1
Exhibit 10.12
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Lessor NTFC CAPITAL CORPORATION MASTER CAPITAL LEASE AGREEMENT
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LESSEE INFORMATION
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Lessee Person to Contact/Title
PHASE METRICS, INC. R. Xxxxxx Xxxxxxxx
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Address Master Capital
Lease Agreement No. [X]Corporation
[ ]Proprietorship
[ ]Partnership
10260 Sorrento Valley Road 53440
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City County State Zip Code Telephone Number
San Diego Xxx Xxxxx XX 00000 (619)597-7978
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TERMS AND CONDITIONS (Reverse side contains Terms and Conditions which are
also a part of this Agreement)
1. LEASE: Subject to Lessee's compliance with its obligations herein, Lessor
shall purchase and lease to Lessee, and Lessee shall lease from Lessor, the
equipment and associated items ("Equipment") that shall be described on or
referred to in any Equipment Schedule ("Schedule") to this Master Capital Lease
Agreement ("Agreement") which is executed from time to time by Lessor and Lessee
and which makes reference to this Agreement. Each Schedule shall be subject to
the terms and conditions set forth in this Agreement. To the extent certain
computer programs and documentation used to describe, maintain and use the
programs ("Software") are furnished with the Equipment, and a non-exclusive
license and/or sublicense is granted in Lessee's agreement with a supplier
("Supplier") to purchase the Equipment ("Supplier Agreement"), Lessor grants to
Lessee a similar non-exclusive sublicense to use the Software only in
conjunction with the Equipment for so long as the Equipment is leased hereunder.
The Equipment and Software (collectively, the "System") include all parts,
repairs, additions, accessories, attachments and a substitutions thereto. Any
reference to "Lease" shall mean with respect to each System described in any
particular Schedule, this Agreement, the Schedule, the Consent of Supplier, the
Delivery and Acceptance Certificate, any riders, amendments and addenda thereto,
and other documents as may from time to time be made a part hereof. As
conditions precedent to Lessor's obligation to purchase and lease any Equipment
and sublicense the Software to Lessee, not later than the Scheduled Commencement
Date as set forth on the applicable Schedule, (a) Lessee and Lessor shall have
both executed this Agreement, a Schedule and other documentation as contemplated
herein in Lessor's form thereof, and (b) Lessor, in its reasonable opinion,
shall not determine that there has been a material adverse change in Lessee's
condition. Upon Lessor's execution and acceptance of the Schedule, Lessee hereby
assigns to Lessor its rights to receive title to the Equipment and any
non-exclusive sublicense to use the Software as of the date the System is
delivered to the location shown on the applicable Schedule ("Installation Site")
and delegates to Lessor its duty to pay to the Supplier the Price (as defined in
Section 5 below) for the System under the Supplier Agreement, but no other
right, interest or obligation thereunder. Effective upon the termination of the
Term (as defined below and as shown in the applicable Schedule), for any reason
after the commencement of the Lease, other than Lessee's election to purchase
the Equipment, Lessee hereby assigns to Lessor and Lessor hereby accepts from
Lessee, all of Lessee's then remaining rights pursuant to the applicable
Supplier Agreement.
2. TERM; RENEWAL AND EXTENSIONS: This Agreement will become effective upon
execution by both Lessee and Lessor and shall continue in effect thereafter so
long as any Lease remains in effect and may be terminated thereafter upon the
mutual agreement of the parties. Provided all other conditions precedent to a
Lease have been met, the lease term for the System described on each Schedule
shall commence on the earlier of the date of execution by the Lessee of Lessor's
form of Delivery and Acceptance Certificate or the date Lessor deems the System
accepted pursuant to Section 6 herein ("Commencement Date"), and continue and be
non-cancellable for the full number of months or other periods as set forth in
such Schedule ("Initial Term"), plus any mutually agreed extension thereto, if
any, (collectively, the "Term"), the first such full month commencing on the
first day of the month following the Commencement Date (or commencing on the
Commencement Date if such date is the first day of the month).
