Exhibit 10.12 Contract with Orix Credit Alliance, Inc.
Ex 10.12
(Stair) Page 1 of 2 (Drivers License I) t5iaie)
ORIX CREDIT ALLIANCE, INC. (the "LESSOR") LEASE NO.C-09-11941.3
300 Lighting Way o Secaucus, New Jersey 00000-0 000 Telephone:(201) 601 -9000
FULL LEGAL NAME AND ADDRESS OF "LESSEE' SUPPLIER OF EQUIPMENT
2649 PEMBERTON (complete address)
DRIVE
GULFSTREAM MAILING & SHIPPING SYSTEMS, INC.
XXXXXX XXXXXXX 00000 9IOS.W. X0XXXXXXXX
XXXXXXXXXXXX XX 00000
NAME AND TITLE OF PERSON TO CONTACT :
____ DESCRIPTION: MODEL #, CATALOG N, OR OTHER IDENTIFICATION.
E ONE ( I) XXXX & XXXXXX MODEL A496~I -C8 8 STATION INSERTER Q S/N 34~958 I WITH
T/O & CONVEYOR.
U
I
P
M ONE (I) HEIDELBERG MODEL SORKZ 19x25 PRINTING PRESS E S/N 522398.
N
T
L
E
A
S
E
D
LOCATION OF EQUIPMENT: STREET ADDRESS (IF DIFFERENT THAN LESSEE'S ADDRESS
SHOWN ABOVE)
CITY: COUNTY: STATE: RECORD OWNER:
LEASE CHARGE $ 9,616.22 FOR INITIAL TERM OF THIS LEASE AFTER
INITIAL TERM
AMOUNT OF EACH NO. OF RENT TOTAL RENT INITIAL TERM OF AI)V&NCE RENT MONTHLY
RENEWAL
RENT PAYMENT PAYMENTS LEASE (NO. OF MONTHS) RENT
$_____4,700.00 24 $ 112,800.00 24 S 0.00 S 0.00
(PLUS SALES TAX, IF (PLUS SALES TAX, IF MONTHS (PLUS SALES TAX, IF (PLUS
SALES TAX, IF
APPLICABLE) APPLICABLE) APPLICABLE)
APPLICABLE)
S Terms and Conditions of Lease 1 . Lessee hereby leases from
Lessor, and Lessor leases to Lessee, the equipment and/or personal property
described above and in any schedule made part hereof (herein called Equipment)
which Lessee warrants shall be used for commercial purposes only and not for any
farming or other agncultural purpose. 2. Lessee requests Lessor to purchase
Equipment of the type and quality specified above from the supplier named above
and agrees upon written acceptance hereof, signed at Lessor's office by an
authorized officer of Lessor to lease said Equipment from Lessor on the terms,
provisions and conditions of this lease. Lessor agrees to order such Equi pment
from said supplier, but shall not be liable for specific performance of this
lease or for damages if for any reason the supplier delays or fails to fill the
order. Lessee shall accept such equipment upon delivery. And hereby authorizes
Lessor to add to this lease the serial number of each item of Equipment so
delivered. Any delay in such delivery shall not affect Lessee's obligations
hereunder. Lessee represents that Lessee has selected the equipment leased AND
LESSEE AGREES THAT LESSOR HAS NOT MADE AND MAKES NO R PRESE~TATIONS OR W~(RANTIJ
DIRECTLY OR INDIRECTLY EXPRESS OR IMPLIED AS TO THE SUITABILITY DURABILITY
FITNESS FOR USE MERCHANTABILITY CONdITION QUALITY, OR OTHERWISE OF ANY SUCH
EQUIPMENT LESSEE SPECIFICALLY WAiVES ALL RIGHTS'TO MAKE CLAIM At~AINST
LESSdR}IEREIN FOR BREACH OF ANY WARRANTY OF ANY kIND WHATSOEVER AND AS TO LESSOR
