EXHIBIT 10.63
Master Lease Agreement # MMM0901
MASTER LEASE AGREEMENT ("Master Lease") dated as of September 1, 2000
Between Multi Media Machinery GmbH, (Lessor), located at Xxxxxxxxxxxxxxxx 0
00000 Xxxxxxxxxxxxx, Xxxxxxx
and Applied Data Communications ("Lessee"), located at 0000 Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxx, XX 00000
This Master Lease provides a set of terms and conditions that the parties hereto
intend to be applicable to various transactions for the lease of personal
property. Each lease contract shall be evidenced by an equipment schedule
("Schedule") executed by Lessor and Lessee that explicitly incorporates the
provisions of this Master Lease and that sets forth specific terms of that
particular lease contract. Where the provisions of a Schedule conflict with the
terms hereof, the provisions of the Schedule shall prevail. Each Schedule shall
constitute a complete and separate lease agreement, independent of all other
Schedules, and without any requirement of being accompanied by an originally
executed copy of this Master Lease Agreement. The term "Lease" when used herein
shall refer to an individual Schedule.
One originally executed copy of the Schedule shall be denominated "Originally
Executed Copy No. 1 of 1 originally executed copies" and such copy shall be
retained by Lessor if more than one copy of the Schedule is executed by Lessor
and Lessee, all such other copies shall be numbered consecutively with numbers
greater than 1. Only transfer of possession by Lessor of the originally
executed copy denominated Originally Executed Copy No 1" shall be effective for
purposes of perfecting an interest in such Schedule by possession.
1. Equipment Leased and Term.
This lease shall cover such personal property as is described in any Schedule
executed by or pursuant to the authority of Lessee, accepted by Lessor in
writing and identified as a part of this Lease (which personal property with all
replacement parts, additions, repairs accessions and accessories incorporated
therein and/or affixed thereto is hereinafter called the "Equipment"). Lessor
hereby leases to Lessee and Lessee hereby hires and takes from Lessor, upon and
subject to the covenants and conditions hereinafter contained, the Equipment
described in any Schedule. Notwithstanding the commencement date of the term of
this Lease with respect to any item of Equipment, Lessee agrees that all risk of
loss of the Equipment shall be on Lessee from and after shipment of the
Equipment to Lessee by the seller thereof, F.O.B. seller's point of shipment,
the date of such shipment being hereinafter called "date of shipment". The term
of this Lease with respect to any item of Equipment shall be for the period as
set forth in the applicable Schedule (hereinafter the "Term"); provided that if
the Lease does not require the Lessee to purchase the Equipment at the end of
the Term as stated in the Schedule, the Lease shall not terminate at the end of
such Term unless either Lessee or Lessor has delivered to the other at least one
hundred and eighty (180) days prior written notice of such termination, failing
which the Term will automatically extend until a period of one hundred and
eighty days has elapsed from the date when written notice of termination was
delivered by either party to the other. Such automatic extension shall be
deemed included in and part of the Term of the Lease, and Lessee shall continue
to pay the periodic rentals and comply with all the other terms and conditions
of the Lease until it terminates. Lessee hereby gives Lessor authority to
insert the actual commencement date and date of first monthly rental for any
item of Equipment in any Schedule as well as such items as serial numbers if
such are not already inserted when such Schedule is executed by Lessee.
"Seller" as used in this Lease means the supplier from which Lessor acquires any
item of Equipment.
2. Rent.
The aggregate rent payable with respect to each item of Equipment shall be in
the amount shown with respect to such item on the Schedule. Lessee shall pay to
Lessor the aggregate rental for each item of Equipment for the full period and
term for which the Equipment is leased, such rental to be payable at such times
and in such amounts for each item of Equipment as shown in the applicable
Schedule.
All rent shall be paid at Lessor's place of business shown above, or such other
place as Lessor may designate by written notice to the Lessee. All rents shall
be paid without notice or demand and without abatement, deduction or set off of
any amount whatsoever. The operation and use of the Equipment shall be at the
risk of Lessee and not of Lessor and the obligation of Lessee to pay rent
hereunder shall be unconditional.
3 Destruction of Equipment.
If any Equipment is lost, totally destroyed, damaged beyond repair or taken by
governmental action, the liability of the Lessee to pay rent therefore may be
discharged by paying to Lessor the "Casualty Value" of such item of Equipment
which will equal the total of (i) all rent and other amounts, if any, due from
Lessee at the time of such payment, and (ii) each future rent payment due with
respect to such Equipment discounted to present value at six percent (6%) per
annum from the date due to the date of such payment.
In the event of partial destruction of any Equipment, the rent due and to become
due thereon shall not xxxxx and Lessee shall, at its own expense. cause such
Equipment to be restored to usable condition, but Lessor shall, upon receiving
satisfactory evidence of such restoration, promptly pay Lessee the proceeds of
any insurance or compensation received by reason of such damage. If the
estimated cost of restoring such Equipment exceeds 50% of the unmatured rent
therefore, such Equipment shall, on notice by Lessee, be deemed, for all
purposes hereof, to be totally destroyed and the liability of the Lessee to pay
rent therefore shall be discharged if Lessee pays the rent described in the
preceeding paragraph of this Section.
Lessor shall not be obligated to undertake litigation or prosecute otherwise the
collection of any claim against any person for loss or damage to the Equipment.
Page 1 of 6
Except as expressly provided above, the total or partial destruction of any
Equipment or the total or partial loss of use or possession thereof to Lessee
shall not release or relieve Lessee from the duty to pay the rent herein
provided.
4. No Warranties by Lessor; Maintenance and Compliance with Laws.
Lessor, not being the manufacturer of the Equipment, nor manufacturer's agent,
MAKES NO WARRANTY OR REPRESENTATION EITHER EXPRESS OR IMPLIED, AS TO THE
FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY OR
PERFORMANCE OF THE Equipment OR OF THE MATERIAL OR WORKMANSHIP THEREOF, IT BEING
AGREED THAT THE Equipment IS LEASED "AS IS" AND THAT ALL SUCH RISKS, AS BETWEEN
LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE AT IT'S SOLE RISK AND EXPENSE.
