Master Lease Agreement - Jacom Computer Services Inc. and Screaming Media.com Inc.
JACOM GROUP
560 ROUTE 303, ORANGEBURG, NEW YORK 10962
Lease Number 2017
MASTER LEASE AGREEMENT
This agreement is made the 2ND day of MARCH, 2000 between Jacom Computer
Services, Inc., its principal office at 560 Route 303, Orangeburg, New York
10962 (the "Lessor") and SCREAMING MEDIA.COM INC., 601 West 26 Street, New York,
N.Y. 10001 (the "Lessee").
1. LEASE.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the items
of personal property (the "Equipment") described in an Equipment Schedule or
Schedules executed and delivered by Lessor and Lessee concurrently with this
Agreement or subsequent thereto. Neither Lessor nor Lessee shall have any
obligations hereunder until the execution and delivery of such Equipment
Schedule or Schedules. Each Equipment Schedule (which shall be in the form
annexed hereto) shall constitute a separate lease and shall be binding, when
executed by the parties hereto, upon the parties, their successors, legal
representatives and permitted assigns. The terms and conditions contained herein
(including the Supplements, if any annexed hereto) and in such Equipment
Schedule or Schedules shall govern the leasing and use of the Equipment.
2. ADDITIONAL DEFINITIONS.
(a) The "Installation Date" means the date on which the Equipment is
installed at Lessee's site.
(b) The "Commencement Date" means, as to the Equipment designated on any
Equipment Schedule where the Installation Date for such Equipment falls
on the first day of the month, that date, and in any other case, the
first day of the month following the month in which such Installation
Date falls.
3. TERM OF LEASE.
(a) The term of this Agreement, as to all Equipment designated on any
Equipment Schedule, shall commence on the Installation Date for such
Equipment, and shall continue for an initial period ending that number of
months from the applicable Commencement Date (the "Initial Period");
thereafter, the term of this Agreement for all such Equipment shall be
automatically extended for successive three-month periods unless and
until terminated by either party giving to the other not less than six
months prior written notice. Any such termination shall be effective only
on the last day of the Initial Period or the last day of any such
successive
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periods. No Equipment Schedule may be terminated with respect to less
than all items of Equipment identified therein.
(b) Any notice of termination given by either party under this Agreement or
under any Supplement annexed hereto may not be revoked without the
written consent of the other party.
4. RENTALS.
As to all Equipment, the monthly rental payable by Lessee to Lessor is as set
forth in the applicable Schedule. Rental shall begin on the Installation Date
and shall be due and payable by Lessee in advance on the first day of each
month. If the Installation Date does not fall on the first day of a month, the
first payment shall be pro rata portion of the monthly rental, calculated on a
30-day basis, due and payable on the Installation Date. In addition to the
monthly rental set forth in the Schedule, Lessee shall pay to Lessor an amount
equal to all taxes paid, payable or required to be collected by Lessor, however
designated, which are levied or based on such rental, on this Agreement, or on
the Equipment or its use, lease operation, control, or value, including without
limitation, state and local privilege or excise taxes based on gross revenue,
any penalties or interest in connection therewith or taxes or amounts in lieu
thereof paid or payable by Lessor in respect of the foregoing, but excluding
taxes based on Lessor's net income. Personal property taxes on the Equipment
shall be paid by Lessee. Lessee agrees to file, on behalf of Lessor, all
required property tax returns and reports concerning the Equipment with all
appropriate governmental agencies, and, within not more than 45 days after the
due date of such filing, to send Lessor confirmation of such filing.
Interest on any past due payment shall accrue at the rate of 1 3/4% per month,
(including any fraction thereof), or if such rate shall exceed the maximum rate
allowed by law, then at such maximum rate, and shall be payable on demand.
Charges for taxes, penalties and interest shall be promptly paid by Lessee when
invoiced by Lessor.
5. INSTALLATION AND USE OF EQUIPMENT.
(a) Lessee will provide the required suitable electric current to operate the
Equipment and/or suitable place of installation for the Equipment with
all appropriate facilities as specified by the manufacturer.
(b) Subject to the terms of this Agreement, Lessee shall be entitled to
unlimited usage of the Equipment without extra charge by Lessor and may
sell time on the Equipment to third parties.
(c) Lessee will at all times keep the Equipment in its sole possession and
control. The Equipment shall not be moved from the location stated in the
Equipment Schedules without the prior written consent of Lessor.
