Exhibit 10.22
Aug 02 2004
WINTHROP FINANCIAL SERVICES
Lease Agreement Number AL072204
Lease Agreement
This Lease Agreement, dated July 22, 2004, by and between WINTHROP RESOURCES
CORPORATION (the "Lessor") with an office located at 00000 Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxx 00000 and ALL AMERICAN SEMICONDUCTOR, INC. (the
"Lessee") with an office located at 00000 X.X. 00xx Xxxxxx, Xxxxx, XX 00000.
Lessor hereby leases or grants to the Lessee the right to use and Lessee hereby
rents and accepts the right to use the equipment listed by serial number and
related services, and software and related services on the Lease Schedule(s)
attached hereto or incorporated herein by reference from time to time
(collectively, the equipment, software and services are the "Equipment"),
subject to the terms and conditions hereof, as supplemented with respect to each
item of Equipment by the terms and conditions set forth in the appropriate Lease
Schedule. The term "Lease Agreement" shall include this Lease Agreement and the
various Lease Schedule(s) identifying each item of Equipment or the appropriate
Lease Schedule(s) identifying one or more particular items of Equipment.
1. Term
This Lease Agreement is effective from the date it is executed by both
parties. The term of this Lease Agreement, as to all Equipment designated on any
particular Lease Schedule, shall commence on the Installation Date for all
Equipment on such Lease Schedule and shall continue for an initial period ending
that number of months from the Commencement Date as set forth in such Lease
Schedule (the "Initial Term") and shall continue from year to year thereafter
until terminated. The term of this Lease Agreement as to all Equipment
designated on any particular Lease Schedule may be terminated without cause at
the end of the Initial Term or any year thereafter by either party mailing
written notice of its termination to the other party not less than one-hundred
twenty (120) days prior to such termination date.
2. Commencement Date
The Installation Date for each item of Equipment shall be the day said
item of Equipment is installed at the Location of Installation, ready for use,
and accepted in writing by the Lessee. The Commencement Date for any Lease
Schedule is the first of the month following installation of all the Equipment
on the Lease Schedule, unless the latest Installation Date for any Equipment on
the Lease Schedule falls on the first day of the month, in which case that is
the Commencement Date. After Lessee has inspected, tested, and accepted the
Equipment, the Lessee agrees to complete, execute and deliver a Certificate of
Acceptance to Lessor.
3. Lease Charge
The lease charges for the Equipment leased pursuant to this Lease
Agreement shall be the aggregate "Monthly Lease Charge(s)" as set forth on each
and every Lease Schedule executed pursuant hereto (the aggregate "Monthly Lease
Charge(s)" are the "Lease Charges"). Lessee agrees to pay to Lessor the Lease
Charges in accordance with the Lease Schedule(s), and the payments shall be made
at Lessor's address indicated thereon. The Lease Charges shall be paid by Lessee
monthly in advance with the first full month's payment due on the Commencement
Date. The Lease Charge for the period from the Installation Date to the
Commencement Date (the "Installation Period") shall be an amount equal to the
"Monthly Lease Charge" divided by thirty (30) and multiplied by the number of
days from and including the Installation Date to the Commencement Date and such
amount shall be due and payable upon receipt of an invoice from Lessor. Charges
for taxes made in accordance with Section 4 and charges made under any other
provision of this Lease Agreement and payable by Lessee shall be paid to Lessor
at Lessor's address specified on the Lease Schedule(s) on the date specified in
invoices delivered to Lessee. If payment, as specified above, is not received by
Lessor on the due date, Lessee agrees to and shall pay, to the extent permitted
by law, on demand, as a late charge, an amount equal to one percent (1%), or the
maximum percentage allowed by law if
less, of the amount past due ("Late Charges"). Late Charges will accrue until
billed by Lessor. Late Charges shall be charged and added to any past due
amount(s) on the date such payment is due and every thirty (30) days thereafter
until all past due amounts are paid in full to Lessor.
