EXHIBIT 10.6
MASTER EQUIPMENT LEASE NO. 0034
Under this Master Equipment Lease No. 0034 (the "Lease"), dated as of September
9, 1996, PHOENIX LEASING INCORPORATED, a California corporation ('Lessor'),
hereby leases to ALTEON NETWORKS, INC., a Delaware corporation ('Lessee'), and
Lessee hereby leases from Lessor, the equipment, including certain items
generally considered fungible or expendable ("Soft Costs") (the equipment and
Soft Costs being herein together called "Equipment') which is described on the
schedule attached hereto or any subsequently-executed schedule entered into by
Lessor and Lessee and which incorporates this Lease by reference. Any such
schedules shall hereinafter individually be referred to as a 'Schedule" and
collectively be referred to as the "Schedules." Lessor hereby leases the
Equipment to Lessee upon the following terms and conditions:
1. TERM OF AGREEMENT. The term of this Lease begins on the date set forth
above and shall continue thereafter and be in effect so long as and at any time
any Schedule entered into pursuant to this Lease is in effect. The Initial Term
and rent payable with respect to each leased item of Equipment shall be as set
forth in and as stated in the respective Schedule(s). The terms of each Schedule
hereto are subject to all conditions and provisions of this Lease as it may at
any time be amended. Each Schedule shall constitute a separate and independent
lease and contractual obligation of Lessee and shall incorporate the terms and
conditions of this Master Equipment Lease and any additional provisions
contained in such Schedule. In the event of a conflict between the terms and
conditions of this Lease and any additional provisions of such Schedule, the
additional provisions of such Schedule shall prevail with respect to such
Schedule only.
2. NON-CANCELLABLE LEASE. This Lease and any Schedule cannot be cancelled
or terminated except as expressly provided herein. This Lease (including all
Schedules to this Lease) constitutes a net lease and Lessee agrees that its
obligations to pay all rent and other sums payable hereunder (and under any
Schedule) and the rights of Lessor and assignee in and to such rent and other
sums, 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, the manufacturer or seller of the Equipment, or
against any person for any reason whatsoever.
3. LESSOR COMMITMENT. So long as no Event of Default or event which with
the giving of notice or passage of time, or both, could become an Event of
Default has occurred or is continuing, Lessor agrees to lease to Lessee the
groups of Equipment described on each Schedule, subject to the following
conditions: (i) that in no event shall Lessor be obligated to lease Equipment to
Lessee hereunder where the aggregate purchase price of all Equipment leased to
Lessee hereunder would exceed $1,000,000 ('Commitment") of which amount Lessor
may finance Soft Costs for lease to Lessee having an aggregate purchase price
not exceeding an amount equal to 20% of the utilized Commitment; (ii) the amount
of Equipment purchased by Lessor at any one time shall be at least equal to
$25,000 except for a final advance which may be less than $25,000; (iii) Lessor
shall not be obligated to purchase Equipment hereunder after March 31, 1997,
provided that the funding period may be extended to October 31, 1997 (the
"Commitment Termination Date") if Lessor has received and approved in its sole
discretion (yy)
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Lessee's monthly calendar 1997 business plan ("1997 Monthly Business Plan") and
(zz) hard copy evidence of Lessee's receipt of a $5,850,000 equity financing or
alternative financial measure agreeable to Lessor in its sole discretion; (iv)
all Lease documentation required by Lessor has been executed by Lessee or
provided by Lessee no later than October 15, 1996; (v) the equipment described
on the Schedule is acceptable to Lessor; (vi) with respect to each funding
Lessee has provided to Lessor each of the closing documents and other items
described in Exhibit A hereto (which documents shall be in form and substance
reasonably acceptable to Lessor) and which list may be modified for each
subsequent funding as reasonably requested by Lessor to perfect its lien in the
Equipment; (vii) there is no material adverse change in Lessee's condition,
financial or otherwise, as determined by Lessor, and Lessee so certifies, from
(yy) the date of the most recent financial statements delivered by Lessee to
Lessor prior to execution of this Lease, to (zz) the date of the proposed lease
of the Equipment; (viii) at all fundings Lessee is performing substantially
according to its quarterly business plan referred to as 'Projected Income
Statement for Fiscal 1997 (7/1/96 to 6/30/97), Projected Balance Sheet for
Fiscal 1997 (7/1/96 to 6/30/97) and Projected Cash Flow Statement for Fiscal
1997 (7/1/96 to 6/30/97)' dated August 1, 1996, as may be amended by Lessee's
1997 Monthly Business Plan and otherwise from time to time in form and substance
acceptable to Lessor (collectively, "Business Plan") which Business Plan Lessee
agrees to provide through December 31, 1997; (ix) Lessor or its agent has
inspected and placed identification labels on the Equipment; (x) Lessee shall
offer to Lessor, on an exclusive basis, all lease transactions for equipment
contemplated by Lessee until the Commitment Termination Date; however if Lessor
declines to finance any such transaction or Lessee and Lessor cannot agree upon
terms within five (5) business days, then Lessee shall be free to seek such
financing from any other third party; and (xi) Lessor has received in form and
substance acceptable to Lessor: (a) Lessee's interim financial statements signed
by a financial officer of Lessee; (b) for fundings after March 31, 1997, hard
copy evidence of Lessee's receipt of $5,850,000 equity or alternative financial
measure agreeable to Lessor in its sole discretion prior to March 31, 1997; (c)
hard copy evidence of Lessee's $3,860,000 cash position as of June 30, 1996; and
(d) Lessee's corporate resolution authorizing the transaction set forth herein.
