EXHIBIT 10.7
MASTER LEASE SCHEDULE # SCHEDULE DATE: APRIL 25, 1997
--------------------
to
Master Lease Agreement No. 72966 ("Lease") dated AUGUST 8, 1996 by and
between American Equipment Leasing, a division of AEL Leasing Co., Inc.
("Lessor"), and undersigned ("Lessee").
ORIGINAL RENTAL TERM:
Total Term: 60 Mos; Total No. of Pmts: 60; Monthly Rental Pmt: $23,878.47
(including tax, if applicable)
Commencement Date: Skip payment months: N/A
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Initial Payment: $67,554.73 Date Received:
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Representing: FIRST & LAST MONTHLY RENTAL PAYMENTS, MARCH & APRIL DEFERRAL
SERVICE CHARGES, LATE CHARGES
Supplier: SEE ATTACHED EQUIPMENT SCHEDULE
Security Deposit: $ NA Date Received: NA
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Documentation Fee: $1,000.00 Date Received: AUGUST 23, 1996
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Commitment Fee: $ NA Date Received: NA
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Purchase Option: TITLE PASSES TO LESSEE UPON SATISFACTION OF ALL PAYMENTS DUE
UNDER THE LEASE
Exercisable only after payment of all monthly rentals due and to become due,
taxes, late charges, and other terms due hereunder and under the lease.
LEASE EQUIPMENT ("Equipment"): See Attached Exhibit
All of the Equipment identified herein was received by us, has been
installed, and is in every way acceptable to us. We agree to enforce in our
own name all warranties, agreements, or representations, if any, which may be
made by Supplier to us. We agree that Lessor makes no express warranties as
to any matter whatsoever, including, without limitation, the condition of the
Equipment, its merchantability, and/or fitness for any particular purpose. We
agree that the Lease relating to this Schedule may not be canceled. No defect
in or unfitness of the Equipment shall release us from the obligation to make
rental payments under the Lease or from any other obligations under the Lease
or this Schedule.
Upon Lessor's written acceptance of this Schedule, the same shall be made a
part of, and incorporated into the above-referenced Lease, and shall replace
and supersede in all respects Master Lease Letter Agreement dated AUGUST 8,
1996, from Lessee to Lessor. THIS SCHEDULE IS SUBJECT TO ALL OF THE TERMS AND
CONDITIONS SET FORTH IN LEASE. ALL REFERENCES TO ANY MASTER LEASE LETTER
AGREEMENT AND/OR SCHEDULE CONTAINED IN THE LEASE SHALL BE DEEMED TO REFER TO
THIS SCHEDULE.
LESSOR LESSEE
Accepted at Reading, Pennsylvania, UNIVERSITY OF FLORIDA TISSUE BANK, INC.
this day of , 19 ---------------------------------------
---- --------------- -- Name
0 XXXXXXXX XXXX XXX 00
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Address
AMERICAN EQUIPMENT LEASING XXXXXXX XX 00000
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City State Zip
By: By: /s/ Xxxxx X. Xxxxxx President/CEO
--------------------------------- ------------------------------------
Xxxxx X. Xxxxxx Title
Date: April 28, 1997
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AMERICAN EQUIPMENT LEASING
A Division of AEL Leasing Co., Inc.
Courier Address
0 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Mailing Address
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
(000) 000-0000
PLEDGE AGREEMENT - LEASE
In order to induce AEL Leasing Co., Inc. ("AEL"), P. X. Xxx 00000, Xxxxxxx,
Xxxxxxxxxxxx 00000-0000, to make a lease with UNIVERSITY OF FLORIDA TISSUE
BANK, INC. ("Lessee"), a Florida corporation with its principal place of
business at 0 XXXXXXXX XXXX., XXX 00, XXXXXXX, XX 00000 , hereby agrees
as follows:
1. DEFINITIONS.
When used herein, the terms set forth below shall be defined as follows:
(a) "Obligations" means all indebtedness, obligations and liabilities of the
Lessee to AEL of every kind and description, absolute or contingent, due or
to become due, whether for payment or performance, now existing or hereafter
arising from a Master Lease Agreement ID#72966, and Master Lease Letter
Agreement executed in connection therewith, both being dated August 8, 1997,
and any Master Lease Schedules executed in connection with the Master Lease
Agreement. The Master Lease Agreement, Master Lease Letter Agreement and any
Schedule arising therefrom being collectively referred to as the "Lease
Documents." The terms of the Lease Documents are incorporated herein.
