Winthrop Lease Exhibit 10.45 WINTHROP RESOURCES CORPORATION Lease Agreement Number BU061698 Lease Agreement This Lease Agreement, dated June 16, 1998, by and between WINTHROP RESOURCES CORPORATION (the "Lessor") with an office located at 1015 Opus...
Winthrop LeaseExhibit 10.45
WINTHROP RESOURCES CORPORATION
Lease Agreement Number BU061698
Lease Agreement
This Lease Agreement, dated June 16, 1998, by and between WINTHROP RESOURCES CORPORATION (the "Lessor") with an office located at 1015 Opus Center, 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 and BUSINESS RESOURCE GROUP (the "Lessee") with an office located At 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000 Xxx Xxxx, XX 00000 Lessor hereby leases or grants to the lessee the right to use and Lessee hereby rents and accepts the right to use the equipment listed by serial number and related services, and software and related services on the Lease schedule(s) attached hereto or incorporated herein by reference from the time to time (collectively, the equipment, software and services are the "Equipment"), subject to the terms and conditions hereof, as supplemented with respect to each item of Equipment by the terms and conditions set forth in the appropriate Lease Schedule. The term "Lease Agreement" shall include this Lease Agreement and the various Lease Schedule(s) identifying one or more particular items of Equipment. 1. Term This Lease Agreement is effective from the date it is executed by both parties. The term of this Lease Agreement as to all Equipment designated on any particular Lease Schedule shall commence on the installation Date for all Equipment on such Lease Schedule and shall continue for an initial period ending that number of months from the Commencement Date as set forth in such Lease Agreement as to all Equipment designated in any particular Lease Schedule may be terminated without cause at the end of the initial Term or any year thereafter by either party mailing written notice of its termination to the other party not less than one- hundred twenty (120) days prior to such termination date. 2. Commencement Date The Installation Date for each item of Equipment shall be the day said item of Equipment is Installed at the location of Installation, ready for use, and accepted in writing by the Lessee. The Commencement Date for any Lease Schedule is the first of the month following Installation Date for any Equipment on the Lease Schedule, unless the latest Installation Date for any Equipment on the Lease Schedule falls on the first day of the month, in which case that is the Commencement Date. The Lessee Agrees to complete, execute and deliver a Certificate of Acceptance to Lessor upon installation of the Equipment. 3. Lease Charge The Lease charges for the Equipment leased pursuant to this Lease Agreement shall be the Aggregate "Monthly Lease Charge [s]" as set forth on each and every Lease Schedule executed pursuant hereto (the aggregate "Monthly Lease Charge [s]" are the "Lease Charges"). Lessee agrees to pay to Lessor the Lease Charges in accordance with the Lease Schedule(s), and the payments shall be made at Lessor's address indicated thereon. The Lease Charges shall be paid by Lessee monthly in advance with the first full month's payment due on the Commencement Date. If the Installation Date does not fall on the first day of a month, the Lease Charge for the period from the Installation Date to the Commencement Date shall be an amount equal to the "Monthly Lease Charge" divided by thirty (30) and multiplied by the number of days from and including the Installation Date to the Commencement Date and such amount shall be due and payable upon receipt of an invoice from Lessor. Charges for taxes made in accordance with Section 4 and charges made under any other provision of the Lease Agreement and payable by Lessee shall be paid to Lessor at Lessor's address specified above is not received by Lessor on the due date, Lessee agrees to and shall, to the extent permitted by law, pay on demand, as a late charge, an amount equal to one and one half percent (1 1/2%), or the maximum percentage allowed by law of less, of the amount past due ("Late Charges"). Late Charges shall be charged and added to any past due amount on the date such payment is due and every thirty (30) days thereafter until past due amounts are paid in full to Lessor. 