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Exhibit 10.36
[BANKBOSTON LOGO]
MASTER AGREEMENT
This MASTER AGREEMENT, dated as of the 21st day of January, 1999,
which together with all riders and amendments now or hereafter executed and made
a part hereof (the "Master Agreement"), is made at Boston, Massachusetts by and
between BANCBOSTON LEASING INC. ("Lessor"), a Massachusetts corporation with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
and Xxxxxx Xxxxxxx Incorporated ("Lessee"), a Massachusetts corporation with its
principal place of business at Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000.
IN CONSIDERATION OF the mutual promises and covenants contained herein,
Lessor and Lessee hereby agree as follows:
1. Leasing Property. At the request of Lessee and subject to the
terms and conditions of this Master Agreement, Lessor shall lease to Lessee and
Lessee shall lease from Lessor such personal property ("Equipment") as may be
mutually agreed upon by Lessor and Lessee. The Equipment shall be selected by or
ordered at the request of Lessee, identified in one or more lease schedules
substantially in the form as supplied by Lessor (each a "Lease Schedule") and
accepted by Lessee in one or more certificates of acceptance in the form as
supplied by Lessor (each a "Certificate of Acceptance"). Each Lease Schedule
executed by Lessor and Lessee expressly incorporates by reference the terms and
conditions of this Master Agreement and any riders, schedules or amendments, now
or hereafter executed, applicable to such Lease Schedule and shall constitute a
separate, distinct and independent lease and contractual relationship between
Lessor and Lessee.
2. Certain Definitions.
2.1 The "Acquisition Cost" shall mean the total acquisition cost
of the Equipment paid by Lessor as set forth in the applicable Lease Schedule.
2.2 The "Commencement Date" shall mean the date on which the
Equipment identified in the applicable Lease Schedule is accepted and placed in
service by Lessee as evidenced by a Certificate of Acceptance.
2.3 The "Daily Rent" shall mean the per diem amount set forth in
the applicable Lease Schedule.
2.4 The "Initial Term Start Date" shall mean either (i) the first
day of the month immediately following the month in which the Commencement Date
occurs, or (ii) if the Commencement Date occurs on the first day of the month,
the Commencement Date. For all rental periods other than monthly, the Initial
Term Start Date shall be as set forth on the applicable Lease Schedule.
2.5 The "Payment Date" shall mean the date set forth in the
applicable Lease Schedule.
2.6 The "Periodic Rent" shall mean the amount set forth in the
applicable Lease Schedule.
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2.7 The words "herein", "hereof", and "hereunder" shall refer to
this Master Agreement and any Lease Schedule as a whole and not to any
particular section. Other capitalized terms shall have the meanings specified
elsewhere in this Master Agreement or the Lease Schedule.
3. Initial Term of Lease; Payment of Rent.
3.1 This Master Agreement shall be effective from and after the
date of execution hereof. The term of lease for the Equipment shall begin on the
Commencement Date set forth in the applicable Certificate of Acceptance and
shall continue during and until the expiration of the Initial Term as defined
and set forth in the applicable Lease Schedule, measured from the Initial Term
Start Date. The Initial Term may not be canceled or terminated except as set
forth in Sections 10.2 or 17.1 below.
3.2 At the expiration of the Initial Term, Lessor and Lessee may
extend the lease of the Equipment for any period as they may agree upon in
writing ("Extended Term") at the then fair market rental value of the Equipment,
as determined in good faith by Lessor.
3.3 Aggregate Daily Rent shall be due and payable by Lessee on the
Initial Term Start Date in an amount equal to the Daily Rent multiplied by the
actual number of days elapsed from, and including, the Commencement Date to, but
excluding, the Initial Term Start Date. The Periodic Rent shall be due and
payable, without prior notice or demand, on the Payment Date and thereafter on
the first day of each month or other applicable period of the Initial Term or
any Extended Term. All Daily Rents and Periodic Rents shall be paid to Lessor at
its principal place of business in Boston, Massachusetts or other location to
which the Lessor may direct in writing.
4. Acceptance of Equipment; Exclusion of Warranties.
4.1 Lessee shall signify its acceptance of the Equipment
identified in the applicable Lease Schedule by promptly executing and delivering
to Lessor a Certificate of Acceptance. Lessee acknowledges that its execution
and delivery of the Certificate of Acceptance shall conclusively establish, as
between Lessor and Lessee, that the Equipment has been inspected by Lessee, is
in good repair and working order, is of the design, manufacture and capacity
selected by Lessee, and is accepted by Lessee under the applicable Lease
Schedule.
4.2 In the event the Equipment is ordered by Lessor from a
manufacturer or supplier at the request of Lessee, Lessor shall not be required
to pay the Acquisition Cost for such Equipment unless and until the applicable
executed Certificate of Acceptance has been received by Lessor. All expenses
incurred in connection with Lessor's purchase of the Equipment (including
shipment, delivery and installation) shall be the responsibility of Lessee and
shall be either capitalized in the Acquisition Cost or paid upon demand. If
Lessee shall refuse to accept delivery of any item of the Equipment, Lessee will
be assigned all rights and shall assume all obligations as purchaser of such
item of the Equipment. Lessee hereby agrees to indemnify, defend and hold Lessor
harmless from any liability to any manufacturer or supplier of the Equipment (in
each case a "Supplier") or any other manufacturer or supplier arising from the
failure of Lessee to lease any Equipment which is ordered by Lessor at the
request of Lessee or for which Lessor has assumed an obligation to purchase at
the request of Lessee.
4.3 Lessor leases the Equipment to Lessee and Lessee leases the
Equipment from Lessor "AS IS" and "WITH ALL FAULTS". Lessee hereby acknowledges
that (i) Lessor is not a manufacturer, supplier or dealer of such Equipment nor
an agent thereof, and (ii) LESSOR HAS NOT MADE, DOES NOT MAKE, AND HEREBY
DISCLAIMS ANY REPRESENTATION OR WARRANTY
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WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT INCLUDING, BUT NOT
LIMITED TO, ITS DESIGN, CAPACITY, CONDITION, MERCHANTABILITY, OR FITNESS FOR USE
OR FOR ANY PARTICULAR PURPOSE. Lessee further acknowledges that Lessor is not
responsible for any repairs, maintenance, service, latent or other defects in
the Equipment or in the operation thereof, or for compliance of any Equipment
with requirements of any laws, ordinances, governmental rules or regulations
including, but not limited to, laws with respect to environmental matters,
patent, trademark, copyright or trade secret infringement, or for any direct,
indirect, incidental, punitive, consequential or other damages arising out of
the use of or inability to use the Equipment. In addition, Lessor makes no
representation and disclaims any warranty that the Equipment is "Year 2000
Compliant," that is, that any computer applications, imbedded microchips or
other systems, if any, which may be contained or included in the Equipment will
be able to recognize, and perform properly, date sensitive functions involving
certain dates prior to, and any date after, December 31, 1999.
