MASTER LEASE AGREEMENT
Exhibit 10.2
Varilease Finance, Inc.
0000 Xxxxx 0000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
xxx.xxxxxxxxx.xxx
tel 000.000.0000
fax 000.000.0000
MASTER LEASE AGREEMENT (“Master Agreement”) made as of August 15, 2011, between VARILEASE FINANCE,
INC., a Michigan corporation, having its chief executive offices at 0000 Xxxxx 0000 Xxxx, Xxxxx
000, Xxxx Xxxx Xxxx, XX 00000 (“Lessor”) and UNILIFE MEDICAL SOLUTIONS, INC., a Delaware
corporation, having its chief executive offices at 000 Xxxxx Xxxx Xxxx, Xxxx, XX 00000 (“Lessee”).
1. LEASE
On the terms and conditions of this Master Agreement, Lessor shall lease to Lessee, and Lessee
shall hire from Lessor, the items of personal
property described in the Schedule(s) (collectively the “Equipment”, and individually an “Item”)
which shall incorporate this Master Agreement.
Subject to Section 16(a)(viii), each Schedule shall constitute a separate and independent lease and
contractual obligation of Lessee. The term
“Lease” shall refer to an individual Schedule that incorporates this Master
Agreement. In the event of a conflict between this Master Agreement and any Schedule, the
language of the Schedule shall prevail. The Lease
shall be effective upon execution by Lessor at its offices.
2. TERM
(a) The term of the Lease may be comprised of a Progress Funding Term, Installation Term and Base
Term. The Progress Funding Term for each
Item, if applicable, shall commence on the date the Authorization for
Progress Payment (“Authorization”) is executed and shall end on the date specified on the
Installation Certificate (the “Installation Date”). The
Installation Term shall commence on the Installation Date, and terminate
on the first day of the calendar quarter following the Installation Date (the
“Base Term Commencement Date”). The Base Term of the Lease shall begin on the Base Term
Commencement Date, and shall, subject to Section 19(b), end on the last day of the last month of
the Base Term. The date of installation for any Item shall be the earlier of either (i) the
Installation Date, or (ii) if Lessee does not, for any reason, sign an Installation Certificate
the date shall be the date Lessee received the Equipment.
(b) In the event Lessee requests, for its benefit, that Lessor advance payments to supplier(s) or
manufacturer(s) of the Equipment (collectively “Supplier(s)”) during the period prior to Lessee’s
delivery of the Installation Certificate and make progress payments to such Supplier(s) or
otherwise reimburse Lessee for deposits, if any, made to such Supplier(s) (all such Lessor payments
and reimbursements collectively referred to as “Progress Payments”), Lessor may, in its sole
discretion, accommodate such requests by Lessee, and make such Progress Payments pursuant
to the terms provided for in this Section 2(b). Lessee shall pay to Lessor a daily pro rata
rental fee (“Rental Fee”) from the date of execution of the Authorization for each Item of
Equipment through the Installation Date calculated by multiplying the Base Lease Rate Factor
specified in the applicable Schedule times the amount of such Progress Payment divided by 30. This
Rental Fee will be billed monthly to Lessee. If all of the Equipment to be included in the
applicable Schedule is not accepted by Lessee within 90 days of the date of Lessor’s execution of
the applicable Schedule (the “Funding Cut-Off Date”), Lessor may, at its sole option, pursue any
one of the following options: (i) commence the term of any Schedule (using the Funding Cut-Off Date
as the Installation Date) based on the portion of the Equipment that has been delivered to Lessee
and paid for by Lessor as of the Funding Cut- Off Date; (ii) extend the Installation Term and
establish a new Funding Cut-Off Date; or (iii) demand that the Lessee pay to Lessor a total
amount equal to all Progress Payments paid to Supplier(s) on behalf of Lessee, plus all pro rata
rentals, taxes, late fees and other payments which are due and owing under this Master Agreement.
Should such demand be made by Lessor, Lessee hereby unconditionally agrees to reimburse said
amounts to Lessor in full within three (3) business days of said demand, and upon receipt of said
payment in full, Lessor shall release Lessee from further payment obligations under the applicable
Schedule. Lessor hereby reserves the right to terminate the Installation Term at any time if
Lessor determines, at Lessor’s reasonable discretion, that there has been a material adverse
change in Lessee’s financial condition, at which time Lessor may elect either (i), (ii), or (iii)
above. Notwithstanding anything to the contrary in the Lease, for purposes of this
Section 2(b)(iii), in the event such demand for reimbursement is made by Lessor and Lessee fails to
reimburse Lessor in accordance with the terms herein,
such failure shall automatically constitute an Event of Default, Lessee
shall waive any right to cure or remedy the default as otherwise provided in Section 16(a), and
Lessor shall be entitled to pursue all of its available remedies under the Lease.
3. RENTAL
(a) The rental amount payable to Lessor by Lessee for the Equipment will be as set forth on the
Schedule (“Base Monthly Rental”). As rent for Equipment, Lessee shall pay Lessor in immediately available funds and in advance on the Base Term
Commencement Date and on the first day
of each calendar month during the Base Term of the Lease the Base
Monthly Rental, and upon receipt of an invoice, an amount equal to
1/30th of the Base Monthly Rental for each Item times the number of days which will elapse from
the date such Item was installed to the Base Term Commencement Date of the Lease. Each remittance
from Lessee to Lessor shall contain information as to the Lease for which payment is made. In the
event of a partial installation of less than all the Equipment prior to the Base Term Commencement
Date, Lessee shall pay pro rata rental for such Items of Equipment upon receipt of invoice for
same.
(b) For any payment of rent or other amount due under a Lease which is past due, interest shall
accrue at the rate of 1.5% per month, from the date such payment was due until payment is received
by Lessor, or if such rate shall exceed the maximum rate of interest allowed by law, then at such
maximum rate. SUBJECT TO THE PROVISIONS OF SECTION 19(b), THIS IS A NON-CANCELABLE, NON-TERMINABLE
LEASE OF EQUIPMENT FOR THE ENTIRE LEASE TERM AS PROVIDED IN EACH SCHEDULE HERETO.
4. TAXES
Lessee shall immediately reimburse Lessor for (or pay directly, but only if instructed by Lessor)
all taxes, fees, and assessments that may be imposed by any taxing authority on the Equipment, on its purchase, ownership, delivery,
possession, operation, rental, return to Lessor or its purchase by Lessee (collectively, Taxes); provided, however, that Lessee shall not be liable for
any such Taxes (whether imposed by the United
States of America or by any other domestic or foreign taxing
authority)
imposed on or measured by Lessor’s net income or tax preference items. Lessee’s obligation
includes, but is not limited to, the obligation to pay all license and registration fees, recycling
fees, and all sales, use, personal property, recordation and other taxes and governmental charges,
together with any penalties, fines and interest thereon, that may be imposed during the Base Term
and any extension or renewal term of the applicable Schedule, including reasonable administrative
costs incurred by Lessor in connection with the set-up, revisions, reporting, filing and payment of
any taxes due hereunder or in connection with the Equipment. Lessor shall report and file any and
all Taxes and shall invoice Lessee for same. Lessee shall promptly reimburse Lessor for all Taxes
and hold Lessor harmless with respect to any non-payment thereof.
