EXHIBIT 10.4
MASTER EQUIPMENT LEASE
THIS LEASE, made this 10th day of June 1997 between BOSTON FINANCIAL & EQUITY
CORPORATION (herein called "Lessor"), a Massachusetts corporation with its
principal place of business at 20 Overland St., Boston, Massachusetts, and
TOMAHAWK II, INC. (herein called "Lessee"), an Illinois corporation, with its
principal place of business at 8315 Century Park Court, Suite 200, San Diego,
CA 92123.
WITNESSETH
In consideration of the premises, the parties covenant and agree as follows:
1. Definitions. As herein used:
1.1 "Equipment" means the equipment manufactured or sold by the
Manufacturers or Distributors described in the Schedule of Leased
Equipment ("Schedule") annexed hereto and made a part hereof,
together with any replacements or substitution of parts,
improvements or additions thereto, and such other equipment which,
by agreement, may from time to time be hereafter described on any
supplemental schedule of leased equipment ("Schedule") which may
be annexed hereto and made a part hereof (the equipment on all
such schedules being collectively herein referred to as
"Equipment"). The term "Equipment" also includes all software and
other intellectual property described on the Schedule as well as
operating software and application software used or usable in
connection with any item set forth on any Schedule whether or not
such software or other intellectual property is specifically
identified on the Schedule, and also includes all tangible
representations of all such software.
1.2 "Commencement Date" means the first day of the calendar quarter
following the delivery of all the Equipment.
1.3 "Monthly Rent" means the amount of rent payable by Lessee each
month pursuant to Paragraph 3 of the Schedule as well as all
maintenance charges payable, if any, if, according to the
Schedule, Lessor is furnishing maintenance as indicated on the
Schedule.
1.4 "Net Proceeds of Sale" means the net amount received by Lessor
after deducting from the gross proceeds of sale of the Equipment
or in the event of a subsequent lease by the Lessor, the net
present value of rent due under such subsequent lease, all
expenses incurred in the termination of this lease and any amounts
for which, if not paid, Lessor would be liable or which, if not
paid, would constitute a lien on the Equipment.
1.5 "Lessor's Depreciated Book Value" means the original cost of the
equipment less the straight line depreciation for five year
property, all as reflected on Lessor's books of account.
1.6 "Lease Term" means the period specified in Section 2 of the
applicable Schedule thereof.
1.7 "Addendum" means any amendment to this Master Equipment Lease
which is specifically identified as such, and when so identified
shall be a part hereof.
2. Lessor does hereby lease to the Lessee, and Lessee hereby leases and
hires from the Lessor the Equipment subject to the terms, provisions,
conditions and agreements in this lease set forth.
3. Delivery. Lessee hereby acknowledges: (a) the Equipment is of the
manufacture, design and capacity selected by Lessee; (b) the Equipment
is suitable for Lessee's purposes, and (c) Lessor has made no
representation or warranty, expressed or implied, with respect to the
Equipment or any of the foregoing matters. Lessor will assign or
otherwise make available to Lessee all of Lessor's rights (if any and if
assignable) under the manufacturer's warranty on the Equipment and
maintenance agreement relating thereto, all costs and charges thereof
and therefore to be borne by Lessee.
At the termination of the applicable Schedule, Lessee shall, at its
expense, return the Equipment subject thereto to Lessor at the location
designated by Lessor within the continental United States by surface
transportation, only if not shipped directly to a successor Lessee. The
Equipment returned to Lessor shall, at the time it is disconnected from
its then location in Lessee's premises, be in the same condition and
working order as when delivered to Lessee, reasonable wear and tear and
casualty loss excepted, and shall be at the then current engineering
change level recommended by the Equipment Manufacturer (if required in
the Schedule).
4. In addition to the Monthly Rent, Lessee shall pay, promptly when due,
all costs, expenses, fees, charges and taxes incurred in connection with
the use and operation of the Equipment. Such items shall include, but
not be limited to:
4.1.1 all costs of operating the Equipment.
4.1.2 all federal, state, county, municipal or other taxes whatsoever,
without proration, and any penalties and interest thereon
("Taxes") (including any Taxes with an assessment date which
occurred during the Lease Term or any extension thereof). If the
payment due date or reimbursement date for a Tax should occur
after the expiration or termination of the Lease Term or any
extension thereof, Lessee's liability for such Tax shall survive
such expiration or termination.
4.1.3 all shipping, installation, and transportation charges from the
manufacturer or vendor to the installation site.
4.1.4 all de-installation, shipping and transportation charges from the
installation site to a location designated by the Lessor at the
conclusion of the Lease or any extension thereof.
4.2 If Lessee should fail to pay any of the costs, expenses, fees,
charges and taxes (including attorney's fees) for which Lessee is
liable hereunder, Lessor may, but shall not be required to, pay
the same for the account
of Lessee. Lessee shall reimburse, upon demand, for the full amount
of any such costs, expenses, fees, charges and taxes paid by Lessor.
4.3 If, at the termination of the applicable Schedule, Lessee fails to
return to Lessor the Equipment subject thereto in accordance with
the provisions of the second paragraph of Section 3, Lessee
shall, until such Equipment is so returned: pay to Lessor on
account of damages a monthly amount equal to the amount shown in
Section 5 of such Schedule, and perform or observe all other of
its agreements and covenants under this Lease; but such payment,
performance, and observance shall not limit or impair Lessor's
right to recover the Equipment or any other of Lessor's rights
under this Lease, nor shall it represent an extension of the term
provided in the applicable schedule, nor shall it represent a
consent by the Lessor to such failure by Lessee to return, and,
in all events notwithstanding such payment, performance and
observance, Lessee's obligation so to return shall remain in full
force and effect.
5. Use of Equipment. Lessee shall use the Equipment only for lawful
purposes in the regular course of its business or the business of any
subsidiary or affiliate of Lessee within the United States or its
possessions. Lessee shall, concurrently with the execution of this
Lease, notify Lessor in writing where all Equipment is principally
located, and upon any change in such principal location of any
Equipment, notify Lessor in writing within ten (10) days thereafter of
the new principal location of such Equipment. Lessee shall use every
reasonable precaution to prevent loss or damage to Equipment from fire
and other hazards. Lessee's servants and agents shall cooperate fully
with Lessor in the investigation of any claims and suits relating to the
Equipment. Lessee shall keep the Equipment free from all liens and
encumbrances. This Lease and the interest of Lessee hereunder shall not
be assigned, alienated, pledged or hypothecated voluntarily by Lessee or
by operation of law, nor shall Lessee permit the Equipment to come into
the possession of any third person except a subsidiary or affiliate of
Lessee, provided, however, that Lessee shall remain obligated to Lessor
hereunder with respect to any such Equipment.
6. Lessee will enter into a Master Maintenance Agreement with Lessor.
Except to the extent of the Lessor's obligation to provide maintenance
(as provided in the aforesaid Master Maintenance Agreement) Lessee
shall, at its own expense, keep the Equipment in first-class condition
and repair and in good and efficient working order (including the
replacement or substitution of parts, improvements or additions to the
Equipment). Lessee shall not, without Lessor's prior written consent,
make any substitution of any part(s) of the Equipment, whether or not
such part(s) are specifically identified by manufacturer or serial
number. Without the prior written consent of Lessor, Lessee will not,
through the installation of accessory devices or any other method,
impair the originally intended function of any Equipment. Any
replacement or substitution of parts, improvements or additions to the
Equipment made by Lessee shall become and remain the property of the
Lessor.
