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Exhibit 10(rrr)
[DELL LETTERHEAD]
XXXX XXXXX
CERPROBE CORPORATION
0000 X. XXXXXX XXXX.
GILBERT, AZ 85233
SEPTEMBER 29, 2000
Dear XXXX XXXXX:
Dell Financial Services, L.P. ("DFS") is pleased to provide you with the
following documentation for your Dell equipment lease.
Your DFS Lease Agreement Number is: 001430836-001
_________________________________________________
Your DELL Customer Number is: 4279972
__________________________________________________
To expedite your order(s), please complete the following four steps:
1. SIGN BOTH THE LEASE AGREEMENT AND ATTACHMENT A WHERE INDICATED. (If a
personal guarantee has been required, please sign the Guaranty Section of
the lease agreement accordingly. Please fill in your home address where
required.)
2. FAX ALL PAGES (Lease Agreement and Attachment A) to 0-000-000-0000. YOUR
ORDER CANNOT BE RELEASED TO MANUFACTURING UNTIL THIS STEP IS COMPLETE.
(Please make sure you receive confirmation that the fax transmittal was
successful. If you do not have facsimile access, please call our Customer
Service Department at 0-000-000-0000.)
3. Please FAX A COPY OF A VOIDED BUSINESS CHECK or deposit slip to us along
with your faxed documents. (You DO NOT have to send HARDCOPY of this voided
check with your original documents, the facsimile will suffice.)
4. AFTER FAXING, please forward all of the ORIGINAL DOCUMENTATION via overnight
mail to:
Dell Financial Services L.P.
Lockbox 99200
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
The first invoice you receive once your lease commences will include your
monthly rent payment, any applicable taxes and/or fees and the shipping charge
to get your equipment to you if your Lease indicates that shipping charges ARE
NOT included in your Monthly Rental Payment in the Financing Terms section on
page one. Subsequent invoices will only include your monthly rental payments and
any applicable taxes and/or fees.
If we may be of further assistance, please call Dell Financial Services at
0-000-000-0000. Select the Customer Service option from the voice activated
prompt for the fastest service. Please have your Dell Order number(s), located
below "General Equipment Description" on your "Lease Agreement Attachment A",
ready when you call.
Thank you for choosing DFS!
Sincerely,
DELL FINANCIAL SERVICES, L.P.
XXXXXX XXXXX
000-000-0000
XX_XXX_Xxxxxxxx_Xxxxxxxxxx@Xxxx.xxx
(please include customer or order number in email)
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LEASE NO: 001430836-001
[DELL LOGO]
Financial Services
+
Company No: 15
THIS LEASE HAS BEEN WRITTEN IN "PLAIN ENGLISH". WHEN WE USE YOU AND YOUR IN THIS
LEASE WE MEAN YOU, THE CUSTOMER WHO IS THE LESSEE INDICATED BELOW. WHEN WE USE
WE, US AND OUR WE MEAN THE LESSOR, DELL FINANCIAL SERVICES LP.
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FULL LEGAL NAME OF LESSEE LEASE MONTHLY RENT MONTHLY
TERM PAYMENT PERSONAL
(MONTHS) PROPERTY
MGMT FEE*
CERPROBE CORPORATION
24 $2,803.83 $79.82
*Subject to Applicable *Subject to Applicable
Tax Tax
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DBA NAME (IF ANY) TYPE OF BUSINESS FINANCING TERMS
CORPORATION Product Cost = $59,753.98
Doc. Fee* = $55.00
-------------------------------------- Shipping Charges** = $2,380.00
BILLING ADDRESS: STREET, CITY, STATE,
ZIP CODE *A $55,00 Documentation Fee IS included in the Monthly Rent Payment
shown above.
0000 X XXXXXX XXXX
XXXXXXX XX 00000 **Charges to ship to you ARE included in the Monthly Rental Payment.
