Exhibit 10.60
Master Lease Agreement
Master Lease Agreement (hereinafter together with the below referred to
Schedule(s) called the "Lease") has been entered into as of March 11, 1999
between Andover Capital Group, Inc. having its principal place of business at
000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter the "Lessor"),
and Lifeline Systems, Inc. (hereafter the "Lessee").
LESSOR AND LESSEE hereby agree as follows:
1. AGREEMENT TO LEASE EQUIPMENT. Subject to the terms set forth below,
Lessor and Lessee agree that on or before the date designated as the acquisition
expiration date in Exhibit A attached hereto, Lessor shall lease to Lessee and
Lessee shall lease from Lessor items of personal property of the types described
in Exhibit A hereto (hereinafter collectively called the "Equipment"), having an
aggregate acquisition cost not to exceed the amount set forth in Exhibit A.
Lessor and Lessee shall evidence the leasing of particular items of Equipment by
executing and delivering to each other a Schedule or Schedules identified to
this Lease which shall be executed by the parties hereto either concurrently
with or subsequent to the execution of this Lease. Any and all such schedules,
including any terms and conditions set forth therein (hereinafter individually a
"Schedule" or collectively the "Schedules"), are incorporated herein by
reference.
2. IMPORTANT UNDERSTANDINGS.
(A) Lessee has selected both (1) the Equipment and (2) the Seller from
whom Lessor is to purchase the Equipment. Lessor warrants good title to Lessee
only against liens, encumbrances and claims arising by, through and under Lessor
and not otherwise. Lessor makes no other warranty expressed or implied as to any
matter whatsoever, including the condition of the Equipment, its
merchantability, its fitness for any particular purpose, or its freedom from the
claims of others by way of infringement or the like, and as to Lessor, Lessee
leases the Equipment "As Is".
(B) If the Equipment is not properly installed, does not operate as
represented or warranted by Seller or is unsatisfactory for any reason, Lessee
shall have any claim on account thereof solely against Seller and shall,
nevertheless, pay Lessor all rent payable under this Lease, without deduction or
set-off of any kind, Lessee hereby waiving any such claims against Lessor.
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.
(C) 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 or Seller is authorized to waive or alter any term or condition of this
Lease and no representation as to the Equipment or any other matter by the
Seller, shall in any way affect Lessee's duty to pay the rent and perform its
other obligations as set forth in this Lease.
(D) Lessee hereby acknowledges that it has received a copy of this
Lease.
(E) Lessee has requested Lessor to order the Equipment from Seller upon
the Terms and Conditions of the Purchase Order acknowledged by Lessee. Lessor
shall have no responsibility for Seller's delay or failure to fill or comply
with the purchase order for any reason whatsoever and all of Lessor's
obligations hereunder are subject to Lessee's due acceptance of the Equipment.
Lessee hereby authorizes Lessor to insert in this Lease the serial numbers, and
other identification data, of the Equipment when determined by Lessor.
(F) Finance Lease Status. You agree that if Article 2A - Leases of the
Uniform Commercial Code applies to this Lease, this Lease will be considered a
"finance lease" as that term is defined in Article 2A. By signing this Lease,
you agree that either (a) you have reviewed, approved and received, a copy of
the Supply Contract, or (b) that we have informed you of the identity of the
seller, that you may have rights under the Supply Contract, and that you may
contact the Seller for a description of those rights. To the extent permitted by
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applicable law, you waive any and all rights and remedies of a Lessee arising
under Article 2A and any similar rights and remedies arising under other laws.
3. TERM. The term of the Lease of each item of Equipment under this Lease
shall commence upon the Delivery Date and shall continue for the Term of Lease,
each as set forth in the Schedule describing such item of Equipment. If the
Schedule provides for an extension of the Lease upon expiration of its term,
then Lessee may extend the Lease of Equipment, or of any item thereof, described
in such Schedule from year to year by written notice to Lessor given at least 30
days prior to the expiration of the last year the Lease has been so extended.
4. RENT AND PAYMENT. The total rent payable for the lease of items of
Equipment described in any Schedule, throughout the term such items are leased
under this Lease, shall be the aggregate amount equal to the sum of all the
monthly rentals (including advance rent) for the entire term of the Lease
specified on each Schedule. Periodic payments of rent payable under this Lease
shall be payable in advance on the terms set forth in the applicable Schedule.
