Exhibit 10iiD(3)
ORIGINAL
No. F38429
Dated: 08/10/99
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT (hereinafter called the "Master Agreement") is
entered into by and between Xxxxxxxx/XxXxxxxx Associates, Inc. corporation
(hereinafter called "Lessor"), having its principal place of business at 0000
Xxxxxxxx Xxxx Xxxxxx, XX 00000
Xxxx.xxx, Inc. (hereinafter called "Lessee"), having a principal place of
business at 00 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
I. THE LEASE
1.1 Lease of Equipment. In accordance with the terms and conditions of this
Master Agreement, Lessor agrees to lease to Lessee. and Lessee agree to
lease from Lessor, the units of personal property (hereinafter
individually called a "Unit" and collectively called "Equipment")
described in supplement(s) which are executed pursuant to and incorporate
the terms of this Master Agreement (each hereinafter, a "Supplement").
Each Supplement shall constitute a separate, distinct, and independent
lease and contractual obligation of Lessee. The term "Lease" as used
hereinafter shall refer to an individual Supplement which incorporates the
terms of this Master Agreement. Lessor or its assignee shall retain the
full legal title to the Equipment, it being expressly agreed by both
parties that this Master Agreement and each Lease shall constitute an
agreement of lease only. Each Lease shall be binding upon Lessor and
Lessee from the date of acceptance and execution of the applicable
Supplement, by Lessor at its headquarters.
1.2 Term of Lease. The original term of lease for each Unit (hereinafter the
"Original Term") shall commence on the date specified in the applicable
Supplement and, subject to Section 2.5 below, shall terminate as specified
in such Supplement. No Lease may be canceled by Lessee for any reason
whatsoever.
1.3 Disclaimers; Warranties. LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR MAKES
NO EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO LESSEE'S USE
OR OPERATION OF THE EQUIPMENT. LESSOR EXPRESSLY DISCLAIMS THE IMPLIED
WARRANTIES OP MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR THE
EQUIPMENT OR OTHER PRODUCTS, DOCUMENTATION AND SERVICES PROVIDED HEREIN.
IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR ASSOCIATED WITH THE EQUIPMENT
OR THE LEASE THEREOF EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
1.4 Rental Payments. Lessee shall pay rental to Lessor for the Unit(s) in the
amounts and on the dates specified in the applicable Supplement. If any
rental or other amount due hereunder is not paid within five (15) days of
the due date thereof, Lessee shall pay to Lessor on demand, as additional
rental, interest thereon from the due data until payment at a rate equal
to the lesser of (i) eighteen (18%) per annum, or (ii) the maximum rate
permitted by law. All rental and other amounts payable by Lessee to Lessor
hereunder shall be paid to Lessor at the address specified above, or at
such other place as Lessor may designate in writing to Lessee. Time is of
the essence with respect to all of Lessee's obligations under any Lease.
1.5 Return of Equipment. Upon expiration of the Original Term, Lessee will
immediately return the Equipment to Lessor as provided in Section 2.3
below. Should Lessee not return the Equipment at the end of the Original
Term, the Equipment shall continue to be held and leased hereunder, and
the Lease shall thereupon be extended for successive three (3) month
terms, at the same monthly rental, subject to the right of either Lessee
or the Lessor to terminate the Lease upon ninety (90) days written notice,
whereupon the Lessee shall forthwith deliver the Equipment to the Lessor.
If Lessee falls to return the Equipment upon demand therefor by Lessor,
Lessee shall pay Lessor, as the reasonable measure of Lessor's damages,
the value, at replacement cast, of the Equipment so converted.
II. COVENANTS OF LESSEE
2.1 Payment of Rental and Other Monies. Each lease is a net lease and Lessee
acknowledges and agrees that Lessee's obligation to pay all rental and
other sums payable hereunder, and the rights of Lessor in and to such
payments, shall be absolute and unconditional and shall not be subject to
any abatement, reduction, setoff, counterclaim or other defense for any
reason whatsoever. It being the intent of Lessor, and an inducement to
Lessor, to enter into the Lease, to claim all available tax benefits of
ownership with respect to the Equipment, Lessee acknowledges and agrees
that (i) no right, tide or interest in the Equipment has been or is
intended to be passed to Lessee, other than the right to maintain
possession and use of the Equipment for the Original Term, conditional on
Lessee's performance of the terms and conditions of the Lease, (ii) Lessee
has not taken and will not at any time during the Original Term take any
action which shall cause Lessor to lose any tax benefits of ownership, and
(iii) the Stipulated Loss Values (defined in the applicable Lease) agreed
to under this Lease are intended to provide recovery by Lessor of such
lost tax benefits of ownership.
2.1.1 Acceptance of Equipment. Lessees acceptance of the Equipment shall be
conclusively and irrevocably evidenced by Lessee executing the Certificate
of Delivery and Acceptance and upon acceptance the Lease of such Equipment
shall be noncancellable for the Original Term unless otherwise agreed to
as writing by Lessor.
