XxxxxxXxxxxx.xxx Agreement Number:295293/337589
MASTER LEASE AGREEMENT
By and Between
SIERRACITIES.CONI INC.
and
GTS/HDD, Inc.
This MASTER LEASE AGREEMENT ("Agreement") is dated as of, and is by and
between XxxxxxXxxxxx.xxx Inc., with offices located at 000 Xxxxxx Xxxxxx; Xxxxx
0000, Xxxxxxx, Xxxxx 00000, its successors and assigns ("Lessor") and GTS/HDD,
Inc a Arkansas Incorporated Company having offices located at 0000 Xxxxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx XX 00000 ("Lessee"). The parties hereto for good and
valuable consideration and intending to be legally bound hereby agree as
follows:
I. AGREEMENT. This Agreement establishes the general terms and conditions under
which Lessor may, from time to time, lease Systems (as hereinafter defined) to
Lessee. The terms hereof shall be deemed to form a part of each Master Lease
Schedule (each a "Lease") executed by the parties which references this
Agreement. Items of "Equipment," "Licensed Products," "Project Costs" and
"Maintenance" shall be identified in each Lease and shall be collectively
referred to as a "System."
II. PAYMENTS AND LEASE TERM. This Agreement shall become effective upon
acceptance and execution by Lessor and shall remain effective at least until the
expiration or early termination of the term of the last Lease hereunder to
expire or terminate early. Each Lease shall become effective upon acceptance and
execution by Lessor and shall be for the term provided therein. The term of each
Lease shall commence on the Commencement Date, as defined in the Lease with an
interim term and Base Term Commencement Date as set forth therein and shall
thereafter continue until all obligations of the Lessee under the Lease shall
have been fully performed ("Lease Term"). The amount of the Lease Payments on
each Lease ("Lease Payments") are based upon the estimated total cost of the
System on the applicable Schedule. The Lease Payments shall be adjusted
proportionately upward or downward if the actual total cost of the System on the
applicable Lease exceeds or is less than the estimate, with such adjustment
being confirmed in writing. Interim Rent and Base Term Rent shall be due and
payable as set forth in the Lease. All payments made by or on behalf of Lessee
hereunder shall be nonrefundable. LESSEE'S OBLIGATION TO PAY SUCH LEASE PAYMENTS
SHALL BE ABSOLUTE AND UNCONDITIONAL AND IS NOT SUBJECT TO ANY ABATEMENT,
SET-OFF, DEFENSE OR COUNTERCLAIM FOR ANY REASON WHATSOEVER. All payments
hereunder shall be made to Lessor at its address specified above (or such other
place as Lessor, in writing, directs) without notice or demand therefor. If the
tern of a Lease is extended, "Lease Term" shall be deemed to refer to all
extensions thereof. Each Schedule will automatically renew for successive 90 day
terms ("Renewal Term") unless you send us written notice that you do not want to
renew at least 60 days before the end of any term of such Schedule. We may
cancel the automatic renewal by sending you written notice, at least 15 days
before the end of any term.
III. PERSONAL PROPERTY, TITLE. AND LOCATION. The Equipment is, and shall at all
times be and remain, the sole and exclusive property of Lessor, and Lessee,
notwithstanding any trade-in or down payment made by Lessee or on its behalf
with respect to the Equipment, shall have no right, title or interest therein or
thereto, except as to the use thereof subject to the terms and conditions of
this Agreement and the related Lease hereunder. Notwithstanding anything to the
contrary in this Agreement or any Lease, neither this Agreement nor any Lease
grants any right, title or interest in or to that portion of any System
constituting or containing software and/or operation manuals, plans,
specifications and documentation related thereto (collectively, "Licensed
Materials"). Any rights that Lessee may have with respect to Licensed Materials
shall arise only pursuant to license agreements between Lessee and the
licensor(s) of such Licensed Materials (collectively, the "Licensors") which
license agreements (the "Licenses") may be contained within the packaging
associated with the System. All title to and ownership of the Licensed Materials
(together with all rights in patents, copyrights, trade secrets and other
intellectual property rights applicable thereto) are and shall remain in the
Licensors during and after the tern of this Agreement. Any use of the terms
"sell," "purchase," "license," "lease," and the 'like in this Agreement or any
Lease with respect to Licensed Materials shall be interpreted in accordance with
this Section 3.
Lessee will not directly or indirectly create, incur, assume or suffer
to exist any lien on or with respect to the System or Lessor's interest thereto,
except such liens as may arise through the independent acts or omissions of the
Lessor. Lessee, at its own expense, will promptly pay, satisfy or otherwise take
such actions as may be necessary to keep the System free and clear of any and
all such liens. The System is, and at all times shall remain, personal property
notwithstanding that the System or any item thereof may now be, or hereafter
become, in any manner affixed or attached to, or imbedded in, or permanently
resting upon real property or any improvement thereof or attached in any manner
to what is permanent. If requested by Lessor prior to or at any time during the
Lease Term, Lessee will obtain and deliver to Lessor waivers of interest or
liens in recordable form, satisfactory to Lessor, from all persons claiming any,
interest in the real property on which an item of the System is installed or
located.
