Exhibit 10.35
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MASTER EQUIPMENT LEASE AGREEMENT No. 32426
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Fleet
Capital Leasing
LESSOR: FLEET CAPITAL CORPORATION LESSEE: BOSTON COMMUNICATIONS GROUP, INC.
a Rhode Island corporation a MASSACHUSETTS CORPORATION
Address: 50 Kennedy Plaza Address: 100 SYLVAN ROAD
Providence, Rhode Island 02903-2305 WOBURN, MA 01801
1. LEASE OF EQUIPMENT
Subject to the terms and conditions set forth herein (the "Master Lease") and
in any Lease Schedule incorporating the terms of this Master Lease (each, a
"Lease Schedule'"), Lessor agrees to lease to Lessee, and Lessee agrees to lease
from Lessor, the items and units of personal property described in each such
Lease Schedule, together with all replacements, parts, additions, accessories
and substitutions therefor (collectively, the "Equipment"). As used in this
Lease, the term "Item of Equipment" shall mean each functionally integrated and
separately marketable group or unit of Equipment subject to this Lease. Each
Lease Schedule shall constitute a separate, distinct and independent lease of
Equipment and contractual obligation of Lessee. References to "the Lease,"
"this Lease" or "any Lease" shall mean and refer to any Lease Schedule which
incorporates the terms of this Master Lease, together with all exhibits,
addenda, schedules, certificates, riders and other documents and instruments
executed and delivered in connection with such Lease Schedule or this Master
Lease, all as the same may be amended or modified from time to time. The
Equipment is to be delivered and installed at the location specified or referred
to in the applicable Lease Schedule. The Equipment shall be deemed to have been
accepted by Lessee for all purposes under this Lease upon Lessor's receipt of an
Acceptance Certificate with respect to such Equipment, executed by Lessee after
receipt of all other documentation required by Lessor with respect to such
Equipment. Lessor shall not be liable or responsible for any failure or delay
in the delivery of the Equipment to Lessee for whatever reason. As used in this
Lease, "Acquisition Cost" shall mean (a) with respect to all Equipment subject
to a Lease Schedule, the amount set forth as the Acquisition Cost in the Lease
Schedule and the Acceptance Certificate applicable to such Equipment; and (b)
with respect to any item of Equipment, the total amount of all vendor or seller
invoices (including Lessee invoices, if any) for such item of Equipment,
together with all acquisition fees and costs of delivery, installation, testing
and related services, accessories, supplies or attachments procured or financed
by Lessor from vendors or suppliers thereof (including items provided by Lessee)
relating or allocable to such item of Equipment ("Related Expenses"). As used
in this Lease with respect to any Equipment, the terms "Acceptance Date,"
"Rental Payment(s)," "Rental Payment Date(s)," "Rental Payment Numbers," "Rental
Payment Commencement Date," "Lease Term" and "Lease Term Commencement Date"
shall have the meanings and values assigned to them in the Lease Schedule and
the Acceptance Certificate applicable to such Equipment.
2. TERM AND RENT
The Lease Term for any Equipment shall be as specified in the applicable
Lease Schedule. Rental Payments shall be in the amounts and shall be due and
payable as set forth in the applicable Lease Schedule. Lessee shall, in
addition, pay interim rent to Lessor on a pro-rata, per-diem basis from the
Acceptance Date to the Lease Term Commencement Date set forth in the applicable
Acceptance Certificate, payable on such Lease Term Commencement Date. If any
rent or other amount payable hereunder shall not be paid within 10 days of the
date when due, Lessee shall pay as an administrative and late charge an amount
equal to 5% of the amount of any such overdue payment. In addition, Lessee
shall pay overdue interest on any delinquent payment or other amounts due under
the Lease (by reason of acceleration or otherwise) from 30 days after the due
date until paid at the rate of 1 1/2% per month or the maximum amount permitted
by applicable law, whichever is lower. All payments to be made to Lessor shall
be made to Lessor in immediately available funds at the address shown above, or
at such other place as Lessor shall specify in writing. THIS IS A NON-
CANCELABLE, NON-TERMINABLE LEASE OF EQUIPMENT FOR THE ENTIRE LEASE TERM PROVIDED
IN EACH LEASE SCHEDULE HERETO.
3. POSSESSION; PERSONAL PROPERTY
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 Lease Term
(provided no Event of Default has occurred) free from interference by any person
claiming by, through, or under Lessor. The Equipment shall always remain
personal property even though the Equipment may hereafter become attached or
affixed to real property. Lessee agrees to give and record such notices and to
take such other action at its own expense as may be necessary to prevent any
third party (other than an assignee of Lessor) from acquiring or having the
right under any circumstances to acquire any interest in the Equipment or this
Lease.
4. DISCLAIMER OF WARRANTIES
LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, NOR THE AGENT
THEREOF, AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES AS TO ANY
MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE MERCHANTABILITY OF THE
EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN OR CONDITION, ITS
CAPACITY OR DURABILITY, THE QUALITY OF THE MATERIAL OR WORKMANSHIP IN THE
MANUFACTURE OR ASSEMBLY OF THE EQUIPMENT, OR THE CONFORMITY OF THE EQUIPMENT TO
THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER RELATING THERETO, OR
PATENT INFRINGEMENTS, AND LESSOR HEREBY DISCLAIMS ANY SUCH WARRANTY. LESSOR IS
NOT RESPONSIBLE FOR ANY REPAIRS OR SERVICE TO THE EQUIPMENT, DEFECTS THEREIN OR
FAILURES IN THE OPERATION THEREOF. Lessee has made the selection of each item
of Equipment and the manufacturer and/or supplier thereof based on its own
judgment and expressly disclaims any reliance upon any statements or
representations made by Lessor. For so long as no Event of Default (or event or
condition which, with the passage of time or giving of notice, or both, would
become such an Event of Default) has occurred and is continuing, Lessee shall be
the beneficiary of, and shall be entitled to, all rights under any applicable
manufacturer's or vendor's warranties with respect to the Equipment, to the
extent permitted by law.
If the Equipment is not delivered, is not properly installed, does not
operate as warranted, becomes obsolete, or is unsatisfactory for any reason
whatsoever, Lessee shall make all claims on account thereof solely against the
manufacturer or supplier and not against Lessor, and Lessee shall nevertheless
pay all rentals and other sums payable hereunder. Lessee acknowledges that
neither the manufacturer or supplier of the Equipment, nor any sales
representative or agent thereof, is an agent of Lessor, and no agreement or
representation as to the Equipment or any other matter by any such sales
representative or agent of the manufacturer or supplier shall in any way affect
Lessee's obligations hereunder.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS Lessee represents and warrants to
and covenants with Lessor that:
(a) Lessee has the form of business organization indicated above and is duly
organized and existing in good standing under the laws of the state listed in
the caption of this Master Lease and is duly qualified to do business wherever
necessary to carry on its present business and operations and to own its
property; (b) this Lease has been duly authorized by all necessary action on the
part of Lessee consistent with its form of organization, does not require any
further shareholder or partner approval, does not require the approval of, or
the giving notice to, any federal, state, local or foreign governmental
authority and does not contravene any law binding on Lessee or contravene any
certificate or articles of incorporation or by-laws or partnership certificate
or agreement, or any agreement, indenture, or other instrument to-which Lessee
is a party or by which it may be bound; (c) this Lease has been duly executed
and delivered by authorized officers or partners of Lessee and constitutes a
legal, valid and binding obligation of Lessee enforceable in accordance with its
terms; (d) Lessee has not and will not, directly or indirectly, create, incur or
permit to exist any lien, encumbrance, mortgage, pledge, attachment or security
interest on or with respect to the Equipment or this Lease (except those of
persons claiming by, through or under Lessor); (e) the Equipment will be used
solely in the conduct of Lessee's business and will remain in the location shown
on the applicable Lease Schedule unless Lessor otherwise agrees in writing and
Lessee has completed all notifications, filings, recordings and other actions in
such new location as Lessor may reasonably request to protect Lessor's interest
in the Equipment; (f) there are no pending or threatened actions or proceedings
before any court or administrative agency which materially adversely affect
Lessee's financial condition or operations, and all credit, financial and other
information provided by Lessee or at Lessee's direction is, and all such
information hereafter furnished will be, true, correct and complete in all
material respects; and (g) Lessor has not selected, manufactured or supplied the
Equipment to Lessee and has acquired any Equipment subject hereto solely in
connection with this Lease and Lessee has received and approved the terms of any
purchase order or agreement with respect to the Equipment.