3. RENT AND PAYMENT: Lessee shall pay to Lessor all the rental payments as shown
in the applicable Schedule ("Rent") during the entire Term of the Lease, except
as such Rent may be adjusted pursuant to this Section, plus such additional
amounts as are due Lessor under the Lease. Rent shall be paid monthly (or other
Payment Frequency designated in the applicable Schedule) in advance on the first
day of each calendar month (or other such Payment Frequency period) (each such
date being hereinafter called a "Rent Payment Date"). If the Commencement Date
for a Lease is other than the first day of a calendar month (or other payment
period), Lessee shall pay to Lessor on the Commencement Date an amount equal to
the Rent set forth in the Schedule prorated daily based on a 360-day year for
each day from and including the Commencement Date to and including the last day
of such month or other payment period. The Rent is based upon the Supplier's
estimated total price of the System and the acceptance of the System by Lessee
on or before the Scheduled Commencement Date (as set forth in the Schedule). If
the Price (as defined below and as set forth in the Schedule) of the installed
System exceeds or is less than the estimate as a result of a job change order
("JCO"), the Lessee authorizes Lessor to adjust the Rent accordingly. If the
Commencement Date occurs after the Scheduled Commencement Date and Lessor waives
the condition precedent that the Commencement Date occur on or before the
Scheduled Commencement Date, Lessor's then current Lease Rate Factor for similar
transactions shall apply and the Lessee authorizes Lessor to adjust the Rent, if
required. Rent may also be adjusted as a result of any Modifications or
Additions (as defined in Section 1 of the Schedule) made pursuant to Section 2
of the Schedule. Lessor shall inform Lessee in writing of any such adjustment.
Whenever any payment of Rent or otherwise is not made within ten days of when
due, to the extent permitted by applicable law, Lessee agrees to pay on demand
(as a fee to offset Lessor's collection and administrative expenses), the
greater of twenty-five dollars per month or one and one-half percent per month
of all overdue amounts but not exceeding the lawful maximum, if any. All
payments provided for herein shall be payable to Lessor in U.S. dollars at
Lessor's address set forth in Section 22 hereof or such other place as Lessor
directs, in writing.
4. ADVANCE PAYMENT: Lessee shall pay to Lessor, upon the execution and delivery
of a Schedule, the advance payment set forth in that Schedule ("Advance
Payment") in consideration for the Lessor's holding funds available to purchase
the Equipment and sublicense the Software and as compensation for Lessor's
review of Lessee's credit. Upon Lessor's acceptance of the Lease, the Advance
Payment shall be applied to the payment(s) of Rent as set forth in the Schedule.
Any Advance Payment shall be non-refundable if Lessee fails to timely provide
all documentation and satisfy all conditions required by the Lease.
5. INTERIM FUNDING: Lessee hereby elects interim funding ("Interim Funding") and
Lessee delegates and Lessor hereby assumes, subject to this Section, the
obligation to pay the Price to Supplier pursuant to the applicable Supplier
Agreement, notwithstanding the fact that such payments may be due prior to the
Commencement Date ("Interim Funding Advances"). The term "Price" shall mean an
amount equal to the actual purchase price of the System as set forth in the
Supplier Agreement, and shall exclude all other costs, fees, damages, charges or
sales or other taxes, whether imposed by Supplier or any other party and whether
included in the Supplier Agreement as part of the purchase price of the System.
All Interim Funding Advances shall bear interest (calculated daily based upon a
360-day year) at an annual rate equal to the "Base Lending Rate" designated by
Citibank N.A., New York, New York adjusted as of the effective date of any
change in such designation, plus two and one-half percent, or such lesser rate
as shall be the maximum rate permitted by applicable law ("Interim Rate"). The
periodic Rent shall be increased as a result of adding to the Price of the
System an amount equal to the interest accrued on all Interim Funding Advances
from the date of each advance until the Commencement Date.