5. NET LEASE
The Lease is a net lease, it being the intention of the parties that all costs, expenses and
liabilities associated with the Equipment or its lease shall be
borne by Lessee. Lessee’s agreement to pay all obligations under the
Lease, including but not limited to Base Monthly Rental, is absolute and unconditional and such
agreement is for the benefit of Lessor and its
Assignee(s). Lessee’s obligations shall not be subject to any abatement,
deferment, reduction, setoff, defense, counterclaim or recoupment for any reason whatsoever.
Except as may be otherwise expressly provided in the Lease, it shall not terminate, nor shall the
obligations of Lessee be affected by reason of any defect in or damage to, or any loss or
destruction of, or obsolescence of, the Equipment or any Item from any cause whatsoever, or the
interference with its use by any private person, corporation or governmental authority, or as a
result of any war, riot, insurrection or an Act of God. It is the express intention of Lessor and
Lessee that all rent and other sums payable by Lessee under the Lease shall be, and continue to be,
payable in all events throughout the term of the Lease. The Lease shall be binding upon the
Lessee, its successors and permitted assigns and shall inure to the benefit of Lessor and its
Assignee(s).
6. INSTALLATION, RETURN AND USE OF EQUIPMENT
(a) Upon delivery of the Equipment to Lessee, Lessee
shall pay all transportation, installation, rigging, packing and insurance charges with respect to
the Equipment. In the case of a sale and leaseback transaction, Lessee shall, upon the request of
Lessor, certify the date the Equipment was first put into use. Lessee will provide the required
electric current and a suitable place of installation for the Equipment with all appropriate
facilities as specified by the manufacturer. No cards, tapes, disks, data cells or other
input/output and storage media may be used by Lessee to operate any Item unless it meets the
specifications of the manufacturer. Lessee agrees that it will not install, or permit the
installation of, the Equipment without Lessor’s consent.
(b) Provided that no Event of Default shall have occurred, Lessee shall, at all times during the
term of the Lease, be entitled to unlimited use of the Equipment. Lessee will at all times keep
the Equipment in its sole possession and control. The Equipment shall not be moved from the
location stated in the Schedule without the prior written consent of Lessor and in no event shall
the Equipment be moved outside the continental, contiguous United States. Lessee will comply with
all laws, regulations, and ordinances, and all applicable requirements of the manufacturer of the
Equipment that apply to the physical possession, use, operation, condition, and maintenance of the
Equipment. Lessee agrees to obtain all permits and licenses necessary for the operation of the
Equipment.
(c) Lessee shall not without the prior written consent of Lessor, which consent shall not be
unreasonably withheld, affix or install any accessory, feature, equipment or device to
the Equipment or make any improvement, upgrade, modification, alteration or addition to the
Equipment (any such accessory, feature, equipment, device or improvement, upgrade, modification,
alteration or addition affixed or installed is an “Improvement”). Title to all Improvements
shall, without further act, upon the making, affixing or installation of such Improvement, vest
solely in Lessor, except such Improvements as may be readily removed without causing material
damage to the Equipment and without in any way affecting or impairing the originally intended function, value or use of the
Equipment. Removal of the Improvement shall be at the sole expense of Lessee. Provided the
Equipment is returned to Lessor in the condition required by the Lease, including, but not limited
to coverage under the manufacturer’s standard maintenance contract, title to the Improvement shall
vest in the Lessee upon removal. Any Improvement not removed from the Equipment prior to return
shall at Lessor’s option remain the property of Lessor and shall be certified for maintenance by
the manufacturer, at Lessee’s expense.
Lessee shall notify Lessor in writing no less than sixty (60) days prior to the desired
installation date of the type of Improvement Lessee desires to obtain. Lessor may, at any time
within ten (10) days after receipt of the notice offer to provide the Improvement to Lessee upon
terms and conditions to be mutually agreed upon. Lessee shall notify Lessor of any third party
offers and shall lease the Improvement from Lessor if Lessor meets the terms of the third party
offer.
If Lessee leases an Improvement from Lessor, such lease shall be under a separate Schedule, the
Improvement shall not be placed in service by Lessee prior to acquisition by Lessor, and
Lessee shall execute and deliver any document necessary to vest title to such Improvement in
Lessor.
During the term of the Lease and any renewal term, Lessee shall cause all Improvements to be
maintained, at Lessee’s expense, in accordance with the requirements of Section 7. Unless
otherwise agreed to by Lessor, upon the expiration or earlier termination of the term of the
Lease, any Improvement shall be de-installed and removed from the Equipment by the manufacturer,
at Lessee’s expense. If the Improvement is removed, the Equipment shall be restored to its
unmodified condition and shall be certified for maintenance by the manufacturer, at Lessee’s
expense.
In the event an Improvement is provided to Lessee by a party other than Lessor, Lessee shall cause
such party to execute and deliver to Lessor such documents as shall be required by Lessor to
protect the interests of Lessor and any Assignee in the Equipment, this Master Agreement and any
Schedule.
(d) Subject to Section 19(b), Lessee shall, at the termination of the Lease, at its expense, cause
the Equipment to be decontaminated and remove all proprietary data from any and all memory storage
devices from the Equipment, by the manufacturer or other entity approved by Lessor, in accordance
with manufacturer specifications and all applicable laws, rules and regulations, if any (and
provide to Lessor documentation verifying such decontamination and proprietary data removal),
de-install, pack and return the Equipment to Lessor at such location within the continental United
States as shall be designated by Lessor in the same operating order, repair, condition and
appearance as of the date the Equipment was installed, reasonable wear and tear excepted, with all
current engineering changes prescribed by the manufacturer of the Equipment or a maintenance
contractor approved by Lessor (the “Maintenance Organization”) incorporated in the Equipment.
Until the return of the Equipment to Lessor, Lessee shall be obligated to pay the Base Monthly
Rental and all other sums due under the Lease. Upon redelivery to Lessor, Lessee shall arrange
and pay for such repairs (if any) as are necessary for the manufacturer of the Equipment to accept
the Equipment under a maintenance contract at its then standard rates.
(e) Lessee shall comply with all present and future federal, state, regional and municipal laws,
statutes, ordinances, regulations, rules, judicial and similar requirements of all federal, state,
regional and municipal governmental agencies, bodies or officials or other governmental entities
with legal authority pertaining to the protection of human or wildlife health and safety or the
environment, including, without limitation, any such laws, statutes, ordinances, regulations,
rules, judicial and administrative orders and decrees, permits, licenses, approvals,
authorizations and similar requirements regulating or relating to Hazardous Materials
(defined below) or to the generation, use, storage, release, presence, disposal, transport, or handling of any other substance, oil, oil byproducts,
gas element, or material which has the potential to pollute, contaminate or harm any land,
subsurface area, water source or watercourse, air or other natural resource, hereinafter referred
to as “Environmental Laws”.