7. Insurance. Lessee shall, at its expense, procure and maintain, at all
times, in a responsible insurance company acceptable to Lessor,
insurance in an amount not less than the estimated market value of all of
the Equipment protecting Lessor and Lessee, as their interest may
appear, against loss and/or damage to the Equipment arising out of any
risk covered by fire and extended coverage and by employee theft and
dishonesty. All such insurance shall cover the period from delivery of
the Equipment to Lessee to the date of termination of the Lease with
respect thereto, and shall provide for ten (10) days prior written
notice to Lessor of any cancellation or reduction in coverage. Lessee
shall deliver to Lessor within ten (10) days after the Commencement
Date, the insurance policy, and a Certificate of Insurance satisfactory
to Lessor. Lessor shall have no duty to examine such policies or
certificates, or to advise Lessee of any noncompliance of such insurance
with this Lease. If Lessee fails to provide the aforesaid insurance,
Lessor may, at its own option, provide such insurance and add the amount
of the premiums to the next rental installment together with interest
thereon at the rate of Twenty Four Per Cent (24%) per annum, or the rate
permitted by law (whichever is less), from the date of payment thereon
until paid in full. The proceeds of such insurance whether resulting
from loss, damage, return premium or otherwise, shall be payable to
Lessor and Lessee, as the interests may appear. If Lessee should be in
default under Section 10 hereof, Lessee hereby appoints Lessor as
Lessee's attorney-in-fact to make claim for, receive payment of and
execute or endorse all documents, checks or drafts for loss, damage,
return premium otherwise under any insurance policy issued on Equipment.
8. Indemnity. Lessee shall indemnify and hold Lessor harmless against any
and all claims, demands, liabilities, losses, damages and injuries of
whatsoever kind and nature, direct or consequential, and all fees, costs
and expenses relating to or in any way arising out of the possession,
maintenance, use, operation, control, loss, damage, destruction, return,
surrender, sale or other disposition of the Equipment. The foregoing
indemnity shall not be affected by any termination of the Lease.
9. Termination of Lease Equipment Through Loss or Destruction. Lessee
shall bear all risks of loss, damage, or destruction of the Equipment
during the Lease Term in the event the Equipment is damaged beyond
repair, the Lessee shall be liable to the Lessor for an amount equal to
the cost of purchasing similar Equipment less the amount of any
insurance or other recoveries received by the Lessor in connection
therewith.
10. Events of Default. The following events of default by Lessee shall give
rise to rights on the part of Lessor described in Section 11:
10.1 (a) Default in the payment of Monthly Rent hereunder, and such
default not having been remedied in three (3) days from due date.
(b) Default
in the payment or performance of any other liability, obligation
or covenant of Lessee under this Lease and the continuance of such
default for fifteen (15) days after written notice thereof to
Lessee sent by certified mail or via fax; or
10.2 Breach of any representation or warranty, or default in the
performance of any agreement, of Lessee contained in this Lease;
or
10.3 The Making of a general assignment for the benefit of creditors by
Lessee, the suspension of business or the commission by Lessee of
any act amounting to a business failure, any change in, or
termination of, Lessee's corporate existence (except a merger,
consolidation or reorganization in which the obligations of Lessee
are assumed by the surviving corporation), or the levy of an
attachment or filing of a tax lien (other than a Federal tax lien)
against Lessee affecting Equipment, and the failure of Lessee to
cause such attachment or tax lien to be discharged within thirty
(30) days thereafter, or the filing of a Federal Tax lien against
Lessee, the Equipment or any of Lessee's property; or
10.4 The institution of bankruptcy, reorganization, liquidation or
receivership proceedings by or against Lessee and, if instituted
against Lessee, its consent thereto or the failure to cause such
proceedings to be discharged within thirty (30) days thereafter.
11. Rights of Lessor Upon Default of Lessee. Upon occurrence of any of the
Events of Default described in Section 10, Lessor may, at its
discretion, do one or more of the following:
11.1 Terminate this Lease upon five (5) days' written notice to Lessee
sent by certified mail or via fax;
11.2 Whether or not this Lease be terminated, take immediate possession
of any or all of the Equipment, including substituted parts,
accessories or equipment, wherever situated, and for such purpose,
enter upon any premises without liability for so doing. Lessor
shall hold the Equipment so repossessed free and clear of this
Lease and of any of the rights of Lessee hereunder;
11.3 Whether or not any action has been taken under Section 11.1 or
11.2 above, sell, dispose of, hold, use or lease any Equipment as
Lessor at its sole discretion, may decide, without any duty to
account to Lessee with respect to such action or any proceeds
thereof, and free of any interest of Lessee therein.
If, after default, Lessee should deliver the Equipment to Lessor, or if
Lessor should repossess the Equipment or if Lessor should terminate this
Lease, and in addition to all rights of Lessor set forth above, Lessee
shall be liable for, and Lessor may recover from Lessee, as liquidated
damages for the breach of this Lease: (i) all unpaid rent to the date of
such delivery, repossession or termination, (ii) all rent due to Lessor
between the date of such delivery, repossession or termination and the
end of the present Lease Term, (iii) in the event of a sale pursuant to
Section 11.3, the amount of any deficiency existing between the Net
Proceeds of Sale of the Equipment and the Lessor's Depreciated Book
Value of the Equipment at the time of such repossession, (iv) all such
sums payable by Lessee pursuant to the provisions hereof, (v) all other
losses and damages sustained by reason of the default, and (vi) all
costs and expenses, including but not limited to costs associated with
repossession, deinstallation, transportation charges and necessary
repair expenses, incurred by Lessor by reason of the default. If, for
any reason, Lessor should be unable to effect repossession of the
Equipment, Lessor may recover, as liquidated damages, the amounts
aforesaid, except that instead of item (iii), Lessee shall be liable to
Lessor in an amount equal to the replacement cost of the Equipment as
determined by the Lessor.
12. In addition to all other sums payable by Lessee hereunder, Lessee shall
pay to Lessor all expenses incurred by Lessor, including, without
limitation, reasonable attorneys' fees and court expenses of enforcing
any rights of Lessor hereunder, whether against Lessee or any other
party primarily or secondarily liable with respect to the Lessee's
obligations or against the Equipment.
13. Equipment to Be and Remain Personal Property. It is the intention and
understanding of both Lessor and Lessee that all Equipment shall be and
at all times remain personal property.
14. Rentals to be Paid Directly to Lessor. Lessee shall make payment of all
rent and other payments due hereunder directly to Lessor at the
following mailing address: BOSTON FINANCIAL & EQUITY CORPORATION, Post
Office Box 15071, Boston, Massachusetts 02215, or to such other address
as Lessor shall instruct.
15. Miscellaneous
15.1 Time is of the essence hereof.
15.2 This agreement is and is intended to be a True Lease. Lessee does
not acquire hereby any right, title or interest in or to the
Equipment, except the right to use the same under the terms
hereof. Lessor and Lessee agree that for tax purposes this lease
will be treated as a finance lease by the Lessee.
15.3 The relationship between Lessor and Lessee shall always and only
be that of Lessor and Lessee. Lessee shall never at any time
during the term of this Lease for any purpose whatsoever be or
become the agent of the Lessor, and Lessor shall not be
responsible for the acts or omissions of Lessee, or its agents.
15.4 Lessor shall have the right to inspect any Equipment at any
reasonable time; provided however, that such right shall be
limited to the extent required by any applicable United States
Government security regulations.
15.5 Should the Lessee not pay the monthly rental payment when due and
owing under the provisions of this Lease, the Lessee agrees to pay
to the Lessor five per cent (5%) of the monthly payment as a
delinquency charge, or the maximum permitted by law, (whichever
is less).
15.6 Lessor's rights and remedies with respect to any of the terms and
conditions of this Lease shall be cumulative and not exclusive,
and shall be in addition to all other rights and remedies in its
favor.