The System shall be kept at the address designated in the Lease and
shall not be removed therefrom without the prior written consent of the Lessor,
which consent shall not be unreasonably withheld. Lessor may require plates or
markings to be affixed to or placed on the Equipment indicating the Lessor's
ownership of the Equipment.
IV. DELIVERY AND ACCEPTANCE. As between Lessee and Lessor, delivery and
installation arrangements and costs are the sole responsibility of Lessee.
Lessee agrees to accept the System when delivered, installed and operating to
Vendor's specifications and to execute the Delivery and Acceptance Certificate
supplied by Lessor as evidence thereof. Lessee agrees to hold Lessor harmless
from specific performance of this Agreement and from damages, if for any reason,
the Vendor fails to deliver, or delays in delivery of, the System so ordered or
if the System is unsatisfactory for any reason whatsoever. Lessee's execution of
the Delivery and Acceptance Certificate shall conclusively establish that the
System covered thereby is acceptable to Lessee for all purposes of the Lease
related thereto. If Lessee cancels or terminates a Lease prior to the
Commencement Date or if Lessee fails or refuses to sign the Delivery and
Acceptance Certificate within a reasonable time, not to exceed five (5) business
days, after the System has been delivered, installed and is operating to
Vendor's specifications, Lessor shall have the option of treating the Lease as
cancelled by Lessee and Lessee shall automatically assume all of Lessor's rights
and obligations as purchaser of the System, whether under an Acquisition
Agreement or otherwise. If Lessee has entered into any purchase, licensing,
maintenance or similar agreements with the Vendor (each an "Acquisition
Agreement") covering the System or any portion thereof, Lessee transfers and
assigns to Lessor all of Lessee's rights, but none of its obligations (except
for Lessee's obligation to pay for the System upon Lessor's acceptance of the
Lease), with respect to the Acquisition Agreement, including without limitation
the right to take title to the System.
V. SELECTION OF SYSTEM AND DISCLAIMER OF WARRANTY. If the System is not properly
installed, does not operate as represented or warranted by the Vendor, or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against the Vendor and shall, nevertheless, pay Lessor all Lease Payments
under the Lease and shall not set up against Lessee's obligations any such
claims as a defense, counterclaim, set-off or otherwise. So long as Lessee is
not in breach or default of this Agreement or any Lease hereunder, Lessor hereby
assigns to Lessee any rights which Lessor may have against the Vendor for breach
of warranty or other representation respecting any item of the System. All
proceeds of any warranty recovery by Lessee from the Vendor of any item of the
System shall first be used to repair or replace the affected item.
NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, LESSEE DOES NOT
WAIVE ANY RIGHTS OR REMEDIES IT MAY HAVE AGAINST THE VENDOR OF THE SYSTEM.
Lessee has selected both the System and the Vendor from whom Lessor
covenants to purchase the System at Lessee's request. LESSEE ACKNOWLEDGES THAT
LESSOR HAS NO EXPERTISE OR SPECIAL FAMILIARITY ABOUT OR WITH RESPECT TO THE
SYSTEM. LESSEE AGREES THAT THE SYSTEM LEASED HEREUNDER IS LEASED "AS-IS" AND IS
OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED
THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT LESSOR HAS MADE NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID
SYSTEM FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LESSOR
FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR INJURY TO LESSEE OR THIRD
PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE SYSTEM WHETHER
ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY OR OTHERWISE.
LESSEE ACKNOWLEDGES THAT NEITHER THE VENDOR NOR ANY SALESPERSON,
EMPLOYEE, REPRESENTATIVE OR AGENT OF THE VENDOR 1S AN AGENT OR REPRESENTATIVE OF
LESSOR, AND THAT NONE OF THE ABOVE IS AUTHORIZED TO WAIVE OR ALTER ANY TERM,
PROVISION OR CONDITION OF THIS AGREEMENT OR ANY LEASE HEREUNDER, OR MAKE ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO THIS AGREEMENT, ANY LEASE HEREUNDER
OR THE SYSTEM LEASED HEREUNDER. REGARDLESS OF CAUSE, LESSEE WILL NOT ASSERT ANY
CLAIM WHATSOEVER AGAINST LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR ANY OTHER
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, NOR SHALL LESSOR BE RESPONSIBLE FOR
ANY DAMAGES OR COSTS WHICH MAY BE .ASSESSED AGAINST LESSEE IN ANY ACTION FOR
INFRINGEMENT OF ANY UNITED STATES LETTERS PATENT OR COPYRIGHT. LESSOR MAKES NO
WARRANTY AS TO THE TREATMENT OF THIS AGREEMENT OR ANY LEASE HEREUNDER FOR TAX OR
ACCOUNTING PURPOSES.