2.12 Financial Statements. Law shall promptly furnish, or cause to be
furnished, to Lessor such financial or other statements respecting the
condition and operations of Lessee or respecting the Equipment as Lessor
may from time to time reasonably request.
2.13 Lessee Representations. Lessee hereby represents, warrants and covenants
that with respect to this Master Agreement and each Lease entered into
hereunder:
(a) The execution, delivery and performance thereof by the Lessee have
been duly authorized by all necessary corporate action;
(b) The individual executing such was duly authorized to do so;
(c) This Master Agreement and each Lease constitute the legal, valid and
binding obligations of the Lessee enforceable in accordance with the
respective terms.
DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any of the following shall constitute
an Event of Default hereunder: (a) Lessee shall fail to pay on the due
date any rental or other payment due under any lease and such failure
shall not be cured within 10 days of notice thereof from Lessor to
Lessee. (b) any provision of this Master Agreement or any Lease or any
provision in any document provided by Lessee for this Master Agreement or
any Lease, or in any document furnished pursuant to the provisions hereof
or otherwise, shall prove to have been false or misleading in any material
respect as of the date when it was made, (c) Lessee shall fail to perform
any provision, covenant, condition or agreement made by it under this
Master Agreement or Lease, and such failure shall continue for twenty
days after notice thereof from Lessor to Lessee or (d) bankruptcy,
receivership, insolvency, reorganization, dissolution, liquidation, or
other similar proceedings shall be instituted by or against Lessee or all
or any part of its property under the Federal Bankruptcy Code or other law
of the United States or of any state law, and ii against Lessee it shall
consent thereto or shall rail to cause the same to be discharged within
twenty (20) days, or (e) Lessee shall default under any agreement with
respect to the purchase or installation of the Equipment, or (f) if Lessee
or any guarantor of Lessee's obligations hereunder shall default under any
other agreement with Lessor.
3.2 Remedies. If an Event of Default hereunder shall occur and be continuing,
Lessor may exercise any one or more of the following remedies: (a)
immediately terminate this Master Agreement and any or all Leases and
Lessee'. rights hereunder and thereunder, (b) proceed, by appropriate
court action or actions either at law or in equity, to enforce performance
by Lessee of the applicable covenants of the Lease or to recover damages
for the breach thereof, (c) by notice in writing to Lessee. recover all
amounts due on or before the date of the event of default, plus, as
liquidated damages for 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 any or all such Leases, without any presentment, demand,
protest or further notice (all of which hereby are expressly waived by
Lessee), whereupon the same shall be and become immediately due and
payable, and (d) personally, or by its agents take immediate possession of
the Equipment, or any part thereof, From Lessee and for such purpose,
enter upon Lessee's premises where any of the Equipment is located with or
without notice or process of law and free from all claims by Lessee. The
exercise of any of the foregoing remedies by Lessor shall not constitute a
termination of any Lease unless Lessor so notifies Lessee in writing. Upon
such an acceleration and declaration or other exercise of remedy, if
Lessee shall pay all amounts payable hereunder through the expiration of
the term and shall Cure any and all defaults Lessee shall be
entitled to use the equipment installed through the expiration of the term
on the terms and conditions set forth herein.
3.3 Disposition of Equipment. In the event Lessor repossess Equipment, Lessor
may (a) lease the Equipment, or any portion thereof, in such a manner, for
such time and upon such term(s) as Lessor may determine or (b) sell the
Equipment. or any portion thereof, at one or more public or private sales,
in such manner, and at such times and upon such terms as Lessor may
determine. In the event that Lessor leases any such Units, any rentals
received by Lessor for the Remaining Lease Term(s) (the period ending on
the date when the Original Term for the Unit(s) would have expired if an
Event of Default had not occurred) for such Units shall be applied to the
payment of (i) all costs and expenses (Including attorneys' fees)
incurred by Lessor in retaking possession of, and removing, storing,
repairing, refurbishing and leasing such Units, and (ii) the rentals for
the remainder of the Original Term and all other sums, including past due
rentals, remaining unpaid under the Lease. The balance of such rentals, if
any, shall be applied first to reimburse Lessee for any sums previously
paid by Lessee as liquidated damages, and any remaining amounts shall be
retained by Lessor. All rentals received by Lessor for the period
commencing after the expiration of the Remaining Lease Term(s) shall be
retained by Lessor. Lessee shall remain liable to Lessor to the extent
that the aggregate amount of the sums referred to in clause (i) and (ii)
above shall exceed the aggregate rentals received by Lessor under such
leases for the respective Remaining Lease Term(s) applicable to the Units
covered by such lease. In the event that Lessor shall sell or otherwise
dispose of (other than pursuant to a lease) any such Unit, the proceeds
thereof shall be applied to the payment of (i) all costs and expenses
(including reasonable attorneys' fees) incurred by Lessor in retaking
possession of, and removing, storing, repairing, refurbishing and selling
or otherwise disposing of such Unit(s), (ii) the rentals that either did
or would have accrued under the Lease but are unpaid up to the time of
such sale or other disposition, (iii) any and all other sums (other than
rentals) then owing to Lessor by Lessee under, and (iv) the Stipulated
Loss Value of such Unit(s) determined as of the date of such sales or
other disposition in accordance with the schedule set forth in the Lease
for such Unit(s). The balance of such proceeds, If any, shall be applied
first to reimburse Lessee for any sums previously paid by Lessee as
liquidated damages, and any remaining amounts shall be retained by Lessor.
