Exhibit 10.07 (a)
LEASE AGREEMENT
This Lease Agreement is made the 30th day of August, 2002 between
Somerset Capital Group, Ltd., with its principal office at 0000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000 (the "Lessor"), and Occupational Health +
Rehabilitation Inc, with its principal office at 000 Xxxxx Xxxxxx, Xxxxx 00,
Xxxxxxx, XX 00000-0000 (the "Lessee"). The Parties hereto, desiring legally to
be bound, hereby do agree as follows:
0.XXXXX:
Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment (the "Equipment) described in the Equipment Schedule(s)
attached hereto. Any reference to "Lease" shall mean this Lease Agreement, the
Equipment Schedule(s) and all Riders and Supplement(s) hereto and thereto, if
any. Each Equipment Schedule shall constitute a separate lease on the terms
herein and therein set forth, and shall incorporate this Lease Agreement by
reference.
2.DEFINITIONS:
(a)The "Installation Date" means the date determined in accordance
with the Equipment Schedule.
(b)The "Commencement Date" means, as to all Equipment designated on
any Equipment Schedule, where the Installation Date for the item of Equipment
last to be installed falls on the first day of the month, that date, or, in any
other case, the first day of the month following the month in which the item of
Equipment last to be installed is installed.
(c)The "Daily Rental" means 1/30th of the amount set forth as the
monthly rental for each item of Equipment in the applicable Equipment Schedule.
3.TERM OF LEASE:
The term of this Lease as to each item of Equipment designated on any
Equipment Schedule shall commence on the Installation Date for such item of
Equipment, and shall continue for an initial period (the "Initial Term") ending
that number of months from the Commencement Date as is specified on the
applicable Equipment Schedule. The term of this Lease for all such Equipment
shall be automatically extended for successive three-month periods until
terminated by either party giving to the other written notice of termination not
more than six (6) months or less than three (3) months prior to the desired
expiration date. Any such termination shall be effective only on the last day of
the Initial Term or the last day of any such successive period and shall be
given or made by mailing the same by registered or certified mail, return
receipt requested, or by recognized overnight express mail addressed to the
Lessor. As to each item of equipment, Lessee has the right at the end of the
Initial Term or any Extended Term (as defined in Paragraph 15 hereunder) to
renew the lease on a year-to-year basis at the then Fair Market Value (as
defined in Paragraph 15 hereunder) for that item at a rate to be negotiated
between the Lessor and Lessee. With respect to each Equipment Schedule executed
pursuant to this Lease Agreement, Lessee agrees to execute and deliver to
Lessor, on or about the Installation Date, a Certificate of Delivery and
Acceptance and Incumbency Certificate, each in such form as is acceptable to
Lessor.
4.PAYMENTS:
The monthly rental for each item of Equipment payable hereunder is as
set forth in the Equipment
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Schedule(s). Rental on each item of Equipment shall begin to accrue on the
Installation Date of such item of Equipment and shall be due and payable by
Lessee in advance on the first (1st) day of each month. If the Installation Date
does not fall on the first (1st) day of a month, the rental for the period of
time from the Installation Date until the Commencement Date shall be an amount
equal to the daily rental multiplied by the number of days from (and including)
the Installation Date to (but not including) the Commencement Date and shall be
due and payable on the Installation Date.
In addition to the monthly rental set forth in the Equipment
Schedule(s), Lessee shall pay to Lessor, when due, amounts equal to, and hold
Lessor harmless from, all taxes, levies, imposts, duties, fees, assessments and
other charges or withholdings of any nature whatsoever, however designated
(including, without limitation, franchise, sales, use, stamp, privilege or
excise taxes), together with any penalties, fines or interest thereon, imposed
against Lessor (or which Lessor is required to collect) by any federal, state or
local government or taxing authority and which are levied or based on or relate
to the rental, the Lease or the Equipment or its use, possession, lease,
ownership, financing, operation, control or value but excluding federal taxes
on, or measured by, the net income of Lessor and taxes, fees or other charges of
any other jurisdiction which are based on or measured by the net income of
Lessor. Personal property taxes assessed on the Equipment during the term of
this Lease shall be paid by Lessee either (at Lessor's option) to Lessor or
directly to the appropriate taxing authority, and Lessee shall 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
thirty (30) days after the due date of such filing, send Lessor confirmation of
such filing. Upon request Lessee shall furnish copies of such returns and
reports to Lessor.
