[LOGO APPEARS HERE] GLOBAL MASTER RENTAL AGREEMENT
(ELECTRONICS GROUP)
GLOBAL MASTER RENTAL AGREEMENT (the "Agreement") dated May 1, 1998 by and
between COMDISCO, INC., acting on behalf of itself and its Affiliates
("Comdisco"), and ACT MANUFACTURING, INC., acting on behalf of itself and its
Affiliates ("Customer").
Comdisco and its Affiliates are engaged in the rental of equipment in various
countries where Customer and its Affiliates may wish to rent such equipment.
To facilitate the transacting of rental operations between Comdisco or an
Affiliate of Comdisco and Customer or an Affiliate of the Customer on an ongoing
basis, Comdisco and the Customer wish to enter into the present Agreement which,
together with the Schedule under which each individual rental operation is
concluded, will establish the terms and conditions applicable to such rental
operation.
IN CONSIDERATION of the mutual agreements described below, the parties agree as
follows (all capitalized terms not otherwise defined in the body of this
Agreement are defined in Section 15.12):
1. PROPERTY RENDED, CUSTOMER LIABILITY, CONFLICT.
Lessor rents to Lessee all of the Equipment described on each
Schedule, subject to the terms and conditions of this Agreement and such
Schedule. Each such Schedule will be governed by all of the terms and conditions
of this Agreement and such additional terms and conditions as may be set forth
in such Schedule. Customer will, without notice, be jointly and severally liable
for the due performance of the obligations of its Affiliates under all Schedules
executed hereunder, including, without limitation, all terms and conditions
negotiated by its Affiliates. In the event of a conflict, the terms of a
Schedule prevail over this Agreement.
The parties agree that each local transaction will only be validly
concluded if the relevant Schedule is executed by authorized signatories of
Lessor and Lessee involved in such transaction, and that any such Schedule may
also be supplemented or amended by special terms or conditions agreed upon by
Lessor or Lessee for the particular transaction.
2. TERM.
On the Commencement Date Lessee will be deemed to accept the
Equipment, will be bound to its Rent obligations for each item of Equipment and
the term of a Schedule will begin and continue through the Initial Term and
thereafter until terminated by either party upon prior written notice received
during the Notice Period. No termination may be effective prior to the
expiration of the Initial Term.
3. RENT AND PAYMENTS.
Rent is due and payable in advance, in immediately available funds,
in the currency indicated on the Schedule, on the first day of each Rent
Interval to the payee and at the location specified in Lessor's invoice. The
Interim Rent is due and payable when invoiced. If any payment is not made when
due, Lessee will owe and pay interest at the Overdue Rate.
4. SELECTION AND WARRANTY AND DISCLAIMER OF WARRANTIES.
4.1 SELECTION. Lessee acknowledges that it has selected the
Equipment and disclaims any reliance upon statements made by the Lessor.
4.2 WARRANTY AND DISCLAIMER OF WARRANTIES. Lessor warrants to
Lessee that, so long as Lessee is not in default, Lessor will not disturb
Lessee's quiet and peaceful possession, and unrestricted use of the Equipment.
To the extent permitted by the manufacturer, Lessor assigns to Lessee during the
term of the Schedule any manufacturer's warranties for the Equipment. LESSOR
MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS
FITNESS FOR A PARTICULAR PURPOSE. Lessor is not responsible for any liability,
claim, loss, damage or expense of any kind (including strict liability in tort)
caused by the Equipment except for any loss or damage caused by the negligent
acts of Lessor. In no event is Lessor responsible for special, incidental or
consequential damages.
5. TITLE AND ASSIGNMENT.
5.1 TITLE. Lessee holds the Equipment subject and subordinate to
the rights of the Owner, Lessor, any Assignee and any Secured Party. Lessee
authorizes Lessor, as Lessee's agent to the extent relevant, to prepare, execute
and file in Lessee's name precautionary financing statements if applicable in
the relevant jurisdiction showing the interest of the Owner, Lessor, and any
Assignee or Secured Party in the Equipment, and to insert serial numbers in
Schedules as appropriate. Except as provided in Sections 5.2 and 7.2, Lessee
will, at its expense, keep the Equipment free and clear from any liens or
encumbrances of any kind (except any caused by Lessor) and will indemnify and
hold Lessor, Owner, any Assignee and Secured Party harmless from and against any
loss caused by Lessee's failure to do so.