4. Taxes
In addition to the Lease Charges set forth in Section 3, the Lessee
shall reimburse Lessor for all license or registration fees, assessments, sales
and use taxes, rental taxes, gross receipts taxes, personal property taxes and
other taxes now or hereafter imposed by any government, agency, province or
otherwise upon the Equipment, the Lease Charges or upon the ownership, leasing,
renting, purchase, possession or use of the Equipment, whether the same be
assessed to Lessor or Lessee (the "Taxes"). Lessor shall file all property tax
returns and pay all Taxes when due. Lessee, upon notice to Lessor, may, in
Lessee's own name, contest or protest any Taxes, and Lessor shall honor any such
notice except when in Lessor's sole opinion such contest is futile or will cause
a levy or lien to arise on the Equipment or cloud Lessor's title thereto. Lessee
shall, in addition, be responsible to Lessor for the payment and discharge of
any penalties or interest as a result of Lessee's actions or inactions. Nothing
herein shall be construed to require Lessee to be responsible for any federal or
state taxes or payments in lieu thereof, imposed upon or measured by the net
income of Lessor, or slate franchise taxes of Lessor, or except as provided
hereinabove, any penalties or interest resulting from Lessor's failure to timely
remit such tax payments.
5. Delivery and Freight Costs
Lessee shall accept delivery of and install the Equipment before such
time as the applicable vendor requires payment for such Equipment.
All transportation charges upon the Equipment for delivery to Lessee's
designated Location of Installation are to be paid by Lessee. All rigging,
drayage charges, structural alterations, rental of heavy equipment and/or other
expense necessary to place the Equipment at the Location of Installation are to
be promptly paid by Lessee.
6. Installation
Lessee agrees to pay for the actual installation of the Equipment at
Lessee's site. Lessee shall make available and agrees to pay for all costs
associated with providing a suitable place of installation and necessary
electrical power, outlets and air conditioning required for operating the
Equipment as defined in the Equipment manufacturers installation manual or
instructions. All supplies consumed or required by the Equipment shall be
furnished and paid for by Lessee.
7. Return to Lessor
On the day following the last day of the lease term associated with a
Lease Schedule (the "Return Date"), Lessee shall cause and pay for the Equipment
on that Lease Schedule to be deinstalled, packed using the manufacturer's
standard packing materials and shipped to a location designated in writing by
Lessor (the "Return Location"). If the Equipment on the applicable Lease
Schedule is not at the Return Location within ten (10) days of the Return Date,
or Lessee fails to deinstall and ship the Equipment on the Return Date, then any
written notice of termination delivered by Lessee shall become void, and the
Lease Schedule shall continue in accordance with this Lease Agreement.
Irrespective of any other provision hereof, Lessee will bear the risk of damage
from fire, the elements or otherwise until delivery of the Equipment to the
Return Location. At such time as the Equipment is delivered to the Lessor at the
Return Location, the Equipment will be at the risk of Lessor.
8. Maintenance
Lessee, at its sole expense, shall maintain the Equipment in good
working order and condition. Lessee shall enter into, pay for and maintain in
force during the entire term of any Lease Schedule, a maintenance agreement with
the manufacturer of the Equipment providing for continuous uninterrupted
maintenance of the Equipment (the "Maintenance Agreement"), in every case in
which such maintenance agreement is available. Lessee will cause the
manufacturer to keep the Equipment in good working order in accordance with the
provisions of the Maintenance Agreement and make all necessary adjustments and
repairs to the Equipment. The manufacturer is
hereby authorized to accept the directions of Lessee with respect thereto.
Lessee agrees to allow the manufacturer full and free access to the Equipment.
All maintenance and service charges, whether under the Maintenance Agreement or
otherwise, and all expenses, if any, of the manufacturer's customer engineers
incurred in connection with maintenance and repair services, shall be promptly
paid by Lessee. Lessee warrants that all of the Equipment shall be in good
working order operating according to manufacturer's specification and eligible
for the manufacturer's standard maintenance agreement upon delivery to and
inspection and testing by the Lessor. If the Equipment is not free of physical
defect or damage, operating according to manufacturer's specification, in good
working order and/or eligible for the manufacturer's standard maintenance
agreement, then Lessee agrees to reimburse Lessor for all costs, losses,
expenses and fees associated with such equipment and the repair or replacement
thereof
9. Location, Ownership and Use
The Equipment shall, at all times, be the sole and exclusive property of
Lessor. Lessee shall have no right or property interest therein, except for the
right to use the Equipment in the normal operation of its business at the
Location of Installation, or as otherwise provided herein. The Equipment is and
shall remain personal property even if installed in or attached to real
property. Lessor shall be permitted to display notice of its ownership on the
Equipment by means of a suitable stencil, label or plaque affixed thereto.
