Master Equipment Lease Agreement Dated June 1, 2007
Exhibit 10.39
Master Equipment Lease Agreement
Dated June 1, 2007
Dated June 1, 2007
Lessee:
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ATHENAHEALTH, INC. | Lessor: | CIT TECHNOLOGIES CORPORATION | |||
Street Address:
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000 Xxxxxxx Xxxxxx | Street Address: | 0000 Xxxxxxxx Xxxx | |||
Xxxx/Xxxxx/Xxx:
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Xxxxxxxxx, XX 00000 | City/State/Zip: | Xxxxxxxxxx Xxxxx, XX 00000 |
1. Lease. Lessor leases to Lessee the equipment (‘Equipment’)
described in an executed schedule (‘Schedule’) incorporating this Master
Equipment Lease Agreement (‘Agreement’). Lessor also finances for
Lessee the costs of those software, services, and other nonhardware items
described in this Lease and included in the Lessor’s Basis (‘Soft Cost
Items’). Such lease shall be comprised of the Schedule and this
Agreement, as applicable thereto, and such documents are collectively
referred to as this ‘Lease.’ Each Schedule is an agreement separate and
distinct from this Agreement and any other Schedule. Capitalized terms
used in this Agreement are defined in this Agreement or in the Schedule.
The Schedule governs to the extent of inconsistencies with this Agreement.
2. Purchase
and Delivery of Equipment. Lessee is responsible for
delivery and installation of the Equipment at the Equipment Location.
Lessor will purchase the Equipment from, and pay for Soft Cost Items to,
the seller thereof (‘Seller’), and lease the Equipment to Lessee, only if: no
Event of Default, or event that with notice or the lapse of time or both
would constitute an Event of Default, is continuing; and on or before the
Outside Acceptance Date or, if no Outside Acceptance Date is specified in
this Lease, one month from the date of the Schedule, Lessor receives the
Acceptance Certificate executed by Lessee and this Lease executed by the
parties, and such other documents or assurances as Lessor may reasonably
request.
3. Acceptance. On the day Lessee accepts the Equipment and is
prepared for Lessor to pay for the Soft Cost Items (‘Acceptance Date’), or
promptly thereafter, Lessee will execute a certificate of acceptance
acceptable to Lessor (‘Acceptance Certificate’). By executing the
Acceptance Certificate, in addition to its provisions, Lessee represents and
warrants that: Lessee has selected the Equipment, Soft Cost Items, and
Seller; Lessee has been informed by Lessor or otherwise knows of the
Seller’s identity; and Lessee has irrevocably accepted the Equipment and
authorized Lessor to pay for the Soft Cost Items.
4. Term. The initial term of the lease of an item of Equipment and
financing of a Soft Cost Item (‘Initial Term’) begins on the item’s
Acceptance Date and continues through the Base Term Commencement
Date and then for the Base Term. Any renewal term (‘Renewal Term’)
begins at the end of, as applicable, the Initial Term or any preceding
Renewal Term (the Initial Term and all Renewal Terms currently in effect,
previously in effect, or which are to come into effect as provided in this
Lease or by other written agreement of the parties, collectively, ‘Term’).
5. Rental Payments. Regardless of whether Lessee receives invoices or
notices that any Rental Payments are due, Lessee will pay the Rental
Payments, plus all applicable Taxes, for the Term, at such address as
Lessor may specify in writing (including in any invoice), on the Due Dates.
Lessor will invoice Lessee for Rental Payments, but the sole remedy for
any failure to invoice shall be that no late interest shall accrue under
Section 25 on any Rental Payment until payment has been demanded in
writing (including in any invoice) for at least 30 days. This Lease is a net
lease and is noncancelable during its Term (except as expressly provided in
this Lease). During the Term, Lessee’s obligation to pay Rental
Payments and other amounts under this Lease shall be, except to the
limited extent provided for in Section 23, absolute and unconditional
and not subject to abatement, reduction, offset, recoupment,
crossclaim, counterclaim, or any other defense whatsoever, arising
under this Lease or otherwise, or against Lessor, Assignee, Seller, the
Equipment’s manufacturer (‘Manufacturer’), or any other person.
However, the foregoing does not limit Lessee’s enforcement of rights
against Lessor in a separate action at law.
6. Lessee’s End of Term Options. At the end of the Term, Lessee has
the right, but not the obligation, to exercise one of these options, but only
if Lessee gives irrevocable notice to Lessor unequivocally electing one of
these options (‘Exercise Notice’) and the Exercise Notice is received by Lessor at least 90 days
before the end of the Term:
| (a) | Purchase Option. If no Event of Default is continuing at the time Lessor receives the Exercise Notice or at the end of the Term, Lessee may purchase all of the Equipment in which case: Lessee will, on the last day of the Term, pay Lessor the Fair Market Value of the Equipment determined as of the date of the Exercise Notice, and all applicable Taxes; Lessee will make all other payments required during the remainder of the Term; and, at the end of the Term, this Lease will terminate and Lessee will be entitled to Lessor’s interest in the Equipment. | |
| (b) | Renewal Option. If no Event of Default is continuing at the time Lessor receives the Exercise Notice or at the end of the Term and Lessor determines that no material adverse change in Lessee’s business or financial condition has occurred since the Acceptance Date, Lessee may renew the Term for a Renewal Term of 6 months or more as specified in the Exercise Notice in which case: the Rental Payment will be the Fair Market Value of all of the Equipment for the Renewal Term; the parties will enter into a Lease supplement confirming the applicable Rental Payment and Renewal Term; and all other provisions of this Lease will continue to apply (but the failure of the parties to enter into such a supplement will not condition or affect Lessee’s obligations during the Renewal Term). | |
| (c) | Return Option. Lessee may return all of the Equipment, in which case
Lessee will return the Equipment to Lessor in accordance with Section 16 within 10 days of the last day of the Term. |
If one of the foregoing options is not exercised, the Term will automatically extend for successive
3-month Renewal Terms in which case Lessee will continue to pay Lessor rent at the rate of the
periodic Rental Payment previously in effect (or, if the Rental Payments for the Base Term or
Renewal Term previously in effect were not constant for all whole Rental Periods, at the rate of
the sum of such Rental Payments divided by the number of Rental Periods) (the ‘Previously Effective
Rental Rate’); and all other provisions of this Lease will continue to apply. Lessor may terminate
any such automatic Renewal Term upon at least 10 days’ notice in which case the Term will terminate
on the date specified in such notice, and Lessee will return the Equipment to Lessor in accordance
with Section 16 within 10 days of that date. Lessee’s purchase, renewal, and return options and the
automatic renewal provisions provided for in this section apply at the end of the Initial Term and
all optional or automatic Renewal Terms. If Lessee fails to comply with the terms of any of the
foregoing options elected by it, Lessor may in its absolute discretion elect to terminate the
Exercise Notice in which case the automatic renewal provision set forth above will apply as if no
Exercise Notice were given, or Lessor may proceed as otherwise permitted by this Lease, including
exercising the remedies provided for in this Lease or at law. The foregoing applies following the
noncompliance with any of the foregoing options notwithstanding the execution or entry into of any
Lease supplement, xxxx of sale, purchase agreement, confirmation, or other documentation
memorializing and/or confirming the exercise of the option or the terms of the exercise.
