Exhibit 10.69
TAL FINANCIAL CORPORATION
0000 XXXXXXXXX XXXX LEASE NO. _____
XXXXXXXXXX, XXXXXXXXXXXXX 00000
EQUIPMENT LEASE
EQUIPMENT LEASE dated as of ___________, 19__, between TAL FINANCIAL
CORPORATION, (hereinafter called "Lessor"), a Massachusetts corporation having a
place of business at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, and
Information Management Associates, Inc. (hereinafter called "Lessee"), a
Connecticut corporation with its principal place of business at Xxx Xxxxxxxxx
Xxxxx - Xxxxx 000, Xxxxxxx, Xxxxxxxxxxx 00000. Lessee desires to lease from
Lessor the personal property, hereinafter defined as "Equipment", and Lessor is
willing to lease such personal property to Lessee at the rent, for the term and
upon the conditions set forth in this lease or in any Exhibit, Schedule,
Addendum, Amendment or Modification hereto. Accordingly, Lessor and Lessee agree
as follows:
1. Definitions.
The following terms shall, unless the context otherwise requires, have the
following meanings for all purposes of this lease:
(a) "Equipment" means the equipment described on each Rental
Schedule now or hereafter executed pursuant to this Lease, and
owned or to be owned by Lessor and leased by Lessor to Lessee or
ordered by Lessor for lease to Lessee as provided herein.
(b) "Acquisition Cost" of any item of Equipment means an amount
equal to the sum of (i) the purchase price of such item paid by
Lessor, plus (ii) any excise, sales and use tax on or with
respect to such item of Equipment, plus (iii) any costs,
expenses, and fees paid or incurred by Lessor in obtaining and
delivering such item of Equipment to Lessee and any expenses of
installation of such item of Equipment paid for by Lessor.
Lessor shall retain the option of either including the costs and
expenses contained in (ii) and (iii) above in the Acquisition
Cost, require the Lessee to incur or demand direct reimbursement
for such costs incurred and not included in the Rental Schedule.
(c) "Certificate of Inspection and Acceptance" means a certificate,
substantially in the form attached hereto and marked "Exhibit
A", to be executed by Lessee, and dated the date of Lessee's
acceptance for lease hereunder of any Equipment delivered to
Lessee, each of which certificates shall be deemed to
incorporate all of the provisions of the Lease.
(d) "Rental Schedule" means a schedule to be executed by Lessor and
Lessee, substantially in the form attached hereto and marked
"Exhibit B", setting forth a full description of Equipment to be
leased hereunder, its location, Acquisition Cost, the amount of
rent payable by Lessee with respect thereto, the period thereof,
the Lease Commencement Date with respect thereto, and such other
details as Lessor and Lessee may desire.
(e) "Casualty Occurrence" and "Full Replacement Cost" shall have the
meanings specified in Section 14 hereof.
(f) "Events of Default" shall have the meanings specified in Section
19 hereof.
(g) "Lease Commencement Date" with respect to an item of Equipment
means the date of the commencement of the lease term of such
item which shall be the erarliest date such item is accepted by
Lessee for lease hereinunder as provided in Section 3 hereof,
shipment by the Seller or passage of risk of loss to the Lessor.
2. Lease of Equipment.
Lessee shall evidence its request to Lessor to order specific items of
Equipment for lease to Lessee hereunder by its executing and delivering to
Lessor a Rental Schedule for such items. Lessee's execution of each such
Rental Schedule shall obligate Lessee to lease the Equipment described
therein from Lessor upon the acceptance, as provided in Section 3 hereof,
of such Equipment by Lessee for lease hereunder.
3. Delivery and Acceptance.
Upon acceptance for lease by Lessee of any Equipment delivered to Lessee
and described in a Rental Schedule, Lessee shall execute and deliver to
Lessor a Certificate of Inspection and Acceptance with respect to such
Equipment. If Lessee fails to execute and deliver such Certificate of
Inspection and Acceptance to Lessor within fifteen (15) days following the
delivery of any Equipment describe in a Rental Schedule, previously
executed and delivered by Lessee, then, unless Lessee has, within such
period, notified Lessor in writing that such Equipment is defective or is
in unsatisfactory repair or working condition, it shall be conclusively
presumed as between Lessor and Lessee that such Equipment has been
unconditionally accepted for lease hereunder as of the fifteenth (15th) day
following its delivery to Lessee, with the same force and effect as if
Lessee had, on such date, executed a Certificate of Inspection and
Acceptance with respect thereto.
