EXHIBIT 10.10
HEWLETT-PACKARD (CANADA) LTD.
OFFER TO LEASE
XXXXXXXX.XXX INC.
March 28, 2000
On the basis of the financial statements and other information provided
by XXXXXXXX.XXX INC. (the "Corporation") to HEWLETT-PACKARD (CANADA) LTD. (the
'Lessor") in connection with a request for a lease facility (the "Facility"),
the Lessor is prepared to enter into an equipment lease transaction with the
Corporation upon and subject to following terms and conditions:
1. Lease
The Lessor hereby offers to lease "Hewlett-Packard" equipment to the
Corporation. The maximum aggregate value of equipment which the Corporation
shall be entitled to lease from the Lessor pursuant to this Offer to Lease (the
"Leased Equipment") shall be Cdn. $2,500,000.00 (such value of Leased Equipment
to be determined by the Lessor in its sole discretion based on the Lessor's
valuation of the Leased Equipment to be leased by the Corporation hereunder)
(the "Facility"). The Leased Equipment shall be used by the Corporation solely
for its day to day operating requirements. The Lessor will from time to time by
mutual agreement with the Corporation lease such Leased Equipment on such terms
and at such rent as may be agreed upon by the Lessor and the Corporation by the
execution and delivery of one or more schedules to the Lessor's Master Lease
(which Master Lease is discussed in further detail below). Each of such
schedules shall constitute a part of the Master Lease for all purposes and the
provisions of the Master Lease shall be deemed to be incorporated in full in
such schedules.
2. Master Lease
After acceptance of this Offer to Lease by the Corporation, the
Corporation shall, among other things, enter into the Lessor's standard fQrm
Master Lease with appropriate schedules. Each time that the Corporation wishes
to lease Leased Equipment from the Lessor, the Corporation shall execute and
deliver a schedule to the Master Lease, such schedule to confu'm, among other
things, the rental payment obligations of the Corporation with respect to such
lease of Leased Equipment.
3. Payment/Term
All amounts owing by the Corporation to the Lessor from time to time
under the Master Lease for rent (or otherwise) shall be paid by the Corporation
in accordance with the terms of the Master Lease (including without limitation
the schedules completed from time to time) together with all applicable taxes
(including without limitation goods and services taxes). The term of the lease
of all the Leased Equipment covered by any schedule under the Master Lease shall
commence on the commencement date specified in such schedule and, subject to the
provisions of the Master Lease, shall continue for the term specified in such
schedule. Forthwith upon the physical delivery of any Leased Equipment covered
by any schedule under the Master Lease, the Corporation shall execute and
deliver to the Lessor a certificate of acceptance in respect of such Leased
Equipment in the form provided by the Lessor.
4. Security
The rent (and any other amounts) owing by the Corporation from time to
time under the Master Lease shall be secured by the following security or other
documents which the Corporation shall deliver or cause to be delivered to the
Lessor in form and substance and with priority satisfactory to the Lessor and
its solicitors (collectively, the "Security"): (a) general security agreement by
the Corporation creating a first priority charge over all present and future
property, assets and undertaking of the Corporation registered in all
jurisdictions where the Corporation has assets; (b) assignment by the
Corporation to the Lessor of insurance proceeds (and certified insurance
policies with the Lessor endorsed as first mortgagee and loss payee subject to a
standard mortgage endorsement); and (c) such additional security or related
documents as the Lessor shall require. Without limiting the generality of the
foregoing, the Corporation shall, in the event that any of the Corporation's
property and assets become located in the Province of Quebec after the date
hereof, deliver to the Lessor a movable hypothec over all of the Corporation's
property and assets, such hypothec to be governed by the laws of the Province of
Quebec. In the event that the Corporation obtains operating financing from a
chartered bank or other financial institution, the Lessor covenants and agrees
to subordinate the security to be delivered to it pursuant to this Section 4 to
the security which may be granted by the Corporation in favour of such operating
lender (such security subordination (and not payment subordination) to be on
such terms and conditions as may be satisfactory to the Lessor acting
reasonably).