7. Taxes. Lessee will pay Lessor (or pay directly to the applicable taxing authority if
instructed in writing by Lessor) all taxes, fees, and assessments that may be imposed by any
governmental entity or taxing authority on the Rental Payments or the Equipment or Soft Cost
Items, or their purchase (by Lessee or Lessor), ownership, delivery, return, possession,
operation, sale (by Lessor to Lessee), or rental, whether imposed on Lessor or Lessee or any of
their affiliates or the Equipment, any Soft Cost Item, this Agreement, the Schedule, or any related
instrument (‘Taxes’). Taxes include all license and registration fees, environmental fees, and all
sales, use, personal property, and other taxes
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and governmental charges, together with any penalties, fines and interest thereon (except to the
extent resulting from Lessor’s negligence or willful misconduct), that may be imposed during the
Term or Possession Period (as defined in Section 10) or after the Term or Possession Period and
relating to events or conditions occurring or existing during the Term or Possession Period.
Lessee will not be liable for: Taxes imposed on or measured by Lessor’s net income or tax
preference items; state business activity taxes in lieu of a net income tax (e.g., Michigan Single
Business Tax or Washington Business & Occupation Tax); or Lessor’s corporate franchise or net
worth taxes. If Lessee is required by law or administrative practice to make any report or return
with respect to Taxes, Lessee will promptly give Lessor notice and cooperate with Lessor to ensure
that such action is properly made and Lessor’s interests accurately reflected. Lessor has no
obligation to contest or preserve any right to contest Taxes. However, Lessee may contest Taxes in
its own name and at its own expense so long as, in Lessor’s opinion, the contest will not result
in an encumbrance on any Equipment or otherwise jeopardize Lessor’s rights or interests in any
Equipment.
8. Covenants. Lessee will during the Term: (a) maintain the
Equipment in good working order and condition, in accordance with the
Manufacturer’s recommended engineering and maintenance standards,
and, except for personal computers, at the Manufacturer’s current or
minimum engineering change levels; (b) use the Equipment only in
connection with its business operations and for the purposes for which it
was designed and in compliance with all applicable Manufacturer
operating standards; (c) Lessee may remove the Equipment from the
Equipment Location only to another of its business locations within the
continental United States and only if it notifies Lessor of the removal
within 30 days thereafter (however mobile computers such as laptops may
be temporarily removed from the Equipment Location without complying
with the foregoing if they remain domiciled at the Equipment Location);
(d) affix to the Equipment any labels Lessor may supply stating the
Equipment is owned by Lessor; (e) except for personal computers, keep in
effect a prime-shift maintenance contract for the Equipment, if generally
available, with the Manufacturer or another party acceptable to Lessor; (f)
make all alterations or additions to the Equipment that may be required (or
supplied at no cost or under a maintenance agreement) by the
Manufacturer or other maintenance provider or which are otherwise legally
required; (g) make no other alterations or additions to the Equipment
except additions that: do not impair the value or performance of the
Equipment, are readily removable without damage to the Equipment, and
do not result in an encumbrance on the Equipment; (h) comply with all
laws and regulations applicable to or affecting this Lease, the Equipment,
or Lessee, including maintaining all required insurance and obtaining all
governmental permissions necessary for it to so comply or that may be
required of Lessor in so complying, and including occupational safety and
employment laws and laws relating to hazardous materials and the
environment; (i) furnish Lessor with its certified or audited financial
statements (at any time that its current financial statements are not readily
available on the internet through a free governmental website), and Lessee
represents and warrants that all such financial statements or other financial
information will be prepared in accordance with generally accepted
accounting principles and accurately present Lessee’s financial position as
of the dates given; (j) furnish Lessor with resolutions, certifications of the
names, titles, signatures, and authority of those persons executing Lease
documents on behalf of Lessee, and such other information and documents
as Lessor may reasonably request; (k) not permit the Equipment to become
an accession, a fixture, or real property; (1) upon reasonable prior notice
permit Lessor to inspect the Equipment and Lessee’s applicable
maintenance agreements and records at any reasonable time (subject to
Lessee’s usual, reasonable security procedures); (m) promptly notify
Lessor of: any change in Lessee’s name; and any change in the location of
Lessee’s chief executive office; and (n) ensure that neither Lessee nor its
successors or assigns is a tax-exempt entity (as described in the Internal
Revenue Code) at any time during the Term or the five years preceding the
Term.
9. Title to Equipment. The Equipment will remain the personal
property of Lessor even if physically attached to real property. Lessee will
keep the Equipment free of encumbrances (other than this Lease or
encumbrances created by Lessor or Assignee). Before the Acceptance
Date if requested by Lessor, and from time to time within 30 days of any
request by Lessor, Lessee will provide a written waiver of any claim to the Equipment by any
person having an interest in the real property where the Equipment is located. Lessee has no right
or interest in the Equipment except that set forth in this Lease.
10. Risk of Loss. From delivery of the Equipment to a carrier for
shipment to Lessee until the Equipment is returned to and received by
Lessor (‘Possession Period’), Lessee bears the entire risk of whole or
partial loss, theft, destruction or damage to the Equipment from any cause
whatsoever, or requisition of the Equipment by any governmental entity, or
the taking of the Equipment by eminent domain or otherwise (collectively,
‘Loss’). Lessee will give Lessor notice within 10 days of any Loss (‘Loss
Notice’). Except as provided in this section, no Loss will condition,
reduce, or relieve Lessee’s Lease obligations, including its obligation to
pay Rental Payments in full. If any Equipment is damaged but can be
economically repaired, Lessee will immediately place the Equipment in
good working order and condition. Upon the occurrence of any other kind
of Loss, or if Lessee does not place the Equipment in good working order
and condition within 30 days of any economically repairable damage,
Lessee will upon Lessor’s demand pay Lessor the Casualty Value (as
defined in Section 19), calculated by Lessor as of the date of Loss; upon
Lessor’s receipt of the Casualty Value, plus all other amounts that are or
become due under this Lease, this Lease will terminate and Lessee will be
entitled to Lessor’s interest in the Equipment.
