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Exhibit 10.53
Lease No. 12966
MASTER LEASE AGREEMENT ("Master Agreement") made as of Sept. 13, 1996 between
DATA GENERAL CORPORATION, a Delaware corporation with a principal place of
business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx XX 00000 ("Lessor") and Reddi Brake
Supply Corporation with a principal place of business at 0000 Xxxxxx Xx.
Xxxxxxx, XX 00000 ("Lessee")
1. LEASE. Lessor leases to Lessee, and Lessee hires from Lessor,
the equipment, software licenses and other tangible or intangible personal
property described in each Lease Schedule executed under this Master Agreement.
All such property is referred to as "Leased Property." When Leased Property is
installed, the parties shall promptly complete and execute a Lease Schedule in
the form attached as Schedule A.
2. SCHEDULES.
2.1 Each Lease Schedule shall evidence a separate "Lease
Agreement" covering the Leased Property described therein and incorporating the
terms of this Master Agreement and any additional terms agreed to in the Lease
Schedule.
2.2 Each Lease Schedule shall be executed in one or more
counterparts, each bearing a unique number, only one of which shall be
"Counterpart No. 1." Each executed counterpart shall be deemed an original as
between the parties, but it and to the extent that a Lease Schedule constitutes
"chattel paper" as defined in the Uniform Commercial Code, no security interest
in the Lease Schedule may be created through the transfer or possession of any
counterpart other than Counterpart No. 1. This Master Agreement shall not itself
be chattel paper.
3. TERM.
3.1 This Master Agreement shall take effect on the date
when signed by both parties, and shall continue in effect so long as any Lease
Agreement made hereunder remains in effect or, if no Lease Agreement is in
effect, until either party gives a notice of cancellation to the other.
3.2 The Lease Term of each Lease Agreement shall have the
commencement date and duration specified in the Lease Schedule. No Lease
Agreement shall be cancelable or terminable by Lessee before the end of its
Lease Term except as provided in this Master Agreement.
4. TITLE AND OWNERSHIP.
4.1 Supply Contracts. Lessor shall acquire Leased
Property pursuant to the sale and license terms ("Supply Contracts") of the
respective suppliers. Except while there is an uncured Event of Default,
Lessor, to the extent of its power to do so, assigns to Lessee, and Lessee
shall have the benefit of, any warranties, service agreements and patent and
copyright indemnities given to Lessor with respect to Leased Property under the
Supply Contracts. Lessee's sole remedy for the breach of any such warranty,
service agreement or indemnity shall be against the manufacturer, licensor or
supplier by whom it was given (including, if applicable, Data General
Corporation in its capacity as manufacturer, licensor or supplier) but not
against Lessor, nor shall any such breach alter the respective obligations of
Lessor and Losses under this Master Agreement or any Lease Agreement.
4.2 Title. Lessee acknowledges Lessor's title to Leased
Property. Lessee has only a lessee's interest and no other right, title or
interest in Leased Property. Lessee shall not sell, mortgage, assign,
transfer, sub-lease, lend, relinquish possession of or encumber any Leased
Property, or permit or attempt any of the acts stated above, without Lessor's
prior written consent.
4.3 Encumbrances. At Lessee's cost, Lessee shall protect
and defend Lessor's ownership against all claims, liens, charges and legal
processes of Lessee, its creditors and all other persons, and take such action
as may be necessary (a) to remove any such encumbrance, and (b) to prevent any
third party from acquiring any interest in Leased Property including, without
limitation, avoiding any action by which Leased Property may be deemed to be a
part of any real estate. At Lessor's request, Lessee shall obtain written
waiver of the right to secure a lien on Leased Property from the owner,
mortgagee and beneficiaries under deeds of trust of each Installation Location.
4.4 Identification. Lessee shall, upon the request of
Lessor and at Lessee's expense, firmly affix to the Leased Property, in a
conspicuous place, such identification as Lessor may supply showing Lessor as
owner and Lessor of the Leased Property. Lessee shall not remove any logos,
marks or other such identification without the prior written consent of Lessor.
5. RENT AND PAYMENT OBLIGATIONS.
5.1 Payments. Lessee shall pay Lessor the rental amounts
specified in the pertinent Lease Schedule. The first rental payment shall be
due and payable on the payment date specified in the Lease Schedule.
Subsequent rental payments shall be due on the same day of each succeeding
month of the Lease Term, unless a longer interval is specified in the Lease
Schedule. A pro-rata rental payment shall be made with and in addition to the
first rental payment for the period, if any, from the acceptance date to the
day preceding the first rental payment date. All rents and other payments
shall be made to Lessor at the address specified in the Lease Schedule or at
such other address as may be designated to Lessee in writing by Lessor or by an
assignee of Lessor pursuant to Section 11.
5.2 Late Payments. Lessee agrees to pay a late charge on
any periodic payment not paid within ten (10) days after its due date, equal to
one and one-half percent (1.5%) of the overdue payment for each payment period
that the payment remains unpaid. Collection of a late payment charge shall not
prejudice any other remedies Lessor may have for default.