(b) "Collateral" means CD#00-0000000-0 with European American Bank,
Uniondale, NY ("Bank") in the amount of $390,000.00.
(c) "Event of Default" means a default with respect to payment or performance
of the Obligations; or an "Event of Default" or "Default" as defined in the
Lease Documents, or a default with respect to any warranty or covenant
hereunder.
2. PLEDGE OF COLLATERAL.
To secure the payment and performance of the Obligations, the Lessee hereby
pledges, assigns and transfers to AEL, and grants to AEL, a continuing
paramount security interest in and to all of the Collateral which Collateral
shall be free and clear of all liens and encumbrances, excepting in favor of
AEL.
3. REPRESENTATIONS AND WARRANTIES.
The Lessee agrees to reimburse AEL, on demand, for any amounts paid or
advanced by AEL as the transferee or holder of the Collateral. AEL shall
exercise reasonable care in the custody and preservation of the Collateral to
the extent required by the applicable statute and use its best efforts to
take such actions as the Lessee may reasonably request in writing but the
failure to do any such act shall not be deemed a failure to exercise
reasonable care. The Lessee shall execute such financing statements in favor
of AEL as AEL shall reasonably request. Lessee warrants that the Collateral
has not been otherwise pledged, assigned, encumbered, hypothecated, or been
made subject to a Security Interest.
4. GENERAL COVENANTS.
AEL shall be under no duty to: (i) collect or protect the Collateral or any
proceeds thereof or give any notice with respect thereto except as expressly
provided herein; (ii) preserve the rights of Lessee with respect to the
Collateral against prior parties; (iii) sell or otherwise realize upon the
Collateral; or (iv) seek payment from any particular source. Without limiting
the generality of the foregoing, AEL shall not be obligated to take any
action in connection with any conversion, call, redemption, retirement or any
other event relating to any of the Collateral. The Lessee agrees to reimburse
AEL, on demand, for any amounts paid or advanced by AEL for the purpose of
preserving the Collateral or any part thereof and/or any liabilities or
expenses incurred by AEL as the transferee or holder of the Collateral. AEL
shall exercise reasonable care in the custody and preservation of the
Collateral to the extent required by applicable statute and use its best
efforts to take such action as the Lessee may reasonably request in writing,
provided that the failure to do any such act shall not be deemed a failure to
exercise reasonable care. Lessee shall not otherwise pledge, assign,
encumber, hypothecate, or subject the Collateral to a security interest.
5. RIGHTS AND REMEDIES.
If an Event of Default shall occur, then or at any time thereafter, AEL may
declare all Obligations to be due and payable regardless of their terms, for
the purposes of this Agreement, without notice, protest, presentment or
demand, all of which are hereby expressly waived by the Lessee. At, or after,
such time AEL shall have, in addition to any other rights and remedies
contained in the Lease, and any other agreements, guarantees, notes,
instruments, and documents heretofore, now or at any time or times hereafter
executed by the Lessee, and delivered to AEL, all of the rights and remedies
of a pledgee, under law, including without limitation, all of the rights and
remedies of a secured party under the Uniform Commercial Code in force in the
Commonwealth of Pennsylvania as of the date hereof, all of which rights and
remedies shall be cumulative, and non-exclusive, to the extent permitted by
law, including the right to present the Certificate of Deposit to Bank for
immediate payment with proceeds to be applied to any indebtedness now or
hereafter due by Lessee to AEL. AEL shall not be responsible for any
penalties incurred by early presentment of the said Collateral, to the extent
provided thereby.
6. GENERAL.
(a) No delay on the part of AEL in exercising any rights hereunder or
failure to exercise the same shall operate as a waiver of such rights;
no notice to or demand of Lessee shall be deemed to be a waiver of any
obligations of Lessee or of the right of AEL to take other or further
action without notice or demand as provided herein. In any event, no
modification or waiver of the provisions hereof shall be effective
unless in writing and signed by AEL nor shall any waiver be applicable
except in the specific instance or matter for which given.
(b) This Agreement is and shall be deemed to be a contract entered into and
made pursuant to the laws of the Commonwealth of Pennsylvania and shall
in all respects be governed, construed, and applied and enforced in
accordance with the laws of said state.