VI. USE; MAINTENANCE AND INSPECTION. Lessee shall use the System solely in the
conduct of its business and in a careful and proper manner consistent with the
requirements of all applicable insurance policies and shall permit only
qualified personnel to operate the System. Lessee will not modify the System in
any way without the prior written consent of Lessor, which consent shall not be
unreasonably withheld. Lessee shall not attach or incorporate the Equipment or
Licensed Products to or in any other item of equipment or software in such a
manner that the Equipment or Licensed Products becomes or may be deemed to have
become an accession to or a part of such other item of equipment or software. If
any parts or accessories forming part of the System become worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered unfit for
use, Lessee, at its own expense, shall within a reasonable time cause such parts
or accessories to be replaced by replacement parts or
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XxxxxxXxxxxx.xxx Agreement Number:295293/337589
accessories which are free and clear of all liens, encumbrances or rights of
others and have a utility at least equal to the parts or accessories replaced.
All equipment, Licensed Products accessories, upgrades, parts and replacements
for or which are added to or become attached to the System, which are essential
to the operation of the System or which cannot be detached from the System
without materially interfering with the operation of the System or adversely
affecting the value and utility which the System would have had without the
addition thereof, shall immediately become the property of Lessor, and shall be
deemed incorporated in the System and subject to the terms of this Agreement and
the related Lease as if originally leased hereunder. Lessee shall not make any
material alterations to the System without the prior written consent of Lessor,
which consent shall not be unreasonably withheld. Upon reasonable advance
notice, Lessor shall have the right to inspect the System and all maintenance
records with respect thereto, if any, at any reasonable time during normal
business hours.
At its own expense, Lessee will cause the System to be kept, used and
maintained as recommended by the Vendor and Vendor's maintenance manuals and
plans by competent and duly qualified personnel in accordance with applicable
governmental regulations, if any, and in as good operating condition as when
delivered to Lessee hereunder, ordinary wear and tear resulting from proper use
alone excepted. In the event the Lease Payments include the cost of maintenance
and/or service being provided by Vendor, Lessee acknowledges that Lessor is not
responsible for providing any required maintenance and/or service for the
System. Lessee shall make all claims for service and/or maintenance solely to
the Vendor and Lessee's obligation to make all required Lease Payments shall
remain unconditional.
VII. ASSIGNMENT. LESSEE MAY NOT ASSIGN THIS AGREEMENT, ANY LEASE OR THE RIGHTS
HEREUNDER, NOR SHALL THE LESSEE SUBLEASE OR LEND THE SYSTEM OR ALLOW IT TO BE
USED BY ANYONE OTHER THAN LESSEE'S EMPLOYEES WITHOUT THE PRIOR WRITTEN CONSENT
OF LESSOR, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. Lessor may at any
time assign all or part of any interest in this Agreement or any Lease and in
each item of the System and monies to become due to Lessor hereunder; and,
Lessor may grant security interests in the System, subject to the Lessee's
rights therein. In such events, all the provisions of this Agreement or any
Lease hereunder for the benefit of Lessor shall inure to the benefit of and be
exercised by or on behalf of such assignee, but the assignee shall not be liable
for or be required to perform any of Lessor's obligations to Lessee. The Lessor
may direct that all Lease Payments due and to become due under this Agreement or
any Lease hereunder and assigned by Lessor shall be paid directly to assignee,
upon notice of such assignment to Lessee. The right of the assignee to the
payment of the assigned Lease Payments, the performance of all Lessee's
obligations and to exercise any other of Lessor's rights hereunder shall not be
subject to any defense, counterclaim or set-off which the Lessee may have or
assert against the Lessor, and the Lessee hereby agrees that it will not assert
any such defenses, set-offs, counterclaims and claims against the assignee. No
such assignment by Lessor shall relieve Lessor of its obligations or limit or
otherwise affect Lessee's rights and/or obligations hereunder.
VIII. RISK OF LOSS. Lessee hereby assumes and shall bear the entire risk of loss
(including theft, requisition of use, erasure or inoperability) or destruction
of or damage to the System from any and every cause whatsoever, whether or not
insured, until the System is returned to Lessor. No such loss or damage shall
relieve Lessee from any obligation under this Agreement or any Lease hereunder,
which shall continue in full force and effect. In the event of damage to or loss
or destruction of the System (or any item thereof), Lessee shall promptly notify
Lessor in writing of such fact and shall, at the option of Lessor, (a) place the
same in good repair, condition and working order, (b) replace the Licensed
Products and/or Equipment with like Licensed Products and/or Equipment in good
repair, condition and working order, acceptable to Lessor and transfer clear
title to or a right to use, as appropriate, such Licensed Products and/or
replacement Equipment to Lessor, whereupon such Licensed Products and/or
Equipment shall be subject to the Lease and be deemed the System for purposes
hereof, or (c) on the due date for the next Lease Payment or upon the expiration
of the Lease, whichever first occurs, pay to Lessor: the present value of the
total of all unpaid Lease Payments for the entire Lease Term plus the estimated
fair market value of the System at the end of the originally scheduled Lease
Term or the agreed upon purchase option price, if any, all of which shall be
discounted to the date of payment by Lessee at an annual rate equal to the
lesser of five percent (5%) or the rate then available for United States
Treasury obligations having an average life equal to the remaining Lease Term
("Present Value Rate"), whereupon the Lease shall terminate with respect
thereto.
