Exhibit 10.27
USL MASTER LEASE AGREEMENT
CAPITAL
_________________________________________________________________
LESSOR: USL CAPITAL CORPORATION LESSEE: Iomega Corporation
ADDRESS: 000 Xxxxx Xxxxxx ADDRESS: 0000 Xxxx Xxxxxx Xxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx, Xxxx 00000
TERMS AND CONDITIONS OF LEASE
The undersigned Lessee hereby requests Lessor to purchase the personal property
described in any Equipment Schedule hereunder (herein called "Equipment") from
supplier listed in any Equipment Schedule hereunder (herein called "Vendor"
and/or "Manufacturer", as applicable) and to lease the Equipment to Lessee on
the terms and conditions of the lease set forth below.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
Equipment upon the following terms and conditions:
1. NO WARRANTIES BY LESSOR. Lessee has selected the Equipment and may have
entered into certain purchase, licensing, or maintenance agreements with the
Vendor and/or Manufacturer (herein referred to as an "Acquisition Agreement")
covering the Equipment as further described in Paragraph 26 hereof. If Lessee
has entered into any Acquisition Agreement, each agreement shall provide for
certain rights and obligations of the parties thereto with respect to the
Equipment, and Lessee shall perform all of the obligations set forth in each
Acquisition Agreement as if this lease did not exist. LESSOR MAKES NO WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE CONDITION OF THE
EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND,
AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS." LESSOR SHALL HAVE NO
LIABILITY FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND WHATSOEVER RELATING
THERETO, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER.
2. CLAIMS AGAINST VENDOR AND/OR MANUFACTURER. If the Equipment is not
properly installed, does not operate as represented or warranted by Vendor
and/or Manufacturer, or is unsatisfactory for any reason, Lessee shall make any
claim on account thereof solely against Vendor and/or Manufacturer pursuant
to the Acquisition Agreement, if any, and shall, nevertheless, pay Lessor all
rent payable under this lease. All warranties from Vendor and/or
Manufacturer are, to the extent they are assignable, hereby assigned to
Lessee for the term of the lease or until an Event of Default occurs
hereunder, for Lessee's exercise at Lessee's expense. Lessee may directly
inquire with Vendor and/or Manufacturer to receive an accurate and complete
statement of such warranties, including any disclaimers or limitations of
such warranties or of any remedies with respect thereto.
3. VENDOR NOT AN AGENT. Lessee understands and agrees that neither Vendor,
nor any sales representative or other agent of Vendor, is an agent of Lessor.
Sales representatives or agents of Vendor, and persons that are not employed by
Lessor (including brokers and agents) are not authorized to waive or alter any
term or condition of this lease, and no representation as to the Equipment or
any other matter by Vendor or any other person that is not employed by Lessor
(including brokers and agents) shall in any way affect Lessee's duty to pay the
rent and perform its other obligations as set forth in this lease.
4. NON-CANCELABLE LEASE. This lease and any Equipment Schedule hereto cannot
be canceled or terminated except as expressly provided herein. Lessee agrees
that its obligation to pay all rent and other sums payable hereunder and the
rights of Lessor in and to such rent are absolute and unconditional and are not
subject to any abatement, reduction, setoff, defense, counterclaim or recoupment
due or alleged to be due to, or by reason of, any past, present or future claims
which Lessee may have against Lessor, any assignee, any Manufacturer or Vendor,
or against any person for any reason whatsoever.
5. ORDERING EQUIPMENT. Lessee shall arrange for delivery of the Equipment so
that it can be accepted in accordance with Paragraph 6 hereof within 90 days
after the date on which Lessor accepts Lessee's offer to enter into this lease
with respect to any Equipment Schedule or by such other date as may be set forth
in an Equipment Schedule or Commitment Letter issued by Lessor as the Commitment
Expiration Date. Unless otherwise specified on the Equipment Schedule, Lessee
shall be responsible for all transportation, packing, installation, testing and
other charges in connection with the delivery, installation and use of the
Equipment. Lessee hereby authorizes Lessor to insert in any Equipment Schedule
hereunder the serial numbers and other identification data of Equipment when
determined by Lessor.
6. ACCEPTANCE. Lessee acknowledges that for purposes of receiving or
accepting the Equipment from Vendor, Lessee is acting on Lessor's behalf. Upon
delivery of the Equipment to Lessee and Lessee's inspection thereof, Lessee
shall furnish Lessor a written statement (a) acknowledging receipt of the
Equipment in good condition and repair and (b) accepting it as satisfactory
in all respects for the purposes of this lease (the "Certificate of
Acceptance"). The date of receipt and acceptance of the Equipment covered by
an Equipment Schedule (or any later date that Lessor chooses) shall be the
Rent Commencement Date therefor. Lessor is authorized to fill in on any
Equipment Schedule hereunder the Rent Commencement Date in accordance with
the foregoing.
7. TERMINATION BY LESSOR. If, by the Commitment Expiration Date, the
Equipment described in any Equipment Schedule has not been delivered to Lessee
and accepted by Lessee as provided in Paragraph 6 hereof, or if other conditions
of Lessor's Commitment Letter, if any, have not been met, then Lessor may, at
its option, terminate this lease and its obligations hereunder with respect
to such Equipment Schedule at any time after the expiration of such 90 days
or any date after the Commitment Expiration Date, as applicable. Lessor
shall give Lessee written notice whether or not it elects to exercise such
option within 10 days after Lessor's receipt of Lessee's written request for
such notice.
8. TERM. The term of this lease commences upon the Rent Commencement Date,
as provided in Paragraph 9 below. The term shall continue until all of Lessee's
obligations are fulfilled hereunder. The initial Term with respect to any
Equipment Schedule begins on the Rent Commencement Date for such Equipment
Schedule (as defined in Paragraph 6) and expires after the later of (I) the
number of periods for which the rent payments are due, or (ii) the date Lessee
fulfills all Lessee's obligations hereunder.
9. RENTAL. Lessee shall pay the rent payments as stated on each Equipment
Schedule, the first of which shall be due on the Rent Commencement Date for said
Equipment Schedule, and subsequent payments shall be due on the same day of each
calendar period as indicated on the Equipment Schedule for the balance of the
Initial Term. Rent payments shall be due whether or not Lessee has received any
notice that such payments are due. All rent payments shall be paid to Lessor at
its address set forth on the Equipment Schedule or as otherwise directed by
Lessor in writing.