Lessee shall keep the Equipment at all times free and clear from all
claims, levies, encumbrances and process. Lessee shall give Lessor immediate
notice of any such attachment or other judicial process affecting any of the
Equipment. Without Lessor's written permission, Lessee shall not attempt to or
actually: (i) pledge, fend, create a security interest in, sublet, exchange,
trade, assign, swap, use for an allowance or credit or otherwise; (ii) allow
another to use; (iii) part with possession; (iv) dispose of; or (v) remove from
the Location of Installation, any item of Equipment. If any item of Equipment is
exchanged, assigned, traded, swapped, used for an allowance or credit or
otherwise to acquire new or different equipment (the "New Equipment") without
Lessor's prior written consent, then all of the New Equipment shall become
Equipment owned by Lessor subject to this Lease Agreement and the applicable
Lease Schedule.
Any feature(s) installed on the Equipment at the time of delivery which
are not specified on the Lease Schedule(s) are and shall remain the sole
property of the Lessor.
Lessee shall cause the Equipment to be operated in accordance with the
applicable vendor's or manufacturer's manual of instructions by competent and
qualified personnel.
10. Financing Statement
Lessor is hereby authorized by Lessee to cause this Lease Agreement or
other instruments, including Uniform Commercial Code Financing Statements, to be
filed or recorded for the purposes of showing Lessor's interest in the
Equipment. Lessee agrees to execute any such instruments as Lessor may request
from time to time.
11. Alterations and Attachments
Upon prior written notice to Lessor, Lessee may, at its own expense,
make minor alterations in or add attachments to the Equipment, provided such
alterations and attachments shall not interfere with the normal operation of the
Equipment and do not otherwise involve the pledge, assignment, exchange, trade
or substitution of the Equipment or any component or part thereof. All such
alterations and attachments to the Equipment shall become part of the Equipment
leased to Lessee and owned by Lessor. If, in Lessor's sole determination, the
alteration or attachment reduces the value of the Equipment or interferes with
the normal and satisfactory operation or maintenance of any of the Equipment, or
creates a safety hazard, Lessee shall, upon notice from Lessor to that effect,
promptly remove the alteration or attachment at Lessee's expense and restore the
Equipment to the condition the Equipment was in just prior to the alteration or
attachment
12. Loss and Damage
Lessee shall assume and bear the risk of loss, theft and damage
(including any governmental requisition, condemnation or confiscation) to the
Equipment and all component parts thereof from any and every cause whatsoever,
whether or not covered by insurance No loss or damage to the
Equipment or any component part thereof shall impair any obligation of Lessee
under this Lease Agreement, which shall continue in full force and effect except
as hereinafter expressly provided Lessee shall repair or cause to be repaired
all damage to the Equipment. In the event that all or part of the Equipment
shall, as a result of any cause whatsoever, become lost, stolen, destroyed or
otherwise rendered irreparably unusable or damaged (collectively, the "Loss")
then Lessee shall, within ten (10) days after the Loss, fully inform Lessor in
writing of such a Loss and shall pay to Lessor the following amounts: (i) the
Monthly Lease Charges (and other amounts) due and owing under this Lease
Agreement at the time of the Loss (excluding all amounts, if any, that are or
would be due as a result of acceleration of the maturities of the obligations
under this Lease) plus (ii) one-hundred twelve (112%) percent of the original
cost of the Equipment subject to the Loss (or Event of Default, as defined
hereinafter) amortized by the Monthly Lease Charges received by Lessor during
the Initial Term using an amortization rate of 350 basis points over the
interest rate of the three (3) year United States Treasury Note as reported by
The Wall Street Journal on the Commencement Date (collectively, the sum of (i)
plus (ii) shall be the "Casualty Loss Value"). Upon receipt by Lessor of the
Casualty Loss Value: (i) the applicable Equipment shall be removed from the
Lease Schedule; and (ii) Lessee's obligation to pay Lease Charges associated
with the applicable Equipment shall cease. Lessor may request, and Lessee shall
complete, an affidavit(s) which swears out the facts supporting the Loss of any
item of Equipment.