(A) Rent Payment Commencement Date. Solely for convenience in payment
of rent, in all cases where the Delivery Date of any Equipment shall be the
first through the fifteenth day of a month the term of the Lease of such
Equipment shall be deemed to commence and the first payment of rent shall be due
on the first day of such month, and in all cases where the Delivery Date of any
Equipment shall be the sixteenth through the last day of the month the term of
the Lease of such Equipment shall be deemed to commence and the first payment of
rent shall be due on the first day of the next succeeding month (such first day
of the month hereinafter called the "Rent Payment Commencement Date").
(B) First Payment. Lessor acknowledges receipt from Lessee of the first
payment referred to in any Schedule which shall be applied to the rental payable
for the first month after the Rent Payment Commencement Date. Any part of this
payment not so applied by Lessor shall be held as security for performance of
the terms of the Lease. If Lessee is not in default hereunder and under any
other lease or other agreement between the parties hereto, at the end of the
term of this Lease said security shall be refunded to the Lessee upon return of
the leased Equipment as provided in paragraph 13 or, solely at the Lessor's
option, applied toward the payments of rent due or to become due hereunder in
the inverse order of their maturities.
(C) Next and Subsequent Rental Payments. Lessee shall make its next
rental payment hereunder on the first day of the first month following the Rent
Payment Commencement Date and Lessee shall make subsequent rental payments on
the first day of each succeeding month.
(D) Total Rent. The total rent for the Equipment described herein, or
in separate schedules made a part hereof, shall be the aggregate of that shown
herein and in such schedules and shall be payable in the installments designated
herein and in such schedules. Lessee promises and agrees to pay all specified
installments in advance on the date designated for payment herein and in such
Schedules without demand. Said rental shall be payable at the office of Lessor,
or to such other person and/or at such other place as Lessor may from time to
time designate in writing.
(E) Adjustment. The rent payable under this Lease may be based upon
estimates of Equipment cost and other charges to Lessor. In the event that
actual cost shall be less than an estimate or shall exceed an estimate by not
more than 10%, the Lessee authorizes Lessor and Lessor agrees to increase or
decrease, as the case may be, the amount set forth as the total rent payable for
any Equipment leased hereunder and further to adjust proportionately the amounts
of installments of rent remaining to be paid with respect to such Equipment to
the end that the adjusted rent payable shall be paid in full at the end of the
term of lease of such Equipment. Lessor shall give Lessee notice within ten (10)
days from the effective day of such adjustment made by Lessor of the total rent
payable pursuant to this subparagraph (E).
(F) Late Charges. In the event payment is not made when due hereunder
and Lessor has not exercised its rights pursuant to Paragraph 15 hereof, the
Lessee promises to pay (1) a late charge to the Lessor not later than one month
after the due date of such payment in an amount calculated at the rate of five
cents per
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$1.00 of each such delayed payment, plus (2) interest to the Lessor upon each
such delayed payment calculated at the rate of one and one-half percent (1 1/2%)
per month, or any part thereof, commencing on the due date of the delayed
payment. The late charge and/or the interest payment set forth in this paragraph
shall apply only when permitted by law and, if not permitted by law, the late
charge and/or interest payment shall be calculated at the maximum rate
permissible in the applicable jurisdiction.
(G) Advances by Lessor. If Lessee shall fail to make any payment, other
than rent, or to perform or comply with any of Lessee's agreements set forth
herein, Lessor may make such payment or perform or comply with such agreement,
and the amount of any such payment and the amount of the reasonable expenses
incurred by Lessor in connection with such payment or with such performance or
compliance, together with interest thereon at the rate of one and one-half
percent (1 1/2%) per month, shall be deemed additional rent, payable by Lessee
upon demand.
(H) Nonpayment. In the event of nonpayment by Lessee of any amount
required to be paid under this Paragraph 4, Lessor shall have all rights,
powers, and remedies provided for in this Lease or by law or equity or
otherwise.
5. DELIVERY AND ACCEPTANCE.
(A) Acceptance. Lessor hereby authorizes Lessee to accept on Lessor's
behalf the delivery of any Equipment leased under this Lease.
