EXHIBIT 10.41
Amplicon Financial Lease
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 . Xxxxx Xxx, Xxxxxxxxxx 00000 Agreement
714.751-7551 . 800.755-5055 . Facsimile 714.751-7557
LESSEE
ACT Manufacturing, Inc.
XXXXXX XXXX XXXXX XXXXXX XXX
0 Xxxxx Xxxx Hudson MA Middlesex 01749
1. AGREEMENT/LEASE: Amplicon, Inc. ("Amplicon") agrees to lease to Lessee the
hardware, software and/or other equipment ("Property") described on the Lease
Schedule(s) ("Schedule(s)") referencing this Lease Agreement ("Agreement") and
Lessee agrees to lease from Amplicon the Property subject to the terms set forth
herein and on each Schedule(s) that the parties may from time to time enter into
with respect to this Agreement. Each Schedule identified as being a part of this
Agreement incorporates the terms of this Agreement and constitutes a separate
lease agreement and is referred to herein as the "Lease." The Lease is in force
and is binding upon Lessee and Amplicon upon signed acceptance by Amplicon.
2. UNIFORM COMMERCIAL CODE ACKNOWLEDGMENT: Lessee acknowledges that it has
received and approved any written "Supply Contract" covering the Property
purchased from the Supplier for lease and Amplicon has informed or advised
Lessee, either previously or by this Lease, of the following: (i) the identity
of the Supplier; (ii) that Lessee may have rights under the Supply Contract; and
(iii) that Lessee may contact the Supplier for a description of any such rights.
This Lease is a "Finance Lease." (The terms "Finance Lease," "Supply Contract"
and "Supplier" as used in this Lease have the meanings only as ascribed to them
under Division 10 of the California Uniform Commercial Code and have no effect
on any tax or accounting treatment of the Lease.) This provision survives
termination of the Lease.
3. NO WARRANTIES: AMPLICON IS NOT THE MANUFACTURER, DEVELOPER, PUBLISHER,
DISTRIBUTOR, LICENSOR OR "SUPPLIER" OF THE PROPERTY AND MAKES NO EXPRESS OR
IMPLIED WARRANTY OR REPRESENTATION AS TO FITNESS, QUALITY, DESIGN, CONDITION,
CAPACITY, SUITABILITY, VALUE, MERCHANTABILITY, OR PERFORMANCE OF THE PROPERTY OR
THE MATERIAL OR WORKMANSHIP THEREOF OR AGAINST INTERFERENCE BY LICENSORS OR
OTHER THIRD PARTIES, IT BEING AGREED THAT THE PROPERTY IS LEASED "AS IS" AND
THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE. Lessee selected the Property and
represents that all the Property is suitable for Lessee's purposes. Amplicon
assigns to Lessee during the term of the Lease any warranty rights it may have
received from the Supplier as a result of Amplicon's purchase of the Property.
If Lessee has any claims regarding the Property or any other matter arising from
Lessee's relationship with the Supplier, Lessee must make them against the
Supplier. This provision survives termination of the Lease.
4. AUTHORIZATION DATE AND LEASE DURATION: A Schedule commences and rent is
due beginning on the date that Lessee certifies in writing to Amplicon that all
of the Property
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has been received and accepted by Lessee as installed, tested and ready for use,
and Lessee authorizes Amplicon in writing to disburse payment to the Supplier
("Authorization Date"). Unless and until Lessee provides such written
authorization, Amplicon will not disburse payment to Suppliers. The Term of each
Schedule is reflected on the Schedule and begins on the first day of the
calendar quarter following the Authorization Date. A calendar quarter commences
on the first day of January, April, July and October. Lessee has the right to
use the Property at the specific locations shown on the Schedule throughout the
duration of this Lease in accordance with the provisions of this Lease. The Term
extends for an additional twelve month period ("Extension Term") at the rental
rate delineated on the Schedule unless Lessee provides to Amplicon written
notice of Lessee's election not to extend the Term at least one hundred eighty
days prior to the expiration of the Term.
