Exhibit 10.6
Confidential Treatment
Requested:
Confidential portions of this
document have been redacted and have been filed separately with the
Commission.
V EN C ORE S OLUTIONS LLC
4500 SW Kruse Way, Suite 350
Ÿ
Lake Oswego, OR 97035
503.699.4997 Ÿ
FAX: 503.675.3136
MASTER LEASE
AGREEMENT
NUMBER 4402
|
|
|
|
|
L ESSEE N AME AND A DDRESS
|
|
L
ESSOR N AME AND A DDRESS
|
|
|
|
|
INTERMETRO COMMUNICATIONS, INC.
|
|
V
EN C ORE S OLUTIONS LLC
|
|
2685 PARK CENTER DRIVE, BLDG A
|
|
4500 SW
KRUSE WAY, SUITE 350
|
|
SIMI VALLEY, CA 93065
|
|
LAKE OSWEGO,
OR 97035
|
Terms and
Conditions
1. LEASE LINES AND
LEASES.
a) Lease Lines. LESSOR
and LESSEE hereby agree that LESSOR will acquire and lease to
LESSEE, EQUIPMENT with an aggregate value of up to the amount
specified under “Approved Amount of Lease Line” on the
Lease Line Schedule attached as Exhibit A-l to this Master Lease
Agreement (such commitment is referred to as a “LEASE
LINE”) From time to time, LESSOR and LESSEE may (but are
under no obligation to) agree to establish one or more additional
LEASE LINES pursuant to which LESSOR agrees to acquire and lease to
LESSEE, EQUIPMENT with an aggregate value of up to the amount
specified for each such LEASE LINE. For each LEASE LINE agreed by
the parties, LESSOR and LESSEE will execute an additional Exhibit A
to this Master Lease Agreement, and each such Exhibit A will be
numbered sequentially (i e., designated as Exhibit A-2, Exhibit
A-3, etc.) and will incorporate the terms of this Master Lease
Agreement. No LEASE LINE shall be established, and LESSOR shall
have no liability or obligation under any LEASE LINE, unless and
until the appropriate Exhibit A is executed by both LESSOR and
LESSEE.
b) Leases. LESSOR and
LESSEE agree that the terms of this Master Lease Agreement shall
apply to and be incorporated by reference in one or more Lease
Schedules, each of which reference(s) the Master Lease Agreement
Number indicated above. The word “LEASE” shall mean any
one of the individual Lease Schedules executed hereunder, each of
which shall incorporate the terms and conditions of this Master
Lease Agreement (including the terms specified on the applicable
Exhibit A hereto, as determined below) and shall be evidenced by
the original Lease Schedule and an attached copy of this Master
Lease Agreement. The word “LEASES” shall mean all of
the individual Lease Schedules executed under and incorporating the
terms of this Master Lease Agreement collectively. The word
“EQUIPMENT” shall mean (i) for purposes of each
LEASE, the EQUIPMENT, which is the subject of such LEASE, as
defined and described in the applicable Lease Schedule, and/or
(ii) all of the EQUIPMENT subject to all of the LEASES,
collectively, in each case as the context may require. Each Lease
Schedule will include an EQUIPMENT description, the EQUIPMENT
location, the minimum lease term and payment and security deposit
information. Each LEASE shall be enforceable upon execution by
LESSEE and subsequent counter-signature by LESSOR indicating
acceptance. By entering into each Lease Schedule, LESSOR and LESSEE
agree that (i) the transaction effected by the Lease Schedule
constitutes a lease funding by LESSOR under the LEASE LINE then in
effect, (ii) LESSOR’S remaining funding obligations
under the applicable LEASE LINE shall be reduced accordingly, and
(iii) the initial lease period, the initial rent payment
amount, the documentation fees, the security deposit payment and
release requirements, the renewal rent payment amounts applicable
to the LEASE shall be determined pursuant to the applicable LEASE
LINE, as outlined on the Exhibit A to this Master Lease Agreement
which specifies a “Date of Lease Line Approval”
occurring on or before the date of the Lease Schedule and a
“Funding Expiration Date” occurring after the date of
acceptance of the Lease Schedule by LESSOR, and shall be set forth
with specificity on the applicable Lease Schedule.
