Exhibit 10.45
3M Financing Services
Master Lease Agreement
THIS MASTER LEASE AGREEMENT ("Agreement") is effective as of the date executed
by Lessor ("Effective Date") and is entered into by and between 3M FINANCING
SERVICES having an office at 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000
(together with any successor or assignee, "Lessor"), and 1199 Mac, Inc. dba
Electronic Computer Imaging, a Corporation with its principal place of business
at 0000 Xxxxx Xxxx Xxxxx X-0, Xxxxxxx Xxxxx, XX 00000 (together with any
successor or permitted assignee, "Lessee").
LEASE TERMS AND CONDITIONS:
1. LEASING. (a) Subject to the terms of this Agreement, Lessor agrees to
lease to Lessee and Lessee agrees to lease from Lessor the new or equivalent of
new equipment (the "Equipment") described in any schedule (each, a "Schedule")
signed by Lessee and executed by Lessor. Each Schedule will incorporate all the
terms of this Agreement and will constitute a separate agreement (each, a
"Lease") for lease of the Equipment and license for any operating or application
software (the "Software"). With respect to each Lease, capitalized terms not
defined in this Agreement will have the meanings stated in the applicable
Schedule. Unless it purchases the Equipment under Section 14(b) ("Options"),
Lessee does not have any right or interest in the Equipment except as a lessee.
This Agreement is effective from the Effective Date, and will continue until all
Leases have terminated or expired.
(b) If Software is included in the Description of Equipment, Lessee has
entered into a separate license for the Software with the licensor thereof.
Lessee's rights to the Software are governed by its license agreement with the
Software licensor. Lessee will have a continuing right to use the Software with
the Equipment in accordance with the terms of such license upon payment of all
amounts due under the Lease.
(c) If this is a Lease with a $1.00 or other fixed price Purchase Option,
Lessee agrees that the cash price and the cost of financing the Equipment have
been disclosed to its satisfaction and Lessee has freely chosen not to purchase
for cash but to lease the Equipment and to finance any Software over time
pursuant hereto.
2. NET LEASE. EACH LEASE IS A NET LEASE. LESSEE IS UNCONDITIONALLY
OBLIGATED TO PAY RENT AND OTHER AMOUNTS DUE UNDER SUCH LEASE REGARDLESS OF ANY
DEFECT OR DAMAGE TO EQUIPMENT OR SOFTWARE, OR LOSS OF POSSESSION, USE OR
DESTRUCTION FROM ANY CAUSE WHATSOEVER. LESSEE'S OBLIGATIONS CONTINUE UNTIL
SPECIFICALLY TERMINATED AS PROVIDED IN SUCH LEASE. LESSEE IS NOT ENTITLED TO ANY
ABATEMENT, REDUCTION, RECOUPMENT, DEFENSE, OR SET-OFF AGAINST RENT OR OTHER
AMOUNTS DUE TO LESSOR OR ITS ASSIGNEE, WHETHER ARISING OUT OF SUCH LEASE OR OUT
OF LESSOR'S STRICT LIABILITY OR NEGLIGENCE, FROM ANY THIRD PARTY, OR OTHERWISE.
EACH LEASE IS A "FINANCE LEASE" AS DEFINED IN ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE.
3. PURCHASE OF EQUIPMENT. (a) Lessor is not obligated to purchase or lease
Equipment, including the Software, unless before the Expiration Date on a
Schedule: (i) Lessor receives from Lessee a fully signed and completed
Agreement, Schedule and such other documents as Lessor may require: (ii) Lessor
has confirmed to its satisfaction, either in writing or pursuant to a telephone
audit, that the Equipment and any Software have been delivered and irrevocably
accepted by Lessee; (iii) Lessor has received from Supplier clear and
unencumbered title to the Equipment; and (iv) there is no Default (Section 13).
So long as no Default has occurred, Lessor appoints Lessee its agent to inspect
and accept the Equipment from Supplier simultaneously with acceptance of the
Equipment for lease. For each Lease, Lessee irrevocably authorizes Lessor to
adjust the Equipment Total Cost by no more than fifteen percent (15%) to account
for change orders or returns, invoicing errors and similar matters, any
adjustments required by commencement of any Lease after the applicable
Expiration Date or to make any Leases continuous and agrees to any resulting
adjustments in the TRANSACTION TERMS stated in the applicable Schedule. Lessor
will send Lessee a written notice stating the final Equipment Total Cost and
TRANSACTION TERMS, if different from those stated in the applicable Schedule.
(b) If Lessor has issued any purchase order, agreement or ancillary
documents (the "Purchase Agreement") for Equipment and/or Software but the Lease
does not commence, Lessor may assign all rights under the Purchase Agreement to
Lessee without recourse or warranty and Lessee will reimburse Lessor for all
expenses incurred, plus interest at the Overdue Rate (Section 17). Lessee agrees
that if a Default is declared or if Lessee fails to accept the Equipment or
Software for any reason, Lessee will remain liable to Supplier to honor the
purchaser's obligations under the Purchase Agreement. If Lessor has issued any
Purchase Agreement to the Supplier named in any Schedule, it is at the express
request and direction of Lessee. Lessee acknowledges that it may have rights
under such Purchase Agreement, and that it may contact Supplier for a
description of such rights or any warranties.
4. TERM AND RENT. The Initial Term begins on the acceptance by the Lessee
of the Equipment and Software (a "Lease Commencement Date"), and continues for
the Initial Term stated in the applicable Schedule. Rent accrues from the Lease
Commencement Date. Rent is payable either in advance or arrears as indicated in
the TRANSACTION TERMS contained in the applicable Schedule and on the same day
of each month as the Lease Commencement Date if the Lease Commencement Date is
on or before the 20th of the month. If the Lease Commencement Date is after the
20th of the month, Rent is payable on the first day of each month. If Rent is
not paid within ten (10) days of its due date, Lessee agrees to pay a late
charge of ten (10) cents per dollar on, and in addition to, such Rent, but not
exceeding the lawful maximum, if any, to compensate Lessor for additional
collection costs not contemplated by the Lease. Advance Rent, if any, is payable
upon execution by Lessee of a Schedule and is applied to the first Rent due and
then to the final Rents or, at Lessor's option, to the payment of any overdue
obligation of Lessee. Lessor is not required to: (i) refund any Advance Rent or
Rent unless the Lease does not commence: (ii) pay any interest on Advance Rent;
or (iii) keep Advance Rent in a separate account. Lessee agrees that Lessor may,
at the request and on behalf of Supplier or other third party, xxxx and collect
any amounts due for maintenance services provided by Supplier or such other
third party.
5. TAXES. Lessee agrees to pay promptly as additional Rent all license and
registration fees and all taxes (excluding taxes on Lessor's net income)
together with penalties and interest (collectively, "Taxes") assessed against
Lessor, Lessee, any Lease, the Equipment, the purchase (including purchase by
Lessee), sale, ownership, delivery, leasing, possession, use, operation or
return of the Equipment or Software or its proceeds. Lessor shall not be
required to contest any Taxes. Where permitted by applicable law, Lessee will
report and pay all Taxes; provided that if they are reported by Lessor, Lessee
will reimburse Lessor on demand for any Taxes paid by Lessor, or at Lessor's
option, Lessee shall pay a portion of estimated Taxes along with each payment of
Rent.
