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LINC CAPITAL, INC. LINC Capital, Inc.
MASTER LEASE AGREEMENT 000 Xxxx Xxxxxx Xxxxx, #0000
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Lessee: PERFORMANCE PHARMACY SYSTEMS, INC. Master Lease Agreement No. 7193
Address: MEDICATION MANAGEMENT SYSTEMS, INC.
D/B/A "LIFESERV TECHNOLOGIES" AND
LIFESERV TECHNOLOGIES, INC
Jointly and severally, as Co-Lessees
00000 Xxxxxxxxxx Xxxx. Date: February 23, 1998
Xxxxxxxxxx, Xxxxxxx 00000
LINC Capital, Inc. ("Lessor") hereby leases to Lessee and Lessee leases from
Lessor, in accordance with the terms and conditions hereinafter set forth, the
equipment and property purchased by Lessor for lease to the Lessee hereunder
together with all replacement parts, additions, accessories, alterations and
repairs incorporated therein or now or hereafter affixed theretoAdd-on Items (as
defined herein) (herein collectively referred to as the "Equipment") described
in each Schedule which may be executed by Lessor and Lessee from time to time
(individually a "Schedule" and collectively, the "Schedules"), each of which is
made a part hereof. For all purposes of this Master Lease Agreement ("Lease"),
each Schedule relating to one or more items of Equipment shall be deemed a
separate lease incorporating all of the terms and provisions of this Lease. In
the event of a conflict between the terms of this Lease and the terms and
conditions of an Schedule, the terms and conditions of the Schedule shall govern
and control that Schedule.
1. Term and Rental. The term of this Lease (the "Initial Lease Term") for any
item of Equipment shall be set forth in the Schedule relating to such item of
Equipment and shall commence (the "Commencement Date") on the Acceptance Date.
The "Acceptance Date" with respect to each Schedule shall be the applicable of
either: (1) the date of delivery to Lessee of all of the Equipment to be leased
thereunder; (2) in the case of Equipment which is the subject of a sale and
leaseback between Lessor and Lessee, the date upon which Lessor purchases such
Equipment from Lessee; or (3) in the case of Equipment requiring installation,
the date of installation of the Equipment. If the Acceptance Date is other than
the first day of a calendar quarter, then the Commencement Date of the Initial
Lease Term set forth in any Schedule shall be the first day of the calendar
quarter following the month which includes the Acceptance Date and Lessee shall
pay to Lessor, in addition to all other sums due hereunder, an amount equal to
one-thirtieth of the amount of the average monthly rental payment due or to
become due hereunder multiplied by the number of days from and including the
Acceptance Date to the Commencement Date of the Initial Lease Term set forth in
the Schedule. During the entire Initial Lease Term and any extension or renewal
of the term of this Lease, Lessee agrees to pay the total rental due hereunder
which shall be the total amount of all rental payments set forth in the Schedule
plus such additional amounts as may become due hereunder or pursuant to any
written modification hereof or additional written agreement hereto. Except as
otherwise specified in the Schedule, rental payments payable hereunder shall be
due monthly and shall be payable in advance on the first day of each month
during the term of this Lease beginning with the Commencement Date of the
Initial Lease Term. All rental payments due hereunder shall be sent to the
address of the Lessor specified in this Lease or in the Schedule or as otherwise
directed by the Lessor in writing. Rental payments or any other payments due
hereunder not made by their scheduled due date shall be overdue and shall be
subject to a service charge in an amount equal to two percent (2%) per month or
the maximum rate permitted by law whichever is less (the "Service Charge Rate")
applied to amount of the overdue payments from the date due until paid. If
Lessor shall at any time accept a rental payment after it shall become due, such
acceptance shall not constitute or be construed as a waiver of any or all of
Lessor's rights hereunder, including without limitation those rights of Lessor
set forth in Sections 12 and 13 hereof.
2. Title. This is an agreement of lease only. Except as otherwise provided in
any applicable Schedule, Lessee shall have no right, title or interest in or to
the Equipment leased hereunder, except as to the lawful use thereof subject to
the terms and conditions of this Lease. All of the Equipment shall remain
personal property (whether or not the Equipment may at any time become attached
or affixed to real property). The Equipment is and shall remain the sole and
exclusive property of Lessor or its assignees. All replacement parts,
modifications, repairs, alterations, additions and accessories now or hereafter
incorporated in or affixed to the Equipment whether before or after the
Commencement Date (herein collectively called "Add-on Items") are hereby
included in the definition of "Equipment". All Add-on Items shall become the
property of Lessor upon being so incorporated or affixed to the Equipment and
shall be returned to Lessor as provided in Section 3 (other than alterations,
additions and accessions that are attached or affixed by Lessee with notice to
Lessor after the Commencement Date for which the Lessor has not given value or
purchased and which are readily removable by Lessee from the Equipment without
any diminution of value or functionality to the Equipment). Upon the request of
Lessor, Lessee will affix to the Equipment labels or other markings supplied by
Lessor indicating its ownership of the Equipment and shall keep the same affixed
for the entire term of this Lease. Lessee agrees to promptly execute and deliver
or cause to be executed and delivered to Lessor and Lessor is hereby authorized
to record or file, any statement and/or instrument reasonably requested by
Lessor for the purpose of showing Lessor's interest in the Equipment, including
without limitation, financing statements, security agreements, and waivers with
respect to rights in the Equipment from any owners or mortgagees of any real
estate where the Equipment may be located. In the event that Lessee fails or
refuses to execute and/or file Uniform Commercial Code financing statements or
other instruments or recordings which Lessor or its assignee reasonably deems
necessary to perfect or maintain perfection of Lessor's or its assignee's
interests hereunder, Lessee hereby appoints Lessor as Lessee's limited
attorney-in-fact to execute and record all documents necessary to perfect or
maintain the perfection of Lessor's interests hereunder. Lessee shall pay Lessor
for any costs or fees relating to any filings hereunder including, but not
limited to actual out of pocket costs, fees, searches, documentation
preparation, documentary stamps, privilege taxes and reasonable attorneys' fees.
If any item of Equipment includes computer software purchased by Lessor or for
which Lessor has given Lessee value, Lessee shall upon request made by Lessor,
execute and deliver and shall cause Seller (as hereinafter defined) to deliver
all such documents as are necessary to effectuate assignment of all software
licenses to Lessor.
3. Acceptance and Return of Equipment. Lessor shall, at any time prior to
unconditional acceptance of all Equipment by Lessee, have the right to cancel
this Lease with respect to such Equipment (and if the Equipment or any portion
thereof has not previously been delivered, Lessor may refuse to pay for the
Equipment or any portion thereof or refuse to cause the same to be delivered)
if: (a) the Acceptance Date with respect to any item of Equipment to be leased
pursuant to any Schedule has not occurred within ninety (90) days of the
estimated Acceptance Date set forth in such Schedule or (b) there shall be, in
the reasonable judgment of Lessor, a material adverse change in the financial
condition or credit standing of Lessee or of any guarantor of Lessee's
performance under this Lease since the date of the most recent financial
statements of Lessee or of such guarantor submitted to Lessor. Upon any
cancellation by Lessor pursuant to this Section or the provisions of any
Schedule, Lessee shall forthwith reimburse to Lessor all sums paid by Lessor
with respect to such Equipment plus all costs and expenses of Lessor incurred in
connection with such Equipment and any interest or rentals due hereunder in
connection with such Equipment and shall pay to Lessor all other sums then due
hereunder, whereupon if Lessee is not then in default and has fully performed
all of its obligations hereunder, Lessor will, upon request of Lessee, transfer
to Lessee without warranty or recourse any rights that Lessor may then have with
respect to such Equipment.
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Lessee agrees to promptly execute and deliver to Lessor (in no event later than
15 days after the Acceptance Date) a confirmation by Lessee of unconditional
acceptance of the Equipment in the form supplied by Lessor (the "Equipment
Acceptance"). Lessee agrees, before execution of the aforesaid Equipment
Acceptance, to inform Lessor in writing of any defects in the Equipment, or in
the installation thereof, which have come to the attention of Lessee or its
agents and which might give rise to a claim by Lessee against the Seller or any
other person. If Lessee fails to give notice to Lessor of any such defects or
fails to deliver to Lessor the Equipment Acceptance as provided herein, it shall
be deemed an acknowledgment by Lessee (for purposes of this Lease only) that no
such defects in the Equipment or its installation exist and it shall be
conclusively presumed, solely as between Lessor and its assignees and Lessee,
that such Equipment has been unconditionally accepted by Lessee for lease
hereunder.
