the entire unpaid rent for the full Lease Term immediately due
and payable whereupon such rent shall become immediately due and
payable without further notice or demand; (b) proceed by appropriate
court action to enforce performance by PERFORMANCE INTERCONNECT of the
applicable covenant or to recover damages for the breach thereof; (c)
xxx for and recover all rent and other payments then accrued or
thereafter accruing under this Lease; (d) terminate this Lease -by
written notice to
PERFORMANCE INTERCONNECT, whereupon all rights of PERFORMANCE
INTERCONNECT in and to the Equipment shall terminate and PERFORMANCE
INTERCONNECT return the Equipment to Lessor as provided in Article 13
hereof; or (g) pursue any other remedy at law or in equity. PERFORMANCE
INTERCONNECT agrees to pay EXCELLON all costs and expenses, including
reasonable attorney's fees, incurred hereunder or enforcing any of the
terms and conditions of this Lease
13. RETURN OF EQUIPMENT
Upon expiration of the Lease term or other termination pursuant to the
terms of this Lease, PERFORMANCE INTERCONNECT shall immediately return
the Equipment to EXCELLON in as good a condition as received, less
normal wear and tear. The return of the Equipment shall be, at
PERFORMANCE INTERCONNECT's sole expense, and the Equipment shall be
properly crated and shipped (freight prepaid) and properly insured.
14. ENTIRE AGREEMENT; NON-WAIVER; SEVERABILITY
This Lease contains the entire agreement and understanding between
PERFORMANCE INTERCONNECT and EXCELLON relating to the subject matter
hereof. No Modification of this agreement shall be binding in the
parties hereto unless set forth in writing and signed by the parties.
The provisions of this Lease shall be binding upon and shall inure to
the benefit of the permitted assigns, successors, heirs and personal
representatives of PERFORMANCE INTERCONNECT.
15. CHOICE OF LAW
This lease Agreement shall be governed by and construed in accordance
with the laws of California.
16. UCC FILINGS
PERFORMANCE INTERCONNECT shall execute or obtain and deliver to
EXCELLON, upon EXCELLON's request, such instruments, financing
statements and assurances, including without limitation, waivers of
interest of owners or mortgages of real estate upon which the Equipment
is located, ad Excellon deems necessary or advisable forte
confirmation, protection or perfection of this lease EXCELLON's rights
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to he
executed by their duly authorized representatives.
ACCEPTED AND AGREED TO:
EXCELLON AUTOMATION CO. PERFORMANCE INTERCONNECT, INC.
BY _______________________ BY: /s/
XXXXXX X. XXXXXX --------------------------
TITLE: CONTROLLER TITLE:
DATE:______________________ DATE: 5-11-98
[ PURCHASE ORDER 26975 APPEARS HERE ]