5. RENTALS: The rent payable is shown on the Schedule(s). The monthly rent is
due to Amplicon, in advance, for each month or portion of a month beginning on
the Authorization Date and continuing for each month that this Lease is in
effect. Rent for portions of a month are based on a daily rental equal to one-
thirtieth of the monthly rent. ALL RENTS SHALL BE PAID WITHOUT NOTICE OR DEMAND
AND WITHOUT ABATEMENT, DEDUCTION OR SETOFF OF ANY AMOUNT WHATSOEVER. THE
OPERATION AND USE OF THE PROPERTY IS SOLELY AT THE RISK OF LESSEE AND THE
OBLIGATION OF LESSEE TO PAY RENT UNDER THE LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES
THE FOLLOWING RIGHTS AND REMEDIES CONFERRED UPON LESSEE BY LAW: (I) RIGHT TO
CANCEL OR TERMINATE THIS LEASE, (II) RIGHT TO REJECT THE PROPERTY, (III) RIGHT
TO REVOKE ACCEPTANCE OF THE PROPERTY, (IV) RIGHT TO RECOVER DAMAGES FROM
AMPLICON FOR ANY BREACH OF WARRANTY, AND (V) RIGHT TO RECOVER ANY CONSEQUENTIAL
DAMAGES WHATSOEVER.
Rents will be paid to Amplicon unless otherwise instructed in writing by
Amplicon or its assignee.
6. INDEMNITY: Lessee assumes liability for, and agrees at its own expense to
indemnify and defend Amplicon, its employees, officers, directors and assigns,
from and against any and all claims, liabilities, losses, damages, and expenses
(including legal expenses) of every kind or nature (including, without
limitation, claims based upon strict liability) arising out of the use,
condition (including latent and other defects, whether or not discoverable by
Lessee or Amplicon), operation or ownership of any items of Property (including,
without limitation, any claim for patent, trademark or copyright infringement)
or for any interruptions of service, loss of business or consequential damages.
These indemnities and assumptions survive the termination of this Lease.
7. PERFORMANCE OF LESSEE'S OBLIGATIONS BY AMPLICON: If Lessee fails to
perform any of its obligation under this Lease, Amplicon may, at its option,
perform them for Lessee without waiving Lessee's default. Any amount paid by
Amplicon, and any expense
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(including reasonable attorneys' fees) or any other liability incurred by
Amplicon as a result of its performance of Lessee's obligations will be payable
by Lessee to Amplicon upon demand.
8. FURTHER ASSURANCE AND NOTICES: Lessee's signing of this Lease constitutes
a firm offer. In consideration of Amplicon's time and effort in reviewing and
acting on the offer, Lessee agrees that its offer is irrevocable for twenty
business days after Amplicon's receipt of the offer and of all credit
information requested by Amplicon. Amplicon's signing of the Lease, including
the Schedule, constitutes acceptance of Lessee's offer. Lessee agrees to sign
and provide any documents which Amplicon deems necessary for confirmation,
assignment and assurance of performance by Lessee of its obligations under the
Lease or for perfection of this Lease and the Property including, but not
limited, to the signing and filing of Uniform Commercial Code (UCC) Financing
Statements (which Lessee agrees may be signed by Amplicon on Lessee's behalf).
Lessee authorizes Amplicon to insert applicable dates as necessary to complete
all documentation for the Lease. Prior to Amplicon's acceptance of the Lease and
for the duration of the Lease, Lessee agrees to promptly provide Amplicon with
all credit information reasonably requested by Amplicon including, but not
limited to, comparative audited financial statements for the most current annual
and interim reporting periods. Lessee's failure to provide such information to
Amplicon is an event of default under the Lease. ALL NOTICES TO AMPLICON MUST BE
IN WRITING AND SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS SHOWN
ABOVE OR SUCH OTHER ADDRESS AS TO WHICH LESSEE HAS BEEN NOTIFIED IN WRITING.
9. DEFAULT: If rent or any other amount is not paid within ten days of its
due date, Lessee agrees to pay a late charge equal to five percent (5%) of the
unpaid amount. Each month thereafter, past due amounts remaining unpaid
hereunder shall bear interest at the lesser of one and one half percent (1 1/2%)
per month, compounded monthly or the maximum rate allowed by law. An Event of
Default shall occur if: (a) Lessee fails to pay any rent or other payment under
the Lease when due and the failure continues for ten days; (b) Lessee fails to
perform or observe any of the covenants or obligations in this Lease other than
Lessee's rental obligations, and such failure is not cured within ten days after
written notice has been provided; (c) Lessee makes an assignment for the benefit
of its creditors, files any petition or takes any action under any bankruptcy,
reorganization or insolvency laws; (d) an involuntary petition is filed under
any bankruptcy statute against Lessee or any receiver, trustee or custodian is
appointed to take possession of Lessee's properties, unless such petition or
appointment is set aside or withdrawn within sixty days of said filing or
appointment; (e) Lessee attempts to or does remove, transfer, sell, sublicense,
encumber, part with possession, or sublet any of the Property; (f) Lessee
attempts to assign or transfer this Lease or its interest under the Lease or
moves any of the Property from the location(s) set forth on the Schedule without
Amplicon's prior written consent; or (g) Lessee undergoes a sale, buyout, change
in control, or change in ownership of any type, form or manner which, as judged
solely by Amplicon, results in a material deterioration in Lessee's credit
worthiness.