4. NO WARRANTIES BY LESSOR. (a) Lessee has selected both (i) the
Equipment and (ii) the suppliers (herein called "Vendor") from whom Lessor is to
purchase the Equipment. 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" AND WITH ALL FAULTS. (b) If the Equipment is not properly
installed, does not operate as represented or warranted by Vendor or is
unsatisfactory for any reason, Lessee shall make any claim on account thereof
solely against Vendor and shall, nevertheless, pay Lessor all rent payable under
this Lease, Lessee hereby waiving any such claims as against Lessor. Lessor
hereby agrees to assign to Lessee solely for the purpose of making and
prosecuting any said claim, to the extent assignable, all of the rights which
Lessor has against Vendor for breach of warranty or other representation
respecting the Equipment. Lessor shall have no responsibility for delay or
failure to fill the order. (c) Lessee understands and agrees that neither the
Vendor nor any salesman or other agent of the Vendor is an agent of Lessor. No
salesman or agent of Vendor is authorized to waive or alter any term or
condition of this Lease, and no representations as to the Equipment or any other
matter by the Vendor shall in any way affect Lessee's duty to pay the rent and
perform its other obligations as set forth in this Lease. (d) Lessee hereby
requests Lessor to purchase Equipment from Vendor
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and to lease Equipment to Lessee on the terms and conditions of the Lease set
forth herein. (e) Lessee hereby authorizes Lessor to insert in this Lease and
each Schedule hereto the serial numbers and other identification data of the
Equipment when determined by Lessor.
5. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and
warrants that (a) it is a corporation in good standing under the laws of the
state of its incorporation, and duly qualified to do business, and will remain
duly qualified during the term of this Lease, in each state where the Equipment
will be located, as specified on each Schedule hereto; (b) it has full authority
to execute and deliver this Lease and perform the terms hereof, and this Lease
has been duly authorized and constitutes valid and binding obligations of Lessee
enforceable in accordance with its terms; (c) this Lease will not contravene any
law, regulation or judgment affecting Lessee or result in any breach of any
material agreement or other material instrument binding on Lessee; (d) no
consent of Lessee's shareholders or holder of any indebtedness, or filing with,
or approval of, any governmental agency or commission, is a condition to the
performance of the terms hereof; (e) there is no action or proceeding pending or
threatened against Lessee before any court or administrative agency which might
have a materially adverse effect on the business, financial condition or
operations of Lessee; (f) no deed of trust, mortgage or third party interest
arising through Lessee will attach to the Equipment or the Lease; (g) the
Equipment will remain at all times under applicable law, removable personal
property, free and clear of any lien or encumbrance in favor of Lessee or any
other person, notwithstanding the manner in which the Equipment may be attached
to any real property; (h) all credit, financial and any other information
submitted to Lessor herewith or any other time is true and correct; and (i)
Lessee has provided, or will provide if requested, Lessee's tax identification
number.
6. EQUIPMENT ORDERING. Lessee shall be responsible for all packing,
rigging, transportation and installation charges for the Equipment and Lessor
may separately invoice Lessee for such charges. Lessee has selected the
Equipment itself and shall arrange for delivery of Equipment so that it can be
accepted in accordance with Section 7 hereof. Lessee hereby agrees to indemnify
and hold Lessor harmless from any claims, liabilities, costs and expenses (other
than claims, liabilities, costs and expenses arising out of Lessor's gross
negligence or willful misconduct), including reasonable attorneys' fees,
incurred by Lessor arising out of any purchase orders or assignments executed by
Lessor with respect to any Equipment or services relating thereto.
7. LESSEE ACCEPTANCE. Lessee shall return to Lessor the signed and dated
Acceptance Notice attached to each Schedule hereto (a) acknowledging the
Equipment has been received, installed and is ready for use and (b) accepting it
as satisfactory in all respects for the purposes of this Lease. Lessor is
authorized to fill in the Rent Start Date on each Schedule in accordance with
the foregoing.
8. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to and
shall not be removed from the Equipment "Location" shown on each Schedule
without prior written notice to Lessor, which "Location" shall in all events be
at Lessee's business offices within the United States provided, however, any
laptop computers with a cumulative original purchase price not exceeding
approximately $50,000, may be temporarily removed from the Location. Lessee
agrees to promptly execute any necessary or appropriate UCC financing
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statements or amendments and agrees to use its best efforts to obtain a landlord
waiver and consent from the landlord of any new Location if the "Location" of
the Equipment is changed. Lessor shall have the right to inspect Equipment at
any reasonable time. Lessee shall be responsible for all labor, material and
freight charges incurred in connection with any removal or relocation of such
Equipment which is requested by the Lessee and consented to by Lessor, as well
as for any charges due to the installation or moving of the Equipment. The
rental payments shall continue during any period in which the Equipment is in
transit during a relocation. Lessor or its agent shall xxxx and label Equipment,
which labels shall state Equipment is owned by Lessor, and Lessee shall keep
such labels on the Equipment as labeled by Lessor or its agent.
9. EQUIPMENT MAINTENANCE. (a) General. Lessee will locate or base each
item of Equipment where designated in an Acceptance Notice and will reasonably
permit Lessor to inspect such item of Equipment and its maintenance records.
Lessee will at its sole expense comply with all applicable laws, rules,
regulations, requirements and orders with respect to the use, maintenance,
repair, condition, storage and operation of each item of Equipment. Except as
required herein, Lessee will not make any addition or improvement to any item of
Equipment that is not readily removable without causing material damage to any
item or impairing its original value or utility. Any addition or improvement
that cannot be so removed will immediately become the property of Lessor if
financed by Lessor or if financed by Lessee, shall become the property of Lessor
if the Equipment is returned to Lessor pursuant to Section 17 hereof. (b)
Service and Repair. With respect to computer equipment, other than personal
computers, Lessee has entered into, and will maintain in effect, Vendor's
standard maintenance contract or another contract satisfactory to Lessor for a
period equal to the term of each Schedule and extensions thereto which provides
for the maintenance of the Equipment and repairs and replacement parts thereof
in good condition and working order, all in accordance with the terms of such
maintenance contract. Lessee shall have the Equipment certified for the Vendor's
standard maintenance agreement prior to delivery to Lessor upon expiration of
this Lease. With respect to any other Equipment, Lessee will, at its sole
expense, maintain and service, and repair any damage to, each item of Equipment
in a manner consistent with prudent industry practice and Lessee's own practice
so that such item of Equipment is at all times (i) in the same condition as when
delivered to Lessee, except for ordinary wear and tear, (ii) in good operating
order for the function intended by its manufacturer's warranties and
recommendations.