11. Insurance. Lessee will at its expense during the Possession Period
maintain: (a) insurance against the loss, theft, or damage to the Equipment
for its full replacement value, naming Lessor as loss payee; and (b) public
liability and third party property damage insurance in the amount of
$1,000,000 or such other amount as may be requested by Lessor, naming
Lessor as an additional insured. Such insurance shall be reasonably
satisfactory to Lessor; shall contain the insurer’s agreement to give Lessor
30 days’ written notice before any cancellation or material change; shall be
payable to Lessor regardless of any act, omission or breach by Lessee; and
shall provide for commercially reasonable deductibles satisfactory to
Lessor. Lessee will provide Lessor with certificates of such insurance
effective for the entire Term. Any insurance proceeds of such insurance
received by Lessor or Assignee in respect of events with respect to which
Lessee has concurrent Lease obligations (including obligations under
Sections 10 or 15) will be applied by Lessor to those obligations.
12. Assignment of Warranties. Lessee is entitled under the Uniform
Commercial Code—Leases (Article 2A) to the promises and warranties
provided to Lessor by Seller or any third party in connection with the
Equipment. Lessor assigns to Lessee, during the Term, so long as no
Event of Default is continuing, any assignable representations, warranties,
and promises made by Seller or Manufacturer or any other third party in
connection with the Equipment, but any claims arising therefrom may only
be pursued by Lessee in its own name. Lessor will reasonably cooperate
with Lessee, at Lessee’s request and expense, in pursuing any such claims
and obtaining for Lessee the benefit of all such rights. Lessee may
communicate with Seller or any third party and receive an accurate and
complete statement of those promises and warranties, including any
disclaimers and limitations thereon or on any remedies.
13. Disclaimers and Limitations. As to Lessor, Lessee leases the
Equipment and finances the Soft Cost Items As-Is, Where-Is, and on a
nonrecourse basis. Whenever Lessee is entitled to Lessor’s interest in any
Equipment, Lessor will assign such Equipment As-Is, Where-Is, except
that Lessor will warrant the absence of any encumbrances by, through, or
under Lessor. Lessor disclaims any other representation or warranty,
including with respect to the design, compliance with specifications,
durability, quality, operation, or condition of the Equipment or Soft
Cost Items, title, the merchantability of the Equipment or Soft Cost
Items, the fitness of the Equipment or Soft Cost Items for particular
purposes, status of this Lease for tax or accounting classification
purposes, or issues regarding patent, trademark, or copyright
infringement or the like. Lessor will not be considered to have made any
statement, representation, warranty, or promise made by Seller, and neither
Seller nor Lessor shall be considered to be an agent of the other. Lessor
will have no liability to Lessee, or its customers, or any other persons, for
damages or specific performance arising out of this Lease or concerning
any Equipment or Soft Cost Items, including direct, indirect, special, or
consequential damages, or damages based on strict or absolute tort
liability. However, Lessor shall remain liable to Lessee, in a separate
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action at law, for direct damages resulting from Lessor’s negligence, willful misconduct, or
breach of Lease. This Lease is intended to be a finance lease as defined in the Uniform Commercial
Code—Leases (Article 2A) and to be governed solely by its terms. This Lease, the parties’
performance of this Lease, and their other actions relating to this Lease are to be considered so
as to give the fullest possible effect to such intent. To the extent permitted by law, Lessee and
Lessor agree that this Lease shall be treated as a finance lease. This section does not affect
Lessee’s rights against persons other than Lessor, including Seller and Manufacturer.
14. Lessee Warranties. Lessee represents and warrants, each time it
executes a Schedule or Acceptance Certificate, that: (a) Lessee is duly
organized and in good standing under applicable law in the jurisdictions of
its organization and domicile and in which Equipment may be located with
full power and authority to enter into this Lease; (b) this Lease is
enforceable against Lessee in accordance with its terms, subject to laws of
general application affecting creditors’ rights generally, and does not
breach or create a default under any instrument or agreement binding on
Lessee; (c) no proceedings exist before any court or administrative agency
that would have a material adverse effect on Lessee, this Lease, or the
Equipment, nor has Lessee been threatened, in writing, with any such
proceedings; (d) the financial statements and other financial information
made available by Lessee have been prepared in accordance with generally
accepted accounting principles and accurately present Lessee’s financial
position as of the dates given; and (e) Lessee’s chief executive office is
located at its address specified in this Lease.
15. Indemnity. Lessee will indemnify Lessor against and hold Lessor
harmless from all liabilities, damages, Taxes, losses (including losses of
tax benefits), penalties, expenses (including legal fees and disbursements
and costs), claims, actions, and suits, whether based on a theory of strict
liability or statutory or regulatory liability of Lessor or otherwise
(collectively, ‘Claims’), directly or indirectly relating to the operation,
selection, manufacture, purchase (by Lessee or Lessor), ownership (for
strict liability in tort or for statutory or regulatory liability), leasing,
possession, maintenance, delivery, return, or sale (by Lessor to Lessee) of
the Equipment, or the selection, licensing, provision, return or
relinquishment, obtaining, use, creation, or ownership of Soft Cost Items,
including Claims relating to: (a) the condition of any Equipment arising or
existing during the Possession Period, including undiscoverable defects;
(b) infringement by Lessee or the Equipment or Soft Cost Items of any
patent, trademark, copyright, or other intellectual property rights of any
person; and (c) Lessee’s contest of Taxes or Lessor’s contest of Taxes at
Lessee’s behest. However, Lessee will not be liable to a person (including
Lessor or Assignee) pursuant to the foregoing for any Claims to the extent
resulting from that person’s negligence or willful misconduct or breach of
Lease (but this limitation does not limit Lessee’s liability to any other
person for any Claims).
16. Surrender of Equipment. Whenever Lessee is required or permitted
to return Equipment, Lessee will (or, at Lessor’s request, Lessee will have
the Manufacturer or another party acceptable to Lessor), at Lessee’s
expense, deinstall, inspect, and properly pack the Equipment, and return
the Equipment to Lessor by such common carrier as Lessor may specify, to
a destination within the continental United States of America specified by
Lessor, accompanied by the relocation inventory or similar form completed
by the deinstaller. However, if the return destination is more than 1,000
miles from the original or final Equipment Location (whichever is closer to
the return destination), Lessee’s freight expense in returning the
Equipment shall be limited to the amount that would be incurred if the
return destination were within such a distance. Lessor is not required to
accept any return of Equipment more than one month before the end of the
Term. Any return of Equipment accepted by Lessor releases Lessee of its
leasehold rights and possessory interest in the Equipment, but will not
otherwise constitute a termination of the Term or this Lease or Lessee’s
related obligations. When received by Lessor, the Equipment shall be in
good working order, cosmetically good, and in the same condition as when
shipped to Lessee, reasonable wear and tear excepted, and, except for
personal computers, at the Manufacturer’s minimum acceptable and
current engineering level, and certified by the Manufacturer as eligible for
the Manufacturer’s generally available maintenance contract at then
prevailing rates without the need for Lessor to incur any repair,
rehabilitation, or certification expense (‘Maintenance Certified’). Lessee
will be liable to Lessor for all expenses Lessor incurs or would incur in placing the Equipment in
the condition required by this Lease (whether or not Lessor actually does place the Equipment in
such condition), up to the Fair Market Value of the Equipment. Any additions to the Equipment not
removed before return shall become Lessor’s exclusive property (lien free) or, at Lessor’s option
and Lessee’s expense, removed and returned to Lessee or sold, destroyed, or otherwise disposed of,
all without liability to Lessee, and the Equipment restored to its original condition.