5.2 RELOCATION. Upon Prior written notice, Lessee may relocate
Equipment to any location within the country set forth in the respective
Schedule provided all additional costs arising from such relocation (including
but not limited to any administrative fees, additional duties, taxes and
insurance coverage) are reconciled and promptly paid by Lessee. No relocation
will relieve Lessee from any of its obligations under this Agreement and the
relevant Schedule.
5.3 ASSIGNMENT BY LESSOR. The terms and conditions of each
Schedule have been fixed by Lessor in order to permit Lessor to sell and/or
assign or transfer its interest or grant a security interest in each Schedule
and/or the Equipment to a Secured Party or Assignee. In that event the term
Lessor will include the Assignee and any Secured Party. However, any assignment,
sale, or other transfer by Lessor will not relieve Lessor of its obligations to
Lessee and will not materially change Lessee's duties or materially increase the
burdens or risks imposed on Lessee. The Lessee consents to and will acknowledge
such assignments in a written notice given to Lessee. Lessee also agrees that:
(a) The Secured Party will be entitled to exercise all of Lessor's
rights, but will not be obligated to perform any of the obligations
of Lessor. The Secured Party will not disturb Lessee's quiet and
peaceful possession and unrestricted use of the Equipment so long as
Lessee is not in default and the Secured Party continues to receive
all Rent payable under the Schedule; and
(b) Lessee will pay all Rent and all other amounts payable to the
Secured Party, despite any defense or claim which it has against
Lessor. Lessee reserves its right to have recourse directly against
Lessor for any defense or claim; and
(c) Subject to and without impairment of Lessee's leasehold
rights in the Equipment, Lessee holds the Equipment for the Secured
Party to the extent of the Secured Party's rights in that Equipment.
5.4 ASSIGNMENT OF LIABILITY. Customer hereby agrees that its
representations and obligations under this Agreement may be assigned by
Comdisco, without notice, to Lessor under any Schedule issued hereunder, and
further assigned by Lessor without notice to a Secured Party or Assignee.
6. NET OBLIGATION AND TAXES AND FEES.
6.1 NET OBLIGATION. Each Schedule constitutes the Lessee's
absolute and unconditional obligation to pay Rent and is not subject to any
abatement, reduction, set-off, defense, counterclaim, interruption, deferment or
recoupment for any reason whatsoever. Subject to Section 6.2. if Lessee is
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required by law or regulation to make any deduction or withholding, Lessee shall
pay to Lessor an amount sufficient to assure that Lessor receives a net amount
equal to the Rent.
6.2 TAXES AND FEES. Lessee will pay when due or reimburse Lessor for
all taxes, duties or any other charges (together with any related interest or
penalties not arising from the negligence of Lessor) accrued for or arising out
of the term of each Schedule against Lessor, Lessee or the Equipment by any
governmental Authority (except only taxes on the net income of Lessor)
including, but not limited to, any witholding tax on income, value-added,
turnover, stamp or recouping tax ("Additional Costs"). If required, Lessor will
file any property tax returns for the Equipment and pay all property taxes due.
Lessee will reimburse Lessor for property taxes within thirty (30) days of
receipt of an invoice.
Lessee ensures that Lessor will receive a net amount equal to the full
amount of the scheduled Rent (at the times and in the amounts as set forth on
the Schedule) which it expects to receive without regard to any such amounts
being subject to Additional Costs.
Lessor shall cooperate with Lessee in obtaining any clearances which
Lessee shall seek to obtain which will minimize Lessee's burden in regard to
Additional Costs.
7. CARE, USE AND MAINTENANCE, ATTACHMENTS AND RECONFIGURATIONS AND INSPECTION BY
LESSOR.
7.1 CARE, USE AND MAINTENANCE. Lessee will maintain the Equipment in
good operating order and appearance, protect the Equipment from deterioration,
other than normal wear and tear, and will not use the Equipment for any purpose
other than that for which it was designed. If commercially available, Lessee
will maintain in force a standard maintenance contract with the manufacturer of
the Equipment, or another party acceptable to Lessor, and upon request will
provide Lessor with a complete copy of that contract. With Lessor's prior
written consent, Lessee may have the Equipment maintained by a party other than
the manufacturer. Lessee agrees to pay any costs necessary for the manufacturer
to bring the Equipment to the equipment specifications as of the Commencement
Date, and to re-certify the Equipment as eligible for manufacturer's maintenance
by termination of the applicable Schedule whether by expiration or otherwise.