5.3 NET LEASE. EACH LEASE AGREEMENT SHALL BE A NET
LEASE, AND LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS WHEN DUE AND TO
PERFORM ALL OTHER OBLIGATIONS UNDER EACH LEASE AGREEMENT SHALL BE ABSOLUTE AND
UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF,
DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON.
No obligation of Lessee shall be affected by any defect in or damage to or loss
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or destruction of all or any part of the Leased Property from any cause
whatsoever, or by any interference with Lessee's use of the Leased Property by
any person or for any cause whatsoever. Any claims respecting the condition or
operation of the Leased Property shall be made solely against the manufacturers,
licensors and suppliers of the Leased Property, and Lessee shall nevertheless
pay Lessor or its successors and assigns all amounts due and payable under the
Lease Agreement.
6. TAXES.
6.1 Lessee shall pay when due or reimburse to Lessor, and
shall defend and indemnify Lessor on a net after tax basis against all sales,
use, value add, excise and other taxes, fees, assessments and all other charges
(including interest and penalties) imposed by any governmental body or agency
upon the purchase, ownership, license, possession, leasing, operation, use or
disposition of any Leased Property, any Lease Agreement or the rentals or other
payments, excluding only taxes on/or measured by Lessor's net income. Lessee
shall prepare and file promptly with the appropriate offices any and all tax and
similar returns required to be filed (sending copies to Lessor) or, if requested
by Lessor, shall notify Lessor of such requirement and furnish Lessor with all
information required by Lessor to effect such filing. Lessee's obligation under
this Sub-section shall commence with the Acceptance Date of each Lease Agreement
and shall survive the expiration or earlier termination of such Lease Agreement.
6.2 Taxable Status. Lessor disclaims all liability
arising from Lessee's treatment of any Lease Agreement or rental payment for
financial, accounting or tax purposes. Lessee represents that it is relying
solely on its own legal counsel and accountants with respect to such matters.
7. MAINTENANCE: ALTERATIONS. Lessee at its expense. shall keep
all Leased Property in good condition and working order, ordinary wear and tear
from proper use excepted. Lessee shall keep in force maintenance and support
agreements with the suppliers of Leased Property or other qualified service
vendors reasonably acceptable to Lessor. Lessee shall not make or suffer any
alteration or attachment which would violate the maintenance and support
agreements or relieve the service vendors of their obligations. Lessor's consent
shall be required for all alterations and attachments except those which do not
impair the commercial value or usefulness of the Leased Property and which can
be readily removed without causing damage. All attachments and alterations
requiring Lessor's consent shall be removed by Lessee before the return of the
Leased Property. All attachments and alterations not removed shall constitute
accessions to the Leased Property owned by Lessor.
8. USE AND LOCATION. Lessee shall use Leased Property only in the
ordinary conduct of its business, operated by qualified employees adhering to
instructions of the manufacturer applicable to operation, condition and
maintenance of the Leased Property. Lessee shall obtain all permits and
licenses necessary for the operation of the Leased Property and comply with all
other applicable laws and regulations, Lessee shall not relocate Leased Property
from its Installation Location, or part with possession or control of Leased
Property, without Lessor's prior written consent. Lessee shall be responsible
for all charges and expenses of such relocation. Lessor shall have the right to
inspect Leased Property during normal business hours any time after delivery.
9. RETURN. Unless Lessee exercises a purchase or renewal option
provided in the Lease Agreement, Lessee shall at its expense return the Leased
Property to the location specified by Lessor within the contiguous forty-eight
United States or the District of Columbia upon the termination of the Lease
Term, unencumbered and in the name condition and repair as when it was first
installed, ordinary wear and tear from proper use excepted. Lessee further
agrees that the Leased Property may remain on Lessee's premises for a reasonable
period after termination or expiration of the Lease Term at no charge to Lessor
for the purposes of repair, refurbishing and storage pending return shipment.
Lessor and its representatives may enter upon Lessee's premises for these
purposes.
10. WARRANTIES: DISCLAIMER.
10.1 Quiet Enjoyment, Lessor warrants that so long as no
event of default has occurred, neither Lessor nor its successors or assigns nor
anyone claiming by, under or through Lessor will interfere with Lessee's quiet
enjoyment and use of Leased Property.
10.2 DISCLAIMER. LESSOR LEASES THE LEASED PROPERTY "AS
IS." EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT. LESSOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE LEASED PROPERTY, AND DISCLAIMS
ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. LESSEE
HEREBY WAIVES ALL CLAIMS AGAINST LESSOR, INCLUDING ANY BASED ON STRICT OR
ABSOLUTE LIABILITY IN TORT, WHICH LESSEE MIGHT HAVE AGAINST LESSOR FOR ANY LOSS
OR DAMAGES, INCLUDING INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. LESSEE
ASSUMES SOLE RESPONSIBILITY FOR THE SELECTION OF LEASED PROPERTY AND THE
SUPPLIERS THEREOF (INCLUDING DATA GENERAL CORPORATION) BASED UPON ITS OWN
JUDGEMENT, AND DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY DATA GENERAL
CORPORATION OR ITS AGENTS.