For
personal computers, Lessee shall have the option, when returning Equipment at or after
the end of the Base Term, in lieu of any complete system of original Equipment it would otherwise
be required to return (‘Original Equipment’), of returning a comparable complete system of
substitute equipment, which: is owned by Lessee free of encumbrances; was acquired by Lessee in
the ordinary course of business and not for purposes of being substitute equipment under this
Lease; is of the same model, manufacturer, configuration, and value (as determined by Lessor) as
the Original Equipment; and is in the condition required by this Lease for the return of Original
Equipment (‘Substitute Equipment’). In order to exercise this option, Lessee must in the Exercise
Notice given under Section 6 state that it is returning Substitute Equipment and identify (by
equipment type and serial number) both the Substitute Equipment being returned and the Original
Equipment being substituted for. Upon the return by Lessee of any equipment as Substitute
Equipment under this Lease, Lessee represents and warrants that: Lessor shall have good and
marketable title to the Substitute Equipment, free of encumbrances; and such equipment shall
satisfy the requirements of being Substitute Equipment under this Lease. Upon the return of
Substitute Equipment in compliance with the terms of this paragraph. Lessee shall be entitled to
Lessor’s interest in the Original Equipment.
17. Default. It is an ‘Event of Default’ under this Agreement and all
Schedules if: (a) Lessee fails to pay any Rental Payment or other amount
within 10 days after its due date; (b) Lessee’s failure to observe any
provision of this Lease continues for 30 days after notice; (c) a
representation or warranty or statement made by Lessee in this Lease or in
any other instrument provided by Lessee is incorrect in any material
respect when made; (d) unless expressly permitted by this Lease, Lessee
relocates the Equipment or purports to assign or sublet any interest in the
Equipment or this Lease; (e) the Equipment is levied against, seized, or
attached; (f) Lessee makes an assignment for the benefit of creditors, or
becomes insolvent, or is the subject of a petition or proceeding under any
bankruptcy, reorganization, arrangement of debts, insolvency, or
receivership law, or Lessee seeks to effectuate a bulk sale of its inventory,
equipment, or assets, or any action is taken with a view to Lessee’s
termination or the termination of its business, and, if any of the foregoing
events is not voluntary, it continues for 60 days; or (g) any guarantor of
this Lease dies or is the subject of an event of the types listed in clause (f)
or breaches or defaults under the guaranty.
18. Remedies. If an Event of Default is continuing, or if at any time
previously Lessor has with or without notice to Lessee declared the
occurrence of an Event of Default under this Agreement or any Schedule,
Lessor may in its absolute discretion exercise any one or more of these
remedies: (a) terminate this Lease; (b) take possession of, or render
unusable, any Equipment wherever located, without notice or process of
law (but without breaching the peace and subject to any applicable law),
and without liability for damages occasioned by such action (except for
direct damages to the extent caused by Lessor’s negligence or willful
misconduct), and no such action will constitute a termination of this Lease,
all as though Lessee had failed to surrender the Equipment when required
to do so; (c) require Lessee to return the Equipment to a location
designated by Lessor in accordance with Section 16 and there surrender
control of the Equipment to Lessor pursuant to Section 16 as though the
Term had expired (and such actions will not constitute a termination of this
Lease); (d) declare all or, in one or more declarations, any portion of the
Casualty Value (as defined in Section 19), calculated by Lessor as of the
date of the declaration, due and payable, and: (i) upon Lessor’s full receipt
of the entire Casualty Value, plus all other amounts that are or become due
under this Lease, this Lease will terminate and Lessee will be entitled to
Lessor’s interest in the Equipment, and (ii) upon a declaration of the entire
Casualty Value or Remaining Rental Payments (as defined in Section 19)
being due and payable, any later Rental Payments coming due under this
Lease before the then effective expiration date of the Term shall cease; (e)
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proceed by court action to enforce performance by Lessee of this Lease and/or to recover all
damages and expenses suffered by Lessor as a consequence of any Event of Default; or (f) exercise
any other right or remedy available at law or in equity. Lessee will also reimburse Lessor for all
expenses (including legal fees and disbursements and costs and fees of collection agencies)
incurred by Lessor in enforcing this Lease. Lessor’s sole obligation to mitigate its damages is
that if it repossesses any Equipment pursuant to this section Lessor will lease, sell, or otherwise
dispose of the Equipment in a commercially reasonable manner, with or without notice, and at public
or private sale, and apply the net proceeds (after deducting all expenses of disposition), if any,
to the amounts owed to Lessor; but Lessee will remain liable to Lessor for any deficiency that
remains after any such disposition. With respect to any notice of sale required by law, 10 days’
notice is reasonable notice. The remedies provided in this Lease are in addition to all other
rights or remedies now or hereafter existing under this Lease, or at law or in equity, and may be
enforced concurrently therewith, and from time to time.
19. Casualty Value. Lessor may become entitled to the Casualty Value,
which shall be Lessor’s anticipated benefit of its bargain and profit from this
Lease transaction (to which it will specifically be entitled). The Casualty
Value, as stipulated to herein, includes amounts attributed by the parties to (and
a loss to Lessor upon a Loss or Event of Default is dependent in part upon)
unpaid Rental Payments to become due, the Lessor’s Basis (defined as the
original cost of the Equipment) and Soft Cost Items to Lessor, the unrealized
anticipated value of the Equipment to Lessor, the future observance by Lessee
of its nonrental Lease obligations for the benefit of Lessor for the Term and
then only to the extent that Lessor continues to own the Equipment, and
Lessor’s minimum anticipated proceeds from the future retail sale or lease of
the Equipment to Lessee or another customer. The parties agree that the
Casualty Value will, as liquidated damages and not as a penalty, be the
following (together with related Taxes): Calculated by a separate document
executed at the time of the Schedule which provides a month by month Table
displaying the percentage of the Lessor’s Basis as the amount of the Casualty
Value for the respective month.