Lessee's Initials RLM
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6. USE, MAINTENANCE AND REPAIR. (a) Lessee agrees at its own expense to:
(i) maintain the Equipment and Software in good operating condition suitable for
certification by the manufacturer and in compliance with all applicable laws and
manufacturer requirements or recommendations; (ii) keep in place for the term of
each Lease a maintenance program covering the Equipment and Software which
complies with manufacturer's requirements; (iii) use the Equipment and Software
solely for business purposes, in the manner for which it was intended; (iv)
ensure that all Equipment and Equipment operations conform to all applicable
local, state and federal laws, health and safety guidelines; (v) pay all
expenses, fines, and penalties related to the use, operation, condition or
maintenance of the Equipment and Software; and (vi) comply with all license and
copyright requirements of any Software, whether or not included in a Lease.
Lessee agrees to permit periodic inspection of Equipment by Lessor upon
reasonable written notice by Lessor to Lessee.
(b) Lessee agrees not to attach to the Equipment any accessory, equipment
or device not leased from Lessor unless it is easily removable without damaging
the Equipment. Lessee agrees to pay all costs for parts, alterations, and
additions to the Equipment (including those required by law), all of which will
become the property of Lessor. Lessee agrees that it shall not under any
circumstances install any Equipment or Software inside any other personal
property. Lessor and Lessee intend the Equipment to remain personal property of
Lessor.
(c) Provided that there is no Default, Lessee is authorized on behalf of
Lessor to enforce in its own name (and at its own expense) any warranty,
indemnity or right to damages related to the Equipment or Software which Lessor
may have against the manufacturer or Supplier.
7. DISCLAIMER OF WARRANTIES. Lessor warrants that, so long as no Default
has occurred and is continuing, Lessor or its assignee will not interfere with
Lessee's use and possession of the Equipment and Software. LESSOR MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, DIRECT OR INDIRECT, EXPRESS OR IMPLIED.
AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE DESIGN, CAPACITY,
MATERIAL, WORKMANSHIP, OPERATION, CONDITION, CONFORMITY WITH ANY SPECIFICATIONS,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HIDDEN OR LATENT DEFECT, OR
AS TO ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT WITH RESPECT TO THE
EQUIPMENT OR SOFTWARE. LESSEE ACKNOWLEDGES THAT (i) LESSEE SELECTED THE
EQUIPMENT AND SOFTWARE WITHOUT RELIANCE ON LESSOR, (2) THE EQUIPMENT AND
SOFTWARE ARE LEASED FROM LESSOR "AS-IS, WHERE-IS", (3) NEITHER LESSOR NOR
LESSOR'S ASSIGNEE IS THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR SOFTWARE
OR THE REPRESENTATIVE OF EITHER. (4) NEITHER LESSOR NOR LESSOR'S ASSIGNEE IS
REQUIRED TO ENFORCE ANY MANUFACTURER'S WARRANTIES ON BEHALF OF ITSELF OR OF
LESSEE, (5) NEITHER LESSOR NOR LESSOR'S ASSIGNEE IS OBLIGATED TO INSPECT THE
EQUIPMENT OR SOFTWARE, AND (6) NO TERM OR CONDITION OF ANY LEASE MAY BE ALTERED
OR WAIVED BY ANY SALESMAN OR AGENT OF ANY SUPPLIER. NEITHER LESSOR NOR LESSOR'S
ASSIGNEE SHALL BE LIABLE FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED DIRECTLY OR
INDIRECTLY BY THE EQUIPMENT OR SOFTWARE OR BY ITS INADEQUACY OR BY ANY EQUIPMENT
OR SOFTWARE DEFECT, OR ANY FAILURE TO PROVIDE MAINTENANCE SERVICES, WHETHER OR
NOT LESSOR OR ITS ASSIGNEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LIABILITY, LOSS OR DAMAGE. NEITHER LESSOR NOR LESSOR'S ASSIGNEE SHALL HAVE ANY
LIABILITY TO LESSEE OR ANY OTHER PERSON WITH RESPECT TO ANY OF THE FOLLOWING,
REGARDLESS OF ANY NEGLIGENCE OF LESSOR: (1) THE USE, CONDITION, OPERATION OR
PERFORMANCE OF THE EQUIPMENT OR SOFTWARE; (2) ANY INTERRUPTION OF SERVICE, LOSS
OF BUSINESS OR ANTICIPATED PROFITS, OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES; OR (3) THE DELIVERY, SERVICING, MAINTENANCE, REPAIR, IMPROVEMENT OR
REPLACEMENT OF THE EQUIPMENT OR SOFTWARE.
8. LOSS OR DAMAGE: CASUALTY VALUE. Lessee assumes the risk of any
disappearance of or damage to any part of the Equipment or Software from any
cause whatsoever from the time the Equipment or Software is shipped to Lessee
until it is returned to Lessor pursuant to Section 14(b). A casualty to any part
of the Equipment or Software may, at Lessor's discretion, be considered a
casualty as to all the Equipment and Software. Within ten (10) days of learning
of any condemnation or other circumstance where the Equipment or Software is, in
Lessee's reasonable opinion, irreparably damaged or permanently unfit for use
("Casualty"), Lessee will provide Lessor full details of the Casualty and will,
at Lessor's option, promptly do one of the following:
(A) Repair the Equipment or Software so that it is in good condition and
working order.
(B) Replace the Equipment or Software with like equipment or software of
the same or later model, in good condition and working order. Lessee must
provide Lessor with title to the replacement equipment free and clear of
all liens and encumbrances.
(C) Prepay Lessee's obligations under the applicable Lease with respect to
the lost, stolen or damaged Equipment or Software. The amount required to
be prepaid under option (C) shall be the sum of
(i) all Rents due under such Lease but unpaid at the time of
prepayment, plus
(ii) all other amounts due under the terms of such Lease but unpaid
at the time of prepayment, plus
(iii) that portion of all future Rents to become due under the Lease
relating to the lease of such Equipment, discounted to their present
value at the agreed lease charge rate applicable to the Lease or the
lowest rate permitted by law, plus
(iv) if applicable, the Fair Market Value of such Equipment
(determined in the manner described in Section 1 4(b)) calculated as
of the date of such prepayment of Lessee's obligations, discounted
to present value at the agreed lease charge rate applicable to the
Lease or the lowest rate permitted by law, plus
(v) if applicable, the Fixed Purchase Option to be paid at the end
of the Initial Term (plus any applicable tax), discounted to present
value at the agreed lease charge rate applicable to the Lease or the
lowest rate permitted by law, plus
(vi) interest on the sum of the amounts calculated pursuant to
subsections (i) through (v) above accruing to the date of payment at
the Overdue Rate (Section 17(f)).