(B) Inspection by Lessee. Upon delivery of any Equipment under this
Lease, Lessee shall conduct, at its own expense, all inspections and tests of
such Equipment necessary to determine compliance with the applicable purchase
order. As between Lessor and Lessee, the execution and delivery to Lessor of a
Schedule describing such Equipment such constitute Lessee's acknowledgment that
the Equipment is in compliance with such purchase order and that the Lessee is
satisfied that the Equipment is in good condition and suitable for its intended
purpose and has accepted the Equipment and upon receipt of such Schedule, Lessor
shall pay supplier for such Equipment.
(C) Delivery Date and Descriptive Information. Lessee, in executing any
Schedule describing Equipment leased under this Lease, shall enter thereon (i)
the date of delivery of such Equipment as the Delivery Date and (ii) serial
numbers applicable to such Equipment and/or such other descriptive information
as Lessor shall have reasonably requested.
6. LESSEE'S REPRESENTATIONS AND WARRANTIES. The Lessee represents and
warrants that:
(A) If Lessee is a corporation, it is duly organized and existing and
in good standing under the laws of its state of incorporation and is duly
qualified to do business wherever necessary to carry on its present business and
operations.
(B) If Lessee is a corporation, this Lease has been duly authorized by
all necessary corporate action on the part of the Lessee, does not require any
stockholder approval, does not require the approval of or the giving of notice
to any federal, state or other governmental authority and does not contravene
any law binding on the Lessee or contravene the Lessee's articles or certificate
of incorporation or its by-laws.
(C) This Lease constitutes a legal, valid and binding obligation of the
Lessee enforceable in accordance with its terms and does not contravene any
indenture, credit agreement or other agreement to which the Lessee is a party.
(D) No mortgage, security agreement or other lien or encumbrance of any
nature whatsoever, which now covers or affects or may hereafter cover or affect
any property or interest of the Lessee, now attaches or will hereafter attach to
the Equipment hereby leased or in any manner affects or will affect the Lessor's
right, title and interest in the Equipment.
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(E) The Lessee is not materially in default under the provisions of any
agreement to which it is a party.
(F) There are no pending or threatened actions or proceedings before
any court or administrative agency which may materially adversely affect the
Lessee's financial condition or operations (except as may be disclosed in a
letter furnished by the Lessee to the Lessor at the time of execution of this
Lease).
(G) The balance sheet of the Lessee as 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 (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 year, and since such date there has been no material
adverse change in such condition or operations.
7. CONDITION TO LESSEE'S USE AND ACCEPTANCE OF EQUIPMENT. Prior to the
Lessee's acceptance and use of the Equipment, the Lessor shall receive the
following, in form and substance satisfactory to the Lessor and its counsel.
(A) If requested by the Lessor, resolutions of the Board of Directors
of the Lessee certified by the Clerk or Secretary for the Assistant Clerk or
Assistant Secretary of the Lessee, duly authorizing the Lease of the Equipment
hereunder and the execution, delivery and performance of this Lease.
(B) Evidence satisfactory to the Lessor as to due compliance with the
insurance provisions of Paragraph 11 hereof.
(C) If requested by the Lessor, waivers of any interest in or claim
against the Equipment by the landlords and mortgagees of the premises wherein
the Equipment is to be located or certificates by the Lessee that it is the
owner of such premises and/or that such premises are not mortgaged.
(D) If requested by the Lessor, an opinion of counsel for the Lessee
satisfactory to the Lessor as to all or certain of the matters set forth in
Paragraph 6 (A) - (F) hereof and as to such other matters as the Lessor may
reasonably request.
8. USE OF EQUIPMENT.
(A) Title. Equipment leased hereunder shall be the sole and exclusive
property of Lessor, and Lessee shall have no option to purchase or otherwise
acquire title to or ownership of any of the Equipment and shall have no right,
title, or interest in such Equipment except the right as Lessee to use the
Equipment in the ordinary course of Lessee's business in accordance with the
terms and conditions of this Lease.
(B) Identification Plates and Markings. Upon Lessor's request, Lessee
shall affix appropriate labels satisfactory to Lessor to each item of Equipment
indicating that Lessor is the owner thereof and Lessee shall not remove the same
without prior written consent of Lessor.
