Authorized Financial Services
Digital Financial Services
Master Lease Agreement No. 6713377
MASTER LEASE AGREEMENT dated as of October 23, 1997 by and between Digital
Financial Services, a division of General Electric Capital Corporation
(hereinafter, called "Lessor"), having its principal place of business at
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and Netter Digital
Entertainment, Inc. (hereinafter called "Lessee") having its principal place
of business at 0000 Xxxxxxxxxx Xxxxxxxxx , Xxxxx Xxxxxxxxx, XX 00000.
Lessee and Lessor hereby agree to the Terms and Conditions of Lease set forth
below on pages 1 through 4, and further agree that the only amendment,
modification or waiver of the terms hereof must be in writing signed by both
parties. THIS AGREEMENT AND EACH LEASE WILL BE GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
LESSEE: Netter Digital Entertainment, Inc. LESSOR: Digital Financial
Services, a division of General Electric Capital Corporation
By: By:
(signature)
(signature)
Xxxxx X. X'Xxxx-XxXxxxx
(Print Or Type Name) (Print Or Type Name)
Sr. Lease Administrator
(Print Or Type Title) (Print Or Type Title)
TERMS AND CONDITIONS OF LEASE
0.XXXXX OF PROPERTY
Lessor agrees to lease to Lessee, subject to the terms of this Master
Lease Agreement (this 'Agreement) the equipment (the "Equipment") and/or
software ("Software") listed on each schedule executed from time to time
pursuant to this Agreement (each, an "Equipment Schedule").
Each Equipment Schedule shall be substantially in either the form
annexed hereto as Schedule "A" Commercial or Schedule "A" Tax Oriented, shall
incorporate by reference therein all of the terms and conditions of this
Agreement and shall include such other terms and conditions upon which the
parties may agree.
Each Equipment Schedule will constitute a separate agreement (each, a
"Lease') for the lease of the Equipment and, if applicable, for the payment
of any software license fee being financed ("Software License Fee") with
respect to items of operating or application Software listed on such
Equipment Schedule.
Lessor and Lessee agree that each Lease is a "Finance Lease" as defined
by Section 1 03 of Article 2A of the Uniform Commercial Code, and that Lessor
has not selected, manufactured or supplied the Equipment and/or Software, and
is acquiring the Equipment for the purposes of leasing it to Lessee pursuant
to the Lease.
2. TERM
The term of this Agreement shall commence on the date set forth above and
shall continue in effect thereafter as long as any Lease entered into
pursuant to this Agreement remains in effect. The term of each Lease shall
commence on the date the Equipment and/or Software is accepted by Lessee as
set forth in Section 6 "Delivery and Lessee Acceptance" ("Commencement Date")
and shall continue thereafter for the number of months/years set forth in
such Lease ("Initial Term").
3. LEASE PAYMENTS
As rent ("Lease Payments") for the Equipment and/or Software subject to
any Lease, Lessee hereby agrees to pay the amounts specified in the related
Equipment Schedule at the times specified therein. LESSEE AND LESSOR
ACKNOWLEDGE THAT EACH LEASE CONSTITUTES A NET LEASE AND SUCH LEASE PAYMENTS
ARE TO BE MADE WITHOUT NOTICE OR DEMAND AND WITHOUT ABATEMENT, DEDUCTION OR
SET-OFF OF ANY AMOUNT WHATSOEVER, AND LESSEE FURTHER ACKNOWLEDGES THAT ITS
OBLIGATION TO PAY LEASE PAYMENTS AND ANY OTHER AMOUNTS OWING HEREUNDER AND
UNDER ANY LEASE SHALL BE ABSOLUTE AND UNCONDITIONAL. LESSEE AGREES THAT NO
LEASE ENTERED INTO IN CONNECTION WITH THIS AGREEMENT MAY BE TERMINATED EXCEPT
AS EXPRESSLY PROVIDED HEREIN.
Lease Payments shall be paid to Lessor at the address of Lessor set forth
above or at such other address as Lessor may designate from time to time in
writing or, if such Lease Payments are payable to an Assignee (as such term
is defined in Section 1 7 hereof), then at the address designated from time
to time by such Assignee in writing.
Any Lease Payments or other sums payable under any Lease which are not
paid when due shall be subject to a late charge of five cents ($.05) per
dollar on and in addition to such Lease Payment or other sum, or such lesser
amount as may be the maximum permitted by law, to compensate Lessor for
additional collection costs not contemplated by the Lease.
4. ASSIGNMENT OF PURCHASE DOCUMENTS
Lessee hereby assigns to Lessor all of Lessee's rights and interest in
and to: (a) the Equipment described in any Equipment Schedule and lb) any
purchase order, contract or other documents (collectively, 'Purchase
Documents) relating thereto that Lessee has entered into with the seller of
the Equipment as specified in such Equipment Schedule (the 'Seller). The
foregoing assignment is an assignment of rights only, and Lessee shall remain
liable for all obligations under the Purchase Documents except for the
obligation to pay for the Equipment as described in Section 7 hereof. If the
Seller is not Digital Equipment Corporation, Lessee shall deliver to Lessor a
writing acceptable to Lessor whereby Seller acknowledges, and provides any
required consent to, such assignment. If Lessee has not entered into any
Purchase Document for the Equipment with Seller, Lessee authorizes Lessor to
act as Lessee's agent to issue a purchase order to Seller for the Equipment
and for associated matters and such purchase order shall be considered a
Purchase Document for the purposes of this Section 4. By entering into the
applicable Equipment Schedule, Lessee represents and warrants that Lessee
either (y) has reviewed, approved and received a copy of the associated
Purchase Documents or (z) has been informed by Lessor (i) of the identity of
the Seller, (ii) that Lessee may have rights under the Purchase Documents and
(iii) that Lessee may contact Seller for a description of such rights.