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“Hazardous Materials” is defined as any hazardous or toxic substance, material or waste that is or
becomes regulated under any applicable local, state or federal law, including, but not
limited to, those substances, materials, and waste listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or defined by the Environmental
Protection Agency (“EPA”) as “any material that poses a threat to human health and/or the
environment. Typical Hazardous substances are toxic, corrosive, ignitable, explosive, or chemically
reactive”.
7. MAINTENANCE AND REPAIRS
Lessee shall, during the term of the Lease, maintain in full force and
effect a contract with the manufacturer of the Equipment or Maintenance Organization covering at
least prime shift maintenance of the Equipment. Lessee upon request shall furnish Lessor
with a copy of such maintenance contract as amended or supplemented. During the term of the
Lease, Lessee shall, at its expense, keep the Equipment in good working order, repair, appearance
and condition and make all necessary adjustments, repairs and replacements, all of which shall
become the property of Lessor. Lessee shall not use or permit the use of the Equipment for any
purpose for which, the Equipment is not designed or intended.
8. OWNERSHIP, LIENS AND INSPECTIONS
(a) Lessee shall keep the Equipment free from any marking or labeling which might be interpreted as
a claim of ownership by Lessee or any
party other than Lessor and its Assignee(s), and shall affix and maintain tags, decals or plates
furnished by Lessor on the Equipment indicating
ownership and title to the Equipment in Lessor or its Assignee(s). Upon reasonable notice to
Lessee, Lessor or its agents shall have access to the
Equipment and Lessee’s books and records with respect to the Lease and the Equipment at reasonable
times for the purpose of inspection and for
any other purposes contemplated by the Lease, subject to the reasonable security requirements of
Lessee.
(b) Lessee shall execute and deliver such instruments, including Uniform Commercial Code financing
statements, as are required to be filed to evidence the interest of Lessor and its Assignee(s) in
the Equipment or the Lease. Lessee has no interest in the Equipment except as expressly set forth
in the Lease, and that interest is a lease-hold interest. Lessor and Lessee agree, and Lessee
represents for the benefit of Lessor and its Assignee(s) that the Lease is intended to be a
“finance lease” and not a “lease intended as security “ as those terms are used in the Uniform
Commercial Code; and that the Lease is intended to be a “true lease” as the term is commonly used
under the Internal Revenue Code of 1986, as amended.
(c) LESSEE SHALL KEEP THE LEASE, THE EQUIPMENT AND ANY IMPROVEMENTS FREE AND CLEAR OF ALL LIENS AND
ENCUMBRANCES OF WHATSOEVER KIND (EXCEPT THOSE CREATED BY LESSOR) AND LESSEE SHALL NOT ASSIGN THE
LEASE OR ANY OF ITS RIGHTS UNDER THE LEASE OR SUBLEASE ANY OF THE EQUIPMENT OR GRANT ANY RIGHTS TO
THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. No permitted assignment or
sublease shall relieve Lessee of any of its obligations under the Lease and Lessee agrees to pay
all costs and expenses Lessor may incur in connection with such sublease or assignment. Lessee
grants to Lessor the right of first refusal on any sublease or other grant of Lessee’s rights to
the Equipment.
9. DISCLAIMER OF WARRANTIES
(a) LESSOR LEASES THE EQUIPMENT “AS IS,” AND BEING NEITHER THE MANUFACTURER OF THE EQUIPMENT NOR
THE
AGENT OF EITHER THE MANUFACTURER OR SELLER, LESSOR DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WITH RESPECT TO PATENT INFRINGEMENTS OR THE
LIKE. LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY OTHER PERSON FOR ANY CLAIM, LOSS OR DAMAGE
OF ANY KIND OR NATURE WHATSOEVER, NOR SHALL THERE BE ANY ABATEMENT OF RENTAL FOR ANY REASON
INCLUDING CLAIMS ARISING OUT OF OR IN CONNECTION WITH (i) THE DEFICIENCY OR INADEQUACY OF THE
EQUIPMENT FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO LESSOR, (ii) ANY DEFICIENCY OR
DEFECT IN THE EQUIPMENT, (iii) THE USE OR PERFORMANCE OF THE EQUIPMENT, OR (iv) ANY LOSS OF
BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE, WHETHER OR NOT RESULTING FROM ANY OF THE
FOREGOING.
(b) For the term of the Lease, Lessor assigns to Lessee (to the extent possible), and Lessee may
have the benefit of, any and all manufacturer’s warranties, service agreements and patent
indemnities, if any, with respect to the Equipment; provided, however, that Lessee’s sole
remedy for the breach of any such warranty, indemnification or service agreement shall be
against the manufacturer of the Equipment and not against Lessor, nor shall any such breach have
any effect whatsoever on the rights and obligations of Lessor or Lessee with respect to the Lease.
(c) NO REPRESENTATIONS OR WARRANTIES OF THE MANUFACTURER OR DISTRIBUTOR OF THE EQUIPMENT, OR ANY
OTHER THIRD PARTY, CAN BIND LESSOR, AND LESSEE ACKNOWLEDGES AND AGREES THAT LESSOR SHALL HAVE NO
OBLIGATIONS WITH RESPECT TO THE EQUIPMENT EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR
OTHER DOCUMENT EXECUTED BY LESSOR.
10. ASSIGNMENT
(a) Lessee acknowledges and understands that Lessor may assign to a
successor, financing lender and/or purchaser (the “Assignee”), all or any part of the Lessor’s
right, title and interest in and to the Lease and the Equipment and Lessee hereby consents to such
assignment(s). In the event Lessor transfers or assigns, or retransfers or reassigns, to an
Assignee all or part of Lessor’s interest in the Lease, the Equipment or any sums payable under
the Lease (including any extension rentals, purchase sums or new schedule rentals which may become
due at the end of the Base Term), whether as collateral security for loans or advances made or to
be made to Lessor by such Assignee or otherwise, Lessee covenants that, upon receipt of notice of
any such transfer or assignment and instructions from Lessor,
(i) Lessee shall, if so instructed, pay and perform its obligations under the Lease to the
Assignee (or to any other party designated by Assignee), and shall not assign the Lease or any of
its rights under the Lease or permit the Lease to be amended, modified, or terminated
without the prior written consent of Assignee; and
(ii) Lessee’s obligations under the Lease with respect to Assignee shall be absolute and
unconditional and not be subject to any abatement, reduction, recoupment, defense, offset or
counterclaim for any reason, alleged or proven, including, but not limited to, defect in the
Equipment, the condition, design, operation or fitness for use of the Equipment or any loss or
destruction or obsolescence of the Equipment or any part, the prohibition of or other restrictions
against Lessee’s use of the Equipment, the interference with such use by any person or entity, any
failure by Lessor to perform any of its obligations contained in the Lease, any insolvency or
bankruptcy of Lessor, or for any other cause; and
(iii) Lessee shall, upon request of Lessor, submit documents and certificates as may be
reasonably required by Assignee to secure and
complete such transfer or assignment, including but not limited to the documents set forth in
Section 15(c) of this Master Agreement.