Interest on any past due payments under this Lease shall accrue at the
rate of 1 1/2% per month, 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, levies, imposts, duties, fees, assessments or other charges, penalties
and interest shall be promptly paid by Lessee when due.
5.ASSIGNMENT TO LESSOR OF RIGHT TO PURCHASE EQUIPMENT:
If Lessee has contracted with the manufacturer of the Equipment to
purchase the Equipment, Lessee hereby assigns exclusively to Lessor Lessee's
right to purchase the Equipment. This assignment is effective when Lessor
accepts the applicable Equipment Schedule and Lessor shall then be obligated to
purchase and to pay for the Equipment. Other than the obligation to pay the
purchase price, all responsibilities and limitations applicable to the customer
or purchaser as referenced in the applicable manufacturer's purchase agreement
("Purchase Agreement") shall apply to Lessee.
If the Equipment is subject to a volume procurement amendment to the
Purchase Agreement or to any other discount offering (a)Lessor will pay the same
amount for the Equipment that would have been payable by Lessee, and (b) Lessee
will remain responsible to the manufacturer for any late order change charges,
settlement charges, adjustment charges or any other charges incurred under the
volume procurement amendment or other discount offering.
6.INSTALLATION, USE AND QUIET POSSESSION OF EQUIPMENT:
(a)Lessee, at its own expense, will provide the required electric
current to operate the Equipment and appropriate facilities to house and care
for the Equipment as specified by the manufacturer.
(b)Any Equipment, cards, disks, tapes or other items not specified in
the Equipment Schedule(s) which are used on or in connection with the Equipment
must meet the specifications of the manufacturer and shall be acquired by Lessee
at its own expense. All cables normally supplied with Equipment by the
manufacturer
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which are required for operation of the Equipment shall be deemed to have been
delivered to Lessee with the Equipment whether or not specifically noted on the
Equipment Schedule or any other documentation evidencing the purchase of the
Equipment by Lessor or the lease of the Equipment from Lessor, unless Lessor is
notified in writing by Lessee promptly after delivery that such cables were not
delivered.
(c)Lessee shall be entitled to unlimited usage of the Equipment
without extra charge by Lessor.
(d)Lessee will at all times keep the Equipment in its sole possession
and control. The Equipment shall not be moved from the locations stated in the
Equipment Schedule(s) without the prior written consent of Lessor (said consent
not to be unreasonably withheld provided that such location is within the
Continental United States in a state which has adopted the Uniform Commercial
Code).
(e)After prior notice to Lessor, Lessee may, at its own expense, make
alterations in or add attachments to the Equipment, provided such alterations or
attachments are readily removable and do not reduce 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 keep in force the maintenance
contract required by Section 6(h) hereof. The manufacturer or other organization
selected by Lessee and approved in writing by Lessor to maintain the Equipment
("Maintenance Organization") may incorporate engineering changes or make
temporary alterations to the Equipment upon request of Lessee. All such
alterations and attachments shall be and become the property of Lessor at the
expiration or termination of this Lease, or at the option of Lessee, shall be
removed and retained by Lessee provided the Equipment is restored, at Lessee's
expense, to its original condition, reasonable wear and tear only excepted.
(f)So long as Lessee is not in default hereunder, Lessor shall not
interfere with Lessee's use or possession of the Equipment during the term of
this Lease.
(g)Lessee, during the term of this Lease and at its expense, shall
keep the Equipment in good working order and condition and make all necessary
adjustments, repairs and replacements. Lessee shall not use or permit the
Equipment to be used in any manner or for any purpose for which, in the opinion
of the manufacturer, the Equipment is not designed or reasonably suitable.
Lessee shall comply with all governmental laws, rules and regulations in its
use, maintenance, storage and operation of the Equipment. In case any additional
or other equipment, appliance or alteration is required to be made or installed
on any item of Equipment in order to comply with such laws, regulations,
requirements and rules, Lessee agrees to make or install such equipment,
appliance or alteration at its own cost and expense.
