Master Lease Agreement
1. LEASE OF EQUIPMENT. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the Equipment described above or on any schedule made a part hereof, together with all replacements, upgrades, replaceable parts, repairs, additions, substitutions and accessories (collectively referred to, hereinafter as “Equipment”). The parties intend the Lease to be a Finance Lease under Article 2A of the Uniform Commercial Code. This lease is non-cancelable. Lessor is hereby authorized to insert any missing terms regarding the Equipment description.
2. TERM AND RENT. The initial term of this lease shall commence on the “Commencement Date”. The “Commencement Date” means, as to the Equipment designated on any Equipment schedule, is deemed to be the Shipping Date from Stratasys Ltd. for such equipment. The initial term of this Lease shall commence and the first rental payment shall be due 30 days subsequent the Ship Date, and rental payments shall be paid on such day of each successive periods thereafter until all sums due under this Lease are fully paid. Lessee’s obligation to pay Lease payments and all other obligations hereunder shall be absolute and unconditional and are not subject to any abatement, set-off, defense or counterclaim for any reason whatsoever. If any rental shall be unpaid for more than ten (10) days after the due date thereof, Lessee will pay on demand, as an additional late service and/or overhead charge, but not as interest, on amounts not paid when due, the greater of ten dollars ($10.00) or an amount equal to five percent (5%) of any such unpaid amount plus interest on all monies due Lessor from and after the date same is due at the rate of one and one-half percent (1-1/2%) per month until paid but in no event more than the maximum rate permitted by law. Advance payments shall be due when this Lease is executed and shall not be refundable if the lease term does not commence for any reason or if the Lease is terminated by the Lessor because of Lessee’s default hereunder. Any Security Deposit shall secure all obligations of the Lessee hereunder and may be applied in Lessor’s discretion to any past due obligation of Lessee and to the extent not applied to the extent not applied shall be returned to Lessee, without interest, at the expiration of the Lease.
3. TITLE: PERSONAL PROPERTY. Lessor is the sole owner of the Equipment. Lessee shall affix to the Equipment any labels supplied by Lessor evidencing Lessor’s ownership. To protect Lessor’s rights in the Equipment in the event this Lease is determined to be a Security Agreement, Lessee hereby grants to Lessor a security interest in the Equipment. Lessee hereby authorizes Lessor, at Lessee’s expense, to cause this Lease, or any statement or other instrument in respect of this Lease showing the interest of Lessor in the Equipment, including Uniform Commercial Code financing statements, to be filed or recorded. Lessee agrees to execute and deliver any statement or instrument requested by Lessor for such purpose, and agrees to pay or reimburse Lessor for any searches, filings, recordings, stamp fees or taxes related to the filing or recording of any such instrument or statement. Lessee shall at its expense protect and defend Lessor’s title against all persons claiming against or through Lessee, at all times keeping the equipment free from any legal process, lien or encumbrance and shall give Lessor immediate written notice of any claim as to the foregoing and shall indemnify Lessor from any loss caused thereby. Lessee shall, upon Lessor’s request, execute or obtain from third parties and deliver to Lessor such estoppel certificates, landlord’s waivers and such further instruments and assurances as Lessor deems necessary or advisable for the confirmation or perfection of Lessor’s rights hereunder. 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 matter, affixed or attached to real property.
4. MAINTENANCE USE AND LOCATION. Lessee shall, at its own cost and expense, maintain the Equipment in good operating condition and repair other than normal wear and tear; shall use the Equipment in the regular course of its business and at the location stated herein, within its normal operating capacity and shall comply with all laws, ordinances, regulations, requirements (from the manufacturer or otherwise) and rules with the respect to the maintenance and operation of the Equipment; shall not move the Equipment or make any modifications, alterations or additions to the Equipment without the prior written consent of Lessor; shall not so affix the Equipment to realty as to change its nature to real property or a mixture. If Lessor incurs any expenses to bring the Equipment up to good working order and appearance, Lessee shall immediately reimburse Lessor for all such costs and expenses.
5. RISK OF LOSS. Lessee shall bear all risks of loss or damage to Equipment from any cause from date of shipment to Lessee. The occurrence of any such loss or damage shall not relieve Lessee of any obligation hereunder. Lessee shall immediately notify Lessor of any damage to or destruction of the Equipment. In the event of loss or damage, Lessee, at Lessor’s sole option, shall (a) repair the damaged Equipment (b) replace lost or unrepairable damaged Equipment with substantially identical Equipment in good condition and working order with documentation creating clear title thereto in Lessor; or (c) pay to Lessor the present value of (i) all unpaid rental payments for the balance of the term this lease plus (ii) Lessor’s anticipated residual recovery from the Equipment at the scheduled expiration of this lease, all discounted to the date of payment at four percent (4%) per annum.