4. No Warranties by Lessor.
As between Lessor and Lessee, Lessee's acceptance for lease hereunder of
any Equipment as evidenced by its execution of a Certificate of Inspection
and Acceptance with respect thereto (or Lessee's presumed acceptance for
lease of such Equipment under the circumstances described in Section 3
hereof) shall constitute Lessee's acknowledgment that such Equipment (a) is
of a size, design, capacity and manufacture acceptable to Lessee for lease
hereunder, (b) is suitable for Lessee's purposes, (c) is in good order,
repair and condition, and (d) is subject to all of the terms and conditions
of the Lease. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED
OR IMPLIED, AS TO TITLE, OR ITS FREEDOM FROM THE CLAIMS OF OTHERS BY WAY OF
INFRINGEMENT OR OTHERWISE, FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY,
SUITABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR ANY PARTICULAR
PURPOSE, OR THE MATERIAL OR WORKMANSHIP OF ANY ITEM OF EQUIPMENT, IT BEING
AGREED AND UNDERSTOOD THAT EACH ITEM OF EQUIPMENT TO BE LEASED PURSUANT TO
THIS LEASE IS LEASED "AS IS" AND THAT ALL
SUCH RISKS AS BETWEEN LESSOR AND LESSEE ARE TO BE BORNE BY LESSEE. In no
event shall any defect in, or unfitness of, any Equipment relieve Lessee of
the obligation to pay rent or to make any other payments required hereunder
or of any other obligation hereunder without deduction or set-off of any
kind. Without limiting the generality of the foregoing, Lessor shall not be
liable for any defects, either latent or patent, in any of the Equipment,
or for any direct or consequential damage therefrom; for loss of use of any
of the Equipment or for any interruption in Lessee's business occasioned by
Lessee's inability to use any of the Equipment for any reason whatsoever;
or for any failure or delay in obtaining any Equipment for delivery to
Lessee. Lessee hereby waives any such claims against Lessor, and Lessor
assigns to Lessee any of the rights which Lessor may have against Seller or
any other person for breach of warranty or other representation respecting
the equipment. Lessee hereby acknowledges that it has selected both (a) the
equipment and (b) the Seller from whom the Lessor is to purchase the
equipment. If the equipment is not properly installed, does not operate as
represented or warranted by the Seller or is unsatisfactory for any reason,
Lessee shall have any claim on account thereof solely against the Seller.
Lessee understands and agrees that neither the Seller nor any salesman or
other agent of the Seller is an agent of the Lessor. No salesman or agent
of the Seller is authorized to waive or alter any term of condition of this
lease and no representation as to the equipment or any other by the Seller
shall in any way affect the Lessee's duty to pay the rent and perform its
other obligations as set forth in this Lease.
5. Lease Term. The lease term of each item of Equipment shall
commence on the Lease Commencement Date thereof and shall, unless sooner
terminated pursuant to the provisions of Section 14, 18 or 19 hereof, be
for the period specified on the Rental Schedule therefor plus the number of
days remaining in any partial first month if the Lease Commencement Date
occurs on other than the first day of a month. However, the provisions of
Section 11 shall apply as between Lessor and Lessee with respect to any
Equipment from the date any Rental Schedule therefor is executed and
delivered by Lessee.
Unless ninety (90) days prior written notice of termination is given by
either party to the other, the Lease Term shall be automatically extended
for successive annual periods and payments for rent shall continue to be
made in the amounts and on the monthly dates theretofore payable. Any such
termination notice shall be effective only as of the last day of the
initial Lease Term or of any extended Lease Term.
6. Rent. Lessee's obligation to pay rent for each item of
Equipment shall commence on the Lease Commencement Date thereof, as defined
in Section 3, or any Seller's certification that such Equipment has been
installed and is operating properly. Lessee agrees to pay Lessor, monthly
in advance, on the first day of each month throughout the lease term of
each item of Equipment, the monthly rent specified for each item of
Equipment on the Rental Schedule therefor. If the Lease Commencement Date
of an item of Equipment occurs on other than the first day of a month, the
rent for the partial first month of the lease term shall be determined by
dividing the amount of the average monthly rent for such item by thirty
(30) and multiplying the quotient by the number of days remaining in said
partial first month, including the Lease Commencement Date, and such
partial first month's rent shall be payable with the first full month's
payment of rent. Lessee hereby authorizes Lessor to insert the amount of
such partial first month's rent for each such item of Equipment on the
Rental Schedule therefor when such item has been accepted by Lessee for
lease hereunder as provided in Section 3 hereof. The rents specified on the
Rental Schedule(s) shall be payable unconditionally, without notice or
demand, without any deduction, counter-claim, set-off, further notice or
demand, and together with all other payments due under this Lease shall be
payable directly to Lessor at the address appearing in the introductory
paragraph of this Lease, or to such other party or at such other address as
Lessor may from time to time designate in writing.
7. Errors in Acquisition Cost. In the event that at any time
before or after an item of Equipment is accepted by Lessee for lease
hereunder it becomes known that the actual Acquisition Cost of such item
differs from the Acquisition Cost figure, at the time such item was ordered
for lease hereunder, Lessee hereby authorizes Lessor to make the necessary
adjustments or corrections necessitated thereby in the rent figures for
such item set forth on such Rental Schedule.
