Exhibit 10.7
2/98(R051903)
*LEAS1998*
MASTER LEASE
AGREEMENT
dated as of August 11, 2004
(“Agreement”)
THIS AGREEMENT
is between General Electric
Capital Corporation (together with its successors and assigns,
if any, “Lessor” ) and INFINITY
PHARMACEUTICALS, INC. ( “Lessee” ). Lessor
has an office at 83 Wooster Heights Road, Danbury, CT 06810. Lessee
is a corporation organized and existing under the laws of the state
of Delaware. Lessee’s mailing address and chief place of
business is 780 Memorial Drive, Cambridge, MA 02139. This Agreement
contains the general terms that apply to the leasing of Equipment
from Lessor to Lessee. Additional terms that apply to the Equipment
(term, rent, options, etc.) shall be contained on a schedule (
“Schedule” ).
1. LEASING:
(a) Lessor agrees to lease to
Lessee, and Lessee agrees to lease from Lessor, the equipment and
the property ( “Equipment” ) described in any
Schedule signed by both parties.
(b) Lessor shall purchase Equipment
from the manufacturer or supplier ( “Supplier” )
and lease it to Lessee if on or before the Last Delivery Date
Lessor receives (i) a Schedule for the Equipment,
(ii) evidence of insurance which complies with the
requirements of Section 9, and (iii) such other documents
as Lessor may reasonably request. Each of the documents required
above must be in form and substance reasonably satisfactory to
Lessor. Lessor hereby appoints Lessee its agent for inspection and
acceptance of the Equipment from the Supplier. Once the Schedule is
signed, the Lessee may not cancel the Schedule.
2. TERM, RENT AND
PAYMENT:
(a) The rent payable for the
Equipment and Lessee’s right to use the Equipment shall begin
on the earlier of (i) the date when the Lessee signs the
Schedule and accepts the Equipment or (ii) when Lessee has
accepted the Equipment under a Certificate of Acceptance (
“Lease Commencement Date” ). The term of this
Agreement shall be the period specified in the applicable Schedule.
The word “term” shall include all basic and any renewal
terms.
(b) Lessee shall pay rent to Lessor
at its address stated above, except as otherwise directed by
Lessor. Rent payments shall be in the amount set forth in, and due
as stated in the applicable Schedule. If any Advance Rent (as
stated in the Schedule) is payable, it shall be due when the Lessee
signs the Schedule. Advance Rent shall be applied to the first rent
payment and the balance, if any, to the final rent payment(s) under
such Schedule. In no event shall any Advance Rent or any other rent
payments be refunded to Lessee. If rent is not paid within ten
(10) days of its due date, Lessee agrees to pay a late charge
of five cents ($.05) per dollar on, and in addition to, the amount
of such rent but not exceeding the lawful maximum, if
any.
3. RENT
ADJUSTMENT:
(a) If, solely as a result of
Congressional enactment of any law (including, without limitation,
any modification of, or amendment or addition to, the Internal
Revenue Code of 1986, as amended, ( “Code” )),
the maximum effective corporate income tax rate (exclusive of any
minimum tax rate) for calendar-year taxpayers ( “Effective
Rate” ) is higher than thirty-five percent
(35%) with a cap of 2%, for any year during the lease term,
then Lessor shall have the right to increase such rent payments by
requiring payment of a single additional sum. The additional sum
shall be equal to the product of (i) the Effective Rate
(expressed as a decimal) for such year less .35 (or, in the event
that any adjustment has been made hereunder for any previous year,
the Effective Rate (expressed as a decimal) used in calculating the
next previous adjustment) times (ii) the adjusted Termination
Value (defined below), divided by (iii) the difference between
the new Effective Rate (expressed as a decimal) and one (1). The
adjusted Termination Value shall be the Termination Value
(calculated as of the first rent due in the year for which the
adjustment is being made) minus the Tax Benefits that would be
allowable under Section 168 of the Code (as of the first day
of the year for which such adjustment is being made and all future
years of the lease term). The Termination Values and Tax Benefits
are defined on the Schedule. Lessee shall pay to Lessor the full
amount of the additional rent payment on the later of
(i) receipt of notice or (ii) the first day of the year
for which such adjustment is being made.
