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MASTER LEASE AGREEMENT
MELLON US LEASING
DATED AS OF DECEMBER 23, 1997
LESSOR:
Mellon US Leasing, a Division of Mellon Leasing Corporation
ADDRESS:
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
LESSEE:
MICRODYNE CORPORATION
ADDRESS:
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
TERMS AND CONDITIONS OF LEASE
The undersigned Lessee hereby requests Lessor to purchase the personal property
described in any Equipment Schedule hereunder (herein called "Equipment") from
the supplier(s) listed in any Equipment Schedule hereunder (herein called
"Vendor" and/or "Manufacturer", as applicable) and to lease the Equipment to
Lessee on the terms and conditions of the lease set forth below.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the
Equipment upon the following terms and conditions:
1. NO WARRANTIES BY LESSOR. Lessee has selected the Equipment and may have
entered into certain purchase, licensing, or maintenance agreements with
the Vendor and/or Manufacturer (herein referred to as an "Acquisition
Agreement") covering the Equipment as further described in Paragraph 26
hereof. If Lessee has entered into any Acquisition Agreement, each
agreement shall provide for certain rights and obligations of the parties
thereto with respect to the Equipment, and Lessee shall perform all of the
obligations set forth in each Acquisition Agreement as if this lease did
not exist. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING THE CONDITION OF THE EQUIPMENT, ITS MERCHANT ABILITY
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES
THE EQUIPMENT "AS IS." LESSOR SHALL HAVE NO LIABILITY FOR ANY LOSS, DAMAGE
OR EXPENSE OF ANY KIND WHATSOEVER RELATING THERETO, INCLUDING WITHOUT
LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF
ANY CHARACTER.
2. CLAIMS AGAINST VENDOR AND/OR MANUFACTURER. If the Equipment is not properly
installed, does not operate as represented or warranted by Vendor and/or
Manufacturer, or is unsatisfactory for any reason, Lessee shall make any
claim on account thereof solely against Vendor and/or Manufacturer pursuant
to the Acquisition Agreement, if any, and shall, nevertheless, pay Lessor
all rent payable under this lease. All warranties from Vendor and/or
Manufacturer are, to the extent they are assignable, hereby assigned to
Lessee for the term of this lease or until an Event of Default occurs
hereunder, for Lessee's exercise at Lessee's expense. Lessee may directly
inquire with Vendor and/or Manufacturer to receive an accurate and complete
statement of such warranties, including any disclaimers or limitations of
such warranties or of any remedies with respect thereto.
3. VENDOR NOT AN AGENT. Lessee understands and agrees that neither Vendor, nor
any sales representative or other agent of Vendor, is an agent of Lessor.
Sales representatives or agents of Vendor, and persons that are not
employed by Lessor (including brokers and agents) are not authorized to
waive or alter any term or condition of this lease, and no representation
as to the Equipment or any other matter by Vendor or any other person that
is not employed by Lessor (including brokers and agents) shall in any way
affect Lessee's duty to pay the rent and perform its other obligations as
set forth in this lease.
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4. NON-CANCELABLE LEASE. This lease and any Equipment Schedule hereto cannot
be canceled or terminated except as expressly provided herein. Lessee
agrees that its obligation to pay all rent and other sums payable hereunder
and the rights of Lessor in and to such rent are absolute and unconditional
and are not subject to any abatement, reduction, setoff, defense,
counterclaim or recoupment due or alleged to be due to, or by reason of,
any past, present or future claims which Lessee may have against Lessor,
any assignee, any Manufacturer or Vendor, or against any person for any
reason whatsoever.
5. ORDERING EQUIPMENT. Lessee shall arrange for delivery of the Equipment so
that it can be accepted in accordance with Paragraph 6 hereof within 90
days after the date on which Lessor accepts Lessee's offer to enter into
this lease with respect to any Equipment Schedule or by such other date as
may be set forth in an Equipment Schedule or Approval Letter issued by
Lessor as the Approval Expiration Date. Unless otherwise specified on the
Equipment Schedule, Lessee shall be responsible for all transportation,
packing, installation, testing and other charges in connection with the
delivery, installation and use of the Equipment. Lessee hereby authorizes
Lessor to insert in any Equipment Schedule hereunder the serial numbers and
other identification data of Equipment when determined by Lessor.