2
15.7 No party hereto shall, by act, delay, omission or otherwise, be
deemed to have waived any of its rights or remedies hereunder, or
under any other instrument executed in connection herewith,
unless such waiver is in writing. A waiver on any one occasion
shall not be construed as a waiver on any future occasion.
15.8 The invalidity of any portion of this Lease shall not affect the
force and effect of the remaining valid portions thereof.
15.9 All notices shall be binding upon the parties hereto if sent to
the address set forth herein (unless a subsequent address has
been furnished) by certified mail, by one party to the other.
15.10 Lessee will provide Lessor with copies of Annual Financial
Reports prepared by Lessee's independent accounting firm within
fourteen (14) days of the issuance of said Report. In addition,
Lessee will provide Lessor with copies of interim, year-to-date
or monthly financial reports which reports shall be prepared at
least every three (3) months. Lessee will make every effort to
prepare and deliver to Lessor all financial reports in a timely
fashion upon request by the Lessor. Lessee also agrees to make
available financial books and records for review by Lessor during
regular business hours, as well as other contracts, agreements, or
materials the Lessor may deem appropriate.
15.11 No representations, warranties, promises, guaranties or
agreements, oral or written, expressed or implied, have been made
by either party hereto with respect to this Lease or the
Equipment, except as expressly provided herein.
15.12 This Lease shall be construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to the choice of law
rules thereof. Lessee hereby irrevocably submits to the
jurisdiction of the courts of said Commonwealth or any federal
court sitting within said Commonwealth, over any suit, action, or
proceeding arising out of or relating to this Lease or the
Equipment and agrees that any suit, action, or proceeding brought
by the Lessee against or involving the Lessor shall be brought
only in said courts. Lessee further consents to process being
served in the manner described for notices under Section 15.9
above.
This Lease constitutes the entire agreement between the parties
hereto with respect to the leasing of the Equipment. Any change
or modification of this Lease must be in writing and signed by
the parties hereto.
15.13 Lessor and Lessee, each having had opportunity of review by
counsel, each irrevocably waive all right to trial by jury in any
proceeding hereinafter instituted by or against either of them in
respect of this Lease or arising out of any document executed in
connection herewith or in connection with the Equipment.
16. Lessor may assign its rights under this Lease and if (1) Lessor does
assign this Lease, the assignee shall be entitled, upon notifying the
Lessee, to performance of all of Lessee's obligations and agreements under
this Lease and to all of the rights and remedies of the Lessor, and (2)
Lessee will assert no claim or defenses it may have against the Lessor
against the assignee.
17. Lease is conditional upon approval of Lessor, and is neither consummated
nor binding on Lessor until accepted by an authorized officer of Lessor.
Such acceptance will be rendered only after submission of all necessary
information to the Lessor and an evaluation by the Lessor of the
acceptability of the Lessee for the Equipment Lease herein described.
Signature of this Lease by the Lessor shall constitute acceptance and
all aforementioned terms and conditions shall be effective upon
endorsement by the Lessor.
18. Supplemental Equipment Schedules may from time to time be included under
this Master Equipment Lease. The addition of supplemental Schedules is
conditional upon approval by Lessor and is neither consummated nor
binding on Lessor until accepted by an authorized officer of Lessor.
Such acceptance will be rendered only after submission of all necessary
information to the Lessor and an evaluation by the Lessor.
19. The terms and conditions of the Master Equipment Lease and any other
documents associated herewith are confidential and proprietary. Lessee
agrees not to disclose the same to any other party without prior written
consent of Lessor.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Lease as of the
day and year first above written.
LESSEE: TOMAHAWK II, INC.
------------------------
Signature: Michael H. Lorber
--------------------
Name: Michael H. Lorber
--------------------------
Title: VP-Finance and CFO
-------------------------
Date: 6/16/97
--------------------------
ATTEST: Steven M. Caira
------------------------
LESSOR: BOSTON FINANCIAL & EQUITY CORPORATION
Signature: Adolf F. Monosson
---------------------
Name: Adolf F. Monosson
--------------------------
Title: President
-------------------------
Date: July 7, 1997
--------------------------
ATTEST: [ILLEGIBLE]
------------------------
EXHIBIT A
MASTER MAINTENANCE AGREEMENT
BOSTON FINANCIAL & EQUITY CORPORATION
20 Overland Street
Boston, Massachusetts 02215
Contract # 1286
-------------------------------------------------------------------
Lessee ("Customer"):
TOMAHAWK II, INC.
- ------------------------------------------------------------------------------
Michael Lorber
- ------------------------------------------------------------------------------
Contact
- ------------------------------------------------------------------------------
Telephone
619-874-7692 X101
- ------------------------------------------------------------------------------
TERM OF AGREEMENT: Subject to the Terms and Conditions below, Boston
Financial & Equity Corporation (hereinafter referred to as BFEC) agrees to
maintain equipment it accepts for coverage, for a period of three (3) years
from the Commencement Date or during any subsequent renewal period as
indicated in Section 1 below.
1. TERM/CANCELLATION
(a) Maintenance coverage begins as of the Commencement Date shown on the
written acceptance from BFEC and shall remain in effect for an
Initial Term of 36 months. After the Initial Term, coverage shall
continue in effect until termination, discontinuance or cancellation
of all Service pursuant to the provisions herein.
(b) Upon ninety days prior written notice, Customer may terminate
coverage in its entirety at the end of the Initial Term.
(c) Without prejudice to any other rights or remedies, BFEC may elect to
cancel coverage and with or without cancellation repossess any BFEC
property furnished hereunder pursuant to Section 10 of the Master
Equipment Lease.
2. PRODUCT SERVICE
(a) BFEC shall provide Service (as defined in this section) to restore
the Equipment to good working order. Payment of the Unit Base
Service Charges shall entitle the Customer to such Service, which
will be performed during the Principal Period of Maintenance (PPM).
The PPM consists of the hours of 8:30 a.m. to 5 p.m., five days per
week, Monday through Friday, excluding holidays.
(b) "Service" shall be deemed to include field repairs, equipment
replacement, or any other means that, in the opinion and discretion
of BFEC, produces prompt response to a Customer's equipment failure.
(c) The Customer is responsible for the use, care and cleaning of the
Equipment in accordance with equipment manufacturers'
instructions. When the need arises for Service, the customer shall
notify BFEC and allow BFEC full and free access to the equipment if
necessary.
(d) Service will include inspection, adjustment and replacement of parts
as deemed necessary by BFEC. Parts, which will be either new or
reconditioned to perform as new, will be furnished on an exchange
basis and the exchanged parts will become the property of BFEC. The
replacement of parts, such as cathode ray tubes (CRT's) is limited
to failure of the parts; but BFEC shall not replace parts due to
occurrences such as burnt phosphor of the CRT screen.
(e) If the Commencement Date for an item is later than the Contract
Date, BFEC may require an inspection of the Equipment prior to the
Commencement Date. Where such inspection reveals failure of or
damage to the Equipment, the failure and/or damage shall be repaired
at Customer expense prior to the assumption of normal Service on
that Equipment by BFEC.
(f) BFEC shall not be obligated to provide Service to Equipment at any
location other than the Equipment location originally submitted by
the customer. If the Customer wishes to relocate Equipment, it shall
give timely prior notice to BFEC pursuant to the terms of the Master
Equipment Lease and relocation and the resumption of Service, if
any, of such Equipment shall be subject to agreement between
authorized representatives of the parties.