(h)Lessee shall, during the term of this Lease and at its own expense,
enter into and maintain in force a contract with the manufacturer or the
Maintenance Organization covering at least prime shift maintenance of each item
of Equipment if maintenance is applicable to the equipment subject to the lease.
Any such maintenance contract shall commence upon expiration of the
manufacturer's warranty period, if any, relating to such item. Lessee shall
furnish Lessor, from time to time upon Lessor's request, with a copy of such
contract(s). Upon the expiration of the Initial Term Lessee may elect not to
maintain in force the above-referenced maintenance agreement, but in any event
Lessee shall remain obligated to all the terms and conditions of paragraph (i)
below.
(i)At the termination of this Lease, 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 and safety changes prescribed by the manufacturer and
Maintenance Organization incorporated therein. If maintenance is applicable to
the equipment at such termination, Lessee shall, at its own expense, obtain a
certification from the manufacturer or Maintenance Organization that the
Equipment is eligible and
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acceptable for (and Lessee shall arrange and pay for any repairs and changes as
are necessary for the manufacturer or Maintenance Organization to accept the
Equipment under) contract maintenance at its then standard rates, and the term
of this Lease shall be deemed extended upon the same terms and conditions and
rental hereunder until such certification has been obtained.
7.OWNERSHIP AND INSPECTION:
(a)Lessee shall have no interest in the Equipment other than the
rights acquired as a lessee hereunder. The Equipment is and shall always remain
separate identifiable personality. Lessee shall not permit any item of 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 item of Equipment paramount to the rights of Lessor by reason of
such item of Equipment being deemed to be real property or a fixture thereon.
Lessee shall, promptly upon request of Lessor, obtain a written acknowledgement
from the owner and/or mortgagee(s) of the real property at which such item of
Equipment is located that such owner and/or mortgagee(s) will not at any time
assert any interest in such item of Equipment or that such item of Equipment
constitutes part of such real property. Lessee shall, at Lessor's request, affix
to the Equipment in a prominent place or places, tags, decals or plates
furnished by Lessor, indicating Lessor's ownership and Lessee shall not permit
their removal or concealment.
(b)Lessee shall keep the Equipment free and clear of all liens and
encumbrances except liens or encumbrances arising through the actions or
omissions of Lessor. LESSEE SHALL NOT ASSIGN OR OTHERWISE ENCUMBER THIS LEASE OR
ANY OF ITS RIGHTS HEREUNDER OR SUBLEASE THE EQUIPMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR, except that Lessee, upon prior written notice to Lessor, may
assign this Lease or sublease the Equipment to its parent or any 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
assignment or sublease shall relieve Lessee of any of its obligations hereunder
and any permitted sublease or assignment shall be by its terms expressly subject
and subordinate to the terms of this Lease Agreement and the rights of the
Lessor hereunder.
(c)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 Lease.
8.WARRANTIES:
(a)Lessee represents, covenants and agrees that, at the Installation
Date set forth in the applicable Equipment Schedule, it shall have (i)thoroughly
inspected the Equipment, (ii)determined for itself that all items of Equipment
are in good condition, working order and repair and are of a size, design,
capacity and manufacturer selected by it, and (iii)satisfied itself that the
Equipment is suitable for Lessee's purposes. LESSOR LEASES THE EQUIPMENT AS IS
AND, NOT BEING THE MANUFACTURER OF THE EQUIPMENT, THE MANUFACTURER'S AGENT OR
THE SELLER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR
IMPLIED, AS TO THE EQUIPMENT'S MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO
PATENT INFRINGEMENT OR THE LIKE, it being agreed that all such risks, as between
Lessor and Lessee, are to be borne by Lessee. Lessee agrees to look solely to
the manufacturer or to suppliers of the Equipment for any and all warranty
claims and any and all warranties made by the manufacturer or the supplier of
Lessor are hereby assigned to Lessee for the term of the applicable Equipment
Schedule. Lessee hereby assumes the sole responsibility for, and agrees that
Lessor shall not be responsible for, the delivery, installation, maintenance,
operation or service of the Equipment or for delay or inadequacy of any or all
of the foregoing. Lessor shall not be responsible for any direct or
consequential loss or damage resulting from the installation, operation,
maintenance or use of the Equipment or otherwise.