4.4 Provided no Event of Default, as defined in Section 16 below,
has occurred and is continuing, Lessor agrees to cooperate with Lessee, at the
sole cost and expense of Lessee, in making any claim against a manufacturer or
supplier of the Equipment arising from a defect in such Equipment or breach of
warranty, express or implied, and/or arising out of the purchase or supply
agreement between Lessor and Supplier. At the request of Lessee, Lessor shall
assign to Lessee, for the Initial Term and any Extended Term, all warranties on
the Equipment available from Supplier to the full extent permitted by the terms
of such warranties and by applicable law.
5. Ownership; Inspection; Maintenance and Use.
5.1 The Equipment shall at all times be the sole and exclusive
property of Lessor. Any Equipment subject to titling and registration laws shall
be titled and registered by Lessee on behalf of and in the name of Lessor, or in
such name as Lessor may direct, at the sole cost and expense of Lessee. Lessee
shall cooperate with and provide Lessor with any information or documents
necessary for titling and registration of the Equipment. Upon the request of
Lessor, Lessee shall execute any documents or instruments which may be necessary
or appropriate to confirm, to record or to give notice of the ownership of the
Equipment by Lessor including, but not limited to, financing statements under
the Uniform Commercial Code. Lessee, at the request of Lessor, shall affix to
the Equipment, in a conspicuous place, any label, plaque or other insignia
supplied by Lessor designating the ownership of the Equipment by Lessor.
5.2 The Equipment shall be located at the address specified in the
applicable Lease Schedule, which must be within the continental United States,
or such other location as Lessor may agree in writing, and may be removed
therefrom to another location within the continental United States only with
prior written notice to Lessor. Lessor, its agents or employees shall have the
right to enter the premises of Lessee, upon reasonable notice and during normal
business hours, for the purpose of inspecting the Equipment and all maintenance
records kept by Lessee with respect to the Equipment.
5.3 Lessee shall pay all costs, expenses, fees and charges
whatsoever incurred in connection with the use and operation of the Equipment.
Lessee shall, at all times and at its own expense, keep the Equipment in good
repair and working order, reasonable wear and tear excepted. Lessee shall also
use the Equipment solely in the conduct of its business, and shall not
permanently discontinue use of the Equipment. Any maintenance contract required
by a manufacturer or supplier for the care and upkeep of the Equipment shall be
entered into by Lessee at its sole cost and expense. Lessee shall permit the use
and operation of the Equipment only by personnel authorized by Lessee and shall
comply with all laws,
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ordinances or governmental rules and regulations and applicable insurance
policies relating to the use and operation of the Equipment.
6. Alterations and Modifications. Lessee may make, or cause to be
made on its behalf, any improvement, modification or addition to the Equipment
with the prior written consent of Lessor, which will not be unreasonably
withheld; provided, however, that such improvement, modification or addition is
readily removable without causing damage to, or impairment of, the functional
effectiveness, remaining economic useful life or fair market value of the
Equipment. Any such improvement, modification or addition which is so readily
removable shall remain the property of Lessee and shall be removed by Lessee
prior to return of the Equipment. To the extent that such improvement,
modification or addition is not so removable, it shall be permitted only with
Lessor's prior written consent, which will be granted at Lessor's sole
discretion, and only if its attachment will not cause damage to, or impairment
of, the functional effectiveness, remaining economic useful life or fair market
value of the Equipment; and such improvement, modification or addition shall
immediately become the property of Lessor and thereupon shall be considered
Equipment for all purposes hereunder. Any modification or addition to the
Equipment which is required by law shall be made by Lessee, at the sole cost and
expense of Lessee, and shall immediately become the property of Lessor and
thereupon shall be considered Equipment for all purposes hereunder. Any
improvement, modification or addition made to the Equipment shall be free of all
liens, claims and encumbrances of third parties.
7. Quiet Enjoyment; No Defense, Setoff or Counterclaims.
7.1 Provided no Event of Default, as defined in Section 16 below,
has occurred and is continuing, Lessee shall have the quiet enjoyment and use of
the Equipment in the ordinary course of its business during the Initial Term or
any Extended Term without interruption by Lessor or any person or entity
claiming through or under Lessor.
7.2 Lessee acknowledges and agrees that ANY DAMAGE TO OR LOSS,
DESTRUCTION, OR UNFITNESS OF, OR DEFECT IN THE EQUIPMENT, OR THE INABILITY OF
LESSEE TO USE THE EQUIPMENT FOR ANY REASON WHATSOEVER, OR ANY OTHER CIRCUMSTANCE
WHATSOEVER SHALL NOT (i) GIVE RISE TO ANY DEFENSE, COUNTERCLAIM, OR RIGHT OF
SETOFF AGAINST LESSOR, OR (ii) PERMIT ANY ABATEMENT OR RECOUPMENT OF, OR
REDUCTION IN DAILY OR PERIODIC RENT, OR (iii) ALLOW LESSEE TO CANCEL, TERMINATE,
MODIFY OR REPUDIATE THE APPLICABLE LEASE SCHEDULE, OR (iv) RELIEVE LESSEE OF, OR
EXCUSE LESSEE FROM, THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE APPLICABLE
LEASE SCHEDULE INCLUDING, BUT NOT LIMITED TO, ITS OBLIGATION TO PAY THE FULL
AMOUNT OF DAILY RENT AND PERIODIC RENT, WHICH OBLIGATIONS ARE ABSOLUTE AND
UNCONDITIONAL. Any claim that Lessee may have which arises from a defect in or
deficiency of the Equipment shall be brought solely against Supplier or any
other manufacturer or supplier of the Equipment and Lessee shall,
notwithstanding any such claim, continue to pay Lessor all amounts due and to
become due under the applicable Lease Schedule.
8. Adverse Claims and Interests.
8.1 Except for any liens, claims, mortgages, pledges, encumbrances
or security interests created by or for the benefit of Lessor, Lessee shall keep
the Equipment at all times, free and clear from all liens, claims, mortgages,
pledges, encumbrances and security interests, other than liens for fees, taxes,
levies, duties or other governmental charges of any kind, liens of mechanics,
materialmen, laborers,
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employees or suppliers and similar liens arising by operation of law incurred by
Lessee in the ordinary course of business for sums that are not yet delinquent
or are being contested in good faith by appropriate proceedings which suspend
the collection thereof provided, however, that such proceedings do not involve
any risk of the sale, forfeiture or loss of the Equipment or any interest
therein, or of the imposition of criminal liability on the part of Lessor or
Lessee, which shall be determined by Lessor in its sole discretion. Lessee shall
keep the Equipment at all times free and clear from all levies, seizures and
attachments, and shall defend Lessor's title in and to the Equipment. Without
limitation of the covenants and obligations of Lessee set forth in the preceding
sentence, Lessee shall immediately notify Lessor in writing of the imposition of
any prohibited lien, claim, levy or attachment on or seizure of the Equipment,
at which time Lessee shall provide Lessor with all relevant information in
connection therewith.