Lessee shall remain liable to Lessor to the extent that the aggregate
amount of the sums referred to in clauses (I) through (iv) above shall
exceed the aggregate proceeds received by Lessor in connection with the
sale or disposition of the Equipment (other than pursuant to a lease).
IV. MISCELLANEOUS
4.1 Performance of Lessee's Obligations. Upon Lessee's failure to pay any sum
or perform any obligation hereunder when due, Lessor shall have the
option, but shall in no case be obligated, to pay such sum or perform such
obligation, whereupon such sum or the cost of such performance shall
immediately become due and payable as additional rent from Lessee to
Lessor with interest at the highest legal rate from the date payment or
performance was due.
4.2 Assignment. No right, obligation or interest of Lessee with respect to
this Master Agreement, any Lease or Equipment shall, without the prior
written consent of Lessor, be assignable by Lessee and any such purported
assignment shall be null and void. Lessor may, at anytime, without the
consent of Lessee, assign the Master Agreement and any Lease or any
interest herein or therein to any party. In the event of any assignment of
Lessor, the assignee shall have all of Lessor's rights hereunder, but none
of its obligations, and upon receipt by Lessee of written notice of any
such assignment, Lessee shall make all payments thereafter becoming due
under any assigned Lease to such assignee without regard to any set-off,
defense or counter claim that Lessee may have against Lessor.
2.2 Use of Equipment. Lessee shall use the Equipment solely in the conduct of
its business, in a manner and for the use contemplated by the manufacturer
thereof, and in compliance with all laws, rules and regulations of every
governmental authority having jurisdiction over the Equipment and with the
provisions of all policies of insurance carried by Lessee pursuant to
Section 2.6 below; provided, however, Lessee shall have the right to allow
third parties, under Lessee's supervision, to use the Equipment, so long
as Lessee shall retain uninterrupted possession and control of the
Equipment. Lessee shall pay all costs, expenses, fees and charges incurred
in connection with the use and operation of the Equipment.
2.3 Delivery, Installation, Maintenance and Repair. Lessee shall be solely
responsible, at its own expense, for the delivery of the Equipment to
Lessee, the packing, rigging and delivery of the Equipment back to Lessor
upon expiration of the Original Term in good repair, condition, and
working order, ordinary wear and tear excepted, at the location(s) within
the continental United States specified by Lessor. Lessee is also solely
responsible for the installation, de-installation, maintenance and repair
of the Equipment. Lessee shall, at its expense, (a) keep the Equipment in
good repair, condition and working order, ordinary wear and tear excepted,
and (b) at the expiration of the Original Term or any renewal term have
the Equipment inspected and certified as acceptable for maintenance
service by the manufacturer. Lessor shall be entitled to inspect the
Equipment at Lessee's location at reasonable times.
2.4 Taxes. Lessee agrees to pay, and to indemnify and hold Lessor harmless
from, all license fees, assessments, and sales, use, property, excise and
other taxes and charges ("Imposts")(other than those measured by Lessor's
net income) now or hereafter imposed by any governmental body or agency
upon or with respect to (a) the Equipment or the possession, ownership,
use or operation thereof or (b) this Master Agreement, any Lease, or the
consummation of the transactions herein contemplated. All required
personal property tax returns relating to the Equipment shall be filed by
Lessee unless otherwise provided in writing. Lessee shall reimburse Lessor
promptly upon demand for the amount of any Imposts remitted by Lessor
which are required hereunder to be borne by Lessee.
2.5 Loss of Equipment. Lessee shall bear the entire risk of the Equipment
being lost, destroyed or otherwise rendered permanently unfit or
unavailable for use from any cause whatsoever (hereinafter called an
"Event of Loss") after its delivery to Lessee. If an Event of Loss shall
occur with respect to any Unit, Lessee shall promptly and fully notify
Lessor thereof. On the rental payment date following such notice Lessee
shall pay to Lessor an amount equal to the rental payment or payments due
and payable for such Unit on such date plus a sum equal to the Stipulated
Loss Value (as defined in the applicable Supplement) of such Unit as of
the date of such payment set forth in such Supplement. Upon the making of
such payment by Lessee regarding any Unit, the rental obligation for such
Unit shall cease, the Lease as to such Unit shall terminate and (except in
the case of loss, theft or complete destruction) Lessor shall be entitled
to recover possession of such Unit at Lessee's expense in accordance with
the provisions of Section 2.3 above. Provided that Lessor has received the
Stipulated Loss Value for any Unit, Lessee shall be entitled to the
proceeds of any recovery in respect of such Unit from insurance or
otherwise.