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(b)Lessee agrees that the statements and financial reports submitted
by it to Lessor are material inducements to the execution by Lessor of this
Lease, and Lessee warrants that such statements and reports are, and all
information hereafter furnished by Lessee to Lessor will be, true and correct in
all material respects as of the date submitted.
9.RISK OF LOSS ON LESSEE:
(a)Until the Equipment is returned to Lessor as provided in this
Lease, Lessee relieves Lessor of responsibility of "all risks" of physical
damage to or loss or destruction of the Equipment, however caused. During the
term of this Lease as to any Equipment Schedule, Lessee, at its own expense,
shall keep in effect "all risk" and general liability insurance policies
covering the Equipment designated in such Equipment Schedule. The general
liability insurance shall be in such amount as is reasonably acceptable to
Lessor. The "all risk" property insurance policy shall insure against "all
risks" of loss or damage, and shall be for an amount not less than the
replacement cost of the Equipment. Lessor, its successors and assigns shall be
named as additional insured and loss payees on such property insurance policies,
which shall be written by an insurance company with a rating from A. M. Best
Company, Inc., of "A" or better, which is reasonably acceptable to Lessor.
Evidence of such insurance coverage shall be furnished to the Lessor no later
than the Installation Date set forth in the Equipment Schedule(s) and, from time
to time, thereafter as Lessor may reasonably demand. Such policies shall provide
that no less than thirty (30) days written notice shall be given Lessor prior to
cancellation of such policies for any reason. Solely for the purposes
anticipated in this section 9, Lessee hereby irrevocably appoints Lessor as
Lessee's attorney-in-fact coupled with an interest to make claim for, receive
payment of, and execute any and all documents that may be required to be
provided to the insurance carrier in substantiation of any such claim for loss
or damage under said insurance policies, and to endorse Lessee's name to any and
all drafts or checks in payment of the loss proceeds.
(b)If any item of Equipment is rendered unusable as a result of any
physical damage to, or loss or destruction of, the Equipment, or title thereto
shall be taken by any governmental authority under power or eminent domain or
otherwise, Lessee shall give to Lessor immediate notice thereof and this Lease
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 any
such damage or destruction, whether such item of Equipment can be repaired. In
the event Lessee determines that the item of Equipment cannot be repaired or
such Equipment was lost, destroyed or title thereto taken, Lessee, at its
expense, shall promptly replace such item of Equipment with equipment of equal
or greater functionality and contemporaneous or later manufactory and convey
title to such replacement equipment to Lessor free and clear of all liens,
claims, equities and encumbrances of every kind or nature whatsoever, and this
Lease shall continue in full force and effect as though, subject to the
provisions of Section 13 hereof, such damage, loss, destruction or taking of
title had not occurred, except that the replacement equipment shall become
Equipment for purposes of this Lease in lieu of the replaced Equipment. In the
event Lessee determines that such item of Equipment can be repaired, Lessee
shall cause such item of Equipment to be promptly repaired. All proceeds of
insurance received by Lessor or Lessee under the policy referred to in the
preceding paragraph of this Section shall be applied toward the cost of such
repair or replacement.
(c)Lessee shall immediately notify Lessor of all details concerning
any damage to, or loss of, the Equipment arising out of any event or occurrence
whatsoever, including but not limited to, the alleged or apparent improper
manufacture, functioning or operation of the Equipment.
00.XXXXXX OF DEFAULT AND REMEDIES:
The occurrence of any one of the following shall constitute an Event of Default
hereunder:
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(a)Lessee fails to pay any installment of rent on or before the fifth
(5th) day following the date 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 (10) days after written notice thereof to
Lessee by Lessor;
(d)Any representation or warranty made by Lessee herein or in any
document or certificate furnished in connection herewith shall prove incorrect
in any material respect;
(e)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; or
(f)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 thirty
(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.