11. ASSIGNMENT. LESSOR'S RIGHTS, TITLE, AND INTEREST IN AND TO
THIS MASTER AGREEMENT, OR ANY LEASE AGREEMENT OR LEASED PROPERTY MAY BE
TRANSFERRED AND ASSIGNED BY LESSOR WITHOUT NOTICE, AND LESSOR'S ASSIGNEE SHALL
HAVE ALL THE RIGHTS, POWERS, PRIVILEGES AND REMEDIES OF LESSOR UNDER THIS MASTER
AGREEMENT. LESSEE ALSO AGREES AND CONSENTS TO FURTHER ASSIGNMENTS OR SALES BY
THE THEN ASSIGNEE.
LESSEE AGREES NOT TO ASSERT AGAINST ANY ASSIGNEE ANY DEFENSE,
SET-OFF, RECOUPMENT, CLAIM OR COUNTERCLAIM WHICH LESSEE MAY HAVE AGAINST LESSOR,
WHETHER ARISING UNDER A LEASE AGREEMENT OR OTHERWISE. LESSOR AND ALL SUCH
ASSIGNEES ARE INDEPENDENT CONTRACTORS AND NONE SHALL BE DEEMED TO BE THE
PRINCIPAL, AGENT, REPRESENTATIVE, PARTNER OR JOINT VENTURER OF THE OTHER.
LESSEE SHALL NOT BE ENTITLED TO TERMINATE, AMEND OR ASSIGN
THIS MASTER AGREEMENT OR ANY LEASE AGREEMENT WITHOUT THE WRITTEN CONSENT OF SUCH
ASSIGNEE.
12. ADDITIONAL ASSURANCES. At Lessor's request, Lessee shall
execute, acknowledge and deliver such documents and take such action as Lessor
deems necessary to more effectively evidence Lessor's title to the Leased
Property covered by each Lease Agreement and protect Lessor's interests therein,
in accordance with the Uniform Commercial Code or other
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applicable law including, without limitation, the filing of financing and
continuation statements. Where permitted by law, Lessee authorizes Lessor to
make such filings without Lessee's signature.
13. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee,
shall fail to perform its obligations under this Master Agreement or any Lease
Agreement, Lessor or any assignee of Lessor may, at its option, perform the
obligation for the account of Lessee without waiving the default and without
discharging Lessee from the obligation. All expenses paid or incurred by
Lessor in such performance shall be payable by Lessee on demand in addition to
rental payments, together with interest at the rate of one and a half percent
(1.5%) per month or the highest lawful rate, whichever is less.
14. REPORTS. Lessee agrees to deliver to Lessor, within ninety
(90) days of the close of each fiscal year of Lessee, Lessee's current Annual
Report or other financial statements satisfactory to Lessor, certified by
certified public accountants. Lessee represents such reports shall be a true
and complete statement of Lessee's financial condition which Lessor may show to
financial institutions of Lessor's choice on a confidential basis.
15. INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor its successors and assigns from and against all losses, damages,
injuries, claims, fines, liabilities, demands, and expenses, including
attorney's fees and court costs, arising out of or pertaining to any Lease
Agreement or Leased Property, including the purchase, ownership,
transportation, delivery, installation, leasing, possession, use, operation,
maintenance, storage and return of the Leased Property, except any liability
resulting from the gross negligence or wilful misconduct of Lessor. Lessee and
Lessor each agree to give the other prompt written notice of any claim or
liability indemnified against. This indemnity shall survive the expiration or
termination of this Master Agreement or any Lease Agreement.
16. RISK OF LOSS. From the delivery of Leased Property until its
return pursuant to Section 9, Lessee shall bear the entire risk of loss,
damage, theft or destruction of Leased Property from any and every cause, and
no such event shall relieve Lessee of its obligation to pay rent or perform its
other obligations under any Lease Agreement. In the event of damage to Leased
Property, Lessee shall at its own expense repair the damage and restore the
Leased Property to its previous condition. If any Leased Property is lost,
stolen or damaged beyond repair, Lessee shall promptly notify Lessor and
shall, at Lessor's option, (a) replace the Leased Property with like property
in good condition and working order acceptable to Lessor, and transfer title to
the replacement property to Lessor, free and clear of all liens, claims and
encumbrances, which replacements shall then be subject to the applicable Lease
Agreement; or (b) pay Lessor an amount determined in accordance with
Sub-section 19.5, whereupon the Lease Agreement shall terminate as to such
Leased Property and Lessor's interest therein shall pass to Lessee on an as-is,
where-is basis, without recourse or warranty.