2. RENTAL PAYMENTS.
Unless otherwise agreed in writing,
each regular periodic payment of rent due during the term of each
LEASE shall be due on either the tenth (10 th ) day of the month or the
twenty-fifth (25 th ) day of the month (the
“billing date”) The first billing date under each LEASE
where LESSEE’s acceptance occurred after the twentieth
(20 th ) day of the month
and
|
|
|
|
|
|
|
Master Lease Agreement
|
|
|
|
Page 1 of 6
|
|
|
|
|
|
Confidential
|
|
|
|
cr (initial)
|
prior to the sixth (6 th ) day of the following month
shall be the tenth (10 th ) day of the month immediately
following LESSEE’S acceptance of the EQUIPMENT, or, if
LESSEE’S acceptance occurs after the fifth (5
th
) day of a month
and prior to the twenty-first (21 st ) day of the month, then the
first billing date shall be the twenty-fifth (25
th
) day of the month
that LESSEE completed its acceptance of the EQUIPMENT. On the date
of acceptance of EQUIPMENT by LESSEE, LESSEE shall pay to LESSOR
pro rated rent, together with applicable taxes, from the date of
acceptance of the EQUIPMENT until the first billing date as interim
rent. In addition, LESSEE shall pay to LESSOR, on demand by LESSOR,
an amount equal to one thirtieth (1/30) of the proportional
monthly rental payment per day for any amount funded by LESSOR
prior to acceptance of the EQUIPMENT by LESSEE as additional
interim rent. LESSEE agrees to pay rent for the minimum term
specified on the Lease Schedule, commencing on the first billing
date and continuing until the EQUIPMENT is returned to LESSOR on
expiration or earlier termination of the LEASE. Each periodic
rental installment shall be the sum set forth on the applicable
Lease Schedule, plus any applicable sales and/or use taxes, and
shall, at LESSOR’S option, include a pro rata portion of that
year’s property tax. Payments shall be made by LESSEE at
LESSOR’S address set forth herein or as otherwise directed by
LESSOR. LESSEE shall not abate, set off, deduct any amount or
reduce any payment for any reason without the prior written consent
of LESSOR Payments are delinquent if not in LESSOR’S
possession by the due date.
3. COMMENCEMENT AND
TERMINATION. The LEASE
term shall commence on acceptance of the EQUIPMENT by LESSEE. The
LEASE shall terminate on the expiration of its minimum term in
months as set forth in the Lease Schedule following the first
billing date and the fulfillment of all obligations of LESSEE
thereunder or upon notice by LESSOR in the case of LESSEE default.
In the event LESSEE retains part or all of the EQUIPMENT beyond the
term of the LEASE, then the terms of the LEASE shall stay in effect
during such hold-over period, subject to LESSOR’S right on
default to terminate the LEASE.
4. NO WARRANTIES BY LESSOR.
LESSOR makes no warranty, express, implied or statutory, as to any
matter whatsoever, including, without limitation, the condition of
the EQUIPMENT, its merchantability or its fitness for any
particular purpose, and as to LESSOR, LESSEE leases the EQUIPMENT
“AS IS”.
5. CHOICE OF LAW, VENUE AND
JURISDICTION. The LEASE shall be deemed to have been made and shall
be construed in accordance with the laws of the State of Oregon.
Any and all suits or actions to enforce or for breach of the LEASE
must be instituted and maintained in Multnomah County, State of
Oregon, and LESSEE expressly agrees to submit to personal
jurisdiction in such venue.