Lessee accordingly agrees not to assert any claim whatsoever against Lessor
based thereon. Lessee further agrees, regardless of cause, not to assert any
claim whatsoever against Lessor for loss of anticipatory profits or
consequential damages Lessee shall have no obligation to install, erect , test,
adjust or service the Equipment. Lessee shall look to the manufacturer and/or
Seller for any claims related to the Equipment. Lessor hereby acknowledges that
any manufacturer's and/or Seller's warranties are for the benefit of both Lessor
and Lessee.
No oral agreement, guaranty, promise, condition, representation or warranty
shall be binding; all prior conversations, agreements or representations related
hereto and/or to the Equipment are integrated herein. Lessee agrees, at it's
own cost and expense:
(a) To pay all shipping charges and other expenses incurred in connection with
the shipment of the Equipment by the Seller to Lessee;
(b) To pay all charges and expenses in connection with the operation of each
item of the Equipment;
(c) To comply with all governmental laws, ordinances, regulations, requirements
and rules with respect to the use, maintenance and operation of the Equipment;
and
(d) To make all repairs and replacements required to be made to maintain the
Equipment in good condition reasonable wear and tear excepted.
5. Insurance.
Lessee shall maintain at all times on the Equipment, at its expense, all-risk
physical damage insurance and comprehensive general and/or automobile (as
appropriate) liability insurance (covering bodily injury and property damage
exposures including, but not limited to, contractual liability and products
liability) in such amounts, against such risks, in such form and with such
insurers as shall be satisfactory to Lessor; provided, that the amount of all-
risk physical damage insurance shall not on any date be less than the greater of
the full replacement value or a sum equal to all the rent to become due. Each
physical damage insurance policy will name Lessor as loss payee. Each liability
insurance policy will name Lessor as additional insured. Each insurance policy
will also require that the insurer give Lessor at least thirty (30) days prior
written notice of any alteration in or cancellation of the terms of such policy
and require that Lessors interests be continued insured regardless of any breach
or violation by Lessee or others of any warranties, declarations or conditions
contained in such insurance policy. In no event shall Lessor be responsible for
premiums warranties or representations to any insurer or any agent thereof.
Lessee shall furnish to Lessor a certificate or other evidence satisfactory to
Lessor that such insurance coverage is in effect, but Lessor shall be under no
duty to ascertain the existence or adequacy of such insurance. The insurance
maintained by Lessee shall be primary without any right of contribution from
insurance which may be maintained by Lessor. Lessee shall be liable for all
deductible portions of all required insurance. Lessor may, at it's own benefit,
purchase insurance in excess of that required under this Lease Agreement.
Physical damage insurance proceeds shall be applied as set forth in Section 6.
6. Loss and Damage.
Lessee agrees to assume and bear the entire risk of any partial or complete loss
with respect to the Equipment from any and every cause whatsoever including
theft, loss, damage, destruction or governmental taking, whether or not such
loss is covered by insurance or caused by any default or neglect of Lessee.
Lessee agrees to give Lessor prompt notice of any damage to or loss of any
Equipment. All physical damage insurance proceeds shall be payable directly to
Lessor. Following payment of such loss, and if no Event of Default as defined
in Section 11 has occurred and remains continuing, Lessor will then:
(a) Transfer to Lessee Lessor's rights to such Equipment "as-is, where-is and
with all defects," without recourse and without representation or warranty,
express or implied, other than a warranty that is free and clear of any lien
created by Lessor; and
(b) Remit to Lessee any physical damage insurance proceeds arising out of such
loss in excess of the sum due to the Lessor.
Lessee shall determine in the exercise of it's reasonable judgement whether the
Equipment is damaged beyond repair, subject to Lessor's approval. In the event
of damage or loss which does not result in damage beyond repair or a total loss
of the Equipment or any item thereof, Lessee shall cause the affected Equipment
to be restored to the condition required by the terms of this Lease. Upon
completion of such repair and after supplying Lessor with satisfactory evidence
thereof (and provided no Event of Default has occurred and remains continuing),
Lessee shall be entitled to receive any insurance proceeds or other recovery to
which Lessor would otherwise be entitled in connection with such loss up to the
amount expended by Lessee in making the repair.
Lessor shall not be obligated to undertake by litigation or otherwise the
collection of any claim against any person for loss of damage to, governmental
taking of the Equipment, but Lessor will cooperate with Lessee at Lessee's
expense to pursue such claims. Except as
Page 2 of 6
expressly provided above, the total or partial destruction of any Equipment or
Lessee's total or partial loss of use or possession thereof shall not release or
relieve Lessee from it's obligation under this Master Lease or any Schedule
including the duty to pay the rent(s) herein provided.
7. Taxes.
Lessee agrees that, during the term of this Lease, in addition to the rent and
all other amounts provided herein to be paid, it will promptly pay all taxes,
assessments and other governmental charges (including penalties and interest, if
any, and fees for titling or registration, if required) levied or assessed:
(a) Upon the interest of Lessee in the Equipment or upon the use or operation
thereof or on the earnings arising therefrom; and
(b) Against Lessor on account of it's acquisition or ownership of the Equipment
or any part thereof, or the use or operation thereof or the leasing hereof to
Lessee, or the rent herein provided for, or the earnings arising therefrom,
exclusive, however, of any taxes based on net income of Lessor.
Lessee agrees to file, on behalf of lessor, all required tax returns and reports
concerning the Equipment with all appropriate governmental agencies, and within
not more than 45 days after the due date of such filing to send Lessor
confirmation, in form satisfactory to Lessor, of such filing.
