EXHIBIT 10.13
COMDISCO, INC.
GLOBAL MASTER RENTAL AGREEMENT
GLOBAL MASTER RENTAL AGREEMENT (the "Agreement") dated as of September 30, 1996
by and between:
Comdisco, Inc. (hereinafter referred to as "Comdisco"), 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, XXX acting on behalf of itself and its Affiliates as
herein described and Advanced Telecommunications Modules Limited (hereinafter
referred to as the "Customer"), acting on behalf of itself and its Affiliates
as herein described.
WHEREAS, Comdisco and its Affiliates are engaged in the rental of equipment in
various countries where Customer and its Affiliates may wish to rent such
equipment,
WHEREAS, to facilitate the transacting of rental operations between Comdisco
or an Affiliate of Comdisco and Customer or an Affiliate of the Customer on an
ongoing basis, Comdisco and the Customer wish to enter into the present
Agreement which, together the Equipment Schedule under which each individual
rental operation is concluded, will establish the terms and conditions
applicable to such rental operation.
THEREFORE, it is agreed as follows:
1. GLOBAL MASTER RENTAL AGREEMENT
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1.1 Definitions. "Affiliates of Comdisco" shall mean those enterprises in
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which Comdisco owns and/or shall own at any time after the date hereof, directly
or indirectly, the majority of the voting stock, including without limitation
all present Affiliates of Comdisco listed in Exhibit A hereto.
"Affiliates of the Customer" shall mean those enterprises in which the
Customer, or its parent company owns and/or shall own at any time after the date
hereof, directly or indirectly, the majority of the voting stock, or a
controlling interest, including without limitation all present Affiliates of the
Customer listed in Exhibit B hereto;
"Lessor" shall mean, with respect to any Equipment Schedule, the Affiliate of
Comdisco entering into such Equipment Schedule, or Comdisco, if Comdisco enters
into such Equipment Schedule.
"Lessee" shall mean, with respect to any Equipment Schedule, the Affiliate of
the Customer entering into such Equipment Schedule, or Customer, if Customer
enters into such Equipment Schedule.
"Rent Interval" shall mean the monthly, quarterly or such other billing period
set forth on an Equipment Schedule.
1.2 Equipment Schedules. Lessor shall rent and Lessee shall take on rent the
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equipment described in an Equipment Schedule executed hereunder ("Equipment")
subject to the terms and conditions of this Agreement and such Equipment
Schedule. Each such Equipment Schedule shall be governed by all of the terms
and conditions of this Agreement and by such additional terms and conditions as
may be set forth in such Equipment Schedule.
Exhibit C hereto lists the countries for which Comdisco and Customer have
agreed upon the form of Equipment Schedule. Such Equipment Schedules shall be
substantially in the form attached to Exhibit C hereto. Further forms of
Equipment Schedules for use in transactions in other countries may be added by
agreement of Comdisco and Customer from time to time. The parties agree that
each local transaction will only be validly concluded if the relevant Equipment
Schedule is executed by signatories of Lessor and Lessee involved in such
transaction, and that any such Equipment Schedule may also be supplemented or
amended by special terms or conditions agreed upon by such Lessor or Lessee for
the particular transaction. The Customer shall, without notice, be jointly and
severally liable for the due performance of the obligations of its Affiliates
under all Equipment Schedules executed hereunder, including, without limitation,
all terms and conditions negotiated by its Affiliate.
2. TERM
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2.1 The term of this Agreement shall commence on the date set forth above and
shall remain in force thereafter as long as any Equipment Schedule entered into
pursuant to this Agreement remains in effect.
2.2 The rental term and Lessee's rental obligations with respect to each item
of Equipment on an Equipment Schedule shall begin on the commencement date
("Commencement Date"). The Commencement Date with respect to the type of
Equipment defined below and indicated on the applicable Equipment Schedule shall
be as follows:
a) Equipment installed and accepted by Lessee prior to the date of the
applicable Equipment Schedule ("Installed Equipment"), shall be the date Lessor
tenders payment of the Equipment purchase price;
b) Equipment supplied from Lessor's inventory ("Inventory Equipment") shall
be the date the Equipment is installed and approved for maintenance by the
manufacturer, (or an approved third party pursuant to Subsection 5.2 hereof) or
the seventh day after delivery if (i) Lessee delays the installation and
approval or (ii) the Equipment is not so approved due to defects in the
Equipment which are remediable by the manufacturer under a manufacturer's
maintenance contract but which are not remedied because Lessee has arranged for
third party maintenance pursuant to Subsection 5.2 hereof.
c) Equipment on-order ("On-Order Equipment"), shall be the date Lessee
accepts the Equipment from the Equipment vendor, which date shall be confirmed
by Lessee to Lessor as evidenced by Lessee forwarding an Acceptance Certificate
in the form provided by Lessor, within ten (10) days following such acceptance
and which date shall in no event be later than the date the Equipment is placed
in service by Lessee.