20. Assignment By Lessor. Lessor may unqualifiedly assign this Lease
or any Equipment, in whole or in part, including granting or assigning any
encumbrance or other interest in this Lease or any Equipment, without
notice to or consent of Lessee, to any person (‘Assignee’). No assignment
will relieve Lessor of its Lease obligations. Lessee and Lessor
acknowledge that any such assignment will not materially change
Lessee’s or Lessor’s obligations under this Lease. If Lessor notifies
Lessee of an assignment, Lessee will: (a) unless otherwise directed,
absolutely and unconditionally pay all amounts due under this Lease to
Assignee without abatement, reduction, offset, recoupment, crossclaim,
counterclaim, or any other defense whatsoever; (b) not permit this Lease to
be amended or any of its terms waived without the written consent of
Assignee; (c) not require Assignee to perform any obligations of Lessor
other than the warranty of quiet enjoyment provided for in Section 23 and
any other obligations expressly assumed by the Assignee in writing; and
(d) execute such acknowledgments of assignment as may be reasonably
requested by Lessor. Assignee will be entitled to all of Lessor’s rights,
powers, and privileges under this Lease to the extent of the assignment,
including the right to make further assignments. Assignee will not be liable
for Lessor’s negligence or willful misconduct or breach of Lease, nor will
any action or inaction by Lessor affect the obligations of Lessee to
Assignee under this Lease. Lessor may provide copies of this Lease or
related documents or information concerning Lessee and its obligations
thereunder to any Assignee or other person.
21. Assignment By Lessee. Lessee cannot assign any interest in this
Lease or assign or sublet any interest in Equipment without the prior
written consent of the Lessor (not to be unreasonably withheld). No
assignment or sublease by Lessee will discharge or diminish Lessee’s
obligations, and Lessee will continue to be primarily, absolutely,
unconditionally, and independently liable for the full and prompt
observance of all of its obligations under this Lease following any such
assignment or sublease.
22. Counterparts; Financing Statements. This Agreement and any
Schedule may be executed in one or more counterparts. If there is only
one such counterpart, it will be the ‘Original,’ otherwise, one such
counterpart will be marked as and be the ‘Original’ and any other
counterparts will be marked as and be ‘Duplicates.’ No security interest in
this Lease, if it constitutes chattel paper, as defined in the Uniform Commercial Code—Secured
Transactions (Article 9) or analogous legislation in effect in any relevant jurisdiction (‘Secured
Transactions Law’), may be created except through the transfer or possession of the Original of the
Schedule together with a photocopy of this Agreement. Unless Lessee has the right to acquire
Lessor’s interest in the Equipment at the end of the Term for nominal or no consideration, the
parties intend this Lease to be a true lease and not one intended merely for security. However, to
the extent this Lease does creates a security interest, such security interest is a purchase money
security interest (as the terms ‘security interest’ and ‘purchase money security interest’ are used
in the Secured Transactions Law) in the Equipment and any proceeds thereof. Lessee authorizes
Lessor and its agents to file financing statements to give public notice of Lessor’s interest in
the Equipment and any proceeds thereof or any other items Lessor anticipates may be leased by
Lessor to Lessee, whether or not a Schedule therefor has been executed, but Lessor will terminate
or amend any financing statement covering items not leased. at Lessee’s request and Lessor’s
expense.
23. Quiet Enjoyment. So long as no Event of Default is continuing,
Lessor will not interfere with Lessee’s quiet enjoyment of the Equipment.
If a failure by Lessor to materially observe the foregoing warranty of quiet
enjoyment continues for 10 days after notice, Lessee may in its absolute
discretion exercise any one or more of the following remedies (which shall
be its exclusive remedies for such failure): (a) by notice terminate this
Lease (including its obligation to pay Rental Payments) as it relates to such
Equipment; or (b) proceed in a separate court action at law to recover all
direct damages suffered by Lessee resulting from such failure.
24. Fair Market Value. ‘Fair Market Value’ is the price or rent, as
applicable, that would be obtained at arm’s length between informed and
willing parties, neither under compulsion to contract, for the sale or lease
of Equipment assuming the Equipment is: in installed, continued, and
uninterrupted use by the buyer or lessee; in the condition required by this
Lease and, except for personal computers, Maintenance Certified (as
defined in Section 16); and being sold with the software necessary for its
use. Fair Market Value will be determined by Lessor, but if Lessee objects
in writing to Lessor’s determination within 10 days after Lessor
communicates its determination to Lessee’s representative in writing or by
email, then Fair Market Value will at Lessee’s expense be determined by
an independent appraiser selected by Lessor and reasonably satisfactory to
Lessee.
25. Late Performance; Interest Limitations. Amounts due under this
Lease (including Rental Payments and Casualty Value and other payments
demanded or declared to be due or otherwise due or reimbursable) that are
not paid within 10 days of their due date or demand will bear interest,
payable upon demand, at the rate of 1% per month (12% per annum), or
such lesser rate as may be the maximum legal rate, from their due dates.
Whenever any Equipment is required to be returned to Lessor but is not
returned to Lessor by the date required, in addition to all of Lessor’s other
rights and remedies hereunder, Lessee shall pay to Lessor rent for the
period after the end of the Term through the date of Lessor’s receipt of the
Equipment at the Previously Effective Rental Rate (as defined in
Section 6). If any payments required to be made under this Lease would
otherwise be considered the collection of interest in excess of the
maximum amount permitted by applicable law: Lessee will not be
obligated to pay the excess; any excess which may have been collected will
be credited to Lessee’s other obligations to Lessor or refunded; and this
Lease will be considered to have been amended so as to eliminate Lessee’s
obligation to pay such excess.
26. Prorations. Rental Payments for Rental Periods not consisting of a
whole calendar month or a whole calendar quarter or another whole
calendar period, as applicable, will be prorated on the basis of a 360-day
year comprised of four 90-day quarters and twelve 30-day months.
27. Present Value. ‘Present Value’ is the present value of the amount in
question discounted to the date present value is to be determined at two-thirds of the annualized daily prime rate of interest, as described in Federal
Reserve Statistical Release 11.15 — Selected Interest Rates (available, for
example, at xxxx://xxx.xxxxxxxxxxxxxx.xxx/Xxxxxxxx/X00/xxxx.xxx), or any
successor publication of the US Federal Reserve System, for either the last
day of the complete week most recently reported on the date of
determination, or the Base Term Commencement Date, whichever is less,
but if there is no such publication, the lowest prime rate published in The
Page 4 of 0
Xxxx Xxxxxx Journal for either of such dates, compounded with the same periodicity as the Rental
Period.
