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EXHIBIT 10.16
LESSOR: RIVIERA FINANCE EAST BAY LESSEE: ON VILLAGE COMMUNICATIONS, INC.
A Washington Corporation A California Corporation
Address: 00000 Xxxxxxxxxxx Xxxx., #000 Address: 000 X. Xx Xxxxxxx Xxxx., # 000
Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
1. LEASE OF EQUIPMENT
By this Master Equipment Lease which, together with all Lease
Schedules, Acceptance Certificates, riders, exhibits, amendments and other
documents now or hereafter attached hereto and made a part hereof, is
hereinafter referred to as the "Lease," Lessor leases to Lessee and Lessee
leases from Lessor, subject to terms and conditions contained in this Lease, the
personal property, together with all replacement parts, repairs, additions and
accessories (collectively, the "Equipment") described in any Lease Schedule
which shall become a part hereof. Notwithstanding anything to the contrary
expressed or implied in this Lease, the terms and conditions of this Lease shall
be construed and interpreted as to each Lease Schedule as if a separate but
identical lease shall have been executed between the parties with regard to the
equipment on such Lease Schedule. The Equipment is to be delivered and installed
at On Village Communications, Inc.
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This Lease consists of nineteen sections, including the terms and provisions of
any Lease Schedule, Acceptance Certificate, rider, exhibit, amendment or other
document now or hereafter attached hereto and made a part hereof. THIS LEASE
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES. LESSEE ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST.
This Lease may not be amended, nor may any rights hereunder be waived, except by
an instrument in writing signed by the party charged with such amendment or
waiver. The term "Lessee" as used herein shall mean and include any and all
Lessees who sign hereunder, each of whom shall be jointly and severally bound
hereby. This Lease will not be binding on Lessor until executed by Lessor.
By execution hereof, signer
certified that he or she has read,
accepted and duly executed this
Master Equipment Lease Agreement on
behalf of Lessee.
DATED AS OF: Xxxxx 00, 0000
Xxxxxx: RIVIERA FINANCE EAST BAY Lessee: ON VILLAGE COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx Xxxxx Xxxxxx
Title: Senior Vice President Title: President
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Lessee's expense at the location specified on the applicable Lease Schedule. The
Equipment shall be deemed to have been accepted by Lessee for all purposes under
this Lease upon Lessor's receipt of an Acceptance Certificate with respect to
such Equipment, executed by Lessee after receipt of all other documentation
required by Lessor with respect to such Equipment. Lessor shall not be liable or
responsible for any failure or delay in the delivery of the Equipment to Lessee
for whatever reason.
2. TERM & RENT
The lease of each item of Equipment shall commence on the date of the
Acceptance Certificate with respect to such item and shall continue for the
number of months, and any proration thereof, specified in the applicable Lease
Schedule. Rental payments shall be in the amounts and shall be due and payable
as set forth in the applicable Lease Schedule. Lessee shall, in addition, pay
interim rent to Lessor on a pro-rata basis from the Acceptance Date to the Lease
Term Commencement Date set forth in the applicable Acceptance Certificate on
such Lease Term Commencement Date. If any rent or other amount payable hereunder
shall not be paid when due, Lessee shall pay as an administrative and late
charge an amount equal to 5% of the amount of any such overdue payment. In
addition, Lessee shall pay interest on such delinquent payment from 30 days
after the due date until paid at the rate of 1 1/2% per month or the maximum
amount permitted by law, whichever is lower. All payments to be made to Lessor
shall be made to Lessor at the address shown above, or at such other place as
Lessor shall specify in writing. THIS IS A NON-CANCELABLE, NON-TERMINABLE LEASE
FOR THE TERM SET FORTH IN EACH LEASE SCHEDULE HERETO.
3. POSSESSION; INSPECTION; PERSONAL PROPERTY
No right, title or interest in the Equipment shall pass to Lessee other
than the right to maintain possession and use of the Equipment for the full
lease term (provided no Event of Default has occurred) free from interference by
any person claiming by, through, or under Lessor. At its option, Lessor may
require Lessee, at Lessee's expense, to affix labels, plates or markings in a
prominent location on the Equipment indicating Lessor is the owner. Lessor may
enter the premises where the Equipment is located during business hours for the
purpose of inspecting the Equipment and, during the last six months of the term
of this Lease, for the purposes of showing the Equipment to prospective
purchasers or lessees of the Equipment. The Equipment shall always remain
personal property even though the Equipment may hereafter become attached or
affixed to real property. Lessee agrees to give and record such notices and to
take such other action at its own expense as may be necessary to prevent any
third party (other than an assignee of Lessor) from acquiring or having the
right under any circumstances to acquire any interest in the Equipment or this
Lease. In the event such third party does acquire or have the right any interest
in the Equipment or this Lease, Lessee shall remove such third party's interest
within 30 days of its being asserted.
