Exhibit 10.17
NEWCOURT FINANCIAL USA INC. Newcourt Financial USA Inc.
MASTER LEASE AGREEMENT 000 Xxx Xxxx Xxxxxxxxx Xxxx
00 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
LESSEE: ________________________ MASTER LEASE AGREEMENT NO. ________________
ADDRESS: _______________________ DATE: _____________________________________
NEWCOURT FINANCIAL USA INC. ("Lessor") hereby leases to Lessee and Lessee leases
from Lessor, in accordance with the terms and conditions hereinafter set forth,
the equipment and property together with all replacements, substitutions,
additions, accessories, alterations and repairs incorporated therein or now or
hereafter affixed thereto (herein collectively referred to as the "Equipment")
described in each Equipment Schedule which may be executed by Lessor and Lessee
from time to time (individually a "Schedule" and collectively, the "Schedules"),
each of which is made a part hereof. For all purposes of this Master Lease
Agreement ("Lease"), each Schedule relating to one or more items of Equipment
shall be deemed a separate lease incorporating all of the terms and provisions
of this Lease. In the event of a conflict between the terms of this Lease and
the terms and conditions of a Schedule, the terms and conditions of the Schedule
shall govern and control that Schedule.
________________________________________________________________________________
1. TERM AND RENTAL. The term of this Lease (the "Minimum Lease Term") for any
item of Equipment shall be set forth in the Schedule relating to such item of
Equipment and shall commence (the "Commencement Date") on the acceptance Date
("Acceptance Date"), which shall be the applicable of: (1) the date of delivery
of the Equipment to Lessee; (2) in the case of Equipment which is the subject of
a sale and leaseback between Lessor and Lessee, the date upon which Lessor
purchases such Equipment from Lessee; or (3) in the case of Equipment requiring
installation, the date of installation of the Equipment. If the Acceptance Date
is other than the first day of a calendar month, then the Commencement Date of
the Minimum Lease Term set forth in any Schedule shall be the first day of the
calendar month following the month which includes the Acceptance Date and Lessee
shall pay to Lessor, in addition to all other sums due hereunder, an amount
equal to one-thirtieth of the amount of the average monthly rental payment due
or to become due hereunder multiplied by the number of days from and including
the Acceptance Date to the Commencement Date of the Minimum Lease Term set forth
in the Schedule. Lessee agrees to pay the total rental for the entire term
hereof, which shall be the total amount of all rental payments set forth in the
Schedule, plus such additional amounts as may become due hereunder or pursuant
to any written modification hereof or additional written agreement hereto.
Except as otherwise specified in the Schedule, rental payments hereunder shall
be monthly and shall be payable in advance on the first day of each month during
the term of this Lease beginning with the Commencement Date of the Minimum Lease
Term and shall be sent to the address of the Lessor specified in this Lease or
in the Schedule or as otherwise directed by the Lessor in writing. Time is of
the essence. Rental payments or any other payments due hereunder not made on or
before the due date shall be overdue and shall be subject to a service charge in
an amount equal to five percent (5%) per month of the overdue payments or the
maximum rate permitted by law whichever is less (the "Service Charge Rate"). If
Lessor shall at any time accept a rental payment after it shall become due, such
acceptance shall not constitute or be construed as a waiver of any or all of
Lessor's rights hereunder, including without limitation those rights of Lessor
set forth in Sections 12 and 13 hereof.
2. TITLE. This is an agreement of lease only. Lessee shall have no right, title
or interest in or to the Equipment leased hereunder, except as to the use
thereof subject to the terms and conditions of this Lease. All of the Equipment
shall remain personal property (whether or not the Equipment may at any time
become attached or affixed to real property). The Equipment is and shall remain
the sole and exclusive property of Lessor or its assignees. All replacements,
substitutions, modifications, repairs, alterations, additions and accessories
incorporated in or affixed to the Equipment (herein collectively called
"additions" and included in the definition of "Equipment"), whether before or
after the Commencement Date, shall become the property of Lessor upon being so
incorporated or affixed and shall be returned to Lessor as provided in Section
3. Upon the request of Lessor, Lessee will affix to the Equipment labels or
other markings supplied by Lessor indicating its ownership of the Equipment and
shall keep the same affixed for the entire term of this
Lease. Lessee agrees to promptly execute and deliver or cause to be executed and
delivered to Lessor and Lessor is hereby authorized to record or file, any
statement and/or instrument requested by Lessor for the purpose of showing
Lessor's interest in the Equipment, including without limitation, financing
statements, security agreements, and waivers with respect to rights in the
Equipment from any owners or mortgagees of any real estate where the Equipment
may be located. In the event that Lessee fails or refuses to execute and/or file
Uniform Commercial Code financing statements or other instruments or recordings
which Lessor or its assignee reasonably deems necessary to perfect or maintain
perfection of Lessor's or its assignee's interests hereunder, Lessee hereby
appoints Lessor or Lessee's limited attorney-in-fact to execute and record all
documents necessary to perfect or maintain the perfection of Lessor's interests
hereunder. Lessee shall pay Lessor for any costs and fees relating to any
filings hereunder including, but not limited to, costs, fees, searches, document
preparation, documentary stamps, privilege taxes and reasonable attorneys' fees.