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(iv) Lessee shall deliver to Assignee copies of any notices which are required under the Lease
to be sent to Lessor; and
(v) Lessee shall, if requested, restate to Assignee the representations, warranties and
covenants contained in the Lease (upon which Lessee acknowledges Assignee may rely) and shall make
such other representations, warranties and covenants to Assignee as may be reasonably required to
give effect to the assignment.
(b) Lessor shall not make an assignment or transfer to any Assignee who shall not agree that, so
long as Lessee is not in default under the Lease, such Assignee shall take no action to interfere
with Lessee’s quiet enjoyment and use of the Equipment in accordance with the terms of the Lease.
No such assignment or conveyance shall relieve Lessor of its obligations under the Lease and Lessee
agrees it shall not look to any Assignee to perform any of Lessor’s obligations under the Lease.
No such assignment shall increase Lessee’s obligations nor decrease Lessee’s rights hereunder.
11. QUIET ENJOYMENT
Lessor covenants that so long as Lessee is not in default under a Lease,
Lessor shall take no action to interfere with Lessee’s possession and use of the Equipment subject
to and in accordance with the provisions of the Lease.
12. INDEMNIFICATION
Except for the gross negligence or willful misconduct of Lessor or
Assignee, Lessee shall and does agree to indemnify, protect, defend, save and keep harmless Lessor
and its Assignee(s) from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, suits, costs, or expenses of any kind and nature whatsoever,
including but not limited to attorneys fees (including without limitation attorneys fees in
connection with the enforcement of this indemnification) which may be imposed upon, incurred by
or asserted against Lessor or its Assignee(s) in any way relating to or arising out of the
Lease, the manufacture, ownership, lease, possession, use, condition, operation, accident in
connection with the Equipment (including, without limitation, those claims based on latent and
other defects, whether or not discoverable, or claims based on strict liability, or any claim for
patent, trademark or copyright infringement, or claims for any damages to any person or property,
any costs associated with, or any fines caused by violation of any Environmental Laws) or Lessee’s
failure to protect or remove proprietary data from memory storage devices. Lessor’s and its
Assignee’s rights arising from this Section shall survive the expiration or other termination of
the Lease. Nothing in this Section shall limit or waive any right of Lessee to proceed against
the manufacturer of the Equipment.
13. RISK OF LOSS
(a) Lessee assumes and shall bear the entire risk of loss and damage,
whether or not insured against, of the Equipment from any and every cause whatsoever, and damage
caused by the Equipment to the environment, any person or property, as of the date the Equipment is
delivered to Lessee.
(b) In the event of loss or damage of any kind to any Item, Lessee shall use all reasonable efforts
to place the Item in good repair, condition and working order to the reasonable satisfaction of
Lessor within sixty (60) days of such loss or damage, unless the Lessor, in its sole discretion,
determines in writing within twenty (20) days of receiving notice from the Lessee of such damage
that such Item has been irreparably damaged, in which case Lessee shall, within ten (10) days of
the Lessor’s determination of irreparable loss, make its election to either pay Lessor the
Stipulated Loss Value for the irreparably damaged Item or replace the irreparably damaged Item,
all as provided in this Section. The Stipulated Loss Value will start at 110% of the Total
Equipment Cost
listed on each Schedule and decline by 1.25% per month during the Base Term and will not decline
any further after the expiration of the Base Term. To the extent that the Item is damaged but not
irreparably damaged and if Lessee is entitled, pursuant to the insurance coverage, to obtain
proceeds from such insurance for the repair of the Item, Lessee (provided no Event of Default has
occurred under the Lease) may arrange for the disbursement of such proceeds to the manufacturer or
other entity approved by Lessor to perform the repairs to pay the cost of repair. However,
Lessee’s obligation to timely repair the damaged Item is not contingent upon receipt of such
insurance proceeds.
(c) In the event that Lessee elects to pay Lessor the Stipulated Loss Value for the irreparably
damaged Item, Lessee shall (i) pay such amount (computed as of the first day of the month
following the determination of the irreparable damage by the Lessor) to Lessor on the first day of
the month following the election by Lessee as provided in (b) above, (ii) pay all Base Monthly
Rental for the Item up to the date that the Stipulated Loss Value is paid to Lessor; and (iii)
arrange with the applicable insurance company (with the consent of Lessor) for the disposition of
the irreparably damaged Item. If not all the Equipment is irreparably damaged, the Value
for Calculation of Stipulated Loss Value (“Value”) as set forth on the Schedule for the
irreparably damaged Item shall be multiplied by the applicable Stipulated Loss Value percentage to
compute the Stipulated Loss Value for such irreparably damaged Item, and the Base Monthly Rental
for the undamaged Equipment remaining due (after payment of the Stipulated Loss Value for the
irreparably damaged Item) shall be that amount resulting from multiplying the original
Base Monthly Rental by the ratio of the Value of the undamaged Equipment divided by the Value for
all the Equipment prior to the damage.
(d) If Lessee elects to replace the irreparably damaged Item, Lessee shall continue all payments
under the Lease without interruption, as if no such damage, loss or destruction had occurred, and
shall replace such irreparably damaged Item, paying all such costs, associated with the
replacement, and Lessee shall be entitled to insurance proceeds up to the amount expended by
Lessee in effecting the replacement. Lessee shall within twenty (20) days following the date of
determination of irreparable damage by the Lessor, effect the replacement by replacing the
irreparably damaged Item with a “Replacement Item” so that Lessor has good, marketable and
unencumbered title to such Replacement Item. The Replacement Item shall have a fair market value
equal to or greater than the Item replaced, and anticipated to have a fair market value at the
expiration of the Base Term equal to the fair market value that the replaced Item would have had
at the end of the Base Term, and be the same manufacture, model and type and of at least equal
capacity to the Item for which the replacement is being made. Upon delivery, such Replacement
Item shall become subject to all of the terms and conditions of the Lease and, for the avoidance
of doubt, ownership of such Replacement Item shall immediately vest in Lessor free and clear of
all claims, liens and encumbrances. Lessee shall execute all instruments or documents necessary
to effect the foregoing.
(e) For purposes of this Section 13, the term “fair market value” shall mean the price of the
Equipment delivered and installed at Lessee’s location that would be obtained in an arm’s-length
transaction between an informed and willing buyer-lessee under no compulsion to buy or lease and
an informed and willing seller-lessor under no compulsion to sell or lease. If Lessor and Lessee
are unable to agree upon fair market value, such value shall be determined, at Lessee’s expense,
in accordance with the foregoing definition, by three independent appraisers, one to be appointed
by Lessee, one to be appointed by Lessor and the third to be appointed by the first two.