8. Lessee's Representations and Warranties. Lessee represents
and warrants that (a) Lessee is a corporation legally incorporated and
validly existing, in good standing, under the laws of its state of
incorporation set forth above, with full corporate power to enter into this
Lease and to pay and perform all of its obligations hereunder; (b) this
Lease has been duly authorized, executed and delivered by Lessee and
constitutes the valid, legal and binding obligation of Lessee, enforceable
in accordance with its terms; (c) no approval is required from any public
regulatory body nor from any parent or affiliate of Lessee or from any
other person, firm or corporation with respect to the entering into or
performance of this Lease; (d) the entering into and performance of this
Lease by Lessee, and the leasing of the Equipment hereunder by Lessee, and
the payment by Lessee of the rent and all other obligations due hereunder,
will not result in any breach of, or constitute a default under, or result
in the creation of any lien, charge, security interest or other encumbrance
in or upon any Equipment pursuant to, any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Lessee is
a party or by or under which Lessee may be bound; (e) no mortgage, deed of
trust, or other lien of any nature whatsoever which now covers or affects,
or which may hereafter cover or affect any property or interest therein of
Lessee, now attaches or hereafter will attach to the Equipment leased
hereunder or in any manner affects or will affect adversely Lessor's right,
title and interest therein; and (f) there are no suits or proceedings
pending, or, to the knowledge of Lessee threatened, in any court or before
any regulatory commission, board or other administrative governmental
agency against or affecting Lessee, which will have a material adverse
effect on the financial condition or business of Lessee; (g) The balance
sheet of the Lessee as of the end of the end of the Lessee's most recent
fiscal year and the related earnings statement of the Lessee for the fiscal
year then ended, or for any interim period (copies of which have been
furnished to the Lessor) fairly present the Lessee's financial condition as
of such date and the results of its operations for such period, and since
such date there has been no material adverse change in such condition or
operations.
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9. Identification Marks. If requested by Lessor or assignee or
required by federal, state or local law, Lessee shall, at Lessee's expense,
affix or attach to the Equipment a sign, stencil, plaque, legend, tag or
other form of notice to disclose Lessor's ownership of the Equipment or
that the Equipment is leased from Lessor, and Lessee shall keep and
maintain such sign, stencil, plaque, legend, tag or other form of notice
affixed or attached to the Equipment throughout the lease term thereof.
Lessee will not allow the name of any persons, association or corporation
to be placed on any Equipment as a designation or as a claim of ownership
other than that of Lessor; provided, however, that Lessee may cause such
Equipment to be lettered with the names or initials or other insignia
customarily used by Lessee on equipment used by it of the same or a similar
type for convenience or identification of its rights to use such Equipment
as permitted under this Lease or normal advertising displays.
10. Fees and Taxes. Lessee agrees to pay promptly when due, and
to indemnify and hold Lessor harmless from, all license, title and
registration fees whatsoever, all levies, imposts, duties, charges or
withholdings whatsoever, and all sales, use, personal property, stamp and
other taxes whatsoever (together with any penalties, fines or interest
thereon) whether assessed, levied or imposed by any governmental or taxing
authority against or upon Lessor or otherwise, with respect to any
Equipment or the purchase, acquisition, ownership, delivery, leasing,
possession, use, operation, control, return or other disposition thereof,
or the rents, receipts or earnings arising therefrom, or with respect to
this Lease, excluding, however, any federal, state or local taxes levied on
Lessor's net income (meaning "Taxable Income" as presently determined under
the Federal Internal Revenue Code). In the event any such fees, levies,
imposts, duties, charges or taxes are paid by Lessor, or if Lessor be
required to collect or pay any thereof, Lessee shall reimburse Lessor
therefor (plus any penalties, fines or interest thereon) promptly upon
demand. Lessor will file all personal property tax returns covering the
Equipment, and unless and until Lessor notifies Lessee in writing to the
contrary, Lessor will pay the personal property taxes levied or assessed
thereon directly to the levying authority. Lessee will, promptly upon being
invoiced by Lessor, reimburse Lessor for the full amount of such personal
property taxes so paid by Lessor. In the event Lessor should request Lessee
in writing to pay such personal property taxes directly, Lessee agrees that
it will do so promptly, upon receipt of such notice. All of the obligations
of Lessee under this Section with respect to any fees, levies, imposts,
duties, charges, withholdings and taxes (together with any penalties, fines
or interest thereon) assessed, levied, imposed or accrued prior to the
expiration or other termination of this Lease or the lease term of all
Equipment leased hereunder shall continue in full force and effect
notwithstanding such expiration or other termination and are expressly made
for the benefit of, and shall be enforceable by, Lessor.
11. Indemnification By Lessee. Lessee agrees to indemnify and
hold Lessor and assignee harmless against any and all claims, demands,
liabilities, losses, damages and injuries, of whatsoever kind, and all fees
(including attorneys' fees), costs, expenses, penalties and interest,
directly or indirectly relating to, resulting from, or in any way arising
from this Lease, out of
(a) Lessor's purchase, acquisition and ownership of, and
title to, any Equipment;
(b) the manufacture, purchase, delivery, installation,
possession, maintenance, condition (including, without
limitation, latent and other defects whether or not discoverable
by Lessor), use, operation, control, loss, damage, destruction,
removal, return, storage, surrender, sale or other disposition
of any Equipment; whether or not the Lessor is also indemnified
against such liabilities, claims, and demands by any
manufacturer or seller of any such equipment;
(c) any accident in connection with the possession,
operation, use, condition, control, return or storage of any
Equipment resulting in damage to property or injury to any
person or entity;
(d) all costs, charges, damages or expenses for royalties
and/or claims and expenses of litigation, arising out of or in
any way connected with the assertion of any claim or demand
based upon any infringement or alleged infringement of any
patent or other right, by or in respect of any Equipment;
(e) strict liability in tort;
(f) Lessee's failure to perform promptly any obligation
under this Lease; and
(g) the enforcement of this Lease.
The indemnification by Lessee under this Section 11 shall survive the payment of
all other obligations under, and the termination of, this Lease and the lease
term of all Equipment leased hereunder.