4. Taxes In addition to the Lease Charges set forth in Section 3, the Lessee shall reimburse Lessor for the License or registration fees, assessments, sales and use taxes, rental taxes, gross receipts taxes, personal property taxes, and other taxes now or hereafter imposed by any government, agency province or otherwise upon the Equipment, the Lease Charges or upon the ownership, leasing, renting, purchase, possession or use of the Equipment, whether the same be assessed to Lessor or Lessee (the "Taxes"). Lessee's should file all property tax returns and pay all Taxes when due. Lessee, upon notice to Lessor, may, in Lessee's own name, contest or protest any Taxes, and Lessor shall honor any such notice except when in Lessor's sole opinion such contest is futile or will cause a levy or lien to arise on the Equipment or cloud Lessor's title thereto. Lessee shall, in addition, be responsible to Lessor for the payment and actions and inaction. Nothing herein shall be construed to require Lessee to be responsible for any federal or state taxes or payments in lieu thereof, imposed upon or measured by the net income of the Lessor, or the state franchise taxes of Lessor, or except as provided hereinabove, any penalties or interest resulting from Lessor's failure to timely remit such tax payments. 5. Delivery and Freight Costs Lessee shall accept delivery of the Equipment and allow the Equipment to be installed within seven (7) days after the delivery. All transportation charges upon the Equipment for delivery to Lessee's designated Location of installation are to be paid by Lessee. All rigging, drayage charges, structural alterations, rental of heavy equipment and/or other expense necessary to place the Equipment at the Location of Installation are to be promptly paid by Lessee. 6. Installation Lessee agrees to pay for the actual installation of the Equipment at Lessee's site. Lessee shall make available and agrees to pay for all costs associated with providing a suitable place of installation and necessary electrical power, outlets, and air conditioning required for operating the Equipment as defined in the Equipment manufacture's installation manual or instructions. All supplies consumed or required by the Equipment shall be furnished and paid for by Lessee. 7. Return to Lessor On the day following the last day the Lessee is entitled or obligated to possess and use the Equipment on the applicable Lease Schedule (the "Return date"), Lessee shall cause and pay for the Equipment on that Lease Schedule to be deinstalled, packed, using the manufacture's standard packing materials, and shipped to a location designated in writing by the Lessor (the "Return Location"). If the Equipment on the applicable Lease Schedule is not at the Return Location within ten (10) days of the Return Date, or Lessee fails to deinstall the Equipment on the Return Date, then any written notice of termination delivered by Lessee shall become void, and the Lease Schedule shall continue in accordance with this Lease Agreement. Irrespective of any other provision hereof, Lessee will bear the risk of damage from fire, the elements otherwise until delivery of the Equipment to the Return Location. At such time as the Equipment is delivered to the Lessor at the Return Location, the Equipment will be at the risk of Lessor. 8. Maintenance Lessee, at its sole expense, shall maintain the Equipment in good working order and condition. Lessee shall enter into, pay for and maintain in force during the entire term of any Lease Schedule, a maintenance agreement with the manufacture of the Equipment providing for continuous uninterrupted maintenance of the Equipment (the "Maintenance Agreement"). Lessee will cause the manufacture to keep the Equipment in good working order in accordance with the provisions of the Maintenance Agreement and make all necessary adjustments and repairs to the Equipment. The manufacturer is hereby authorized to accept the directions of Lessee with respect thereto. Lessee agrees to allow the manufactures full and free access to the Equipment. All maintenance and service charges, whether under the Maintenance Agreement or otherwise, and all expenses, if any, of the manufacture's customer engineers incurred in connection with maintenance and repair services, should be promptly paid by Lessee. Upon termination of any Lease Schedule or this Lease Agreement, Lessee warrants that the Equipment shall be in eligible for the manufacture's standard maintenance agreement, Lessee agrees to reimburse Lessor for any costs it incurs in making the Equipment eligible for such standard maintenance. 