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14. INSURANCE
During the term of the Lease, Lessee, at its own expense, shall maintain
in regard to the Equipment all risk insurance (in an amount not less than the Stipulated Loss
Value) and comprehensive public liability insurance, including any claims caused from the breach
of any Environmental Laws involving the Equipment, in amounts and with carriers reasonably
satisfactory to Lessor. Any such insurance shall name Lessor and the Assignee(s) as additional
insured and, as for the all risk insurance, loss payees as their interests may appear. All such
insurance shall provide that it may not be terminated, canceled or altered without at least thirty
(30) days’ prior written notice to Lessor and its Assignee(s). Coverage afforded to Lessor shall
not be rescinded, impaired, or invalidated by any act or neglect of Lessee. Lessee agrees to supply
to Lessor, upon request, evidence of such insurance.
15. REPRESENTATIONS AND WARRANTIES OF LESSEE; FINANCIAL STATEMENTS
(a) Lessee represents and warrants to Lessor and its Assignee(s) (i) that
the execution, delivery and performance of this Master Agreement and the Lease was duly authorized
and that upon execution of this Master
Agreement and the Lease by Lessee and Lessor, this Master Agreement and the Lease will be in full
force and effect and constitute a valid legal
and binding obligation of Lessee, and enforceable against Lessee in accordance with their
respective terms; (ii) the Equipment is accurately
described in the Lease and all documents of Lessee relating to the Lease; (iii) that Lessee is in
good standing in the jurisdiction of its incorporation
and/or organization and in any jurisdiction in which any of the
Equipment is located; (iv) that no consent or approval of, giving of notice to, registration with,
or taking of any other action in respect of, any state,
federal or other government authority or agency is required with respect
to the execution, delivery and performance by the Lessee of this Master Agreement or the Lease or,
if any such approval, notice, registration or action is required, it has been obtained; (v) that
the entering into and performance of this Master Agreement and the Lease will not violate any
judgment, order, law or regulation applicable to Lessee or any provision of Lessee’s Articles of
Incorporation, Bylaws, Articles of Organization and/or Operating Agreements or result in any breach
of, or constitute a default under, or result in the creation of any lien, charge, security interest
or other encumbrance upon any assets of Lessee or upon the Equipment pursuant to any instrument to
which Lessee is a party or by which it or its property may be bound; (vi) there are no actions,
suits or proceedings pending, or to the knowledge of Lessee, threatened, before any court or
administrative agency, arbitrator or governmental body which will, if determined adversely to
Lessee, materially adversely affect its ability to perform its obligations under the Lease or any
related agreement to which it is a party; (vii) that aside from this Master Agreement and the Lease
there are no additional agreements between Lessee and Lessor relating to the Equipment, and (viii)
that any and all financial statements and other information with respect to Lessee supplied to
Lessor at the time of execution of the Lease and any amendment, are true and complete. The
foregoing representations and warranties shall survive the execution and delivery of the Lease and
any amendments hereto and shall upon the written request of Lessor, be made to Lessor’s
Assignee(s).
(b) Prior to and during the term of the Lease, Lessee will furnish Lessor with Lessee’s annual
audited financial statements no later than ninety (90) days after its fiscal year end, and a copy
of its quarterly unaudited financial statements within forty-five (45) days after the end of each
fiscal quarter. If Lessee is a subsidiary of another company, Lessee shall supply such company’s
financial statements and guarantees as are reasonably acceptable to Lessor. Lessor’s obligations
to perform under any Lease is subject to the condition that the financial statements furnished to
Lessor by Lessee present the financial condition and results of operations of Lessee and its
affiliated corporations and/or companies, if any, and any guarantor of Lessee’s obligations under
any Lease, as of the date of such financial statements, and that since the date of such statements
there have been no material adverse changes in the assets or liabilities, the financial condition
or other condition which in Lessor’s or Assignee(s) reasonable discretion are deemed to be
materially adverse. Lessee shall also provide Lessor with such other statements concerning the
Lease and the condition of the Equipment as Lessor may from time to time request.
(c) Upon Lessor’s request, Lessee shall, with respect to each Lease, deliver to Lessor (i) a
certificate of a secretarial officer of Lessee
certifying the bylaw, resolution (specific or general) or corporate action authorizing the
transactions contemplated in the Lease; (ii) an incumbency certificate certifying that
the person signing this Master Agreement and the Lease holds the office the person purports to
hold and has authority to sign on behalf of Lessee; (iii) an opinion of Lessee’s counsel with
respect to the representations in Section 15(a); (iv) an agreement with Lessor’s Assignee with
regard to any assignment as referred to in Section 10; (v) the purchase documents if Lessee has
sold or assigned its interest in the Equipment to Lessor; (vi) an insurance certificate evidencing
the insurance provided by Lessee pursuant to Section 14; and (vii) an Installation Certificate
duly executed by Lessee. Failure by Lessee to deliver any of these documents when due shall
operate, at Lessor’s option, to continue the Installation Term for the Lease thus delaying the
Base Term Commencement Date, or to increase the Base Monthly Rental to recover costs incurred by
Lessor consequent to the delay or the termination of the Lease as provided in Section 16.
16. DEFAULT, REMEDIES
(a) The following shall be deemed “Events of Default” under the Lease:
(i) Lessee fails to pay any installment of rent or other charge or amount due under the Lease
when the same becomes due and payable and such failure continues for ten (10) days after its due
date; or
(ii) Except as expressly permitted in the Lease, Lessee attempts to remove, sell, encumber,
assign or sublease or fails to insure any of the Equipment, or fails to deliver any documents
required of Lessee under the Lease; or
(iii) Any representation or warranty made by Lessee or Lessee’s guarantor in the Lease or any
document supplied in connection with the Lease or any financial statement is misleading or
materially inaccurate; or
(iv) Lessee fails to observe or perform any of the other obligations required to be observed
by Lessee under the Lease and such failure continues uncured for thirty (30) days after its
occurrence thereof; or
(v) Lessee or Lessee’s guarantor ceases doing business as a going concern; makes an
assignment for the benefit of creditors; admits in writing its inability to pay its debts as they
become due; files a voluntary petition in bankruptcy; is adjudicated a bankrupt or an insolvent;
files a petition seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar arrangement under any present or future statute, law or
regulation or files an answer admitting or fails to deny the material allegations of a petition
filed against it in any such proceeding; consents to or acquiesces in the appointment of
a trustee, receiver, or liquidator for it or of all or any substantial part of its assets or
properties, or if it or its trustee, receiver, liquidator or shareholders shall take any action to
effect its dissolution or liquidation;
(vi) If within sixty (60) days after the commencement of any proceedings against
Lessee or Lessee’s guarantor seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute, law or regulation,
such proceedings shall not have been dismissed, or if within thirty (30) days after the
appointment (with or without Lessee’s or Lessee’s guarantor’s consent) of any trustee, receiver
or liquidator of it or all of or any substantial part of its respective assets and properties,
such appointment shall not be vacated.