10. RENEWAL. If no default shall have occurred and be continuing, Lessee shall
be entitled to renew the lease with respect to all, but not less than all, of
the Equipment covered by an Equipment Schedule for a minimum 12 month period
at an amount equal to the fair market rental value thereof, in use and
operational, in the condition required by the lease, payable on a periodic
basis, as mutually agreed by Lessor and Lessee ("Renewal Rent"). Lessee
must give Lessor written notice of its intention to exercise said option,
which notice must be received by Lessor at least 90 days before expiration of
the Initial Term. The first installment of the Renewal Rent shall be due at
expiration of the Initial Term of the lease. Should Lessee fail to comply
with the provisions described above covering Renewal, upon expiration of the
Initial Term, the term of the lease shall be automatically extended for a
term of 3 months. Thereafter, the term of the lease will be extended for
subsequent full month periods, on a month to month basis, until Lessee has
given at least 90 days written notice terminating the lease. Such
termination will take effect upon completion of all Lessee's obligations
under the lease (including payment of all periodic rental payments
due during such 90 day period, as provided in Paragraph 9 of the lease). At any
time after the expiration of the Initial Term, if the lease has been
automatically extended as set forth herein, Lessor reserves the right to
terminate the lease by 30 days written notice to Lessee.
11. LOCATION; INSPECTION; LABELS. The Equipment shall be delivered to and
shall not be removed without Lessor's prior written consent from the "Equipment
Location" shown on the related Equipment Schedule, or if none is specified,
Lessee's billing address shown on the Equipment Schedule. Lessor shall have the
right to inspect the Equipment at any reasonable time. If Lessor supplies
Lessee with labels stating that the Equipment is owned by Lessor, Lessee
shall affix such labels to and keep them in a prominent place on the Equipment.
12. REPAIRS; USE; ALTERNATIONS. Lessee, at its own cost and expense, shall
keep the Equipment in the same condition as when delivered to Lessee, reasonable
wear and tear excepted, and in accordance with the manufacturer's recommended
specifications; shall use the Equipment lawfully; shall not alter the Equipment
without Lessor's prior written consent; shall use the Equipment in compliance
with any existing Manufacturer's service and warranty requirements and any
insurance policies applicable to the Equipment and shall furnish all parts and
servicing required therefor. All parts, repairs, additions, alterations and
attachments placed on or incorporated into the Equipment which cannot be removed
without damage to the Equipment shall immediately become part of the Equipment
and shall be the property of the Lessor. Lessee will obtain and maintain all
permits, licenses and registrations necessary to lawfully operate the facility
where the Equipment is located. Lessee shall comply with all applicable
environmental and industrial hygiene laws, rules and regulations (including but
not limited to federal, state, and local environmental protection, occupational,
health and safety or similar laws, ordinances and restrictions). Lessee shall,
not later than 5 days after the occurrence of any event, provide Lessor with
copies of any report of such event that is required to be filed with
governmental agencies regulating environmental claims. Lessee shall
immediately notify Lessor in writing of any existing, pending or threatened
investigation, inquiry, claim or action by any governmental authority in
connection with any law, rule or regulation relating to industrial hygiene
or environmental conditions that could affect the Equipment.
13, MAINTENANCE. If the Equipment is such that Lessee is not normally capable
of maintaining it, Lessee, at its expense, shall enter into and maintain in full
force and effect throughout the Initial Term, and any renewal term, Vendor and
/or Manufacturer's standard maintenance contract, and shall comply with all its
obligations thereunder. An alternate source of maintenance may be used with
Lessor's prior written consent. Such consent shall be granted if, in Lessor's
reasonable opinion, the Equipment will be maintained in an equivalent state of
good repair, condition and working order.
14. SURRENDER. Provided that Lessee does not exercise the purchase option as
set forth in Paragraph 28 hereof, upon the expiration of the Initial Term, or
any renewal term, or upon demand by Lessor made pursuant to Paragraph 22 of the
lease, Lessee, at its expense, shall return all, but not less than all, of the
Equipment by delivering it to such place or on board such carrier, packed for
shipping, as Lessor may specify. Lessee agrees that the Equipment, when
returned, shall be in the same condition as when delivered to Lessee, reasonable
wear and tear excepted, and in a condition which will permit Lessor to be
eligible for Manufacturer's standard maintenance contract without incurring any
expense to repair or rehabilitate such Equipment. Lessee shall be liable for
reasonable and necessary expenses to place the Equipment in such condition.
Lessee shall remain liable for the condition of the Equipment until it is
received and accepted at the destination designated by Lessor as set forth
above. If any items of Equipment are missing or damaged when returned, such
occurrence shall be treated as an event of Loss or Damage with respect to
such missing or damaged items and shall be subject to the terms specified in
Paragraph 15 below. Lessee shall provide Lessor with a Letter of
Maintainability from the Manufacturer of the Equipment, which letter shall
state that the Equipment will be eligible for the Manufacturer's standard
maintenance contract when sold or leased to a third party. Lessee shall
give Lessor prior written notice that it is returning the Equipment as
provided above, and such notice must be received by Lessor at least 90 days
prior to such return. Should Lessee fail to comply with the provisions
described above covering surrender, upon expiration of the
Initial Term, the term of the lease shall be automatically extended for a term
of 3 months. Thereafter, the term of the lease will be extended for subsequent
full month periods, on a month to month basis, until Lessee has given at least
90 days written notice terminating the lease. Such termination will take effect
upon completion of all Lessee's obligations under the lease (including payment
of all periodic rental payments due during such 90 day period as provided in
Paragraph 9 of the lease).