12. Use of Equipment. Lessee warrants and agrees that the
Equipment will at all times be used and operated under and in compliance
with the laws of the jurisdictions in which the Equipment may be located
and operated, and in compliance with all lawful acts, rules, regulations
and orders of any judicial, legislative or regulatory body having power to
regulate or supervise the use of the Equipment. Lessee shall not permit any
liens, charges or encumbrances to be placed on or levied against the
Equipment other than liens, charges or encumbrances placed thereon by
Lessor or by persons claiming against Lessor but not Lessee. Lessee agrees
to procure and maintain in effect all licenses, certificates, permits and
other approvals and consents required by federal, state, county, municipal,
or foreign laws and regulations in connection with the possession, use,
operation and maintenance of the Equipment. Lessee agrees that without
Lessor's prior written consent Lessee will not assign or transfer its
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rights under this Lease, or sublease any of the Equipment, or remove or
suffer any of the Equipment to be removed from the location specified in
the Rental Schedule for such Equipment, or permit any Equipment to be used
by anyone other than Lessee or Lessee's employees.
13. Improvement, Maintenance and Repair of Equipment. Lessee
will, at its own expense, (a) maintain the Equipment in good and safe
operating order, repair and condition, and in accordance with the
requirements of any governmental authority, domestic or foreign, having
jurisdiction thereof, (b) will pay for all fuel, service, inspections,
overhauls, replacements, substitutions, materials and labor necessary or
desirable for the proper use, repair, operation and maintenance of the
Equipment, and (c) will keep the Equipment protected from the elements when
not in use.
14. Loss, Damage or Destruction of Equipment. Lessee shall bear
all risks of damage to, or loss or destruction of, any Equipment during the
lease term thereof and until such Equipment has been returned to Lessor
pursuant to the provisions of Sections 17 or 19, whichever is applicable.
Except as otherwise herein expressly provided, no such damage to, or loss
or destruction of, any Equipment, shall impair any obligation of Lessee to
Lessor under this Lease, including, without limitation, the obligation to
pay rent. In the event that any item of Equipment shall become lost,
stolen, destroyed or irreparably damaged from any cause whatsoever, or if
any item of Equipment or Lessor's title thereto shall be requisitioned or
seized by any governmental authority (each such occurrence being
hereinafter called a "Casualty Occurrence") during the lease term of such
item and until such item has been returned to Lessor in accordance with the
provisions of Section 17 or 19 hereof, whichever is applicable, Lessee
shall promptly notify Lessor in writing of such fact, fully informing
Lessor of all details with respect thereto (including the identifying
number or numbers thereof) and shall, within thirty (30) days after such
Casualty Occurrence, pay Lessor an amount equal to the sum of (i) the
accrued rent payable for such item from the date of such Casualty
Occurrence up to and including the date of such payment, plus (ii) an
amount equal to the Full Replacement Cost, as hereinafter defined, of such
item as of the date of such Casualty Occurrence. Upon the making of such
payment by Lessee in respect to any item of Equipment, then, at the option
of Lessor, either (a) the rent for such item shall cease to accrue as of
the date of such payment, the lease term of such item shall terminate, and
all of Lessor's title to and rights in such item shall automatically pass
to Lessee, or (b) Lessor will replace such item of Equipment with another
item of like kind, and such replacement item shall be leased hereunder by
Lessee for the then remaining lease term (plus any permitted extensions
thereof) of the original item that sustained a Casualty Occurrence, and for
the same monthly rent as for such original item, and subject to all of the
other terms and conditions of this Lease. If the Full Replacement Cost has
already been paid by Lessee then Lessor shall reimburse Lessee for the
difference between the Full Replacement Cost and the actual cost to Lessor
to replace such item of Equipment otherwise such actual cost of replacing
an item of Equipment will continue to be owed by Lessee to Lessor and shall
be immediately due and payable. Any insurance proceeds received as the
result of a Casualty Occurrence with respect to an item of Equipment shall
be applied first in reduction of any then unpaid obligation of Lessee to
Lessor hereunder and secondly in reduction of Lessee's obligation to pay
the Full Replacement Cost or the actual cost of replacement whichever is
applicable for such item, plus the full amount of any purchase option price
given to Lessee herein or in any document related to this transaction, if
not already paid by Lessee to Lessor, or, if already paid by Lessee, to the
reimbursement of Lessee for its payment of such Full Replacement Cost, or
the actual cost of replacement whichever is applicable, and the balance of
the insurance proceeds, if any, shall be paid to Lessee, if Lessee is not
then in default hereunder. In the event that an item of Equipment has been
damaged, but not irreparably, Lessor shall, if no Event of Default has
occurred and is continuing hereunder, release to Lessee the proceeds of any
insurance received by Lessor as a result of such damage for the purpose of
reimbursing Lessee for the costs of repairing or restoring such item, upon
receipt by Lessor of evidence, satisfactory to Lessor, that such repair or
restoration has been completed, and an invoice therefor. The Full
Replacement Cost of an item of Equipment means, as of any date, an amount
equal to what the replacement cost to Lessor of such item would be on such
date which shall be at least equal to the remaining monthly rental payments
due under the Lease for such item of Equipment. Upon payment by Lessee of
the Full Replacement Cost or the actual replacement cost to Lessor as cited
above of an item of Equipment resulting from Casualty Occurrence, Lessor
shall apply such payment to the monthly rental payments in the inverse
order of maturity.
