Sun
Microsystems
SUN MICROSYSTEMS FINANCE
MASTER LEASE AGREEMENT
Master Lease # SL7082094
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor,
subject to the following terms of this Master Lease Agreement ("Master Lease")
and any Lease Schedule ("Schedule"), collectively referred to as the Lease
("Lease"), the personal property described in any Schedule together with all
attachments, replacements, parts, substitutions, additions, upgrades,
accessories, software licenses and operating manuals (the "Product"). Each
Schedule shall constitute a separate, distinct, and independent Lease and
contractual obligation of Lessee.
1. Commencement Date and Term
The initial lease term ("Initial Term") and Lessee's rental obligations shall
begin on the Commencement Date and continue for the number of Rental Periods
specified in the Lease as set forth in Section 2 below and shall renew
automatically thereafter until terminated by either party upon not less than
ninety (90) days prior written notice. The Commencement Date with respect to
each item of Product shall be the 16th day after date of shipment to Lessee.
2. Rent and Rental Period
All rental payments and any other amounts payable under a Lease are
collectively referred to as "Rent". The Rental Period shall mean the rental
payment period of either calendar months, quarters, or as otherwise specified
in each Schedule. Rent for the specified Rental Period is due and payable in
advance, to the address specified in Lessor's invoice, on the first day of
each Rental Period during the Initial Term and any extension (collectively,
the "lease Term"), provided, however, that Rent for the period of time (if
any) from the Commencement Date to the first day of the first Rental Period
shall begin to accrue on the commencement Date. If any Rent is not paid when
due, Lessee will pay a service fee equal to five percent (5%) of the overdue
amount plus interest at the rate of one and one half percent (1.5%) per month
or the maximum legal interest rate, whichever is less.
3. Net Lease, Taxes and Fees
Each Schedule shall constitute a net lease and payment of Rent shall be
absolute and unconditional, and shall not be subject to any abatement,
reduction, set off, defense, counterclaim, interruption, deferment or
recoupment for any reason whatsoever. Lessee agrees to pay Lessor when due
shipping charges, fees, assessments and all taxes (municipal, state and
federal) imposed upon a Lease or the Product or its ownership, leasing,
renting, possession or use except for taxes based on Lessor's income.
4. Title
Product shall always remain personal property. Lessee shall have no right or
interest in the Product except as provided in this Master Lease and the
applicable Schedule and shall hold the Product subject and subordinate to the
rights of Lessor. Lessee agrees to execute UCC financing statements as and
when requested by Lessor and hereby appoints Lessor as its attorney-in-fact to
execute such financing statements. Lessor may file a photocopy of any Lease as
a financing statement.
Lessee will, at its expense, keep the Product free and clear from any liens or
encumbrances of any kind (except any caused by Lessor) and will indemnify and
hold harmless from and against any loss or expense caused by Lessee's failure
to do so. Lessee shall give Lessor immediate written notice of any attachment
or judicial process affecting the Product or Lessor's ownership. If requested,
Lessee will label the Product as the property of Lessor and shall allow,
subject to Lessee's reasonable security requirements, the inspection of the
Product during regular business hours.
5. Use, Maintenance and Repair
Lessee, at its own expense, shall keep the Product in good repair, appearance
and condition, other than normal wear and tear and shall obtain and keep in
effect throughout the term of the Schedule a hardware and software maintenance
agreement with the manufacturer or other party acceptable to Lessor. All parts
furnished in connection with such repair and maintenance shall be manufacturer
authorized parts and shall immediately become components of the Product and
the property of Lessor. Lessee shall use the Product in compliance with the
manufacturer's or supplier's suggested guidelines.