10. REMEDIES: Upon an Event of Default, Amplicon may exercise at its sole
option any one or more of the remedies permitted by law, including but not
limited to the following: (a) through legal action, enforce performance by
Lessee of the applicable covenants and obligations of this
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Lease or recover damages for the breach of those covenants or obligations; (b)
terminate the Lease and Lessee's rights under the Lease; (c) by notice in
writing to Lessee, recover all amounts due on or before the date Amplicon
declared this Lease to be in default, plus, as liquidated damages for the loss
of a bargain and not as a penalty, accelerate and declare to be immediately due
and payable all rentals and other sums payable under the Lease without any
presentment, demand, protest or further notice (all of which are hereby
expressly waived by Lessee), at which time the same shall become immediately due
and payable; and (d) take immediate possession of the Property, or any part of
the Property, from Lessee free from claims by Lessee. In the case of Software,
it is agreed that Lessee's unauthorized use, disclosure, or transfer of the
Software will cause Amplicon significant damages which, at the time the parties
enter the Lease, are impossible to quantify or predict. Therefore, if Lessee is
found to be using (in any manner) all or any portion of the Software after the
termination of this Lease, or if Supplier terminates a license of Lessee's right
to use the Software for an alleged breach of the use, disclosure, or transfer
restrictions imposed on Lessee, the parties hereby agree that liquidated damages
shall be payable immediately by Lessee to Amplicon in an amount which is equal
to two times the amount paid by Amplicon for the Software. The exercise of any
of the foregoing remedies by Amplicon will not constitute a termination of this
Lease unless Amplicon so notifies Lessee in writing. If Amplicon repossesses the
Property, Amplicon may rent or sell the Property in such a manner and at such
times as Amplicon may determine and without notice to Lessee. In the event
Amplicon rents the Property, any rentals received by Amplicon for the remaining
Term(s) of the Schedule shall be applied to the payment of: (i) all costs and
expenses (including reasonable attorneys' fees) incurred by Amplicon in
enforcing its remedies under this Lease, and (ii) the rentals for the remainder
of the Term(s) and all other sums then remaining unpaid under this Lease. All
rentals received by Amplicon for the period commencing after the remaining
Term(s) shall be retained by Amplicon. Lessee will remain liable to Amplicon to
the extent that the aggregate amount of the sums referred to in clauses (i) and
(ii) above exceed the aggregate rentals received by Amplicon under such
agreements for the remaining Term(s) applicable to the Property covered by such
agreements. In the event that Amplicon sells the Property, the proceeds will be
applied to the sum of: (1) all costs and expenses (including reasonable
attorneys' fees) incurred by Amplicon in enforcing its remedies under this Lease
and in disposing of the Property, (2) the rentals accrued under this Lease, but
unpaid up to the time of such disposition, (3) any and all other sums other than
rentals then owing to Amplicon by Lessee under the Lease, and (4) the stipulated
value as would be determined in the event of a Casualty Occurrence (as defined
in the terms and conditions to the Schedule) on the date of the Property's
disposition. The remaining balance of such proceeds, if any, will be applied
first to reimburse Lessee for any sums previously paid by Lessee as liquidated
damages (as set forth in (c) above), and any remaining amounts will be retained
by Amplicon. Lessee will remain liable to Amplicon to the extent that the
aggregate amount of the sums referred to in clauses (1) through (4) above
exceeds the proceeds received by Amplicon in connection with the disposition of
the Property. Amplicon's remedies under this Lease shall not be deemed
exclusive. Waiver of any default or breach of this Lease shall not be construed
as a waiver of subsequent or continuing defaults or breaches.