9. Location, Ownership and Use The Equipment shall. At all times, be the sole and exclusive property of Lessor. Lessee shall have no right or property interest therein, except for the right to use the Equipment in the normal operation of its business at the Location of Installation, or as otherwise provided herein. The Equipment is and shall remain personal property even if installed in or attached to real property. Lessor shall be permitted to display notice of its ownership on the Equipment by means of a suitable stencil, label or plaque affixed thereto. Lessee shall keep the Equipment at all times free and clear from all other claims, levies, encumbrances and process. Lessee shall give Lessor immediate notice of any such attachment or other judicial process affecting any of the Equipment. Without Lessor's written permission, Lessee shall not attempt to or actually: (1) pledge, lend, create a security interest in, sublet, exchange, trade, assign, swap, use for an allowance or credit or otherwise; (2) allow another use;(3) part with possession;(4) dispose of; or (5) remove from the Location of Installation, any item of the Equipment. If any item of Equipment is exchange, assigned, traded, swapped, used for an allowance or credit or otherwise to acquire new or different equipment (the "New Equipment") without the Lessor's prior written consent, then all of the New Equipment shall become Equipment owned by the Lessor subject to this Lease Agreement and the applicable Lease Schedule. Any feature(s) installed on the Equipment at the time of delivery which is not specified on the Lease Schedule(s) are and shall remain the sole property of the Lessor. Lessee shall cause the Equipment to be operated in accordance with the applicable vendor's or manufacture's manual of instructions by competent and qualified personnel. 10. Financing Statement Lessor is hereby authorized by Lessee to cause this Lease Agreement or other instruments, including Uniform Commercial Code Financing Statements, to be filed or recorded for the purposes of showing Lessor's interest in the Equipment. Lessee agrees to execute any such instrument as Lessor may request from time to time. 11. Alterations and Attachments Upon prior written notice to Lessor, Lessee may, at its own expense, make minor alterations in or add attachments to the Equipment, provided such alterations and attachments shall not interfere with the normal operation of the Equipment and do not otherwise involve the pledge, assignment, exchange, trade, or substitution of the Equipment or any component or part thereof. All such alterations and attachments to the Equipment or interferes with the normal and satisfactory operation or maintenance of any of the Equipment, or creates a safety hazard. Lessee shall, upon notice from Lessor to that effect, promptly remove the alteration or attachment at Lessee's expense and restore the Equipment to the condition the Equipment was in just prior to the alteration or attachment. 12. Loss and Damage Lessee shall assume and bear the risk of loss, theft and damage (including any governmental requisition, condemnation or confiscation) to the Equipment and all component parts thereof from any and every cause whatsoever, whether or not covered by insurance. No loss or damage to the Equipment or any component part thereof shall impair any obligation of Lessee under this Lease Agreement, which shall continue in full force and effect except as hereinafter expressly provided. Lessee shall repair or cause to be repaired all damage to the Equipment. In the event that all or part of the Equipment shall, as a result of any cause whatsoever, become lost, stolen, destroyed or otherwise rendered irreparably unusable or damaged (collectively, the "Loss") then Lessee shall, within ten (10) days after the Loss, fully inform Lessor in regard thereto and shall pay to Lessor the following amount: (i) the Monthly Lease Charges (and other amounts) due and owing under this Lease Agreement at the time of the Loss, plus (ii) one-hundred twelve (112%) percent of the original cost of the Equipment subject to the Loss amortized by the Monthly Lease Charges received by Lessor during the Initial Term using an amortization rate of 350 basis points over the interest rate of the three (3) year United States Treasury Note as reported by The Wall Street Journal on the Commencement Date (collectively, the sum of (i) plus (ii) shall be the "Casualty Loss Value: (i) the applicable Equipment shall be removed from the Lease Schedule; and (ii) Lessee's obligation to pay Lease Charges associated with the applicable Equipment shall cease. Lessor may request, and Lessee shall complete, and affidavit(s) which swears out the facts supporting the Loss of any item of Equipment. 13. Insurance Limited to, reconditioning and removal expenses repair costs, commissions and attorneys' fees. If the net proceeds are not enough to satisfy all of the amounts owed by Lessee hereunder, Lessee shall remain liable to Lessor for any deficiency. Lessor's pursuit and enforcement of any one or more remedies shall not be deemed an election or waiver by Lessor of any other remedy. Lessor shall not be obligated to sell or re-lease the Equipment. Any sale or re-lease may be held at such place or places as are selected by Lessor, with or without having the Equipment present. Any such sale or re-lease, may be at wholesale or retail, in bulk or in parcels. Time and exactitude of each of the terms and conditions of this Lease Agreement are hereby declared to be of the essence. Lessor may accept past due payments without modifying the terms of this Lease Agreement and without waiving any rights of Lessor hereunder. 