The sum of the amounts calculated pursuant to subsections (i) through (vi)
above is collectively referred to as, the "Casualty Value".
Lessor will forward to Lessee any insurance proceeds which Lessor may
receive for lost, damaged or destroyed Equipment or Software provided (a) Lessee
has satisfied all of its obligations to Lessor under this Section, and (b)
Lessee is not otherwise in default under the terms of this Agreement or any
Lease.
9. INSURANCE. Lessee agrees, at its own expense, to maintain primary
insurance coverage consisting of (i) actual cash value all risk insurance on the
replacement value of Equipment and Software, naming Lessor as loss payee and
(ii) single limit public liability and property damage insurance of not less
than $500,000 per occurrence (or such other amounts as Lessor may require by
notice to Lessee) naming Lessee as insured and Lessor as additional insured. All
insurance policies shall be in such form, amount and deductibles as are
satisfactory to Lessor, All insurance policies must provide for not less than
thirty (30) days written notice to Lessor of material changes in or cancellation
of the policy. Premiums for all such insurance will be prepaid. Lessee will
deliver evidence of such insurance to Lessor or its designee upon request and
will promptly provide to Lessor all information pertinent to any occurrence
which may become the basis of a claim. Lessee will not make claim adjustments
with insurers except with Lessor's prior written consent. If Lessee fails to
provide the required insurance, Lessor may but is not obligated to insure its
interest in the Equipment and Software and Lessee agrees to pay the direct or
financed cost thereof (at a rate not to exceed the highest annual rate permitted
by applicable law) and a charge for costs incurred in connection therewith
promptly upon receipt of invoices.
10. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and
warrants to Lessor that as of the date of each Lease and of each Lease
Commencement Date:
(a) Lessee has adequate power and capacity to enter into this Agreement,
each Lease, any documents relative to the purchase of the Equipment leased under
such Lease and to the license of all Software and any other documents required
to be delivered in connection with the Lease (collectively, the "Documents");
the Documents have been duly authorized, executed and delivered by Lessee and
constitute valid, legal and binding agreements, enforceable in accordance with
their terms; there are no proceedings presently pending or threatened against
Lessee which will impair its ability to perform under the Documents; and all
information supplied to Lessor is accurate and complete.
(b) Lessee's entering into the Lease and leasing the Equipment and
licensing any Software does not and will not: (i) violate any judgment, order,
or law applicable to the Lease, Lessee or Lessee's certificate of incorporation
or by-laws (if Lessee is a corporation) or Lessee's partnership agreement (if
Lessee is a partnership); or (ii) result in the creation of any lien, security
interest or other encumbrance upon the Equipment or Software.
(c) All financial data of Lessee or of any consolidated group of companies
of which Lessee is a member ("Lessee Group"), delivered to Lessor have been
prepared in accordance with generally accepted accounting principles,
consistently applied, and fairly present the financial position and results from
operations of Lessee, or of the Lessee Group, as of the stated date(s) and
period(s). Since the date of the most recently delivered financial data, there
has been no material adverse change in the financial or operating condition of
Lessee or of the Lessee Group.
(d) If Lessee is a corporation or partnership, it is and will be validly
existing and in good standing under laws of the state of its incorporation or
organization; the persons signing the Lease are acting with the full authority
of its board of directors or partners (if Lessee is a partnership) and hold the
offices indicated below their signatures, which are genuine.
11. LESSEE'S AGREEMENTS. (a) LESSEE AGREES THAT IT WILL KEEP THE EQUIPMENT
AND SOFTWARE FREE AND CLEAR FROM ALL CLAIMS, LIENS AND ENCUMBRANCES AND WILL NOT
ASSIGN, SUBLET, OR GRANT A SECURITY INTEREST IN THE EQUIPMENT OR SOFTWARE OR IN
ANY LEASE WITHOUT LESSOR'S PRIOR WRITTEN CONSENT. If and to the extent that any
Lease is deemed a security agreement under the Uniform Commercial Code, and
otherwise for precautionary purposes only, Lessee grants Lessor a first priority
security interest in its interest in (a) Equipment and Software governed by any
Lease. Such security interest secures Lessee's obligations with respect to each
Lease. Lessee will notify Lessor in writing, with all details, within ten (10)
days after it learns of the attachment of any lien on any Equipment or Software.
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(b) Lessee will not relocate any unit of Equipment or Software from the
Equipment Location stated on a Schedule without the prior written approval of
Lessor (which shall not be unreasonably withheld). Lessee agrees to notify
Lessor immediately in writing of any change in the Equipment's or Software's
location, in Lessee's corporate or business name or in the location of its
executive offices.
(c) This subparagraph (c) only applies to a Lease with a Fair Market Value
Purchase Option. Lessee will not take or fail to take any action which Lessor
determines will result in the disqualification of any Equipment leased for, or
the recapture of, all or any portion of the accelerated cost recovery deductions
permitted to Lessor by the Internal Revenue Code of 1986, as amended. Lessee
will indemnify Lessor for any loss in Lessor's after tax economic yields and
cash flows caused by Lessee's acts or failures to act. Lessee agrees that the
Rent and Advance Rent have been calculated on Lessor's current effective
corporate income tax rate. If Lessor is not taxed at such tax rate during the
Initial Term because of Congressional enactment of any law, Lessor has the right
to increase the Rent and Advance Rent and adjust the Casualty Value (Section
8(c)) in such a manner as will both (i) take into account that such assumption
is no longer correct and (ii) preserve Lessor's after tax economic yields and
cash flows. A change in the Rent, Advance Rent, or Casualty Value is effective
on the effective date of such law.
(d) Lessor may inspect the Equipment and Software during normal business
hours. At Lessor's request, Lessee will attach identifying labels supplied by
Lessor showing Lessor's ownership in a prominent position on each unit of
Equipment. Lessor shall have the right to remove any Equipment or Software
without notice and to declare the Lease in default if Equipment or Software is
determined to be improperly used, maintained, operated or stored.
(e) Within one hundred twenty (120) days of the close of each fiscal year
of Lessee, Lessee will deliver to Lessor Lessee's balance sheet and profit and
loss statement, certified by a recognized firm of certified public accountants.
Upon request, Lessee will deliver to Lessor duplicate copies of Lessee's most
recent quarterly financial report.
12. INDEMNIFICATION. Lessee agrees to indemnify, defend and keep harmless
Lessor, its agents, successors and assigns, from and against any and all losses,
damages, penalties, claims and actions, including reasonable attorney's fees and
expenses, arising out of or in any way related to the Equipment or the Software
including, without limitation, (i) the selection, manufacture, purchase,
ownership, possession, lease, acceptance or rejection, delivery, maintenance,
operation or use of the Equipment or Software; or (ii) the violation of any
software license; or (iii) the condition of Equipment or Software sold or
disposed of after or as a result of use by Lessee excluding, however, any of the
foregoing to the extent attributable to Lessor's gross negligence or willful
misconduct. Lessee shall give Lessor prompt notice of any such claim or
liability received by Lessee. The provisions of this Section shall survive the
termination of any Lease or the applicable statute of limitations period.