6. Delivery and Return of Product
Lessee assumes the full expense of transportation, insurance, and installation
to Lessee's site. Upon termination of each Schedule, Lessee will provide
Lessor a letter from the manufacturer certifying that the Product is in good
operating condition and is eligible for continued maintenance and that the
operation system is at the then current level, unless under a Sun service
contract during the Lease Term. Lessee, at its expense, shall deinstall, pack
and ship the Product to a U.S. location identified by Lessor. Lessee shall
remain obligated to pay Rent on the Product until the Product and
certification are received by Lessor.
7. Assignment and Relocation
Lessee may sublease or assign its rights under this agreement with lessor's
prior written consent, which consent shall not be unreasonably withheld,
subject, however, to any terms and conditions which Lessor may require. No
permitted assignment or sublease shall relieve Lessee of any of its
obligations hereunder.
Lessee acknowledges Lessor may sell and/or assign its interest or grant a
security interest in each Lease and/or the Product to an assignee ("lessor's
Assignee"), so long as Lessee is not in default hereunder. Lessor or Lessor's
Assignee shall not interfere with Lessee's right of quiet enjoyment and use of
the Product. Upon the assignment of each Lease, Lessor's Assignee shall have
any and all discretions, rights and remedies of Lessor and all references to
Lessor shall mean Lessor's Assignee. In no event shall any assignee of Lessor
be obligated to perform any duty, covenant or condition under this Lease and
Lessee agrees it shall pay such assignee without any defense, rights of
set-off or counterclaims and shall not hold or attempt to hold such assignee
liable for any of Lessor's obligations hereunder.
Lessee, at its expense, may relocate Product (after packing it for shipment in
accordance with the manufacturer's instructions) to a different address within
thirty (30) days prior written notice to Lessor. The Product shall at all
times be used solely within the United States.
8. Upgrades and Additions
Lessee may affix or install any accessory, addition, upgrade, equipment or
device on the Product ("Additions") provided that such Additions (i) can be
removed without causing material damage to the Product, (ii) do not reduce the
value of the Produce and (iii) are obtained from or approved by Sun
Microsystems Computer Corporation and are not subject to the interest of any
third party other than Lessor. Any other Additions may not be installed
without Lessor's prior written consent. At the end of the Schedule Term,
Lessee shall remove any Additions which (i) were not leased by Lessor and (ii)
are readily removable without causing material damage or impairment of the
intended function, use, or value of the Product and restore the Product to its
original configuration. Any Additions which are not so removable will become
the lessor's property (lien free).
9. Lease End Options
Upon written notice given at least ninety (90) days prior to expiration of the
Lease Term, and provided Lessee is not in default under any Schedule, Lessee
may (i) exercise any purchase option set forth on the Schedule, or (ii) renew
the Schedule for a minimum extension period of twelve (12) months, or (iii)
return the Product to Lessor at the expiration date of the Schedule pursuant
to Section 6 above.
10. Insurance, Loss or Damage
Effective upon shipment of Product to Lessee and until Product is received by
lessor, Lessee shall provide at its expense (i) insurance against the loss or
theft or damage to the Product for the full replacement value, and (ii)
insurance against public liability and property damage. Lessee shall provide a
certificate of insurance that such coverage is in effect, upon request by
Lessor, naming Lessor as loss payee and/or additional insured as may be
required.
Lessee shall bear the entire risk of loss, theft, destruction of or damage to
any item of Product. No loss or damage shall relieve Lessee of the obligation
to pay Rent or any other obligation under the Schedule. In the event of loss
or damage, Lessee shall promptly notify Lessor and shall, at Lessor's option,
(i) place the Product in good condition and repair, or (ii) replace the
Product with lien free Product of the same model, type and configuration in
which case the relevant Schedule shall continue in full force and effect and
clear title in such Product shall automatically vest in Lessor, or (iii) pay
Lessor the present value of remaining Rent plus the buyout purchase option
price provided for in the applicable Schedule.