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5. SOFTWARE PRODUCT LICENSE AND FINANCING OF LICENSE FEE
Lessee acknowledges that any Software listed on any Equipment Schedule or
incorporated as a component of any Equipment listed on such Equipment
Schedule is furnished to Lessee under separate software product license or
licenses with the licensor thereof (Licensor'). -Any separately stated
license fee for such Software is shown on the applicable Equipment Schedule
as the Software License Fee. Lessee's rights to the Software are governed by
its license agreement with the Licensor. Lessee shall have a continuing
right to use the Software with the Equipment (or as otherwise provided) in
accordance with the terms and conditions of such license agreement upon
payment of all amounts due under the applicable Lease.
6. DELIVERY AND LESSEE ACCEPTANCE
Lessee shall cause the Equipment and/or Software to be delivered to Lessee
at the location shown on the applicable Equipment Schedule and Lessee shall
accept the Equipment and/or Software as soon as it is delivered or, if
acceptance criteria is specified in the applicable Purchase Documents or
Software license, as soon as it has met such criteria. Lessee shall evidence
its acceptance of the Equipment and/or Software and commencement of the Lease
with respect thereto by executing and delivering to Lessor a Certificate of
Acceptance substantially in the form of Schedule B hereto. By such execution
and delivery, Lessee (a) represents and warrants that it has selected the
Equipment and Software, lb) irrevocably accepts such Equipment and Software
subject to the Lease, and (c) confirms the Commencement Date of the Lease.
7. PURCHASE OF EQUIPMENT
Provided that no Event of Default (as defined in Section 22) exists, and no
event has occurred and is continuing that with notice or lapse of time or
both constitutes an Event of Default, Lessor shall be obligated to purchase
the Equipment from Seller and advance the Software License Fee to the
Licensor, as the case may be, and to lease the same to the Lessee if (and
only if) Lessor receives on or before the "Latest Commencement Date" set
forth in the applicable Equipment Schedule, the related Certificate of
Acceptance and said Equipment Schedule (both executed by the Lessee), and
such other documents and assurances as Lessor may reasonably request. If for
any reason a Lease does not commence by such Latest Commencement Date, Lessor
shall have no obligation to purchase the Equipment or advance the Software
License Fee, and Lessor may reassign to Lessee all rights under the Purchase
Documents and Lessee shall be liable to Seller and Licensor for any payment
due under the Purchase Documents or any Software license documents,
respectively. Notwithstanding anything herein to the contrary, if there is a
material adverse change in Lessee's financial condition prior to the
Commencement Date of any Lease, Lessor may, upon notice, cancel its
obligations under such Lease to lease the Equipment and/or Software to
Lessee.
8. QUIET ENJOYMENT AND DISCLAIMER OF WARRANTIES
(a) So long as Lessee shall not be in default of any of the provisions of
this Agreement and any Lease, neither Lessor nor any Assignee of Lessor will
disturb Lessee's quiet and peaceful possession of the Equipment and/or
Software and Lessee's unrestricted use thereof for the purposes intended.
(b) Disclaimer of Warranties: Lessee acknowledges that it has made the
selection of each item of Equipment and Software based upon its own judgment
and expressly disclaims any reliance upon statements made by Lessor. LESSOR
MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE EQUIPMENT AND SOFTWARE AND
HEREBY DISCLAIMS THE SAME. LESSOR SHALL HAVE NO LIABILITY FOR ANY DAMAGES,
WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL, INCURRED BY LESSEE AS A RESULT OF ANY DEFECT OR MALFUNCTION OF
THE EQUIPMENT OR SOFTWARE. LESSEE SHALL LOOK SOLELY TO THE EQUIPMENT SELLER
OR SOFTWARE LICENSOR FOR ANY AND ALL CLAIMS RELATED TO THE EQUIPMENT OR
SOFTWARE. LESSEE UNDERSTANDS AND AGREES THAT NEITHER THE SELLER NOR THE
LICENSOR NOR ANY SALESPERSON OR AGENT OF THEM IS AN AGENT OF LESSOR. NO
SALESPERSON OR AGENT OF THE SELLER OR LICENSOR IS AUTHORIZED TO WAIVE OR
ALTER THIS AGREEMENT OR ANY LEASE, AND NO REPRESENTATION BY THEM SHALL IN ANY
WAY AFFECT LESSEE'S DUTY TO PAY THE LEASE PAYMENTS AND PERFORM ITS
OBLIGATIONS UNDER ANY LEASE. LESSOR HEREBY ASSIGNS TO LESSEE, FOR AND DURING
THE TERM OF THE APPLICABLE EQUIPMENT SCHEDULE, ANY WARRANTY ON THE EQUIPMENT
OR SOFTWARE PROVIDED BY THE SELLER OR LICENSOR.
9. TITLE, LOCATION AND INSPECTION
Title to each item of Equipment leased hereunder shall remain with Lessor
at all times and Lessee shall have no right, title or interest therein except as
expressly set forth in the Lease of such Equipment. Lessee at its expense
will protect and defend Lessor's title and the interest of any Assignee to
the Equipment and will keep the Equipment free and clear from any and all
claims, liens, encumbrances and legal processes of Lessee's creditors and
other persons.
Lessee shall not move any Equipment from the location shown on the
applicable Equipment Schedule without in each instance obtaining Lessor's prior
written consent thereto. All items of Equipment shall at all times be and
remain personal property notwithstanding that any such Equipment may now or
hereafter be attached or fixed to realty. Lessee shall keep all Equipment
free from any marking or labeling which might be interpreted as a claim of
ownership thereof by Lessee or any party other than Lessor or anyone so
claiming through Lessor.
Lessor shall have the right, upon reasonable prior notice to Lessee and
during Lessee's regular business hours, to inspect the Equipment at its
location.
Lessee shall, upon request of Lessor, make Lessee's log and maintenance
records pertaining to the Equipment available to Lessor for inspection.
10. RETURN OF EQUIPMENT
Upon termination (by expiration or otherwise) of each Lease and unless the
Equipment is purchased as provided in the applicable Equipment Schedule,
Lessor or such other party as may be appointed by Lessor shall, at Lessee's
sole cost and expense, de-install the Equipment and prepare the Equipment for
return to Lessor. Lessee shall, pursuant to Lessor's instructions and at
Lessee's sole cost and expense (including, without limitation, expenses of
transportation and in-transit insurance), return the Equipment to Lessor in
the same operating order, repair, condition and appearance as when received,
except for normal depreciation and wear and tear, and eligible for a
maintenance contract with the manufacturer or the Equipment at standard
rates. Lessee shall return the Equipment to Lessor at such address within
the continental United States as directed by Lessor.