2.6 Insurance. Lessee shall obtain and maintain for the entire term of the
Lease, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including , without
limitation, loss by fire (including so-called extended coverage), theft
and such other risks of loss as are required on the type of Equipment
leased hereunder and by businesses in which Lessee is engaged in such
amounts in such form and with such insurers as shall be satisfactory to
Lessor, provided however, that such insurance for lots or damage of any
Unit shall always be at a minimum, the amount of the Stipulated Loss Value
of such Unit. Each insurance policy will name Lessee as insured and Lessor
as an additional insured and loss payee thereof as Lessor's interests may
appear and shall provide that it may not be canceled or altered without at
least 30 days prior written notice to Lessor or its successors and
assigns. Lessee shall provide to Lessor a certificate of insurance as
evidence of insurance coverage prior to delivery of any Unit.
2.7 Indemnity. Lessee shall and does hereby indemnify Lessor and its
successors and assigns against, and hold Lessor and its successors and
assigns harmless from, any and all claims, demands, actions and suits,
proceedings, costs, expenses, damages and liabilities, including
reasonable attorneys' fees, hereinafter ("Claims"), arising out of,
connected with or resulting from this Master Agreement, any Lease, or the
Equipment, including, without limitation, the selection, ownership,
control, maintenance, lease, purchase, delivery, possession, condition,
use, operation, or return of the Equipment. Except to the extent arising
out of Lessor's negligence, bad faith or willful misconduct. Lessee shall
give Lessor immediate notice of any Claim and Lessee shall satisfy, pay
and discharge any and all judgments and fines that may be recovered
against Lessor in connection with any such Claim. Lessor shall give Lessee
written notice of any such Claim of which Lessor has knowledge.
2.8 Possession; Assignment; Pledge. Without the prior written consent of
Lessor, which such consent as it pertains to subsections (a) and (d),
shall not be unreasonably withheld or delayed, Lessee shall not (a)
sublease the Equipment, or any part thereof, provided, that Lessee may,
without the prior written consent of Lessor, permit any parent or
subsidiary of Lessee to use the Equipment, or any part thereof, in the
ordinary course of its business, (b) assign, this Master Agreement or any
Lease or its interest hereunder or thereafter, (c) create or incur any
lien or encumbrance with respect to the Equipment, or any part thereof,
(d) move the Equipment, or any part thereof, or permit any of the
Equipment to be moved from the location at which it is first installed, or
(e) permit the Equipment, or any part thereof, to be removed outside the
continental limits of the United States.
2.9 Identification. At any time during the term of a Lease, Lessor may require
Lessee to legibly xxxx each Unit subject to such Lease in a reasonably
prominent location with a label, disc or other marking stating that the
Equipment is owned by Lessor.
2.10 Alterations or Modifications. Lessee shall not make any alternations of or
additions to the Equipment without the prior written consent of Lessor. At
any time during the Original Term, of any Lease there may be added to such
Lease additional Units of the same type as are rented thereunder for a
term equal to the remaining Original Term and, subject to the terms and
conditions hereof, at the rental rates applicable to such Equipment and
term in effect at the time the order is placed, provided that the order is
in writing and accepted by Lessor. Such acceptance shall be at the sole
discretion of Lessor. All additions, attachments or accessories to or
improvements to the Equipment shall immediately belong to and become
property of the Lessor unless, at the request of Lessor, such additions,
attachments or accessories to or improvements of the Equipment are removed
prior to the return of said Equipment by Lessee. Lessee shall be
responsible for the costs of such removal and shall restore the Equipment
to the same operating condition as when it became subject to the Lease.
2.11 Equipment to be Personal Property. Lessee agrees that the Equipment shall
be and remain personal property notwithstanding the manner in which it may
be attached or affixed to realty, and Lessee shall do all acts and enter
into all agreements necessary to ensure that the Equipment remains
personal property.
4.3 Quiet Enjoyment. So long as Lessee shall not be in default hereunder and
Lessor continues to receive all rent and other sums payable by Lessee
hereunder in accordance with the terms hereof, neither Lessor nor its
assignee, shall interfere with Lessee's right of quiet enjoyment and use
of the Equipment.
4.4 Further Assurances. Lessee agrees that at any time, and from time to
time, after the execution and delivery of this Lease, it shall, upon the
request of Lessor, execute and deliver such further documents and do such
further acts and things as Lessor may reasonably request in order fully to
effect the purposes of this Lease including without limitation, the filing
of financial and confirmation statements. Lessee authorizes Lessor to file
a financing statement or any confirmation statements signed only by Lessor
in accordance with the Uniform Commercial Code or signed by Lessor as
Lessee's attorney in fact.