11. Selection, Warranties and Limitation of Liability
Lessee acknowledges that it has selected the Product and disclaims any
reliance upon statements made by lessor. Lessee acknowledges and agrees that
use and possession of the Product by Lessee shall be subject to and controlled
by the terms of any manufacturer's or, if appropriate, supplier's warranty,
and Lessee agrees to look solely to the manufacturer or, if appropriate,
supplier with respect to all mechanical, service and other claims, and the
right to enforce all warranties made by said manufacturer are hereby assigned
to Lessee for the term of the Schedule.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, LESSOR HAS NOT MADE AND DOES NOT MAKE
ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, THE DESIGN,
QUALITY, CAPACITY OR CONDITION OF THE PRODUCT, ITS MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE. IT BEING AGREED THAT AS THE LESSEE SELECTED BOTH
THE PRODUCT AND THE SUPPLIER, NO DEFECT, EITHER PATENT OR LATENT SHALL RELIEVE
LESSEE OF ITS OBLIGATION HEREUNDER. LESSEE AGREES THAT LESSOR SHALL NOT BE
LIABLE FOR SPECIFIC PERFORMANCE OR ANY LIABILITY, LOSS, DAMAGE OR EXPENSE OF
ANY KIND INCLUDING, WITHOUT LIMITATION, INDIRECT, INCIDENTAL CONSEQUENTIAL, OR
SPECIAL DAMAGES OF ANY NATURE, DAMAGES ARISING FROM THE LOSS OF USE OF
PRODUCT, LOST DATA, LOST PROFITS, OR FOR ANY CLAIM OR DEMAND.
12. Indemnity
Lessee shall indemnify and hold harmless Lessor and Lessor's Assignee from and
against any and all claims, actions, suits, proceedings, liabilities, damages,
penalties, costs and expenses (including reasonable attorneys' fees), arising
out of the use, operation, possession, ownership (for strict liability in tort
only), selection, leasing, maintenance, delivery or return of any item of
Product.
13. Default and Remedies
Lessee shall be in default of any Lease if (i) Lessee fails to pay Rent within
ten (10) days of due date; (ii) Lessee fails to perform or observe or breaches
any covenant or condition of any representation or warranty in such Lease, and
such failure or breach continues unremitted for a period of ten (10) days
after written notice from Lessor, (iii) Lessee, except as expressly permitted
in the Lease, attempts to move, sell, transfer, encumber, or sublet without
consent any item of Product leased under such Lease; (iv) Lessee files or has
filed against it a petition in bankruptcy or becomes insolvent or makes an
assignment for the benefit of creditors or consents to the appointment of a
trustee or receiver or either shall be appointed for Lessee or for a
substantial part of its property without its consent, or (v) Lessee or any
guarantor of Lessee is declared legally deceased or if Lessee shall terminate
its existence by merger, consolidation, sale of substantially all of its
assets or otherwise.
Upon default, Lessor may, at its option, take one or more of the following
actions, (i) declare all sums due and to become due under the Schedule
immediately due and payable, (ii) require Lessee to return immediately all
Product leased under such Schedule to Lessor in accordance with Paragraph 6
hereof, (iii) without breach of the peace take immediate possession of and
remove the Product; (iv) sell any or all of the Product at public or private
sale or otherwise dispose of, hold, use or lease to others, or, (v) exercise
any right or remedy which may be available to Lessor under applicable law,
including the right to recover damages for the breach of the Schedule. In
addition, Lessee shall be liable for reasonable attorney's fees, other costs
and expenses resulting from any default, or the exercise of Lessor's remedies,
including placing such Product in the condition required by Paragraph 6
hereof. Each remedy shall be cumulative and in addition to any other remedy
otherwise available to Lessor at law or in equity. No express or implied
waiver of any default shall constitute a waiver of any of Lessor's other
rights.
