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EXHIBIT 10.6
MASTER EQUIPMENT LEASE AGREEMENT
RateXchange Corporation (Lessee) No. F41386
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185 Berry Street, Suite 3515 San Francisco, CA 94107 (Address) Date 3/18/2000
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Forsythe/McArthur Associates, Inc. ("FMA" or "Lessor"), by its acceptance
hereof, agrees to lease to Lessee, and Lessee agrees to lease from FMA, in
accordance with the terms and conditions hereinafter set forth, the equipment
("Equipment") described in equipment schedules ("Schedule(c)") which are
executed from time to time by FMA and Lessee. Each Schedule shall refer to and
incorporate by reference this Agreement and, when signed by the parties, shall
constitute a separate lease (a "Lease") for the Equipment therein described on
the terms and conditions stated therein and, to the extent not inconsistent
with such Schedule, on the terms and conditions stated in this Agreement.
1. TERM OF LEASE: The term of a Lease as to any item of Equipment shall
commence (the "Commencement Date") on the date set forth in the Schedule on
which such item of Equipment is described (herein a "Related Schedule") and
shall continue in force thereafter until the Lease is terminated as to such
item of Equipment by either party upon not less than 90 days prior written
notice to the other party; provided, however, that a Lease shall in no event be
terminated as to any item of Equipment prior to the expiration of the minimum
term specified therefor ("Minimum Term") in the related Schedule, and that no
notice of termination shall be effective if given more than 180 days before the
date of termination. Any notice of termination given by either party may not be
withdrawn without the written consent of the other party. Except as otherwise
expressly provided herein, each Lease is irrevocable for the full term thereof
and for the aggregate rental therein provided, if, after notice of termination
is given by Lessee with respect to a Lease in accordance herewith, Lessee and
FMA agree in writing to renew such Lease prior to the end of the Minimum Term
thereof, such renewal shall become effective on the later of (i) the last day
of the Minimum Term of such Lease, or (ii) the date 45 days after the date of
such agreement to renew, and such Lease shall continue in force until the
effective date of such renewal.
2. RENTAL CHARGES & TAXES: The monthly rental charge ("Monthly Rent") for each
item of Equipment as set forth in the related Schedule shall begin on the
Commencement Date and shall be due and payable by Lessee in advance on the
first day of each month thereafter (except for the first payment which shall be
a pro rata portion of the Monthly Rent, calculated on a 30-day basis, due and
payable on the Commencement Date). All amounts payable by Lessee under a Lease
shall be absolute and unconditional and shall not be subject to any defense,
setoff, counterclaim or recoupment for any reason whatsoever, and such amounts
shall be and continue to be payable in all events.
Lessee covenants and agrees to pay when due or reimburse and indemnity and hold
FMA harmless from and against all taxes, fees or other charges of any nature
whatsoever (together with any related interest or penalties not arising from
negligence on the part of FMA) now or hereafter imposed or assessed during the
term of a Lease against FMA, Lessee or the Equipment by any federal, state,
county, or local government authority upon or with respect to the Equipment or
upon the ordering, purchase, sale, ownership, delivery, leasing, possession,
use, operation, return or other disposition thereof or upon the rents, receipts
or earnings arising therefrom or upon or with respect to any Schedule (excepting
only federal, state and local taxes based on or measured by the net income of
FMA or any franchise tax upon FMA measured by FMA's capital, capital stock or
net worth). FMA shall be responsible for the filing of all personal property tax
returns relating to the Equipment and shall pay all taxes indicated thereon on
behalf of Lessee. Lessee shall reimburse FMA for all taxes paid by FMA which are
the responsibility of Lessee hereunder within 10 days of receipt of FMA's
invoice therfor.
3. OVERDUE PAYMENTS: For each payment of Monthly Rent or other sum due
hereunder that is not paid when due, and for each month in which such payment
remains past due, Lessee agrees to pay FMA a delinquency charge at the rate of
1.5% of such payment, provided that such a delinquency charge is not prohibited
by law, otherwise at the highest rate Lessee can legally obligate itself to pay
and/or FMA can legally collect. Any sum due hereunder other than Monthly Rent
shall be considered past due 5 days after the due date shown on FMA's invoice
therefor.