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(d) After prior notice to Lessor, Lessee may, at its own expense, make
alterations in or add attachments to the Equipment, provided that such
alterations or attachments do not decrease the value of the Equipment or
interfere with the normal and satisfactory operation or maintenance of
the Equipment or with Lessee's ability to obtain and maintain the
maintenance contract required by this Agreement. Unless Lessor shall
otherwise agree in writing, all such alterations and attachments shall be
and become the property of Lessor or, at the option of Lessee, shall be
removed by Lessee and the Equipment restored at Lessee's expense to its
original condition, reasonable wear and tear only excepted.
6. MAINTENANCE AND REPAIRS.
(a) Lessee shall, during the continuance of this Agreement, at its expense,
keep the Equipment in good working order and condition and make all
necessary adjustments, repairs and replacements thereto. Lessee shall not
use or permit the Equipment to be used for any purpose for which, in the
opinion of manufacturer, the Equipment is not designed or reasonably
suitable.
(b) Without limiting the generality of the foregoing, Lessee shall, during
the continuance of this Agreement, at its own expense, enter into and
maintain in force a contract with the manufacturer (or other qualified
service organization approved in writing by both parties) covering at
least prime shift maintenance of each item of Equipment. Such contract as
to each item shall commence upon expiration of the warranty period, if
any, relating to such items. Lessee shall furnish Lessor with a copy of
such contract(s) upon demand.
(c) At the termination of this Agreement, Lessee shall, at its expense,
return the Equipment to Lessor (at the location designated by Lessor
within the continental United States) in the same operating order,
repair, condition and appearance as on the Installation Date, reasonable
wear and tear only excepted with all engineering changes prescribed by
the manufacturer prior thereto incorporated therein, and Lessee shall
arrange and pay for such repairs (if any) as are necessary for the
manufacturer to accept the equipment under contract maintenance at its
then standard rates.
(d) Lessee shall comply with all governmental laws, regulations and
requirements, and all insurance requirements, if any, with respect to the
use, maintenance and operation of the Equipment.
7. OWNERSHIP AND INSPECTION.
(a) The Equipment shall at all times remain the property of the Lessor.
Lessor may affix or request Lessee to affix tags, decals or plates to the
Equipment indicating Lessor's ownership, and Lessee shall not permit
their removal or concealment.
(b) It is the intention and understanding of both Lessor and Lessee that the
Equipment shall be
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and at all times remain separately identifiable personal property. Lessee
shall not permit the Equipment to be installed in, or used, stored or
maintained with, any personal property in such manner or under such
circumstances that such Equipment might be or become an accession to or
confused with such other personal property; provided, however, that the
use or maintenance in accordance with normal operating procedures of
Lessee of the Equipment with any other computer equipment owned by or
leased to Lessee shall not be a violation of the foregoing provisions of
this sentence. Lessee shall not permit the Equipment to be installed in
or used, stored, or maintained with, any real property in such a manner
or under such circumstances that any person might acquire any rights in
such Equipment paramount to the rights of Lessor by reason of such
Equipment being deemed to be real property or a fixture thereon.
(c) Lessee shall keep the Equipment free and clear of all liens and
encumbrances. Lessee shall not assign this agreement or any of its rights
hereunder or sublease the Equipment without the prior written consent of
Lessor, except that Lessee may, at its expense, upon prior written notice
to Lessor, assign this Agreement or sublease the Equipment to any parent
or subsidiary corporation, or to a corporation which shall have acquired
all or substantially all of the property of Lessee by merger,
consolidation or purchase. No permitted assignment or sublease shall
relieve Lessee of any of its obligations hereunder.
(d) Lessor or its agents shall have free access to the Equipment at all
reasonable times for the purpose of inspection and for any other purpose
contemplated in this Agreement.
(e) Lessee shall immediately notify Lessor of all details concerning any
damage or loss arising out of the improper manufacture, functioning or
operation of the Equipment.
8. WARRANTIES.
(a) Lessor shall, at the request and expense of Lessee, enforce for the
benefit of Lessee any rights which Lessor shall be entitled to enforce
against the manufacturer in respect of the Equipment.