11. DISPUTE RESOLUTION: THE PARTIES AGREE THAT ALL DISPUTES, WHETHER BASED IN
TORT OR CONTRACT, RELATING TO OR ARISING OUT OF THIS LEASE (COLLECTIVELY, "LEASE
DISPUTES") WILL BE SUBMITTED TO
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THE ORANGE COUNTY, CALIFORNIA OFFICE OF ENDISPUTE, INC., DBA J-A-M-S/ENDISPUTE
("JAMS") FOR A TRIAL OF ALL ISSUES OF LAW AND FACT CONDUCTED BY A RETIRED JUDGE
OR JUSTICE FROM THE PANEL OF JAMS, APPOINTED PURSUANT TO A GENERAL REFERENCE
UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638(1) (OR ANY AMENDMENT,
ADDITION OR SUCCESSOR SECTION THERETO) UNLESS AMPLICON OR ITS ASSIGNEE SELECTS
AN ALTERNATIVE FORUM. IF THE PARTIES ARE UNABLE TO AGREE ON A MEMBER OF THE JAMS
PANEL, THEN ONE SHALL BE APPOINTED BY THE PRESIDING JUDGE OF THE CALIFORNIA
SUPERIOR COURT FOR THE COUNTY OF ORANGE. IN THE EVENT THAT JAMS IN THE COUNTY OF
ORANGE CEASES TO EXIST, THEN THE PARTIES AGREE THAT ALL LEASE DISPUTES WILL BE
FILED AND CONDUCTED IN THE CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF ORANGE,
UNLESS AMPLICON OR ITS ASSIGNEE SELECTS AN ALTERNATIVE FORUM. LESSEE AGREES TO
SUBMIT TO THE PERSONAL JURISDICTION OF THE CALIFORNIA SUPERIOR COURT FOR ALL
LEASE DISPUTES. LESSEE WAIVES ITS RIGHTS TO A JURY TRIAL IN ANY ACTION ARISING
OUT OF OR RELATING TO THIS LEASE. If any party to this Lease brings any action
to enforce any of the terms, or to recover for any breach, then the prevailing
part is entitled to recover from the other party reasonable attorneys' fees and
costs, including all JAMS-related costs and costs of collection (including
judgment enforcement and collection costs).
12. MISCELLANEOUS: All agreements, representations and warranties contained in
this Lease, or in any document or certificate delivered pursuant to or in
connection with this Lease, shall expressly survive the termination of this
Lease. If any provision of this Lease is determined by competent authority to be
unenforceable, such determination shall not invalidate the remaining provisions
of the Lease. To the extent permitted by applicable law, Lessee waives any
provision of law which renders any provision hereof prohibited or unenforceable
in any respect. This Lease has been entered into and shall be performed in
California and, therefore, THIS LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA (EXCLUSIVE OF
PRINCIPLES OF CONFLICT OF LAWS). Time is of the essence of this Lease and each
provision thereof.
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. . . . . . . . . . . . . . . . . . .
THIS LEASE AGREEMENT AND THE APPLICABLE SCHEDULE(S) CONTAIN THE ENTIRE AGREEMENT
BETWEEN AMPLICON AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE LEASE
CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A PERSON
AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED SIGNER OF
AMPLICON. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR PROMISES SHALL
BE RELIEF UPON BY, OR BE BINDING ON, THE PARTIES UNLESS MADE A PART OF THIS
LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF LESSEE AND
AMPLICON.
LESSEE: /s/ Xxxxxxxx X. Xxxxxxxx AMPLICON, INC. Xxxxxxx X. XxXxxxxxx
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(Signature) (Signature)
This Lease is subject to acceptance by Amplicon's Finance Committee. BY SIGNING
BELOW, THE SIGNER CERTIFIES THAT HE OR SHE HAS READ THIS LEASE AGREEMENT,
INCLUDING THE REVERSE SIDE, HAS HAD AN OPPORTUNITY TO DISCUSS ITS TERMS WITH
AMPLICON, AND IS AUTHORIZED TO SIGN ON BEHALF OF LESSEE. Until this Lease has
been signed by an authorized signer of Amplicon, it will constitute a firm offer
by Lessee.
LESSEE/OFFEROR
OFFER: ACT MANUFACTURING, INC. ACCEPTANCE: AMPLICON, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President of
Strategic Development Title: Senior Vice President
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Date: 1/8/99 Date: 2/26/99
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