15. LOSS OR DAMAGE. Lessee shall bear the entire risk of loss, theft,
destruction of or damage to the Equipment or any item thereof (herein "Loss or
Damage") from any cause whatsoever. No Loss or Damage shall relieve Lessee of
the obligation to pay rent or of any other obligation under this lease. In the
event of Loss or Damage, Lessee, at the option of Lessor, shall: (a) place the
same in good condition and repair; (b) replace the same with like equipment
acceptable to Lessor in good condition and repair with clear title thereto in
Lessor; or pay to Lessor the total of the following amounts; (I) the total
rent and other amounts due and owing at the time of such payment, plus (ii)
an amount calculated by Lessor which is the present value at 5% per annum
simple interest discount of all rent and other amounts payable by Lessee with
respect to said item from date of such payment to date of expiration of its
Initial Term, plus (iii) the "reversionary value" of the Equipment, which
shall be determined by Lessor as the total cost of the Equipment less 60% of
the total rent (net of sales/use taxes, if any) required to be paid pursuant to
Paragraph 9. Upon Lessor's receipt of such payment, Lessee and./or Lessee's
insurer shall be entitled to Lessor's interest in said item, for salvage
purposes, in its then condition and location, "as-is", without any warranty,
express or implied.
16. INSURANCE. Lessee shall provide, maintain and pay for (a) all risk
property insurance against the loss or theft of or damage to the Equipment, for
the full replacement value thereof, naming Lessor as a loss payee, and (b)
commercial general liability insurance (and if Lessee is a doctor, hospital or
other health care provider, medical malpractice insurance). All such policies
shall name Lessor as an additional insured and shall have combined single limits
in amounts acceptable to Lessor. All such insurance policies shall be endorsed
to be primary and non-contributory to any policies maintained by Lessor. In
addition, Lessee shall cause Lessor to be named as an additional insured on any
excess or umbrella policies purchased by Lessee. A copy of each paid-up policy
evidencing such insurance (appropriately authenticated by the insurer) or a
certificate of the insurer providing such coverage proving that such policies
have been issued, providing the coverage required hereunder shall be delivered
to Lessor prior to the Rent Commencement Date. All insurance shall be placed
with companies satisfactory to Lessor and shall contain the insurer's agreement
to give 30 days written notice to Lessor before cancellation or any material
change of any policy of insurance.
17. TAXES. Lessee shall reimburse to Lessor (or pay directly if, but only if,
instructed by Lessor) all charges and taxes (local, state and federal) which may
now or hereafter be imposed or levied upon the sale, purchase, ownership,
leasing, possession or use of the Equipment, excluding, however, all income
taxes levied on (a) any rental payments made to Lessor hereunder, (b) any
payment made to Lessor in connection with Loss or Damage to the Equipment under
Paragraph 15 hereof, or any payment made to Lessor in connection with Lessee's
exercise of its purchase option under Paragraph 28 hereof.
18. LESSOR'S PAYMENT. If Lessee fails to provide or maintain said insurance,
to pay said taxes, charges or fees, or to discharge any levies, liens and
encumbrances created by Lessee, Lessor shall have the right, but shall not be
obligated, to obtain such insurance, pay such taxes, charges and fees, or effect
such discharge. In that event, Lessee shall remit to Lessor the cost thereof
with the next rent payment.
19. INDEMNITY, (A) General Indemnity. Lessee shall indemnity Lessor against
and hold Lessor harmless from any and all claims, actions, damages, costs,
expenses including reasonable attorneys' fees, obligations, liabilities and
liens (including any of the foregoing arising or imposed under the doctrines
of "strict liability" or "product liability" and including without limitation
the cost of any fines, remedial action, damage to the environment and cleanup
and the fees and costs of consultants and experts), arising out of the
manufacture, purchase, lease, ownership, possession, operation, condition,
return or use of the Equipment, or by operation of law, excluding however, any
of the foregoing resulting from the sole negligence or willful misconduct of
Lessor. Lessee agrees that upon written notice by Lessor of the assertion of
such a claim, action, damage, obligation, liability or lien, Lessee shall
assume full responsibility for the defense thereof. Lessee's choice of
counsel shall be mutually acceptable to both Lessee and Lessor. This
indemnity also extends to any environmental claims arising out of or relating
to prior acts or omissions of any party whatsoever. The provisions of this
paragraph shall survive termination of this lease with respect to events
occurring prior to such termination. ((b) Tax Indemnity.
Lessee acknowledges that Lessor shall be entitled to all tax
benefits of ownership with respect to the Equipment (the "Tax Benefits"),
including but not limited to, (I) the accelerated cost recovery deductions
determined in accordance with Section 168(b)(1) of the Internal Revenue Code of
1986 for the Equipment based on the original cost of the Equipment to Lessor
(ii) deductions for interest on any indebtedness incurred by Lessor to finance
the Equipment and (iii) sourcing of income and losses attributable to this
lease to the United States. Lessee represents that the Equipment shall be
depreciable for Federal tax purposes utilizing the MACRS Recovery Period as
set forth in the Equipment Schedule, with such depreciation commencing
as of the date of Equipment acceptance by Lessee as set forth on the
Certificate of Acceptance. Lessee agrees to take no action inconsistent with
the foregoing or any action which would result in the loss, disallowance or
unavailability to Lessor of all or any part of the Tax Benefits. Lessee
hereby indemnifies and holds harmless Lessor
and its assigns from and against (I) the loss, disallowance, unavailability or
recapture of all or any part of the Tax Benefits resulting from any action,
statement, misrepresentation or breach of warranty or covenant by Lessee of any
nature whatsoever including but not limited to the breach of any
representations, warranties or covenants contained in this paragraph, plus
(ii) all interest, penalties, fines or additions to tax resulting from such
loss, disallowance, unavailability or recapture, plus (iii) all taxes required
to be paid by Lessorupon receipt of the indemnity set forth in this paragraph.
Any payments made by Lessee to reimburse Lessor for lost Tax Benefits shall
be calculated (I) on the assumption that Lessor is subject to the maximum
Federal Corporate Income Tax with respect to each year and that all Tax
Benefits are currently utilized, and (ii) without regard to whether Lessor
or any members of a consolidated group of which Lessor is also a member is
then subject to any increase in tax as a result of the loss of Tax Benefits.
For the purposes of this paragraph, "Lessor" includes for all tax purposes
the consolidated taxpayer group of which Lessor is a part.