Lessee agrees to accept and install all routine engineering updates made
available by the manufacturer so as to insure the Equipment is at the current
release. The rental term will continue upon the same terms and conditions until
recertification has been obtained.
7.2 ATTACHMENTS AND RECONFIGURATIONS. Upon Lessor's prior written
consent, Lessee may reconfigure and install Attachments on the Equipment. In the
event of such a Reconfiguration or Attachment, Lessee shall, upon the return of
the Equipment, at its expense, restore the Equipment to the original
configuration specified on the Schedule in accordance with the manufacturer's
specifications and in the same operating order, repair and appearance as when
installed (normal wear and tear excluded). If any parts are removed from the
Equipment during the Reconfiguration or Attachment, the restoration will
include, at Lessee's option, the installation of either the original removed
parts or Like Parts. Alternatively, with Lessor's prior written consent which
will not be unreasonably withheld, Lessee may return the Equipment with any
Attachment or upgrade.
7.3 INSPECTION BY LESSOR. Upon request, Lessee, during reasonable
business hours and subject to Lessee's security requirements, will make the
Equipment and its related log and maintenance records available to Lessor for
inspection.
8. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Customer and Lessee represent and warrant that for this Agreement and
each Schedule:
(a) The execution, delivery and performance of the Lessee have been
duly authorized by all necessary corporate action;
(b) The individual executing was duly authorized to do so;
(c) This Agreement and each Schedule constitute legal, valid and
binding agreements of the Lessee enforceable in accordance with their
terms; and
(d) The Equipment is personal property and when subjected to use by
the Lessee will not be or become fixtures under applicable law.
9. DELIVERY AND RETURN OF EQUIPMENT.
Lessee assumes the full expense of transportation of the Equipment to
its initial location, installation, deinstallation, and return to a location
(including without limitation the expense of intransit insurance) all pursuant
to Lessor's instructions and manufacturer's specifications. Regarding
deinstallation, Lessee will assure that the Equipment is deinstalled by the
manufacturer in accordance with the manufacturer's recommended procedures and
any Environmental Law, and returned with a Verification of Decontamination in
the same operating order, repair, condition and appearance as when originally
installed (less normal wear and tear and depreciation) meeting all original
equipment manufacturer's specifications for continued manufacturer's
maintenance, and accompanied by all associated documents, manuals, maintenance
records for the duration of the Initial Term or any extension thereof, spare
parts and accessories. In connection with deinstallation, any Contaminant
removed from the Equipment will be removed and transported by a licensed waste
removal transporter. During the period subsequent to receipt of a notice under
Section 2, Lessor may demonstrate the Equipment's operation in place and Lessee
will supply any of its personnel as may reasonably be required to assist in the
demonstrations. With respect to Equipment located outside the continental United
States, Lessee agrees that if returned to United States, the Equipment will meet
all United States engineering specifications, including but not limited to
United States power standards.
10. LABELING.
Upon request, Lessee will xxxx the Equipment indicating Lessor's
interest. Lessee will keep all Equipment free from any other marking or labeling
which might be interpreted as a claim of ownership.
11. INDEMNITY.
Lessee will indemnify and hold Lessor, any Assignee and any Secured
Party harmless from and against any and all claims, costs, expenses, damages and
liabilities, including reasonable attorney's fees, arising out of the ownership
(for strict liability in tort only), selection, possession, renting, operation,
control, use, maintenance, delivery, return or other disposition of the
Equipment. However, Lessee is not responsible to a party indemnified hereunder
for any claims, costs, expenses, damages and liabilities occasioned by the
negligent acts of such indemnified party. Lessee agrees to carry bodily injury
and property damage liability insurance during the term of the Agreement with
insurance providers acceptable to Lessor, in amounts and against risks
customarily insured against by the Lessee on equipment owned by it. Any amounts
received by Lessor under that insurance will be credited against Lessee's
obligations under this Section.