13. Insurance
Until the Equipment is returned to Lessor or as otherwise herein
provided, whether or not this Lease Agreement has terminated as to the
Equipment, Lessee, at its expense, shall maintain: (i) property and casualty
insurance insuring the Equipment for its Casualty Loss Value naming Lessor or
its assigns as sole loss payee; provided, however, that Lessee shall not be
obligated to insure soft costs such as services, consulting, installation, and
freight: and (ii) comprehensive public liability and third-party property
insurance naming 'Lessor and its assigns as additional loss payees. The
insurance shall cover the interest of both the Lessor and Lessee in the
Equipment, or as the case may be, shall protect both the Lessor and Lessee in
respect to all risks arising out of the condition, delivery, installation,
maintenance, use or operation of the Equipment All such insurance shall provide
for thirty (30) days prior written notice to Lessor of cancellation,
restriction, or reduction of coverage. Lessee hereby irrevocably appoints Lessor
as Lessee's attorney-in-fact to make claim for, receive payment of and execute
and endorse all documents, checks or drafts for loss or damage or return premium
under any insurance policy issued on the Equipment Prior to installation of the
Equipment, all policies or certificates of insurance shall be delivered to
Lessor by Lessee. Lessee agrees to keep the Equipment insured with an insurance
company which is at least "A" rated by A.M. Best. The proceeds of any loss or
damage insurance shall be payable to Lessor, but Lessor shall remit all such
insurance proceeds to Lessee at such time as Lessee either (i) provides Lessor
satisfactory proof that the damage has been repaired and the Equipment has been
restored to good working order and condition or (ii) pays to Lessor the Casualty
Loss Value. It is understood and agreed that any payments made by Lessee or its
insurance carrier for loss or damage of any kind whatsoever to the Equipment are
not made as accelerated rental payments or adjustments of rental, but are made
solely as indemnity to Lessor for loss or damage of its Equipment.
14. Enforcement of Warranties
Lessee, in its own name, shall, so long as this Lease Agreement is in
force, enforce any manufacturer's Equipment warranty Lessor will and hereby does
assign all Equipment warranties to the Lessee
15. Warranties, Disclaimers and Indemnity
Lessor warrants that at the time the Equipment is delivered to Lessee,
Lessor will have full right, power and authority to lease the Equipment to
Lessee. EXCEPT FOR THE WARRANTY IN THE SENTENCE DIRECTLY PRECEDING THIS ONE, THE
LESSOR DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LESSEE
ACKNOWLEDGES THAT IT IS NOT RELYING ON LESSOR'S SKILL OR JUDGMENT TO SELECT OR
FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO
WARRANTIES CONTAINED IN
THIS LEASE AGREEMENT. LESSEE REPRESENTS AND WARRANTS THAT IT IS NOT A FOREIGN
"FINANCIAL INSTITUTION" OR ACTING ON BEHALF OF A FOREIGN "FINANCIAL INSTITUTION"
AS THAT TERM IS DEFINED IN THE BANK SECRECY ACT, 31 U.S C. 5318, AS AMENDED.