6. ASSIGNMENT. Without
LESSOR’S prior written consent, which consent will not be
unreasonably withheld, LESSEE shall not assign, transfer, pledge,
hypothecate or otherwise dispose of the LEASE, any interest
therein, or sublease or loan the EQUIPMENT or permit it to be used
by anyone other than LESSEE or LESSEE’S qualified
employees. LESSOR may
assign the LEASE and/or grant a security interest in the EQUIPMENT,
in whole or in part, to one or more assignees, without notice to
LESSEE. LESSOR’S assignee(s) and/or the secured party(ies)
may reassign the LEASE, and/or such security interest without
notice to LESSEE. Each such assignee and/or such secured party
shall have all rights of LESSOR under the LEASE, but no such
assignee or secured party shall be bound to perform any obligation
of LESSOR. LESSEE shall recognize each such assignment and shall
not assert against any assignee and/or secured party any defense,
counterclaim or setoff it may have against LESSOR. LESSEE
acknowledges that any assignment or transfer by LESSOR shall not
materially change LESSEE’S duties or obligations under the
LEASE nor materially increase the burdens or risks imposed on
LESSEE.
7. SELECTION AND ACCEPTANCE OF
EQUIPMENT. LESSEE has
selected both the EQUIPMENT and the supplier(s) from whom LESSOR is
to purchase the EQUIPMENT. LESSEE shall arrange for transportation,
delivery and installation of the EQUIPMENT at LESSEE’S
expense. LESSEE acknowledges that it has examined the EQUIPMENT as
fully as it desires. If the EQUIPMENT is not properly installed,
its delivery is delayed, it does not operate as represented by the
supplier’s) or it is unsatisfactory for any reason, LESSEE
shall make no claim on account thereof against LESSOR. LESSEE
authorizes LESSOR to insert in the LEASE or other documents the
serial numbers and other identification information for the
EQUIPMENT as determined by LESSOR.
8. SUPPLIER/BROKER NOT AGENT OF
LESSOR. LESSEE
understands and agrees that neither the supplier(s), nor any
salesperson or agent of the supplier(s), is an agent of LESSOR.
LESSEE further agrees that if any transaction hereunder is
presented to LESSOR by a lease broker, that such broker is acting
as an agent of LESSEE and is not an agent of LESSOR. No salesperson
or agent of the supplier(s) or broker(s) is authorized to waive or
alter any term or condition of the LEASE, and no representation as
to the EQUIPMENT or any matter by the supplier(s) or broker(s)
shall in any way affect LESSEE’S duty to pay rent and perform
its other obligations set forth in the LEASE.
9. SECURITY DEPOSIT.
Security deposits received by LESSOR
are to guarantee prompt and full payment of rent and the faithful
and timely performance of all provisions of the LEASE by LESSEE.
Security deposits secure all obligations of LESSEE
|
|
|
|
|
|
|
Master Lease Agreement
|
|
|
|
Page 2 of 6
|
|
|
|
|
|
Confidential
|
|
|
|
cr (initial)
|
to LESSOR under the LEASES or otherwise. Unless
otherwise specified in the applicable Exhibit A to this Master
Lease Agreement or in another instrument in writing signed by
LESSOR and LESSEE, no interest will accrue on the security deposit
to the account of LESSEE. If LESSEE is not in default under any
agreement with LESSOR, the security deposit shall be returned to
LESSEE per the terms specified in the applicable Exhibit A to this
Master Lease Agreement or such other instrument in writing signed
by LESSOR and LESSEE. In the event LESSEE defaults on any of its
obligations to LESSOR, LESSOR shall have the right, but shall not
be obligated, to apply the security deposit to cure such default,
and if so applied, LESSEE shall, within ten (10) days, restore
the security deposit to the full amount held by LESSOR prior to any
application to cure such default.
10. CANCELLATION FOR
NON-DELIVERY. If, within
30 days after the LEASE is signed by LESSEE, the EQUIPMENT has not
been delivered to and accepted by LESSEE and if LESSOR has accepted
the LEASE by signing, LESSOR, by written notice to LESSEE, shall
have the option at any time thereafter to terminate LESSOR’s
obligation, if any, to lease the subject EQUIPMENT to
LESSEE.
