Exhibit 10.2
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DEXXON CAPITAL CORPORATION
MASTER LEASE AGREEMENT
NO. 22250
Dated October 18, 1999
LESSEE: APPLIED BIOMETRICS, INC.
ADDRESS: 000 Xxxx Xxxxxxx 00
Xxxxxxxxxx, XX 00000
This Master Lease Agreement is entered into as of the date set forth below by
and between DEXXON CAPITAL CORPORATION ("Lessor") and Lessee with reference to
the following facts:
A. From time to time Lessee desires to lease various items of personal
property from Lessor; and
X. Xxxxxx and Lessee desire to set forth the terms and conditions under
which such lease(s) shall be governed.
C. "Master Lease" shall mean this agreement; "Lease" shall mean each
Schedule entered into between Lessor and Lessee pursuant to this Master
Lease.
NOW THEREFORE, Lessor and Lessee agree as follows:
TERMS AND CONDITIONS OF LEASE
1. LEASE. Lessor shall lease to Lessee and Lessee shall lease from Lessor the
items of equipment and other personal property (hereinafter, together with all
replacements, repairs, substitutions, additions, accessions and accessories
therefor and/ or thereto, called the "Equipment") described in the lease
Schedule(s) (hereinafter individually called a "Schedule" and collectively
called "Schedules") now or hereafter from time to time executed by Lessor and
Lessee and made a part hereof, all upon the terms and conditions hereinafter set
forth as supplemented with respect to each item of Equipment by the terms and
conditions set forth in each Schedule.
2. TERM. Each Schedule shall become effective upon acceptance by Lessor by
signing and dating each Schedule and the term for any Schedule(s) shall commence
on the day that the leased property has been delivered to and is usable by
Lessee ("Commencement Date"). Lessee shall at its sole discretion select the
type, quantity and supplier of each item of Equipment. Lessor shall not be
liable to Lessee for any failure or delay in obtaining delivery of any
Equipment. Upon delivery of any Equipment to Lessee, Lessee shall forthwith
inspect such Equipment and, within ten( 10) days of delivery of the Equipment,
Lessee shall execute and deliver to Lessor a Delivery and Acceptance
Certificate, in form and substance satisfactory to Lessor. Lessee's execution
and delivery of a Delivery and Acceptance Certificate covering any Equipment
shall conclusively establish, as between Lessor and Lessee, that such Equipment
has been unconditionally accepted by Lessee for all purposes of this Lease.
With respect to each Lease, if for any reason the Equipment has not been
delivered, installed and accepted by Lessee within sixty(60) days after it is
ordered by Lessor, or if Lessee fails to accept the Equipment and execute a
Delivery and Acceptance Certificate within (10) days following delivery of the
Equipment, Lessor may at Lessor's option, terminate Lessor's obligations under
such Lease and Lessee shall, on demand of Lessor, pay Lessor all amounts paid or
owing by Lessor in respect to the purchase of such Equipment and indemnify and
hold Lessor harmless from any and all liabilities, claims, costs and expenses to
the manufacturer or supplier/ vendor of the Equipment or any other party,
arising out of or relating to the Equipment or the Lease. Upon payment of such
amounts, Lessor shall release, remise and quit claim such Equipment to Lessee,
AS IS, WHERE IS, AND WITHOUT WARRANTY EXPRESSED OR IMPLIED BY LESSOR AS TO ANY
MATTER WHATSOEVER. Lessee shall upon such payment be subrogated to Lessor's
claim, if any, against the manufacturer or supplier/ vendor of such Equipment.
Lessee agrees that its remedies should it find fault with any of the Equipment
shall be and are solely against the manufacturer and/or supplier/vendor of such
Equipment. The base term of each Lease shall commence on the first day of the
month following the Commencement Date and terminate upon the expiration of the
number of months specified in each Schedule. Each Lease may be terminated by
Lessee at the end of the base term if one hundred eighty (180) days prior to the
end of the base term, written notice of such termination is delivered to Lessor
(by certified mail). If Lessee does not exercise option to purchase as stated in
Lease Schedule (s) , Lease may be terminated by Lessor at the end of the base
term if at least thirty (30) days prior to the end of the base term, written
notice of such termination is delivered to Lessee (by certified mail). If Lessee
does not exercise option to purchase, the term of each Lease automatically shall
be extended for a successive one year period following the end of the initial
base term at the rent stated on the respective Schedule (s). During this
extension period, Lessor, at its sole option, may terminate each Lease upon
sixty (60) days prior written notice to Lessee (by certified mail), After the
extension period, each Lease may be terminated by either Lessor or Lessee at the
end of any calendar month, provided one hundred twenty (120) days prior written
notice of such termination is delivered to the other party (by certified mail).