17. INSURANCE. From the delivery of Leased Property until its
return pursuant to Section 9, Lessee shall at Lessee's expense carry and
maintain the coverages specified in paragraphs 17.1 and 17.2 with insurance
companies reasonably satisfactory to Lessor:
17.1 Property insurance providing "all risk" coverage in an
amount not less than the replacement cost of the Leased Property;
17.2 General liability insurance covering liability for
damage to third party property and bodily injury to third parties, in amounts
satisfactory to Lessor. Such insurance shall name Lessor (or any successor,
assignee or secured party of Lessor who requests it) as loss payee for the all
risk coverage and as an additional insured for the liability coverage, and
provide thirty (30) days' written notice of any lapse, cancellation or material
change of coverage. Lessee will promptly provide to Lessor evidence of
insurance coverage at the commencement of each Lease Agreement and annually
thereafter. As long as no Event of Default is uncured, Lessor shall remit all
risk insurance proceeds to Lessee when Lessee either provides satisfactory
evidence of restoration or pays Lessor the amount due upon an event of loss
under Section 16. AT LESSEE'S OPTION, COVERAGE UNDER A DGC BUSINESS RECOVERY
ON-SITE SERVICE ADDENDUM WILL BE ACCEPTABLE IN LIEU OF COVERAGE REQUIRED BY
PARAGRAPH 17.1.
18. DEFAULT. Each of the following shall be deemed an Event of
Default:
18.1 Lessee shall default in the payment when due of any
rental payment or other sums payable under any Lease Agreement; or
18.2 Lessee shall default in the observance or performance
of any other obligation in this Master Agreement or any Lease Agreement and
such default shall continue for a period of fifteen (15) days; or
18.3 Lessee shall default in the performance of any
obligation or in the payment of any sum due to Lessor under any other
agreement; or
18.4 Lessee (which term, for purposes of this Sub-section
and Sub-sections 18.5, 18.6 and 18.7 below shall mean Lessee and any guarantor
or other person liable upon Lessee's obligations under this Lease) shall
dissolve or become insolvent or bankrupt, commit any act of bankruptcy, make an
assignment for the benefit of creditors, suspend the transaction or its usual
business or consent to the appointment of a trustee or receiver, or a trustee
or a receiver shall be appointed for Lessee or for a substantial part of its
property, or bankruptcy, reorganization, insolvency or similar proceedings
shall be instituted by or against Lessee; or
18.5 An order, judgment or decree is entered against
Lessee by a court of competent jurisdiction and such order, judgment or decree
shall continue unpaid or unsatisfied and in effect for a period of sixty (60)
days, or any execution or writ or process shall be issued in connection with
any action or proceeding against Lessee or its property, by which Leased
Property or any substantial part of Lessee's property may he taken or
restrained; or
18.6 An attachment, levy or execution is threatened or
levied upon or against Leased Property; or
18.7 Any warranty, representation or statement made in
writing by Lessee, is found to be incorrect or misleading in any material
respect as of the date made; or
18.8 Any insurance carrier cancels the insurance on the
Leased Property and
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Lessee fails to replace such coverage within the notice period specified in
Section 17; or
18.9 The Leased Property or any part of it is abused,
illegally used, or misused; or
18.10 Any indebtedness of Lessee for borrowed money shall
become due and payable by acceleration of its maturity.
In any such event, Lessor may, by written notice to Lessee, and to the
extent permitted by law, exercise any one or more of the remedies listed in
Section 19 below, as Lessor shall lawfully elect in order to protect the
interests and reasonably expected profits and bargains of Lessor.
19. REMEDIES. Lessor's remedies for the events of default listed
in Section 18 are as follows:
19.1 Upon notice by Lessor, terminate any Lease Agreement,
either in its entirety or as to such items of Leased Property as Lessor shall
specify in the notice. Any Lease Agreement not terminated in its entirety
shall continue in effect as to the remaining items.
19.2 Declare immediately due and payable each and all
rental payments and other amounts due and to become due, including any renewal
or purchase obligations.
Lessor shall have the right to offset any monies being held in escrow
or due and payable to Lessee from Lessor under this Agreement or any other
agreement between Lessee and Lessor.
19.3 Require Lessee, at its expense, to promptly return Leased
Property to Lessor, or Lessor may enter the premises where Leased Property is
located and take possession of or disable any part or all of the Leased
Property without demand or notice, without any court order or other process of
law and without liability for any damage occasioned by taking possession. Such
return or taking of possession shall not constitute a termination of any Lease
Agreement unless Lessor expressly so notifies Lessee in writing.
19.4 Proceed by appropriate court action or actions,
either at law or in equity, to enforce performance by Lessee of the applicable
covenants of any Lease Agreement or to recover damages for its breach.