If any item of Equipment includes computer software, Lessee shall execute and
deliver and shall cause Seller (as hereinafter defined) to deliver all such
documents as are necessary to effectuate assignment of all applicable software
licenses to Lessor. Lessee shall at its expense: (i) indemnify, protect and
defend Lessor's title to the Equipment from and against all persons claiming
against or through Lessee; (ii) at all times keep the Equipment free from any
and all liens, encumbrances, attachments, levies, executions, burdens, charges
or legal process of any and every type whatsoever; (iii) give Lessor immediate
written notice of any breach of this Lease described in clause (ii); and (iv)
indemnify, protect and save Lessor harmless from any loss, cost or expense
(including reasonable attorneys' fees) caused by the Lessee's breach of any of
the provisions of this Lease, whether incurred by Lessor in pursuing its rights
against Lessee or defending against any claims or defenses asserted by or
through Lessee. In the event that this transaction is not deemed to be a lease
governed by Article 2A of the UCC, as security for the full and prompt payment
and performance of all present and future liabilities and obligations of Lessee
to Lessor under the Lease, Lessee grants to Lessor a security interest in all
Lessee's rights and interest in the Equipment and all accessions and
modifications thereto and all proceeds and products of the foregoing.
3. ACCEPTANCE AND RETURN OF EQUIPMENT. Lessor shall, at any time prior to
unconditional acceptance of all Equipment by Lessee, have the right to cancel
this Lease with respect to such Equipment (and if the Equipment or any portion
thereof has not previously been delivered, Lessor may refuse to pay for the
Equipment or any portion thereof or refuse to cause the same to be delivered)
if: (a) the Acceptance Date with respect to any item of Equipment to be leased
pursuant to any Schedule has not occurred within sixty (60) days of the
estimated Acceptance Date set forth in such Schedule or (b) there shall be, in
the reasonable judgment of Lessor, a material adverse change in the financial
condition or credit standing of Lessee or of any guarantor of Lessee's
performance under this Lease since the date of the most recent financial
statements of Lessee or of such guarantor submitted to Lessor. Upon any
cancellation by Lessor pursuant to this Section or the provisions of any
Schedule, Lessee shall forthwith reimburse to Lessor all sums paid by Lessor
with respect to such Equipment plus all costs and expenses of Lessor incurred in
connection with such Equipment and any interest or rentals due hereunder in
connection with such Equipment and shall pay to Lessor all other sums then due
hereunder, whereupon if Lessee is not in then in default and has full performed
all of its obligations hereunder, Lessor will, upon request of Lessee, transfer
to Lessee without warranty or recourse any rights that Lessor may then have with
respect to such Equipment. Lessee agrees to promptly execute and deliver to
Lessor (in no event later than 15 days after the Acceptance Date) a confirmation
by Lessee or unconditional acceptance of the Equipment in the form supplied by
Lessor (the "Equipment Acceptance"). Lessee agrees, before execution of the
aforesaid Equipment Acceptance, to inform Lessor in writing of any defects in
the Equipment, or in the installation thereof, which have come to the attention
of Lessee or its agents and which might give rise to all claim by Lessee against
the Seller or any other person. If Lessee fails to give notice to Lessor of any
such defects or fails to deliver to Lessor the Equipment Acceptance as provided
herein, it shall be deemed an acknowledgment by Lessee (for purposes of this
Lease only) that no such defects in the Equipment or its installation exist and
it shall be conclusively presumed, solely as between Lessor and its assignees
and Lessee, that such Equipment has been unconditionally accepted by Lessee for
lease hereunder. Except as otherwise provided in any Schedule, Lessee shall
provide Lessor ninety (90) days prior written notice by registered or certified
mail of its intention to return the Equipment upon expiration of the Minimum
Lease Term. Upon expiration or the cancellation or termination of the Lease with
respect to any Equipment, Lessee shall, at its own expense, assemble, crate,
insure and deliver all of the
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Equipment and all of the service records and all software and software
documentation subject to this Lease and any Schedules hereto to Lessor in the
same good condition and repair as when received, reasonable wear and tear
resulting only from proper use thereof excepted, to such reasonable destination
within the continental United States as Lessor shall designate. Lessee shall,
immediately prior to such return of each item of Equipment, provide to Lessor a
letter from the manufacturer of the Equipment or another service organization
reasonably acceptable to Lessor certifying that said item is in good working
order, reasonable wear and tear resulting only from proper use thereof excepted,
that such item is eligible for a maintenance agreement by such manufacturer and
all software is included thereon. If any computer software requires relicensing
when removed from Lessee's premises, Lessee shall bear all costs of such
relicensing. If Lessee fails for any reason to provide the notice set forth
above or to re-deliver the Equipment back to Lessor in accordance with the terms
set forth above, Lessee shall pay to Lessor, at Lessor's election, an amount
equal to the highest monthly payment set forth in the Schedule for a period of
not less than three (3) months ("Holdover Period") and at the end of such
Holdover Period, Lessee shall return the Equipment to Lessor as provided herein.
If Lessee fails or refuses to return the Equipment as provided herein at the end
of any Holdover Period, the term of such schedule shall be deemed to have been
automatically renewed for successive Holdover Periods until Lessee returns the
Equipment in accordance with the terms set forth above and during which time,
Lessee shall pay to Lessor, at Lessor's option, an amount equal to one hundred
percent (100%) of the highest monthly payment set forth in the Schedule or the
highest rate permitted by law, whichever is less, for each month or portion
thereof, until Lessee returns the Equipment to Lessor.
4. DISCLAIMER OF WARRANTIES. LESSEE HAS EXCLUSIVELY SELECTED AND CHOSEN THE
TYPE, DESIGN, CONFIGURATION, SPECIFICATION AND QUALITY OF THE EQUIPMENT HEREIN
LEASED AND THE VENDOR, DEALER, SELLER, MANUFACTURER OR SUPPLIER THEREOF (HEREIN
COLLECTIVELY CALLED "SELLER"), AS SET FORTH IN THE SCHEDULES. LESSOR MAKES NO
REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS, ADAPTABILITY, AND IMPLIED WARRANTY OF QUIET
ENJOYMENT OR NON-INTERFERENCE OR SUITABILITY FOR ANY PARTICULAR PURPOSE, AND,
LESSEE LEASES, HIRES AND RENTS THE EQUIPMENT "AS IS." Lessee understands and
agrees that neither Seller, nor any agent of Seller, is an agent of Lessor or is
in any manner authorized to waive or alter any term or condition of this Lease.
