Purchase Order Terms and Conditions

Price and Price Adjustments. The cash purchase price of the Property is FOB point of shipment from within the United States as designated by Seller, and is firm for thirty (30) days after the date of execution of this Agreement by Seller. After such period Seller may, in its discretion, adjust the purchase price of any unshipped Property to reflect cost increases and changes in market conditions. Seller will give Buyer written notice of any such price adjustments. Unless within seven (7) days after receiving such notice, Buyer gives Seller written notice of any objections to any such price adjustment. Buyer will be deemed to have waived all such objections.
Taxes. The cash purchase price of the Property is exclusive of any and all excise, sales, use or other taxes levied by any federal, state, country, municipal or other governmental authorities, all of which are for the account of Buyer. Seller is authorized to make payment of any such taxes directly to the taxing authority, and Buyer will reimburse Seller therefore. Such reimbursement will be made on demand unless otherwise expressly agreed in writing. If Buyer claims an exemption from such taxes, buyer must provide evidence of such exemption acceptable to Seller.
Freight Charges. Freight charges for shipment of the Property to Buyer, including tax on freight charges, if any, are for the account of Buyer and will be billed freight collect. Freight charges for tooling and accessories will be separately invoiced to Buyer and are payable net 30 days from the date of invoice unless otherwise agreed in writing.
Late Charges. Any payment of buyer not received by the ninth (9th) day following the date due will be subject to a late charge of five percent (5%) of the amount due as liquidated damages.
Shipping Instructions. Seller will arrange for shipment and routing of the Property in accordance with the instructions of Buyer (if any) set forth on facing page hereof; provided however, if such instructions are unclear incomplete or impractical or implementation, or if no shipping instructions are set forth on the facing page hereof, Seller may, and is hereby authorized by Buyer to arrange for shipment and routing of the Property as Seller deems appropriate. In no event will Seller be liable for any failure of the carrier to follow shipping instructions of either Buyer or Seller. Charges will be billed freight collect.
Shipment. Seller may ship the Property in partial shipments. Seller will use reasonable commercial efforts to deliver the Property by the requested delivery date, set forth on the facing page hereof, but will have no liability to Buyer for late shipments.
Title, Risk of Loss and Insurance. Title to and all risk of loss of or damage to the Property will pass from Seller to Buyer at the shipping point. Unless otherwise expressly agreed in writing, the cost of insurance on the Property while in transit will be borne by Buyer.
Rigging. All costs of unloading the Property from the carrier upon arrival at the shipping destination and moving the Property to the installation site is for the account of Buyer. Seller has no liability for the Buyer and Buyer assumes all risk of damage to or loss of the Property occurring in connection with such unloading and moving.
Installation. Buyer will, at its expense, take all necessary steps to prepare the Installation site for the installation of the Property. The cost of installation is included in the purchase price of the Property. Installation includes set up, start up and initial adjustment of operating performance. Seller has no responsibility or liability for any failure of any of the Property to meet any applicable codes or standards established by any private organization or any federal, state, county, municipal or other governmental authority; provided, however, that in the event of any such failure to meet such codes or standards, Seller or its delegatee will, at the request of Buyer, make such modifications to any of the Property as may be necessary to bring such Property into compliance with any such codes or standards, unless Seller determines that the cost to Seller of making any such modification is expected to exceed ten percent (10% ) of the purchase price of the Property or that the time required to effect such compliance (including the completion of any necessary inspections and the obtaining of any necessary permits or approval(s) is expected to exceed ninety (90) days, in which case Seller may upon refunding to Buyer payments received in respect of the canceled portion of this Agreement (less freight charges and applicable offsets), cancel this Agreement in whole or in part without further liability to Buyer; and provided further that if Buyer so requests. Seller may, but shall not be obligated to, proceed with such modifications at the sole expense of Buyer, payment for which shall be made by Buyer in advance of Seller's performance.