Upon the occurrence of an Event of Default, Lessor may at its option
do any or all of the following: (i)By notice to Lessee terminate this Lease as
to any or all Equipment Schedules; (ii)whether or not this Lease is terminated
as to any or all Equipment Schedules, take possession of any or all of the
Equipment listed on any or all Equipment Schedules, wherever situated, and for
such purpose, peacefully enter upon any premises without liability for so doing
or Lessor may cause Lessee, and Lessee hereby agrees, to return the Equipment to
Lessor as provided in this Lease; (iii)recover from Lessee, as liquidated
damages for loss of a bargain and not as a penalty, an amount equal to the
present value of all monies to be paid by Lessee during the remainder of the
Initial Term or any successive period then in effect, discounted at the rate of
six percent (6%) per annum, which payment shall become immediately due and
payable; and (iv)sell, dispose of, hold, use or lease any Equipment as Lessor in
its sole discretion may determine without, except as provided below, any duty to
account to Lessee (and Lessor shall not be obligated to give preference to the
sale, lease or other disposition of the Equipment over the sale, lease or other
disposition of similar equipment owned or leased by Lessor). In any event,
Lessee shall, without further demand, pay to Lessor an amount equal to all sums
due and payable for all periods up to and including the date on which Lessor has
declared this Lease to be in default.
In the event that Lessee shall have paid to Lessor the liquidated
damages referred to in clause (iii) above and all other sums then due and
payable, Lessor hereby agrees to pay Lessee, promptly after receipt thereof, all
rentals or proceeds received from the reletting or sale of the Equipment to the
extent such rentals or proceeds are attributable to the balance of the Initial
Term (after deduction of all expenses incurred by Lessor), said amount never to
exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that
Lessor shall have no obligation to sell or lease the Equipment and shall not be
required to give preference to the sale, lease or other disposition of the
Equipment over the sale, lease or other disposition of similar equipment owned
or
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leased by Lessor. Lessee shall in any event remain fully liable for reasonable
damages as provided by law and for all costs and expenses incurred by Lessor on
account of such default including, but not limited to, all court costs and
reasonable attorneys' fees. Lessee further agrees that, in any event, it will be
liable for any deficiency after any sale, lease or disposition by Lessor. The
rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall
be in addition to any other rights or remedies provided by law. Lessor agrees to
seek to mitigate its damages in a commercially reasonable manner.
00.XXX LEASE:
Except as otherwise specifically provided in this Lease, 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 Lease or the
Equipment (including, but not limited to, transportation in and out,
transportation insurance, rigging, drayage, packing, installation and disconnect
charges). Lessee hereby agrees that in the event that Lessee fails to pay or
perform any obligation under this Lease, Lessor may, at its option, pay or
perform said obligation and any payment made or expense incurred by Lessor in
connection therewith shall become additional rent, which shall be due and
payable by Lessee upon demand.
Lessee's agreement to pay all obligations under the Lease, including
but not limited to the Rental Payments is absolute and unconditional and such
obligations shall not be subject to any abatement, deferment, reduction,
defense, counterclaim, setoff or recoupment for any reason whatsoever. It is the
express intention of Lessor and Lessee that all rent and all other sums payable
by Lessee under the Lease shall be and continue to be, payable in all events
throughout the term of the Lease.
12.ASSIGNMENT BY LESSOR:
Lessee agrees that Lessor may transfer or assign all or part of
Lessor's right, title and interest in, under or to the Equipment and this Lease
and any or all sums due or to become due pursuant to any of the above, to any
third party (the "Assignee") for any reason. Lessee agrees that upon receipt of
written notice from Lessor of such assignment,
Lessee shall perform all of its obligations hereunder for the benefit of
Assignee and, if so directed, shall pay all sums due or to become due hereunder
directly to the Assignee or to any other party designated by the Assignee.
Lessee hereby covenants, represents, warrants and agrees that the Assignee shall
be entitled to rely on and shall be considered a third party beneficiary of the
following covenants, representations and warranties: (i)Lessee's obligations to
Assignee hereunder are absolute and unconditional and are not subject to any
abatement, reduction, recoupment, defense, offset or counterclaim available to
Lessee for any reason whatsoever including, without limitation, operation of
law, defect in the Equipment, the condition, design, operation or fitness for
use thereof or any loss, taking, destruction or interference with the use of the
Equipment or any part thereof, failure of Lessor to perform any of its
obligations hereunder or for any other cause or reason whatsoever, whether
similar or dissimilar to the foregoing (Lessee reserving its rights, if any, to
have separate recourse against Lessor on account of any thereof); 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 of the foregoing or for any other cause whether similar or dissimilar to the
foregoing, it being the intention of the parties hereto that the monthly rental,
additional rental, and all other sums payable by Lessee hereunder shall continue
to be payable in all events and at the times herein provided; (ii)Lessee shall
not look to Assignee to perform any of Lessor's obligations hereunder,
(iii)Lessee will not amend or modify this Agreement without the prior written
consent of the Assignee; and (iv)Lessee will send a copy to Assignee of each
notice which Lessee sends to Lessor.