4. DISCLAIMER OF WARRANTIES
LESSOR IS NOT THE MANUFACTURER OF SUPPLIER OF THE EQUIPMENT, NOR THE
AGENT THEREOF, AND MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT,
ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN OR CONDITION, ITS XXXXXXX
XXXXXXX, XX 00000 OR DURABILITY, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OR
CONFORMITY OF THE EQUIPMENT TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE
ORDER RELATING THERETO, OR PATENT INFRINGEMENTS, AND HEREBY DISCLAIMS ANY SUCH
WARRANTY. LESSOR IS NOT RESPONSIBLE FOR ANY REPAIRS OR SERVICE TO THE EQUIPMENT,
DEFECTS THEREIN OR FAILURES IN THE OPERATION THEREOF. Lessee has made the
selection of each item of Equipment and the manufacturer and/or supplier thereof
based on its own judgment and expressly disclaims any reliance upon any
statement or representations made by Lessor. For so long as no Event of Default
has occurred and is continuing, Lessee shall be the beneficiary of, and shall be
entitled to, all rights under any applicable manufacturer's or vendor's
warranties with respect to the Equipment, to the extent permitted by law.
If the Equipment is not delivered, is not properly installed, does not
operate as warranted, becomes obsolete, or is unsatisfactory for any reason
whatsoever, Lessee shall make al claims on
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account thereof solely against the manufacturer or supplier and not against
Lessor, and Lessee shall nevertheless pay all rentals and other sums payable
hereunder. Lessee acknowledges that neither the manufacturer of supplier of the
Equipment, nor any sales representative or agent thereof, is an agent of Lessor,
and no agreement or representation as to the Equipment or any other matter by
any such sales representative or agent of the manufacturer or supplier shall in
any way affect Lessee's obligations hereunder.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
Lessee represents and warrants to and covenants with Lessor that:
(a) Lessee has the form of business organization indicated above and is
duly organized and existing in good standing under the laws of the state listed
in the caption of the Lease and is duly qualified to do business wherever
necessary to carry on its present business and operations and to own its
property; (b) this Lease has been duly authorized by all necessary action on the
part of Lessee consistent with its form of organization, does not require any
further shareholder or partner approval, does not require the approval of, or
the giving notice to, any federal, state, local or foreign governmental
authority and does not contravene any law binding on Lessee or contravene any
certificate or articles of incorporation or by-laws or partnership certificate
or agreement, or any agreement, indenture, or other instrument to which Lessee
is a party or by which it may be bound; (c) this Lease has been duly executed
and delivered by authorized officers or partners of Lessee and constitutes a
legal, valid and binding obligation of Lessee enforceable in accordance with its
terms; (d) Lessee has not and will not, directly or indirectly, create, incur or
permit to exist any lien, encumbrance, mortgage, pledge, attachment or security
interest on or with respect to the Equipment or this Lease (except those of
persons claiming by, through or under Lessor); (e) the Equipment will be used
solely in the conduct of Lessee's business and will remain in the location shown
on the applicable Lease Schedule unless Lessor and Lessee otherwise agree, in
writing and Lessee has completed all notifications, filings, recordings and
other actions in such new location as Lessor may reasonably request to protect
Lessor's interest in the Equipment; (f) there are no material adverse changes
in the financial condition or operation of Lessee since the date of its
financial statements provided to Lessor nor any pending or threatened actions or
proceedings before any court or administrative agency which materially adversely
affect Lessee's financial condition or operations and all information so
provided is, and all information hereafter furnished will be, true and correct
in all material respects; (g) Lessee has not and is not now engaged in, and
shall not, during any time that any of Lessee's obligations hereunder are
outstanding, engage in any conduct or activity, including, but not necessarily
limited to, a pattern of racketeering activity, that would subject any of
Lessee's assets to forfeiture; and (h) Lessor has not selected, manufactured or
supplied the Equipment to Lessee and has acquired any Equipment subject hereto
solely in connection with this Lease and Lessee has received and approved the
terms of any purchase order or agreement with respect to the Equipment.
6. INDEMNITY
Lessee assumes the risk of liability for, and hereby agrees to
indemnify and hold safe and harmless, and covenants to defend, Lessor, its
employees, servants and agents from and against: (a) any and all liabilities,
losses, damages, claims and expenses (including legal expenses of every kind and
nature) arising out of the manufacturing, purchase, shipment and delivery to
Lessee, acceptance or rejection, ownership, titling, registration, leasing,
possession, operations, use, return or other disposition of the Equipment,
including, without limitation, any of such as may arise from patent or latent
defects in the Equipment (whether or not discoverable by Lessee), any claims
based on absolute tort liability or warranty and any claims based on patent,
trademark or copyright infringement; (b) any and all loss or damage of or to the
Equipment, normal wear and tear excepted; and (c) any obligation or liability to
the manufacturer and any supplier of the Equipment arising under the purchase
orders issued or assigned to Lessor.
The covenants and indemnities contained in this Section and Section 7
shall survive the termination of this Lease.
7. TAXES AND OTHER CHARGES
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Lessee agrees to comply with all laws, regulations and governmental
orders related to this lease and to the Equipment and its use or possession, and
to pay when due, and to defend and indemnify Lessor against liability for all
license fees, assessments, and sales, use, property, excise, privilege and other
taxes (including any related interest or penalties) or other charges or fees now
or hereafter imposed by any governmental body or agency upon any Equipment, or
with respect to the manufacturing, ordering, shipment, purchase, ownership,
delivery, installation, leasing, operations, possession, use, return, or other
disposition thereof or the rentals hereunder (other than taxes on or measured
solely by the net income of Lessor). Any fees, taxes or other lawful charges
paid by Lessor upon failure of Lessee to make such payments shall at Lessor's
option become immediately due from Lessee to Lessor.