14. Enforcement of Warranties Upon receipt of a written request from Lessee, Lessor shall, so long as this Lease Agreement is in force, take all reasonable action requested by Lessee to enforce the equipment manufacture's warranties, expressed or implied, issued on or applicable to the Equipment, which are enforceable by Lessor in its own name. Lessor shall obtain for Lessee all services furnished by the manufacturer in connection therewith; provided, however, that Lessor shall not be required to commence any suit or action or resort to litigation to enforce any such warranty unless Lessee shall first pay to Lessor in advance all expenses in connection therewith, including attorneys' fees. If any such warranty shall be enforceable by Lessee in its own name, Lessee shall, upon receipt of written request from Lessor, so long as this Lease Agreement is in force, take all responsibility action requested by Lessor to enforce any such warranty which is enforceable by Lessee in its own name; provided, however, that Lessee shall not be obligated to commence any suit or action or resort to litigation to enforce any such warranty unless Lessor shall pay all expenses in connection therewith. 15. Warranties, Disclaimers and Indemnity Lessor warrants that at the time the Equipment is delivered to Lessee, Lessor will have full right, power and authority to lease the Equipment to Lessee, EXCEPT FOR THE WARRANTY IN THE SENTENCE DIRECTLY PRECEDING THIS ONE, THE LESSOR DOES NOT MAKE ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. LESSEE ACKNOWLEDGES THAT IT IS NOT RELYING ON THE LESSOR'S SKILL OR JUDGEMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES CONTAINED IN THIS LEASE AGREEMENT. LESSOR SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECAIL, INCIDENTIAL OR CONSEQEUNTIAL, DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE EQUIPMENT OR ITS USE BY LESSEE, AND SHALL NOT BE LIABLE FOR ANY SPECAIL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH LESSOR'S FAILURE TO PERFORM ITS OBLIGATION HEREUNDER. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON LESSEE. Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall indemnify, defend and hold Lessor harmless with respect to, any claim from a third party for any liability, claim, loss, damage or expense of any kind of nature, whether based on upon a theory of strict liability or otherwise, caused, directly or indirectly, by (1) the inadequacy of any item of Equipment, including software, for any purpose; (2) any defieciency or latent or other defects in any Equipment, including software, whether or not detectable by Lessee; (3) the selection, manufacture, rejection, ownership, lease, possession, maittenance, operation, use or performance of anty item of Equipment, including software; (4) any interruption of loss of service, use or performance of any item of Equpment, including software; (5) patent, trsdemark, or copyright infrigment; or (6) any loss of business or other specail, incidential or consequential damages whether or not resulting from any of the foregoing. Lesee's duty to defend and indemnify Lessor shall survive the expiration, termination, cancellation, or assignment of this Lease Agreement or a Lease Schedule and shall be binding upon Lessee's successors amd permitted assigns. 16. Event of Default The occurance of any of the gfollowing events shall constitue an Event of Default under this Lease Agreeement and/or any Lease Schedule: (1) the nonpayment by Lessee of any Lease Charges when due, or nonpayment be Lessee of any other sum required hereunder to be paid by Lessee which non-payment continues for a period of ten(10) days from the date when due; (2) the failure of Lessee t operform any other term, covenant or condition of this Lease Agreement, any Lease Scheduleor any other document, agreement or instrument executed pursuant hereto or in connection herewith which is not cured within ten (10) days after written notice thereof from Lessor; (3) Lessee attempts to or does remove, transfer, sell, swap, asign, sublease, trade, exchange, encumber, receive an aloownace or credit for, or part with possession of, any item of Equipment; (4) Lessee ceases doing business as a going concern, is insolvent , makes an assignment for the benefit of creditors, fail to pay its debt as they become due, offers a settlement to creditors or calls a