4. USE OF EQUIPMENT: Each item of Equipment will be kept by Lessee in its sole
possession and control, will at all times be located at the location stated in
the related Schedule, and will not be removed therefrom without the prior
written consent of FMA. All costs and expenses of every nature that may be
incurred in connection with the permitted movement of the Equipment between
locations (including any additional property taxes or other taxes resulting from
such movement) shall be born by Lessee if Lessee fails to so notify FMA and, as
a result of such failure, FMA has paid or is required by the jurisdiction where
the Equipment was originally located to continue to pay taxes of the sort for
which Lessee is responsible under this Agreement, then Lessee shall reimburse
FMA for such taxes, which payment (less FMA's reasonable costs and expenses)
will be refunded to Lessee if and when FMA receives a corresponding refund from
said jurisdiction. Lessee will not make or permit to be made any allegation or
additional to the Equipment (other than manufacturer's approved engineering
changes).
FMA shall not be liable to Lessee for any loss, damage or expense of any kind
or nature whatsoever and howsoever, directly or indirectly, caused (including,
without limitation, any loss of business) by (a) any item of Equipment, (b) the
use, maintenance, repair, service or adjustment thereof, (c) any delay or
failure to provide any maintenance, repair, service or adjustment thereto or
(d) any interruption of service or loss of use thereof.
5. LOSS OF OR DAMAGE TO EQUIPMENT - INSURANCE: Lessee shall be responsible for
and hereby assumes the entire risk of the Equipment being lost, damaged,
destroyed, stolen or otherwise rendered unfit or unavailable for use from the
date of its shipment to Lessee until the date of return to and receipt
therefor by FMA. If any item of Equipment is lost, damaged, destroyed, stolen
or otherwise rendered unfit or unavailable for use, Lessee shall give FMA
immediate notice thereof and the Lease to which such Equipment is subject shall
continue in full force and effect without any abatement in the Monthly Rent
applicable to such item of Equipment. Lessee shall determine, and notify FMA,
within 15 days after the date of the occurrence of any damage to any item of
Equipment whether such item can be repaired. In the event Lessee determines
that such item of Equipment can be repaired, Lessee, at its expense, shall
cause such item to be promptly repaired. If an item of Equipment is lost,
destroyed or stolen, or if Lessee determines that a damaged item of Equipment
cannot be repaired, Lessee shall, at FMA's direction, within 30 days of such
occurrence, either replace the item with an identical item of Equipment, the
title to which shall thereupon vest in FMA and which thereafter shall be
considered the item of Equipment subject to the related Schedule with no
abatement in the Monthly Rent applicable thereto or, in FMA's sole discretion,
pay to FMA an amount equal to the sum of (i) all unpaid Monthly Rent in respect
of such item of Equipment through the end of the Minimum Term applicable
thereto as set forth in the related Schedule (or the last day of any extended
term then in effect with respect to such item) and (ii) FMA's estimate of the
fair market value of such item of Equipment at the end of the Minimum Term
applicable thereto as set forth in the related Schedule (or at the end of any
extended term then in effect with respect to such item). Upon such payment,
Lessee's obligation to pay Monthly Rent for such item of Equipment shall cease.
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Lessee shall cause the Equipment to be insured against loss or damage for not
less than the Insurance value set forth in the related Schedule, and shall
carry comprehensive general liability and property damage insurance covering
the Equipment and its use. All such insurance shall be in form and amount and
with companies approved by FMA and shall name FMA (or any Assignee, as
hereinafter defined) as an additional insured, as its interest may appear.
Lessee shall pay the premiums for such insurance and shall deliver said
policies or duplicates thereof or certificates thereunder to FMA, together with
endorsements thereon or independent instruments whereby each insurer agrees
that it will give FMA a right to 30 days written notice before said policies
can be altered or cancelled and the right to payment of premium without
obligation. The proceeds of such insurance, at the option of FMA, shall be
applied (i) toward the replacement, restoration or repair of the Equipment or
(ii) toward payment of the obligations of Lessee under the Lessee to which such
Equipment is subject. Lessee hereby appoints FMA as Lessee's attorney-in-fact
to make claims for, receive payment of, and execute and endorse all documents,
checks or drafts for, loss or damage under any said insurance policies.