10. LOSS OR DAMAGE. Lessee assumes the entire risk of loss to the
Equipment through use, operation or otherwise. Lessee hereby indemnifies and
holds harmless Lessor from and against all claims, loss of rental payments,
costs, damages, and expenses relating to or resulting from any loss, damage or
destruction of the Equipment, any such occurrence being hereinafter called a
"Casualty Occurrence.' On the first rental payment date following such Casualty
Occurrence, or, if there is no such rental payment date, thirty (30) days after
such Casualty Occurrence, Lessee shall (i) repair the Equipment, returning it to
good operating condition or (ii) replace the Equipment with identical or
substantially similar equipment of equal value in good condition and repair, the
title to which shall vest in Lessor and which thereafter shall be subject to the
terms of this 'Lease; or (iii) pay to Lessor (a) any unpaid accrued amounts
relating to such Equipment due Lessor under this Lease up to the date of the
Casualty Occurrence, and (b) a sum equal to the Casualty Value as set forth in
the Casualty Value table attached to each Schedule hereto for such Equipment.
Upon the making of such payment, the
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term of this Lease as to each unit of Equipment with respect to which the
Casualty Value was paid shall terminate.
11. GENERAL INDEMNITY. Lessee will protect, indemnify and save harmless
Lessor from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (collectively, "Liabilities"),
imposed upon or incurred by or asserted against Lessor or any assignee of Lessor
by Lessee or any third party by reason of the occurrence or existence (or
alleged occurrence or existence) of any act or event relating to or caused by
the Equipment, including but not limited to, consequential or special damages of
any kind, or any failure on the part of Lessee to perform or comply with any of
the terms of this Lease; provided, that notwithstanding the foregoing, Lessee
shall not be required to indemnify Lessor for any Liabilities arising out of
Lessor's gross negligence or willful misconduct. In the event that any action,
suit or proceeding is brought against Lessor by reason of any such occurrence,
Lessee, upon request of Lessor, will at Lessee's expense resist and defend such
action, suit or proceeding or cause the same to be resisted and defended by
counsel designated and approved 'by Lessor and reasonably acceptable to Lessee.
Lessee's obligations under this Section 11 shall survive the expiration of this
Lease with respect to acts or events occurring or alleged to have occurred prior
to the purchase by Lessee of the Equipment at the end of the Lease term pursuant
to Section 36 hereof, or earlier return of the Equipment to Lessor pursuant to
the terms and conditions of this Lease.
12. INSURANCE. Lessee at its expense shall keep the Equipment insured for
the entire term and any extensions of this Lease against all risks for at least
the replacement value of such Equipment and shall provide for a loss payable
endorsement to Lessor or any assignee of Lessor. Lessee shall maintain
comprehensive general public liability insurance with respect to loss or damage
for personal injury, death or property damage in an amount not less than
$2,000,000 per occurrence, naming Lessor or any assignee of Lessor as additional
insured. Such insurance shall contain insurer's agreement to give thirty (30)
days written notice to Lessor before cancellation or material change of any
policy of insurance. Lessee will provide Lessor and any assignee of Lessor with
certificate of insurance from the insurer evidencing Lessor's or such assignee's
interest in the policy of insurance. Such insurance shall cover any Casualty
Occurrence to any unit of Equipment. Notwithstanding anything in Section 10 or
this Section 12 to the contrary, this Lease and Lessee's obligations hereunder
and under each Schedule shall remain in full force and effect with respect to
any unit of Equipment which is not subject to a Casualty Occurrence. If Lessee
fails to provide or maintain insurance as require, herein, Lessor shall have the
right, but shall not be obligated to obtain such insurance In that event, Lessee
shall pay to Lessor the cost thereof.
13. TAXES. Lessee agrees to reimburse Lessor for, (or pay directly if
instructed by Lessor), and agrees to indemnify and hold Lessor harmless from,
all fees (including but not limited to, license, documentation, recording and
registration fees), and al sales, use, gross receipts, personal property,
occupational, value added or other taxes levies, imposts, duties, assessments,
charges, or withholdings of any nature whatsoever together with any penalties,
fines, additions to tax, or interest thereon (all of the foregoing being
hereafter referred to as "Impositions") except same as may be attributable to
Lessor's income, arising at any time prior to or during the term of this Lease,
or upon termination or early termination of this Lease and levied or imposed
upon Lessor directly or otherwise by any Federal, state or local government in
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the United States or by any foreign country or foreign or international taxing
authority upon or with respect to (i) the Equipment, (ii) the exportation,
importation, registration, purchase, ownership delivery, leasing, possession,
use, operation, storage, maintenance, repair, return, sale transfer of title, or
other disposition thereof, (iii) the rentals, receipts, or earning arising from
the Equipment, or any disposition of the rights to such rentals, receipts, or
earnings, (iv) any payment pursuant to this Lease, and (v) this Lease or the
transaction or any part thereof. Lessee's obligations under this Section 13
shall survive the expiration of this Lease with respect to acts or events
occurring or alleged to have occurred prior to the return of the Equipment to
Lessor at the end of the Lease term.
14. PAYMENT BY LESSOR. If Lessee shall fail to make any payment or perform
any act required hereunder, then Lessor may, but shall not be required to, after
such notice to Lessee as is reasonable under the circumstances, make such
payment or perform such act with the same effect as if made or performed by
Lessee. Lessee will upon demand reimburse Lessor for all sums paid and all costs
and expenses incurred in connection with the performance of any such act.
15. SURRENDER OF EQUIPMENT. Subject to Section 36 hereof, upon termination
or expiration of this Lease, with respect to each group of Equipment, Lessee
will forthwith surrender the Equipment to Lessor delivered in as good order and
condition as originally delivered, reasonable wear and tear excepted. Lessor
may, at its sole option, arrange for removal and transportation of the Equipment
provided that Lessee's obligations under Sections 10, 11 and 12 shall not be
released. Subject to Section 36, Lessee's obligations under Sections 10 and 12
shall be released upon Lessee's surrender of the Equipment to Lessor in the
condition required pursuant to this Section 15. Lessee shall bear all expenses
of delivering (which include, but are not limited to, the de-installation,
insurance, packaging and transportation of) the Equipment to Lessor's location
or other location within California as Lessor may request. In the event Lessee
fails to deliver the Equipment as directed above, all obligations of Lessee
under this Lease, including rental payments, shall remain in full force and
effect until Lessee delivers the Equipment to Lessor.
16. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUCH CONSENT NOT
TO BE UNREASONABLY WIT--.n, LESSEE SHALL NOT (a) ASSIGN, TRANSFER, PLEDGE,
HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE, EQUIPMENT, OR ANY INTEREST
THEREIN, OR (b) SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES; PROVIDED, HOWEVER, THAT NO CONSENT SHALL BE
REQUIRED IN CONNECTION WITH A MERGER, CONSOLIDATION OR TRANSFER IN WHICH THE
SURVIVOR OR ACQUIRING PARTY HAS A FINANCIAL. CONDITION GREATER THAN OR EQUAL TO
THE FINANCIAL. CONDITION OF LESSEE AS OF THE DATE OF THIS AGREEMENT AS
DETERMINED IN GOOD FAITH BY LESSOR. LESSOR NAY ASSIGN THIS LEASE OR GRANT A
SECURITY INTEREST IN ANY OR ALL EQUIPMENT, OR BOTH. IN WHOLE OR IN PART TO ONE
OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO LESSEE; PROVIDED THAT
NOTWITHSTANDING ANY ASSIGNMENT BY LESSOR, LESSOR SHALL NOT BE RELIEVED OF ITS
DUTIES AND OBLIGATIONS HEREUNDER. If Lessee is given notice of such assignment
it agrees
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to acknowledge receipt thereof in writing and Lessee shall execute such
additional documentation as Lessor's assignee shall reasonably require in order
to reflect such assignment. Each such assignee and/or secured party shall have
all of the rights, but none of the obligations, of Lessor under this Lease,
unless such assignee or secured party expressly agrees to assume such
obligations in writing. Lessee shall not assert against any assignee and/or
secured party any defense, counterclaim or offset that Lessee may have against
Lessor. Notwithstanding any such assignment, and providing no Event of Default
has occurred and is continuing, Lessor, or its assignees, secured parties, or
their agents or assigns, shall not interfere with Lessee's right to quietly
enjoy use of Equipment subject to the terms and conditions of this Lease.
Subject to the foregoing, this Lease inures to the benefit of and is binding
upon the successors and assignees of the parties hereto. Lessee acknowledges
that any such assignment by Lessor will not materially change Lessee's duties or
obligations under the Lease or increase any burden of risk on Lessee.
17. DEFAULT.
(a) Event of Default. Any of the following events or conditions shall
constitute an "Event of Default" hereunder: (i) Lessee's failure to pay any
monies due to Lessor hereunder or under any Schedule beyond the fifth (5th) day
after the same is due; (ii) Lessee's failure to comply with its obligations
under Section 12 or Section 16; (iii) Lessee's failure to comply with or perform
any term, covenant, condition, warranty or representation of this Lease or any
Schedule hereto or under any other agreement between Lessee and Lessor or under
any lease of real property covering the location of Equipment if such failure to
comply or perform is not cured by Lessee within thirty (30) days of receipt of
notice thereof; (iv) seizure of the Equipment under legal process; (v) the
filing by or against Lessee of a petition for reorganization or liquidation
under the Bankruptcy Code or any amendment thereto or under any other insolvency
law providing for the relief of debtors, which, in the case of an involuntary
proceeding, is not dismissed within sixty (60) days after commencement; (vi) the
voluntary or involuntary making of an assignment of a substantial portion of its
assets by Lessee, or any guarantor ("Guarantor") under any guaranty executed in
connection with this Lease ('Guaranty'), for the benefit of its creditors, the
appointment of a receiver or trustee for Lessee or any Guarantor for any of
Lessee's or Guarantor's assets, the institution by or against Lessee or any
Guarantor of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Lessee or any
Guarantor, provided that in the case of all such involuntary proceedings, same
are not dismissed within sixty (60) days after commencement; or (vii) the making
by Lessee or any Guarantor of a transfer of all or a material portion of
Lessee's or Guarantor's assets or inventory not in the ordinary course of
business.
(b) Remedies. If any Event of Default shall have occurred and be
continuing:
(i) Lessor may proceed by appropriate court action or actions
either at law or in equity to enforce performance by Lessee, of the applicable
covenants of this Lease, or to recover damages therefor: or
(ii) Lessee will, without demand, on the next rent payment date
following the Event of Default, pay to Lessor as liquidated damages which the
parties agree are fair and reasonable under the circumstances existing at the
time this Lease is entered into, and
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not as a penalty, an amount equal to the Casualty Value of the Equipment set
forth in Exhibit C together with any rent or other amounts past due and owing by
Lessee hereunder; and
(iii) Lessor may, without notice to or demand upon Lessee;
(a) Take possession of the Equipment and lease or sell the same or
any portion thereof, for such period, amount, and to such entity as Lessor shall
elect. The proceeds of such lease or sale will be applied by Lessor (A) first,
to pay all costs and expenses, including reasonable legal fees and
disbursements, incurred by Lessor as a result of the default and the exercise of
its remedies with respect thereto, (B) second, to pay Lessor an amount equal to
any unpaid rent or other amounts past due and payable plus the Casualty Value,
to the extent not previously paid by Lessee, and (C) third, to reimburse Lessee
for the Casualty Value to the extent previously paid. Any surplus remaining
thereafter will be paid to Lessee.
(b) Take possession of the Equipment and hold and keep idle the same
or any portion thereof.
Lessee agrees to pay all out-of-pocket costs of Lessor related to
the exercise of its remedies, including out-of-pocket legal fees and expenses.
At Lessor's request, Lessee shall assemble the Equipment and make it available
to Lessor at such location in California as Lessor may designate. Lessee waives
any right it may have to redeem the Equipment.