6. DELIVERY AND ACCEPTANCE: All transportation, delivery and installation
arrangements and costs (except to the extent any such costs are included in the
Price of the System upon which the Rent is computed) are the sole responsibility
of Lessee. Lessee assumes all risk of loss and the risk of any damages if the
Supplier fails to deliver or delays in the delivery of any System, or if any
System is unsatisfactory for any reason. Lessee agrees to accept the System, for
purposes of any Lease, by signing the Delivery and Acceptance Certificate within
thirty days after the date such System is connected to a public telephone
network in a manner permitting calls to be made through such System to or from
the Installation Site ("Cut-Over Date"). If Lessee fails or refuses to sign the
Delivery and Acceptance Certificate within thirty days after the Cut-Over Date,
(a) Lessor may declare Lessee's assignments and the delegation set forth in
Section 1 hereof to be null and void ab initio and thereupon the Lease shall
terminate; Lessor shall have no obligations under the Lease; and Lessee shall,
on demand, immediately pay to Lessor all amounts previously paid by Lessor to
Supplier, as Interim Funding Advances, plus Lessor's out-of-pocket expenses and
all accrued interest on such Interim Funding Advances at the Interim Rate from
the date of Lessor's payment to the Supplier to the date all sums due from
Lessee to Lessor under the Lease are paid in full; or (b) unless Lessee gives
Lessor written notice to the contrary within thirty days after the Cut-Over
Date, Lessor may conclusively assume that the System is in good operation order
and accepted by Lessee and Lessor may purchase the Equipment and obtain a
sublicense to use the Software, with the Initial Term to commence as of the
thirtieth day after the Cut-Over Date, as determined by the Supplier.
7. NET LEASE: THIS LEASE IS A NET LEASE AND LESSOR SHALL NOT BE RESPONSIBLE FOR
THE DELIVERY, INSTALLATION, MAINTENANCE, USE, OPERATION, PERFORMANCE, SERVICE OR
CONDITION OF ANY SYSTEM OR ANY DELAY IN, OR INADEQUACY OF, ANY OR
ALL OF THE FOREGOING: Lessee agrees that all of Lessee's obligations under the
Lease, specifically including its non-cancellable obligation to pay all Rent and
other amounts due, are and shall be absolute and unconditional, and shall not be
subject to any delay, reduction, setoff, defense, counterclaim or recoupment for
any reason whatsoever including any failure of the System, or any part thereof,
or any misrepresentations of any supplier, manufacturer, installer, vendor or
distributor. Lessor and Lessee acknowledge that any manufacturer's warranties
inure to the benefit of Lessee, to the extent such warranties are given, for so
long as the System is leased, and Lessee agrees to pursue any claim it has
directly against any supplier, manufacturer, installer, vendor or distributor
and agrees that it shall not pursue any such claim against Lessor. Lessee shall
continue to pay Lessor all amounts payable under the Lease under any and all
circumstances. Except as specifically set forth in the Lease, nothing contained
herein, in any Schedule, or elsewhere shall be deemed to modify, limit or expand
the rights, warranties, remedies, liabilities contained in the Supplier
Agreement, and neither Lessee nor Lessor shall have any greater rights,
warranties, or remedies than are provided to Lessee pursuant to the Supplier
Agreement.
8. QUIET ENJOYMENT: Lessor warrants that neither Lessor, nor any assignee or
anyone acting or claiming through Lessor will interfere with Lessee's quiet
enjoyment and use of the System so long as no Event of Default shall have
occurred under the Lease and be continuing.
9. TAXES AND FEES: Lessee shall promptly reimburse Lessor, upon demand, as
additional Rent(s), or shall pay directly, if so requested by Lessor, all
license and registration fees, sales, use, personal property taxes and all other
taxes and charges imposed by any federal, state, or local governmental or taxing
authority, relating to the purchase, ownership, leasing, subleasing, possession,
use, operation, or relocation of the System or upon the Rent or receipts with
respect to the Lease, excluding, however, all taxes computed upon the net income
of Lessor.
10. DISCLAIMER OF WARRANTIES AND DAMAGES: LESSEE ACKNOWLEDGES THAT (I) THE SIZE,
DESIGN, CAPACITY OF THE SYSTEM AND THE MANUFACTURER AND SUPPLIER HAVE BEEN
SELECTED BY LESSEE; (II) LESSOR IS NOT A MANUFACTURER, SUPPLIER, DEALER
DISTRIBUTOR OR INSTALLER OF PROPERTY OF SUCH KIND; (III) NO MANUFACTURER OR
EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 3, 5 AND 6 OF THIS
AGREEMENT OR SECTION 2 OF A SCHEDULE, ANY MODIFICATIONS,
AMENDMENTS OR WAIVERS TO THE LEASE SHALL BE EFFECTIVE ONLY IF
MUTUALLY AGREED UPON IN A WRITING, DULY EXECUTED BY AUTHORIZED
REPRESENTATIVES OF THE PARTIES.