12. RISK OF LOSS.
Effective upon delivery and until the Equipment is returned, Lessee
relieves Lessor of responsibility for all risks of physical damage to or loss or
destruction of the Equipment. Lessee will carry casualty insurance for each item
of Equipment in an amount not less than the Casualty Value. All policies for
such insurance must be with insurance providers acceptable to Lessor and will
name the Lessor and any Secured Party as additional insured and as loss payee,
and will provide for at least thirty (30) days prior written notice to the
Lessor of cancellation or expiration. The Lessee will furnish appropriate
evidence of such insurance. Lessee shall promptly repair any damaged item of
Equipment unless such Equipment has suffered a Casualty Loss. Within fifteen
(15) days of a Casualty Loss, Lessee will provide written notice of that loss to
Lessor and Lessee will, at Lessor's option, either (a) replace the item of
Equipment with Like Equipment and marketable title to the Like Equipment will
automatically vest in Lessor, or (b) pay the Casualty Value and after that
payment and the payment of all other amounts due and owing, Lessee's obligation
to pay further Rents for the item of Equipment will cease.
13. DEFAULT, REMEDIES AND MITIGATION.
13.1 DEFAULT. The occurrence of any one or more of the following
Events of Default by Customer or by Lessee constitutes a default under this
Agreement or any Schedule entered into hereunder.
(a) Failure to pay Rent or other amounts payable by Customer or
Lessee when due if that failure continues for ten (10) days after
written notice; or
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(b) Failure to perform any other term or condition of this Agreement or
the Schedule or the material inaccuracy of any representation or warranty
made by Customer or Lessee in this Agreement or the Schedule or in any
document or certificate furnished to the Lessor hereunder if that failure
or inaccuracy continues for fifteen (15) days after written notice; or
(c) An assignment for the benefit of its creditors, the failure to pay its
debts when due, the insolvency of Lessee, the filing by or the filing
against Customer or Lessee of any petition under any bankruptcy or
insolvency law or for the appointment of a trustee or other officer with
similar powers, the adjudication of Customer or Lessee as insolvent, the
liquidation of Customer or Lessee, or the taking of any action for the
purpose of the foregoing; or
13.2 REMEDIES. Upon the occurrence of any of the above Events of Default,
Lessor, at its option, may, as to Customer or Lessee:
(a) enforce performance of the provisions of the applicable Schedule by
appropriate court action in law or in equity;
(b) recover any damages and or expenses, including Default Costs;
(c) with notice and demand, recover all sums due and accelerate and
recover the present value of the remaining payments stream of all Rent due
under the defaulted Schedule (discounted at the same rate of interest at
which such defaulted Schedule was discounted with a Secured Party plus any
prepayment fees charged to Lessor by the Secured Party or, if there is no
Secured Party, then discounted at the then prevailing interbank offering
rate for the currency specified in the Schedule less 2%) together with all
Rent and other amounts currently due as liquidated damages and not as a
penalty;
(d) with notice and process of law and in compliance with Lessee's
security requirements, Lessor may enter on Lessee's premises to remove and
repossess the Equipment without being liable to Lessee for damages due to
the repossession, except those resulting from Lessor's, its assignees',
agents' or representatives' negligence; and
(e) pursue any other remedy permitted by law or equity.
The above remedies, in Lessor's discretion and to the extent permitted by
law, are cumulative and may be exercised successively or concurrently.
13.3 MITIGATION. Upon return of the Equipment pursuant to the terms of
Section 13.2, Lessor will use its best efforts in accordance with its normal
business procedures (and without obligation to give any priority to such
Equipment) to mitigate Lessor's damages as described below. EXCEPT AS SET FORTH
IN THIS SECTION, LESSEE HEREBY WAIVES ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE WHICH MAY REQUIRE LESSOR TO MITIGATE ITS DAMAGES OR MODIFY
ANY OF LESSOR'S RIGHTS OR REMEDIES STATED HEREIN. Lessor may sell, rents or
otherwise dispose of all or any part of the Equipment at a public or private
sale for cash or credit with the privilege of purchasing the Equipment. The
proceeds from any sale, rental or other disposition of the Equipment are defined
as either:
(a) if sold or otherwise disposed of, the cash proceeds less the Fair
Market Value of the Equipment at the expiration of the Initial Term less
the Default Costs, or
(b) if rented, the present value (discounted at three points over the
prevailing interbank offering rate at the time of the mitigation) of the
Rent for a term not to exceed the Initial Term, less the Default Costs.
Any proceeds will be applied against liquidated damages and any other sums
due to Lessor from Lessee. However, Customer and Lessee are liable to Lessor
for, and Lessor may recover, the amount by which the proceeds are less than the
liquidated damages and other sums due to Lessor from Lessee.