13. DEFAULT: REMEDIES. (a) Lessee shall be in default (a "Default") if,
with respect to a Lease: (i) Lessor has not received Advance Rent or any other
Rent within ten (10) days after its due date; or (ii) Lessee or any guarantor
violates any other term of a Lease or any term of a guaranty and fails to
correct such violation within ten (10) days after written notice from Lessor; or
(iii) Lessee violates the terms of any license or agreement for Software; or
(iv) Lessee or any guarantor becomes insolvent, is liquidated or dissolved,
merges, transfers substantially all of its assets or stock, stops doing business
or assigns its rights or property for the benefit of creditors; or (v) a
petition is filed by or against Lessee or any guarantor under Title 11 of the
United States Code or any successor or similar law; or (vi) (for individuals)
Lessee or any guarantor dies or a guardian is appointed for Lessee's or
guarantor's person; or (vii) Lessee (or any affiliate) is in default of or fails
to fulfill the terms of any other agreement between Lessee and Lessor or any
affiliate of either; or (viii) without Lessor's prior written consent, Lessee
attempts to remove, sell, transfer, encumber, part with possession, or sublet
any Equipment or Software.
(b) At any time after a Default, Lessor may in its sole discretion declare
a default under this Agreement, any Lease and any other agreement between Lessee
(or any affiliate) and Lessor or its affiliate and may exercise any or all of
the following remedies: (i) provide written notice to Lessee of default; (ii) as
liquidated damages for loss of a bargain and not as a penalty, declare due and
payable (A) the entire balance of future Rent for the full term of the Lease,
discounted to present value at the agreed lease charge rate applicable to the
Lease or the lowest rate permitted by law, plus (B) if applicable, an amount
equal to the Fixed Purchase Option amount set forth in the Lease, discounted to
present value at the agreed lease charge rate applicable to the Lease or the
lowest rate permitted by law, plus (C) if applicable, Lessor's reasonable
estimate of the fair market value of like equipment, determined as of the date
of such Default, discounted to present value at the agreed lease charge rate
applicable to the Lease or the lowest rate permitted by law, plus (D) any Rent
or other amounts then due and payable under the Lease, plus (E) interest on such
sum accruing to the date of payment at the Overdue Rate (Section 17(f)). Lessor
has the right to require Lessee to make the Equipment and Software available to
Lessor or its agents during reasonable business hours or to return it to Lessor
as required by Section 14(a), or Lessor may repossess the Equipment and
Software, with or without legal process, provided that Lessor shall not breach
the peace in so doing. Lessor may, but is not required to, sell or lease the
Equipment in bulk or in individual pieces. If Lessor intends to sell the
Equipment, it may do so in a public or private sale and is not required to give
notice of such sale or of any advertising. The Equipment need not be displayed
at the sale. Lessee waives its right to object to the notice of the time or
place of sale or lease and to the manner and place of any advertising. Lessor
may, without paying rent or providing insurance, use the Equipment Location to
store the Equipment or conduct any sale. The proceeds of any sale or lease will
be applied in the following order of priorities: (1) to pay all of Lessor's
expenses in taking, moving, holding, repairing and disposing of the Equipment
and Software, if applicable; then, (2) to pay any late charges and accrued
interest; then, (3) to pay accrued and unpaid Rent together with the net present
value of any future Rent, the net present value of any Fixed Purchase Option or
any Estimated Fair Market Value of like equipment, and all other due and unpaid
sums. Any remaining proceeds will be used to reimburse Lessee for payments which
it made to reduce the amounts owed to Lessor in the preceding sentence. If the
Lease has a Fair Market Value Purchase Option, Lessor may keep any excess. If
the proceeds of any sale or lease are not enough to pay the amounts owed to
Lessor under this Section, Lessee will promptly pay the deficiency.
(c) Lessor's remedies for Default may be exercised instead of or in
addition to each other or any other legal or equitable remedies. Lessor has the
right to set-off any sums received from any source (including insurance
proceeds) against Lessee's obligations under each Lease. Lessee waives any
defense based on statutes of limitations or waiver of rights in actions for
damages. Lessor's waiver of any Default is not a waiver of its rights with
respect to a different or later Default.
14. OPTIONS. (a) At least ninety (90) days prior to the end of the term of
a Lease, or in the event of a Default, Lessee agrees, at its own expense and
risk, (i) to make the Equipment available for operational inspection by
potential purchasers, (ii) to have the manufacturer or an independent expert
selected by Lessor inspect, examine and certify that the Equipment is operating
within the manufacturer's specifications; and (iii) to provide that all
Equipment is cleaned and acceptable (free from all Lessee installed markings),
and in such condition so that it may be immediately installed and placed into
use in a similar operating environment.
(b) At the end of the term of a Lease, or in the event of a Default,
Lessee agrees, at its own expense and risk, (i) to immediately cease using the
Equipment and Software; (ii) to provide to Lessor one set of operating manuals
detailing Equipment configuration, operating requirements and other technical
data concerning the set-up and operation of the Equipment including replacement
and additions thereto, such that all documentation is completely up to date:
(iii) to pay for any repairs necessary to place the Equipment or Software in the
same condition as when received by Lessee, reasonable wear and tear excepted;
(iv) without unreasonable delay, to provide for the disassembly, deinstallation,
packing and transporting of the Equipment which shall include: (1)
deinstallation by the manufacturer's representative (including all wire, cable
and mounting hardware), (2) dismantling and handling in accordance with the
manufacturer's specifications or normal industry accepted practices for new
systems and (3) providing that all keys belonging to the Equipment are wired
together and secured to a major component of the system; and (v) to deliver the
Equipment and all copies of the Software, freight prepaid, to a carrier selected
by Lessor for shipment to a location selected by Lessor.
(c) At the end of the term of a Lease, Lessor has the right to attempt
resale of the Equipment from Lessee's facility with the Lessee's full
cooperation and assistance. Lessee agrees to provide to Lessor, at no expense to
Lessor, one hundred twenty (120) days of free storage. During this period the
Equipment must remain operational, provided with adequate electrical power,
lighting, heat or air conditioning necessary to maintain and demonstrate the
Equipment to any potential buyer.