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PRODUCT LOCATION GENERAL PRODUCT DESCRIPTION/SUPPLIER
SEE ATTACHMENT A SEE ATTACHMENT A
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GUARANTOR (IF ANY) SOCIAL SECURITY NUMBER END OF LEASE PURCHASE OPTION
FMV
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TERMS AND CONDITIONS OF LEASE
1. LEASE; ACCEPTANCE AND COMMENCEMENT; TERM; RENT: We agree to lease to you and
you agree to lease from us the products, services, and software (the "Products")
described in Exhibit A to this lease on the terms and conditions shown in this
lease agreement (the "Lease"). With respect to services, we will only finance
one-time charges for services rendered in connection with the Products. Services
may include delivery and installation fees, or similar services ("Services").
This Lease will begin and Products will be deemed irrevocably accepted for
purposes of this Lease five (5) days after shipment from the Supplier (the
"Commencement Date"). When you receive the Products, you agree to inspect them
promptly and advise us if they are not in good working order. We honor Dell
Computer Corporation's ("Dell") "Total Satisfaction Return Policy". If you
return Dell branded Products within 30 days after shipment from Dell, in the
condition and manner required by Dell, you may terminate the Lease obligations
with respect to those Products. You are responsible for freight charges to
deliver and return the Products. Complete details regarding the "Total
Satisfaction Return Policy" are included in the manufacturer's documentation
provided to you with the Products. The first Rent payment is due thirty (30)
days after the Commencement Date, and subsequent payments of Rent are due on the
same date of each subsequent month (or the last day of the month if there is no
such date). You agree to pay us the Rent for the number of months of the Lease
Term stated above. You will make all payments required under this Lease to us at
the address we specify in writing. You authorize us to adjust the Rent amount by
not more than 15% if the actual Product Cost (which is all amounts we have paid
or will pay in connection with the purchase, delivery, and installation of the
Products, including any trade-up and buyout amounts, or amounts incurred by us
as a result of changes you make to your order with the Supplier) differs from
the Product Cost shown above. If any payment of Rent or other amount payable to
us is not paid within ten (10) days after the due date, you will pay us a late
charge equal to the greater of (I) 5% of the late payment amount or (II) $5.00
for each late payment (or if less, the highest amount permitted by applicable
law).
2. NO WARRANTIES: WE ARE LEASING THE PRODUCTS TO YOU "AS-IS", YOU ACKNOWLEDGE
THAT WE DO NOT MANUFACTURE OR SUPPLY THE PRODUCTS, WE DO NOT REPRESENT THE
MANUFACTURER OR SUPPLIER AND YOU HAVE SELECTED THE PRODUCTS AND THE SUPPLIER
BASED ON YOUR OWN JUDGEMENT. WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF
THE PRODUCT OR ANY SERVICES. WE HEREBY ASSIGN ALL WARRANTIES MADE TO US BY
SUPPLIER, MANUFACTURER, AND ANY SERVICE PROVIDER TO YOU, AND YOU AGREE THAT YOU
WILL MAKE ALL CLAIMS OF ANY KIND RELATING TO THE PRODUCTS OR SERVICES AGAINST
SUCH SUPPLIER, MANUFACTURER, AND/OR SERVICE PROVIDER.
3. SELECTION AND ORDERING OF PRODUCTS: You select the type and quantity of the
Products subject to this Lease. If you have entered into a purchase or supply
contract ("Supply Contract") with any Supplier, you assign your rights but not
your obligations (other than the obligation to pay for the Products if accepted
by you under this Lease) effective prior to the passage of title by the Supplier
to you.