19.5 With or without terminating any Lease Agreement,
recover from Lessee, not as a penalty, but as liquidated damages, an amount
equal to the sum of (i) any rent accrued and unpaid under the Lease Agreement
as of the date of entry of judgment in favor of Lessor plus interest at the
rate of eighteen percent (18%) per annum; (ii) the present value (discounted at
4%) of all future rentals reserved in the Lease Agreement and contracted to be
paid over the unexpired term of the Lease Agreement: (iii) all commercially
reasonable costs and expenses, including reasonable attorney's fees and costs,
incurred by Lessor in any repossession, recovery, storage, or repair, sale,
re-lease or other disposition of the Leased Property in connection with or
otherwise resulting from Lessee's default; (iv) the estimated residual value of
the Leased Property as of the expiration of the Lease Agreement or any renewal
thereof; and (v) any indemnity, if then determinable, plus interest at eighteen
percent (18%) per annum.
19.6 In Lessor's sole discretion, re-lease or sell any or
all of the Leased Property at a public or private sale an such terms and notice
an Lessor shall deem reasonable and recover from Lessee, not as a penalty, but
as liquidated damages, an amount equal to the sum of (i) any accrued and unpaid
rent as of the "Default Date" here defined as the later of the date of default
or the date that Lessor obtains possession of the Leased Property or such other
date as Lessee makes an effective tender of possession of the Leased Property
back to Lessor; plus rent at the rate provided for in the Lease Agreement for
an "Additional Period" here defined as the period commencing on the Default
Date and ending on the earlier of the date all the Leased Property is resold or
re-let by Lessor or the date of entry of judgment in favor of Lessor; (ii) the
present value (discounted at 4%) of all future rentals reserved in the Lease
Agreement and contracted to be paid over the unexpired term of the Lease
Agreement, and the present value (discounted at 4%) of the estimated residual
value of the Leased Property as of the expiration of the Lease Agreement or any
renewal thereof; (iii) all commercially reasonable costs and expenses,
including reasonable attorney's fees and costs, incurred by Lessor in any
repossession, recovery, storage, or repair, sale, re-lease or other disposition
of the Leased Property in connection with or otherwise resulting from Lessee's
default; and (iv) any indemnity, if then determinable, plus interest at
eighteen percent (18%) per annum; LESS the amount received by Lessor upon
public or private sale or re-lease of the Leased Property, it any.
In any event, Lessee shall continue to be liable for all indemnities
under this Master Agreement and any Lease Agreement, and for all Lessor's legal
fees and other costs and expenses resulting from any event of default or
incurred in the enforcement of any right or remedy under this Master Agreement.
No remedy under this provision is intended to be exclusive, but each shall be
cumulative and in addition to any other remedy set forth herein or otherwise
available to Lessor at law or in equity.
20. MISCELLANEOUS.
20.1 Headings used in this Master Agreement or any Lease
Schedule are for reference purposes only and shall not be given any substantive
effect.
20.2 Failure of a party to insist in any instance upon
strict performance by the other party of any of the provisions of any Lease
Agreement or this Master Agreement shall not be construed or deemed to be a
permanent waiver of that or any other provision.
20.3 All notices issued in connection with this Master
Agreement or any Lease Agreement shall be in writing (unless otherwise
specifically provided in the Lease Schedule) and shall be sent by (i) certified
or registered mail, postage prepaid; (ii) facsimile transmission; or (iii)
overnight express courier with receipted delivery. Notices shall be addressed
as follows: If to Lessor: Data General Corporation
Attn: Director, Data General Leasing
0000 Xxxxxxxx Xxxxx, Mail Stop E-111
Xxxxxxxx, Xxxxxxxxxxxxx 00000
If to Lessee: Lessee's address as first noted above or the billing address
specified on the pertinent Lease Schedule.
Either party may change its address for notification purposes by
notice given to the other party. All notices shall be effective on the third
business day after issuance unless a different period in specified elsewhere in
this Master Agreement.
20.4 Each Lease Agreement and this Master Agreement shall be
construed in accordance with and governed by the laws of
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the Commonwealth of Massachusetts excluding its conflict of law rules.
20.5 Any provision of this Master Agreement or any Lease Agreement
which is invalid under the law or any state shall to the extent of such
prohibition be ineffective in such state only, without invalidating the
remaining provisions of this Master Agreement in such state.
20.6 Each Lease Agreement, including this Master Agreement,
constitutes the complete and exclusive statement of the agreement of the
parties and supersedes all prior oral and written communications, agreements,
representations, statements, negotiations and undertakings between the parties
relating to the subject matter of that Lease Agreement. No modification,
termination, extension, renewal or waiver of any provision or this Master
Agreement or any Lease Agreement shall be binding upon a party unless made in
writing and signed by an authorized representative of that party. If more than
one Lessee is named in this Master Agreement, their liability shall be joint
and several.
LESSOR AND LESSEE ACKNOWLEDGE THAT THEY HAVE READ THIS MASTER AGREEMENT,
UNDERSTAND IT, AND AGREE TO BE BOUND BY IT AS OF THE DATE FIRST ABOVE WRITTEN,
BUT ONLY AFTER ITS EXECUTION BY THEIR AUTHORIZED REPRESENTATIVES. LESSEE
FURTHER ACKNOWLEDGES RECEIPT FROM LESSOR OF A TRUE COPY OF THIS MASTER
AGREEMENT.