Upon receipt of notice of such assignment, Lessee agrees to execute
and deliver to Lessor and Assignee
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such documentation as Assignee may require, including but not limited to (i)an
acknowledgement of, or consent to, assignment which may require Lessee to make
certain representations or reaffirmations as to some of the basic terms and
covenants contained in this Lease; (ii)a certified copy of resolutions of
Lessee; and (iii)a Certificate of Delivery and Acceptance. Nothing contained in
such documentation required by Assignee shall be in derogation of any of the
rights granted to Lessee hereunder. Notwithstanding such assignment: (i)Lessor
shall not be relieved of any of its obligations hereunder; and (ii) the rights
of Lessee hereunder shall not be impaired.
00.XXX INDEMNITY:
This Lease has been entered into, and the Equipment has been acquired
by the Lessor, on the basis that Lessor and/or any persons, firms, corporations
or other entities to which Lessor transfers or has transferred title to all or
any portion of the Equipment (the "Owner") shall be entitled to such deductions,
credits and other benefits as are provided to an owner of property (the "Tax
Benefits"), including, without limitation, the accelerated cost recovery or
depreciation deduction on the Equipment under various Sections of Internal
Revenue Code of 1986 as amended from time to time (the "Code") based upon such
depreciable lives, averaging conventions, methods of depreciation and other
accounting methods as the Owner elects for tax purposes, and the deduction under
Section 163 of the Code in the full amount of any interest paid or accrued by
the Owner in accordance with the Owner's method of accounting for tax purposes
with respect to any indebtedness incurred by the Owner in financing its purchase
of the Equipment. (As used herein the term "Owner" includes Lessor in the event
Lessor has not transferred title to all of the Equipment.) If as a result of any
act or failure to act of Lessee or any physical damage to or loss, governmental
taking or destruction of the Equipment, the Owner (a)shall lose, have recaptured
or disallowed, or not be entitled to the full use of the Tax Benefits, or
(b)shall have its tax increased or accelerated on account of recomputation or
recapture of such Tax Benefits in any year or years pursuant to the provisions
of the Code (each of the events referred to in (a) and (b) above being referred
to as a "Loss"), then Lessee shall pay to the Owner, upon demand, a sum which,
after deduction therefrom for all federal, state and local income taxes payable
by the Owner with respect to the receipt of such sum, shall be sufficient to
restore the Owner to substantially the same position the Owner would have been
in had such Loss not been incurred after taking into account all relevant
factors, including, without limitation, (i)the amount of the Tax Benefits so
lost, recaptured, disallowed, recomputed or not so utilized, (ii)the increase or
acceleration in the Owner's tax on account thereof, (iii)penalties, interest or
other charges imposed on the Owner, (iv)differences in tax years involved, and
(v) the Tax Benefits, if any, available to the Owner with respect to any
replacement Equipment transferred to Lessor pursuant to Section 9(b) hereof. The
provisions of this Section 13 shall survive the expiration or earlier
termination of this Lease. For the purposes of this Section 13, a Loss shall
occur upon the earliest of (1)the happening of any event which may cause such
Loss, (2)the payment by the Owner to the Internal Revenue Service of the tax
increase resulting from such Loss, or (3)the adjustment of the tax return of the
Owner to reflect such Loss.
14.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 documents contemplated hereby, or the performance or
enforcement of any of the terms hereof, or in any way relating to or arising out
of the Equipment or the acceptance, rejection, return, lease, possession, use,
condition, operation, or disposition of the Equipment or any accident in
connection therewith (including, without limitation, latent and other defects,
whether or not
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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 active willful
misconduct 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.