5. Equity Partcipation
It is understood and agreed that the Facility is to be drawn down in
stages during the period from and including the date of this Offer to Lease up
to and including June 30, 2001. As partial consideration for the Lessor agreeing
to make the Facility available to the Corporation, prior to each drawdown by the
Corporation under the Facility, the Corporation shall execute and deliver to the
Lessor a share purchase warrant (the "Warrant") (in form and content
satisfactory to the Lessor and in each case accompanied by such supporting
documents, including without limitation opinions and resolutions, as the Lessor
shall require) exercisable at any time after the issuance thereof and for a
period of one year thereafter into such number of common shares of the
Corporation or such other securities of the Corporation as-are or are to be
publicly listed as is obtained by dividing the average closing share price of
the ten trading days prior to the execution and delivery of this Offer to Lease,
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into that amount (the "Amount") (in Canadian dollars) which is one-tenth of that
particular drawdown amount (or such other formula as may be required in order to
comply with the applicable securities regulatory authorities), at an exercise
price which is the average closing share price of the ten trading days prior to
the execution and delivery of this Offer to Lease. (For example, if a particular
drawdown is for the amount of $900,000, the Amount will be $90,000). Each such
Warrant (and any other documents required by the Lessor to be delivered in
connection therewith (collectively, the "Warrant Documents")) shall contain
terms and conditions satisfactory to the Lessor and its counsel acting
reasonably including without limitation anti-dilution provisions.
6. Conditions Precedent
The Lessor shall have no obligation to lease any Leased Equipment to
the Corporation under the Master Lease unless:
(a) the Corporation shall have delivered or cause to be delivered
to the Lessor the following documents:
(i) a certificate of status issued by the appropriate Governmental Body in
the province of incorporation or amalgamation of the Corporation;
(ii) executed copy of this Offer to Lease;
(iii) an executed copy of each of the Security, the Warrant Documents, the
Master Lease and any schedules to the Master Lease which the Lessor may require
to be completed;
(iv) a certificate by an officer of the Corporation in respect of various
corporate matters relating to the Corporation and including certified copies of
the Corporation's constating documents and a certified resolution of the board
of directors of the Corporation authorizing the entering into of the Leasing
Documents by the Corporation;
(v) evidence that all necessary registrations and filings of or in
connection with the Security and the Warrant Documents have been made in all
jurisdictions where the Corporation has assets and the Lessor shall have
received legal opinions from counsel in each of such jurisdictions confirming
the completion of such registrations and filings and that such Security has been
registered with a priority satisfactory to the Lessor;
(vi) such other certificates or documents relating to or from the
Corporation as the Lessor may reasonably request; and
(vii) the opinion of the solicitors for the Corporation with respect to inter
alia, the Corporation, its power and capacity to enter into, execute, deliver
and perform its obligations under the Lease Documents and the due authorization,
execution, delivery and enforceability of each of the Lease Documents (such
opinion to address such other matters as the Lessor may require including the
compliance of all of the Warrant Documents with applicable securities laws);
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(b) receipt by the Lessor of a report from Xxxxxxxx, Xxxxxxx,
counsel to the Lessor, relating to this Offer to Lease and the
transaction contemplated hereby;
(c) evidence that immediately before and after the lease of any
Leased Equipment under the Master Lease, no Event of Default
shall have occurred and be continuing and no event, with the
giving of notice or the passing of time or both, which would
constitute an Event of Default shall have occurred or be
continuing;
(d) evidence that the representations and warranties of the
Corporation contained in this Offer to Lease and the other
Lease Documents shall be true and correct on and as of such
date;
(e) no event shall have occurred or be continuing which, in the
opinion of the Lessor, has caused a material adverse effect to
the Corporation or to its ability to perform its obligations
under this Offer to Lease or any of the other Lease Documents;
and
(f) receipt by the Lessor of all reasonable fees and expenses then
due to the Lessor from the Corporation (including without
limitation all legal fees and disbursements incurred by the
Lessor in connection with the transaction contemplated
hereby).
The Lessor shall have no obligation to lease any Leased Equipment to
the Corporation unless all conditions precedent have been satisfied and all
documents required to be delivered to the Lessor are in form and substance
satisfactory to the Lessor. The conditions precedent are included for the
exclusive benefit of the Lessor and may be waived (only in writing) in whole or
in part by the Lessor at any time. In the event that the Lessor agrees to lease
any Leased Equipment to the Corporation notwithstanding that any one or more of
the conditions precedent have not been satisfied, in whole or in part, such
waiver shall not operate so as to waive the Lessor's right to require strict
compliance thereafter with each condition precedent with respect to any
subsequent lease of Leased Equipment.