14. ENVIRONMENTAL CONDITIONS.
14.1 INDEMNIFICATION. Lessee shall fully and promptly pay, perform,
discharge, defend, indemnify and hold harmless Comdisco, Lessor and its
Affiliates, successors and assigns, directors, officers, employees and agents
from and against any Environmental Claim or Environmental Loss.
14.2 LESSEE COOPERATION. In the event of an Environmental Claim, Lessee
shall, upon request, immediately provide Lessor with copies of all
correspondence reports, notices, orders, findings, declarations and other
materials pertinent to the Lessee's compliance with and requirements of any
Environmental Law.
14.3 LESSEE INSURANCE. The Lessee shall name Lessor as an additional
insured on its environmental liability insurance policy, if carried.
15. ADDITIONAL PROVISIONS.
15.1 ENTIRE AGREEMENT. This Agreement and associated Schedules supersede
all other oral or written agreements or understandings between the parties
concerning the Equipment including, for example, purchase orders. ANY AMENDMENT
OF THIS AGREEMENT OR A SCHEDULE, MAY ONLY BE ACCOMPLISHED BY A WRITING SIGNED BY
THE PARTIES.
15.2 NO WAIVER. No action taken by Lessor or Lessee shall be deemed to
constitute a waiver of compliance with any representation, warranty or covenant
contained in this Agreement or a Schedule. The waiver by Lessor or Lessee of a
breach of any provision of this Agreement or a Schedule will not operate or be
construed as a waiver of any subsequent breach.
15.3 BINDING NATURE. Each Schedule is binding upon, and inures to the
benefit of Lessor and its assigns. LESSEE MAY NOT ASSIGN ITS RIGHTS OR
OBLIGATIONS.
15.4 SURVIVAL OF OBLIGATIONS. All agreements, obligations including, but
not limited to those arising under Sections 6.2 and 11, representations and
warranties contained in this Agreement, any Schedule or in any document
delivered in connection with those agreements are for the benefit of Lessor and
any Assignee or Secured Party and survive the execution, delivery, expiration or
termination of this Agreement.
15.5 NOTICES. Any notice, request or other communication to either party by
the other will be given in writing and deemed received upon the earlier of
actual receipt or three days after mailing if mailed postage prepaid by airmail
to Lessor (to the attention of "Agreement Administrator") or Lessee, at the
address set out in the Schedule or, two days after it is sent by courier or
facsimile transmission if receipt is verified by the receiving party.
15.6 APPLICABLE LAW. This Agreement shall be governed and construed for all
purposes in accordance with the law agreed upon in the applicable Schedule by
Lessor and Lessee. Comdisco and Customer hereby consent to such law. Customer
hereby consents to the jurisdiction of the court agreed upon in the applicable
Schedule.
15.7 SEVERABILITY. If any one or more of the provisions of this Agreement
or any Schedule is for any reason held invalid, illegal or unenforceable, the
remaining provisions of this Agreement and any such Schedule will be unimpaired,
and the invalid, illegal or unenforceable provision replaced by a mutually
acceptable valid, legal and enforceable provision that is closest to the
original intention of the parties.
15.8 COUNTERPARTS. This Agreement and any Schedule may be executed in any
number of counterparts, each of which will be deemed an original, but all such
counterparts together constitute one and the same instrument. If Lessor grants a
security interest in all or any part of a Schedule, the Equipment or sums
payable thereunder, only that counterpart Schedule marked "Secured Party's
Original" can transfer Lessor's rights and all other counterparts will be marked
"Duplicate".
15.9 LICENSED PRODUCTS. Lessee shall obtain no title to Licensed Products
which will at all times remain the property of the owner of the Licensed
Products. A license from the owner may be required and it is Lessee's
responsibility to obtain any required license before the use of the Licensed
Products. Lessee agrees to treat the Licensed Products as confidential
information of the owner, to observe all copyright restrictions, and not to
reproduce or sell the Licensed Products.
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15.10 ADDITIONAL DOCUMENTS. Customer and Lessee will, upon execution of
this Agreement and as may be requested thereafter, provide Lessor and/or
Comdisco with a secretary's certificate of incumbancy and authority and any
other documents reasonably requested by Lessor and/or Comdisco. Lessee will
furnish, upon request, quarterly and audited financial statements for the most
recent period.
15.11. ELECTRONIC COMMUNICATIONS. Each of the parties may communicate with
the other by electronic means under mutually agreeable terms.