6. ACCEPTANCE. Lessee acknowledges that for purposes of receiving or accepting
the Equipment from Vendor, Lessee is acting on Lessor's behalf. Upon
delivery of the Equipment to Lessee and Lessee's inspection thereof, Lessee
shall furnish Lessor a written statement (a) acknowledging receipt of the
Equipment in good condition and repair and (b) accepting it as satisfactory
in all respects for the purposes of this lease (the "Certificate of
Acceptance"). Unless otherwise set forth in the applicable Equipment
Schedule, the first day of the month following receipt and acceptance of
the Equipment covered by an Equipment Schedule shall be the Rent
Commencement Date therefor However, should Lessee have a previous lease
with Lessor which is active at the time of acceptance of the Equipment
under the Equipment Schedule and said lease and the current Equipment
Schedule hereunder shall have the same invoice address then the Rent
Commencement Date shall occur in the month immediately following acceptance
of the Equipment on the rent payment due date established with Lessee for
said previous active lease. Lessor is authorized to fill in on any
Equipment Schedule hereunder the Rent Commencement Date in accordance with
the foregoing.
7. TERMINATION BY LESSOR. If, by the Approval Expiration Date, the Equipment
described in any Equipment Schedule has not been delivered to Lessee and
accepted by Lessee as provided in Paragraph 6 hereof, or if other
conditions of Lessor's Approval Letter, if any, have not been met, then
Lessor may, at its option, terminate this lease and its obligations
hereunder with respect to such Equipment Schedule at any time after the
expiration of such 90 days or any date after the Approval Expiration Date,
as applicable. Lessor shall give Lessee written notice whether or not it
elects to exercise such option within 10 days after Lessor's receipt of
Lessee's written request for such notice.
8. TERM. The term of this lease shall be comprised of an Interim Term and an
Initial Term. The Interim Term shall commence on the date the Certificate
of Acceptance is executed by Lessee (the "Acceptance Date") and terminate
on the Rent Commencement Date. The Initial Term of this lease shall begin
on the Rent Commencement Date, and shall terminate on the later of (i) the
last day of the last month of the Initial Term (as that Term is set forth
in the applicable Equipment Schedule hereto) or (ii) the date Lessee
fulfills all Lessee's obligations hereunder.
9. RENTAL. The rental amount payable to Lessor by Lessee for the Equipment
will be set forth in the Equipment Schedule(s) ("Rental Amount"). As the
first rent payment for the Equipment, Lessee shall pay Lessor in
immediately available funds on the Rent Commencement Date the sum of, (i)
the Rental Amount, and (ii) Interim Rent in an amount equal to 1/30th of
the Rental Amount times the number of days from and including the
Acceptance Date through but excluding the Rent Commencement Date, and
subsequent rent payments shall be due on the same day of each calendar
period as indicated on the Equipment Schedule for the balance of the
Initial Term. Rent payments shall be due whether or not Lessee has received
any notice that such payments are due. All rent payments shall be paid to
Lessor at its address set forth on the Equipment Schedule or as otherwise
directed by Lessor in writing.
10. RENEWAL. If no default shall have occurred and be continuing, Lessee shall
be entitled to renew this lease with respect to all, but not less than all,
of the Equipment covered by an Equipment Schedule for a minimum 12 month
period at an amount equal to the fair market rental value thereof, in use
and operational, in the condition required by this lease, payable on a
periodic basis, as mutually agreed by Lessor and Lessee ("Renewal Rent").
Lessee must give Lessor written notice of its intention to exercise said
option, which notice must be received by Lessor at least 90 days before
expiration
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of the Initial Term. The first installment of the Renewal Rent shall be due
at expiration of the Initial Term of this lease. Should Lessee fail to
comply with the provisions described above covering renewal, upon
expiration of the Initial Term, the term of this lease shall be
automatically extended for a term of 3 months. Thereafter, the term of this
lease will be extended for subsequent full month periods, on a month to
month basis, until Lessee has given at least 90 days written notice
terminating this lease. Such termination will take effect upon completion
of all Lessee's obligations under this lease (including payment of all
periodic rental payments due during such 90 day period, as provided in
Paragraph 9 of this lease). At any time after the expiration of the Initial
Term, if this lease has been automatically extended as set forth herein,
Lessor reserves the fight to terminate this lease by 30 days written notice
to Lessee.
11. LOCATION; INSPECTION; LABELS. The Equipment shall be delivered to and shall
not be removed without Lessor's prior written consent from the "Equipment
Location" shown on the related Equipment Schedule, or it none is specified,
Lessee's billing address shown on the Equipment Schedule. Lessor shall have
the right to inspect the Equipment at any reasonable time. If Lessor
supplies Lessee with labels stating that the Equipment is owned by Lessor,
Lessee shall affix such labels to and keep them in a prominent place on the
Equipment.