8. Lessor's Title, Right of Inspection and Identification of Equipment.
Title to the Equipment shall at all times remain in Lessor and Lessee will at
all times protect and defend, at its own cost and expense, the title of Lessor
from and against all claims, liens and processes. The Equipment is and shall
remain personal property. Upon the expiration or termination of this Lease with
respect any item of Equipment:
(a) Lessee at Lessee's sole expense shall return such Equipment unencumbered to
Lessor subject to the following:
(i) not less than thirty (30) days before such return, Lessee shall provide
Lessor with a written inventory of the Equipment, including model and serial
numbers, details of current manuals, and with all other technical data in
Lessee's possession required for the setup and operation of the Equipment; (ii)
not less than ten (10) days before such return, Lessee shall provide Lessor with
a certificate by the manufacturer or a qualified equipment maintenance provider
acceptable to Lessor, to the effect that the Equipment has been properly
inspected, examined and tested, is in good operating condition, repair and
appearance, reasonable wear and tear excepted, and will be eligible upon re-sale
or re-lease by Lessor, for the manufacturer's standard maintenance agreement for
Equipment of comparable age and type, (iii) the Equipment shall be returned in
the same good order and condition in which it is required to be certified, as
set forth above, and will be thoroughly cleaned and cosmetically acceptable for
immediate installation in a similar environment.; (iv) at the place where the
rent is payable or to such other place as Lessor and Lessee agree upon, and in
the same condition as when received by Lessee, reasonable wear and tear
resulting from use thereof alone excepted; or
(b) in lieu of returning such Equipment to Lessor, Lessee agrees that Lessee
will, upon request of Lessor, store such Equipment on Lessee's premises, at an
inside location protected from the weather and elements, without charge to
Lessor for a period of 180 days following the date of expiration or termination
of this Lease. During such storage period Lessee shall not use the Equipment
for any purpose. Upon expiration of such storage period Lessee will return such
Equipment to Lessor in accordance with the provisions of (a) above.
Lessor shall have the right from time to time during reasonable business hours
to enter upon Lessee's premises or elsewhere for the purpose of confirming the
existence, condition and proper maintenance of the Equipment and during any
period of storage Lessor shall also have the right to demonstrate and show the
Equipment to others. The foregoing rights of entry are subject to any
applicable governmental laws regulations and rules concerning industrial
security. Lessee shall, upon the request of Lessor, and it's own expense firmly
affix to the Equipment, in a conspicuous place, such a decalcomania or metal
plate as shall be supplied by Lessor showing the Lessor as the owner and Lessor
of such Equipment.
9. Possession, Use and Changes in Location of Equipment.
So long as Lessee shall not be in default under the Lease it shall be entitled
to the possession and use of the Equipment in accordance with the terms of this
Lease. The Equipment shall be used in the conduct of the lawful business of
Lessee, and no item of Equipment shall be removed from its location shown on the
Schedule, without the prior written consent of Lessor. Lessee shall not,
without Lessor's prior written consent, part with possession or control of the
Equipment or attempt or purport to sell, pledge, mortgage or otherwise encumber
any of the Equipment or otherwise dispose of or encumber any interest under this
Lease.
10. Performance of Obligations of Lessee by Lessor.
In the event that the Lessee shall fail duly and promptly to perform any of its
obligations under the provisions of Sections 4,5,6,7, and 8 of this Lease,
Lessor may, at its option, perform the same for the account of Lessee without
thereby waiving such default, and any amount paid or expense (including
reasonable attorney's fees), penalty or other liability incurred by Lessor in
such performance, together with interest at the rate 1 1/2% per month thereon
(but in no event greater than the highest rate permitted by relevant law) until
paid by Lessee to Lessor, shall be payable by Lessee upon demand as additional
rent for the Equipment.
Page 3 of 6
11. Default.
An Event of Default shall occur if:
(a) Lessee fails to pay when due any installment of rent and such failure
continues for a period of 10 days;
(b) Lessee shall fail to perform or observe any covenant, condition or agreement
to be performed or observed by it hereunder and such failure continues uncured
for 15 days after written notice thereof to Lessee by Lessor;
(c) Lessee ceases doing business as a going concern, makes an assignment for the
benefit of creditors, admits in writing its inability to pay its debts as they
become due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt
or an insolvent, files a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law or regulation or files an
answer admitting the material allegations of a petition filed against it in any
such proceeding, consents to or acquiesces in the appointment of a trustee,
receiver, or liquidator of it or of all or any substantial part of its assets or
properties, or if it or its shareholder shall take any action looking to its
assets or properties, or if it or its shareholders shall take any action looking
to its dissolution or liquidation;
(d) Within 60 days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation, dissolution or
similar relief under any present or future statue, law or regulation, such
proceedings shall not have been dismissed, or if within 60 days after the
appointment without Lessee's consent or acquiescence of any trustee, receiver or
liquidator of it or of all or any substantial part of its assets and properties,
such appointment shall not be vacated;
(e) Lessee attempts to remove, sell, transfer, encumber, part with possession or
sublet the Equipment or any item thereof.
(f) Any certificate, statement, representation, warranty or audit heretofore or
hereafter furnished with respect hereto by or on behalf of Lessee proves to have
been false in any material respect at the time as of which the facts therein set
forth were stated or certified or Lessee having omitted any substantial
contingent or unliquidated liability or claim against it; or
(g) There occurs a transfer or effective control of Lessee.