15.12. DEFINITIONS.
ADVANCE ENVIRONMENTAL CONDITION - means (i) the existence or the continuation of
the existence, of an Environmental Emission (including, without limitation, a
sudden or non-sudden accidental or non-accidental Environmental Emission), of or
exposure to, any substance, chemical, material, pollutant, contaminant, odor or
audible noise or other release or emission in, into or onto the environment
(including without limitation, the air, ground, water or any surface) at, in,
by, from or related to any Equipment, (ii) the environmental aspect of the
transportation, storage, treatment or disposal of materials in connection with
the operation of any Equipment, or (iii) the violation, or alleged violation of
any statutes, ordinances, orders, rules, regulations, permits or licenses of, by
or from any governmental authority, agency or court relating to environmental
matters connected with any Equipment.
AFFILIATE - means as to Comdisco or Customer those enterprises which Comdisco or
Customer own or otherwise control directly or indirectly including, without
limitation, those listed on Exhibits A and B.
ASSIGNEE - means an entity to whom Lessor has sold or assigned its rights as
Owner and Lessor of Equipment.
ATTACHMENT - means any accessory, equipment or device and the installation
thereof that does not impair the original function or use of the Equipment and
is capable of being removed without causing material damage to the Equipment and
is not an accession to the Equipment.
CASUALTY LOSS - means the irreparable loss or destruction of Equipment.
CASUALTY VALUE - means an Amount equal to the present value of the aggregate
Rent remaining for the balance of the Initial Term, plus the present value of
the Fair Market Value (determined as of the expiration of the Initial Term) of
Like Equipment discounted at the lesser of (x) the then prevailing interbank
offering rate less 2% or (y) the Secured Party interest rate, if any.
COMMENCEMENT CERTIFICATE - means the Lessor provided certificate which must be
signed by Lessee within ten days of the Commencement Date as requested by
Lessor.
COMMENCEMENT DATE - is defined in each Schedule.
CONTAMINANT - means those substances which are regulated by or from the basis of
liability under any Environmental Law, including without limitation, asbestos,
polychlorinated biphenyls ("PCB"), and radioactive substances, or other material
or substance which has in the past or could in the future constitute a healthy,
safety or environmental hazard to any person, property or natural resources.
CUSTOMER - means the enterprise other than Comdisco executing this Agreement on
behalf of itself and its Affilates.
DEFAULT COSTS - means reasonable attorney's fees and remarketing costs resulting
from a Lessee default or Lessor's enforcement of its remedies.
ENVIRONMENTAL CLAIM - means any accusation, allegation, notice of violation,
claim, demand, abatement or other order or direction (conditional or otherwise)
by a governmental authority or any Person for personal injury (including
sickness, disease, or death), tangible or intangible property damage, damage to
the environment or natural resources, nuisance, pollution, contamination or
other adverse effects on the environment, or for fines, penalties or
restrictions, resulting from or based upon any Adverse Environmental Condition.
ENVIRONMENTAL EMISSION - means any actual or threatened release, spill,
omission, leaking, pumping, injection, deposition, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor environment, or into
or out of any of the Equipment including, without limitation, the movement of
any Contaminant or other substance through or in the air, soil, surface water,
groundwater or property.
ENVIRONMENTAL LAW - means any federal, foreign, state or local law, rule or
regulation pertaining to the protection of the environment applicable to the
Equipment in the country of installation.
ENVIRONMENTAL LOSS - means any loss, cost, damage, liability, deficiency, fine,
penalty or expense (including, without limitation, reasonable attorney's fees,
engineering and other professional or expert fees), investigation, removal,
cleanup and remedial costs (voluntarily or involuntarily incurred) and damages
to, loss of the use of or decrease in value of the Equipment arising out of or
related to any Adverse Environmental Condition.
EQUIPMENT - means the property described on a Schedule and any replacement for
that property required or permitted by this Agreement or a Schedule but not
including any Attachment.
EVENT OF DEFAULT - means the events described in Subsection 13.1.
FAIR MARKET VALUE - means the aggregate amount which would be obtainable in an
arm's-length transaction between an informed and willing buyer/user purchasing
the Equipment in place for its originally intended use and an informed and
willing seller under no compulsion to sell.
INITIAL TERM - means the period of time beginning on the first day of the first
full Rent Interval following the Commencement Date for all items of Equipment
and continuing for the number of Rent Intervals indicated on a Schedule.
INSTALLATION DATE - means the day on which Equipment is installed and accepted
by Lessee in accordance with Lessee's or Lessor's equipment purchase
documentation.
