Fill and Sign the Ex 1017 4 Ex10 17htm Master Lease Master Form

-1- § 3.22 Form: Finance Master Lease Agreement MASTER LEASE AGREEMENT made this ____ day of ______________, 19__, by and between Lessor having its principal place of business at New York, New York and Lessee, having its principal place of business at Chicago, Illinois. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Property Leased Subject to the terms and conditions hereinafter set forth, Lessor shall lease to Lessee, and Lessee shall hire from Lessor, the tangible personal property listed in each Equipment Schedule executed, from time to time, pursuant to this Master Lease Agreement (hereinafter collectively referred to as the "Equipment"). Each Equipment Schedule shall incorporate all the terms and conditions of this Master Lease Agreement and shall contain such additional terms and conditions as Lessor and Lessee shall agree upon. 2. Term The term of this Master Lease Agreement shall commence on the date set forth above and shall continue in effect thereafter so long as any Equipment Schedule entered into pursuant to this Master Lease Agreement remains in effect. The leased term for each Equipment Schedule shall commence on the first to occur of the day on which the Equipment listed on said Equipment Schedule is installed and approved for coverage under a prime shift maintenance contract by the manufacturer or the seventh day after the delivery by Lessor if a delay of installation and approval is caused by Lessee (hereinafter the "Commencement Date"). The leased term shall continue for the number of full months set forth in such Equipment Schedule (hereinafter the "Initial Term"), commencing on the first day of the month following the Commencement Date (or commencing on the Commencement Date if such date is on the first day of the month). On the Commencement Date the Lessee shall execute and deliver to the Lessor a letter, in a form to be specified by the Lessor, which confirms such Commencement Date. The leased term may be terminated at the expiration of the Initial Term thereof, or any time thereafter, by written notice of termination given by either party to the other not less than six months prior to the date of termination designated in such notice which date shall be the last day of a calendar month. To the extent the lease does not terminate at -2- the end of the Initial Term and other rental amounts are not specified or mutually agreed to in writing, the base monthly rent shall continue to be due and payable by Lessee. A notice of termination given hereunder may not be revoked without the written consent of the other party.3. Rent and Payment Lessee shall pay to Lessor as rental for the Equipment during each month of the Initial Term of any Equipment Schedule, the base monthly rent set forth in such Equipment Schedule, which shall be due and payable in advance on the first day of each calendar month during such Initial Term. If the Commencement Date of any Equipment Schedule shall be other than the first day of the month, Lessee shall make an initial payment on the Commencement Date in an amount equal to one- thirtieth (1/30th) of the monthly rent set forth in the Equipment Schedule for each day from the Commencement Date (including the Commencement Date) through the last day of such month (including that day). Rent shall be paid to the Lessor by check or wire transfer so as to constitute immediately available funds at the address of Lessor set forth above or at such other place as Lessor shall designate in writing, or, if to an assignee of Lessor, at such place as such assignee shall designate in writing, and shall be paid free and clear of all claims, demands or setoffs against Lessor or such assignee. Whenever any payment of rent or otherwise is not made when due hereunder, Lessee shall pay interest on such amount at the rate of one and one-half (1 and 1/2%) percent per month or the maximum allowable rate of interest permitted by the law of the State where the Equipment is located, whichever is less, to the date of payment. 4. Taxes During the term of this Lease, Lessee shall promptly report, file, pay and indemnify and hold Lessor harmless with respect to any and all taxes, as hereinafter defined. The term "taxes" as used herein shall mean all taxes, fees and assessments due, assessed or levied by any foreign, federal, state or local government or taxing authority, and/or any penalties, fines or interest thereon, which are imposed against or upon the Equipment, its use or operation, or the rentals or receipts due under this Master Lease Agreement, or penalties arising from the failure to file a return with respect to the Equipment, but shall not include any taxes based upon or measured by the net income of the Lessor. Lessee shall, upon request by Lessor, submit to Lessor written evidence of Lessee's payment of all taxes due hereunder. To the extent permitted by law, -3- Lessee shall be agent for the Lessor in the filing and payment of taxes; if such agency is not permitted under law, and Lessee so notifies Lessor thereof in writing, Lessor shall file such tax returns relating to such taxes