4. LOCATION; USE; ALTERATIONS; INSPECTION: You will use the Products solely at
the location specified in the Lease, or if none is specified, at your billing
address. Except for temporary relocation of laptop personal computers, you may
not move the Products without our prior written consent, which shall not be
unreasonably withheld. At your own expense, you will maintain the Products in
good repair, condition and functional order (except for ordinary wear and tear)
and will use them in compliance with all applicable laws. You will use all
software in accordance with the end user license terms of the applicable
software license agreement ("License"). You may make additions or improvements
to the Products unless the addition or improvement would violate any License,
decrease the value of Products, or impair their utility. You may remove any such
addition or improvement at the end of the Lease if
B S D
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transaction involving interstate commerce, and shall be governed by the Federal
Arbitration Act at 9 U.S.C. Section 1, et. seq. Judgment upon the award rendered
may be entered in any court having jurisdiction. Any arbitration award in excess
of $100,000 made pursuant to this arbitration agreement may be appealed by the
party against which the award is made. Such appeal will be a de novo arbitration
proceeding before three arbitrators. The parties agree and understand that they
may choose arbitration instead of litigation to resolve disputes. The parties
understand that they have a right or opportunity to litigate disputes in court,
but may elect to resolve their disputes through arbitration as provided herein.
The parties agree and understand that all disputes arising under case law,
statutory law, and all other laws including, but not limited to, all contract,
tort, and property disputes, may be subject to binding arbitration in accord
with this Lease. No class action or request for relief may be brought under this
arbitration agreement. You agree that you shall not have the right to
participate in arbitration or in court proceedings as a representative or a
member of any class of claimants pertaining to any claim arising from or
relating to this Lease. The parties agree and understand that the arbitrator
shall have all powers provided by law and this Lease, except for powers limited
or prohibited by this Lease. Notwithstanding anything herein to the contrary, we
retain an option to use judicial or nonjudicial relief to recover the Products
or to enforce our security interest in the Products, to enforce the monetary
obligation secured by the Products or to foreclose on the Products. Such
judicial relief would take the form of a lawsuit. The institution and
maintenance of any action for judicial relief in a court to foreclose upon any
Products, to obtain a monetary judgment or to enforce this Lease, shall not
constitute a waiver of the right of any party to compel arbitration regarding
any other dispute or remedy subject to arbitration in this Lease, including the
filing of a counterclaim in a suit brought by us pursuant to this provision. YOU
UNDERSTAND AND AGREE THAT IN ARBITRATION: YOU GIVE UP RIGHTS TO SEEK REMEDIES IN
COURT, INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES
TO PRODUCE DOCUMENTS OR BE EXAMINED IS MORE LIMITED THAN IN A LAWSUIT; AND, YOUR
RIGHTS TO APPEAL OR CHANGE ANY ARBITRATION AWARD IN ANY COURT ARE STRICTLY
LIMITED.
16. FINANCE LEASE: You agree that if Article 2A of the Uniform Commercial
Code applies to this Lease, this Lease will be considered a "finance lease" as
defined by Article 2A and by signing this Lease you acknowledge that either (1)
you have received, reviewed and approved the supply contract with the Supplier
or (2) we have informed you of the identity of the Supplier, that you may have
rights and warranties under the supply contracts for the Products and you may
contact the supplier of the Products for a description of those rights and
warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY AND
ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A.
17. MISCELLANEOUS: You agree that the terms and conditions of this Lease make
up the entire agreement between you and us regarding the lease of the Products.
Any change in the terms and conditions of the Lease must be in writing and
signed by us. You agree, however, that we are authorized, without notice to you,
to supply missing information or correct obvious errors in this Lease. All of
our rights and remedies will survive termination of this Lease. All notices
under this Lease will be given in writing and will be considered given when
deposited in the U.S. mail, postage prepaid, addressed to the respective address
given below or to a substitute address specified in writing by one of us to the
other. Any failure of ours to require strict performance by you or any waiver by
us of any provision in this Lease will not be construed as a consent or waiver
of any other breach of the same or any provision. If any portion of this Lease
is deemed invalid, it will not affect the balance of this Lease. It is the
express intent of both of us not to violate any usury laws, or to exceed the
maximum amount of time price differential, or interest as applicable permitted
to be changed, or collected under applicable law and any such excess payment
will be applied to payments under the Lease in inverse order of maturity and the
remaining payments will be refunded to you. If a signed copy of this Lease is
delivered to us by facsimile transmission, it will be binding on you, however,
we will not be bound by this Lease until we accept it by manually or
electronically signing it or by purchasing the Products, whichever occurs first.