6. INDEMNITY
Lessee assumes the risk of liability for, and hereby agrees to indemnify and
hold safe and harmless, and covenants to defend, Lessor, its employees, servants
and agents from and against: (a) any and all liabilities, losses, damages,
claims and expenses (including legal expenses of every kind and nature) arising
out of the manufacture, purchase, shipment and delivery of the Equipment to
Lessee, acceptance or rejection, ownership, titling, registration, leasing,
possession, operation, use, return or other disposition of the Equipment,
including, without limitation, any liabilities that may arise from patent or
latent defects in the Equipment (whether or not discoverable by Lessee), any
claims based on absolute tort liability or warranty and any claims based on
patent, trademark or copyright infringement; (b) any and all loss or damage of
or to the Equipment; and (c) any obligation or liability to the manufacturer or
any supplier of the Equipment arising under any purchase orders issued by or
assigned to Lessor.
7. TAXES AND OTHER CHARGES
Lessee agrees to comply with all laws, regulations and governmental orders
related to this Lease and to the Equipment and its use or possession, and to pay
when due, and to defend and indemnify Lessor against liability for all license
fees, assessments, and sales, use, property, excise, privilege and other taxes
(including any related interest or penalties) or other charges or fees now or
hereafter imposed by any governmental body or agency upon any Equipment, or with
respect to the manufacturing, ordering, shipment, purchase, ownership, delivery,
installation, leasing, operation, possession, use, return, or other disposition
thereof or the rentals hereunder (other than taxes on or measured solely by the
net income of Lessor). Any fees, taxes or other lawful charges paid by Lessor
upon failure of Lessee to make such payments shall at Lessor's option become
immediately due from Lessee to Lessor.
If any Lease Schedule is denominated as a "True Lease Schedule," then, with
respect to the Equipment set forth on such True Lease Schedule, Lessee hereby
covenants and agrees that Lessor shall be entitled to the following tax benefits
(the "Tax Benefits"), Lessor will be entitled to cost recovery deductions under
Section 168 of the Internal Revenue Code of 1986, as amended (the "Code"), using
a 200% declining balance method of depreciation switching to the straight line
method for the first taxable year for which such method will yield larger
depreciation deductions, and assuming a half-year convention and zero salvage
value, for the applicable recovery period for such Equipment as set forth in the
True Lease Schedule with respect to such Equipment. Lessee further acknowledges
and agrees that Lessor has entered into such True Lease Schedule on the
assumption that Lessor will be taxed throughout the Lease Term of the True Lease
Schedule at Lessor's federal corporate income tax rate existing on the date of
such Lease Schedule (the "Assumed Tax Rate"). If, for any reason whatsoever,
there shall be a loss, disallowance, recapture or delay, in claiming all or any
portion of the Tax Benefits with respect to the Equipment, or there shall be
included in Lessor's gross income for Federal, state or local income tax
purposes any amount on account of any addition, modification or improvement to
or in respect of any of the Equipment made or paid for by Lessee, or if there
shall be a change in the Assumed Tax Rate (any loss, disallowance, recapture,
delay, inclusion or change being herein called a "Tax Loss"), then thirty (30)
days after written notice to Lessee by Lessor that a Tax Loss has occurred,
Lessee shall pay Lessor a lump sum amount which, after deduction of all taxes
required to be paid by Lessor with respect to the receipt of such amount, will
provide Lessor with an amount necessary to maintain Lessor's after-tax economic
yield and overall net after-tax cash flows at least at the same level that would
have been available if such Tax Loss had not occurred, plus any interest,
penalties or additions to tax which may be imposed in connection with such Tax
Loss. In lieu of paying such Tax Loss in a lump sum, Lessor may require, or
upon Lessee's request, may agree, in Lessor's sole discretion, that such Tax
Loss shall be paid in equal periodic payments over the applicable remaining
Lease Term with respect to such Equipment with each Rental Payment due and
payable with respect to such Equipment. A Tax Loss shall conclusively be deemed
to have occurred if either (a) a deficiency shall have been proposed by the
Internal Revenue Service or other taxing authority having jurisdiction, or (b)
tax counsel for Lessor has rendered an opinion to Lessor that such Tax Loss has
so occurred. The foregoing indemnities and covenants set forth in Sections 6
and 7 of this Master Lease shall continue in full force and effect and shall
survive the expiration or earlier termination of the Lease.
8. DEFAULT
Lessee shall be in default of this Lease upon the occurrence of any one or
more of the following events (each an "Event of Default"):
(a) Lessee shall fail to make any payment, of rent or otherwise, under any
Lease within 10 days of the date when due, or (b) Lessee shall fail to obtain or
maintain any of the insurance required under any Lease; or (c) Lessee shall fail
to perform or observe any covenant, condition or agreement under any lease, and
such failure continued for 10 days after notice thereof to Lessee; or (d) Lessee
shall default in the payment or performance of any indebtedness or obligation to
Lessor or any affiliated person, firm or entity controlling, controlled by or
under common control with Lessor, under any loan, note, security agreement,
lease, guaranty, title retention or conditional sales agreement or any other
instrument or agreement evidencing such indebtedness with Lessor or such other
affiliated person, firm or entity affiliated with Lessor; or (e) any
representation or warranty made by Lessee herein or in any certificate,
agreement, statement or document hereto or hereafter furnished to Lessor in
connection herewith, including without limitation, any financial information
disclosed to Lessor, shall prove to be false or incorrect in any material
respect; or (f) death or judicial declaration of incompetence of Lessee, if an
individual; the commencement of any bankruptcy, insolvency, arrangement,
reorganization, receivership, liquidation or other similar proceeding by or
against Lessee or any of its properties or businesses, or the appointment of a
trustee, receiver, liquidator or custodian for Lessee or any of its properties
of business, or if Lessee suffers the entry of an order for relief under Title
11 of the United States Code; or the making by Lessee of a general assignment or
deed of trust for the benefit of creditors, or (g) Lessee shall default in any
payment or other obligation to any third party and any applicable grace or cure
period with respect thereto has expired; or (h) Lessee shall terminate its
existence by merger, consolidation, sale of substantially all of its assets or
otherwise; or (i) if Lessee is a privately held corporation, and more than 50%
of Lessee's voting capital stock, or effective control of Lessee's voting
capital stock, issued and outstanding from time to time, is not retained by the
holders of such stock on the date of this Lease; or (j) if Lessee is a publicly
held corporation, there shall be a change in the ownership of Lessee's stock
such that Lessee is no longer subject to the reporting requirements of the
Securities Exchange Act of 1 934, or no longer has a class of equity securities
registered under Section 12 of the Securities Act of 1933; or (k) Lessor shall
determine, in its sole discretion and in good faith, that there has been a
material adverse change in the financial condition of the Lessee since the date
of this Lease, or that Lessee's ability to make any payment hereunder promptly
when due or otherwise comply with the terms of this Lease or any other agreement
between Lessor and Lessee is impaired; or (1) any event or condition set forth
in subsections (b) through (k) of this Section 8 shall occur with respect to any
guarantor or other person responsible, in whole or in part, for payment or
performance of this Lease; or (m) any event or condition set forth in
subsections (d) through (j) shall occur with respect to any affiliated person
firm or entity controlling, controlled by or under common control with Lessee.
