Leasing

Continental Leasing Co., Inc.  
Lease Terms and Conditions
 
1. AGREEMENT: Lessee agrees that: (a) Lessee has read and understands the terms and conditions on page 1 and page 2 of this Lease; (b) this Lease cannot be canceled for the full Lease Term and Lessee has an unconditional obligation to make all payments under this Lease without defense, of set, counterclaim, or reduction; (c) the person signing this Lease has the authority to do so and to grant the power of attorney set forth in paragraph 10 of this Lease; (d) this Lease is a commercial transaction and not a consumer transaction; and (e) this Lease will be governed by the laws of the Commonwealth of Massachusetts and Lessee consents to the jurisdiction of and venue in any court located within the Commonwealth of Massachusetts. Lessor and Lessee both waive any rights to a trial by jury. The Lessor is Continental Leasing Co., Inc., whichever is licensed to do business in the state where the Lessee or the Equipment is located.
2. LEASE: Lessor agrees to lease to Lessee and lessee agrees to lease from Lessor the Equipment described on page 1 and in any addendum to this Lease. Lessee agrees to pay Lessor a documentation fee to cover Lease documentation and investigative costs. The Lease will commence on the Acceptance Date (defined below) unless otherwise indicated in the Delivery and Acceptance Certificate.
3. DELIVERY AND ACCEPTANCE OF EQUIPMENT: Upon delivery of the Equipment to the location identified on page 1, Lessee will inspect the Equipment and the Equipment will be deemed irrevocably and accepted by Lessee upon the earlier of a)five (5) days after delivery of the Equipment; or b) the date of the signed Delivery and Acceptance Certificate ("Acceptance Date"). THIS LEASE IS NON-CANCELABLE FOR THE FULL LEASE TERM.
4. LEASE PAYMENTS: Lessee agrees to pay to Lessor the monthly Lease Payments for the Lease Term, in advance, on the date set forth in Lessor’s invoice for such lease Payment, commencing on the Acceptance Date. Any Advance Payments will be used for the first Lease Payment and any balance will be used for the last Lease Payment(s). Lease Payments shall be adjusted on a pro rata basis of the actual Acquisition Cost of the Equipment is different from the Acquisition Cost assumed by the lessor all the time that the Lease Payments were calculated. "Acquisition Cost" means the amount paid by Lessor for the Equipment, including purchase, delivery and installation costs, up-front taxes and any trade-up or buyout amounts. If any part of a payment is more than five (5) days late, Lessee shall pay a late charge of 10% of the payment, (or such lesser rate as is the maximum rate allowable under applicable law).
5. DICLAIMER OF WARRANTIES: Lessor is leasing the Equipment to Lessee "AS-IS." LESSEE ACKNOWLEDGES THAT LESSOR DOES NOT REPRESENT THE MANUFACTURER OR THE SUPPLIER. LESSEE HAS SELECTED THE EQUIPMENT AND SUPPLIER BASED UPON ITS OWN JUDGMENT. LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. LESSEE AGREES THAT ANY CLAIMS RELATIVE TO THE EQUIPMENT SHALL BE MADE SOLELY AGAINST THE MANUFACTURER OR SUPPLIER. AND IN NO EVENT SHALL LESSOR BE LIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE EQUIPMENT, WHETHER CONSEQUENTIAL, DIRECT, SPECIAL, OR INDIRECT. FOR SO LONG AS LESSEE IS NOT IN DEFAULT UNDER THIS LEASE, LESSOR TRANSFERS TO LESSEE ANY WARRANTIES BY THE MANUFACTURER OR SUPPLIER REGARDING THE EQUIPMENT.
6. LOCATION AND USE OF EQUIPMENT: Lessee agrees not to change the location of the Equipment without the written consent of Lessor. Lessee will keep and use the Equipment in compliance with manufacturer’s requirements for business purposes only and in good condition and repair. Lessee shall not make any alterations, additions, or replacements to it without Lessor’s prior written consent. At the end of the Lease term (or any renewal term), or if the Lease is terminated for any reason, Lessee at its expense, will return the Equipment to any place designated by Lessor, freight prepaid, in the same condition it was delivered except for ordinary wear and tear. Lessee, at its own expense, will maintain the insurance set forth in Section 8 until the Equipment is so returned. Lessor may charge Lessee as inspection service fee for assessing the condition of returned Equipment.
7. TAXES AND FEES: Lessee agrees to pay when due and indemnify Lessor from and against all taxes, fees, and charges relating to this Lease or the Equipment during the Lease Term or relating to Lessor’s acquisition, repossession, or disposition of the Equipment. Lessor will file all personal property, use or other tax returns (unless Lessor notifies Lessee otherwise) and Lessee agrees to pay Lessor a fee for making such filings. Lessor does not have to contest any taxes, fines or penalties. Lessee will pay estimated property taxes with each Lease Payment or periodically as invoiced by Lessor.