3. RENT. The monthly rent payable with respect to any Schedule(s) shall be the
amount shown on such Schedules). Lessee shall pay to Lessor the monthly rent for
each Schedule, in advance, for each month or any part thereof that each Lease is
in effect. The first such payment, with respect to any schedule shall be made on
the first day of the month following the Commencement Date. A prorata portion of
the rental charges based on a daily rental of one-thirtieth (1/30) of the
monthly rental calculated from the Commencement Date to the end of the month
shall be due and payable at the Commencement Date. Installments of rent which
are not paid within ten (10) days of their due date shall be subject to a late
charge equal to up to ten (10) percent of each installment of rent. All rent
shall be paid at the place of business of Lessor shown above or such other place
as Lessor may designate by written notice to Lessee. Lessee agrees to pay all
taxes and fees, including, but not limited to, property taxes, sales taxes,
business taxes,documentation and filing fees.
4. DISCLAIMER OF LESSOR WARRANTIES. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT TO BE
LEASED HEREUNDER WlLL BE OF A TYPE, DESIGN, SIZE, CAPACITY AND MANUFACTURER
SELECTED BY LESSEE; THAT LESSOR IS NOT A MANUFACTURER OF, OR DEALER IN, THE
EQUIPMENT; THAT NEITHER THE VENDOR, THE MANUFACTURER NOR ANY AGENT THEREOF IS AN
AGENT OF LESSOR; THAT LESSOR HAS NOT, WlLL NOT, AND HAS NO OBLIGATION TO,
INSPECT THE EQUIPMENT PRIOR TO DELIVERY TO LESSEE; THAT LESSOR IS NOT
RESPONSIBLE FOR REPAIRS, SERVICE OR DEFECTS IN EQUIPMENT OR OPERATION THEREOF;
AND THAT LESSOR HAS NOT MADE, WILL NOT MAKE AND HEREBY DISCLAIMS ANY
REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, OF ANY KIND OR
ANY MATTER WHATSOEVER ON WHICH LESSEE MAY RELY, INCLUDING WITHOUT LIMITATION THE
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH LAWS,
GOVERNMENTAL REGULATIONS OR RULES, ORDERS, SPECIFICATIONS OR CONTRACT,
CONDITION, TITLE, QUALITY, DESIGN, DURABILITY OR SUITABILITY FOR LESSEE'S
PURPOSES OF THE EQUIPMENT IN ANY RESPECT, OR ANY PATENT INFRINGEMENT, OR LATENT
OR PATENT DEFECTS. LESSOR WILL, HOWEVER, UPON LESSEE'S REQUEST AND IF LESSEE IS
NOT IN DEFAULT, TAKE ANY STEPS REASONABLY WITHIN ITS POWER TO MAKE AVAILABLE TO
LESSEE ANY MANUFACTURER'S OR SIMILAR WARRANTY APPLICABLE TO THE EQUIPMENT.
LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY ABILITY, LOSS OR DAMAGE CAUSED OR
ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT OR ANY INADEQUACY
THEREOF OR DEFICIENCY OR DEFECT THEREIN OR BY ANY INCIDENT WHATSOEVER IN
CONNECTION THEREWITH, AND LESSEE HEREBY ACKNOWLEDGES THE FOREGOING DISCLAIMER BY
LESSOR.
5. NET LEASE; NO OFFSET. THIS IS A NET LEASE, AND ALL RENT AND ALL OTHER SUMS
PAYABLE BY LESSEE HEREUNDER SHALL BE PAID UNCONDITIONALLY WHEN DUE, WITHOUT
ABATEMENT, DEDUCTION, COUNTERCLAIM OR SETOFF OF ANY NATURE, INCLUDING WITHOUT
LIMITATION ANY COUNTERCLAIM OR SETOFF ARISING OUT OF ANY PRESENT OR FUTURE CLAIM
LESSEE MAY HAVE AGAINST LESSOR, OR ANY ASSIGNEE OF LESSOR OR THE MANUFACTURER OR
SUPPLIER OF THE EQUIPMENT, OR ANY OTHER PARTY. In no event, except as otherwise
expressly provided herein, shall this Lease terminate or shall any of the
Lessee's obligations be affected by reason of' any detect in or damage to or
loss or destruction of all or any part of the Equipment, from any cause
whatsoever, or any interference with Lessee's use of the Equipment by any person
or for any other cause whatsoever.
6. COMMERCIAL RISK. Lessee bears all risk that the Equipment may become unusable
for any reason, including without limitation, loss, theft, damage, destruction,
defect, GOVERNMENTAL REGULATION, PROHIBITION, IMPRACTICABILITY OF USE,
OBSOLESCENCE OR COMMERCIAL FRUSTRATION. No inability to use the Equipment shall
result in the termination of any Lease or relieve Lessee from any of its
obligations under any Lease.