15. Annual Reports. On or before April 1 in each year,
commencing with the April 1 next following the date hereof, Lessee will
cause to be furnished to Lessor an accurate statement, as of the preceding
December 31, (a) showing such information regarding the condition and state
of repair of such items as Lessor may reasonably request, and (b)
certifying that all items of Equipment have been marked as required by
Section 9 hereof, and (c) certifying that all items of Equipment continue
to remain located at the premises specified on the Rental Schedules
therefor. Lessor shall have the right at its sole cost and expense, by its
authorized representatives upon reasonable notice to Lessee, to inspect the
items of Equipment and Lessee's records with respect thereto, at such times
as shall be reasonably necessary to confirm to Lessor the existence and
proper maintenance thereof during the continuance of this Lease.
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16. Insurance. Lessee will maintain, at its sole cost and
expense, at all times during the lease term of any Equipment, and until
such Equipment has been returned to Lessor in accordance with the
provisions of Section 17 or 19, whichever is applicable, with reputable
insurers acceptable to Lessor (a) insurance in an amount not less than the
Full Replacement Cost (hereinbefore defined) of each item of Equipment
leased hereunder, insuring against loss and/or damage to such Equipment
arising out of any risk covered by fire, windstorm, explosion, and extended
coverage, and against such other risks as are customarily insured against
by companies owning property of a similar character and engaged in a
business similar to that engaged in by Lessee, and (b) comprehensive public
liability and property damage insurance, in such amounts as may be
satisfactory to Lessor, insuring against liability for death, bodily injury
and property damage resulting from ownership, maintenance, use or operation
of the Equipment. All insurance policies shall (i) name Lessor as an
additional insured, with losses under the physical loss and/or damage
policies to be payable to Lessor and Lessee (and also to any assignee of
Lessor, if requested by such assignee) as their respective interests may
appear, (ii) provide that the policies will not be invalidated as against
Lessor (or against any assignee of Lessor) because of any violation of a
condition or warranty of the policy or application therefor by Lessee, and
(iii) provide that the policies may only be materially altered or cancelled
by the insurer after thirty (30) days prior written notice to Lessor and to
any assignee of Lessor. Lessee shall deliver to Lessor, prior to the Lease
Commencement Date for any item of Equipment (or at such other time or times
as Lessor may request) a certificate or other evidence of the maintenance
of all such insurance satisfactory to Lessor; provided however, that Lessor
shall be under no duty to examine such certificate or other evidence of
insurance, or to advise Lessee in the event that its insurance is not in
compliance with this Lease. In the event of failure on the part of Lessee
to provide and furnish any of the aforesaid insurance, Lessor may procure
such insurance and Lessee shall, upon demand, reimburse Lessor for all
expenditures made by Lessor for such insurance, together with interest
thereon computed at the maximum per annum rate of interest permitted by
law, from the date of Lessor's payment until reimbursed by Lessee. The
comprehensive physical loss or damage insurance policy or policies shall
also provide that upon receipt by the insurer from Lessor of any written
notice of the occurrence of an Event of Default hereunder, any proceeds
payable by said insurer with respect to any loss or destruction of, or
damage to, any Equipment, shall be payable solely to Lessor (and to any
assignee of Lessor, if requested by such assignee) from the date of said
insurer's receipt of such written notice, up to the date said insurer
receives written notice from the Lessor that said Event of Default is no
longer continuing hereunder.
17. Return of Equipment. Upon the expiration or termination of
the lease term of any Equipment, whether by the passage of time or
otherwise, Lessee will forthwith surrender and return possession of such
Equipment to Lessor, in its original condition as of the Lease Commencement
Date therefor, reasonable wear and tear only being excepted, by (a)
properly preparing, crating and/or assembling such Equipment for shipment
by common carrier, and (b) shipping such Equipment by common carrier, with
insurance and freight prepaid, to a place designated by Lessor.