8. INSURANCE; RISK OF LOSS: Lessee, at its own expense, shall keep insurance against all risks of loss, theft, damage, or destruction of the Equipment for the full replacement value thereof and naming Lessor as "Loss Payee." If Lessee fails to provide Lessor evidence of insurance, then Lessor may at tits option obtain insurance covering Lessor’s interest in the Equipment form an insurer of Lessor’s choice (which may be an affiliate). If Lessor purchases such insurance, Lessee will cooperate with Lessor’s insurance agent with respect to the placement of insurance and the processing of claims. Lessee also acknowledges that Lessor is not required to procure or maintain any insurance, and that Lessor will not be liable to Lessee if such insurance coverage is discontinued. Lessee agrees to pay to Lessor the lessor’s costs for such insurance and a fee for Lessor’s administration of such insurance. Lessee shall bear all risks of loss, theft, damages or destruction of the Equipment ("Loss") from any cause whatsoever and any such Loss shall not relieve lessee from any obligation under the Lease including Lessee’s obligation to make Lease Payments. Lessee also at is expense shall maintain public liability and third party property insurance naming lessor as an additional insured, in such form, amount and with companies acceptable to Lessor. Lessee shall provide a certificate or other evidence of such insurance which shall include a clause requiring 30 days prior notice to Lessor of any cancellation or modification.
9. TITLE; PERSONAL PROPERTY: The Equipment is and at all times shall remain the sole property of Lessor. No right, title, or interest in the Equipment shall pass to Lessee other than the right to maintain possession and use of the Equipment for the full Lease Term, conditioned upon Lessee’s compliance with the terms and conditions of the Lease. However, if this Lease id determined to be a lease intended for security, Lessee grants Lessor a purchase monthly security interest in the Equipment as security for the performance of all of Lessee’s obligation under the Lease. Lessee agrees to keep the Equipment free and clear of all liens, claims and encumbrances. Lessor may inspect the Equipment at any reasonable time.
10. UCC FILINGS: Lessee authorized Lessor to file a copy of this Lease as a financing statement and appoints Lessor or Lessor’s designee as Lessee’s attorney -in-fact to execute and file, on Lessee’s behalf, financing statements covering the Equipment. If requested, Lessee will deliver to Lessor signed financing statements.
11. STATUTORY FINANCE LEASE: IT IS THE INTENT OF THE PARTIES THAT THIS LEASE QUALITY AS A STATUTORY FINANCE LEASE UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. LESSEE HAS SELECTED BOTH (A) THE EQUIPMENT AND (B) THE SUPPLIER FROM WHICH LESSOR IS TO PURCHASE THE EQUIPMENT. LESSEE REPRESENTS THAT IT HAS REVIEWED AND APPROVED THE SUPPLY CONTRACT COVERING THE PURCHASE OF THE EQUIPMENT FROM THE SUPPLIER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. LESSEE MAY HAVE RIGHTS UNDER THE SUPPLY CONTRACT EVIDENCING THE LESSOR’S PURCHASE OF THE EQUIPMENT AND LESSEE SHOULD CONTACT THE SUPPLIER FOR A DESCRIPTION OF ANY SUCH RIGHTS.
12. DEFAULT: Lessee shall be in default if: 9a) Lessee fails to make any Lease Payment within five (5) days after the date of the payment is due; (b) any representation or warranty made by Lessee is or becomes incorrect, or Lessee fails to perform any other obligations under this Lease or in any other agreement with Lessor (including without limitation, failure to provide proof of insurance, to allow Lessor to inspect the Equipment to maintain or return the Equipment in the condition required by this Lease or to keep the Equipment at the location on page 1 hereof) and this failure continues for 10 days after Lessor sends Lessee notice of it; (c) any Guarantor of the lease dies or does not perform Guarantor’s obligations under the guaranty; or (d) Lessee or any Guarantor files or has filed against it a petition in bankruptcy or seeks similar relief under state or federal receivership, insolvency laws, or suffers a material adverse change in its financial condition, in Lessor'’ sole discretion.