7. USE AND LOCATION. Lessee shall use the Equipment in a careful and proper
manner and in compliance with all laws, ordinances, regulations and insurance
policy conditions in any way relating to the possession, use or maintenance of
the Equipment. Unless the Equipment is of a type normally used at more than one
location (such as vehicular equipment, construction machinery or the like),
Lessee shall not remove the Equipment from the location designated in the
applicable Schedule(s) without the prior written consent of Lessor. If an item
of Equipment is of a type normally used at more than one location, Lessee shall
not use the Equipment outside of the area designated in the applicable
Schedule(s) without the prior written approval of Lessor. Lessee shall comply
with any and all applicable environmental laws and will not use any hazardous
substances with the Equipment. Lessee represents and warrants to Lessor that the
Equipment is being leased and will be used solely for commercial or business
purposes and will not be used for personal, family or household purposes.
8. OWNERSHIP. The Equipment is, and shall at all times be and remain, the sole
and exclusive property of Lessor, and Lessee shall have no right, title or
interest therein or thereto except as expressly set forth in this Lease. Plates,
labels or other markings stating that the Equipment is owned by Lessor shall be
affixed to or placed on the Equipment by Lessor or, at Lessor's request or if
required by law, by Lessee at Lessee's expense, and Lessee shall keep the same
in a prominent position thereon.
9. PERSONAL PROPERTY. The Equipment is, and shall at all times be and remain,
personal property notwithstanding that it or any part thereof may now be or
hereafter become, in any manner affixed or attached to, or embedded in, real
property or any building thereon. Lessee agrees that it will furnish and record,
at its own expense, such owners; mortgagees', landlords', or other disclaimers,
waivers, or consents as may be necessary or reasonably requested by Lessor in
order to give full effect to the intent and provisions of the preceding
sentence.
10. MAINTENANCE AND REPAIRS. Lessee, at its own cost and expense, shall keep the
Equipment in good repair, condition and working order and shall furnish any and
all parts, mechanisms and devices required for such purpose. All such parts,
mechanisms and devices affixed to any Equipment shall thereupon become the
property of Lessor and subject to the terms and conditions of this Lease. Lessee
shall modify Equipment if required by any governmental authority or law and will
make such modification known to Lessor by written notice to be delivered by
certified mail.
11. ALTERATIONS, Without the prior written consent of Lessor, Lessee shall not
make any alterations, additions or improvements to the Equipment. All additions
and improvements of whatsoever kind or nature made to the Equipment shall be
made at Lessee's cost and expense and when made become the property of Lessor
and subject to the terms and conditions of this Lease.
12. LESSOR'S INSPECTION. Lessor shall during normal business hours have the
right to enter into and upon any premises where any Equipment may be located for
the purpose of inspecting such Equipment or observing its use. Lessee shall,
whenever requested by Lessor, advise Lessor of the exact location of any and all
items of Equipment.
13. LOSS, THEFT AND DAMAGE. Lessee hereby assumes and shall bear the entire risk
of loss, theft, damage or destruction of the Equipment from any and every cause
whatsoever, whether or not insured. No loss, theft, damage or destruction of the
Equipment or any part thereof shall impair any obligation of Lessee under this
Lease which shall continue in full force and effect except as hereinafter
provided in this Paragraph 13. In the event of loss, theft, damage or
destruction of any kind to any Equipment, Lessee shall promptly notify Lessor
thereof and, at Lessor's option and request, Lessee shall forthwith:
a. place such Equipment in good repair, condition and working order, or
b. replace such Equipment with like equipment having a market value at least
equal to the market value of such Equipment immediately prior to such loss,
theft, damage or destruction, and in good repair, condition and working order,
and furnish to Lessor all necessary documents vesting good and marketable
title thereto in Lessor unencumbered by any lien or security interest, which
replacement Equipment shall thereupon become the property of Lessor and be
subject to the terms and conditions of this Lease; or
c. if Lessor determines that such Equipment is lost, stolen, destroyed or
damaged beyond repair, pay Lessor therefor in cash the "Stipulated Loss Value"
of such Equipment, defined as all rent and other amounts due and to become due
under the Lease with respect to such Equipment.
Upon replacement of any such lost, stolen, or damaged Equipment pursuant to
subparagraph (b) above or payment pursuant to subparagraph (c) abaove, this
lease shall terminate with respect to such loss, stolen or damaged Equipment
so replaced or paid for and Lessee shall thereupon become entitled to such
Equipment AS-IS and WHERE-IS and without warranty, expressed or implied, with
respect to any matter whatsoever.