(g) IT IS EXPRESSLY UNDERSTOOD BY THE CUSTOMER THAT BFEC WILL NOT BE
LIABLE FOR ANY CHARGES INCURRED BY THE CUSTOMER UNLESS THESE CHARGES
HAVE BEEN PRE-AUTHORIZED IN WRITING BY BFEC.
3. CHARGES
(a) The Customer is liable for charges starting on the Commencement Date.
(b) The Charges do not include: (1) accessories and consumable supplies;
(2) repair of damage, replacement parts or increased service time
due to any cause external to the Equipment, including, but not
limited to, electrical work, unsuitable environment, neglect,
improper use or misuse; (3) repainting or refinishing; (4)
installation, deinstallation or moving of equipment; (5) furnishing
or installing cables; (6) alterations to the Equipment made after
the Service Start Date; or (7) any service required by changes in or
to the Equipment or their connectivity to other machines or devices.
(c) Additional charges covering travel and related expenses in
accordance with BFEC policies shall apply when the Equipment
Location address is located outside the perimeter of BFEC's then
normal service area.
(d) Maintenance charges assume normal equipment usage of not more than
sixty (60) hours per week. BFEC has the right to adjust charges in
the event usage exceeds this amount.
4. USE OF COMPUTER, SOFTWARE, AND DOCUMENTATION
(a) When BFEC performs Services which require the use of the computer,
software or documentation, the Customer shall make it available at
reasonable times and for reasonable time increments, and will not
charge BFEC for such use.
(b) The Customer represents and warrants that it has the legal right and
authority to permit BFEC to use without restriction, all maintenance
documentation and/or diagnostics supplied to BFEC by the Customer.
5. ALTERATIONS AND ATTACHMENTS
BFEC reserves the right to cancel Services or to adjust the specified
charges, if any new equipment specifications, attachments, features or
changes are made or added to the Equipment after the Commencement Date.
6. ADDITION/DELETION OF ITEMS
Equipment may be added subject to this Agreement at any time. Such
Equipment will be added by means of an amendment executed by duly
authorized representatives of the parties and such amendment shall
include Equipment location address, model numbers, serial numbers, and
billing instructions.
7. LIMITATIONS OF LIABILITY AND REMEDY
(a) BFEC's OBLIGATIONS UNDER THIS AGREEMENT ARE IN LIEU OF ALL
WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE.
BFEC DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR PARTICULAR PURPOSE FOR THE SERVICES RENDERED HEREUNDER.
(b) If BFEC fails after repeated attempts to perform any of its
obligations set forth in this Agreement, BFEC's entire liability and
the Customer's sole and exclusive remedy for claims related to or
arising out of this Agreement for any cause and regardless of the
form of action, whether in contract or in tort, including negligence
and strict liability, shall be the Customer's actual, direct damages
such as would be provable in a court of law, but not to exceed the
charges paid to BFEC for the specific item that caused the damages.
(c) IN NO EVENT SHALL BFEC BE LIABLE FOR: (1) ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS
OF USE, REVENUE OR PROFIT, EVEN IF BFEC HAS BEEN ADVISED, KNEW OR
SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (2) DAMAGES
CAUSED BY THE CUSTOMER'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT; OR (3) CLAIMS, DEMANDS OR ACTIONS AGAINST THE
CUSTOMER BY ANY OTHER PARTY.
(d) BFEC shall not be responsible for technical services of any sort
related to system design or operation, programming or software.
Services provided under this Agreement do not assure uninterrupted
operation of the equipment.
(e) It is the responsibility of the Customer to ensure that all of its
files are adequately duplicated and documented. BFEC will not be
responsible for Customer's failure to do so, nor for the cost of
reconstructing data stored on disk files, tapes, memories, etc.
lost during the course of performance of Service.
8. GENERAL PROVISIONS
(a) The Customer represents that it is the owner or lessee of the
Equipment subject to this Agreement.
(b) All property of BFEC except for the replacement parts incorporated
into the Equipment or purchased by the Customer or consumed in
Service, shall be returned to BFEC upon termination of coverage for
the Equipment.
(c) BFEC is not responsible for failure to fulfill its obligations
hereunder due to labor disputes, shortages of parts or materials or
any other causes similar or dissimilar, beyond its reasonable
control.
(d) The Customer shall not assign or transfer its rights or obligations
under this Agreement, except with BFEC's written consent and any
prohibited assignment or transfer shall be void. BFEC shall have
the right to sub-contract and/or assign any or all of its rights and
obligations under this Agreement.
(e) This Agreement shall be interpreted in accordance with laws, but not
the rules relating to the choice of law, of the Commonwealth of
Massachusetts.
(f) This Agreement and the Master Equipment Lease together constitute
the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous proposals, both oral
and written, negotiations, representations, commitments, writings,
agreements, and all other communications between the parties. The
terms of this Agreement shall prevail notwithstanding any variance
with the terms and conditions of any order submitted by the Customer.
(g) This Agreement may not be changed, released or discharged except by
a subsequent written agreement entered into by duly authorized
representatives of the parties.
(h) No action, regardless of form, related to or arising out of this
Agreement may be brought by either party more than two years after
the cause of action has accrued.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS, FURTHER, YOU AGREE THAT IT IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND BFEC WHICH
SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN YOU AND BFEC RELATING TO THE SUBJECT MATTER.
ACCEPTED AND AGREED TO BY:
TOMAHAWK II, INC.
- --------------------
Company
Michael H. Lorber
- --------------------
Signature
Michael H. Lorber
- --------------------
Name
VP-Finance & CFO
- --------------------
Title
6/16/97
- --------------------
Date
ACCEPTED BY:
BOSTON FINANCIAL & EQUITY CORPORATION
Adolf F. Monosson
- --------------------
Signature
Adolf F. Monosson
- --------------------
Name
President
- --------------------
Title
July 7, 1997
- --------------------
Date
Exhibit B
LEASE SCHEDULE NO. 01
to Master Equipment Lease between BOSTON FINANCIAL & EQUITY CORPORATION,
Lessor, and TOMAHAWK II, INC., Lessee (Lease No. 1286) dated as of June 17,
1997.
1. Description of Equipment:
DELTA TECHNOLOGY
HARDWARE:
Qty Description
- --- -----------
(7) IBM 7043-43P 166MHz RISC System/6000
- 1MB L2 cache
- 128MB RAM
- 2.1GB Hard Drive
- Internal CD ROM
- 20" Color Monitor
- GXT800P 24 Bit Color with Z-Buffer 1280 x 1024 graphics
- Keyboard
- 3 Button Mouse
- 3.5" Disk Drive
- 2003 Spaceball
Includes 3 yr. Maintenance on Hardware
SOFTWARE:
Qty Description
- --- -----------
(7) CATIA 5626-ADD Advanced Part Design & Detailing Config.
- Object Manager
- Library
- Dynamic Sketcher
- 3D Wireframe
- 3D Parametric Variational Modeler
- Exact Solids
- Feature-Based Design
- Drafting Product
- Draw-space(2D/3D) integration Product
- 2D Wireframe & Annotation
- Surface Design
- Advanced Surface Design
(6) CATIA 5626-NCB Mfg. Interface Product
(4) CATIA 5626-NC5 Multi Axis Milling product
(7) 5765-393 AIX V4.1.5 Operating System
(7) 5696-907 PEX and PHIGS
(7) 5696-939 Open GL
Includes 1 Yr Maintenance on Software
2. Lease Term. This Lease Schedule shall be effective as of the date hereof, and
unless terminated as provided herein, shall continue in full force and effect
for a period of thirty-six (36) months from Commencement Date.