11. USE AND MAINTENANCE
Lessee shall use the Equipment in a good and careful manner and in
compliance with applicable operating instructions and all applicable laws and
regulations, including without limitation all applicable environmental laws
and regulations, and for no purpose other than that for which such Equipment
was designed.
Lessee, at its sole cost and expense, shall maintain the Equipment in good
repair, condition and working order, shall enter into and maintain in full
force and effect during the term of the applicable Lease a standard
maintenance contract with the Seller or such other party reasonably
acceptable to Lessor, and shall comply with all of its obligations contained
therein. Lessee shall, at Lessor's request, provide Lessor with a copy of
such maintenance contract. All parts furnished in connection with such
maintenance or repairs shall become property of Lessor and part of the
Equipment for all purposes hereof.
12. ALTERATIONS AND ATTACHMENTS
Without the prior written consent of Lessor, Lessee shall not make any
alterations, modification or attachments to the Equipment. All such
permitted alterations, modifications and attachments made to the Equipment
which cannot be readily removed without materially damaging the functional
capabilities or economic value of the Equipment shall become the property of
the Lessor and a part of the Equipment for all purposes hereof.
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13. INSURANCE
For the entire term of each Lease and until Lessee returns or purchases the
Equipment pursuant to the terms of such Lease, Lessee shall obtain and
maintain at its own expense, (a) insurance against the loss of or damage to
the Equipment including, without limitation, loss by fire or other casualty,
and (b) public liability and property damage insurance. All such insurance
shall be in such amounts, in such form and with such insurers as shall be
satisfactory to Lessor. Each insurance policy will name Lessee as an insured
and Lessor as an additional insured and loss payee, and shall contain a
clause requiring the insurer to give Lessor at least thirty (30) days prior
written notice of any alteration in the terms of such policy or of the
cancellation thereof. Lessee shall furnish to Lessor a certificate of
insurance or other evidence showing that such insurance coverage is in
effect. Lessee further agrees to give Lessor prompt notice of any insurance
claims made or to be made pursuant to this Section. Lessee shall immediately
upon notice from Lessor cause any Assignee to be named as additional insured
and/or loss payees, as their interests may appear, under any insurance policy
carried by Lessee with respect to the Equipment.
14. TAXES
In addition to Lease Payments as provided for herein, Lessee shall pay when
due all fees, assessments and sales, use, property, excise and other taxes or
levies of whatever nature now or hereafter imposed by any governmental body
or agency upon any Lease or any Equipment and/or Software; provided, however,
Lessee shall not be liable for any corporate franchise taxes and/or taxes
imposed upon the net income of Lessor. Applicable sales and use taxes will
be added to the Lease Payments unless Lessee provides evidence of direct
payment authority or an exemption certificate valid in the state to which the
Equipment will be shipped.
15. RISK OF LOSS
Lessee hereby assumes and bears the entire risk of loss, theft, damage to
or destruction of the Equipment during the continuance of the applicable Lease.
No such event shall relieve Lessee from its obligation to make Lease Payments
or to perform any of its other obligations or pay any other sums payable by
Lessee or under such Lease, except if such Lease terminates pursuant to
Subsection (c) below.
In the event of loss or damage to any Equipment, Lessee shall immediately
give notice thereof to Lessor and Lessee shall, at the option of Lessor:
(a) place such Equipment in good repair, condition and working order, or
(b) replace such Equipment with identical Equipment in good repair,
condition and working order, with clear title thereto in Lessor, or
(c) pay to Lessor in cash within thirty (30) days after demand therefor an
amount equal to the total Lease Payments and other sums then due and owing under
such Lease and either (i) the appropriate sum (herein called "Stipulated Loss
Value") set forth in the applicable Lease or (ii) if no such Stipulated Loss
Value is so set forth in said Lease, the amount of all Lease Payments remaining
and to become due thereunder with respect to the affected Equipment plus the
option price contained in any applicable purchase option set forth in said Lease
and the amount equal to any increased tax liability to Lessor, including
interest and penalties, arising from the loss to Lessor of any Federal tax
benefits under the Internal Revenue Code of 1986, as may be amended, with
respect to such Lease and the affected Equipment.
Upon payment by Lessee as aforesaid, Lessor shall transfer to Lessee,
WITHOUT RECOURSE OR WARRANTY, EXPRESS OR IMPLIED (except for usual warranties of
title), all of Lessor's right, title and interest, if any, in such Equipment
on an "AS IS", "WHERE IS" basis. The proceeds of any insurance payable with
respect to any loss or damage to the Equipment shall be applied at the option
of Lessor either towards (i) Lessee's replacement, restoration or repair of
the Equipment or (ii) payment of any of Lessee's other obligations under the
applicable Lease. Lessee hereby appoints Lessor as Lessee's attorney-in-fact
to make claim for, or receive payment of and execute and endorse all
documents, checks or drafts issued with respect to such loss or damage under
any insurance policy relating thereto.
16. NO ASSIGNMENT BY LESSEE
LESSEE SHALL NOT TRANSFER, SELL, ASSIGN, SUBLET, SUBLICENSE, PLEDGE OR
OTHERWISE DISPOSE OF, ENCUMBER OR SUFFER A LIEN OR ENCUMBRANCE UPON OR
AGAINST LESSEE'S INTEREST IN ANY LEASE OR THE EQUIPMENT WITHOUT IN EACH SUCH
INSTANCE OBTAINING THE PRIOR WRITTEN CONSENT OF LESSOR THERETO. Any attempt
by Lessee to do any of the foregoing without such consent shall be null and
void. Lessor's consent to any of the foregoing acts shall not constitute
consent to any other similar act nor shall such consent relieve Lessee from
its duty to fully perform all of its agreements, covenants and conditions set
forth in such Lease.