OR LESSOR'S ASSIGNEE, LESSEE LEASES THE EQUIPMENT "AS IS" LESSOR HEREBY ADVISES
LESSEE THAT IT MAY HAVE RIGHTS AGAINST THE SUPPLIER OF THE EQUIPMENT AND TI-EAT
IT SHOULD CONTACT THE SUPPLIER FOR A DESCRIPTION OF SUCH RIGHTS. LESSEE AGREES
TO CLAIM ONLY AGAINST THE SUPPLIER FOR COMPLIANCE WITH ANY SUCH WARRANTIES AS
MAY EXIST' LESSOR AND LESSOR'S ASSIGNEE SHALL NOT BE LIABLE TO LESSEE FOR ANY
LOSS DAMAGE OR EXPENSE OF ANY KIND OR NATURE'CAUSED DIRECTLY OR INDIRECTLY BY
ANY EQUIPMENT LEASED HEREUNDER OR 1'HE USE OR MAINTENANCE THEREOF OR THE FAILURE
OF OPERATION THEREOF OR THE REPAIRS SERVICE OR AD1USTMENT THERETO OR BY ANY
DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY INTERRUPTiON OF SERVICE OR
LOSS OF USE THEREOF OR ~OR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND
HOWSOEVER CAUSED. 3. As used herein, "Actual Cost' means the cost to Lessor of
purchasing and delivering Equipment to Lessee, including taxes, transportation
charges, and other charges and the amount of any transaction charge disclosed
below and not paid in cash by Lessee at the time of acceptance by Lessor. The
amount of each Rent Payment, the Advance Rent, and any Renewal Rent set forth
above are based on the estimated cost to Lessor and shall each be adjusted
proportionally if the Actual Cost differs from said estimated cost. Lessee
hereby irrevocably authorizes Lessor to correct the figures set forth above when
the Actual Cost is known, and each Rent Payment shall be increased by any sales
orother tax that may be imposed on or measured by the rent payments. If Actual
Cost differs from the estimated cost by more than ten percent thereof, Lessor at
its option, may terminate this lease by giving written notice to Lessee after
receiving notice of 4ctual Cost. If prior to delivery there shall occur any
event of default hereunder, Lessee shall be liable for Lessor's damages
occasioned thereby, which for purposes of this paragraph only, it is agreed
shall be all amounts paid on account of the Equipment and other charges incurred
in connection with the Lease plus interest thereon at the Past Due Rate defined
below., , . . . . 4. The initial term of this lease commences upon the
acceptance hereof by Lessor and ends upon the expiration of the number of months
specified above (for the initial lease term)after the rent commencement date,
which date shall be the date upon which the supplier ships the Equipment to
Lessee, or 12-7-98. whichever is earlier. Lessee agrees to pay Lessor a
transaction charge of $560.00 upon its acceptance hereof.,
5. . Lessor will upon Lessee's written request, request the supplier to
authorize Lessee to enforce in its own name all warranties, agreements or
representations, if any, which may be made by the supplier to Lessee or Lessor.