15.FAIR MARKET VALUE PURCHASE OPTION:
Provided that no Event of Default exists under the Lease, the Lessee
shall have the option to purchase any or all of the Equipment at the expiration
of the Initial Term or any Extended Term (Extended Term is defined as either an
automatic extension as provided in Section 3 hereto, or a fixed extension term
as negotiated between Lessee and Lessor) for a purchase price equal to the Fair
Market Value of the Equipment at such point in time. Such option may be
exercised by Lessee notifying Lessor not less than ninety (90) days prior to the
expiration of the Initial Term or any Extended Term then in effect. On the
expiration date of the Initial Term or any Extended Term, if Lessee has elected
to purchase the Equipment, Lessee shall purchase from Lessor, and Lessor shall
sell to Lessee the Equipment on an AS IS, WHERE IS, BASIS, except that Lessor
shall warrant title and that the Equipment is free and clear of all liens and
encumbrances arising by or through the Lessor, except for taxes or other
impositions for which Lessee is obligated to pay under the Lease. Lessor shall
provide Lessee with a Xxxx of Sale following payment.
For the purposes of this Purchase Option, "Fair Market Value" shall be
defined as the purchase price that would be obtained in an arm's length
transaction between a willing seller and a willing purchaser, neither under the
compulsion to buy or sell. In the event Lessor and Lessee cannot agree upon the
Fair Market Value, then such value shall be determined by an independent
appraiser selected by Lessor but satisfactory to Lessee. The cost of such
appraisal shall be borne equally by Lessor and Lessee.
16.MISCELLANEOUS:
(a)Neither this Lease nor any consent or approval provided for herein
shall 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
Connecticut and shall be governed in all respects by the laws of such state.
(b)This Lease 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 unless done so in written form executed
both by a duly authorized signator of Lessee and Lessor.
(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.
(d)This Lease shall be binding upon and inure to the benefit of Lessor
and Lessee and their respective successors and assigns (including any subsequent
assignee of Assignee).
(e)If any term or provision of this Lease or the application thereof
to any person is, to any extent, invalid or unenforceable, the remainder of this
Lease, or the application of such provision to the persons other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall
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be valid and be enforced to the fullest extent permitted by law.
(f)No waiver of any of the terms and conditions hereof shall be
effective unless in writing and signed by the party against whom such waiver is
sought to be enforced. Any waiver of the terms hereof shall be effective only in
the specific instance and for the specific purpose given. The waiver by Lessor
or Lessee of any breach of any obligation of Lessee or Lessor shall not be
deemed a waiver of such obligation or of any 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 and Lessee under
this Paragraph shall not be deemed to be exclusive, but shall be in addition to
any rights or remedies provided by law.
(g)Lessor is hereby authorized by Lessee to cause this Lease or other
instruments, including Uniform Commercial Code Financing Statements, to be filed
or recorded for the purposes of showing Lessor's interest in the Equipment and
Lessee agrees to execute and deliver all such instruments at the request of
Lessor and that Lessor may execute and deliver such instruments for and on
behalf of Lessee.
(h)In the event that the Installation Date does not occur within
forty-five (45) days of the Projected Installation Date (as set forth in the
applicable Equipment Schedule)then Lessor, at its option, may terminate the
applicable Equipment Schedule and this Lease (to the extent that it applies to
said Equipment Schedule), and any obligations with respect to any Purchase
Agreement between Lessee and the manufacturer that were assumed by Lessor shall
revert to and shall be re-assumed by Lessee.
(i)In the event of any conflict between the terms and conditions of
this Lease Agreement and the terms and conditions of any Equipment Schedule(s)
and Rider(s) thereto, the terms and conditions of such Equipment Schedule(s) or
Rider(s) shall prevail.
(j)Each year during the term of this Lease, Lessee hereby agrees to
deliver to Lessor a copy of Lessee's annual audited financial statements within
a reasonable time after said statements are available.
(k)The obligations which Lessee is required to perform during the term
of this Lease shall survive the expiration or other termination of this Lease,
but only to the extent that such obligations remain unperformed as of the
expiration or termination of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
LESSOR: LESSEE:
SOMERSET CAPITAL GROUP, LTD. OCCUPATIONAL HEALTH + REHABILITATION INC
---------------------------- ----------------------------------------
/s/ Xxxxx X. Xxxxxxx /s/Xxxxx X. Xxxx
Xxxxx X. Xxxxxxx Xxxxx X. Xxxx
VP & Corporate Secretary Chief Financial Officer
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