8.2 Lessee agrees that the Equipment shall be and at all times
shall remain personal property. Accordingly, Lessee shall take such steps as may
be necessary to prevent any person, including without limitation Lessee's
landlord and such landlord's mortgagee, from acquiring, having or retaining any
rights in or to the Equipment by reason of its being affixed or attached to, or
otherwise located on, real property including, without limitation, obtaining and
delivering to Lessor waivers of any lien, encumbrance or interest which such
person might have or hereafter obtain or claim with respect to the Equipment
which waivers shall be recorded at the sole cost and expense of Lessee.
9. Indemnities; Payment of Taxes.
9.1 Lessee hereby agrees to indemnify, defend and hold harmless
(on an after-tax basis) Lessor, its agents, employees, successors and assigns
from and against any and all claims, actions, suits, proceedings, costs,
expenses, damages and liabilities whatsoever arising out of or in connection
with the manufacture, ordering, selection, specifications, availability,
delivery, titling, registration, rejection, installation, possession,
maintenance, ownership, use, leasing, operation or return of the Equipment
including, but not limited to, any claim or demand based upon (i) any STRICT OR
ABSOLUTE LIABILITY IN TORT, (ii) any violation of any applicable environmental
or other laws or regulations, or (iii) any infringement or alleged infringement
of any patent, trademark, trade secret, license, copyright or otherwise. All
costs and expenses incurred by Lessor in connection with any of the foregoing
including, but not limited to, reasonable legal fees shall be paid by Lessee on
demand. The indemnification provisions of this Section 9.1 shall not, however,
apply to any claim, cost or expense arising from, or in connection with, any
gross negligence or willful misconduct on the part of Lessor, its agents,
employees, its successors and assigns.
9.2 Lessee hereby agrees to indemnify, defend and hold Lessor
harmless, on an after-tax basis, against all federal, state and local taxes,
assessments, licenses, withholdings, levies, imposts, duties, excise taxes,
registration fees and other governmental fees and charges whatsoever, which are
imposed, assessed or levied on or with respect to the Equipment or its use or
related in any way to a Lease Schedule ("Tax Assessments") except for taxes on
or measured by the net income of Lessor determined substantially in the same
manner as under the Internal Revenue Code of 1986, as amended. Lessee shall file
all returns, reports or other such documents required in connection with the Tax
Assessments and shall provide Lessor with copies thereof. Provided no Event of
Default, as defined in Section 16 below, has occurred and is continuing, Lessee
is also authorized, for and on behalf of Lessor, to file abatements or otherwise
seek a refund or reduction of any Tax Assessments provided that no such filing
shall create any risk of loss of or encumbrance on the Equipment. If, under
local law or custom, Lessee is not authorized to make the filings required by a
taxing authority, Lessee shall notify Lessor in writing, and Lessor shall
thereupon file such returns, reports or documents at Lessee's sole cost and
expense.
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Without limiting any of the foregoing, Lessee shall indemnify, defend and hold
Lessor harmless from all penalties, fines, interest payments, claims and
expenses, including but not limited to reasonable legal fees, arising from any
failure of Lessee to comply with the requirements of this Section 9.2.
9.3 The obligations and indemnities of Lessee under this Section 9
for events occurring or arising or taxes accruing during the Initial Term or any
Extended Term shall continue and survive in full force and effect,
notwithstanding the expiration or other termination of this Master Agreement or
any Lease Schedule.
10. Risk of Loss; Loss of Equipment.
10.1 Lessee hereby assumes and shall bear the entire risk of loss
for theft, disappearance, damage, seizure, condemnation, casualty, destruction
or other injury whatsoever to the Equipment from any and every cause whatsoever.
Such risk of loss shall be deemed to have been assumed by Lessee from and after
such risk passes from the Supplier by agreement or pursuant to applicable law.
For purposes of this Section 10 only, Equipment shall include any item or unit
thereof.
10.2 In the event of loss or damage to any item of Equipment which
can be repaired by Lessee, Lessee shall, at its cost and expense, promptly
repair and restore such item of Equipment to the condition required by this
Master Agreement. In the event of any loss, seizure, condemnation, casualty or
destruction of the Equipment or damage to the Equipment which cannot be repaired
by Lessee, Lessee shall immediately notify Lessor in writing. Within thirty (30)
days of such notice, during which time Lessee shall continue to pay Periodic
Rent, Lessee shall, at the option of Lessor, either (i) replace the Equipment
with equipment of the same type and manufacture, and having a value, utility and
remaining economic useful life not less than the Equipment replaced, and in good
repair, condition and working order, and transfer title to such equipment to
Lessor free and clear of all liens, claims and encumbrances, whereupon such
equipment shall be deemed Equipment for all purposes of the Lease Schedule, or
(ii) pay to Lessor an amount equal to the present value of both the aggregate of
the remaining unpaid Periodic Rents and the anticipated residual value of the
Equipment plus any other costs actually incurred by Lessor. Lessor and Lessee
agree that the residual value of the Equipment at the expiration of the Initial
Term is reasonably anticipated to be not less than twenty percent (20%) of the
Acquisition Cost of the Equipment. The present value shall be determined by
discounting the aggregate of the remaining unpaid Periodic Rents and the
anticipated residual value of the Equipment to the date of payment by Lessee at
the rate of five percent (5%) per annum. When and as requested by Lessor, Lessee
shall also pay to Lessor amounts due pursuant to Section 18 below, if any,
arising as a result of the loss, seizure, replacement, condemnation or
destruction of the Equipment. Provided no Event of Default, as defined in
Section 16 below, has occurred and is continuing, any insurance or condemnation
proceeds received by Lessor shall be credited to the obligations of Lessee under
this Section 10.2, and the remainder of such proceeds, if any, shall be paid to
Lessee by Lessor in full compensation for the loss of the leasehold interest in
the Equipment by Lessee.
10.3 Upon any replacement of or payment for the Equipment as
provided in Section 10.2 above, the Lease Schedule shall terminate only with
respect to the Equipment so replaced or paid for, and Lessor shall transfer to
Lessee title only to such Equipment "AS IS, WHERE IS", "WITH ALL FAULTS", and
WITH NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY
PARTICULAR PURPOSE. Lessee shall pay any sales or use taxes due on such
transfer.