Lessor shall not be liable for any loss or damage suffered by Lessee or by any
other person or entity, direct or indirect or consequential, including, but not
limited to, business interruption and injury to persons or property, resulting
from non-delivery or late delivery, installation, failure or faulty operation,
condition, suitability or use of the Equipment leased by Lessee hereunder, or
for any failure of any representations, warranties or covenants made by the
Seller. Any claims of Lessee shall not be made against Lessor but shall be made,
if at all, solely and exclusively against Seller, or any persons other than the
Lessor. Lessor hereby authorizes Lessee to enforce during the term of this
Lease, in its name, but at Lessee's sole effort and expense, all warranties,
agreements or representations, if any, which may have been made by Seller to
Lessor or to Lessee, and Lessor hereby assigns to Lessee solely for the limited
purpose of making and prosecuting any such claim, all rights which Lessor may
have against Seller for breach of warranty or other representation respecting
the Equipment.
5. CARE, TRANSFER AND USE OF EQUIPMENT. Lessee, at its own expense, shall
maintain the Equipment in good operating condition, repair and appearance in
accordance with Seller's specifications and in compliance with all applicable
laws and regulations and shall protect the Equipment from deterioration except
for reasonable wear and tear resulting only from proper use thereof. When
generally offered, Lessee shall, at its expense, keep a maintenance contract in
full force and effect, throughout the term of this Lease and any Schedule
hereto. The disrepair or inoperability of the Equipment regardless of the cause
thereof shall not relieve Lessee of the obligation to pay rental hereunder.
Lessee shall not make any modification, alteration or addition to the Equipment
(other than normal operating accessories or controls). Lessee will not, and will
not permit anyone other than the authorized field engineering representatives of
Seller or other maintenance organization reasonably acceptable to Lessor to
effect any inspection, adjustment, preventative or remedial maintenance or
repair to the Equipment. LESSEE MAY NOT (a)
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RELOCATE OR OPERATE THE EQUIPMENT AT LOCATIONS OTHER THAN THE PREMISES OF LESSEE
SPECIFIED IN THE APPLICABLE SCHEDULE (THE "PREMISES"), EXCEPT WITH LESSOR'S
PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD IF SUCH OTHER
LOCATION WITHIN THE CONTINENTAL UNITED STATES, OR (b) SELL, CONVEY, TRANSFER,
ENCUMBER, PART WITH POSSESSION OF, OR ASSIGN ANY ITEM OF EQUIPMENT OR ANY OF ITS
RIGHTS HEREUNDER, AND ANY SUCH PURPORTED TRANSACTION SHALL BE NULL AND VOID AND
OF NO FORCE OR EFFECT. In the event of a relocation of the Equipment or any item
thereof to which Lessor consents, all costs (including any additional property
taxes or other taxes and any additional expense of insurance coverage) resulting
from any such relocation, shall be promptly paid by Lessee upon presentation to
Lessee of evidence supporting such cost. Lessor shall have the right during
normal hours upon reasonable notice to Lessee, subject to applicable laws and
regulations, to enter Lessee's Premises in order to inspect, observe, affix
labels or other markings, or to exhibit the Equipment to prospective purchasers
or future lessees thereof, or to otherwise protect Lessor's interest therein.
6. NET LEASE. THIS LEASE AND ANY SCHEDULE HERETO IS A NET LEASE, AND ALL
PAYMENTS HEREUNDER ARE NET TO LESSOR. All taxes, assessments, licenses, and
other charges (including, without limitation personal property taxes an sales,
use and leasing taxes and penalties and interest on such taxes) imposed, levied
or assessed on the ownership, possession, rental or use of the Equipment after
delivery of the Equipment to Lessee and thereafter during the term of this Lease
and any schedule hereto (except for Lessor's federal or state net income taxes)
shall be paid by Lessee when due and before the same shall become delinquent,
whether such taxes are assessed or would ordinarily be assessed against Lessor
or Lessee. To the extent possible under applicable law, for personal property or
advalorem tax return purposes only, Lessee shall include the Equipment on such
returns as may be required, which returns shall be timely filed by it. In any
event, Lessee shall file all tax returns required for itself or Lessor and
Lessor hereby appoints Lessee as its attorney-in-fact for such purpose. In case
of failure by Lessee to so pay said taxes, assessments, licenses or other
charges, Lessor may pay all or any part of such items, in which event the amount
so paid by Lessor including any interest or penalties thereon and reasonable
attorneys' fees incurred by Lessor in pursuing its rights against Lessee or
defending against any claims or defenses asserted by or through Lessee shall be
immediately paid by Lessee to Lessor as additional rental hereunder. Lessee
shall promptly pay all costs, expenses and obligations of every kind and nature
incurred in connection with the use or operation of the Equipment which may
arise or become due during the term of this Lease and any Schedule hereto,
whether or not specifically mentioned herein. In case of failure by Lessee to
comply with any provision of this Lease and any Schedule hereto, Lessor shall
have the right, but not the obligation, to effect such compliance on behalf of
Lessee. In such event, all costs and expenses incurred by Lessor in effecting
such compliance shall be immediately paid by Lessee to Lessor as additional
rental hereunder.
