Exhibit 10.1
Master Lease Agreement
No. M02433
XXXXXXX CAPITAL, INC.
Date: 10/07/99
Lessor: Xxxxxxx Capital, Inc. Lessee: Centennial Technologies, Inc.
Address: 0000 Xxxx Xxxxxx, Xxxxx #000 Address: 0 Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
1. LEASE OF EQUIPMENT
On the terms and conditions of this Master Lease Agreement (the "Master
Agreement") Lessor leases to Lessee and Lessee leases from Lessor, the items of
personal property, together with a11 replacement parts, repairs, additions and
accessions thereto (collectively, the "Equipment" and individually, an "Item")
described in each Lease Schedule(s) (a "Lease Schedule") which incorporates this
Master Agreement. Notwithstanding anything to the contrary, the terms and
conditions of this Master Agreement shall be construed and interpreted as to
each Lease Schedule as if a separate lease shall have been executed between the
parties with regard to the Equipment on such Lease Schedule. The term "Lease"
when used herein shall refer to an individual Lease Schedule which incorporates
this Master Agreement. In the event of any conflict between the provisions of
any Lease Schedule and those of this Master Agreement, the provisions of the
Lease Schedule shall be controlling, but only with respect to such Lease
Schedule. Until a Lease is duly executed by Lessor, a Lease signed by Lessee
constitutes an irrevocable offer by Lessee to lease from Lessor. The Equipment
is to be delivered and installed at Lessee's expense at the location specified
on the applicable Lease Schedule. The Equipment shall be deemed to have been
accepted by Lessee for all purposes under the Lease upon Lessor's receipt of a
Delivery and Acceptance Certificate, or other evidence of acceptance
satisfactory to Lessor, executed by Lessee with respect to such Equipment (the
"Acceptance Certificate"). Lessee shall inspect each Item upon delivery and
promptly execute and deliver to Lessor an Acceptance Certificate with respect
thereto if such Item is acceptable to Lessee. Lessor shall not be liable or
responsible for any failure or delay in the delivery of the Equipment to Lessee
for whatever reason.
2. TERM AND RENT
(a) Rate floats, fixed at time of funding. The monthly rental payment stated in
the attached "Lease Schedule", is subject to increase, if like Treasury rates on
the date of the Lessee's signed acceptance of the Equipment are 25 basis points
or more greater than the rates for like Treasury's on the date Lessee signs this
Lease. The increase shall be based upon the entire increase in basis points. (b)
The term of each Lease shall be comprised of the Installation Term and the
Initial Term. The "Installation Term" shall commence on the date Lessee has
accepted the Equipment as evidenced by the date indicated on the applicable
Acceptance Certificate (the "Acceptance Date") and terminate on the Commencement
Date. The "Commencement Date" shall mean, where the Acceptance Date for the
Equipment falls on the first day of the month (if scheduled rental payments are
due monthly) or quarter (if scheduled rental payments are due quarterly), that
date, or in any other case, the first day of the month or quarter following the
month or quarter, as applicable, in which such Acceptance Date falls. The
"Initial Term" of the Lease shall commence on the Commencement Date and shall
continue for the number of months or quarters, as applicable, specified in the
Lease. Rental payments shall be in the amounts and shall be due and payable as
set forth in the Lease, whether or not Lessee has received any notice that such
payments are due. Lessee shall, in addition, pay interim rent to Lessor on a
pro-rata basis from the Acceptance Date to the Commencement Date on such
Commencement Date. If any rent or other amount payable under a Lease is not paid
when due, Lessee shall pay as an administrative and late charge an amount equal
to 10% of the amount of any such overdue payment, beginning with the second such
late payment. In addition, Lessee shall pay interest on such delinquent payment
from 30 days after its due date until paid at the rate of 1 1/2% per month or
the maximum amount permitted by law, whichever is lower. All payments to be made
to Lessor shall be made to Lessor at the address shown above, or at such other
place as Lessor shall specify in writing. (c) A Lease shall be automatically
extended at the expiration of the Initial Term for a term of four (4) months
(such four month period and any subsequent monthly extension thereof referred to
herein as the "Extended Term") unless Lessee gives written notice to Lessor not
less than three (3) months prior to such expiration date of Lessee's election to
(i) return the Equipment pursuant to Section 19 of the Master Agreement or (ii)
exercise its options, if any, to purchase the Equipment described in such Lease
or to renew such Lease. Thereafter, the term of such Lease will be extended for
subsequent full month periods, on a month to month basis, until Lessee has given
Lessor at least 120 days written notice of termination of such Lease. The rental
set forth in the Lease shall continue to be due and payable by Lessee on the
same periodic basis during such Extended Term (the phrases Installation Term,
Initial Term and Extension Term are sometimes collectively referred to herein as
"Term") Failure by Lessee to return the Equipment in accordance with Section 19
when notice of termination had been provided by Lessee to Lessor shall render
such notice null and void. At any time after the expiration of the Initial Term,
if the Lease has been automatically extended as set forth herein, Lessor
reserves the right to terminate the Lease upon 30 days written notice to Lessee.