11. LEASE TERMINATION
OPTIONS. Upon LEASE
Termination, and provided LESSEE is not in default, LESSEE will
have an option to purchase all, but not less than all, or the
EQUIPMENT, renew the term of the LEASE, or return all, but not less
than all, of the EQUIPMENT to LESSOR, as set forth in the
applicable Exhibit A- to the Master Lease Agreement.
12. OWNERSHIP.
The EQUIPMENT shall at all times
remain the personal property of LESSOR LESSEE will at all times
protect and defend, at its own cost and expense, the ownership of
LESSOR against all claims, liens and legal processes of creditors
of LESSEE and other persons, and keep the EQUIPMENT free and clear
from all such claims, liens and processes. If the LEASE is deemed
at any time to be one intended as security or should LESSOR agree
at any time to sell the EQUIPMENT to LESSEE, LESSEE agrees that the
EQUIPMENT shall secure, in addition to the indebtedness set forth
in the LEASE, indebtedness at any time owing by LESSEE to LESSOR.
Notwithstanding any other terms and conditions of the LEASE, in the
event that the EQUIPMENT includes computer software, LESSEE agrees
that LESSOR has not had, does not have, nor shall have any title to
such computer software LESSEE may have executed or may execute a
separate software license agreement(s) and LESSEE agrees that
LESSOR is not a party to nor responsible for any performance with
regard to such license agreement(s).
13. LOCATION AND RIGHT OF
INSPECTION. The EQUIPMENT
shall be kept at the location specified on the Lease Schedule or,
if none is specified, at LESSEE’S address as set forth
therein, and shall not be removed from there without LESSOR’s
prior written consent which consent will not be unreasonably
withheld. LESSOR shall have the right at any time during normal
business hours and upon reasonable notice to inspect the EQUIPMENT
and for that purpose have access to the location of the
EQUIPMENT.
14. USE AND OPERATION.
LESSEE shall use the EQUIPMENT in a
careful manner and shall comply with all laws relating to its
possession, use and maintenance LESSEE represents that the
EQUIPMENT shall be used in its business or commercial concern and
that no item of EQUIPMENT will be used for personal, family or
household purposes.
15. REPAIRS AND
ALTERATIONS. LESSEE shall
at its own expense maintain the EQUIPMENT in good repair,
appearance and functional order. LESSEE agrees to comply with all
maintenance schedules and procedures recommended by the
manufacturer of the EQUIPMENT and, if available, purchase or
otherwise enter into and adhere to dealer maintenance contracts.
LESSEE shall not make any alterations, additions or improvements to
the EQUIPMENT without LESSOR’s prior written consent which
consent will not be unreasonably withheld. All alterations,
additions or improvements made to the EQUIPMENT shall belong to
LESSOR.
16. LOSS AND DAMAGE.
LESSEE shall bear the entire risk of
loss, theft, damage or destruction of the EQUIPMENT from any cause
whatsoever and, as between LESSOR and LESSEE, unless otherwise
agreed between the parties, LESSEE shall bear that risk of loss
during transportation and delivery, and LESSEE shall arrange and
pay for transportation and delivery. No loss, theft, damage or
destruction of the EQUIPMENT shall relieve LESSEE of the obligation
to pay rent or to comply with any other obligation under the LEASE.
In the event of damage to any item of EQUIPMENT, LESSEE shall
immediately place the same in good repair at LESSEE’s
expense. If either LESSOR or LESSEE determines that any item of
EQUIPMENT is lost, stolen, destroyed or damaged beyond repair,
LESSEE shall, at LESSEE’s option (a) replace the same
with like EQUIPMENT in good repair, acceptable to LESSOR, or
(b) pay LESSOR a sum equal to (i) all amounts due by
LESSEE to LESSOR under the LEASE up to the date of the loss,
(ii) the unpaid balance of the total rent for the remaining
term under the LEASE which is attributable to said item of
EQUIPMENT, and (iii) an amount equal to eighteen percent
(18%) of the original cost of said item of EQUIPMENT, which
the parties agree shall represent the fair market value of
LESSOR’s residual interest in said item of EQUIPMENT. The
amounts in (ii) and (iii) shall be discounted to present value
at a discount rate of six percent (6%) per annum.