Payment. The amounts payable pursuant to this Paragraph 19 shall be payable
upon demand of Lessor, accompanied by a statement describing in reasonable
detail such claim, action, damage, cost, expense, fee, obligation, liability,
lien or tax and setting forth the computation of the amount so payable, which
computation shall be binding and conclusive upon Lessee, absent manifest
error. The indemnities and assumptions of liabilities and obligations
contained in this Paragraph 19 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
20. ASSIGNMENT. Without Lessor's prior written consent, Lessee shall not
assign, transfer, pledge, hypothecate or otherwise dispose of this lease, the
Equipment, or any interest therein. Lessee's interest in this lease may not be
assigned or transferred by operation of law without Lessor's prior written
consent, which will not be unreasonably withheld. Without Lessor's prior
written consent, Lessee shall not sublet or lend the Equipment or permit it
to be used by anyone other than Lessee or Lessee's employees. Lessor may
assign this lease in whole or in part without notice to Lessee. If Lessee is
given notice of such assignment it agrees to acknowledge receipt thereof in
writing. Each such assignee shall have all of the rights, but none of
the obligations, of Lessor under this lease. Lessee shall not
assert against assignee any defense, counterclaim or offset that Lessee
may have against Lessor. Notwithstanding any such assignment, Lessor
warrants that Lessee shall quietly enjoy use of the
Equipment subject to the terms and conditions of this lease so long as Lessee is
not in default hereunder. Subject to the foregoing, this lease inures to the
benefit of and is binding upon the successors and assigns of the parties hereto.
21. DELINQUENT PAYMENTS. (a) Service Charge. Since it would be impractical
or extremely difficult to fix Lessor's actual damages for collecting and
accounting for a late payment, if any payment to Lessor required herein
(including, but not limited to, rental, renewal, tax, purchase and other
amounts) is not paid on or before its due date, Lessee shall pay to Lessor
an amount equal to 5% of any such late payment. (B) Interest. Lessee shall
also pay interest on any such late payment from the due date thereof until
the date paid at the lessor of 18% per annum or the maximum rate allowed by law.
22, DEFAULT; REMEDIES. Any of the following shall constitute an Event of
Default: If a) Lessee fails to pay when due any rent or other amount required
herein to be paid by Lessee, or b) Lessee makes an assignment for the benefit of
creditors, whether voluntary or involuntary, or c) a petition is filed by or
against Lessee under any bankruptcy, insolvency or similar legislation, or d)
Lessee violates or fails to perform any provision of either this lease or any
Acquisition Agreement, or violates or fails to perform any covenant or
representation made by Lessee herein, or e) Lessee makes a bulk transfer of
furniture, furnishings, fixtures or other equipment or inventory, or f) Lessee
ceases doing business as a going concern or there is a change in the legal
structure of ownership of Lessee, or a consolidation or merger of Lessee into or
with another entity, which results, in the opinion of Lessor, in a material
adverse change in Lessee's ability to perform its obligations under the lease,
or g) any representation or warranty made by Lessee in this lease or in any
other document or agreement furnished by Lessee to Lessor shall prove to
have been false or misleading in any material respect when made or when
deemed to have been made. An Event of Default with respect to any Equipment
Schedule shall constitute an Event of Default for all Equipment Schedules.
Lessee shall promptly notify Lessor of the occurrence of any Event of Default.
If an Event of Default occurs, Lessor shall have the right to exercise any
one or more of the following remedies in order to protect the interest and
reasonably expected profits and bargains of Lessor: a) Lessor may terminate this
lease with respect to all or any part of the Equipment, b) Lessor may recover
from Lessee all rent and other amounts then due and as they shall thereafter
become due hereunder, c) Lessor may take possession of any or all items of
Equipment, wherever the same may be located, without demand or notice, without
any court order or other process of law and without liability to Lessee for any
damages occasioned by such taking of possession, and any such taking of
possession shall not constitute a termination of this lease, d) Lessor may
recover from Lessee, with respect to any and all items of Equipment, and with or
without repossessing the Equipment the sum of (1) the total amount due and owing
to Lessor at the time of such default, plus (2) an amount calculated by Lessor
which is the present value at 5% per annum simple interest discount of all rent
and other amounts payable by Lessee with respect to said item(s) from date of
such payment to date of expiration of its Initial Term, plus (3) the
"reversionary value" of the Equipment, which shall be determined by Lessor as
the total cost of the Equipment less 60% of the total rent (net of sales/use
taxes, if any) required to be paid pursuant to Paragraph 9; and which the
parties agree is a reasonable estimate of such value; and upon the payment of
all amounts described in clauses (1), (2) and (3) above, and e) Lessor may
pursue any other remedy available at law or in equity, including but not
limited to seeking damages or specific performance and/or obtaining an
injunction.
No right or remedy herein conferred upon or reserved to Lessor is exclusive
of any right or remedy herein or by law or equity provided or permitted, but
each shall be cumulative of every other right or remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time, but Lessor shall not be
entitled to recover a greater amount in damages than Lessor could have gained by
receipt of Lessee's full, timely and complete performance of its obligations
pursuant to the terms of this lease plus accrued delinquent payments under
Paragraph 21.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses,
including reasonable attorneys' fees and the fees of collection agencies,
incurred by Lessor in enforcing any of the terms, conditions, or provisions
hereof or in protecting Lessor's rights herein. Lessee's obligation hereunder
includes all such costs and expenses expended by Lessor (a) prior to filing of
an action, (b) in connection with an action which is dismissed, and in the
enforcement of any judgment. Lessee's obligation to pay Lessor's attorneys'
fees incurred in enforcing any judgment is a separate obligation of Lessee,
severable from Lessee's other obligations hereunder, which obligation will
survive such judgment and will not be deemed to have been merged into such
judgment.
24. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall at all times remain the
property of Lessor and Lessee shall have no right, title or interest therein or
thereto except as expressly set forth in this lease and the Equipment shall at
all times be and remain personal property notwithstanding that the Equipment or
any part thereof may now be, or hereafter become, in any manner, affixed or
attached to real property or any improvements thereon.
25. NOTICES. Service of all notices under this lease shall be sufficient if
given personally or mailed to the respective party at its address set forth on
any Equipment Schedule, or at such address as either party may provide in
writing from time to time. Any such notice mailed to said address shall be
effective when deposited in the United States mail, duly addressed and with
postage prepaid.