(vii) Lessee or any guarantor of Lessee shall suffer a material adverse change in its
financial condition after the date hereof as determined by Lessor in its reasonable discretion, or
there shall occur a substantial change in ownership of the outstanding stock of the Lessee which
results in a material adverse change in its financial condition.
5
(viii) Lessee shall be in default of any other Schedule or agreement executed with Lessor or
under any agreement with any other party that in Lessor’s sole opinion is a material agreement; or
shall fail to sign and
deliver to Lessor any document requested by Lessor in connection with this Master Agreement or
shall fail to do anything determined by Lessor to be necessary or desirable to effectuate the
transaction contemplated by this Master Agreement or to protect Lessor’s rights and interest in
this Master Agreement and Equipment; or shall fail to provide financial statements to Lessor as
provided for in Section 15 (b) hereof.
(ix) Lessee breaches any license or other agreement for software.
(x) Failure of Lessee to promptly execute and deliver to Lessor any document required under
Section 10 of this Master Agreement.
(b) Lessee shall immediately notify Lessor of the occurrence of an Event of Default or any event
that would become an Event of Default. Upon the happening of any Event of Default, Lessor may
declare the Lessee to be in default. Upon a declaration of default, Lessor may immediately apply
the Security Deposits (as defined and set forth in Section 18) to any one or more of the
obligations of Lessee to Lessor, including unpaid rent, fees, costs, charges, expenses and/or
the Stipulated Loss Value or as otherwise provided for in any Schedule to this Master Agreement.
The application of the Security Deposits shall not be in lieu of, but shall be in addition to all
other remedies available to Lessor under the Master Agreement and applicable law. Lessee authorizes
Lessor at any time thereafter, with or without terminating the Lease, to enter any premises where
the Equipment may be and take possession of the Equipment. Lessee shall, upon such declaration of
default, without further demand, immediately pay Lessor an amount which is equal to (i) any unpaid
amount due on or before Lessor declared the Lease to be in default, plus (ii) as liquidated damages
for loss of a bargain and not as a penalty, an amount equal to the Stipulated Loss Value for the
Equipment computed as of the date the last Base Monthly Rental payment was due prior to the date
Lessor declared the Lease to be in default, together with interest, as provided herein, plus (iii)
all attorney and court costs incurred by Lessor relating to the enforcement of its rights under the
Lease. The exercise of any of the foregoing remedies by Lessor shall not constitute a termination
of the Lease unless Lessor so notifies Lessee in writing. After an Event of Default, at the request
of Lessor and to the extent requested by Lessor, Lessee shall immediately comply with
the provisions of Section 6(d) and Lessor may sell the Equipment at private or public sale, in bulk
or in parcels, with or without notice, without having the Equipment present at the place of sale;
or Lessor may lease, otherwise dispose of or keep idle all or part of the Equipment, subject,
however, to its obligation to mitigate damages. The proceeds of sale, lease or other disposition,
if any, of the Equipment shall be applied: (1) to all Lessor’s costs, charges and expenses incurred
in taking, removing, holding, repairing and selling, leasing or otherwise disposing of the
Equipment including actual attorney fees; then (2) to the extent not previously paid by
Lessee, to pay Lessor the Stipulated Loss Value for the Equipment and all other sums owed by Lessee
under the Lease, including any unpaid rent which accrued to the date Lessor declared the Lease to
be in default and indemnities then remaining unpaid under the Lease; then (3) to reimburse to
Lessee Stipulated Loss Value previously paid by Lessee as liquidated damages; and (4) any
surplus shall be retained by Lessor. Lessee shall pay any deficiency in (1) and (2)
immediately. If Lessee breaches Section 19(l) of this Master Agreement with regard to Software (as
hereinafter defined), Lessee shall be liable to Lessor for additional damages in an amount
equal to the original purchase price paid by Lessor for the Software, and in addition, at
Lessor’s option, Lessor shall be entitled to injunctive and other equitable relief. Lessor may also
proceed by appropriate court action, either at law or in equity to enforce performance by Lessee of
the applicable covenants of the Lease or to recover damages for the breach of the Lease.
Upon the happening of an Event of Default by Lessee with regard to Software under Section 19(l) of
this Lease, Lessor may elect any of the following remedies: (i) by notice to Lessee, declare any
License agreement with respect to Software terminated, in which event the right and License of
Lessee to use the Software shall immediately terminate and Lessee shall thereupon cease all use of
the Software and return all
copies thereof to Lessor or original Licensor; (ii) have access to and disable the Software by
any means deemed necessary by Lessor, for which purposes Lessee hereby expressly consents to such
access and disablement, promises to take no action that would prevent or interfere with Lessor’s
ability to perform such access and disablement, and waives and releases any and all claims that it
has or might otherwise have for any and all losses, damages, expenses, or other detriment that it
might suffer as a result of such access and disablement. Lessee agrees that the
detriment that Lessor will suffer as a result of a breach by Lessee of the obligations contained
in this Master Agreement cannot be adequately compensated by monetary damages, and therefore
Lessor shall be entitled to injunctive and other equitable relief to enforce the provisions of
this paragraph. LESSEE AGREES THAT LESSOR SHALL HAVE NO DUTY TO MITIGATE LESSOR’S DAMAGES UNDER
ANY SCHEDULE BY TAKING LEGAL ACTION TO RECOVER THE SOFTWARE FROM LESSEE OR ANY THIRD PARTY, OR TO
DISPOSE OF THE SOFTWARE BY SALE, RE-LEASE OR OTHERWISE.
(c) The waiver by Lessor of any breach of any obligation of Lessee shall not be deemed a waiver of
any future breach of the same or any other obligation. The subsequent acceptance of rental
payments under the Lease by Lessor shall not be deemed a waiver of any such prior existing breach
at the time of acceptance of such rental payments. The rights afforded Lessor under Section 16
shall be cumulative and concurrent and shall be in addition to every other right or remedy
provided for the Lease or now or later existing in law (including as appropriate all the rights of
a secured party or lessor under the Uniform Commercial Code) or in equity and Lessor’s exercise or
attempted exercise of such rights or remedies shall not preclude the simultaneous or later
exercise of any or all other rights or remedies.
(d) In the event Lessee shall fail to perform any of its obligations under the Lease, then Lessor
may perform the same, but shall not be obligated to do so, at the cost and expense of Lessee. In
any such event, Lessee shall promptly reimburse Lessor for any such costs and expenses incurred by
Lessor.