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11. Insurance.
11.1 Lessee shall keep the Equipment insured against all risks of
loss or damage from every cause whatsoever occurring during the Initial Term, or
any Extended Term for an amount not less than the higher of the full replacement
value of the Equipment or the aggregate of unpaid Daily Rent and Periodic Rent
for the balance of the Initial Term or the Extended Term. Lessee shall also
carry public liability insurance, both bodily injury and property damage,
covering the Equipment, and Lessee shall be liable for any deductible portions
of all required insurance.
11.2 All insurance required under this Section 11 shall be primary
and shall name Lessor as additional insured and loss payee. Such insurance shall
also be with such insurers and shall be in such form reasonably satisfactory to
Lessor and in such amounts as are satisfactory to Lessor. All applicable
policies shall provide that no act, omission or breach of warranty by Lessee
shall give rise to any defense against payment of the insurance proceeds to
Lessor. Lessee shall pay the premiums for such insurance and, at the request of
Lessor, deliver to Lessor duplicates of such policies or other evidence
satisfactory to Lessor of such insurance coverage. In any event, Lessee shall
provide Lessor with certificates of insurance or such other evidence of
coverage, to include endorsements upon the policies issued by the insurers which
evidence the existence of insurance coverage required by this Section 11, and by
which the insurers agree to give Lessor written notice at least thirty (30) days
prior to the effective date of any expiration, modification, reduction,
termination, refusal to renew or cancellation of any such policies. Lessee shall
cause to be provided to Lessor, not less than fifteen (15) days prior to the
scheduled expiration or lapse of such insurance coverage, evidence satisfactory
to Lessor of renewal or replacement coverage.
11.3 Provided no Event of Default, as defined in Section 16 below,
has occurred and is continuing, the proceeds of insurance required under this
Section 11 and payable as a result of loss or damage to the Equipment shall be
applied as set forth in Section 10.2 above. Upon the occurrence of an Event of
Default as defined in Section 16 below, Lessee hereby irrevocably appoints
Lessor as its attorney-in-fact, which power shall be deemed coupled with an
interest, to make claim for, receive payment of, execute and endorse all
documents, checks or drafts received in payment for loss or damage under any
insurance policies required by this Section 11.
11.4 Notwithstanding anything herein, Lessor shall not be under any
duty to examine any evidence of insurance furnished hereunder, or to ascertain
the existence of any policy or coverage, or to advise Lessee of any failure to
comply with the provisions of this Section 11.
12. Surrender to Lessor.
12.1 Lessee shall advise Lessor in writing at least ninety (90)
days prior to the expiration of the Initial Term or any Extended Term of its
intent to surrender the Equipment. Upon receipt of such notice, Lessor shall be
authorized to demonstrate the Equipment in operation to potential buyers or
lessees during the normal business hours of Lessee, provided that Lessor has
given reasonable notice to Lessee prior to any such visit.
12.2 If Lessee elects to surrender the Equipment or, alternatively,
upon any other termination of the Lease Schedule, Lessee shall immediately
surrender the Equipment to Lessor by assembling and delivering the Equipment to
a place or places, as Lessor may designate, within the continental United
States. The shipment of the Equipment shall be conducted in accordance with the
manufacturer's
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recommendations or, in the absence of such recommendations, in accordance with
generally accepted industry practices for equipment similar to the Equipment.
All costs of deinstalling, preparation for shipment, and shipping shall be borne
by Lessee.
12.3 Upon surrender, the Equipment shall be in good repair, and
working order, in compliance with the manufacturer's recommended tolerances for
operation and performance in all material respects, in the same condition and
appearance as when received (reasonable wear and tear excepted), and with all
engineering and safety changes prescribed by the manufacturer or maintenance
organization incorporated therein. The Equipment shall be complete, with all
parts and pieces and all operating instructions, maintenance documentation,
service manuals and other historical records; shall be capable of being
immediately assembled and operated by a third party for its originally intended
purpose; and shall be in compliance with all applicable laws, regulations and
industry standards, without further repair, replacement of parts, alteration or
improvement. Lessee shall, in a workmanlike manner and without damage to the
Equipment, remove all Lessee-supplied decals, logos, insignias, numbers, and any
similar identifications or markings from the Equipment. In conjunction with its
surrender of the Equipment, Lessee shall provide Lessor with a complete and
reasonably detailed inventory of the Equipment, including model numbers, serial
numbers, and a description of all modifications (if any) made to the Equipment
during the term of the Lease.
12.4 In the event that Lessee fails to comply with the provisions
of this Section 12, the Initial Term or any Extended Term shall be extended on a
day-to-day basis until Lessee shall have complied with such provisions. During
such period, Lessee shall continue paying a per diem rental equal to the Daily
Rent as set forth on the applicable Lease Schedule for each day of such holdover
period until such time as the Equipment shall have been surrendered in
accordance with this Section 12; provided, however, that if Lessor so notifies
Lessee, Lessee shall surrender the Equipment prior to full compliance with this
Section 12 (but not before the expiration of the Initial Term or any Extended
Term). In such case, Lessee shall be liable for (i) the per diem rental set
forth above through the date of actual surrender, plus (ii) any cost or expense
incurred by Lessor in placing the Equipment in the condition required by this
Section 12, both of which amounts shall be deemed additional rent payments due
under the applicable Lease Schedule.
13. Fair Market Value Purchase Option. Lessor hereby grants to
Lessee the option to purchase all, but not less than all, Equipment set forth on
any Lease Schedule at the expiration of the applicable Initial Term or Extended
Term. Lessee shall notify Lessor in writing at least ninety (90) days prior to
the expiration of the Initial Term or any Extended Term of its intent to
exercise its option to purchase the Equipment on the date of such expiration,
which notice shall be final and irrevocable. Any such purchase shall be for cash
in an amount equal to the then fair market value of such Equipment, as
determined in good faith by Lessor (the "Fair Market Value"). This purchase
option may be exercised by Lessee, provided that no Event of Default, as defined
in Section 16 below, has occurred and is continuing. Upon payment of the Fair
Market Value by Lessee to Lessor, Lessor shall transfer title to the Equipment
to Lessee "AS IS, WHERE IS", "WITH ALL FAULTS", and WITH NO WARRANTIES
WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE.
14. Financial Statements. Lessee shall annually, within ninety
(90) days after the close of its fiscal year, furnish to Lessor financial
statements of Lessee, including a balance sheet as of the close of such year and
statements of income and retained earnings for such year, prepared in accordance
with generally accepted accounting principles, consistently applied from year to
year, and certified by
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independent public accountants for Lessee reasonably acceptable to Lessor. If
requested by Lessor, Lessee shall also provide quarterly financial statements of
Lessee, similarly prepared for each of the first three quarters of each fiscal
year, certified (subject to normal year-end audit adjustments) by the chief
financial officer of Lessee and furnished to Lessor within forty-five (45) days
following the end of each quarter, and such other financial information as may
be reasonably requested by Lessor.