26. ACQUISITION AGREEMENTS. If the Equipment is subject to any Acquisition
Agreement, Lessee, as part of this lease, transfers and assigns to Lessor all of
its rights, but none of its obligations (except for Lessee's obligation to pay
for the Equipment conditioned upon Lessee's acceptance in accordance with
Paragraph 6), in and to the Acquisition Agreement, including but not limited to
the right to take title to the Equipment. Lessee shall indemnify and hold
Lessor harmless in accordance with Paragraph 19 from any liability resulting
from any Acquisition Agreement as well as liabilities resulting from any
Acquisition Agreement Lessor is required to enter into on behalf of Lessee or
with Lessee for purposes of this lease.
27. UPGRADES. Any existing lease between Lessor and Lessee subject to an
"upgrade" program shall continue in full force and effect and shall be kept free
of default by Lessee (even if the equipment covered by the existing lease is
sold, traded-in, etc.) Until any such existing lease is canceled by Lessor when,
if applicable, the new Equipment is accepted by Lessee for all purposes of this
lease.
28. PURCHASE OPTION. If no default shall have occurred and be continuing,
Lessee shall be entitled, at its option upon written notice to Lessor, which
notice must be received by Lessor at least 90 days prior to the end of either
the Initial Term or any renewal term of any Equipment Schedule, to purchase
all, but not less than all, of the Equipment covered by such Equipment
Schedule from Lessor at the end of the Initial Term or any renewal term for
such Equipment Schedule at a purchase price equal to the then fair market
value of the Equipment in use and operational, in the condition required
by the lease, as mutually agreed by Lessor and Lessee. On a date which
is no later than the expiration date of the Initial Term or any renewal term,
as applicable, Lessee shall pay to Lessor the purchase price for the
Equipment covered by such Equipment Schedule (plus any taxes levied thereon)
and Lessor shall sell the Equipment "as-is where-is" without any warranties
expressed or implied.
29. RELATED EQUIPMENT SCHEDULES. In the event that any Equipment Schedule
hereunder shall include Equipment that may become attached to, affixed to, or
used in connection with Equipment covered under another Equipment Schedule
hereunder ("Related Equipment Schedule"), Lessee acknowledges the following: (a)
if Lessee elects to exercise a purchase option or renewal option under any
Equipment Schedule, if provided; or (b) if Lessee elects to return the Equipment
under any Equipment Schedule as described in Paragraph 14, then Lessor, at its
discretion, may require the similar disposition of all Related Equipment
Schedules as provided for by this lease.
30. MISCELLANEOUS. This instrument and any Commitment Letter issued by Lessor
and any Equipment Schedule hereunder constitutes the entire agreement between
Lessor and Lessee, and shall not be amended, altered or changed except by a
written agreement signed by the parties hereto, and in the case of Lessor, such
agreement shall not be valid unless executed by Lessor at Lessor's home office.
To the extent any provision of this lease may be determined to be invalid or
unenforceable, it shall be ineffective without affecting the other provisions of
this lease. To the extent permitted by applicable law, Lessee hereby waives any
provisions of law which render any provision of this lease unenforceable in any
respect. Unless specified otherwise, in the event such written agreement is
attached to and made a part of an Equipment Schedule, the terms and conditions
of said written agreement shall apply only to said Equipment Schedule and shall
not apply to any other Equipment Schedule attached to and made a part of this
lease. In the event Lessee issues a purchase order to Lessor covering Equipment
to be leased hereunder, it is agreed that such purchase order is issued for
purposes of authorization and Lessee's internal use only, and none of its terms
and conditions shall modify the terms and conditions of this lease and/or
related documentation, or affect Lessor's responsibility to Lessee as defined
in this documentation, or affect Lessor's responsibility to Lessee as defined
in this lease. An executed Equipment Schedule that incorporates by reference
the terms of this Master Lease Agreement, marked "Original," shall be the
original of the lease for the Equipment described therein for all purposes.
All other executed counterparts of the lease shall be marked "Duplicate." To
the extent the lease constitutes chattel paper, as such term is defined
in the Uniform Commercial Code
of the applicable jurisdiction, no security interest in the lease may be created
through the transfer of possession of any counterpart other than the Original of
the lease, Lessor reserves the right to charge Lessee fees for its provision of
additional administrative services related to the lease requested by Lessee.
Lessee shall provide Lessor with such corporate resolutions, opinions
of counsel, financial statements, and other documents (including documents for
filing or recording) as Lessor may request from time to time. LESSEE
REPRESENTS AND WARRANTS THAT ALL CREDIT AND FINANCIAL INFORMATION SUBMITTED
TO LESSOR HEREWITH OR AT ANY OTHER TIME IS TRUE AND CORRECT. LESSEE HEREBY
APPOINTS LESSOR OR ITS
ASSIGNEE ITS TRUE AND LAWFUL ATTORNEY IN FACT TO EXECUTE ON BEHALF OF LESSEE ALL
UNIFORM COMMERCIAL CODE FINANCING STATEMENTS OR OTHER DOCUMENTS WHICH, IN
LESSOR'S DETERMINATION, ARE NECESSARY TO SECURE LESSOR'S INTEREST IN SAID
EQUIPMENT. The filing of UCC Financing Statements is precautionary and shall
not be evidence that the lease is intended as security. If for any reason this
agreement is determined not to be a lease, Lessee hereby grants Lessor a
security interest in the lease, the Equipment or collateral pertaining
thereto and the proceeds thereof, including re-lease, sale or disposition of
the Equipment or other collateral. If more than one Lessee is named in this
lease, the liability of each shall be joint and several. Time is of the
essence with respect to this lease, Lessee represents and warrants that the
Equipment is being leased hereunder for business purposes. The descriptive
headings which are used in this lease are for convenience of the parties only
and shall not affect the meaning of any provision of the lease. Any failure
of the Lessor to require strict performance by the Lessee or any waiver
by Lessor of any provision herein shall not be construed as a consent or
waiver of any other breach of the same or of any
other provision. This agreement shall be governed by the laws of the state of
California (without giving effect to principles of conflicts of law thereof).