(e) Upon an Event of Default as defined herein, which continues uncured for thirty (30)
days after prior written notice is received from Lessor, (“Trigger Event”), Lessee hereby grants
to Lessor a security interest in all currently existing and hereafter acquired or arising assets,
property and proceeds thereof belonging to Lessee, including any and all goods, chattels,
fixtures, equipment, assets, accounts receivable, contract rights, general intangibles and
property of every kind wherever located in which Lessee has any interest and proceeds thereof
(the “Additional Collateral”), to secure prompt payment and performance of all its obligations
under the Master Agreement and Lease. Upon the occurrence of a Trigger Event, the foregoing grant
shall automatically be effective and Lessor shall have the right to file
financing statements (e.g. UCC-1) under the applicable Uniform Commercial Code. Lessee
hereby authorizes Lessor to make such filings immediately upon the occurrence of a Trigger
Event and will, upon Lessor’s request, take such further actions and execute and deliver such
other documents, at its expense, as Lessor may request to perfect and protect its security
interest granted hereby. Lessee acknowledges and agrees that the foregoing grant of security
interest is in addition to and shall in no way affect or alter any existing security interest(s)
granted to Lessor under this Master Agreement. Lessor acknowledges and agrees that its security
interest in the Additional Collateral is and shall be subject to and subordinate in all respects
to the security interest of Metro Bank, and Lessor shall not exercise any of its rights or
remedies under the Uniform Commercial Code or any applicable law with respect to the Additional
Collateral without the prior written consent of Metro Bank.
6
17. LESSOR’S TAX BENEFITS
Lessee acknowledges that Lessor shall be entitled to claim all tax benefits, credits
and deductions related to the Equipment for federal
income tax purposes including, without limitation: (i) deductions on Lessor’s cost of the Equipment
for each of its tax years during the term of the Lease under any method of depreciation or other
cost recovery formula permitted by the Internal Revenue Code of 1986, as amended (hereinafter
called the “Code”), and (ii) interest deductions as permitted by the Code on the aggregate interest
paid to any Assignee (hereinafter collectively “Lessor’s Tax Benefits”). Lessee agrees to take no
action inconsistent (including the voluntary substitution of Equipment) with the foregoing or which
would result in the loss, disallowance, recapture or unavailability to Lessor of Lessor’s Tax
Benefits. Lessee hereby indemnifies Lessor and its Assignee(s) from and against (a) any loss,
disallowance, unavailability or recapture of Lessor’s Tax Benefits resulting from any action or
failure to act of Lessee, including replacement of the Equipment, plus (b) all interest, penalties,
costs, (including actual attorney fees), or additions to tax resulting from such loss,
disallowance, unavailability or recapture.
18. SECURITY DEPOSIT
Lessor acknowledges receipt of the security deposit(s) identified on each of the Schedules to this
Master Agreement or otherwise provided
to Lessor (the “Security Deposits”). Lessee hereby grants to Lessor a security interest in each
of the Security Deposits, to secure all
obligations of Lessee under this Master Agreement and all Schedules hereto, including but not
limited to, all payment obligations and all
other obligations of Lessee to Lessor for which Lessee is now or may in the future become liable.
Lessee authorizes Lessor to file all financing
statements, amendments to financing statements and other documents as may be required, if any,
with any public filing agency in any
jurisdiction, to advise of Lessor’s interest in the Security Deposits. Lessee agrees to execute
such additional documents or instruments as
may be deemed advisable or necessary by Lessor in order to maintain and continue such security
interest.
19. GENERAL
(a) The Lease shall be deemed to have been made and delivered in the
State of Michigan and shall be governed in all respects by the laws of such State. LESSEE AGREES TO
SUBMIT TO THE JURISDICTION
OF THE STATE AND/OR FEDERAL COURTS IN THE STATE OF
MICHIGAN IN ALL MATTERS RELATING TO THE LEASE, THE EQUIPMENT, AND THE CONDUCT OF THE RELATIONSHIP
BETWEEN LESSOR AND LESSEE. THE PARTIES HERETO AGREE THAT IN THE EVENT OF AN ALLEGED BREACH OF THIS
MASTER AGREEMENT OR ANY DOCUMENTS RELATING THERETO BY EITHER PARTY, OR ANY CONTROVERSIES
ARISE BETWEEN THE PARTIES RELATING TO THIS MASTER AGREEMENT OR ANY DOCUMENTS RELATING THERETO, SUCH
CONTROVERSIES SHALL BE TRIED BY A JUDGE ALONE BEFORE THE FEDERAL OR STATE COURTS IN OAKLAND
COUNTY, MICHIGAN. THE PARTIES, HAVING HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL
OF THEIR OWN CHOOSING, HEREBY KNOWINGLY AND VOLUNTARILY CONSENT TO MICHIGAN JURISDICTION AS SET
FORTH HEREIN AND WAIVE THEIR RIGHTS TO A TRIAL BY JURY IN ANY MATTER RELATING TO THIS MASTER
AGREEMENT OR ANY DOCUMENTS RELATED THERETO.
(b) Provided no Event of Default has occurred and is continuing, and provided no Event of Default
or event which with the giving of notice or lapse of time, or both, would constitute an Event of
Default has occurred and is continuing, upon the completion of the Base Term of any
Schedule, Lessee shall, upon giving one hundred eighty (180) days prior written notice to Lessor by
certified mail, elect one of the following options: (i) purchase all, but not less than all, of
the Items of Equipment on the applicable Schedule for a price to be agreed upon by both Lessor and
any applicable Assignee and Lessee, (ii) extend the Schedule for all, but not less than all, of the
Items of Equipment on the applicable Schedule for an additional twelve (12) months at the Base
Monthly Rental then in effect or (iii) return all, but not less than all of the Items of Equipment
on the applicable Schedule to Lessor at Lessee’s expense to a
destination within the Continental United States as directed by Lessor, provided that for option
(iii) to apply, Lessee shall have paid all late charges, interest, taxes, penalties due under
the Lease, Lessee agrees to pay to Lessor an additional per diem rent (“Hold Over Rent”) in an
amount equal to one hundred twenty five percent (125%) of the Base Monthly Rental then in effect
divided by thirty (30) until all Items of Equipment are received by Lessor, Lessee shall have
complied with Sections 6 (a), (b), (c) and Section 7 hereof, and Lessee shall immediately pay to
Lessor a Terminal Rental Adjustment Cost (“TRAC”) in an amount equal to subsection (ii) above.