INTERBANK OFFERING RATES - means short term rates used within a particular
country by banks lending money amongst themselves.
INTERIM RENT - means the pro-rata portion of Rent due for the period from the
Commencement Date through but not including the first day of the first full Rent
Interval included in the Initial Term.
LESSEE - means with respect to any Schedule, the enterprise executing the
Schedule as Lessee, either Customer or an Affiliate of Customer.
LESSOR - means with respect to any Schedule, the enterprise executing the
Schedule as Lessor, either Comdisco, Inc. or an Affiliate of Comdisco, Inc.
LICENSED PRODUCTS - means any software or other licensed products attached to
the Equipment.
LIKE EQUIPMENT - means replacement Equipment which is lien free and of the same
model, type, configuration and manufacture as Equipment.
LIKE PART - means a substituted part which is lien free and of the same
manufacturer and part number as the removed part, and which when installed on
the Equipment will be eligible for maintenance coverage with the manufacturer of
the Equipment.
NOTICE PERIOD - means the time period described in a Schedule during which
Lessee may give Lessor notice of the termination of the term of that Schedule.
OVERDUE RATE - means the lessor of 3% per year above the then prevailing
interbank offering rate or the maximum rate permitted by the law of the country
where the Equipment is located.
OWNER - means the legal owner of the Equipment.
PERSON - means any individual, partnership, corporation, trust, unincorprated
organization, government or department or agency thereof and any other entity.
RECONFIGURATION - means any change to Equipment that would upgrade or downgrade
the performance capabilities of the Equipment in any way.
RENT - means the rent, including Interim Rent, Lessee will pay for each item of
Equipment expressed in a Schedule either as a specific amount or an amount equal
to the amount which Lessor pays for an item of Equipment
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multiplied by a rental rate factor plus all other amounts due to Lessor under
this Agreement or a Schedule.
RENTAL INTERVAL - means a full calendar month or quarter as indicated on a
Schedule.
SCHEDULE - means an Equipment Schedule, substantially in the form attached to
Exhibit C hereto or as may be added by agreement of Comdisco and Customer from
time to time, which incorporates all of the terms and conditions of this
Agreement and, for purposes of Section 15.8, its associated Commencement
Certificate(s).
SECURED PARTY - means an entity to whom Lessor has granted a security interest
in a Schedule and related Equipment for the purpose of securing a loan.
VERIFICATION OF DECONTAMINATION - means a letter from the party performing the
decontamination, stating that such party is licensed by OSHA or the appropriate
officials and that the actual decontamination was completed both in accordance
with manufacturer's specifications and procedures, and any governmental permit
required for the operation of the equipment and the disposal of any hazardous
material in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
or as of the day and year first above written.
ACT MANUFACTURING, INC. COMDISCO, INC.,
as Customer as Lessor
By: /s/ ^^[SIGNATURE ILLEGIBLE]^^ By: __________________________
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Title: CEO PRESIDENT Title: _______________________
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By: /s/ ^^[SIGNATURE ILLEGIBLE]^^
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Title: CFO/VP FINANCE
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EXHIBIT A
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To the Global Master Rental Agreement dated as of May 1, 1998 between
Comdisco, Inc. ("Comdisco") and ACT Manufacturing, Inc. ("Customer")
AFFILIATES OF CONDISCO, INC.
Comdisco Asia Pte Ltd Comdisco Ireland Limited
Xx. 0 Xxxxx Xxxx 00 Xxxxxxx Xxxxxx
#00-00 Xxxxxx 0
Cathay Building (Ireland)
Xxxxxxxxx 000000
Comdisco Japan, a branch of Comdisco
Comdisco Australia Pty Ltd GmbH & Co. Leasing and Finance KG
(ACN 002 997-453) Nomura Fudosan Xxxxxxxx 00X
Xxxxx 00, 000 Xxxxxxx Xxxxxxx 1-8-15 Azuchi-Machi
North Sydney J-Chuo-Ku, Osaka 541-0052
XXX-Xxxxxxxxx 0000 (Japan)
Comdisco Handelsgesellschaft M.B.H. Comdisco de Mexico, S.A. de C.V.
Xxxxxxxxxxxxx 0/00 c/o Gardere & Xxxxx, Arena, Xxxx,
A-1010 Wien Robles, Yarza, S.C.