You waive notice of our acceptance and waive your right to receive a copy of the
accepted Lease. You agree that, notwithstanding any rule of evidence to the
contrary, in any hearing, trial or proceeding of any kind with respect to this
Lease, we may produce a copy of the Lease transmitted to us by facsimile
transmission that has been manually signed by us and each signed copy shall be
deemed to be the original of the Lease. To the extent (if any) that this Lease
constitutes chattel paper under the Uniform Commercial Code, no security
interest in this Lease may be created through the transfer and possession of any
copy or counterpart hereof except the copy with our original signature. If you
deliver this Lease to us by facsimile transmission, you acknowledge that we are
relying on your representation that this Lease has not been changed.
BY SIGNING THIS LEASE: (a) YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND
THE TERMS AND CONDITIONS OF THIS LEASE; (b) YOU AGREE THAT THIS LEASE IS A NET
LEASE AND YOU CANNOT TERMINATE OR CANCEL AND UPON ACCEPTANCE OF THE PRODUCTS
YOU HAVE AN UNCONDITIONAL OBLIGATION TO MAKE ALL PAYMENTS UNDER THIS LEASE AND
YOU CANNOT WITHHOLD, SETOFF OR REDUCE SUCH PAYMENTS FOR ANY REASON; (c) YOU
AGREE THAT THE PRODUCTS WILL BE USED FOR BUSINESS PURPOSES ONLY AND NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; (d) YOU CONFIRM THAT THE PERSON SIGNING
THIS LEASE FOR YOU HAS THE AUTHORITY TO DO SO AND TO GRANT THE POWER OF
ATTORNEY IN SECTION 5; (e) YOU AGREE THAT THIS LEASE WILL BE GOVERNED BY THE
LAWS OF THE STATE OF ILLINOIS AND YOU CONSENT TO THE JURISDICTION OF ANY COURT
LOCATED WITHIN THAT STATE AND YOU EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY
AND (f) TO CONFIRM THAT THE INFORMATION IN ANY APPLICATION, STATEMENT, TRADE
REFERENCE OR FINANCIAL REPORT SUBMITTED TO US IS TRUE AND CORRECT AND YOU
UNDERSTAND THAT ANY MATERIAL MISREPRESENTATION SHALL CONSTITUTE A DEFAULT UNDER
THE LEASE.
LESSEE:
CERPROBE CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
AUTHORIZED SIGNATURE
Xxxxxxx X. Xxxxxxxx VP Corp Cont
---------------------------------
PRINT NAME AND TITLE
DATE 9/29/00
LESSOR:
Dell Financial Services, LP. Phone (000) 000-0000
P.O. Box 99200 Fax (000) 000-0000
000 X. Xxxxx Xxxxxx 3rd Floor Fax (000) 000-0000
Chicago, IL 60693
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AUTHORIZED SIGNATURE
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PRINT NAME AND TITLE
DATE
NOT APPLICABLE
FEDERAL EMPLOYER ID # (or SOCIAL SECURITY NUMBER for SOLE PROPRIETORS)
THIS NUMBER MUST BE PROVIDED ON THE EXECUTED LEASE AGREEMENT
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(i) you repair any damage to Products resulting from the removal; (ii) you
restore the Products to their original and functional condition (excluding
ordinary wear and tear); and, (iii) the removal does not violate any License or
render the Products incapable of use or operation. All additions or improvements
not removed will become our property at no cost to us. You agree that we, our
assignees, and agents, may inspect the Products at the premises where the
Products are located at any reasonable time with prior notice.