7. INDEMNITY. Lessee shall and does hereby agree to indemnify, defend and hold
Lessor and its assigns harmless from and against any and all taxes described in
Section 6 above, liability, loss, costs, injury, damage, penalties, suits,
judgements, demands, claims, expenses and disbursements (including without
limitation, reasonable attorneys' fees incurred by Lessor in pursuing its rights
against Lessee or defending against any claims or defenses against any claims or
defenses asserted by or through Lessee) of any kind whatsoever, except
consequential damages, arising out of, on account of, or in connection with this
Lease and the Equipment leased hereunder, including, without limitation, its
manufacture, selection, purchase, delivery, rejection, installation, ownership,
possession, leasing, renting, operation, control, use, maintenance and the
return thereof. This indemnity shall survive the Minimum Lease Term or earlier
cancellation or termination of this Lease and any Schedule hereto.
8. INSURANCE. Commencing on the date that risk of loss or damage passes to
Lessor from the Seller and continuing until Lessee has re-delivered possession
of the Equipment to Lessor, Lessee shall, at its own expense, keep the Equipment
(including all additions thereto) insured against all risks of loss or damage
from every and any cause whatsoever in such amounts (but in no event less than
the greater of the replacement value thereof or the amount set forth in the
applicable Casualty Schedule, whichever is higher), with such deductibles and
exclusions as approved by Lessor and in such form as is satisfactory to Lessor.
All such insurance policies shall protect Lessor and Lessor's assignee(s) as
loss payees as their interests may appear. Lessee shall also, at its own
expense, carry public liability insurance, with Lessor and Lessor's assignee(s)
as an additional insured, in such amount with such companies and in such form as
is satisfactory to
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Lessor, with respect to injury to person or property resulting from or based in
any way upon or in any way connected with or relating to the installation, use
or alleged use, or operation of any or all of the Equipment, or its location or
condition. Not less than ten days prior to the Acceptance Date, Lessee shall
deliver to Lessor satisfactory evidence of such insurance and shall further
deliver evidence of renewal of each such policy not less than thirty (30) days
prior to expiration thereof. Each such policy shall contain an endorsement
providing that the insurer will give Lessor not less than thirty (30) days prior
written notice of the effective date of any alteration, change, cancellation, or
modification of such policy or the failure by Lessee to timely pay all required
premiums, costs or charges with respect thereto. Upon Lessor's request, Lessee
shall cause its insurance agent(s) to execute and deliver to Lessor Loss Payable
Clause Endorsement and Additional Insured Endorsement (bodily injury and
property damage liability insurance) forms provided to Lessee by Lessor. In case
of the failure to procure or maintain such insurance, Lessor shall have the
right, but not the obligation, to obtain such insurance and any premium paid by
Lessor shall be immediately due and payable by Lessee to Lessor as additional
rent hereunder. The maintenance of any policy or policies of insurance pursuant
to this Section shall not limit any obligation or liability of Lessee pursuant
to Sections 7 or 9 or any other provision of this Lease and any Schedule
thereto.
9. RISK OF LOSS. Until such time as the Equipment is returned and delivered to
and accepted by Lessor, pursuant to the terms of this Lease and any Schedule
hereto, Lessee hereby assumes and shall bear the entire risk of loss, damage,
theft and destruction of the Equipment, or any portion through, from any cause
whatsoever ("Equipment Loss"). Without limitation of the foregoing, no Equipment
Loss shall relieve Lessee in any way from its obligations hereunder. Lessee
shall promptly notify Lessor in writing of any Equipment Loss. In the event of
any such Equipment Loss, Lessee shall: (a) in the event Lessor determines such
Equipment to be repairable, promptly place, at Lessee's expense, the Equipment
in good repair, condition and working order in accordance with Seller's
specifications and to the satisfaction of Lessor; or (b) in the event of an
actual or constructive total loss of any item of Equipment, at Lessor's option:
(i) promptly replace, at Lessee's expense, the Equipment with like equipment of
the same or a later model with the same additions as the Equipment, and in good
repair, condition and working order in accordance with the Seller's
specifications and to the satisfaction of Lessor; or (ii) immediately pay to
Lessor the amount obtained by multiplying the Actual Equipment Cost as specified
in the applicable Schedule by the percentage contained in the applicable
Casualty Schedule for the date of such Equipment Loss plus, any unpaid rentals
or any amounts due hereunder or, if no Casualty Schedule has been made a part of
any applicable Schedule, an amount equal to the present value of the total
amount of unpaid rentals and all other amounts due and to become due under any
applicable Schedule during the term thereof as of the date of any payment,
discounted at a rate equal to discount rate of the Federal Reserve Bank of
Chicago as of the Commencement Date of the Lease with respect to each applicable
Schedule, plus an additional amount equal to the fair market value of the
Equipment immediately prior to the loss, theft, damage, or destruction, but in
no event shall the amount of such fair market value be less than twenty percent
(20%) of the actual cost of the Equipment. In the event Lessee is required to
repair or replace any such item of Equipment pursuant to Subsections (a) or
(b)(i) of the preceding sentence, the insurance proceeds received by Lessor, if
any, pursuant to Section 8, after the use of such funds to pay any unpaid
amounts then due hereunder, shall be paid to Lessee or, if applicable, to a
third party repairing or replacing the Equipment upon Lessee's furnishing proof
satisfactory to Lessor that such repair or replacement has been completed in a
satisfactory manner. In the event Lessor elects option (b)(ii), Lessee shall be
entitled to a credit against the payment required by said Subsection in an
amount equal to such insurance proceeds actually received by Lessor pursuant to
Section 8 on account of such Equipment, and, upon payment by Lessee to Lessor of
all of the sums required pursuant to Subsection (b)(ii), the applicable Schedule
shall terminate with respect to such item of Equipment and Lessee shall be
entitled to whatever interest Lessor may have in such item "as is, where is" and
"with all faults" in its then condition and location without warranties of any
type whatsoever, express or implied.