12. REPAIRS; USE; ALTERATIONS. Lessee, at its own cost and expense, shall keep
the Equipment in good repair and working order, in the same condition as
when delivered to Lessee, reasonable wear and tear excepted, and in
accordance with the manufacturers recommended specifications; shall use the
Equipment lawfully; shall not alter the Equipment without Lessor's prior
written consent, shall use the Equipment in compliance with any existing
Manufacturer's service and warranty requirements and any insurance policies
applicable to the Equipment and shall furnish all parts and servicing
required therefor. All parts, repairs, additions, alterations and
attachments placed on or incorporated into the Equipment which cannot be
removed without damage to the Equipment shall immediately become part of
the Equipment and shall be the property of the Lessor. Lessee will obtain
and maintain all permits, licenses and registrations necessary to lawfully
operate the facility where the Equipment is located. Lessee shall comply
with all applicable environmental and industrial hygiene laws, rules and
regulations (including but not limited to federal, state, and local
environmental protection, occupational, health and safety or similar laws,
ordinances and restrictions). Lessee shall, not later than 5 days after the
occurrence, provide Lessor with copies of any report required to be filed
with governmental agencies regulating environmental claims. Lessee shall
immediately notify Lessor in writing of any existing, pending or threatened
investigation, inquiry, claim or action by any governmental authority in
connection with any law, rule or regulation relating to industrial hygiene
or environmental conditions that could affect the Equipment.
13. MAINTENANCE. If the Equipment is such that Lessee is not normally capable
of maintaining it, Lessee, at its expense, shall enter into and maintain in
full force and effect throughout the Initial Term, and any renewal term,
Vendor and/or Manufacturer's standard maintenance contract, and shall
comply with all its obligations thereunder. An alternate source of
maintenance may be used with Lessor's prior written consent. Such consent
shall be granted if, in Lessor's reasonable opinion, the Equipment will be
maintained in an equivalent state of good repair, condition and working
order.
14. SURRENDER. Provided that Lessee does not exercise the purchase option as
set forth in Paragraph 28 hereof, upon the expiration of the Initial Term,
or any renewal term, or upon demand by Lessor made pursuant to Paragraph 22
of this lease, Lessee, at its expense, shall return all, but not less than
all, of the Equipment by delivering it to such place or on board such
carrier, packed for shipping, as Lessor may specify. Lessee agrees that the
Equipment, when returned, shall be in the same condition as when delivered
to Lessee, reasonable wear and tear excepted, and in a condition which will
permit Lessor to be eligible for Manufacturer's standard maintenance
contract without incurring any expense to repair or rehabilitate such
Equipment. Lessee shall be liable for reasonable and necessary expenses to
place the Equipment in such condition. Lessee shall remain liable for the
condition of the Equipment until it is received and accepted at the
destination designated by Lessor as set forth above. If any items of
Equipment are missing or damaged when returned, such occurrence shall be
treated as an event of Loss or Damage with respect to such missing or
damaged items and shall be subject to the terms specified in Paragraph 15
below. Lessee shall provide Lessor with a Letter of Maintainability from
the Manufacturer of the Equipment, which letter shall state that the
Equipment will be eligible for the Manufacturer's standard maintenance
contract when sold or leased to a third party. Lessee shall give Lessor
prior written notice that it is returning the Equipment as provided above,
and such notice must be received by Lessor at least 90 days prior to such
return. Should Lessee fail to comply with the provisions described above
covering surrender, upon expiration of the Initial Term, the term of this
lease shall be automatically extended for a term of 3 months. Thereafter,
the term of this lease will be extended
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for subsequent full month periods, on a month to month basis, until Lessee
has given at least 90 days written notice terminating this lease. Such
termination will take effect upon completion of all Lessee's obligations
under this lease (including payment of all periodic rental payments due
during such 90 day period, as provided in Paragraph 9 of this lease). At
any time after the expiration of the Initial Term, if this lease has been
automatically extended as set forth herein, Lessor reserves the right to
terminate this lease by 30 days written notice to Lessee.
15. LOSS OR DAMAGE. Lessee shall bear the entire risk of loss, theft,
destruction of or damage to the Equipment or any item thereof (herein "Loss
or Damage') from any cause whatsoever. No Loss or Damage shall relieve
Lessee of the obligation to pay rent or of any other obligation under this
lease. In the event of Loss or Damage, Lessee, at the option of Lessor,
shall: (a) place the same in good condition and repair; (b) replace the
same with like equipment acceptable to Lessor in good condition and repair
with clear title thereto in Lessor; or (c) pay to Lessor the total of the
following amounts: (i) the total rent and other amounts due and owing at
the time of such payment, plus (ii) an amount calculated by Lessor which is
the present value at 5% per annum simple interest discount of all rent and
other amounts payable by Lessee with respect to said item from date of such
payment to date of expiration of its Initial Term, plus (iii) the
"reversionary value" of the Equipment, which shall be determined by Lessor
as the total cost of the Equipment less 60% of the total rent (net of
sales/use taxes, if any) required to be paid pursuant to Paragraph 9. Upon
Lessor's receipt of such payment, Lessee and/or Lessee's insurer shall be
entitled to Lessor's interest in said item, for salvage purposes, in its
then condition and location, 'as-is", without any warranty, express or
implied.