13. REMEDIES: If a default occurs, Lessor may do one or more of the following: (a) cancel this Lease and all other leases that lessor has entered into with Lessee; (b) require Lessee to immediately pay Lessor as compensation for loss of Lessor’s bargain and not as a penalty, a sum equal to (1) the present value of all unpaid Lease Payments for the remainder of the Lease Term plus the present value of the End of Lease Purchase Option, each discounted at 5% per year, compounded monthly, plus (2) ALL OTHER AMOUNTS DUE OR THAT BECOME DUE UNDER THIS Lease: (c) require Lessee to deliver the Equipment to Lessor; (d) take peaceful possession of the Equipment with or without court order; and (e) exercise any other right or remedy available at law or in equity. Each right and remedy shall be cumulative and may be exercised singly or in combination. If Lessor takes possession of the Equipment, Lessor may sell or otherwise dispose of the Equipment without notice, at a public or private sale, and Lessor will apply the net proceeds (after Lessor has deducted all costs related to the sale or disposition of the Equipment) to the amounts that Lessee owes Lessor. Lessee will remain responsible for any deficiency between such net proceeds and the amount set forth in subsection (b) of this Section 13.
14. ASSIGNMENT: Lessee shall not assign, sublet, lend, transfer, or pledge the lease or the equipment without lessor’s prior written approval. Lessor may assign, transfer, pledge or sell Lessor’s interest in the Lease and/or Equipment. Upon notification of such assignment, Lessee shall remit assigned payments directly to such assignee. Assignee will have the same rights Lessor has under this Lease but not Lessor’s obligations. Lessee agrees that nay assignee will not be subject to any claims, defenses, or set-offs Lessee may have against Lessor or any other entity.
15. PURCHASE OPTION: Upon not less than 30 days written notice prior to expiration of the Lease Term, provided Lessee is not in default, Lessee shall have the option to purchase the Equipment for the Purchase Option Price set forth on page 1 of this lease. If the Purchase Option Price is Fair Market Value, then Lessor will use its reasonable judgment to determine the Equipment’s in-use and in-place fair market value. If Lessee disagrees with Lessor’s determination, such fair market value shall be determined by a mutually acceptable independent appraiser. All fees and expenses of the appraiser shall be paid by Lessee. On the last day of the Lease Term, upon payment of the Purchase Option Price, plus applicable taxes, Lessor shall transfer its interest in the Equipment to Lessee "AS IS: "WHERE IS". Lessor may charge lessee a fee for costs and expenses relating to the release of its interest in the Equipment.
16. AUTOMATIC RENEWAL: If lessee fails to return the Equipment within 10 days of the expiration of the Lease Term (and has not exercised the End of the Lease Purchase Option, if any), this Lease will automatically renew for an additional 12 month term and thereafter renew for successive 1 month terms until Lessee returns the Equipment at the end of the applicable renewal term. Lessee shall pay the monthly Lease Payments during such renewal term(s) as and when payable during the original Lease Term at the same Lease Payment amount paid during the last 12 months of the term.
17. LESSEE’S EXPENSES: Lessee agrees to pay Lessor upon demand all costs, including reasonable attorneys’ fees incurred by Lessor in exercising any remedies hereunder.
18. AUTHORIZATION: Lessee and each Guarantor authorize Lessor to obtain credit reports and bank and trade references from time to time and make other credit inquiries at Lessor’s sold discretion. Upon Lessee’s (or such Guarantor’s) request, Lessor will inform Lessee or Guarantor whether Lessor requested a personal credit bureau report and the name and address of the credit reporting agency that furnished the report.
19. INDEMNITY: Lessee shall indemnify Lessor against, and hold Lessor harmless from, any and all claims, actions, suites, proceedings, costs, expenses, damages, and liabilities, including reasonable attorney’s fees, arising out of, connected with, or resulting from the ordering, purchase, manufacturing, leasing, use, possession, operation, return or disposition of the Equipment
20. NON-WAIVER: Lessor’s failure to require performance by Lessee or any provisions of the Lease shall not be a waiver thereof.
21. SEVERABILITY: This Lease contains the entire agreement between the parties regarding the lease of the Equipment. If any provision of the Lease is declared invalid, the remaining provisions shall remain in full force and effect.
22. MODIFICATION: Lessee hereby authorized Lessor to fill in dates and Lessor’s name as well as make minor correction in the Lease, but otherwise, the Lease shall not be changed except by written agreement executed by the parties
23. INTENT: It is the express intent of the parties not to violate any applicable usury laws or to exceed the maximum amount of time-price differential or interest (as applicable) permitted to be charged or collected under applicable law, and any such excess payment twill be applied to Lease Payments in inverse order of maturity and any remaining excess shall be returned to Lessee.
24. FAX ACKNOWLEDGMENT AND CERTIFICATION: Lessee agrees that a fax copy of this signed Lease may be used Lessor in any action to enforce Lessor’s rights under the Lease. Lessee also certifies that each of the provisions contained on page 1 and page 2 of the lease (and, if applicable, contained in any addendum) is clear and legible and lessee understands that Lessor is relying on this Acknowledgment and certification in entering into the Lease.
 
Lessee sign here: _______________________________ (Purchasing agent/Officer of the Company)
Title:___________________________________ (Purchasing Agent/Officer of the Company)