(b) Lessee’s obligations under
this Section 3 shall survive any expiration or termination of
this Agreement.
4. TAXES:
(a) If permitted by law, Lessee
shall report and pay promptly all taxes, fees and assessments due,
imposed, assessed or levied against any Equipment (or purchase,
ownership, delivery, leasing, possession, use or operation
thereof), this Agreement (or any rents or receipts hereunder), any
Schedule, Lessor or Lessee by any governmental entity or taxing
authority during or related to the term of this Agreement,
including, without limitation, all license and registration fees,
and all sales, use, personal property, excise, gross receipts,
franchise, stamp or other taxes, imposts, duties and charges,
together with any penalties, fines or interest thereon
(collectively “Taxes” ). Lessee shall have no
liability for Taxes imposed by the United States of America or any
state or political subdivision thereof which are on or measured by
the net income of Lessor except as provided in Sections 3 and
14(c). Lessee shall promptly reimburse Lessor (on an after tax
basis) for any Taxes charged to or assessed against Lessor. Lessee
shall show Lessor as the owner of the Equipment on all tax reports
or returns, and send Lessor a copy of each report or return and
evidence of Lessee’s payment of Taxes upon
request.
(b) Lessee’s obligations, and
Lessor’s rights and privileges, contained in this
Section 4 shall survive the expiration or other termination of
this Agreement.
5. REPORTS:
(a) If any tax or other lien shall
attach to any Equipment, Lessee will notify Lessor in writing,
within ten (10) days after Lessee becomes aware of the tax or
lien. The notice shall include the full particulars of the tax or
lien and the location of such Equipment on the date of the
notice.
(b) Lessee will deliver to Lessor
Lessee’s complete financial statements certified by a
recognized firm of certified public accountants within one hundred
twenty (120) days of the close of each fiscal year of Lessee.
If Lessor requests, Lessee will deliver to Lessor copies of
Lessee’s quarterly financial reports within ninety
(90) days after the close of each of Lessee’s fiscal
quarter. Lessee will deliver to Lessor copies of all Forms 10-K and
10-Q, if any, within thirty (30) days after the dates on which
they are filed with the Securities and Exchange
Commission.
(c) Lessor may inspect any Equipment
during normal business hours after giving Lessee reasonable prior
notice.
(d) If Lessor asks, Lessee will
promptly notify Lessor in writing of the location of any
Equipment.
(e) If any Equipment is lost or
damaged (where the estimated repair costs would exceed the greater
of ten percent (10%) of the original Equipment cost or ten
thousand and 00/100 dollars ($10,000)), or is otherwise involved in
an accident causing personal injury or property damage, Lessee will
promptly and fully report the event to Lessor in
writing.
(f) Lessee will furnish a
certificate of an authorized officer of Lessee stating that he has
reviewed the activities of Lessee and that, to the best of his
knowledge, there exists no default or event which with notice or
lapse of time (or both) would become such a default within thirty
(30) days after any request by Lessor.
(g) Lessee will promptly notify
Lessor of any change in Lessee’s state of incorporation or
organization.
6. DELIVERY, USE AND
OPERATION:
(a) All Equipment shall be shipped
directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment
will be used by Lessee solely in the conduct of its business and in
a manner complying with all applicable laws, regulations and
insurance policies and Lessee shall not discontinue use of the
Equipment.
(c) Lessee will not move any
equipment from the location specified on the Schedule, without the
prior written consent of Lessor.
(d) Lessee will keep the Equipment
free and clear of all liens and encumbrances other than those which
result from acts of Lessor.
(e) Lessor shall not disturb
Lessee’s quiet enjoyment of the Equipment during the term of
the Agreement unless a default has occurred and is continuing under
this Agreement.