NTFC CAPITAL CORPORATION PHASE METRICS, INC.
BY /s/ XXXX X. XXXXX BY /s/ X. X. XXXXXXXX
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Authorized Representative Authorized Representative
PRINT NAME XXXX X. XXXXX PRINT NAME X. X. XXXXXXXX
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TITLE MGR., CONTRACT ADM. DATE 1/13/96
--------------------- -------- TITLE V.P. DATE 1/1/96
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2
MASTER CAPITAL LEASE AGREEMENT
TERMS AND CONDITIONS (CONTINUED)
SUPPLIER OR ANY OF THEIR REPRESENTATIVES IS AN AGENT OF LESSOR OR AUTHORIZED TO
WAIVE OR ALTER ANY TERM OR CONDITION OF THE LEASE; AND (IV) EXCEPT FOR LESSOR'S
WARRANTY OF QUIET ENJOYMENT, LESSOR HAS NOT MADE AND DOES NOT HEREBY MAKE ANY
REPRESENTATION, WARRANTY OR COVENANT, WRITTEN OR ORAL, STATUTORY, EXPRESS OR
IMPLIED AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE DESIGN,
QUALITY, CAPACITY, MATERIAL, WORKMANSHIP, OPERATION, CONDITION, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR HIDDEN OR LATENT DEFECT OF THE SYSTEM OR
ANY PORTION THEREOF, OR AS TO ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT.
LESSEE LEASES THE SYSTEM "AS IS", "WHERE IS." IN NO EVENT SHALL LESSOR BE LIABLE
TO LESSEE OR ANY OTHER PERSON OR ENTITY FOR SPECIAL, DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY PERSONAL
INJURY DAMAGES, LOSS OF PROFITS OR SAVINGS, OR LOSS OF USE, OR FOR ANY DAMAGES
BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR LESSOR'S NEGLIGENCE (OTHER THAN
PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY LESSOR'S SOLE ACTIVE NEGLIGENCE),
OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM ANY BREACH OF
THE LEASE, USE OF THE SYSTEM OR OTHERWISE.
11. MAINTENANCE, USE, AND OPERATION: At all times during the Term, Lessee, at
its sole cost and expense, shall maintain the System in good repair, condition
and working order, ordinary wear and tear excepted; shall use the System and all
parts thereof for its designated purpose and in compliance with all applicable
laws; and shall at all times keep the System in its possession and control and
not permit such System to be moved from the Installation Site without Lessor's
prior written consent.
12. TITLE; SECURITY INTEREST; PERSONAL PROPERTY: Title to the Equipment is
vested in Lessor subject to Lessee's rights under the Lease. In order to secure
all of its obligations hereunder, Lessee hereby (i) grants to Lessor a first and
prior security interest in any and all right, title and interest of Lessee in
the Equipment Software and in all additions, attachments, accessions,
replacements and leased Modifications and Additions (as defined in Section 1 of
the Schedule) thereto and substitutions therefor, and proceeds thereof and (ii)
agrees that the Lease may be filed as a financing statement evidencing such
security interest. The System is, and shall at all times remain, the personal
property of Lessor even if the Equipment is affixed or attached to real property
or any improvements thereon. At Lessor's request, Lessee shall at no charge
promptly affix to the System any tags, decals, or plates furnished by Lessor
indicating Lessor's ownership of the Equipment and Lessee shall not permit their
removal or concealment. Lessee shall at all times keep the System free and clear
of all liens, and encumbrances, except those arising through the actions of
Lessor. Lessee, at its expense, shall otherwise cooperate to defend the title of
Lessor and to maintain the status of the System and all parts thereof as
personal property. If requested by Lessor, Lessee will, at Lessee's expense,
furnish a waiver of any interest in the Equipment from any party having an
interest in any such real estate or building in which the System, or any part
thereof, is located. Lessor may inspect the System at anytime during normal
business hours of Lessee.
13. RETURN OF SYSTEM: Unless the Lessee has exercised its option to purchase as
set forth in Section 3 of the Schedule at the end of the Initial Term, or any
extension thereof, or upon any prior termination of a Lease pursuant to the
terms of that Lease, Lessee shall, at its own risk and sole expense, immediately
return the System to Lessor, by properly removing, disassembling and packing it
for shipment, loading it on board a carrier acceptable to Lessor, and shipping
the same to a destination specified by Lessor, freight and insurance prepaid, in
the same condition and operating order as existed when received, ordinary wear
and tear excepted. Lessee shall pay to Lessor any amount necessary to place the
System in good repair condition and working order, ordinary wear and tear
excepted.