17. ASSIGNMENT BY LESSOR
Lessee acknowledges that Lessor may (i) sell and assign its interest in
each Lease, the Lease Payments due thereunder and the Equipment and Software
listed therein, in whole or in part to an assignee (the 'Assignee) which may
be represented by a bank or trust company acting as a trustee of such
Assignee. LESSEE ACKNOWLEDGES THAT ANY ASSIGNMENT OR TRANSFER BY LESSOR OR
ANY ASSIGNEE SHALL NOT MATERIALLY CHANGE LESSEE'S OBLIGATIONS UNDER THE
ASSIGNED LEASE.
Any Assignee shall be entitled to enforce all the rights so assigned but
shall be under no obligation to Lessee to perform any of Lessor's obligations
under the assigned Lease, the sole remedy of Lessee being against Lessor with
Lessee's rights against Lessor being unaffected except as provided herein.
Lessee agrees that upon notice of assignment of this Lease, it shall pay
directly to the Assignee, unconditionally, all amounts which become due
hereunder. Lessee specifically covenants and agrees that it will not assert
against any Assignee any claims by way of abatement, defense, set-off,
counterclaim, recoupment or otherwise which Lessee may have against Lessor or
any third party and LESSEE SHALL NOT ASSERT AGAINST SUCH ASSIGNEE IN ANY
ACTION FOR LEASE PAYMENTS OR OTHER MONIES PAYABLE HEREUNDER ANY DEFENSE
EXCEPT THE DEFENSE OF PAYMENT TO SUCH ASSIGNEE.
18. REPRESENTATIONS AND WARRANTIES OF LESSEE
Lessee hereby represents, warrants and covenants that, with respect to this
Agreement and each Lease executed pursuant hereto:
(a) the execution, delivery and performance thereof by Lessee have been
duly authorized by all necessary corporate action and shall not contravene any
law or the provisions of any agreement to which Lessee is bound;
(b) the individual executing such was duly authorized to do so;
(c) this Agreement and each such Lease constitute legal, valid and binding
agreements of Lessee enforceable in accordance with their
respective terms;
(d) all financial statements furnished to Lessor are true and correct in
all material respects and Lessee shall furnish Lessor with its annual
audited financial statements and such other financial information as Lessor
may reasonably request from time to time;
(e) the Equipment is personal property and when subjected to use by the
Lessee will not be or become a fixture under applicable law; and
(f) the Equipment and/or Software will be used for business or commercial
purposes only, and not for consumer, personal, home, family,
or agricultural purposes.
19. GENERAL INDEMNITY
Lessee shall and does hereby agree to defend, indemnify and hold Lessor and
any Assignee harmless from and against any and all claims, costs, expenses,
damages and liabilities, including reasonable attorneys' fees, arising out of
or pertaining to the lease, possession, ownership, licensing, operation,
control, use, maintenance, delivery or return of the Equipment and Software.
Lessor and any Assignee may, at its option and at its sole expense,
participate in any such action with counsel of its own choice. The
provisions of this Section shall survive any expiration or other termination
of this Agreement and any Lease.
20. FURTHER ASSURANCES
If requested by Lessor, Lessee shall promptly secure, execute, and/or
deliver to Lessor such further documents and take such further action
as Lessor shall deem necessary or desirable to carry out the intent and
purpose of this Agreement or any Lease and to protect Lessor's interest in
the Equipment and/or Software. Lessor is hereby authorized by Lessee, at
Lessee's expense, to cause this Agreement, any Lease or any other statement
or instrument showing the interest of Lessor and any Assignee in the
Equipment to be filed and Lessee agrees to execute and deliver Uniform
Commercial Code financing statements or other documents reasonably requested
by Lessor for such purpose.
21. NOTICES
All notices and other communications made or required to be given under
this Agreement and any Lease shall be in writing and shall be deemed given upon
receipt when sent certified mail, return receipt requested, postage prepaid,
if to Lessor, at the address set forth in the applicable Equipment Schedule
with a copy to any Assignee at the addresses) set forth in any notice thereof
given to Lessee and if to Le,%see, at the address set forth in the applicable
Equipment Schedule or to such other addresses) as either party shall
hereafter designate by notice to the other.
22. DEFAULT
The occurrence of any one or more of the following events (each herein
called"An event of Default") shall constitute a default under this called
agreement:
(a) default by Lessee in the payment of any Lease Payments or other sum
payable by Lessee under any Lease which continues for ten (10) days after
the due date for such payment; or
(b) default by Lessee or any guarantor of Lesse in the performance of any
other term, covenant or conditionof this agreement or any Lease or garanty of
Lessee's obligations hereunder or thereunder; or the inaccuracy in any
material respect of any representation or warranty made by Lessee or any such
guarantor ("Guarantor') hereunder or thereunder or in any document or
certificate furnished to Lessor in connection herewith or therewith, and such
default or inaccuracy continues for a period of fifteen (15) days after
written notice thereof from Lessor; or
(c) Lessee or Guarantor shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver or either shall be appointed for Lessee or Guarantor or
for a substantial part of its property without its consent, or bankruptcy,
arrangement, reorganization or insolvency proceedings shall be instituted by
or against Lessee or Guarantor, or Lessee or Guarantor shall dissolve or
otherwise terminate its corporate existence or sell, transfer or dispose of
all or substantially all of its assets or stock; or
(d) Lessee shall be in default under any other lease, equipment
schedule or other agreement at any time executed with Lessor or any Assignee.