and Lessor shall remit the amount thereof, and Lessee shall simultaneously reimburse Lessor promptly upon demand for the amount of such taxes.5. Net Lease This Master Lease is a net lease. Lessee's obligation to pay rent and other amounts due hereunder shall be absolute and unconditional, and Lessee shall not be entitled to any abatement, deferral, or reduction of rent or other amounts due hereunder, or setoffs against said rent or amounts, including without limitation, abatements, recoupments, defenses, reductions or set-offs whether arising out of any claims of Lessee against Lessor or any parent, subsidiary, or affiliate or supplier, or otherwise. This Master Lease Agreement shall not terminate and the obligations of the Lessee shall not be affected by reason of any defect in, or damage to, or loss of possession, use or destruction of, any or all of any item of Equipment from any cause whatsoever; it being the intention of the parties that rent and other amounts due hereunder shall continue to be payable in all events in the manner and at the time set forth herein unless the obligation to do so shall have been terminated pursuant to the express terms hereof. 6. Installation and Use Upon delivery of the Equipment to Lessee, Lessee shall pay all transportation, installation, rigging, drayage and insurance charges with respect to the Equipment. Lessee shall provide the required electric current in a suitable place of installation for the Equipment with all appropriate facilities as specified by the manufacturer. No cards, tapes, disks, data cells and/or other input/output and storage media may be used by Lessee to operate any unit unless the same meets the specifications of the manufacturer. Lessee shall, at all times during the term of this Lease, be entitled to unlimited use of the Equipment. Lessee shall at all times keep the Equipment in its sole possession and control. The Equipment shall not be moved from the location stated in the Equipment Schedules without the prior written consent of Lessor. Provided Lessee shall have first obtained the written consent of the Lessor, Lessee may, at its own expense, make alterations in or add attachments to the Equipment, provided that such alterations or -4- attachments do not interfere with the normal and satisfactory operation or maintenance of the Equipment or with Lessee's ability to obtain and maintain the maintenance contract required herein. During the term of the Lease and provided Lessee is not in default, all such alterations and attachments shall be the property of Lessee; and no liens, encumbrances or interests may be granted by Lessee in such attachments or alterations which would impair Lessor's right, title and interest in the Equipment. At the option of the Lessee or Lessor, Lessee shall, prior to the termination of this Lease and at its sole expense, remove such alterations and attachments and restore the Equipment to its original condition, reasonable wear and tear excepted.7. Maintenance and Repairs Lessee shall, at its sole expense, at all times during the applicable term, maintain the Equipment in good operating order, repair, condition and appearance and protect the Equipment from deterioration other than normal wear and tear. Lessee shall not use the Equipment for any purpose other than that for which it was designed. Lessee shall, at its own expense, enter into and maintain in force for each term a contract with the supplier or a third party which is acceptable to Lessor ("Maintenance Organization"), pursuant to which maintenance service with respect to the Equipment shall be furnished which is acceptable to Lessor. Upon the request of Lessor, Lessee shall at reasonable times during Lessee's business hours, make each item of Equipment available to Lessor for inspection at the place where it is normally located and make Lessee's log and maintenance records pertaining thereto available to Lessor for inspection. 8. Ownership Lessee shall have no interest in any item of Equipment other than the rights acquired as a Lessee hereunder. All Equipment shall remain personalty regardless of the manner in which it may be installed or attached. Lessee shall, at Lessor's request, and at no charge promptly affix to such Equipment any tags, decals, or plates furnished by Lessor indicating Lessor's ownership and Lessee shall not permit their removal or concealment. Lessee shall execute and immediately deliver such instruments, including Uniform Commercial Code financing statements which are required by Lessor, to be filed to evidence Lessor's interest in the Equipment, or this Lease. Lessor and Lessee hereby agree, and Lessee -5- hereby represents for the benefit of the Lessor and its assignees that this Lease is intended to be a "True Lease" as the term is commonly used with reference to the applicable Uniform Commercial Code and the Internal Revenue Code of 1954, as amended. Lessee has no interest in the Equipment except as expressly set forth in this Lease, and that interest is a leasehold interest.Lessee shall keep this Lease and the Equipment free and clear of all liens and encumbrances and Lessee shall not assign this Lease or any of its rights hereunder or sublease any of the Equipment or grant any right to the Equipment without the prior written consent of Lessor. No permitted assignment or sublease shall relieve Lessee of any of its obligations hereunder and Lessee agrees to pay all costs and expenses Lessee may incur in connection with such sublease or assignment. 