21. UCC ARTICLE 2A PROVISIONS.
insofar as Article 2A of the Uniform Commercial Code ("UCC")
may become applicable to any Lease Agreement, Lessee hereby waives any rights
and remedies which may be given to Lessee by UCC Sections 2A-508 through
2A-522.
DATA GENERAL CORPORATION, LESSOR LESSEE: REDDI BRAKE SUPPLY CORPORATION
Signature: XXXXXXX X. XXXXXXX Signature: [SIG]
------------------------- -------------------------
Authorized Representative Authorized Representative
Title: Leasing Manager Title: President / CEO
----------------------------- -----------------------------
Data General Leasing
Date: 09/25/96 Date: 09/23/96
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LEASE SCHEDULE NO. 001 DATED SEPTEMBER 13, 1996
TO MASTER LEASE AGREEMENT NO. 12966 DATED SEPTEMBER 13, 1996
BETWEEN DATA GENERAL CORPORATION AS LESSOR
AND REDDI BRAKE SUPPLY CORPORATION AS LESSEE
This is counterpart #1 of 1 serially numbered, manually
executed counterparts. To the extent that this document
constitutes chattel paper under the Uniform Commercial
Code, no security interest in this document may be created
through the transfer and possession of any counterpart
other than Counterpart No. 1.
Term of Lease: 62 months starting LESSEE'S PURCHASE ORDER NO.
on the first day of the calendar --------------
month beginning on or next following
the Acceptance Date stated below.
Pmts: 1-2 at $15,000.00/Mo.
Pmts: 3-6 at $33,000.00/Mo.
Pmts: 7-12 at $38,000.00/Mo.
Pmts: 13-62 at $35,500.09/Mo. LEASE SCHEDULE VALUE: $1,784,807.00
Acceptance Date: 10/1/96 ADVANCE PAYMENT (if any): $35,500.09+Tax
Installation Location: LESSEE'S BILLING ADDRESS
0000 Xxxxxx Xx. -----------------------------------------
Xxxxxxx, XX 00000
-----------------------------------------
The Master Lease Agreement referenced above is hereby incorporated into this
Schedule. The Master Lease Agreement and this Schedule together form one Lease
Agreement by which Lessor leases to Lessee the "Leased Property" as defined in
the Master Lease Agreement and listed in the Configuration Attachment attached
to this Schedule.
The first rental payment and any other amounts due at the commencement of the
Lease Agreement shall be due and payable on the first day of the calendar month
beginning on or next following the Acceptance Date shown above. Subsequent
rental payments shall be due on the first day of each succeeding month of the
Lease Term, unless a longer interval is specified above. All rents and other
payments shall be made to Lessor at the address specified above or at such other
address as may be designated to Lessee in writing by Lessor, or by any assignee
of Lessor.
Lessee acknowledges that Lessee selected the products and suppliers of the
Leased Property and authorized Lessor to acquire the Leased Property upon the
sale and license terms and conditions ("Supply Contracts") of the respective
suppliers, and arrange for its shipment at Lessee's expense to the Installation
Location. Lessee acknowledges that it has received, reviewed and approved each
Supply Contract under which Lessor acquired the Leased Property. Lessor has
informed Lessee that Lessee may have rights against the suppliers, that the
Lease Agreement does not preclude such rights or discharge the obligations of
any Supplier (including Data General Corporation in its capacity as the
Supplier) under a Supply Contract. Any claims respecting the condition or
operation of the Leased Property shall be made solely against the suppliers of
the Leased Property, and Lessee shall nevertheless pay Lessor or its successors
and assigns all amounts due and payable under this Lease Agreement.
Lessee acknowledges that it has had reasonable opportunity to inspect the Leased
Property and that the Leased Property conforms with the Supply Contracts, the
Lease Agreement and the Configuration Attachment. By signing this Schedule, or
by putting the Leased Property to productive use, whichever first occurs, Lessee
accepts the Leased Property listed on the Configuration Attachment as of the
Acceptance Date written above. Lessee acknowledges that on such date, the Leased
Property was installed in good working order by its respective suppliers using
their standard installation procedures and diagnostic programs applicable to
such Leased Property, which define good working order, and that as of such date,
the Leased Property was ready for use under the Lease Agreement.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed and delivered by their authorized representatives.
DATA GENERAL CORPORATION, LESSOR LESSEE: REDDI BRAKE SUPPLY CORPORATION
Signature: XXXXXXX X. XXXXXXX Signature: [SIG]
------------------------- ---------------------------
Authorized Representative Authorized Representative
Xxxxxxx X. Xxxxxxx
Title: Leasing Manager Title: Pres/CEO
Data General Leasing ---------------------------
------------------------------------------------------------------------------
CERTIFICATE OF ACCEPTANCE Lease Schedule No. 00000-000
Xxxxxx certifies that the Leased Property described in the Lease Schedule is
installed in good working order and ready for use. Lessee accepts the Leased
Property as satisfactory for all purposes of the Lease.