The rental term shall continue, unless renewed in accordance with the
provisions hereof, for at least the full number of months, calendar quarters or
other Rent Interval set forth in the Equipment Schedule ("Initial Term"). The
Initial Term shall commence on the first day of the Rent Interval set forth in
the Equipment Schedule next following (i) the Commencement Date for all items of
Installed Equipment and Inventory Equipment to be rented thereunder or (ii)
Lessor's receipt of Acceptance Certificates for all items of On-Order Equipment
to be rented thereunder. On the Commencement Date the Lessee will execute and
deliver to the Lessor a letter, in a form to be specified by the Lessor, which
confirms such Commencement Date. The rental term for each Equipment Schedule
shall continue until the Equipment is returned and the Equipment Schedule is
terminated by either party upon not more than twelve (12) months nor less than
six (6) months prior written notice to the other party, provided that no such
termination shall be effective prior to the expiration o the Initial Term.
2.3 If the applicable Equipment Schedule has a single Initial Term ("Single
Term"), Single Term shall be indicated on the applicable Equipment Schedule and
the terms of the following paragraph under this Subsection 2.3 shall apply to
such Equipment Schedule:
All Rental Rate Factors set forth in the applicable Equipment Schedule assume
that Acceptance Certificates for all items of On-Order Equipment to be rented
thereunder will be received by Lessor no later than the outside date set forth
on the applicable Equipment Schedule ("Outside Date"). If any Acceptance
Certificates are received by Lessor after the Outside Date, Lessor may, on or
before the start of the Initial Term for all items of Equipment, adjust the
Rental Rate Factors (and, therefore, rental rates) to maintain an assumed
economic yield which Lessor would have required for a similar transaction at
such time.
2.4 If the applicable Equipment Schedule has multiple Initial Terms
("Multiple Term"), Multiple Term shall be indicated on the applicable Equipment
Schedule and the terms of the following paragraphs under this Subsection 2.4
shall apply to such Equipment Schedule:
a) Summary Equipment Schedule
Lessor shall summarize all items of Equipment for which Acceptance
Certificates have been received in the same calendar quarter into a Summary
Equipment Schedule in the form of Exhibit 1 hereto and, notwithstanding anything
to the contrary set forth in Subsection 2.2 of the Agreement, the Initial Term
shall begin the first day of the calendar quarter thereafter. Lessee agrees to
execute and return three copies of the Summary Equipment Schedules within 10
days of receipt. Each Summary Equipment Schedule shall incorporate the terms
and conditions of the Agreement and this Equipment Schedule with respect to
those items of Equipment listed in the Summary Equipment Schedule. Upon
execution by Lessor and Lessee, the Summary Equipment Schedule shall be referred
to as an Equipment Schedule and shall constitute a separate Equipment Schedule
for purposes of the Agreement, including without limitation, Section 11 thereof.
The Initial Term for Equipment listed in Acceptance Certificates received more
than 10 days after the end of a calendar quarter and having an Acceptance Date
in the calendar quarter just ended, shall begin on the first day of the calendar
quarter following receipt of Acceptance Certificates.
b) If there is a default under the applicable Equipment Schedule or there is
an adverse change in Lessee's credit standing, Lessor, at its option and upon
prior written notice to Lessee, shall be relieved of its obligations to lease
Equipment under any Equipment Schedule with respect to Inventory Equipment and
Installed Equipment with a Commencement Date occurring after the date of such
notice and On-Order Equipment for which Lessor has not received an Acceptance
Certificate from Lessee prior to the date of such notice.