due, offers a settlement t ocreditors or call a meeting of creitors for any such purpose, files a voluntary petition in bankrupcy, is subject to an invulantary petition in bankrupcy, is adjucated bankrupt or insolvent, files or has filed against it a xxxxxx seeking any reorganization, arrangement or compositoin under any present or future statue, law or regulation. (5) Any of Lessee's representations or warranties made herein or ant statement or certificate at any given in writing pursuant hereto or in connection herewith shall be false or misleading in any material respect; (6) Lessee defaults undert or otherwise has accelerated any material obligation, credit agreement, loan agreement, conditional sales contract, lease, indenture or debenture; or Lessee defaults under any other agreement now existing or hereafter made with Lessor; or (7) The breach or repudiation by any party thereto of any guaranty, subordination agreement running in favor of Lessor obtained in connection with this Lease Agreement. 17. Remedies Should any Event of default occur and be continuing, Lessor may, in order to protect its interests and resonably expected profits, with or without notice or demand upon Lessee, pursue and enforce, alternatively, successivly and/or concurrently, any one or more of the following remedies: (1) recover from Lessee all accrued and unpaid Lease Charges and other amounts due and owing on the date of default; (2) recover form Lessee from time to time all Lease Charges and other amounts as and due hereunder; (3) accelerate, cause to become immediately due and recover the present value of all Lease Charges and other amounts due and/or likely to become due hereunder from the date of the default to the end of the lease term using a discount rate of six (6%) percent; (4) cause to become immediately due and payable and recover from Lessee the Casualty Loss Value of the Equipment; (5) terminate any or all of the Lessee's rights, but not its obligations, associated with the lease of Equipment under this Lease Agreement; (6) retake (by Lessor, independent contractor, or by requiring Lessee to assemble and surrender the Equipment in accordance with the provisions of Section 7 hereinabove) possession of the Equipment without terminating the Lease Schedule or the Lease Agreement free from claims by Lessee which claims are hereby expressly waived by Lessee; (7) required Lessee to deliver the equipment to a location designated by Lessor; (8) proceed by court action to enforce performance by Lessee of its obligation associated with any Lease Schedule and/or this Lease Agreement; and/or (9) Pursue any other remedy Lessor may otherwise have, at law, equity or under any statute, and recover damages and expenses (including attorneys' fees) incurred by Lessor by reason of the Event Of Default. Upon repossession of the Equipment, Lessor shall have the right to lease, sell or otherwise dispose of such Equipment in a commercially reasonable manner, with or without notice, at a public or private sale, and apply the net proceeds thereof to the amounts owed by Lessee hereunder. For purposes of this paragraph, net proceeds shall mean either: (1) the present value of the Monthly Lease Charges to be received under the new lease using a term not to exceed the remaining number of months in the Initial Term of the Lease Schedule in default and a discount rate of twelve (12%) percent; or (2) the amount received in cash upon the sale of the Equipment, less, in either event, all expenses incurred by or for Lessor in connection with such lease or sale, including, but not limited to, reconditioning and removal expenses, repair costs, commissions and attorneys' fees. If the net proceeds are not enough to satisfy all of the amounts owed by Lessee hereunder; Lessee shall remain liable to Lessor for any deficiency. Lessor's pursuit and enforcement of any one or more remedies shall not be deemed an election or waiver by Lessor of any other remedy. Lessor shall not be obligated to sell or re-lease the Equipment. Any sale or re-lease may be held at such place or places as are selected by Lessor, with or without having the Equipment present. Any such sale or re-lease, may be at wholesale or retail, in bulk or in parcels. Time and exactitude of each of the terms and conditions of this Lease Agreement are hereby declared to be of the essence. Lessor may accept past due payments without modifying the terms of this Lease Agreement and without waiving any rights of Lessor hereunder. 