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Exhibit 10.4
MASTER LEASE AGREEMENT
ECHELON
CREDIT CORPORATION No. 5063
This Master Lease Agreement (the "MLA") is entered into by and between
Echelon Credit Corporation ("Lessor"), having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and DGS, Inc. ("Lessee"),
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. LEASE AGREEMENT. Lessor agrees to lease to Lessee, and Lessee agrees
to lease from Lessor, the equipment (the "Equipment") referenced in each of the
schedules (the "Schedule" or "Schedules") which incorporate this MLA therein
(the "Lease").
2. TERM. Each Lease shall be effective upon the execution of the MLA
and the related Schedule by the Lessor and the Lessee, The lease term (the
"Lease Term") of the Equipment referenced in each of the Schedules shall
commence on the rent commencement date specified in each Schedule (the "Rent
Commencement Date"). The Rent Commencement Date shall be the date upon which the
Equipment is delivered and determined to be ready for use at Lessee's location
as referenced in a certificate pursuant to which Lessee unconditionally accepts
the Equipment subject to such Lease (the "Certificate of Acceptance"). Lessor
shall not he obligated, or bound by, any Lease until Lessee has provided to
Lessor a "Certificate of Acceptance" and has received the advance Rent
payment(s) required by such Lease, Lessee agrees to use its best efforts to
pursue all acceptance procedures set forth in the Agreement.
3. RENT. The rent (the "Rent") for the Equipment referenced in any
Schedule shall be as stated in such Schedule and shall be payable according to
the provisions of such Schedule. If any amount payable under a Schedule is not
received by Lessor within 10 days of the due date, Lessee agrees to pay an
Overdue Charge, as defined herein, with respect to such amount.
4. SELECTION AND ASSIGNMENT. Lessee will select the type, quantity and
Supplier of each item of Equipment designated in a Schedule, and Lessee hereby
assigns to Lessor all of its right, title and interest in and to the related
equipment sales agreement, a copy of which has been provided to Lessor by Lessee
(the "Agreement"). The Agreement may be amended with the consent of Lessor. Any
such assignment with respect to Equipment shall become binding upon Lessor when
Lessor and Lessee have entered into a Lease with respect to such Equipment and
Lessor has received a related Certificate of Acceptance. Upon such an assignment
becoming effective, Lessor shall be obligated to purchase the Equipment from the
Supplier in accordance with the
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provisions of the Agreement. It is expressly agreed that Lessee shall at all
times remain liable to Supplier under the Agreement to perform all the duties
and obligations of Lessee thereunder, except for the obligation to purchase the
Equipment to the extent expressly assumed by the Lessor hereunder, and that the
Lessee shall be entitled to the same rights of the purchaser of the Equipment
under the Agreement, except such right, title and interest in the Equipment
retained exclusively by the Lessor as owner of the Equipment. Lessor shall have
no liability for a Supplier's failure to meet the terms and conditions of the
Agreement.
5. DELIVERY AND INSTALLATION. Lessee shall be responsible for payment
of all transportation, packing, installation, testing and other charges
associated with the delivery, installation or use of any Equipment which are not
included in the Agreement with respect to such Equipment.
6. WARRANTIES. LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT, ITS MERCHANTABILITY,
OR ITS FITNESS FOR A PARTICULAR PURPOSE. LESSOR SHALL NOT BE LIABLE TO LESSEE OR
ANY OTHER PERSON FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING FROM LESSEE'S USE OF THE EQUIPMENT, OR FOR DAMAGES BASED ON
STRICT OR ABSOLUTE TORT LIABILITY OR LESSOR'S PASSIVE NEGLIGENCE. LESSEE HEREBY
ACKNOWLEDGES THAT ANY MANUFACTURER'S OR SUPPLIER'S WARRANTIES WITH RESPECT TO
THE EQUIPMENT ARE FOR THE BENEFIT OF BOTH LESSOR AND LESSEE. NOTWITHSTANDING THE
FOREGOING, LESSEE'S OBLIGATIONS TO PAY EACH RENT PAYMENT DUE, OR OTHERWISE
PERFORM ITS OBLIGATIONS, UNDER THIS LEASE ARE ABSOLUTE AND UNCONDITIONAL.
7. TITLE TO AND LOCATION OF EQUIPMENT. Lessor shall retain title to
each item of Equipment. Lessee, at its expense, shall protect Lessor's title and
keep the Equipment free from all claims, liens, encumbrances and legal
processes. The Equipment is personal property and is not to be regarded as part
of the real estate on which it may be situated. If requested by Lessor, Lessee
will, at Lessee's expense, furnish a landlord or mortgagee waiver with respect
to the Equipment. The Equipment shall not be removed from the location specified
in the Schedule without the written consent of Lessor. Lessee shall, upon
Lessor's request, affix and maintain plates, tags or other identifying labels.
showing Lessor's ownership of the Equipment in a prominent position on the
Equipment.
8. USE OF EQUIPMENT, INSPECTION AND REPORTS. The use of the Equipment
by Lessee shall conform with all applicable laws, insurance policies, and
warranties of the manufacturer or Supplier of the Equipment. Lessor shall have
the right to inspect the Equipment at the premises where the Equipment is
located. Lessee shall notify Lessor promptly of any claims, liens, encumbrances
or legal processes with respect to the Equipment.
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9. FURTHER ASSURANCES. Lessee shall execute and deliver to Lessor such
instruments as Lessor deems necessary for the confirmation of this Lease and
Lessor's rights hereunder. Lessor is authorized to file financing statements
signed only by the Lessor in accordance with the Uniform Commercial Code, or
financing statements signed by Lessor as Lessee's attorney-in-fact. Any such
filing with respect to the Equipment leased pursuant to a true lease shall not
be deemed evidence of any intent to create a security interest under the Uniform
Commercial Code update program applicable to the Equipment then available from
the Supplier.
10. MAINTENANCE AND REPAIRS. Lessee shall, at its expense, maintain
each item of Equipment in good condition, normal wear and tear excepted and
shall, at all times during the Lease Term, subscribe to the software update
program applicable to the Equipment then available from the Supplier. Lessee
shall not make any addition, alteration, or attachment to the Equipment without
Lessor's prior written consent. Lessee shall make no repair, addition,
alteration or attachment to the Equipment which interferes with the normal
operation or maintenance thereof, creates a safety hazard, or might result in
the creation of a mechanic's or materialman's lien.
11. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to
perform any of its obligations under a Lease, Lessor may perform any act or make
any payment which Lessor deems necessary for the maintenance and preservation of
the Equipment subject thereto and Lessor's title thereto. All sums so paid by
Lessor (together with all related Overdue Charges), and reasonable attorneys'
fees incurred by Lessor in connection therewith, shall be additional rent
payable to Lessor on demand. The performance of any such act or the making of
any such payment by Lessor shall not be deemed a waiver or release of any
obligation or default on the part of Lessee.
12. INDEMNIFICATION. Lessee assumes liability for, and hereby agrees to
indemnify, protect and hold harmless, Lessor, and its agents, employees,
officers, directors, partners and successors and assigns, from and against, all
liabilities, obligations, losses, damages, injuries, claims, demands, penalties,
actions, costs and expenses, including, without limitation, reasonable
attorneys' fees, of whatever kind and nature, in contract or in tort, arising
out of the use, condition, operation, ownership, selection, delivery, leasing or
return of any item of Equipment, regardless of when, how and by whom operated,
or any failure on the part of Lessee to perform or comply with any of its
obligations under a Lease, excluding, however, any of the foregoing which result
from the gross negligence or willful misconduct of Lessor. Such indemnities and
assumptions of liabilities and obligations shall continue in full force and
effect, notwithstanding the expiration or other termination of such Lease.
Nothing contained in any Lease shall authorize Lessee to operate the Equipment
subject thereto so as
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to incur or impose any liability on, or obligation for or on behalf of, Lessor.
13. NO OFF-SET. All Rent shall be paid by Lessee irrespective of any
off-set, counterclaim, recoupment, defense or other right which Lessee may have
against Lessor, the manufacturer or Supplier of the Equipment or any other
party.
14. ASSIGNMENT BY LESSEE. Lessee shall not, without lessor's prior
written consent, (a) sell, assign, transfer, pledge, hypothecate, or otherwise
dispose of, encumber or suffer to exist a lien upon or against, any of the
Equipment or any Lease or any interest therein, by operation of law or
otherwise, or (b) sublease or lend any of the Equipment or permit any of the
Equipment to be used by anyone other than Lessee.
15. ASSIGNMENT BY LESSOR. Lessor may assign, sell or encumber its
interest in any of the Equipment and any Lease. Upon Lessor's written request,
Lessee shall pay directly to the assignee of any such interest all Rent and
other sums due under an assigned Lease. THE RIGHTS OF ANY SUCH ASSIGNEE SHALL
NOT BE SUBJECT TO ANY ABATEMENT, DEDUCTION, OFF-SET, COUNTERCLAIM, RECOUPMENT,
DEFENSE OR OTHER RIGHT WHICH LESSEE MAY HAVE AGAINST LESSOR OR ANY OTHER PERSON
OR ENTITY. Notwithstanding the foregoing, any such assignment (a) shall be
subject to Lessee's right to possess and use the Equipment subject to a Lease so
long as Lessee is not in default thereunder, and (b) shall not release any of
Lessor's obligations hereunder.
16. RETURN OF EQUIPMENT. Unless Lessee has exercised its option, if
any, to renew a lease or purchase the Equipment subject thereto, upon expiration
of the then current Lease Term of such Lease, Lessee shall, at its expense,
cause such Equipment to be removed, disassembled, and placed in the same
condition as when delivered to Lessee (reasonable wear and tear excepted) and
properly crate such Equipment for shipment and deliver it to a common carrier
designated by Lessor. Lessee will ship such Equipment, F.O.B. destination, to
any address specified in writing by Lessor within the continental United States.
All additions, attachments, alterations and repairs made or placed upon any of
the Equipment shall become part of such Equipment and shall be the property of
Lessor.
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17. EVENTS OF DEFAULT. The occurrence of any of the following shall be
deemed to constitute an Event of Default hereunder: (a) Lessee fails to pay
Rent, any other amount it is obligated to pay under a Lease or any other amount
it is obligated to pay to Lessor and does not cure such failure within 10 days
of such amount becoming due; (b) Lessee fails to perform or observe any
obligation or covenant to be performed or observed by Lessee hereunder or under
any Schedule, including, without limitation, supplying all requested
documentation, and does not cure such failure within 10 days of receiving
written notice thereof from Lessor; (c) any warranty, representation or
statement made or furnished to Lessor by or on behalf of Lessee is proven to
have been false in any material respect when made or furnished; (d) the
attempted sale or encumbrance by Lessee of the Equipment, or the making of any
levy, seizure or attachment thereof or thereon; or (e) the dissolution,
termination of existence, discontinuance of business, insolvency, or appointment
of a receiver of any part of the property of Lessee, assignment by Lessee for
the benefit of its creditors, the commencement of proceedings under any
bankruptcy, reorganization or arrangement laws by or against Lessee, or any
other act of bankruptcy on the part of Lessee.
18. REMEDIES OF LESSOR. At any time after the occurrence of any Event
of Default, Lessor may exercise one or more of the following remedies: (a)
Lessor may terminate any or all of the Leases with respect to any or all items
of Equipment subject thereto; (b) Lessor may recover from Lessee all Rent and
other amounts then due and to become due under any or all of the Leases; (c)
Lessor may take possession of any or all items of Equipment, wherever the same
may be located, without demand or notice, without any court order or other
process of law and without liability to Lessee for any damages occasioned by
such taking of possession, and any such taking of possession shall not
constitute a termination of any Lease; (d) Lessor may demand that Lessee return
any or all items of Equipment to Lessor in accordance with Paragraph 16; and (e)
Lessor may pursue any other remedy available at law or in equity, including,
without limitation, seeking damages, specific performance or an injunction.
Upon repossession or return of any item of the Equipment, Lessor shall
sell, lease or otherwise dispose of such item in a commercially reasonable
manner, with or without notice and on public or private bid, and apply the net
proceeds thereof (after deducting the estimated fair market value of such item
at the expiration of the term of the applicable Lease, in the case of sale, or
the rents due for any period beyond the scheduled expiration of such Lease, in
the case of any subsequent lease of such item, and all expenses, including,
without limitation, reasonable attorneys' fees, incurred in connection
therewith) towards the Rent and other amounts due under such Lease, with any
excess net proceeds to be retained by Lessor.
Each of the remedies under this Lease shall be cumulative, and not
exclusive, and in addition to any other remedy referred to herein or otherwise
available to Lessor in law or in equity.
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Any repossession or subsequent sale or lease by Lessor of any item of Equipment
shall not bar an action for a deficiency as herein provided, and the bringing of
an action or the entry of judgment against Lessee shall not bar Lessor's right
to repossess any or all items of Equipment.