12. Remedies.
Upon the occurrence of an Event of Default, Lessor, at its option, may exercise
any one or more of the following remedies:
(a) declare the then Casualty Value (as defined in Section 3) immediately due
and payable with respect to any or all items of Equipment without notice or
demand to Lessee;
(b) xxx for and recover all rent and other payments, then accrued or as
thereafter accruing, with respect to any or all items of Equipment;
(c) take possession of and render unusable any or all items of Equipment,
without demand or notice, wherever same may be located, without any court order
or other process of law and without liability for any damages occasioned by such
taking of possession (any such taking of possession will not constitute a
termination of this Master Lease as to any or all items of Equipment unless
Lessor expressly so notifies Lessee in writing); notwithstanding the
aforementioned, should the Equipment's usage be medical in nature and performs
life sustaining functions, directly or indirectly, reasonable notice will be
given of Lessor's intention to take possession of the Equipment;
(d) require Lessee to assemble any or all items of Equipment at the Equipment
Location therefor, such location to which such Equipment may have been moved
with the prior written consent of Lessor or such other location in reasonable
proximity to either of the foregoing as Lessor designates;
(e) sell or otherwise dispose of any or all items of Equipment, whether or not
in Lessor's possession, in a commercially reasonable manner at public or private
sale and without notice to Lessee and apply the net proceeds of such sale, after
deducting all costs of such sale including but not limited to, costs of
transportation, repossession, storage, refurbishing, advertising and brokers'
fees to the obligations of Lessee hereunder with Lessee remaining liable for any
deficiency and with any excess being retained by Lessor;
(f) retain any repossessed or assembled Equipment and credit the reasonable
value thereof, after deducting all such sales related costs incurred to the date
of crediting, to the obligations of Lessee hereunder with Lessee remaining
liable for any deficiency and with Lessor having no obligation to reimburse
Lessee on account of any excess of such reasonable value over such obligations;
(g) terminate this Master Lease as to any or all items of Equipment or,
(h) utilize any other remedy available to Lessor at law or in equity.
A termination hereunder will occur only upon notice by Lessor to Lessee and only
with respect to such Equipment as to which Lessor specifically elects to
terminate in such notice. Except as to such Equipment with respect to which
there is a termination, this Master Lease will remain in full force and effect
and Lessee will be and remain liable for the full performance of all its
obligations hereunder.
Page 4 of 6
No right or remedy conferred herein is exclusive of any other right or remedy
conferred herein or by law, but all such rights and remedies are cumulative of
every other right or remedy conferred hereunder or at law or in equity, by
statute or otherwise, and may be exercised concurrently or separately from time
to time.
13. Indemnity.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify and save Lessor harmless from and against any and all liability, loss
damage, expense, causes of action, suits, claims or judgements arising from or
caused directly or indirectly by:
(a) Lessee's failure to promptly perform any of its obligation under the
provisions of Sections 4,5,6,7 and 8 of this Lease; or
(b) Injury to persons or damage to property resulting from or based upon actual
or alleged use, operation, delivery or transportation of any or all of the
Equipment or its location or condition; or
Inadequacy of the Equipment, or any part thereof, for any purpose or any
deficiency or defect therein or the use or maintenance thereof or any repairs,
servicing or adjustments thereto or any delay in providing or failure to provide
any thereof or any interruption or loss of service or use thereof or any loss of
business; and shall, at its own cost and expense, defend any and all suits which
may be brought against Lessor, either alone or in conjunction with others upon
any such liability or claim or claims and shall satisfy, pay and discharge any
and all judgements and fines that may be recovered against Lessor in any such
action or actions, provided, however, that Lessor shall give Lessee written
notice of any such claim or demand Lessee agrees that its obligations under this
Section 12 shall survive the expiration or termination of this Lease
14. Assignment, Notices and Waivers.
This Lease and all rights of Lessor hereunder shall be assignable by Lessor
without Lessee's consent, but Lessee shall not be obligated to any assignee of
Lessor except after written notice of such assignment from Lessor or Lessor's
assignee. After such assignment, Lessor shall not be assignee's agent for any
purpose. Lessee will settle all claims arising out of alleged breach of
warranties or otherwise, defenses, setoffs and counterclaims it may have against
Lessor directly with Lessor, and not set up any such against Lessor's assignee,
Lessor hereby agreeing to remain responsible therefor. Lessee upon receiving
notice of any such assignment shall abide thereby and make payments as may
therein be directed. Following such assignment, solely for the purpose of
determining assignee's rights hereunder, the term "Lessor" shall be deemed to
include or refer to Lessor's assignee. Without the prior written consent of
Lessor, Lessee shall not assign this Lease or its interests or enter into any
sub-lease with respect to the Equipment covered hereby, it being agreed Lessor
will not unreasonably withhold its consent to a sub-lease of the Equipment.
All notices to Lessor shall be delivered in person to an officer of the Lessor,
or shall be sent certified mail return receipt requested to Lessor at its
address shown herein or at any later address last known to the sender. All
notices to Lessee shall be in writing and shall be delivered by mail at its
address shown herein or at any later address last known to the sender. A waiver
of a default shall not be a waiver of any other or a subsequent default.
15. Further Assurances.
Lessee shall execute and deliver to Lessor, upon Lessor's request such
instruments and assurances as Lessor deems necessary or advisable for the
confirmation or perfection of this Lease and Lessor's rights hereunder. Lessee
may not terminate any Schedule without the written consent of Lessor If Lessor
in good faith believes itself insecure or performance impaired, it may declare a
default hereunder or, instead of declaring a default, Lessor may demand, and
Lessee hereby agrees to give, additional Equipment or other collateral as
security for the obligations hereunder. Lessee will further furnish Lessor:
(a) fiscal year end financial statement including balance sheet and profit and
loss statement within one hundred twenty (120) days of the close of each fiscal
year,
(b) any other information normally provided by Lessee to the public, and
(c) such other financial data or information relative to this Master Lease and
the Equipment as Lessor may from time to time reasonably request.
16. Lease Irrevocability and Charges.
This Lease is irrevocable for the full terms thereof as set forth in any
Schedule and for the aggregate rentals therein reserved and the rent shall not
xxxxx by reason of termination of Lessee's right of possession and/or the taking
of possession by the Lessor or for any other reason. Any payment not made when
due shall, at the option of Lessor, bear late charges thereon calculated at the
rate of 1 1/2% per month, but in no event greater than the highest rate
permitted by relevant law. Lessee shall be responsible for and pay to Lessor a
returned check fee not to exceed the maximum permitted by law, which fee will be
equal to the sum of (a) the actual bank charges incurred by Lessor plus (ii) all
ether actual costs and expenses incurred by Lessor. The returned check fee is
payable upon demand as additional rent under this Lease.