18. Costs and Attorneys' Fees In the event of any default, claim, proceeding, including a bankruptcy proceeding, arbitration, mediation, counter-claim, action (whether legal or equitable), appeal or otherwise, whether initiated by Lessor or Lessee (or a debtor-in-possession or bankruptcy trustee), which arises out of, under, or is related in any way to this Lease Agreement, any Lease Schedule, or any other document, agreement or instrument executed pursuant hereto or in connection herewith, or any governmental examination or investigation of Lessee which requires Lessor's participation (individually and collectively, the "Claim"), Lessee, in addition to all other sums which Lessee may be called upon to pay under the provisions of this Lease Agreement, shall pay to Lessor, on demand, all costs, expenses and fees paid or payable in connection with the Claim, including, but not limited to, attorney's fees and out-of- pocket costs, including travel and related expenses incurred by Lessor or its attorneys. 19. Lessor's Performance Option Should Lessee fail to make any payment or to do any act as provided by this Lease Agreement, then Lessor shall have the right (but not the obligation), without notice to Lessee of its intention to do so without releasing Lessee from any obligation hereunder to make or to do the same, to make advances to preserve the Equipment or Lessor's title thereto, and to pay, purchase, contest or compromise any insurance premium, encumbrance, charge, tax, lien or other sum which in the judgment of Lessor appears to affect the Equipment, and in exercising any such rights, Lessor may incur any liability and expend whatever amounts in its absolute discretion it may deem necessary therefore. All sums so incurred or expended by Lessor shall be cue and payable by lessee within ten (10) days of notice thereof. 20. Quiet Possession and Inspection Lessor hereby covenants with Lessee that Lessee shall quietly possess the Equipment subject to and in accordance with the provisions hereof so long as Lessee is not in default hereunder; provided, however, that Lessor or its designated agent may, at any and all reasonable times during business hours, enter Lessee's premises for the purposes of inspecting the Equipment and the manner in which it is being used. 21. Assignments This Lease Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Lessee, however, shall not assign this Lease Agreement or sublet any of the Equipment without first obtaining the prior written consent of Lessor and its assigns, if any. Lessee acknowledges that the terms and conditions of this Lease Agreement have been fixed in anticipation of the possible assignment of Lessor's rights under this Lease Agreement and in and to the Equipment as collateral security to a third party ("Assignee" herein) which will rely upon and be entitled to the benefit of the provisions of this Lease Agreement. Lessee agrees to provide Lessor or its potential assigns with Lessee's most recent audited and its most current financial statements. Lessee agrees with Lessor and such Assignee to recognize in writing any such assignment within fifteen (15) days after receipt of written notice thereof and to pay thereafter all sums due to Lessor hereunder directly to such Assignee if directed by Lessor, notwithstanding any defense, set-off or counterclaim whatsoever (whether arising from a breach of this Lease Agreement or not) that Lessee may from time to time have against Lessor. Upon such assignment, the Lessor shall remain obligated to perform any obligations it may have under this Lease Agreement and the Assignee shall (unless otherwise expressly agreed to in writing by the Assignee) have no obligation to perform such obligations. Any such assignment shall be subject to Lessee's tights to use and possession of the Equipment so long as Lessee is not in default hereunder. 22. Survival of Obligations Agreement, any Lease Schedules, or in any document attached thereto, shall be for the benefit of Lessor and Lessee and their successors, any assignee or secured party and shall survive the execution and delivery of this Lease Agreement and the expiration or other termination of this Lease Agreement. 23. Corporate Authority The parties hereto covenant and warrant that the persons executing this Lease agreement and each Lease Schedule on their behalf have been duly authorized to do so, and this Lease Agreement and any Lease Schedule constitute a valid and binding obligation of the parties hereto. The Lessee will, if requested by Lessor, provide to Lessor Certificates of Authority naming the officers of the Lessee who have the authority to execute this Lease Agreement and any Lease Schedules attached thereto. 24. Landlords' and Mortgagees' Waiver If requested, Lessee shall furnish waivers, in form and substance satisfactory to Lessor, from all landlords and mortgages of any premises upon which any Equipment is located. 