28. Further Assurances. Lessee will promptly execute such documents
and take such further action as Lessor may from time to time reasonably
request in order to carry out the intent of this Lease or protect or perfect
the rights, interests, and remedies of Lessor reasonably intended to be
created thereunder.
29. Notices. Notices under this Lease shall be in writing and
conclusively deemed to have been received by the receiving party: on the
5th business day after being sent by first class mail, postage prepaid; or on
the business day when sent by confirming fax; or if sent by overnight or
express domestic or international courier, on the next business day or other
business day warranted by the courier for delivery; or when given in
person; and in all such cases notice shall be directed to a party at its
address set forth this Lease, or at such other address as a party may notify
the other from time to time as its address for notice. Notices not sent in
accordance with the foregoing will only be effective if and when the
writing is actually received by the receiving party at its address for notice.
30. Interpretation. Terms of inclusion mean inclusion without
limitation. Time is of the essence. The provisions of this Lease will
survive its termination, and any return or sale of Equipment, and remain in
full force and effect with respect to events or conditions occurring or
existing during (or fairly attributable to) the Term or Possession Period.
Any waiver or failure of a party to require strict observance of this Lease,
will not constitute a waiver of any other breach of the same or any other
provision of the same Lease or any other lease. This Lease will not be
binding upon a party until executed by the party. This Lease cannot be
amended except in an instrument executed by both parties. This Lease
binds and benefits the parties’ successors and permitted assigns.
31. Soft Cost Items. The Equipment may contain software in which the
parties have no ownership or other proprietary rights. Where required by a
software owner or manufacturer or the Seller of other Soft Cost Items,
Lessee will enter into a license or other agreement for the use of the
software and the provision of the Soft Cost Items. Any such agreement
will be separate and distinct from this Lease, and Lessor will have no
rights or obligations thereunder unless otherwise agreed by it in writing. Any rent attributable to
Lessor’s financing of Soft Cost Items will be paid under this Lease as rent subject to the
provisions of Section 5 regardless of Lessee’s dissatisfaction with, or the failure or quality of,
the Soft Cost Items. Lessee acknowledges that all Soft Cost Items are provided directly to Lessee
by Seller, and not by Lessor, regardless of: anything to the contrary in this Lease; the listing of
a Soft Cost Item in this Lease or any purchase agreement, purchase assignment agreement, or other
agreement entered into by Lessor (and any such agreement, to the extent entered into by Lessor and
relating to Soft Cost Items, shall be solely for the benefit of the Lessee); any characterization
by the parties of a Soft Cost Item as ‘Equipment’ in this Lease or any related document.
32. Facsimiles. In any proceeding relating to this Lease, a party may
produce a reliably made facsimile of an instrument rather than the original
and such facsimile will be considered the original. Each party
acknowledges that it has received and reviewed all of the pages of this
Agreement and that none of its provisions are missing or illegible.
33. Applicable Law. This Lease is governed by New Jersey law
without regard to conflicts of law principles. A provision of this Lease
that is or becomes invalid will be ineffective only to the extent of the
invalidity, without affecting the remainder of such provision or this Lease.
The parties consent to the jurisdiction of the local, state, and federal courts
located within New Jersey. The parties waive any objection relating to
improper venue or forum non conveniens to the conduct of any proceeding
in any such courts. The parties irrevocably waive all right to trial by
jury in any proceeding between them relating to this Lease or the
Equipment.
If this Agreement was transmitted to Lessee for signature in electronic format, Lessee
represents and warrants to Lessor that the text originally transmitted has not been altered in any
way. Lessor’s acceptance of this Agreement and all Schedules is based on its reliance on, and
specifically conditioned by, the truth of this representation and warranty. Lessee acknowledges
receipt of a true copy of this Agreement. This Lease constitutes the entire agreement of the
parties relating to the leasing of the Equipment.
| Athenahealth, Inc. | CIT Technologies Corporation (Lessor) | |||||||
(Lessee) |
||||||||
By:
|
/s/ Xxxxxxxx Xxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | |||||
Name/Title:
|
Xxxxxxxx Xxxx, CEO | Name/Title: | Xxxxxxxx X. Xxxxxx, Contracts Supervisor | |||||
Date:
|
6/28/07 | Date: | 7/5/07 | |||||
Page 5 of 5
MELA V (Rev. 1/11/05)
Lessee:
|
ATHENAHEALTH, INC. | Lessor: | CIT Technologies Corporation | |||
Street Address:
|
000 Xxxxxxx Xxxxxx | Street Address: | 0000 Xxxxxxxx Xxxx | |||
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxx, XX 00000 | City/State/Zip: | Xxxxxxxxxx Xxxxx, XX 00000 |
1. Leaselines. This Leaseline Rider is incorporated into the Master
Equipment Lease Agreement referenced above (“Agreement”) and applies to
Schedules expressly subject to this Leaseline Rider or otherwise denominated as
“leaseline” Schedules or including “LL” as part of the Schedule number
(“Leaseline Schedules”). The Leaseline Schedule and the Agreement and this
Leaseline Rider, as applicable thereto, are the “Leaseline.” Terms used in this
Leaseline Rider without definition are defined in the Agreement or Leaseline
Schedule. The Leaseline provides for the streamlined acquisition and leasing of a
variety of items of Equipment the particulars of which are unknown or unspecified
at the time the Leaseline is entered into. Inconsistencies in a Leaseline shall be
resolved with first priority given to the Leaseline Schedule, second priority given to
this Leaseline Rider, and lowest priority to the Agreement.
2. Equipment. The Equipment to be leased under a Leaseline is the equipment
accepted by Lessee under the Leaseline that qualifies for the Hardware Lease Rate
Factor as stated in the Leaseline (“Qualifying Equipment”) and any other equipment
which Lessor may in its sole discretion determine to lease as qualifying for the
Software Lease Rate Factor (“Nonqualifying Equipment”). Lessor may also in its
sole discretion determine to finance the costs of Software, maintenance, services,
taxes, and other items (“Soft Costs”) as qualifying for the Software Lease Rate
Factor in which case the terms of the Lease and related documents shall apply
thereto as if the Soft Cost items were Equipment except that the parties’ obligations
relating to ownership of Equipment shall not apply to Soft Cost items.
Nonqualifying Equipment and Soft Cost items shall only be deemed to be leased
upon Lessor’s written agreement to lease and the inclusion of the cost of such items
in the Lessor’s Basis.