31. LESSEE'S REPRESENTATIONS; WAIVER OF JURY TRIAL. Lessee represents and
warrants, as of the date of this lease: (a) Lessee is duly organized, validly
existing and in good standing under the laws of the state of its incorporation
or organization, and is duly qualified to do business wherever necessary to
carry on its present business and operations and to own its property; (b)
this lease (and any Equipment Schedule entered into pursuant to this lease)
has been duly authorized by all necessary action on the part of the Lessee,
duly executed and delivered by authorized officers or agents of Lessee, does
not require any further shareholder or partner approval, does not require the
approval of, or the
giving notice to, any federal, state, local or foreign governmental authority,
does not contravene any law binding on Lessee or contravene any certificate or
articles of incorporation or by-laws or partnership certificate or agreement, or
any agreement, indenture or other instruments to which Lessee is a party or by
which it or any of its assets or property may be bound; this lease (and any
Equipment Schedule entered into pursuant to this lease) constitutes the legal,
valid and binding obligation of Lessee and is enforceable in accordance with its
terms; (d) all credit and financial information, and all other information
submitted to Lessor at any time is true and correct, and there does not exist
any pending or threatened action or proceeding before any court or
administrative agency which might materially adversely affect Lessee's
financial condition or operations; (e) Lessee agrees to furnish to Lessor (I)
as soon as available, and in any event within 120 days after the last day of
each fiscal year of Lessee, a copy of the financial statements of Lessee as
of the end of such fiscal year, certified by an independent certified public
accounting firm; (ii) at any time if requested by Lessor, a copy of quarterly
financial statements certified by the
principal financial officer of Lessee; and (iii) such additional information
concerning Lessee as Lessor may reasonably request. LESSEE AND LESSOR HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS LEASE OR ANY
OTHER AGREEMENT EXECUTED IN CONNECTION HEREWITH.
32. COMMITMENT FEE REQUIREMENT. Lessee agrees, with respect to each
transaction, to pay the commitment fee specified in Lessor's proposal for such
transaction or in the Equipment Schedule related thereto. This commitment fee
is given in consideration for Lessor's costs and expenses in investigating and
appraising and/or establishing credit for Lessee. This commitment fee shall not
be refunded unless Lessor declines to accept Lessee's offer to enter into the
lease. Upon Lessor's acceptance of Lessee's offer to enter into the lease,
unless otherwise specified in the proposal or Equipment Schedule, the amount
shall be applied to the first period's rent payment. Lessee acknowledges that
Lessor's act of depositing any commitment fee into Lessor's bank account shall
not in itself constitute Lessor's acceptance of Lessee's offer to enter into the
lease.
IN WITNESS WHEREOF, the parties have executed this Master Lease Agreement
effective as of the first date it is executed by Lessee below.
USL CAPITAL CORPORATION (LESSOR) IOMEGA CORPORATION (LESSEE) TITLE DATE
BY BY
Name ___________________________ x/s/ Xxxxx X. Xxxxxx
Asst. Treasurer 8/29/95
Title __________________________ BY
x
_______________________________________________
Business Unit ________________________
HOME OFFICE 000 XXXXX XXXXXX, ____________________(CO-LESSEE)TITLE DATE
XXX XXXXXXXXX, XX 00000 (415) 627-9000 BY
Not valid unless executed by Lessor at Lessor's home office x
_____________________________________________
USL
CAPITAL EQUIPMENT SCHEDULE/CERTIFICATE OF ACCEPTANCE
Equipment Schedule to Master Lease Agreement dated August 29, 1995
LESSOR LESSEE
USL Capital Corporation Iomega Corporation
000 Xxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx, Xxxx 00000
All terms and conditions of the above referenced Master Lease Agreement are
hereby expressly incorporated into this Equipment Schedule and made a part
hereof as if such terms and conditions were fully set forth herein. By their
execution of the Equipment Schedule, the parties reaffirm all terms and
conditions of the Master Lease Agreement except as they may be modified hereby.
TOTAL COST OF EQUIPMENT TO LESSOR: $1,397,390.00 EQUIPMENT: AS SET FORTH ON
THE
EXHIBIT A ATTACHED HERETO:
# OF RENT EQUIPMENT LOCATION (ADDRESS,
PAYMENTS RENTAL AMOUNT FREQUENCY CITY, STATE, ZIP CODE)
36 $44,574.09 Monthly 0000 Xxxx Xxxxxx Xxx, Xxxxxxxx #0
Xxx, Xxxx 00000
INITIAL TERM
(MONTHS) X IN CITY LIMITS __ NOT IN
CITY
36 LIMITS XXXXX COUNTY
COMMITMENT FEE: $24,000.00 EQUIPMENT CONTACT
VENDOR NAME and ADDRESS NAME: Xxxxx Xxxxxx, Assistant Treasurer
PHONE: (000) 000-0000
Helios, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 INVOICING ADDRESS
Same
VENDOR CONTACT
NAME: Xxxx Xxxxxxx, Project Manager or Xxxxxx Xxxxx INVOICE CONTACT
PHONE: (000) 000-0000; (000) 000-0000 (fax)
NAME: Accounts Payable
PHONE: (000) 000-0000
MACRS RECOVERY PERIOD ___ YEARS
LESSEE REFERENCE NUMBER:
SPECIAL TERMS: THE TERMS AND CONDITIONS OF THE ABOVE REFERENCED MASTER LEASE
AGREEMENT ARE HEREBY MODIFIED FOR THIS EQUIPMENT SCHEDULE AS FOLLOWS: In
Xxxxxxxxx 00, XXXXXXXX OPTION, the first sentence is deleted and replaced by the
following sentence: "If no default shall have occurred and be continuing, Lessee
shall have the option to purchase the Equipment for one dollar ($1.00) at the
end of the Initial Term."
WE CERTIFY THAT THE EQUIPMENT DESCRIBED IN THAT ATTACHED EXHIBIT "A" HAS BEEN
INSTALLED, OPERATES PROPERLY, AND IS, THEREFORE, ACCEPTED FOR PURPOSES OF THE
LEASE.
WE REQUEST THAT LESSOR PAY THE VENDOR FOR THE EQUIPMENT AND WE UNDERSTAND THAT
RENTAL PAYMENTS WILL COMMENCE.