4.5 Rights, Remedies, Powers. Each and every right, remedy and power granted
to Lessor hereunder shall be cumulative and in addition to any other
right, remedy or power herein specifically granted or now or hereafter
existing in equity, at law, by virtue of statute or otherwise, and may be
exercised by Lessor from time to time concurrently or independently and as
often and in such order as Lessor may deem expedient. And any failure or
delay on the part of Lessor in exercising any such right, remedy or power,
or abandonment or discontinuance of steps to enforce the same, shall not
operate a waiver thereof or affect Lessor's right thereafter to exercise
the same, and any single or partial exercise of any such right, remedy or
power shall not preclude any other or further exercise thereof or the
exercise of any other right, remedy or power.
4.6 Notices. Any notice, request, demand, consent, approval or other
communication provided or permitted hereunder shall be in writing and
shall be conclusively deemed to have been received by a party hereto on
the day it is delivered to such party at its address set forth above (or
at such other address as such party shall specify to the other party in
writing), or if sent by registered or certified mail, return receipt
requested, on the third business day after the day on which mailed,
addressed to such party at such address.
4.7 Section Headings. Section headings are inserted for convenience only and
shall not affect any construction or interpretation of any Lease.
4.8. Binding Effect. Each Lease, subject to the provisions of Sections 2.8 and
4.3 hereof, shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the Lessee and Lessor.
4.9 Governing Law. Each Lease shall be governed in all respects by the laws of
the Commonwealth of Massachusetts.
4.10 Entire Lease. Each Lease, consisting of the terms and conditions of this
Master Agreement, a Supplement, and any Amendments, Schedules or Riders to
either of them, constitutes the entire agreement between Lessor and
Lessee. No waiver, consent, modification or change of terms of this Lease
shall bind either party unless in writing signed by both parties, and then
such waiver, consent, modification or change shall be effective only in
the specific instance and for the specific purpose given. There are no
understandings, agreements, representations or warranties, express or
implied, not specified therein regarding any Lease or the Equipment leased
thereunder. Any terms and conditions of any purchase order or other
document (with the exception of Supplements) submitted by Lessee in
connection with any Lease which are in addition to or inconsistent with
the terms and conditions of such Lease will not he binding on Lessor and
will not apply to the Lease. LESSEE BY THE SIGNATURE BELOW OF ITS
AUTHORIZED REPRESENTATIVE ACKNOWLEDGES THAT IT HAS READ THIS MASTER
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS WITH RESPECT TO ANY LEASE ENTERED INTO HEREUNDER.
SEE ADDENDUM NO. 1 TO MASTER EQUIPMENT LEASE AGREEMENT NO. F38429 DATED
08/10/99 ATTACHED HERETO AND MADE A PART HEREOF FOR ADDITIONAL TERMS AND
PROVISIONS.
ACCEPTED AND AGREED
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. XXXX.XXX
BY: /s/ Xxxxxx Xxxxxx BY: /s/ Xxxxx XxXxxxxxx
-------------------------------- -------------------------------------
TITLE: President TITLE: EVP & CFO
----------------------------- ----------------------------------
LEASE
SCHEDULE
[LOGO]XXXXXXXX
XxXXXXXX
LEASE AGREEMENT NO. F38429 DATED August 10,1999.
SCHEDULE A DATED: August 10, 1999.
MINIMUM TERM: 36 months after the first day of the month following the
Commencement Date of the last item of Equipment.
LESSEE: XXXX.XXX, INC.
EQUIPMENT LOCATION: 00 XXXXXXXX, XXX XXXX, XX 00000.
COMMENCEMENT DATE: Upon installation of the Equipment.
MANUFACTURER: VARIOUS
Equipment Serial Monthly
Qty Type Model Description Number Rent
--- ---- ----- ----------- ------ ----
2 3830-36 SYM 3830 36GB FRAME
48 3030-36M2 36GB INTERNAL DRIVES
(72.4GB USABLE RAID-1)
4 DP2-FCD2 2PORT MULTIMODE FIBRE
CHANNEL DIRECTOR
4 DP2 4PORT ULTRA SCSI
CHANNEL DIRECTOR
4 DP2-RLD4 4PORT REMOTELINK DRTR
8 MEM2-6144 6GB CACHE MEMORY
4 FC10M-50M 10METER FIBRE
CHANNEL CABLES
2 CFS-14 CELERRU CABINET
10 CDMS-2E4 2X QUAD ETHERNET
DATAMOVER
2 CCS3-6 CELERRA CONTROL STATION
10 CPS-UNIX.LIC CELERRA SW LICENSE
2 CPS-CSMUR-LIC CONTROL STATION
MGR SW
12 C12MIN-689 12M SCSI CABLE
2 EC-1000 CONNECTRIX CABINET
1 SP-1001 CONNECTRIX SERVICE
PROCESSOR KIT
2 ED-1032-325 CONNECTRIX
DIRECTOR 32 PORT
1 EM-1002 CONNECTRIX MGR SW
2 PM-1032 CONNECTRIX PRD MGR
40 FC30M-50M FIBER 30 CABLES
2 EDB-TJBR2 DB EDITION F/ORACLE
FOR 2SUN HOSTS AND SYMMETRIX 3930
EFS-SUN450 FOUNDATION SUITE BY
VERITAN FOR SUN 450
2 PS-LVL1-SRDF SRDF INSTALL
2 PS-LVL1-SYM PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
SYMM MGR.