Warranty and Limitation of Liability. Buyer has selected the Property, including its size and design, and disclaims any reliance upon statements made by Seller. EXCEPT AS MAY OTHERWISE BE SET FORTH IN A WRITTEN WARRANTY OF THE PROPERTY EXECUTED BY SELLER, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL, GENERAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), AND IN NO EVENT SHALL SELLER'S LIABILITY EXCEED THE STATED PURCHASE PRICE OF THE PROPERTY.
Trade-Ins. Buyer represents and warrants to Seller that Buyer has good and marketable title to any trade-in, referred to in item 4.F on the facing page hereof, and that any such trade-in is in good operating condition and will be transferred to Seller free and clear or all claims, liens, charges, security interests or encumbrances of any third party. In the event that subsequent to such transfer any third party, including without limitation Amada Capital Corporation ("ACC"), asserts a lien on or other interest in such trade-in, Buyer hereby grants to Seller a license to store any such trade-in on buyer's premises until such trade-in may be conveniently moved or resold and Buyer will indemnify and hold Seller harmless from any loss or damage to such trade-in and any claims against Seller arising out of such storage or any unauthorized operation of such trade-in.
Force Majeure. In the event that Seller or any of its suppliers or delegates is unable to carry out Seller's obligations hereunder due to acts of God or of the public enemy, war, insurrection, riots, strikes, lockouts, labor disputes, fires, floods, earthquakes, natural disasters, unavoidable casualty, freight embargoes, shortages of labor or material, pandemic, quarantine ordered by any government authority, changes in governmental policy, laws or regulations (including but not limited to money exchange or transfer restrictions, impositions of quotas or limitations of shipments), or any other cause or causes beyond the control of Seller or its suppliers or delegates, whether or not specified above, Seller may extend the time of performance of its obligations to such extent as may be necessary to enable Seller and its suppliers and delegates to complete performance with exercise of reasonable diligence after the cause of causes of delay have been removed. In the event any such delay continues for a period of more than six (6) months, either party may terminate its obligations hereunder by so notifying the other party in writing.
Termination. Upon the occurrence of an Event of Default (as defined in Section B.6), Seller will, in addition to the other rights set forth in this Agreement, have the right to immediately terminate this Agreement as to any un-shipped Property with or without notice of termination.
Indemnification. Buyer will defend, indemnify and hold Seller harmless from and against any and all claims, liabilities, damages, costs and expenses (including reasonable attorney's fees) arising out of or in connection with any use of the Property by Buyer or any breach of this Agreement by Buyer.
Condition Precedent to Seller's Obligations. On all installment sales the written approval of ACC (or such other financing company as may be involved) to the terms of this Agreement is a condition precedent to the performance of Seller's obligations under this Agreement, and any of the Property delivered to Buyer prior to the obtaining of such written approval will be deemed to be held by Buyer as a bailee for its own benefits under a bailment revocable at will by Seller.
Financing. Buyer has sole responsibility for obtaining any necessary financing for the purchase of the Property. Any efforts of Seller to arrange any such financing are solely an accommodation to Buyer and do not obligate Seller in any way.

Grant of Security Interest. To secure payment of the purchase price of the Property, Buyer hereby grants to Seller security interest in the Property, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted hereby constitutes a purchase money security interest under the California Uniform Commercial Codes. In addition, the security interest granted hereby shall secure the full and faithful performance by Buyer and all of Buyer's obligations under this Agreement. Notwithstanding the foregoing, the provisions of this Part B do not apply with respect to COD sales of Property for which payment is actually received by Seller from Buyer prior to or at the time of delivery of the Property to Buyer's facility.
Information Regarding Buyer. Buyer represents and warrants to Seller that all of the information regarding Buyer set forth on the facing page of this Agreement is true and correct.