19. CREDIT AND FINANCIAL INFORMATION. Within 90 days of the close of
each of Lessee's fiscal years, Lessee shall deliver to Lessor a copy of Lessee's
annual report, if any, and an audited balance sheet and profit and loss
statement with respect to such year. If audited financial statements of Lessee
for such year are not prepared, Lessee may provide financial statements
certified by an officer of Lessee. At Lessor's request, Lessee shall deliver to
Lessor a balance sheet and profit and loss statement for any of its fiscal
quarters, certified by an officer of Lessee.
20. INSURANCE. Lessee shall obtain and maintain for the entire Lease
Term of each Lease (and any renewal or extension thereof), at its own expense,
property damage and personal liability insurance and insurance against loss or
damage to the Equipment, including, without limitation, loss by fire (with
extended coverage), theft and such other risks of loss as are customarily
insured against with respect to the types of Equipment leased hereunder and by
the types of businesses in which such Equipment will be used by Lessee. Such
insurance shall be in such amounts, with such deductibles, in such form and with
such insurers as shall be satisfactory to Lessor; provided, however, that the
amount of the insurance against loss or damage to the Equipment shall not be
less than the greater of the replacement value of the Equipment, from time to
time, or the original purchase price of the Equipment. Each insurance policy
shall name Lessee as an insured and Lessor as an additional insured or loss
payee, and shall contain a clause requiring the insurer to give Lessor at least
30 days prior written notice of any alteration in the terms of such policy or of
the cancellation thereof. Lessee shall furnish to Lessor a certificate of
insurance or other evidence satisfactory to Lessor that such insurance coverage
is in effect; provided, however, that Lessor shall be under no duty either to
ascertain the existence of or to examine such insurance policy or to advise
Lessee in the event such insurance coverage shall not comply with the
requirements hereof. Lessee shall give Lessor prompt notice of any damage to, or
loss of, any of the Equipment, or any part thereof, or any personal injury or
property damage occasioned by the use of any of the Equipment.
21. TAXES. Lessee hereby assumes liability for, and shall pay when due,
and, on a net after-tax basis, shall indemnify, protect and hold harmless Lessor
against all fees, taxes and governmental charges (including, without limitation,
interest and penalties) of any nature imposed on or in any way relating to
Lessor, Lessee, any item of Equipment or any Lease, except state and local taxes
on or measured by Lessor's net income (other than any such tax which is in
substitution for or relieves Lessee from
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the payment of taxes it would otherwise be obligated to pay or reimburse to
Lessor as herein provided) and federal taxes on Lessor's net income. Lessee
shall, at its expense, file when due with the appropriate authorities any and
all tax and similar returns, and reports required to be filed with respect
thereto, for which it has indemnified Lessor hereunder or, if requested by
Lessor, notify Lessor of all such requirements and furnish Lessor with all
information required for Lessor to effect such filings. Any fees, taxes or other
charges paid by Lessor upon failure of Lessee to make such payments shall, at
Lessor's option, become immediately due from Lessee to Lessor and shall be
subject to the Overdue Charge from the date paid by Lessor until the date
reimbursed by Lessee.
22. SEVERABILITY. If any provision of any Lease is held to be invalid
by a court of competent jurisdiction, such invalidity shall not affect the other
provisions of such Lease or any provision of any other Lease.
23. NOTICES. All notices hereunder shall be in writing and shall be
deemed given when sent by certified mail, postage prepaid, return receipt
requested, addressed to the party to which it is being sent at its address set
forth herein or to such other address as such party may designate in writing to
the other party.
24. AMENDMENTS, WAIVERS AND EXTENSIONS. This MLA and each Schedule
constitute the entire agreement between Lessor and Lessee with respect to the
lease of the Equipment subject to such Schedule, and supersede all previous
communications, understandings, and agreements, whether oral or written, between
the parties with respect to such subject matter. No provision of any Lease may
be changed, waived, amended or terminated except by a written agreement,
specifying such change, waiver, amendment or termination, signed by both Lessee
and Lessor, except that Lessor may insert, on the appropriate schedule, the
serial number of Equipment, after delivery of such Equipment, and the
Installation Date for the Equipment, after receiving a Certificate of
Installation with respect thereto. No waiver by Lessor of any Event of Default
shall be construed as a waiver (of any future Event of Default or any other
Event of Default. At the expiration of the Lease Term with respect to a Lease,
upon notice given by Lessee at least ninety (90) days prior thereto, (a) such
Lease shall be renewed or the Equipment subject thereto shall be purchased under
the terms and conditions set forth herein for a term and rent amount or purchase
price, as the case may be, to be agreed upon, or (b) if no such agreement is
reached prior to the expiration of such Lease Term or such notice specifies that
Lessee intends to return the Equipment, then Lessee shall return the Equipment
to Lessor in the manner prescribed in Paragraph 16 of this MLA. In the absence
of Lessor's timely receipt of the notice contemplated by the preceding sentence,
the Lease shall be automatically extended, on a month-to-month basis, until
terminated (upon notice by either party given at least ninety (90) days prior to
the end of the month on which the termination
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is to be effective) or until renewed or the Equipment subject thereto is
purchased by agreement of the parties. Unless otherwise agreed, Lessee shall
continue to pay the Rent for each month following such Lease Term until the
Equipment subject to such Lease is returned pursuant to Paragraph 16 of this
MLA.
25. CONSTRUCTION. This MLA shall be governed by and construed in
accordance with the internal laws, but not the choice of laws provisions, of the
State of California. The titles of the sections of this MLA are for convenience
only and shall not define or limit any of the terms or provisions hereof. Time
is of the essence in each of the provisions hereof.
26. PARTIES. This MLA shall be binding upon, and inure to the benefit
of, the permitted assigns, representatives and successors of the Lessor and
Lessee. If there is more than one Lessee named in this MLA, the liability of
each shall be joint and several.
27. COUNTERPARTS. Each Lease may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
28. OVERDUE CHARGE. Overdue Charge shall mean an amount equal to 2% per
month of any payment under a Lease which is past due, including, without
limitation, any amounts not included in any payment of Rent hereunder, or the
highest charge permitted by law, whichever is lower.
The person executing this MLA on behalf of Lessee hereby certifies that he or
she has read, and is duly authorized to execute, this MLA.
Accepted by:
Echelon Credit Corporation LESSEE: DGS, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇
Title: Vice President & CFO Title: CEO
Date: 11-30-93 Date: 11-29-93
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MLA #5063 LOCATION: DGS, Inc.