Lessee shall promptly notify Lessor of the occurrence of any Event of Default or
the occurrence or existence of any event or condition which, upon the giving of
notice of lapse of time, or both, may become an Event of Default.
9. REMEDIES; MANDATORY PREPAYMENT.
Upon the occurrence of any Event of Default, Lessor may, at its sole option
and discretion, exercise one or more of the following remedies with respect to
any or all of the Equipment: (a) cause Lessee to promptly return, at Lessee's
expense, any or all Equipment to such location as Lessor may designate in
accordance with the terms of Section 1 8 of this Master Lease, or Lessor, at its
option, may enter upon the premises where the Equipment is located and take
immediate possession of and remove the same by summary proceedings or otherwise,
all without liability to Lessor for or by reason of damage to property or such
entry or taking possession except for Lessor's gross negligence or willful
misconduct; (b) sell any or all Equipment at public or private sale or otherwise
dispose of, hold, use, operate, lease to others or keep idle the Equipment, all
as Lessor in its sole discretion may determine and all free and clear of any
rights of Lessee; (c) remedy such default, including making repairs or
modifications to the Equipment, for the account and expense of Lessee, and
Lessee agrees to reimburse Lessor for all of Lessor's costs and expenses; (d) by
written notice to Lessee, terminate the Lease with respect to any or all Lease
Schedules and the Equipment subject thereto, as such notice shall specify, and,
with respect to such terminated Lease Schedules and Equipment, declare
immediately due and payable and recover from Lessee, as liquidated damages for
loss of Lessor's bargain and not as a penalty, an amount equal to the Stipulated
Loss Value, calculated as of the next following Rental Payment Date; (e) apply
any deposit or other cash collateral or sale or remarketing proceeds of the
Equipment at any time to reduce any amounts due to Lessor, and (f) exercise any
other right or remedy which may be available to Lessor under applicable law, or
proceed by appropriate court action to enforce the terms hereof or to recover
damages for the breach hereof, including reasonable attorneys' fees and court
costs. Notice of Lessor's intention to accelerate, notice of acceleration,
notice of nonpayment, presentment, protest, notice of dishonor, or any other
notice whatsoever are hereby waived by Lessee and any endorser, guarantor,
surety or other party liable in any capacity for any of the Lessee's obligations
under or in respect of the Lease. No remedy referred to in this Section 9 shall
be exclusive, but each shall be cumulative and in addition to any other remedy
referred to above or otherwise available to Lessor at law or in equity.
The exercise or pursuit by Lessor of any one or more of such remedies shall
not preclude the simultaneous or later exercise or pursuit by Lessor of any or
all such other remedies, and all remedies hereunder shall survive termination of
this Lease. At any sale of the Equipment pursuant to this Section 9, Lessor may
bid for the Equipment. Notice required, if any, of any sale or other
disposition hereunder by Lessor shall be satisfied by the mailing of such notice
to Lessee at least seven (7) days prior to such sale or other disposition. In
the event Lessor takes possession and disposes of the Equipment, the proceeds of
any such disposition shall be applied in the following order: (1) to all of
Lessor's costs, charges and expenses incurred in taking, removing, holding,
repairing and selling or leasing the Equipment; (2) to the extent not previously
paid by Lessee, to pay Lessor for any damages then remaining unpaid hereunder;
(3) to reimburse Lessee for any sums previously paid by Lessee as damages
hereunder; and (4) the balance, if any, shall be retained by Lessor. A
termination shall occur only upon written notice by Lessor and only with respect
to such Equipment as Lessor shall specify in such notice. Termination under
this Section 9 shall not affect Lessee's duty to perform Lessee's obligations
hereunder to Lessor in full. Lessee agrees to reimburse Lessor on demand for
any and all costs and expenses incurred by Lessor in enforcing its rights and
remedies hereunder following the occurrence of an Event of Default, including,
without limitation, reasonable attorney's fees, and the costs of repossession,
storage, insuring, reletting, selling and disposing of any and all Equipment.
The term "Stipulated Loss Value" with respect to any item of Equipment shall
mean the Stipulated Loss Value as set forth in any Schedule of Stipulated Loss
Values attached to and made a part of the applicable Lease Schedule. If there
is no such Schedule of Stipulated Loss Values, then the Stipulated Loss Value
with respect to any item of Equipment on any Rental Payment Date during the
Lease Term shall be an amount equal to the sum of: (a) all Rental Payments and
other amounts then due and owing to Lessor under the Lease, together with all
accrued interest and late charges thereon calculated through and including the
date of payment; plus (b) the net present value of: (i) all Rental Payments then
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remaining unpaid for the Lease Term, plus (ii) the amount of any purchase
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obligation with respect to such item of Equipment or, if there is no such
obligation, then the fair market value of such item of Equipment at the end of
the Lease Term, as estimated by Lessor in its sole discretion (accounting for
the amount of any unpaid Related Expenses for such item of Equipment and, with
respect to any such item of Equipment that has been attached to or installed on
or in any other property leased or
owned by Lessee, such value shall be determined on an installed basis, in place
and in use), all discounted to net present value at a discount rate equal to the
1-year Treasury Constant Maturity rate as published in the Selected Interest
Rates table of the Federal Reserve statistical release H.15(519) for the week
ending immediately prior to the original Acceptance Date for such Equipment.
Lessee is or may become indebted under or in respect of one or more leases,
loans, notes, credit agreements, reimbursement agreements, security agreements,
title retention or conditional sales agreements, or other documents, instruments
or agreements, whether now existing or hereafter arising, evidencing Lessee's
obligations for the payment of borrowed money or other financial accommodations
("Obligations") owing to FCC, or to one or more affiliated persons, firms or
entities controlling, controlled by or under common control with Lessor
("Affiliates"). If Lessee pays or prepays all or substantially all of its
Obligations owing to any Affiliate, whether or not such payment or prepayment is
voluntarily or involuntarily made by Lessee before or after any default or
acceleration of such Obligations, then Lessee shall pay, at Lessor's option and
immediately upon notice from Lessor, all or any part of Lessee's Obligations
owing to Lessor, including but not limited to Lessee's payment of Stipulated
Loss Value for all or any Lease Schedules as set forth in such notice from
Lessor.
10. ADDITIONAL SECURITY
For so long as any obligations of Lessee shall remain outstanding under any
Lease, Lessee hereby grants to Lessor a security interest in all of Lessee's
rights in and to Equipment subject to such Lease from time to time, to secure
the prompt payment and performance when due (by reason of acceleration or
otherwise) of each and every indebtedness, obligation or liability of Lessee, or
any affiliated person, firm, or entity controlling, controlled by, or under
common control with Lessee, owing to Lessor, whether now existing or hereafter
arising, including but not limited to all of such obligations under or in
respect of any Lease. The extent to which Lessor shall have a purchase money
security interest in any item of Equipment under a Lease which is deemed to
create a security interest under Section 1-201(37) of the Uniform Commercial
Code shall be determined by reference to the Acquisition Cost of such item
financed by Lessor. In order more fully to secure its rental payments and all
other obligations to Lessor hereunder, Lessee hereby grants to Lessor a security
interest in any deposit of Lessee to Lessor under Section 3(d) of any Lease
Schedule hereto. Such security deposit shall not bear interest, may be
commingled with other funds of Lessor and shall be immediately restored by
Lessee if applied under Section 9. Upon expiration of the term of this Lease and
satisfaction of all of Lessee's obligations, the security deposit shall be
returned to Lessee. The term "Lessor" as used in this Section 10 shall include
any affiliated person, firm or entity controlling, controlled by or under common
control with Lessor.