6. INSURANCE. Lessee shall keep the Equipment insured against all risks of loss or damage from every cause whatsoever during the term of this Lease for not less than the full replacement value thereof, and shall carry public liability and property damage insurance covering the Equipment and its use in amounts customary for such Equipment and with companies acceptable to Lessor and name Lessor and any assignee of Lessor as loss payee, as their interests may appear with respect to property damage coverage and as additional insured with respect to public liability coverage. Lessee shall pay the premiums therefore and deliver said policies or certificates of coverage therefore to Lessor; the insurance shall provide Lessor a right to thirty (30) days written notice before the policy can be altered or canceled and the right, without obligation, to pay the premiums. Should Lessee fail to provide such insurance coverage, Lessor may obtain such coverage and charge Lessee therefore. Lessee hereby appoints Lessor as Lessee’s attorney-in-fact to make claim for, receive payment of, and execute and endorse all documents, checks, or drafts for loss or damage under any said insurance policies.
7. TAXES AND CHARGES. This Lease is intended to be a net lease, and all payments net to Lessor to the extent permitted by applicable law. Lessee shall pay directly (or, at Lessor’s option, reimburse Lessor for) all license fees, assessments and other government charges, and all sales, personal property , use, excise, franchise, and any other similar taxes (collectively, “Charges”) now or hereafter imposed, levied or assessed by any state, federal or local government or agency upon any of the Equipment or upon the leasing, purchase, ownership, use, possession, financing or operation thereof, or upon the receipt of rental payments therefore, even if Lessee’s status provides for its exemption from the Charges (excluding income and gross receipt taxes on the rent payments, except any such tax which is a substitution for, or relieves Lessee from, the payment of taxes which Lessee would otherwise be obligated to pay or reimburse Lessor as herein provided) before the same shall become in default or subject to the payment of any penalty or interest. Lessee shall supply Lessor with receipts or other evidence of payment of all Charges as may reasonably be requested by Lessor. Lessee shall further comply with all state and local laws requiring the filing of ad valorem or other tax returns relating to any Charges. Lessee shall notify the Lessor of the imposition of, or, to Lessee’s knowledge, the proposed imposition of, any Charges by supplying to Lessor (within five (5) days after receipt thereof by Lessee) a copy of the invoice or other documents respecting such charges.
8. DEFAULT AND REMEDIES. If any one of the following events shall occur: (a) Lessee fails to pay any rent or any other amount due hereunder when due: or (b) Lessee fails to pay within five (5) days of when due, any sums due to Lessor arising independently of this Lease; or (c) Lessee breaches, refuses or otherwise fails to perform any covenants herein within ten (10) days of Lessor’s written notice; or (d) Lessee becomes insolvent or makes an assignment for the benefit of creditors; or (e) a receiver, trustee, conservator or liquidator of Lessee (or of all or a substantial part of its assets) is appointed with or without the application or consent of Lessee, or any petition is filed by or against Lessee under the Bankruptcy code or under any other insolvency laws, providing for the relief of debtors; or (f) any representation or statement made or furnished by Lessee to Lessor was false or misleading in any material respect when made or furnished, Lessor may, in its sole discretion and to the fullest extent permitted by applicable law, exercise any one or more of the following remedies:
- (i) Cure any such breach and add the costs of cure to the amounts otherwise due from Lessee under this Lease;(ii) Accelerate and declare as immediately due and payable, the entire unpaid balance of rental payments for the unexpired term of the Lease or any schedule thereto, and accelerate and declare the balances due under any other leases between Lessor and Lessee, and recover the present value of all such unpaid rents and other amounts so due, together with the residual value of the Equipment at lease end, as set forth in any Purchase Option or as otherwise reasonably determined by Lessor, and together with interest on all monies due Lessor from and after the due date(s), and at the rate of one and one-half percent (1-1/2%) per month until paid, or the maximum rate allowed by law, whichever is less; (iii) Terminate, by giving notice to Lessee, any or all Lease rights of Lessee to further possess or use Equipment, including termination of all licenses or other rights to use Equipment software; (iv) Require Lessee to return all Equipment at Lessee’s expense, to a place designated by Lessor and/or to cooperate with Lessor’s entry on Lessee’s premises to take and recover