IX. INSURANCE. Prior to the Lease Commencement Date, Lessee shall obtain,
maintain and keep the System insured against all risks of toss or damage, in an
amount not less than the replacement cost or Stipulated Loss Value of the
System, whichever is greater, without deductible and without co-insurance.
Lessee shall maintain such insurance coverage for the entire Lease Term. Lessee
shall also obtain and maintain for the entire Lease Term, comprehensive public
liability insurance covering liability for bodily injury, including death, and
property damage resulting from the purchase, ownership, leasing, maintenance,
use, operation or return of the System with a combined single limit of not less
than One Million Dollars ($1,000,000) per occurrence. If Lessee is a doctor,
hospital or other health care provider, Lessee shall furnish Lessor with
evidence of sufficient professional liability insurance. All said insurance
shall be in a form and an amount and with companies reasonably satisfactory to
Lessor. Lessor, its successors or assigns, shall be the sole named loss payee
with respect to insurance for damage to or loss of the System and shall be named
as an additional insured on the public liability insurance. Lessee shall pay all
premiums for such insurance and shall deliver to Lessor certificates of
insurance, or other evidence satisfactory to Lessor evidencing the insurance
required hereby, along with proof, satisfactory to Lessor, of the payment of the
premiums for such insurance policies. All insurance shall provide for at least
thirty (30) days advance written notice to Lessor before any cancellation,
expiration or material modification thereof and also provide that no act or
default of any person other than Lessor, its agents or these claiming under
Lessor, will affect Lessor's right to recover under such policy or policies in
case of loss. Lessee hereby irrevocably appoints Lessor as Lessee's
attorney-in-fact (which power shall be deemed coupled with an interest) to make
claim for, receive payment of, and execute and endorse all documents, checks or
drafts received in payment for loss or damage under any such insurance policy.
Unless Lessee is in default, Lessee may with the prior written approval of
Lessor, settle and adjust all such claims. Lessee agrees if Lessee shall fail to
procure, maintain, and pay for such insurance, Lessor shall have the right, but
not the obligation, to obtain such insurance on behalf of and at the expense of
Lessee. In the event Lessor does obtain such insurance, Lessee agrees to pay all
costs thereof with the next Lease Payment or as specified by Lessor.
X. RETURN OF SYSTEM. Lessee shall, at its sole expense, surrender each item of
the System then subject to any Lease hereunder at the expiration or earlier
termination of the Lease Term by delivering the item to the Lessor at a location
designated by the Lessor within the Continental United States. In the case of
Licensed Materials, Lessee shall terminate its use of all Licensed Materials and
assign to Lessor all of Lessee's rights under the applicable Licenses. Lessee
shall arrange for the return shipment of the System, including the Licensed
Materials, and its insurance in transit in accordance with the Lessor's
instructions and at the Lessee's sole expense.
When Licensed Products or Equipment is surrendered to the Lessor it
shall be in the condition and repair required to be maintained under this
Agreement. It will also be free of all evidence of advertising or insignia
placed on it by the Lessee and meet all legal and regulatory requirements and be
free of all liens. If Lessor reasonably determines that an item of Licensed
Products or Equipment, once it is returned, is not in the condition required
hereby, Lessor may cause the repair, service, upgrade, modification or overhaul
of the item of Licensed Products or Equipment to achieve such condition and upon
demand, Lessee shall promptly reimburse Lessor for all amounts reasonably
expended in connection with the foregoing.
Should Lessee not return the System at the end of the Lease Term,
Lessee shall continue to make Lease Payments to Lessor in the sum equal to the
last Lease Payment and at the same intervals as set out in the Lease as a
month-to-month lease term (or other term as designated by Lessor) until returned
by Lessee or until returned upon demand therefor by Lessor. The acceptance of
said Lease Payments by Lessor shall not waive Lessor's right to have the System
promptly returned to Lessor pursuant to the provisions hereof, nor shall the
acceptance of said Lease Payments be deemed to be an extension of the Lease
Term.
X1. INDEMNIFICATION. Lessee assumes and agrees to indemnify, defend and keep
harmless Lessor, its agents and employees, from and against any and all losses,
damages, injuries, claims, demands and expenses, including legal, consulting and
expert expenses (other than such as may directly and proximately result from the
gross negligence or willful misconduct of Lessor, its agents or employees),
arising on account of the ordering (whether by Acquisition Agreement or
otherwise), acquisition, delivery, installation or rejection of the System, the
possession, maintenance, use, condition (including without limitation, latent
and other defects, any claim in tort for strict liability, and any claim for
patent, trademark or copyright infringement) or operation of any item of the
System, and by whomsoever used or operated, during the Lease Term with respect
to that item of the System, the loss, damage, destruction, environmental impact,
removal, return, surrender, sale or other disposition of the System, or any item
thereof. Lessor shall give Lessee prompt notice of any claim or liability hereby
indemnified against. The obligations contained in this paragraph continue beyond
the termination of the Lease if the liability occurred during the Lease Term.