(b) EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THERE ARE NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, WITH
RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO
PATENT INFRINGEMENT OR THE LIKE. LESSOR SHALL HAVE NO LIABILITY TO LESSEE
FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL
THERE BE ANY ABATEMENT OF RENTAL, ARISING OUT OF OR IN CONNECTION WITH
(i) THE DEFICIENCY OR INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE,
WHETHER OR NOT KNOWN OR DISCLOSED TO LESSOR, (ii) ANY DEFICIENCY OR
DEFECT IN THE EQUIPMENT, (iii) THE USE OR PERFORMANCE OF THE EQUIPMENT,
(iv) ANY
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INTERRUPTION OR LOSS OF SERVICE OR USE OF THE EQUIPMENT, OR (v) ANY LOSS
OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT
RESULTING FROM ANY OF THE FOREGOING. LESSEE WILL DEFEND, INDEMNIFY AND
HOLD LESSOR HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS AND LIABILITIES
ARISING OUT OF OR IN CONNECTION WITH THE DESIGN, MANUFACTURE, POSSESSION
OR OPERATION OF THE EQUIPMENT.
9. SECURITY INTEREST.
(a) In the event that Lessor transfers or assigns or grants a security
interest in all or any part of its rights in this Agreement, the
Equipment and/or sums payable hereunder to the third party, whether as
collateral security for any loans or advances made or to be made to
Lessor by such third party or otherwise, Lessee, upon receipt of notice
of any such transfer or assignment and instructions from Lessor, shall
pay its obligations hereunder or amounts equal thereto to the third party
(or to any other party designated by the third party), and Lessee's
obligations hereunder shall be absolute and unconditional and shall not
be subject to any abatement, reduction, recoupment, defense, offset or
counterclaim available to Lessee against Lessor for any reason
whatsoever; nor, except as otherwise expressly provided herein, shall
this Agreement terminate, or the respective obligations of Lessor or
Lessee be otherwise affected, by reason of any defect in the Equipment,
condition, design, operation or fitness for use thereof or any loss or
destruction of the Equipment or any part thereof, the prohibition of or
other restriction against Lessee's use of the Equipment, the interference
with such use by any private person or entity, or by reason of any
failure by Lessor to perform any of its obligations herein contained, or
by reason of any other indebtedness or liability, howsoever and whenever
arising, of Lessor to Lessee or to any other person, firm or corporation
or to any governmental authority or for any other cause whether similar
or dissimilar to the foregoing, any present or future law to the contrary
notwithstanding, it being the intention of the parties hereto that the
Rental payable by Lessee hereunder shall continue to be payable in all
events and at the times herein provided, except as otherwise expressly
provided for herein.
(b) On the Installation Date as to each Equipment Schedule, Lessee will
furnish to Lessor, and/or its assignee, a certificate signed by an
officer of Lessee to the effect that: Lessee has full power and authority
to enter into this Agreement; this Agreement has been duly authorized,
executed and delivered by Lessee and is its valid and binding obligation,
enforceable in accordance with its terms; no approval, consent, or
withholding of objection is required from any governmental authority with
respect to the entering into or performance of this Agreement by Lessee;
the entering into or performance of this Agreement by Lessee does not and
will not violate a judgment, order, law or regulation applicable to
Lessee or any provision of Lessee's certificate of incorporation or
by-laws or result in a breach of, or constitute a default under, or
result in the creation of any lien, charge, security interest or other
encumbrance upon any assets of Lessee or on the Equipment or this
Agreement pursuant to, any indenture, mortgage, deed of trust, bank loan,
credit agreement or other
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instrument to which Lessee is a party or by which it or its assets may be
bound; the Equipment is located at Lessee's facility as shown on the
Schedule; the Equipment has been and is then operating to the
satisfaction of Lessee; Lessee has no right, title or interest in the
Equipment or any part thereof except the rights, title and interest
therein as Lessee thereof under this Agreement; and that, on the
Installation Date, this Agreement is in full force and effect, neither
party is in default hereunder, and Lessee's obligations hereunder are
subject to no defenses, set offs or counterclaims. In addition, Lessee
agrees promptly to execute and deliver to Lessor standard form UCC-l
financing statements (to be filed for information purposes only) as well
as such other agreements, documents, instruments and certificates as
Lessor may reasonably request (including, without limitation, an opinion
of counsel and certified copies of Board resolutions, both in form and
substance satisfactory to Lessor) in order to effect Lessor's purchase of
the Equipment or financing thereof.