ATTACHMENTS: IN ADDITION TO EXHIBIT A, THE FOLLOWING EXHIBITS ARE ATTACHED
HERETO AND INCORPORATED HEREIN.
Exhibit B, Exhibit S, Indenture and Xxxx of Sale, Exhibit A to Indenture and
Xxxx of Sale, Quitclaim Xxxx of Sale
IN WITNESS WHEREOF, the parties have executed this Equipment Schedule effective
as of the first date it is executed by Lessee below.
USL CAPITAL CORPORATION (LESSOR) LESSEE SIGNATURE TITLE DATE
BY BY Asst. Treasurer 8/29/95
x __________________________________ x/s/ Xxxxx X. Xxxxxx
TITLE BUSINESS UNIT BY
x __________________________________ x _________________
HOME OFFICE 000 XXXXX XXXXXX, XX-XXXXXX SIGNATURE TITLE DATE
XXX XXXXXXXXX, XX 00000 BY
x _________________
Not valid unless executed by Lessor at Lessor's home office
LEASE
INTERNAL USE COMMITMENT DATE RENT COMMENCEMENT DATE NO.
ONLY
USL
CAPITAL EXHIBIT A
EQUIPMENT DESCRIPTION
to Equipment Schedule dated August 29, 1995
DESCRIPTION (Include Quantity, Model #, Serial #) COST
(7) Hellios Incorporated, Three spindle, 3-Up ServoWriter stations and
peripherals/options
as specified in the Helios proposal #1903-12 dated 2/2/94. The following
is a
breakdown of each unit by serial number and cost:
Serial # Cost
031595-01 $221,830.00
050995-03 204,830.00
040695-01 204,000.00
061495-05 193,800.00
062695-06 193,800.00
073195-09 189,565.00
081195-12 189,565.00
SUBTOTAL (THIS PAGE) $ __________
TOTAL COST $1,397,390.00
LESSEE INITIALS /S/JSG
PAGE 1 OF 1
USL
CAPITAL EXHIBIT B
AMENDMENT TO EQUIPMENT SCHEDULE(S) DATED August 29, 1995
TO MASTER LEASE AGREEMENT ("LEASE")
BETWEEN
USL CAPITAL CORPORATION ("LESSOR")
AND
IOMEGA CORPORATION ("LESSEE")
With respect to the above referenced Equipment Schedule(s) only, the terms
and conditions of the Lease shall be modified as follows:
Lessee and Lessor hereby agree that the rent payments shown on the
Equipment Schedule shall be adjusted if, for the week preceding the week in
which the Equipment is accepted for purposes of the Lease, the weekly average of
the Three-Year Treasury Note interest rate as specified in the Federal Reserve
statistical release H.15 is greater than or less than 5.65%, and said variance
is at least equal to one quarter of one percent (.25%), then the rent payments
will be adjusted so that for each one one-hundredth of one percent (.01%)
increase or decrease in the aforementioned Treasury interest rate, all rent
payments shall be increased or decreased by 0.0121%.
IN WITNESS WHEREOF, the parties have executed this Amendment to Lease
effective as of the date set forth above.
USL CAPITAL CORPORATION (LESSOR) LESSEE SIGNATURE TITLE
BY BY Asst. Treasurer
x __________________________________ x/s/ Xxxxx X. Xxxxxx
TITLE BY
x __________________________________ x _________________________
HOME OFFICE 000 XXXXX XXXXXX XX-XXXXXX SIGNATURE TITLE
XXX XXXXXXXXX, XX 00000 BY
Not valid unless executed by Lessor at x _________________________
Lessor's home office
LMS-451 Rev. (08/94)
USL
CAPITAL EXHIBIT S
AMENDMENT TO EQUIPMENT SCHEDULE(S) DATED August 29, 1995
TO MASTER LEASE AGREEMENT ("LEASE")
BETWEEN
USL CAPITAL CORPORATION ("LESSOR")
AND
IOMEGA CORPORATION ("LESSEE")
With respect to the above referenced Equipment Schedule(s) only, Paragraphs
5, 6, 7, 8 and 26 of the Lease are hereby deleted and replaced with the
following paragraphs:
5. COMMITMENT DATE. Lessee shall provide Lessor with documentation in
accordance with Paragraph 8(a) hereof by the date set forth in an Equipment
Schedule or Commitment Letter issued by Lessor as the Commitment Expiration
Date.
6. CERTIFICATE OF ACCEPTANCE. If Lessor so requests, Lessee shall
furnish Lessor a written statement (a) acknowledging that the Equipment is in
good condition and repair and (b) accepting it as satisfactory in all respects
for the purposes of this lease (the "Certificate of Acceptance").
7. TERMINATION BY LESSOR. If, by the Commitment Expiration Date, the
Lessee has not furnished the Lessor with the documentation in accordance with
Paragraphs 6 and 8(a) hereof, Lessor may, at its option, terminate this lease
and its obligations hereunder with respect to such Equipment Schedule at any
time after the Commitment Expiration Date. Lessor shall give Lessee written
notice whether or not it elects to exercise such option within ten (10) days
after Lessor's receipt of Lessee's written request fore such notice.
8. TERM; COMMENCEMENT. The term of this lease commences upon the
earlier of (a) the date upon which Lessor receives title to the Equipment
pursuant to a Xxxx of Sale or similar documentation or (b) the date of Lessor's
execution of this lease. The Rent Commencement Date shall be the later of (a)
or (b), above. Lessor is authorized to fill in on this lease the Rent
Commencement Date in accordance with the foregoing. The term shall continue
until all Lessee's obligations are fulfilled hereunder, unless sooner terminated
as to all or any part of the Equipment. The Initial Term of this lease begins
on the Rent Commencement Date and expires after the number of period for which
the rent payments are due.
26. ACQUISITION AGREEMENTS. If the Equipment described in any Equipment
Schedule is subject to any Acquisition Agreement between the Lessee and the
Vendor and/or Manufacturer, Lessee shall indemnify and hold Lessor harmless in
accordance with Paragraph 19 from any liability resulting from any Acquisition
Agreement as well as liabilities resulting from any Acquisition Agreement Lessor
is required to enter into on behalf of Lessee or with Lessee for purposes of
this lease.