3. POSSESSION; INSPECTION; PERSONAL PROPERTY
No right, title or interest in the Equipment shall pass to Lessee other than the
right to maintain possession and use of the Equipment for the term of the Lease
(provided no Event of Default, as defined below, exists) free from interference
by any person claiming by, through or under Lessor. At its option, Lessor may
require Lessee, at Lessee's expense, to affix labels, plates or markings in a
prominent location on the Equipment indicating Lessor is the owner. Each Item
shall be kept at the location set forth in the applicable Lease Schedule. Lessor
may enter the premises where the Equipment is located during business hours for
the purpose of inspecting the Equipment and, during the last four months of the
Initial Term or during the Extended Term, for the purposes of showing the
Equipment to prospective purchasers or lessees of the Equipment. The Equipment
shall always remain personal property even though the Equipment may hereafter
become attached or affixed to real property. LESSEE SHALL KEEP EACH ITEM FREE
AND CLEAR OF ALL LIENS AND OTHER ENCUMBRANCES, OTHER THAN THOSE ARISING BY,
THROUGH OR UNDER LESSOR.
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 Lease Schedule and (b) 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 Lease 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 5 hereof. At Lessor's request, 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.
5. PURCHASE OF EQUIPMENT
Provided that no Event of Default (as defined in Section 10) 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 and to lease the same to Lessee if, and only if, Lessor receives on or
before the "Commitment Expiration Date" set forth in the applicable Lease
Schedule, the related Acceptance Certificate and said Lease Schedule (both
executed by Lessee), and such other documents and assurances as Lessor may
reasonably request. If for any reason a Lease does not commence by such
Commitment Expiration Date, Lessor shall have no obligation to purchase the
Equipment and Lessor may reassign to Lessee all rights under the Purchase
Documents and Lessee shall be liable to (a) Seller for any payment due under the
Purchase Documents or (b) Lessor for any payment made by it to Seller thereunder
and any unpaid interim rent owing Lessor related to such payment.
6. DISCLAIMER OF WARRANTIES
LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, OR THE AGENT
THEREOF, AND MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS
FOR A PARTICULAR PURPOSE, ITS DESIGN OR CONDITION, ITS CAPACITY OR DURABILITY,
THE QUALITY OF THE MATERIAL OR WORKMANSHIP, CONFORMITY OF THE EQUIPMENT TO THE
PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER RELATING THERETO, OR PATENT
INFRINGEMENTS, AND HEREBY DISCLAIMS ANY SUCH WARRANTY. LESSOR IS NOT RESPONSIBLE
FOR ANY REPAIRS OR SERVICE TO THE EQUIPMENT, DEFECTS THEREIN OR FAILURES IN THE
OPERATION THEREOF. Lessee has made the selection of each Item and the
manufacturer and/or supplier thereof based on its own judgment and expressly
disclaims any reliance upon any statements or representations made by Lessor.