18. Lessor's Ownership; Equipment to be and Remain Personal
Property. Lessee acknowledges and agrees that it has not, and by the
execution of this Lease it does not have or obtain, and by payments and
performance hereunder it does not and will not have or obtain, any title to
the Equipment, nor any property right or interest, legal or equitable,
therein, except its rights as Lessee hereunder and subject to the terms
hereof. It is expressly understood that all of the Equipment shall be and
remain personal property notwithstanding the manner in which the Equipment
may be attached or affixed to the realty, and that upon the expiration or
other termination of the lease term of any Equipment, Lessee shall have the
obligation, and Lessor shall have the right, to remove or to cause the
removal of, such Equipment, from the premises whereon the same is then
located, for return to Lessor pursuant to the provisions of Section 17
hereof, whether or not any such Equipment is affixed or attached to the
realty or to any building, and, in the exercise of its said right, Lessor
shall not be liable for any damage caused to the realty or any such
building occasioned by any removal of the Equipment therefrom by Lessor or
its agents. Lessee further covenants and agrees that Lessee will, at the
request of Lessor, obtain and deliver to Lessor concurrently with the
execution and delivery of each Rental Schedule, a waiver, in recordable
form, from the owner and any lessor, lessee and the holder of any lien or
encumbrance on the realty or building(s) on or in which any of the
Equipment described in each such Rental Schedule is located or through
which it passes, under which such owner, lessor, lessee and holder (i)
agree and consent that such Equipment is and will remain personal property,
owned by and removable by Lessor upon the expiration or termination of the
lease term thereof, and (ii) waive any rights of distraint or similar
rights with respect to such Equipment. If Lessee is unable to return, or is
prevented from returning, any Equipment to Lessor upon the expiration or
termination of the lease term thereof as required under Section 17 hereof,
for any reason whatsoever, including, but not limited to, the assertion by
any third party of any claim against such Equipment, or of any right with
respect thereto, whether or not resulting from the manner in which such
Equipment is affixed or attached to, or installed on or in, the realty or
any building(s) thereon, or from the failure of any owner, lessor, lessee
of said realty (or the building(s) thereon) or the holder of any lien or
encumbrance thereon, to execute the waiver hereinbefore referred to, then,
in any such event, Lessee shall forthwith notify Lessor in writing of such
fact, such Equipment shall, for all purposes of this Lease, be deemed to
have been the subject of a Casualty Occurrence, and Lessee shall forthwith
pay Lessor the amounts provided in Section 14 hereof, with respect to such
Equipment, at the time, in the manner, and with the consequences provided
in such Section.
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19. Events of Default. If, during the continuance of this Lease,
one or more of the following events (herein called "Events of Default") shall
occur:
A. Default shall be made in the payment of any rent hereunder,
or default shall be made in the payment of any other obligation provided
for in this Lease, and any such default shall continue for more than five
(5) days;
B. Lessee shall default in the observance and/or performance of
any other covenant, condition and agreement on the part of Lessee to be
observed and/or performed under this Lease and such default shall continue
for fifteen (15) days after written notice from Lessor to Lessee specifying
the default and demanding the same to be remedied;
C. Any representation or warranty made by Lessee herein or in
any document or certificate furnished to Lessor in connection herewith or
pursuant hereto shall at any time prove to be incorrect when made in any
material respect;
D. Lessee shall make or permit any unauthorized assignment or
transfer of this Lease or of Lessee's rights and obligations hereunder, or
Lessee shall make or permit any unauthorized sublease or transfer of any
Equipment, or of the possession of same;
E. Lessee shall make an assignment for the benefit of its
creditors, or cease being in substantially the same line or lines of
business in which Lessee is presently engaged, or cease doing business as a
going concern, or become insolvent or bankrupt or default by Lessee in
meeting its trade, tax, borrowing, or other obligations as they mature, 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
Lessee's property without Lessee's consent and such appointment shall not
be dismissed for a period of thirty (30) days, or bankruptcy,
reorganization, insolvency, arrangement, or liquidation proceedings shall
be instituted by or against Lessee and, if instituted against Lessee, shall
not be discharged or dismissed for a period of fifteen (15) days, or
Lessee's corporate existence or the business of Lessee shall terminate by
liquidation, merger, or sale of substantially all assets or the acquisition
of a majority of the then issued and outstanding voting capital stock of
Lessee by any person, entity or group who are not such owners on the date
of execution hereof; or
F. Lessee shall relocate the equipment in any manner not
consistent with Section 12.
G. Any obligation of Lessee for the payment of borrowed money or
for the acquisition of assets by lease, conditional sale or similar
arrangement, shall not be paid or refinanced at maturity, whether by
acceleration or otherwise, or shall be declared to be due and payable prior
to the stated maturity thereof by reason of default or other violation of
the terms of any promissory note, indenture or agreement evidencing or
governing such obligation;
H. Default under the mortgage and security agreement given by
the Lessee to the Lessor of even date herewith or under any other mortgage
encumbering in said property in the mortgage and security agreement.
then, in any such case, Lessor, at its option, may do any one or more of the
following:
(1) declare this Lease in default upon written notice to
Lessee, whereupon, the entire amount of rent remaining to be paid over the
balance of the lease term of all Equipment then leased hereunder, computed
from the date of Lessee's default, shall become immediately due and
payable;
(2) proceed by appropriate court action or actions at law or
in equity or in bankruptcy to enforce performance by Lessee of the
covenants and terms of this Lease and/or to recover damages for the breach
thereof;
(3) terminate this Lease upon written notice to Lessee;
(4) whether or not this Lease be so terminated, and without
notice to Lessee, repossess the Equipment wherever found, with or without
legal process, and for this purpose Lessor and/or its agents may enter upon
any premises of or under the control or jurisdiction of Lessee or any agent
of Lessee without liability for suit, action or other proceeding by Lessee
(any damages occasioned by such repossession being hereby expressly waived
by Lessee) and remove the Equipment therefrom.
With respect to any Equipment returned to Lessor, or repossessed by
Lessor pursuant to subparagraph (4) above, Lessor may hold or use such Equipment
for any purpose whatsoever, or may sell same at a private or public, cash or
credit sale, or may re-lease same for such term and upon such rental as shall be
solely determined by Lessor. In the event of the sale or re-leasing by Lessor of
any such Equipment, Lessee shall be liable for, and Lessor may forthwith recover
from Lessee as liquidated damages for breach of this Lease, and not as a
penalty, an amount equal to the sum of (X) the entire amount of rent which would
have accrued for the balance of the lease term of such Equipment, computed from
the date of Lessee's default, plus (Y) an amount equal to eighteen percent (18%)
of the actual cost to Lessor of such Equipment, less (Z) the proceeds of any
sale or re-leasing of such Equipment, after first deducting therefrom all costs
and expenses of repossession, storage, repairs, reconditioning, sale,
re-leasing, attorneys' fees and collection fees with respect to such Equipment.