possession of all items of Equipment, without demand or notice, wherever same may be located, and without any court order or pre-recovery hearing. Lessee irrevocably waives any and all claims, damages or other liabilities associated with such return or recovery. (v)Proceed by appropriate judicial actions, at law and/or in equity, to enforce Lessee’s performance of its obligations hereunder; to recover damages, losses, liabilities, claims and expenses of every nature and amount for any breach thereof and/or enforcement of Lessor’s remedies; and to recover possession of all leased Equipment or other Lessor property, via replevin or other order of recovery; (vi) At its option, use, ship, store, repair or lease all recovered Equipment free of any rights or claims of Lessee or its successors or assigns, and sell or otherwise dispose of any such Equipment at a private or public sale, or resell the Equipment at Lessee’s premises at reasonable business hours without being required to remove the Equipment and with Lessee’s cooperation therein. In the event Lessor disposes of the Equipment, Lessor shall credit Lessee for any sums received by Lessor from an Equipment sale or rental, less applicable sale or rental expenses. If notice of such sale or lease is required by law, Lessee agrees that 10 days’ notice by mail to the last address provided by Lessee to Lessor shall be commercially reasonable notice; or (vii) Pursue any other remedies available at law or in equity, with all such remedies of Lessor being cumulative in nature and in addition to any other remedies provided for by law, and may, to the extent permitted by law, be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy or to preclude the exercise of any other remedy.
Lessee shall also be liable and shall pay to Lessor all expenses (including reasonable attorney’s fees) incurred by Lessor in connection with or arising from Lessee’s default and/or the enforcement of any of Lessor’s remedies, including all such costs and expenses incurred by Lessor in any repossession, recovery, storage, repair, shipment, sale, re-lease, or other disposition of the Equipment. No failure on the part of the Lessor to exercise and no delay in exercising any right or remedy shall operate as a waiver thereof or modify the terms of this Lease, and any waiver of default shall not be a waiver of any other or subsequent default.
9. ASSIGNMENT: WAIVER OF DEFENSES: QUIET ENJOYMENT. Lessor may, without consent, assign or transfer this Lease or grant a security interest in any Equipment, any rentals, or any other sums due or to become due hereunder, and in such event Lessor’s assignee shall have all the rights, powers and remedies of Lessor hereunder. Lessee agrees that no assignee of Lessor shall be bound to perform any duty, covenant, condition or warranty attributable to Lessor and Lessee further agrees not to raise any claim or defense arising out of this Lease or otherwise which it may have against Lessor as a defense, counterclaim, or offset to any action by an assignee or secured party hereunder. Upon Lessor’s request, Lessee will acknowledge to any assignee receipt of Lessor’s notice of assignment. Nothing contained herein is intended to relieve Lessor of any of its obligations. Provided Lessee is not in default hereunder Lessee shall quietly use and enjoy the Equipment, subject to the terms hereof. Lessee shall not assign this lease or any interest hereunder nor enter into any sublease with respect to the equipment without Lessor’s prior written consent, which may be granted or withheld in Lessor’s sole discretion.
10. PERFORMANCE BY LESSOR OR LESSEE’S OBLIGATIONS. In the event Lessee fails to comply with any provisions of this Lease, Lessor shall have the right, but shall not be obligated, to act on behalf of Lessee upon ten (10) days prior written notice to Lessee. In such event, all monies expended by Lessor in effecting such compliance shall be deemed to be additional rent, and shall be paid by Lessee to Lessor at the time of the next rent payment, together with interest at the rate of one and one-half percent (1-1/2%) per month but in no event more than the maximum permitted by law.
11. GOVERNING LAW: JURISDICTION AND VENUE OF TRIAL BY JURY. THIS LEASE SHALL BE BINDING WHEN EXECUTED BY LESSOR AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. LESSEE CONSENTS TO THE PERSONAL JURISDICTION OF THE FEDERAL AND STATE COURTS OF THE STATE OF MINNESOTA WITH RESPECT TO ANY ACTION ARISING OUT OF THIS LEASE OR THE EQUIPMENT PROVIDED, HOWEVER, LESSOR, OR ITS ASSIGNS, IN ITS SOLE DISCRETION, MAY ENFORCE THIS LEASE IN ANY COURT HAVING LAWFUL JURISDICTION THEREOF. LESSEE AGREES THAT SERVICE OF PROCESS IN ANY SUCH SUIT MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE LESSEE AT THE ADDRESS SET FORTH HEREIN. TO THE EXTENT PERMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN ANY ACTION BY OR AGAINST LESSOR HEREUNDER AND ANY AND ALL RIGHTS AND REMEDIES GRANTED LESSEE BY SECTION 2A-303 AND SECTIONS 2A-508 THROUGH 2A-522 OF THE UNIFORM COMMERCIAL CODE.