17. INSURANCE.
LESSEE shall provide and maintain
primary insurance against loss, theft, damage or destruction of the
EQUIPMENT in an amount not less than the full replacement value of
the EQUIPMENT, with loss payable to LESSOR and with zero
deductible. At LESSOR’s request, LESSEE also shall provide
and maintain primary comprehensive general all risk
liability
|
|
|
|
|
|
|
Master Lease Agreement
|
|
|
|
Page 3 of 3
|
|
|
|
|
|
Confidential
|
|
|
|
cr (initial)
|
insurance. Such insurance shall include, but
shall not be limited to, product liability coverage, insuring
LESSOR and LESSEE, with a severability of interest endorsement or
its equivalent, against any and all loss or liability for all
damages, either to persons, property or otherwise, which might
result from or happen in connection with the condition, use or
operation of the EQUIPMENT, with such limits and with an insurer
satisfactory to LESSOR. Each policy shall expressly provide that
the insurance as to LESSOR shall not be invalidated by any act,
omission or neglect of LESSEE and cannot be canceled without thirty
(30) days written notice to LESSOR. As to each policy, LESSEE
shall furnish to LESSOR a certificate of insurance from the insurer
evidencing the insurance coverage required by this Section. If
LESSEE fails to procure or maintain such insurance, LESSOR shall
have the right, but shall not be obligated, to obtain such
insurance as to LESSOR’s and/or LESSEE’s interests. In
that event, LESSEE shall repay to LESSOR the cost thereof with the
next payment of rent, together with late charges as set forth in
Section 24. For all EQUIPMENT leased by LESSOR to LESSEE,
LESSEE irremovably appoints LESSOR as LESSEE’s
attorney-in-fact to make claim for, receive payment of, and execute
and endorse all documents, checks or drafts received in payment for
loss or damage under such insurance policy(ies). All obligations of
this Section shall extend throughout the term of the LEASE and
until the EQUIPMENT is returned to LESSOR.
18. LIENS AND TAXES.
LESSEE shall keep the EQUIPMENT free
and clear of all levies, liens and encumbrances. LESSEE shall pay
LESSOR, on or before the due date, all charges and taxes, local,
state or federal, which may now or hereafter be imposed upon the
ownership, leasing, rental, sale, purchase, possession or use of
the EQUIPMENT, excluding, however, all taxes on LESSOR’s
income. If LESSEE fails to pay said charges or taxes to LESSOR when
due, LESSOR shall have the right, but shall not be obligated, to
pay said charges or taxes, and add the same to the next payment of
rent, together with late charges as set out in Section 24.
LESSEE agrees to pay a reasonable fee to LESSOR for the processing
of property tax payments.
19. INDEMNITY.
LESSEE shall indemnify LESSOR
against, and hold LESSOR harmless from, any and all claims,
actions, proceedings, expenses, damages and liabilities, including
attorney fees, arising in connection with the EQUIPMENT, including,
without limitation, its manufacture, selection, purchase, delivery,
possession, use, operation or return and the recovery of claims
under insurance policies thereon. This indemnity provision shall
survive termination, cancellation or breach of the
LEASE.
20. MISCELLANEOUS REPRESENTATIONS
OF LESSEE. LESSEE and any
guarantor of the LEASES shall provide LESSOR with such corporate
resolutions, financial statements, and all other documents
regarding the financial or credit condition of LESSEE or any
guarantor, which LESSOR may request from time to time. LESSEE
represents and warrants that all credit and financial information
submitted to LESSOR in connection with the LEASES is materially
true and correct in all respects. LESSEE agrees that LESSOR and/or
its assigns may at any time investigate the credit-worthiness of
LESSEE using all available means.