If Lessee fails to deliver any Equipment to Lessor or Lessor is
unable, for any reason, to effect repossession of any Equipment, then, with
respect to such Equipment, Lessee shall be liable for, and Lessor may forthwith
recover from Lessee as liquidated damages for breach of this Lease, and not as a
penalty, an amount equal to the sum of the amounts specified in items (X) and
(Y) above for such Equipment.
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Whether or not any Equipment is returned to, or repossessed by Lessor,
as aforesaid, Lessee shall also be liable for, and Lessor may forthwith recover
from Lessee, all unpaid rent and other unpaid sums that accrued prior to the
date of Lessee's default. In addition to the foregoing, Lessor may also recover
from Lessee all costs and expenses, including, without limitation, reasonable
attorneys' fees and fees of collection agencies, incurred by Lessor in
exercising any of its right or remedies hereunder.
Since pursuant to the foregoing Lessor may receive or recover payment
of the amounts specified in subparagraph (1) and items (X) and (Y) above earlier
than Lessor would otherwise be entitled to receive or recover same but for
Lessee's default, such amounts shall be discounted to their then present value
at the rate of six percent (6%) per annum, and there shall be added to such
amounts, after such discount, interest at the rate specified in Section 23.1
hereof from the date of Lessee's default up to the date of the payment of such
amounts of Lessor.
In the event that any court of competent jurisdiction determines that
any provision of this Section 19 is invalid or unenforceable in whole or in
part, such determination shall not prohibit Lessor from establishing its damages
sustained as a result of any breach of this Lease in any action or proceeding in
which Lessor seeks to recover such damages. Any repossession or resale of any
Equipment shall not bar an action for damages for breach of this Lease, as
hereinbefore provided, and the bringing of an action or the entry of judgment
against Lessee shall not bar Lessor's right to repossess any or all Equipment.
The remedies herein provided in favor of Lessor, shall not be deemed
to be exclusive, but shall be cumulative and shall be in addition to all other
remedies in Lessor's favor existing in law, in equity or in bankruptcy.
20. Assignment and Mortgage. (a) Lessor may assign this Lease, and may
grant a mortgage on, or security interest in, any Equipment to any such
assignee, in whole or in part, without notice to, or the consent of, Lessee.
Each such assignee shall have all of the rights but none of the obligations of
Lessor under this Lease and Lessee shall, upon receipt of written notice
thereof, recognize each such assignment and mortgage or security interest and
shall accept and comply with the directions or demands given in writing by any
such assignee. Lessee shall not assert against such assignee any defense,
counter-claim or set-off that Lessee may have against Lessor. However, nothing
herein shall relieve Lessor from its obligations to Lessee hereunder. After any
such assignment this Lease may not be amended or modified without the prior
written consent of any such assignee. Upon any assignment of this Lease or the
granting of any mortgage on, or security interest in, any of the Equipment,
Lessor or its assignee may record any instruments relating to the assignment,
mortgage, or security interest desired by Lessor or such assignee in accordance
with the laws of appropriate jurisdictions. (b) Without prior written consent of
Lessor, Lessee shall not assign, pledge, mortgage or hypothecate this lease or
any of its rights under this Lease or sell or sublet any Equipment leased
hereunder or otherwise permit any Equipment to be used by or come into the
possession of anyone other than Lessee.
21. Recording and Filing; Expenses. Lessee will, upon demand of
Lessor, at Lessee's cost and expense, do and perform any other act and will
execute, acknowledge, deliver, file, register, record and deposit (and will
re-file, re-register, re-record or re-deposit whenever required) any and all
further instruments required by law in the United States or requested by Lessor
(or any assignee of Lessor) including, without limitation, lien search fees,
financing statements under the Uniform Commercial Code (which, notwithstanding
the intent of Lessor and Lessee that this is a true lease, Lessor, shall have
the right to file wherever and whenever Lessor requires), for the purpose of
proper protection to the satisfaction of Lessor, (and/or of Lessor's assignee)
of Lessor's title to any Equipment (and/or of Lessor's assignee's security
interest, if any, in any of the Equipment) or for the purpose of carrying out
the intention of this Lease. Lessee will also pay, or will upon demand reimburse
Lessor, for all of the reasonable out-of-pocket costs and expenses incurred by
Lessor in connection with this Lease and/or Lessor's purchase of any of the
Equipment for lease hereunder, and for all fees and costs of any attorney
specially retained by Lessor to take any action or proceeding to enforce the
terms of this Lease.
22. Financial Statements. If so requested by Lessor, Lessee will
furnish Lessor unaudited quarterly financial statements of Lessee within sixty
(60) days after the end of each quarter, certified to be true and correct by its
chief financial officer, and will also furnish Lessor, within one hundred twenty
(120) days after the close of each fiscal year of Lessee, a consolidated Balance
Sheet and Profit and Loss Statement as of the end of such year, certified by the
independent public accountants of Lessee.