Except as otherwise provided in any Schedule, upon expiration or the
cancellation or termination of the Lease with respect to any Equipment, Lessee
shall return the Equipment to Lessor as provided herein. Lessee shall provide
Lessor with not less than ninety (90) days prior written notice of its intention
to return the Equipment upon expiration of the Initial Lease Term. Upon
expiration or the cancellation or termination of the Lease with respect to any
Equipment, Lessee shall, at its own expense, assemble, crate, insure and deliver
all of the Equipment and all of the service records and all software and
software documentation subject to this Lease and any Schedules hereto to Lessor
in the same good condition and repair as when received, reasonable wear and tear
resulting only from proper use thereof excepted, to such reasonable destination
within the continental United States as Lessor shall designate with all packing,
drayage and freight charges to the return destination designated by Lessor
pre-paid by Lessee with evidence of transit insurance on all items of Equipment
at their original Cost. Lessee shall, immediately prior to such return of each
item of Equipment or commercial unit of Equipment, provide to Lessor a letter
from the manufacturer of the equipment or another service organization
reasonably acceptable to Lessor certifying that said item is in good working
order, with reasonable wear and tear resulting only from proper use thereof
excepted, whether such item is eligible for a maintenance agreement by such
manufacturer, and all software and related attachments are included thereon. If
any computer software requires relicensing when removed from Lessee's premises,
Lessee shall bear all costs of such relicensing. Except as otherwise expressly
provided in the Schedule, if Lessee fails for any reason to provide the notice
set forth above or Lessee fails to redeliver the Equipment back to Lessor in
accordance with the terms set forth above, Lessee shall pay to Lessor, at
Lessor's election, an amount equal to the highest monthly payment set forth in
the Schedule for a period of not less than three (3) months and at the end of
such period of time ("Holdover Period"). Except as otherwise expressly provided
in the Schedule, if Lessee fails or refuses to return the Equipment as provided
herein at the end of any Holdover Period, Lessee shall pay to Lessor, at
Lessor's option, an amount equal to the highest monthly rental payment set forth
in the Schedule for each month or portion thereof, until Lessee so returns the
Equipment to Lessor. Should Lessor permit use by Lessee of any Equipment beyond
the Initial Lease Term, or, if applicable, any exercised extension or renewal
term, the lease obligations of Lessee shall continue and such permissive use
shall not be construed as a renewal of the term thereof, or as a waiver of any
right or continuation of any obligation of Lessor hereunder, and Lessor may take
possession of any such Equipment at any time upon demand.
4. Disclaimer of Warranties. LESSEE HAS EXCLUSIVELY SELECTED AND CHOSEN THE
TYPE, DESIGN, CONFIGURATION, SPECIFICATION AND QUALITY OF THE EQUIPMENT HEREIN
LEASED AND THE VENDOR, DEALER, SELLER, MANUFACTURER OR SUPPLIER THEREOF (HEREIN
COLLECTIVELY CALLED "SELLER"), AS SET FORTH IN THE SCHEDULES. LESSOR MAKES NO
REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS, ADAPTABILITY, ANY IMPLIED WARRANTY OF QUIET
ENJOYMENT OR NON-INTERFERENCE OR SUITABILITY FOR ANY PARTICULAR PURPOSE, AND,
LESSEE LEASES, HIRES AND RENTS THE EQUIPMENT AAS IS, WHERE IS." Lessee
understands and agrees that neither Seller, nor any agent of Seller, is an agent
of Lessor or is in any manner authorized to waive or alter any term or condition
of this Lease. Lessor shall not be liable for any loss or damage suffered by
Lessee or by any other person or entity, direct or indirect or consequential,
including, but not limited to, business interruption and injury to persons or
property, resulting from non-delivery or late delivery, installation, failure or
faulty operation, condition, suitability or use of the Equipment leased by
Lessee hereunder, or for any failure of any representations, warranties or
covenants made by the Seller. Any claims of Lessee, with respect to claims
discussed in the preceding sentences, shall not be made against Lessor but shall
be made, if at all, solely and exclusively against Seller, or any persons other
than the Lessor. Lessor hereby authorizes Lessee to enforce during the term of
this Lease, in its name, but at Lessee's sole effort and expense, all
warranties, agreements or representations, if any, which may have been made by
Seller to Lessor or to Lessee, and Lessor hereby assigns to Lessee solely for
the limited purpose of making and prosecuting any such claim, all rights which
Lessor may have against Seller for breach of warranty or other representation
respecting the Equipment.
5. Care, Transfer and Use of Equipment. Lessee, at its own expense, shall
maintain the Equipment in good operating condition, repair and appearance in
accordance with Seller's specifications and in compliance with all laws and
regulations applicable to the Equipment, Lessee and its business and shall
protect the Equipment from deterioration except for reasonable wear and tear
resulting only from proper use thereof. When generally offered with respect to
the Equipment, Lessee shall, at its expense, keep a maintenance contract in full
force and effect, throughout the term of this Lease and any Schedule hereto
unless otherwise agreed on the Schedule. The disrepair or inoperability of the
Equipment regardless of the cause thereof shall not relieve Lessee of the
obligation to pay rental hereunder. Lessee shall not make any modification,
alteration or addition to the Equipment (other than normal operating accessories
or controls). Lessee will not, and will not permit anyone other than the
authorized field engineering representatives of Seller or other maintenance
organization reasonably acceptable to Lessor to effect any inspection,
adjustment, preventative or remedial maintenance or repair to the Equipment.
Lessee may not (a) relocate or operate the Equipment at locations other than the
premises of Lessee specified in the applicable Schedule (the "Premises"), except
with Lessor's prior written consent, which shall not be unreasonably withheld if
such other location within the continental United States, or (b) SELL, CONVEY,
TRANSFER, ENCUMBER, PART WITH POSSESSION OF, OR ASSIGN ANY ITEM OF EQUIPMENT OR
ANY OF ITS RIGHTS HEREUNDER, AND ANY SUCH PURPORTED TRANSACTION SHALL BE NULL
AND VOID AND OF NO FORCE OR EFFECT. In the event of a relocation of the
Equipment or any item thereof to which Lessor consents, all costs (including any
additional property taxes or other taxes and any additional expense of insurance
coverage) resulting from any such relocation, shall be promptly paid by Lessee
upon presentation to Lessee of evidence supporting such cost. Lessor shall have
the right during normal hours upon reasonable notice to Lessee, subject to
applicable laws and regulations, to enter Lessee's Premises in order to inspect,
observe, affix labels or other markings, or to exhibit the Equipment to
prospective purchasers or future lessees thereof, or to otherwise protect
Lessor's interest therein.
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6. Net Lease. THIS LEASE AND ANY SCHEDULE HERETO IS A NET LEASE, AND ALL
PAYMENTS HEREUNDER ARE NET TO LESSOR. All taxes, assessments, licenses, and
other charges (including, without limitation personal property taxes and sales,
use and leasing taxes and penalties and interest on such taxes) imposed, levied
or assessed on the ownership, possession, rental or use of the Equipment during
the term of this Lease and any Schedule hereto (except for Lessor's federal or
state net income taxes) shall be paid by Lessee when due and before the same
shall become delinquent, whether such taxes are assessed or would ordinarily be
assessed against Lessor or Lessee. To the extent possible under applicable law,
for personal property or ad valorem tax return purposes only, Lessee shall
include the Equipment on such reports and returns as may be required by local
law, which returns shall be timely filed by it. Lessee shall provide Lessor with
evidence that Lessee has complied with the foregoing provisions. In any event,
Lessee shall file all tax returns required for itself or Lessor with respect to
the Equipment and this Lease and Lessor hereby appoints Lessee as its
attorney-in-fact for such purpose. In case of failure by Lessee to so pay said
taxes, assessments, licenses or other charges, Lessor may pay all or any part of
such items, in which event the amount so paid by Lessor including any interest
or penalties thereon and reasonable attorneys' fees incurred by Lessor in
pursuing its rights against Lessee or defending against any claims or defenses
asserted by or through Lessee shall be immediately paid by Lessee to Lessor as
additional rental hereunder. Lessee shall promptly pay all costs, expenses and
obligations of every kind and nature incurred in connection with the use or
operation of the Equipment which may arise or become due during the term of this
Lease and any Schedule hereto, whether or not specifically mentioned herein. In
case of failure by Lessee to comply with any provision of this Lease and any
Schedule hereto, Lessor shall have the right, but not the obligation, to effect
such compliance on behalf of Lessee. In such event, all costs and expenses
incurred by Lessor in effecting such compliance shall be immediately payable by
Lessee to Lessor as additional rental hereunder.
7. Indemnity. Lessee shall at its expense: (i) indemnify, protect and defend
Lessor's title to the Equipment from and against all persons claiming against or
through Lessee; (ii) at all times keep the Equipment then subject to this Lease
free from any and all liens, encumbrances, attachments, levies, executions,
burdens, charges or legal process of any and every type whatsoever; (iii) give
Lessor immediate written notice of any breach of this Lease described in clause
(ii); and (iv) indemnify, protect and save Lessor harmless from any loss, cost
or expense (including reasonable attorneys' fees) caused by the Lessee's breach
of any of the provisions of this Lease, whether incurred by Lessor in pursuing
its rights against Lessee or defending against any claims or defenses asserted
by or through Lessee. Lessee shall and does hereby agree to indemnify, defend
and hold Lessor and its assigns harmless from and against any and all liability,
loss, costs, injury, damage, penalties, suits, judgements, demands, claims,
expenses and disbursements (including without limitation, reasonable attorneys'
fees incurred by Lessor in pursuing its rights against Lessee or defending
against any claims or defenses asserted by or through Lessee) of any kind
whatsoever arising out of, on account of, or in connection with this Lease and
the Equipment leased hereunder, including, without limitation, its manufacture,
selection, purchase, delivery, rejection, installation, ownership, possession,
leasing, renting, operation, control, use, maintenance and the return thereof
except for any such claims or damages from Lessor's gross negligence or willful
misconduct. This indemnity shall survive the Initial Lease Term or earlier
cancellation or termination of this Lease and any Schedule hereto.
8. Insurance. Commencing on the date that risk of loss or damage passes to
Lessor from the Seller of any Equipment covered under this Lease and continuing
until Lessee has re-delivered possession of the Equipment to Lessor, Lessee
shall, at its own expense, keep the Equipment (including all Add-on Items
thereto) insured against all risks of loss or damage from every and any cause
whatsoever in such amounts (but in no event less than the greater of the
replacement value thereof or the amount set forth in any applicable Casualty
Schedule, whichever is higher) with such deductibles and exclusions as approved
by Lessor and in such form as is reasonably satisfactory to Lessor. All such
insurance policies shall protect Lessor and Lessor's assignee(s) as loss payees
as their interests may appear. Lessee shall also, at its own expense, carry
public liability insurance, with Lessor and Lessor's assignee(s) as an
additional insured, in such amounts with such companies and in such form as is
reasonably satisfactory to Lessor, with respect to injury to person or property
resulting from or based in any way upon or in any way connected with or relating
to the installation, use or alleged use, or operation of any or all of the
Equipment, or its location or condition.