6. MAINTENANCE, REPAIRS AND INSTALLATION: Lessee shall, at its expense, (a)
obtain and keep in full effect, throughout the term of a Lease a contract from
the manufacturer of the Equipment subject to the Lease (or from another
reputable computer maintenance organization approved by FMA) providing for
standard maintenance service (as that term is defined by the manufacturer) and
(b) otherwise maintain the Equipment in good working order and appearance and
make all necessary adjustments and repairs thereto. Lessee will provide
required suitable electric current to operate the Equipment and a suitable
place of installation for the Equipment with all appropriate facilities as
specified by the manufacturer. Lessee will grant access to the Equipment to
FMA, its designee, or the organization providing computer maintenance services
for the Equipment during normal working hours for inspection, repair,
maintenance, installation of engineering changes and for any other reasonable
purpose. Lessee shall immediately notify FMA of all details concerning any
accident arising out of the alleged or apparent improper manufacture,
functioning or operation of the Equipment. Lessee will at all times cooperate
with the manufacturer of the Equipment so as to permit the prompt installation
of all engineering changes on the Equipment as and when determined necessary or
desirable by the manufacturer. Prior to termination of a Lease as to any item
of Equipment, Lessee, at its sole expense, shall return such item of Equipment
in the same condition as when received by Lessee, reasonable wear and tear
resulting from proper use thereof alone excepted, to FMA at such location as
shall be designated by FMA. If any item of Equipment is maintained by other
than the manufacturer thereof, Lessee shall cause such item of Equipment to be
eligible, at Lessee's sole expense, for such manufacturer's standard
maintenance service prior to its return to FMA and shall provide suitable
evidence thereof.
7. TITLE AND UPGRADE: Each item of Equipment shall remain personal property of,
and the title thereto shall remain in FMA or its Assignee exclusively and
Lessee shall have no right, title or interest therein and no right to purchase
or otherwise acquire title to or ownership of such item except as such forth in
the related Schedule. All replacement parts, additions and accessories
(excluding feature additions and model changes, as those terms are defined by
the manufacturer) incorporated in or affixed to the Equipment after the
commencement of a Lease to which such Equipment is subject shall be the
property of FMA. Any feature addition or model change ("Upgrade") shall be
incorporated in or affixed to the Equipment only with the prior written consent
of FMA. FMA shall have the right of first refusal to match any proposal for the
purchase or lease of an Upgrade. If an Upgrade has been incorporated in or
affixed to the Equipment and such Upgrade was not leased by FMA, FMA shall have
the option to purchase such Upgrade at the end of the Minimum Term of the
related Schedule for the fair market value thereof (based on the average of
three appraisals from dealers who deal in equipment of that type, one selected
by FMA, one by Lessee and one by the other two). If FMA does not purchase such
Upgrade, Lessee shall, at the request of FMA (and absent such request, at its
option, Lessee may), before the related Schedule terminates, at Lessee's
expense, remove the Upgrade and restore the Equipment using identical
components removed therefrom (if any).
Lessee shall at its expense protect and defend FMA's title to the Equipment
against all persons claiming against or through Lessee, at all times keeping
the Equipment free from any legal process or encumbrance whatsoever,
including, but not limited to, liens, attachments, levies and executions
(except any placed thereon by FMA), and shall give FMA immediate written notice
of any such legal process or encumbrance and shall indemnify FMA from any loss
caused thereby. Lessee shall execute or obtain from third parties and deliver
to FMA, upon FMA's request, such further instruments and assurances as FMA
deems necessary or advisable for the confirmation or perfection of FMA's rights
hereunder.
In the event a Lessee is determined to be a security agreement, Lessee hereby
(i) grants to FMA a security interest in the Equipment subject thereto to secure
the payment and performance of Lessee's obligations thereunder and (ii)
authorizes FMA, at Lessee's expense, to cause the Lease (including a carbon,
photographic or other reproduction thereof), or any statement or other
instrument relating to the Lease showing the interest of FMA in the Equipment,
including Uniform Commercial Code financing statements, to be filed or recorded
and re-recorded, and Lessee grants FMA the right to execute Lessee's name to
any such statement or instrument. Lessee agrees to execute and deliver any
statement or instrument requested by FMA for such purpose, and agrees to pay or
reimburse FMA for any searches, any filings, recording or stamp fees, and any
expenses to taxes arising from the filing or recording or any such instrument
or statement.