INITIALS:
/s/ FMA
-----
/s/ LESSEE
-----
[LOGO]
Xxxx.xxx, Inc.
Schedule A to Lease Agreement No. F38429
Equipment Serial Monthly
Qty Type Model Description Number Rent
--- ---- ----- ----------- ------ ----
2 PS-LVL1-TIME PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
TIMEFINDER
2 PS-LVL1-PWP PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
POWERPATH
2 PS-CFS-PM PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
CELERRA
1 PS-BSN-PM PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
BSN
1 PSI-FPB-BC PROF'L SERVICES
PLANNING, INSTALL, IMPLEMENTAT.
BUSINESS CONTINUANCE
2 SYMMGR-BAS SYMM MANAGER BASE S/W
2 SYMMGR-DDR SYMMETRIX MGR SW
BASE COMPONENT
2 SYMMGR-CTL SYMMETRIX MGR
SW-CONTROL COMPONENT
2 SYMMGR-WLA SYMMETRIX MGR
SW-WORKLOAD ANALYZER COMPON.
2 POWERPATH-ENT SW FOR ENTERPRIS
CLASS SERVER
2 TF-OPEN TIMEFINDER SW FOR
OPEN SYSTEMS
2 SRDF-3800 SYMMETRIX REMOTE
DATE FACILITY
2 V-LOGTX-XS VOLUME LOGIX SW
3YEAR HARDWARE SUPPORT
3YEAR SOFTWARE SUPPORT
25 FIBRE CHANNEL HOST-BUS ADPTR
FOR SUN PCI BASED MACHINES
14 FC641063EMC FIBRE-CHANNEL HOSTBUS ADPTR
FOR SUN SBUS BASED MACHINES
Effective upon the Commencement Date
through the end of the 24th full month
of Minimum Term: $109,709.00
Effective from the first day of the
25th month through the end of the
Minimum Term and thereafter: $137,937.00
INITIALS:
/s/ FMA
-----
/s/ LESSEE
-----
2
Xxxx.xxx, Inc.
Schedule A to Lease Agreement No. F38429
1. This Lease Schedule is contingent upon FMA's receipt of Master Equipment
Lease Agreement No. F38429 and related documentation to be returned to FMA
simultaneously with this Schedule properly executed by Lessee.
2. The Monthly Rent is based on Lessee assigning its on-order Equipment to
Xxxxxxxx/XxXxxxxx Associates, Inc., resulting in an FMA purchase price not
to exceed $3,600,000.00.
3. The Monthly Rent herein is subject to change if this contract is not
properly executed and received by FMA by Sept. 10, 1999, and the Equipment
is not delivered, installed and accepted by Lessee by October 31, 1999.
4. The term of this Lease shall commence on the date set forth hereinabove
and shall continue in force thereafter until the Lease is terminated by
either party upon not less than sixty (60) days prior written notice to
the other party; provided, however, that this Lease shall in no event be
terminated prior to the expiration of the minimum term specified herefor
("Minimum Term"), and that no notice of termination shall be effective if
given more than one hundred eighty (180) days before the date of
termination. Any notice of termination given by either party may not be
withdrawn without the written consent of the other party. Except as
otherwise expressly provided herein, each Lease is irrevocable for the
full term thereof and for the aggregate rental therein provided.
5. The terms and conditions of Lease Agreement No. F38429 are herein
incorporated by reference. In addition, it is agreed that the warranty
disclaimer set forth in the Lease Agreement shall apply to FMA's
affiliate, Xxxxxxxx Solutions Group, Inc.(FSG) to the extent that any of
the Equipment is supplied by FSG (Lessee shall nevertheless have the
benefit of all applicable manufacturer warranties).
6. Insurance Value: $3,600,000.00
XXXXXXXX XxXXXXXX ASSOCIATES, INC. XXXX.XXX, INC.
BY /s/ Xxxxxx Xxxxxx BY /s/ Xxxxx XxXxxxxxx
--------------------------------- --------------------------------------
An Authorized Signatory
NAME Xxxxxx Xxxxxx NAME Xxxxx XxXxxxxxx
------------------------------- ----------------------------------
TITLE Authorized Signatory TITLE EVP & CFO DATE 9/10/99
--------------------
DATE 8/12/99
-------
3
ADDENDUM NO. I
TO MASTER EQUIPMENT LEASE AGREEMENT NO. F38429 ("MASTER LEASE")
DATED AS OF AUGUST 10, 1999
BY AND BETWEEN
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. ("FMA")
AND
XXXX.XXX. INC. ("LESSEE")
The terms and provisions of the Master Lease are hereby amended as follows:
1. Section 1.1. Lease of Equipment: All references to the term "Supplement"
shall mean "Schedule" for all purposes hereinafter.