15. Delayed Payment Charge. Lessee shall pay to Lessor interest
upon the amount of any Daily Rent, Periodic Rent or other sums not paid by
Lessee when due and owing under the applicable Lease Schedule, from the due date
thereof until paid, at the rate of one and one half percent (1.5%) per month,
but if such rate violates applicable law, then at the maximum rate of interest
allowed by such law.
16. Default.
16.1 The occurrence of any of the following events shall constitute
an event of default ("Event of Default") under all Lease Schedules to which
Lessor is a party:
(a) Lessee fails to pay any Daily Rent or any Periodic Rent
when due, and such failure to pay continues for five (5) consecutive
days following written notice from Lessor; or
(b) Lessee fails to pay any other sum required hereunder, and
such failure continues for a period of ten (10) days following the
giving of written notice by Lessor; or
(c) Lessee fails to maintain the insurance as required by
Section 11 above; or
(d) Lessee violates or fails to perform any other term,
covenant or condition of this Master Agreement or any Lease Schedule or
any other document, agreement or instrument executed pursuant hereto or
in connection herewith, which failure is not cured within thirty (30)
days after the giving of written notice by Lessor; provided, however,
that Lessor need not give any written notice in the event of a default
in the performance of any financial covenants undertaken by Lessee in
connection herewith; or
(e) Lessee ceases to exist or terminates its independent
operations by reason of any discontinuance, dissolution, liquidation,
or sale of substantially all of its assets in one transaction or a
series of related transactions, or otherwise ceases doing business as a
going concern; or
(f) Lessee merges into or with any corporation or other legal
entity, and Lessee is not the surviving corporation or the surviving
legal entity; or
(g) Lessee (i) applies for or consents to the appointment of,
or the taking of possession by, a receiver, custodian, trustee,
liquidator or similar official for itself or for all or a substantial
part of its property, (ii) is generally not paying its debts as such
debts become due, (iii) makes a general assignment for the benefit of
its creditors, (iv) commences a voluntary case under the United States
Bankruptcy Code, as now or hereafter in effect, seeking liquidation,
reorganization or other relief with respect to itself or its debts, (v)
files a petition seeking to take advantage of any other law providing
for the relief of debtors, (vi) takes any action under the laws of its
jurisdiction of incorporation or organization similar to any of the
foregoing, (vii) convenes a meeting of its creditors, or (viii) takes
any corporate action for the purpose of effecting any of the foregoing;
or
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(h) A proceeding or case is commenced, without the application
or consent of Lessee, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, dissolution or winding up of
Lessee or composition or readjustment of the debts of Lessee, (ii) the
appointment of a trustee, receiver, custodian, liquidator or similar
official for Lessee or for all or any substantial part of its assets,
or (iii) similar relief with respect to Lessee under any law providing
for the relief of debtors, and such proceeding or case under any of the
foregoing subsections shall continue undismissed, or unstayed and in
effect, for a period of sixty (60) days; or an order for relief is
entered with respect to Lessee in an involuntary case under the United
States Bankruptcy Code, as now or hereafter in effect, or an action
under the laws of the jurisdiction of incorporation or organization of
Lessee, similar to any of the foregoing, is taken with respect to
Lessee without its application or consent and shall continue unstayed
and in effect for period of sixty (60) days; or
(i) Lessee makes any representation or warranty herein or in
any statement or certificate at any time given in writing pursuant to
or in connection with this Master Agreement or any Lease Schedule,
which is false or misleading in any material respect; or
(j) Lessee defaults under any promissory note, credit
agreement, loan agreement, conditional sales contract, guaranty, lease,
indenture, bond, debenture or other material obligation whatsoever, and
a party thereto or a holder thereof is entitled to accelerate the
obligations of Lessee thereunder; or Lessee defaults in meeting any of
its material trade, tax or other current obligations as they mature,
unless such obligations are being contested diligently and in good
faith; or
(k) Any party to any guaranty, letter of credit, subordination
or credit agreement or other undertaking, given for the benefit of
Lessor and obtained in connection with this Master Agreement or Lease
Schedule, breaches, fails to continue, contests, or purports to
terminate or to disclaim such guaranty, letter of credit, subordination
or credit agreement or other undertaking; or such guaranty, letter of
credit, subordination agreement or other undertaking becomes
unenforceable while any obligation or any Lease Schedule remains
outstanding; or a guarantor of this Master Agreement or any Lease
Schedule shall die, cease to exist or terminate its independent
operations; or any event or condition set forth in subsections (d),
(e), (f), (g), (h), (i) or (j) of this Section 16.1 shall occur with
respect to any guarantor or other person responsible, in whole or in
part, for payment or performance of this Master Agreement or any Lease
Schedule.
16.2 At the option of Lessor, the occurrence of an Event of Default
with respect to any Lease Schedule shall, without further act or declaration by
Lessor, constitute an Event of Default with respect to any other Lease Schedule
to which Lessor is then a party. If Lessor shall have made an assignment of any
Lease Schedule pursuant to Section 19 below, the assignee of Lessor shall be
deemed to be Lessor and the party to such assigned Lease Schedule or Lease
Schedules for purposes of this Section 16.
16.3 No waiver by Lessor of any Event of Default shall constitute a
waiver of any other Event of Default or of the same Event of Default at any
other time.