21. FINANCIAL STATEMENTS AND
FIXED ASSET LISTS. So
long as any monies are owed by LESSEE to LESSOR under the terms of
any LEASE, and/or until all terms under each LEASE have been
fulfilled, LESSEE will provide LESSOR with financial statements on
a monthly basis and will provide LESSOR with fixed asset lists on a
quarterly basis. LESSEE represents and warrants that all credit and
financial information submitted to LESSOR in connection with the
LEASE is materially true and correct in all respects.
22. UNIFORM PERSONAL PROPERTY
LEASING ACT. To the
extent permitted by applicable law, and to the extent the LEASE is
governed by the law of a jurisdiction which has adopted a version
of the Uniform Personal Property Leasing Act (also known as
“Uniform Commercial Code - Leases”), the parties hereto
agree that: (1) the provisions thereof conferring remedies
upon a LESSEE or imposing obligations upon a LESSOR shall not apply
to the LEASE, its interpretation, or its enforcement; and
(2) each LEASE is a Finance Lease as defined by Uniform
Commercial Code - Section 2A-103(g). LESSEE acknowledges that
LESSEE has reviewed and approved any written Supply Contract(s)
covering the EQUIPMENT purchased from the Supplier(s) for lease to
LESSEE. LESSEE further acknowledges that LESSOR has informed or
advised LESSEE, in writing, either previously or in the LEASE, of
the following: (a) the identity of the Supplier(s);
(b) that the LESSEE may have rights under the Supply
Contract(s); and (c) that the LESSEE may contact the
Supplier(s) for a description of any such rights LESSEE may have
under the Supply Contract(s).
23. FINANCING
STATEMENTS. At the
request of LESSOR, LESSEE will join LESSOR in executing financing
statements pursuant to the Uniform Commercial Code. For any and all
EQUIPMENT leased by LESSOR to LESSEE, LESSEE hereby authorizes
LESSOR or its agents or assigns to execute financing statements on
LESSEE’s behalf, and to file such financing statements in all
jurisdictions where such execution and filing is permitted. It is
agreed that a carbon or photocopy of any financing statement may be
filed in place of the original and that a copy hereof may be filed
as a financing statement.
24. LATE CHARGES AND
INTEREST. If LESSEE fails
to pay LESSOR any amount when due or, in the case of an amount due
to one other than LESSOR, if LESSOR pays an amount on
LESSEE’s behalf, then LESSEE shall pay LESSOR a
late
|
|
|
|
|
|
|
Master Lease Agreement
|
|
|
|
Page 4 of 6
|
|
|
|
|
|
Confidential
|
|
|
|
cr (initial)
|
charge of five percent (5%) of such amount
for each calendar month or part thereof for which rent or other sum
shall be delinquent or shall have been paid by LESSOR on
LESSEE’s behalf. LESSEE also agrees to pay LESSOR the sum of
thirty-five dollars ($35.00) for each check of LESSEE’s
returned uncollectable by LESSEE’s bank. The amount of any
charges assessed hereunder shall be added to and become part of the
next rental payment or shall be separately invoiced, at
LESSOR’s option. Interest shall accrue on any unpaid or
unreimbursed amounts at the maximum rate allowable by law or
eighteen percent (18%), whichever is less, from the due date until
paid by LESSEE.
25. TIME IS OF THE
ESSENCE. Time is of the
essence of the LEASE. This provision shall not be waived by the
acceptance on occasion of late or defective performance.
26. DEFAULT.
LESSEE shall be in default if
(a) LESSEE shall fail to pay rent or any other amount provided
for under the LEASE within ten (10) days after the same
becomes due and payable; or (b) LESSEE fails to observe, keep
or perform any other provision of the LEASE or of any other
agreement with LESSOR, and such failure shall continue for a period
of ten (10) days; or (c) LESSEE shall abandon the
EQUIPMENT; or (d) except as inconsistent with Federal
Bankru