9. Warranties LESSEE ACKNOWLEDGES THAT LESSOR HAS MADE NO REPRESENTATION OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR PERFORMANCE OF THE EQUIPMENT, ITS MERCHANT- ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WITH RESPECT TO PATENT INFRINGEMENTS OR THE LIKE. LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER INCLUDING THE ACTIVE OR PASSIVE NEGLIGENCE OR STRICT LIABILITY OF LESSOR, NOR SHALL THERE BE ANY ABATEMENT OF RENTAL, FOR ANY REASON INCLUDING CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE DEFICIENCY OR INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE, WHETHER OR NOT KNOWN OR DISCLOSED TO LESSOR, ANY DEFICIENCY OR DEFECT IN THE EQUIPMENT, THE USE OR PERFORMANCE OF THE EQUIPMENT, OR ANY LOSS OF BUSINESS OR OTHER CONSEQUENTIAL LOSS OR DAMAGE WHETHER OR NOT RESULTING FROM ANY OF THE FOREGOING. AS BETWEEN LESSOR AND LESSEE, THE EQUIPMENT IS SUPPLIED TO LESSEE AS-IS. LESSOR SHALL NOT BE RESPONSIBLE FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, SERVICE OR USE OF THE EQUIPMENT. During the term hereof, Lessor assigns to Lessee and Lessee may have the benefit of any and all manufacturer's warranties, service -6- agreements and patent indemnities, if any, with respect to the Equipment to the extent assignable by Lessor; provided, however that Lessee's sole remedy for the breach of any such warranty, indemnification or service agreement shall be against the manufacturer, and not against Lessor or any assignee of Lessor, nor shall any such breach have any effect whatsoever on the rights and obligations of either party with respect to this Lease. 10. Quiet Enjoyment Lessor covenants that so long as Lessee is not in default hereunder Lessee shall quietly possess the Equipment subject to and in accordance with the provisions of this Master Lease, and notwithstanding any assignment by Lessor, neither Lessor nor any third party claiming under or through Lessor shall interfere with Lessee's right to quiet possession of the Equipment. 11. Indemnity Lessee shall and does hereby indemnify and hold Lessor, any assignee and any secured party harmless from and against any and all claims, costs, expenses, damages and liabilities, including reasonable attorney's fees, arising out of the ownership, selection, possession, leasing, renting, operation, control, use, maintenance, delivery, return or other disposition of the Equipment. Notwithstanding the foregoing, Lessee shall not be responsible under the terms of this paragraph as a party indemnified hereunder for any claims, costs, expenses, damages and liabilities occasioned by the gross negligence or wilful misconduct of such indemnified party. 12. Risk of Loss Lessee hereby assumes and shall bear the entire risk of loss and damage, whether or not insured against, of the Equipment from any and every cause whatsoever as of the date the Equipment is delivered to the Lessee. No loss or damage to the Equipment or any part thereof shall impair any obligation of Lessee under this Master Lease, which shall continue in full force and effect. In the event of loss or damage of any kind to any item of Equipment, Lessee shall use all reasonable efforts to place the same in good repair, condition and working order to the satisfaction of Lessor within ninety (90) days of such loss or damage, unless Lessor and Lessee agree that such item has been irreparably damaged, in which case Lessor may -7- elect to shorten or terminate said ninety (90) day period and within thirty (30) days after the earlier of the end of said ninety day period or receipt of notice of Lessor's election under this paragraph, Lessee shall have elected to pay the fair market value of the Equipment or to replace the Equipment.13. Insurance During the term of this Master Lease, Lessee at its own expense, shall insure the Equipment against all risks and in such amounts as Lessor shall reasonably require with carriers acceptable to Lessor, and shall maintain a loss payable endorsement in favor of Lessor and its successors and assigns affording to Lessor and its successors and assigns such additional protection as Lessor and its successors and assigns shall reasonably require. Lessee shall also maintain comprehensive public liability insurance satisfactory to Lessor. All such insurance shall name Lessor, its successors and assigns, and Lessee as additional insureds and the policy shall provide that they may not be cancelled or altered without at least thirty (30) days prior written notice to Lessor or its successors or assigns. Lessee agrees to supply to Lessor, upon its request, evidence of insurance as required herein. If Lessee shall have made payment to Lessor of the fair market value subsequent to the destruction of the Equipment, Lessee shall be entitled to receive any such insurance proceeds relating to the Equipment up to an amount equal to the fair market value for such Equipment, any balance remaining the property of Lessor. 