3. Acceptance Invoices. In addition to the Acceptance Certificates permitted by
the Agreement, Lessee may from time to time submit to Lessor, and Lessor will
accept, Acceptance Certificates in the form of Seller invoices which have been
signed and dated with the Acceptance Date by the Lessee and which adequately
describe the Equipment (including serial numbers where applicable) and the
delivery location specified therein shall be the Equipment Location (“Acceptance
Invoices”). If Lessee does not specify the Acceptance Date next to its signature, the
Acceptance Date shall be the date of the Acceptance Invoice. By executing and
delivering an Acceptance Invoice to Lessor, Lessee represents and warrants that it
has selected the Equipment and the Seller specified thereon and has irrevocably
accepted the Equipment described thereon under lease. If there is more than one
Leaseline to which an Acceptance Invoice may serve as an Acceptance Certificate,
the Acceptance Invoice shall be deemed delivered with respect to, and the
Equipment thereon shall be leased under, the Leaseline determined by Lessor.
4. Equipment Acquisition. Lessee will order all Equipment. Lessor will
purchase from Seller, for lease to Lessee, the items shown in the Acceptance
Certificates if: (a) the items specified are Qualifying Equipment, or Nonqualifying
Equipment or Soft Cost items Lessor determines in its sole discretion to lease; and
(b) the invoice is issued in the name of Lessor, or in the name of Lessee and Lessee
and Seller have executed an assignment relating thereto acceptable to Lessor. Lessor
will have no obligation to pay Seller the purchase price for the Equipment before
30 days from the Acceptance Date, or 15 days from the date the conditions
specified above are satisfied, or the date the conditions set forth in Section 2 of
the Agreement are satisfied, whichever is latest. The Outside Acceptance Date of
a Leaseline is the last day of the Acquisition Period.
5. Adjustments. The Lease Rate Factors set forth in a Leaseline assume: (a) all
Acceptance Dates occur within the Acquisition Period; (b) Lessor receives all
Acceptance Certificates within 15 days of the end of the Acquisition Period; and (c)
Soft Costs do not exceed 35% of the total Lessor’s Basis (or such other limiting
percentage as may be specified in the Leaseline, as the case may be, “Maximum
Soft Cost Percentage”). If any of the foregoing assumptions do not hold, Lessor may, in its sole
discretion, either determine not to lease the items in question or to adjust the Lease Rate
Factors in order to maintain an assumed economic yield which Lessor would have required for
similar transactions.
6. Leaseline Maximum. Lessor shall not be obligated to lease any items if after
taking account of all items previously leased or committed to be leased by Lessor
the aggregate cost to Lessor would exceed the Leaseline Maximum. Items in excess
of the Leaseline Maximum shall only be deemed leased under a Leaseline upon
Lessor’s written agreement therefor and the inclusion of their cost in the Lessor’s
Basis. Following the expiration of the Acquisition Period, if the total Lessor’s
Basis under a Leaseline is less than $25,000, then Lessor may in its sole
discretion extend the Acquisition Period (and correspondingly the Base Term
Commencement Date and Outside Acceptance Date) for a period of up to three
months and, except as provided in this section and Section 5, the terms and
conditions of the Leaseline shall remain the same.
7. Leaseline Summary. Following the Acquisition Period, Lessee and Lessor
will enter into a Leaseline Summary summarizing the Equipment, the Lessor’s
Basis, the Acceptance Dates, and the Rental Payment (“Summary Terms”). Upon
its execution, the Leaseline Summary shall be considered an amendment to the
Leaseline, but the failure of the Leaseline Summary to be executed shall not be a
condition to or otherwise affect the obligations of Lessee under the Leaseline. If
within 10 days after Lessor sends a Leaseline Summary to Lessee for execution
Lessee fails to (a) execute the Leaseline Summary, or (b) notify Lessor of any
objection to the Leaseline Summary, then Lessor may execute the Leaseline
Summary as Lessee’s agent, and Lessee shall thereupon be fully bound to the
Summary Terms specified in the Leaseline Summary as so executed.
8. Items Not Leased. With respect to items which Lessor is not required to
lease, and which Lessor determines not to lease (which it may do even if it has
already paid Seller therefor), including, without limitation, with respect to
Nonqualifying Equipment and Soft Costs in general as provided in
Section 2, Soft
Costs exceeding the Maximum Soft Cost Percentage as provided in Section 5; and
items exceeding the Leaseline Maximum as provided in Section 6; (a) if Lessor has
paid Seller any amounts relating to such items, Lessee shall, upon demand,
reimburse Lessor for the amounts so paid, and Lessee shall be entitled to Lessor’s
interest in such items, As-Is, Where-Is, except that Lessor will warrant the
absence of any liens by, through, or under Lessor; and (b) if Lessee has paid any
Rental Payments attributable to such items Lessor shall on demand refund the
amounts so paid to Lessee.
9. Replacement Equipment. Except for Equipment substitutions expressly
permitted by the Agreement, Lessee may only replace the Equipment leased
under a Leaseline Schedule (“Original
Equipment”) with Replacement
Equipment (defined as equipment of identical model, manufacturer, and condition
as the Original Equipment) as a result of a maintenance/warranty swap-out by the
Equipment maintenance provider (“Swap-Out”) in accordance with this section.
Any such replacement shall only be effective if the Replacement Equipment has
been delivered to the Equipment Location, title to the Replacement Equipment has
to the satisfaction of Lessor been conveyed (lien free) to Lessor, and Lessee has
notified Lessor of the replacement (including the serial numbers of the Replacement
Equipment) within 30 days of delivery to the Equipment Location. Thereupon, the
Replacement Equipment shall become Equipment subject to all of the terms and
conditions of this Agreement and Lessee shall be entitled to Lessor’s interest in the
Original Equipment so replaced; otherwise Equipment which is the subject of a
Swap-Out shall be deemed to have been lost and Section 10 of the Agreement shall
apply.
| ATHENAHEALTH, INC. (Lessee) | CIT Technologies Corporation (Lessor) | |||||||
By:
|
/s/ Xxxx Xxxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | |||||
Name/Title:
|
Xxxx Xxxxx, CFO | Name/Title: | Xxxxxxxx X. Xxxxxx, Contracts Supervisor | |||||
Date:
|
6/29/07 | Date: | 7/5/07 | |||||
MELA V (Rev 1/11/05)
Leaseline Schedule No. LL-001
Dated June 1, 2007
Dated June 1, 2007
Lessee:
|
ATHENAHEALTH, INC. | Lessor: | CIT TECHNOLOGIES CORPORATION | |||
Street Address:
|
000 Xxxxxxx Xxxxxx | Street Address: | 0000 Xxxxxxxx Xxxx | |||
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxx, XX 00000 | City/State/Zip: | Xxxxxxxxxx Xxxxx, XX 00000 |
This Schedule incorporates the Master Equipment Lease Agreement dated June 1, 2007 between Lessee
and Lessor. This is a Leaseline Schedule to which the terms and conditions of the Leaseline Rider
apply.