LESSEE ACKNOWLEDGES THAT LESSOR, IN COMPLIANCE WITH SECTION 326 OF THE USA
PATRIOT ACT, WILL BE VERIFYING CERTAIN INFORMATION ABOUT LESSEE. LESSEE FURTHER
ACKNOWLEDGES AND AGREES THAT LESSOR AND ITS REPRESENTATIVES AND EMPLOYEES HAVE
NOT MADE ANY STATEMENT, REPRESENTATION OR WARRANTY RELATIVE TO THE ACCOUNTING OR
TAX ENTRIES, TREATMENT, BENEFIT, USE OR CLASSIFICATION OF THE LEASE AGREEMENT OR
ASSOCIATED LEASE SCHEDULES. LESSEE ACKNOWLEDGES THAT IT AND/OR ITS INDEPENDENT
ACCOUNTANTS ARE SOLELY RESPONSIBLE FOR (i) ANY AND ALL OF LESSEE'S ACCOUNTING
AND TAX ENTRIES ASSOCIATED WITH THE LEASE AGREEMENT AND/OR THE LEASE SCHEDULES
AND (ii) THE ACCOUNTING AND TAX TREATMENT, BENEFITS, USES AND CLASSIFICATION OF
THE LEASE AGREEMENT OR ANY LEASE SCHEDULE. LESSOR SHALL NOT BE LIABLE FOR ANY
DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE RELATIONSHIP
BETWEEN THE LESSOR AND LESSEE, THIS LEASE AGREEMENT OR THE PERFORMANCE,
POSSESSION, LEASE OR USE OF THE EQUIPMENT. THIS LEASE AGREEMENT IS A "FINANCE
LEASE" AS THAT TERM IS DEFINED AND USED IN ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee
shall indemnify, defend and hold Lessor harmless with respect to, any claim from
a third party for any liability, claim, loss, damage or expense of any kind or
nature, whether based upon a theory of strict liability or otherwise, caused,
directly or indirectly, by: (i) the inadequacy of any item of Equipment,
including software, for any purpose; (ii) any deficiency or any latent or other
defects in any Equipment, including software, whether or not detectable by
Lessee; (iii) the selection, manufacture, rejection, ownership, lease,
possession, maintenance, operation, use or performance of any item of Equipment,
including software. (iv) any interruption or loss of service, use or performance
of any item of Equipment, including software; (v) patent, trademark or copyright
infringement; or (vi) any loss of business or other special, incidental or
consequential damages whether or not resulting from any of the foregoing.
Lessee's duty to defend and indemnify Lessor shall survive the expiration,
termination, cancellation or assignment of this Lease Agreement or a Lease
Schedule and shall be binding upon Lessee's successors and permitted assigns;
provided, however, that Lessee's duty to defend and indemnify Lessor as it
relates to any particular item of Equipment shall be limited to claims and/or
causes of action arising prior to the return of said Equipment to Lessor
pursuant to this Lease Agreement, subject to applicable statutes of limitation.
16. Event of Default
The occurrence of any of the following events shall constitute an Event
of Default under this Lease Agreement and/or any Lease Schedule:
(1) the nonpayment by Lessee of any Lease Charges when due, or the
nonpayment by Lessee of any other sum required hereunder to be paid by
Lessee which non-payment continues for a period of ten (10) days from
the date when due;
(2) the failure of Lessee to perform any other term, covenant or condition
of this Lease Agreement, any Lease Schedule or any other document,
agreement or instrument executed pursuant hereto or in connection
herewith, which is not cured within fifteen (15) days after written
notice thereof from Lessor;
(3) Lessee attempts to or does remove, transfer, sell, swap, assign,
sublease, trade, exchange, encumber, or part with possession of, any
item of Equipment;
(4) Lessee ceases doing business as a going concern, is insolvent, makes an
assignment for the benefit of creditors, fails to pay its debts as they
become due, offers a settlement to creditors or calls a meeting of
creditors for any such purpose, files a voluntary petition in
bankruptcy, is
subject to an involuntary petition in bankruptcy, is adjudicated
bankrupt or insolvent, files or has filed against it a petition seeking
any reorganization, arrangement or composition, under any present or
future statute, law or regulation;
(5) any of Lessee's representations or warranties made herein or in any oral
or written statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading
in any material respect;
(6) Lessee defaults under any other agreement now existing or hereafter made
with Lessor, or
(7) the breach or repudiation by any party thereto of any guaranty,
subordination agreement or other agreement running in favor of Lessor
obtained in connection with this Lease Agreement.