- 1 -
3. Payment of Rent. Lessee shall pay to Lessor as Monthly Rent for the above
Equipment the sum of Twenty-Seven Thousand Seven Hundred Fifty-Eight Dollars
($27,758) each month for the first twelve (12) months; Seven Thousand Eight
Hundred Eighty-Nine Dollars ($7,889) each month for the subsequent twelve (12)
months; and Six Thousand Two Hundred Sixty-Nine Dollars ($6,269) each month for
the final twelve (12) months. Payment will be made in advance on or before the
first day of each month of Lease Term, or any extensions thereof. Rental
payments for Months One (1) and Thirty-Six (36) are due upon signing of this
agreement with the Rental payment for the first month being applied to the month
beginning with the Commencement Date.
If delivery of the Equipment takes place on other than the first day of a month,
the rent for such partial first month shall be the amount obtained by
multiplying the following: Fraction of Monthly Rent as set forth above times the
number of days remaining in such partial first month: provided, however, that if
less than all of the Equipment is delivered prior to the Commencement Date then
Lessee shall pay rent to the Lessor for the period between such date of delivery
and Commencement Date, which rent for each full month of such period shall be
determined by multiplying by a fraction whose numerator shall be the cost of the
Equipment so delivered and whose denominator shall be the total cost of all of
the Equipment.
3a. Maintenance of the Equipment is being furnished by the Lessor pursuant to a
Master Maintenance Agreement dated June 17, 1997 with the Lessee. Any charges
with respect to such maintenance are included in the stated rent. Lessor,
however, may, on thirty (30) days prior written notice, increase the charges for
maintenance and thereupon the rent to be paid with respect to the Equipment
shall be increased by the amount of such increase in the maintenance charges.
4. Extension of Lease. Lessee shall have the option to extend this Lease
Schedule at the end of the present term for a twenty-four (24) month period at a
monthly rental charge of Two Thousand Five Hundred Ninety Dollars ($2,590)
each month, plus the then current monthly maintenance charges, and a subsequent
option to extend this Lease Schedule for sixty (60) months at a monthly rental
charge of One Thousand Three Hundred Sixty-Eight Dollars ($1,368) each month,
plus the then current monthly maintenance charges.
4a. Security Deposit. In addition to all other payments required of Lessee
hereunder, upon execution of this Lease Schedule, Lessee will pay to Lessor
the sum of Fifty-Six Thousand Four Hundred Eighty-Seven Dollars ($56,487) as
a Security Deposit. Such deposit may be applied by Lessor in whole or partial
satisfaction of any liability of Lessee hereunder which is not paid when due.
Lessor agrees to return $34,403 of the Security Deposit at month thirteen (13)
and $22,084 of the Security Deposit at the completion of Month Thirty-Six (36)
provided that none of the Events of Default have occurred (whether or not the
same is continuing).
5. Should Lessee wish to exercise the extension option under Section 4, Lessor
must be notified in writing by Lessee, via certified mail, of Lessee's intention
to exercise this option. Said notification must be received at least ninety (90)
days prior to termination of this Lease Schedule. Should said notice not be
delivered to Lessor, Lessee shall forfeit the option
- 2 -
contained in Section 4 and all Equipment shall be delivered to the Lessor at the
conclusion of the Lease Term. Should Lessee forfeit the option contained in
Section 4 and all Equipment is not received by the Lessor at the conclusion of
the Lease Term, Lessee shall, until such Equipment is so returned, pay to Lessor
on account of damages a monthly amount equal to Six Thousand Two Hundred
Sixty-Nine Dollars ($6,269), plus the then current monthly maintenance charges.
6. Termination of Lease. Should Lessee not wish to exercise the extension option
under Section 4, Lessor must be notified in writing, via certified mail, of
Lessee's intention to terminate this Lease Schedule. Said notification must be
received at least ninety (90) days prior to the end of the term of this Lease
Schedule. All Equipment shall be delivered to Lessor at the conclusion of the
Lease Term pursuant to Section 3 of the Master Equipment Lease. Should said
notice not be delivered to Lessor and all Equipment is not received at the
conclusion of the Lease Term, Lessee shall, until such Equipment is so returned,
pay to Lessor on account of damages a monthly amount equal to Six Thousand Two
Hundred Sixty-Nine Dollars ($6,269), plus the then current monthly maintenance
charges.
7. Equipment Location (complete address):
TOMAHAWK II, INC.
8315 CENTURY PARK COURT, SUITE 200
SAN DIEGO, CA 92123
8. Lessee's Billing Address:
TOMAHAWK II, INC.
8315 CENTURY PARK COURT, SUITE 200
SAN DIEGO, CA 92123
9. All of the provisions of the above-mentioned Master Equipment Lease are
incorporated by reference herein as if set forth fully herein.
10. This Lease Schedule is conditional upon approval of Lessor, and is neither
consummated nor binding on Lessor until accepted by an authorized officer of
Lessor. Such acceptance will be rendered only after submission of all necessary
information to the Lessor and an evaluation by the Lessor of the acceptability
of the Lessee for the Lease Schedule herein described.
Signature of this Lease Schedule by the Lessor shall constitute acceptance and
all aforementioned terms and conditions and shall be effective upon endorsement
by the Lessor.
LESSEE LESSOR
TOMAHAWK II, INC. BOSTON FINANCIAL & EQUITY CORPORATION
/s/ Michael H. Lorber /s/ Adolf F. Monosson
- ------------------------------- -------------------------------------
(Signature) (Signature)
Michael H. Lorber Adolf F. Monosson
- ------------------------------- -------------------------------------
(Name) (Name)
VP-Finance & CFO President
- ------------------------------- -------------------------------------
(Title) (Title)
7/1/97 July 7, 1997
- ------------------------------- -------------------------------------
(Date) (Date)
- 3 -
EXHIBIT C
CERTIFICATE OF ACCEPTANCE AND SATISFACTION
BOSTON FINANCIAL & EQUITY CORPORATION
P.O. Box 15071
Boston, Massachusetts 02215
The undersigned, the Lessee, hereby acknowledges receipt of the equipment
itemized herein.
SCHEDULE NO. 1
Page 1 of 2
Serial Delivery Installation
Qty Equipment Description Number Date Date
- --- --------------------- ------ -------- ------------
DELTA TECHNOLOGY EQUIPMENT
HARDWARE:
(7) IBM 7043-43P 166 MHz RISC System/6000 26-03543 2/15/97 2/15/97 (3)
- 1MB L2 cache 26-03542
- 128MB RAM
- 2.1GB Hard Drive 26-03536 2/31/97 2/31/97 (3)
- Internal CD ROM 26-03537 3/5/97 3/5/97 (1)
- 20" Color Monitor 26-03541
- GXT800P 24 Bit Color with Z-Buffer
1280 x 1024 graphics 26-03550
- Keyboard 26-03860
- 3 Button Mouse
- 3.5" Disk Drive
- 2003 Spaceball
SOFTWARE
(7) CATIA 5626-ADD Advanced Part Design
& Detailing Config.