11. NOTICES
Any notices or demands required or permitted to be given under this Lease
shall be given in writing and by regular mail and shall become effective when
deposited in the United States mail with postage prepaid to Lessor to the
attention of Customer Accounts, and to Lessee at the address set forth above, or
to such other address as the party to receive notice hereafter designates by
such written notice.
12. USE; MAINTENANCE; INSPECTION; LOSS AND DAMAGE
During the Lease Term for each item of Equipment, Lessee shall, unless
Lessor shall otherwise consent in writing: (a) permit each item of Equipment to
be used only within the continental United States by qualified personnel solely
for business purposes and the purpose for which it was designed and shall, at
its sole expense, service, repair, overhaul and maintain each item of Equipment
in the same condition as when received, ordinary wear and tear excepted, in good
operating order, consistent with prudent industry practice (but, in no event
less than the same extent to which Lessee maintains other similar equipment in
the prudent management of its assets and properties) and in compliance with all
applicable laws, ordinances, regulations, and conditions of all insurance
policies required to be maintained by Lessee under the Lease and all manuals,
orders, recommendations, instructions and other written requirements as to the
repair and maintenance of such item of Equipment issued at any time by the
vendor and/or manufacturer thereof; (b) maintain conspicuously on any Equipment
such labels, plates, decals or other markings as Lessor may reasonably require,
stating that Lessor is owner of such Equipment; (c) furnish to Lessor such
information concerning the condition, location, use and operation of the
Equipment as Lessor may request; (d) permit any person designated by Lessor to
visit and inspect any Equipment and any records maintained in connection
therewith, provided, however, that the failure of Lessor to inspect the
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Equipment or to inform Lessee of any noncompliance shall not relieve Lessee of
any of its obligations hereunder; (e) if any Equipment does not comply with the
requirements of this Lease, Lessee shall, within 30 days of written notice from
Lessor, bring such Equipment into compliance; (f) not use any Equipment, nor
allow the same to be used, for any unlawful purpose, nor in connection with any
property or material that would subject the Lessor to any liability under any
state or federal statute or regulation pertaining to the production, transport,
storage, disposal or discharge of hazardous or toxic waste or materials; and (g)
make no additions, alterations, modifications or improvements (collectively,
"Improvements") to any item of Equipment that are not readily removable without
causing material damage to such item of Equipment or which will cause the value,
utility or useful life of such item of Equipment to materially decline. If any
such Improvement is made and cannot be removed without causing material damage
or decline in value, utility or useful life (a "Non-Severable Improvement"),
then Lessee warrants that such Non-Severable Improvement shall immediately
become Lessor's property upon being installed and shall be free and clear of
all liens and encumbrances and shall become Equipment subject to all of the
terms and conditions of the Lease. All such Improvements that are not Non-
Severable Improvements shall be removed by Lessee prior to the return of the
item of Equipment hereunder or such Improvements shall also become the sole and
absolute property of Lessor without any further payment by Lessor to Lessee and
shall be free and clear of all liens and encumbrances whatsoever. Lessee shall
repair all damage to any item of Equipment caused by the removal of any
Improvement so as to restore such item of Equipment to the same condition which
existed prior to its installation and as required by this Lease.
Lessee hereby assumes all risk of loss, damage or destruction for whatever
reason to the Equipment from and after the earlier of the date (i) on which the
Equipment is ordered or (ii) Lessor pays the purchase price of the Equipment,
and continuing until the Equipment has been returned to, and accepted by, Lessor
in the condition required by Section 18 hereof upon the expiration of the Lease
Term. If during the Lease Term all or any portion of an item of Equipment shall
become lost, stolen, destroyed, damaged beyond repair or rendered permanently
unfit for use for any reason, or in the event of any condemnation, confiscation,
theft or seizure or requisition of title to or use of such item, Lessee shall
immediately pay to Lessor an amount equal to the Stipulated Loss Value of such
item of Equipment, as of the next following Rental Payment Date.
13. INSURANCE
Lessee shall procure and maintain insurance in such amounts and upon such
terms and with such companies as Lessor may approve, during the entire Lease
Term and until the Equipment has been returned to, and accepted by, Lessor in
the condition required by Section 18 hereof, at Lessee's expense, provided that
in no event shall such insurance be less than the following coverages and
amounts: (a) Worker's Compensation and Employer's Liability Insurance, in the
full statutory amounts provided by law; (b) Comprehensive General Liability
Insurance including product/completed operations and contractual liability
coverage, with minimum limits of $1,000,000 each occurrence, and Combined Single
Limit Body Injury and Property Damage, $1,000,000 aggregate, where applicable;
and (c) All Risk Physical Damage Insurance, including earthquake and flood, on
each item of Equipment, in an amount not less than the greater of the Stipulated
Loss Value of the Equipment or (if available) its full replacement value.
Lessor will be included as an additional insured and loss payee as its interest
may appear. Such policies shall be endorsed to provide that the coverage
afforded to Lessor shall not be rescinded, impaired or invalidated by any act or
neglect of Lessee. Lessee agrees to waive Lessee's right and its insurance
carrier's rights of subrogation against Lessor for any and all loss or damage.
In addition to the foregoing minimum insurance coverage, Lessee shall
procure and maintain such other insurance coverage as Lessor may require from
time to time during the Lease Term. All policies shall be endorsed or contain a
clause requiring the insurer to furnish Lessor with at least 30 days prior
written notice of any material change, cancellation or non-renewal of coverage.
Upon execution of this Lease, Lessee shall furnish Lessor with a certificate of
insurance or other evidence satisfactory to Lessor that such insurance coverage
is in effect, provided, however, that Lessor shall be under no duty either to
-------- -------
ascertain the existence of or to examine such insurance coverage or to advise
Lessee in the event such insurance coverage should not comply with the
requirements hereof. In case of failure of Lessee to procure or maintain
insurance, Lessor may at its option obtain such insurance, the cost of which
will be paid by the Lessee as additional rentals. Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact to file, settle or adjust, and
receive payment of claims under any such insurance policy and to endorse
Lessee's name on any checks, drafts or other instruments on payment of such
claims. Lessee further agrees to give Lessor prompt notice of any damage to or
loss of, the Equipment, or any part thereof.
14. LIMITATION OF LIABILITY
Lessor shall have no liability in connection with or arising out of the
ownership, leasing, furnishing, performance or use of the Equipment or any
special, indirect. incidental or consequential damages of any character,
including, without limitation, loss of use of production facilities or
equipment, loss of profits, property damage or lost production, whether suffered
by Lessee or any third party.
15. FURTHER ASSURANCES
Lessee shall promptly execute and deliver to Lessor such further documents
and take such further action as Lessor may require in order to more effectively
carry out the intent and purpose of this Lease. Lessee shall provide to Lessor,
within 120 days after the close of each of Lessee's fiscal years, and, upon
Lessor's request, within 45 days of the end of each quarter of Lessee's fiscal
year, a copy of its financial statements prepared in accordance with generally
accepted accounting principles and, in the case of annual financial statements,
audited by independent certified public accountants, and in the case of
quarterly financial statements certified by Lessee's chief financial officer.