Certain Covenants, Warranties, and Representations of Buyer. For so long as any amounts are owed by Buyer to Seller under this Agreement, Buyer (a) shall be and use the Property in compliance with all applicable laws, regulations and ordinances; (b) shall maintain the Property in good condition and repair, reasonable wear and tear excepted; (c) shall pay when due all taxes, charges and impositions on the Property or the ownership, use, disposition or sale of same; (d) shall keep the Property free of all liens, charges, claims, security interests and encumbrances of any third party; (e) shall permit Seller to inspect the Property, and inspect and make extracts of all of Buyer's books and records relating thereto, during normal business hours; (f) shall promptly notify Seller of the occurrence of any events which materially and adversely affects the value of the Property as collateral; (g) shall promptly notify Seller in writing of any change of Buyer's legal name or any trade name or style, the organizational form in which Buyer conducts in business, state of organization, and the financial statements of Buyer; (h) shall not, without prior written consent of Seller, sell, assign, exchange, lease, lend, license the use of pledge, encumber, grant a security interest in or dispose of the Property of Buyer's rights therein, or use or operate the Property in a manner other than as intended by the manufacturer, or in violation of an insurance policy covering the Property, or remove or obliterate any markings affixed by Seller to the Property or give notice of Seller's security interest therein or any identifying insignia, serial number, or lettering on the Property, or permit the Property to become so affixed to realty as to become a fixture (i) Buyer will promptly deliver to Seller any such additional instruments, information or assurances as Seller or Seller's Assignee may reasonably request concerning Buyer or its ownership. Buyer represents and warrants to Seller that (A) the execution and performance of this Agreement have been and will be duly authorized and constitute an enforceable obligation against Buyer in accordance with its terms (B) this Agreement constitutes a legal, valid and binding agreement of the Buyer enforceable in accordance its terms; (C) Buyer is duly organized and in good standing under the laws of its jurisdiction of organization and is and will continue to be duly qualified to do business and in good standing in any jurisdiction where any of the Property will be located; and (D) to the best of Buyer's knowledge, there are no suits, actions or proceedings pending before any court, agency, or other tribunal, which, if determined adversely to Buyer, would materially affect Buyer's ability to perform its obligations hereunder.
Insurance. Buyer shall keep the Property insured against all risk of loss or damage from every cause whatsoever for which insurance is commercially available, in a coverage amount not less than the total cash purchase price of the Property, under policies providing that losses shall be payable to Seller and requiring the insurer to give Seller not less than thirty (30) days prior written notice of the effective date of any alterations or cancellations of any such policy. All such insurance policies shall otherwise be in form and substance and with companies satisfactory to Seller. Buyer shall deliver such insurance policies to Seller, or shall furnish to Seller such other evidence of insurance as Seller may from time to time request. The proceeds of such insurance shall be applied, at the option of Seller, to (a) replacement, restoration or repair of any Property which is lost, stolen, damaged or destroyed, or (b) payment of the obligations of Buyer hereunder. Buyer hereby irrevocably appoints Seller as Buyer's attorney-in-fact, which appointment is coupled with an interest, to make claims for, receive payment of, and execute and endorse all documents, checks, or drafts received in payment of any loss or damage under any such policy of insurance. If Buyer fails to procure or maintain such insurance, Seller shall have the right, but shall not be obligated, to obtain and maintain such insurance, and Buyer shall reimburse Seller for the cost thereof.
Covenants Regarding Location of Property. Buyer will not remove any of the Property from the location at which installed or otherwise change the location of any of the Property without the prior written consent of Seller in each instance. EACH SIGNATORY HERETO WILL BE PERSONALLY LIABLE TO SELLER FOR ANY ALL LOSS OR DAMAGE SUSTAINED BY SELLER AS A RESULT OF ANY CHANGE IN LOCATION OF THE PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ANY DAMAGE ARISING FROM LOSS O F PERFECTION OF SELLER'S OR ACC'S SECURITY INTEREST IN THE PROPERTY.