Lessee: REDDI BRAKE SUPPLY CORPORATION
by: [SIG]
----------------------------------
Signature (Title)
---------------------------------
Print Name of Signer
9-25-96
---------------------------------
Date
7/94
7
Leased Property for Lease Agreement No. 12966-001
ITEM# QTY MODEL# DESCRIPTION
----- --- ---------- -----------
1 85 92578-A AV2000-166, UNI, 16MB, FDD, CD, NO HD, DWM
2 85 R2503 REPLACE 16MB MEMORY W/32MB MEMORY
3 85 26044 4GB 7200RPM SCSI HARD DRIVE
4 85 6810-B 320/525MB SCSI TAPE DRIVE
5 85 26030 14" EPA L.R. MULTISCAN MONITOR
6 85 7446 PCI LAN CONTROLLER/100
7 85 2943 DO NOT AUTOLOAD STD DOS WINDOWS ON PC
8 85 7060-A ENABLE DG/UX - AV2000/3000, N.AMERICA
9 85 P001AFA1CD DG/UX FOR INTEL L/M/D 4-USER
10 85 13S1008P05 CUSTOM STAGING & IMPLEMENTATION
11 85 10909 APC SMART-UPS 600VA UPS
12 85 12418E015 DATA GUARD CABLE D89 TO DB25
13 85 15456E006 6' SCSI-2 CABLE FOR AV/2000 CDAC
14 85 12192 US ROBOTICS SPORTSTER V.34 EXT MODEM
15 85 1338 MODEM CABLE
16 1 70675 AV3600 PENT. PRO 000 XXX, 00XX, XXX, XXX, CDROM, FLP
17 1 R7362 REPLACE EXISTING 64MB WITH 256MB MEMORY BOARD
18 16 79012-HF 4GB 7200 RPM DISK FOR CLARIION ARRAYS
19 1 79201D HIGH PERFORMANCE HA ARRAY PKG - DESK
20 1 545OTD DLT4000 TT DIFF TAPE LIB 5-CART
21 2 6945G D16001 00" XXXXXXXX, XXXXX, XXXXXXXXX
22 2 G6001A-A D12001/D16001 101-KEYBOARD, PWR CORD
23 4 40538PKG 10BASET CABLE CONNECTOR ADPTR 10-PACK
24 1 4839T32A T/S ANNEX THREE, 32 PORT 10BASET/FM
25 2 7444 DIFF PCI TO SCI HOST BUS ADAPTER
26 1 7446 PCI LAN CONTROLLER/100
27 1 DG/UX DG/UX OP SYSTEM DESIGNATOR
28 1 P001AFA1CD DG/UX FOR INTEL L/M/D 4-USER
29 1 P001AQA61D DG/UX FOR INTEL S- 32-USER
30 1 P001AQA9FN DG/UX FOR INTEL UPGRADE TO 32 USERS
31 1 P001AZU7AN AVIION IMPLEMENTATION SERVICE - MED
32 1 R057AQA4LD DSK ARRAY MGT LIC IN. CODE SVC.INTEL
33 1 12350-A 2KVA UPS 208V AC INPUT 240:120 OUTPUT
34 1 12418E01S DATA GUARD CABLE DB9 TO DB25
35 1 1545E005 5' SCSI-2 68 PIN HD TO 50 PIN CHAMP
36 6 40740-C CCI XYLOGIC HYDRA CABLE 6 LEGS
37 1 13INST20-S HARDWARE INSTALL - CLARIION DSK ARRAY
38 1 13INST51-B H/W INSTALL-CLASS 2 NETWORK DEVICE
39 2 00000X000 SCSI CABLE, 68P HD -68P HD 10FT
40 12 12192 US ROBOTICS SPORTSTR V.34 EXT MODEM
41 12 1338 MODEM CABLE
3RD PARTY SOFTWARE LICENSE AGREEMENT #
------------------
DATED TO INCLUDE:
-------------------
42 DATA BASE LICENSES
------------------
2 ORACLE7**
165 ORACLE7**
43 APPLICATIONS LICENSES
---------------------
6 CORE SOLUTION MODULES
20 APPLICATION BUNDLE
1 APPLICATION OBJECT LIBRARY
20 APPLICATION DISPLAY MANAGER
1 DEVELOPER/2000&***
1 ORACLE ALERT
44 DEVELOPER AND END-USER TOOLS
----------------------------
1 DEVELOPER/2000***
32 DISCOVERER/2000
8
REDDI BRAKE SUPPLY CORPORATION
LEASE AGREEMENT NO. 1296-001
Page 2 of 2
--------------------------------------------------------------------------------
ITEM # QTY MODEL # DESCRIPTION
--------------------------------------------------------------------------------
45 ORACLE OFFICE LICENSES
900 ORACLE OFFICE
46 1 YEAR SOFTWARE MAINTENANCE
47 3 YEAR HARDWARE MAINTENANCE
LESSEE HAS SELECTED THE LEASED PROPERTY ON THIS SCHEDULE BASED UPON ITS OWN
JUDGEMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE UPON STATEMENTS MADE BY LESSOR.