(d) So long as no Default has occurred, Lessee has the option (i) to
purchase all and not less than all Equipment under a Lease at the end of the
Initial Term or any renewal term on an "AS-IS, WHERE-IS" BASIS WITHOUT
REPRESENTATION OR WARRANTY, for a cash purchase price as stated on the Schedule
equal to (A) if applicable, the Equipment's Fair Market Value (plus any
applicable sales taxes) determined as of the end of such Initial Term or such
renewal term, or (B) if applicable, any other stated Fixed Purchase Option
amount (plus any applicable sales tax) or (ii) to extend the Initial Term or any
renewal term of a Lease for the then Fair Market Rental of the Equipment. Unless
the Fixed Purchase Option price is $1.00, Lessee must give irrevocable written
notice at least thirty (30) days before the end of the Initial Term to Lessor
that it will purchase the Equipment or extend the Initial Term. If a Lease is
renewed, Lessee's obligations (other than the amount of Rent to be paid) will
remain unchanged. For the purposes of this Section, "Fair Market Value" or "Fair
Market Rental" means the price or rental which Lessee and Lessor agree to which
shall not be less than the price or rental which a willing buyer or lessee (who
is not a used equipment dealer) would pay for the Equipment in an arm's-length
transaction to a willing seller or lessor who is under no compulsion to sell or
lease the Equipment. In determining "Fair Market Value" or "Fair Market Rental":
(i) the Equipment's assumed to have been maintained and returned as required by
the Lease; (ii) in the case of any installed Equipment, the Equipment will be
valued on an installed basis, and (iii) costs of removal from the Equipment's
current location will not be included.
(e) At the end of the term of a Lease, or in the event of a Default, until
Lessee has complied with Sections 14 (a), and (b) or has purchased the Equipment
pursuant to Section 14(d), Lessee shall pay Lessor Rent, as liquidated damages
for lost rentals and not as a penalty, such payment to be computed on a daily
basis (with one day's rent being 1/30th of the Rent) until the Equipment is
returned or purchased. Lessee's obligations and all other provisions of the
Lease continue until such time.
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15. ASSIGNMENT. LESSOR MAY, WITHOUT NOTICE TO LESSEE, ASSIGN ITS INTEREST
IN A LEASE, ITS RIGHTS TO RECEIVE RENT AND OTHER SUMS DUE HEREUNDER AND ITS
RIGHTS IN THE EQUIPMENT, IF REQUESTED, LESSEE AGREES TO ACKNOWLEDGE, IN WRITING,
ANY ASSIGNMENT. LESSEE AGREES TO SUCH ASSIGNMENT, AND FURTHER AGREES THAT, BY
SUCH ASSIGNMENT: (1) THE ASSIGNEE SHALL NOT BE CHARGEABLE WITH OR ASSUME ANY OF
THE OBLIGATIONS OR LIABILITIES OF LESSOR, AND (2) THE ASSIGNEE SHALL HAVE ALL
THE RIGHTS OF LESSOR UNDER THE LEASE, INCLUDING BUT NOT LIMITED TO THE RIGHT TO
GIVE ALL CONSENTS, TO RECEIVE TITLE TO THE EQUIPMENT AND TO EXERCISE ALL
REMEDIES THEREUNDER, AND (3) LESSEE SHALL, IN ACCORDANCE WITH THE TERMS OF SUCH
LEASE AND ON INSTRUCTION FROM LESSOR, PAY ASSIGNEE ALL RENTS AND OTHER AMOUNTS
DUE UNDER SUCH LEASE AS AND WHEN DUE, WITHOUT DEDUCTION OR OFFSET,
NOTWITHSTANDING ANY CLAIM LESSEE MAY HAVE AGAINST LESSOR, OR RELATIVE TO THE
EQUIPMENT OR SOFTWARE, OR ANY OTHER CLAIM OF LESSEE ARISING PRIOR TO THE
ASSIGNMENT, AND (4) LESSEE WILL NOT ASSERT AGAINST THE ASSIGNEE ANY DEFENSE,
CLAIM, COUNTERCLAIM, OR SET-OFF ON ACCOUNT OF BREACH OF WARRANTY, BREACH OF
SERVICE AGREEMENT OR OTHERWISE IN ANY ACTION FOR RENT OR POSSESSION BROUGHT BY
LESSOR'S ASSIGNEE, AND WILL SETTLE ALL WARRANTY, MECHANICAL, SERVICE, OR OTHER
CLAIMS WITH RESPECT TO THE EQUIPMENT OR SOFTWARE DIRECTLY WITH THE LESSOR OR
SOFTWARE LICENSOR, AND ASSIGNEE SHALL NOT BE LIABLE FOR SUCH SERVICE OR OTHER
CLAIMS, LESSEE MAY ASSIGN A LEASE ONLY WITH THE PRIOR WRITTEN CONSENT OF LESSOR
OR ITS ASSIGNEE.
16. LESSEE'S WAIVERS. LESSEE AND LESSOR EACH WAIVE ALL RIGHTS TO TRIAL BY
JURY IN ANY LITIGATION ARISING FROM OR RELATED TO A LEASE. To the extent
permitted by applicable law, Lessee hereby waives all rights and remedies
conferred upon a Lessee by Article 2A (Sections 508-522) of the Uniform
Commercial Code, including but not limited to Lessee's rights to: (i) cancel or
repudiate a Lease; (ii) reject, revoke acceptance or accept partial delivery of
the Equipment or Software; (iii) recover damages from Lessor for any breach of
warranty or for any other reason; and (iv) grant a security interest in any
Equipment or Software in Lessee's possession. To the extent permitted by
applicable law, Lessee also hereby waives any rights now or hereafter conferred
by statute or otherwise (a) which may require Lessor to sell, lease or otherwise
use any Equipment or Software in mitigation of Lessor's damages hereunder, or
(b) which may otherwise limit or modify any of Lessor's rights or remedies
hereunder, or (c) which may require Lessor to provide Lessee with notice of
default or intent to accelerate amounts becoming due.
ANY ACTION BY LESSEE AGAINST LESSOR FOR ANY DEFAULT UNDER ANY LEASE,
INCLUDING BREACH OF WARRANTY OR INDEMNITY, SHALL BE COMMENCED WITHIN ONE (1)
YEAR AFTER ANY SUCH CAUSE OF ACTION ACCRUES. Lessor shall not be liable to
Lessee or any other party for specific performance of any Lease or for any
damages, losses, delays or failure to deliver the Equipment or Software.
17. MISCELLANEOUS. (a) Lessee agrees that (i) for income tax purposes
only, Lessor is treating Lessee as owner of any Equipment unless leased pursuant
to a Lease with a Fair Market Value Purchase Option and (ii) Lessee has not
received tax advice from Lessor. By signing a Lease with a Fixed Purchase
Option, Lessee agrees to pay Rent (consisting of an Equipment payment and, if
applicable, a Software payment) which includes a principal amount based on the
cost of the Equipment and the Software and a lease charge derived from a lease
charge (interest) rate. The lease charge portion of the monthly Equipment
payment and Software payment may be determined by applying to the Equipment
Total Cost the rate which will amortize such Equipment Total Cost (adjusting for
any Advance Rent) down to the amount of the Fixed Purchase Option at a constant
rate over the Initial Term by payment of the monthly Rent. The lease charge
(interest) rate is the constant rate referred to in the preceding sentence. The
lease charge (interest) rate can also be calculated using the Equipment Total
Cost as the present value, the Purchase Option as the future value, the Rent as
the payment and the stated Term. The lease charge (interest) rate may be higher
than the actual annual interest rate because of the amortization of certain
payments made to the Supplier, if applicable. LESSOR AND LESSEE EACH AGREE THAT
IT INTENDS TO COMPLY WITH ALL APPLICABLE LAWS, INCLUDING THOSE CONCERNING THE
REGULATION OF INTEREST. If this transaction were re-characterized as a
financing, no lease charge, late charge, or post maturity interest charge is
intended to exceed the maximum amount of time price differential or interest, as
applicable, permitted to be charged or collected by applicable law. If this
transaction were re-characterized as a financing and one or more of such charges
exceeded such maximum, then such charges will be reduced to the legally
permitted maximum charge and any excess charge will be used to reduce the
initial value of the Equipment or refunded. In no event shall Lessor charge or
receive nor shall Lessee pay any amounts in excess of those permitted by law.