Default. The occurrence of any of the following shall constitute an Event of Default: (a) any failure by Buyer in the payment, when due or payable of the purchase price of the Property or any installment thereof or interest thereon; (b) any breach of Buyer of any representation, warranty, covenant or agreement (other than as to payment) set forth in this Agreement or any other agreement between Buyer and Seller or arising by operation of law or otherwise, which breach is not cured by the ninth (9th) day following notice thereof by Seller to Buyer; (c) the issuance or entry of any judgment, injunction or attachment against Buyer, the Property or any other property of Buyer; (d) the giving of any notice of bulk sale or intended bulk sale by Buyer; (e) the appointment of a receiver or committee of creditors or liquidating agents, the offering of a com position or extension to creditors, the making of an assignment for the benefit of creditors or the commencement of any proceeding, suit or action for reorganization, dissolution or liquidation under any bankruptcy or other laws relating to the relief of debtors, to the extent that any of the foregoing is by, for, on behalf of or with respect to Buyer; (f) the insolvency of Buyer, the suspension, termination, discharge or unenforceability of any guaranty executed in favor of Seller with respect to any of the obligations secured hereby; or (g) any change in the condition or affairs (financial or otherwise) of Buyer, including but not limited to (i) Buyer, or any of its owners, principals, or members become listed as SDN's by the Office of Foreign Assets Control, or any (ii) enters into any merger or acquisition with another entity, (iii) changes its state or organization, or (iv) or any other circumstances or facts regarding Buyer which in the good faith determination of Seller impairs Seller's security or increase its risk.
Remedies on Default. Upon the occurrence of an Event of Default, or at any time thereafter if such Event of Default shall be continuing, in addition to any other rights or remedies Seller may have, Seller shall have any or all of the following rights and remedies: (a) Seller shall have all of the rights and remedies of a secured party under the Uniform Commercial Code as in effect in any jurisdiction in which enforcement hereof is sought; (b) Seller may, at its option, accelerate and declare all of the indebtedness secured hereby to be immediately due and payable; (c) Seller shall have the right to take immediate and exclusive possession of any and all of the Property, wherever located, without interference from Buyer and for this purpose Seller may, with or without judicial process and with or without prior notice, enter peacefully upon the premises where such Property may be situated and remove the Property from such location for disposition or proceed to liquidate or otherwise dispose of the Property from such location; (d) Seller may require Buyer, at Buyer's expense, to assemble the Property and make it available to Seller at any mutually convenient location reasonably selected by Seller; (e) Seller may, in its sole discretion, any time and from time to time, but only after Seller has given Buyer at least ten (10) days prior written notice of its intention to dispose of the Property, which is hereby agreed to be reasonable notice, lease any of the Property on such terms and in such manner as Seller may consider appropriate, or sell, resell, transfer, assign, dispose of and deliver any or all of the Property, in one or more parcels, at the same or different times, and all right, title and interest therein, at public or private sale, for case, upon credit or for future delivery, and at such price or prices as Seller may determine; (f) in connection with any disposition for and purchase any or all of the Property, and by such purchase acquire all right, title and interest therein; (g) Seller may, for itself and for and on behalf of Buyer, make and deliver to any purchaser of any of the Property a good and sufficient bill of sale or other evidence of transfer of all right, title and interest in and to such Property to such purchaser; and (h) Seller may in its own name or in the name off and on behalf of Buyer, take any and all actions required to cure any such Event of Default, and all sums expended by Seller in effecting such cure shall secured hereby.
Application of Proceeds. The net proceeds realized upon any liquidation or disposition of the Property, after deduction for the expense of retaking, holding, preparing for sale or lease, selling, leasing and the like, and the reasonable attorney's fees and legal expenses and costs incurred by Seller in enforcing or exercising any of its rights or remedies under this Agreement, shall be applied in satisfaction of the obligations of Buyer secured under this Agreement in such order as may be deemed appropriate by Seller. Any surplus of such proceeds shall be paid to the person or persons legally entitled thereto, and the Buyer shall be liable to Seller for and shall immediately pay to Seller the amount of any deficiency.