For so long as no Event of Default exists, Lessee shall be the beneficiary of,
and shall be entitled to, all rights under any applicable manufacturer's or
vendor's warranties with respect to the Equipment, to the extent permitted by
law, and shall apply any recoveries first to repair or restore the Equipment. If
the Equipment is not delivered, is not properly installed, does not operate as
warranted, becomes obsolete or is unsatisfactory for any reason whatsoever,
Lessee shall make all claims on account thereof solely against the manufacturer
or supplier and not against Lessor, and Lessee shall nevertheless pay all
rentals and other sums payable under the Lease. Lessee acknowledges that neither
the manufacturer or supplier of the Equipment, nor any sales representative or
agent thereof, is an agent of Lessor, and no agreement or representation as to
the Equipment or any other matter by such sales representative or agent of the
manufacturer or supplier shall in any way affect Lessee's obligations hereunder.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
As of the execution date of each Lease, Lessee represents and warrants to and
covenants with Lessor as follows: (a) Lessee is duly organized and existing in
good standing under the laws of the state of its organization and is duly
qualified to do business wherever necessary to carry on its present business and
operations and to own its property; (b) the execution, delivery and performance
by Lessee of its obligations under this Master Agreement and each Lease have
been duly authorized by all necessary action on the part of Lessee consistent
with its form of organization, do not require any further shareholder or partner
approval, do not require the approval of, or the giving notice to, any federal,
state, local or foreign governmental authority and do not contravene any law
binding on Lessee or contravene Lessee's certificate or articles of
incorporation, or its by-laws or partnership certificate, or any agreement,
indenture, or other instrument to which Lessee is a party or by which it may be
bound; (c) this Master Agreement and each Lease have been duly executed and
delivered by Lessee and constitute legal, valid and binding obligations of
Lessee enforceable in accordance with their terms; (d) there are no material
adverse changes in the financial condition or operation of Lessee since the date
of its financial statements most recently provided to Lessor nor any pending or
threatened actions or proceedings before any court or administrative agency
which may materially adversely affect Lessee's financial condition or
operations, and all information so provided is, and all information hereafter
furnished will be, true and correct in all material respects; (e) Lessor has not
selected, manufactured or supplied the Equipment and has acquired any Equipment
subject to the Lease solely in connection with the Lease and Lessee has either
(i) received, reviewed and approved the terms of the associated Purchase
Documents or (ii) has been informed by Lessor (x) of the identity of the Seller,
(y) that Lessee may have rights under the Purchase Documents and (z) that Lessee
may contact Seller for a description of such rights; (f) the Lessee has (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by the Lessee or any
of its Subsidiaries (or suppliers, vendors and customers) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable. Based on the
foregoing, the Lessee believes that all computer applications that are material
to its or any of its Subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
compliant"), except to the extent that a failure to do so could not reasonably
be expected to have Material Adverse Effect.
8. INDEMNITY
Lessee assumes the risk of liability for, and hereby agrees to indemnify and
hold safe and harmless, and covenants to defend, Lessor, its employees, servants
and agents from and against: (a) any and all harm, liabilities, losses, damages,
claims and expenses (including legal expenses of every kind and nature), other
than those directly caused by Lessor's gross negligence or willful misconduct,
arising out of or in connection with the manufacture, purchase, shipment and
delivery to Lessee, acceptance or rejection, ownership, titling, registration,
leasing, possession, operation, use, return or other disposition of the
Equipment, including, without limitation, any of such as may arise from patent
or latent defects in the Equipment (whether or not discoverable by Lessee), any
claims based on absolute tort liability or warranty and any claims based on
patent, trademark or copyright infringement; (b) any and all loss or damage of
or to the Equipment, normal wear and tear excepted; and (c) any obligation or
liability to the manufacturer and any supplier of the Equipment arising under
the Purchase Documents other than the obligation to purchase the Equipment in
accordance with terms of the Lease. The covenants and indemnities contained in
this Section 8 and in Section 9 shall survive the expiration or other
termination of the Lease.
9. TAXES AND OTHER CHARGES
Lessee shall reimburse Lessor (or pay directly to the appropriate taxing
authority if, and only if, so instructed by Lessor) all license fees,
assessments, and sales, use, gross receipts, property, ad valorem, excise,
privilege and other taxes (including any related interest and penalties) or
other charges or fees now or hereafter imposed by any governmental body or
agency upon Lessor, Lessee, any Lease or any Equipment, or with respect to the
manufacturing, ordering, shipment, purchase, ownership, delivery, installation,
leasing, operation, possession, use, return, or other disposition thereof or the
rentals hereunder (other than taxes on or measured solely by the net income of
Lessor). The foregoing indemnity shall continue in full force and effect
notwithstanding the expiration or other termination of the Lease.