Provided that Lessee selects option (iii), Lessor shall use its best efforts to remarket the
Equipment and remit to Lessee any amount collected by Lessor less its reasonable remarketing costs
which shall include, without limitation, costs of repossession, reconfiguration, de-installation
and installation, refurbishment, storage, and freight charges and legal fees, whether in house or
to third parties. With respect to option (i) and option (iii), both Lessor and Lessee shall have
absolute and sole discretion regarding the terms and conditions of the agreement to the purchase
price of the Equipment. In the event that Lessor and Lessee have not agreed to either option (i)
or option (iii) by the conclusion of the Base Term, or if Lessee fails to provide notice of its
election via certified mail at least one hundred eighty (180) days prior to the termination of the
Base Term, then option (ii) shall automatically apply at the end of the Base Term. At the
conclusion of option (ii) above, the Lease shall continue for successive six (6) month renewals at
the payment specified on the respective Schedule until either Lessee or Lessor provide the other
party with at least ninety (90) days written notice of their desire to terminate the agreement.
(c) This Master Agreement and the Lease constitute the entire and only agreement between Lessee
and Lessor with respect to the lease of the Equipment, and the parties have only those rights and
have incurred only those obligations as specifically set forth herein. The covenants,
conditions, terms and provisions may not be waived or modified orally and shall supersede all
previous proposals, both oral and written, negotiations, representations, commitments or
agreements between the parties. The Lease may not be amended or discharged except by a
subsequent written agreement entered into by duly authorized representatives of Lessor and Lessee.
A photocopy or facsimile or scanned reproduction of an original signature of a
party to this Agreement shall bind that party to the terms, conditions and covenants
of the Agreement as if it were the original.
(d) All notices, consents or requests desired or required to be given under the Lease shall be in
writing and shall be delivered in person or sent by certified mail, return, receipt requested, or
by courier service to the address of the other party set forth in the introduction of this Master
Agreement or to such other address as such party shall have designated by proper notice.
(e) Each Schedule shall be executed with one original. To the extent, if any, that a Schedule
constitutes chattel paper (as such term is defined in the Uniform Commercial Code) a security
interest in the Schedule may only be created through the transfer or possession of the Schedule
marked “Original”. This Master Agreement, in the form of a photocopy, is Exhibit A to the
Schedule and is not chattel paper by itself.
(f) Section headings are for convenience only and shall not be construed as part of the Lease.
(g) It is expressly understood that all of the Equipment shall be and remain personal property,
notwithstanding the manner in which the same may be attached or affixed to realty, and, upon
Lessor’s request, Lessee shall secure from its mortgagee, landlord or owner of the premises a
waiver in form and substance reasonably satisfactory to Lessor.
7
(h) Lessor may upon written notice to Lessee advise Lessee that certain Items supplied to Lessee
are leased to Lessor and supplied to Lessee under the Lease as a sublease. Lessee agrees to
execute and deliver such
acknowledgements and assignments in connection with such a Lease as are reasonably required. If,
at any time during the term of the Lease, Lessor’s right to lease such Equipment expires, Lessor
may remove such Equipment from Lessee’s premises and shall promptly provide identical substitute
Equipment. All expenses of such substitution, including de-installation, installation and
transportation expenses, shall be borne by Lessor.
(i) Prior to the delivery of any Item, the obligations of Lessor hereunder shall be suspended to
the extent that it is hindered or prevented from complying therewith because of: labor
disturbances, including strikes and lockouts; acts of God; fires; storms; accidents; failure to
deliver any Item; governmental regulations or interferences or any cause whatsoever not within the
sole control of Lessor.
(j) Lessee hereby acknowledges and agrees that it has had a full and fair opportunity to read each
of the terms and conditions of this Master Agreement, specifically Sections 2, 16 and 19, and that
Lessee fully understands the terms and conditions herein, having had the opportunity to consult
with an attorney of its own choosing prior to executing this Master Agreement and any related
documents.
| /s/ R.R.W. | ||||
| LESSEE INITIALS | ||||
(k) Any provision of this Master Agreement or any Schedule prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall be ineffective as to
such jurisdiction without invalidating the remaining provisions of this Master Agreement and
such Schedule.
(l) In the event the Equipment includes software (which Lessee agrees shall include all
documentation, later versions, updates, upgrades, and modifications) (herein “Software”), the
following shall apply: (i) Lessee shall possess and use the Software in accordance with the terms
and conditions of any license agreement (“License”) entered into with the owner/vendor of such
Software and shall not breach the License (at Lessor’s request, Lessee shall provide a complete
copy of the License to Lessor); (ii) Lessee agrees that Lessor shall have an interest in
the License and Software arising out of its payment of the price thereof and is an assignee or
third party beneficiary of the License; (iii) as due consideration of Lessor’s payment of the
License and Software and for providing the Software to Lessee at a lease rate (as opposed to a debt
rate), Lessee agrees that Lessor is leasing (and not financing) the
Software to Lessee; (iv) except for the original price paid by Lessor, Lessee shall, at its own
expense, pay promptly when due all servicing fees, maintenance fees update and upgrade costs,
modification cost, and all other costs and expenses relating to the Software and maintain the
License in effect during the term of this Master Agreement; and (v) the Software shall be deemed
Equipment for all purposes under this Master Agreement.
(m) The parties agree that this is a “Finance Lease” as defined by section
2A-103(g) of the Uniform Commercial Code (“UCC”). Lessee acknowledges either (a) that
Lessee has reviewed and approved any written Supply Contract (as defined by UCC 2-A-103(y))
covering the Equipment purchased from the Supplier (as defined by UCC 2A-103(x)) thereof for
lease to Lessee or (b) that Lessor has informed or advised Lessee, in writing, either previously
or by this Lease of the following: (i) the identity of the Supplier, (ii) that the Lessee may
have rights under the Supply Contract; and (iii) that the Lessee may contact the Supplier for a
description of any such rights Lessee may have under the Supply Contract.
Lessee hereby waives any and all rights and remedies granted to Lessee by Sections 303 and 508
through 522 of Articles 2A of the Uniform Commercial Code (although no such waiver shall
constitute a waiver of any of Lessee’s rights or remedies against the manufacturer of the
Equipment).
(n) The parties acknowledge that serial numbers and/or other identifiable information for one or
more Items may be unavailable prior to execution of the applicable Schedule. In the
event a Schedule fails to indicate serial numbers or other identifiable information or
incorrectly identifies serial numbers or other identifiable information, for one or more Items
after execution of the applicable Schedule, Lessee expressly consents to Lessor’s
unilateral amendment of the applicable Schedule to insert or correct serial numbers or other
identifiable information therein.
(o) Lessee hereby authorizes and appoints Lessor and Lessor’s agents and assigns as Lessee’s
attorney-in-fact to execute acknowledgement letters and other documents required to be executed
by Lessee to effect any underwriting or perfect any security interest with regard to a Schedule.
The parties have executed this Master Lease Agreement as of the date first written above.
| LESSOR: | LESSEE: | |||||||
| VARILEASE FINANCE, INC. | UNILIFE MEDICAL SOLUTIONS, INC. | |||||||
By: Name: |
/s/ Xxxxx Xxxxx
|
By: Name: |
/s/ R. Xxxxxxx Xxxxxxx
|
|||||
Title:
|
Vice President | Title: | Executive Vice President and Chief Financial Officer | |||||
8