(C) Operation. Lessee shall cause the Equipment to be operated,
maintained and repaired only (i) in accordance with applicable manufacturer's
manuals and instructions; (ii) by competent, qualified, authorized, and, if
necessary, licensed persons; (iii) in compliance with all of the applicable
laws, ordinances, and regulations relating to operation of the Equipment; and
(iv) in accordance with the terms and conditions of all policies of insurance
pertaining to the Equipment.
(D) Maintenance and Repair. Lessee shall at its own expense cause the
Equipment to be maintained in as good operating condition, repair, order and
appearance as when delivered to Lessee under this Lease, ordinary wear and tear
accepted, and shall provide all maintenance and service and make all repairs
necessary for such purpose. Lessee will at its sole expense keep the Equipment
under cover and protected from the elements, except during normal usage.
(E) Replacement of Parts. If any parts or accessories which form part
of any item of Equipment shall become permanently unfit or unavailable for use,
Lessee shall, at its own expense and within a
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reasonable time, cause such parts or accessories to be replaced by replacement
parts or accessories which shall be free and clear of any liens, encumbrances,
or rights of others, and which shall have a value and utility at least equal to
the replaced parts or accessories.
(F) Improvements. Lessee may add to any item of Equipment such
additional or replacement parts or accessories as Lessee shall desire, provided
that such addition does not impair the value, utility, function or use of such
Equipment. Any parts or accessories so added by Lessee shall become a component
part thereof and title thereto shall be immediately vested in Lessor and shall
be included under the terms hereof.
(G) Location. The Equipment shall be located at the Equipment location
set forth above or in any Schedule describing such Equipment, and Lessee shall
not change the location of any item of Equipment without the prior written
consent of Lessor.
(H) Inspection. Lessor shall have the right but not the duty, to
inspect at all reasonable times any Equipment leased hereunder and any books and
records of Lessee relating to such Equipment. Lessor shall incur no liability by
reason of not making any such inspection.
(I) Installation. Lessee will not, without prior the written consent of
Lessor and subject to such conditions as lessor may impose for its protection,
affix or install any Equipment leased hereunder to or in any other personal
property or to or in any real property.
9. REPORTS.
(A) Lessee agrees that Lessor shall not be responsible for any loss or
damage to Lessee, its customers or anyone else, caused by the Equipment, by
failure or defect of the Equipment or otherwise. Nevertheless, Lessee will
immediately notify Lessor of each accident arising out of the alleged or
apparent improper manufacturing, functioning or operation of any Equipment, the
time, place and nature of the accident and damage, the names and addresses of
parties involved, persons injured, witnesses and owners of property damaged and
such other information as may be known, and promptly advise Lessor of all
correspondence, papers, notices and documents whatsoever received by Lessee in
connection with any claim or demand involving or relating to improper
manufacturing, functioning or operation of any Equipment or charging Lessor with
liability, and Lessee will investigate and defend all such claims and recover
damages from any third persons liable therefor.
(B) Lessee will notify Lessor by telegram, and confirm by mail on the
same date, of the attachment of any tax or other lien to the Equipment.
(C) Upon request Lessee will deliver to Lessor, in a form satisfactory
to Lessor, duplicate copies of Lessee's most recent balance sheet and earning
statement, including a balance sheet and earnings statement for Lessee's last
fiscal year, certified by either a recognized firm of Certified Public
Accountants or by the chief fiscal officer of Lessee.
(D) Lessee will deliver to Lessor such other information as Lessor may
reasonably request.
10. RISK OF LOSS AND INDEMNIFICATION.
(A) Risk of Loss. Lessee hereby assumes all risks of loss or
destruction, from any cause whatsoever, of any Equipment leased hereunder from
the date such Equipment is shipped by the designated Seller pursuant to a
Purchase Order requested by Lessee hereunder.
(B) Indemnification. Lessee hereby assumes liability for, and agrees to
indemnify and hold harmless Lessor from and against, and to pay lessor upon
demand the amount of, any and all liabilities, claims and demands of whatsoever
nature, together with all costs and expenses, relating to or in any way arising
from this Lease, its enforcement, or the manufacture, purchase, delivery,
acceptance, rejection, ownership, possession, installation, operation, control,
return or other disposition of Equipment leased hereunder, whether or not Lessor
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is also indemnified against such liabilities, claims, and demands by any
manufacturer or seller of any such Equipment; provided that Lessee shall not
indemnify lessor against taxes upon or measured by the net income of Lessor.