7. MAINTENANCE:
(a) Lessee will, at its sole
expense, maintain each unit of Equipment in good operating order
and repair, normal wear and tear excepted. The Lessee shall also
maintain the Equipment in accordance with manufacturer’s
recommendations. Lessee shall make all alterations or modifications
required to comply with any applicable law, rule or regulation
during the term of this Agreement. If Lessor requests, Lessee shall
affix plates, tags or other identifying labels showing ownership
thereof by Lessor. The tags or labels shall be placed in a
prominent position on each unit of Equipment.
(b) Lessee will not attach or
install anything on any Equipment that will impair the originally
intended function or use of such Equipment without the prior
written consent of Lessor. All additions, parts, supplies,
accessories, and equipment (“Additions”)
furnished or attached to any Equipment that are not readily
removable shall become the property of Lessor. All Additions shall
be made only in compliance with applicable law. Lessee will not
attach or install any Equipment to or in any other personal or real
property without the prior written consent of Lessor.
8. STIPULATED LOSS
VALUE: If for any reason
any unit of Equipment becomes worn out, lost, stolen, destroyed,
irreparably damaged or unusable ( “Casualty
Occurrences” ) Lessee shall promptly and fully notify
Lessor in writing. Lessee shall pay Lessor the sum of (i) the
Stipulated Loss Value (see Schedule) of the affected unit
determined as of the rent payment date prior to the Casualty
Occurrence; and (ii) all accrued rent and other amounts which
are then due under this Agreement on the Payment Date (defined
below) for the affected unit. The Payment Date shall be the next
rent payment date after the Casualty Occurrence. Upon Payment of
all sums due hereunder, the term of this lease as to such unit
shall terminate.
9. INSURANCE:
(a) Lessee shall bear the entire
risk of any loss, theft, damage to, or destruction of, any unit of
Equipment from any cause whatsoever from the time the Equipment is
shipped to Lessee.
(b) Lessee agrees, at its own
expense, to keep all Equipment insured for such amounts and against
such hazards as Lessor may reasonably require. All such policies
shall be with companies, and on terms, reasonably satisfactory to
Lessor. The insurance shall include coverage for damage to or loss
of the Equipment, liability for personal injuries, death or
property damage. Lessor shall be named as additional insured with a
loss payable clause in favor of Lessor, as its interest may appear,
irrespective of any breach of warranty or other act or omission of
Lessee. The insurance shall provide for liability coverage in an
amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00)
total liability per occurrence, unless otherwise stated in any
Schedule. The casualty/property damage coverage shall be in an
amount equal to the higher of the Stipulated Loss Value or the full
replacement cost of the Equipment. No insurance shall be subject to
any co-insurance clause. The insurance policies shall provide that
the insurance may not be altered or canceled by the insurer until
after thirty (30) days written notice to Lessor. Lessee agrees
to deliver to Lessor evidence of insurance reasonably satisfactory
to Lessor.
(c) Lessee hereby appoints Lessor as
Lessee’s attorney-in-fact to make proof of loss and claim for
insurance, and to make adjustments with insurers and to receive
payment of and execute or endorse all documents, checks or drafts
in connection with insurance payments. Lessor shall not act as
Lessee’s attorney-in-fact unless Lessee is in default. Lessee
shall pay any reasonable expenses of Lessor in adjusting or
collecting insurance. Lessee will not make adjustments with
insurers except with respect to claims for damage to any unit of
Equipment where the repair costs are less than the lesser of ten
percent (10%) of the original Equipment cost or ten thousand
and 00/100 dollars ($10,000). So long as no Event of Default
exists, proceeds of insurance shall be applied, at the option of
Lessee, to repair or replace the Equipment or to satisfy any
obligation of Lessee to Lessor under this Agreement.