c) If prior to the Commencement Date for an item of Equipment the
manufacturer announces any change in comparable existing Equipment ("Comparable
Equipment") or announces the introduction of new or improved technology
("Replacement Technology Equipment"), Lessee may elect to lease the Replacement
Technology Equipment pursuant to the applicable Equipment Schedule in lieu of
the original Equipment described in such Equipment Schedule; provided, that
purchase documents with respect to the original Equipment and the Replacement
Technology Equipment are completed to Lessor's satisfaction. If Lessee elects
not to rent the Replacement Technology Equipment, then with respect to the
original Equipment with a Commencement Date occurring after the announced first
availability date stated in either of the aforementioned announcements, it is
agreed that Lessor may adjust the Rental Rate Factor in order to maintain an
assumed economic yield which Lessor would have expected had either such
announcement been made on the date of the applicable Equipment Schedule. This
paragraph 2.4(c) shall not apply to any Equipment having a Commencement Date
prior to the first availability date stated in either of the aforementioned
announcements.
3. RENT
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3.1 Lessee shall pay to Lessor as rental for the Equipment the Rent in an
amount (i) as set forth in the applicable Equipment Schedule if the Equipment is
Inventory Equipment or (ii) equal to the Rental Rate Factor set forth in the
applicable Equipment Schedule multiplied by the "Lessor's Cost", as hereinafter
defined, if the Equipment is Installed Equipment or On-Order Equipment. The
Rent shall be paid in advance on the first day of the applicable Rent Interval
set forth in the applicable Equipment Schedule (in immediately available funds
in the local currency indicated on the Equipment Schedule) to Lessor at its bank
account, details of which are set forth in the Equipment Schedule, or to such
other person and/or at such other bank account as Lessor may from time to time
designate in writing. If the Commencement Date of any Equipment Schedule shall
be other than the first day of the applicable Rent Interval, Lessee shall make
rental payments equal to the daily prorata portion of the Rent set forth in the
Equipment Schedule for each day from and including the Commencement Date through
the last day of the applicable Rent Interval prior to the beginning of the
Initial Term ("Interim Rent"). The Rent, and Interim Rent, if any, shall be
payable without deduction or withholding on any account whatsoever and
regardless of whether an invoice has been supplied by Lessor. If Lessee is
required by law to make any such deduction or withholding, Lessee shall pay to
Lessor such additional amount as may be necessary to enable Lessor to receive a
net amount equal to the full amount which would otherwise have been payable
pursuant to any such Equipment Schedule, unless such deduction or withholding is
made by reference to Lessor's net income.
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3.2 All Rental Rate Factors set forth in the applicable Equipment Schedule
shall be calculated using an interest rate based on the prevailing rates for
similar transactions with lessees of similar credit standing as of the date of
the applicable Equipment Schedule. If, on or before the start of the Initial
Term for all items of Equipment to be leased under the applicable Equipment
Schedule, the comparable interest rate is greater, such Rental Rate Factors may
be adjusted accordingly.
3.3 Lessor's Cost shall be an amount equal to the purchase price which Lessee
would otherwise be responsible to pay for an item of Equipment if not for this
Agreement.
3.4 Lessee shall promptly pay and discharge all taxes or other charges of
whatever nature due with respect to the ownership or use of the Equipment or the
renting thereof by Lessee or the payment of Rent or other sums payable hereunder
but excluding any taxes payable by reference to Lessor's net income.
3.5 Should Lessee fail to pay any Rent herein reserved or any sum required to
be paid by Lessee or Lessor upon the due date for payment thereof, Lessee shall
pay to Lessor additional Rent equivalent to interest thereon from the due date
until the date of payment at the rate of 3% per annum above the then prevailing
interbank offering rate provided that in no event shall such additional Rent
exceed any legal limitation.