Notwithstanding the foregoing Lessor itself makes no express nor implied nor
statutory warranties as to any matter whatsoever, including without limitation,
the condition of Equipment its merchantability or its fitness for any particular
purpose. No defect or unfitness of Equipment shall relieve Lessee oi the
obligation to pay rent or of any other obligation under this lease. Lessee
agrees that any maintenance service to be performed is the sole obligation of
Lessee who may arrange for same with the supplier of Equipment. 6. Lessee agrees
to pay to Lessor at 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx or at such other
place as Lessor may direct in writing Total Rent equal to the number of rent
payments specified herein multiplied by the amount of each payment specified
herein. The first rent payment and any advance rent shall be due upon execution
of this lease by Lessee; any deposit or acceptance of such sum by Lessor shall
not be deemed acceptance of this lease. In no event shall the first rent payment
or advance rent be refunded to Lessee. The second rent payment shall be due and
payable one month after the rent commencement date and subsequent rent payments
for the initial term shall continue on the same date of each successiye month
thereafter until the Total Rent and any other sums payable hereunder are paid in
full. Any installment not paid on or before its due date and, tq the. extent
permitted by applicable law, the entire unpaid Total Rent after acceleration
shall thereafter bear interest at a rate of, 1/15 of I % per day (the "Past Due
Rate") until this lease is paid in fill. in no event shall any late charge or
the Past Due Rate exceed any maximum permitted by law. It for any reason any
interest rate, late charge, fee or other charge imposed or which may be imposed
under this Lease exceeds the maximum amount which may be imposed under
applicable law, the amount of such interest rate late charge, fee or other
charge, in excess of the maximum shall be void and any such excess collected by
Lessor applied to the reduction of this lease or, to the extent permitted by
applicable law to other obligations of the Lessee owing to Lessor, as Lessor may
determine and any remaining excess shall be refunded to Lessee. Should Lessor
pay be or on account of the Equipment any sums more than thirty days prior to
the rent commencement date, Lessee will pay Lessor as additional rent along with
the first rent, payment due after the rent commencement date an amount equal to
the east Due Rate for each day from the date of payment to the rent commencement
date. Lessee will pay in advance to Lessor if so requested, any personal
property tax as estimated by Lessor pro-rated on a monthly basis. 7. Lessor may,
but shall not be obligated, to apply any advance .rent toward curing, any
default of Lessee hereunder, in which event Lessee shall promptly, restore the
advance rent to the full amount specified herein Any advance rents paid to
,Lessor without charge or interest and may be applied by Lessor, in its sole
discretion, against the unpaid installments of rent hereunder in the inverse
order of their respective maturities, but Lessor shall not be obligated to do
so. 8. , If, upon the expiration of the original or any renewal term hereof,
Lessee is not then and has not been in default in any of Lessees obligations to
Lessor and this lease specifies a RenewaI Rent amount, Lessee may renew this
lease for one year at the Renewal Rent amount so specified by giving Lessor
written notice of renewal at least sixty days prior to the expiration to the
initial or any renewal term and payment along with such notice of the Renewal
amount. If this lease is not renewed under, the terms of the immediately
preceding sentence for any reason whatsoever, Lessor may notify Lessee prior to
the expiration of the original or any renewal term hereof, that if Lessee fails
to return the Equipment as herein provided at the end of the then current term
hereof, this lease shall be renewed for an additional one year term at the same
rent provided for in this lease for the initial term. All of the terms and
conditions of this lease shall apply and be in full force and effect during any
and all renewal terms. 9. Lessor is hereby authorized to tile one or more
financing statements or reproduction hereof as a financing statement. Lessee
hereby, irrevocably appoints Lessor as the true and lawful attorney-in-fact of
Lessee, coupled with an interest with full power in Lessee's name, place and
stead to execute financing statements on Lessee's behalf and to do any and all
other acts on Lessee's behalf necessary or helpful to p4rfe~t Lessor s security
interest in the Collateral (defined below) pursuant to the Uniform Commercial
Code o~ other applicable law. The Lessee grants to Lessor a security interest in
,the equipment and any and all documents, instruments, chattel paper goods,
general intangibles, inventory, machinery, contract rights, equipment, fixtures,
accounts anti insurance in which Lessee now or hereafter has any right or
interest (all of the foregoing together with all accessories, attachments,
replacements, substitutions and accessions thereto, and all proceeds, products
and rents therefrom collectively called "Collateral) ) and agrees that said
security interest secures the payment, performance and fulfillment of all the
obligations of Lessee to Lessor or any affiliate qt Lessor whether such
obligations are now existjng or hereafter incurred or arising, are contingent or
non-contingent, ,are direct or indirect, arise by assignment or otherwise or are
contemplated or not contemplated as of the date of this lease. Lessor may at any
time, with or without exercising any of the rights or remedies available to it
and without
SEE PAGE (2) FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE PART OF THIS LEASE
The undersigned Lessor and Lessee agree to all terms and conditions set forth
above and on Page (2) hereof, and in wimess thereof hereby execute this lease.