10. DEFAULT
The occurrence of any one or more of the following events shall be deemed an
"Event of Default" under each and every Lease: (a) Lessee shall fail to make any
payment, of rent or otherwise, under any Lease when such payment is due and does
not cure such default within 5 days of written notice by Lessor; or (b) Lessee
shall fail to perform or observe any covenant, condition or agreement under any
Lease, and such failure continues for 10 days after Lessee's first knowledge of
such failure; or, if more than 10 days are reasonably required to cure such
failure, Lessee fails to commence and to diligently pursue the performance of
such obligations within such 10 day period; or (c) Lessee shall default in the
payment of any indebtedness to Lessor or any parent, subsidiary or affiliated
company of Lessor, or if Lessee shall default in the performance of or
compliance with any term contained in any agreement or instrument with respect
to such indebtedness, if the effect of such default is to cause or permit such
indebtedness to become due prior to its stated maturity; or (d) any
representation or warranty made by Lessee herein or in any certificate,
agreement, statement or document heretofore or hereafter furnished to Lessor in
connection herewith, including, without limitation, any financial information
disclosed to Lessor, shall prove to be false or incorrect in any material
respect; or (e) the death or judicial declaration of incompetence of Lessee, if
an individual; the commencement of any bankruptcy, insolvency arrangement,
reorganization, receivership, liquidation or other similar proceeding by or
against Lessee or any of its properties or business, or the appointment of a
trustee, receiver, liquidator or custodian for Lessee or any of its properties
or business, or Lessee suffers the entry of an order for relief under Title 11
of the United States Code; or the making by Lessee of a general assignment or
deed of trust for the benefit of creditors; or (f) Lessee shall default in
meeting any of its trade, tax, borrowing or other obligations as they mature,
except to the extent Lessee is contesting any such obligations in good faith and
has established adequate reserves therefor; or (g) Lessee ceases doing business
as a going concern or there is a change in the legal structure of ownership of
Lessee, or a consolidation or merger or Lessee into or with another entity,
which results, in the opinion of Lessor, in a material adverse change in the
ability of Lessee to perform its obligations under the Lease; or (h) any event
or condition set forth in subsections (b), (c), (d), (e), (f) or (g) of this
Section 10 shall occur with respect to any guarantor or other person
responsible, in whole or in part, for payment or performance of the Lease.
Lessee shall promptly notify Lessor of the occurrence of any Event of Default or
the occurrence or existence of any event or condition which, upon the giving of
notice or lapse of time, or both, may become an Event of Default.
11. REMEDIES
Upon the occurrence of any Event of Default, Lessor may, at its sole option and
discretion, to the extent permitted by applicable law, exercise one or more of
the following remedies with respect to any or all of the Equipment: (a) cause
Lessee to, upon written demand of Lessor and at Lessee's expense, promptly
return any or all Equipment to such location as Lessor may designate in
accordance with the terms of Section 19, or Lessor, at its option, may enter
upon the premises where the Equipment is located and take immediate possession
of and remove the same by summary proceedings or otherwise, all without
liability to Lessee for or by reason of damage to property on such entry or
taking possession; (b) sell any or all the Equipment at public or private sale
or otherwise dispose of, hold, use, operate, lease to others or keep idle the
Equipment, all as Lessor in its sole discretion may determine and all free and
clear of any rights of Lessee; (c) remedy such default, including making repairs
or modifications to the Equipment, for the account of and the expense of Lessee,
and Lessee agrees to reimburse Lessor for all of Lessor's costs and expenses
incurred in connection therewith; (d) by written notice to Lessee, terminate any
or all Leases, as such notice shall specify, and, with respect to such
terminated Leases, declare immediately due and payable and recover from Lessee,
as liquidated damages for loss of a bargain and not as a penalty, an amount
equal to the sum of (i) all rental payments accrued and unpaid, plus interest
and late charges thereon, calculated as of the date payment is actually made,
plus (ii) the net present value of all rental payments to become due during the
remaining Term of each such Lease, discounted at the rate of 5% per annum, plus
the amount of any purchase or renewal option or obligation with respect to such
Equipment, or, if there is no such option or obligation, then the fair market
value of the Equipment at the end of such Term, as estimated by Lessor in its
sole, reasonable discretion, calculated as of the date payment is actually made,
plus (iii) all other amounts then payable to Lessor under the Lease; provided,
however, that any acceleration or prepayment of the unpaid rentals under the
Lease shall be subject to all applicable laws, including rebates of unearned
charges. If in any event whatsoever, Lessor shall receive anything of value
deemed interest under applicable law which would exceed the maximum amount of
interest permissible under applicable law, the excess amount shall be applied to
reduction of the unpaid principal balance owing under the Lease, if any, or
shall be refunded to Lessee; (e) apply any deposit or other cash collateral or
sale or remarketing proceeds of the Equipment at any time as it sees fit to