17. Remedies
Should any Event of Default occur, Lessor may, in order to protect its
interests and reasonably expected profits, with or without notice or demand upon
Lessee, retain any and all security deposits and pursue and enforce,
alternatively, successively and/or concurrently, any one or more of the
following remedies:
(1) recover from Lessee all accrued and unpaid Lease Charges and other
amounts due and owing on the date of the default;
(2) recover from Lessee from time to time all Lease Charges and other
amounts as and when becoming due hereunder;
(3) accelerate, cause to become immediately due and recover the present
value of all Lease Charges and other amounts due and/or likely to become
due hereunder from the date of the default to the end of the lease term
using a discount rate of four (4%) percent;
(4) cause to become immediately due and payable and recover from Lessee the
Casualty Loss Value of the Equipment which Lessee agrees is not a
penalty but rather the fair measure of Lessor's loss in or damage to
Lessor's interests in the Equipment and Lease caused by Lessee's default
hereunder;
(5) terminate any or all of the Lessee's rights, but not its obligations,
associated with the lease of Equipment under this Lease Agreement;
(6) retake (by Lessor, independent contractor, or by requiring Lessee to
assemble and surrender the Equipment in accordance with the provisions
of Section 7 hereinabove) possession of the Equipment without
terminating the Lease Schedule or the Lease Agreement free from claims
by Lessee which claims are hereby expressly waived by Lessee;
(7) require Lessee to deliver the Equipment to a location designated by
Lessor;
(8) proceed by court action to enforce performance by Lessee of its
obligations associated with any Lease Schedule and/or this Lease
Agreement; and/or
(9) pursue any other remedy Lessor may otherwise have, at law, equity or
under any statute, and recover damages and expenses (including
reasonable attorneys' fees) incurred by Lessor by reason of the Event of
Default.
Upon repossession of the Equipment, Lessor shall have the right to
lease, sell or otherwise dispose of such Equipment in a commercially reasonable
manner, with or without notice, at a public or private sale. Lessor's pursuit
and enforcement of any one or more remedies shall not be deemed an election or
waiver by Lessor of any other remedy. Lessor shall not be obligated to sell or
re-lease
the Equipment. Any sale or re-lease may be held at such place or places as are
selected by Lessor, with or without having the Equipment present. Any such sale
or re-lease, may be at wholesale or retail, in bulk or in parcels. Time and
exactitude of each of the terms and conditions of this Lease Agreement are
hereby declared to be of the essence. Lessor may accept past due payments in any
amount without modifying the terms of this Lease Agreement and without waiving
any rights of Lessor hereunder.
18. Costs and Attorneys' Fees
In the event of any default, claim, proceeding, including a bankruptcy
proceeding, arbitration, mediation, counter-claim, action (whether legal or
equitable), appeal or otherwise, whether initiated by Lessor or Lessee (or a
debtor-in-possession or bankruptcy trustee), which arises out of, under, or is
related in any way to this Lease Agreement, any Lease Schedule, or any other
document, agreement or instrument executed pursuant hereto or in connection
herewith, or any governmental examination or investigation of Lessee, which
requires Lessor's participation (individually and collectively, the "Claim"),
Lessee, in addition to all other sums which Lessee may be called upon to pay
under the provisions of this Lease Agreement, shall pay to Lessor, on demand,
all reasonable costs, expenses and fees paid or payable in connection with the
Claim, including, but not limited to, reasonable attorneys' fees and
out-of-pocket costs, including travel and related expenses incurred by Lessor or
its attorneys.
19. Lessor's Performance Option
Should Lessee fail to make any payment or to do any act as provided by
this Lease Agreement, then Lessor shall have the right (but not the obligation),
without notice to Lessee of its intention to do so and without releasing Lessee
from any obligation hereunder to make or to do the same, to make advances to
preserve the Equipment or Lessor's title thereto, and to pay, purchase, contest
or compromise any insurance premium, encumbrance, charge, tax, lien or other sum
which in the judgment of Lessor appears to affect the Equipment, and in
exercising any such rights, Lessor may incur any liability and expend whatever
amounts in its good faith discretion it may deem necessary therefor. All sums so
incurred or expended by Lessor shall be due and payable by Lessee within ten
(10) days of notice thereof.
20. Quiet Possession and Inspection
Lessor hereby covenants with Lessee that Lessee shall quietly possess
the Equipment subject to and in accordance with the provisions hereof so long as
Lessee is not in default pursuant to Section 16 hereunder; provided, however,
that Lessor or its designated agent may, at any and all reasonable times during
Lessee's business hours, enter Lessee's premises for the purposes of inspecting
the Equipment and the manner in which it is being used.
21. Assignments
This Lease Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Lessee, however,
shall not assign this Lease Agreement or sublet any of the Equipment without
first obtaining the prior written consent of Lessor and its assigns, if any.