14. Default 14.1 Events The occurrence of any one or more of the following events shall constitute a default under any pertinent Equipment Schedule: (A) Default by Lessee in the payment of any installment of monthly rent or other charge payable by Lessee under each Equipment Schedule as and when the same becomes due and payable and such default continues for a period of ten (10) days. (B) Default by Lessee in the performance of any other term, covenant or condition of such Equipment Schedule or the inaccuracy in any material respect of any representation or warranty made by the Lessee in such Equipment Schedule or in any document or certificate -8- furnished to the Lessor in connection therewith, which default or inaccuracy shall continue for a period of fifteen (15) days after notice.(C) The making of an assignment by Lessee for the benefit of its creditors or the admission by Lessee in writing of its inability to pay its debts as they become due, or the solvency of Lessee, or the filing by Lessee of a voluntary petition in bankruptcy, or the adjudication of Lessee as a bankrupt, or the filing by Lessee of any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law or regulation, or the filing of any answer by Lessee admitting, or the failure by Lessee to deny the material allegations of a petition filed for any such relief, or the seeking or consenting by Lessee to or acquiescence by Lessee in, the appointment of any trustee, receiver or liquidator of Lessee or of all or any substantial part of the properties of Lessee or the inability of Lessee to pay its debts when due or the commission by Lessee of any act of bankruptcy as defined in the Federal Bankruptcy Act, as amended. (D) The failure by Lessee, within sixty (60) days after the commencement of any proceeding against lessee seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law or regulation, to obtain the dismissal of such proceeding or, within sixty (60) days after the appointment, without the consent or acquiescence of Lessee, of any trustee, receiver or liquidator of Lessee of all or any substantial part of the properties of Lessee, to vacate such appointment. (E) The default by Lessee under any other Equipment Schedule or other agreement between Lessee and Lessor or its assignee or secured party hereunder. 14.2 Action Upon the occurrence of any one or more events of default, Lessor, at its option, may (1) proceed by appropriate court action or actions either at law or in equity to enforce performance by Lessee of the applicable covenants and terms of the applicable Equipment Schedule, or to recover from Lessee any and all damages or expenses, including reasonable attorney's fees, which Lessor shall have sustained by reason of Lessee's default in any covenant or covenants of the applicable Equipment Schedule or on account of Lessor's enforcement of its remedies hereunder, or (2) without notice or demand, accelerate the balance of the monthly rentals thereafter accruing under the applicable Equipment Schedule, which, together with all rent and other amounts -9- then due shall become immediately due and payable, as liquidated damages and not as a penalty, and Lessor shall have the right to the extent permitted by law: (i) to recover all sums so due thereunder, (ii) to retake immediate possession of the Equipment without any process of law and for such purpose Lessor may enter upon premises where the Equipment may be located and may remove the same therefrom without notice, and without being liable to lessee therefor, except that Lessor shall be liable for damages resulting from the default or negligence of Lessor, Lessor's assignee or their respective agents and representatives in any such entry or repossession; (iii) to sell, lease or otherwise dispose of all or any portion of the Equipment, with the privilege of becoming the purchaser thereof, at public or private sale, for cash or on credit and without notice of its intention to do so or of its doing so, in which event Lessor shall apply the cash proceeds from any sale or other disposition (less the estimated fair market value of the Equipment at the expiration of the Initial Term or any extension thereof), or the present value of the rentals under any lease for a term not to exceed the expiration of the Initial Term or any extension thereof, less all costs and expenses incurred in connection with the recovery, repair or storage of the Equipment or the transaction itself, against all sums due from Lessee and to the extent and in the manner permitted by law, Lessee shall be liable to Lessor, and Lessor may recover from Lessee, the amount by which the proceeds of any such transaction, less the expenses of retaking, storing, repairing and the transaction itself, including reasonable attorney's fees incurred by Lessor, is less than all sums due from Lessee under the applicable Equipment Schedule; and (iv) to pursue any other remedy permitted by law or equity.The above remedies, to the extent permitted by law, any one of which Lessor