(b) TIME IS OF THE ESSENCE IN EACH LEASE. Lessor's failure at any time to
require that Lessee strictly perform its obligations under any Lease will not
prevent Lessor from later requiring such performance. Lessee agrees, upon
Lessor's request, to sign any document presented by Lessor from time to time to
protect Lessor's rights in the Equipment and Software. Lessee also agrees to pay
Lessor's attorneys" fees and out-of-pocket expenses in protecting or enforcing
its rights under a Lease up to the amount permitted by law.
(c) All required notices will be considered to have been given if sent by
registered or certified mail or recognized overnight courier service to Lessor
at its address stated above and to Lessee at its address stated in the Lease or
to such other place as such addressee may have designated in writing.
(d) Each Lease constitutes the entire agreement of the parties with
respect to the lease of the Equipment and financing of the Software and
supersedes and incorporates all prior oral or written agreements or statements.
So long as there is no Default, Lessor shall not interfere with Lessee's quiet
enjoyment of the Equipment or Software. If a provision of a Lease is declared
invalid under law, the affected provision will be considered omitted or modified
to conform to applicable law. All other provisions will remain in full force and
effect.
(e) If Lessee fails to comply with any provision of a Lease, Lessor has
the right, but is not obligated, to have such provision brought into compliance.
This right is in addition to Lessor's right to declare a Default. All expenses
incurred by Lessor in bringing about such compliance will be considered
additional Rent which is due to Lessor within five (5) days after the date
Lessor sends to Lessee a written request for payment.
(f) In the event of any Default, all overdue payments will bear interest
at the Overdue Rate, which is the lower of twenty percent (20%) per annum or the
maximum rate allowed by law. Interest will accrue daily until payment in full is
received.
(g) If at Lessee's request, Lessor agrees in its sole discretion to permit
the early termination of any Lease, Lessee agrees to pay Lessor a fee to
compensate Lessor for its expenses and for the privilege of so doing.
(h) All of Lessor's rights (including indemnity rights) under a Lease
survive the Lease's expiration or termination, and are enforceable by Lessor,
its successors and assigns.
(i) Lessee hereby grants to Lessor the power to sign Lessee's name and
generally act on behalf of Lessee to execute and file financing statements,
notices of lien and other documents pertaining to any or all of the Equipment
(including the Software).
THIS AGREEMENT IS BINDING UPON LESSEE AND UPON EXECUTION, BY LESSOR AND IS
FOR THE BENEFIT OF THE PARTIES HERETO, AND THEIR PERMITTED SUCCESSORS AND
ASSIGNS. THIS AGREEMENT SHALL BE EFFECTIVE ONLY WHEN APPROVED AND EXECUTED BY
LESSOR AT ITS OFFICES IN CONNECTICUT, SHALL BE DEEMED TO BE MADE IN CONNECTICUT
AND SHALL BE GOVERNED BY CONNECTICUT LAW. LESSEE AGREES THAT ALL LEGAL ACTIONS
IN CONNECTION WITH THIS AGREEMENT MAY, AT LESSOR'S OPTION, TAKE PLACE IN
CONNECTICUT.
THE TERMS OF EACH LEASE SHOULD BE READ CAREFULLY, BECAUSE ONLY THOSE TERMS
INCLUDED HEREIN AND THEREIN AND NOT ANY ORAL PROMISES OR TERMS NOT INCLUDED IN A
WRITTEN LEASE ARE ENFORCEABLE. A LEASE MAY NOT BE CHANGED EXCEPT BY WRITTEN
AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTY AGAINST WHOM IT IS
TO BE ENFORCED. LESSEE IRREVOCABLY AUTHORIZES LESSOR TO PREPARE AND SIGN ON
BEHALF OF LESSEE ANY INSTRUMENT NECESSARY OR EXPEDIENT FOR FILING, RECORDING OR
PERFECTING THE INTEREST OF LESSOR IN EACH LEASE, THE RELATED EQUIPMENT OR
SOFTWARE AND THE PROCEEDS THEREOF AND AGREES TO PAY THE COST THEREOF AND OF
PREPARATION OF LEASE DOCUMENTATION.
NO LEASE ENTERED INTO IN CONNECTION WITH THIS AGREEMENT MAY BE CANCELED
PRIOR TO THE EXPIRATION OF THE INITIAL TERM WITHOUT THE PRIOR WRITTEN CONSENT OF
LESSOR. LESSEE WARRANTS TO LESSOR THAT THE EQUIPMENT AND SOFTWARE WILL BE USED
FOR BUSINESS OR COMMERCIAL PURPOSES ONLY.
LESSOR: 3M Financing Services LESSEE: 1199 Mac, Inc. dba Computer Imaging
By: By: /s/ Xxxxxx X. XxXxxxxx
------------------------- -----------------------
Xxxxxx X. XxXxxxxx
----------------------------- --------------------------
(Print or Type, Name) (Print or Type, Name)
PRESIDENT
----------------------------- --------------------------
(Print or Type Title) (Print or Type Title)
Date: Date:
------------------------- ---------------------
Social Security Or Taxpayer ID No.00-0000000
----------
4
3M Financing Services
Schedule No. 001
THIS SCHEDULE to Master Lease Agreement dated October 10, 1996 ("Schedule")
incorporates all of the terms of the referenced Master Lease Agreement
("Agreement"). This Schedule and the Agreement as it relates to this Schedule
constitutes a lease ("Lease") for the equipment including the applicable
software (collectively referred to as the "Equipment") described below between
3M Financing Services ("Lessor") and the Lessee indicated below. All terms used
and not defined in this Schedule have the definitions stated in the Agreement.