THE EQUIPMENT IS LEASED HEREUNDER AS-IS AND LESSOR MAKES NO EXPRESS NOR IMPLIED
NOR STATUTORY WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT
LIMITATION THE CONDITiON OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS
FOR ANY PURPOSE.
Accepted By: ORIX CREDIT ALLIANCE, INC.
At its Xxxxxxxx Xx 00000 Office
By (Vice President) Date 12-4-98
Lessee(s)
[GRAPHIC OMITTED][GRAPHIC OMITTED]
Date
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(Witness ito L.essee's and (Drivers License #)
Co-Lessee's Signature) (State)
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(Witness as to Lessee', and (Drivers License #)
Co-Lessees Signature)
TERMS AND CONDITIONS OF EQUIPMENT LEASE AGREEMENT (Continued) Page (2)
prior notice or demand to Lessee, appropriate and apply toward payment of any of
Lessees obligations to Lessor any and all balances, sums, property, credits,
deposits, accounts, reserves. collections, monies, drafts, notes or checks
coming into Lessor's possession and belonging or owing to Lessee and for such
purposes, endorse Lessee's name on any such instrument made payable to Lessee
for deposit, negotiation, discount or collection. Such applications may be made
and/or any monies paid to Lessor may be applied and/or previous application
changed to apply. without notice to Lessee, partly or entirely to any of
Lessee's obligations to Lessor arising hereunder or otherwise as Lessor in its
sole discretion may elect. 10 Unless Lessee agrees Lessor written notice of each
defect or other proper objection to an item of Equjpment within three business
days after receipt thereof, it shall be conclusively presumed, as between Lessee
and Lessor, that the item was delivered in good repair and that Lessee accepts
it as an item of Equipment described in this lease. Lessee warrants and
represents that no item of Equipment has been delivered to Lessee prior to the
date of Lessor's acceptance hereof, which shall be deemed the date of this
lease. Lessee will deliver to Lessor a delivery/installation receipt (Lessor's
form) for each and every item immediately upon Lessor's request. At Lessor's
request, Lessee will furnish current financial statements satisfactory to Lessor
in form, preparation and content, . I I Lessee shall use Equipment in a careful
manner and shall comply with all laws relating to its possession, use and
maintenance. The Equipment shall be delivered and thereafter kept at the
location specified above or. if none is specified, a; Lessee's address as set
forth above, and in no event shall the Equipment or the Collateral be removed
therefrom or from the 48 contiguous States of the United States without Lessor's
prior written consent. Lessor may, for the purpose of inspection. at all
reasonable times, enter upon any premises where Equipment is located and may
remove Equipment forth with, without notice to Lessee, if Equipment is, in the
opinion of Lessor, being used beyond its capacity or in any manner improperly
cared for or abused. . . 12. It Lessor supplies Lessee with labels stating that
Equipment is owned by Lessor, Lessee shall affix and keep same in a prominent
place on each item of Equipment. Lessee, at its expense, shall keep Equipment in
good repair and furnish all parts mechanisms and devices required therefor.