Schedule A
==========================================================================================================
EXTENDED
QUANTITY MODEL# DESCRIPTION UNIT PRICE PRICE
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1 20000 Starter Kit $17,995.00 $17,995.00
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1 25400 LonBuilder Router $ 1,595.00 $ 1,595.00
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1 27400 TP Transceiver $ 495.00 $ 495.00
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1 28000 Multi-Function $ 295.00 $ 295.00
I/O Kit
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1 27810 Appl. Interface $ 195.00 $ 195.00
Kit
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1 1st Yr-LonSupport $ 3,750.00 $ 3,750.00
Premier
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1 101-1 Training Class $ 1,800.00 $ 1,800.00
==========
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TOTAL PRICE $26,125.00
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FASTART PACKAGE BUNDLE PRICE: $21,125.00
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2 55010-00 TP/XF-78 TP Ctrl. $ 58.00 $ 116.00
Mod.
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1 73000-6 SLTA/2 Starter $ 396.00 $ 396.00
Kit
----------------------------------------------------------------------------------------------------------
1 LonSupport $ 2,250.00
Premier 2nd Yr (9
mos.)
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1 Premier - 3 Yr $ 3,000.00 $ 3,000.00
==========
----------------------------------------------------------------------------------------------------------
TOTAL FINANCE PRICE: $26,887.00
==========================================================================================================
ACCEPTED BY:
ECHELON CORPORATION DGS, INC.
By: By:
------------------------------- -----------------------------
Title: Title:
---------------------------- --------------------------
Date: Date:
----------------------------- ---------------------------
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LEASE SCHEDULE NO. 1 TO MASTER LEASE AGREEMENT NO. 5063
ECHELON
CREDIT CORPORATION
This Schedule and its supplements incorporate by this
reference the terms and conditions of the Master Lease Agreement,
Number 5063, between ECHELON Credit Corporation (Lessor) and DGS,
Inc. (Lessee).
1. Supplier: Echelon Corporation
2. Location of Equipment: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
3. Equipment value: $26,887.00 (exclusive of sales and/or use
taxes)
4. Lease Term: The Lease Term of the Equipment described in
this Schedule shall begin on the Rent Commencement Date
referenced below in Paragraph 6 and its expiration date
shall be 36 months after such Rent Commencement Date.
5. Rent: $759.00 per month (exclusive of sales and/or use
taxes) due and payable at the Rent Commencement Date and on
the same date of each succeeding month of the Lease Term.
The advance Rent payment shall be $1,518.00. This amount
includes $759.00 for the first month, and $759.00 for the
last 1 month, of the Lease Term.
6. Rent Commencement Date: ___________________, 19__
7. Purchase Option:
Lessee shall have the option to purchase the Equipment for its fair
market value for continued use ("FMV"), on the expiration of this Lease
or any renewal term, provided Lessee is not in default of any of its
obligations under this Lease on such expiration date. This purchase
option may only be exercised by Lessee's written notice to Lessor not
earlier than 180 days, nor later than 90 days, prior to the end of the
Lease Term or any renewal term. The purchase price for such Equipment
shall be payable upon the expiration date of such term. FMV shall be
equal to the value of the Equipment installed and in use, with
consideration given to the age, condition, utility and replacement
costs for the Equipment. In the event that the Lessor and Lessee are
unable to agree upon the purchase price for the Equipment, such
purchase price will be determined by an independent appraiser to be
selected by Lessor. Lessee shall be responsible for all applicable
sales and/or use taxes on the Equipment. Upon exercise of this purchase
option and payment of the purchase price,
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Lessor shall execute and deliver to Lessee such documents as Lessee may
reasonably request in order to vest in Lessee all right, title and
interest in the Equipment.
8. Renewal Option:
Lessee shall have the option to renew this Lease, on the expiration
date of this Lease or any renewal term, for the fair market rental for
the continued use of the Equipment ("FMR") and on such other terms as
may be agreed upon by Lessor and Lessee prior to such expiration date,
provided Lessee is not in default of any of its obligations under this
Lease on such expiration date. This renewal option may only be
exercised by Lessee's written notice to Lessor not earlier than 180
days, nor later than 90 days, prior to the end of the Lease Term or any
renewal term. FMR shall be equal to the value of the monthly rental of
the Equipment installed and in use, with consideration given to the
age, condition, utility and replacement costs for the Equipment, for
the renewal term.
9. Tax Benefits:
Lessee understands that Lessor intends to claim the "Tax Benefits",
consisting of the maximum Modified Accelerated Cost Recovery System
deductions for the minimum useful life applicable to each item of
Equipment, as provided by Sections 168(b) and (c) of the Internal
Revenue Code of 1986, and analogous benefits under state law, with
respect to the Equipment. Lessee represents and warrants that: (i)
Lessee has not been, is not now, and during the term of this Lease will
not become, and will not allow the Equipment to be used by or leased
to, a tax-exempt entity or government agency; and (ii) Lessee is not
now, and during the term of this Lease will not become, a public
utility. Without limitation by the preceding sentence, Lessee agrees
not to take any action, fail to take any action, or misstate any fact
which may result in any loss to Lessor of the Tax Benefits. Lessee
agrees to pay promptly to Lessor an amount which will fully compensate
Lessor, on an after-tax basis, for any loss of the Tax Benefits, plus
interest, penalties and additions to tax, any loss in time value of the
Tax Benefits, and any taxes imposed on any such compensation payment,
resulting from Lessee's acts, omissions or misstatements, including,
without limitation, with respect to the representations and warranties
in the preceding paragraph. A loss of Tax Benefits occurs at the
earliest of: (i) the happening of any event causing the loss; (ii)
payment by Lessor of any additional tax resulting from the loss; or
(iii) any adjustment to the tax return of Lessor, Lessor's right to
recovery of a loss of Tax Benefits shall survive the expiration or
termination of this Lease.
10. Description of Equipment:
See Schedule A which is attached hereto and made a part hereof by this
reference.
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The person executing this Schedule on behalf of Lessee hereby certifies that he
or she has read, and is duly authorized to execute, this Schedule.
Accepted by:
ECHELON Credit Corporation LESSEE: DGS, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇.▇▇▇▇
------------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------- --------------------------
Title: Vice President & CFO Title: CEO
--------------------------- --------------------------
Date: 11-30-93 Date: 11-29-93
---------------------------- --------------------------
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LEASE SCHEDULE NO. 2 TO MASTER LEASE AGREEMENT NO. 5063
ECHELON
CREDIT CORPORATION
This Schedule and its supplements incorporate by this reference the
terms and conditions of the Master Lease Agreement, Number 5063, between ECHELON
Credit Corporation (Lessor) and DGS, Inc. (Lessee).