The Equipment is, and shall at all times be and remain, personal property,
notwithstanding that the Equipment or any part thereof may now be, or hereafter
become, in any manner affixed or attached to real property or any improvements
thereon.
8. NO WARRANTIES: FMA MAKES TO LESSEE NO WARRANTY, GUARANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED
TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OR CAPACITY OF
THE EQUIPMENT, WORKMANSHIP, COMPLIANCE WITH THE REQUIREMENT OF ANY LAW, RULE,
SPECIFICATIONS OR CONTRACT PERTAINING TO THE EQUIPMENT OR PATENT INFRINGEMENT OR
PATENT DEFECTS. LESSEE ACKNOWLEDGES THAT EACH LEASE OF THE EQUIPMENT IS "AS IS."
FMA IS NOT RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR LOSSES RESULTING FROM THE INSTALLATION, OPERATION OR
USE OF THE EQUIPMENT OR ANY PRODUCTS MANUFACTURER THEREBY. FURTHER,
NOTWITHSTANDING FMA'S ACCEPTANCE OF ANY ORDER OR SUPPLEMENTAL ORDER, FMA IS NOT
RESPONSIBLE OR LIABLE FOR ANY SUCH DAMAGES OR LOSSES, RESTITUTION, SPECIFIC
PERFORMANCE OR ANY OTHER REMEDY IN THE EVENT THAT FOR ANY REASON ANY VENDOR OF
GOODS FAILS TO TIMELY DELIVER THE SAME TO FMA OR LESSEE OR IN ANY OTHER MANNER
OR RESPECT BREACHES OR FAILS TO PERFORM ITS CONTRACT WITH FMA. FMA MAKES NO
WARRANTY AS TO THE TREATMENT OF A LEASE FOR TAX OR ACCOUNTING PURPOSES.
9. TRANSPORTATION AND INSTALLATION: All transportation, rigging, drayage,
in-transit insurance, and other charges payable for delivery of the Equipment
to and from Lessee, and all installation and disconnect charges, shall be paid
by Lessee.
10. NON-WAIVER: FMA's failure at any time to require strict performance by
Lessee of any of the provisions of a Lease shall not waive or diminish FMA's
right thereafter to demand strict compliance therewith or with any other
provision. Waiver of any default shall not waive any other default. FMA's
rights under a Lease are cumulative and not alternative and may be exercised
successively or concurrently.
11. QUIET POSSESSION: Conditioned upon Lessee's performing its obligations
under a Lease, FMA covenants to and with Lessee that Lessee shall peaceably and
quietly hold and use the Equipment subject to the Lease during the term thereof
without let or hinderance.
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12. DEFAULT AND REMEDIES: The occurrence of any one or more of the following
events ("Events of Default") shall constitute a default under any Lease: (a)
Lessee fails to pay the Monthly Rent or any other amount due FMA on or before
the fifth day after the same is due; (b) any financial statement information or
representation or warranty given to FMA is false or misleading as of the date it
was given by or on behalf of Lessee; (c) Lessee fails to observe or perform any
other term, condition, obligation, agreement or covenant set forth in such
Lease, and such failure continues for a period of 10 days after receipt of
written notice thereof from FMA; (d)Lessee assigns or attempts to assign such
Lease, or removes, transfers, encumbers, sublets or parts with possession of any
item of Equipment subject to such Lease or attempts to do any of the foregoing,
or suffers or permits any of the foregoing to occur except as expressly
permitted in such Lease; (e) Lessee ceases doing business as a going concern, or
it or its shareholders or partners take any action looking toward its
dissolution or liquidation; (f) Lessee becomes insolvent, or generally fails or
admits in writing its inability or unwillingness to pay its debts as they become
due, or makes a general assignment for the benefit of creditors; or Lessee
applies for, acquiesces in or consents to the appointment of any receiver,
trustee or any other custodian for it or for all or any substantial part of its
property; or such receiver, trustee or other custodian is appointed without its
application or consent, and such appointment continues undischarged for a period
of 60 days; or any bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy, or insolvency law, or any dissolution or
liquidation proceeding is commenced with respect to Lessee and, if such case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced with respect to Lessee and, if such case or
proceeding is not commenced by Lessee, it is consented to or acquiesced in by
Lessee, or remains for 60 days undismissed; or Lessee takes any action to
authorize, or in furtherance of, any of the foregoing; (g) an Event of Default
by Lessee under any other Lease, or (h) an event of default or event which, with
the giving of notice or the passage of time, or both, would constitute a default
under any other lease or agreement between FMA and lessee.