(C) Loss or Damage. In the event of destruction or permanent damage to,
any Equipment, or in the event that such Equipment shall otherwise become lost,
stolen or rendered permanently unfit for use, or in the event that use of any
Equipment by Lessee shall be prevented by the act of any third party or
governmental instrumentality for a period exceeding ninety (90) days, or if any
Equipment shall be attached (other than with respect to a claim against Lessor
but not Lessee) or shall be seriously damaged and the attachment shall not be
removed or the damage repaired within sixty (60) days, then in any such event
Lessee shall notify Lessor of such fact, and within ten (10) days thereafter
Lessee shall pay to Lessor an amount equal to the remaining unpaid rent for the
balance of the term of the lease of such Equipment. Upon such payment, the lease
of such Equipment shall terminate and all right, title and interest to such
Equipment and any insurance thereon shall become the property of the Lessee.
11. INSURANCE. Lessee agrees to keep the Equipment insured in the amounts,
in the forms and with such insurers as Lessor shall approve to protect all
interest of Lessor, at Lessee's expense, against such risks of loss or damage as
Lessor shall designate for not less than the unpaid balance of the lease rentals
due hereunder or the then current cash value of said Equipment, whichever is
higher, and to protect Lessor from public and product liability for bodily
injury and for property damage and such other risks as Lessor may request.
Lessee shall furnish Lessor with copies of all insurance policies required by
this paragraph or certificates with respect thereto or with such other evidence
of Lessee's compliance with this paragraph as may be satisfactory to Lessor. The
policies for said insurance shall provide that such insurance may not be altered
or canceled by the insurer until after thirty (30) days written notice to
Lessor. If Lessee fails to provide such insurance, Lessor may, but shall not be
obligated to, insure said property at the expense of Lessee. All insurance
policies and the proceeds therefrom shall be the sole property of Lessor and
Lessor shall be named as an insured in all such policies. The proceeds of such
insurance, whether resulting from loss or damage or return premium or otherwise,
shall be applied toward the replacement or repair of the said Equipment or the
payment of obligations of Lessee hereunder at the option of Lessor. Lessee
hereby appoints Lessor as Lessee's attorney-in-fact to make claim for, receive
payment of and execute or endorse all documents, checks or drafts for loss or
damage or return premium under any insurance policy insured on said Equipment.
12. TAXES. Lessee shall pay and indemnify Lessor against all fees, taxes,
and other charges of any nature, together with penalties and interest thereon,
arising during the term of any lease of Equipment hereunder, or upon the return
of Equipment to Lessor, and imposed upon Lessor by any government or taxing
authority upon or with respect to such Equipment or upon the purchase,
ownership, delivery, leasing, possession, use, operation, return or other
disposition thereof, or upon the rentals, receipts, or earnings arising
therefrom or upon or with respect to this Lease (other than taxes upon or
measured by the net income of Lessor). In the event that any report or tax
return shall be required to be made with respect to any obligation of Lessee
under or arising out of this Paragraph 12, then Lessee shall make such report or
return in such manner as will disclose ownership of Equipment in Lessor and
furnish to Lessor a copy of such report and return in a manner satisfactory to
Lessor. The obligations of Lessee under this Paragraph 12 shall survive the
termination of this Lease.
13. RETURN OF EQUIPMENT. Upon termination of the Terms of Lease provided in
each Schedule or upon termination for any other cause, Lessee will, at its own
cost and expense, promptly deliver the Equipment described in such Schedule to
Lessor at an address specified by Lessor, in same condition as received,
reasonable wear and tear and normal depreciation accepted. Lessee will pay for
any repairs required to place such Equipment in its original condition. Lessee
shall without unreasonable delay cause such Equipment to be assembled and crated
at its expense as designated and/or supervised by Lessor and delivered to any
carrier designated by Lessor for prepaid shipment to such location as Lessor
shall direct.
14. RIGHTS OF THIRD PARTIES.
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(A) Liens and Encumbrances. Lessee shall not create, incur, assume or
allow to exist any mortgage, pledge, lien, attachment, charge, encumbrance, or
other right of others on or with respect to any Equipment or to any title to
such Equipment or any interest therein, except (i) rights of Lessor and Lessee
under this Lease, (ii) liens or encumbrances resulting from claims against
Lessee not related to ownership of such Equipment, (iii) liens for taxes not yet
due or being contested in good faith by appropriate proceedings, and (iv)
inchoate materialmen's mechanics' or other like liens arising in the ordinary
course of business and not delinquent.