17. Purchase Option.
If any Schedule has a purchase option price set forth therein with respect to
the items of Equipment listed on such Schedule, then at the expiration of the
original lease term in such Schedule with respect to such items of Equipment, if
Lessee has paid in full all rentals owing under such Schedule, and be not then
in default under this Lease (including all obligations under any Schedule),
Lessee shall have the option to purchase all, but not less than all, the items
of Equipment in the applicable Schedule upon giving written notice not less than
Page 5 of 6
Any purchase option price stated as "fair market value" ("FMV") for any item of
Equipment on a Schedule shall be determined on the basis of, and shall be equal
in amount to, the value which would obtain in an arm's length transaction
between an informed and willing buyer-user (other than a Lessee currently in
possession and a used Equipment dealer) and an informed and willing seller under
no compulsion to sell and in such determination, costs of removal of the items
of Equipment from their location of current use shall not be a deduction from
such value.
18. Renewal.
Any renewal privilege shown on any Schedule with respect to any item of
Equipment shall be exercised by Lessee giving Lessor a notice in writing and
paying Lessor the amount of the renewal rental plus applicable taxes, at least
45 days prior to the commencement of the renewal term of the Lease with respect
to such item of Equipment. Upon such notification and payment, this lease shall
be renewed for the stated renewal period at the stated renewal rental with the
other provisions and conditions of the lease continuing unchanged.
19 Miscellaneous.
If any provision of this Lease is contrary to, prohibited by or deemed invalid
under applicable laws or regulations of any jurisdiction, such provision shall
be inapplicable and deemed omitted but shall not invalidate the remaining
provisions hereof.
In the event this Lease or any part hereof is deemed to be a lease intended as
security, Lessee grants a security interest in the Equipment as security for all
of Lessee's indebtedness and obligations owing under the Lease.
20 Lessee's Warranties.
Lessee certifies and warrants that the financial data and other information
which Lessee submits to Lessor in connection with this Master Lease is, or will
be, as appropriate, a true and complete statement of the matters therein
contained. Lessee further certifies and warrants that:
(a) this Master Lease has been duly authorized, executed and delivered by Lessee
and constitutes the legal, valid and binding obligation, contract and agreement
of Lessee enforceable against Lessee in accordance with its respective terms
except as enforcement may be affected by bankruptcy and similar laws affecting
creditors' rights generally, and
(b) this Master Lease and each and every showing provided by or on behalf of
Lessee in connection herewith may be relied upon by Lessor in accordance with
the terms thereof notwithstanding the failure of Lessee or other applicable
party to ensure proper attestation thereto, whether by absence of a seal or
acknowledgment or otherwise. The person executing this Master Lease on behalf
of Lessee warrants that he or she has been fully authorized to do so.
21 Governing Law; Venue, Invalidity.
THIS MASTER LEASE WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF CALIFORNIA. VENUE FOR ANY ACTION RELATED TO THIS MASTER LEASE WILL
BE IN AN APPROPRIATE COURT IN ALAMEDA COUNTY, CALIFORNIA, TO WHICH LESSEE
CONSENTS, OR IN ANOTHER COURT SELECTED BY LESSOR WHICH HAS JURISDICTION OVER THE
PARTIES TO THE FULLEST EXTENT PROVIDED BY LAW, AND AS SEPARATE BARGAINED FOR
CONSIDERATION, LESSEE AND LESSOR HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATING
TO THE MASTER LEASE OR THE EQUIPMENT OR THE OBLIGATIONS OF THE PARTIES HERETO.
LESSEE AND LESSOR ACKNOWLEDGE THAT THIS IS A WAIVER OF A LEGAL RIGHT AND THAT
EACH MAKES THIS WAIVER VOLUNTARILY AND KNOWINGLY.
This lease contains the entire agreement between the parties with respect to the
Equipment, and may not be altered, modified, terminated or discharged except by
a writing signed by the party against whom such alteration, modification,
termination or discharge is sought.
Executed as of the date first written above.
Lessor: Multi Media Machinery GmbH Lessee: Applied Data
Communications
By By: /s/ Xxxxxx X. Xxxx
Name Name: Xxxxxx X. Xxxx
Title Title: President & CEO
Page 6 of 6
SECRETARY'S CERTIFICATE
I, Xxxxx X. Xxxxxx, Xx., do hereby certify that I am Secretary of
Applied Data Communications, Inc. ("Corporation"), a corporation duly organized
and existing under the laws of the State of California;
That I am the keeper of the seal of the Corporation and corporation records,
including without limitation, the Charter, By-Laws and the -mutes of the Board
of Directors of the Corporation, that the following is accurate and compared
transcript of the resolutions contained in the minute book of the Corporation
which resolutions were duly adopted and ratified at a meeting of the Board of
Directors of the Corporation duly convened and held in accordance with the By-
Laws and Charter of the Corporation on Sept. 19, 2000, at which time a quorum
was present and acted throughout; and that said resolutions have not in any way
been modified, repealed or rescinded, but are in full force and effect:
"RESOLVED, that any officer of the Corporation be and is hereby authorized and
empowered in the name and on behalf of this Corporation to enter into one or
more lease agreements with Multi Media Machinery GmbH (hereinafter called
"Lessor'), concerning personal property leased to the Corporation; from time to
time modify, supplement or amend any such agreements; and to do and perform all
other acts and things deemed by such officer to be necessary, convenient or
proper to carry out any of the foregoing; and be it
FURTHER RESOLVED, that any of the aforesaid officers, or his or her duly elected
or appointed successor in office, be and is hereby authorized and empowered to
do any acts, including but not limited to the mortgage, pledge or hypothecation
from time to time to Lessor of any assets of this Corporation to secure such
leases, and to execute in the name and on behalf of this Corporation, any
instruments or agreements deemed necessary or proper by Lessor in respect of the
collateral securing any obligations of this Corporation, and to affix the seal
of this Corporation to any mortgage, pledge or other such instrument if so
required or requested by Lessor; and be it
FURTHER RESOLVED, that all that any officer shall have done or may do in
connection with the matters outlined above is hereby ratified and approved; and
be it
FURTHER RESOLVED, that the foregoing resolutions shall remain in full force and
effect until written notice of their amendment or recision shall have been
received by Lessor, and, that receipt of such notice shall not affect any action
taken or advances made by Lessor prior thereto, and, Lessor is authorized to
rely upon said resolutions until receipt by it of written notice of any change;
and be it
FURTHER RESOLVED, that the Secretary be and is hereby authorized and directed to
certify to Lessor that the foregoing resolutions and the provisions thereof are
in conformity with the Charter and By-Laws of this Corporation."