Buyer's Waiver. Except as to the notice of intention to dispose of Property provided for herein, Seller may exercise any of its rights and remedies without demand, advertisement or notice other than as may be required by law. To the fullest extent permitted by law, Buyer waivers demand, notice, protest, notice of acceptance of this Agreement or other action taken in reliance heron and all other demands and notices of any description.
Financing Statements. Fixture filings and further assurances. Buyer hereby authorizes Seller to execute and file financing statements authenticated records, and fixture filings at any time with respect to any of the Property, in each case without Buyer's signature to the extent permitted by law. At Seller's request, Buyer shall execute one or more financing statements, fixture filings, continuation statements or other filings pursuant to the Uniform Commercial Code in form satisfactory to Seller. Buyer shall take any and all steps required by Seller to maintain perfection of the security interest granted hereunder, or to fully assure to Seller its rights under this Agreement.

The order of application of Buyer payments is at the discretion of Seller. Seller may at its discretion apply and all of a Buyer's payment to any outstanding balances owing by Seller including, but not limited to Buyer late charges.
Notices. All notices, demands or consents required or permitted to be given under this Agreement shall be in writing and shall be deemed effective upon delivery if delivered personally or five (5) days after mailing if sent by first class United States mail, postage prepaid, addressed to the appropriate address set forth herein or to such other address as shall be given by either party to the other in writing.
Waiver, Amendment or Modification. No waiver, amendment or modification of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party to be bound. No failure by Seller to exercise, and no delay by Seller in exercising, any right, power or any right or remedy by Seller on any one occasion shall not be construed as a bar to or waiver of any right or remedy on any future occasion. All rights and remedies of Seller are separate and cumulative and the exercise of any right or remedy shall not limit or prejudice the exercise of any other right or remedy. Headings to any sections are for convenience only.
Court Jurisdiction. Any controversy, claim, action or dispute arising out of or relating to this agreement will be subject to the laws of the State of California and the parties hereto agree to these matters being adjudicated in the jurisdiction of California. JURY WAIVER. BUYER AND SELLER HEREBY KNOWING AND VOLUNTARILY WAIVE AND RELINQUISH: ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATED TO THIS AGREEMENT.
Attorneys' Fees. In the event any arbitration or judicial action or proceeding is initiated with respect to any matters relating to this Agreement or in the event either party seeks relief form the automatic stay of 11 U.S.C. Section 362 (or any successor statue thereto), then the party in whose favor any arbitration award shall be given or any relief shall be granted or judgment shall be entered shall be entitled to recover from the other party all costs and expenses (including attorneys' fees) incurred in such action or proceeding any appeal there from.
Severability. In the event any provision or portion of any provision of this Agreement shall be held by a court of competent jurisdiction to be unenforceable or invalid, the remaining provisions or portions thereof shall remain in full force and effect.
Entire Agreement. Notwithstanding any purchase order submitted by Buyer whether referenced on the facing page hereof or attached hereto, this Agreement constitutes the entire agreement between Buyer and Seller pertaining to the subject matter hereof. Any and all written or oral agreements or understandings heretofore existing between the parties pertaining to the subject matter hereof are expressly superseded and canceled by this Agreement. This Agreement may be executed in counterparts, each counterpart constituting an original but all together one and the same instrument and contract. Only the counterpart marked "Original" will constitute "chattel paper" under the UCC and no security interest in this Agreement may be created through the transfer of possession of any counterpart other than the counterpart marked "Original".
Time is of the Essence. Except as to the provisions of this Agreement relating to shipping dates and shipping delays, time is of the essence with respect to each of the terms, conditions, provisions and covenants of this Agreement.
Binding Effect. Subject to Part C of this Agreement, this Agreement shall be binding upon and shall inure to the benefit of the parties and their legal representatives, successors and assigns.

EQUIPMENT PURCHASE AND SECURITY AGREEMENT - TERMS AND CONDITIONS | Amada America Inc.