23. REMEDIES
(a) Upon the occurrence of any one or more Events of Default
(hereinafter the 'Default Date'), and at any time thereafter, Lessor may, at
its option and without notice, exercise any remedy afforded by law
(including those of equitable relief) and/or any one or more of the following
remedies: (i) enter the premises where the Equipment and/or Software is
located and repossess the same without any process of law and without
any liability for storage or otherwise (except that Lessor shall be liable
for damages resulting from the negligence of Lessor or its agents in any such
entry or repossession); (ii) terminate this Agreement upon written notice to
Lessee, with respect to all or any Leases entered into hereunder (which
termination shall be without prejudice to any of Lessor's other rights
hereunder); (iii) demand immediate payment of the following which Lessor and
Lessee expressly acknowledge and agree shall constitute fair damages for
breach of this Lease (Damages'): the sum of (x) the total amount of all Lease
Payments payable from the Default Date to the end of the Initial Term (or if
such Default Date occurs during any renewal thereof, then to the expiration
of such renewal term), discounted to present value as of the Default Date,
plus (y) the Equipment's anticipated residual value at the end of the Initial
Term or if renewed, at the end of any renewal term, discounted to present
value as of the Default Date, all of which shall become immediately due and
payable; or (iv) retain, sell or lease the Equipment. If the Equipment is
sold, then Lessor shall apply to the Damages the proceeds of such sale. If
the Equipment is re-leased, Lessor shall apply to the Damages the total
stipulated lease payments under the new lease to the end of the initial Term
of the Lease in default or any renewal term thereof if applicable, discounted
to present value as of the Default Date. For the purposes of this Section
23, discounted present value shall be computed on the basis of the lease
charge rate inherent in the Lease.
(b) In any event Lessee shall pay to Lessor on demand (i) all costs,
including reasonable attorneys' fees, incurred by Lessor in collecting any
sums due from Lessee, or in protecting, repossessing, storing, moving,
repairing, preparing for sale or lease and in selling or leasing the
Equipment (ii) all past due Lease Payments, late charges and other amounts due
but unpaid as of the Default Date; and (iii) an amount equal to any increased
tax liability to Lessor, including interest and penalties, arising from the
loss to Lessor of any Federal tax benefits under the Internal Revenue Code of
1986, as may be amended, with respect to this Agreement or any Lease,
including but not limited to any increased tax liability due to any
disallowance or recapture of all or any portion of any Accelerated Cost
Recovery System deductions or interest deductions whether such disallowance
or recapture is caused by an Event of Default or by Lessor's exercise of any
of its remedies hereunder.
(c) Each of Lessor's remedies provided herein or by law, shall be
cumulative to and not exclusive of every other remedy, and remedies may be
exercised simultaneously or cumulatively in Lessor's discretion. No failure
or delay by Lessor to exercise any right or remedy shall be a waiver thereof,
nor shall any written waiver or consent extend to any instance other than the
one for which it is given.
24. MISCELLANEOUS
(a) Lessor and Lessee acknowledge that there are no agreements or
understandings, written or oral, between Lessor and Lessee with respect to
the Equipment and/or Software except as set forth herein and in each Lease
and that each such Lease, incorporating the terms of this Agreement, contains
the entire agreement between Lessor and Lessee with respect thereto. Neither
this Agreement nor any Lease may be altered, modified, terminated or
discharged except by a writing signed by both parties.
(b) TIME IS OF THE ESSENCE WITH RESPECT TO EACH LEASE EXECUTED PURSUANT
HERETO.
(c) The captions set forth herein and in each Equipment Schedule are
for convenience only and shall not define or limit any of the terms herein or
therein.
(d) Each Lease shall become effective and binding as of the date each
is accepted by Lessor in the Commonwealth of Massachusetts, and, upon such
date such Lease shall be binding upon and inure to the benefit of both
parties hereto and their respective legal representatives, successors and
assigns, unless otherwise expressly provided herein.
(e) All agreements, representations, indemnities and warranties made by
Lessee in this Agreement or any Lease, or any document delivered pursuant
hereto or thereto shall be for the benefit of Lessor and any Assignee and
shall survive the expiration or sooner termination of this Agreement or such
Lease.
(f) EACH OF LESSEE AND LESSOR WAIVES TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, ANY LEASE EXECUTED
PURSUANT HERETO, OR ANY TRANSACTION CONTEMPLATED HEREBY. To the extent
permitted by applicable law, Lessee hereby waives any and all rights and
remedies conferred on Lessee by Sections 508 through 522 of Article 2A of the
Uniform Commercial Code. To the extent permitted by applicable law, Lessee
also hereby waives any rights now or hereafter conferred by statute or
otherwise which may require Lessor to sell, lease or otherwise use any
Equipment or Software in mitigation of Lessor's damages hereunder or which
may otherwise limit or modify any of Lessor's rights or remedies hereunder.
No omission or delay by Lessor at any time to enforce any right or remedy
reserved to it or to require performance by Lessee of any of the terms,
covenants or provisions of this Agreement or any Lease at the times
designated herein or therein, shall be a waiver of any such right or remedy
to which Lessor is entitled, nor shall it in any way affect the right of
Lessor to thereafter enforce such provisions.
(g) If any term or provision of this Agreement or any Lease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Agreement or such Lease or
the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be
affected thereby and each term and provision, of this Agreement and any such
Lease shall be valid and enforceable to the fullest extent permitted by law.
(h) If requested by Lessor, Lessee, upon execution of this Agreement
and thereafter upon execution of each Lease shall provide -Lessor with
certified resolutions and an opinion from Lessee's counsel addressed to
Lessor and if requested by Lessor to any Assignee with respect to the
representations and warranties contained in this Agreement and such Lease and
shall also supply such other documents as Lessor or such Assignee may
reasonably request.
(i) If more than one Lessee is named in this Agreement or in any
Lease, the liability of each such Lessee shall be joint and several.
Digital Financial Services
Schedule A (Tax Oriented) Financial Services
Equipment Schedule No. 001 dated as of October 23 , 1997 ("Lease")
To Master Lease Agreement No. 6713377 dated as of October 23 , 1997
between Digital Financial Services and Netter Digital
Entertainment, Inc. (Agreement)
LESSEE: LEGAL NAME: Netter Digital Entertainment, Inc.
TRADE NAME (if any):
ADDRESS: 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Address for Invoices:
Person to Contact Regarding Invoices:
LESSOR: NAME: Digital Financial Services,
a division of General Electric
Capital Corporation
ADDRESS: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Operations Manager
A. The Latest Commencement Date for this Lease, as described in
Section 7 of the Agreement, is January 15, 1998.