A. LESSEE: LEGAL NAME: 1199 Mac, Inc. dba Electronic Computer Imaging
TRADE NAME (if any):
ADDRESS: 0000 Xxxxx Xxxx Xxxxx X-0
Xxxxxxx Xxxxx, XX 00000
B. SUPPLIER: NAME: 3m Commercial Graphics
0X Xxxxxx
Xx Xxxx XX 00000
C. EQUIPMENT LOCATION:
Street Address: 0000 Xxxxx Xxxx Xxxxx X-0
Xxxxxx: Broward
City, State Zip: Xxxxxxx Xxxxx, XX 00000
D. DESCRIPTION OF EQUIPMENT: 3M Graphic Printer
Equipment Type/Model & Serial/ID Numbers Number of Units Cost
---------------------------------------- --------------- ------------
3M Graphic Printer 9612 1 $226,276.00
Color Image Processor(ultra sparc)
2.1 GB add'l Internal Disk Drive for color image
processo, Laminator, Orca III w/ silent air
compressor 3.0 software for 9612 Scanner, Howtek
D45OO including COSmyk Bd, Mounting Station Spare
Drum & cable, Color Densitometer (X-Rite 4O4G)
Equipment Price: $226,276.00
-----------
Sales Tax: $13,576.56
-----------
Freight:
-----------
Delivery and Installation:
-----------
Service
-----------
Other:
-----------
Equipment Total Cost: $239,852.56
-----------
L TRANSACTION TERMS:
Advance Rent: $9,277.36 Purchase Option (Equipment only):
Sales Tax: Fair Market Value
Total Advance Rent: $9,277.36 X Fixed $1.00
Fixed Purchase Option in GA, MD, NM, TX or WI: % Rate
Initial Term (# of Months): 36 (in Advance)
Monthly Rent: 3 at $0.00
(plus any 3 at $4,638.68
applicable 30 at $9,277.36
taxes) at
at
at
Commitment to Lease expires on 01/09/97 ("Expiration Date").
F. INDEXING: The Lease Rate Factor (determined by dividing Rent by Total
Equipment Cost) charged has been calculated, in part, using an interest rate
based on the 3-year U.S. Treasury Constant Maturity of 6.29% ("Original Treasury
Rate") as published in the Wall Street Journal on 9/16/96. This Lease Rate
Factor will be held for thirty (30) days to 10/31/96 (the "Rate Expiration
Date"). If Lessee does not accept the Equipment on or before the Rate Expiration
Date, the Lease Rate Factor will be adjusted as follows: If the rate of the
3-year U.S. Treasury Constant Maturity on the Monday immediately preceding the
Lease Commencement Date of Schedule No. 001 is greater or lesser than the
Original Treasury Rate, Rent under Schedule No, 001 will be increased or
decreased, as appropriate, by adjusting the Lease Rate Factor by approximately
0.00012 for each twenty-five (25) basis point change (or portion thereof, in
which case the adjustment will be pro-rated) from the Original Treasury Rate.
3M Financing Services
Schedule No. 002
THIS SCHEDULE to Master Lease Agreement dated October 10, 1996 ("Schedule")
Incorporates all of the terms of the referenced Master Lease Agreement
("Agreement"). This Schedule and the Agreement as it relates to this Schedule
constitutes a lease ("Lease") for the equipment including the applicable
software (collectively referred to as the "Equipment") described below between
3M Financing Services ("Lessor") and the Lessee indicated below. All terms used
and not defined In this Schedule have the definitions stated in the Agreement.
A. LESSEE: LEGAL NAME: 1199 Mac, Inc.
TRADE NAME (if any): dba Electronic Computer Imaging
ADDRESS: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxx Xxxxx, XX 00000
B. SUPPLIER: NAME: 0X
0X Xxxxxx
Xx. Xxxx XX 00000
C. EQUIPMENT LOCATION:
Street Address: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxx: Xxxxxxx
Xxxx, Xxxxx Zip: Xxxxxxx Xxxxx, XX 00000
D. DESCRIPTION OF EQUIPMENT: Graphics Equipment
Equipment Type/Model & Serial/ID Numbers Number of Units Cost
---------------------------------------- --------------- ------------
Used Raster Graphics 5442 1 $98,030.00
Color Image Processor 1
Ultra Sparc 1/200E with 2.1 Internal 1
& 9.1 External HD Color Image Processor 1
Software for Second WS 1
Adobe CPSI License for 5442 1
Adobe CPSI License for 36" TIJ Printer 1
Scotchprint Material 1
Equipment Price: $98,030.00
-----------
Sales Tax: $21,084.80
-----------
Freight:
-----------
Delivery and Installation: $1 ,900,00
-----------
Service
-----------
Other: Refinance 7004802-001 $251,483.29
-----------
Equipment Total Cost: $372,498.09
-----------
E. TRANSACTION TERMS:
Advance Rent: $16,479.32 Purchase Option (Equipment only):
Sales Tax: Fair Market Value
Total Advance Rant: $16,479.32 X Fixed $1.00
Fixed Purchase Option In GA, MD, NM,
TX or WI: % Rate
Initial Term (# of Months): 60 (in Advance)
Monthly Rental: 1 at $16,479.32
(plus any 58 at $8,239.66
applicable 1 at
taxes) at
at
at
Commitment to Lease expires on November 1, 1997 ("Expiration Date").
F. INDEXING: The Lease Rate Factor (determined by dividing Rent by Total
Equipment Cost) charged has been calculated, in part, using an interest rate
based on the 5-year U.S. Treasury Constant Maturity of 6.13% ("Original Treasury
Rate") as published in the Wall Street Journal on 07/21/97 This Lease Rate
Factor will be held for thirty (30) days to 09/25/97 (the "Rate Expiration
Date"). If Lessee does not accept the Equipment on or before the Rate Expiration
Date, the Lease Rate Factor will be adjusted as follows: If the rate of the
5-year U.S. Treasury Constant Maturity on the Monday immediately preceding the
Lease Commencement Date of Schedule No. 002 is greater or lesser than the
Original Treasury Rate, Rent under Schedule No. 002 will be increased or
decreased, as appropriate, by adjusting the Lease Rate Factor by approximately
0.00012 for each twenty-five (25) basis point change (or portion thereof, in
which case the adjustment will be pro-rated) from the Original Treasury Rate.
3M Financing Services
Annex B - Certificate of Acceptance
Annex B to Schedule No. 001 Effective Date: October 10, 1996 ("Schedule")
Master Lease Agreement Effective Date: October 10, 1996
(Schedule and Master Lease as it relates to the Schedule are referred to as the
"Lease")
To: 3M Financing Services (LESSOR):
A. LESSEE: LEGAL NAME: 1199 Mac, Inc.
TRADE NAME (if any): dba Electronic Computer Imaging
ADDRESS: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxx Xxxxx, XX 00000
B. EQUIPMENT LOCATION:
Street Address: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxx: Xxxxxxx
Xxxx, Xxxxx Zip: Xxxxxxx Xxxxx, XX 00000
C. DESCRIPTION OF EQUIPMENT (Including Software) 3M Graphic Printer
D. DELIVERY DATE:
Equipment Type/Model/Serial/ID Numbers Number of Units
-------------------------------------- ---------------
3M Graphic Printer 9612 1
Color Image Processor(ultra sparc)
2.1 GB add'l Internal Disk Drive for color image
processo, Laminator, Orca (II w/ silent air
compressor 3.0 software for 9612 Scanner, Howtek
D4500 including COSmyk Bd, Mounting Station Spare
Drum & cable, Color Densitometer (X-Rite 4O4G)
LESSEE, THROUGH ITS AUTHORIZED REPRESENTATIVE, CERTIFIES TO LESSOR THAT:
(a) All the Equipment (including Software) described in the Lease, as modified
above ("System"), has been delivered to and inspected by Lessee on the
Lease Commencement Date specified below pursuant to the terms of the
Lease;
(b) The System has been delivered and properly installed and is ready for
operation. Lessee acknowledges that it has inspected the System and finds
that the System performs in accordance with its published specifications;
(c) Lessee irrevocably accepts the System under the Lease as of the Lease
Commencement Date; and
(d) No event which would allow the Lessor to declare a Default (Section 13 of
the Master Lease Agreement) has occurred, and all of the representations
and warranties made in the Lease are true as of the Lease Commencement
Date.