Not less than ten days prior to the Acceptance Date, Lessee shall deliver to
Lessor satisfactory evidence of such insurance and shall further deliver
evidence of renewal of each such policy not less than thirty (30) days prior to
expiration thereof. Each such policy shall contain an endorsement providing that
the insurer will give Lessor not less than thirty (30) days prior written notice
of the effective date of any alteration, change, cancellation, or modification
of such policy or the failure by Lessee to timely pay all required premiums,
costs or charges with respect thereto. Upon Lessor's request, Lessee shall cause
its insurance agent(s) to execute and deliver to Lessor Loss Payable Clause
Endorsement and Additional Insured Endorsement (bodily injury and property
damage liability insurance) forms provided to Lessee by Lessor. In case of the
failure to procure or maintain such insurance, Lessor shall have the right, but
not the obligation, to obtain such insurance and any premium paid by Lessor
shall be immediately due and payable by Lessee to Lessor as additional rent
hereunder. The maintenance of any policy or policies of insurance pursuant to
this Section shall not limit any obligation or liability of Lessee pursuant to
Sections 7 or 9 or any other provision of this Lease and any Schedule hereto.
9. Risk of Loss. Until such time as the Equipment is returned and delivered to
and accepted by Lessor at the expiration of this Lease, pursuant to the terms of
this Lease and any Schedule hereto, Lessee hereby assumes and shall bear the
entire risk of loss, damage, theft and destruction of the Equipment, or any
portion thereof, from any cause whatsoever ("Equipment Loss"). Without
limitation of the foregoing, no Equipment Loss shall relieve Lessee in any way
from its obligations hereunder. Lessee shall promptly notify Lessor in writing
of any Equipment Loss. In the event of any such Equipment Loss, Lessee shall:
(a) in the event Lessor determines such Equipment to be repairable, promptly
place, at Lessee's expense, the Equipment in good repair, condition and working
order in accordance with Seller's specifications and to the satisfaction of
Lessor; or (b) in the event of an actual or constructive total loss of any item
of Equipment, at Lessor's option: (i) promptly replace, at Lessee's expense, the
Equipment with like equipment of the same or a later model with the same Add-on
Items as the Equipment, and in good repair, condition and working order in
accordance with the Seller's specifications and to the satisfaction of Lessor;
or (ii) immediately pay to Lessor the amount obtained by multiplying the actual
Equipment Cost as specified in the applicable Schedule by the percentage
contained in any applicable Casualty Schedule for the date of such Equipment
Loss plus, any unpaid rentals or any amounts due hereunder.
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If no Casualty Schedule has been made a part of any applicable Schedule, an
amount equal to the present value of the total amount of unpaid rentals and all
other amounts due and to become due under any applicable Schedule during the
term thereof as of the date of any payment, discounted at a rate equal to
discount rate of the Federal Reserve Bank of Chicago as of the Commencement Date
of the Lease with respect to each applicable Schedule, plus an additional amount
equal to the estimated fair market value of the Equipment at the end of the
Initial Lease Term applicable to such Equipment (the "End of Term Value"). In no
event shall the amount of such End of Term Value for the Equipment be less than
twenty percent (20%) of the actual cost of the Equipment unless a purchase
option is granted (or other end of term payment is required) under this Lease
for other than the fair market value of the Equipment then the actual amount of
such Purchase Option Price (or other end of term payment) specified in the
applicable Equipment Schedule shall be due and payable to Lessor as the End of
Term Value under this section or such lesser or greater amount specified in the
applicable Schedule.
In the event Lessee is required to repair or replace any such item of Equipment
pursuant to Subsections (a) or (b)(i) of the preceding sentence, the insurance
proceeds received by Lessor, if any, pursuant to Section 8, after the use of
such funds to pay any unpaid amounts then due hereunder, shall be paid to Lessee
or, if applicable, to a third party repairing or replacing the Equipment upon
Lessee's furnishing proof reasonably satisfactory to Lessor that such repair or
replacement has been completed in a reasonably satisfactory manner. In the event
Lessor elects option (b)(ii), Lessee shall be entitled to a credit against the
payment required by said Subsection in an amount equal to such insurance
proceeds actually received by Lessor pursuant to Section 8 on account of such
Equipment, and, upon payment by Lessee to Lessor of all of the sums required
pursuant to Subsection (b)(ii), the applicable Schedule shall terminate with
respect to such item of Equipment and Lessee shall be entitled to whatever
interest Lessor may have in such item AS IS, WHERE IS and WITH ALL FAULTS in its
then condition and location without warranties of any type whatsoever, express
or implied.
10. Covenants of Lessee. Lessee agrees that its obligations under this Lease and
any Schedule hereto, including without limitation, the obligation to pay rental,
are irrevocable and absolute, shall not xxxxx for any reason whatsoever
(including any claims against Lessor), and shall continue in full force and
effect regardless of any inability of Lessee to use the Equipment or any part
thereof for any reason whatsoever including, without limitation, war, act of
God, storms, governmental regulations, strike or other labor troubles, loss,
damage, destruction, disrepair, obsolescence, failure of or delay in delivery of
the Equipment, or failure of the Equipment to properly operate for any cause. In
the event of any alleged claim (including a claim which would otherwise be in
the nature of a set-off) against Lessor, Lessee shall fully perform and pay its
obligations hereunder (including the payment of all rents, without set-off or
defense of any kind) and its only exclusive recourse against Lessor shall be by
a separate action. Lessee agrees to furnish promptly to Lessor the annual
financial statements of Lessee (and of any guarantors of Lessee's performance
under this Lease and any Schedule hereto), prepared in accordance with generally
accepted accounting principles and such interim financial statements of Lessee
as Lessor may reasonably require during the entire term of this Lease and any
Schedule hereto. Either independent certified public accountants or the Lessee's
chief financial officer as requested by Lessor shall certify all such annual
financial statements. Lessee, if requested by Lessor prior to the initial
purchase by Lessor of Equipment for lease hereunder, shall provide at Lessee's
expense an opinion of its counsel acceptable to Lessor affirming the covenants,
representations and warranties of Lessee under this Lease and any Schedule
hereto. So long as there are amounts due Lessor under this Lease, Lessee shall
supply Lessor with such other financial and operating performance data as is
provided to its outside investors or commercial lenders and, if applicable,
required to be provided to shareholders by the Security and Exchange Commission,
and Lessee shall immediately notify Lessor of any material adverse change in its
financial condition or business prospects
11. Representations and Warranties. In order to induce Lessor to enter into this
Lease and any Schedule hereto and to lease the Equipment to Lessee hereunder,
Lessee represents and warrants that: (a) Financial Statements. (i) applications,
financial statements, and reports which have been submitted by Lessee and any
Obligors (as hereinafter defined) to Lessor are, and all information hereafter
furnished by Lessee and Obligors to Lessor will be, true and correct in all
material respects as of the date submitted; (ii) as of the date hereof, the date
of any Schedule and any Acceptance Date, there has been no material adverse
change in any matter stated in such applications, financial statements and
reports; and, (iii) none of the foregoing omit or omitted to state any material
fact which would make any of the foregoing false or misleading. (b)
Organization. Lessee is an organizational entity described on the signature page
hereof and is duly organized, validly existing and is duly qualified to do
business and is in good standing or subsisting or in other similar active status
in each State in which the Equipment will be located. (c) Authority. Lessee has
full power, authority and right to execute, deliver and perform this Lease and
any Schedule hereto, and the execution, delivery and performance hereof has been
authorized by all necessary action of Lessee. (d) Enforceability. This Lease and
any Schedule or other document executed in connection therewith has been duly
executed and delivered by Lessee and any Obligor and constitutes a legal, valid
and binding obligation of Lessee and any Obligor enforceable in accordance with
its terms. (e) Consents. The execution, delivery and performance of this Lease
and any Schedule hereto does not require any approval or consent of any
stockholders, partners or proprietors or of any trustee or holders of any
indebtedness or obligations of Lessee, and will not contravene any law,
regulation, judgment or decree applicable to Lessee, or the certificate or
articles of incorporation, partnership agreement, by-laws or other governing
documents of Lessee, or contravene the provisions of, or constitute a default
under, or result in the creation of any lien upon any property of Lessee under
any mortgage, instrument or other agreement to which Lessee is a party or by
which Lessee or its assets may be bound or affected. Except as disclosed, no
authorization, approval, license, filing or registration with any court or
governmental agency or instrumentality is necessary in connection with the
execution, delivery, performance, validity and enforceability of this Lease and
any Schedule hereto. (f) Title. On each Commencement Date, Lessor shall have
good and marketable title to the items of Equipment which is subject to this
Lease and any Schedule hereto on such date, free and clear of all liens, except
the lien of Seller which will be released upon receipt of payment. Lessee
warrants that no party has a security interest in the Equipment which will not
be released on or before payment by Lessor to Seller of the Equipment and that
the Equipment is and shall at all times remain personal property regardless of
how it may be affixed to any real property. (g) Litigation. There is no action,
suit, investigation or proceeding by or before any court, arbitrator, agency or
governmental authority pending or threatened against or affecting Lessee: (i)
which involves the Equipment or the transactions contemplated by this Lease and
any Schedule hereto; or (ii) which, if adversely determined, could have a
material adverse effect on the financial condition, business or operation of
Lessee.