If a True Lease Schedule shall be made a part of this Lease, then, with
respect to the Equipment set forth on such True Lease Schedule, Lessor has
assumed the following tax benefits (the "Tax Benefits"): (i) that it will be
entitled to cost recovery deductions under Section 1 68 of the Internal Revenue
Code of 1986, as amended (the "Code"), using a 200% declining balance method of
depreciation as set forth in Section 168(b) of the Code for the applicable
recovery period for such Equipment under Section 168(c) of the Code as set forth
in the True Lease Schedule with respect to the Equipment, and (ii) that Lessor
will be taxed throughout the term of the Lease Schedule at Lessor's federal
corporate income tax rate existing on the date of such Lease Schedule (the
"Assumed Tax Rate"). If, for any reason whatsoever, there shall be a loss,
disallowance, recapture or delay in claiming all or any portion of the Tax
Benefits with respect to modification or improvement to or in respect of any of
the Equipment made or paid for by Lessee, or if there shall be a change in the
Assumed Tax Rate (any loss, disallowance, recapture, delay, inclusion or change
being herein called a "Tax Loss"), then thirty (30) days after written notice to
Lessee by Lessor that a Tax Loss has occurred, Lessee shall pay Lessor a lump
sum amount which, after deduction of all taxes required to be paid by Lessor
with respect to the receipt of such amount, will provide Lessor with an amount
necessary to maintain Lessor's after-tax economic yield and overall net
after-tax cash flows at least the same level that would have been available if
such Tax loss has not occurred, plus any interest, penalties or additions to tax
which may be imposed in connection with such Tax Loss. A Tax Loss shall
conclusively be deemed to have occurred if either (a) a deficiency shall have
been proposed by the Internal Revenue Service or other taxing authority having
jurisdiction, or (b) tax counsel for Lessor has rendered an opinion to Lessor
that such Tax Loss has so occurred. The foregoing indemnity shall continue in
full force and effect notwithstanding the expiration or termination of the Lease
or the Lease Term of the Schedule Equipment and each item thereof.
8. DEFAULT
Lessee shall be in default of this Lease upon the occurrence of any one
of the following events (each an "Event of Default"):
(a) Lessee shall fail to make any payment, of rent or otherwise,
hereunder promptly when due; or (b) Lessee shall fail to perform or observe any
covenant, condition or agreement under this Lease, and such failure continues
for 10 days after notice thereof to Lessee, or shall default in the payment of
any indebtedness to Lessor or any parent, subsidiary or affiliated company of
Lessor under any note, security agreement, equipment lease, title retention or
conditional sales agreement or any instrument or agreement evidencing such
indebtedness with Lessor or any parent, subsidiary or affiliated company of
Lessor, or if Lessee shall default in the performance of or compliance with any
term contained in any agreement or instrument with respect to such indebtedness,
if the effect of such default is to cause or permit such indebtedness to become
due prior to its stated maturity, or if any such indebtedness is not paid by
maturity; or (c) any representation or warranty made by Lessee herein or in any
certificate, agreement, statement or document heretofore or hereafter furnished
Lessor in connection herewith including, without limitation, any financial
information disclosed to Lessor, shall prove to be false or incorrect in any
material respect; or (d) death or judicial declaration of incompetence of
Lessee, if an individual; the commencement of any bankruptcy, insolvency,
arrangement, reorganization, receivership, liquidation or other similar
proceeding by or against Lessee or any of its properties or business, or the
appointment of a trustee, receiver, liquidator or custodian for Lessee or any of
its properties of business, or if Lessee suffers the entry of an order for
relief under Title 11 of the United
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States Code; or the making by Lessee of a general assignment or deed of trust
for the benefit of creditors; or (e) the Equipment shall be abused,
substantially damaged or destroyed or Lessor shall reasonably deem the Equipment
to be unsafe or at risk; or (f) Lessee shall default in meeting any of its
trade, tax, borrowing or other obligations as they mature, except to the extent
Lessee is contesting any such obligations is good faith and has established
adequate reserves therefor; or (g) Lessee shall terminate its existence by
merger, consolidation, sale of substantially all of its assets or otherwise; or
(h) Lessor shall determine, in its sole discretion and in good faith, that
Lessee's ability to may any payment hereunder promptly when due or otherwise
comply with the terms of this Lease or any other agreement between Lessor and
Lessee is impaired; or (i) any event or condition set forth in subsections (b),
(c), (d), (e), M, (g), or (h) of this Section 8 shall occur with respect to any
guarantor or other person responsible, in whole or in part, for payment or
performance of this Lease.
Lessee shall promptly notify Lessor of the occurrence of any Event of
Default or the occurrence or existence of any event or condition which, upon the
giving of notice or lapse of time, or both, may become an Event of Default.