reduce any amounts due to Lessor; and (f) exercise any other right or remedy
which may be available to it under applicable law, or proceed by appropriate
court action to enforce the terms of the Lease or to recover damages for the
breach thereof, including reasonable attorneys' fees and court costs. No remedy
referred to in this Section 11 is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to above or otherwise
available to Lessor at law or in equity. The exercise or beginning of exercise
by Lessor of any one or more of such remedies shall not preclude the
simultaneous or later exercise by Lessor of any or all such other remedies, and
all remedies hereunder shall survive termination of the Lease. At any sale of
the Equipment pursuant to this Section 11, Lessor may bid for and purchase the
Equipment. Notice required, if any, of any sale or other disposition hereunder
by Lessor shall be satisfied by the mailing of such notice to Lessee at least
ten (10) days prior to the sale or other disposition. In the event Lessor takes
possession and disposes of the Equipment, Lessor shall give Lessee credit for
any sums actually received by Lessor from the disposition of the Equipment after
deduction of expenses of disposition and the amounts due to Lessor under
subsection (d) above. Termination shall occur only upon written notice by Lessor
and only with respect to such Equipment as Lessor shall specify in such notice.
Termination under this Section 11 shall not affect Lessee's duty to perform
Lessee's obligations hereunder to Lessor in full. Lessee agrees to reimburse
Lessor on demand for any and all costs and expenses incurred by Lessor in
enforcing its rights and remedies hereunder following the occurrence of an Event
of Default, including, without limitation, reasonable attorneys' fees and the
costs of repossessing, storing, insuring, reletting, selling and disposing of
any and all Equipment. To the extent permitted by applicable law, Lessee hereby
waives any rights now or hereafter conferred by statute or otherwise which may
require Lessor to sell, lease or otherwise use any of the Equipment in
mitigation of Lessor's damages or which may otherwise limit or modify any of
Lessor's rights or remedies under the Lease.
12. NOTICES
All notices and demands required or permitted to be given under a Lease shall be
given in writing and shall be delivered in person or sent by certified mail,
return receipt requested, or by overnight courier service to the attention of,
in the case of Lessor, Customer Administration, and to Lessee at the addresses
hereinabove set forth, or to such other address as the party to receive notice
hereafter designates by such written notice. All notices shall be deemed given
when received, when delivery is refused or when such notices are returned for
failure to be called for.
13. USE; REPAIRS; LOSS AND DAMAGE
Lessee will cause the Equipment to be operated in accordance with any applicable
manufacturer's manuals, instructions or requirements by competent and duly
qualified personnel only, in accordance with applicable requirements of law, if
any, and for business purposes only. Lessee, at its own cost and expense, shall
keep the Equipment in good repair, condition and working order, in accordance
with any applicable manufacturer's manuals, instructions or requirements and
shall furnish all
parts, mechanisms, devices and servicing required therefor. All such parts,
mechanisms and devices shall immediately become the property of Lessor and part
of the Equipment for all purposes hereof. If the Equipment is such that Lessee
is not normally capable of maintaining it. Lessee at its expense, shall enter
into and maintain in full force and effect throughout the term of the Lease, a
maintenance contract for the Equipment with its manufacturer or vendor, or a
maintenance contractor previously approved in writing by Lessor (each, a
"Maintenance Organization"). Lessee hereby assumes all risk of loss, damage or
destruction for whatever reason to the Equipment from and after the earlier of
the date on which (a) the Equipment is ordered, or (b) Lessor pays the purchase
price of the Equipment, and continuing until its return as set forth in Section
19 hereof. If any Item shall become lost, stolen, destroyed, damaged beyond
repair or rendered permanently unfit for use for any reason, or in the event of
any condemnation, confiscation, seizure or requisition of title to or use of any
Item, then, at Lessor's option, Lessee shall promptly (i) pay to Lessor an
amount equal to the greater of (x) the full replacement value of such Item or
(y) the net present value of all rental payments then remaining unpaid for the
Term of the applicable Lease, discounted at the rate of 5% per annum, plus the
amount of any purchase or renewal option or obligation with respect to such
items or, if there is no such option or obligation, then the fair market value
of the Equipment at the end of such Term, as estimated by Lessor in its sole
reasonable discretion, or (ii) replace the affected Equipment. If Lessor
requires Lessee to replace the affected Item(s), Lessee shall purchase, in
Lessor's name, equipment either identical to the affected Equipment or if
identical equipment is not readily available, then equipment from the same
manufacturer or such other manufacturer acceptable to Lessor that performs
substantially the same function at substantially the same or greater speed and
capacity as the Equipment and the Lease shall continue as if no such loss,
theft, destruction, damage or condemnation had occurred without abatement of any
payments due under the Lease. Lessee shall take all action necessary to vest
unencumbered and unrestricted title in Lessor to any equipment purchased by it
pursuant to this Section 13.