Repossession of any or all Equipment shall not terminate this
Lease or any Schedule unless Lessor notifies Lessee in writing. Any amount
required to be paid under this Section shall be increased by a service charge at
the rate of 1.5% per month, or the highest rate of interest permitted by
applicable law, whichever is less, accruing from the date the Casualty Value or
other amounts are payable hereunder until such amounts are paid.
None of the above remedies is intended to be exclusive, but each
is cumulative and in addition to any other remedy available to Lessor, and all
may be enforced separately or concurrently.
18. LATE PAYMENTS. Lessee shall pay to Lender an amount equal to the
greater of 10% per month of all amounts owed Lessor by Lessee which are not paid
when due or $100, but in no event an amount greater than the highest rate
permitted by applicable law. If such funds have not been received by Lessor at
Lessor's place of business or by Lessor's designated agent by the date such
funds are due under this Lease, Lessor shall xxxx Lessee for such charges.
Lessee acknowledges that invoices for rentals due hereunder are sent by Lessor
for Lessee's convenience only. Lessee's non-receipt of an invoice will not
relieve Lessee of its obligation to make rent payments hereunder.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses
including reasonable attorney's fees and the fees of the collection agencies,
incurred by Lessor in enforcing any of the terms, conditions or provisions
hereof.
20. 0WNERSHIP; PERSONAL PROPERTY. The Equipment shall be and remain
personal property of Lessor, and Lessee shall have no right, title or interest
therein or thereto
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except as expressly set forth in this Lease, notwithstanding the manner in which
it may be attached or affixed to real property, and upon termination or
expiration of the Lease term, Lessee shall have the duty and Lessor shall have
the right to remove the Equipment from the premises where the same be located
whether or not affixed or attached to the real property or any building, at the
cost and expense of Lessee.
21. ALTERATIONS; ATTACHMENTS. No alterations or attachments shall be made
to the Equipment without Lessor's prior written consent, which shall not be
given for changes that will affect the reliability and utility of the Equipment
or which cannot be removed without damage to the Equipment, or which in any way
affect the value of the Equipment for purposes of resale or re-lease.
22. FINANCING STATEMENT. Lessee will execute financing statements pursuant
to the Uniform Commercial Code. Lessee authorizes Lessor to file financing
statements signed only by Lessor (where such authorization is permitted by law)
at all places where Lessor deems necessary.
23. MISCELLANEOUS. (a) Lessee shall provide Lessor with such corporate
resolutions, financial statements and other documents as Lessor shall reasonably
request from time to time. (b) Lessee represents that the Equipment is being
leased hereunder for business purposes. (c) Time is of the essence with respect
to this Lease. (d) Lessee shall keep its books and records in accordance with
generally accepted accounting principles and practices consistently applied and
shall deliver to Lessor its annual audited financial statements, unaudited
monthly financial statements, and signed by an officer of Lessee and such other
unaudited financial statements as may be reasonably requested by Lessor. (e) Any
action by Lessee against Lessor for any default by Lessor under this Lease,
including breach of warranty or indemnity, shall be commenced within one (1)
year after any such cause of action accrues.
24. NOTICES. All notices hereunder shall be in writing, by registered
mail, or reliable messenger or delivery service and shall be directed, as the
case may be, to Lessor at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Account Management and to Lessee at 0000 Xxx Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxx Xxxx.
25. ENTIRE AGREEMENT. Lessee acknowledges that Lessee has read this Lease,
understands it and agrees to be bound by its terms, and further agrees that it
and each Schedule constitute the entire agreement between Lessor and Lessee with
respect to the subject matter hereof and supersedes all previous agreements,
promises, or representations. The terms and conditions hereof shall prevail
notwithstanding any variance with the terms of any purchase order submitted by
the Lessee with respect to any equipment covered hereby.
26. AMENDMENT. This Lease may not be changed, altered or modified except
by an instrument in writing signed by an officer of the Lessor and the Lessee.
27. WAIVER. Any failure of Lessor to require strict performance by 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 any other provision.
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28. SEVERABILITY. If any provision of this Lease is held invalid, such
invalidity shall not affect any other provisions hereof.
29. JURISDICTION AND WAIVER OF JURY TRIAL. This Lease shall be governed by
and construed under the laws of the State of California. It is agreed that
exclusive jurisdiction and venue for any legal action between the parties
arising out of this Lease shall be in the Superior Court for Marin County,
California, or, in cases where Federal diversity jurisdiction is available, in
the United States District Court for the Northern District of California.
LESSEE, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT TO TRIAL BY
JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE, ANY SCHEDULE, OR
ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH.
30. NATURE OF TRANSACTION. Lessor makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
31. SECURITY INTEREST. (a) One executed copy of the Lease will be marked
"Original" and all other counterparts will be duplicates. To the extent, if any,
that this Lease constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction) no security
interest in the lease may be created in any documents other than the 'Original."
(b) There shall be only one original of each Schedule and it shall be marked
'Original," and all other counterparts will be duplicates. To the extent, if
any, that any Schedule(s) to this Lease constitutes chattel paper (or as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction) no security interest in any Schedule(s) may be created in any
documents other than the "Original."
32. SUSPENSION OF OBLIGATIONS. The obligations of Lessor hereunder will be
suspended to the extent that it is hindered or prevented from complying
therewith because of labor disturbances, including but not limited to strikes
and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer
to deliver any item of Equipment, governmental regulations or interference, or
any cause whatsoever not within the sole and exclusive control of Lessor.
33. SOFTWARE. For the term of this Lease, and so long as no Event of
Default has occurred and is continuing, Lessor hereby assigns to Lessee all of
Lessor's rights under any License Agreement executed by Lessor in connection
with the Equipment (except for any right of Lessor to be reimbursed for the
License Fee). Lessee agrees to be bound by the provisions of any such License
Agreement and to perform all obligations of Lessor (except Lessor's payment
obligations) thereunder. Lessee acknowledges that all of Lessee's obligations
under the Lease with respect to the Equipment will apply equally to the
software, including but not limited to Lessee's obligation to pay rent to
Lessor.