Lessee shall execute and deliver to Lessor upon Lessor's request any and all
schedules, forms and other reports and information as Lessor may deem necessary
or appropriate to respond to requirements or regulations imposed by any
governmental authorities. Lessee shall execute and deliver to Lessor upon
Lessor's request such further and additional documents, instruments and
assurances as Lessor deems necessary (a) to acknowledge and confirm, for the
benefit of Lessor or any assignee or transferee of any of Lessors rights, title
and interests hereunder (an "Assignee"), all of the terms and conditions of all
or any part of this Lease and Lessor's or Assignee's rights with respect
thereto, and Lessee's compliance with all of the terms and provisions hereof and
(b) to preserve, protect and perfect Lessor's or Assignee's right, title or
interest hereunder and in any Equipment, including, without limitation, such UCC
financing statements or amendments, corporate resolutions, certificates of
compliance, notices of assignment or transfers of interests, and restatements
and reaffirmations of Lessee's obligations and its representations and
warranties with respect thereto as of the dates requested by Lessor from time to
time. In furtherance thereof, Lessor may file or record this Lease or a
memorandum or a photocopy hereof (which for the purposes hereof shall be
effective as a financing statement) so as to give notice to third parties, and
Lessee hereby appoints Lessor as its attorney-in-fact to execute, sign, file and
record UCC financing statements and other lien recordation documents with
respect to the Equipment where Lessee fails or refuses to do so after Lessor's
written request, and Lessee agrees to pay or reimburse Lessor for any filing,
recording or stamp fees or taxes arising from any such filings.
16. ASSIGNMENT
This Lease and all rights of Lessor hereunder shall be assignable by Lessor
absolutely or as security, without notice to Lessee, subject to the rights of
Lessee hereunder for the use and possession of the Equipment for so long as no
Event of Default has occurred and is continuing hereunder. Any such assignment
shall not relieve Lessor of its obligations hereunder unless specifically
assumed by the assignee, and Lessee agrees it shall not assert any defense,
rights of set-off or counterclaim against any assignee to which Lessor shall
have assigned its rights and interests hereunder, nor hold or attempt to hold
such assignee liable for any of Lessor's obligations hereunder. No such
assignment shall materially increase Lessee's obligations hereunder. LESSEE
SHALL NOT ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE
OR ENTER INTO ANY SUBLEASE WITH RESPECT TO ANY OF THE EQUIPMENT WITHOUT THE
EXPRESS PRIOR WRITTEN CONSENT OF LESSOR.
17. LESSEE'S OBLIGATION UNCONDITIONAL
This Lease is a net lease and Lessee hereby agrees that it shall not be
entitled to any abatement of rents or of any other amounts payable hereunder by
Lessee, and that its obligation to pay all rent and any other amounts owing
hereunder shall be absolute and unconditional under all circumstances,
including, without limitation, the- following circumstances: (i) any claim by
Lessee to any right of set-off, counterclaim, recoupment, defense or other right
which Lessee may have against Lessor, any seller or manufacturer of any
Equipment or anyone else for any reason whatsoever; (ii) the existence of any
liens, encumbrances or rights of others whatsoever with respect to any
Equipment, whether or not resulting from claims against Lessor not related to
the ownership of such Equipment; or (iii) any other event or circumstances
whatsoever. Each Rent Payment or other amount paid by Lessee hereunder shall be
final and Lessee will not seek to recover all or any part of such payment from
Lessor for any reason whatsoever.
18. RETURN OF EQUIPMENT
Upon the expiration or earlier termination of the Lease Term with respect to
any Equipment, and provided that Lessee has not validly exercised any purchase
option with respect thereto, Lessee shall: (a) return the Equipment to a
location and in the manner designated by the Lessor within the continental
United States, including, as reasonably required by Lessor, securing
arrangements for the disassembly and packing for shipment by an authorized
representative of the manufacturer of the Equipment, shipment with all parts and
pieces on a carrier designated or approved by Lessor, and then reassembly
(including, if necessary, repair and overhaul) by such representative at the
return location in the condition the Equipment is required to be maintained by
the Lease and in such condition as will make the Equipment immediately able to
perform all functions for which the Equipment was originally designed (or as
upgraded during the Lease Term), and immediately qualified for the
manufacturer's (or other authorized servicing representative's) then-available
service contract or warranty; (b) cause the Equipment to qualify for all
applicable licenses or permits necessary for its operation for its intended
purpose and to comply with all specifications and requirements of applicable
federal, state and local laws, regulations and ordinances; (c) upon Lessor's
request, provide suitable storage, acceptable to Lessor, for the Equipment for a
period not to exceed180 days from the date of return; (d) cooperate with Lessor
in attempting to remarket the Equipment, including display and demonstration of
the Equipment to prospective purchasers or lessees, and allowing Lessor to
conduct any private or public sale or auction of the Equipment on Lessee's
premises. All costs incurred in connection with any of the foregoing shall be
the sole responsibility of the Lessee. During any period of time from the
expiration or earlier termination of the Lease until the Equipment is returned
in accordance with the provisions hereof or until Lessor has been paid the
applicable purchase option price if any applicable purchase option is exercised,
Lessee agrees to pay to Lessor additional per them rent ("Holdover Rent"),
payable promptly on demand in an amount equal to 125% of the highest monthly
Rental Payment payable during the Lease Term divided by 30, provided, however,
-------- -------
that nothing contained herein and no payment of Holdover Rent hereunder shall
relieve Lessee of its obligation to return the Equipment upon the expiration or
earlier termination of the Lease.
19. RELATED LEASE SCHEDULES
In the event that any Equipment subject to a Lease shall become attached to,
affixed to, or used in connection with Equipment subject to any other Lease
hereunder (each a "Related Lease Schedule"), Lessee agrees that: (a) if Lessee
elects to exercise any purchase option, early termination option, renewal
option, purchase obligation or early purchase option under any Lease; or (b) if
Lessee elects to return the Equipment under any Lease in accordance therewith,
then, in either case, Lessor shall have the right, in its discretion, to require
the same disposition for all Equipment subject to a Related Lease Schedule.
20. MISCELLANEOUS, ENFORCEABILITY AND GOVERNING LAW
The term "Lessee" as used in the Lease shall mean and include any and all
Lessees who sign below, each of whom shall be jointly and severally liable under
the Lease. This Master Lease will not be binding on Lessor until accepted and
executed by Lessor, notice of which is hereby waived by Lessee. Any waiver of
the terms hereof shall be effective only in the specific instance and for the
specific purpose given. Time is of the essence in the payment and performance
of all of Lessee's obligations under the Lease. The captions in this Lease are
for convenience only and shall not define or limit any of the terms hereof.
Any provisions of this Lease which are unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions hereof, and any
such unenforceability in any jurisdiction shall not render unenforceable such
provisions in any other jurisdiction. To the extent permitted by applicable
law, Lessee hereby waives; (a) any provisions of law which render any provision
hereof unenforceable in any respect; (b) all rights and remedies under Rhode
Island General Laws Sections 6A-2.1-508 through 522 or corresponding provisions
of the Uniform Commercial Code article or division pertaining to personal
property leasing in any jurisdiction in which enforcement of this Lease is
sought.
THIS LEASE AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL
RESPECTS BE GOVERNED BY.AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF RHODE ISLAND, WITHOUT REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW.
LESSEE HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF RHODE ISLAND AND THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF RHODE
ISLAND FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
ITS OBLIGATIONS HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE
TO THE VENUE OF SUCH COURTS. LESSEE HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE. Any action by
Lessee against Lessor for any cause of action relating to this Lease shall be
brought within one year after any such cause of action first arises.
THIS LEASE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES CONCERNING THE
LEASE OF THE EQUIPMENT AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. LESSEE
ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST. THIS LEASE MAY
NOT BE AMENDED, NOR MAY ANY RIGHTS UNDER THE LEASE BE WAIVED, EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY THE PARTY CHARGED WITH SUCH AMENDMENT OR WAIVER.