3.6 Equipment Procurement Charges. If indicated on the applicable Equipment
Schedule, Lessor and Lessee agree that this Subsection shall apply. It is
acknowledged that certain portions of the Equipment will be delivered to Lessee
prior to the Commencement Date and that progress payments will be required to be
paid to the Equipment manufacturer prior to the Commencement Date for any item
of equipment leased pursuant to the applicable Equipment Schedule ("Progress
Payments"). Lessee agrees that with respect to the portions of the Equipment
delivered prior to the Commencement Date, all terms and conditions of the
applicable Equipment Schedule shall be applicable except the Lessee's rental
obligations, provided, however, that Lessee agrees to pay Lessor "Equipment
Procurement Charges" equal to the daily rental rate factor set forth on the
applicable Equipment Schedule multiplied by the aggregate of the Progress
Payments paid by Lessor to the manufacturer or the Lessee relating to the
Equipment for each day from the date Progress Payments are made by Lessor until
the Commencement Date. Accrued Equipment Procurement Charges shall be payable
on the first day of each applicable Rent Interval. If Lessee rejects the
Equipment prior to the Commencement Date in accordance with the terms of the
purchase agreement with the Equipment vendor and such purchase agreement is
terminated as a result of such rejection, then the applicable Equipment Schedule
shall also terminate. In such event or if Lessee is in default of the
applicable Equipment Schedule for failure to timely pay Equipment Procurement
Charges, then Lessee shall (i) reimburse Lessor for any and all amounts paid by
Lessor to the manufacturer or to the Lessee relating to the purchase of the
Equipment and (ii) pay all Equipment Procurement Charges due through the date of
termination, whereupon Lessor shall transfer to Lessee all of Lessor's interest
in and to the Equipment and under any purchase agreement relating to the
applicable Equipment Schedule.
4. USE
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Lessee shall:
4.1 keep the Equipment for its sole use and in its possession (except as
provided in 11.4 below) at the address where the Equipment has been installed or
at such other address within the country of original installation as Lessor may
from time to time be notified in writing and shall use the Equipment only for
the purposes for which it was designed in a proper manner and in accordance with
any applicable statutory regulations which may from time to time be in force and
shall take such steps as are necessary to ensure that the Equipment will be safe
and without risk to health when properly used by Lessee, its employees or other
authorized users;
4.2 ensure that the Equipment is only used by trained personnel in accordance
with the recommendations of the supplier and/or manufacturer;
4.3 allow such persons as Lessor may authorize to have access to the
Equipment at reasonable times in order to inspect its state and condition and,
if required, allow Lessor to fix and/or keep affixed upon the Equipment such
name or other plates in such place and manner as Lessor shall require to
indicate the ownership of the Equipment;
4.4 protect the Equipment against seizure and indemnify Lessor against all
losses, charges, damages and expenses suffered or incurred by Lessor by reason
thereof; and
4.5 protect Lessor's title or interest in the Equipment against all persons
claiming against or through Lessee and for this purpose take any necessary steps
to prevent title in the Equipment from passing to any freeholder or mortgagee of
the premises at which the Equipment is located.
5. INSTALLATION, MAINTENANCE AND ADDITIONS
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5.1 Responsibility for all costs and risks of delivery, in-transit insurance
and installation shall be as indicated in the relevant Equipment Schedule.
Notwithstanding such indication, Lessee shall be responsible for all exceptional
costs of delivery and installation including, without limitation, the costs of
special lifting and handling equipment and building alterations. Lessee will,
at the request of Lessor or its assignees, certify the date of installation of
any Equipment rented hereunder. If Lessee should have the Equipment installed
by a third party maintenance or engineering company, Lessee assumes any and all
liability for defects in the Equipment which are remediable by manufacturer
under a manufacturer's maintenance contract but which are not so remedied
because Lessee has elected to use a third party to install the Equipment,
Lessor's approval of such third party notwithstanding (see 5.2). Lessee shall
have the manufacturer or authorized third party remedy all such defects at
Lessee's expense.
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5.2 Lessee shall at all times and at its own expense keep the Equipment in
good order, repair and condition (fair wear and tear excepted) and shall enter
into and maintain throughout the rental term, a contract for the maintenance of
the Equipment with the manufacturer of the Equipment, or with a third party
maintenance company as approved by Lessor provided that, if Lessee uses a third
party maintenance company, Lessee assumes any and all liability for defects in
the Equipment which are remediable by manufacturer under a manufacturer's
maintenance contract but which are not remedied because Lessee has arranged for
a third party to provide such maintenance. Upon termination of the renting,
Lessee shall provide Lessor with the manufacturer's maintenance qualification
letter and, if necessary, Lessee shall pay any costs necessary to have the
manufacturer re-certify the Equipment for maintenance eligibility.
5.3 No additions, improvements, variations, modifications or alterations of
whatsoever kind or nature shall be made to the Equipment without the consent in
writing of Lessor (such consent not to be unreasonably withheld). Subject to
such consent, any additions to the Equipment shall first be offered for renting
by Lessor upon the terms and conditions of this Agreement and of the relevant
Equipment Schedule. If any such additions, improvements, variations,
modifications or alterations are made to the Equipment without Lessor's written
consent, then the same shall be deemed to be Lessor's property.