(B) Personal Property. Each item of Equipment shall be and at all times
remain personal property. Without limitation of the generality of the provisions
of Paragraphs 8 (I) and 10, Lessee shall at its own expense take any such
actions as may be necessary to prevent any third party from acquiring any right,
title, or interest in any Equipment by reason of its being affixed to or
otherwise deemed to be real property or by reason of its being affixed to or in
any other personal property. Lessee represents and warrants that it is not now
and during the term of this Lease will not be a party to any lease or mortgage
of real property where any Equipment is to be located which expressly or by
implication restricts the removal of any Equipment at any time by Lessor or
Lessee.
(C) Lessee's Action. If any third party shall acquire, or claim to have
acquired, rights referred to in this Xxxxxxxxx 00, Xxxxxx shall promptly notify
Lessor of that fact and shall seek diligently to remove the basis for such
claim. If any such claim shall or may interfere with the continued use of
Equipment by Lessee as contemplated by this Lease, Lessee shall remove the basis
for such claim to Lessor's satisfaction within thirty (30) days from the date it
is asserted.
15. DEFAULT.
(A) Events of Default. The following shall constitute Events of Default
under this Lease: (i) default by Lessee in the payment of rent or any other sums
due hereunder for ten (10) days after such rent or other sum is due; (ii)
default by Lessee in the performance of any other liability, obligation, or
covenant of Lessee to Lessor and the continuation of such default for ten (10)
days after written notice to Lessee sent by Lessor by ordinary mail or by any
other means; (iii) default by Lessee in meeting its trade, tax, borrowing, or
other obligations as they become due; (iv) termination or material suspension of
the business of Lessee, or Lessee liquidation, merger, or sale of substantially
all assets; (v) business failure of Lessee or the making by Lessee of an
assignment for the benefit of creditors or the institution of bankruptcy,
reorganization, liquidation or receivership proceedings by or against Lessee
and, if such proceedings shall be instituted against Lessee, its consent thereto
or the pendency thereof for the (10) days; (vi) such a change in Lessee's
affairs as in Lessor's opinion impairs Lessor's security or increases the credit
risk involved in this Lease; or (vii) any representation or warranty made by the
Lessee under this Lease or in any document furnished to the Lessor in connection
herewith or pursuant hereto shall prove to be incorrect at any time in any
material respect.
(B) Lessor's Action. Upon the occurrence of an Event of Default, Lessor
may do one or more of the following, at Lessor's option: (i) accelerate the
balance of payments due hereunder and under any other lease or other agreement
between the parties, thereby requiring prepayment of such lease or leases or
other agreements with all rentals, charges and payments due and payable
forthwith, (ii) terminate this Lease and any schedules or the lease of any
Equipment hereunder upon written notice to Lessee, (iii) take possession of any
or all Equipment wherever located, and for such purpose enter upon any premises
without liability for so doing, (iv) sell the Equipment at public or private
sale or lease any Equipment as Lessor in its sole discretion may decide, without
any duty to account to Lessee with respect to such action or the proceeds
therefrom, or (v) exercise any other remedy available to it at law, or in
equity.
(C) Lessee's Liability After Default. After the occurrence of an Event
of Default, (i) if Lessor shall repossess and sell or lease any Equipment,
Lessee shall be liable for any deficiency between the net proceeds of sale or
lease received and retained by Lessor and the present value of all unpaid Lease
payments for the remainder of the term plus the present value of our anticipated
residual interest in the Equipment, each discounted at a rate per year equal to
the discount rate of the Federal Reserve Bank of Boston on the date the
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payment is demanded, (ii) if Lessor does not repossess and sell or lease any
Equipment, Lessee shall be liable to Lessor for the present value of all unpaid
Lease payments for the remainder of the term plus the present value of our
anticipated residual interest in the Equipment, each discounted at a rate per
year equal to the discount rate of the Federal Reserve Bank of Boston on the
date the payment is demanded, and (iii) in any event Lessee shall be liable to
Lessor for all loss, costs, and expenses incurred by Lessor by reason of the
occurrence of the Event of Default, including without limitation expenses of
repossession and sale or lease and reasonable fees and expenses of Lessor's
attorneys.
