the original term of the lease is equal to or greater than the remaining economic life of the goods . . . . M.G.L. c. 106, § 1-201(37) and Mo. Rev. St. c. 400.1-201(37). Accordingly, that CSI booked the equipment schedules as “sales” and Lycos booked them as “leases” are not even factors in 18 Id.

Additional consideration is nominal if it is less than the lessee’s reasonably predictable cost of performing under the lease agreement if the option is not exercised …. Case 1:05-cv-10017-RWZ Document 64 Filed 05/02/2006 Page 11 of 19 -12- See M.G.L. c. 106, §1-201(37) (emphasis added). The issue of when an equipment lease is to be treated as a security agreement under the Uniform Commercial Code was specifically addressed in Carlson v. Giacchetti, 35 Mass. App. Ct. 57 (1993).

B. Uniform Commercial Code A holder of a promissory Note means the person in "physical possession" of a negotiable instrument that is either payable to bearer or an identified person that is in possession. Mass. G.L. c. 106 § 1-201(20). To qualify as a negotiable instrument, a promissory Note must contain an unconditional promise to pay a fixed amount of money, with or without interest or other charges described in the promise, if it is (l) payable to bearer or order at the time it is first issued or first comes into possession of a holder; (2) is payable on demand or at a definite time, and (3) does not state any other undertaking or instruction by the person promising payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral; (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.