XII. LAWS, REGULATIONS AND TAXES. Lessee shall comply with all laws, regulations
and orders relating or pertaining to the System, this Agreement or any Lease
hereunder and Lessee shall be responsible for, as and when due, and shall
indemnify and hold Lessor harmless from and against all present and future taxes
and other governmental charges, or any increases therein (including, without
limitation, sales, use, leasing and stamp taxes and license and registration
fees) and amounts in lieu of such taxes and charges and any penalties or
interest on any of the foregoing, imposed, levied upon, in connection with, or
as a result of the purchase, ownership, delivery, leasing, possession or use of
the System, or based upon or measured by the Lease Payments or receipt with
respect to this Agreement or any Lease hereunder. Lessee shall not, however, be
obligated to pay any taxes on or measured by Lessor's net income. Lessee
authorizes Lessor to add to the amount of each Lease Payment any sales, use or
leasing tax that may be imposed on or measured by such Lease Payment. Lessee
shall pay Lessor on demand, as additional rent, the amount of the personal
property tax required to be paid by Lessor as owner of the System, plus
reasonable costs incurred in collecting and administering any taxes, assessments
or fees and remitting them to the appropriate authorities. in the event Lessee
does not pay all sums specified above, Lessor has the right, but not the
obligation, to pay the same. If Lessor shall so pay any of the aforementioned,
then the Lessee shall remit such amount with the next Lease Payment. Upon
direction by Lessor, Lessee shall file the personal property tax declaration;
pay the personal property tax for each System location and forward to Lessor at
Lessors request a copy of the personal property tax declaration listing the
System. The obligations contained to this Section shall continue beyond the
termination of the Lease if the obligations commenced during the Lease Term.
XIII. EVENTS OF DEFAULT. The term "Event of Default" shall mean any one or more
of the following:
(a) Lessee shall fail to make any Lease Payment, or any other payment,
as it becomes due and such failure is not cured within ten
(10) days; or
(b) Lessee shall fail to perform or observe any of the covenants set
forth in Paragraph IX; or
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XxxxxxXxxxxx.xxx Agreement Number:295293/337589
(c) Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it
hereunder or in any Lease and such failure is not cured within
30 days after the date of notice thereof by Lessor to Lessee;
or
(d) Lessee shall enter into any transaction of merger or consolidation
in which it is not the surviving entity or sell, transfer or
otherwise dispose of all or substantially all of its assets
("Assets") unless the surviving entity or the entity acquiring
such Assets assumes all the duties and obligations of Lessee
hereunder and which merger, consolidation, sale or transfer
must be approved in writing by Lessor; or
(e) (i) Lessee or any guarantor of Lessee's obligations hereunder
("Guarantor') shall commence any action (A) for relief under
any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or (B) seeking appointment of a receiver,
custodian or other similar official for it or for its assets
or making a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Lessee any
action (A) of a nature referred to in clause (i)(A) which
results in the entry of an order for relief or any such other
relief and remains undismissed or undischarged for a period of
30 days, or (B) seeking attachment, execution or similar
process against its assets which results in the entry of an
order for any such relief which shall not be vacated or
discharged within 30 days from the entry thereof; or (iii)
Lessee shall generally not, or be unable to, pay its debts as
they come due; or
(f) Lessee or any Guarantor shall die or (if an entity) liquidate or
dissolve itself or be liquidated or terminated; or
(g) Any representation or warranty made by Lessee herein or otherwise
furnished Lessor in connection with this Agreement or any
Lease hereunder shall prove at any time to have been untrue or
misleading when made in any material respect; or
(h) Lessee or any Guarantor defaults on any indebtedness for borrowed
money, lease, or installment sale obligation, in each case
when any applicable grace period for such obligation has
expired and the lender, lessor or creditor has commenced to
exercise any remedy, but only if the indebtedness or other
obligation is in an amount equal to or in excess of $50,000;
or (i) Lessor shall reasonably deem itself insecure as a
result of a material adverse change in Lessee's financial
condition, operations or ownership; or (ii) Lessee shall
default in its obligations under a License.
XIV. REMEDIES. Upon the occurrence of any Event of Default, Lessor may declare
this Agreement or any Lease hereunder to be in default and exercise any one or
more of the following remedies:
(a) declare the entire unpaid balance of Lease Payments for the
unexpired term of the Lease hereunder immediately due and
payable and similarly accelerate the balances due under any
other Leases between Lessor and Lessee without notice or
demand,
(b) xxx for and recover all Lease Payments and other monies due and to
become due under the Lease hereunder, plus the estimated fair
market value of the System at the end of the originally
scheduled Lease Teen or any agreed upon Purchase Option, all
of which shall be discounted to the date of default at the
Present Value Rate (defined in Section 8 hereof), but only to
the extent permitted by law,
(c) charge Lessee interest on all monies more than thirty days past
due Lessor at the lesser of eighteen percent (18%) per annum
or the maximum rate permitted by law from the date of default
until paid,
(d) require Lessee to assemble all Equipment and Licensed Products at
Lessee's expense, at a place reasonably designated by Lessor
and/or
(e) remove any physical obstructions for removal of the Equipment from
the place where the Equipment is located and take possession
of any or all items of System, without demand or notice,
wherever same may be located, disconnecting and separating all
such items of the System from any other property. Lessee
hereby waives any and all damages occasioned by such retaking
except such damages as may be caused by Lessors gross
negligence or willful misconduct. Lessor may, at its option,
use, ship, store or repair any or all items of the System so
removed and shall sell, lease or otherwise dispose of any such
System at a private or public sale. In the event Lessor
disposes of the System, Lessor shall give Lessee credit for
any sums received by Lessor from the sale or lease of the
System after deduction of the expenses of sale or lease.