LESSEE: 1199 Mac, Inc. dba Electronic Computer Imaging
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------
Xxxxxx X. XxXxxxxx
------------------------------
(Print or Type, Name)
PRESIDENT
------------------------------
(Print or Type Title)
Date of Acceptance/
Lease Commencement Date: ________
UPON EXECUTION, PLEASE MAIL TO:
3M Financing Services
ATTN: Xxxxxx Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
3M Financing Services
Annex B - Certificate of Acceptance
Annex B to Schedule No. 002 Effective Date: August 27, 1997 ("Schedule")
Master Lease Agreement Effective Date: October 10, 1996
(Schedule and Master Lease as it relates to the Schedule are referred to as the
"Lease")
To: 3M Financing Services (LESSOR):
A. LESSEE: LEGAL NAME: 1199 Mac, Inc.
TRADE NAME (if any): dba Electronic Computer Imaging
ADDRESS: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxx Xxxxx, XX 00000
B. EQUIPMENT LOCATION:
Street Address: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxx: Xxxxxxx
Xxxx, Xxxxx Zip: Xxxxxxx Xxxxx, XX 00000
C. DESCRIPTION OF EQUIPMENT (Including Software) Graphics Equipment
D. DELIVERY DATE:
Equipment Type/Model/Serial/ID Numbers Number of Units
-------------------------------------- ---------------
Used Raster Graphics 5442 1
Color Image Processor 1
Ultra Sparc 1/200E with 2.1 Internal 1
& 9.1 External HD Color Image Processor 1
Software for Second WS 1
Adobe CPSI License for 5442 1
Adobe CPSI License for 36" TIJ Printer 1
Scotchprint Material 1
LESSEE, THROUGH ITS AUTHORIZED REPRESENTATIVE, CERTIFIES TO LESSOR THAT:
(a) All the Equipment (including Software) described in the Lease, as modified
above ("System"), has been delivered to and inspected by Lessee on the
Lease Commencement Date specified below pursuant to the terms of the
Lease;
b) The System has been delivered and properly installed and is ready for
operation. Lessee acknowledges that it has inspected the System and finds
that the System performs in accordance with its published specifications;
(c) Lessee irrevocably accepts the System under the Lease as of the Lease
Commencement Date; and
(d) No event which would allow the Lessor to declare a Default (Section 13 of
the Master Lease Agreement) has occurred, and all of the representations
and warranties made in the Lease are true as of the Lease Commencement
Date.
LESSEE: 1199 Mac, Inc. dba Electronic Computer Imaging
By: /s/ Xxxxxx X. XxXxxxxx
--------------------------
Xxxxxx X. XxXxxxxx
------------------------------
(Print or Type, Name)
PRESIDENT
------------------------------
(Print or Type Title)
Date of Acceptance/
Lease Commencement Date: 10/29/97
--------
UPON EXECUTION, PLEASE MAIL TO:
3M Financing Services
ATTN: Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Fax 000-000-0000
Phone 000-000-0000 x0000
3M Financing Services
Schedule No. 001
THIS SCHEDULE to Master Lease Agreement dated October 10, 1996 ("Schedule")
Incorporates all of the terms of the referenced Master Lease ("Agreement"). This
Schedule and the Agreement as it relates to this Schedule constitutes a lease
("Lease") for the equipment including the applicable software (collectively
referred to as the "Equipment") described below between 3M Financing Services
("Lessor") and the Lessee indicated below. All terms used and not defined in
this Schedule have the definitions stated in the Agreement.
A. LESSEE: LEGAL NAME: 1199 Mac, Inc.
TRADE NAME (if any): dba Electronic Computer Imaging
ADDRESS: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxxx Xxxxx, XX 00000
B. SUPPLIER: NAME: 3M Commercial Graphics
0X Xxxxxx
Xx. Xxxx XX 00000
C. EQUIPMENT LOCATION:
Street Address: 0000 Xxxxx Xxxx, Xxxxx X-0
Xxxxxx: Xxxxxxx
Xxxx, Xxxxx Zip: Xxxxxxx Xxxxx, XX 00000
D. DESCRIPTION OF EQUIPMENT: 3M Graphic Printer
Equipment Type/Model & Serial/ID Numbers Number of Units Cost
---------------------------------------- --------------- ------------
3M Graphic Printer 9612 1 $226,276.00
Color Image Processor(ultra sparc)
2.1 GB add'l Internal Disk Drive for color image
processo, Laminator, Orca III w/ silent air
compressor 3.0 software for 9612 Scanner, Howtek
D4500 including COSmyk Bd, Mounting Station Spare
Drum & cable, Color Densitometer (X-Rite 4O4G)
Equipment Price: $226,276.0
-----------
Sales Tax: $13,576.56
-----------
Freight:
-----------
Delivery end Installation:
-----------
Service
-----------
Other:
-----------
Equipment Total Cost: $239,852.56
-----------
E. TRANSACTION TERMS:
Advance Rent: $9,277.36 Purchase Option (Equipment only):
Sales Tax: Pair Market Value
Total Advance Pent: $9,277.36 X Fixed $1.00
Fixed Purchase Option in GA, MD,
NM, TX or WI: % Rate
Initial Term (# of Months): 36 (In Advance)
Monthly Rent: 3 at $0.00
(plus any 3 at $4,638,68
applicable 30 at $9,277.33
taxes) at
at
Commitment to Lease expires on O1/O9/97 ("Expiration Date")
F. INDEXING: The Lease Rate Factor (determined by dividing Rent by Total
Equipment Cost) charged has been calculated, in part, using an interest rate
based on the 3-year U.S. Treasury Constant Maturity of 6.29% ("Original Treasury
Rate") as published in the Wall Street Journal on [ILLEGIBLE]. This Lease
Rate Factor will be held for thirty (30) days to 10/31/36 (the "Rate Expiration
Date"). If Lessee does not accept on or before the Rate Expiration Date, the
Lease Rate Factor will be adjusted as follows: If the rate of the 3-year U.S.
Treasury Constant Maturity on the Monday immediately preceding the Lease
Commencement Date of Schedule No. 001 is greater or lesser than the Original
Treasury Rate, Rent under Schedule No. 001 will be increased or decreased, as
appropriate, by adjusting the Lease Rate Factor by approximately 0.00012 for
each twenty-five (25) basis point change (or portion thereof, in which case the
adjustment will be pro-rated) from the Original Treasury Rate.