1. Supplier: Echelon Corporation
2. Location of Equipment: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
3. Equipment value: $3,150.00 (exclusive of sales and/or use
Taxes)
4. Lease Term: The Lease Term of the Equipment described in
this Schedule shall begin on the Rent Commencement Date
referenced below in Paragraph 6 and its expiration date
shall be 34 months after such Rent Commencement Date.
5. Rent: $97.00 per month (exclusive of sales and/or use
taxes) due and payable at the Rent Commencement Date and on
the same date of each succeeding month of the Lease Term.
The advance Rent payment shall be $194.00. This amount
includes $97.00 for the first month, and $97.00 for the last
1 month(s), of the Lease Term.
6. Rent Commencement Date: April 1, 1994
7. Purchase Option:
Lessee shall have the option to purchase the Equipment for its fair
market value for continued use ("FMV"), on the expiration of this Lease
or any renewal term, provided Lessee is not in default of any of its
obligations under this Lease on such expiration date. This purchase
option may only be exercised by Lessee's written notice to Lessor not
earlier than 180 days, nor later than 90 days, prior to the end of the
Lease Term or any renewal term. The purchase price for such Equipment
shall be payable upon the expiration date of such term. FMV shall be
equal to the value of the Equipment installed and in use, with
consideration given to the age, condition, utility and replacement
costs for the Equipment. In the event that the Lessor and Lessee are
unable to agree upon the purchase price for the Equipment, such
purchase price will be determined by an independent appraiser to be
selected by Lessor. Lessee shall be responsible for all applicable
sales and/or use taxes on the Equipment. Upon exercise of
14
this purchase option and payment of the purchase price, Lessor shall
execute and deliver to Lessee such documents as Lessee may reasonably
request in order to vest in Lessee all right, title and interest in the
Equipment.
8. Renewal Option:
Lessee shall have the option to renew this Lease, on the expiration
date of this Lease or any renewal term, for the fair market rental for
the continued use of the Equipment ("FMR") and on such other terms as
may be agreed upon by Lessor and Lessee prior to such expiration date,
provided Lessee is not in default of any of its obligations under this
Lease on such expiration date. This renewal option may only be
exercised by Lessee's written notice to Lessor not earlier than 180
days, nor later than 90 days, prior to the end of the Lease Term or any
renewal term. FMR shall be equal to the value of the monthly rental of
the Equipment installed and in use, with consideration given to the
age, condition, utility and replacement costs for the Equipment, for
the renewal term.
9. Tax Benefits:
Lessee understands that Lessor intends to claim the "Tax Benefits",
consisting of the maximum Modified Accelerated Cost Recovery System
deductions for the minimum useful life applicable to each item of
Equipment, as provided by Sections 168(b) and (c) of the Internal
Revenue Code of 1986, and analogous benefits under state law, with
respect to the Equipment. Lessee represents and warrants that: (i)
Lessee has not been, is not now, and during the term of this Lease will
not become, and will not allow the Equipment to be used by or leased
to, a tax-exempt entity or government agency; and (ii) Lessee is not
now, and during the term of this Lease will not become, a public
utility. Without limitation by the preceding sentence, Lessee agrees
not to take any action, fail to take any action, or misstate any fact
which may result in any loss to Lessor of the Tax Benefits. Lessee
agrees to pay promptly to Lessor an amount which will fully compensate
Lessor, on an after-tax basis, for any loss of the Tax Benefits, plus
interest, penalties and additions to tax, any loss in time value of the
Tax Benefits, and any taxes imposed on any such compensation payment,
resulting from Lessee's acts, omissions or misstatements, including,
without limitation, with respect to the representations and warranties
in the preceding paragraph. A loss of Tax Benefits occurs at the
earliest of: (i) the happening of any event causing the loss; (ii)
payment by Lessor of any additional tax resulting from the loss; or
(iii) any adjustment to the tax return of Lessor. Lessor's right to
recovery of a loss of Tax Benefits shall survive the expiration or
termination of this Lease.
15
10. Description of Equipment:
See Schedule A which is attached hereto and made a part hereof by this
reference.
The person executing this Schedule on behalf of Lessee hereby certifies that he
or she has read, and is duly authorized to execute, this Schedule.
Accepted by:
ECHELON Credit Corporation LESSEE: DGS, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- --------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------- -----------------------------
Title: Vice President & CFO Title: CEO
--------------------------- ----------------------------
Date: 3-30-94 Date: 3-15-94
---------------------------- -----------------------------
16
SCHEDULE A
DGS, Inc. MLA #5063-2
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(1) LonManager API/Lite for Windows Premier
TOTAL COST $3,150.00
17
ECHELON
LonSupport Agreement #LS10391 (to be assigned by Echelon)
This Agreement is entered into between Echelon Corporation ("Echelon") and DGS,
Inc. ("Customer") on the following terms and conditions:
DEFINITIONS
1.1 "Product(s)" means the then current release of any Echelon software
product ("Software Products") currently licensed to Customer by Echelon or any
hardware product ("Hardware Product") owned by Customer, provided, that any such
product(s) is listed on Exhibit A.
1.2 "Effective Date" means the earlier of the date that the initial
payment is received by Echelon or the date Echelon receives an initial purchase
order hereunder, provided, however, that if the Product for which service is
being purchased is under Echelon's limited warranty and either payment or a
purchase order is received by Echelon, then the Effective Date shall be the day
after expiration of such limited warranty.
1.3 "Hardware Exchange" means the replacement of Customer's defective
Hardware Product by Echelon at no additional charge subject to the procedure set
forth in Section 2.6.
1.4 "Software Update" means any subsequent release of a Software
Product provided by Echelon to Customer at no additional charge as replacement
software, which updates shall be subject to the terms of the license agreement
between Echelon and Customer with respect to such Software Product. Echelon
shall determine the content of a Software Update or the eligibility of a new
release of a Software Product as a Software Update in its sole discretion.
1.5 "Technical Support" means responses made by Echelon to Customer's
inquiries with respect to a Product when such inquiries are submitted in English
via either telephone, facsimile, or an electronic mail service, subject to the
service levels and hours of operation set forth on Exhibit A.