Lessee shall not make any alterations. additions or improvements to Equipment
without Lessor's prior written consent. All additions and improvements made to
Equipment shall belong to Lessor. Upon the expiration or earlier termination of
this lease, Lessee at its sole expense, shall return Equipment in good repair,
ordinary wear and tear resulting from proper use thereof alone excepted, by
delivering it to such place as Lessor may specify. If Lessor, for any reason,
does not receive the Equipment immediately upon the expiration of the term
hereof and there is no renewal under section 8 hereof, Lessor will receive as
use and occupancy of the Equipment or any portion thereof for cacti month or
portion thereof, between the date of expiration and the date of return of
Equipment, an amount equal to 150% of the monthly rent specified for the initial
lease term and the provisions hereof shall remain in effect and bind Lessee
until such return of Equipment. I 3 ~ Lessee hereby assumes and shall bear the
entire risk of loss of and damage to Equipment from any and every cause
whatsoever. No loss of or damage to Equipment or any part thereof shall impair
any obligation of Lessee hereunder, which shall continue in full force and
effect. In the event of damage of any kind whatever to any item of Equipment
(unless the same be damaged beyond repair), Lessee, at the option of Lessor,
shall at Lessee's expense place the same in good repair condition and working
order, or replace the same with like equipment of the same make and the same or
a later model, in good repair, condition and working order. It Equipment. or any
portion thereof, is determined by Lessor to be lost, stolen, destroyed or
damaged beyond repair, Lessee shall immediately pay Lessor therefor in cash an
amount equal to the sum of (a) the greater of he actual fair market value of the
Equipment involved or fifty percent(50%) of the Actual Cost of the Equipment
involved, plus (b) the greater of25% of the aggregate amount of unpaid Total
Rent for the balance of the term of this lease or 115% of the unpaid Total Rent
allocated by Lessor to the Equipment involved. Upon payment as aforesaid, this
lease shall terminate with respect to the items of Equipment involved. The
proceeds of any insurance payable as a result of loss of or damage to Equipment
shall be applied, at the option of Lessor, toward the replacement, restoration
or repair of Equipment. Lessee shall at Lessee's own expense, provide and
maintain insurance, satisfactory to Lessor against loss, theft, conversion,
damage or destruction of the Equipment in an amount not less than the full
replacement value thereof with loss payable to Lessor. Each policy shall be
delivered to Lessor and shall expressly provide that said insurance as to Lessor
and its assigns shall nor be invalidated by any act, omission or neglect of
Lessee, and that the insuror shall give thirty (30) days written notice to
Lessor of the alteration or cancellation of the policy. Lessor may apply the
proceeds of any of said insurance to replace or repair Equipment and/or to
satisfy, in whole or in part. Lessee's obligations to Lessor. Lessee hereby
irrevocably appoints Lessor as Lessee's attorney-in-fact to make claim for,
receive payment of and execute and endorse all documents, checks or drafts
received in payment for loss or damage under any of said insurance. Lessee shall
also provide and maintain paid public liability (personal injury and property
damage) insurance, satisfactory to Lessor, naming Lessor as additional insured.
Notwithstanding the above, Lessor has the right, but not the obligation, to
obtain insurance on the Equipment protecting Lessor at Lessee's expense and to
maintain such insurance at Lessee's expense unless written evidence of such
insurance satisfactory to Lessor is provided to Lessor when and as requested by
Lessor. Lessee's expense shall include the `oil premium paid by Lessor for such
insurance and any customary charges or fees of Lessor and of any designee
associated with such insurance. Lessee shall pay such amounts in equal
installments allocated to each lease payment plus interest on such amount at the
Past Due Rate. . o . . , 14. Lessee shall hold harmless and indemnify Lessor
against any and all claims, actions, proceedings, expenses, attorneys' fees,
damages and liabilities, arising in connection with the Equipment, its
manufacture, selection, purchase, delivery, possession, ownership, leasing,
renting, control, maintenance, use, operation and/or return and the recovery of
claims under insurance policies thereon. Lessee shall pay promptly when due all
charges and taxes (local, state and federal) which may now or hereinafter be
imposed upon the ownership leasing, renting, sale, purchase, possession or use
of Equipment, and shall save Lessor harmless against any actual or asserted
violations and pay all costs, expenses, penalties, interest and charges of every
kind in connection therewith or arising therefrom. The obligations of Lessee
shall survive the termination of this agreement. 15. Without Lessor's prior
written consent, Lessee shall not (a) assign, transfer, pledge, hypothecate or
otherwise
dispose of this lease or any interest the rent, or (b) sublet or lend
Equipment or any part thereof or permit it to be used by anyone other than
Lessee or Lessee's employees. Lessor and its assignee may assign this
lease and/or mortgage the Equipment, in whole or in part, without notice
to Lessee. Each such assignee and/or mortgagee shall have all of the
rights but none of the obligations of Lessor hereunder. Lessee hereby
recognizes each such assignment and agrees to pay the balance of Total
Rent to any assignee and not to assert against any assignee any defense,
counterclaim, recoupment or set-off that Lessee may have against Lessor.