10. COVENANTS OF LESSEE. LESSEE AGREES THAT ITS OBLIGATIONS UNDER THIS LEASE AND
ANY SCHEDULE HERETO, INCLUDING WITHOUT LIMITATION, THE OBLIGATION TO PAY RENTAL,
ARE IRREVOCABLE AND ABSOLUTE, SHALL NOT XXXXX FOR ANY REASON WHATSOEVER
(INCLUDING ANY CLAIMS AGAINST LESSOR), AND SHALL CONTINUE IN FULL FORCE AND
EFFECT REGARDLESS OF ANY INABILITY OF LESSEE TO USE THE EQUIPMENT OR ANY PART
THEREOF FOR ANY REASON WHATSOEVER INCLUDING, WITHOUT LIMITATION, WAR, ACT OF
GOD, STORMS, GOVERNMENTAL REGULATIONS, STRIKE OR OTHER LABOR TROUBLES, LOSS,
DAMAGE, DESTRUCTION, DISREPAIR, OBSOLESCENCE,
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FAILURE OF OR DELAY IN DELIVERY OF THE EQUIPMENT, OR FAILURE OF THE EQUIPMENT TO
PROPERLY OPERATE FOR ANY CAUSE. In the event of any alleged claim (including a
claim which would otherwise be in the nature of a set-off) against Lessor,
Lessee shall fully perform and pay its obligations hereunder (including all
rents, without set-off or defense of any kind) and its only exclusive recourse
against Lessor shall be by a separate action. Lessee agrees to furnish promptly
to Lessor the annual financial statements of Lessee (and of any guarantors of
Lessee's performance under this Lease and any Schedule hereto), prepared in
accordance with generally accepted accounting principles and certified by
independent certified public accountants, and such interim financial statements
of Lessee as Lessor may require during the entire term of this Lease and any
Schedule hereto. Lessee, if requested, shall provide at Lessee's expense an
opinion of its counsel acceptable to Lessor affirming the covenants,
representations and warranties of Lessee under this Lease and any Schedule
hereto.
11. REPRESENTATIONS AND WARRANTIES. In order to induce Lessor to enter into this
Lease and any Schedule hereto and to lease the Equipment to Lessee hereunder,
Lessee represents and warrants that: (a) FINANCIAL STATEMENTS. (i) applications,
financial statements, and reports which have been submitted by Lessee and any
Obligors (as hereinafter defined) to Lessor are, and all information hereafter
furnished by Lessee and Obligors to Lessor will be, true and correct in all
material respects as of the date submitted; (ii) as of the date hereof, the date
of any Schedule and any Acceptance Date, there has been no material adverse
change in any matter stated in such applications, financial statements and
reports; and, (iii) none of the foregoing omit or omitted to state any material
fact. (b) ORGANIZATION. Lessee is an organizational entity described on the
signature page hereof and is duly organized, validly existing and is duly
qualified to do business and is in good standing in each state in which the
Equipment will be located. (c) AUTHORITY. Lessee has full power, authority and
right to execute, deliver and perform this Lease and any Schedule hereto, and
the execution, delivery and performance hereof has been authorized by all
necessary action of Lessee. (d) ENFORCEABILITY. This Lease and any Schedule or
other document executed in connection therewith has been duly executed and
delivered by Lessee and any Obligor and constitutes a legal, valid and binding
obligation of Lessee and any Obligor enforceable in accordance with its terms.
(e) CONSENTS. The execution, delivery and performance of this Lease and any
Schedule hereto does not require any approval or consent of any stockholders,
partners or proprietors or of any trustee or holders of any indebtedness or
obligations of Lessee, and will not contravene any law, regulation, judgment or
decree applicable to Lessee, or the certificate of incorporation, partnership
agreement, by-laws or other governing documents of Lessee, or contravene the
provisions of, or constitute a default under, or result in the creation of any
lien upon any property of Lessee under any mortgage, instrument or to her
agreement to which Lessee is a party or by which Lessee or its assets may be
bound or affected. Except as disclosed, no authorization, approval, license,
filing or registration with any court or governmental agency or instrumentality
is necessary in connection with the execution, delivery, performance, validity
and enforceability of this Lease and any Schedule hereto. (f) TITLE. On each
Commencement Date, Lessor shall have good and marketable title to the items of
Equipment which is subject to this Lease and any Schedule hereto on such date,
free and clear of all liens, except the lien of Seller which will be released
upon receipt of payment. Lessee warrants that no party has a security interest
in the Equipment which will not be released on or before payment by Lessor to
Seller of the Equipment and that the Equipment is and shall at all times remain
personal property regardless of how it may be affixed to any real property. (g)
LITIGATION. There is no action, suit, investigation or proceeding by or before
any court, arbitrator, agency or governmental authority pending or threatened
against or affecting Lessee: (i) which involves the Equipment or the
transactions contemplated by this Lease and any Schedule hereto; or (ii) which,
if adversely determined, could have a material adverse effect on the financial
condition, business or operation of Lessee.