Executed and delivered by duly authorized representatives of the parties hereto
as of the date set forth below.
DATED AS OF: JUNE 26, 1997
-------------
FLEET CAPITAL CORPORATION BOSTON COMMUNICATIONS GROUP, INC.
By: By:
----------------------------- ----------------------------
Name: Michael P. Marinelli Name: Fritz von Mering
Title: Assistant Vice President Title: VP of Finance & Treasurer
master equipment lease agreement 0081 10/94 Rvsd 11/96
Fleet PROGRESS PAYMENT RIDER
Capital Leasing
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
This Progress Payment Rider (this "Rider") is attached to and made a part
of that certain Master Equipment Lease Agreement No. No. 32426 dated as of JUNE
----- ----
26, 1997 (the "Agreement"), by and between the undersigned BOSTON COMMUNICATIONS
- -------- ---------------------
GROUP, INC. (hereinafter referred to as "Customer") and Fleet Capital
- ----------
Corporation ("FCC") . All capitalized terms used herein and not defined herein
shall have the meanings set forth or referred to in the Agreement. To the
extent the terms set forth in this Rider differ or conflict with any of the
terms set forth in the Agreement, the terms set forth in this Rider shall
control.
Customer hereby requests FCC to make progress payments (each, a "Progress
Payment") to vendors and suppliers (each, a "Vendor") of the equipment,
described in Schedule A attached hereto (the "Equipment") in an aggregate amount
not to exceed $.5,500,000.00 on or before DECEMBER 26, 1997 (the "Funding
------------- -----------------
Expiration Date") as described below:
Progress Payments shall be evidenced by and repayable to FCC together with
interest and any other amounts due and payable in accordance with the terms
hereof and the terms and provisions of one or more Demand Promissory Notes in
the form attached hereto as Exhibit A (a "Demand Note") which reference this
Rider. Subject to FCC's prior receipt and approval of all Required
Documentation (defined below), and satisfaction of all of the terms and
conditions set forth herein, FCC agrees to make the Progress Payments
contemplated hereby. As used herein, the term "Required Documentation" shall
mean any documentation required of Customer or any third party by FCC from time
to time in its sole and absolute discretion in connection with the Agreement or
any Progress Payment, including but limited to one or more Demand Notes, any
purchase orders or related documents, warranties and agreements with Vendors
(the "Purchase Agreements"), assignments of Purchase Agreements, acknowledgments
and agreements with Vendors confirming FCC's unencumbered ownership of or first
priority lien in and to the Equipment, disbursement authorizations and invoices
concerning the purchase and sale of the Equipment, lease or equipment schedules,
promissory notes, delivery and acceptance certificates, secretary certificates,
guaranties, landlord/mortgagee waivers, disclaimers of interest or intercreditor
agreements from other creditors, legal opinions and UCC financing statements.
Without limiting the generality of the foregoing, Customer hereby represents,
warrants, covenants and agrees that, prior to any advance of a Progress Payment
hereunder, Customer shall have provided FCC with true, correct and complete
copies of all Purchase Agreements satisfactory in all respects to FCC, which
shall in all events accurately identify all Equipment and its component parts,
and accurately and completely describe the total and component costs therefor
and any and all applicable rebates, discounts or refunds available to Customer.
In order to secure the prompt payment and performance when due (by reason
of acceleration or otherwise) of all indebtedness, obligations or liabilities of
Customer and any affiliate, parent or subsidiary of Customer owing to FCC or any
affiliate, parent or subsidiary of FCC, of every kind and description, direct or
indirect, secured or unsecured, joint or several, absolute or contingent, due or
to become due, whether for payment or performance, now existing or hereafter
arising, regardless of how the same arise or by whatever instrument, agreement
or book account they may be evidenced ("Obligations"), including but not limited
to all such Obligations under or in respect of the Agreement or any Demand Note,
Customer hereby grants and conveys to FCC a security interest in all of
Customer's rights, title and interests of whatever kind or description in and to
the Purchase Agreements, the Equipment and all present or future additions,
attachments, or accessories thereto and replacements thereof, all tools,
manuals, service records, software and similar information and materials related
to such Equipment, and the products, proceeds, offspring, rents and profits
therefrom or thereof (collectively, the "Collateral"). Customer represents,
warrants, covenants and agrees that the security interest in the Collateral
granted herein shall have priority over any other security interest granted by
Customer or retained by any Vendor or any other person or entity other than FCC,
and Customer shall, at its own cost and expense, promptly take Such action as
FCC shall deem necessary or advisable to fully discharge all such other liens
and security interests in the Collateral which result from claims against
Customer not related to the transactions contemplated by the Agreement or this
Rider. Customer hereby irrevocably appoints FCC its true and lawful attorney,
with full power of substitution, to take such action as FCC may deem necessary
to protect and preserve its security interest in the Collateral as set forth
above, and waives its rights of notice, demand, dishonor, marshaling of
Collateral, place and time of sale, advertising, statutory method of foreclosure
and all bonds, securities and rights of redemption.
If (a) all of the Equipment has not been delivered to and-accepted by
Customer for any reason under the Agreement on or before the Funding Expiration
Date; (b) Customer shall cancel its order for any of the Equipment or shall
fail to unconditionally accept any of the Equipment upon delivery from Vendor
and execute all Required Documentation; (c) Vendor shall fail and/or be unable
to deliver the Equipment pursuant to any Purchase Agreement or to convey good
and marketable title to the Equipment free and clear of all liens, claims,
security interests and encumbrances as required by the Agreement; or (d) there
occurs an Event of Default, or any event or condition which with notice or the
passage of time or both would constitute an Event of Default under the
Agreement; then (i) Customer shall be deemed to be in default hereunder and
----
shall immediately upon demand pay to FCC the amount of all Progress Payments
made pursuant hereto, plus all accrued and unpaid interest then outstanding
hereunder and under any Demand Note; (ii) FCC shall halve no further obligation
of any kind whatsoever to make any Progress Payments; and (iii) FCC shall have,
in addition to any other rights and remedies available upon default under the
Agreement, all of the rights and remedies of a secured party under the Uniform
Commercial Code in effect in the State of Rhode Island. Demand Notes shall be
payable on demand, and nothing herein shall be deemed or construed to limit or
affect in any way FCC's absolute and unconditional right to require payment by
Customer of all amounts owing under any Demand Note on demand. Interest on all
Progress Payments will accrue from the date each such Progress Payment is made
by FCC through the Acceptance Date for the related Equipment or the repayment in
full of all amounts owing hereunder and under the Demand Notes, whichever shall
occur first.
Demand Notes may also be discharged by FCC's funding of the amounts
contemplated in the Agreement ("Permanent Funding") on or before the Funding
Expiration Date, upon Customer's unconditional acceptance of the Equipment for
all purposes under the Agreement and prior satisfaction of all terms and
conditions deemed necessary or appropriate by FCC, in its sole and absolute
discretion, in connection with such funding and for the
protection and perfection of FCC's rights and interests in the Equipment,
including but not limited to the execution and delivery of additional documents,
instruments, schedules, security agreements, secretary certificates,
landlord/mortgagee waivers, guaranties, disclaimers of interest and/or
intercreditor agreements from other creditors, acknowledgments, authorizations
and certificates of third parties or public officials, legal opinions of counsel
to Customer and UCC financing statements and related filings, all of which shall
be received by FCC on or before the Funding Expiration Date. FCC has received a
commitment fee of $ n/a , and Customer acknowledges and
-----------------------
agrees that such fee: (i) has been paid to FCC as a commitment fee to compensate
FCC for its agreement to provide the Permanent Funding contemplated herein and
to enter into the transactions contemplated by the Agreement; (ii) has been and
shall be deemed to be fully earned by FCC as of the date hereof irrespective of
whether the Permanent Funding occurs or the transactions contemplated by the
Agreement are concluded; and (iii) shall not be refunded by FCC under any
circumstances or for any reason whatsoever, provided, however, that upon the
--------
completion of the Permanent Funding such fee shall be applied to the first
scheduled payments due under the Agreement.