- Object Manager 2/15/97 2/15/97 (3)
- Library
- Dynamic Sketcher 2/31/97 2/31/97 (3)
- 3D Wireframe
- 3D Parametric Variational Modeler 3/5/97 3/5/97 (1)
- Exact Solids
- Feature-Based Design
- Drafting Product
- Draw-space (2D/3D) integration Product
- 2D Wireframe & Annotation
NCB NC5
--- ---
- Surface Design 2/15/97 2/15/97 (1) (1)
- Advanced Surface Design 2/31/97 2/31/97 (1) (1)
(6) CATIA 5626-NCB Mfg. Interface Product 3/5/97 3/5/97 (1) (1)
(4) CATIA 5626-NC5 Multi Axis Milling Product 5/27/97 5/27/97 (3) (1)
(7) 5765-393 AIX V4.1.5 Operating System 2/15/97 2/15/97 (3)
(7) 5696-907 PEX and PHIGS 2/31/97 2/31/97 (3)
(7) 5696-939 Open GL 3/5/97 3/5/97 ( )
User further acknowledges the following:
(A) That the Lessee selected the equipment and that neither the supplier
from whom the Lessor purchased the equipment nor any salesman or other
agent of the supplier is an agent or representative of the Lessor; and
CERTIFICATE OF ACCEPTANCE AND SATISFACTION
BOSTON FINANCIAL & EQUITY CORPORATION
P.O. Box 15071
Boston, Massachusetts 02215
The undersigned, the Lessee, hereby acknowledges receipt of the equipment
itemized herein.
SCHEDULE NO. 1
Page 2 of 2
(B) That, having examined the equipment, its parts and accessories, the Lessee
is completely satisfied with its delivery and installation and that it meets
all the tests of suitability, merchantability and fitness for the particular
purpose for which it was leased; and Lessee hereby authorizes and requests
Lessor to make payment for the Equipment to the supplier thereof; and
(C) That the Lessee understands and agrees that the Lessor makes no warranty
expressed or implied as to any matter whatsoever concerning the condition of
the equipment and that neither Lessor nor its assignees shall be liable
to Lessee for any loss, damage, or expense of any kind or nature caused
directly or indirectly by the equipment or the use or maintenance thereof,
or the failure of operation thereof; Lessor will not be liable to Lessee for
any consequential or incidental damages to Lessee; and
(D) That if the equipment is not properly installed, does not operate as
represented by supplier, or is unsatisfactory for any reason, Lessee shall
make claim on account thereof solely against supplier and shall nevertheless
pay Lessor all rent payable under this lease; Lessee hereby waiving any and
all rights, claims and set-offs against the Lessor that might have otherwise
arisen under the purchase agreement.
(E) That the date hereunder is the actual date of Equipment Acceptance and
Satisfaction.
The Lessee further acknowledges receiving a copy of this certificate for
retention in Lessee's files.
Lessee: TOMAHAWK II, INC.
By: /s/ Michael H. Lorber
------------------------------------
Title: VP Finance & CFO
---------------------------------
Date Accepted: 7/1/97 Date Signed: 7/1/97
---------------- ---------------------------
Exhibit D
LEASE SCHEDULE NO. 2
to Master Equipment Lease between BOSTON FINANCIAL & EQUITY CORPORATION,
Lessor, and TOMAHAWK II, INC., Lessee (Lease No. 1286) dated as of July 7, 1997.
1. Description of Equipment: SOFTWARE
QTY. DESCRIPTION
---- -----------
(2) CATIA 5626 NC5 MULTI AXIS MILLING PRODUCT
INCLUDES 1 YR MAINTENANCE AND 1 YR LICENSE CHARGE
2. Lease Term. This Lease Schedule shall be effective as of the date hereof, and
unless terminated as provided herein, shall continue in full force and effect
for a period of thirty-six (36) months from Commencement Date.
3. Payment of Rent. Lessee shall pay to Lessor as Monthly Rent for the above
Equipment the sum of One Thousand Seven Hundred Thirteen Dollars ($1713) each
month for the first twelve (12) months and One Hundred Eighty-Seven Dollars
($187) each month for the final twenty-four (24) months. Payment will be made in
advance on or before the first day of each month of Lease Term, or any
extensions thereof. Rental payments for Months One (1) and Thirty-Six (36) are
due upon signing of this agreement with the Rental payment for the first month
being applied to the month beginning with the Commencement Date.
If delivery of the Equipment takes place on other than the first day of a month,
the rent for such partial first month shall be the amount obtained by
multiplying the following: Fraction of Monthly Rent as set forth above times the
number of days remaining in such partial first month: provided, however, that if
less than all of the Equipment is delivered prior to the Commencement Date then
Lessee shall pay rent to the Lessor for the period between such date of delivery
and Commencement Date, which rent for each full month of such period shall be
determined by multiplying by a fraction whose numerator shall be the cost of the
Equipment so delivered and whose denominator shall be the total cost of all of
the Equipment.
4. Extension of Lease. Lessee shall have the option to extend this Lease
Schedule at the end of the present term for a twenty-four (24) month period
at a monthly rental charge of Ninety-Four Dollars ($94) each month, and a
subsequent option to extend this Lease Schedule for sixty (60) months at a
monthly rental charge of Forty-Seven Dollars ($47) each month.
- 1 -
4a. Security Deposit. In addition to all other payments required of Lessee
hereunder, upon execution of this Lease Schedule, Lessee will pay to Lessor the
sum of Two Thousand Eight Hundred Eight Dollars ($2808) as a Security Deposit.
Such deposit may be applied by Lessor in whole or partial satisfaction of any
liability of Lessee hereunder which is not paid when due. Lessor agrees to
return One Hundred Percent (100%) of the Security Deposit at the completion of
Month twelve (12) provided that none of the Events of Default have occurred
(whether or not the same is continuing).
5. Should Lessee wish to exercise the extension option under Section 4, Lessor
must be notified in writing by Lessee, via certified mail, of Lessee's intention
to exercise this option. Said notification must be received at least ninety (90)
days prior to termination of this Lease Schedule. Should said notice not be
delivered to Lessor, Lessee shall forfeit the option contained in Section 4 and
all Equipment shall be delivered to the Lessor at the conclusion of the Lease
Term. Should Lessee forfeit the option contained in Section 4 and all Equipment
is not received by the Lessor at the conclusion of the Lease Term, Lessee shall,
until such Equipment is so returned, pay to Lessor on account of damages a
monthly amount equal to One Hundred Eighty-Seven Dollars ($187).
6. Termination of Lease. Should Lessee not wish to exercise the extension option
under Section 4, Lessor must be notified in writing, via certified mail, of
Lessee's intention to terminate this Lease Schedule. Said notification must be
received at least ninety (90) days prior to the end of the term of this Lease
Schedule. All Equipment shall be delivered to Lessor at the conclusion of the
Lease Term pursuant to Section 3 of the Master Equipment Lease. Should said
notice not be delivered to Lessor and all Equipment is not received at the
conclusion of the Lease Term, Lessee shall, until such Equipment is so returned,
pay to Lessor on account of damages a monthly amount equal to One Hundred
Eighty-Seven Dollars ($187).
7. Equipment Location (complete address):
TOMAHAWK II, INC.
Suite 200
8315 Century Park Court
San Diego, CA 92123
8. Lessee's Billing Address:
TOMAHAWK II, INC.
Suite 200
8315 Century Park Court
San Diego, CA 92123
9. All of the provisions of the above-mentioned Master Equipment Lease are
incorporated by reference herein as if set forth fully herein.
-2-
10. This Lease Schedule is conditional upon approval of Lessor, and is neither
consummated nor binding on Lessor until accepted by an authorized officer of
Lessor. Such acceptance will be rendered only after submission of all necessary
information to the Lessor and an evaluation by the Lessor of the acceptability
of the Lessee for the Lease Schedule herein described.
Signature of this Lease Schedule by the Lessor shall constitute acceptance and
all aforementioned terms and conditions and shall be effective upon endorsement
by the Lessor.