12. EVENTS OF DEFAULT. An event of default ("Event of Default") shall occur
hereunder if Lessee or any Obligor ("Obligor" shall include any guarantor or
surety of any obligations of Lessee to Lessor under this Lease and any Schedule
hereto); (i) fails to pay any installment of rent or other payment required
hereunder when due; or (ii) attempts to or does remove from the Premises (except
a relocation with Lessor's consent as provided in Section 5), sell, transfer,
encumber, part with possession of, or sublet any item of the Equipment; or (iii)
shall suffer or have suffered, in the reasonable judgment of Lessor, a material
adverse change in its financial condition since the date of the last financial
statements submitted to Lessor, and as a result thereof Lessor deems itself to
be insecure, or any of the statements or other documents or information
submitted at any time heretofore or hereafter by Lessee or Obligor to
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Lessor has misstated or shall misstate or has failed or shall fail to state a
material fact; or (iv) breaches or shall have breached any representation or
warranty made or given by Lessee or Obligor in this Lease or in any other
document furnished to Lessor in connection herewith, or any such representation
or warranty shall be untrue or, by reason of failure to state a material fact or
otherwise, shall be misleading; or (v) fails to perform or observe any other
covenant, condition or agreement to be performed or observed by it hereunder,
and such failure or breach shall continue unremedied for a period of ten days
after the earlier of (a) the date on which Lessee obtains, or should have
obtained knowledge of such failure or breach, or (b) the date on which notice
thereof shall be given by Lessor to Lessee; or (iv) shall become insolvent or
bankrupt or make an assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver, or a trustee or receiver shall be
appointed for a substantial part of its property without its consent, or
bankruptcy or reorganization or insolvency proceeding shall be instituted by or
against Lessee or Obligor; or (vii) conveys, sells, transfers or assigns
substantially all of Lessee's or Obligor's assets or ceases doing business as a
going concern, or, if a corporation, ceases to be in good standing or files a
statement of intent to dissolve, or abandons any or all of the Equipment; or
(viii) shall be in breach of or default under any lease or other agreement at
any time executed with Lessor or any other lessor or with any lender to Lessee
or Obligor.
13. REMEDIES. Upon the occurrence of an Event of Default (the "Default Date")
set forth in Section 12 and at any time thereafter, Lessor may, in its sole and
absolute discretion, do any one or more of the following: (a) upon notice to
Lessee cancel all or any portion of this Lease and some or all Schedules
executed pursuant thereto; (b) enter Lessee's Premises and without removal of
the Equipment, render the Equipment unusable or, require Lessee to assemble the
Equipment and make it available to Lessor at a place designated by Lessor,
and/or dispose of the Equipment by sale or otherwise (all of which
determinations may be made by Lessor in its sole and absolute discretion)
without any duty to account for such action or inaction or for any proceeds or
profits with respect thereto; (c) declare immediately due and payable all sums
due and to become due hereunder for the full term of the Lease (including any
renewal or purchase obligations which Lessee has contracted to pay); (d) with or
without canceling this Lease, recover from Lessee damages, in an amount equal to
the sum of: (i) all unpaid rent and other amounts that became due and payable
on, or prior to, the Default Date, (ii) the present value of all future rentals
and other amounts describe dint he Lease and not included in (i) above
discounted to the Default Date at a rate equal to the discount rate of the
Federal Reserve Bank of Chicago as of the Commencement Date of the Lease with
respect to each Schedule (which discount rate, Lessee agrees is a commercially
reasonable rate which takes into account the facts and circumstances at the time
such Schedule commenced), (iii) all commercially reasonable costs and expenses
incurred by Lessor in enforcing Lessor's rights under this Lease or defending
against any claims or defenses asserted by or through Lessee, including but not
limited to, costs of repossession, recovery, storage, repair, sale, re-lease and
reasonable attorneys' fees, (iv) the estimated residual value of the Equipment
as of the expiration of the Lease, (v) any indemnity amount payable to Lessor;
and (vi) interest on all of the foregoing from the Default Date until the date
payment is received by Lessor at 2 1/2% in excess of the Prime Rate (or its
equivalent) per annum in effect on the date of such payment at the First
National Bank of Chicago) or the highest rate permitted by law, whichever is
less; (e) exercise any other rights or remedy which may be available to it under
the Uniform Commercial Code or any other applicable law. Lessor reserves the
right, in its sole and absolute discretion, to release or sell any or all of the
Equipment at a public auction or in a private sale, at such time, on such terms
and with such notice as Lessor shall in its sole and absolute discretion deem
reasonable. In such event, without any duty on Lessor's part to effect any such
re-lease or sale of the Equipment, Lessor will credit the present value of any
proceeds from such sale or re-lease actually received and retainable by it (net
of any and all costs or expenses) discounted from the date of Lessor's receipt
thereof to the Default Date at 2 1/2% in excess of the Prime Rate (or its
equivalent) per annum in effect on the date of such payment at the First
National Bank of Chicago, or the highest rate permitted by law, whichever is
less to the amounts due to Lessor from Lessee under the provisions of (c), (d)
and/or (e) above. A cancellation of this Lease shall occur only upon notice by
Lessor and only as to such items of Equipment as Lessor specifically elects to
cancel and this Lease shall continue in full force and effect as to the
remaining items of Equipment, if any. If this Lease and/or any Schedule is
deemed at any time to be one intended as security, Lessee agrees that the
Equipment shall secure, in addition to the indebtedness set forth herein, any
other indebtedness at any time owing by Lessee to Lessor. No remedy referred to
in this Section is intended to be exclusive, but shall be cumulative and in
addition to any other remedy referred to above or otherwise
7
available to Lessor at law or in equity. NO express or implied waiver by Lessor
of any default shall constitute a waiver of any other default by Lessee or a
waiver of any of Lessor's rights.