2. Section 1.5. Return of Equipment:
(a) Delete "expiration" and insert "termination" in lieu thereof.
(b) Delete "end" and insert "termination" in lieu thereof.
3. Section 2.3. Installation, Maintenance and Repair: In the first sentence,
delete "expiration" and insert "termination" in lieu thereof.
4. Section 2.4. Taxes:
(a) In the second sentence (fifth line), delete "filed by Lessee" and
insert "filed by Lessor" in lieu thereof.
(b) In the last line, after "amount of" insert "such taxes paid by
Lessor on behalf of Lessee and".
5. Section 4.4. Further Assurances: In the second line, after "further
documentation" insert "including without limitation a Certificate of
Incumbency".
6. Section 4.9. Governing Law: Delete "Commonwealth of Massachusetts" and
insert "State of Illinois" in lieu thereof.
7. The following sections are added to the end of the Agreement:
5.1.Option To Extend: Provided that no Event of Default exists under the
Lease, Lessee shall have the option to renew or extend the Lease of any or
all of the Equipment at the end of the Initial Term or any extension
thereof ("Extended Term") for an Extended Term of one year, two years or
three years. The Monthly Rental during any Extended Term shall be the Fair
Market Value rental for the Equipment at the commencement of any Extended
Term for the term chosen. Such option may be exercised by Lessee by giving
written notice to Lessor not less than sixty (60) days prior to the
expiration of the Initial Term or any Extended Term then in effect.
5.2.Option to Purchase: Provided that no Event of Default exists under the
Lease, the Lessee shall have the option to purchase any or all of the
Equipment at the expiration of the Initial Term or any Extended Term for a
purchase price equal to the Fair Marker Value of the Equipment at such
point in time plus any applicable taxes. Such option may be exercised by
Lessee by giving written notice to the Lessor not less than sixty (60)
days prior to the expiration of the Initial Lease Term or any Extended
Term then in effect. On the expiration date of the Initial Term or any
Extended Term, if Lessee has elected to purchase the Equipment, Lessee
shall purchase from Lessor, and Lessor shall sell to Lessee the
Equipment on an AS IS, WHERE IS, BASIS except that Lessor shall warrant
title and that the equipment is free and clear of all liens and
encumbrances arising by or through the Lessor, except for taxes or other
impositions for which Lessee is obligated to pay under the Lease or
conversion to Purchase. Lessor shall provide Lessee with a Xxxx of Sale
following Lessee's request and the payment in full. Monthly lease payments
shall continue to accrue at the then current lease rate until the full
Purchase Price plus any and all tax is paid to Lessor.
5.3 Fair Market Value: Fair Market Value shall be determined on the basis
of and shall mean the amount which would be obtainable and paid in an arms
length transaction between an informed and willing buyer or lessee, as the
case may be, (other than lessee currently in possession) and an informed
and willing seller or lessor. If Lessor and Lessee can not agree upon the
Fair Market Value for the Equipment, the Fair Market Value shall be
determined on a delivered, retail, installed, in-place basis in accordance
with the following: Lessor and Lessee shall each obtain an appraisal of
the Equipment from an independent appraiser selected by each party. The
average of such two (2) appraisals shall be the Fair Market Value for the
Equipment. Notwithstanding the foregoing, if the two (2) appraisals vary
in value by more than fifteen percent (15%), than the two (2) appraisers
selected by Lessor and Lessee shall select a third independent appraiser
who will provide an appraisal of the Equipment. The results of the
appraisal of the third independent appraiser shall be the Fair Market
Value of the Equipment. The expense of such appraisals shall be borne
equally by Lessor and Lessee.
5.4 Prepayment: Provided that no Event of Default exists under the Lease,
with 90 days prior written notice, Lessee may prepay the remaining lease
payments owed and outstanding under the Lease discounted at the U.S.
Treasury Note Rate in effect on the Commencement Date for notes having a
maturity comparable to the remaining term of the Lease plus any applicable
pre-payment penalties. At such time as this has been done, Lessee may
exercise the Option to Purchase in Paragraph 5.2 above.
Except as specifically modified hereby, the terms and provisions of the Master
Lease shall remain in full force and effect.
Dated: August 10, 1999
ACCEPTED AND AGREED
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. XXXX.XXX, INC.
BY: /s/ Xxxxxx Xxxxxx BY: /s/ Xxxxx XxXxxxxxx
-------------------------------- ------------------------------------
TITLE: President TITLE: EVP & CFO
----------------------------- ----------------------------------
ADDENDUM NO. 1
TO EQUIPMENT SCHEDULE A,
DATED AUGUST 10, 1999
The following amendment is incorporated into and made a part of the attached
Equipment Schedule A to Master Lease Agreement No. F38429 ("Master Lease"),
dated August 10, 1999 between XXXXXXXX/XXXXXXXX ASSOCIATES, INC. ("Lessor") and
XXXX.XXX, INC. ("Lessee"):
1. Option to Purchase. Provided that no Event of Default exists under the
Lease, the Lessee shall have the option to purchase the Equipment at the
expiration of the Initial Term or any Extended Term for a purchase price
equal to the lesser of (a) the Fair Market Value of the Equipment at such
point in time plus any applicable taxes or (b) thirty percent (30%) of the
hardware cost of the Equipment in the amount of $2,777,600.00 plus any
applicable taxes.