Lessee shall also be liable for and shall pay to Lessor (i)
all expenses incurred by Lessor in connection with the
enforcement of any of Lessor's remedies, including all
expenses of repossessing, storing, shipping, repairing and
selling the System, and (ii) Lessor's reasonable attorney's
fees. Lessor and Lessee acknowledge the difficulty in
establishing a value for the unexpired Lease Term and owing to
such difficulty agree that the provisions of this paragraph
represent an agreed measure of damages and are not to be
deemed a forfeiture or penalty.
Whenever any payment is not made by Lessee when due hereunder, Lessee
agrees to pay to Lessor, not later than one month thereafter, an amount
calculated at the rate of five cents per one dollar for each such delayed
payment as compensation for Lessor's internal operating expenses arising as a
result of such delayed payment, but only to the extent permitted by law. Such
amount shall be payable in addition to all amounts payable by Lessee as a result
of the exercise of any of the remedies herein provided.
All remedies of Lessor hereunder are cumulative, are in addition to any
other remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy or to preclude the exercise of any
other remedy. No failure on the part of the Lessor to exercise and no delay in
exercising any right or remedy shall operate as a waiver thereof or modify the
terms of this Agreement or any Lease hereunder. A waiver of default shall not be
a waiver of any other or subsequent default. Lessor's recovery hereunder shall
in no event exceed the maximum recovery permitted by law.
XV. UCC FILINGS. Lessor and Lessee agree that a carbon, photographic or other
reproduction of this Agreement or any Lease hereunder may be filed as a
financing statement and shall be sufficient as a financing statement under the
Uniform Commercial Code ("UCC") or other applicable law. Lessee hereby appoints
Lessor as Lessee's attorney-in-fact to execute such financing statement on
Lessee's behalf and to do all acts or things which Lessor may deem necessary to
protect, perfect and maintain Lessor's title and interest in the System and
hereunder. It is the intent of the parties that this is a true lease, and the
filing of a financing statement under the UCC or other applicable law shall not
be construed as evidence that any security interest was intended to be created,
but only to give public notice of Lessors ownership of the System. If this
Agreement or any Lease hereunder is deemed at any time to be one intended as
security then Lessee grants Lessor a security interest in the System and the
proceeds from the sale, lease or other disposition of the System. Lessee agrees
to pay Lessor a fee to reimburse Lessor's expenses for the preparation and
filing of all such financing statements as Lessor may reasonably deem necessary
and for Lessor's Other documentation costs.
XVI. LESSEE REPRESENTATIONS AND WARRANTIES. Lessee hereby represents, warrants
and covenants to Lessor the following with respect to each Lease as of the date
Lessee executes the Delivery and Acceptance Receipt related thereto:
(a) Lessee is organized and validly existing under the laws of the
state of its organization, with adequate power and capacity to
enter into the Lease, all documents related to the purchase of
the System and any other documents required to be delivered in
connection with the Lease or the System (hereinafter
"Documents") and is duly qualified to do business wherever
necessary to carry on its present business, including all
states where the System is to be located;
(b) the Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements of
Lessee, enforceable in accordance with their terms, except as
may be limited under applicable bankruptcy and insolvency
laws;
(c) no approval, consent or withholding of objections is required from
any federal, state or local governmental authority or
instrumentality with respect to the entry into or performance
by Lessee of the Documents, except such as have already been
obtained;
(d) the entry into and performance by Lessee of its obligations under
the Documents will not (i) violate any judgment, order, law or
regulation applicable to Lessee or (ii) result in any breach
of, constitute a default under or result in the creation of
any lien, charge, security interest or other encumbrance upon
any item of the System pursuant to any indenture, mortgage,
deed of trust, bank loan or credit agreement or other
instrument (other than the Lease or any purchase money
security interest retained by any supplier) to which Lessee is
a party;
(e) there are no suits or proceedings pending or threatened in court
or before any regulatory commission, board or other
administrative governmental agency against or affecting
Lessee, which will have a material adverse effect on the
ability of Lessee to fulfill its obligations under the Lease;
and
(f) the balance sheet and statement of income of Lessee, or of any
consolidated group of which Lessee is a member, heretofore
delivered to Lessor have been prepared in accordance with
generally accepted accounting principles and fairly present
the financial position of Lessee or the consolidated group of
companies of which Lessee is a member on and as of the date
thereof and the results of its or their operations for the
period or periods covered thereby. Since the date of such
balance sheet and statement of income there has been no
material adverse change in the financial or operating
condition of Lessee or of its consolidated group. Lessee
hereby warrants and represents that the System will be used
for business purposes, and not for personal, family or
household purposes. Lessee acknowledges that Lessor has relied
upon this representation in entering into this Agreement and
each Lease hereunder.