9. REMEDIES
Upon the occurrence of any Event of Default, Lessor may, at its sole
option and discretion, to the extent permitted by applicable law, exercise one
or more of the following remedies with respect to any or all of the Equipment
(a) cause Lessee to, upon written demand of Lessor and at Lessee's expense,
promptly return any or all Equipment to such location as Lessor may designate in
accordance with the terms of Section 18, or Lessor, at its option, may enter
upon the premises where the Equipment is located and take immediate possession
of and remove the same by summary proceedings or otherwise, all without
liability to Lessor for or by reason of damage to property or such entry or
taking possession; (b) sell any or all the Equipment at public or private sale
or otherwise dispose of, hold, use, operate, lease to others or keep idle the
Equipment, all as Lessor in its sole discretion may determine and all free and
clear of any rights of Lessee; (c) remedy such default, including making repairs
or modifications to the Equipment, for the account of and the expense of Lessee
and Lessee agrees to reimburse Lessor for all of Lessor's costs and expenses;
(d) by written notice to Lessee, terminate this Lease with respect to any or all
Lease Schedules in default and the Equipment subject thereto, as such notice
shall specify, and, with respect to such terminated Lease Schedules and
Equipment, declare immediately due and payable and recover from Lessee, as
liquidated damages for loss of a bargain and not as a penalty, an amount equal
to the sum of (i) all rental payments accrued and unpaid, plus interest and late
charges thereon, calculated as of the date payment is actually made, plus (ii)
the net present value of all rental payments to become due during the remaining
term of each such Lease Schedule, plus the amount of any purchase or renewal
option or obligation with respect to such Equipment, or, if there is no such
option or obligation, then the fair market value of the Equipment at the end of
such term, as estimated by Lessor in its sole, reasonable discretion, discounted
at a rate of 6% per annum, calculated as of the date payment is actually made,
plus (iii) all other amounts then payable to Lessor hereunder; (e) apply any
deposit or other cash collateral or sale or remarketing proceeds of the
Equipment at any time as it sees fit to reduce any amounts due to Lessor, and
(f) exercise any other right or remedy which may be available to it under
applicable law, or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof, including reasonable
attorneys' fees and court costs.
No remedy referred to in this Section 9 is intended to be exclusive,
but each shall be cumulative and in addition to any other remedy referred to
above or otherwise available to Lessor at law or in equity. The exercise or
beginning of exercise by Lessor of any one or more of such remedies shall not
preclude the simultaneous or later exercise by Lessor of any or all such other
remedies and all remedies hereunder shall survive termination of this Lease.
At any sale of the Equipment pursuant to this Section 9, Lessor may bid
for and purchase the Equipment. Notice required, if any, of any sale or other
disposition hereunder by Lessor shall be satisfied by the mailing of such notice
to Lessee at lease seven (7) days prior to the sale or other disposition. In the
event Lessor takes possession and disposes of the Equipment, Lessor shall give
Lessee credit for any sums actually received by Lessor from the disposition of
the Equipment after deductions of expenses of disposition and the amounts due to
Lessor under Section 9(d) above. A
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termination shall occur only upon written notice by Lessor and only with respect
to such Equipment as Lessor shall specify in such notice. Termination under this
Section 9 shall not affect Lessee's duty to perform Lessee's obligations
hereunder to Lessor in full. Lessee agrees to reimburse Lessor on demand for any
and all costs and expenses incurred by Lessor in enforcing its rights and
remedies hereunder following the occurrence of an Event of Default, including,
without limitation, reasonable attorneys' fees, and the costs of repossession,
storage, insuring, reletting, selling and disposing of any and all Equipment.
10. ADDITIONAL SECURITY
To the extent necessary to protect the Lessor's interest in any of the
Equipment leased hereunder, Lessee grants, to Lessor a security interest in all
such Equipment. In order more fully to secure its rental payments and all other
obligations to Lessor hereunder, Lessee hereby grants to Lessor a security
interest in any deposit of Lessee to Lessor under Section 3(d) of any Lease
Schedule hereto. Such security deposit shall not bear interest, may be
commingled with other funds of Lessor and shall be immediately restored by
Lessee if applied under Section 9(e). Upon expiration of the term of this Lease
and satisfaction of all of Lessee's obligations, the security deposit shall be
returned to Lessee. The term 'Lessor' as used in this Section 10 shall include
any subsidiary, parent or affiliate of Lessor.
11. NOTICES
Any notices and demands required or permitted to be given under this Lease shall
be given in writing and by regular mail and shall become effective when
deposited in the United States Mail with postage prepaid to Lessor to the
attention of Customer Accounts, and to Lessee at the addresses herein above set
forth, or to such other address as the party to receive notice hereafter
designates by such written notice.
12. USE; REPAIRS; LOSS AND DAMAGE
Lessee will cause the Equipment to be operated in accordance with any
applicable manufacturer's manuals, instructions or requirements by competent and
duly qualified personnel only, in accordance with applicable requirements of
law, if any, and for business purposes only. Lessee at its own cost and expense,
shall keep the Equipment in good repair, condition and working order, in
accordance with any applicable manufacturer's manuals, instructions or
requirements and shall furnish all parts, mechanisms, devices and servicing
required therefor. All such parts, mechanisms and devices shall immediately
become the property of Lessor and part of the Equipment for all purposes hereof.