(Austria) Rio Xxxxxx Xx. 0
Xxx. Xxxxxxxxxx
00000 Xxxxxx, D.F.
Comdisco Belgium S.P.R.L (Mexico)
x/x XXXX
Xxx Xxxxxxxx 000 - 000 Xxxxx 3 Comdisco Nederland X.X.
Xx Xxxxxxxxxx - Xxxxxx Xxxxxxxxxxxx 00, Postbus 1681
X-0000 Xxxxxxxxx NL-3606 AK Maarssen
(Belgium) (The Netherlands)
Comdisco Canada Ltd. Comdisco New Zealand
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx Xxxxx 00, ASB Bank Centre
000 Xxx Xxxxxx, Xxxxx 0000 Cnr Xxxxxx and Wellesley Streets
P.O. Box 131 Auckland
CDN-Toronto, Ontario M5J 2J3 (New Zealand)
(Canada)
Computer Discount Corporation, S.L.
Comdisco France S.A. c/o KPMG Estudio Juridico y Tributario
000, xxxxxx Xxxxxxx xx Xxxxxx Xxxxx Xxxxxx
00000 Neuilly sur Seine Xxxxx xx xx Xxxxxxxxxx, 00 (Xxxxxx 00)
(Xxxxxx) X-00000 Xxxxxx
(Xxxxx)
Promodata S.N.C.
176, avenue Xxxxxxx de Gaulle Comdisco Swedan AB
92522 Neuilly sur Seine x/x Xxxxxxxxxxxxx Xxxxx
(Xxxxxx) Xxxxxxxxxxxxx 00, Box 1703
S-11187 Stockholm
Comdisco Deutschland GmbH (Sweden)
Xxxxx-Xxxxxxx-Xxxxxxx 00
D-85737 Ismaning/Munchen Comdisco (Switzerland) SA
(Germany) Postfach 4136
Xxxxxxxxxxxx 00
Comdisco Gmbh & Co. Leasing and CH-6304 ZUG
Finance KG (Switzerland)
Xxxxx-Xxxxxxx-Xxxxxxx 00
D-85737 Ismaning/Munchen
(Germany) Comdisco Trade, Inc. (Taiwan Branch)
14F-06 Empire Commercial Building
Comdisco Global Inc. Xx. 000 Xxxxx-Xx Xxxx Section 2
c/o Xxxxxx Xxxxxx & Company Hsinchu, Taiwan
X.X. Xxx 000 (Republic of China)
Xxxxxxxx Xxxxxx Xxxxxxxx
Xxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxx Limited
(British West Indies) 0 Xxxxxxxx Xxxxxxxx Xxxx
Xxxxx Xxx
XX-Xxxxxxxxx, Xxxxxxxxx Xx0 0XX
(Great Britian)
EXHIBIT B
---------
To the Global Master Rental Agreement dated
as of May 1, 1998 between
Comdisco, Inc. ("Comdisco")
and ACT Manufacturing, Inc. ("Customer")
AFFILIATES OF CUSTOMER
ACT MANUFACTURING, INC.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
ADVANCED COMPONENT TECHNOLOGY LIMITED
DBA ACT MANUFACTURING EUROPE
Xxxx 0000 Xxxx Xxxx Xxxxxxxx Xxxxxx
Xxxx Xxxx
Xxxxxx 00
Ireland
EXHIBIT C
---------
To the Global Master Rental Agreement dated as of May 1, 1998 between
Comdisco, Inc. ("Comdisco") and ACT Manufacturing, Inc. ("Customer")
Effective as of the date of the Agreement, Comdisco and Customer hereby
agree, pursuant to Subsection 1.2, "Equipment Schedules" of the Agreement that
Equipment Schedules substantially in the forms attached hereto and identified
by country name shall be used in the countries listed below which match the
country name on the attached Equipment Schedules.
Australia Mexico
Austria Netherlands
Belgium New Zealand
Canada **Norway
**Denmark **Portugal
**Finland Singapore
France Spain
Germany Sweden
Hong Kong Switzerland
Ireland Taiwan
***Italy United Kingdom
Japan United States
Initialzed: Comdisco _____
Customer _____
**Leases will be written with Comdisco Nederland B.V., as Lessor
***Leases will be written with Comdisco Handelegssellschaft M.B.H., as Lessor
In certain instances leases for Equipment in Denmark, Finland, Ireland and/or
Portugal may be written by Comdisco GmbH & Co. Leasing and Finance KG.
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