(D) Lessor's Remedies Cumulative. Lessor's remedies are cumulative and
Lessor may exercise remedies singly, simultaneously, concurrently or
successively and any such action shall not operate to release the Lessee until
the full amount of the rentals due and to become due and all other sums to be
paid hereunder have been paid in cash.
(E) Liquidated Damages. Any sums payable hereunder shall become due and
payable immediately except as otherwise expressly provided herein, as liquidated
damages and not as a penalty.
16. ASSIGNMENTS.
(A) Lessee. Without the prior written consent of Lessor, Lessee shall
not assign, pledge, mortgage or hypothecate this Lease of any of its rights
under this Lease or sell or sublet any Equipment leased hereunder or any
accessories attached thereto or otherwise permit any Equipment to be used by or
to come into the possession of anyone other than the Lessee.
(B) Lessor. Lessor may at any time, without notice to Lessee, assign to
any other person any or all of its right, title and interest in this Lease or
any Equipment leased hereunder and any such assignee may assign the same. In the
event of such an assignment, the term "Lessor" as used in this Lease shall
include any such assignee, and upon written notice to Lessee of any assignment
by Lessor, Lessee shall make all payments required to be made by Lessee
hereunder to the person and at the address specified in such notice.
17. COVENANT OF FURTHER ASSURANCE. Lessee shall promptly execute and
deliver to Lessor such further documents and take such further action as Lessor
may from time to time reasonably request in order to more effectively effectuate
the intents and purposes of this Lease and to establish and protect the rights
and remedies created in favor of Lessor hereunder, including without limitation
the prompt execution and delivery to Lessor of any Schedule hereunder, and the
filing or recording of this Lease or any schedule or any financing statements or
amendments thereto with respect to this Lease or any Equipment, as may be
permitted by the Uniform Commercial Code or any other applicable law. Lessee
hereby authorizes Lessor and appoints Lessor its attorney in fact to effect any
such filing or recording, including the filing of financing statements or
amendments thereto on Lessee's behalf, and, at Lessor's option, any costs and
expenses with respect thereto shall be payable by Lessee upon demand.
18. NOTICES. Except as otherwise provided herein, all notices hereunder
shall be deemed given and shall be effective when personally delivered or
deposited in the United States mail, postage prepaid and addressed to the
addressee at its address set forth above or at such other address as such party
shall from time to time designate in writing to the other party.
19. SEVERABILITY OF PROVISIONS. Any provisions of this Lease which may be
determined to be unenforceable or invalid shall be ineffective only to the
extent of such unenforceability or invalidity without affecting any other
provisions hereof. To the extent permitted by law, Lessee hereby waives any
provisions of law which render unenforceable or invalid in any respect any
provision hereof.
20. MODIFICATIONS AND WAIVERS.
(A) Modification. Except as may be otherwise expressly permitted in
this Lease, no term or provision hereof may be changed in any way except by an
instrument in writing signed by Lessor and Lessee.
Page 8 of 11
(B) Waiver. No waiver of any terms of this Lease or of any rights
hereunder shall constitute a waiver of any other terms or rights, and no waiver
upon any occasion shall constitute a waiver of terms or rights as to any
subsequent occasion. No failure or delay of Lessor in its exercise of any rights
hereunder shall constitute a waiver thereof nor shall any such failure or delay
in any way affect the right of the Lessor to enforce the provisions hereof.
21. GENERAL. This Lease constitutes the entire agreement between the
parties hereto and no representation or statement made by any representative of
the Lessor or the Seller not stated herein shall be binding. This Lease shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts. Captions appearing in this Lease are for convenience of reference
only and shall not define or limit any provisions hereof. This Lease shall be
binding upon and inure to the benefit of Lessee and Lessor and their respective
successors and assigns. If there shall be more than one Lessee named in this
Agreement, the liability of each such Lessee shall be joint and several.
22. CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL AND COUNTERCLAIMS. EACH
OF THE LESSORS AND THE LESSEE HEREBY CONSENTS TO THE JURISDICTION OF
MASSACHUSETTS STATE AND FEDERAL COURTS IN CONNECTION WITH ANY DISPUTES UNDER
THIS LEASE, AND HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS LEASE, OR THE VALIDITY,
PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER
CLAIM OR DISPUTE, HOWSOEVER ARISING, BETWEEN THEM; AND LESSEE HEREBY WAIVES THE
RIGHT TO INTERPOSE ANY SETOFF, COUNTERCLAIM OR CROSS-CLAIM IN CONNECTION WITH
ANY SUCH LITIGATION, IRRESPECTIVE OF THE NATURE OF SUCH SETOFF, COUNTERCLAIM OR
CROSS-CLAIM (UNLESS SUCH SETOFF, COUNTERCLAIM OR CROSS-CLAIM COULD NOT, BY
REASON OF ANY APPLICABLE STATE OR FEDERAL PROCEDUARAL LAWS, BE INTERPOSED,
PLEADED OR ALLEGED IN ANY OTHER ACTION).
23. IRREVOCABLE AND NONCANCELLABLE LEASE. This Lease is irrevocable and
noncancellable for the full term as set forth on the Schedule(s) and the
aggregate rentals herein equaling the number of rental payments times the rental
payment amounts shall not xxxxx by reason of termination of Lessee's right or
possession and/or taking of possession by the Lessor or for any other reason and
such obligation shall be absolute and unconditional under all circumstances.
24. NET LEASE. The Lessor and the Lessee hereby acknowledge and agree that
this Lease is a net lease, that the Lessor is the owner of the Equipment and
that the relationship between the Lessor and the Lessee shall always be only
that of Lessor and Lessee. Both parties agree to treat this Lease as a lease for
legal, tax, accounting and all other purposes.
This Master Lease Agreement and related Schedules are deemed to be executed as
an instrument under seal in accordance with the laws of the Commonwealth of
Massachusetts.
THIS IS A NON-CANCELABLE LEASE FOR THE TERM INDICATED.
Date:
________________________________
Page 9 of 11
Accepted: LESSEE:
Westford, MA Lifeline Systems, Inc.
---------------------------- ----------------------------------
(Full Legal Name)
s/ Xxxxxx X. Xxxxxxxx, Controller
----------------------------------
----------------------------
(Authorized Signature and Title)
LESSOR: ATTEST:
Andover Capital Group, Inc. Sealed
---------------------------- ----------------------------------
000 Xxxxxxxxx Xxxx (Affix Corporate Seal)
Xxxxxxxx, XX 00000
If Partnership:
By:--------------------------------
(Signature of Authorized Partner)
By: s/ Xxxxxxx Xxxxxxx
------------------------- ----------------------------------
Authorized Signature (Signature of Witness)
Treasurer
----------------------------
Title
THE UNDERSIGNED AFFIRMS THAT HE IS A DULY AUTHORIZED CORPORATE OFFICER, OR
PARTNER OF THE ABOVE NAMED LESSEE.
By: s/ Xxxxxx X. Xxxxxxxx Controller
---------------------------- ----------------------------------
Title
State of: Masssachusetts )
----------------------
SS.
County of: Middlesex )
---------------------
Below me, Xxxxxxx X. Xxxx , a Notary Public in and for said County,
-------------------
personally appeared Xxxxxx X. Xxxxxxxx to me personally known
----------------------------------
to be the identical person who signed and executed the above instrument (for)
(as) the Lessee, and acknowledges that he executed the foregoing instrument as
his free and voluntary act and deed (as and as the free and voluntary act and
deed of said Lessee Corporation or Partnership, being duly authorized to do so)
for the uses and purposes therein set forth.
Affix Notary Seal
s/ Xxxxxxx X. Xxxx
--------------------------
Notary Public
My Commission Expires 6/18/2005.
------------
Page 10 of 11
EXHIBIT A
---------
To Master Lease Agreement dated, March 11, 1999 between
Andover Capital Group, Inc. as Lessor, and
-------------------------------------------------------
Lifeline Systems, Inc. as Lessee.
-------------------------------------------------------
Acquisition Expiration Date: June 30, 1999
Description of Equipment: (include Quantity, Name of Manufacturer and Model No.)
A.) Equipment:
---------------
Portable Office Partitions and related equipment
B.) Equipment:
---------------
Various Computers and related equipment, security systems, and other equipment
Total Aggregate Acquisition Cost $2,500,000.00
-------------
Note:
-----
A. Equipment = $1,200,000.00
--
B. Equipment = $1,300,000.00
--
Page 11 of 11