1.6 "LonSupport Premier Service" means that combination of Hardware
Exchange, Software Updates and Technical Support set forth on Exhibit A and
identified with a support model number ("Model Number") provided to Customer by
Echelon for the period commencing on the Effective Date and ending on the last
day of the same month one (1) year hence, or with respect to a renewal
hereunder, the applicable anniversary of such last day.
1.7 "Software Update Service" means provision of Software Updates as
set forth on Exhibit A and identified with a Model Number to Customer by Echelon
for the period commencing on the Effective Date and ending on the last day of
the same month one
18
(1) year hence, or with respect to a renewal hereunder, the applicable
anniversary of such last day.
1.8 "Site" means Customer's facility where the Products are located,
including contiguous buildings, within a radius of one kilometer. Echelon shall
make the final determination of what constitutes a Site.
ORDERS AND ACCEPTANCE
2.1 Echelon shall provide Customer with Exhibit A, "LonSupport
Services", and any modifications thereto made by Echelon from time to time.
2.2 Customer may order LonSupport Premier Service(s) or Software Update
Service(s) for Customer's Product(s) by executing this Agreement (which
incorporates the then current version of Exhibit A) and providing Echelon with
Customer's purchase order that set forth at a minimum: (i) the Model Number;
(ii) the list price for such service; and (iii) any discounts to which Customer
is entitled under Exhibit A. On or before each anniversary of the Effective
Date, Customer may order an extension of the period of service for an additional
twelve (12) month period by issuing a new purchase order as provided in the
previous sentence.
2.3 Customer must purchase either LonSupport Premier Service(s) or
Software Update Service(s), as applicable, under this Agreement for all copies,
versions, or units of a specific Product at a single Site if such service is
purchased for any of them. However, some discounts for such copies, versions, or
units are available as described in Exhibit A.
2.4 Customer may order LonSupport Premier Service(s) or Software Update
Service(s) for additional Product(s) by issuing a new or amended purchase order
(incorporating this Agreement and the then current version of Exhibit A) that
sets forth at a minimum: (i) the Model Number; (ii) the list price for such
service; and (iii) any discounts to which Customer is entitled under Exhibit A.
The term of coverage for additional Product(s) added to this Agreement shall be
coterminous with the term of the Agreement. Any fees or charges for the
additional Products shall be prorated to reflect the reduced initial term of the
additional Products.
2.5 Echelon's issuance of an invoice to Customer shall constitute
Echelon's acceptance of Customer's purchase order and Echelon's agreement to
provide the ordered services as such services are further defined on the then
current version of Exhibit A. Otherwise, Echelon shall notify Customer within
fifteen (15) business days of receipt of Customer's purchase order that Echelon
declines to provide such services for Customer.
2.6 To initiate a Hardware Exchange for a defective Hardware
Product(s), Customer shall request delivery of a
19
replacement Hardware Product(s) and a Return Material Authorization (RMA) number
from Echelon's Customer Support staff. Echelon shall ship replacement Hardware
Product(s), freight prepaid, to Customer, and Customer shall return to Echelon
the defective Hardware Product(s) within ten (10) working days of receipt of
such replacement Hardware Product(s), freight prepaid, carefully packaged and
properly insured, with the RMA number displayed on the outside of the shipping
carton. Echelon shall accept such defective Hardware Product(s) in exchange for
the replacement Hardware Product(s), provided, that such defect is not due to
Customer's improper use, abuse, or neglect; or to Customer's alterations,
modifications, or attempts to repair the Hardware Product(s) without Echelon's
approval. If Echelon does not accept such defective Hardware Product(s) in
exchange for the replacement Hardware Product(s), or if Customer does not return
to Echelon the defective Hardware Product(s) giving rise to such exchange within
thirty (30) days of Customer's receipt of Echelon's replacement Hardware
Product(s), then Customer agrees to purchase at Echelon's then current list
price any replacement Hardware Product(s) shipped to Customer. Replacement
Hardware Product(s) may be new or reconditioned, functionally equivalent to new.
Echelon shall have all right, title and interest in and to any returned
defective Hardware Product(s) if Echelon accepts such defective Hardware
Product(s) in exchange for the replacement Hardware Product(s).
3. PAYMENT TERMS
3.1 Customer shall pay all invoices hereunder within thirty (30) days
of the date of the invoice. Echelon reserves the right to request payment in
advance or by letter of credit.
3.2 All fees and payments under this Agreement are quoted and to be
paid in United States Dollars. Customer shall be responsible for any sales, use
or other taxes or duties (except taxes paid on net income) and agrees to pay any
such tax, fee, or charge upon invoice by Echelon.
4. TERM AND TERMINATION
4.1 The term of this Agreement shall be twelve (12) months from the
Effective Date, provided that such term shall be extended until there are no
outstanding purchase orders issued by Customer pursuant to Section 2.2 or 2.4,
above, and accepted by Echelon pursuant to Section 2.5, above.
4.2 If either party falls to perform its obligations under this
Agreement and such failure continues for fifteen (15) days after receipt of
written notice of such failure, the other party shall have the right to
terminate this Agreement.
4.3 The provisions of Sections 5,6 and 7 shall survive termination of
this Agreement for any reason.
20
5. WARRANTY EXCLUSION
Echelon agrees to use reasonable efforts to provide service(s) and support as
set forth in this Agreement. CUSTOMER ACKNOWLEDGES THAT ALL PRODUCTS AND
SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED AS IS, AND ECHELON
DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL ECHELON BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHERWISE, AND
EVEN IF ECHELON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL ECHELON'S LIABILITY EXCEED THE TOTAL SUPPORT FEE PAID BY CUSTOMER TO
ECHELON FOR A ONE YEAR PERIOD FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY.
7. MISCELLANEOUS
7.1 This Agreement will be governed by the laws of the State of
California, U.S.A., without reference to conflicts of law principles.
7.2 This Agreement may not be assigned by Customer without the prior
written consent of Echelon. This Agreement, including all exhibits, constitutes
the entire agreement between the parties with respect to the subject matter
hereof, and supersedes all prior understandings and agreements regarding such
subject matter. No terms of any purchase order issued by Customer shall be
deemed to add to, delete or modify the terms and conditions of this Agreement.
No amendment to or modification of this Agreement, or waiver of rights under
this Agreement, will be binding unless mutually agreed in writing. The waiver of
any breach or default shall not constitute a waiver of any other right hereunder
or any subsequent breach or default. If any provision in this Agreement shall be
held to be invalid or unenforceable, the remainder of this Agreement shall
remain valid and enforceable. Echelon shall not be liable for delays or failure
to perform under this Agreement due to causes beyond its reasonable control.