10. RETURN OF
EQUIPMENT:
(a) At the expiration or termination
of this Agreement or any Schedule, Lessee shall perform any testing
and repairs reasonably required to place the units of Equipment in
the same condition and appearance as when received by Lessee
(reasonable wear and tear excepted) and in good working order for
the original intended purpose of the Equipment. If required the
units of Equipment shall be deinstalled, disassembled and crated by
an authorized manufacturer’s representative or such other
service person as is reasonably satisfactory to Lessor. Lessee
shall remove installed markings that are not necessary for the
operation, maintenance or repair of the Equipment. All Equipment
will be cleaned, cosmetically acceptable, and in such condition as
to be immediately installed into use in a similar environment for
which the Equipment was originally intended to be used. All waste
material and fluid must be removed from the Equipment and disposed
of in accordance with then current waste disposal laws. Lessee
shall return the units of Equipment to a location within the
continental United States as Lessor shall direct. Lessee shall
obtain and pay for a policy of transit insurance for the redelivery
period in an amount equal to the replacement value of the
Equipment. The transit insurance must name Lessor as the loss
payee. The Lessee shall pay for all costs to comply with this
section (a).
(b) Until Lessee has fully complied
with the requirements of Section 10(a) above, Lessee’s
rent payment obligation and all other obligations under this
Agreement shall continue from month to month notwithstanding any
expiration or termination of the lease term
(c) Upon Lessor’s reasonable
request Lessee shall provide to Lessor a detailed inventory of all
components of the Equipment including model and serial numbers.
Upon Lessor’s reasonable request Lessee shall also provide an
up-to-date copy of all other documentation pertaining to the
Equipment All service manuals, blue prints, process flow diagrams,
operating manuals, inventory and maintenance records shall be given
to Lessor at least ninety (90) days and not more than one
hundred twenty (120) days prior to lease
termination.
(d) Lessee shall make the Equipment
available for on-site operational inspections by potential
purchasers at least one hundred twenty (120) days prior to and
continuing up to lease termination. Lessor shall provide Lessee
with reasonable notice prior to any inspection. Lessee shall
provide reasonable personnel, power and other requirements
necessary to demonstrate electrical, hydraulic and mechanical
systems for each item of Equipment.
11. DEFAULT AND
REMEDIES:
(a) The following shall constitute
an event of default (“Event of Default”) under this
Agreement and Lessor may in writing declare this Agreement in
default if: (i) Lessee breaches its obligation to pay rent or
any other sum when due and fails to cure the breach within fifteen
(15) days; (ii) Lessee breaches any of its insurance
obligations under Section 9; (iii) Lessee breaches any of
its other obligations and fails to cure that breach within
forty-five (45) days after written notice from Lessor; (iv)
any representation or warranty made by Lessee in connection with
this Agreement shall be false or misleading in any material respect
when made; (v) Lessee or any guarantor or other obligor for
the Lessee’s obligations hereunder
(“Guarantor”) becomes insolvent or ceases to do
business as a going concern; (vi) any Equipment is illegally
used; (vii) if Lessee or any Guarantor is a natural person,
any death or incompetency of Lessee or such Guarantor;
(viii) a petition is filed by or against Lessee date;
(ix) Lessee defaults under any other material obligation for
(A) borrowed money, (B) the deferred purchase price of
property, or (C) payments due under lease agreements;
(x) there is any dissolution, termination of existence,
merger, consolidation or change in controlling ownership of Lessee
or any Guarantor other than stated in Section 19(j) of this
Agreement; or (xi) there is a material adverse change in the
Lessee’s financial condition as determined solely by the
Lessor in its reasonable judgment as reasonably reflected on the
Lessee Balance Sheet or Income Statement). The default declaration
shall apply to all Schedules unless specifically excepted by
Lessor.
(b) After a default, at the request
of Lessor, Lessee shall comply with the provisions of
Section 10(a). Lessee hereby authorizes Lessor to peacefully
enter any premises where any Equipment may be and take possession
of the Equipment. Lessee shall immediately pay to Lessor without
further demand as liquidated damages for loss of a bargain and not
as a penalty, the Stipulated Loss Value of the Equipment
(calculated as of the rent payment date prior to the declaration of
default), and all accrued and unpaid rents and other sums then due
under this Agreement and all Schedules. Upon Default Lessor may
terminate this Agreement as to any or all of the Equipment. A
termination shall occur only upon written notice by Lessor to
Lessee and only as to the units of Equipment specified in any such
notice. Lessor may, but shall not be required to, sell Equipment at
private or public sale, in bulk or in parcels, with or without
notice, and without having the Equipment present at the place of
sale. Lessor may also, but shall not be required to, lease,
otherwise dispose of or keep idle all or part of the Equipment.