If an Event of Default occurs, FMA may, at is option, do any or all of the
following to the full extent permitted by law: (i) recover from Lessee, as
liquidated damages for loss of a bargain and not as a penalty, as to any or all
Lessees, an amount equal to the present value of all Monthly Rent to be paid by
Lessee during the remaining Minimum Term or any extended term then in effect,
discounted at the rate of 6% per annum, which amount shall be accelerated and
become immediately due and payable; (ii) sue for and recover all rents and
other amounts due or to become due with respect to any or all items of
Equipment; (iii) require Lessee to assemble all Equipment at Lessee's expense,
at a place reasonably designated by FMA; or (iv) remove any physical
obstructions for removal of the Equipment from the place where the Equipment is
located and take possession of any or all items of Equipment, without notice or
demand, wherever the same may be located, disconnecting and separating all such
Equipment from any other property, with or without any court order or
pre-taking hearing or other process of law. Lessee hereby waives any and all
damages occasioned by such retaking. FMA may, at its option, ship, store,
repair or lease all Equipment so removed and sell or otherwise dispose of any
such Equipment at a private or public sale. FMA may expose Equipment at
Lessee's premises at reasonable business hours without being required to remove
the Equipment.
In the event that Lessee shall have paid to FMA the liquidated damages referred
to in the preceding paragraph, FMA hereby agrees to pay to Lessee, promptly
after receipt thereof, either (a) if FMA re-leases the Equipment, all rentals or
proceeds received from the reletting of the Equipment during the balance of the
Minimum Term of the related Schedule or any successive period then in effect
(after deduction of all expenses incurred by FMA), or (h) if FMA sells the
Equipment, all proceeds received from the sale (after deduction of the estimated
fair market value of the Equipment as of the end of the Minimum Term or at the
end of any extended term then in effect and of all expenses incurred by FMA),
said amount never to exceed the amount of the liquidated damages paid by Lessee.
For purposes of the foregoing, in the event of any reletting by FMA of any item
of Equipment, "all rentals or proceeds received from the reletting of the
Equipment" shall mean the present value (discounted to the Commencement Date of
the re-lease using the interest rate at which FMA has non-recourse financing or
a non-recourse financing commitment with respect to such re-lease) of the
monthly rent for such item under re-lease to a third party, taking into account
only that monthly rent of such re-lease which is payable on or before the last
day of the Minimum Term of the related Schedule (or the last day of any extended
term then in effect with respect to such item of Equipment). Lessee agrees that
FMA shall have no obligation to sell the Equipment. Lessee shall in any event
remain fully liable for reasonable damages as provided by law and for all costs
and expenses incurred by FMA as a result of such default including, but not
limited to, all court costs and reasonable attorney's fees. Lessee hereby agrees
that, in any event, it will be liable for any deficiency after any sale, lease
or other disposition by FMA. The rights afforded FMA hereunder shall not be
deemed to be exclusive, but shall be in addition to any rights or remedies
provided by law.
If, upon the termination of the related Schedule as to any item of Equipment,
Lessee fails or refuses to return and deliver possession of such item of
Equipment to Lessor on the prescribed date, in addition to all other rights and
remedies available to FMA, Lessee shall be liable to FMA for Monthly Rent
applicable so such item of Equipment until the last day of the month in which
such item is returned to FMA, and any damages FMA may suffer by reason of being
unable to deliver such item of Equipment to another party.