16. INSURANCE. Lessee shall provide, maintain and pay for (a) all risk property
insurance against the loss or theft of or damage to the Equipment, for the
full replacement value thereof, naming Lessor as a loss payee, and (b)
commercial general liability insurance (and if Lessee is a doctor, hospital
or other health care provider, medical malpractice insurance). All such
policies shall name Lessor as an additional insured and shall have combined
single limits in amounts acceptable to Lessor. All such insurance policies
shall be endorsed to be primary and non-contributory to any policies
maintained by Lessor In addition Lessee shall cause Lessor to be named as
an additional insured on any excess or umbrella policies purchased by
Lessee. A copy of each paid-up policy evidencing such insurance
(appropriately authenticated by the insurer) or a certificate of the
insurer providing such coverage proving that such policies have been
issued, providing the coverage required hereunder shall be delivered to
Lessor prior to the Rent Commencement Date. All insurance shall be placed
with companies satisfactory to Lessor and shall contain the insurer's
agreement to give 30 days written notice to Lessor before cancellation or
any material change of any policy of insurance.
17. TAXES. Lessee shall reimburse to Lessor (or pay directly if, but only if,
instructed by Lessor) all charges and taxes (local, state and federal)
which may now or hereafter be imposed or levied upon the sale, purchase,
ownership, leasing, possession or use of the Equipment; excluding, however,
all income taxes levied on (a) any rental payments made to Lessor
hereunder, (b) any payment made to Lessor in connection with Loss or Damage
to the Equipment under Paragraph 15 hereof, or (c) any payment made to
Lessor in connection with Lessee's exercise of its purchase option under
Paragraph 28 hereof.
18. LESSOR'S PAYMENT If Lessee fails to provide or maintain said insurance, to
pay said taxes, charges and fees, or to discharge any levies, liens and
encumbrances created by Lessee, Lessor shall have the right, but shall not
be obligated, to obtain such insurance, pay such taxes, charges and fees,
or effect such discharge. In that event, Lessee shall remit to Lessor the
cost thereof with the next rent payment.
19. INDEMNITY. (a) General Indemnity. Lessee shall indemnify Lessor against and
hold Lessor harmless from any and all claims, actions, damages, costs,
expenses including reasonable attorneys' fees, obligations, liabilities and
liens (including any of the foregoing arising or imposed under the
doctrines of "strict liability" or "product liability" and including
without limitation the cost of any fines, remedial action, damage to the
environment and cleanup and the fees and costs of consultants and experts),
arising out of the manufacture, purchase, lease, ownership, possession,
operation, condition, return or use of the Equipment, or by operation of
law, excluding however, any of the foregoing resulting from the gross
negligence or willful misconduct of Lessor. Lessee agrees that upon written
notice by Lessor of the assertion of such a claim, action, damage,
obligation, liability or lien, Lessee shall assume full responsibility for
the defense thereof. Lessee's choice of counsel shall be mutually
acceptable to both Lessee and Lessor. This indemnity also extends to any
environmental claims arising out of or relating to prior acts or omissions
of any party whatsoever. The provisions of this paragraph shall survive
termination of this lease with respect to events occurring prior to such
termination. (b) Tax Indemnity. Lessee acknowledges that Lessor shall
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be entitled to all tax benefits of ownership with respect to the Equipment
(the "Tax Benefits"), including but not limited to, (i) the accelerated
cost recovery deductions determined in accordance with Section 168(b)(1) of
the Internal Revenue Code of 1986 for the Equipment based on the original
cost of the Equipment to Lessor (ii) deductions for interest on any
indebtedness incurred by Lessor to finance the Equipment and (iii) sourcing
of income and losses attributable to this lease to the United States.