LESSEE ACKNOWLEDGES THAT THE LEASE IMPOSES NO RESPONSIBILITY OR LIABILITY UPON
LESSOR FOR PERFORMANCE OR OPERATION OF THE SCHEDULED PRODUCTS. THE LEASE GRANTS
NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH
RESPECT TO THE SCHEDULED PRODUCTS AND LESSOR DISCLAIMS ALL IMPLIED WARRANTIES OR
MERCHANTABILITY AND FITNESS FOR PURPOSE. HOWEVER, THE LEASE PRESERVES LESSEE'S
RIGHTS AGAINST THE VENDORS OF THE SCHEDULED PRODUCTS AND LESSEE SHALL LOOK TO
THE VENDORS OF THE PRODUCTS CONCERNING PERFORMANCE AND OPERATION OF THEIR
RESPECTIVE PRODUCTS.
Data General Corporation Reddi Brake Supply Corporation
------------------------------- -------------------------------
Lessor Lessee
[SIG] [SIG]
------------------------------- -------------------------------
Authorized Representative Authorized Representative
XXXXXX X. XXXXXXX
LEASING MANAGER
Title: DATA GENERAL LEASING Title: President/CEO
------------------------ -----------------------
Date: 09/25/96 Date: 09/23/96
------------------------ -----------------------
9
PURCHASE OPTION RIDER
Rider attached to and made a part of this LEASE AGREEMENT # 12966-001
The provisions of the aforementioned printed LEASE AGREEMENT notwithstanding,
Lessor and Lessee mutually agree that:
1. Subject to the Lessee having performed all of its obligations under
the LEASE AGREEMENT between the Lessor, the Lessee and any other
parties named therein, and provided that the Lessee is not in default
therein, the Lessee shall have the option to purchase or renew all,
but not, less than all, of the Equipment described in said LEASE
AGREEMENT, at the expiration of the stated LEASE AGREEMENT Term
thereof.
2. This option may be exercised by the Lessee only upon delivery of a
written notice of intent to purchase to the Lessor not less than sixty
(60) days nor more then ninety (90) days before the expiration of
such LEASE AGREEMENT Term. In the event that Lessee fails to give
notice to Lessor, Monthly Rental Payments shall continue at the then
existing Payment Amount until sixty (60) days after notice is given by
Lessee.
3. The purchase option price, which must be paid in full, for the
Equipment at the expiration of such LEASE AGREEMENT shall be the then
fair market value of the Equipment either as mutually agreed upon by
the Lessor and Lessee or as determined by an independent appraiser
selected by the Lessor and satisfactory to the Lessee, Lessee bearing
all fees and expenses. If the purchase option price cannot be agreed
upon as determined hereby within thirty (30) days after the date of
delivery to the Lessor of the notice of intent to purchase hereunder,
then this option shall expire and be null and void.
4. The payment of the purchase option price by the Lessee to the Lessor
shall be in cash or by certified or bank check. Upon such payment,
the Lessor shall transfer to the Lessee all its right, title and
interest in and to the Equipment described in said LEASE AGREEMENT on
an "AS IS", "WHERE IS" basis.
5. Lessee shall have the option to renew the Lease Agreement for the then
fair rental value upon (60) days notice before or any time after
expiration of the Lease Agreement term. The fair rental value shall be
mutually agreed upon by the Lessor and Lessee or as determined by an
independent appraiser selected by Lessor and satisfactory to Lessee,
with the Lessee bearing all fees and expenses.
6. This Agreement shall not be effective until signed on behalf of the
Lessor by a duly authorized representative. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Massachusetts and shall bind and inure to the benefit of the parties
and their respective heirs, personal representative, successor and
assigns, provided that the Lessee shall not assign this Agreement or
any right thereunder or interest therein without the prior written
consent of the Lessor.
7. Lessee will receive credit equal to one (1) monthly payment for each
four (4) consecutive payments made promptly for a maximum of twelve
(12) payments credit to be applied to the last twelve (12) payments of
the term of the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their authorized representatives.
Data General Corporation Reddi Brake Supply Corporation
------------------------------- -------------------------------
Lessor Lessee
[SIG] [SIG]
------------------------------- -------------------------------
Authorized Representative Authorized Representative
XXXXXX X. XXXXXXX
LEASING MANAGER
Title: DATA GENERAL LEASING Title: President/CEO
------------------------ -----------------------
Date: 09/25/96 Date: 09/23/96
------------------------ -----------------------