12. Events of Default. An event of default ("Event of Default") shall occur
hereunder if Lessee or any Obligor ("Obligor" shall include any guarantor or
surety of any obligations of Lessee to Lessor under this Lease and any Schedule
hereto): (i) fails to pay any installment of rent or other payment required
hereunder within five (5) days after its due date; or (ii) attempts to or does
remove from the Premises (except a relocation with Lessor's consent as provided
in Section 5), sell, transfer, encumber, part with possession of, or sublet any
item of the Equipment; or (iii) shall suffer or have suffered, in the reasonable
judgment of Lessor, a material adverse change in its financial condition since
the date of the last financial statements submitted to Lessor, and as a result
thereof Lessor in good xxxxx xxxxx itself to be insecure; or (iv) breaches or
shall have breached any representation or warranty made or given by Lessee or
Obligor in this Lease or in any other document furnished to Lessor in connection
herewith, or any such representation or warranty shall be untrue or, by reason
of failure to state a material fact or otherwise, shall be misleading or any of
the statements or other documents or information submitted at any time
heretofore or hereafter by Lessee or Obligor to Lessor shall be untrue or, by
reason of failure to state a material fact or otherwise, shall be misleading or
(v) fails to perform or observe any other covenant, condition or agreement to be
performed or observed by it hereunder, and such failure or breach shall continue
unremedied for a period of ten days after the date on which notice thereof shall
be given by Lessor to Lessee (unless such remedial action cannot be completed
within such ten day period but Lessee has in good faith commenced to remedy such
breach or failure and such remedy is in fact achieved within a time period
agreed to by Lessor); or (vi) shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver, or a trustee or receiver shall be appointed for a
substantial part of its property without its consent, or bankruptcy or
reorganization or insolvency proceeding shall be instituted by or against Lessee
or Obligor and Lessee fails to continue to pay all rentals becoming due
hereunder during the pendency of such proceedings and fails to assume this Lease
within sixty (60) days after the commencement of such proceedings; or (vii)
conveys, sells, transfers or assigns substantially all of Lessee's or Obligor's
assets or ceases doing business as a going concern, or, if a corporation, ceases
to be in good standing or files a statement of intent to dissolve, or abandons
any or all of the Equipment; or (viii) shall be in breach of or default under
any lease or other agreement at any time executed with Lessor or any other
lessor or with any lender to Lessee or Obligor such that Lessee's obligations
thereunder have been or are being accelerated.
5
13. Remedies. Upon the occurrence and during any continuance of an Event of
Default (the "Default Date") set forth in Section 12, Lessor may, in its sole
and absolute discretion, do any one or more of the following: (a) upon notice to
Lessee cancel all or any portion of this Lease or any Schedules executed
pursuant thereto; (b) enter Lessee's Premises and without removal of the
Equipment, render the Equipment unusable or, require Lessee to assemble the
Equipment and make it available to Lessor at a place designated by Lessor,
and/or dispose of the Equipment by sale or otherwise (all of which
determinations may be made by Lessor in its sole and absolute discretion); (c)
declare immediately due and payable all sums due and to become due hereunder for
the full term of the Lease (including any renewal or purchase obligations which
Lessee has contracted to pay); (d) with or without canceling this Lease, recover
from Lessee damages, in an amount equal to the sum of: (i) all unpaid rent and
other amounts that became due and payable on, or prior to, the Default Date,
(ii) the present value of all future rentals and other amounts described in the
Lease and not included in (i) above discounted to the Default Date at a rate
equal to the discount rate of the Federal Reserve Bank of Chicago as of the
Commencement Date of the Lease with respect to each Schedule (which discount
rate, Lessee agrees is a commercially reasonable rate which takes into account
the facts and circumstances at the time such Schedule commenced), (iii) all
commercially reasonable costs and expenses incurred by Lessor in enforcing
Lessor's rights under this Lease, or defending against any claims or defenses
asserted by or through Lessee, including but not limited to, costs of
repossession, recovery, storage, repair, sale, re-lease and reasonable
attorneys' fees, (iv) the estimated residual value of the Equipment as of the
expiration of the Lease, (v) any indemnity amount payable to Lessor hereunder;
and (vi) interest on all of the foregoing from the Default Date until the date
payment is received by Lessor at 2% per month or the highest rate permitted by
law, whichever is less; (e) exercise any other right or remedy which may be
available to it under the Uniform Commercial Code or any other applicable law.
If Lessor elects to dispose of any Equipment recovered from the possession of
Lessee after an Event of Default, Lessor shall dispose of such Equipment in a
commercially reasonable manner. Lessor reserves the right, in its sole and
absolute discretion, to control the timing and negotiate the terms of any
re-leasing or re-sale of any or all of the Equipment at a public auction or in a
private sale, at such time, on such terms and with such notice as Lessor shall
in its sole and absolute discretion deem commercially reasonable. In such event,
without any duty on Lessor's part to effect any such re-lease or sale of the
Equipment, Lessor will credit the present value of any proceeds from such sale
or re-lease actually received and retainable by it (net of any and all costs or
expenses) discounted from the date of Lessor's receipt thereof to the Default
Date at 2 1/2% in excess of the Prime Rate (or its equivalent) per annum in
effect at the First National Bank of Chicago on the date of such payment to the
amounts due to Lessor from Lessee under the provisions of (c), (d) and/or (e)
above. A cancellation of this Lease shall occur only upon notice by Lessor and
only as to such items of Equipment as Lessor specifically elects to cancel and
this Lease shall continue in full force and effect as to the remaining items of
Equipment, if any. If this Lease and/or any Schedule is deemed at any time to be
one intended as security, Lessee agrees that the Equipment shall secure, in
addition to the indebtedness set forth herein, any other indebtedness at any
time owing by Lessee to Lessor. No remedy referred to in this Section is
intended to be exclusive, but shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Lessor at law or in equity.
No express or implied waiver by Lessor of any default shall constitute a waiver
of any other default by Lessee or a waiver of any of Lessor's rights.
14. Assignment by Lessor. LESSOR MAY (WITH OR WITHOUT NOTICE TO LESSEE) SELL,
TRANSFER, ASSIGN OR GRANT A SECURITY INTEREST IN ALL OR ANY PART OF ITS INTEREST
IN THIS LEASE, ANY SCHEDULE, ANY ITEMS OF EQUIPMENT OR ANY AMOUNT PAYABLE
HEREUNDER. In such an event, Lessee shall, upon receipt of written notice,
acknowledge any such sale, transfer, assignment or grant of a security interest
and shall pay its obligations hereunder or amounts equal thereto to the
respective transferee, assignee or secured party in the manner specified in any
instructions received from Lessor. Notwithstanding any such sale, transfer,
assignment or grant of a security interest by Lessor and so long as no Event of
Default shall have occurred hereunder, neither Lessor nor any transferee,
assignee or secured party shall interfere with Lessee's right of use or quiet
enjoyment of the Equipment. In the event of such sale, transfer, assignment or
grant of a security interest in all or any part of this Lease and any Schedule
hereto, or in the Equipment or in sums payable hereunder, as aforesaid, Lessee
agrees to execute such documents as may be reasonably necessary to evidence,
secure and complete such sale, transfer, assignment or grant of a security
interest and to perfect the transferee's, assignee's or secured party's interest
therein (with any filing fees at Lessor's expense) and Lessee further agrees
that the rights of any transferee, assignee or secured party shall not be
subject to any defense, set-off or counterclaim that Lessee may have against
Lessor or any other party, including the Seller, which defenses, set-offs and
counterclaims shall be asserted only against such party, and that any such
transferee, assignee or secured party shall have all of Lessor's rights
hereunder, but shall assume none of Lessor's obligations hereunder. Lessee
acknowledges that any assignment or transfer by Lessor shall not materially
change Lessee's duties or obligations under this Lease and shall not materially
increase the burdens and risks imposed on Lessee.
15. Miscellaneous. All notices and demands relating hereto shall be in writing
and sent by either any nationally recognized overnight air courier or by
certified mail, return receipt requested, to Lessor or Lessee at their
respective addresses above or shown in the Schedule, or at any other address
designated by notice served in accordance herewith. Notice by overnight air
courier shall be effective one (1) business day after delivery. Notice by
certified mail shall become effective five (5) business days after deposit in
the United States mail, with proper postage prepaid, addressed to the party
intended to be served at the address designated herein. All obligations of
Lessee shall survive the termination or expiration of this Lease and any
Schedule hereto. If more than one Lessee is named in this Lease, the liability
of each hereunder to Lessor shall be joint and several. Any general partner
executing this Lease on behalf of the Lessee agrees that its liability to Lessor
hereunder shall be absolute, primary and direct, and that Lessor shall not be
required to pursue any right or remedy it may have against the Lessee under the
Lease (and shall not be required to first commence any action or obtain any
judgment against Lessee) before enforcing this liability against such general
partner, and that such general partner will, upon demand, pay Lessor the amount
of all sums then due under the Lease, the payment of which, by Lessee, is in
default under the Lease, and will, upon demand, perform all other obligations of
Lessee, the performance of which, by Lessee, is in default under the Lease.
Lessee shall, upon request of Lessor from time to time, perform all acts and
execute and deliver to Lessor all documents which Lessor deems reasonably
necessary to implement this Lease and any Schedule hereto, including, without
limitation, certificates addressed to such persons as Lessor may direct stating
that this Lease and the Schedule hereto is in full force and effect, that there
are no amendments or modifications thereto, that Lessor is not in default hereof
or breach hereunder, setting forth the date to which rentals due hereunder have
been paid, and stating such other matters as Lessor may reasonably request. This
Lease and any Schedule hereto shall be binding upon the parties and their
successors, legal representatives and assigns. Lessee's successors and assigns
shall include, without limitation, a receiver, debtor-in-possession, or trustee
of or for Lessee. If any person, firm, corporation or other entity shall
guarantee this Lease and the performance by Lessee of its obligations hereunder,
all of the terms and provisions hereof shall be duly applicable to such Obligor.