B. LEASE PAYMENTS:
Lessee agrees to pay Lease Payments pursuant to and in the manner
stated in Section 3 of the Agreement. Unless Lessee has exercised the
option in the following paragraph, the first Lease Payment shall be
due and paid on the Commencement Date, and all subsequent Lease
Payments shall be due and paid on the same day of each subsequent pay
riod in the amounts set forth below.
Payment Amount $13,407.36 Payment Period Monthly
Option to have Lease Payments due on the first day of the month:
If the box at the beginning of this paragraph is checked, and
Lessee has initialed its agreement at the bottom of this
paragraph, then Lease Payments will be due on the first day of
the month, commencing on the first day of the month following the
Commencement Date (the"First Payment Due Date"). If this option
is elected, Lessee agrees to pay interim rent equal to the Lease
Payment prorated on a daily basis, for each day from the
Commencement Date to the First Payment Due Date. Such interim
rent payment will be due on the First Payment Due Date with the
first Lease Payment.
Lessee's Initials
C. TERM:
The Initial term of this Equipment Schedule shall be for a period
of Twenty Four (24) months
D. END OF TERM OPTIONS; NOTICE:
Lessee shall have the options to return the Equipment, purchase the
Equipment or renew this Lease at the end of the Initial Term and each
renewal period, if any, subject to the conditions described in this Lease.
Lessee must provide Lessor with notice, at least ninety (90) days
prior to the expiration of the Initial Term or then current renewal
term (as applicable), of its intention to exercise an option to
purchase or renew, or to return the Equipment in accordance with
Section 1 0 of the Agreement (Notice of Intent). If such Notice of
Intent is not provided to the Lessor at least ninety (90) days prior
to the expiration of such term, Lessee shall continue to pay Lease
Payments to Lessor in the amount and at the times specified during the
Initial Term or such renewal term until the later of (i) the
expiration of ninety days following Lessor's receipt of Lessee's
Notice of Intent (Notice Period), or (ii) the purchase of the
Equipment pursuant to Paragraph F of this Equipment Schedule or the
return of the Equipment in accordance with Section 1 0 of the
Agreement. If an option to renew is exercised, the renewal term shall
commence upon the later of the expiration of the Notice Period or the
expiration of the Initial Term or then current renewal term, if any.
E. RENEWAL OPTIONS:
Lessee shall have the right to renew this Lease as to all, but not
less than all, of the Equipment and Software listed herein for three
(3) successive periods of one (1) year each, upon the same terms and conditions
contained herein, except that Lease Payments shall be the then fair
market rental value thereof. Fair market rental value shall be
determined by mutual agreement between Lessor and Lessee or if a
dispute arises, then by an independent appraiser selected by Lessor,
at Lessee's expense. Fair market rental value shall be paid on a
monthly or yearly basis as directed by Lessor.
Lessee's renewal options are contingent upon the following: (i) Lessee
shall provide Lessor with Lessee's Notice of Intent to renew not less
than ninety (90) days prior to the expiration of the Initial Term or
the renewal term, as the case may be, and (ii) at the time of the
giving of such notice and the commencement of said renewal term, no
default or Event of Default hereunder or under the Agreement or any
other agreement between Lessor and Lessee shall have occurred and be
continuing, in Lessor's sole determination. Failure to exercise a
preceding option shall preclude Lessee from exercising any subsequent
options.
F. PURCHASE OPTION:
Subject to the conditions stated herein, Lessor hereby grants to
Lessee a non-assignable option to purchase all, but not less than all,
of the Equipment described in this Lease at the expiration of the Initial
Term or and Renewal hereof for an amount equal to the then fair market value of
the Equipment (herein the 'Option Price). The fair market value of
the Equipment shall be determined by mutual agreement between the
parties or if a dispute arises, then by an independent appraiser
selected by Lessor, at Lessee's expense.
Lessee's right to purchase said Equipment is contingent upon all
of the following:
(i) no default or Event of Default on the part of Lessee under
this Lease, the Agreement or any other agreement between Lessor
and Lessee shall have occurred and be continuing in Lessor's sole
determination; and
(ii) Lessor shall have received Lessee's Notice of Intent to
purchase at least ninety 190) days prior to the date upon which
the Initial Term or renewal term expires, as the case may be; and
(iii) at least thirty (30) days prior to the expiration date of
the Initial Term or renewal term, as the case may be, Lessor
shall have received in cash a sum equal to (i) the Option Price
and (ii) all taxes, whether currently in existence or hereafter
enacted, which shall be or become due and payable directly or
indirectly as a result of the sale or transfer of the Equipment,
except Lessee may provide Lessor with a certificate of exemption
or other similar document with respect to such taxes.
It is expressly understood by the parties hereto that any purchase
hereunder SHALL BE WITHOUT REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, on the part of Lessor and that Lessor sells the Equipment
hereunder on a "AS IS," "WHERE IS" basis.
G. TAX INDEMNIFICATION
This Lease has been entered into on the assumption that Lessor shall
be entitled to certain deductions, credits, and other tax benefits as
are provided in the Internal Revenue Code of 1986, including amendments as may
occur (the "Code"), to an owner or property including without
limitation, depreciation deductions and interest deductions with
respect to any debt incurred to finance the purchase of the Equipment.
If, as a result of any acts or omissions by Lessee or as a result of
any changes in the Code (including any changes in the marginal
corporate income tax rate), the regulations issued thereunder or the
administrative or judicial interpretations thereof, Lessor's projected
after-tax economic return resulting from ownership and lease of the
Equipment hereunder is reduced, then Lessee's Lease Payments shall be
increased in an amount (based on Lessor's reasonable calculations)
sufficient to providethe same net after-tax economic return as if such
acts or omissions or changes had not occurred. Appropriate increases
shall also be made in any applicable Stipulated Loss Value Rider to
this Lease.
H. ADDITIONAL TERMS:
The terms contained on the Riders listed herein and attached hereto
shall be applicable and constitute a part of this Lease: Float to
Acceptance Rider and Rider No.11: TPOptions.