I do further certify that the lease agreement entered into by the Corporation
and Lessor is an agreement referred to in said resolutions and was duly executed
pursuant thereto and there are no restrictions imposed by the Charter or By-Laws
of the Corporation restricting the power or authority of the Board of Directors
of the Corporation to adopt the foregoing resolutions or upon the Corporation or
its officers to act in accordance therewith.
I do further certify that the following are names and specimen signatures of
officers of the Corporation empowered and authorized by the above resolutions,
each of which has been duly elected to hold and currently holds the office of
the Corporation set opposite his or her name:
Name Office Signature
Xxxxxx X. Xxxx Chief Executive Officer /s/ Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx, Xx. Chief Financial Officer /s/ Xxxxx X. Xxxxxx, Xx.
WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Corporation on Sept 19, 2000:
CORPORATE SEAL
/s/ Xxxxx X. Xxxxxx, Xx.
Secretary
dated: as of September 1, 2000
under: MASTER LEASE No. MMM0901 dated as of September 1, 2000
between: Multi Media Machinery GmbH
located at: Xxxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxxxx, Xxxxxxx
and: Applied Data Communications
located at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
You agree with us that the Master Lease is hereby amended as follows:
1 Delete Section 4 and replace with the following: Lessor, being the
Manufacturer of the Equipment, Warranties the Equipment as more fully
asserted in our Sales Contract. Such Sales Contract, Agreement, or Warranty
and the Terms therein agreed to are the only Warranties granted by Lessor.
ACKNOWLEDGED AND AGREED TO
THIS 19 DAY OF SEPT, 2000
Lessee Name:
By /s/ Xxxxxx X. Xxxx
Title: President
PERSONAL MASTER GUARANTEE
dated: as of September 1, 2000
to: Multi Media Machinery GmbH ("Lessor"), located at Xxxxxxxxxxxxxxxx 0 00000
Xxxxxxxxxxxxx, Xxxxxxx
RE: Lessee's obligations under:
1. Master Lease No. MMM0901 dated as of September 1, 2000 ("Master Lease")
2. Equipment Schedule No. 1 thereto dated as of September 1, 2000; and
3. any Equipment Schedules now or hereafter executed pursuant to the above
Master Lease all between Lessor and Applied Data Communications, Inc.
("Lessee"), located at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx XX 00000 (any
such Equipment Schedule, together with the Master Lease, hereinafter the
"Lease").
In consideration of the Lessor entering into the Lease with the Lessee,
Guarantor absolutely and unconditionally guarantees to such Lessor and any
assigns of Lessor (hereinafter called "Holder") the timely performance and full
payment of each and every obligation of Lessee under the Lease (collectively,
the "Obligations") including the payment promptly when due of every rental
payment and all other sums payable under the Lease and any rider, amendment or
addendum thereto or any other agreement executed in connection therewith,
irrespective of any invalidity or unenforceability thereof and the payment on
demand of the Default Value, as defined in the Lease, and any other amounts,
including Holder's attorney's fees and other expenses, payable under the Lease
if Lessee defaults in any payment of any rental payment at its due date or in
any other manner, without first requiring Holder to proceed against Lessee or
the collateral, and agrees to be bound by and on demand to pay any deficiency
established by a sale of the Lease and/or the collateral with or without notice
to Guarantor. THIS IS A CONTINUING GUARANTEE OF PAYMENT OF THE OBLIGATIONS DUE
UNDER EACH AND EVERY EQUIPMENT SCHEDULE NOW OR HEREAFTER EXECUTED PURSUANT TO
THE MASTER LEASE.
Guarantor waives notice of acceptance hereof and of any default by Lessee Holder
my, at its option, at any time, without consent or notice to Guarantor, without
incurring responsibility to Guarantor, without impairing or releasing
Guarantor's obligations under this Agreement, upon or without any terms or
conditions and in whole or in part under the Lease: (a) change the manner, place
or terms of payment or change or extend the time of payment of or renew, as
often and for such periods as Holder may determine or alter any of the
obligations hereby guaranteed or any liabilities incurred directly or indirectly
hereunder, and the guaranty made shall apply to the obligations hereby
guaranteed as some may be changed, extended, renewed or altered in any manner;
(b) sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in order any property at any time pledged or mortgaged to secure
or securing the obligations hereby guaranteed or any liabilities incurred
directly or indirectly hereunder or any offset against any said liabilities; (c)
exercise or refrain from exercising any rights against Lessee or others, or
otherwise act or refrain from acting; (d) settle or compromise any obligations
hereby guaranteed or liabilities hereby incurred; and (e) apply any sums paid to
any liability or liabilities of Lessee to holder regardless of what liability or
liabilities of Lessee to Holder remain unpaid. Guarantor agrees that the Holder
shall not be liable for, and the obligations under this Guarantee shall not be
discharged by, any failure to use diligence in the collection of any obligations
hereby guaranteed or any security therefore, in creating or preserving the
liability of any person liable on such obligations, or in creating, perfecting
or preserving any security for such obligations.
Guarantor (a) waives presentment and demand for payment, notice of dishonor or
nonpayment, notice of intent to accelerate or of acceleration, protest and
notice thereof, collection, and diligence in or the bringing of suit against any
person liable for any such obligations against any security therefor; (b)
subordinates any sums now or hereafter due him from Lessee (the "Subordinated
Indebtedness") to the payment of any sums now or hereafter due Holder form
Lessee and to notify Holder of existence or creation of any Subordinated
Indebtedness, and further agrees to execute such additional documents as Holder
deems desirable to complete or confirm such subordination, provided that unless
and until the Lessee is in default of the Lease, the undersigned may receive
payments of principal and interest on the Subordinated Indebtedness; (c) assumes
all responsibility for being and keeping informed of Lessee's financial
condition and assets and of all other circumstances bearing on the risk of
nonpayment of Lessee's obligations to Holder; and, (d) agrees to pay all costs
and expenses incurred by Holder, including attorneys' fees and collection costs,
in enforcing its rights under this Guarantee.