16. Conditions Precedent to Leasing. (i) Lessor shall have no obligation to
purchase any Equipment for lease to Lessee under any Schedule hereunder unless
or until acceptable documentation, the form of which will be provided by Lessor
has been executed by Lessee and delivered to Lessor; (ii) Lessor has confirmed
with Lessee that no material adverse change in Lessee's financial condition and
business prospects prior to each purchase of Equipment.
17. Invalidity. In the event that any provision of this Lease and any Schedule
hereto shall be unenforceable in whole or in part, such provision shall be
limited to the extent necessary to render the same valid, or shall be excised
from this Lease or any Schedule hereto, as circumstances may require, and this
Lease and the applicable Schedule shall be construed as if said provision had
been incorporated herein as so limited, or as if said provision had not been
included herein, as the case may be without invalidating any of the remaining
provisions hereof.
6
18. End of Term Options. Provided that the Lease has not been terminated and
that no Event of Default or event which, with notice or lapse of time or both,
would become an Event of Default shall have occurred and shall be continuing,
Lessee shall at the end of the Initial Lease Term of the first Schedule be
entitled to elect and to exercise one of the options, if any, indicated in the
applicable Schedule which election shall be binding on Lessee with respect to
all Schedules entered into between Lessor and Lessee under this Lease. The
foregoing options granted hereunder shall be exercised by written notice
delivered to Lessor by Lessee not more than 180 days and not less than ninety
(90) days prior to the expiration of the Initial Lease Term of the Equipment,
subject to Schedule No. 001.
19. Progress Payments. If requested by Lessee, progress payments will be made
for any amount over the Minimum Invoice Amount specified on each Progress
Payment Authorization per invoice to vendors in accordance with Lessor's
standard procedures. Unless otherwise agreed by Lessor the minimum progress
payment amount shall not be less than the Minimum Progress Payment Amount
specified on the Progress Payment Authorization. Interim rent, on progress
payments, shall be payable from the date progress payments are made by Lessor to
the Commencement Date of the corresponding Schedule. Interim rent shall be
calculated at the daily equivalent of the Monthly Lease Rate Factor. Lessee
shall deliver to Lessor a Progress Payment Authorization, not less than 30 days
prior to the due date thereof and in a form acceptable to Lessor, to make a
progress payment and, provided on such due date no Events of Default have
occurred and be continuing hereunder or under the Lease, Lessor shall make the
progress payment set forth to the manufacturer(s) or supplier(s) as set forth in
such authorization.
20. Law. This Lease and any Schedule hereto shall be binding only when accepted
by Lessor at its corporate headquarters in Illinois and shall in all respects be
governed and construed, and the rights and the liabilities of the parties hereto
determined, except for local filing requirements, in accordance with the laws of
the State of Illinois. LESSEE WAIVES TRIAL BY JURY AND SUBMITS TO THE
JURISDICTION OF THE FEDERAL DISTRICT COURT OR ANY STATE COURT LOCATED WITHIN
XXXX COUNTY IN THE STATE OF ILLINOIS AND WAIVES ANY RIGHT TO ASSERT THAT ANY
ACTION INSTITUTED BY LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD
BE TRANSFERRED TO A MORE CONVENIENT FORUM.
Lessee's Initials _________
Lessee's Initials _________
Lessee's Initials _________
21. Amendments. This Lease and any Schedule hereto contain the entire agreement
between the parties with respect to the Equipment, this Lease and any Schedule
hereto and there is no agreement or understanding oral or written, which is not
set forth herein. This Lease and any Schedule hereto may not be altered,
modified, terminated or discharged except by a writing signed by the party
against whom such alteration, modification, termination or discharge is sought.
Lessee's Initials _________
Lessee's Initials _________
Lessee's Initials _________
22. Lessee's Waivers. To the extent permitted by applicable law, Lessee hereby
waives any and all rights and remedies conferred upon a Lessee by Article 2A of
the Uniform Commercial Code as adopted in any jurisdiction, including but not
limited to Lessee's rights to: (i) cancel this Lease; (ii) repudiate this Lease;
(iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover
damages from Lessor for any breaches of warranty or for any other reason related
to the Equipment; (vi) claim a security interest in the Equipment in Lessee's
possession or control for any reason (vii) deduct all or any part of any claimed
damages resulting from Lessor's default, if any, under this Lease; (viii) accept
partial delivery of the Equipment (ix) "cover" by making any purchase or lease
of or contract to purchase or lease Equipment in substitution for those due from
Lessor; (x) recover any general, special, incidental, or consequential damages
for any reason whatsoever; and (xi) specific performance, replevin, detinue ,
sequestration, claim, and delivery of the like for any Equipment identified to
this Lease. To the extent permitted by applicable law (unless expressly
otherwise agreed hereunder), Lessee also hereby waives any rights now or
hereafter conferred by statute or otherwise which may require Lessor to sell,
lease or otherwise use any Equipment in mitigation of Lessor's damages as set
forth in Paragraph 13 or which may otherwise limit or modify any of Lessor's
rights or remedies under Paragraph 13. Any action by Lessee against Lessor for
any default by Lessor under this Lease, including breach of warranty or
indemnity, shall be commenced within one (1) year after any such cause of action
accrues.
Lessee's Initials _________
Lessee's Initials _________
Lessee's Initials _________
23. Counterparts. This Lease may be executed in any number of counterparts, each
of which shall be deemed an original. Each Schedule shall be executed in three
(3) serially numbered counterparts each of which shall be deemed an original but
only counterpart number 1 shall constitute "chattel paper" or "collateral"
within the meaning of the Uniform Commercial Code in any jurisdiction.
24. Addendum. ("X" if applicable) [__] See Addendum (s) attached hereto and made
a part hereof.
7
The person executing this Lease for and on behalf of Lessee warrants and
represents, which warranty and representation shall survive the expiration or
termination of this Lease, that this Lease and the execution hereof has been
duly and validly authorized by Lessee, constitutes a valid and binding
obligation of Lessee and that he has authority to make such execution for and on
behalf of Lessee.
IN WITNESS WHEREOF, this Lease has been executed by Lessee this
------------
day of 1998.
-----------------------------------
ACCEPTED AT CHICAGO, ILLINOIS
PERFORMANCE PHARMACY SYSTEMS, INC. LINC CAPITAL, INC.
Lessee Lessor
By: By:
--------------------------------- -----------------------------------
Title: Title:
------------------------------- -------------------------------
Date: Date:
------------------------------- -------------------------------
MEDICATION MANAGEMENT SYSTEMS, INC.
Lessee
By: _______________________________________________
Title: _____________________________________________
Date: _____________________________________________
LIFESERV TECHNOLOGIES, INC.
Lessee
By: _______________________________________________
Title: _____________________________________________
Date: _____________________________________________
1
LINC CAPITAL, INC. LINC Capital, Inc.
EQUIPMENT SCHEDULE 000 Xxxx Xxxxxx Xxxxx
SCHEDULE NO. 001 Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
-------------------------------------------------------------------------------
Equipment Location:CONNECTICUT VALLEY HOSPITAL, Silver Street,
Middletown, CT 06457 Master Lease Agreement No.: 7193 Acceptance Date:
March ___, 1998
-------------------------------------------------------------------------------
LINC Capital, Inc. (Lessor) hereby agrees to lease to the Lessee named below,
and Lessee hereby agrees to lease and rent from Lessor the Equipment identified
below, for the term and at the rental payments specified herein, all subject to
the terms and conditions set forth herein and on the reverse side hereof and in
the referenced Master Lease Agreement except as the same may be varied by the
terms of this Schedule.
--------------------------------------------------------------------------------
Equipment Description: The Equipment will consist of Medication Dispensing and
Pharmacy Management ACTUAL Cost of Equipment: $ Systems, as more fully described
on Schedule "A" attached hereto and made a part hereof. 401,162.39
--------------------------------------------------------------------------------
TERM AND RENTAL:
--------------------------------------------------------------------------------
Commencement Date: April 1, 1998 Initial Payment: $23,256.19
Initial Lease Term: 42 months
--------------------------------------------------------------------------------
Rental Payments*(plus, if applicable all sales, use or other taxes imposed upon
rental payments) shall be made monthly in advance as follows: $11,628.09 per
rental payment beginning on the Commencement Date until forty-two (42) rental
payments have been paid in full followed by exercise by Lessee of one of the two
options listed below in End of Term Options.
*Rental Payments are based on the Lease Rate Factor and are subject to
adjustment as described in Paragraph A on the REVERSE SIDE HEREOF. If
applicable, all freight, sales and use taxes, insurance and maintenance expense
paid by Lessor shall be paid by Lessee in accordance with the terms of the Lease
and this Schedule.
PROPERTY TAXES: Lessor shall report all Equipment for personal property or
advalorem tax return purposes as may be required under applicable law, and all
resulting taxes shall be paid by Lessee.
END OF TERM OPTIONS: At the end of the initial lease term the following options
are granted to Lessee in accordance with the terms described on the reverse side
hereof:
Option to Renew the Initial Lease Term at a Rental equal to the 1.25% of the
Equipment Cost specified above for a renewal period of eighteen (18) months.
Option to Purchase not less than all of the Equipment at the end of the Initial
Lease Term (as described above including any extension thereof) at a Purchase
Option Price equal to the then FAIR MARKET VALUE of the Equipment.