14. INSURANCE
Lessee shall procure and maintain, upon such terms, with such deductibles and
with such companies as Lessor may approve, during the entire term of the Lease,
as Lessee's expense (a) Comprehensive General Liability Insurance including
product/completed operations and contractual liability coverage, with minimum
limits of $1,000,000 each occurrence, and Combined Single Limit Body Injury and
Property Damage, $1,000,000 aggregate, where applicable; and (b) All Risk
Physical Damage Insurance, including earthquake and flood, on each Item in an
amount not less than the greater of (i) the full replacement value of such Item,
or (ii) the net present value of all rental payments then remaining unpaid for
the Term of the Lease, discounted at the rate of 5% per annum, plus the amount
of any purchase or renewal option or obligation with respect to such Items or,
if there is no such option or obligation, then the fair market value of the
Equipment at the end of such Term, as estimated by Lessor in its sole,
reasonable discretion, Lessor will be included as an additional insured and loss
payee as its interest may appear. Such policies shall be endorsed to provide
that the coverage afforded to Lessor shall not be rescinded, impaired or
invalidated by any act or neglect of Lessee. Lessee agrees to waive Lessee's
right and its insurance carrier's right of subrogation against Lessor for any
and all loss or damage. In addition to the foregoing minimum insurance coverage.
Lessee shall procure and maintain such other insurance coverages as Lessor may
reasonably require from time to time during the term of the Lease. All policies
shall contain a clause requiring the insurer to furnish Lessor with at least 30
days' prior written notice of any material change, cancellation or non-renewal
of coverage. Upon execution of the Lease, Lessee shall furnish Lessor with a
certificate of insurance or other evidence satisfactory to Lessor that such
insurance coverages are in effect; provided, however, that Lessor shall be under
no duty either to ascertain the existence of or to examine such insurance
coverage or to advise Lessee in the event such insurance coverage should not
comply with the requirements hereof. In case of the failure of Lessee to procure
or maintain insurance, Lessor may as its option obtain such Insurance, the cost
of which will be paid by Lessee as additional rentals, Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact to file, settle or adjust, and
receive payment of claims under the All Risk Physical Damage Insurance and to
endorse Lessee's name on any checks, drafts or other instruments in payment of
such claims. Lessee further agrees to give Lessor prompt notice of any damage
to, or loss of, the Equipment or any part thereof.
15. LIMITATION OF LIABILITY
Lessor shall have no liability in connection with or arising out of the
ownership, leasing, furnishing, performance or use of the Equipment or any
special, indirect, incidental or consequential damages of any character,
including, without limitation, loss of use of production facilities or
equipment, loss of profits, property damage or lost production, whether suffered
by Lessee or any third party.
16. FURTHER ASSURANCES
Lessee shall promptly execute and deliver to Lessor such further documents and
take such further action as Lessor may require in order to more effectively
carry out the intent and purpose of the Lease. Lessee shall provide to Lessor
within 120 days after the close of each of Lessee's fiscal years, and, upon
Lessor's request, within 45 days of the end of each quarter of Lessee's fiscal
year, a copy of its financial statements prepared in accordance with generally
accepted accounting principles, Annual financial statements shall be audited.