17. Remedies.
17.1 Upon the occurrence of an Event of Default, Lessor, at its
sole option, upon its declaration, and to the extent not inconsistent with
applicable law, may exercise any one or more of the following remedies:
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(a) Lessor may cancel any or all Lease Schedules, whereupon
all rights of Lessee to the quiet enjoyment and use of the Equipment
shall cease;
(b) Whether or not any or all Lease Schedules are cancelled,
Lessor may cause Lessee, at the sole cost and expense of Lessee, to
cease immediately all use and operation of the Equipment and return any
or all of the Equipment promptly to the possession of Lessor in good
repair and working order, reasonable wear and tear excepted, and
otherwise in the condition required by Section 12.3 hereof. Lessor, at
its sole option and through its employees, agents or contractors, may
peaceably enter upon the premises where the Equipment is located and
take immediate possession of and remove the Equipment, all without
liability to Lessor, its employees, agents or contractors for such
entry. LESSEE HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHTS TO NOTICE AND/OR HEARING PRIOR TO THE REPOSSESSION
OR REPLEVIN OF THE EQUIPMENT BY LESSOR, ITS EMPLOYEES, AGENTS OR
CONTRACTORS;
(c) Lessor may proceed by court action to enforce performance
by Lessee of any or all of the Lease Schedules or pursue any other
remedy Lessor may have hereunder, at law, in equity or under any
applicable statute or law including, without limitation, the Uniform
Commercial Code as adopted by The Commonwealth of Massachusetts, and
recover such other actual damages as may be incurred by Lessor;
(d) Lessor may recover from Lessee damages, not as a penalty
but as liquidation for all purposes and without limitation of any other
amounts due from Lessee under any or all of the Lease Schedules, in an
amount equal to the sum of (i) any unpaid Daily Rents and/or Periodic
Rents due and payable for periods prior to the repossession of the
Equipment by Lessor plus any interest due thereon pursuant to Section
15 above, (ii) the present value of all future Periodic Rents required
to be paid over the remaining Initial Term or any Extended Term after
repossession of the Equipment by Lessor, determined by discounting such
future Periodic Rents to the date of payment by Lessee at a rate of
five percent (5%) per annum; and (iii) all costs and expenses incurred
in searching for, taking, removing, storing, repairing, restoring,
refurbishing and leasing or selling such Equipment; and
(e) Lessor may sell, lease or otherwise dispose of any or all
of the Equipment, whether or not in the possession of Lessor, at public
or private sale and, in the case of a private sale, with or without
notice to Lessee, which notice is hereby expressly waived by Lessee, to
the extent permitted by and not inconsistent with applicable law.
Lessor may be the purchaser at any such sale. Lessor may sell, lease or
dispose of the Equipment in such order and manner as Lessor may
determine. Lessor shall then apply against the obligations of Lessee
hereunder the net proceeds of such sale, lease (provided, however, that
the net proceeds of any such lease shall be solely those rentals
applicable to that period of the new lease term which is comparable to
the then remaining term of the Lease Schedule) or other disposition,
after deducting therefrom (i) the present value of the residual value
of the Equipment at the expiration of the Initial Term, which is
anticipated by Lessor and Lessee to be not less than twenty percent
(20%) of the Acquisition Cost, such present value to be determined by
discounting the anticipated residual value to the date of sale, lease
or other disposition at a rate of five percent (5%) per annum, and (ii)
all costs incurred by Lessor in connection with such sale, lease or
other disposition including, but not limited to, costs of
transportation, repossession, storage, refurbishing, advertising or
other fees. Lessee shall remain liable for any deficiency, and any
excess of such proceeds over the total
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obligations owed by Lessee shall be retained by Lessor. If any notice
of such sale, lease or other disposition of the Equipment is required
by applicable law, ten (10) days written notice to Lessee shall be
deemed reasonable.
17.2 Upon the occurrence of an Event of Default described in
subsections 16.1(g) and (h), the remedy set forth in subsection 17.1(d) shall be
deemed to have been exercised immediately and automatically without any act or
declaration of Lessor, and the liquidated damages described therein shall be
immediately due and payable.
17.3 Lessee shall pay all costs and expenses, including but not
limited to reasonable legal fees incurred by Lessor, arising out of or in
connection with any Event of Default under any Lease Schedule. Lessee shall also
be liable for any amounts due and payable to Lessor under any other provision of
any Lease Schedule or this Master Agreement, including but not limited to
amounts due and payable under Section 18 below.
17.4 No failure on the part of Lessor to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof. No
single or partial exercise of any right or remedy hereunder shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
Each right and remedy provided hereunder is cumulative and not exclusive of any
other right or remedy including, without limitation, any right or remedy
available to Lessor at law, by statute or in equity.
18. Tax Indemnification.
18.1 Lessee represents and warrants that the Equipment is and will
remain, during the entire Initial Term and any Extended Term, property used in a
trade or business or for the production of income within the meaning of Section
167 of the Internal Revenue Code of 1986, as amended ("Code"). Lessee further
acknowledges and agrees that, pursuant to the Code, Lessor or its affiliated
group, as defined in Section 1504 of the Code ("Affiliated Group"), (i) shall be
entitled to deductions for the recovery of the Acquisition Cost of the Equipment
over the recovery period as set forth in the applicable Lease Schedule, using
the Modified Accelerated Cost Recovery System as provided by Section 168(b)(1)
of the Code ("MACRS Deductions") and (ii) shall not be required to include in
its gross income for Federal income tax purposes any amount derived from the
cost of any alteration, addition, improvement, modification, replacement, or
substitution of the Equipment or from any refund or credit from the manufacturer
or supplier of the Equipment or any foreign source income.
18.2 If as a result of any reason or circumstance whatsoever,
except as specifically set forth in Section 18.3 below, Lessor or its Affiliated
Group shall not be entitled to, shall not be allowed, shall suffer recapture of
or shall lose any MACRS Deductions, or shall be required to include in gross
income such amounts as described in Section 18.1 above, then Lessee shall pay to
Lessor, upon demand, a sum to be computed by Lessor in the following manner:
such sum, after deduction of all Federal, state and local income taxes payable
by Lessor as a result of the receipt of such sum, shall be sufficient to restore
Lessor or its Affiliated Group to substantially the same position, on an
after-tax basis, as it would have been in but for the loss of such MACRS
Deductions or the inclusion of such additional amounts in gross income. In
making its computation, Lessor or its Affiliated Group shall consider, but shall
not be limited to, the following factors: (i) the amounts and timing of any net
loss of tax benefits resulting from any such lack of entitlement to or loss,
recapture, or disallowance of MACRS Deductions or the inclusion of such
additional amounts in gross income, but offset by any tax benefits derived from
any depreciation or other capital recovery deductions or exclusions from income
allowed to Lessor or its Affiliated Group
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with respect to the same Equipment, or credits which may be available as a
result of such additional amounts required to be included in the gross income of
Lessor and its Affiliated Group; (ii) penalties, interest or other charges
imposed; (iii) differences in tax years involved; and (iv) the time value of
money at a reasonable rate per annum determined, in good faith, by Lessor. For
purposes of computation only, the amount of indemnification payments hereunder
shall be calculated on the assumption that Lessor and its Affiliated Group have
or will have, in all tax years involved, sufficient taxable income and the tax
liability to realize all tax benefits and incur all losses of tax benefits at
the highest marginal Federal corporate income tax rate in each year. Upon
request, Lessor shall provide Lessee with the methods of computation used in
determining any sum that may be due and payable by Lessee under this Section 18.
Lessor's computation of any sum that may be due and payable by Lessee under this
Section 18 shall be binding and conclusive on the parties hereto in the absence
of manifest error.