10. MISCELLANEOUS CHARGES.
Except as otherwise specifically provided in this Agreement, it is understood
and agreed that this is a net lease, and that, as between Lessor and Lessee,
Lessee shall be responsible for all costs and expenses of every nature
whatsoever arising out of or in connection with or related to this Agreement or
the Equipment (such as, but not limited to, transportation in and out,
transportation insurance, rigging, drayage, packing, installation and disconnect
charges).
11. RISK OF LOSS ON LESSEE.
Lessee shall obtain and maintain from the time Lessee executes a document
evidencing physical receipt of the Equipment and for the entire term of this
Agreement, at its own expense, property damage and liability insurance and
insurance against loss or damage to the Equipment including, without limitation,
loss by fire (including so-called extended coverage) theft and such other risks
of loss as are customarily insured against the type of Equipment leased
hereunder by any businesses in which Lessee is engaged, in such amounts, in such
form and with such insurers as shall be satisfactory to Lessor; provided,
however, that the amount of insurance against loss or damage to the Equipment
shall not be less than the greater of the full replacement value of the
Equipment or the installments of rent then remaining unpaid hereunder plus any
renewal or purchase options contained herein. Each insurance policy will name
Lessee as an insured and Lessor as an additional insured and loss payee thereof
as Lessor's interest may appear, and shall contain a clause requiring the
insurer to give Lessor at least l0 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 further agrees to give Lessor
prompt notice of any damage to, or loss of, the Equipment, or any part thereof.
Lessor shall be named as the Loss Payee on such policies, which shall be written
by an insurance company of recognized responsibility. Lessee agrees to insure
the interest of any third party (referred to in Paragraph 9 of this Agreement)
under a standard mortgagee
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clause. Evidence of such insurance coverage shall be furnished to Lessor upon
demand.
If any item of Equipment is rendered unusable as a result of any physical damage
to, or destruction of, the Equipment, the Lessee shall give Lessor immediate
notice thereof and this Agreement shall continue in full force and effect
without any abatement of rental. Lessee shall determine, within fifteen (15)
days after the date of occurrence of such damage or destruction, whether such
item of Equipment can be repaired. In the event Lessee determines that such item
of Equipment can be repaired, Lessee, at its expense, shall cause such item of
Equipment to be promptly repaired. In the event Lessee determines that the item
of Equipment cannot be repaired, Lessee, at its expense, shall promptly replace
such item of Equipment and convey title to such replacement to Lessor free of
all liens and encumbrances, and this Lease shall continue in full force and
effect as though such damage or destruction had not occurred. All proceeds of
insurance received by Lessor or Lessee under the policy referred to in the
preceding paragraph of this paragraph shall be applied toward the cost of any
such repair or replacement.
12. INDEMNIFICATION.
Lessee hereby agrees to assume liability for, and does hereby agree to
indemnify, protect, save and keep harmless Lessor and its respective successors,
assigns, legal representatives, agents and servants, from and against, any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses or disbursements (including legal fees and expenses) of
any kind and nature whatsoever which may be imposed on, incurred by or asserted
against Lessor or any of its respective successors, assigns, legal
representatives, agents and servants (whether or not also indemnified against by
the manufacturer(s) or any other person), in any way relating to or arising out
of this Lease or any document contemplated hereby, or the performance or
enforcement of any of the terms hereof, or in any way relating to or arising out
of the manufacture, purchase, acceptance, rejection, return lease, ownership,
possession, use, condition, operation, sale or other disposition of the
Equipment or any accident in connection therewith (including, without
limitation, latent or other defects, whether or not discoverable); provided,
however, that Lessee shall not be required to indemnify Lessor or its respective
successors, assigns, legal representatives, agents and servants, for loss or
liability in respect of any item of Equipment arising from acts or events which
occur after possession of such item of Equipment has been returned to Lessor or
loss or liability resulting from the willful misconduct or gross negligence of
the party otherwise to be indemnified hereunder. Lessee agrees that Lessor shall
not be liable to Lessee for any liability, claim, loss, damage or expense of any
kind or nature arising in strict liability or caused directly or indirectly by
the inadequacy of the Equipment for any purpose or any deficiency or defect
therein or the use or maintenance thereof or any repairs, servicing or
adjustments thereto or any delay in providing or failure to provide any thereof
or any interruption or loss of service or use thereof or any loss of business.