25. Miscellaneous This Lease Agreement, the Lease Schedule(s), attached riders and any documents or instruments issued or executed pursuant hereto will have been made, executed and delivered in and shall be governed by the internal laws (as opposed to conflicts of law provisions) and decisions of the State of Minnesota. Lessee and Lessor consent to jurisdiction of any local, state or federal court located within Minnesota. Venue shall be in Minnesota and lessee hereby waives local venue and any objection relating to Minnesota being an improper venue to conduct any proceeding relating to this Lease Agreement. At Lessor's sole election and determination, Lessor may select an alternative forum, including arbitration or mediation, to adjudicate any dispute arising out of this Lease Agreement. This Lease Agreement and associated Lease Schedule(s) constitute the entire agreement between Lessor and lessee with respect to the lease of the Equipment superseding all prior correspondence between the parties. No provision of this Lease Agreement or any Lease Schedule shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by each of the parties hereto. If any one or more of the provisions of this Lease Agreement or any Lease Schedule will be unimpaired, and the invalid, illegal or unenforceable provision that is closest to the original intention of the parties. Lessee agrees that neither the manufacturer, nor the supplier, nor any of their salespersons, employees or agents are agents of Lessor. Any notice provided for herein shall be in writing and sent by certified or registered mail to the parties at the addresses stated on page 1 of the Lease Agreement. This Lease Agreement shall not become effective until delivered to Lessor at its offices at Minnetonka, Minnesota and executed by Lessor. If this Lease Agreement shall be executed by Lessor prior to being executed by Lessee, it shall become void at Lessor's option five (5) days after the date of Lessor's execution hereof, unless Lessor shall have received by such date a copy hereof executed by a duly authorized representative of Lessee. This Lease Agreement is made subject to the terms and conditions included herein and Lessee's acceptance is effective only to the extent that such terms and conditions are consistent with the terms and conditions herein. Any acceptance which contains terms and conditions which are in addition to or inconsistent with the terms and conditions herein will be counter- offer and will not be binding unless agreed to in writing by Lessor. The terms used in this Lease Agreement, unless otherwise defined, shall have the meanings ascribed to them in the Lease Schedule(s). 26. REPOSESSION LESSEE ACKNOWLEDGES THAT, PURSUANT TO SECTION 17 HEREOF, LESSOR HAS BEEN GIVEN THE RIGHT TO REPOSSESS THE EQUIPMENT SHOULD LESSEE BECOME IN DEFAULT OF ITS OBLIGATIONS HEREUNDER. LESSEE HEREBY WAIVES THE RIGHT, IF ANY, TO REQUIRE LESSOR TO GIVE LESSEE NOTICE AND A JUDICIAL HEARING PRIOR TO EXERCISING SUCH RIGHT OF REPOSSESSION. 27. Net Lease This Lease Agreement is a net lease and Lessee's obligations to pay all Lease Charges and other amounts payable hereunder shall be absolute and unconditional and, except as expressly provided herein, shall not be subject to any: (i) delay, abatement, reduction, defense, counterclaim, set-ff, or recoupment; (ii) discontinuance or termination of any license; (iii) Equipment failure, defect or deficiency; (iv) damage to or destruction of the Equipment; or (v) dissatisfaction with the Equipment or otherwise, including any present or future claim against Lessor to the manufacturer, supplier, reseller, vendor of the Equipment. To the extent that the Equipment includes intangible (or intellectual) property, Lessee understands and agrees that: (i) Lessor is not a party to and does not have any responsibility under any software; and (ii) Lessee will be responsible to pay all of the Lease Charges and perform all its other obligations under this Lease Agreement despite any defect, deficiency, failure, termination, dissatisfaction, damage or destruction of any software or software license. Except as expressly provided herein, this Lease Agreement shall not terminate for any reason, including any defect in the Equipment or Lessor's title thereto or any destruction or loss of use of any item of Equipment. 28. Headings Section headings herein are used for convenience only and shall not otherwise affect the provisions of this Lease Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be signed by their respective duty authorized representative. Every Term is Agreed to and Accepted: Every Term is Agreed to and Accepted: WINTHROP RESOURCES CORPORATION BUSINESS RESOURCE GROUP By: By: Print Name: Xxxx X. XxxXxxxxx Print Name: Xxxx Xxxxxx Title: Exec Vice President/Treasurer Title: VP Finance/CFO Date: July 2, 1998 Date: July 1, 1998