7.3 Customer agrees not to export or re-export, or cause to be exported
or re-exported, any software, products or technical data or the direct product
thereof, to any country to which, under the laws of the United States, Customer
is or might be prohibited from exporting its technology or the direct product
thereof.
7.4 Any notices required by this Agreement shall be given in writing at
the address of each party set forth below, and shall be deemed served when
delivered or, if delivery is not
21
accomplished by reason of some fault of the addressee, when tendered.
Echelon Corporation Customer DGS, Inc.
Signature:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Signature:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & CFO Title: CEO
Effective Date: 4-4-94/1-30-97 Date Signed: 3-15-94
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: +1-800-258-4LON (US&Canada) Phone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇-▇▇▇-▇▇▇-▇▇▇▇
Serial Numbers: Service Selected: Premier( ) Update ( )
LonBuilder(TM) Workstation Serial No.(s)
LonManager(TM) APL API/Lite for DOS Serial No.(s)
LonManager APL API/Lite for Windows Serial No.(s): 9324C03-0048
LonBuilder Software Kit Serial No.(s):
22
Exhibit A
LONSUPPORT(TM) SERVICES
Model Product Software Technical Hardware List
Number Updates Support Exchange Price
90000 LonSupport Premier $3,750
-LonBuilderTM Hardware and Software Yes Yes Yes*
-MIP/P20 and MIP/P50 Developer's Kit Yes Yes N/A
-MIP/DPS Developer's Kit Yes Yes N/A
-LonManagerTM LonMakerTM Installation Tool Yes** Yes N/A
-LonManager Profiler Yes** Yes N/A
-LonManager DDE Server Yes** Yes N/A
-Control Modules and Transceivers N/A Yes N/A
-Routers and Router Modules N/A Yes N/A
-Serial LonTalkTM Adapters and Serial
Gateways N/A Yes N/A
90000-1 Each additional system at same site As Above As Above As Above $1,875
90010-1 LonBuilder Software Kit Premier
(Systems 1-4) Yes Yes Yes $1,500
90010-2 Each additional system at same site (5+) Yes Yes Yes $1,250
90100 LonManager API for DOS Premier Yes Yes N/A $1,400
90100-1 Each additional system at same site Yes Yes N/A $ 700
90200 LonManager API for Windows Premier Yes Yes N/A $1,750
90200-1 Each additional system at same site Yes Yes N/A $ 875
90300 LonManager API/Lite for DOS Premier Yes Yes N/A $ 840
90300-1 Each additional system at same site Yes Yes N/A $ 420
90400 LonManager API/Lite for Windows Premier Yes Yes N/A $1,050
90400-1 Each additional system at same site Yes Yes N/A $ 525
Model Product Software Technical Hardware List
Number Updates Support Exchange Price
23090 LonBuilder Software Update Service $2,250
-LonBuilder Software Yes No N/A
-MIP P/20 and MIP/P50 Developer's Kit Yes No N/A
-MIP/DPS Developer's Kit Yes No N/A
-LonManager LonMaker Installation Tool Yes** No N/A
-LonManager Profiler Yes** No N/A
-LonManager DDE Server Yes** No N/A
-Control Modules and Transceivers N/A No N/A
-Routers and Router Modules N/A No N/A
-Serial LonTalk Adapters and Serial
Gateways N/A No N/A
23090-1 Each additional system at same site As Above As Above As Above $1,125
31190 LonManager API for DOS Software Update Yes No N/A $1,000
Service
31190-1 Each additional system at same site Yes No N/A $ 500
31290 LonManager API for Windows Software Yes No N/A $1,250
Update Service
31290-1 Each additional system at same site Yes No N/A $ 625
31390 LonManager API/Lite for DOS Update Service Yes No N/A $ 600
31390-1 Each additional system at same site Yes No N/A $ 300
31490 LonManager API/Lite for Windows Update Yes No N/A $ 750
Service
31490-1 Each additional system at same site Yes No N/A $ 375
*Covered LonBuilder boards: Control Processor, Extender Card, Neuron(R) 3120
Programmer, Neuron Emulator, Single Board Computer (SBC), Router, Interface
Adapter, Development Station Backplane, Backplane Transceiver, LonBuilder
PL-10/LP-10/+Twisted Pair/+TP- RS485 Transceivers, Applications Interface Board
and Multi-Function I/O Kit. (+Use of the bread-board area on these transceivers
voids warranty and contract coverage.)
**A single update copy of licensed LonManager LonMaker Installation Tool,
LonManager Profiler, and/or LonManager DDE Server will be distributed on 3 1/2"
or 5 1/4" diskettes if such Products are licensed for use at such site.
Additional updates must be purchased separately.
NOTES
1. Prices are effective 2/15/94 and are subject to change. All prices are shown
in U.S. dollars. All pricing is FOB Palo Alto, California.
2. Customer is entitled to an Early Signing Discount of 20% off the list price
for the Service(s) if the then current Lon Support Agreement is renewed prior to
the expiration term of this Agreement.
3. Technical Support is provided only for the then current and immediately
preceding version of a Software Product(s). Software Updates are only provided
to parties licensed to use the immediately preceding version of such Software
Product(s). Such updates shall be shipped within sixty (60) days of the date of
general release and Customer will receive additional documentation as determined
by Echelon in its sole discretion.
4. Echelon intends to offer all customers software updates for each new release
of a Software Product(s). The price for each such software update will be
determined at the time of such release.
5. Technical Support shall include responses to inquiries regarding Echelon's
LONWORKSTM technology and the use of the Product(s). It does not include any
other Product(s) offered by Echelon unless specifically designated in this
Exhibit. When Echelon does not respond immediately to an inquiry, Echelon will
use reasonable efforts to respond within four (4) working hours of receipt.
Echelon's working hours shall be from 8:00 A.M. to 4:30 P.M., Pacific time,
Monday through Friday, with the exception of Echelon's regularly scheduled
holidays. The number to call for support is +1-800-258-4LON (US and Canada) or
▇▇-▇▇▇-▇▇▇-▇▇▇▇.
6. Customer must enter into a LonSupport Agreement with Echelon prior to
purchasing any services set forth herein. For a copy of this Agreement, please
call +1-800-258-4LON (US and Canada), ▇▇-▇▇▇-▇▇▇-▇▇▇▇, or your local Echelon
sales office.