If any clam is made upon Holder at any time for repayment or recovery of any
amount(s) or other value received by Holder from any source in payment of or on
account of any of the Obligations of Lessee guaranteed hereunder and Holder
repays or otherwise becomes liable for all or any part of such claim, for
whatever reason, Guarantor shall remain liable to Holder hereunder as if such
amount(s) had never been received by Holder, notwithstanding any termination
hereof or the termination of the Lease or other agreements evidencing any of the
Obligations of Lessee. Any subsequent guarantee given by Guarantor or by other
party on behalf of Lessee shall not be considered to substitute for or to
terminate this Guarantee, but will be construed only as to provide additional
protection for Holder. No payment by Guarantor hereunder shall entitle
Guarantor, by subrogation or otherwise, to any payment by Lessee under or out of
the property of Lessee, except after the full performance, payments and
discharge of all of Lessee's Obligations to Holder.
Executed as of the date set forth above.
GUARANTOR: Xxxxxx Xxxxx Xxxx WITNESS:
By /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx, Xx.
Name Xxxxxx Xxxxx Xxxx Name: Xxxxx X. Xxxxxx, Xx.
Address: 00 Xxxxxxxx, Xxxx xx Xxxx, XX 00000 Address: 0000 Xxxxxxxx Xx.
Xxxxx Xxxx, XX 00000
EQUIPMENT SCHEDULE NO. 1
dated: as of September 1, 2000
under: MASTER LEASE No. MMM0901 dated as of September 1, 2000
between: Multi Media Machinery GmbH ("Lessor")
located at: Xxxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxxxx, Xxxxxxx
and: Applied Data Communications, Inc. ("Lessee")
located at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
1. MASTER LEASE AGREEMENT: This Equipment Schedule and Attachments A together
with the Master Lease Agreement incorporated herein by reference, constitute the
entire agreement as to the Lease and the Equipment.
2. EQUIPMENT DESCRIPTION AND LOCATION: As more fully described on the Attachment
A to Equipment Schedule No 1.
3. COMMENCEMENT DATE: September 28 , 2000
4. LEASE TERM: The Lease Term commences on the Commencement Date and continues
for 39 successive months thereafter.
5. RENTALS: For the stated Lease Term, Lessee shall pay to Lessor the rentals
due of which $33,300.00 is due in advance for the first rental and the balance
of the rentals due are payable as follows: 2 consecutive monthly payments of
$33,300.00, followed by 36 consecutive monthly payments of $15,107.00.
6. PURCHASE: At the end of the Lease hereof, without any notice of termination
from either party, Lessee shall purchase the Equipment for $302,600.00 which
amount Lessee shall pay to Lessor on the last day of the Lease Term.
7. ORIGINALITY: This is the only Original Equipment Schedule No. 1. Only
transfer of possession by Lessor of Originally Executed Copy No. 1 shall be
effective for purposes of perfecting an interest in this Schedule of possession.
8. EXECUTED: As of the date first set forth above.
LESSOR: Multi Media Machinery GmbH LESSEE: Applied Data
Communications, Inc.
By: By: /s/ Xxxxxx X. Xxxx
Name: Name: Xxxxxx X. Xxxx
Title Title: Chief Executive Officer
CERTIFICATE OF ACCEPTANCE
to: EQUIPMENT SCHEDULE No. 1 dated as of September 1, 2000
under: MASTER LEASE No. MMM0901 dated as of September 1, 2000
between: Multi Media Machinery GmbH ("Lessor")
located at: Xxxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxxxx, Xxxxxxx
and: Applied Data Communications, Inc. ("Lessee")
located at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
1. EQUIPMENT: Lessee hereby certifies that the Equipment detailed below is
listed in the above Equipment Schedule, is of a size, design, capacity and
manufacture selected by Lessee, has been delivered to the location indicated on
said Equipment Schedule, inspected by Lessee, found to be properly installed, in
good order and functioning according to manufacturer's specifications on the
Acceptance Date set forth below and, at such date, is, as between Lessee and
Lessor, unconditionally accepted by Lessee.
2. EQUIPMENT LOCATIONS AND DESCRIPTION: As more fully described on the
Attachment A to Equipment Schedule No. 1.
3. ACCEPTANCE DATE: September 28, 2000
4. REPRESENTATIONS BY LESSEE: As of the Acceptance Date, Lessee:
(a) acknowledges that: (1) Lessee has reviewed and approved any written Supply
Contract covering the Equipment purchased from the Supplier thereof; (2) Lessor
has informed or advised Lessee in writing, previously or hereby, of the
following: (i) the identity of the Supplier; (ii) that the Lessee may have
rights under the Supply Contract, if any; and (iii) that the Lessee may contract
the Supplier for a description of any such rights;
(b) represents and warrants to Lessor that Lessee has obtained, and there are in
full force and effect, such insurance policies with respect to the Equipment
accepted pursuant hereto as are required to be obtained under the terms of the
Master Lease; and,
5. Executed as of the Acceptance Date.
LESSEE: Applied Data Communications, Inc.