14. INSURANCE: Lessee shall, at its expense, upon delivery of each System to its
Installation Site and at all times thereafter, keep the System insured against
all risks of loss or damage for an amount equal to the installed replacement
cost for such System. Lessee shall also, at its expense, provide and maintain
comprehensive general liability insurance. All insurance policies shall name
Lessor as an additional insured and loss payee, as applicable, and shall be with
an insurer, having a "Best Policy Holders" rating of "A" or better, and in such
form, amount and deductibles as are satisfactory to Lessor. Each such policy
must state by endorsement that the insurer shall give Lessor not less than
thirty days prior written notice of any amendment, renewal or cancellation.
Lessee shall, upon request, furnish to Lessor satisfactory evidence that such
insurance coverage is in effect. Lessee may self insure with respect to the
above coverages, with Lessor's prior written consent.
15. CASUALTY: If any System, in whole or in part, shall be lost or stolen or
destroyed, or damaged from any cause whatsoever, or is taken in any condemnation
or similar proceeding by a governmental authority (any such event is hereafter
called an "Event of Loss"), Lessee shall promptly and fully notify Lessor
thereof. Lessee shall, at its option (i) immediately place the affected
Equipment and Software in good condition and working order, or (ii) replace the
affected item with like equipment or software in good repair, condition and
working order and transfer clear title or the sublicense thereto to Lessor, or
(iii) pay to Lessor, within ten days of the Event of Loss, an amount equal to
the Stipulated Loss Value ("SLV") (as hereinafter defined) for such affected
Equipment or Software plus any other amounts then due and unpaid with respect to
such Equipment and Software. If an Event of Loss occurs as to part of a System
for which the SLV is paid, such event shall be treated as applicable only to the
affected Equipment or Software, whereupon the Lease with respect thereto shall
terminate and a prorata amount of all future rentals therefor shall xxxxx from
the date the SLV payment is actually received by Lessor. Upon the making of all
required payments by Lessee pursuant to (iii) above, title to the applicable
Equipment or the sublicense to the applicable Software shall pass to Lessee,
(with no warranties) subject to the rights, if any, of the insurer. The SLV
shall be an amount calculated by Lessor which is the present value at the higher
of six percent (6%) simple interest rate or the lowest rate allowed by law of
all Rent and other amounts payable by Lessee with respect to a System, or
affected part thereof, from the date of the Event of Loss to the expiration date
of the applicable Term. If Lessor shall receive any insurance proceeds or net
awards, Lessor may, at its option, apply all or any part of such proceeds and
awards to any obligations of Lessee to Lessor.
16. DEFAULT: Lessee shall be in default under the Lease upon the occurrence of
any of the following events ("Event of Default" or "default"): (a) failure by
Lessee to pay any installment of Rent or other amounts payable under the Lease
for a period of ten days or more after receipt by Lessee of written notice
thereof from Lessor of such default; or (b) failure by Lessee to perform any
other material term, covenant or condition contained in any Lease or any other
agreement of Lessee given in connection with the Lease, and such failure or
breach shall continue uncured for twenty days after receipt by Lessee of written
notice thereof; (c) the inaccuracy of any material representation or warranty
made by the Lessee in connection with any Lease which failure or inaccuracy
shall continue for a period of thirty (30) days or more; or (d) Lessee's ceasing
to do business as a going concern or making a bulk sale; (e) except to the
extent prohibited by applicable law, the Lessee becoming insolvent, making an
assignment for the benefit of creditors, filling a voluntary petition or having
an involuntary petition filed or action commenced against it under the United
States Bankruptcy Code or any similar federal or state law; or (f) failure by
Lessee to perform any of its obligations under any other agreement or lease with
Lessor.