23
7. If a Customer is licensed to use both the LonBuilder and any LonManager API
for DOS, and/or LonManager API for Windows Software Product(s) at a given Site,
then, unless otherwise agreed by Echelon, the Customer must purchase the same
level of support service for the API for DOS and API for Windows Product(s) that
Customer has purchased for the LonBuilder Software Product(s), provided, that a
Customer may elect to purchase support services only for the API for DOS and API
for Windows Software Product(s) subject to the following surcharges: $1,200 for
the first copy of the Software Product and $600 for each additional copy of the
Software Product.
Echelon, LON, and Neuron are U.S. registered trademarks of Echelon Corporation.
LonManager, LonMaker, LonTalk, LonSupport, LonBuilder, LONWORKS, LONMARK are
trademarks of Echelon Corporation. Some of the LONWORKS products are patented
and are subject to licensing Terms and Conditions. For a complete explanation of
these Terms and Conditions, please call +1-800-258-4LON (US and Canada) or
▇▇-▇▇▇-▇▇▇-▇▇▇▇.
24
LEASE-TO-OWN SCHEDULE NO. 3 TO MASTER LEASE AGREEMENT NO. 5063
ECHELON
CREDIT CORPORATION
This Schedule and its supplements incorporate by this
reference the terms and conditions of the Master Lease Agreement,
Number 5063, between ECHELON Credit Corporation (Lessor) and DGS<
Inc. (Lessee).
1. Supplier: Echelon Corporation
2. Location of Equipment: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
3. Equipment value: $3,440.00
(exclusive of sales and/or use taxes).
4. Lease Term: The Lease Term of the Equipment described in
this Schedule shall begin on the Rent Commencement Date
referenced below in Paragraph 6 and its expiration date
shall be 24 months after such Rent Commencement Date.
5. Rent: $165.00 per month (exclusive of sales and/or use
taxes) due and payable at the Rent Commencement Date and on
the same date of each succeeding month of the Lease Term.
The advance Rent payment shall be $330.00. This amount
includes $165.00 for the first month, and $165.00 for the
last 1 month(s), of the Lease Term.
6. Rent Commencement Date:_________________________, 19____.
7. Purchase Obligation:
Lessee shall be required to purchase the Equipment for $1.00. The
purchase price shall be payable upon the expiration date of the Lease.
Term. Lessee shall be responsible for all applicable sales and/or use
taxes on the Equipment. Upon payment of the purchase price, Lessor
shall execute and deliver to Lessee such documents as Lessee may
reasonably request in order to vest in Lessee all right, title and
interest in the Equipment.
8. Description of Equipment:
See Schedule A which is attached hereto and made a part hereof by this
reference.
25
The person executing this Schedule on behalf of Lessee hereby certifies that he
or she has read, and is duly authorized to execute, this Schedule.
Accepted by:
ECHELON Credit Corporation LESSEE: DGS, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇.▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & CFO Title: CEO
Date: March 7, 1995 Date: 2/22/95
26
CHANGE ORDER AMENDMENT
AMENDMENT TO SCHEDULE NO. 1 TO MASTER LEASE AGREEMENT NO. 5063
This Change Order Amendment (the "Amendment") changes the Equipment value and
Rent set forth in the Schedule to Master Lease Agreement referenced above in
accordance with the attached Equipment change orders and related Equipment
description.
Equipment change Ref. No. Schedule A $ 9,846.00
-------------- -----------------
order values:
Ref. No. $
-------------- -----------------
Ref. No. $
-------------- -----------------
Ref. No. $
-------------- -----------------
Ref. No. $
-------------- -----------------
Total Equipment change order value: $ 9,896.00
-----------------
Increase or Decrease in Rent: $ 326.00
-----------------
TO BE COMPLETED UPON EXECUTION BY LESSOR:
Equipment value (prior to this Amendment): $ 26,887.00
-----------------
Equipment value (Revised): $ 36,733.00
-----------------
Rent (prior to this Amendment): $ 759.00
-----------------
Rent (Revised): $ 1,085.00
-----------------
LESSOR is hereby authorized to complete the Equipment value (prior to this
Amendment); the Rent (prior to this Amendment); the Equipment value (Revised)
and the Rent (Revised) in accordance with the terms hereof.
|_| Check box if this Amendment relates to and commences with Add-
On Amendment No. ____________________.
This Amendment alters only the Equipment description, Equipment value and Rent.
All other terms and conditions of the Master Lease Agreement, its Schedules,
Amendments and other related documents remain unchanged.
LESSOR: DGS, Inc. LESSEE: Echelon Credit
Corporation
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President & CFO
Date: 12-28-93 Date: 12-27-93
27
SCHEDULE A-1
DGS, INC. MLA #5063-1
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
QTY PART # DESCRIPTION
--- ------ -----------
1 31400 LonManager AP/Lite for Windows
1 ▇▇▇▇-▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ OEM
TOTAL COST $9,846.00
28
January 29, 1997
▇▇. ▇▇▇ ▇▇▇▇▇▇
DGS, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Via Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
RE: Master Lease Agreement No. 5063, Schedules 1 & 2
(the "Lease")
LESSEE: DGS, Inc.
Dear ▇▇. ▇▇▇▇▇▇:
Echelon Credit Corporation acknowledges Lessee's request to renew the Equipment
as listed on the Schedule A of the "Lease" for a period of 36 months beginning
February 1, 1997 and ending January 31, 2000, at the rate of $250.00 (exclusive
of sales/use taxes) per month. This will be billed on a lease-to-own basis, and
title to all equipment will transfer upon receipt by Echelon Credit Corporation
of all renewal rental payments and other amounts due under the Lease. All other
terms and conditions of the Lease remain unchanged.
To secure the obligations of Lessee to observe and perform all of its payment
and other duties and obligations under the Lease, Echelon Credit Corporation
retains a security interest in the Equipment, all attachments thereto and
substitutions and replacements therefore, and all proceeds and payments for the
use thereof. Lessee shall keep the Equipment free of any claims, liens,
interests or encumbrances and shall not attempt to sell or sublease the
equipment or assign the Lease without Lessor's consent; any attempts to do any
of the foregoing shall be void and of no effect. Lessee agrees to execute and
permit filing of UCC-1 financing statements, if requested by Echelon Credit
Corporation to provide notice of this security interest.
Please make a note that all payments must now be remitted to the following
address:
Echelon Credit Corporation
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29
Please sign this letter below indicating your approval and fax to (408)
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press "4" and then x8587 if you have any questions.
Sincerely,
ECHELON CREDIT CORPORATION Accepted and Agreed:
DGS, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
Date: 1-29-97