Subject to the foregoing, this lease mores to the benefit of and is
binding upon the heirs, legatees, personal representatives, survivors,
successors and assigns of the parties hereto.
16. 16 Time is of the essence of this lease and shall not be affected by
acceptance of any overdue payment. Lessee hereby irrevocably authorizes
any attorney of any court of record to appear for and confess judgment
against Lessee (except in any jurisdiction where such action is not
permitted by law) for all unpaid amounts due hereunder, plus expenses and
20% added for attorneys' fees, without stay of execution, and Lessee
hereby waives the issue of process, all rights of appeal and relief from
any and all appraisement, stay or exemption laws then in force.
17. . If Lessee fails to pay any rent or any other amount hereunder when due or
fails to pay when due any obligations of Lessee to Lessor arising independently
of this lease or fails to perform any of the terms and provisions hereof or of
any other agreement held by Lessor or dies or changes its management,
operations, ownership of its stock, or control, becomes insolvent or makes an
assignment for the benefit of creditors or if any bankruptcy, receivership or
other insolvency proceeding is instituted by or against Lessee or if Lessor
shall at any time deem the Equipment in danger of misuse, concealment or
misappropriation or if Lessor shall deem itself insecure ~ (the occurrence of
one or more of the foregoing being a "default" hereunder) then Lessor may,
without notice or demand, declare immediately due and payable the unpaid
aggregate amount of Total Rent for the entire term hereof (discounted to its
then present value using as a rate the then current Federal Reserve Discount
Rate for the District of Lessee's residence or principal place of business) plus
any additional rent, taxes, late charges, collection charges and all other sums
owing to Lessor by Lessee (the sum of all 9f which is hereinafter called the
"Balance'1) and attorneys' fees (which attorneys' fees are hereby agreed to be
not less than 20% of the Balance), whereupon said Balance and attorneys' fees
shall immediately be due and payable and Lessee shall immediately deliver
possession of Equipment to Lessor and Lessor may, at its option and without
notice and without legal process (Lessee hereby waiving, with full knowledge of
Lessee's rights and the effect of this waiver, any right to a hearing nor to any
repossession of any Collateral by Lessor), to the extent permitted by law: (1)
recover the Balance (plus any Terminal Purchase Option Amount which represents
Lessor's reversionary interest in the Equipment, if Lessee fails to deliver
possession of the Equipment to Lessor), plus attorneys' fees in the amount
aforesaid' (2) take possession of the Equipment wherever same may be located
with all additions, accessions, replacements and substitutions), Lessee agreeing
to assemble same and deliver same to a place designated by Lessor, whereupon all
rights of Lessee in the Equipment shall terminate absolutely (but Lessee shall
not be released from its obligations under this agreement until the Balance plus
attorneys' fees in the amount aforesaid have been paid in full), Lessee hereby
authorizing and empowering Lessor or its designee to enter upon any premises
where the Equipment may be found and take possession and carry away same without
process of law, and (a) retain Equipment and all prior payments of rent; or (b)
retain all prior payments and either (i) sell Equipment at public or private
sale with the right in Lessor to purchase any of the Equipment at such sale,
which sale shall be deemed to be held in a commercially reasonable manner in