LESSEE LESSOR
TOMAHAWK II, INC. BOSTON FINANCIAL & EQUITY CORPORATION
/s/ Michael H. Lorber /s/ Adolf F. Monosson
- ----------------------------------- -------------------------------------
(Signature) (Signature)
Michael H. Lorber Adolf F. Monosson
- ----------------------------------- -------------------------------------
(Name) (Name)
VP Finance & CFO President
- ----------------------------------- -------------------------------------
(Title) (Title)
9/24/97 10/3/97
- ----------------------------------- -------------------------------------
(Date) (Date)
- 3 -
Exhibit E
PURCHASE AGREEMENT ASSIGNMENT AND CONSENT
THIS AGREEMENT dated as of June 19, 1997, is entered into by Boston Financial &
Equity Corporation ("Lessor"), TomaHawk II, Inc. ("Lessee"), and Delta
Technology ("Vendor"), in connection with the equipment lease ("Lease") between
Lessor and Lessee dated June 17, 1997, for the Equipment identified on the
attached Exhibit I.
RECITALS
(A) Lessee desires to lease the equipment ("Equipment") described in the
attached Exhibit I which was shipped under Lessee Purchase Order Nos. 196284,
196270 and 196293, collectively the ("Purchase Agreement") in the amount of
Three Hundred Seventy-Six Thousand Five Hundred Seventy-Nine Dollars
($376,579) issued to Vendor and Lessor is willing to accept assignment of
certain of Lessee's rights and interest under the Purchase Agreement.
(B) Lessor and Lessee wish Vendor, and Vendor is willing, to consent to such
assignment, and all three parties wish to define their respective rights and
obligations in connection with the sale of Equipment to Lessor pursuant thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
(1) Lessee hereby assigns and sets over to Lessor all of Lessee's right and
interest in and to the Equipment, and in and to the Purchase Agreement as the
same relates to the Equipment, including without limitation in such assignment
(i) the right to purchase the Equipment pursuant to the Purchase Agreement and
(ii) all claims for damages in respect of the Equipment arising as a result of
any default by Vendor under the Purchase Agreement, including without limitation
all warranty and indemnity provisions contained therein and all claims arising
thereunder. On and subject to the remaining provisions of this Agreement, Lessor
hereby accepts, and Vendor hereby consents to, such assignment.
(2) The parties agree that except as otherwise expressly provided in the
remainder of this Agreement, (a) Lessee shall at all times remain liable to
Vendor to perform all of the duties and obligations of the purchaser under the
Purchase Agreement to the same extent as if this Agreement had not been
executed; (b) the execution of this Agreement shall not modify any contractual
rights or obligations of Vendor under the Purchase Agreement, and Lessor shall
have no greater rights against Vendor than would Lessee if this Agreement had
not been executed; (c) the exercise by Lessor of any of the rights assigned
hereunder shall not release Lessee from any of its duties or obligations to
Vendor under the Purchase Agreement, and (d) Lessor shall not have any
obligation or liability under the Purchase Agreement by reason of, or arising
out of, this Agreement.
(3) Lessor agrees that upon timely satisfaction of all conditions precedent
specified with respect to the Equipment in the Lease and/or in any commitment
letter between Lessor and Lessee relating to the Equipment, Lessor will become
unconditionally obligated to purchase and pay the price of the Equipment to
Vendor, such price to be payable not later than 30 days following the date on
which Lessor receives Certificate of Acceptance and Satisfaction from Lessee.
Vendor agrees to submit an invoice acceptable to the Lessor for the Equipment.
Vendor agrees, any provision of the Purchase Agreement to the contrary
notwithstanding, that if Lessor shall become obligated to purchase the Equipment
as provided above, and shall pay for the Equipment in full, Lessee shall be
relieved of its payment obligations thereunder; otherwise, Lessee shall be
obligated to purchase and pay for the Equipment to the same extent as if this
Agreement had not been executed. Lessor will promptly notify Vendor when all
such conditions precedent have been met.
(4) The parties agree, any provision of the Purchase Agreement to the contrary
notwithstanding, that subject to satisfaction, at or prior to such time, of the
conditions precedent referred to in Section 3 hereof to Lessor's obligation to
purchase the Equipment, title to the Equipment shall pass to Lessor.
1
(5) Vendor agrees, any provision of the Purchase Agreement to the contrary
notwithstanding, that it will not retain any security interest, lien or other
encumbrance on the Equipment after the time at which title thereto shall pass to
Lessor in accordance with Section 4 hereof and payment has been received by
Vendor. Vendor shall execute such documents as Lessor may reasonably request
evidencing the release of such security interest, lien or encumbrance.
(6) Vendor agrees, any term of the Purchase Agreement to the contrary
notwithstanding, that if Lessor acquires title to the Equipment as provided
above, Lessor and its successors and assigns shall be entitled to the full
benefit of all warranties applicable to such Equipment which Lessee would be
entitled to enforce if this Agreement had not been executed. Vendor agrees to
extend full warranty period for the Equipment to the Lessor upon execution of
this Agreement.
(7) Lessor agrees that so long as no default (or event which, with notice and
the lapse of time or both, would constitute a default) under the Lease has
occurred and is continuing, Lessee shall be and hereby is authorized on behalf
of Lessor, but in the name of Lessee, to exercise all rights and powers of the
purchaser under the Purchase Agreement with respect to the Equipment and to
retain any recovery or benefit resulting from the enforcement of any warranty,
indemnity or right to damages under the Purchase Agreement or otherwise existing
against Vendor with respect to the Equipment. Vendor consents to such
authorization. All parties hereto agree that upon written notice from Lessor to
Lessee and Vendor at their respective addresses set forth below (or at such
other address as either party may hereafter designate in writing) that a default
by Lessee (or an event which, with notice or lapse of time or both, would
constitute a default) under the Lease has occurred and is continuing, Lessee's
authorization set forth in this section shall terminate, and Vendor's
obligations under the Purchase Agreement (and all other rights against Vendor
with respect to the Equipment) shall thereafter be enforceable only by Lessor.
(8) This Agreement and the Purchase Agreement together constitute the sole
agreement of the parties concerning the purchase of the Equipment by Lessee or,
if the conditions precedent referred to in Section 3 hereof are satisfied, by
Lessor, and supersede all other prior and contemporaneous agreements, whether
written or oral, with respect thereto.
(9) This Agreement and the terms and conditions contained herein is confidential
and proprietary. Lessee and Vendor agree not to disclose the same to any other
party without the prior written consent of Lessor.
This Agreement may be amended only by a written instrument executed by all
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date set
forth below their respective signatures.
VENDOR: DELTA TECHNOLOGY LESSEE: TOMAHAWK II, INC.
By: /s/ [Illegible] By: /s/ Michael H. Lorber
--------------------------- ----------------------------
Title: LLC MEMBER, SECRETARY Title: VP Finance & CFO
--------------------------- ----------------------------
Address: 373 Van Ness Ave, Suite 100 Address: 8315 Century Park Ct, #200
Torrance, CA 90501 San Diego, CA 92133
--------------------------- ----------------------------
LESSOR BOSTON FINANCIAL & EQUITY CORPORATION
By: /s/ [Illegible]
-----------------------------------
Title: Exec VP
-----------------------------------
Date: 7/9/97
-----------------------------------
Address: 20 Overland Street, Boston, Massachusetts 02215
2
E X H I B I T I TO PURCHASE AGREEMENT ASSIGNMENT AND CONSENT
LESSEE: TOMAHAWK II, INC. LESSOR: BOSTON FINANCIAL & EQUITY CORPORATION
DELTA TECHNOLOGY EQUIPMENT
- --------------------------
HARDWARE:
Qty Description Unit UNIT EXT
- --- ----------- ------- --------
(7) IBM 7043-43P 166MHz RISC System/6000 $21,032 $147,225
- 1MB L2 cache
- 128MB RAM
- 2.1GB Hard Drive
- Internal CD ROM
- 20" Color Monitor
- GXT800P 24 Bit Color with
Z-Buffer 1280 x 1024 graphics
- Keyboard
- 3 Button Mouse
- 3.5" Disk Drive
- 2003 Spaceball
HARDWARE TOTAL includes 3 yrs Maintenance $147,225
--------
--------
SOFTWARE:
Qty Description PLC ALC
- --- ----------- --- ---
(7) CATIA 5626-ADD Advanced Part Design $138,600 $21,560
& Detailing Config.