14. INSURANCE. Lessee shall at its own cost and expense (a) keep the Equipment
insured at all times during the Lease term against all risks of loss or damage
(including so-called extended coverage), theft, collision (where applicable) and
such other risks as Lessor may reasonably require in an
amount not less than the greater of the Stipulated Loss Value of the Equipment
or replacement value of the Equipment, and (b) maintain comprehensive public
liability and property damage insurance covering the Equipment in such amount as
Lessor shall approve, in each case upon such terms and written by such companies
as Lessor shall approve. All such insurance policies shall name Lessor, Lessee
and any assignee of Lessor pursuant to Paragraph 19 as insured and loss payees,
shall provide at least thirty (30) days prior written notice to Lessor and any
assignee of any cancellation or alteration thereof,
and shall provide that all amounts payable by reason of loss, theft or damage to
Equipment shall be payable only to Lessor or any assignee. Any proceeds of such
insurance resulting from loss, theft, or damage to Equipment shall be paid to
Lessor and applied at Lessor's sole discretion towards (I ) the repair and
replacement of such Equipment, (2) the payment of the obligations of Lessee
under such Lease, or (3) towards each in any proportion. Lessee shall have no
right to receive any excess insurance proceeds until or unless Lessee cures all
defaults under any Lease between Lessee and Lessor. Upon execution of each Lease
and at least thirty (30) days prior to expiration of any applicable insurance
policy, Lessee shall deliver to Lessor certificates of insurance or other
evidence satisfactory to Lessor showing the existence, continuation or
replacement of the insurance coverage required by this Paragraph 14, but Lessor
shall be under no duty to examine such certificate or other evidence of
insurance or to advise Lessee in the event its insurance is not in compliance
with the requirements hereof. 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 in payment of such claims. Lessor and any
assignee shall have a property interest in all insurance to be procured by
Lessee pursuant to any Lease, and any failure of Lessee to procure and keep
required insurance effective at all times shall be deemed a breach of a
fiduciary duty owed by Lessee to Lessor and any assignee. In the event that
Lessee fails to deliver to Lessor a certificate of insurance, Lessor or assignee
at its option, may, but shall not be required to obtain insurance on its own
behalf and Lessee shall pay Lessor a charge for such, or because of increased
credit risks to Lessor when not insured by Lessee, Lessee agrees to pay Lessor
each month a risk-charge in the amount of .025% of original equipment cost until
Lessee provides proof of compliance with insurance requirements.
15. ENCUMBRANCES AND TAXES. Lessee shall keep the Equipment free and clear of
all levies, liens and encumbrances, and shall pay promptly when due, and shall
indemnify and hold Lessor harmless from, all license fees, registration fees,
import duties, assessments, charges and taxes (municipal, state, federal or
other) which may now or hereafter be imposed upon the ownership, leasing,
renting, sale, possession or use of the Equipment (whether the same be assessed
to Lessor or Lessee), together with any penalties or interest in connection
therewith, excluding, however, all taxes on or measured by Lessor's net income.
If any such fee, assessment, duty, charge or tax is, or is to be, assessed or
billed to Lessor, Lessee upon the request of Lessor and at the expense of Lessee
shall do any and all things required to be done by Lessor in connection with the
levy, assessment, billing and payment thereof. Upon Lessor's request, Lessee
shall, on any property tax returns required to be filed with respect to the
Equipment, including the property covered by this Lease and any substitutions or
additions thereto as property owned by Lessee for purposes of tax assessments,
shall cause all xxxxxxxx of such fees, assessments, duties, charges or taxes to
be addressed to Lessor in care of Lessee, and shall submit to Lessor written
evidence of payment of the same. Alternatively, Lessee shall at the request of
Lessor, forthwith pay Lessor the amount (estimated or otherwise) of any such
fees, assessments, duties, charges and taxes, and Lessor shall apply the same to
the payment thereof. Lessee shall also pay all taxes arising out of Lessee's
exercise of any purchase option relating to any Lease (including sales tax).
16. LESSOR'S PAYMENT. In case of failure of Lessee to procure or maintain proper
insurance or to pay such fees, assessments, duties, charges and taxes or to keep
any item of Equipment free and clear of all levies, liens and encumbrances or in
good repair, condition and working order, all as herein before provided, Lessor
shall have the right, but not the obligation, without notice to or demand upon
Lessee, and without releasing Lessee from any obligation herein before
specified, to effect and pay for such insurance or to pay such fees,
assessments, duties, charges and taxes or to keep such Equipment in good repair,
condition and working order, as the case may be, and to pay, purchase, contest
or compromise any encumbrance, charge or lien which in the sole judgment of
Lessor appears to affect such Equipment, and in exercising any such right, to
incur any liability and expend whatever amounts in its absolute discretion it
may deem necessary therefor. All sums so incurred or expended by Lessor shall
immediately become due and payable by Lessee upon payment by Lessor and shall
thereafter bear interest at the rate of 18% per annum, but not greater than the
highest rate permitted by any applicable usury law.