accordance with applicable law if at least 15 days prior notice of any private
sale is given, or if at least 10 days prior notice of any public sale is given
and advertised in a publication of general circulation in the area of the sale
at least twice prior to the sale, applying any net proceeds less, if Lessee
fails LO deliver possession of the Equipment any Terminal Purchase Option Amount
(which represents Lessor's reversionary interest in the Equipment), to all
charges and expenses incurred by Lessor in connection with or incidental to the
repossession and sale of the Equipment including but not limited to
transportation, storage, repair, refurbishing and advertising costs and
attorneys' fees then to the Balance and then to any other amounts owing by
Lessee to Lessor; or (ii) retain the Equipment and credit Lessee with the
reasonable re-leasing value of the Equipment during the remaining term of this
lease, Lessee remaining liable for any deficiency; and (3) pursue any other
remedy permitted by law or equally. It is agreed that any amounts to be retained
by Lessor and any sums to be paid by Lessee under this paragraph shall not be
deemed o be a penalty but are liquidated damages for the breach hereof. The
remedies provided for herein are cumulative and may be exercised to the extent
permitted by law, successively or concurrently and the exercise of one shall not
bar any other. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LESSOR, LESSEE AND ANY
GUARANTOR, EACH THEREBY KNOWINGLY VOLUNTARILY AND INTENTIONALLY WAIVES (A) ANY
AND ALL RIGHT TO A TRIAL BY JURY OF ANY AND ALL CLAIMS, DEFENSES COUNTERCLAIMS
CROSSCLAIMS AND SETOFF OR RECOUPMENT CLAIMS ARISING, DIRECTLY OR INDIRECTLY OUT
OF UNDER IN CONNECTION WITH OR IN ANY WAY RELATED TO THIS LEASE AND WHETHER
BASED IN CONTRACT OR IN TORT OR PURSUA~TTO STATUTE, AND (B) ANY AND ALL RIGHTTO
CLAIM OR RECOVER ANY PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. 1 8 . All notices relating hereto shall
be in writing and delivered in person to an officer of the party to which such
notice is being given or ~ mailed by certified mail to such party at its address
specified above or at such other address as may hereafter be specified by like
notice by either party to the other. All notices will be deemed effective five
days after mailing by certified mail to the address shown herein for any party.
If more than one Lessee is named in this lease, the liability of each hereunder
shall be joint and several.
19. The Equipment is and shall remain the property
of Lessor. Lessee at its own cost and expense, shall protect and defend the
title of Lessor. Lessee shall at all times keep Equipment tree and clear from
all liens, attachments, levies, encumbrances and charges or other judicial
process shall give Lessor immediate written notice thereof and shall indemnify
and save Lessor harm1ess from any loss or damage caused thereby. Lessee shall
have no right, title or interest in or to Equipment, except as expressly set
forth in this lease, nor shall Lessee have any equity nor be deemed to develop
any equity in the Equipment by virtue of this agreement or any payment made by
Lessee or otherwise; Lessee's interest in the Equipment being that of a lessee
only. This Equipment shall remain personal property even though installed in or
attached to real property. No invoice issued prior to complete performance of
this lease shall operate to pass title to Lessee. All Equipment and any proceeds
thereof, accessories parts and replacements for or which are added to or become
attached to Equipment shall immediately become the property of Lessor and shall
be deemed incorporated in Equipment and subject to the terms of this lease as if
originally leased hereunder. AS PART OF THE CONSIDERATION FOR LESSOR'S ENTERING