7. Costs
All costs incurred by the Lessor in connection with the transaction
contemplated by this Offer to Lease and the Lease Documents shall be for the
account of and shall be paid by the Corporation. Without limitation, all legal
fees and disbursements incurred by the Lessor in completing the Lease Documents
shall be paid by the Corporation (the Corporation agrees to pay such fees and
disbursements in the event that this lease transaction is not completed for any
reason). Xxxxxxxx, Xxxxxxx' fees for this transaction are estimated to be
$12,000 (excluding GST, any provincial taxes and disbursements), such fees for
the preparation and negotiation of the Lease Documents. The foregoing statement
of fees is based on the understanding that there will not be any protracted
negotiations of the Lease Documents. The Corporation shall pay to Xxxxxxxx,
Xxxxxxx 50% percent of the fees for the transaction plus GST on such amount
concurrently with the Corporation's acceptance of this Offer to Lease. The
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Corporation shall pay Xxxxxxxx, Xxxxxxx' remaining fees and disbursements prior
to or concurrently at the time of the first lease of Leased Equipment under the
Master Lease. To the extent that any such protracted negotiations take place
(including without limitation the necessity of preparing multiple draft versions
of some or all of the Lease Documents), Xxxxxxxx, Xxxxxxx' fees may exceed the
amount stated above.
8. Right of First Refusal
From and after the date hereof and for so long as the Master Lease and
any schedules are in force or any amounts are owing by the Corporation under the
Facility, the Corporation covenants and agrees to provide to the Lessor an
exclusive option and right of first refusal for the acquisition and financing of
all computer and technology related products and services. This first right of
refusal is subject to the Lessor's products and services being of comparable
price and performance to similar products available on the open market. Pricing
on the Lessor's products will reflect the aggressive initial pricing provided to
the Corporation and will be consistent with pricing provided to customers of
similar size and strategic importance to the Lessor.
9. Marketing Initiatives
The Lessor and the Corporation will continue to investigate
opportunities to collaborate on joint marketing, market awareness and
communications activities for their respective intemet related services.
10. Governing Law
This Offer to Lease shall be governed by the laws of the Province of
Ontario and the laws of Canada applicable therein and all disputes among the
parties hereto shall be submitted to the courts of the Province of Ontario
although the Lessor shall be entitled to commence proceedings in the courts of
any other jurisdiction at its discretion for the purpose of enforcing the
provisions hereof or any other documents contemplated hereby. The Corporation
irrevocably submits to the non-exclusive jurisdiction of the courts of the
Province of Ontario.
11. Successors and Assigns/assignment
This Offer to Lease shall enure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns. The
Corporation shall not, without the Lessor's prior written consent (which may be
arbitrarily withheld by the Lessor), assign any interest hereunder to any other
person, firm, corporation or other entity whatsoever. The Lessor shall be
entitled, in its sole and unfettered discretion without the consent of, but on
notice to the Corporation, to assign any or all of its rights and obligations
hereunder to any assignee or assignees and the Corporation shall, at the
Lessor's request, execute or cause to be executed all documents required by the
Lessor to facilitate any such assignment.
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12. Entire Agreement
This Offer to Lease constitutes the entire agreement by the Lessor with
respect to the subject matter hereof and supersedes all prior negotiations,
undertakings, representations and understandings (written or oral).
If the terms of this Offer to Lease are acceptable to the Corporation,
please execute this Offer to Lease and return same to the Lessor on or before
March 31, 2000. If the Offer to Lease, accepted by the Corporation, is not
received by the Lessor on or before 5:00 p.m. Toronto time on Maxch 31, 2000 or
if the Lease Documents have not been completed and delivered to the Lessor by
April 24, 2000 (or such later date as may be agreed to by the Lessor acting
reasonably), this Offer to Lease shall be deemed to be of no further force or
effect. This Offer to Lease may be executed by the Lessor and the Corporation by
fax and each faxed copy of this Offer to Lease shall be deemed to be an original
hereof.
Yours very truly,
HEWLETT-PACKARD (CANADA) LTD.
/s/ XXXX XXXXXX
-------------------------------------
Xxxx Xxxxxx
Credit Manager, HP Technology Finance
Agreed to and accepted this 28~ day of March, 2000.
XXXXXXXX.XXX INC.
Per:
/s/ XXXXX XXXXXX
------------------------
Name: Xxxxx Xxxxxx
Title: Vice President, Finance
I have the authority to bind the Corporation.
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