Lessee acknowledges that the terms and conditions of this Lease Agreement have
been fixed in anticipation of the possible assignment of Lessor's rights under
this Lease Agreement and in and to the Equipment as collateral security to a
third party ("Assignee" herein) which will rely upon and be entitled to the
benefit of the provisions of this Lease Agreement. Lessee agrees with Lessor and
such Assignee to recognize in writing any such assignment within fifteen (15)
days after receipt of written notice thereof and to pay thereafter all sums due
to Lessor hereunder directly to such Assignee if directed by Lessor,
notwithstanding any defense, set-off or counterclaim whatsoever (whether arising
from a breach of this Lease Agreement or not) that Lessee may from time to time
have against Lessor. Upon such assignment, the Lessor shall remain obligated to
perform any obligations it may have under this Lease Agreement and the Assignee
shall (unless otherwise expressly agreed to in writing by the Assignee) have no
obligation to perform such obligations. Any such assignment shall be subject to
Lessee's rights to use and possess the Equipment so long as Lessee is not in
default hereunder.
22. Survival of Obligations
All covenants, agreements, representations, and warranties contained in
this Lease Agreement, any Lease Schedule, or in any document attached thereto,
shall be for the benefit of Lessor and Lessee and their successors, any assignee
or secured party. Further, all covenants, agreements, representations, and
warranties contained in this Lease Agreement, any Lease Schedule, or in any
document attached thereto, shall survive the execution and delivery of this
Lease Agreement and the expiration or other termination of this Lease Agreement.
23. Corporate Authority
The parties hereto covenant and warrant that the persons executing this
Lease Agreement and each Lease Schedule on their behalf have been duty
authorized to do so, and this Lease Agreement and any Lease Schedule constitute
a valid and binding obligation of the parties hereto. The Lessee will, if
requested by Lessor, provide to Lessor, Certificates of Authority naming the
officers of the Lessee who have the authority to execute this Lease Agreement
and any Lease Schedules attached thereto
24. Landlords' and Mortgagees' Waiver
If requested, Lessee shall make reasonable efforts to furnish waivers or
subordinations, in form and substance reasonably satisfactory to Lessor, from
all landlords and mortgagees of any premises upon which any Equipment is
located.
25. Miscellaneous
This Lease Agreement, the Lease Schedule(s), attached riders and any
documents or instruments issued or executed pursuant hereto will have been made,
executed and delivered in, and shall be governed by the internal laws (as
opposed to conflicts of law provisions) and decisions of, the State of
Minnesota. Lessee and Lessor consent to the exclusive jurisdiction of any local,
state or federal court located within Minnesota. Venue must be in Minnesota and
Lessee hereby waives local venue and any objection relating to Minnesota being
an improper venue to conduct any proceeding relating to this Lease Agreement. At
Lessor's sole election and determination, Lessor may select an alternative
forum, including arbitration or mediation, to adjudicate any dispute arising out
of this Lease Agreement.
This Lease Agreement was jointly drafted by the parties, and the parties
hereby agree that neither should be favored in the construction, interpretation
or application of any provision or any ambiguity. There are no unwritten or oral
agreements between the parties. This Lease Agreement and associated Lease
Schedule(s) constitute the entire understanding and agreement between Lessor and
Lessee with respect to the lease of the Equipment superseding all prior
agreements, understandings, negotiations, discussions, proposals,
representations, promises, commitments and offers between the parties, whether
oral or written. No provision of this Lease Agreement or any Lease Schedule
shall be deemed waived, amended, discharged or modified orally or by custom,
usage or course of conduct unless such waiver, amendment or modification is in
writing and signed by an officer of each of the parties hereto. If any one or
more of the provisions of this Lease Agreement or any Lease Schedule is for any
reason held invalid, illegal or unenforceable, the remaining provisions of this
Lease Agreement and any such Lease Schedule will be unimpaired, and the invalid,
illegal or unenforceable provisions shall be replaced by a mutually acceptable
valid, legal and enforceable provision that is closest to the original intention
of the parties Lessee agrees that neither the manufacturer, nor the supplier,
nor any of their salespersons, employees or agents are agents of Lessor
Any notice provided for herein shall be in writing and sent by certified
or registered mail to the parties at the addresses stated on page 1 of this
Lease Agreement
The Monthly Lease Charge is intended to be fixed from the Commencement
Date to the end of the term. The three year treasury rate is an integral part of
the lease rate. The Lessee and Lessor agree that the lease rate shall also be
fixed during the installation Period but should the three year treasury note
increase during such Installation Period, the lease rate will be adjusted on the
Commencement Date.