- Object Manager
- Library
- Dynamic Sketcher
- 3D Wireframe
- 3D Parametric Variational Modeler
- Exact Solids
- Feature-Based Design
- Drafting Product
- Draw-space(2D/3D) integration Product
- 2D Wireframe & Annotation
- Surface Design
- Advanced Surface Design
(6) CATIA 5626-NCB Mfg. Interface Product $ 16,200 $ 2,520
(4) CATIA 5626-NC5 Multi Axis Milling product $ 32,400 $ 5,040
(7) 5765-393 AIX V4.1.5 Operating System $ 4,760
(7) 5696-907 PEX and PHIGS $ 4,137
(7) 5696-939 Open GL $ 4,137
--------
SOFTWARE TOTAL includes 1 yr Maintenance on Software. $229,354
--------
--------
Notes: 1. New ALC charges of $29,120 will be billed direct to Tomahawk II
12 Mo. from installation date.
2. Above Hardware system comes with extended 2yr Maintenance to run
3yrs from date of installation.
3. Above systems have been ordered and installed on Tomahawk's P.O.
#196284, 196270, & 196293.
Exhibit F
[BOSTON FINANCIAL & EQUITY CORPORATION LETTERHEAD]
VIA: FEDERAL EXPRESS
---------------------
June 20, 1997
Mr. Michael Lorber
Chief Financial Officer
TOMAHAWK II, INC.
8315 Century Park Court, Suite 200
San Diego, CA 92123
RE: LEASE LINE AGREEMENT
Dear Mr. Lorber:
Boston Financial & Equity Corporation ("BF&EC") is pleased to make the following
Lease Line Agreement ("Agreement") with TomaHawk II, Inc. ("TomaHawk") to
provide equipment leasing to TomaHawk in the amount hereinafter specified and
for the period ("Availability Period") and on the terms and conditions
hereinafter specified:
1. During the Availability Period, we would propose to lease equipment to
TomaHawk, which equipment, in the aggregate, would have a cost of not more
than up to $230,000 for Software and up to $130,000 for Hardware. All costs
relating to the installation, freight, training, insurance and any other
cost related to the acquisition, installation or operation of the leased
equipment would be paid directly by TomaHawk and would not be included as
part of the Agreement.
2. The Availability Period commences on June 5, 1997 and expires on June 4,
1998. To the extent leases have not been executed and the purchase orders
submitted by BF&EC to the supplier of the proposed leased equipment, and
accepted by the supplier during the Availability Period, this Agreement will
be of no further effect.
3. For each item of equipment leased during the Availability Period, the lease
will have an initial term of thirty-six (36) months with a monthly rental
factor of .0460 for Hardware and .0915 for Software for months one (1)
through twelve (12); .0380 for Hardware and .0100 for Software for months
thirteen (13) through twenty-four (24); and .0270 for Hardware and
.0100 for Software for the final twelve (12) months. The actual monthly
rental will be determined by multiplying the cost of the equipment by the
applicable monthly rental factor, plus any monthly maintenance charges.
Advance rental payments for Months One (1) and Thirty-Six (36) are due upon
execution of each lease schedule.
Continued ...
[BOSTON FINANCIAL & EQUITY CORPORATION LETTERHEAD]
Page Two
Mr. Michael Lorber
TOMAHAWK II, INC.
June 20, 1997
4. The proposed lease transaction is intended to be a true lease and TomaHawk
will have no option of any kind to acquire title to the leased equipment.
However, at the end of the initial term, TomaHawk will have the right,
assuming no default and upon no less than ninety (90) days written notice,
to extend the lease term for an additional twenty-four (24) months at a
monthly rental factor of .0098 for Hardware and .0050 for Software per
month, plus any monthly maintenance charges, and a subsequent right,
assuming no default and upon no less than ninety (90) days written notice,
to extend the lease term for an additional sixty (60) months at a monthly
rental factor of .0054 for Hardware and .0025 for Software per month, plus
any monthly maintenance charges.
5. All of TomaHawk's obligations under the lease are guaranteed, jointly and
severally, by each of TomaHawk Corporation of Alberta, Canada and TomaHawk
Imaging & Financial, Inc. of Alberta, Canada.
6. We reserve the right to require a security deposit equal in amount to
Fifteen Percent (15%) of the aggregate equipment cost under each lease or
lease schedule.
7. TomaHawk extends to BF&EC the right of first refusal on subsequent equipment
needs.
8. The documentation to be utilized in connection with each lease transaction
pursuant to this Agreement will be BF&EC's Standard Master Equipment Lease,
with appropriate lease schedules, as well as a filing of appropriate
financing statements to give public notice of the lease transaction, and the
delivery by TomaHawk of such other instruments, documents and certificates
as BF&EC or its counsel may require.
9. TomaHawk must furnish to BF&EC, on a regular basis, pursuant to the terms of
the Master Equipment Lease, financial statements and at any time as
Tomahawk's financial condition shall not be satisfactory to BF&EC, BF&EC may
forthwith terminate this Agreement.
10. In all events, BF&EC reserves the right to reject TomaHawk's request to
lease any particular item of equipment. BF&EC's obligation to lease the same
to TomaHawk, assuming that BF&EC does not reject TomaHawk's request, is
based upon the availability of the equipment at a price satisfactory to
BF&EC.
Continued ...
[BOSTON FINANCIAL & EQUITY CORPORATION LETTERHEAD]
Page Three
Mr. Michael Lorber
TOMAHAWK II, INC.
June 20, 1997
11. This Agreement and the terms and conditions contained herein is confidential
and proprietary. TomaHawk agrees not to disclose the same to any other party
without the prior written consent of BF&EC.
12. This Agreement and the respective obligations herein shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
13. As part of this Lease Line Agreement, TomaHawk Corporation will issue to
BF&EC 115,000 shares of its Common Stock in accordance with the rules and
regulations of the Alberta Stock Exchange, to be delivered at time of
execution of this Lease Line Agreement in a form acceptible to BF&EC. -
14. TomaHawk agrees that it shall not transfer funds to its parent company,
TomaHawk Imaging & Financial, Inc., or to TomaHawk Imaging & Financial,
Inc.'s parent company, TomaHawk Corporation, other than those funds
necessary to satisfy the requirements of the Alberta Stock Exchange,
and reasonable legal and accounting and other corporate expenses.
If this Agreement is satisfactory to TomaHawk, please accept the same by signing
and returning the enclosed counterpart with 115,000 shares of TomaHawk
Corporation Common Stock issued to BF&EC. Unless such counterpart is accepted by
TomaHawk and received by BF&EC with such Common Stock (allowing for reasonable
delay for receipt by BF&EC of such Common Stock) on or before June 25, 1997,
this Agreement shall be of no further force and effect. The non-refundable fee
of $7,000 has already been received by BF&EC.
Sincerely,
BOSTON FINANCIAL & EQUITY CORPORATION
Ida Bratsis
Contract Manager
AGREED AND ACCEPTED:
TOMAHAWK II, INC.
/s/ Michael H. Lorber
- --------------------------
(Signature)
Michael H. Lorber
- --------------------------
(Name)
VP-Finance & CFO
- --------------------------
(Title)
7/1/97
- --------------------------
(Date)