14. Lessee's Representations
Lessee represents and warrants for this Master Lease and each Schedule the
execution, delivery and performance by Lessee have been duly authorized by all
necessary corporate action; the individual executing was duly authorized to do
so; the Master Lease and each Schedule constitute valid, binding agreements of
the Lessee enforceable in accordance with their terms; that all information
supplied by Lessee, including but not limited to the credit application and
other financial information concerning Lessee, is accurate in all material
respects as of the date provided; and if there is any material change in such
information prior to the manufacturer's or, if appropriate, Supplier's
shipment of Product under the Schedule, Lessee will advise Lessor of such
change in writing.
15. Applicable Law
This Master Lease and each Schedule shall in all respects be governed by and
construed in accordance with the laws of the state of California without
giving effect to the principles of conflict of laws.
16. Miscellaneous
Lessee agrees to execute and deliver to Lessor such further documents,
including, but not limited to, financing statements, assignments, and
financial reports and take such further action as Lessor may reasonably
request to protect Lessor's interest in the Product.
The performance of any act or payment by Lessor shall not be deemed a waiver
of any obligation or default on the part of the Lessee. Lessor's failure to
require strict performance by Lessee of any of the provisions of this Master
Lease shall not be a waiver thereof. No rights or remedies referred to in
Article 2A of the Uniform Commercial code will be conferred on Lessee unless
expressly granted in this Master Lease.
This Master Lease together with any Schedule constitutes the entire
understanding between the parties and supersedes any previous representations
or agreements whether verbal or written with respect to the use, possession
and lease of the Product described in that Schedule, In the event of a
conflict, the terms of the Schedule shall prevail over the Master Lease.
No amendment or change of any of the terms or conditions herein shall be
binding upon either party unless they are made in writing and are signed by an
authorized representative of each party. Each Schedule is non-cancellable for
the full term specified and each Schedule shall be binding upon, and shall
inure to the benefit of Lessor, Lessee, and their respective successors, legal
representatives and permitted assigns.
All agreements, representations and warranties contained herein shall be for
the benefit of Lessor and shall survive the execution, delivery and
termination of this Master Lease, any Schedule or related document.
Any provision of this Master Agreement and/or each Schedule which is
unenforceable shall not cause any other remaining provision to be ineffective
or invalid. The captions set forth herein are for convenience only and shall
not define or limit any of the terms hereof. Any notices or demands in
connection with any Schedule shall be given in writing by regular or certified
mail at the address indicated in the Schedule, or to any other address
specified.
THIS MASTER LEASE SHALL BECOME EFFECTIVE ON THE DATE ACCEPTED BY LESSOR.
LESSOR: SUN MICROSYSTEMS FINANCE
A Sun Microsystems, Inc. Business
_______________________________________
/s/ Xxxx Xxxxxx
By: _______________________________________
(Authorized Signature)
Xxxx Xxxxxx
Name: ____________________________________
Manager of Lease Originations
Title: _____________________________________
11/17/99
Date: _____________________________________
Wordcruncher Internet Technologies, Inc.
Lessee: ________________________________________
(Full name of Lessee) (Business Entity)
/s/ Xxxxxxx X. Xxxx
By: _______________________________________
(Authorized Signature)
Xxxxxxx X. Xxxx
Name: _____________________________________
Sr. VP & CFO
Title: ______________________________________
Sun Microsystems, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000
October 20, 2000
Xx. Xxx Xxxxxxxx
Logio, Inc.
000 Xxxx 00000 Xxxxx
Xxxxx X
Xxxxxx, XX 00000
Re: SunLease Account #00000000
Please note that your SunLease is being processed and is subject to the
changes below. Please review these changes and, if requested, sign and return
this letter to the address above. These changes will become part of your
lease documentation as reflected in the Terms and Conditions thereof.
[X] The Rental Terms of your lease have been changed.
[ ] The Equipment Configuration of your lease has changed.