34. COMMITMENT FEE. Lessee has paid to Lessor a commitment fee ("Fee") of
$5,000. The Fee shall be applied by Lessor first to reimburse Lessor for all
out-of-pocket UCC search costs, inspections and appraisal fees incurred by
Lessor, and then proportionally to the first month's rent for each Schedule
hereunder in the proportion that the purchase price of the
10.
Equipment leased pursuant to the Schedule bears to Lessor's entire commitment.
However, the portion of the Fee which is not applied to rental shall be returned
to Lessee.
35. FINANCE LEASE. The parties agree that this lease is a "Finance Lease"
as defined by section 10-103(a)(7) of the California Commercial Code
(Cal.Com.C.). Lessee acknowledges either (a) that Lessee has reviewed and
approved any written Supply Contract (as defined by Xxx.Xxx. C. Section 10-
103(a)(25)) covering Equipment purchased from the 'Supplier' (as defined by
Xxx.Xxx. C. Section 10-103(a)(24)) thereof for lease to Lessee or (b) that
Lessor has informed or advised Lessee, in writing, either previously or by this
Lease of the following: (i) the identity of the Supplier; (ii) that the Lessee
may have rights under the Supply Contract; and (iii) that the Lessee may contact
the Supplier for a description of any such rights Lessee may have under the
Supply Contract. Lessee hereby waives any rights and remedies Lessee may have
under Cal.Com.C. Sections 10-508 through 522.
36. PURCHASE OR RENEWAL REQUIREMENT FOR ALL SCHEDULES TO MASTER EQUIPMENT
LEASE. At the expiration of the Initial Term for Schedule No. 1, and
notwithstanding anything to the contrary in the Lease, upon at least 90 days
prior written notice to Lessor, Lessee shall either:
No. 1
Purchase AS-IS, WHERE-IS all, but not less than all, of the Equipment
covered under all Schedules to this Lease at the expiration of the Initial
Term for each such Schedule for an amount equal to twenty percent (20%) of
the Equipment's original purchase price, whereupon Lessor shall issue to
Lessee a Xxxx of Sale for the Equipment transferring it to Lessee without
any representation or warranty whatsoever, or
No. 2
Extend the Initial Term of all Schedules to this Lease for an additional
twelve (12) months ('Renewal Term.") commencing with the end of the Initial
Term of each Schedule at a rate of 1.85% per month of the Equipment's
original purchase price. Upon expiration of each Renewal Term, Lessor
shall issue to Lessee a Xxxx of Sale for the Equipment under the applicable
Schedule transferring it to Lessee without any representation or warranty
whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
Lessee shall be responsible for all applicable taxes in connection with any-
purchase of Equipment by Lessee.
11.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
PHOENIX LEASING INCORPORATED ALTEON, INC.
By: ______________________________ By: /s/ Xxxxx Xxxx
---------------------------------
Title: ___________________________ Title: Director of Finance
------------------------------
Headquarters Location:
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
County of Santa Xxxxx
Exhibit A - Closing Memorandum
12.
Exhibit A
to MASTER EQUIPMENT LEASE
Dated September 9, 1996
CLOSING MEMORANDUM
1.* Duly executed Master Equipment Lease marked "Original."
2. Duly executed Schedule marked "Original."
3. Duly executed Certificate of Acceptance. [EXECUTE UPON ACCEPTANCE OF
EQUIPMENT]
4. Insurance Certificates.
5.* Resolutions of Lessee's Board of Directors, including an incumbency
certificate.
6.* Copy of Lessee's articles of incorporation including all amendments,
certified by the Secretary of Lessee as being true and complete and in full
force and effect.
7.* Certificate from the Secretary of State of Lessee's state of incorporation,
from the state in which Lessee's chief executive office is located, if
different, and from each state where Lessee is qualified to do business,
stating Lessee is in good standing or is authorized to transact business,
as the case may be, dated not more than thirty days prior to the first
purchase of Equipment.
8. Real Property Waiver.**
9. UCC Financing Statements.
10. Xxxx of Sale (for Sale-Leaseback Equipment).
11. UCC search.
12.* Payment of Commitment Fee.
13. Equipment List, in form and substance satisfactory to Lessor.
14. Lessee's most recent financial statements.
15. Certificate of Chief Financial Officer stating that no event of default has
occurred, there is no adverse change in the financial condition of Lessee
and that the Equipment is free of any encumbrances.
16.* California Civil Code Section 3440 Filing and Published Notice.
17. See Section 3 of Master Equipment Lease for additional preconditions to
closing.
* First Schedule Only.
13.
** Required if any Equipment is a fixture, i.e., attached to real property, or
located in certain states.
14.
SCHEDULE
--------
Schedule No. 1 to Lease
Dated as of September 9, 1996 Between
ALTEON NETWORKS, INC. and
PHOENIX LEASING INCORPORATED
A. Description and Purchase Price of Equipment
-------------------------------------------
Description of
Equipment
(quantity, model Purchase Mfr./ (Street Address
and serial number) Price Rent Vendor City, State and County)
------------------ -------- ---- ------ -----------------------
See Exhibit A attached hereto. 0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
County of Santa Xxxxx
Total: $424,335.23 $ 5,304.19 Month 1
$11,669.22 Months 2-42
B. Terms
-----
Initial Term: The Initial Term shall commence on the date the Equipment
is received, installed and accepted for use, as shown on
the Acceptance Notice, and continue for 42 full months
after the "Rent Start Date."
Rent Start Date: This shall be the first day of the month following the
month during which the Initial Term commences; provided,
however, that if the Equipment is accepted on the first day
of the month, the Rent Start Date shall commence on the
same day that the Initial Term commences.
Initial Rental Amount Per Month: $5,304.19 for Month 1, plus applicable taxes,
and $11,669.22 for Months 2 through 42, plus applicable taxes, which amounts
shall be adjusted in accordance with the Rate Factors and Terms shown
hereinbelow:
Lease Rate Factor (expressed as a percentage of Equipment's original Purchase
Price):
Month 1: 1.25%
Months 2-42: 2.75%
Monthly Rental Payments in advance.
1.