5. TITLE; QUIET ENJOYMENT; PERSONAL PROPERTY; FILING: We are the owner of and
will hold title to the Products. You will keep the Products free from any and
all liens, encumbrances and claims. So long as you are not in Default under the
Lease, we will not interfere with your quiet use and enjoyment of the Products
during the Lease Term or any renewal term. Unless the Purchase Option is $1, you
agree that this transaction is intended to be a true lease under UCC Article 2A.
However, if this transaction is deemed to be a lease intended for security under
UCC Article 9, you grant us a purchase money security interest in the Products
(including any replacements, substitutions, additions, attachments and
proceeds). You authorize us to file a copy of this Lease as a UCC-1 financing
statement (UCC-1) and hereby appoint us or our designee as your attorney-in-fact
to sign on your behalf and to file UCC-1's covering the Products. You agree to
pay a one-time Documentation Fee to cover our costs for such filing and other
documentation costs.
6. LOSS OR DAMAGE: From the time the Products are delivered to a carrier for
shipment to you until their return to us, you are responsible for any loss,
theft, damage to or destruction of the Products ("Loss") from any cause at all,
whether or not the Loss is covered by insurance. You are required to make all
payments under the Lease even if there is a Loss. You must notify us immediately
if there is any Loss. Then at our option, you will either (a) repair the
Products so they are in good condition and working order to our satisfaction; or
(b) replace the Products with like products in good condition and repair and of
the same manufacture and equal or greater capacity and capability, with clear
title thereto in us; or (c) pay us the "Stipulated Loss Value" which is the sum
of: (i) all Rent payments for all the Products and other amounts past due (plus
interest thereon) or currently owed to us under the Lease, including unpaid
taxes and (ii) all future Rent payments that would accrue over the remaining
Lease Term plus our estimated value of our residual interest of all of the
Products at the end of the Lease Term, such sum to be discounted to present
value at a discount rate equal to the Federal Reserve Bank Discount Rate in
effect at the Commencement Date of the Lease ("Discount Rate"). When you pay the
amount of (c) above to us, we will transfer to you our interest in the Products,
"AS-IS-WHERE-IS", without any warranty, express or implied, including warranty
of merchantability or fitness for any particular purpose.
7. INSURANCE: You will provide and maintain, at your expense, (a) property
insurance against the loss or theft of or damage to the Products, for their full
replacement value naming us as loss payee and (b) public liability and third
party property damage insurance naming us as an additional insured. All
insurance shall be in a form and amount and with companies satisfactory to us
and will provide that we will be given thirty (30) days written notice before
cancellation or material change of the policy. At our request, you will deliver
the policies or certificates of insurance to us. If you do not give us evidence
of insurance acceptable to us we have the right, but not the obligation, to
obtain such insurance covering our interest in the Products for the Lease Term.
The cost for such insurance will be an additional amount due from you under the
Lease.
8. TAXES: You will pay when due, either directly or to us on demand, all taxes
(local, state and federal), fines or penalties which may now or hereafter be
imposed or levied upon the Lease and the Products, excluding taxes on our net
income. We do not have to contest any taxes, fines or penalties. We may, at our
option, charge you a liquidated monthly personal property management fee, to be
added to Rent payments owed under this Lease.
9. RETURN: Unless the Lease is renewed or you purchase the Products in
accordance with the terms of the Lease, you will immediately deliver the
Products and original operating system software, (including but not limited to
the operating software kit, manuals, cables, power cords, keys, etc.) in good
repair, operable condition and able to qualify for the manufacturer's warranty
service (ordinary wear and tear excepted) to any place in the continental United
States that we direct. You will pay all expenses for deinstalling, packing and
shipping and you will insure the Products for the full replacement value during
shipping. You will immediately pay us on demand the costs and expenses of all
missing or damaged Products (including the operating software kit).