Lessee shall execute and deliver to Lessor upon Lessor's request such
instruments and assurances as Lessor deems necessary for the confirmation,
preservation or perfection of the Lease and Lessor's rights thereunder,
including, without limitation, such corporate resolutions, incumbency
certificates and opinions of counsel as Lessor may request from time to time,
and all schedules, forms and other reports as may be required to satisfy
obligations imposed by taxing authorities. In furtherance thereof, Lessor may
file or record the Lease or a memorandum or a photocopy thereof (which for the
purposes hereof shall be effective as a financing statement) so as to give
notice to third parties, and Lessee hereby appoints Lessor as its
attorney-in-fact to execute, on behalf of Lessee, file and record UCC financing
statements and other lien recordation documents with respect to the Equipment.
Lessee agrees to pay or reimburse Lessor for any filing, recording or stamp fees
or taxes arising from any such filings. The filing of UCC financing statements
is precautionary and shall not be evidence that the Lease is intended as
security. If the Lease is determined for any reason not to constitute a lease,
Lessee grants Lessor a security interest in the Equipment and the proceeds
thereof, including the re-lease, sale or other disposition of the Equipment.
17. ASSIGNMENT
The Lease and all rights of Lessor thereunder shall be assignable by Lessor
absolutely or as security, without notice to Lessee, subject to the rights of
Lessee hereunder. Any such assignment shall not relieve Lessor of its
obligations thereunder unless specifically assumed by the assignee, and Lessee
agrees it shall not assert any defense, right of set-off or counterclaim against
any assignee to which Lessor shall have assigned its rights and interests
hereunder, nor hold or attempt to hold such assignee liable for any of Lessor's
obligations hereunder. LESSEE SHALL NOT ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS
OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE WITH RESPECT TO ANY OF
THE EQUIPMENT WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF LESSOR.
18. LESSEE'S OBLIGATIONS UNCONDITIONAL
The Lease is a net lease and Lessee hereby agrees that it shall not be entitled
to any abatement of rents or of any other amounts payable by Lessee and that its
obligation so pay all rent and any other amounts owing under the Lease shall be
absolute and unconditional under all
circumstances, including, without limitation, the following circumstances; (i)
set-off counterclaim, recoupment, defense or other right which Lessee may have
against Lessor, any seller or manufacturer of any Equipment or anyone else for
any reason whatsoever; or (ii) the existence of any liens, encumbrances or
rights of others whatsoever with respect to any Equipment, whether or not
resulting from claims against Lessor not related to the ownership of such
Equipment. Each rent or other payment made by Lessee hereunder shall be final,
and Lessee will not seek to recover all or any part of such payment from Lessor
for any reason whatsoever.
19. RETURN OF EQUIPMENT
Upon expiration of the term of the Lease or upon demand of Lessor as provided
in Section 11, Lessee, at its own expense, shall immediately return the
Equipment in the same condition as when delivered to Lessee, ordinary wear
and tear excepted, to such location as Lessor shall designate. The Equipment
shall be returned free and clear of all liens, encumbrances and rights of
others. Upon the return of the Equipment to Lessor, Lessee shall arrange and
pay for such repairs, if any, as are necessary for the manufacturer of the
Equipment or Maintenance Organization so accept the Equipment under a
maintenance contract at its then standard rates. The risk, of loss of the
Equipment shall remain with Lessee until the returned Equipment is accepted
by Lessor or such other entity to whom the Equipment is returned, and Lessee
shall maintain insurance on the Equipment in accordance with Section 14 until
such acceptance occurs. Unless and until the Equipment is returned and
accepted as herein provided, or otherwise disposed of by written agreement of
Lessor and Lessee, the term of the Lease with respect to such Equipment shall
continue on a month-to-month basis terminable by Lessor upon 30 days advance
written notice at a rent per month equal to the highest monthly rent for the
Equipment payable during the Initial Term.