12. PREAUTHORIZED DEBIT PAYMENTS. Lessee may enter into an Agreement For Preauthorized Debit Payments (“Agreement”) authorizing Lessor to debit, on or after the due dates, all rent payments and any other obligations due under the Lease by preauthorized debit to an account approved by Lessor in an FDIC-insured state or national bank located in the continental United States.
13. GENERAL. This lease shall inure to the benefit of and is binding upon the heirs, personal representatives, successors and assigns of the parties hereto. Time is of the essence of this Lease. This Lease contains the entire arrangement between the Lessor and Lessee, and no modification of this Lease shall be effective unless in writing and executed by Lessor. All covenants and obligations of Lessee to be performed pursuant to this Lease, including all payments to be made by Lessee hereunder, shall survive the expiration or earlier termination of this Lease. If more than one Lessee is named in this Lease, the liability of each shall be joint and several. In the event any provision of this Lease shall be unenforceable, then such provision shall be deemed deleted, however, all other provisions hereof shall remain in full force and effect. All notices under this Lease shall be deemed given when delivered personally or when sent by certified mail to the party intended at its address set forth herein, or at such other addresses said party may provide in writing from time to time. Facsimile copies of signatures of each Lessee shall be effective to bind each Lessee as if they were original signatures for purposes hereof.
14. DISCLAIMER OF WARRANTIES AND CLAIMS. Warranty and Remedies Limited Per Separate Warranty Contract. The Lessor has manufactured the equipment. Lessor ‘s warranties, and the limitations regarding such warranties, including limitation of remedy, shall be limited to those warranties set forth in the separate warranty statement, a copy of which Lessee acknowledged it has received and reviewed. Indemnity. Lessee shall indemnify and hold Lessor harmless from and against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities (including negligence, tort and strict liability) and attorneys fees arising out of, connected with, or resulting from Lessee’s use of the Equipment, including, without limitation, the delivery, possession, use, lease, operation or return of the Equipment. This Indemnity Agreement shall survive termination or expiration of the Lease.
15. PURCHASE OPTION. Lessee has no right to purchase the Equipment from Lessor at the expiration of the lease term unless such option and the terms and conditions of same are set forth on a separate Purchase Option Addendum executed by Lessor and Lessee.
Purchase Option Addendum
This Purchase Option Addendum relates to the Equipment identified in the Master Lease Agreement and the Schedule identified in this document.
1. Option to Purchase. Provided that the Lessee is not in default under the terms of the Master Lease Agreement, the Schedule or any other Schedule under the Master Lease Agreement, then at the end of the Initial Lease Term (as defined in the Master Lease Agreement and/or Schedule), Lessee shall have the option to purchase the Equipment on the terms and conditions set forth herein.
2. Price. The option price shall be $1.00.
3. Transfer of Title – Limitation of Warranties. Upon expiration of the Master Lease Agreement, Lessor shall execute the Purchase Agreement. Title to the Equipment shall be deemed transferred to Lessee at its then location, conditional upon the complete fulfillment of the terms and conditions outlined in the Master Lease Agreement. Lessor hereby warrants that at the time of transfer, the Equipment will be free of all security interests and other liens created by or arising through Lessor. LESSOR MAKES NO OTHER WARRANTY WITH RESPECT TO THE EQUIPMENT, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF THE USE OR THE INABILITY TO USE THE EQUIPMENT.
4. Sales or Use Tax. Lessee agrees to pay any sales or use tax arising on account of Lessee’s purchase of the Equipment.
5. Miscellaneous. This Addendum is entered into, and delivered under and subject to the Master Lease Agreement, and any inconsistency or conflict between this Addendum and the Master Lease Agreement will be governed and controlled by the Master Lease Agreement.
6. Choice of Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of Minnesota, without giving effect to such state’s choice of law provisions.