XVII. NOTICES. Written notices to be given hereunder shall be deemed to have
been given when delivered personally or deposited in the United States mails or
nationally recognized delivery service, postage prepaid, addressed to such party
at its address set forth above or at such other address as such party may have
subsequently provided in writing.
XVIII. CHOICE OF LAW. This Agreement and each Lease hereunder shall be deemed to
have been made in California and, except for local filing requirements and laws
relating to conflict of laws, shall be governed by and construed in accordance
with the laws of the State of California. Lessee hereby consents to and agrees
that personal jurisdiction over Lessee and subject matter jurisdiction over the
System shall be with the state or federal courts in California with respect to
any provision of this Agreement or any Lease hereunder. Lessee agrees that
service of process in any action or proceeding may be duly effected upon Lessee
by mailing such process via certified mail, return receipt requested. Lessee
also agrees to waive its right to a trial by jury.
X1X. SUPPLIER'S CONTRACT AND LESSEE'S WAIVERS. Lessor and Lessee agree that each
Lease is a Finance Lease as that term is defined in Article 2A of the UCC.
Lessee acknowledges that Lessor has apprised Lessee of the identity of the
System supplier. Lessor hereby notifies Lessee that Lessee may have rights
pursuant to
3
XxxxxxXxxxxx.xxx Agreement Number:295293/337589
the contract with the supplier and Lessee may contact the supplier
for a description of any rights or warranties that Lessee may have under this
contract, including any limitations therein. Lessee hereby waives any and all
rights and remedies granted Lessee by Sections 303 and 508 through 522 of
Article 2A of the UCC. The waivers contained herein shall not constitute a
waiver by Lessee of any of its rights or remedies against the Vendor of the
System. By initialing this provision, Lessee agrees that to the extent required
by Section 208 of Article 2A of the UCC, Lessor has complied with any
requirement for a separately signed document.
XX. ENTIRE AGREEMENT, NON-WAIVER AND SEVERABILITY. This Agreement and each Lease
hereunder contain the entire agreement and understanding between Lessee and
Lessor relating to the subject matter of each Lease. No agreements or
understandings shall be binding on the parties hereto unless set forth in
writing and signed by the parties. All obligations of the Lessee, if more than
one, shall be joint and several. Time is of the essence in this Agreement and
each Lease hereunder. No waiver by Lessor of any breach or default shall
constitute a waiver of any additional or subsequent breach or default by Lessor
nor shall it be a waiver of any of Lessors rights. Any provision of this
Agreement or any Lease hereunder which for any reason may be held unenforceable
in any one jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such unenforceability without invalidating the remaining provisions of
this Agreement or any Lease hereunder, and any such unenforceability in any one
jurisdiction shall not render such provision unenforceable in any other
jurisdiction.
XXI. FINANCIAL STATEMENTS. Lessee agrees to submit financial statements or tax
returns if its financial statements are unaudited within 90 days from the end of
its fiscal year and Lessee warrants to Lessor that all financial statements
furnished and to be furnished have been and will be prepared in accordance with
generally accepted accounting principles, are an accurate reflection of Lessee's
financial condition and that there has been no material adverse change in the
financial condition of Lessee or any guarantor of Lessee's obligations since the
dates of preparation and submission of the financial statements submitted to
Lessor. Lessee agrees to deliver to Lessor at any time or times hereafter such
information or documents, including, without limitation, certified resolutions,
financial statements and legal opinions, as Lessor may request.
XXII. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives as of the date first above
written.
LESSEE: GTS/HDD INC. LESSOR: XXXXXXXXXXXX.XXX INC.
By: /s/ Xxxxx Xxxxxxxx By:
---------------------------------- ----------------------------------
Print Name: Xxxxx X. Xxxxxxxx Print Name:
------------------------- --------------------------
Title: President Title:
------------------------- -------------------------------
Date: Date:
------------------------- --------------------------------
4
XxxxxxXxxxxx.xxx Agreement Number:295293/337589
ADDENDUM
This Addendum is supplemental to and made part of Master Lease Agreement Number
295293/337589 dated and Master Lease Schedule Number 337589 (together, the
"Lease") between GTS/HDD, Inc. ("Lessee") and XxxxxxXxxxxx.xxx Inc. dba First
Sierra Financial, Inc. ("Lessor") and all related documentation. Lessee and
Lessor hereby agree that the Lease is amended with respect to the changes listed
below:
"LESSEE, provided that it is not in default under the Lease, shall have the
option to purchase all of the Equipment described in said Lease Schedule (and
not merely part thereof) upon the initial expiration of the LEASE for one final
payment of one dollar ($1.00), plus applicable sales tax (and any other
additional amounts due and owing under the LEASE), if any. Upon receipt by
LESSOR and/or Lessor's assignee of the full purchase price plus any other sums
due and owing, LESSOR and/or Lessor's assignee will furnish LESSEE with a xxxx
of sale warranting good title to the Equipment, but excepting any impairment
thereof by reason of any acts by LESSEE or those making claims against LESSEE.