17. REMEDIES: If an Event of Default has occurred, Lessor shall have the right,
in its sole discretion, to exercise any one or more of the following remedies:
(a) declare any Lease entered into pursuant to this Agreement and/or any other
lease between Lessor and Lessee to be in default; (b) terminate any Lease; (c)
recover from Lessee all Rent and any and all amounts then due and unpaid; and
(d) recover from Lessee all Rent and other amounts to become due, by
acceleration or otherwise, on or before the expiration date of the applicable
Term (plus the estimated fair market value of the System at the end of the
applicable Term, if the System is not returned in accordance with Section 13
hereof), such amounts described insubsection (d) being discounted to the present
value at the higher of six percent (6%) simple interest rate or the lowest rate
allowed by law; such amounts described in (c) and (d) being the agreed upon
damages ("Liquidated Damages"); (e) charge Lessee interest on all the Liquidated
Damages due Lessor at the rate of one and one-half percent per month from the
date of default until paid, but in no event more than the maximum rate permitted
by law; (f) demand the Lessee return any System to Lessor in accordance with
Section 13; and (g) take possession of any System wherever located, with or
without demand or notice, or any court order or any process by law. Upon
repossession or return of a System, Lessor may at its sole option, sell, lease
or otherwise dispose of the System in a commercially reasonable manner, with or
without notice and on public or private bid, and apply the net proceeds thereof,
if any, toward the Liquidated Damages but only after deducting all expenses
including, without limitation, reasonable attorneys' fees incurred in
enforcement of any remedy of Lessor. Lessee shall be liable for any deficiency
if the net proceeds available after the permitted deductions are less than
Liquidated Damages. No right or remedy is exclusive of any other provided herein
or permitted by law or equity. All rights and remedies shall be cumulative and
may be enforced concurrently or individually from time to time.
18. INDEMNITY: Each Lease is a net lease. Therefore, Lessee shall indemnify
Lessor against, and hold Lessor harmless from, and covenants to defend Lessor
against, any and all losses, claims, liens, encumbrances, actions, suits,
damages, obligations, liabilities and liens (and all costs and expenses,
including, without limitation, reasonable attorneys' fees, incurred by Lessor in
connection therewith) arising out of or in any way related to the Lease
including, without limitation, the selection, purchase, delivery, ownership,
lease, licensing, possession, maintenance, condition, use, operation, rejection
or return of the System, the recovery of claims under insurance policies
thereon, from Lessee's failure to commence the Lease of a System, or from any
misuse, breach or violation of the Software sublicense, including, without
limitation, unauthorized duplication of or modification to the Software, or
arising by operation of law, excluding, however, any of the foregoing which
result from the sole negligence or willful misconduct of Lessor. Lessee agrees
that upon written notice by Lessor of the assertion of any claims, liens,
encumbrances, actions, damages, obligations or liabilities, Lessee shall assume
full responsibility for, or at Lessor's sole option, reimburse Lessor for, the
defense thereof. The provisions of this Section shall continue in full force and
effect notwithstanding full payment of the obligations under the Lease and
survive the termination of the Lease for any reason, provided, however, the
provisions hereof shall not survive longer than the applicable statute of
limitations.
19. ASSIGNMENT: Lessor may, in whole or in part, without notice to or the
consent of Lessee, sell, assign, grant a security interest in, or pledge its
interest in the System and/or the Lease and any amounts due or to become due
hereunder to any third party ("Assignee"). Upon receiving written notice from
Lessor, Lessee shall, if so directed, pay all Rent and other amounts due
directly to Assignee without abatement, deduction or setoff and free from any
deduction for any claim or counterclaim, defense or other right which Lessee may
have against Lessor or any other person or entity. Any Assignee shall be
entitled to rely on Lessee's agreements as stated in the Lease, as applicable,
and shall be considered a third-party beneficiary thereof. Lessee shall also
execute and deliver to Lessor or any Assignee any additional documentation as
Lessor or Assignee may reasonably request. Lessor shall be relieved of its
future obligations under the Lease as a result of such assignment if Lessor
assigns to Assignee ownership of the Equipment and Assignee assumes Lessor's
future obligations. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT
ASSIGN, SUBLEASE, TRANSFER, PLEDGE, MORTGAGE OR OTHERWISE ENCUMBER
(COLLECTIVELY, A "TRANSFER") THE SYSTEM OR THE LEASE OR ANY OF ITS RIGHTS
THEREIN OR PERMIT ANY XXXX, XXXX OR ENCUMBRANCE THEREON. Any attempted
nonconsensual Transfer by Lessee shall be void ab initio. No Transfer shall
relieve Lessee of any of its obligations under the Lease.