Lessor may use Lessee’s premises for a reasonable period of
time for any or all of the purposes stated above without liability
for rent, costs, damages or otherwise. The proceeds of sale, lease
or other disposition, if any, shall be applied: first, to all costs
of repossession, storage, and disposition including without
limitation reasonable attorneys’, appraisers’, and
auctioneers’ fees; second, to discharge the obligations then
in default; third, credit to the Stipulated Loss Value; fourth, to
expenses incurred in paying or settling liens and claims against
the Equipment; and lastly, to Lessee, if there exists any surplus.
Lessee shall remain fully liable for any deficiency.
(c) The foregoing remedies are
cumulative, and any or all thereof may be exercised instead of or
in addition to each other or any remedies at law, in equity, or
under statute. Lessee waives notice of sale or other disposition
(and the time and place thereof), and the manner and place of any
advertising. Lessee shall pay Lessor’s reasonable
attorney’s fees incurred in connection with the enforcement,
assertion, defense or preservation of Lessor’s rights and
remedies under this Agreement, or if prohibited by law, such lesser
sum as may be permitted. Waiver of any default shall not be a
waiver of any other or subsequent default.
(d) Any default under the terms of
this or any other agreement between Lessor and Lessee may be
declared by Lessor a default under this and any such other
agreement.
12. ASSIGNMENT:
Except in accordance with section 19
LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET ANY
EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE
PRIOR WRITTEN CONSENT OF LESSOR which will not be unreasonably
withheld. Lessor may, without the consent of Lessee, assign this
Agreement, any Schedule or the right to enter into a Schedule.
Lessee agrees that if Lessee receives written notice of an
assignment from Lessor, Lessee will pay all accrued but unpaid rent
and all other amounts payable under any assigned Schedule to such
assignee or as instructed by Lessor. Lessee also agrees to confirm
in writing receipt of the notice of assignment as may be reasonably
requested by assignee. Lessee hereby waives and agrees not to
assert against any such assignee any defense, set-off, recoupment
claim or counterclaim which Lessee has or may at any time have
against Lessor for any reason whatsoever. Lessee may assign this
Agreement only in connection with a merger or change in control
event permitted by, or consented to by Lessor under, the terms of
Section 19(j).
13. NET LEASE:
Lessee is unconditionally obligated
to pay the Stipulated Loss Value and other amounts due if the
Equipment is damaged or destroyed, if it is defective or if Lessee
no longer can use it Lessee is not entitled to reduce or set-off
against rent or other amounts due to Lessor or to anyone to whom
Lessor assigns this Agreement or any Schedule whether
Lessee’s claim arises out of this Agreement, any Schedule,
any statement by Lessor, Lessor’s liability or any
manufacturer’s liability, strict liability, negligence or
otherwise.
14. INDEMNIFICATION:
(a) Lessee hereby agrees to
indemnify Lessor, its agents, employees, successors and assigns (on
an after tax basis) from and against any and all losses, damages,
penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature arising out of or relating
to the Equipment or this Agreement, except to the extent the
losses, damages, penalties, injuries, claims, actions, suits or
expenses result from Lessor’s gross negligence or willful
misconduct (“Claims”). This indemnity shall include,
but is not limited to, Lessor’s strict liability in tort and
Claims, arising out of (i) the selection, manufacture,
purchase, acceptance or rejection of Equipment, the ownership of
Equipment during the term of this Agreement, and the delivery,
lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent and
other defects, whether or not discoverable by Lessor or Lessee and
any claim for patent, trademark or copyright infringement or
environmental damage) or (ii) the condition of Equipment sold
or disposed of after use by Lessee, any sublessee or employees of
Lessee. Lessee shall, upon request, defend any actions based on, or
arising out of, any of the foregoing.