Lessee represents that the Equipment shall be depreciable for Federal tax
purposes utilizing the MACRS Recovery Period as set forth in the Equipment
Schedule, with such depreciation commencing as of the date of Equipment
acceptance by Lessee as set forth on the Certificate of Acceptance. Lessee
agrees to take no action inconsistent with the foregoing or any action
which would result in the loss, disallowance or unavailability to Lessor of
all or any part of the Tax Benefits. Lessee hereby indemnities and holds
harmless Lessor and its assigns from and against (i) the loss,
disallowance, unavailability or recapture of all or any part of the Tax
Benefits resulting from any action, statement, misrepresentation or breach
of warranty or covenant by Lessee of any nature whatsoever including but
not limited to the breach of any representations, warranties or covenants
contained in this paragraph, plus (ii) all interest, penalties, fines or
additions to tax resulting from such loss, disallowance, unavailability or
recapture, plus (iii) all taxes required to be paid by Lessor upon receipt
of the indemnity set forth in this paragraph. Any payments made by Lessee
to reimburse Lessor for lost Tax Benefits shall be calculated (i) on the
assumption that Lessor is subject to the maximum Federal Corporate Income
Tax with respect to each year and that all Tax Benefits are currently
utilized, and (ii) without regard to whether Lessor or any members of a
consolidated group of which Lessor is also a member is then subject to any
increase in tax as a result of the loss of Tax Benefits. For the purposes
of this paragraph, "Lessor" includes for all tax purposes the consolidated
taxpayer group of which Lessor is a part. (c) Payment. The amounts payable
pursuant to this Paragraph 19 shall be payable upon demand of Lessor,
accompanied by a statement describing in reasonable detail such claim,
action, damage, cost, expense, fee, obligation, liability, lien or tax and
setting forth the computation of the amount so payable, which computation
shall be binding and conclusive upon Lessee, absent manifest error. The
indemnities and assumptions of liabilities and obligations contained in
this Paragraph 19 shall continue in full force and effect not withstanding
the expiration or other termination of this Lease.
20. ASSIGNMENT Without Lessor's prior written consent, Lessee shall not assign,
transfer, pledge, hypothecate or otherwise dispose of this lease, the
Equipment, or any interest therein. Without Lessor's prior written consent,
Lessee shall not sublet or lend the Equipment or permit it to be used by
any one other than Lessee or Lessee's employees. Lessor may assign this
lease in whole or in part without notice to Lessee. If Lessee is given
notice of such assignment it agrees to acknowledge receipt thereof in
writing. Each such assignee shall have all of the rights, but none of the
obligations, of Lessor under this lease. Lessee shall not assert against
assignee any defense, counterclaim or offset that Lessee may have against
Lessor. Notwithstanding any such assignment, Lessor warrants that Lessee
shall quietly enjoy use of the Equipment subject to the terms and
conditions of this lease so long as Lessee is not in default hereunder.
Subject to the foregoing, this lease inures to the benefit of and is
binding upon the successors and assigns of the parties hereto.
21. DELINQUENT PAYMENTS. (a) Service Charge. Since it would be impractical or
extremely difficult to fix Lessor's actual damages for collecting and
accounting for a late payment, if any payment to Lessor required herein
(including, but not limited to, rental, renewal, tax, purchase and other
amounts) is not paid on or before its due date, Lessee shall pay to Lessor
an amount equal to 5% of any such late payment. (b) Interest. Lessee shall
also pay interest on any such late payment from the due date thereof until
the date paid at the lesser of 18% per annum or the maximum rate allowed by
law.
22. DEFAULT, REMEDIES. Any of the following shall constitute an Event of
Default: If a) Lessee fails to pay when due any rent or other amount
required herein to be paid by Lessee, or b) Lessee makes an assignment for
the benefit of creditors, whether voluntary or voluntary, or c) a petition
is filed by or against Lessee under any bankruptcy, insolvency or similar
legislation, or d) Lessee violates or fails to perform any provision of
either this lease or any Acquisition Agreement, or violates or fails to
perform any covenant or representation made by Lessee herein, or e) Lessee
makes a bulk transfer of furniture, furnishings, fixtures or other
equipment or inventory, or f) Lessee ceases doing business as a going
concern or terminates its existence, or g) Lessee consolidates with, merges
with or into, or conveys or leases all or substantially all of its assets
as an entirety to any person or engages in any other form of
reorganization, or there is a change in the legal structure of Lessee, in
each case which results, in the opinion of Lessor, in a material adverse
change in Lessee's ability to perform its obligations under this lease, or
h) any representation or warranty made by Lessee in this lease or in any
other document or agreement furnished by Lessee to Lessor shall prove to
have been false or misleading in
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any material respect when made or when deemed to have been made, or i)
Lessee shall be in default under any material obligation for the payment of
borrowed money or the deferred purchase price of, or for the payment of any
rent due with respect to, any real or personal property, or j) Lessee shall