20. MISCELLANEOUS: (a) Any failure of Lessor to require strict performance by
Lessee or any waiver by Lessor of any provision of the Lease shall not be
construed as a consent to or waiver of any other breach of the same or of any
other provision. (b) No obligation of the Lessor hereunder shall survive the
expiration or other termination of the Lease. (c) All of the Lessee's
indemnities, waivers, assumptions of liability and duties contained in the Lease
and all Lessor's disclaimers shall continue in full force and effect and survive
the expiration or other termination of the Lease. (d) If there is more than one
Lessee, the obligations of each Lessee are joint and several. (e) The Lessee
agrees to execute and deliver to Lessor, upon demand, in a form satisfactory to
Lessor, any and all other documents and assurances reasonably requested from
time to time by Lessor, to evidence the intent of the Lease, or to protect
Lessor's interest in a System, including any UCC financing statements or any
waivers of interest or liens. To this end, Lessee appoints Lessor as its
attorney-in-fact to execute, deliver and file or record such financing
statements. Lessee agrees to pay the costs of filing or recording such
documentation. (f) Lessee shall deliver to Lessor such additional financial
information as Lessor may reasonably request. (g) THE LEASE SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TENNESSEE and the Lessee consents and agrees that
personal jurisdiction and subject matter jurisdiction shall be with the courts
of the State of Tennessee, or the Federal District Court for the Middle District
of Tennessee, solely at Lessor's option, with respect to any provision of the
Lease. (h) If any provision shall be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions shall not in any way be
affected or impaired. (i) In the event Lessee fails to pay or perform any
obligations under the Lease, Lessor may, at its option, pay or perform said
obligation, and any payment made or expense incurred by Lessor in connection
therewith shall be due and payable by Lessee upon demand by Lessor with interest
thereon accruing at the maximum rate permitted by law until paid. (j) No lease
charge, late charge, fee or interest, if applicable, is intended to exceed the
maximum amount permitted to be charged or collected by applicable law. If one or
more of such charges exceed such maximum, then such charges will be reduced to
the legally permitted maximum charge and any excess charge will be used to
reduce the Price of the System or refunded. (k) Time is of the essence in the
Lease and in each of the Lease provisions. (l) Lessee shall pay Lessor on demand
all costs and expenses, including reasonable attorneys' and collection fees
incurred by Lessor in enforcing the terms and conditions of the Lease or in
protecting Lessor's rights and interests in the Lease or the System.
21. TAX MATTERS: As between Lessor and Lessee, the Lease of any System hereunder
shall be a financing transaction and Lessee shall be entitled to claim any
available cost recovery deductions with respect to the Equipment.
22. NOTICES: Notices, demands and other communications to be effective shall be
transmitted in writing by telex, telecopy, or facsimile transmission and
confirmed by a similar mailed writing, by hand delivery, by first class,
Registered or Certified Mail, return receipt requested, or an overnight courier
service, addressed to Lessor at 000 Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000
(Attention: Treasurer) or to Lessee as the case may be, at the billing address
set forth on the applicable Schedule or at such other address as the parties may
hereinafter substitute by written notice. Notice shall be effective four (4)
days after the date it was mailed or upon receipt, whichever is earlier.
23. ORGANIZATION; AUTHORITY: The Lessee is duly organized and validly existing
and in good standing under the laws of its State of formation and has the power
and authority to execute and deliver this Agreement and any Schedules and riders
thereto. The person executing this Agreement and any Schedules has been given
authority to bind the Lessee and the Lease constitutes a legally binding and
enforceable obligation of the Lessee.
24. COUNTERPARTS: The Lease, including the Delivery and Acceptance Certificate
and any Schedules and riders thereto, may be executed by one or more of the
parties on any number of separate counterparts (which may be originals or copies
sent by facsimile transmission) each of which counterparts shall be an original,
but all of which taken together shall be deemed to constitute one and the same
instrument.
25. ENTIRE AGREEMENT: The Lease constitutes the entire agreement between Lessor
and Lessee with respect to the subject matter hereof and supersede all previous
negotiations, proposals, commitments, writings, and understandings of any nature
whatsoever. No agent, employee, or representative of Lessor has any authority to
bind Lessor to any representation or warranty concerning the System and, unless
such representation or warranty is specifically included in the Lease, it shall
not be enforceable by Lessee against Lessor.