SPECIAL TERMS AND CONDITIONS:
1. Additional Collateral In order to secure the obligations of Lessee to
Lessor under this Equipment Schedule, Lessee shall enter into a collateral
assignment in form and substance acceptable to Lessor covering the rights
of Lessee to receive payment of monies arising out of its Contract with the
State of Connecticut, Department of Administrative Services, Procurement
Services, on behalf of Connecticut Valley Hospital.
2
2. Maintenance of Equipment. Pursuant to Section 5 of the Master Lease
Agreement requiring the Lessee to keep the Equipment under a maintenance
contract during the term of the Lease, Lessee agrees that it has entered
into and will maintain during the term of the Lease, a maintenance contract
with National, MD, a subsidiary of GE Capital Services or an alternative
comparable maintenance provider, only upon Lessee's prior written consent.
3. Guaranty. This Equipment Schedule is contingent on Lessee furnishing to
Lessor a Guaranty from its parent, Medical Technology Systems, Inc., in
form and substance acceptable to Lessor.
ADDITIONAL TERMS AND CONDITIONS TO THIS EQUIPMENT SCHEDULE ARE ON THE REVERSE
SIDE HEREOF.
The person executing this Lease for and on behalf of Lessee warrants and
represents, which warranty and representation shall survive the expiration or
termination of this Lease, that this Lease and the execution hereof has been
duly and validly authorized by Lessee, constitutes a valid and binding
obligation of Lessee and that he has authority to make such execution for and on
behalf of Lessee.
--------------------------------------------------------------------------------
Co-Lessee: ACCEPTED AT CHICAGO, ILLINOIS BY LESSOR:
PERFORMANCE PHARMACY SYSTEMS, INC. LINC CAPITAL, INC
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
Co-Lessee: Co-Lessee:
MEDICATION MANAGEMENT SYSTEMS, INC. LIFESERV TECHNOLOGIES, INC.
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
3
ADDITIONAL TERMS AND CONDITIONS TO EQUIPMENT SCHEDULE
A. Adjustments to Rental Payments. Rental Payments are based on a Lease Rate
Factor of 2.8986% subject to adjustment as described below. The Monthly Lease
Rate Factor will be indexed to the yield for U.S. Treasury Notes maturing
closest to the date 3.5 years from the Commencement Date of this Equipment
Schedule (the "Index Instrument"). The yield of the Index Instrument is
currently 5.3% for the 6-5/8% Treasury Notes maturing July, 2001, as reported in
the Wall Street Journal dated January 14, 1997. The Monthly Lease Rate Factor
shall be adjusted by Lessor to provide for any increase in the yield of the
Index Instrument on the Commencement Date of this Equipment Schedule. At the
Commencement Date of this Equipment Schedule, the Monthly Lease Rate Factor (as
adjusted) shall be fixed for the Initial Lease Term of this Equipment Schedule.
B. Estimated Cost of Equipment, Estimated Acceptance Date, Estimated
Commencement Date and Adjustments in Rental. As used herein, "actual cost" means
the total cost to Lessor of purchasing and delivering the Equipment to Lessee
including, subject to Lessor's consent, taxes, transportation charges and other
charges, which may be applicable. The amount of each payment set forth in the
Schedule are based on an estimate of actual cost, which estimate may, but need
not, be set forth in the Schedule, and such amounts shall be adjusted
proportionately (increased or decreased) if the actual cost of the Equipment
differs from said estimate. Lessee hereby authorizes Lessor to adjust, if
necessary, the amounts set forth in the Schedule to reflect actual cost when the
actual cost is known and to add to the amount of each rental payment any sales,
use or leasing tax that may be imposed on or measured by the rental payments.
Lessor will inform Lessee of the adjustments in rent necessary to reflect actual
cost. If the Commencement Date and Acceptance Date are "estimated" Lessee agrees
to execute a replacement Equipment Schedule setting forth the actual
Commencement Date and Acceptance Date as soon as those dates become final.
C. Initial Payment and/or Security Deposit. Lessee shall make a security deposit
and/or initial payment as indicated in this Schedule upon execution of this
Schedule and lessor shall be authorized to apply funds held by Lessor and
otherwise payable to Lessee for such purposes. Any initial payments made by
Lessee shall be deemed to have been earned by Lessor immediately upon receipt
thereof and shall be deemed to have been applied immediately to satisfy Lessee's
obligations to make such payments hereunder. Initial Payments made by the Lessee
shall not be refundable under any circumstances. Any security deposit paid by
Lessee shall not be refundable to Lessee in the event that the term of this
Lease does not commence unless on account of Lessee's rightful refusal to accept
delivery of the Equipment and in that event such sums shall be deemed to have
been earned by Lessor immediately upon the receipt hereof. At Lessor's option
any security deposit made hereunder may be applied by Lessor to cure any default
of Lessee under the lease, in which event Lessee shall promptly restore the
security deposit to their full amounts as set forth in this Schedule. If all the
terms and conditions herein to be performed by Lessee are fully performed and
all of Lessee's obligations hereunder are fully complied with, that portion of
any security deposit not so applied shall be refunded to Lessee at the
termination or expiration of this Lease.
D. Purchase Option and/or Option for Renewal of Lease Term. [This section
applies only if this schedule indicates that an option to purchase the Equipment
or an option to renew the Lease Term is applicable.] Provided that the Lease,
this Schedule, or any option granted hereunder has not been terminated by Lessor
and that no Event of Default shall have occurred and shall be continuing, Lessor
agrees to grant Lessee an option to purchase the Equipment and/or renew the
Lease Term. See Section 18 of the Master Lease Agreement for additional terms
and conditions applicable to End of Term Options.
If an Event of Default has not occurred under the Lease, Lessee, by giving
Lessor not less than ninety (90) days written notice by registered or certified
mail prior to the expiration date of this Schedule, may, elect to (1) if
applicable, purchase not less than all of the Equipment then leased hereunder,
at the times and in the manner hereinafter specified, for an amount equal to the
Purchase Option Price stated on the face of this Schedule plus any accrued and
unpaid rental or other amounts due under the Lease and plus any applicable sales
tax with respect thereto or (2) if applicable, renew the lease term of not less
than all of the Equipment then leased hereunder for the period(s) and for the
renewal rental(s) (payable in advance) stated on the face of this Schedule. If
Lessee elects to exercise said purchase option, same shall be exercised on the
day immediately following the date of expiration of the minimum lease term, and
by the delivery at such time by Lessee to Lessor of payment, in cash or by
certified check, of the amount of the Purchase Price for the Equipment as
hereinbefore set forth.
Upon payment of said purchase price for the Equipment, Lessor shall, upon
request of Lessee, execute and deliver to Lessee a Xxxx of Sale for the
Equipment, on an "AS IS," "WHERE IS," "WITH ALL FAULTS" basis, without
representations or warranties of any kind whatsoever. If Lessee exercises its
purchase option and fails to make such payment, Lessee shall pay as additional
rent for each month or fraction thereof after the end of the Initial Lease Term,
an amount equal to the highest monthly payment set forth herein. If Lessee does
not elect to exercise either of said options; Lessee shall return each item of
equipment to Lessor, pursuant to and under the terms and conditions of Section 3
of the Lease. If Lessee fails to notify Lessor as provided herein or if Lessor
and Lessee cannot agree on the purchase or renewal terms, then the term of this
Lease shall be automatically extended at the highest rental provided in this
Schedule, for successive three month periods unless and until terminated by
either party giving to the other not less than three months prior written notice
by registered or certified mail of its intention to terminate at the end of the
next succeeding extension period, and upon termination of this Schedule, Lessee
shall return all of the Equipment as provided in the Lease.
This lease (and Equipment Schedule and Master Lease the terms of which it
incorporates) has been assigned, is subject to the security interests of, and is
held in trust for the benefit of Fleet Bank NA, as Agent, pursuant to the terms
and conditions of a security agreement dated September 28, 1994 and related
documents (as the same may be amended).
1
LINC CAPITAL, INC. LINC Capital, Inc.
EQUIPMENT SCHEDULE 000 Xxxx Xxxxxx Xxxxx
SCHEDULE NO. 001 Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
-------------------------------------------------------------------------------
Equipment Location:CONNECTICUT VALLEY HOSPITAL, Silver Street,
Middletown, CT 06457 Master Lease Agreement No.: 7193 Acceptance Date:
March ___, 1998
-------------------------------------------------------------------------------
LINC Capital, Inc. (Lessor) hereby agrees to lease to the Lessee named below,
and Lessee hereby agrees to lease and rent from Lessor the Equipment identified
below, for the term and at the rental payments specified herein, all subject to
the terms and conditions set forth herein and on the reverse side hereof and in
the referenced Master Lease Agreement except as the same may be varied by the
terms of this Schedule.
--------------------------------------------------------------------------------
Equipment Description: The Equipment will consist of Medication Dispensing and
Pharmacy Management ACTUAL Cost of Equipment: Systems, as more fully described
on Schedule "A" attached hereto and made a part hereof. $ 156,007.60
--------------------------------------------------------------------------------
TERM AND RENTAL:
--------------------------------------------------------------------------------
Commencement Date: April 1, 1998 Initial Payment: $9,044.07
Initial Lease Term: 42 months
--------------------------------------------------------------------------------
ACTUAL Rental Payments*(plus, if applicable all sales, use or other taxes
imposed upon rental payments) shall be made monthly in advance as follows:
$4,522.04 per rental payment beginning on the Commencement Date until forty-two
(42) rental payments have been paid in full followed by exercise by Lessee of
one of the two options listed below in End of Term Options.