13. ASSIGNMENTS: Neither a Lease nor Lessee's rights thereunder shall be
assignable by Lessee. FMA shall have the right to assign a Lease or any part
thereof. If FMA assigns the rents reserved therein or all or any of FMA's other
rights thereunder, or amounts equal thereto, the rights of FMA's assignee
("Assignee") to receive the rentals as well as any other right assigned
thereunder shall not be subject to any defense, setoff, counterclaim or
recoupment which may arise out of any breach of any obligation of FMA
thereunder or by reason of any other indebtedness or liability at any time
owning by recoupment which may arise out of any breach of any obligation of FMA
thereunder or by reason of any other indebtedness or liability at any time
owing by FMA to Lessee. All rentals due thereunder shall be payable to Assignee
by Lessee whether or not the Lease is terminated by operation of law or
otherwise, including, without limitation, termination arising out of
bankruptcy, reorganization or similar proceedings involving FMA. On receipt of
notification of such assignment, Lessee, subject to its rights thereunder,
shall hold the Equipment for and on behalf of Assignee and will relinquish
possession thereof only to Assignee or pursuant to its written order. Lessee on
receiving notice of any such assignment shall abide thereby and make payment as
may therein be directed, and agrees to acknowledge such assignment to Assignee.
Following any such assignment the term "FMA" shall be deemed to include or
refer to Assignee provided that such Assignee shall not be deemed to assume any
obligation or duty imposed upon FMA under the Lease and Lessee shall look only
to FMA for performance thereof.
14. LIABILITY: Lessee shall indemnify and save FMA harmless from, and defend
FMA against, any and all claims, actions, proceedings, injuries, deaths,
expenses, damages and liabilities, including attorneys' fees, arising in
connection with the Equipment or any Lease, including without limitation, the
manufacture, selection, purchase, delivery, possession, use, operation,
maintenance, leasing and return of the Equipment and acts of Lessee in failing
to maintain the Equipment in good repair.
15 PERFORMANCE AND EXECUTION: Lessee represents and warrants to FMA that (i)
the execution and performance of this Agreement and each Schedule has been duly
authorized by Lessee and that, upon execution by Lessee and FMA of this
Agreement and each Schedule, such Schedule will constitute a valid obligation
binding upon, and enforceable against, Lessee in accordance with its terms, (ii)
neither the execution of this Agreement or any Schedule nor the due performance
thereof by Lessee will result in a breach of, or constitute a default under or
violation of Lessee's certificate or articles of incorporation and by-laws (or
other organizational documents) or any agreement to which Lessee is a party or
by which any interest of Lessee may be affected, (iii) Lessee is duly
organized and in good standing under the laws of its jurisdiction of
organization and is and will continue to be duly qualified to do business and
in good standing in any jurisdiction where any item of Equipment is to be
located, (iv) the person executing this Agreement on behalf of Lessee has been
and each person executing a Schedule, upon execution of such Schedule, will be
duly authorized to do so, and (v) any and all financial statements and other
information with respect to Lessee furnished by Lessee to FMA will be, when
furnished, and will remain at the time of execution of any Schedule, true and
correct without any misleading omissions, excepting any changes which have been
disclosed in a written notice to FMA.
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16. ADDITIONAL DOCUMENTATION: Lessee shall deliver promptly to FMA the
following documentation as and when requested by FMA (i) financial information,
including without limitation a copy of Lessee's balance sheets and income
statements for Lessee's three prior fiscal years, certified by independent
certified public accountants, and such other current financial information with
respect to a financial corporation and operations or Lessee as FMA from time to
time may reasonably request; (ii) a certificate of the resolutions of the board
of directors of Lessee duly authorizing or ratifying this Agreement or any
Schedule; (iii) a certificate of incumbency setting forth the names and
signatures of those persons authorized to execute this Agreement or any Schedule
on behalf of Lessee; (iv) landlord and mortgagee waivers in form and substance
satisfactory to FMA or any Assignee (or secured party) with respect to any
premises upon which any item of Equipment is located; (v) an opinion of counsel
for Lessee as to the matters set forth in clauses (i) through (iv) of Section 15
hereof, and as to such other matters as FMA reasonably may request; and (vi)
such documentation confirming the execution of any Lease necessary or desirable
to effect any assignment, perfect any interest of FMA, any secured party or
Assignee, or for such other purposes relating to any Lease or any assignment
thereof as FMA reasonably may request. If such a request for documentation is
made prior to the delivery of any item of Equipment, receipt of such
documentation shall be a condition precedent to FMA's obligation to deliver such
item.