I. MODIFICATIONS:
In the event that additions and/or deletions to the Equipment and/or
Software listed herein are made prior to the Commencement Date as a
result ofa written direction or change order issued by Lessee and accepted by
Lessor, Lessee authorizes Lessor to modify the Equipment and Software
listed in herein to reflect such additions or deletions and to adjust
the Lease Payment amount and any other affected terms accordingly.
Lessor will deliver to Lessee a written notice containing any final
terms that differ from those set forth in this Equipment Schedule.
J. MASTER LEASE AGREEMENT:
This Lease is entered into pursuant to the Agreement identified above.
Except to the extent expressly modified hereby, the parties hereto by
theirexecution and delivery hereof, reaffirm and incorporate herein by
reference all of the terms, covenants and conditions of said Agreement
as if such terms, covenants and conditions were fully set forth in
this Equipment Schedule. All of the capitalized words used herein or
in the Riders annexed hereto shall have the meanings ascribed to them
in the Agreement unless otherwise expressly stated herein or therein.
K. EQUIPMENT AND SOFTWARE:
Equipment:
Quantity Model No./Description Equipment Cost
1 DA-5 1 HAB-FB AlphaServer
4100 51400 Drawer Digital UNIX
w/peripherals per attached
Quotation No. 98Dl NZ0052 $180,000.00
2 DA-51 HAA-FB AlphaServer
4100 5/400 Drawer Windows NT
w/peripherals per attached
Quotation No. 98Dl NZ0053-01 $80,000.00
1 FN-NCDNP-AB ClearVISN Site Package
w/peripherals per
attached Quotation No. 98DEQAOO28-08 $93,609.50
Total Equipment Costs: $353,609.50
Software:
Quantity Model No./Description Software License Fee
Total Software License Fees:
Total Equipment Costs and Software License Fees: $353,609.50
L. LOCATION OF EQUIPMENT ADDRESS: 0000 Xxxxxxxxxx Xxxxxxxxx
XXXXXX: Los Angeles County
CITY, STATE & ZIP: Xxxxx Xxxxxxxxx, XX 00000
M. COUNTERPARTS:
This Equipment Schedule may be executed in any number of counterparts,
each of which shall be sequentially numbered. No security interest in
this Lease may be created through the transfer or possession of any
counterpart other than Counterpart No. 1 of this Equipment Schedule,
but no transfer or possession of the Agreement will be required to
create a security interest in the Lease evidenced by this Equipment
Schedule.
LESSEE: Netter Digital Entertainment, Inc. LESSOR: Digital Financial Services,
a division of General Electric Corp.
By: By:
(Signature) (Signature)
Xxxxx X. X'Xxxx-XxXxxxx
(Print Or Type Name) (Print Or Type Name)
Sr. Lease Administrator
(Print Or Type Title) (Print Or Type Title)
Federal Tax ID or Social Security Number: 00-0000000
Digital Financial Services
Schedule A (Tax Oriented) Financial Services
Equipment Schedule No. 002 dated as of April 17, 1998 ("Lease")
To Master Lease Agreement No. 6713377 dated as of October 23 , 1997
between Digital Financial Services and Netter Digital
Entertainment, Inc. (Agreement)
LESSEE: LEGAL NAME: Netter Digital Entertainment, Inc.
TRADE NAME (if any):
ADDRESS: 0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Address for Invoices:
Person to Contact Regarding Invoices:
LESSOR: NAME: Digital Financial Services,
a division of General Electric
Capital Corporation
ADDRESS: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Operations Manager
A. The Latest Commencement Date for this Lease, as described in
Section 7 of the Agreement, is July 14, 1998.
B. LEASE PAYMENTS:
Lessee agrees to pay Lease Payments pursuant to and in the manner
stated in Section 3 of the Agreement. Unless Lessee has exercised the
option in the following paragraph, the first Lease Payment shall be
due and paid on the Commencement Date, and all subsequent Lease
Payments shall be due and paid on the same day of each subsequent pay
riod in the amounts set forth below.
Payment Amount $11,461.60 Payment Period Monthly
Option to have Lease Payments due on the first day of the month:
If the box at the beginning of this paragraph is checked, and
Lessee has initialed its agreement at the bottom of this
paragraph, then Lease Payments will be due on the first day of
the month, commencing on the first day of the month following the
Commencement Date (the"First Payment Due Date"). If this option
is elected, Lessee agrees to pay interim rent equal to the Lease
Payment prorated on a daily basis, for each day from the
Commencement Date to the First Payment Due Date. Such interim
rent payment will be due on the First Payment Due Date with the
first Lease Payment.
Lessee's Initials
C. TERM:
The Initial term of this Equipment Schedule shall be for a period
of Twenty Eight (28) months
D. END OF TERM OPTIONS; NOTICE:
Lessee shall have the options to return the Equipment, purchase the
Equipment or renew this Lease at the end of the Initial Term and each
renewal period, if any, subject to the conditions described in this Lease.
Lessee must provide Lessor with notice, at least ninety (90) days
prior to the expiration of the Initial Term or then current renewal
term (as applicable), of its intention to exercise an option to
purchase or renew, or to return the Equipment in accordance with
Section 1 0 of the Agreement (Notice of Intent). If such Notice of
Intent is not provided to the Lessor at least ninety (90) days prior
to the expiration of such term, Lessee shall continue to pay Lease
Payments to Lessor in the amount and at the times specified during the
Initial Term or such renewal term until the later of (i) the
expiration of ninety days following Lessor's receipt of Lessee's
Notice of Intent (Notice Period), or (ii) the purchase of the
Equipment pursuant to Paragraph F of this Equipment Schedule or the
return of the Equipment in accordance with Section 1 0 of the
Agreement. If an option to renew is exercised, the renewal term shall
commence upon the later of the expiration of the Notice Period or the
expiration of the Initial Term or then current renewal term, if any.
E. RENEWAL OPTIONS:
Lessee shall have the right to renew this Lease as to all, but not
less than all, of the Equipment and Software listed herein for three
(3) successive periods of one (1) year each, upon the same terms and conditions
contained herein, except that Lease Payments shall be the then fair
market rental value thereof. Fair market rental value shall be
determined by mutual agreement between Lessor and Lessee or if a
dispute arises, then by an independent appraiser selected by Lessor,
at Lessee's expense. Fair market rental value shall be paid on a
monthly or yearly basis as directed by Lessor.