THIS RIDER AND THE LEGAL RELATIONS OF THE PARTIES HERETO SHALL IN ALL
RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF RHODE ISLAND, WITHOUT REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW.
CUSTOMER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF RHODE ISLAND AND THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF RHODE
ISLAND FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
ITS OBLIGATIONS HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE
TO THE VENUE OF SUCH COURTS. CUSTOMER HEREBY EXPRESSLY WAIVES TRIAL BY JURY IN
ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS RIDER. Any action by Customer
against FCC for any cause of action under this Rider shall be brought within one
year after any such cause of action first occurs.
Executed and delivered by duly authorized representatives of the parties
hereto as of the date set forth below.
Dated as of: JUNE 27, 1997
--------------
FLEET CAPITAL CORPORATION BOSTON COMMUNICATIONS GROUP, INC.
By: By:
------------------------------- ---------------------------------
Name: Michael P. Marinelli Name: Fritz von Mering
Title: Assistant Vice President Title: VP of Finance & Treasurer
progress payment rider (libor) D422 5/95 Rvsd 4/96
DEMAND PROMISSORY NOTE
Floating Rate
Fleet
Capital Leasing
$ 5,500,000.00 June 27, 1997
------------------
For value received, the undersigned (jointly and severally if more than
one) (the "Maker") promises to pay to the order of Fleet Capital Corporation
("FCC"), having its principal place of business in Providence, Rhode Island
(together with any other holder of this Demand Promissory Note, hereinafter
referred to as the "Holder"), the principal sum of $5,500,000.00 or so much
thereof as shall be advanced by Holder pursuant to the Rider identified below
and shall be from time to time outstanding hereunder (the "Principal Amount"),
payable ON DEMAND, together with interest thereon as provided herein. This
Demand Promissory Note is a "Demand Note," and the obligations of Maker
hereunder are "Obligations" secured by the "Collateral," as such terms are
defined or referred to in a Progress Payment Rider, dated as of JUNE 27, 1997,
-------------
between FCC and Maker (the "Rider").
Maker shall pay to Holder the entire unpaid Principal Amount, plus all
accrued interest and any and all other amounts due hereunder on DECEMBER 26,
------------
1997, unless earlier demanded by Holder or otherwise due and payable in full (by
- ----
reason of acceleration or otherwise) pursuant to the terms of this Demand Note
or the Rider (in any such case, the "Maturity Date"). Interest shall accrue on
the unpaid Principal Amount of this Demand Note as provided below and shall be
due and payable monthly, in arrears, on the first day of each month (the
"Payment Dates") until the Principal Amount of this Demand Note is paid in full.
The final payment due and payable on the Maturity Date shall in any event be
equal to the entire outstanding and unpaid Principal Amount of this Demand Note,
together with all accrued and unpaid interest, charges and other amounts owing
hereunder and under the Rider. Interest shall accrue on the outstanding
Principal Amount of this Demand Note at a variable rate of interest, adjusted
monthly, equal to the Index Rate (as hereinafter defined) plus 1.00000% per
-------
annum (the "Interest Rate"). The "Index Rate" for any month shall be the one
month London Interbank Offered Rate (LIBOR) as published in the Wall Street
Journal on the fifteenth (15th) day of the preceding month. All interest
hereunder shall be calculated on the basis of a year of 360 days comprised of 12
months of 30 days each.
Time is of the essence in the payment and performance of those Obligations
which are evidenced by this Note. In the event any amount due hereunder is not
paid within ten (10) days of the date when due, Maker agrees to pay an
administrative and late charge equal to the lesser of (a) five percent (5%) on
and in addition to the amount of such overdue amount, or (b) the maximum charges
allowable under applicable law. In addition, Maker shall pay overdue interest
on any delinquent Payment or other Obligation due (by reason of acceleration or
otherwise) from thirty (30) days after the due date thereof through the date of
payment thereof at a rate of interest equal to the lesser of (a) 1.5 % per
month, or (b) the maximum rate of interest allowable under then applicable law.
Each payment hereunder shall be made in lawful money of the United States
and shall be payable to such account or address as the Holder hereof shall from
time to time direct Maker. Whenever any payment to be made under this Demand
Note shall be stated to be due on a Saturday, Sunday or a public holiday, or the
equivalent for banks generally under the laws of the State of Rhode Island, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of the payment of interest. All
amounts received hereunder or in respect of this Demand Note shall be applied
first, to accrued late charges and any other costs or expenses due and owing
- -----
hereunder or under the terms of the Security Agreement; second, to accrued
------
interest; and third, to unpaid principal. It is the intention of Holder to
-----
comply with all applicable usury laws. Accordingly, it is agreed that
notwithstanding anything to the contrary contained herein, in no event shall any
provision contained herein require or permit interest in excess of the maximum
amount permitted by applicable law to be paid by Maker. If necessary to give
effect to these provisions, Holder will, at its option, in accordance with
applicable law, either refund any amount to Maker to the extent that it was in
excess of that allowed by applicable law or credit such excess amount against
the then unpaid principal balance hereunder.
Failure to pay this Demand Note or any installment of interest hereunder on
demand or otherwise promptly when due, or default or failure in the performance
or due observance of any of the terms, conditions or obligations hereunder or
under the Rider or in any other agreement or instrument between Maker (or any
endorser, guarantor, surety or other party liable for Maker's obligations
hereunder, or any other entity controlling, controlled by, or under common
control with Maker) and Holder (or any other entity controlling, controlled by
or under common control with Holder), shall entitle Holder to accelerate the
maturity of this Demand Note and to declare the entire unpaid principal balance
and all accrued interest and other charges hereunder (including prepayment fees
calculated as of the date of default) and under the Rider to be immediately due
and payable, and to proceed at once to exercise each and every one of the
remedies provided in the Rider or otherwise available at law or in equity. This
Demand Note is payable on demand, and nothing herein shall be deemed or
construed to limit or affect in any way Holder's absolute and unconditional
right to require payment by Maker of all amounts owing under this Demand Note on
demand.
Maker and all other parties who may be liable (whether as endorsers,
guarantors, sureties or otherwise) for payment of any sum or sums due or to
become due under the terms of this Demand Note waive diligence, presentment,
demand, protest, notice of dishonor, notice of intention to accelerate, notice
of acceleration and notice of any other kind whatsoever and agree to pay all
costs incurred by Holder in enforcing its rights under this Demand Note or the
Rider, including reasonable attorney's fees, and they do -hereby consent to any
number of renewals or extensions at any time in the payment of this Demand Note.
No extension of time for payment of this Demand Note made by any agreement with
any person now or hereafter liable for payment of this Demand Note shall operate
to release, discharge, modify, change or affect the original liability of Maker
under this Demand Note, either in whole or in part. No delay or failure by
Holder hereof in exercising any right, power, privilege or remedy shall be
deemed to be a waiver of the same or any part thereof; nor shall any single or
partial exercise thereof or any failure to exercise the same in any instance
preclude any future exercise thereof, or exercise of any other right, power,
privilege or remedy, and the rights and remedies provided for hereunder are
cumulative and not exclusive of any other right or
remedy available at law or in equity. The Holder of this Demand Note may proceed
against all or any of the Collateral securing this Demand Note or against any
guarantor hereof, or may proceed contemporaneously or in the first instance
against Maker, in such order and at such times following default hereunder as
Holder may determine in its sole discretion. All of Maker's obligations under
this Demand Note are absolute and unconditional, and shall not be subject to any
offset or deduction whatsoever. Maker waives any right to assert, by way of
counterclaim or affirmative defense in any action to enforce Maker's obligations
hereunder, any claim whatsoever against the Holder of this Demand Note. This
Note shall be binding upon Maker and its respective heirs, executors,
administrators, representatives, successors, transferees and assigns and the
benefits hereof shall extend to and include Holder and its successors,
representatives, transferees and assigns.