be in default under any other agreement now existing or hereafter made with
Lessor or any of Lessors affiliates, or k) any event or condition described
in the foregoing clauses (b), (c), (e), (f), (g), (h) (in clauses (g) and
(h) substituting the phrase "guaranty or other credit support document" for
the word "lease"), (i) or (j) shall have occurred with respect to any
guarantor of, or other party liable in whole or in part for, Lessee's
obligations hereunder, or such guarantor or other party shall have
defaulted in the observance or performance of any covenant, condition or
agreement to be observed or performed by it under the guaranty or other
credit support document pursuant to which it is liable for Lessee's
obligations hereunder, or such guaranty or other credit support document
shall have been revoked or terminated or shall have otherwise ceased, for
any reason, to be in full force and effect. An Event of Default with
respect to any Equipment Schedule shall constitute an Event of Default for
all Equipment Schedules. Lessee shall promptly notify Lessor of the
occurrence of any Event of Default. If an Event of Default occurs, Lessor
shall have the right to exercise any one or more of the following remedies
in order to protect the interests and reasonably expected profits and
bargains of Lessor: a) Lessor may terminate this lease with respect to all
or any part of the Equipment, b) Lessor may recover from Lessee all rent
and other amounts then due and as they shall thereafter become due
hereunder, c) Lessor may take possession of any or all items of Equipment,
wherever the same may be located, without demand or notice, without any
court order or other process of law and without liability to Lessee for any
damages occasioned by such taking of possession, and any such taking of
possession shall not constitute a termination of this lease, d) Lessor may
recover from Lessee, with respect to any and all items of Equipment, and
with or without repossessing the Equipment the sum of (1) the total amount
due and owing to Lessor at the time of such default, plus (2) an amount
calculated by Lessor which is the present value at 5% per annum simple
interest discount of all rent and other amounts payable by Lessee with
respect to said item(s) from date of such payment to date of expiration of
its Initial Term, plus (3) the "reversionary value" of the Equipment, which
shall be determined by Lessor as the total cost of the Equipment less 60%
of the total rent (net of sales/use taxes, if any) required to be paid
pursuant to Paragraph 9, and which the parties agree is a reasonable
estimate of such value; and upon the payment of all amounts described in
clauses (1), (2) and (3) above, Lessee will become entitled to the
Equipment AS IS, WHERE IS, without warranty whatsoever; provided, however,
that if Lessor has repossessed or accepted the surrender of the Equipment,
Lessor shall sell, lease or otherwise dispose of the Equipment in a
commercially reasonable manner, with or without notice and on public or
private bid, and apply the net proceeds thereof (after deducting all
expenses, including attorneys' fees incurred in connection therewith), to
the sum of (1), (2) and (3) above, and e) Lessor may pursue any other
remedy available at law or in equity, including but not limited to seeking
damages or specific performance and/or obtaining an injunction. No right or
remedy herein conferred upon or reserved to Lessor is exclusive of any
right or remedy herein or by law or equity provided or permitted; but each
shall be cumulative of every other right or remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise, and
may be enforced concurrently therewith or from time to time, but Lessor
shall not be entitled to recover a greater amount in damages than Lessor
could have gained by receipt of Lessee's full, timely and complete
performance of its obligations pursuant to the terms of this lease plus
accrued delinquent payments under Paragraph 21.
23. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses, including
attorneys' fees and the fees of collection agencies, incurred by Lessor in
enforcing any of the terms, conditions, or provisions hereof or in
protecting Lessor's rights herein. Lessee's obligation hereunder includes
all such costs and expenses expended by Lessor (a) prior to filing of an
action, (b) in connection with an action which is dismissed, and (c) in the
enforcement of any judgment. Lessee's obligation to pay Lessor's attorneys'
fees incurred in enforcing any judgment is a separate obligation of Lessee,
severable from Lessee's other obligations hereunder, which obligation will
survive such judgment and will not be deemed to have been merged into such
judgment.
24. OWNERSHIP; PERSONAL PROPERTY. The Equipment shall at all times remain the
property of Lessor and Lessee shall have no right, title or interest
therein or thereto except as expressly set forth in this lease and the
Equipment shall at all times be and remain personal property
notwithstanding that the Equipment or any part thereof may now be, or
hereafter become, in any manner, affixed or attached to real property or
any improvements thereon.
25. NOTICES. Service of all notices under this lease shall be sufficient if
given personally or mailed to the respective party at its address set forth
on any Equipment Schedule, or at such address as either party may provide
in writing from
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time to time. Any such notice mailed to said address shall be effective
when deposited in the United States mail, duly addressed and with postage
prepaid.