17. RETURN OF EQUIPMENT. Upon expiration of the term of any Lease,(unless Lessee
shall have duly exercised any purchase option with respect to such Lease), or
after default, on demand by Lessor, Lessee will at its sole cost and expense
deliver the Equipment (in the same condition as when delivered to Lessee,
reasonable wear and tear resulting from authorized use thereof alone excepted)
to Lessor's premises set forth above or any place designated by Lessor in
writing, for such disposition as Lessor may determine. No such return shall
constitute termination of this Lease unless Lessor shall agree so in writing.
18. COMMITMENT FEE. Unless otherwise delineated on the respective Schedule(s),
the amount, if any, which Lessee has deposited with Lessor as set forth in any
Schedule shall constitute partial security for Lessee's obligations under this
Lease. This commitment fee shall not be refunded, but upon Lessor's acceptance
of Lessee's offer to enter into any Lease, may, at Lessor's option, be applied
at any time in partial satisfaction of any obligation of Lessee which may be in
default, although the making of such deposit shall not excuse Lessee from any
such obligation and such application of the amount shall only release Lessee
from the obligation pro tanto. Lessee acknowledges that Lessor shall deposit
this commitment fee and that the deposit of this commitment fee shall not be
construed as an approval and/ or acceptance of any Lease and shall not become
binding upon Lessor until approval and acceptance by Lessor's Finance Committee.
Lessor will apply commitment received from Lessee to advance lease payments,
prorata, as long as Lessee is not in default of it's obligations to Lessor.
19. ASSIGNMENT BY LESSOR. Lessor may, at any time, with or without notice to
Lessee, mortgage, grant a security interest in, or otherwise transfer, sell or
assign this Lease or any Equipment or any rentals or other amounts due or to
become due hereunder. Lessee agrees with Lessor and any such assignee (including
any assignee to which such rights have been assigned by a prior assignee) that,
upon receipt by Lessee from Lessor or such assignee of notice in writing of any
such assignment, Lessee will make all further payments due or to become due
hereunder directly to such assignee at the address specified in such notice of
assignment and will recognize such assignee as the person entitled to exercise
all other rights of Lessor hereunder. Lessee acknowledges that any assignment of
Lessor's interest would neither materially change Lessee's duties or materially
increase the burden or risk imposed on Lessee under any Lease. Lessee further
agrees with Lessor and any such assignee that in any action brought by such
assignee against Lessee to enforce Lessor's rights hereunder Lessee will not
assert against such assignee and expressly waives as against any assignee, any
breach or default on the part of Lessor hereunder or any other defense, claim or
set-off which Lessee may have against Lessor either hereunder or otherwise. No
such assignee shall be obligated to perform any obligation, term or condition
required to be performed by Lessor hereunder.
20. DEFAULT. Any of the following events or conditions shall constitute an event
of default hereunder. (a) nonpayment of any rental payment or other amount
provided for in any Lease; (b) default by Lessee
in the performance of any other obligation, term or condition of any Lease; (c)
default by Lessee in the payment or performance of any other indebtedness or
obligation now or hereafter owed by Lessee to Lessor under any other agreement
or instrument, which default has not been waived;(d) the issuance of any writ or
order of attachment or execution or other legal process against any Equipment
which is not discharged or satisfied within ten(1O) days; (e) death or judicial
declaration of incompetency of Lessee, if an individual; (f) the commencement of
any bankruptcy, insolvency, arrangement, reorganization, receivership,
liquidation or other similar proceedings by or against Lessee; (g) the making by
Lessee of a general assignment or deed of trust for the benefit of creditors;
(h) the occurrence of any event or condition described in clause (e), (f) or (g)
of this Paragraph 20 with respect to any guarantor or any other party liable for
payment or performance of each Lease; (i) if any certificate, statement,
representation, warranty or audit heretofore or hereafter furnished by or on
behalf of Lessee or any guarantor or other party liable for payment or
performance of this Lease, pursuant to or in connection with this Lease, proves
to have been false in any material respect at the time as
of which the facts therein set forth were stated or certified, or to have
omitted any substantial contingent or unliquidated liability or claim against
Lessee or any such guarantor or other party; (j) if the condition of Lessee's
affairs shall change so as in the reasonable opinion of Lessor to impair
Lessor's title to the Equipment or increase the risk of Lessee's
non-performance; (k) if Lessee is a corporation and eighty percent (80%) or more
of the then issued and outstanding voting capital stock of Lessee shall be
acquired by any person, entity or group who are not such owners on the date of
execution of each Lease; (l) any default occurs under any agreement now or
hereafter securing any Lease; (m) breach of any negative covenant in any Lease;
or (n) if Lessee voluntarily or involuntarily permits any Equipment to become
subject to a lien.