13. REMEDIES.
Lessee shall be in default hereunder, and there shall be a breach of this
Agreement, if:
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(a) Lessee fails to pay any installment of rent within twenty (20) days when
the same becomes due and payable.
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with
possession of the Equipment or any items thereof, except as expressly
permitted herein.
(c) Lessee shall fail to observe or perform any of the other obligations
required to be observed or performed by Lessee hereunder, and such
failure shall continue uncured for ten (10) days after written notice
thereof to Lessee by Lessor.
(d) Lessee ceases doing business as a going concern, makes an assignment for
the benefit of creditors, admits in writing its inability to pay its
debts as they become due, files a voluntary petition in bankruptcy, is
adjudicated a bankrupt or an insolvent, files a petition seeking for
itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present or
future statute, law or regulation, or files an answer admitting the
material allegations of a petition filed against it in any such
proceeding, consents to, or acquiesces in the appointment of, a trustee,
receiver, or liquidator of it or of all or any substantial part of its
assets or properties, or if it or its shareholders shall take any action
looking to its dissolution or liquidation.
(e) Within thirty (30) days after the commencement of any proceedings against
Lessee seeking reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such proceedings shall not have been dismissed, or if within
30 days after the appointment without Lessee's consent or acquiescence of
any trustee, receiver or liquidator of it or of all or any substantial
part of its assets and properties, such appointment shall not be vacated.
In the event that Lessee is in default hereunder, then, in any such
event, Lessor may at its option do any or all of the following: (i) by
notice to Lessee terminate this Agreement as to all or any Equipment
Schedules; (ii) whether or not this Agreement is terminated as to all or
any Equipment Schedules, take possession of any or all of the Equipment
on any Equipment Schedule wherever situated, and for such purpose, enter
upon any premises without liability for so doing; (iii) sell, dispose of,
hold, use or lease any Equipment on any Equipment Schedule as Lessor in
its sole discretion may decide, without any duty to account to Lessee;
(iv) by notice to Lessee, declare immediately due and payable all monies
to be paid by Lessee during the Initial Period or, if the Initial Period
has then expired, declare immediately due and payable all monies to be
paid during any term (extended as provided in Paragraph 3 (a) hereof)
then in effect, and Lessee shall thereupon be obliged to pay such monies
to Lessor immediately. Lessee shall in any event remain fully liable for
reasonable damages as provide by law and for all costs and expenses
incurred by Lessor on account of such default, including all court costs
and reasonable attorney's fees. In any legal action between Lessor and
Lessee, Lessee expressly waives its right to trial by jury. The waiver by
Lessor of any breach of any obligation of Lessee shall not be deemed a
waiver of such obligation or of any
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subsequent breach of the same or any other obligation. The subsequent
acceptance of rental payments hereunder by Lessor shall not be deemed a
waiver of any prior existing breach by Lessee regardless of Lessor's
knowledge of such prior existing breach at the time of acceptance of such
rental payments. The rights afforded Lessor under this Paragraph shall
not be deemed to be exclusive, but shall be in addition to any rights or
remedies provided by law.
14. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR.
If Lessee shall be in default hereunder, Lessor may thereafter, without thereby
waiving any obligation of Lessee or such default make the payment or perform or
comply with the agreement, the nonpayment, nonperformance or noncompliance with
which caused such default, and the amount of such payment and the amount of the
reasonable expenses of Lessor incurred in connection with such payment or the
performance of or compliance with such agreement, as the case may be, shall be
payable by Lessee upon demand.
15. GENERAL.
(a) This Agreement shall not be binding upon Lessor unless signed on its
behalf by a duly authorized officer. This Agreement shall be deemed to
have been made in the State of New York and shall be governed in all
respects by the laws of such State.
(b) This Agreement (including the attached Equipment Schedules and
Supplements) constitutes the entire Agreement between Lessee and Lessor
with respect to the Equipment, and no covenant, condition or other term
or provision may be waived or modified orally.
(c) All notices hereunder shall be in writing and shall be delivered in
person or sent by registered or certified mail, postage prepaid, to the
address of the other party as set forth herein or to such other address
as such party shall have designated by proper notice.
LESSOR: LESSEE:
JACOM COMPUTER SERVICES, INC. SCREAMING MEDIA.COM, INC.
BY: /s/ Robert Seaman BY: /s/ Roy Boling
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TITLE: President TITLE: Director of Financial Operations
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