Lessee hereby assumes all risk of loss, damage or destruction for whatever
reason to the Equipment from and after the earlier of the date (a) on which the
Equipment is ordered, or (b) Lessor pays the purchase price of the Equipment,
and continuing as set forth in Section 18 hereof. If any item of Equipment shall
become lost, stolen, destroyed, damaged beyond repair or rendered permanently
unfit for use for any reason, or in the event of any condemnation, confiscation,
theft or seizure or requisition of title to or use of such item, Lessee shall
promptly pay to lessor an amount equal to the greater of (i) the full
replacement value of such item or (ii) the net present value of all rental
payments then remaining unpaid for the term of the Lease plus the amount of any
purchase or renewal option or obligation with respect to such item or, if there
is no such option or obligation, then the fair market value of the Equipment at
the end of such term, as estimated by Lessor in its sole, reasonable discretion,
discounted at a rate of 6% per annum.
13. INSURANCE
Lessee shall procure and maintain, upon such terms and with such
companies as Lessor may approve, during the entire term of this Lease, at
Lessee's expense, (a) Worker's Compensation and Employer's Liability Insurance,
in the full statutory amounts provided by law; (b) Comprehensive General
Liability Insurance including product/completed operations and contractual
liability coverage, with minimum limits of $1,000,000 each occurrence, and
Combined Single Limit Body Injury and property Damage, $1,000,000 aggregate,
where applicable; and (c) All Risk Physical Damage Insurance, including
earthquake and flood, on each item of Equipment, in an amount not less then the
greater of (i) the full replacement value of such item of (ii) the net present
value of all rental payments then
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remaining unpaid for the term of the lease plus the amount of any purchase or
renewal option or obligation with respect to such items or, if there is no such
option or obligation, then the fair market value of the Equipment at the 'end of
such term, as estimated by Lessor in its sole, reasonable discretion,
discounted at a rate of 6% per annum. Lessor will be included as an additional
insured and loss payee as its interest may appear. Such policies shall be
endorsed to provide that the coverage afforded to Lessor shall not be
rescinded, impaired or invalidated by any act or neglect of Lessee. Lessee
agrees to waive Lessee's right and its insurance carrier's right of subrogation
against Lessor for any and all loss or damage.
In addition to the foregoing minimum insurance coverage, Lessee shall
procure and maintain such other insurance coverage's as Lessor may require from
time to time during the term of this Lease. All policies shall contain a clause
requiring the insurer to furnish Lessor with at least 30 days' prior written
notice of any material change, cancellation or non-renewal of coverage. Upon
execution of this Lease, Lessee shall furnish Lessor with a certificate of
insurance of other evidence satisfactory to Lessor that such insurance
coverage's are in effect, provided, however, that Lessor shall be under no duty
either to ascertain the existence of or to examine such insurance coverage or to
advise Lessee in the event such insurance coverage should not comply with the
requirements hereof. In case of failure of Lessee to procure or maintain
insurance, Lessor may at its option obtain such insurance, the cost of which
will be paid by the Lessee of additional rentals. Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact to file, settle or adjust, and
receive payment of claims under any such insurance policy and to endorse
Lessee's name on any checks, drafts or other instruments of payment of such
claims. Lessee further agrees to give Lessor prompt notice of any damage to, or
loss of, the Equipment, or any part thereof.
14. LIMITATION Of LIABILITY
Lessor shall have no liability in connection with or arising out of the
ownership, leasing, furnishing, performance or use of the Equipment or any
special, indirect, incidental or consequential damages of. any character,
including, without limitation, loss of use of production facilitates or
equipment, loss of profits, property damage or lost production, whether suffered
by Lessee or any third party.
15. FURTHER ASSURANCES
Lessee shall promptly execute and deliver to Lessor such further
documents and take such further action as Lessor may require in order to more
effectively carry out the intent and purpose of this Lease. Lessee shall provide
to Lessor within 120 days after the close of each of Lessee's fiscal years, and
upon Lessor's request, within 45 days of the end of each quarter of Lessee's
fiscal year, a copy of its financial statements prepared in accordance with
generally accepted accounting principles. Lessee shall execute and deliver to
Lessor upon Lessor's request such instruments and assurances as Lessor deems
necessary for the confirmation, preservation or perfection of this Lease and
Lessor's rights hereunder, including, without limitation, such corporate.
resolutions and opinions of counsel as Lessor may request from time to time, and
all schedules, forms, and other reports as may be required to satisfy
obligations imposed by taking authorities. In furtherance thereof, Lessor may
file or record this Lease or a memorandum or a photocopy hereof (which for the
purposes hereof shall be effective as a financing statement) so as to give
notice to third parties, and Lessee hereby appoints Lessor as its
attorney-in-fact to execute, sign, file and record UCC financing statements and
other lien recordation documents with respect to the Equipment where Lessee
fails or refuses to do so after Lessor's written request, and Lessee agrees to
pay or reimburse Lessor for any filing, recording or stamp fees or taxes arising
from any such filings.
16. ASSIGNMENT
This Lease and all rights of Lessor hereunder shall be assignable by
Lessor absolutely or as security, without written notice to Lessee, subject to
the rights of Lessee hereunder. Any such assignment shall not relieve Lessor of
its obligations hereunder unless specifically assumed by the assignee, and
Lessee agrees it shall not assert any defense, rights of set-off or counterclaim
against
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any assignee to which Lessor shall have assigned its rights and interests
hereunder, nor hold or attempt to hold such assignee liable for any of Lessor's
obligations hereunder.
LESSEE SHALL NOT ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS
UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE WITH RESPECT TO ANY OF THE EQUIPMENT
WITHOUT THE EXPRESS WRITTEN CONSENT OF LESSOR.