6. ACCEPTANCE AND WARRANTIES
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6.1 Lessor will use its reasonable endeavors at the expense and request of
Lessee to extend to Lessee the benefit of any guarantees, conditions, warranties
or representations which may be given to Lessor by the manufacturer or supplier
of the Equipment or otherwise implied in favor of Lessor, provided that such
benefit shall only be extended if Lessee shall fully indemnify Lessor against
all costs, claims and expenses incurred in connection with any claim relating to
such guarantee, warranty or representation.
6.2 The Equipment has been selected by Lessee with full knowledge of the
manufacturer's specifications and Lessee consequently assumes the entire
responsibility for its choice and Lessee's acceptance by certifying installation
shall be conclusive proof that the Equipment is satisfactory in every way to
Lessee.
7. LESSEE'S INDEMNITY
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Throughout the rental term under any Equipment Schedule and until the
Equipment hereunder has been effectively re-delivered to Lessor, Lessee shall be
solely responsible for any loss, damage or injury to any party occasioned by the
use or possession of the Equipment or in any way relating to the Equipment.
Lessee shall indemnify and keep Lessor indemnified against all claims or
proceedings made or brought against Lessor, and all damages, losses, costs,
charges and expenses incurred by Lessor by reason of such claims or proceedings
arising out of the state, condition, presence or use of the Equipment or in any
way relating to the Equipment or arising out of the renting of the Equipment
hereunder provided that nothing in this clause shall restrict or exclude
Lessor's liability in respect of or shall entitle Lessor to be indemnified by
Lessee against any claims or proceedings in respect of any injury, death, loss
or damages caused by or resulting from the willful default or gross negligence
of Lessor.
8. RISK OF LOSS AND INSURANCE
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Throughout the rental term, unless otherwise indicated in the relevant
Equipment Schedule, the Lessee shall insure and at all times keep the Equipment
insured with reputable insurers. Lessor and Lessee agree as follows:
a) Effective upon delivery of the Equipment to Lessee and until the Equipment
is returned to Lessor, Lessee relieves Lessor of responsibility for all risks of
physical damage to or loss or destruction of the Equipment, however caused.
During the continuance of the relevant Equipment Schedule, Lessee shall, at its
own expense, cause to be carried and maintained casualty insurance with respect
to each item of Equipment designated in this Equipment Schedule in an amount at
least equal at all times to the greater of (i) the replacement value of the
Equipment, or (ii) the aggregate unpaid Rent with respect to the Equipment for
the unexpired Initial Term. Lessee shall carry public liability insurance, in
each case in amounts and against risks customarily insured against by the Lessee
on similar equipment and, in any event, in amounts and against risks comparable
to those insured against by the Lessee on equipment owned by it. All policies
with respect to such insurance shall name the Lessor as additional assured and
(together with any Beneficiary) as loss payee, and shall provide for at least 30
days' prior written notice by the underwriter or insurance company to the Lessor
in the event of cancellation or expiration. Lessee shall furnish appropriate
evidence of such insurance;
b) If any item of Equipment is lost or rendered unusable as a result of any
physical damage or destruction of such item of Equipment, Lessee shall give to
Lessor prompt notice thereof and the Agreement and the relevant Equipment
Schedule shall continue in effect without any abatement of Rent. Lessee shall
determine, within fifteen (15) days after the date of occurrence of such loss,
damage or destruction, whether such item of Equipment can be repaired. If
Lessee determines that such item of Equipment can be repaired, Lessee, at its
expense, shall cause such item of Equipment to be promptly repaired. If Lessee
determines that such item of Equipment is lost or cannot be repaired, Lessee
shall promptly notify Lessor and such Equipment shall be deemed to have suffered
a "Casualty Loss" for purposes of this Section as of the date of occurrence of
such loss. Within said 15 days, Lessee shall notify Lessor of the Equipment
which has suffered a Casualty Loss and Lessee shall, at the Lessor's option,
either (i) replace Equipment which has suffered a Casualty Loss with lien free
equipment of the same model, type and feature configuration in which case the
replacement equipment shall become the Equipment, the relevant Equipment
Schedule shall continue in full force and effect and marketable title in such
Equipment shall vest in Lessor or (ii) pay the aggregate unpaid Rent with
respect to such Equipment for the unexpired Initial Term for such Equipment
("Casualty Value"). If the Casualty Value is paid, any installment of Rent with
respect to such Equipment due prior to the date of the Casualty Loss shall
remain due and payable. After the payment of such Casualty Value and all other
amounts due and owing with respect to such Equipment, Lessee's obligation to pay
further Rent for such Equipment shall cease. Except in the case of loss or
total destruction, Lessor will be entitled to recover all Equipment for which a
Casualty Value has been paid; provided, however, that Lessee shall dispose of
such Equipment for the best price obtainable (on an "as-is, where-is," basis
without representation or warranty expressed or implied), and Lessee shall be
entitled to retain all amounts received for the Equipment up to the Casualty
Value and Lessee's reasonable costs of disposition attributable thereto, and
shall remit the excess, if any, to Lessor.