21. REMEDIES OF LESSOR. Upon the occurrence of any Event of Default and at any
time thereafter, Lessor may without demand or notice to Lessee and without
terminating or otherwise affecting Lessee's obligations hereunder exercise one
or more of the following remedies, as Lessor in its sole discretion shall elect:
(a) Lessor may xxx for and recover from Lessee the sum of all unpaid rents and
other payments due under each Lease then accrued, all accelerated future
payments due under each Lease, discounted to their present value at a discount
rate equal to current rate as of the date of default, plus Lessor's estimate at
the time each Lease was entered into of Lessor's residual interest in the
Equipment, reduced to present value at a discount rate equal to current rate as
of the date of default, less the net proceeds of disposition, if any, of the
Equipment; (b) require Lessee to assemble the Equipment and make it available to
Lessor at a place designated by Lessor as provided in Paragraph 17 above; (c)
take and hold possession of the Equipment and render the Equipment unusable, and
for this purpose enter and remove the Equipment from any premises where the same
may be located without liability to Lessee for any damage caused thereby; (d)
sell or lease the Equipment or any part thereof at public or private sale (and
Lessor may be a purchaser at such sale) for cash, on credit or otherwise,
without representations or warranties, and upon such other terms as shall be
acceptable to Lessor, and for such purposes of sale or lease, Lessor may use
Lessee's name, voice, signature, photograph or likeness, in any manner and for
any purpose, including but not limited to, advertising or selling, or soliciting
purchases of, any or all of the Equipment, products, merchandise, goods or
services; (e) use and occupy the premises of Lessee for the purpose of taking,
holding, reconditioning, displaying, selling or leasing the Equipment, without
cost to Lessor or liability to Lessee; (f) proceed by appropriate action either
at law or in equity to enforce either performance by Lessee of the covenants of
this Lease or to recover damages for the breach of such covenants; or (g)
exercise any and all rights accruing to a lessor under any applicable law upon a
default by a lessee. If notice is required by law, any written notice to Lessee
of any such sale or lease, given not less than five (5) days prior to the date
thereof, shall constitute reasonable notice to Lessee. Any sale or lease of the
Equipment by Lessor after default shall be free and clear of any rights or
interests of Lessee. Without limiting any of the foregoing remedies, Lessor may
immediately recover the following from Lessee. (A) all unpaid rentals, late
charges and other sums due as of the date of default; (B) all unpaid rentals to
become due from the date of default through the last day of the term of each
Lease; (C) any and all costs or expenses paid or incurred by Lessor in
connection with the repossession, holding, repair, reconditioning and subsequent
sale, lease or other disposition of the Equipment, including but not limited to,
attorneys' fees and costs, whether or not litigation is commenced; (D) the
residual value of any item of Equipment which Lessee fails to return to Lessor
as provided above or converts or destroys, or which Lessor does not or is unable
to repossess;(E) all other costs or expenses paid or incurred by Lessor at any
time in connection with the execution, delivery, administration, amendment and
enforcement or exercise of any of the Lessor's rights and remedies under each
Lease, including but not limited to, attorneys' fees and costs, whether or not
litigation is commenced, and taxes imposed by any governmental agency; (F) any
actual or anticipated loss of federal or state tax benefits to Lessor (as
determined by Lessor) resulting from Lessee's default or Lessor's repossession
or disposition of the Equipment; and (G) any and all other damages proximately
caused by Lessee's default. If Lessor obtains possession of any Equipment after
default, the amount Lessor shall be entitled to recover shall be reduced by the
lesser of(I ) the rent due for the portion of the term of each Lease remaining
at the point in time the Equipment is re-sold or re-leased, or (2) either (a)
the proceeds received by Lessor on the re-sale of the Equipment, less the
re-sold Equipment's residual value or (b) the invoice value used for the
re-lease of the Equipment less the re-leased Equipment's residual value. Lessor
shall not be obligated to sell, lease, or otherwise dispose of any item of
repossessed Equipment under each Lease if it would impair the sale, lease or
other disposition by Lessor of similar equipment. Lessee shall be liable for any
deficiency suffered by Lessor, and unless otherwise required by law, Lessor
shall not be required to account to Lessee for any surplus or profit.