17. LESSEE'S OBLIGATIONS UNCONDITIONAL
This Lease is a net lease and Lessee hereby agrees that it shall not be
entitled to any abatement of rents or of any other amounts payable hereunder by
Lessee and that its obligation to pay all rent and any other amounts owing
hereunder shall be absolute and unconditional under all circumstances,
including, without limitation, the following circumstances: (i) set-off,
counterclaim, recoupment, defense or other right which Lessee may have against
Lessor, any seller or manufacturer of any Equipment or anyone else for any
reason whatsoever; (ii) the existence of any liens, encumbrances or rights of
others whatsoever with respect to any Equipment, whether or not resulting from
claims against Lessor not related to the ownership of such Equipment; or (iii)
any other event or circumstances whatsoever. Each rent or other payment made by
Lessee hereunder shall be final and Lessee will not seek to recover all or any
part of such payment from Lessor for any reason whatsoever.
18. RETURN OF EQUIPMENT
Upon expiration of the term of the Lease for each item of Equipment, as
specified in the applicable Lease Schedule, or upon demand of Lessor as provided
in Section 9, Lessee, at its own expense, shall immediately return the Equipment
described in such Lease Schedule in the same condition as when delivered to
Lessee, ordinary wear and tear excepted, to such location as Lessor shall
designate. The Equipment shall be returned free and clear of all liens,
encumbrances and rights of others. The risk of loss of the Equipment shall
remain with Lessee until the returned Equipment is accepted by Lessor or such
other entity to whom the Equipment is returned, and Lessee shall maintain
insurance on the Equipment in accordance with Section 13 until such acceptance
occurs. Unless and until the Equipment is returned and accepted as herein
provided, or otherwise disposed of by written agreement of Lessor and Lessee,
the term of this Lease with respect to such Equipment shall continue on a
month-to-month basis terminable by Lessor upon 30 days advance written notice at
a rent per month equal to the highest monthly rent for the Equipment payable
during the Lease term.
19. ENFORCEABILITY AND GOVERNING LAW
Any provision of this Lease which is unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions hereof, and any
such unenforceability in any jurisdiction shall not render unenforceable such
provisions in any other jurisdiction. To the extent permitted by applicable law,
Lessee hereby waives any provisions of law which render any provision hereof
unenforceable in any respect. Any waiver of the terms hereof shall be effective
only in the specific instance and for the specific purpose given. Time is of the
essence in this Lease. The captions in this Lease are for the convenience only
and shall not define or limit any of the terms hereof.
THIS LEASE SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA LESSEE HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA FOR THE
PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ITS OBLIGATIONS
HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE TO THE VENUE OF
SUCH COURTS. LESSEE HEREBY EXPRESSLY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
ON OR WITH RESPECT TO THIS LEASE. Any action by Lessee against Lessor for any
cause of action under this Lease shall be brought within one year after any such
cause of action first occurs.
Page 8 of 16
9
SCHEDULE A - EQUIPMENT
Attached to and made part of the following documents:
Master Equipment Lease Agreement, #97-020 dated April 21, 1997, between Riviera
Finance East Bay ("Lessor") and On Village Communications, Inc. ("Lessee").
QUANTITY DESCRIPTION SERIAL # AMOUNT
1 Sony Pentium 20 - 200mhz 2103378 $ 1,799.00
1 Xxxxxxx Xx00XX EJ025880859 $ 1,999.00
0 Xxxxxxxx Xxxxxx X/X $ 399.98
1 HP Laserjet 6MP USBB051303 $ 869.00
1 Mustek Color Scanner HWF94FSA2 $ 369.00
1 Xxxxxxx Xx00XX EJ025880140 $ 1,924.00
1 Xxxxxxx Xx00XX EJ025880162 $ 1,924.00
1 Xxxxxxx Xx00XX EB035880020 $ 1,924.00
0 Xxxxxxxx Xxxxxx X/X $ 599.97
1 Alp Glidepoint Keypad 00A4004995G $ 119.00
1 Tech Media - 200mhz TCP0002174 $ 1,499.00
1 Tech Media - 14" monitor DJ60703668 $ 179.00
1 Cardinal Modem N/A $ 184.99
1 Xxxxxxx Xx00XX EJ025880173 $ 1,964.00
1 XXX 000 ARE6A96450016 $ 3,054.95
1 Compaq Notebook 268150005 $ 3,059.98
1 Epson Printer and zip drive 1F8E623688 $ 686.93
1 Nextstep workstation CUSTOM $ 7,933.00
1 *Voyager storage array 970430137/00 $67,357.30
1 G5-133 Pro Pentium PC 7007261 $ 1,678.00
1 G5-133 Pro Pentium PC 7007262 $ 1,678.00
1 G5-133 Pro Pentium PC 7007263 $ 1,678.00
1 M55-166 Mini Tower 848106-0004 $ 1,549.00
1 M55-166 Mini Tower 848106-007 $ 1,549.00
1 M55-166 Mini Tower 848106-0030 $ 1,549.00
1 M55-166 Mini Tower 848106-0026 $ 1,549.00
1 Xxxxxxx Xx00XX EB035880009 $ 1,999.00
TOTAL $111,075.10
ALL EQUIPMENT WILL BE LOCATED AT THE FOLLOWING ADDRESS:
On Village Communications, Inc. *STORAGE ARRAY IS AT:
000 X. Xx Xxxxxxx Xxxx., Xxxxx 000 NETWORK PUBLISHING
Xxx Xxxxxxx, XX 00000 XXX XXXX XXXXXX XX., XXXXX 000
XXXXX, XX 00000
RIVIERA FINANCE EAST BAY ON VILLAGE COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President Title: President
Page 9 of 16
10
LEASE SCHEDULE NO. 00-000
Xxxxxx: On Village Communications, Inc.