14. ASSIGNMENT BY LESSOR. LESSOR MAY (WITH OR WITHOUT NOTICE TO LESSEE) SELL,
TRANSFER, ASSIGN OR GRANT A SECURITY INTEREST IN ALL OR ANY PART OF ITS INTEREST
IN THIS LEASE, ANY SCHEDULE, ANY ITEMS OF EQUIPMENT OR ANY AMOUNT PAYABLE
HEREUNDER. In such an event, Lessee shall, upon receipt of notice, acknowledge
any such sale, transfer, assignment or grant of a security interest and shall
pay its obligations hereunder or amounts equal thereto to the respective
transferee, assignee or secured party in the manner specified in any
instructions received from Lessor. Notwithstanding any such sale, transfer,
assignment or grant of a security interest by Lessor and so long as no event of
default shall have occurred hereunder, neither Lessor nor any transferee,
assignee or secured party shall interfere with Lessee's right of use or quiet
enjoyment of the Equipment. In the event of such sale, transfer, assignment or
grant of a security interest in all or any part of this Lease and any Schedule
hereto, or in the Equipment or in sums payable hereunder, as aforesaid, Lessee
agrees to execute such documents as may be reasonably necessary to evidence,
secure and complete such sale, transfer, assignment or grant of a security
interest and to perfect the transferee's, assignee's or secured party's interest
therein, and Lessee further agrees that the rights of any transferee, assignee
or secured party shall not be subject to any defense, set-off or counterclaim
that Lessee may have against Lessor or any other party, including the Seller,
which defenses, set-offs and counterclaims shall be asserted only against such
party, and that any such transferee, assignee or secured party shall have all of
Lessor's rights hereunder, but shall assume none of Lessor's obligations
hereunder. Lessee agrees that Lessor may assign or transfer this Lease or
Lessor's interest in the Equipment even if said assignment or transfer could be
deemed to materially affect the interests of Lessee. Nothing in the preceding
sentence shall affect or impair the provisions of Section 4, Section 10 or any
other provisions of this Lease.
15. AMENDMENTS. This Lease and any Schedule hereto contain the entire agreement
between the parties with respect to the Equipment, this Lease and any Schedule
hereto and there is no agreement or understanding, oral or written, which is not
set forth herein. This Lease and any Schedule hereto may not be altered,
modified, terminated or discharged except by a writing signed by the party
against whom such alteration, modification, termination or discharge is sought.
Lessee's Initials _______
16. LAW. This Lease and any Schedule hereto shall be binding only when accepted
by Lessor at its corporate headquarters in Illinois and shall in all respects be
governed and construed, and the rights and the liabilities of the parties hereto
determined, except for local filing requirements, in accordance with the laws of
the State of Illinois. LESSEE WAIVES TRIAL BY JURY AND SUBMITS TO THE
JURISDICTION OF THE FEDERAL DISTRICT COURTS OF COMPETENT JURISDICTION OR ANY
STATE COURT WITHIN THE STATE OF NEW JERSEY AND WAIVES ANY RIGHT TO ASSERT THAT
ANY ACTION INSTITUTED BY LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR
SHOULD BE TRANSFERRED TO A MORE CONVENIENT FORUM.
17. INVALIDITY. In the event that any provision of this Lease and any Schedule
hereto shall be unenforceable in whole or in part, such provisions shall be
limited to the extent necessary to render the same valid, or shall be exercised
from this Lease or any Schedule hereto, as circumstances may require, and this
Lease and the applicable Schedule shall be construed as if said provision had
been incorporated herein as so limited, or as if said provision had not been
included herein, as the case may be without invalidating any of the remaining
provisions hereof.
18. SECURITY INTEREST. As security for the full and prompt payment and
performance of all present and future liabilities and obligations of Lessee or
Lessor under this Agreement and the Lease, Lessee grants to Lessor a security
interest in all Lessee's rights and interest in the Equipment and all proceeds
and products thereof.
19. MISCELLANEOUS. All notices and demands relating hereto shall be in writing
and mailed by certified mail, return receipt requested, to Lessor or Lessee at
their respective addresses above or shown in the Schedule, or at any other
address designated by notice served in accordance herewith. Notice shall become
effective when deposited in the United States mail, with proper postage prepaid,
addressed to the party intended to be served at the address designated herein.
All obligations of Lessee shall survive the termination or expiration of this
Lease and any Schedule hereto. Should Lessor permit use by Lessee
8
of any Equipment beyond the Minimum Lease Term, or, if applicable, any exercised
extension or renewal term, the lease obligations of Lessee shall continue and
such permissive use shall not be construed as a renewal of the term thereof, or
as a waiver of any right or continuation of any obligation of Lessor hereunder,
and Lessor may take possession of any such Equipment at any time upon demand. If
more than once Lessee is named in this Lease, the liability of each shall be
joint and several. Lessee shall, upon request of Lessor from time to time,
perform all acts and execute and deliver to Lessor all documents which Lessor
deems reasonably necessary to implement this Lease and any Schedule hereto,
including, without limitation, certificates addressed to such persons as Lessor
may direct stating that this Lease and the Schedule hereto is in full force and
effect, that there are no amendments or modifications thereto, that Lessor is
not in default hereof or breach hereunder, setting forth the date to which
rentals due hereunder have been paid, and stating such other matters as Lessor
may request, This Lease and any Schedule hereto shall be binding upon the
parties and their successors, legal representatives and assigns. Lessee's
successors and assigns shall include, without limitation, a receiver,
debtor-in-possession, or trustee of or for Lessee. If any person, firm,
corporation or other entity shall guarantee this Lease and the performance by
Lessee of its obligations hereunder, all of the terms and provisions hereof
shall be duly applicable to such Obligor. Lessee shall, at its expense and upon
Lessor's demand, promptly execute, acknowledge, deliver, file, register and
record any and all further documents and take any and all other action
reasonably requested by Lessor from time to time, for the purpose of fully
effectuating the intent and purposes of each Lease Schedule, and to protect the
interests of Lessor, its successors and assigns. Lessor may file a copy f this
Lease Agreement in lieu of a financing statement.