BY: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
ATTACHMENT A
to: EQUIPMENT SCHEDULE No. 1 dated as of September 1, 2000
under: MASTER LEASE No. MMM0901 dated as of September 1, 2000
between: Multi Media Machinery GmbH ("Lessor")
located at: Xxxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxxxx, Xxxxxxx
and: Applied Data Communications, Inc.
located at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
1. EQUIPMENT DESCRIPTION AND LOCATION:
Location 1: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
(* = Taxable)
Item No. Quantity Part No. Equipment Make, Model, and Description Total $ Cost
001 MCL 50 CD MANUFACTURING SYSTEM INCLUDING: 600,000.00
002 PROCESS INTEGRATION SUBSYSTEM
003 INTERFACE TO INJECTION MOLDING SUBSYSTEM
004 SUBSTRATE CONDITIONING MODULE
005 REFLECTIVE LAYER COATING MODULE
006 LACQUERING MODULE - 4M
007 INLINE DEFECT INSPECTION MODULE
008 FINAL PRODUCT SORTING AND STORAGE MODULE
009 AUTOMATION AND HANDLING
010 CONTROL SYSTEM - SIEMENS S7
011 CLEAN AIR HOOD (class 100) AND HOUSING
Attachment Total Cost: $600,000.00
Together with all parts, accessories, attachments, substitutions, repairs,
improvements and replacements, and any and all rights thereunder and proceeds
thereof,
including insurance proceeds.
2. Executed as of the date first set forth above.
LESSOR: Multi Media Machinery GmbH LESSEE: Applied Data Communications, Inc.
By By: /s/ Xxxxxx X. Xxxx
Name Name: Xxxxxx X. Xxxx
Title Title: Chief Executive Officer
INSURANCE REQUIREMENT
Agent:
This letter serves as authorization to issue insurance coverage for Applied Data
Communications, Inc. The policy should be amended to incorporate the following
items:
MULTI MEDIA MACHINERY AND ITS ASSIGNS are to be named LOSS PAYEE and ADDITIONAL
INSURED under the Property Damage coverage in the amount of $600,000.00
MULTI MEDIA MACHINERY AND ITS ASSIGNS are to be named ADDITIONAL INSURED under
the existing General Liability coverage ($2,000,000.00 minimum) which may
include Excess Liability.
Coverage needs to be ALL RISK with REPLACEMENT COST GUARANTEED and should also
include 30 days notice prior to cancellation and/or termination. NO BINDERS
ACCEPTABLE.
For Equipment housed in Mobile Vehicles, please include the following
MULTI MEDIA MACHINERY GMBH AND ITS ASSIGNS are to be named ADDITIONAL INSURED
under the existing Automobile Liability coverage. Please include Property
Damage coverage.
EQUIPMENT LOCATION TO BE COVERED: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxx XX 00000
EQUIPMENT DESCRIPTION: (Lessor Lease # MMM0901-01)
(Refer to the description above or the attached "Exhibit A" which by this
reference is made part hereof) TOGETHER WITH ALL PARTS, ACCESSORIES,
ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS THERETO AND
THEREFORE.
The Contract number(s) must be listed on the Insurance Certificate, along with
the equipment description.
Property damage coverage will need to be increased to cover the above dollar
amount where the existing policy is insufficient so that our equipment will be
adequately insured.
The Certificate of Insurance evidencing the above items should include the
Policy number(s) and date(s) of expiration. Also include your name, address and
telephone number in the Agent/Producer Box.
Fax a copy to (000) 000-0000 for review and approval prior to following up with
the original hard copy directly to Multi Media Machinery GmbH, C/O RMS Capital
Corporation located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000 ATTN: Insurance
Dept. Forward a Renewal Certificate each year upon policy expiration to the
same address. You will be notified in writing when our interest has been
satisfied.
Please be advised failure to provide such evidence of coverage will negatively
impact our mutual customer, prevent funding of this transaction and could
ultimately lead to or force placement of insurance coverage at our Customers'
expense. If you are not authorized to issue a Certificate, please contact our
office immediately.
My signature authorizes Multi media Machinery GmbH to contact my insurance agent
for the purpose of obtaining insurance coverage on equipment I will be financing
through them.
Lessee: Applied Data Communications, Inc.
By: /s/ Xxxxxx X. Xxxx
Print Name: Xxxxxx X. Xxxx, CEO
Return signed original to Multi Media Machinery GmbH C/O RMS Capital
Corporation, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000
EXHIBIT TO INSURANCE
to: EQUIPMENT SCHEDULE No 1 dated as of Septmber 1, 2000
under: MASTER LEASE No MMM0901 dated as of September 1, 2000
between: Multi Media Machinery GmbH ("Lessor")
located at: Xxxxxxxxxxxxxxxx 0 00000 Xxxxxxxxxxxxx. Xxxxxxx
and: Applied Data Communications. Inc.
located at: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
1. EQUIPMENT DESCRIPTION AND LOCATION:
Location 1: 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxx, XX 00000
Item No. Quantity Part No. Equipment Make, Model, and Description
001 MCL 50 CD MANUFACTURING SYSTEM INCLUDING:
002 PROCESS INTEGRATION SUBSYSTEM
003 INTERFACE TO INJECTION MOLDING SUBSYSTEM
004 SUBSTRATE CONDITIONING MODULE
005 REFLECTIVE LAYER COATING MODULE
006 LACQUERING MODULE - 4M
007 INLINE DEFECT INSPECTION MODULE
008 FINAL PRODUCT SORTING AND STORAGE MODULE
009 AUTOMATION AND HANDLING
010 CONTROL SYSTEM - SIEMENS S7
011 CLEAN AIR HOOD (class 100) AND HOUSING
EXHIBIT A TO UCC-1 FINANCING STATEMENT
TR# MMM0901
1. COLLATERAL: (1) That Master Lease No. MMM0901 dated September 1, 2000 between
Secured Party , as Lessor, and Debtor, as Lessee, and all Equipment Schedules
now or hereafter executed pursuant to the said Master Lease and all proceeds
thereof and (2) all equipment and other personal property (including any and all
modifications, attachments, related parts, accessories and additions thereto and
substitutions and replacements therefor, in whole or in part, and all chattel
paper, rentals, accounts receivable, general intangibles and other income
related thereto or arising therefrom and all proceeds thereof including, without
limitation, insurance proceeds) now or hereafter leased under such Master Lease
and Equipment Schedule(s).
Notwithstanding the foregoing, if the transaction represented by a articular
Equipment Schedule now or hereafter executed pursuant to said Master Lease is
intended to be a true lease, then this financing statement, as it pertains to
that particular Equipment Schedule, is filed for information purposes only.