INTO THIS LEASE LESSEE LESSOR AN!) ANY GUARANTOR HEREBY DESIGNATE AND APPOINT
XXXXX X. XXXX ESO. AND C-A CREDIT CORP. BOTH OF NEW'YORK, OR EITHER OF THEM, AS
THEIR TRUE AND LAWFUL ATFORNEY-IN-FACT AND AGENT FOR THEM AND IN THEIR NAME
PLACE AND STEAD TO ACCEPT SERVICE OF ANY PROCESS WITHIN THE STATE OF NEW YORK
THE PARTY CAUSING SUCH PROCESS TOI BE SERVED
AGREEING TO NOTIFY THE OTHER PARTYUES) AT THEIR ADDRESS SHOWN, OR THEIR LAST
KNOWN ADDRESS BY CERTIFIED MAIL, WITHIN THREE DAYS OF SUCH SERVICE HAVING BEEN
EFFECTED. LESSEE, LESSOR AND ANY GUARANTOR H~EREOF AGREE TO THE EXCLUSIVE
VENUE AND JURISDICTION OF ANY COURT IN THE STATE AND COUNTY OF NEW YORK FOR
ALL ACTIONS, PROCEEDINGS, CLAIMS COUNTERCLAIMS OR CROSSCLAIMS ARISING DIRECTLY
OR INDIRECTLY OUT OF UNDER IN CONNECTION WITH, OR IN ANY WAY RELATED TO THIS
LEASE, WHETHER BASED IN CONTRACT OR IN TORT OR AT LAW OR IN EQUITY OR PURSUANT
TO STATUTE WITH TiLE SOLE EXCEPTIONS THAT AN ACTION TO OBTAIN POSSESSION OF
ALL OR PART OF THE COLLATERAL OR ANY OTHER ASSETS OF TUE LESSEE OR THE
GUARANTOR HOWEVER DENOMINATED, AND EQUITABLE PROCEEDINGS TO ENFORCE THE TERMS
OF THIS LEASE MAY, IN THE SOLE DISCRETION OF THE LESSOR BE BROUGHT IN A STATE
OR FEDERAL COURT HAVING JURISDICTION OVER THE COLLA'I~ERAL, AND/OR SUCH OTHER
ASSETS AND/OR THE LESSEE AS THE CASE MAY BE, AND THAT JUDGMENTS MAY BE
CONFESSED ENTERED OR ENFORCED IN ANY JURISDICTION WHERE THE LESSEE OR ANY
GUARANTOR OR THE COLLATERAL AND/OR ANY OTHER ASSETS OF 1FHE LESSEE OR
GUARANTOR MAY BE LOCATED. LESSEE LESSOR AND ANY GUARANTOR HEREOF EACH WAIVE
ANY RIGHT THEY OR ANY OF THEM MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY
LITIGATION BROUGHT IN ACCORDANCE HEREWITH.
20. LESSEE AND ANY GUARANTOR HEREUNDER EACH DOES HEREBY WAIVE FOREGO AND AGREE
NOT TO ASSERT ANY AND ALL RIGHTS, CLAIMS AND DEFENSES IF ANY, UNDER THE FEDERAL
EOUAL CREDIT OPPOR1FUNITY ACT AND/OR THE FEDERAL FAIR CREDIT REPORTING ACT
AND/OR UNDER AN'Y COMPARABLE STATE LAWS THAT MAY INURE TO THE BENEFIT OF LESSEE
AND/OR GUARANTOR IN CONNECTION WITH THIS LEASE. LESSEE AND ANY GUARANTOR
HEREUNDER EACH DOES HEREBY RATIFY AND APPROVE THE OBTAINING BY LESSOR (AND/OR
ANY ASSIGNEE OF LESSOR) OF ANY CREDIT REPORT RELATING TO LESSEE AND GUARANTOR
AND HEREBY AGREE THAT LESSOR (AND/OR ANY ASSIGNEE OF LESSOR) MAY HEREAFTER
OBTAIN SUCH CREDIT REPORTS AS LESSOR (AND/OR ANY ASSIGNEE OF LESSOR) IN THEIR
SOLE DISCRETION IVIAY DETERMINE. 21. . Intending that each and every provision
of this lease be fully effective according to its terms, the parties agree that
the validity, enforceability and effectiveness of each provision hereof and the
obligations, rights and remedies of the Lessee Lessor and any Guarantor in any
way related to or arising under this lease sha11 be governed by and construed in
accordance with the laws of the State of New York (excluding its choice of law
rules). If any one or more provisions hereof are in conflict with any applicable
statute or law, and thus not valid or enforceable, then each such provision
shall be deemed null and void, but only to the extent of such conflict and
without invalidating or
affecting the remaining provisions hereof.
22. This instrument constitutes the entire agreement between Lessor and Lessee.
No agent or employee of the supplier is authorized to bind Lessor to this lease,
to waive or alter any term or condition printed herein or add any provision
hereto. Except as provided in section 3 hereof, a provision may be added hereto
or a provision hereof may be altered or varied only by a writing signed by an
authorized officer of Lessor. Waiver by Lessor of any provisions hereof in one
or more instances shall not constitute a waiver as to any other insurance.