Address: 000 X. Xx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
1. Lessor and Lessee have entered into a Master Equipment Lease
Agreement dated as of April 21, 1997, including this Lease Schedule
(collectively, the "Lease"), pursuant to which Lessor and Lessee have agreed to
lease the equipment described in Schedule A hereto (the "Equipment"). Lessee
reaffirms all of its representations, warranties and covenants set forth in the
Lease, all of the terms and provisions of which are incorporated herein by
reference, as of the date hereof and further certifies to Lessor that Lessee has
selected the Equipment and has received and approved the purchase order,
purchase agreement or supply contract under which the Equipment will be acquired
for purposes of this Lease. To the extent necessary to protect Lessor's interest
in the Equipment, Lessee grants to Lessor a first priority security interest in
the Equipment.
2. The assumed Acquisition Cost of the Equipment is: $500,000.
3. a. Term. The Lease Term is thirty-six (36) months commencing on the
Lease Term Commencement Date as set forth in the Acceptance Certificate to this
Lease Schedule plus any partial period between the Acceptance Date of the
Equipment as set forth in the Acceptance Certificate and the Lease Term
Commencement Date.
b. Rental Payments. Lessee shall pay Lessor thirty-six (36) rental
payments in the following amounts plus any applicable sales/use taxes,
commencing on the Rental Payment Commencement Date set forth in the Acceptance
Certificate and on the 1st day of each month thereafter for the entire Lease
Term:
Amount of Each
Rental Payment Nos. Rental Payment
1-36 3.3558% of Equipment Cost
In the event that the Rental Payments set forth in any Acceptance Certificate
hereto differ from those set forth in this Section 3(b), the Rental Payments
shall be as set forth in the Acceptance Certificate.
c. Lessee agrees to pay Lessor, in advance, the first
(1) rental payment prorata Funding Date.
x. Xxxxxx agrees to pay Lessor a payment in the amount
of 15% of equipment cost to be held by Lessor as a
deposit to secure Lessee's performance under the
Lease.
4. The Equipment will be located at the locations specified in Schedule
A hereto.
5. Lessor will invoice Lessee for all sales, use and/or personal
property taxes as and when due and payable in accordance with applicable law,
unless Lessee delivers to Lessor a valid exemption certificate with respect to
such taxes. Delivery of such certificate shall constitute Lessee's
Page 10 of 16
11
representation and warranty that no such tax shall become due and payable with
respect to the Equipment and Lessee shall indemnify and hold harmless Lessor
from and against any and all liability or damages, including late charges and
interest which Lessor may incur by reason of the assessment of such tax.
6. The Rental Payments may change for Equipment accepted after June 1,
1997.
Dated as of April 21, 1997. By execution hereof, the signer
certifies that he has read, accepted
and duly executed this Lease Schedule
to the Master Equipment Lease Agreement
on behalf of Lessee.
RIVIERA FINANCE EAST BAY ON VILLAGE COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President Title: President
Page 11 of 16
12
PURCHASE OPTION RIDER
Purchase Option Rider to Lease Schedule No. 97-020 (the "Schedule") to Master
Equipment Lease Agreement dated as of April 21, 1997, (the "Lease") between the
undersigned parties.
If the Lease Term of the Equipment described in the Schedule has not been
terminated and no Event of Default under the Lease has occurred and is
continuing, Lessee shall have the option to purchase all, but not less than all
of such Equipment at the end of its Lease Term. Lessee shall notify Lessor in
writing of Lessee's intention to exercise such option at least sixty (60) days
prior to the expiration of such Lease Term. The Purchase Option Price of such
Equipment shall be due and payable, in immediately available funds, on the last
day of such Lease Term and shall be an amount equal to $1.00.
The sale of the Equipment by Lessor to Lessee shall be on an AS-IS,
WHERE-IS basis, without recourse to, or warranty by, Lessor.
All capitalized or other terms used herein which are not defined herein
shall have the meaning given to such terms in the Lease.
DATED AS OF: April 21, 1997
RIVIERA FINANCE EAST BAY ON VILLAGE COMMUNICATIONS, INC.