20. LESSEE'S WAIVERS. To the extent permitted by applicable law, Lessee hereby
waives any and all rights and remedies conferred upon a Lessee by Article 2A of
this Uniform Commercial Code as adopted in any jurisdiction, including but not
limited to Lessee's rights to: (i) cancel this Lease; (ii) repudiate this Lease;
(iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover
damages from Lessor for any breaches of warranty or for any other reason; (vi)
claim a security interest in the Equipment in Lessee's possession or control for
any reason (vii) deduct all or any party of any claimed damages resulting from
Lessor's default, if any, under this Lease; (viii) accept partial delivery of
the Equipment (ix) "cover" by making any purchase or lease of or contract to
purchase or lease Equipment in substitution for those due from Lessor; (x)
recover any general, special, incidental, or consequential damages for any
reason whatsoever; and (xi) specific performance, replevin, detinue,
sequestration, claim, and delivery of the like for ant Equipment identified to
this Lease. To the extent permitted by applicable law, Lessee also hereby waives
any rights now or hereafter conferred by statute or otherwise which may require
Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's
damages as set forth in Paragraph 13 or which may otherwise limit or modify any
of Lessor's rights or remedies under Paragraph 13 or which may otherwise limit
or modify any of Lessor's rights or remedies under Paragraph 13 or which may
otherwise limit or modify any of Lessor's rights or remedies under Paragraph 13.
Any action by Lessee against Lessor for any default by Lessor under this Lease,
including breach of warranty or indemnity, shall be commenced within one (1)
year after any such cause of action accrues.
21. COUNTERPARTS. This Lease may be executed in any number of counterparts, each
of which shall be deemed an original. Each Schedule shall be executed in three
(3) serially numbered counterparts each of which shall be deemed an original but
only counterpart number 1 shall constitute "chattel paper" or "collateral"
within the meaning of the Uniform Commercial Code in any jurisdiction.
22. ADDENDUM. ("X" if applicable) [____] See Addendum (s) attached hereto and
made a part hereof.
9
THE PERSON EXECUTING THIS LEASE FOR AND ON BEHALF OF LESSEE WARRANTS AND
REPRESENTS, WHICH WARRANTY AND REPRESENTATION SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS LEASE, THAT THIS LEASE AND THE EXECUTION HEREOF HAS BEEN
DULY AND VALIDLY AUTHORIZED BY LESSEE, CONSTITUTES A VALID AND BINDING
OBLIGATION OF LESSEE AND THAT HE HAS AUTHORITY TO MAKE SUCH EXECUTION FOR AND ON
BEHALF OF LESSEE.
IN WITNESS WHEREOF, this Lease has been executed by Lessee this 28th day of
April, 1999.
ACCEPTED AT CHICAGO, ILLINOIS
Newcourt Financial USA Inc.
Genaissance Pharmaceuticals, Inc.
(Lessee) (a Delaware Corporation) (Lessor)
By: Xxxxx Xxxxx By: Xxxx X. Avallis
Title: Chief Financial Officer Title: VP Operations
CORPORATE RESOLUTION AND INCUMBENCY CERTIFICATE
The undersigned certifies to Newcourt Financial USA Inc. that the following
resolutions were duly adopted by the Board of Directors of Genaissance
Pharmaceuticals, Inc., a corporation existing under the laws of Delaware, at
a meeting duly held on April 15, 1999 at which meeting a quorum was present
and acting throughout, that the same have not been modified or rescinded and
are not in conflict with any provision of the certificate of incorporation,
by-laws or any agreement of said corporation:
"RESOLVED, that this Corporation is authorized and empowered to borrow
and/or obtain credit from, and/or enter into other financial equipment,
the borrowing of funds, the granting of security interests in property
of every description belonging to this Corporation, and the sale of
property now or hereafter owned by this Corporation and the lease back
of any such property), all such transactions to be on such terms and
conditions as may be mutually agreed from time to time between this
Corporation and Newcourt, and each and any officer of this Corporation
is authorized, in the name and on behalf of this Corporation, to
execute and deliver to Newcourt such leases, promissory notes, chattel
mortgages, security agreements, financing statements, bills of sale
and/or other agreements, instruments and documents in connection with
such transactions, containing such terms and conditions as may be
approved by the officer executing such document, such officer's
execution thereof to be deemed conclusive evidence of such approval and
of such officer's authority to do so; and it is further
RESOLVED, that each and any officer of this Corporation is authorized,
in the name and on behalf of this Corporation, to execute and deliver
to Newcourt such other agreements, instruments and documents and take
such other actions as such officer may deem necessary or advisable to
effectuate and perform the transactions contemplated by the foregoing
resolution, and the Secretary or any Assistant Secretary of this
Corporation is authorized to certify a copy of these resolutions to
Newcourt."
The undersigned further certifies that the persons designated below as officers
of the Corporation have been duly elected to and now hold the offices of this
Corporation set opposite their respective names, and that the following are the
authentic, official signatures of the said respective officers and of the named
signatories who are not corporate officers, to wit:
President Xxxxxxxxx Xxxxx /s/ Xxxxxxxxx Xxxxx
------------------------ ------------------------
Printed Name Signature
Vice President Xxxxx Xxxxx /s/ Xxxxx Xxxxx
------------------------ ------------------------
Printed Name Signature
Treasurer Xxxxx Xxxxx /s/ Xxxxx Xxxxx
------------------------ ------------------------
Printed Name Signature
Secretary Xxxxx Xxxxx /s/ Xxxxx Xxxxx
------------------------ ------------------------
Printed Name Signature
Signed and sealed this 28th day of April, 1999.
(Please affix) /s/ Xxxxx Xxxxx
(CORPORATE SEAL HERE) ------------------------
X Secretary
By: /s/ Xxxxxxxxx Xxxxx
--------------------
Title: President
Schedules to be filed by amendment