(b) Lessee hereby represents,
warrants and covenants that (i) on the Lease Commencement Date
for any unit of Equipment, such unit will qualify for all of the
items of deduction and credit specified in Section C of the
applicable Schedule (“Tax Benefits”) in the hands of
Lessor, and (ii) at no time during the term of this Agreement
will Lessee take or omit to take, nor will it permit any sublessee
or assignee to take or omit to take, any action (whether or not
such act or omission is otherwise permitted by Lessor or by this
Agreement), which will result in the disqualification of any
Equipment for, or recapture of, all or any portion of such Tax
Benefits.
(c) If as a result of a breach of
any material representation, warranty or covenant of the Lessee
contained in this Agreement or any Schedule (i) tax counsel of
Lessor shall determine that Lessor is not entitled to claim on its
Federal income tax return all or any portion of the Tax Benefits
with respect to any Equipment, or (ii) any Tax Benefit claimed
on the Federal income tax return of Lessor is disallowed or
adjusted by the Internal Revenue Service, or (iii) any Tax
Benefit is recalculated or recaptured (any determination,
disallowance, adjustment, recalculation or recapture being a
“Loss”), then Lessee shall pay to Lessor, as an
indemnity and as additional rent, an amount that shall, in the
reasonable opinion of Lessor, cause Lessor’s after-tax
economic yields and cash flows to equal the Net Economic Return
that would have been realized by Lessor if such Loss had not
occurred. Such amount shall be payable upon demand accompanied by a
statement describing in reasonable detail such Loss and the
computation of such amount. The economic yields and cash flows
shall be computed on the same assumptions, including tax rates as
were used by Lessor in originally evaluating the transaction
(“Net Economic Return”). If an adjustment has been made
under Section 3 then the Effective Rate used in the next
preceding adjustment shall be substituted.
(d) All references to Lessor in this
Section 14 include Lessor and the consolidated taxpayer group
of which Lessor is a member. All of Lessor’s rights,
privileges and indemnities contained in this Section 14 shall
survive the expiration or other termination of this Agreement. The
rights, privileges and indemnities contained herein are expressly
made for the benefit of, and shall be enforceable by Lessor, its
successors and assigns.
15. DISCLAIMER:
LESSEE ACKNOWLEDGES THAT IT HAS
SELECTED THE EQUIPMENT WITHOUT ANY ASSISTANCE FROM LESSOR, ITS
AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS NOT MADE, NOR SHALL
BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN,
COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR
WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR
TITLE. All such risks, as between Lessor and Lessee, are to be
borne by Lessee. Without limiting the foregoing, Lessor shall have
no responsibility or liability to Lessee or any other person with
respect to any of the following; (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any
Equipment, any inadequacy thereof, any deficiency or defect (latent
or otherwise) of the Equipment, or any other circumstance in
connection with the Equipment; (ii) the use, operation or
performance of any Equipment or any risks relating to it;
(iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the
delivery, operation, servicing, maintenance, repair, improvement or
replacement of any Equipment. If, and so long as, no default exists
under this Agreement, Lessee shall be, and hereby is, authorized
during the term of this Agreement to assert and enforce whatever
claims and rights Lessor may have against any Supplier of the
Equipment at Lessee’s sole cost and expense, in the name of
and for the account of Lessor and/or Lessee, as their interests may
appear.
16. REPRESENTATIONS AND
WARRANTIES OF LESSEE: Lessee makes each of the following
representations and warranties to Lessor on the date hereof and on
the date of execution of each Schedule.
(a) Lessee has adequate power and
capacity to enter into, and perform under, this Agreement and all
related documents (together, the “Documents”). Lessee
is duly qualified to do business wherever necessary to carry on its
present business and operations, including the jurisdiction(s)
where the Equipment is or is to be located.
(b) The Documents have been duly
authorized, executed and delivered by Lessee and constitute valid,
legal and binding agreements, enforceable in accordance with their
terms, except to the extent that the enforcement of remedies may be
limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or
withholding of objections is required from any governmental
authority or entity with respect to the entry into or performance
by Lessee of the Documents except such as have already been
obtained.