The xxxx of sale will also provide that the purchase shall be "as is", "where
is" and without any other warranties, expressed or implied."
In all other respects, the terms and conditions of the Lease, as originally set
forth, shall remain in full force and effect.
In witness whereof the parties hereto by their authorized signatories, have
executed this addendum at the date set forth below their respective names.
LESSEE: GTS/HDD Inc. LESSOR: XXXXXXXXXXXX.XXX INC.
By: /s/ Xxxxx Xxxxxxxx By:
--------------------------------- ------------------------------
Printed Name: Xxxxx X. Xxxxxxxx Printed Name:_____________________
Title: President Title:____________________________
Date:__________________________________ Date:_____________________________
1
XxxxxxXxxxxx.xxx Agreement Number:295293/337589
MASTER LEASE SCHEDULE
By and Between
XXXXXXXXXXXX.XXX INC.
and
GTS/HDD,Inc.
This MASTER LEASE SCHEDULE NUMBER 295293/337589 ("Lease") is by and
between XxxxxxXxxxxx.xxx Inc., ("Lessor") and GTS/HDD. Inc., ("Lessee") and
incorporates the terms and conditions of that certain blaster Lease Agreement
dated as of between Lessor and Lessee ("Master Lease"). Lessor hereby leases to
Lessee and Lessee hereby leases from Lessor the following described items of
Equipment and/or Licensed Products for the Lease Term and on terms and
conditions set forth herein. The Lease shall become effective as against Lessor
upon Lessors execution hereof.
I. EQUIPMENT DESCRIPTION:
Quantity Item Model/Serial No.
-------- ---- ----------------
See attached invoice (s) see attached invoice (s)
AGGREGATE ACQUISITION AMOUNT: $320,000.00
EQUIPMENT LOCATION: BILLING ADDRESS:
------------------ ---------------
00000 Xxxxxxxxxx Xxxx, 000 Xxxxxxxx Xxxx,
Xxxxxxxx XX 00000 Xx Xxxxx XX 00000
II. LEASE TERM: The Lease shall commence on the day that Lessee executes a
Delivery and Acceptance Certificate with respect to the Equipment
("Commencement Date"). The Base Lease Term of the Lease shall be for the
term indicated below and shall commence on the first day of the calendar
month following the Commencement Date ("Base Term Commencement Date").
BASE LEASE TERM: 37 months
III. LEASE PAYMENTS:
(a) Base Term Rent consists of the following monthly payments: [ ] Indicated
by an "X" if
in arrears
Month(s) Amount Taxes Total
1 $26,000.00 $2,145.00 $28,145.00
followed by
3 $2,000.00 $165.00 $2,165.00
followed by
33 $10,885.00 $898.01 $11.783.01
The first installment of Base Term Rent shall be due and payable upon the
earlier of (i) the date specified in Lessor's invoice thereto;, or
(ii) the Base Term Commencement Date.
(b) Interim Rent is due and payable in full on the date specified in Lessors
invoices) therefor and shall be computed by dividing one payment of Base
Term Rent by thirty (30) and multiplying the result by the number of days
from and including the Commencement Date to the day preceding the Base
Term Commencement Date.
(c) On or before the Commencement Date, Lessee shall pay Lessor an amount
equal to $28,145.00 ("Advance Payment"). The Advance Payment shall be
applied to Lessee's first one Base Term Rent Payment, with any balance to
be applied to the first and subsequent Base Term Rent payments.
IV. INDEX RATE: The Lease Payments set forth in Section 3 hereof are based
upon n/a ( ) year United States Treasury obligations, which had an annual
yield to maturity of n/a % (index Rate). Lessor reserves the right to
adjust the Lease Payments to reflect any changes in the Index Rate as of
the Commencement Date.
V. ADDITIONAL PROVISIONS: Lessee will have the option to purchase the
equipment at the expiration of the lease at its then Fair Market Value
plus any applicable fees and taxes unless the parties agree otherwise by
written addendum to the lease and provided that each and every of the
obligations of the Lessee are timely performed and fulfilled. Transfer of
the equipment by Lessor to Lessee, including title and security interest,
will be "as is, where is, without any representation or warranty.
LESSEE: GTS/HDD INC. LESSOR: XXXXXXXXXXXX.XXX INC.
By: /s/ Xxxxx Xxxxxxxx By:
----------------------------------- -------------------------------
Print Name: Xxxxx X. Xxxxxxxx Print Name:
--------------------------- -----------------------
Title: President Title:
--------------------------- ----------------------------
Date: Date:
--------------------------- -----------------------------
to be completed by Lessor when known)
Lease #___________Commencement Date________Base Term Commencement Date:________
1