ANY WAIVER OF ANY OF HOLDER'S RIGHTS OR REMEDIES SHALL BE EFFECTIVE ONLY IF
SUCH WAIVER IS IN WRITING SIGNED BY HOLDER AND ONLY IN THE SPECIFIC INSTANCE AND
FOR THE SPECIFIC PURPOSE FOR WHICH IT IS GIVEN. NO FAILURE TO EXERCISE, OR
DELAY IN EXERCISING, ANY RIGHT HEREUNDER SHALL OPERATE AS A WAIVER THEREOF; NOR
SHALL ANY FAILURE TO EXERCISE, OR PARTIAL EXERCISE OR, ANY RIGHT HEREUNDER
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER
RIGHT. THIS NOTE AND THE LEGAL RELATIONS OF THE UNDERSIGNED AND HOLDER SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF RHODE ISLAND, WITHOUT REGARD TO PRINCIPLES REGARDING THE CHOICE OF LAW.
MAKER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF RHODE ISLAND AND THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ITS
OBLIGATIONS HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE TO
THE VENUE OF SUCH COURTS. MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS NOTE.
IN WITNESS WHEREOF, Maker has caused this Demand Note to be executed by its
duly authorized representative as of the date first above written.
MAKER:
ATTEST/WITNESS: BOSTON COMMUNICATIONS GROUP, INC.
By:
- ------------------------------- --------------------------------
Name: Alan J. Bouffard Name: Fritz von Mering
Title: VP of Finance & Treasurer
Demand promissory note (libor) D423 5/95 Rvsd 5/96
Fleet
Capital Leasing
SCHEDULE A
Attached to and made a part of the following: Lease Schedule No. 32426-0 1,
Acceptance Certificate,
UCC-1 Financing Statement(s)
with BOSTON COMMUNICATIONS GROUP, INC.
- --------------------------------------------------------------------------------
QTY LOCATION, VENDOR, DESCRIPTION MODEL NO. SERIAL NO.
- --------------------------------------------------------------------------------
LOCATION ( 01 )
Various Communication and Data Processing equipment
WITH ALL STANDARD AND ACCESSORY EQUIPMENT
FLEET CAPITAL CORPORATION BOSTON COMMUNICATIONS GROUP, INC.
BY: BY:
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NAME: Michael P. Marinelli NAME: Fritz von Mering
TITLE: Assistant Vice President TITLE: VP of Finance & Treasurer
Fleet
Capital Leasing
SCHEDULE A-I
EQUIPMENT LOCATION
Attached to and made a part of the following: Lease Schedule No. 32426-01,
Acceptance Certificate
with BOSTON COMMUNICATIONS GROUP, INC.
LOC.# EQUIPMENT CURRENTLY LOCATED AT:
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(01) Boston Communications Group, Inc. 100 Sylvan Road Woburn, MA 01801
FLEET CAPITAL CORPORATION BOSTON COMMUNICATIONS GROUP, INC.
BY: BY:
------------------------------------ -------------------------------
NAME: Michael P. Marinelli NAME: Fritz von Mering
TITLE: Assistant Vice President TITLE: VP of Finance & Treasurer
Fleet LEASE SCHEDULE NO. 32426-00001
Capital Leasing -----------
50 Kennedy Plaza
Providence, Rhode Island 02903-2305
Lessee: BOSTON COMMUNICATIONS GROUP, INC.
Address: 100 SYLVAN ROAD
WOBURN, MA 01801
1. This Lease Schedule No. 32426 - 00001 dated as of AUGUST 20, 1997 is
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entered into pursuant to and incorporated by this reference, all of the terms
and provisions of that certain Master Equipment Lease Agreement No. 32426 dated
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as of JUNE 26, 1997 (the "Master Lease"), for the lease of the Equipment
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described in Schedule A attached hereto. This Lease Schedule shall constitute a
separate, distinct and independent lease of the Equipment and the contractual
obligation of Lessee. References to the "the Lease" or "this Lease" shall mean
and refer to this Lease Schedule, together with the Master Lease and all
exhibits, addenda, schedules. certificates, riders, and other documents and
instruments executed and delivered in connection with this Lease Schedule, all
as the same may be amended or modified from time to time. All capitalized terms
used herein and not defined herein shall have the meanings set forth or referred
to in the Master Lease. By its execution and delivery of this Lease Schedule,
Lessee hereby reaffirms all of the representations, warranties and covenants
contained in the Master Lease, as of the date hereof, and further represents and
warrants to Lessor that no Event of Default, and no event or condition which
with notice or the passage of time or both would constitute an Event of Default,
has occurred and is continuing as of the date hereof.
2. ACQUISITION COST. The Acquisition Cost of the Equipment is-,
$3,043,707.55.
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3. (a) LEASE TERM. The Lease Term shall commence on the date hereof and
shall continue for a period of 36 months after the Lease Term Commencement Date
--
set forth in the Acceptance Certificate to this Lease Schedule, plus any renewal
or extended term applicable in accordance with the terms of the Lease.
(b) RENTAL PAYMENTS. In addition to interim rent payable pursuant to
Section 2 of the Master Lease, Lessee shall pay Lessor 36 consecutive Rental
--
Payments in the amounts set forth in the schedule below, plus any applicable
sales/use taxes, commencing on the Rental Payment Commencement Date set forth in
the Acceptance Certificate and MONTHLY thereafter for the remaining Lease Term.
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Each Rental Payment shall be payable on the same day of the month as the Rental
Payment Date in each succeeding rental period during the remaining Lease Term
(each, a "Rental Payment Date"):
Amount of Each
Number of Rental Payments Rental Payment
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12 105,454.42
12 100,932.99
12 80,297.27
(c) ADVANCE RENTAL PAYMENT. Lessee agrees to pay Lessor the first 01
--
and last 0 Rental Payments, due and payable on the Acceptance Date.
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(d) SECURITY DEPOSIT. Lessee agrees to make a payment in an amount
equal to 0% of the Acquisition Cost of the Equipment, due to payable on the
Acceptance Date, to be held by Lessor as a non-interest bearing deposit to
secure Lessee's performance under the Lease.
4. EQUIPMENT LOCATIONS(S). The Equipment will be located at the
location(s) specified in Schedule A-1 hereto.
5. Lessor will invoice Lessee for all sales, use and/or personal property
taxes as and when due and payable in accordance with applicable law, unless
Lessee delivers to Lessor a valid exemption certificate with respect to such
taxes. Delivery of such certificate shall constitute Lessee's representation and
warranty that no such taxes shall become due and payable with respect to the
Equipment, and Lessee shall indemnify and hold harmless Lessor from and against
any and all liability or damages, including late charges and interest which
Lessor may incur by reason of the assessment of such taxes.
6. The Rental Payments may change for Equipment accepted after AUGUST 25,
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1997,
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Dated as of: AUGUST 20, 1997
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FLEET CAPITAL CORPORATION BOSTON COMMUNICATIONS GROUP, INC.
By: By:
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Name: Micheal P. Marinelli Name: Fritz von Mering
Title: Assistant Vice President Title: VP of Finance & Treasurer
lease schedule D104 10/4 Rsvd 4/96