Lessor is entitled to review a complete set of Lessee's publicly
available financial statements, including a statement of cash flows, balance
sheet and income statement, and any other financial
information that Lessor may request or if Lessee is not publicly traded or
Lessee's financial statements are not otherwise available, then Lessee will
provide Lessor with Lessee's most recent audited and its most current financial
statements. If during the Installation Period the Lessee's financial condition
changes in any material respect (as determined by the Lessor in its sole
discretion), then Lessor shall be entitled to stop purchasing equipment to be
leased to Lessee and commence the applicable lease schedule(s).
This Lease Agreement shall not become effective until delivered to
Lessor at its offices at Minnetonka, Minnesota and executed by Lessor. If this
Lease Agreement shall be executed by Lessor prior to being executed by Lessee,
it shall become void at Lessor's option five (5) days after the date of Lessor's
execution hereof, unless Lessor shall have received by such date a copy hereof
executed by a duly authorized representative of Lessee.
This Lease Agreement is made subject to the terms and conditions
included herein and Lessee's acceptance is effective only to the extent that
such terms and conditions are consistent with the terms and conditions herein.
Any acceptance which contains terms and conditions which are in addition to or
inconsistent with the terms and conditions herein will be a counter-offer and
will not be binding unless agreed to in writing by Lessor.
The terms used in this Lease Agreement, unless otherwise defined, shall
have the meanings ascribed to them in the Lease Schedule(s).
26. REPOSSESSION
LESSEE ACKNOWLEDGES THAT, PURSUANT TO SECTION 17 HEREOF, LESSOR HAS BEEN
GIVEN THE RIGHT TO REPOSSESS THE EQUIPMENT SHOULD LESSEE BECOME IN DEFAULT OF
ITS OBLIGATIONS HEREUNDER LESSEE HEREBY WAIVES THE RIGHT, IF ANY, TO REQUIRE
LESSOR TO GIVE LESSEE NOTICE AND A JUDICIAL HEARING PRIOR TO EXERCISING SUCH
RIGHT OF REPOSSESSION
27. Net Lease
This Lease Agreement is a net lease and Lessee's obligations to pay all
Lease Charges and other amounts payable hereunder shall be absolute and
unconditional and, except as expressly provided herein, shall not be subject to
any: (i) delay, abatement, reduction, defense, counterclaim, set-off, or
recoupment; (ii) discontinuance or termination of any license; (iii) Equipment
failure, defect or deficiency; (iv) damage to or destruction of the Equipment;
or (v) dissatisfaction with the Equipment or otherwise, including any present or
future claim against Lessor or the manufacturer, supplier, reseller or vendor of
the Equipment. To the extent that the Equipment includes intangible (or
intellectual) property, Lessee understands and agrees that: (i) Lessor is not a
party to and does not have any responsibility under any software license and/or
other agreement with respect to any software; and (ii) Lessee will be
responsible to pay all of the Lease Charges and perform all its other
obligations under this Lease Agreement despite any defect, deficiency, failure,
termination, dissatisfaction, damage or destruction of any software or software
license. Except as expressly provided herein, this Lease Agreement shall not
terminate for any reason, including any defect in the Equipment or Lessor's
title thereto or any destruction or loss of use of any item of Equipment.
28. Headings
Section headings herein are used for convenience only and shall not
otherwise affect the provisions of this Lease Agreement.
IN WITNESS WHEREOF the parties hereto have caused this representative Lease
Agreement to be signed by their respective duly authorized representative.
Every Term is Agreed to and Accepted: Every Term is Agreed to and Accepted:
WINTHROP RESOURCES CORPORATION ALL AMERICAN SEMICONDUCTOR, INC.
By:/s/ XXXXXXX X. XXXXXX By:/s/ XXXXX X. XXXXXXXX
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Print Print
Name: XXXXXXX X. XXXXXX Name: XXXXX X. XXXXXXXX
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Title: Title: President & CEO
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Date: 8-02-04 Date: 7-30-2004
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