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9. DEFAULT
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9.1 If:
a) Lessee or Customer shall fail to pay any Rent or other sum payable under
this Agreement (and any Equipment Schedules entered into hereunder) within
fifteen (15) days of its becoming due or fail to observe or perform any of the
terms and conditions hereof or shall do or allow to be done any act or thing
which may jeopardize any of Lessor's rights in the Equipment;
b) any distress, execution or other legal process shall be levied on or
against the Equipment or any part thereof or any premises where the same may be
or Lessee shall permit any judgment against it to remain unsatisfied for
fourteen days (14); or
c) Lessee or Customer shall enter into any liquidation, shall be declared
bankrupt or otherwise enter bankruptcy, shall call any meeting of its creditors,
or shall have any receiver or administrative receiver of all or any of its
undertakings or assets appointed, or shall be deemed unable to pay its debts;
then, in each and every such case, Lessor may at any time thereafter and
notwithstanding any subsequent acceptance by Lessor of any Rent (but without
prejudice to any other rights which Lessor may have against Lessee hereunder or
any pre-existing liability of Lessee to Lessor) by notice in writing to Lessee
forthwith and for all purposes terminate renting the Equipment hereunder and
under any Equipment Schedule executed by the Lessee and thereafter Lessee shall
no longer be in possession of the Equipment with Lessor's consent.
9.2 Upon such default, Lessee shall pay to Lessor:
a) all arrears then due by way of Rent or otherwise;
b) the costs of all repairs required as at the date of termination to
render the Equipment in good order and condition (fair wear and tear excepted);
c) all costs, charges and expenses incurred by Lessor in locating and
taking possession of the Equipment including all legal fees, costs and expenses;
and
d) as agreed compensation for Lessor's full financial loss, an amount equal
to the aggregate unpaid Rent with respect of the Equipment for the unexpired
balance of the Initial Term less a discount at the lower of the debt rate of the
Beneficiary (as defined in Subsection 11.1) at which the applicable Equipment
Schedule was financed or the rate of 2% per annum below the then prevailing
interbank offering rate, compounded quarterly, for accelerated payment. Lessee
confirms that the nature of the arrangement between it and Lessor is such that,
in computing the amount payable in such circumstances, Lessor shall not be
obliged to mitigate its loss by applying the sale proceeds of the Equipment in
reduction of such amount.
10. RETURN OF THE EQUIPMENT
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At the end of the rental term of each Equipment Schedule executed hereunder or
upon the termination of the renting of the Equipment for whatever reason, Lessee
will at its own expense forthwith deinstall and deliver the Equipment in good
order and condition (fair wear and tear excepted) to Lessor at such place as may
be appointed by Lessor within the country in which it is then installed if
Comdisco has an affiliate in that country, or to the nearest country with a
Comdisco affiliate, and, upon the failure of Lessee to return the Equipment as
contemplated herein, Lessor may, without waiving Lessee's obligations for the
aforementioned expenses, repossess the Equipment at any time and without notice
and for this purpose shall be entitled freely to enter into and upon any
premises where the Equipment may be and whether the same is occupied by or under
the control of Lessee or otherwise.