By: /s/ XXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx Xxxxx Xxxxxx
Title: Senior Vice President Title: President
Page 12 of 16
13
CORPORATE RESOLUTION
STATE OF CALIFORNIA
COUNTY OF
I, Xxxxxx Xxxxxx, President, being duly sworn, do state that I am the duly
elected, qualified and acting President of On Village Communications, Inc., a
California Corporation and that the following resolution was approved by the
Board of Directors of said Corporation on _____________, 1997, at a duly
convened meeting of said Board, at which time a quorum was present and that the
said resolution has not been amended nor repeated:
WHEREAS, Xxxxxx Xxxxxx, President, and Xxxx Xxxxx, Chief Financial Officer, have
negotiated with Riviera Finance East Bay for a non-cancelable lease of certain
property to wit:
QUANTITY DESCRIPTION SERIAL # AMOUNT
1 Sony Pentium 20 - 200mhz 2103378 $ 1,799.00
1 Xxxxxxx Xx00XX EJ025880859 $ 1,999.00
0 Xxxxxxxx Xxxxxx X/X $ 399.98
1 HP Laserjet 6MP USBB051303 $ 869.00
1 Mustek Color Scanner HWF94FSA2 $ 369.00
1 Hitachi E133TC EJ025880140 $ 1,924.00
1 Hitachi E133TC EJ025880162 $ 1,924.00
1 Hitachi E133TC EB035880020 $ 1,924.00
0 Xxxxxxxx Xxxxxx X/X $ 599.97
1 Alp Glidepoint Keypad 00A4004995G $ 119.00
1 Tech Media - 200mhz TCP0002174 $ 1,499.00
1 Tech Media - 14" monitor DJ60703668 $ 179.00
1 Cardinal Modem N/A $ 184.99
1 Hitachi E133TC EJ025880173 $ 1,964.00
1 XXX 000 ARE6A96450016 $ 3,054.95
1 Compaq Notebook 268150005 $ 3,059.98
1 Epson Printer and zip drive lF8E623688 $ 686.93
1 Nextstep workstation CUSTOM $ 7,933.00
1 Voyager storage array 970430137/00 $ 67,357.30
1 G5-133 Pro Pentium PC 7007261 $ 1,678.00
1 G5-133 Pro Pentium PC 7007262 $ 1,678.00
1 G5-133 Pro Pentium PC 7007263 $ 1,678.00
1 M55-166 Mini Tower 848106-0004 $ 1,549.00
1 M55-166 Mini Tower 848106-007 $ 1,549.00
1 M55-166 Mini Tower 848106-0030 $ 1,549.00
1 M55-166 Mini Tower 848106-0026 $ 1,549.00
1 Hitachi E133TC EB035880009 $ 1,999.00
TOTAL $111,075.10
for 36 monthly payments as follows:
Months 1-36 3.3558% of Equipment Cost
The Board of Directors have examined all the terms of said lease.
NOW THEREFORE BE IT RESOLVED, that Xxxxxx Xxxxxx, President, and Xxxx Xxxxx,
Chief Financial Officer, are directed, empowered and authorized to sign on
behalf of this Corporation the above-referenced non-cancelable lease, (Copy of
which is attached to this resolution and by this reference incorporated herein),
said lease obligating the corporation to pay, among other obligations, lease
payments as outlined above.
/s/ XXXXXX X. XXXXXX, Pres.
--------------------------------
Xxxxxx Xxxxxx, President
Page 13 of 16
14
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5 years
from date of filing.
--------------------------------------------------------------------------------------------------------------------
A. NAME & TEL. # OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT. # (optional)
--------------------------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Riviera Finance East Bay
000 Xxxxxx X, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION [if applicable]: [ ] LESSOR/LESSEE [ ] CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
--------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b)
--------------------------------------------------------------------------------------------------------------------
1a. ENTITY'S NAME
On Village Communications, Inc.
OR --------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
000 X. Xx Xxxxxxx Xxxx. #000 Xxx Xxxxxxx XX 00000
--------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL 1e. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL
ADD'NL INFO RE OR COUNTRY OF I.D.#, if any
ENTITY DEBTOR ORGANIZATION [ ] NONE
--------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
--------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR --------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
--------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL
ADD'NL INFO RE OR COUNTRY OF I.D.#, if any
ENTITY DEBTOR ORGANIZATION [ ] NONE
--------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME -
insert only one secured party name (3a or 3b)
--------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
Riviera Finance East Bay
OR --------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
--------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
00000 Xxxxxxxxxxx Xxxx., #000 Xxxxxxx XX 00000
--------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
Attached Schedule A - List of Equipment, leased by Lessor to Lessee under
Master Lease #97-020 dated as of April 21, 1997, insurance, covering same,
and proceeds of all the foregoing.
--------------------------------------------------------------------------------------------------------------------
5. CHECK [ ] This FINANCING STATEMENT is signed by the 7. If filed in Florida (check one)
BOX Secured Party instead of the Debtor to perfect [ ] Documentary [ ] Documentary stamp
(if a security interest (a) in collateral already stamp tax paid tax not applicable
applicable) subject to a security interest in another
jurisdiction when it was brought to this state,
or when the debtor's location was changed to this
state, or (b) in accordance with other statutory
provisions (additional data may be required)
--------------------------------------------------------------------------------------------------------------------
6. REQUIRED SIGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
[SIG] On Village Communications, Inc. Attach Addendum (if applicable)
--------------------------------------------------------------------------------------------------------------------
9. [ ] Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
[ADDITIONAL FEE]
[SIG] Riviera Finance East Bay (optional) [ ] All Debtors [ ] Debtor 1 [ ] Debtor 2
--------------------------------------------------------------------------------------------------------------------
(1) FILING OFFICER COPY - NATIONAL FINANCING STATEMENT (FORM UCC1)(TRANS)(REV. 12/18/95) WOLCOTTS FORM
UCCNAT01
(price class 13C)