26. ACQUISITION AGREEMENTS. If the Equipment is subject to any Acquisition
Agreement, Lessee, as part of this lease, transfers and assigns to Lessor
all of its rights, but none of its obligations (except for Lessee's
obligation to pay for the Equipment conditioned upon Lessee's acceptance in
accordance with Paragraph 6), in and to the Acquisition Agreement,
including but not limited to the right to take title to the Equipment.
Lessee shall indemnify and hold Lessor harmless in accordance with
Paragraph 19 from any liability resulting from any Acquisition Agreement as
well as liabilities resulting from any Acquisition Agreement Lessor is
required to enter into on behalf of Lessee or with Lessee for purposes of
this lease.
27. UPGRADES. Any existing lease between Lessor and Lessee subject to an
"upgrade" program shall continue in full force and effect and shall be kept
free of default by Lessee (even if the Equipment covered by the existing
lease is sold, traded-in, etc.) until any such existing lease is canceled
by Lessor when, if applicable, the new Equipment is accepted by Lessee for
all purposes of this lease.
28. PURCHASE OPTION. If no default shall have occurred and be continuing,
Lessee shall be entitled, at its option upon written notice to Lessor,
which notice must be received by Lessor at least 90 days prior to the end
of either the Initial Term or any renewal term of any Equipment Schedule,
to purchase all, but not less than all, of the Equipment covered by such
Equipment Schedule from Lessor at the end of the Initial Term or any
renewal term for such Equipment Schedule at a purchase price equal to the
then fair market value of the Equipment in use and operational, in the
condition required by this lease, as mutually agreed by Lessor and Lessee.
On a date which is no later than the expiration date of the Initial Term or
any renewal term, as applicable, Lessee shall pay to Lessor the purchase
price for the Equipment covered by such Equipment Schedule (plus any taxes
levied thereon) and Lessor shall sell the Equipment "as-is where-is"
without any warranties express or implied.
29. RELATED EQUIPMENT SCHEDULES. In the event that any Equipment Schedule
hereunder shall include Equipment that may become attached to, affixed to,
or used in connection with Equipment covered under another Equipment
Schedule hereunder ("Related Equipment Schedule"), Lessee acknowledges the
following: (a) if Lessee elects to exercise a purchase option or renewal
option under any Equipment Schedule, if provided; or (b) if Lessee elects
to return the Equipment under any Equipment Schedule as described in
Paragraph 14, then Lessor, at its discretion, may require the similar
disposition of all Related Equipment Schedules as provided for by this
lease.
30. MISCELLANEOUS. This instrument and any Approval Letter issued by Lessor and
any Equipment Schedule hereunder constitutes the entire agreement between
Lessor and Lessee, and shall not be amended, altered or changed except by a
written agreement signed by the parties hereto, and in the case of Lessor,
such agreement shall not be valid unless executed by Lessor at Lessor's
home off ice. To the extent any provision of this lease may be determined
to be invalid or unenforceable, it shall be ineffective without affecting
the other provisions of this lease. To the extent permitted by applicable
law, Lessee hereby waives any provisions of law which render any provision
of this lease unenforceable in any respect. Unless specified otherwise, in
the event such written agreement is attached to and made a part of an
Equipment Schedule, the terms and conditions of said written agreement
shall apply only to said Equipment Schedule and shall not apply to any
other Equipment Schedule made a part of this lease. In the event Lessee
issues a purchase order to Lessor covering Equipment to be leased
hereunder, it is agreed that such purchase order is issued for purposes of
authorization and Lessee's internal use only, and none of its terms and
conditions shall modify the terms and conditions of this lease and/or
related documentation, or affect Lessor's responsibility to Lessee as
defined in this lease. An executed Equipment Schedule that incorporates by
reference the terms of this Master Lease Agreement, marked "Original,"
shall be the original of this lease for the Equipment described therein for
all purposes. All other executed counterparts of this lease shall be marked
"Duplicate." To the extent this lease constitutes chattel paper, as such
term is defined in the Uniform Commercial Code of the applicable
jurisdiction, no security interest in this lease may be created through the
transfer of possession of any counterpart other than the Original of this
lease. Lessor reserves the right to charge Lessee fees for its provision of
additional administrative services related to this lease requested by
Lessee. Lessee shall provide Lessor with such corporate resolutions,
opinions of counsel, financial statements, and other documents (including
documents for filing or recording) as Lessor may request from time to time.
LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE ITS TRUE AND LAWFUL ATTORNEY
IN FACT TO EXECUTE ON BEHALF OF LESSEE ALL UNIFORM COMMERCIAL CODE
8
FINANCING STATEMENTS OR OTHER DOCUMENTS WHICH, IN LESSOR'S DETERMINATION,
ARE NECESSARY TO SECURE LESSOR'S INTEREST IN SAID EQUIPMENT. The filing of
UCC Financing Statements is precautionary and shall not be evidence that
this lease is intended as security. If for any reason this agreement is
determined not to be a lease, Lessee hereby grants Lessor a security
interest in this lease, the Equipment or collateral pertaining thereto and
the proceeds thereof, including release, sale or disposition of the
Equipment or other collateral. If more than one Lessee is named in this
lease, the liability of each shall be joint and several. Time is of the
essence with respect to this lease. Lessee represents and warrants that the
Equipment is being leased hereunder for business purposes. The descriptive
headings which are used in this lease are for convenience of the parties
only and shall not affect the meaning of any provision of this lease. Any
failure of the Lessor to require strict performance by the Lessee or any
waiver by Lessor of any provision herein shall not be construed as a
consent or waiver of any other breach of the same or of any other
provision. This agreement shall be governed by the laws of the state of
California (without giving effect to principles of conflicts of law
thereof).
31. LESSEE'S REPRESENTATIONS; WAIVER OF JURY TRIAL. Lessee represents and
warrants, as of the date of this lease: (a) Lessee is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or organization, and is duly qualified to do business
wherever necessary to carry on its present business and operations and to
own its property; (b) this lease (and any Equipment Schedule entered into
pursuant to this lease) has been duly authorized by all necessary action on
the part of Lessee, duly executed and delivered by authorized officers or
agents of Lessee, does not require any further shareholder or partner
approval, does not require the approval of, or the giving notice to, any
federal, state, local or foreign governmental authority, does not
contravene any law binding on Lessee or contravene any certificate or
articles of incorporation or by-laws or partnership certificate or
agreement, or any agreement, indenture or other instruments to which Lessee
is a party or by which it or any of its assets or property may be bound;
(c) this lease (and any Equipment Schedule entered into pursuant to this
lease) constitutes the legal, valid and binding obligation of Lessee and is
enforceable in accordance with its terms; (d) all credit and financial
information, and all other information submitted to Lessor at any time is
true and correct, and there does not exist any pending or threatened action
or proceeding before any court or administrative agency which might
materially adversely affect Lessee's financial condition or operations; (e)
Lessee agrees to furnish to Lessor (i) as soon as available, and in any
event within 120 days after the last day of each fiscal year of Lessee, a
copy of the financial statements of Lessee as of the end of such fiscal
year, certified by an independent certified public accounting firm; (ii) as
soon as available, and in any event within 60 days after the last day of
each quarter of Lessee's fiscal year, a copy of quarterly financial
statements certified by the principal financial officer of Lessee; and
(iii) such additional information concerning Lessee as Lessor may
reasonably request. LESSEE AND LESSOR HEREBY WAIVE THE RIGHT TO TRIAL BY
JURY OF ANY MATTERS ARISING OUT OF THIS LEASE OR ANY OTHER AGREEMENT
EXECUTED IN CONNECTION HEREWITH.
32. GOOD FAITH DEPOSIT REQUIREMENT Lessee agrees, with respect to each
transaction, to pay the Good Faith Deposit specified in Lessor's proposal
for such transaction or in the Equipment Schedule related thereto. This
Good Faith Deposit is given in consideration for Lessor's costs and
expenses in investigating and appraising and/or establishing credit for
Lessee. This Good Faith Deposit shall not be refunded unless Lessor
declines to accept Lessee's offer to enter into this lease. Upon Lessor's
acceptance of Lessee's offer to enter into this lease, unless otherwise
specified in the proposal or Equipment Schedule, the amount shall be
applied to the first period's rent payment. Lessee acknowledges that
Lessor's act of depositing any Good Faith Deposit into Lessor's bank
account shall not in itself constitute Lessor's acceptance of Lessee's
offer to enter into this lease.
IN WITNESS WHEREOF, the parties have executed this Master Lease Agreement
effective as of the first date it is executed by Lessee below.
Mellon US Leasing, a Division of Mellon Leasing Corporation
(LESSOR)
Name /s/ Authorized Signature
Title Mellon U.S. Leasing
9
HOME OFFICE: 000 XXXXXX XXXXXX, Xxxxx 0000
XXX XXXXXXXXX, XX 00000-0000 (000) 000-0000
MICRODYNE, CORPORATION
(LESSEE)
TITLE VP, CFO
DATE 1 2 / 2 3 / 97
By /s/ X. Xxxxxx
Xxxxxxx Xxxxxx
Not valid unless executed by Lessor at Lessor's home office.
LMS-139 (Rev.03/97)