11. ASSIGNMENT
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11.1 Lessor shall be entitled to assign, sell or pledge in whole or in part
its rights related to any Equipment, to any Equipment Schedule and/or to any
amounts payable under any Equipment Schedule to one or more third parties
(collectively the "Beneficiary"). Lessee agrees that on receipt of written
notice from Lessor of such assignment, sale or pledge, if so instructed, Lessee
shall perform for the benefit of the Beneficiary those of its obligations under
any Equipment Schedule as are mentioned in such notice and, if so instructed,
Lessee shall pay all or part of the amounts payable under any Equipment Schedule
directly to the Beneficiary or its assignees. Lessee declares and certifies
that the Beneficiary shall be entitled to rely upon, and shall be considered a
third party beneficiary of, the following covenants and representations:
a) Lessee will not seek the performance by the Beneficiary of any of the
obligations of Lessor under this Agreement or any Equipment Schedule (unless
Lessor shall have assigned by the Beneficiary its obligations as lessor
hereunder or under any Equipment Schedule, in which case however Lessor shall
remain primarily liable for the performance of such obligations vis-a-vis
Lessee);
b) Lessee shall not agree to any modification or amendment of this
Agreement or of any Equipment Schedule assigned to the Beneficiary without the
prior written consent of the Beneficiary;
c) Lessee shall send to the Beneficiary a copy of any notice which is
required to be sent to Lessor; and
d) Lessee's obligations hereunder and under any assigned Equipment Schedule
shall not be subject to any abatement, reduction, defense, offset or
counterclaim available to Lessee for any reason whatsoever including, without
limitation, any defect in the Equipment or failure of Lessor to perform any of
its obligations hereunder or under any Equipment Schedule.
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11.2 Upon receipt of notice of any assignment, sale or pledge, Lessee agrees
to execute and deliver to Lessor any document which may be required by a
Beneficiary in order to certify the rights and obligations of the parties under
this Agreement and any assigned Equipment Schedule and in order to perfect such
assignment, sale or pledge, including, without limitation:
a) an acknowledgment of receipt of, or a declaration of consent to, such
assignment, sale or pledge;
b) a certificate of Lessee's counsel in which he opines that Lessee is
validly bound by the terms of this Agreement and of any assigned Equipment
Schedule; and
c) a certificate of the delivery and acceptance of the related Equipment.
11.3 Lessee acknowledges that Lessor may not itself be the owner of the
Equipment rented under any Equipment Schedule and that Lessor may have rented or
leased such Equipment from a third party.
11.4 Lessee shall not sell, offer for sale, mortgage or change the Equipment
or this Agreement or any Equipment Schedule executed hereunder nor hold itself
out as the owner of nor part with possession of the Equipment and shall not
create or allow to be created any lien or any encumbrance on the Equipment and
shall duly and punctually pay all rates and taxes, charges and impositions
payable in respect of the premises whereon any Equipment is situated. Upon not
less than sixty (60) days prior written notice to Lessor, Lessee may subrent the
Equipment to any party, or relocate the Equipment to any location, within the
country set forth in the respective Equipment Schedule, provided that (i) any
such sublessee's credit worthiness shall, in Lessor's reasonable judgment, be
equal to or better than Lessee's, and (ii) all costs of any nature whatsoever
resulting from such relocation or subrent shall be made for the sole account of
Lessee or its sublessee and any subrenting of the Equipment shall be expressly
subject and subordinate to the terms of this Agreement and the respective
Equipment Schedule. No subrenting of any Equipment shall operate to relieve
Lessee of its obligations hereunder. The Lessee hereby grants to the Lessor the
right and opportunity to submit or match the last proposal for (i) the
subrenting of the Equipment, and (ii) the financing of any equipment which is
replacing the Equipment leased pursuant to this Agreement and any Equipment
Schedule. Each of the foregoing shall be conducted in a commercially reasonable
time frame and manner.
11.5 Customer hereby agrees that its representations and obligations under
this Agreement may be assigned by Comdisco, without notice, to the Lessor under
any Equipment Schedule issued hereunder, and further assigned by such Lessor,
without notice, to the Beneficiary.
12. VALUE ADDED TAX ("VAT")
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In addition to the Rent and other sums payable under this Agreement and any
Equipment Schedule, Lessee shall be responsible for and pay to Lessor any value
added tax, turnover tax, stamp tax, recording tax or similar tax thereon at the
rate in force on the due date of payment of any sums payable by Lessee under
this Agreement and any Equipment Schedule, and Lessee shall indemnify Lessor and
keep Lessor indemnified against any liability for such taxes which may be
incurred by Lessor in respect of the Equipment or its rental hereunder at the
location set forth in the Equipment Schedule. Lessee shall cooperate with
Lessor in obtaining any relevant documentation necessary to substantiate payment
of any such tax and in providing originals or certified copies thereof.