26. BINDING NATURE: This Agreement and each Lease shall be binding upon and
inure to the benefit of Lessor and Lessee and their respective successors and
permitted assigns.
3
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Lessor
NTFC CAPITAL CORPORATION AGREEMENT ADDENDUM
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Lessee Agreement No.
PHASE METRICS, INC. 53440
--------------------------------------------------------------------------------
Contemporaneously with entering into the Agreement referenced above, Lessee and
Lessor agree to the following amendments to the Agreement:
27. SECTION 16. DEFAULT. The following words are added after subsection (d) of
Section 16 prior to the semicolon:
; provided however, Lessees' entering into a merger transaction that
is accounted for as a pooling of interests as permitted pursuant to
Section 19 shall not be considered an Event of Default.
28. SECTION 18. INDEMNITY. The words "which result from the sole" are deleted
from the tenth line of Section 18 and the words "to the extent they result from
the " substituted in lieu thereof.
29. SECTION 19. ASSIGNMENT. The following is added as the sixth and seventh
sentences of Section 19:
Notwithstanding the foregoing, Lessee is not required to obtain
Lessor's written consent prior to entering into a merger transaction
that is accounted for as a pooling of interests. However, Lessee shall
provide Lessor within 10 days after the consummation of such a
transaction all relevant information concerning the transaction as
well as execute and deliver to Lessor such documents as Lessor may
reasonably request including, without limitation, an assignment and
appropriate financing statements.
NTFC CAPITAL CORPORATION PHASE METRICS, INC.
BY /s/ XXXX X. XXXXX BY /s/ X. X. XXXXXXXX
------------------------------------------ ------------------------------------------
Authorized Representative Authorized Representative
PRINT NAME XXXX X. XXXXX PRINT NAME X. X. XXXXXXXX
--------------------------------- ---------------------------------
TITLE MGR. CONTRACT ADM. DATE 1/13/96
-------------------- ------------- TITLE V.P. DATE 1/1/96
-------------------- -------------
4
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Lessor
NTFC CAPITAL CORPORATION CERTIFICATE OF SECRETARY
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Lessee Agreement No.
PHASE METRICS, INC. 53440
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I, Xxxxxxx X. Xxxx , the secretary of Phase Metrics, Inc. , a California
corporation (hereinafter "Corporation"), hereby certify as follows:
1. I am the duly elected, qualified and acting ____________________ Secretary
of the Corporation, and I am charged with maintaining the records, minutes, and
seal of the Corporation.
2. The leasing of telecommunications equipment and the sublicensing of
associated software by the Corporation from Lessor, the execution and delivery
of a Master Capital Lease Agreement and Equipment Schedules thereto, whether
executed now or in the future, together with all related instruments and
documents (collectively "Leases") have been duly authorized by appropriate
corporate action.
3. Pursuant to the Corporation's By-laws, Certificate of Incorporation, and any
other appropriate documents of the Corporation as may be applicable, the
following named person has been properly designated and appointed to the office
indicated below, and that person continues to hold the office at this time.
NAME OF OFFICER TITLE SIGNATURE OF OFFICER
X. X. Xxxxxxxx Vice President /s/ X. X. XXXXXXXX
------------------ ----------------- --------------------------
4. Pursuant to the Corporation's By-laws, Certificate of Incorporation, and any
other appropriate documents of the Corporation as may be applicable, the person
designated to serve in the above-entitled capacity has been given sufficient
authority to act on behalf of, and to bind the Corporation with respect to the
execution and delivery of the Leases.
5. The Leases will constitute valid, legal, binding and enforceable obligations
of the Corporation upon execution by the person whose name is set forth above
and by an authorized representative of NTFC Capital Corporation.
6. Pursuant to the Corporation's By-laws, Certificate of Incorporation, and any
other appropriate documents of the Corporation as may be applicable, I have the
power and authority to execute this Certificate on behalf of the Corporation,
and I have so executed this Certificate and set the seal of the Corporation on
the 1st day of January, 1996.
(SEAL)
By: /s/ XXXXXXX X. XXXX
------------------------------------
Secretary
Note: The officer designated in paragraph 3
above must be other than the Secretary or
Assistant Secretary executing this
Certificate.