*Rental Payments are based on the Lease Rate Factor and are subject to
adjustment as described in Paragraph A on the REVERSE SIDE HEREOF. If
applicable, all freight, sales and use taxes, insurance and maintenance expense
paid by Lessor shall be paid by Lessee in accordance with the terms of the Lease
and this Schedule.
PROPERTY TAXES: Lessor shall report all Equipment for personal property or
advalorem tax return purposes as may be required under applicable law, and all
resulting taxes shall be paid by Lessee.
END OF TERM OPTIONS: At the end of the initial lease term the following options
are granted to Lessee in accordance with the terms described on the reverse side
hereof:
Option to Renew the Initial Lease Term at a Rental equal to the 1.25% of the
Equipment Cost specified above for a renewal period of eighteen (18) months.
Option to Purchase not less than all of the Equipment at the end of the Initial
Lease Term (as described above including any extension thereof) at a Purchase
Option Price equal to the then FAIR MARKET VALUE of the Equipment.
SPECIAL TERMS AND CONDITIONS:
1. Additional Collateral In order to secure the obligations of Lessee to
Lessor under this Equipment Schedule, Lessee shall enter into a collateral
assignment in form and substance acceptable to Lessor covering the rights
of Lessee to receive payment of monies arising out of its Contract with the
State of Connecticut, Department of Administrative Services, Procurement
Services, on behalf of Connecticut Valley Hospital.
2
2. Maintenance of Equipment. Pursuant to Section 5 of the Master Lease
Agreement requiring the Lessee to keep the Equipment under a maintenance
contract during the term of the Lease, Lessee agrees that it has entered
into and will maintain during the term of the Lease, a maintenance contract
with National, MD, a subsidiary of GE Capital Services or an alternative
comparable maintenance provider, only upon Lessee's prior written consent.
3. Guaranty. This Equipment Schedule is contingent on Lessee furnishing to
Lessor a Guaranty from its parent, Medical Technology Systems, Inc., in
form and substance acceptable to Lessor.
ADDITIONAL TERMS AND CONDITIONS TO THIS EQUIPMENT SCHEDULE ARE ON THE REVERSE
SIDE HEREOF.
The person executing this Lease for and on behalf of Lessee warrants and
represents, which warranty and representation shall survive the expiration or
termination of this Lease, that this Lease and the execution hereof has been
duly and validly authorized by Lessee, constitutes a valid and binding
obligation of Lessee and that he has authority to make such execution for and on
behalf of Lessee.
--------------------------------------------------------------------------------
Co-Lessee: ACCEPTED AT CHICAGO, ILLINOIS BY LESSOR:
PERFORMANCE PHARMACY SYSTEMS, INC. LINC CAPITAL, INC
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
Co-Lessee: Co-Lessee:
MEDICATION MANAGEMENT SYSTEMS, INC. LIFESERV TECHNOLOGIES, INC.
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
3
ADDITIONAL TERMS AND CONDITIONS TO EQUIPMENT SCHEDULE
A. Adjustments to Rental Payments. Rental Payments are based on a Lease Rate
Factor of 2.8986% subject to adjustment as described below. The Monthly Lease
Rate Factor will be indexed to the yield for U.S. Treasury Notes maturing
closest to the date 3.5 years from the Commencement Date of this Equipment
Schedule (the "Index Instrument"). The yield of the Index Instrument is
currently 5.3% for the 6-5/8% Treasury Notes maturing July, 2001, as reported in
the Wall Street Journal dated January 14, 1997. The Monthly Lease Rate Factor
shall be adjusted by Lessor to provide for any increase in the yield of the
Index Instrument on the Commencement Date of this Equipment Schedule. At the
Commencement Date of this Equipment Schedule, the Monthly Lease Rate Factor (as
adjusted) shall be fixed for the Initial Lease Term of this Equipment Schedule.
B. Estimated Cost of Equipment, Estimated Acceptance Date, Estimated
Commencement Date and Adjustments in Rental. As used herein, "actual cost" means
the total cost to Lessor of purchasing and delivering the Equipment to Lessee
including, subject to Lessor's consent, taxes, transportation charges and other
charges, which may be applicable. The amount of each payment set forth in the
Schedule are based on an estimate of actual cost, which estimate may, but need
not, be set forth in the Schedule, and such amounts shall be adjusted
proportionately (increased or decreased) if the actual cost of the Equipment
differs from said estimate. Lessee hereby authorizes Lessor to adjust, if
necessary, the amounts set forth in the Schedule to reflect actual cost when the
actual cost is known and to add to the amount of each rental payment any sales,
use or leasing tax that may be imposed on or measured by the rental payments.
Lessor will inform Lessee of the adjustments in rent necessary to reflect actual
cost. If the Commencement Date and Acceptance Date are "estimated" Lessee agrees
to execute a replacement Equipment Schedule setting forth the actual
Commencement Date and Acceptance Date as soon as those dates become final.
C. Initial Payment and/or Security Deposit. Lessee shall make a security deposit
and/or initial payment as indicated in this Schedule upon execution of this
Schedule and lessor shall be authorized to apply funds held by Lessor and
otherwise payable to Lessee for such purposes. Any initial payments made by
Lessee shall be deemed to have been earned by Lessor immediately upon receipt
thereof and shall be deemed to have been applied immediately to satisfy Lessee's
obligations to make such payments hereunder. Initial Payments made by the Lessee
shall not be refundable under any circumstances. Any security deposit paid by
Lessee shall not be refundable to Lessee in the event that the term of this
Lease does not commence unless on account of Lessee's rightful refusal to accept
delivery of the Equipment and in that event such sums shall be deemed to have
been earned by Lessor immediately upon the receipt hereof. At Lessor's option
any security deposit made hereunder may be applied by Lessor to cure any default
of Lessee under the lease, in which event Lessee shall promptly restore the
security deposit to their full amounts as set forth in this Schedule. If all the
terms and conditions herein to be performed by Lessee are fully performed and
all of Lessee's obligations hereunder are fully complied with, that portion of
any security deposit not so applied shall be refunded to Lessee at the
termination or expiration of this Lease.
D. Purchase Option and/or Option for Renewal of Lease Term. [This section
applies only if this schedule indicates that an option to purchase the Equipment
or an option to renew the Lease Term is applicable.] Provided that the Lease,
this Schedule, or any option granted hereunder has not been terminated by Lessor
and that no Event of Default shall have occurred and shall be continuing, Lessor
agrees to grant Lessee an option to purchase the Equipment and/or renew the
Lease Term. See Section 18 of the Master Lease Agreement for additional terms
and conditions applicable to End of Term Options.
If an Event of Default has not occurred under the Lease, Lessee, by giving
Lessor not less than ninety (90) days written notice by registered or certified
mail prior to the expiration date of this Schedule, may, elect to (1) if
applicable, purchase not less than all of the Equipment then leased hereunder,
at the times and in the manner hereinafter specified, for an amount equal to the
Purchase Option Price stated on the face of this Schedule plus any accrued and
unpaid rental or other amounts due under the Lease and plus any applicable sales
tax with respect thereto or (2) if applicable, renew the lease term of not less
than all of the Equipment then leased hereunder for the period(s) and for the
renewal rental(s) (payable in advance) stated on the face of this Schedule. If
Lessee elects to exercise said purchase option, same shall be exercised on the
day immediately following the date of expiration of the minimum lease term, and
by the delivery at such time by Lessee to Lessor of payment, in cash or by
certified check, of the amount of the Purchase Price for the Equipment as
hereinbefore set forth.
Upon payment of said purchase price for the Equipment, Lessor shall, upon
request of Lessee, execute and deliver to Lessee a Xxxx of Sale for the
Equipment, on an "AS IS," "WHERE IS," "WITH ALL FAULTS" basis, without
representations or warranties of any kind whatsoever. If Lessee exercises its
purchase option and fails to make such payment, Lessee shall pay as additional
rent for each month or fraction thereof after the end of the Initial Lease Term,
an amount equal to the highest monthly payment set forth herein. If Lessee does
not elect to exercise either of said options; Lessee shall return each item of
equipment to Lessor, pursuant to and under the terms and conditions of Section 3
of the Lease. If Lessee fails to notify Lessor as provided herein or if Lessor
and Lessee cannot agree on the purchase or renewal terms, then the term of this
Lease shall be automatically extended at the highest rental provided in this
Schedule, for successive three month periods unless and until terminated by
either party giving to the other not less than three months prior written notice
by registered or certified mail of its intention to terminate at the end of the
next succeeding extension period, and upon termination of this Schedule, Lessee
shall return all of the Equipment as provided in the Lease.
This lease (and Equipment Schedule and Master Lease the terms of which it
incorporates) has been assigned, is subject to the security interests of, and is
held in trust for the benefit of Fleet Bank NA, as Agent, pursuant to the terms
and conditions of a security agreement dated September 28, 1994 and related
documents (as the same may be amended).
1
LINC CAPITAL, INC. LINC Capital, Inc.
EQUIPMENT SCHEDULE 000 Xxxx Xxxxxx Xxxxx
SCHEDULE NO. 001 Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
-------------------------------------------------------------------------------
Equipment Location:CONNECTICUT VALLEY HOSPITAL, Silver Street,
Middletown, CT 06457 Master Lease Agreement No.: 7193 Acceptance Date:
March ___, 1998
-------------------------------------------------------------------------------
LINC Capital, Inc. (Lessor) hereby agrees to lease to the Lessee named below,
and Lessee hereby agrees to lease and rent from Lessor the Equipment identified
below, for the term and at the rental payments specified herein, all subject to
the terms and conditions set forth herein and on the reverse side hereof and in
the referenced Master Lease Agreement except as the same may be varied by the
terms of this Schedule.