Except as amended hereby, the Lease shall remain in full force and effect.
In the event of any conflict between the Lease and this Amendment to Equipment
Schedule, the Amendment to Equipment Schedule shall govern.
IN WITNESS WHEREOF, the parties have executed this Amendment to Equipment
Schedule as of the date set forth above.
USL CAPITAL CORPORATION (LESSOR) LESSEE SIGNATURE TITLE
BY BY Asst. Treasurer
x __________________________________ x/s/ Xxxxx X. Xxxxxx
TITLE BY
x __________________________________ x _________________________
HOME OFFICE 000 XXXXX XXXXXX XX-XXXXXX SIGNATURE TITLE
XXX XXXXXXXXX, XX 00000 BY
Not valid unless executed by Lessor at x _________________________
Lessor's home office
LMS-451 Rev. (08/94)
USL
CAPITAL INDENTURE AND XXXX OF SALE
This Indenture and Xxxx of Sale, dated the 29th day of August 1995, from
Iomega Corporation, a corporation hereinafter called "Seller" to USL CAPITAL
CORPORATION, hereinafter called "Buyer".
WITNESSETH
For valuable consideration, the receipt of which is hereby acknowledged,
Seller does hereby sell, assign, transfer, convey and deliver to Buyer all
property and equipment of whatsoever kind or character listed, described or
otherwise referred to in "Exhibit A" (the "Equipment"), a copy of which Exhibit
A is attached hereto and incorporated herein by this reference with the same
force and effect as set forth herein in full.
Seller covenants and warrants that:
A. It is the owner of, and has absolute title to, all the Equipment free
and clear of all claims, liens, encumbrances and all other defect of title of
any kind whatsoever.
B. It has not made any prior sale, assignment or transfer of any item
of said Equipment to any person, entity, firm or corporation.
C. It has the present right, power and authority to sell, assign and
transfer each and every item of said Equipment to Buyer.
D. Each and every item of said Equipment is in good repair, condition
and working order.
E. All acts, proceedings and things necessary and required by laws and
the articles of incorporation and by-laws of Seller and agreements or judgements
binding upon Seller to make this Indenture and Xxxx of Sale a valid, binding and
legal obligation of Seller have been done, taken and have happened; and the
execution and delivery hereof have in all respects been duly authorized in
accordance with law and said articles of incorporation and by-laws.
Seller shall forever warrant and defend the sale, assignment, transfer,
conveyance and delivery of each and every item of said Equipment to Buyer, its
successors and assigns, against each and every person whomsoever lawfully
claiming the same.
Possession of said Equipment shall not be transferred to Buyer but shall
be retained by Seller, it being the intention of Buyer to lease said Equipment
to Seller.
This Indenture and Xxxx of Sale is binding upon the successors and assigns
of Seller and inures to the benefit of the successors and assigns of Buyer.
IN WITNESS WHEREOF the undersigned Seller has caused this instrument to be
executed on the day and year first above appearing, by and through an officer
thereunto duly authorized.
IOMEGA CORPORATION (SELLER)
By. /s/ Xxxxx X. Xxxxxx
Title Assistant Treasurer
USL
CAPITAL EXHIBIT A TO INDENTURE AND XXXX OF SALE
FROM IOMEGA CORPORATION
To USL CAPITAL CORPORATION
DATED August 29, 1995
Equipment Location: 0000 Xxxx Xxxxxx Xxx, Xxxxxxxx #0
Xxx, Xxxx 00000
Equipment Description:
(7) Hellios Incorporated, Three spindle, 3-Up ServoWriter stations and
peripherals/options
as specified in the Helios proposal #1903-12 dated 2/2/94. The following
is
a breakdown of each unit by serial number and cost:
Serial # Cost
031595-01 $221,830.00
050995-03 204,830.00
040695-01 204,000.00
061495-05 193,800.00
062695-06 193,800.00
073195-09 189,565.00
081195-12 189,565.00
USL
CAPITAL
Lessee Name: IOMEGA CORPORATION
Customer Account # 00000000
INSURANCE INFORMATION
The equipment you have chosen to lease must be properly insured. This
outline is intended to assist you and your insurance company in obtaining the
necessary coverage:
Insurers must possess a Best's rating of "A-" or better. USL Capital
Corporation is to be named as Certificate Holder on insurance certificates.
X PHYSICAL DAMAGE: Fire, Extended Coverage, Vandalism, Malicious
Mischief and Theft for the full replacement value of all equipment
leased or to be leased during the coverage period. The following
language should appear on the certificate: "Certificate Holder is
included as Loss Payee with respect to equipment leased under
Account #00000000" (shown above)
NA LIABILITY: Property Damage and Bodily Injury coverage in the amount of $3
million naming USL Capital Corporation as additional insured. If
liability coverage is required, the following language should appear on
the certificate: "Certificate Holder is included as Loss Payee and
Additional Insured with respect to equipment leased under Account #
____________" (shown above)
A copy of the insurance certificate, or other evidence of coverage, needs
to be received at USL Capital before funding can occur. This may be faxed to
Xxxxxxx Xxxx at 000-000-0000; originals should be sent by mail to:
USL Capital Corporation
Equipment Insurance Department, MS-410
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
The policy should include a thirty (30) day written notice of cancellation
sent to the above address.
We suggest you forward this information to your insurance representative
so that they may update your coverage for you. Thank you for your attention to
this matter.
USL
CAPITAL QUITCLAIM XXXX OF SALE
For valuable consideration, receipt of which is hereby acknowledged, the
undersigned Seller hereby transfers any and all of its right, title and
interest, if any, in and to the following described personal property except for
its rights under the Equipment Schedule dated 8/29/95 to USL Capital
Corporation:
Description of Personal Property (Equipment):
(1) Hellios Incorporated, Three spindle, 3-Up ServoWriter stations and
peripherals/options
as specified in the Helios proposal #1903-12 dated 2/2/94. The following
is a
breakdown of each unit by serial number and cost:
Serial # Cost:
081195-12 $189,565.00
EXECUTED THIS 29TH DAY OF AUGUST, 1995.
IOMEGA CORPORATION (SELLER)
BY: /s/ Xxxxx X. Xxxxxx
Title: Assistant Treasurer