All rights and remedies of Lessor under each Lease are in addition to all rights
and remedies contained in any other agreement, instrument or document or
available to Lessor at law or in equity. All such rights and remedies are
cumulative and not exclusive and may be exercised successively, concurrently and
repeatedly. No default by Lessee or action by Lessor, including repossession,
sale or re-leasing of Equipment, shall result in or constitute a termination of
each Lease unless Lessor so notifies Lessee in writing, and no termination
hereof shall release or impair any of Lessee's obligations hereunder. No
exercise of any right or remedy shall constitute an election of remedies and
preclude exercise of any other right or remedy. LESSEE WAIVES ANY AND ALL RIGHTS
TO NOTICE AND TO A JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE
EQUIPMENT BY LESSOR IN THE EVENT OF DEFAULT HEREUNDER BY LESSEE.
22. WAIVER, ETC. No delay or omission on the part of Lessor in exercising any
right hereunder shall operate as a waiver of any such right or of any other
right hereunder, and a waiver of any such right on any one occasion shall not be
construed as a bar to or waiver of any such right on any future occasion. Any
waiver, permit, consent or approval of any kind or character on the part of
Lessor of any breach or default under this Lease, or any waiver on the part of
Lessor of any provision or condition of this Lease, must be in writing and shall
be effective only to the extent specifically set forth in such writing.
Acceptance by Lessor of a rental or other payment at a time when Lessee is in
default hereunder shall not constitute a waiver of such default or defaults or
of Lessor's right to terminate Lessee's rights hereunder pursuant to Paragraph 2
I hereof. If Lessee, whether with or without permission of Lessor, retains
possession of any items of Equipment beyond the expiration of the applicable
Lease term without such Lease term having been formally extended, Lessee shall
be responsible to pay rent at the rate heretofore in effect and shall also
remain obligated to perform and observe all other covenants and agreements of
Lessee hereunder, but no such retention of possession shall be construed as an
extension of said Lease term or as a waiver of Lessor's right to repossess said
items of Equipment unless expressly agreed to in writing by Lessor.
23. INDEMNIFICATION. Lessee assumes liability for, and shall and does hereby
indemnify and hold harmless Lessor, its agents, employees, officers, directors,
successors and assigns from and against any and all liabilities, claims, costs,
and expenses, including reasonable attorneys' fees, of every kind and nature
(including, without limitation, for property damage, wrongful death or personal
injury and for trademark, patent or copyright infringement) arising out of or
relating to the use, condition(including latent and other defects whether or not
discoverable by Lessee or Lessor), operation, ownership, selection, delivery,
leasing or return of any item of Equipment, regardless of where, how and by whom
operated, any failure on the part of Lessee to perform or comply with any
conditions of this Lease or any loss by Lessor of the benefit of any accelerated
depreciation or Investment Tax Credit, or the right to claim the same, with
respect to the Equipment. Without limiting the foregoing, this indemnification
shall extend to claims made by any person,
including Lessee, its agents and employees, and shall apply whether liabilities,
claims, etc. are based on negligence (passive or active) of Lessor or another,
breach of warranty, strict liability, products liability or otherwise. The
indemnities and assumptions of liabilities and obligations provided for in this
Paragraph and Lessee's indemnities elsewhere in each Lease shall continue in
full force and effect notwithstanding the expiration or other termination of
each Lease. Lessee is an independent contractor. Nothing contained in each Lease
shall authorize Lessee or any other person to operate any item of Equipment so
as to incur or impose any liability or obligation for or on behalf of Lessor.
24. ASSIGNMENT BY LESSEE. WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE
SHALL NOT VOLUNTARILY OR INVOLUNTARILY (A) SELL, ASSIGN, TRANSFER, PLEDGE, GRANT
A SECURITY INTEREST IN, HYPOTHECATE OR OTHERWISE DISPOSE OF EACH LEASE, THE
EQUIPMENT, OR ANY INTEREST IN EACH LEASE OR THE EQUIPMENT;(B) SUBLET OR LEND ANY
ITEM OF EQUIPMENT OR ANY PART THEREOF; OR (C) PERMIT ANY ITEM OF EQUIPMENT OR
ANY PART THEREOF TO BE USED BY ANYONE OTHER THAN LESSEE OR LESSEE'S
EMPLOYEES.
25. FURTHER ASSURANCE. Lessor and Lessee each hereby agrees to execute, deliver,
and file or record at Lessee's expense such further instruments, certificates
and other documents, including without limitation financing statements under the
Uniform Commercial Code, and to do such further acts and things as may be
reasonably requested by the other in order to assure to such other the rights
conferred or intended to be conferred by this Lease or to protect Lessor's
rights, title and interest in the Equipment. Lessee agrees to furnish audited
financial statements, including a balance sheet and income statement for
Lessee's two most current fiscal years and for each subsequent fiscal year that
this Lease is in effect, and its most recent quarterly interim financial
statement.