Except as expressly modified herein, the terms and provisions of the Schedule A
and the Master Lease, including the other terms and conditions for the option to
purchase, shall remain in full force and effect.
Dated: September 1, 1999
ACCEPTED AND AGREED
XXXX.XXX, INC. XXXXXXXX/XxXXXXXX ASSOCIATES, INC.
BY: /s/ Xxxxx XxXxxxxxx BY: /s/ Xxxxxx Xxxxxx
-------------------------------- -------------------------------------
TITLE: EVP & CFO TITLE: President
----------------------------- ----------------------------------
================================================================================
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
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)
--------------------------------------------------------------------------------
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
Xxxx.xxx, Inc.
-----------------------------------------------------------------------------
OR
1b. INDIVIDUAL'S LAST NAME
--------------------------------------------------------------------------------
FIRST NAME
--------------------------------------------------------------------------------
MIDDLE NAME
--------------------------------------------------------------------------------
SUFFIX
--------------------------------------------------------------------------------
1c. MAILING ADDRESS
00 Xxxxxxxx Xxxxx 000
--------------------------------------------------------------------------------
CITY
New York
--------------------------------------------------------------------------------
STATE
NY
--------------------------------------------------------------------------------
COUNTRY
--------------------------------------------------------------------------------
POSTAL CODE
10004
--------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.#
--------------------------------------------------------------------------------
OPTIONAL ADD'NL INFO RE ENTITY DEBTOR
--------------------------------------------------------------------------------
1e. TYPE OF ENTITY
--------------------------------------------------------------------------------
1f. ENTITY'S STATE OR COUNTRY OF ORGANIZATION
--------------------------------------------------------------------------------
1g. ENTITY'S ORGANIZATIONAL I.D.#, if any
|_|NONE
================================================================================
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME-insert only 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 ADD'NL INFO RE ENTITY DEBTOR
--------------------------------------------------------------------------------
2e. TYPE OF ENTITY
--------------------------------------------------------------------------------
2f. ENTITY'S STATE OR COUNTRY OF ORGANIZATION
--------------------------------------------------------------------------------
2g. ENTITY'S ORGANIZATIONAL I.D.#, if any
|_|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
Xxxxxxxx/XxXxxxxx Associates, Inc.
-----------------------------------------------------------------------------
OR
3b. INDIVIDUAL'S LAST NAME
--------------------------------------------------------------------------------
FIRST NAME
--------------------------------------------------------------------------------
MIDDLE NAME
--------------------------------------------------------------------------------
SUFFIX
--------------------------------------------------------------------------------
3c. MAILING ADDRESS
0000 Xxxxxxxx Xxxx
--------------------------------------------------------------------------------
CITY
Skokie
--------------------------------------------------------------------------------
STATE
IL
--------------------------------------------------------------------------------
COUNTRY
--------------------------------------------------------------------------------
POSTAL CODE
60077
================================================================================
4. This FINANCING STATEMENT covers the following types or items of property:
Computer, data processing, telecommunications and other equipment together
with all attachments, accessories, replacements, products and proceeds
thereof, from time to time leased by Lessor to Lessee pursuant to Master
Equipment Lease Agreement No. F38429 dated 8/10/99 and various Schedules
entered into pursuant thereto. This financing statement is filed for
informational purposes only and shall not of itself be a factor in
determining whether or not a lease is intended as security.
================================================================================
5. CHECK BOX
(if applicable)
|_| This FINANCING STATEMENT is signed by the Secured Party instead of
the Debtor to perfect a security interest (a) in collateral already
subject to a security interest in another jurisdiction when it was
brought into 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) Xxxx.xxx, Inc. /s/ Xxxxx XxXxxxxxx
Xxxxxxxx/XxXxxxxx Associates, Inc.
--------------------------------------------------------------------------------
7. If filed in Florida (check one)
|_| Documentary |_| Documentary stamp
stamp tax paid tax not applicable
================================================================================
8. |_| This FINANCING STATEMENT is to be filed (for record) (or recorded) in the
REAL ESTATE RECORDS
Attach Addendum (if applicable)
--------------------------------------------------------------------------------
9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
[ADDITIONAL FEE]
(optional) |_|All Debtors |_|Debtor 1 |_|Debtor 2
================================================================================
(1) FILING OFFICER COPY - NATIONAL FINANCING STATEMENT (FORM UCC1) (TRANS) (REV.
12/18/95)
REORDER FROM
Registre, Inc.
000 XXXXXX XX.
X.X. XXX 000
XXXXX, XX 00000
[ILLEGIBLE]