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OLD TERMS NEW TERMS
Term: 24 Months Remaining Term: 26 Months
Effective Date: 01-01-00 Effective Date:11-01-00
Monthly Payment:$23,779.00* Monthly Payment:$19,000.00*
Purchase Option: Fair Market Value Purchase Option: Fair Market Value
Equipment Amount:$806,456.55 Equipment Amount:$806,456.55
*Lease payments must be made using Automatic Bank Withdrawal (ACH)
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Reason for Change: You are extending you lease for an additional 12 month
term. This now becomes part of your lease agreement.
[X] PLEASE SIGN AND RETURN THIS NOTICE AS SOON AS POSSIBLE ALONG WITH A
REVISED PURCHASE ORDER.
[ ] THIS CHANGE WILL OCCUR AUTOMATICALLY. NO NEED TO RETURN THIS NOTICE.
THANK YOU FOR CHOOSING SUN MICROSYSTEMS FINANCE. WE LOOK FORWARD TO SERVICING
YOU AGAIN.
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Sincerely, [x] Accepted and Acknowledged
/s/ Deni Xx Xxxx /s/ Xxxxxxx Xxxx
Deni Xx Xxxx Signature:_______________________
Sun Program Administration Supervisor Title: CEO Date: 10/23/00
Sun Microsystems Finance
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
000 000-0000
Lease Schedule ("Schedule") No.004
To Master Lease Agreement ("Master Lease") No. SL7082094
_____________________________________________________________________________
Name: WordCruncher Internet Technologies, Inc.| SUN MICROSYSTEMS FINANCE, A
| SUN MICROSYSTEMS,INC. BUSINESS
ADDRESS: 405 East 12450 South | 000 XXX XXXXXXX XXXX
Xxxxx X | XXXX XXXX, XX 00000
Xxxxxx, XX 00000 |
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ADMIN. CONTACT: Mr. Xxx Xxxx | PHONE NO.: 000-000-0000
PHONE NO.:000-000-0000 | FAX NO. 000-000-0000
______________________________________________________________________________
|
| LEASE TERM:24 MONTHS
Same as above | RENTAL: 1,494.42* PER MONTH
| * Payments to be made using
| Automatic Bank Withdrawal
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LESSEE PURCHASE ORDER NO.:__________________ | SALES/USE TAX: Payment amount
| may be increased to
CONTACT: ___________________________________ | include applicable
| sales/use tax.
PHONE NO.:__________________________________ |
|
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| [x] XFMV PURCHASE OR RENEWAL
Same as above | [ ] $1 PURCHASE OPTION
| [ ] 10% PURCHASE OPTION
| [ ] OTHER:
CONTACT:_____________________________________ |
|
PHONE NO.:___________________________________ |
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PRODUCT DESCRIPTION AS DESCRIBED IN INTEGRATED BUSINESS SOLUTIONS INVOICE
NO.'S 3534 (LESS INSTALLATION), 3486,3550 & 3583 ATTACHED HERETO.
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MASTER AGREEMENT: This Schedule is issued and effective this date set forth
below pursuant to the Master Lease identified above. All of the terms,
conditions, representations and warranties of the Master Lease are hereby
incorporated herein and made a part hereof as if they were expressly set forth
in this Schedule and this Schedule constitutes a separately enforceable,
complete and independent lease with respect to the Product described herein.
By their execution and delivery of this Schedule, the parties hereby affirm
all of the terms, conditions, representations and warranties of the Master
Lease.
The Additional terms set forth on the reverse side hereof are made a part of
this Schedule.
AGREED AND ACCEPTED BY: AGREED AND ACCEPTED BY:
SUN MICROSYSTEMS FINANCE LESSEE WordCruncher Internet
A Sun Microsystems, Inc. Business Technologies, Inc.
BY: /s/ Xxxxxx X Xxxxxxxxx BY: /s/ Xxxxxxx X. Xxxx
______________________________ __________________________
NAME: Xxxxxx X. Xxxxxxxxx NAME: Xxxxxxx X. Xxxx
TITLE: Sun Programs Manager TITLE: CFO
DATE: 01/02/00 DATE: 4/17/00