Initial Rent Due: Payable on the Rent Start Date shall be (1) the first and
last months' Rental Amounts including any sales or use tax
and (2) an amount equal to 1/30th of the monthly rental
amount multiplied by the number of days, if any, between
(and including) the date the Initial Term commences and
(but not including) the Rent Start Date.
C. Invoice Information: Lessee's and Lessor's for invoice purposes for the
-------------------
Equipment on the Schedule shall be as follows:
Lessee's Invoice Address: Remit Monthly Rental Amount To:
------------------------- ------------------------------
0000 Xxx Xxxxxxx Xxxxxx Xxxxxxx Leasing Incorporated
Xxx Xxxx, XX 00000 P.O. Box 200432
Attention: Xx. Xxxxx Xxxx Xxxxxx, XX 00000-0000
D. Casualty Values: See attachment hereto.
---------------
E. Special Provisions: 1. Lessor's payment for Equipment hereunder is
------------------
conditioned on Lessor's satisfaction that there has been no material
adverse change in Lessee's financial condition subsequent to initial credit
approval, 2. Sale Leaseback Addendum, 3. Purchase or Renewal Requirement as
set forth in Section 36 of the Master Equipment Lease Agreement and
repeated for convenience below.
36. PURCHASE OR RENEWAL REQUIREMENT FOR ALL SCHEDULES TO MASTER
EQUIPMENT LEASE. At the expiration of the Initial Term for Schedule No. 1, and
notwithstanding anything to the contrary in the Lease, upon at least 90 days
prior written notice to Lessor, Lessee shall either:
No. 1.
------
Purchase AS-IS, WHERE-IS all, but not less than all, of the Equipment
covered under all Schedules to this Lease at the expiration of the Initial
Term for each such Schedule for an amount equal to twenty percent (20%) of
the Equipment's original purchase price, whereupon Lessor shall issue to
Lessee a Xxxx of Sale for the Equipment transferring it to Lessee without
any representation or warranty whatsoever, or
No. 2.
------
Extend the Initial Term of all Schedules to this Lease for an additional
twelve (12) months ("Renewal Term") commencing with the end of the Initial
Term of each Schedule at a rate of 1.85% per month of the Equipment's
original purchase price. Upon expiration of each Renewal Term, Lessor shall
issue to Lessee a Xxxx of Sale for the Equipment under the applicable
Schedule transferring it to Lessee without any representation or warranty
whatsoever.
In the event Lessee does not provide 90 days prior written notice as specified
above, Lessee shall be deemed to have selected No. 1 above for all Schedules to
the Lease.
2.
Lessee shall be responsible for all applicable taxes in connection with any
purchase of Equipment by Lessee.
LESSOR AND LESSEE AGREE THAT THIS SCHEDULE SHALL CONSTITUTE A LEASE OF THE
EQUIPMENT DESCRIBED ABOVE, SUBJECT TO THE TERMS AND CONDITIONS OF THIS SCHEDULE
AND OF THE MASTER EQUIPMENT LEASE DATED SEPTEMBER 9, 1996 BETWEEN LESSEE AND
LESSOR. THE TERMS AND CONDITIONS OF SUCH MASTER EQUIPMENT LEASE ARE HEREBY
INCORPORATED BY REFERENCE AND MADE A PART HEREOF TO THE SAME EXTENT AS IF SUCH
TERMS AND CONDITIONS WERE SET FORTH IN FULL HEREIN.
PHOENIX LEASING INCORPORATED ALTEON NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
--------------------------- -----------------------------
Title: Contract Administrator Title: Director of Finance
------------------------ --------------------------
Date: 11/27/96 Date: 11/27/96
------------------------ ---------------------------
3.
Attachment to Equipment Schedule No.1
CASUALTY VALUES
Month of % of Original Equipment Month of % of Original Equipment
Lease Term Purchase Price Lease Term Purchase Price
---------- ----------------------- ---------- -----------------------
1 115.00 22 66.34
2 112.68 23 64.02
3 110.37 24 61.71
4 108.05 25 59.39
5 105.73 26 57.07
6 103.41 27 54.76
7 101.10 28 52.44
8 98.78 29 50.12
9 96.46 30 47.80
10 94.15 31 45.49
11 91.83 32 43.17
12 89.51 33 40.85
13 87.20 34 38.54
14 84.88 35 36.22
15 82.56 36 33.90
16 80.24 37 31.59
17 77.93 38 29.27
18 75.61 39 26.95
19 73.29 40 24.63
20 70.98 41 22.32
21 68.66 42 20.00
Thereafter 20.00
Lessor's Lessee's
Initials _______ Initials_____
4.
10.6 Attachment
ATTACHMENT 1
XXXX OF SALE
For valuable consideration Alteon Networks, Inc. ("Seller") sells to Phoenix
Leasing Incorporated ("Buyer"), the property listed on Exhibit A hereof (the
"Equipment").
Seller covenants and warrants that:
(1) It is the owner of, and has absolute title to, the Equipment which is free
and clear of all claims, liens and encumbrances.
(2) It has not made any prior sale, assignment, or transfer of the Equipment.
(3) It has the present right, power, and authority to sell the Equipment to
Buyer.
(4) All action has been taken which is required to make this Xxxx of Sale a
legal, valid and binding obligation of Seller.
Seller shall forever warrant and defend the sale of Equipment to Buyer, its
successors and assigns, against any person claiming an interest in the
Equipment.
This Xxxx of Sale is binding on the successors and assigns of Seller and inures
to the benefit of the successors and assigns of Buyer.
Executed on November 26, 1996.
Alteon Networks, Inc.
By: /s/ Xxxxx Xxxx
--------------------------
Title: Xxxxx Xxxx
-----------------------
10.6 Attachment
OFFICER'S CERTIFICATE
The undersigned, Xxxx X. Xxxxxx, hereby certifies that:
(i) I am the Treasurer/Chief Financial Officer of Alteon Networks, Inc., a
Delaware corporation;
(ii) as such officer, I am familiar with the terms and conditions of that
certain Master Equipment Lease (the "Lease") dated as of September 9, 1996
between Alteon Networks, Inc. ("Lessee") And Phoenix Leasing Incorporated
("Lessor");
(iii) this certificate is delivered in connection with the leasing of certain
equipment under a Schedule with Lessor, the equipment is described in the
Schedule and the equipment is free and clear from any and all liens,
charges, security interests or other encumbrances which may affect
Lessor's right, title or interest in and to the equipment;
(iv) there has been no adverse change in the financial condition of Lessee
since its financial statements dated August 1, 1996, true copies of which
have been delivered to Lessor; and
(v) no event which, with the giving of notice or passage of time, or both,
could become an Event of Default under the Lease has occurred and is
continuing.