17. PERFORMANCE BY FMA: In the event Lessee fails to comply with any provision
of a Lease, FMA shall have the right, but shall not be obligated, to effect
such compliance on behalf of Lessee upon five days prior written notice to
Lessee. In such event, all monies advanced or expended by FMA, and all expenses
incurred by FMA in effecting such compliance, shall be deemed to be additional
rent, and shall be paid by Lessee to FMA at the time of the next payment of
Monthly Rent.
18. MISCELLANEOUS: Any notice or other communication relating to a Lease shall
be delivered or mailed, by first-class mail, postage prepaid, to FMA or Lessee
at its address above shown or at any later address last known to the sender. Any
notice or other communication mailed as aforesaid shall be deemed to have been
given three days after the date sent.
In the event that any Lease is terminated as to any item of Equipment, FMA shall
advise Lessee in writing of those terms of Equipment which remains subject to
such Lease, the Monthly Rent payable in respect of such items and the aggregate
insurance value thereof. Upon Lessee's receipt of such written advice, such
Lease shall, without further action on the part of either party, be deemed
amended to the extent set forth in such advice.
If more than one Lessee is named in a Lease, the liability of each shall be
joint and several. Lessee will not affix any item of Equipment to any real
property or any improvements thereon if, as a result thereof, such item will
become a fixture under applicable law. All representations, warranties,
indemnities and covenants contained in this Agreement and in any Schedule shall
continue in full force and effect and shall survive notwithstanding the full
payment of all amounts due hereunder and thereunder or the termination of
Lessee's right of possession and/or the taking of possession by FMA of any item
of Equipment. Each Lease shall inure to the benefit of and shall be binding
upon Lessee and FMA and their respective successors and assigns. If FMA
supplies Lessee with labels, Lessee shall label any and all items of Equipment
and shall keep the same affixed in a prominent place.
If the provisions of any Schedule are inconsistent with the provisions of this
Agreement, then the provisions of such Schedule shall prevail.
Each Lease shall be deemed to have been made in Cook County, Illinois,
regardless of the order in which the signatures of the parties shall be affixed
thereto, and shall be interpreted, and the rights and liabilities of the
parties hereto determined, in accordance with the internal laws of the State of
Illinois. Lessee hereby consents and agrees to the exclusive jurisdiction of
any State or Federal court within the State of Illinois for resolution of any
matters in connection with the interpretation, construction and enforcement of
any Lease.
This Agreement and any 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. If FMA grants a security
interest in all or any part of a Schedule, the Equipment covered thereby and/or
sums payable thereunder, only that counterpart of the Schedule marked "Secured
Party Original" shall constitute chattel paper and shall be effective to
transfer FMA's rights therein.
19 SEVERABILITY: If any provision of a Lease or any remedy therein provided
shall be invalid under any applicable law, such provision shall be inapplicable
and deemed omitted, by the remaining provisions thereof, including the
remaining default remedies, shall be given effect in accordance with their
manifest intent.
20. ENTIRE AGREEMENT: This Agreement and each Schedule into which this
Agreement is incorporated by reference collectively shall constitute the entire
agreement between the parties with respect to a Lease. No supplier or agent of
FMA is authorized to bind FMA or to waive or modify any term hereof or thereof.
No term or condition of this Agreement or any Schedule may be waived or amended
except in writing and executed by a duly authorized representative of each
party.
Each party to this Agreement hereby warrants and represents that its signatory
whose signature appears below is duly authorized by all necessary corporate
action to execute this Agreement as of the date first above written.
FORSYTHE/McARTHUR ASSOCIATES, INC. RATEXCHANGE CORPORATION
(Lessee)
By: By: /s/ Donald H. Sledge
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Authorized Signatory Authorized Signatory
Name: Name: Donald H. Sledge
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Type or Print Type or Print
Title: Title: CEO
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Each Schedule can be accepted by FMA only if signed at FMA's office in Illinois
by an executive officer of FMA.
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