18.3 Lessee shall not be obligated to pay any sums required under
this Section 18 in the event that lack of entitlement to, or loss, recapture or
disallowance of any MACRS Deductions or the inclusion of such additional amounts
in gross income results from one or more of the following events: (i) a
disqualifying disposition due to the sale of the Equipment by Lessor when no
Event of Default, as defined in Section 16 above, has occurred, (ii) a failure
of Lessor or its Affiliated Group to timely claim any MACRS Deductions for the
Equipment in its tax return, and/or (iii) the fact that Lessor or its Affiliated
Group does not have, in any taxable year or years, sufficient taxable income or
tax liability to realize the benefit of any MACRS Deductions that are otherwise
allowable to Lessor or its Affiliated Group.
18.4 The representations, obligations and indemnities of Lessee
under this Section 18 shall continue in full force and effect, and shall
survive, notwithstanding the expiration or other termination of this Master
Agreement or any Lease Schedules.
19. Assignment; Sublease.
19.1 LESSOR MAY SELL, ASSIGN OR OTHERWISE TRANSFER ALL OR ANY PART
OF ITS RIGHT, TITLE AND INTEREST IN AND TO THIS MASTER AGREEMENT, THE EQUIPMENT
AND/OR ANY LEASE SCHEDULE TO A THIRD-PARTY ASSIGNEE, SUBJECT TO THE TERMS AND
CONDITIONS OF ANY LEASE SCHEDULE, INCLUDING BUT NOT LIMITED TO, THE RIGHT TO THE
QUIET ENJOYMENT OF THE EQUIPMENT BY LESSEE AS SET FORTH IN SECTION 7.1 ABOVE.
Such assignee shall assume all of the rights and obligations of Lessor under the
applicable Lease Schedule from and after the effective date of such assignment,
and shall relieve Lessor therefrom. Lessee hereby waives and agrees not to
assert against any such assignee any defense, setoff, recoupment, claim or
counterclaim which Lessee has or may at any time hereafter have against Lessor,
or any person, other than such assignee, for any reason whatsoever. In no event,
shall any of the rights or obligations of Lessee change under an assigned Lease
Schedule. In addition, any assignment by Lessor shall not substantially increase
any burden or risk to Lessee. Upon any such assignment, all references to Lessor
herein shall mean such assignee. Notwithstanding any such sale, assignment or
transfer, Lessee's obligations hereunder shall remain absolute and unconditional
including, without limitation, as set forth in Section 7.2 above.
19.2 Lessor may also pledge, mortgage or grant a security interest
in the Equipment and assign any Lease Schedule as collateral. The assignee
thereof shall be entitled to all the rights of Lessor under the Lease Schedule.
If such assignee assumes all of the obligations of Lessor under the Lease
Schedule, Lessor shall be relieved of such obligation, and assignee shall be
deemed to be Lessor. Lessee hereby waives and agrees not to assert against any
such assignee any defense, setoff, recoupment, claim
14
or counterclaim which Lessee has or may at any time hereafter have against
Lessor, or any person, other than such assignee, for any reason whatsoever. Any
pledge, mortgage or grant of security interest in the Equipment or assignment of
a Lease Schedule shall be subject to the terms and conditions hereof including,
but not limited to, the right to the quiet enjoyment of the Equipment by Lessee
as set forth in Section 7.1 above. Lessee, by reason of such pledge, mortgage,
grant of security interest or collateral assignment, shall not be relieved of
any of its obligations hereunder, which shall remain absolute and unconditional
including, without limitation, as set forth in Section 7.2 above.
19.3 Upon the written request of Lessor, Lessee shall provide
written acknowledgment to any pledgee, mortgagee, lienholder, assignee,
transferee or purchaser of any Lease Schedule of the obligations of Lessee under
the Lease Schedule that is pledged, mortgaged, encumbered, assigned transferred
or purchased.
19.4 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR
PLEDGE ANY OF ITS INTEREST IN THIS MASTER AGREEMENT ANY LEASE SCHEDULE OR ANY OF
THE EQUIPMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Any such sale,
transfer, assignment, sublease, conveyance or pledge, whether by operation of
law or otherwise, without the prior written consent of Lessor, shall be void.
19.5 Subject to the foregoing, this Master Agreement and each Lease
Schedule inure to the benefit of, and are binding upon, the successors and
permitted assigns of the parties hereto and thereto, as the case may be.
20. Optional Performance By Lessor. If an Event of Default, as
defined in Section 16 above, or an event or condition which with the giving of
notice or lapse of time, or both, would become an Event of Default occurs and is
continuing, Lessor in its sole discretion may pay or perform any obligation of
Lessee under this Master Agreement or any Lease Schedule in whole or in part,
without thereby becoming obligated to pay or to perform the same on any other
occasion or to pay any other obligation of Lessee. Any payment or performance by
Lessor shall not be deemed to cure any Event of Default or any such event or
condition hereunder. Upon such payment or performance by Lessor, Lessee shall
pay forthwith to Lessor, on demand, the amount of such payment or an amount
equal to all costs and expenses of such performance, as well as any delayed
payment charges on such amounts as set forth in Section 15 above.
21. Representations and Warranties of Lessee.
21.1 Lessee represents and warrants that (i) there are no pending
actions or proceedings to which Lessee is a party, and there are no threatened
actions or proceedings of which Lessee has knowledge, before any court,
arbitrator or administrative agency, which, either individually or in the
aggregate, would have a Material Adverse Effect on Lessee; Lessee is not in
default under any obligation for borrowed money, for the deferred purchase price
of property or any lease agreement which, either individually or in the
aggregate, would have a Material Adverse Effect on Lessee; (iii) under the laws
of the state(s) in which the Equipment is to be located, the Equipment consists
solely of personal property and not fixtures; (iv) the financial statements of
Lessee (copies of which have been furnished to Lessor) have been prepared in
accordance with generally accepted accounting principles consistently applied,
and fairly present the financial condition of Lessee and the results of its
operations as of the date of and for the period covered by such statements, and
since the date of such statements there has been no material adverse change in
such conditions or operations; (v) the address of Lessee set forth above is the
chief place of business and chief executive office of Lessee; and Lessee does
not conduct business under
15
a trade, assumed or fictitious name;(vi) Lessee has reviewed the areas within
its business and operations which could be adversely affected by, and has
developed or is developing a program to address on a timely basis, the "Year
2000 Problem", that is, the risk that computer applications used by Lessee may
be unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date on or after December 31, 1999), and have
made related appropriate inquiry of material suppliers and vendors, based on
such review and program, Lessee believes that the "Year 2000 Problem" will not
have a Material Adverse Effect on Lessee; (vii) from time to time, at the
request of Lessor, Lessee shall provide to Lessor such updated information or
documentation as is requested regarding the status of its efforts to address the
Year 2000 Problem. For purposes of this Section 21.1, "Material Adverse Effect"
shall mean (1) a materially adverse effect on the business, condition (financial
or otherwise), operations, performance or properties of Lessee, or (2) a
material impairment of the ability of Lessee to perform its obligations under or
to remain in compliance with the Master Agreement and any Lease Schedule.