13. MISCELLANEOUS
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13.1 Service of all notices under this Agreement or any Equipment Schedule
shall be sufficient if given personally or posted to the party to be served at
its address herein or in such Equipment Schedule or at such address as the party
to be served may from time to time by notice in writing inform the other to be
its address for service of notice hereunder or thereunder and, if sent by first
class post, shall be deemed to be delivered 48 hours after posting.
13.2 It is acknowledged by the parties that the manufacturer or supplier of
the Equipment is not the agent and has no authority to act as the agent of
Lessor and that Lessor shall under no circumstances be responsible for any
warranty or representation made by any manufacturer or supplier except as stated
in this Agreement or such Equipment Schedule.
13.3 Lessor hereby excludes any conditions, warranties or representations
relating to the Equipment whether express or implied and whether statutory or
otherwise.
13.4 This Agreement shall be governed and construed for all purposes in
accordance with the law agreed upon in the applicable Equipment Schedule by
Lessor and Lessee. Comdisco and Customer hereby consent to such law.
13.5 Any payment hereunder or under any Equipment Schedule by Lessee to
Lessor shall be treated as paid on the date of its receipt by Lessor.
13.6 Neither this Agreement nor any Equipment Schedule executed hereunder
shall be varied in its terms by any oral agreement or representation or
otherwise than by an instrument in writing either of even date or subsequent
hereto or thereto executed by the respective parties or by their duly authorized
representatives.
13.7 The terms and conditions of any Equipment Schedule will supersede those
of all previous agreements either written or oral between Lessor and Lessee
relating to the Equipment.
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13.8 No right or remedy herein conferred upon or reserved to Lessor is
exclusive of any other right or remedy herein or by law or equity provided or
permitted but each shall be cumulative of every right or remedy given hereunder
or hereafter existing and may be enforced currently therewith or from time to
time.
13.9 No forbearance or indulgence on the part of Lessor shown or granted to
Lessee shall in any way restrict or diminish the full rights and powers of
Lessor under this Agreement or any Equipment Schedule or shall operate as a
waiver of any breach by Lessee of any of the terms and conditions of this
Agreement.
13.10 No Equipment Schedule executed hereunder shall become binding until
accepted in writing by a representative authorized in writing on Lessor's
behalf.
13.11 The printed titles given to the clauses of this Agreement are inserted
for convenience only, do not form part of this Agreement and have no effect upon
its operation and interpretation.
13.12 Customer hereby submits to the jurisdiction of the court agreed upon in
the applicable Equipment Schedule by Lessor and Lessee regarding the enforcement
of Customer's representations and obligations hereunder with respect to such
Equipment Schedule and Customer hereby appoints the Lessee in the applicable
Equipment Schedule as the Customer's agent for service of process with regard to
the foregoing.
13.13 In the event any one or more of the provisions of this Agreement and/or
any Equipment Schedule executed hereunder shall for any reason be held invalid,
illegal or unenforceable, the remaining provisions of this Agreement and/or any
such Equipment Schedule executed hereunder shall be unimpaired, and the invalid,
illegal or unenforceable provision shall be replaced by a mutually acceptable
valid, legal and enforceable provision, which comes closest to the intention of
the parties underlying the invalid, illegal or unenforceable provision.
13.14 Lessee shall obtain no title to any software or other licensed products
("products") attached to the Equipment delivered to Lessee, and such Products
shall at all times remain the property of the owner thereof. Prior to the legal
use of any such Products, Lessee shall be responsible to obtain or cause to be
obtained a license to use such Products from the owner thereof.
13.15 Customer will, upon execution of this Agreement, and as may be
requested thereafter, provide Lessor and/or Comdisco with a secretary's
certificate of incumbency and authority and any other documents which may be
requested by Lessor and/or Comdisco.
Done in three copies of this _________ day of __________, 1999.
COMDISCO, INC. ADVANCED TELECOMMUNICATIONS MODULES LIMITED
By:_________________________ By:_________________________
Title:______________________ Title:______________________
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