(d) The entry into and performance
by Lessee of the Documents will not: (i) violate any judgment,
order, law or regulation applicable to Lessee or any provision of
Lessee’s Certificate of Incorporation or bylaws; or
(ii) result in any breach of, constitute a default under or
result in the creation of any lien, charge, security interest or
other encumbrance upon any Equipment pursuant to any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or
proceedings pending or threatened in court or before any
commission, board or other administrative agency against or
affecting Lessee, which if decided against Lessee will have a
material adverse effect on the ability of Lessee to fulfill its
obligations under this Agreement
(f) The Equipment accepted under any
Certificate of Acceptance is and will remain tangible personal
property.
(g) Each financial statement
delivered to Lessor has been prepared in accordance with generally
accepted accounting principles consistently applied. S
(h) Lessee’s exact legal name
is as set forth in the first sentence of this Agreement and Lessee
is and will be at all times validly existing and in good standing
under the laws of the State of its incorporation or organization
(specified in the first sentence of this Agreement).
(i) The Equipment will at all times
be used for commercial or business purposes.
(j) Lessee is and will remain in
full compliance with all laws and regulations applicable to it
including, without limitation, (i) ensuring that no person who
owns a controlling interest in or otherwise controls Lessee is or
shall be (Y) listed on the Specially Designated Nationals and
Blocked Person List maintained by the Office of Foreign Assets
Control (“OFAC”), Department of the Treasury, and/or
any other similar lists maintained by OFAC pursuant to any
authorizing statute, Executive Order or regulation or (Z) a
person designated under Section l(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar Executive Orders, and
(ii) compliance with all applicable Bank Secrecy Act
(“BSA”) laws, regulations and government guidance on
BSA compliance and on the prevention and detection of money
laundering violations.
17. EARLY
TERMINATION:
(a) On or after the First
Termination Date (specified in the applicable Schedule), Lessee
may, so long as no default exists hereunder, terminate this
Agreement as to all (but not less than all) of the Equipment on
such Schedule as of a rent payment date (“Termination
Date”). Lessee must give Lessor at least sixty (60) days
prior written notice of the termination.
(b) Lessee shall, and Lessor may,
solicit cash bids for the Equipment on an AS IS, WHERE IS BASIS
without recourse to or warranty from Lessor, express or implied
(“AS IS BASIS”). Prior to the Termination Date, Lessee
shall (i) certify to Lessor any bids received by Lessee and
(ii) pay to Lessor (A) the Termination Value (calculated
as of the rent due on the Termination Date) for the Equipment, and
(B) all accrued rent and other sums due and unpaid as of the
Termination Date.
(c) If all amounts due hereunder
have been paid on the Termination Date, Lessor shall (i) sell
the Equipment on an AS IS BASIS for cash to the highest bidder and
(ii) refund the proceeds of such sale (net of any related
expenses) to Lessee up to the amount of the Termination Value. If
such sale is not consummated, no termination shall occur and Lessor
shall refund the Termination Value (less any expenses incurred by
Lessor) to Lessee.
(d) Notwithstanding the foregoing,
Lessor may elect by written notice, at any time prior to the
Termination Date, not to sell the Equipment In that event, on the
Termination Date Lessee shall (i) return the Equipment (in
accordance with Section 10) and (ii) pay to Lessor all
amounts required under Section 17(b) less the amount of the
highest bid certified by Lessee to Lessor.
18. PURCHASE
OPTION:
(a) Lessee may at lease expiration
purchase all (but not less than all) of the Equipment in any
Schedule on an AS IS BASIS for cash equal to its then Fair Market
Value (plus all applicable sales taxes). Lessee must notify Lessor
of its intent to purchase the Equipment in writing at least sixty
(60) days in advance. If Lessee is in default or if the Lease
has already been terminated Lessee may not purchase the
Equipment.