--------------------------------------------------------------------------------
Equipment Description: The Equipment will consist of Medication Dispensing and
Pharmacy Management ACTUAL Cost of Equipment: $ Systems, as more fully described
on Schedule "A" attached hereto and made a part hereof. 133,715.37
--------------------------------------------------------------------------------
TERM AND RENTAL:
--------------------------------------------------------------------------------
Commencement Date: April 1, 1998 Initial Payment: $7,751.74
Initial Lease Term: 42 months
--------------------------------------------------------------------------------
ACTUAL Rental Payments*(plus, if applicable all sales, use or other taxes
imposed upon rental payments) shall be made monthly in advance as follows:
$3,875.87 per rental payment beginning on the Commencement Date until forty-two
(42) rental payments have been paid in full followed by exercise by Lessee of
one of the two options listed below in End of Term Options.
*Rental Payments are based on the Lease Rate Factor and are subject to
adjustment as described in Paragraph A on the REVERSE SIDE HEREOF. If
applicable, all freight, sales and use taxes, insurance and maintenance expense
paid by Lessor shall be paid by Lessee in accordance with the terms of the Lease
and this Schedule.
PROPERTY TAXES: Lessor shall report all Equipment for personal property or
advalorem tax return purposes as may be required under applicable law, and all
resulting taxes shall be paid by Lessee.
END OF TERM OPTIONS: At the end of the initial lease term the following options
are granted to Lessee in accordance with the terms described on the reverse side
hereof:
Option to Renew the Initial Lease Term at a Rental equal to the 1.25% of the
Equipment Cost specified above for a renewal period of eighteen (18) months.
Option to Purchase not less than all of the Equipment at the end of the Initial
Lease Term (as described above including any extension thereof) at a Purchase
Option Price equal to the then FAIR MARKET VALUE of the Equipment.
2
SPECIAL TERMS AND CONDITIONS:
1. Additional Collateral In order to secure the obligations of Lessee to
Lessor under this Equipment Schedule, Lessee shall enter into a collateral
assignment in form and substance acceptable to Lessor covering the rights
of Lessee to receive payment of monies arising out of its Contract with the
State of Connecticut, Department of Administrative Services, Procurement
Services, on behalf of Connecticut Valley Hospital.
2. Maintenance of Equipment. Pursuant to Section 5 of the Master Lease
Agreement requiring the Lessee to keep the Equipment under a maintenance
contract during the term of the Lease, Lessee agrees that it has entered
into and will maintain during the term of the Lease, a maintenance contract
with National, MD, a subsidiary of GE Capital Services or an alternative
comparable maintenance provider, only upon Lessee's prior written consent.
3. Guaranty. This Equipment Schedule is contingent on Lessee furnishing to
Lessor a Guaranty from its parent, Medical Technology Systems, Inc., in
form and substance acceptable to Lessor.
ADDITIONAL TERMS AND CONDITIONS TO THIS EQUIPMENT SCHEDULE ARE ON THE REVERSE
SIDE HEREOF.
The person executing this Lease for and on behalf of Lessee warrants and
represents, which warranty and representation shall survive the expiration or
termination of this Lease, that this Lease and the execution hereof has been
duly and validly authorized by Lessee, constitutes a valid and binding
obligation of Lessee and that he has authority to make such execution for and on
behalf of Lessee.
--------------------------------------------------------------------------------
Co-Lessee: ACCEPTED AT CHICAGO, ILLINOIS BY LESSOR:
PERFORMANCE PHARMACY SYSTEMS, INC. LINC CAPITAL, INC
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
Co-Lessee: Co-Lessee:
MEDICATION MANAGEMENT SYSTEMS, INC. LIFESERV TECHNOLOGIES, INC.
By:________________________________ By:________________________________
Title:_____________________________ Title:_____________________________
Date:______________________________ Date: ____________________________
--------------------------------------------------------------------------------
3
ADDITIONAL TERMS AND CONDITIONS TO EQUIPMENT SCHEDULE
A. Adjustments to Rental Payments. Rental Payments are based on a Lease Rate
Factor of 2.8986% subject to adjustment as described below. The Monthly Lease
Rate Factor will be indexed to the yield for U.S. Treasury Notes maturing
closest to the date 3.5 years from the Commencement Date of this Equipment
Schedule (the "Index Instrument"). The yield of the Index Instrument is
currently 5.3% for the 6-5/8% Treasury Notes maturing July, 2001, as reported in
the Wall Street Journal dated January 14, 1997. The Monthly Lease Rate Factor
shall be adjusted by Lessor to provide for any increase in the yield of the
Index Instrument on the Commencement Date of this Equipment Schedule. At the
Commencement Date of this Equipment Schedule, the Monthly Lease Rate Factor (as
adjusted) shall be fixed for the Initial Lease Term of this Equipment Schedule.
B. Estimated Cost of Equipment, Estimated Acceptance Date, Estimated
Commencement Date and Adjustments in Rental. As used herein, "actual cost" means
the total cost to Lessor of purchasing and delivering the Equipment to Lessee
including, subject to Lessor's consent, taxes, transportation charges and other
charges, which may be applicable. The amount of each payment set forth in the
Schedule are based on an estimate of actual cost, which estimate may, but need
not, be set forth in the Schedule, and such amounts shall be adjusted
proportionately (increased or decreased) if the actual cost of the Equipment
differs from said estimate. Lessee hereby authorizes Lessor to adjust, if
necessary, the amounts set forth in the Schedule to reflect actual cost when the
actual cost is known and to add to the amount of each rental payment any sales,
use or leasing tax that may be imposed on or measured by the rental payments.
Lessor will inform Lessee of the adjustments in rent necessary to reflect actual
cost. If the Commencement Date and Acceptance Date are "estimated" Lessee agrees
to execute a replacement Equipment Schedule setting forth the actual
Commencement Date and Acceptance Date as soon as those dates become final.
C. Initial Payment and/or Security Deposit. Lessee shall make a security deposit
and/or initial payment as indicated in this Schedule upon execution of this
Schedule and lessor shall be authorized to apply funds held by Lessor and
otherwise payable to Lessee for such purposes. Any initial payments made by
Lessee shall be deemed to have been earned by Lessor immediately upon receipt
thereof and shall be deemed to have been applied immediately to satisfy Lessee's
obligations to make such payments hereunder. Initial Payments made by the Lessee
shall not be refundable under any circumstances. Any security deposit paid by
Lessee shall not be refundable to Lessee in the event that the term of this
Lease does not commence unless on account of Lessee's rightful refusal to accept
delivery of the Equipment and in that event such sums shall be deemed to have
been earned by Lessor immediately upon the receipt hereof. At Lessor's option
any security deposit made hereunder may be applied by Lessor to cure any default
of Lessee under the lease, in which event Lessee shall promptly restore the
security deposit to their full amounts as set forth in this Schedule. If all the
terms and conditions herein to be performed by Lessee are fully performed and
all of Lessee's obligations hereunder are fully complied with, that portion of
any security deposit not so applied shall be refunded to Lessee at the
termination or expiration of this Lease.
D. Purchase Option and/or Option for Renewal of Lease Term. [This section
applies only if this schedule indicates that an option to purchase the Equipment
or an option to renew the Lease Term is applicable.] Provided that the Lease,
this Schedule, or any option granted hereunder has not been terminated by Lessor
and that no Event of Default shall have occurred and shall be continuing, Lessor
agrees to grant Lessee an option to purchase the Equipment and/or renew the
Lease Term. See Section 18 of the Master Lease Agreement for additional terms
and conditions applicable to End of Term Options.
If an Event of Default has not occurred under the Lease, Lessee, by giving
Lessor not less than ninety (90) days written notice by registered or certified
mail prior to the expiration date of this Schedule, may, elect to (1) if
applicable, purchase not less than all of the Equipment then leased hereunder,
at the times and in the manner hereinafter specified, for an amount equal to the
Purchase Option Price stated on the face of this Schedule plus any accrued and
unpaid rental or other amounts due under the Lease and plus any applicable sales
tax with respect thereto or (2) if applicable, renew the lease term of not less
than all of the Equipment then leased hereunder for the period(s) and for the
renewal rental(s) (payable in advance) stated on the face of this Schedule. If
Lessee elects to exercise said purchase option, same shall be exercised on the
day immediately following the date of expiration of the minimum lease term, and
by the delivery at such time by Lessee to Lessor of payment, in cash or by
certified check, of the amount of the Purchase Price for the Equipment as
hereinbefore set forth.
Upon payment of said purchase price for the Equipment, Lessor shall, upon
request of Lessee, execute and deliver to Lessee a Xxxx of Sale for the
Equipment, on an "AS IS," "WHERE IS," "WITH ALL FAULTS" basis, without
representations or warranties of any kind whatsoever. If Lessee exercises its
purchase option and fails to make such payment, Lessee shall pay as additional
rent for each month or fraction thereof after the end of the Initial Lease Term,
an amount equal to the highest monthly payment set forth herein. If Lessee does
not elect to exercise either of said options; Lessee shall return each item of
equipment to Lessor, pursuant to and under the terms and conditions of Section 3
of the Lease. If Lessee fails to notify Lessor as provided herein or if Lessor
and Lessee cannot agree on the purchase or renewal terms, then the term of this
Lease shall be automatically extended at the highest rental provided in this
Schedule, for successive three month periods unless and until terminated by
either party giving to the other not less than three months prior written notice
by registered or certified mail of its intention to terminate at the end of the
next succeeding extension period, and upon termination of this Schedule, Lessee
shall return all of the Equipment as provided in the Lease.