21.2 Lessee warrants and agrees that this Master Agreement
and any Lease Schedule and the performance by Lessee of all of its obligations
hereunder and thereunder have been duly authorized and do not and will not
conflict with any provision of the charter or bylaws of Lessee or of any
agreement, indenture, lease or other instrument, or any court, administrative or
other governmental order or decree, to which Lessee is a party or by which
Lessee or any of its property is or may be bound. Lessee warrants and agrees
that this Master Agreement and any Lease Schedule do not and will not require
any governmental authorization, approval, license or consent except, those which
have been duly obtained, and will remain in effect during the entire Initial
Term and any Extended Term.
22. Miscellaneous.
22.1 The section headings are inserted herein for convenience of
reference and are not part of and shall not affect the meaning or interpretation
of this Master Agreement or any Lease Schedule.
22.2 Any provision of the Master Agreement or any Lease Schedule
which is unenforceable in whole or in part in any jurisdiction, or under
particular circumstances, shall, as to such jurisdiction or circumstances, be
ineffective only to the extent of such unenforceability without invalidating any
remaining part or other provision hereof, and shall not be determinative of
enforceability in any other jurisdiction or under any other circumstances. The
validity and interpretation of the Master Agreement and any Lease Schedule and
the rights and obligations of the parties hereto shall be governed in all
respects by the laws of The Commonwealth of Massachusetts without giving effect
to the conflicts of laws provisions thereof. Time is of the essence with respect
to each obligation of the Lessee pursuant to this Master Agreement, any Lease
Schedule and any riders or amendments hereto or thereto.
22.3 Without derogation of any disclaimer or limitation otherwise
set forth in the Master Agreement or any Lease Schedule, any action by Lessee
against Lessor for any default by Lessor under the Master Agreement or any Lease
Schedule, including breach of warranty or indemnity, shall be commenced within
one (1) year after any such cause of action accrues.
22.4 LESSEE (BY ITS ACCEPTANCE HEREOF) AGREES THAT NEITHER IT, NOR
ANY PERMITTED ASSIGNEE OR SUCCESSOR OF LESSEE SHALL (A) SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR ARISING
OUT OF, THIS MASTER AGREEMENT, ANY LEASE SCHEDULE, ANY RELATED AGREEMENTS, THE
EQUIPMENT, OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG LESSEE AND
LESSOR AND LESSOR'S SUCCESSORS AND ASSIGNS, OR (B) SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH
16
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. LESSEE
HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS PARAGRAPH, AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. LESSOR HAS NOT AGREED WITH OR
REPRESENTED TO LESSEE THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES. Lessee further agrees that any suit based upon or
arising out of the Master Agreement, any Lease Schedule, any related agreements,
the Equipment, or the dealings or the relationship between or among Lessee and
Lessor and Lessor's successors and assigns may be brought in the courts of The
Commonwealth of Massachusetts or any Federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon Lessee by mail in the manner specified in Section 22.6
hereof. Lessee hereby waives any objection that it may now or hereafter have to
the venue of any such suit or any such court, or that such suit was brought in
an inconvenient forum.
22.5 Each Lease Schedule, including the terms of this Master
Agreement expressly incorporated therein, any riders, schedules or amendments,
and other documents now or hereafter attached thereto or executed in connection
therewith, constitutes the entire agreement between Lessor and Lessee regarding
the Equipment and the matters addressed thereby. Lessor and Lessee agree that
neither the Master Agreement nor any Lease Schedule shall be amended, altered or
changed except by a written agreement signed by the parties hereto. LESSEE
ACKNOWLEDGES THAT THERE HAVE BEEN NO REPRESENTATIONS, EXPRESS OR IMPLIED, BY
LESSOR OTHER THAN AS SET FORTH HEREIN, AND LESSEE EXPRESSLY CONFIRMS THAT IT HAS
NOT RELIED UPON ANY REPRESENTATIONS BY LESSOR, EXCEPT THOSE SET FORTH HEREIN, AS
A BASIS FOR ENTERING INTO THIS MASTER AGREEMENT OR ANY LEASE SCHEDULE.
22.6 Any notice required to be given by Lessee or Lessor hereunder
shall be deemed adequately given if sent by registered or certified mail, return
receipt requested, or by overnight courier via a nationally recognized provider
of such services, to the other party at its address stated herein or at such
other place as either party may designate in writing to the other. Such notice
shall be effective upon receipt.
22.7 Lessee agrees to execute and deliver such additional documents
and to perform such further acts as may be reasonably requested by Lessor in
order to carry out and effectuate the purposes of the Master Agreement and any
Lease Schedule. Upon the written request of Lessor, Lessee further agrees to
execute any instrument necessary for the filing or recording of this Master
Agreement or any Lease Schedule or to confirm the ownership of the Equipment by
Lessor, and to reimburse Lessor for costs incurred thereby, or any other costs
reasonably incurred by Lessor either in giving notice of its interest in the
Equipment or determining the existence of any liens or encumbrances on the
Equipment. Lessor is hereby authorized to insert in any Lease Schedule the
serial numbers of the Equipment and other identifying marks or similar
information and to sign, on behalf of Lessee, any Uniform Commercial Code
financing statements relating to the Equipment under the applicable Lease
Schedule.
22.8 Neither the Master Agreement nor any Lease Schedule may be
canceled or terminated except as expressly provided herein.
22.9 Whenever the context of this Master Agreement or any Lease
Schedule requires, the singular includes the plural and the plural includes the
singular. Whenever the word Lessor is used herein, it includes all assignees and
successors in interest of Lessor. If more than one Lessee is named herein, the
liability of each shall be joint and several.
17
22.10 All agreements, indemnities, representations and warranties of
Lessee and all rights and remedies of Lessor shall survive the expiration or
other termination of this Master Agreement and the applicable Lease Schedule,
whether or not expressly provided herein.
22.11 Any waiver of any power, right, remedy or privilege of Lessor
hereunder shall not be effective unless in writing signed by Lessor.
22.12 This Master Agreement or any Lease Schedule may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee, each by its duly authorized
officer or agent, have duly executed and delivered this Master Agreement, which
is intended to take effect as a sealed instrument, as of the day and year first
written above.
Accepted at Boston, Massachusetts
BANCBOSTON LEASING INC.
By: By: /s/ Xxxx X. Xxxxxx
--------------------------- ---------------------------
Print Name: Print Name: Xxxx X. Xxxxxx
Title: Title: CFO
------------------------ -------------------------
Federal Tax ID Number:
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