26. ATTORNEY FEES. In the event of any legal action with respect to this Lease,
the prevailing party in any such action shall be entitled to reasonable attorney
fees, including attorney fees incurred at the trial level, including action and
bankruptcy court, on appeal or review or incurred without action, suits, or
proceedings, together with all costs and expenses incurred in pursuit thereof.
27. NO AGENCY. LESSEE ACKNOWLEDGES THAT NEITHER THE SUPPLIER NOR ANY SALESMAN,
EMPLOYEE, REPRESENTATIVE OR AGENT OF THE SUPPLIER OR ANY FINDER, BROKER, OR
EMPLOYEE OR AGENT OF ANY FINDER OR BROKER IS AN AGENT OR REPRESENTATIVE OF
LESSOR, AND THAT NONE OF THE ABOVE IS AUTHORIZED TO WAIVE, ALTER OR ADD TO ANY
TERM, PROVISION OR CONDITION OF THIS MASTER LEASE OR ANY SCHEDULE HERETO, OR
MAKE ANY REPRESENTATION WITH RESPECT TO THIS MASTER LEASE OR ANY SCHEDULE
HERETO. Lessee further acknowledges that Lessee, in executing this Lease, has
relied solely upon the terms, provisions and conditions contained herein, and
any other statements, warranties, or representations, if any, by the supplier,
or any salesman, employee, representative or agent of the supplier or any
finder, broker, or employee or agent of any finder or broker have not been
relied upon by Lessee and shall not in any way effect Lessee's obligation to pay
the rent and otherwise perform as set forth in this Lease.
28. MISCELLANEOUS. Time is of the essence of each Lease and of each and all of
its provisions. Lessor and Lessee agree that any amount which Lessor may recover
from Lessee under subparagraph (13) or Paragraph 21 of this Lease represents
liquidated damages for the loss of Lessor's bargain and not a penalty. If there
be more than one Lessee to this Lease, the liability of each shall be joint and
several and any release of or forbearance with respect to one Lessee shall not
release any other Lessee. Lessor shall be entitled to specific performance of
any and all of its rights under this Lease whether or not an adequate remedy at
law exists. LESSEE HEREBY WAIVES TRIAL BY JURY AND THE RIGHT TO INTERPOSE ANY
COUNTERCLAIM OR OFFSET OF ANY NATURE OR DESCRIPTION IN ANY LITIGATION BETWEEN
LESSEE AND LESSOR WITH RESPECT TO THIS LEASE, THE EQUIPMENT OR THE REPOSSESSION
THEREOF. Any action, proceeding, or appeal on any matter related to or arising
out of each Lease, Lessor, Lessee and any guarantor or subscriber (1) SHALL BE
SUBJECT TO THE PERSONAL JURISDICTION OF THE STATE OF LESSOR'S OR ASSIGNEE'S
PRINCIPAL PLACE OF BUSINESS OR ANY STATE SELECTED BY LESSOR OR ITS ASSIGNEE
WHERE THEY DO BUSINESS including any state or federal court sitting therein, and
all courts thereof; (2) SHALL ACCEPT VENUE IN AN Y FEDERAL OR STATE COURT
SELECTED BY LESSOR OR ITS ASSIGNEE; and (3) EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY so that trial shall be by and only to the court selected by Lessor or
its assignee. THIS LEASE IS SUBJECT TO APPROVAL AND ACCEPTANCE BY LESSOR'S
FINANCE COMMITTEE AND SHALL NOT BECOME BINDING UPON LESSOR UNTIL EXECUTED BY AN
OFFICER OF LESSOR. Such officer shall be the President, Executive Vice
President, or Vice President. No other officer, employee, or agent of Lessor has
the authority to waive, alter, or add to any term, provision or condition of
this Master Lease and/ or each Schedule. Notice thereof is hereby waived by
Lessee. By execution hereof, the signer hereby certifies that he has read each
Lease, and that he is duly authorized to execute each Lease on behalf of Lessee.
ANY AMENDMENT TO THIS MASTER LEASE AND/OR SCHEDULE TO BE EFFECTIVE MUST BE IN
WRITING SIGNED BY LESSOR AND LESSEE. This Lease constitutes the entire agreement
between the parties hereto with respect to the leasing of the Equipment.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their respective officers thereunto duly authorized as of the day and year first
above written.
ACCEPTED BY:
LESSEE: LESSOR:
APPLIED BIOMETRICS, INC. DEXXON CAPITAL CORPORATION
By:___________________________ By: _________________________________
Title: _______________________ Title:_______________________________
Date: 0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