(b) “Fair Market Value”
shall mean the price that a willing buyer (who is neither a lessee
in possession nor a used equipment dealer) would pay for the
Equipment in an arm’s-length transaction to a willing seller
under no compulsion to sell. In determining the Fair Market Value
the Equipment shall be assumed to be in the condition in which it
is required to be maintained and returned under this Agreement If
the Equipment is installed it shall be valued on an installed
basis. The costs of removal from current location shall not be a
deduction from the value of the Equipment. If Lessor and Lessee are
unable to agree on the Fair Market Value at least
one hundred thirty-five (135) days before
lease expiration, Lessor shall appoint an independent appraiser
(reasonably acceptable to Lessee) to determine Fair Market Value.
The independent appraiser’s determination shall be final,
binding and conclusive. Lessee shall bear all reasonable costs
associated with any such appraisal.
(c) Lessee shall be deemed to have
waived this option unless it provides Lessor with written notice of
its irrevocable election to exercise the same within fifteen
(15) days after Fair Market Value is told to
Lessee.
(a) LESSEE AND LESSOR
UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF
THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED
TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY
RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) The Equipment shall remain
Lessor’s property unless Lessee purchases the Equipment from
Lessor and until such time Lessee shall only have the right to use
the Equipment as a lessee. Any cancellation or termination by
Lessor of this Agreement, any Schedule, supplement or amendment
hereto, or the lease of any Equipment hereunder shall not release
Lessee from any then outstanding obligations to Lessor hereunder.
All Equipment shall at all times remain personal property of Lessor
even though it may be attached to real property. The Equipment
shall not become part of any other property by reason of any
installation in, or attachment to, other real or personal
property.
(c) Lessor’s failure at any
time to require strict performance by Lessee of any of the
provisions hereof shall not waive or diminish Lessor’s right
at any other time to demand strict compliance with this Agreement.
Lessee agrees, upon Lessor’s reasonable request, to execute,
or otherwise authenticate, any document, record or instrument
necessary or expedient for filing, recording or perfecting the
interest of Lessor or to carry out the intent of this Agreement. In
addition, Lessee hereby authorizes Lessor to file a financing
statement and amendments thereto describing the Equipment described
in any and all Schedules now and hereafter executed pursuant hereto
and adding any other collateral described therein and containing
any other information required by the applicable Uniform Commercial
Code. Lessee irrevocably grants to Lessor the power to sign
Lessee’s name and generally to act on behalf of Lessee to
execute and file financing statements and other documents
pertaining to any or all of the Equipment. Lessee hereby ratifies
its prior authorization for Lessor to file financing statements and
amendments thereto describing the Equipment and containing any
other information required by any applicable law (including without
limitation the Uniform Commercial Code) if filed prior to the date
hereof. All notices required to be given hereunder shall be deemed
adequately given if sent by registered or certified mail to the
addressee at its address stated herein, or at such other place as
such addressee may have specified in writing. This Agreement and
any Schedule and Annexes thereto constitute the entire agreement of
the parties with respect to the subject matter hereof. NO VARIATION
OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS
PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES
HERETO.
(d) If Lessee does not comply with
any provision of this Agreement, Lessor shall have the right, but
shall not be obligated, to effect such compliance, in whole or in
part. All reasonable amounts spent and obligations incurred or
assumed by Lessor in effecting such compliance shall constitute
additional rent due to Lessor. Lessee shall pay the additional rent
within five days after the date Lessor sends notice to Lessee
requesting payment. Lessor’s effecting such compliance shall
not be a waiver of Lessee’s default
(e) Any rent or other amount not
paid to Lessor when due shall bear interest, from the due date
until paid, at the lesser of eighteen percent (18%) per annum
or the maximum rate allowed by law. Any provisions in this
Agreement and any Schedule that are in conflict with any statute,
law or applicable rule shall be deemed omitted, modified or altered
to conform thereto. Notwithstanding anything to the contrary
contained in this Agreement or any Schedule, in no event shall this
Agreement or any Schedule require the payment or permit the
collection of amounts in excess of the maximum permitted by
applicable law.
(f) INTENTIONALLY OMITTED
(g) THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT.
(h) Any cancellation or termination
by Lessor, pursuant to the provisions of this Agreement, any
Schedule, supplement or amendment hereto, of the lease of any
“Equipment hereunder, shall not release Lessee from any then
outstanding obligat