Lessee's renewal options are contingent upon the following: (i) Lessee
shall provide Lessor with Lessee's Notice of Intent to renew not less
than ninety (90) days prior to the expiration of the Initial Term or
the renewal term, as the case may be, and (ii) at the time of the
giving of such notice and the commencement of said renewal term, no
default or Event of Default hereunder or under the Agreement or any
other agreement between Lessor and Lessee shall have occurred and be
continuing, in Lessor's sole determination. Failure to exercise a
preceding option shall preclude Lessee from exercising any subsequent
options.
F. PURCHASE OPTION:
Subject to the conditions stated herein, Lessor hereby grants to
Lessee a non-assignable option to purchase all, but not less than all,
of the Equipment described in this Lease at the expiration of the Initial
Term or and Renewal hereof for an amount equal to the then fair market value of
the Equipment (herein the 'Option Price). The fair market value of
the Equipment shall be determined by mutual agreement between the
parties or if a dispute arises, then by an independent appraiser
selected by Lessor, at Lessee's expense.
Lessee's right to purchase said Equipment is contingent upon all
of the following:
(i) no default or Event of Default on the part of Lessee under
this Lease, the Agreement or any other agreement between Lessor
and Lessee shall have occurred and be continuing in Lessor's sole
determination; and
(ii) Lessor shall have received Lessee's Notice of Intent to
purchase at least ninety 190) days prior to the date upon which
the Initial Term or renewal term expires, as the case may be; and
(iii) at least thirty (30) days prior to the expiration date of
the Initial Term or renewal term, as the case may be, Lessor
shall have received in cash a sum equal to (i) the Option Price
and (ii) all taxes, whether currently in existence or hereafter
enacted, which shall be or become due and payable directly or
indirectly as a result of the sale or transfer of the Equipment,
except Lessee may provide Lessor with a certificate of exemption
or other similar document with respect to such taxes.
It is expressly understood by the parties hereto that any purchase
hereunder SHALL BE WITHOUT REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, on the part of Lessor and that Lessor sells the Equipment
hereunder on a "AS IS," "WHERE IS" basis.
G. TAX INDEMNIFICATION
This Lease has been entered into on the assumption that Lessor shall
be entitled to certain deductions, credits, and other tax benefits as
are provided in the Internal Revenue Code of 1986, including amendments as may
occur (the "Code"), to an owner or property including without
limitation, depreciation deductions and interest deductions with
respect to any debt incurred to finance the purchase of the Equipment.
If, as a result of any acts or omissions by Lessee or as a result of
any changes in the Code (including any changes in the marginal
corporate income tax rate), the regulations issued thereunder or the
administrative or judicial interpretations thereof, Lessor's projected
after-tax economic return resulting from ownership and lease of the
Equipment hereunder is reduced, then Lessee's Lease Payments shall be
increased in an amount (based on Lessor's reasonable calculations)
sufficient to providethe same net after-tax economic return as if such
acts or omissions or changes had not occurred. Appropriate increases
shall also be made in any applicable Stipulated Loss Value Rider to
this Lease.
H. ADDITIONAL TERMS:
The terms contained on the Riders listed herein and attached hereto
shall be applicable and constitute a part of this Lease: Float to
Acceptance Rider and Rider No.11: TPOptions.
I. MODIFICATIONS:
In the event that additions and/or deletions to the Equipment and/or
Software listed herein are made prior to the Commencement Date as a
result ofa written direction or change order issued by Lessee and accepted by
Lessor, Lessee authorizes Lessor to modify the Equipment and Software
listed in herein to reflect such additions or deletions and to adjust
the Lease Payment amount and any other affected terms accordingly.
Lessor will deliver to Lessee a written notice containing any final
terms that differ from those set forth in this Equipment Schedule.
J. MASTER LEASE AGREEMENT:
This Lease is entered into pursuant to the Agreement identified above.
Except to the extent expressly modified hereby, the parties hereto by
theirexecution and delivery hereof, reaffirm and incorporate herein by
reference all of the terms, covenants and conditions of said Agreement
as if such terms, covenants and conditions were fully set forth in
this Equipment Schedule. All of the capitalized words used herein or
in the Riders annexed hereto shall have the meanings ascribed to them
in the Agreement unless otherwise expressly stated herein or therein.
K. EQUIPMENT AND SOFTWARE:
Equipment:
Quantity Model No./Description Equipment Cost
2 CT-RENDT_WC Render Tower System
WNT w/Peripherals per attatched
Wyle Quotation #989W1202T6 $92,700.00
6 CT-RENDT-WX Render Tower Upgrade
WNT w/peripherals per attatched Wyle
Quotation #989W1202T6 $232,200.00
Total Equipment Costs: $324,900.00
Software:
Quantity Model No./Description Software License Fee
Total Software License Fees:
Total Equipment Costs and Software License Fees: $324,900.00
L. LOCATION OF EQUIPMENT ADDRESS: 0000 Xxxxxxxxxx Xxxxxxxxx
XXXXXX: Los Angeles County
CITY, STATE & ZIP: Xxxxx Xxxxxxxxx, XX 00000
M. COUNTERPARTS:
This Equipment Schedule may be executed in any number of counterparts,
each of which shall be sequentially numbered. No security interest in
this Lease may be created through the transfer or possession of any
counterpart other than Counterpart No. 1 of this Equipment Schedule,
but no transfer or possession of the Agreement will be required to
create a security interest in the Lease evidenced by this Equipment
Schedule.
LESSEE: Netter Digital Entertainment, Inc. LESSOR: Digital Financial Services,
a division of General Electric Corp.
By: By:
(Signature) (Signature)
Xxxxx X. X'Xxxx-XxXxxxx
(Print Or Type Name) (Print Or Type Name)
Sr. Lease Administrator
(Print Or Type Title) (Print Or Type Title)
Federal Tax ID or Social Security Number: 00-0000000