23. Miscellaneous.
23.1 Late Charges and Interest on Overdue Payments. Any nonpayment of
rent or other amounts due hereunder shall result in the obligation on the part
of Lessee promptly to pay also an amount equal to five percent (5%) per payment
of the overdue rent or other amounts for the period of time during which they
are overdue. In addition, any sum due which is more than 30 days in arrears
shall accrue interest at the lesser of 18% per annum or the highest rate
permitted by applicable law. All payments hereunder shall be applied first to
any accrued interest, then to any late charges then due, then to any other
amounts due, and the remaining balance to any rent due.
23.2 Notices. Any notice required or permitted to be given by either
party hereto to the other shall be deemed to have been given when deposited in
the United States mails, first-class postage prepaid, addressed to either party
at its address set forth herein, or to such other address as either party shall
hereafter furnish to the other in writing.
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23.3 Entire Agreement; Severability; Effect and Modification of Lease.
This Lease and any Schedules executed by Lessor and Lessee shall
constitute the entire agreement between the parties with respect to the
Equipment and the subject matter of this Lease. No term or provision of
this Lease may be changed, waived, amended or terminated except by a
written agreement signed by the parties, except that Lessor may insert
the serial number of any item of Equipment and the Commencement Date on
the appropriate Schedule after delivery thereof and receipt of an
Acceptance Certificate with respect thereto. No express or implied waiver
by Lessor of any Event of Default shall in any way be, or construed to
be, a waiver of any future or subsequent Event of Default whether similar
in kind or otherwise. The titles of the sections of this Lease are for
convenience only and shall not define or limit any of the terms or
provisions hereof. Time is of the essence in this Lease and all of its
provisions. Except as expressly provided in any Schedule or Rider hereto,
no options to purchase any of the Equipment or extend the term of this
Lease with respect to any Equipment have been granted or agreed to by
Lessor. No information, exhibit or report furnished or to be furnished by
the Lessee to the Lessor in connection with the negotiation of this Lease
and the transactions contemplated hereby contains or will contain any
material misstatement of fact or omits or will omit a material fact
necessary to make the statement contained therein not misleading when
made. The Lessee is not aware of any material facts or circumstances not
disclosed to the Lessor which might, if disclosed, be of material
consequence in the credit evaluation of the Lessee by the Lessor. If this
Lease is signed by more than one Lessee, then each Lessee shall be
jointly and severally liable for all obligations to be performed by
Lessee hereunder. Any provision of this Lease which is prohibited or
unenforceable in any jurisdiction, shall be, as to such jurisdiction,
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
23.4 Execution in Counterparts.
This Lease may be executed in several counterparts, each of which so
executed shall be deemed to be an original, and in each case such
counterparts together shall constitute but one and the same instrument.
23.5 Venue; Governing Law.
This Lease shall be considered a Massachusetts contract and shall be
deemed to have been made in Middlesex County, Massachusetts, by Lessor
having countersigned this Lease in the Commonwealth of Massachusetts
regardless of the order in which the signatures of the parties shall be
affixed hereto. This agreement shall in all respects be governed by and
construed in accordance with the law of the Commonwealth of
Massachusetts, including, without limitation, all matters of
construction, validity and performance. Lessee specifically submits to
the personal jurisdiction of the courts, both state and federal, of the
Commonwealth of Massachusetts.
23.6 Lessor's Rights to Perform for Lessee.
If Lessee fails to duly and promptly perform any of its obligations under
this Lease (except for payment of rent) or fails to comply with any of
the covenants or agreements contained herein, Lessor may itself perform
such obligations or comply with such covenants or agreements, for the
account of Lessee without thereby waiving any default, and any amount
paid or expense (including reasonable attorney's fees) incurred by Lessor
in connection with such performance or compliance shall, together with
interest thereon at the lesser of 18% per annum or the highest rate
permitted by applicable law, be payable by Lessee to Lessor on demand.
23.7 Agreement for Lease Only.
Lessor and Lessee agree that this Lease is and is intended to be a true
lease (and not a lease intended as security or a lease in the nature of a
security interest) and further agree to treat same as a true lease for
all purposes, including, without limitation, legal, tax, clerical and
accounting.
23.8 Multiple Lessees.
In the event that more than one Lessee is named in this Lease the
liability of each Lessee hereunder shall, without limitation, be joint
and several.
IN WITNESS WHEREOF, Lessor and Lessee, each pursuant to due corporate authority,
have caused these presents to be signed in their respective corporate names by
their duly authorized officers and their respective corporate seals to be
hereunto affixed and duly attested, as of the date first above written.
[Corporate Seal] TAL Financial Corporation
Attest:
By:
------------------------------------
(Authorized Signature)
By:
------------------------
Clerk
Its: Xxxxxx X. Xxxxxx, President
-----------------------------------
(Title)
[Corporate Seal] Information Management Associates, Inc.
---------------------------------------
(Lessee)
Attest:
By: [SIGNATURE APPEARS HERE]
------------------------------------
(Authorized Signature)
By: [SIGNATURE APPEARS HERE]
-----------------------------
Secretary
Its: Xxxxxxx X. Xxxxx, Vice President
-----------------------------------
of Finance
-----------------------------------
(Title)
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