| Acquisition | Leaseline | |||||||
| Period | Maximum | Lease Rate Factors | Lessor’s Basis | Rental Payment | ||||
| Hardware: 0.02958 Software: 0.02958* | ||||||||
| From June 25, 2007 through September 30, 2007 |
$600,000.00 | The Hardware Lease Rate Factor applies only to Tier 1 Manufacturers’ and Approved Manufacturers’ Current (n) Technology System Components. The Software Lease Rate Factor applies to all other items. *See Special Term No. 5 below. |
The aggregate for all items of Lessor’s actual cost of the item. |
The aggregate for all items of each item’s Lessor’s Basis multiplied by its Lease Rate Factor. |
||||
| Due Dates: Rental Payments are due in arrears on the first day of each Rental Period. | Base Term: 36 months. | |||||
| Base Term Commencement Date: October 1, 2007 | ||||||
| Rental Period: Each calendar month during the Term. | ||||||
| Billing Address (if different from Lessee address stated above): | ||||||
Special Terms:
| 1. | In any exercise of the purchase option provided for in Section 6(a) of the Master Equipment Lease Agreement, the purchase price (exclusive of Taxes) shall be limited to 10.75% of Lessor’s Basis. | |
| 2. | As Lessor will be acquiring certain of the Equipment from Lessee, Lessor’s obligations under this Schedule shall be contingent on the execution by Lessee of documentation satisfactory to Lessor providing for the purchase of the Equipment and receipt by Lessor of such other documentation as it may request, including, without limitation, vendor invoices, canceled checks, bills of sale, and other documentation describing the Equipment and the prices paid therefore by Lessee and/or evidencing Lessee’s title thereto. | |
| 3. | It shall be an Event of Default under this Lease pursuant to Section 17 of the Master Equipment Lease Agreement if Lessee breaches or otherwise defaults under the Loan and Security Agreement dated as of August 20, 2002 (the “Silicon Valley Bank Loan Agreement”) between Silicon Valley Bank, a California chartered bank, d/b/a Silicon Valley East, as “Bank,” and Lessee, as “Borrower” (“SVB Loan Default”), and the SVB Loan Default is not cured within any applicable grace period or waived by Silicon Valley Bank. However, no such cure or waiver by Silicon Valley Bank will constitute a cure or waiver of an SVB Loan Default as an Event of Default under this Lease if during the continuance of an SVB Loan Default Lessor has declared the occurrence thereof under the Silicon Valley Bank Loan Agreement as an Event of Default under this Lease. | |
| 4. | Lessee shall maintain EBITDA of not less than the following amounts during the following fiscal periods of Lessee: |
| Period | Minimum EBITDA | |||
The fiscal quarter ending June 30, 2007 |
$ | 1,400,000 | ||
The two-consecutive-fiscal-quarter period ending September 30, 2007 |
$ | 4,000,000 | ||
The
three-consecutive-fiscal-quarter period ending December 31, 2007 |
$ | 7,515,000 | ||
The four-consecutive-fiscal-quarter period ending March 31, 2008 |
$ | 11,030,000 | ||
The four-consecutive-fiscal-quarter period ending June 30, 2008 |
$ | 13,145,000 | ||
The four-consecutive-fiscal-quarter period ending September 30, 2008 |
$ | 14,060,000 | ||
The four-consecutive-fiscal-quarter period ending each Fiscal Quarter thereafter |
$ | 14,060,000 | ||
MELA V (Rev 1/11/05)
| Notwithstanding the foregoing, Lessee’s failure to comply with the foregoing minimum EBITDA requirement in any fiscal period shall not constitute an Event of Default, if Lessee has Unrestricted Cash, as of the end of such fiscal period, of not less than $7,000,000. For purposes of this covenant: “EBITDA” means, on a consolidated basis, Lessee’s earnings before interest, taxes, depreciation and other non-cash amortization expenses, determined in accordance with GAAP; “Unrestricted Cash” means cash in deposit accounts and securities accounts, which is unrestricted in accordance with GAAP; and “Fiscal Quarter” means any period between January 1 and March 31, April 1 and June 30, July 1 and September 30, and October 1 and December 31. | ||
| 5. | The Maximum Soft Cost Percentage shall be 35%. Lessee acknowledges and agrees that if the Soft Costs on this Schedule exceed 25% of the Lessor’s Basis, the excess Soft Costs will be subject to a lease rate factor of 0.032047, however, in no event, shall the total Soft Costs exceed the Maximum Soft Cost Percentage. | |
| 6. | As used in this Schedule, the “Approved Manufacturers” shall also include Lenovo, Opex, Kodak, Canon, Pitney Xxxxx and Ricoh. | |
| 7. | In addition to the Rental Payments to be paid under this Lease for the Base Term, but in lieu of Rental Payments, if any, to be paid under this Lease for any periods before the Base Term Commencement Date, Lessee pay Lessor an amount equal to 1/30th of the total Rental Payment multiplied by 45 days, provided for herein. |
The
“Tier 1 Manufacturers” are IBM, Compaq, Hewlett-Packard, Dell, and Toshiba. The “Approved
Manufacturers” are the Tier 1 Manufacturers and the manufacturers of such products as Lessor may,
in its sole discretion, approve in writing as qualifying for the Hardware Lease Rate Factor
specified in the Leaseline Schedule. “Current (n) Technology Products” are the latest
technological offerings of the Tier 1 manufacturers and the Approved Manufacturers. “System
Components” are processors (including all internal features such as memory, modems, disk drives,
and sound and video cards), display terminals, printers and other external hardware required for
the operation of a system.
Each party acknowledges its receipt and review of this Schedule and that none of its provisions
are missing or illegible. The terms of this Schedule may be different from other Schedules
incorporating the Agreement. The page numbering of this schedule may be exclusive of exhibits, if
any. If this Schedule was transmitted to Lessee for signature in electronic format, Lessee
represents and warrants that the text originally transmitted has not been altered in any way.
Lessor’s acceptance of this Schedule is based on its reliance on, and specifically conditioned by,
the truth of this representation and warranty. This Schedule and the Agreement constitute the
entire agreement of the parties relating to the leasing of the Equipment.
| Athenahealth, Inc. | CIT Technologies Corporation (Lessor) | |||||||
(Lessee) |
||||||||
By:
|
/s/ Xxxxxxxx Xxxx | By: | /s/ Xxxxxxxx X. Xxxxxx | |||||
Name/Title:
|
Xxxxxxxx Xxxx, CEO | Name/Title: | Xxxxxxxx X. Xxxxxx, Contracts Supervisor | |||||
Date:
|
6/28/07 | Date: | 7/5/07 | |||||