20. ENFORCEABILITY; COUNTERPARTS; GOVERNING LAW
Any provision of this Master Agreement or any Lease Schedule which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such unenforceability without invalidating the remaining
provisions of the Master Agreement and such Lease Schedule, and any such
unenforceability in any jurisdiction shall not render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
Lessee hereby waives any provisions of law which render any provision hereof
unenforceable in any respect. Any waiver of the terms hereof shall be effective
only in the specific instance and for the specific purpose given. Time is of the
essence in the Lease. Lessor reserves the right to change Lessee for its
provision of administrative services related to this Master Agreement or any
Lease Schedule issued pursuant hereto. The captions in this Master Agreement are
for convenience only and shall not define or limit any of the terms hereof. Each
Lease may be executed in one or more counterparts, each of which shall be deemed
an original as between the parties thereto, but there shall be a single executed
original of each Lease which shall be marked "Counterpart No. 1"; all other
counterparts shall be marked with other counterpart numbers. To the extent, if
any, that a Lease constitutes chattel paper (as such term is defined in the
Uniform Commercial Code), no security interest in the Lease may be created
through the transfer or possession of any counterpart other than Counterpart No.
1. The Master Agreement is incorporated by reference in each Lease and shall not
be chattel paper by itself.
THIS MASTER AGREEMENT AND ANY LEASE SCHEDULE ISSUED PURSUANT HERETO SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA. LESSEE HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF CALIFORNIA AND THE FEDERAL DISTRICT COURT IN ORANGE
COUNTY, CALIFORNIA FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF ITS OBLIGATIONS HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS
THAT IT MAY HAVE TO THE VENUE OF SUCH COURTS. LESSEE AND LESSOR EACH HEREBY
EXPRESSLY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
MASTER AGREEMENT AND ANY LEASE SCHEDULE ISSUED PURSUANT HERETO. Any action by
Lessee against Lessor for any cause of action under a Lease shall be brought
within one year after any such cause of action first accrues. THIS MASTER
AGREEMENT, CONSISTING OF TWENTY SECTIONS, THE LEASE AND ANY ADDENDA OR
SUPPLEMENTS HERETO OR THERETO, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES, LESSEE ACKNOWLEDGES AND CERTIFIES THAT NO
SUCH ORAL AGREEMENTS EXIST. The Lease may not be amended, nor may any rights
thereunder be waived, except by an instrument in writing signed by the party
charged with such amendment or waiver. The term "Lessee" as used herein shall
mean and include any and all Lessees who sign Lease, each of whom shall be
jointly and severally bound thereby.
By execution hereof, the signer certifies that he or she has read, accepted and
duly executed this Master Lease Agreement on behalf of Lessee.
Lessor: Xxxxxxx Capital, Inc.
By: /s/ Xxxx [ILLEGIBLE]
---------------------------------
Title: Documentation Manager
------------------------------
Lessee: Centennial Technologies, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Title: CFO
------------------------------
This Master Agreement is incorporated by reference in the Lease and is not
chattel paper by itself.
LEASE SCHEDULE
EQUIPMENT
MASTER LEASE AGREEMENT NO. M02433
LEASE SCHEDULE NO. 1099-01
BETWEEN Xxxxxxx Capital, Inc. (LESSOR)
and Centennial Technologies, Inc. (LESSEE).
1. DESCRIPTION OF EQUIPMENT
Quantity Item Model/Serial No.
-------- ---- ----------------
See Attached Schedule "A"
2. EQUIPMENT LOCATION
The above Equipment is to be located and delivered to Lessee's premises at
0 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000
3. RENTAL TERM: 60 months.
4. RENTAL
The first payment in the amount of $ 16,217.47 is due November 1,l999.
Subsequent rental payments will be in the same amount and due on the same
day Monthly thereafter.
5. NUMBER AND AMOUNT OF ADVANCE RENTAL PAYMENTS:
NUMBER: (1) First Months Payment $16,567.47
6. Fair Market Value: Return, Renew, Upgrade or Purchase FMV.
7. THIS SCHEDULE AND ITS TERMS AND CONDITIONS ARE HEREBY INCORPORATED BY
REFERENCE IN THE ABOVE EQUIPMENT LEASE AGREEMENT. LESSEE PERMITS LESSOR TO
INSERT MODEL AND SERIAL NUMBERS OF EQUIPMENT WHEN DETERMINED BY LESSOR.
--------------------------------------------------------------------------------
LESSEE: LESSOR:
Centennial Technologies, Inc. Xxxxxxx Capital, Inc.
--------------------------------------- --------------------------------------
(Must be signed by Authorized Corporate
Officer, Partner, or Proprietor)
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx [ILLEGIBLE]
--------------------------------------- --------------------------------------
Xxxxxxx Xxxxxxxx, CFO Documentation Manager
Accepted this 28th day of October 1999
at Newport Beach, CA.