need not, in its discretion, exercise, shall be deemed cumulative and may be exercised successively or concurrently. Lessee shall reimburse Lessor for all costs and expenses incurred in connection with the enforcement of any right or remedy under such Equipment Schedule, including reasonable attorney's fees. Except as set forth in this Section and to the extent permitted by applicable law, Lessee hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's damage or which may otherwise limit or modify any of Lessor's rights or remedies. Fair market value of the Equipment shall be determined on the basis of and shall be the aggregate of the amount which would be obtainable at the expiration of the Initial Term or any extension thereof in an arm's length transaction -10- between an informed and willing buyer/user and an informed and willing seller under no compulsion to sell.15. Assignment Lessor may transfer or assign all or any part of Lessor's right, title and interest in, under, or to, any item of Equipment (in whole or in part) and/or this Master Lease in any amounts due or to become due pursuant to any of the above, to any third party ("Assignee") for any reason. Upon receipt of written notice from Lessor of such assignment, Lessee shall perform all its obligations with respect to any such item for the benefit of the applicable Assignee, and, if so directed, shall pay all amounts due or to become due hereunder directly to the applicable Assignee or to any other party designated by such Assignee. Lessee shall also execute and deliver to Lessor such documentation as any such Assignee may reasonably require, including but not limited to an acknowledgment of, or consent to, assignment which may require Lessee to make certain representations or reaffirmations as to some of the basic terms and covenants contained in this Lease. Notwithstanding anything contained in this Master Lease, in the event Lessor assigns ownership of any item of Equipment and Lessor's obligations hereunder with respect thereto to an Assignee, Lessee's obligations to any such Assignee shall be as set forth in this Master Lease Agreement with respect to Lessor after the date of such Assignment, and Lessee shall not look to Lessor to perform any of such Assignee's obligations hereunder which arise after the date thereof. 16. General 16.1 Entire Agreement Lessor and Lessee acknowledge that there are no agreements or understanding, written or oral, between Lessor and Lessee with respect to the Equipment, other than as set forth herein and in each Equipment Schedule and this Master Lease Agreement and each Equipment Schedule contains the entire Agreement between Lessor and Lessee with respect thereto. Neither this Master Lease Agreement nor any Equipment Schedule, may be altered, modified, terminated or discharged except by a writing signed by the party against whom such alteration, modification, termination or discharge is sought. 16.2 No Waiver -11- No omission or delay, by Lessor at any time to enforce any right or remedy reserved to it, or to require performance of any of the terms, covenants or provisions hereof by Lessee at any time designated, shall be a waiver of any such right or remedy to which Lessor is entitled, nor shall it in any way affect the right of Lessor to enforce such provisions thereafter. 16.3 Notices All notices, consents or requests desired or required to be given hereunder shall be in writing and shall be delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, to the address of the other party set forth on the first page hereof or to such other address as such party shall have designated by proper notice. 16.4 Applicable Law This Master Lease Agreement has been, and each Equipment Schedule will have been, made, executed and delivered in the State of New York and shall be governed and construed for all purposes under and in accordance with the laws of the State of New York. 16.5 Severability In the event that any one or more of the provisions of this Master Lease Agreement and/or any Equipment Schedule shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Master Lease Agreement and/or any such Equipment Schedule shall be unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision. 16.6 Rules and Regulations Lessee shall comply with all laws, regulations and orders of any governmental agency which relate to the installation, use, possession or operation of the Equipment. 16.7 Force Majeure The obligations of Lessor hereunder shall be suspended to the extent that it is hindered or prevented from complying therewith because of labor disturbances including strikes and lockouts, acts of God, fires, storms, accidents, failure of the manufacturer to deliver any unit of -12- Equipment, governmental regulations or interferences or any cause whatsoever not within the sole control of Lessor.16.8 Counterparts This Master Lease Agreement and any Equipment Schedule may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Master Lease Agreement as of the date first above written. LESSOR:By: _____________________ Title: ___________________ LESSEE: By: _____________________ Title: ___________________