In Witness Whereof, I hereby execute this certificate on this 8th day of
November, 1996.
Alteon Networks, Inc.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: V/P Engineering/Corporate Secretary
10.6 Schedule Addendum
Sale Leaseback Addendum
to Schedule No. 1
of MASTER EQUIPMENT LEASE
Dated September 9, 1996
Between ALTEON NETWORKS, INC.
and PHOENIX LEASING INCORPORATED
This Addendum to Master Equipment Lease is made and entered into as of November
26, 1996, between Phoenix Leasing Incorporated ("Lessor") and Alteon Networks,
Inc. ("Lessee").
Notwithstanding anything to the contrary contained in the Lease referenced
above, Lessor and Lessee agree as follows:
1. Lessee shall sell the Equipment to and lease the Equipment from Lessor and
Lessor shall purchase the Equipment from and lease the Equipment to Lessee
upon the terms and conditions of the Xxxx of Sale attached hereto as
Attachment 1.
2. Lessee represents and warrants that:
(a) Lessee has the right to sell the Equipment as set forth herein,
(b) The Equipment and Lessee's right, title and interest in such Equipment
is, as of the date of the Xxxx of Sale, free from all claims, liens,
security interests and encumbrances.
(c) Lessee will defend the sale against lawful claims and demands of all
persons, and
(d) the purchase price of the Equipment is equal to the fair market value
of such Equipment at the time of sale.
Phoenix Leasing Incorporated Alteon Networks, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
--------------------------- -------------------------------
Title: Contact Administrator Title: Director of Finance
------------------------ -----------------------------
10.6 Schedule
ACCEPTANCE NOTICE
SCHEDULE NO. 1
Reference is made to the Master Equipment Lease dated as of September 9, 1996
between Phoenix Leasing Incorporated as Lessor and ALTEON NETWORKS, INC. as
Lessee (the "Lease").
Lessee confirms that the following Equipment has been received, installed and is
ready for use by Lessee. The Equipment is satisfactory in all respects for the
purposes of this Lease as of the date Lessee executes this Notice below.
Description of
Equipment
(quantity, model Purchase Mfg./ (Street Address
and serial number) Price Rent Vendor City, State and County)
-------------------- --------- ----- -------- --------------------------
See Exhibit A attached hereto. 0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
County of Santa Xxxxx
Total: $424,335.23 $ 5,304.19 Month 1
$11,669.22 Months 2-42
THIS LEASE MAY NOT BE CHANGED, ALTERED OR MODIFIED EXCEPT BY AN INSTRUMENT IN
WRITING SIGNED BY AN OFFICER OF LESSOR AND A DULY AUTHORIZED REPRESENTATIVE OF
LESSEE.
IN WITNESS WHEREOF, Lessee has executed this Acceptance Notice as of November
27, 1996.
ALTEON NETWORKS, INC.
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
-------------------------------
Title: Director of Finance
------------------------------
10.6 Attachment
CORPORATE RESOLUTION TO LEASE
RESOLVED: That this corporation, ALTEON NETWORKS, INC., lease from PHOENIX
LEASING INCORPORATED, a California corporation, hereinafter referred to as
Lessor, such items of personal property, and upon such terms and conditions, as
the officer or officers hereinafter authorized, in their discretion, may deem
necessary or advisable; provided, however, that the original actual cost of such
items of personal property under the lease shall not exceed the sum of
$1,000,000.
RESOLVED FURTHER: That
Xxxx Xxxxxx V/P Engineering/Corp. Secretary /s/ Xxxx Xxxxxx
__________________ -----------------------------------------
(Print or type name) (specimen signature)
or Xxxxx Xxxx Director of Finance /s/ Xxxxx Xxxx
___________________ -----------------------------------------
(Print or type name) Title of Corporate Officer (specimen signature)
of this corporation (this officer or officers authorized to act pursuant hereto
being hereinafter designated as "authorized officers"), be, and they hereby are,
individually authorized, directed and empowered, in the name of this
corporation, to execute and deliver to Lessor, and Lessor is requested to
accept, any lease that may be required by Lessor in connection with such leasing
of personal property.
RESOLVED FURTHER: That the authorized officers be, and they hereby are,
individually authorized, directed and empowered, in the name of this
corporation, to do or cause to be done all such further acts and things as they
shall deem necessary, advisable, convenient, or proper in connection with the
execution and delivery of any such lease and in connection with or incidental to
the carrying of the same into effect, including, without limitation the
execution, acknowledgment, and delivery of any and all instruments and documents
which may reasonably be required by Lessor under or in connection with any such
lease.
RESOLVED FURTHER: That Lessor is authorized to act upon this resolution
until written notice of its revocation is delivered to Lessor, and that the
authority hereby granted shall apply with equal force and effect to the
successors in office of the officers herein named.
I, Xxxx X. Xxxxxx, Secretary of ALTEON NETWORKS, Inc., a corporation
incorporated under the laws of the State of Delaware do hereby certify that the
foregoing is a full, true and correct copy of resolutions of the Board of
Directors of the said corporation, duly and regularly passed or adopted by the
Board of Directors of said corporation as required by law and by the by-laws of
the said corporation on the 30th day of August, 1996.
I further certify that said resolutions are still in full force and effect
and have not been amended or revoked and that the specimen signatures appearing
above are the signatures of the officers authorized to sign for this corporation
by virtue of the said resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary, and
affixed the corporate seal of the said corporation, this 8th day of November,
1996.
/s/ Xxxx X. Xxxxxx
---------------------------------------
SECRETARY
[CORPORATE SEAL]