10. PURCHASE OPTION; AUTOMATIC RENEWAL: If no Default exists under the Lease,
you will have the option at the end of the Lease Term to purchase all (but not
less than all) of the Products for the amount of the Purchase Option price shown
above which, if it is the then fair market value of the Products, will be as
determined by us, plus any applicable taxes. Unless the Purchase Option price is
$1, you must give us written notice at least ninety (90) days before the end of
the Lease Term that you will purchase the Products or that you will return the
Products to us. Unless you purchase the Products or return the Products to us on
the last day of the Lease Term, this Lease will automatically renew for an
additional ninety (90) day term and thereafter on a continuing month to month
basis until you give us thirty (30) days notice and deliver the Products to us.
During such renewal terms, the Rent payment will remain the same. If the Fair
Market Value Purchase Option has been selected we will use our reasonable
judgement to determine the Products' in place value. If you do not agree with
our determination, the fair market retail value will be determined for you at
your expense by an independent appraiser elected by us. Upon payment of the
Purchase Option price in full, we will transfer our interest in the Products to
you "AS-IS-WHERE-IS", without any warranty whatsoever, and the Lease will
terminate.
11. ASSIGNMENT: YOU MAY NOT ASSIGN, SELL, TRANSFER, OR SUBLEASE THE PRODUCTS OR
YOUR INTEREST IN THIS LEASE. We may, without notifying you, sell, assign or
transfer the Lease and our rights in the Products. You agree that the new owner
will have the same rights and benefits that we have now under this Lease, but
not our obligations. The rights of the new owner will not be subject to any
claim, defense, or setoff that you may have against us.
12. DEFAULT: Each of the following is a default ("Default") under the Lease: (a)
you fail to pay any Rent or any other payment within 10 days of its due date;
(b) you do not perform any of your obligations under the Lease or in any other
agreement with us or with any of our affiliates and this failure continues for
10 days after we have notified you of it; (c) you become insolvent, you dissolve
or are dissolved, you assign your assets for the benefit of your creditors or
enter voluntarily or involuntarily any bankruptcy or other reorganization
proceeding; (d) you or any Guarantor provide us incorrect or untrue information
regarding any material matter in connection with your application for credit or
entering into this Lease; or (d) if this Lease has been guaranteed by someone
other than you, any guarantor of the Lease dies, does not perform its
obligations under the Guaranty or becomes subject to one of the events listed in
clause (c).
13. REMEDIES: If a Default occurs, we may do one or more of the following: (a)
we may cancel or terminate the Lease or any agreements that we have entered into
with you or withdraw any offer of credit; (b) we may require you to pay us, as
compensation for loss of our bargain and not as a penalty, a sum equal to (i)
the Stipulated Loss Value calculated under clause 8 plus (ii) all other amounts
due and to become due under the Lease; (c) we may require you to deliver the
Products to us as set forth in clause 9; (d) we or our agent may peacefully
repossess the Products without court order and you will not make any claims
against us for trespass, damages or any other reason and (e) we may exercise any
other right at law or in equity. You agree to pay all of our costs of enforcing
our rights against you, including reasonable attorney's fees. If we take
possession of the Products we may sell or otherwise dispose of the Products,
with or without notice, at public or private sale and apply the net proceeds
(after we have deducted our costs related to the sale and disposition) to the
amounts that you owe us. You agree that if notice of a sale is required by law
to be given, 10 days notice will constitute reasonable notice. You will remain
responsible for any amounts that are due after we have applied such net
proceeds.
14. INDEMNITY: You are responsible for losses, damages, penalties, claims, costs
(including attorneys' fees and expenses), actions, suits and proceedings of
every kind, (collectively "Claims") whether based on a theory of strict
liability or otherwise caused by or related to this Lease or the Products,
(including any defects in the Products). You will reimburse us for, and if we
request defend us against, any Claims.
15. ARBITRATION: Either party to this Lease may choose to have any dispute,
claim, or controversy arising from or relating to this Lease, any prior
agreement or lease between the parties, any application or advertisement related
to this Lease or the validity of this arbitration clause or the entire Lease,
resolved by binding arbitration pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. If such rules conflict with this
arbitration agreement, however, then the terms of this arbitration agreement
shall control. This arbitration agreement is made pursuant to a
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