7. EARLY RELEASE OF PLEDGED COLLATERAL.
This agreement shall be in effect until all Obligations under the Lease
Documents are satisfied, PROVIDED HOWEVER, upon written request of the
Lessee, on the annual anniversary dates of the commencement of payment of the
monthly installments under the Rental Schedule to be executed in connection
with the Lease Documents, AEL will review the financial statements of the
Lessee prepared within the preceding 60 days (and certification of the CFO of
Lessee to the effect that no material adverse change has occurred in the
financial condition of Lessee since the preparation of those statements). AEL
shall release of the Pledged Collateral, if as of the date of such review of
such financial statements, the following conditions are satisfied:
1. All payments due under the Lease Documents (including but not
limited to payment of rentals, taxes and other sums due) have been made
by Lessee in a timely manner since the date of commencement of the Lease
up to the date of such review;
2. No event of default (and no event that with notice or lapse of time
or both would become an event of default) exists under the terms of the
Lease Documents as of the date of such review or shall have otherwise
occurred.
3. The following minimum economic levels shall exist as of the date of
such review:
a. Tangible net worth exceeds $2,000,000.00 ("Tangible net worth"
meaning the excess of total assets over total liabilities, total
assets and total liabilities each to be determined in accordance
with generally accepted accounting principles consistent with those
applied in the preparation of the financial statements previously
submitted to AEL, excluding, however, from the determination of
total assets all assets which would be classified as intangible
assets under generally accepted accounting principles, including,
without limitation, goodwill, licenses, patents, trademarks, trade
names, copyrights and franchises);
b. Debt/Equity ratio is 1:1 or better (to be determined in
accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements
previously submitted to AEL);
c. The Lessee shall have experienced positive cash flow of 1.25:1
over the past twelve month period;
d. Lessee shall not in violation of any term or condition under
any lending agreement between Lessee and any financial institution,
and no default shall otherwise exist under any material agreement to
which Lessee is a party obligor (the President and the CFO of
Lessee each to certify same to AEL, and AEL being entitled to engage
in reasonable due diligence to verify such conditions);
e. AEL shall have received audited financial statements prepared
for the prior two years of Lessee's fiscal year.
AEL Leasing Co., Inc. University of Florida Tissue Bank
By By /s/ Xxxxx X. Xxxxxx
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Signature Signature
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Title Title
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Date Date
EUROPEAN AMERICAN BANK acknowledges the terms of the within Pledge
Agreement, that AEL, as the Pledgee as defined in the Agreement, that it
shall deliver payment only to AEL unless directed otherwise in writing by
AEL, and that the lien of AEL is prior in lien to any lien the Bank has in
the subject Collateral and that Bank shall not exercise any offset in the
Collateral regarding any claims it may have against the Lessee.
By: -------------------------------------
Signature Title
MASTER LEASE LETTER AGREEMENT
TO: American Equipment Leasing DATE: August 8, 1996
A Division of AEL Leasing Co., Inc.
RE: Master Lease Agreement No. 72966 ("Lease"), dated AUGUST 8, 1996
------- ----------------
Gentlemen:
Please accept this Letter Agreement as our request that you, as Lessor, lease
to us, as Lessee, pursuant to Lease:
EQUIPMENT: VARIOUS ; LEASE AVAILABILITY: $1,000,000.00
-------------------- ------------------
"Lease Availability" shall mean the aggregate amount of funds Lessor is
willing to expend for Equipment to be Leased to Lessee, pursuant to this
letter. Lessor reserves the right to suspend and/or limit lease availability
in it's solo and absolute discretion upon determining any material adverse
change in the financial condition of Lessee or any guarantor of Lessee's
obligations to Lessor.
Original No. of Initial Mo. Rental Pmt.
Lease Term Rental Purchase Payment Per $1,000,000.00
in Months Payments Option Required Equipment Cost
----------- -------- --------- -------- -----------------
60 60 NONE/PASS OWNERSHIP UPON FIRST & LAST $20,756.00
COMPLETION
ESTIMATED DOCUMENTATION FEE DUE: $1,000.00
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At the time of this offer the prime rate of interest as announced by European
American Bank is 8.25%. If during the course of this letter agreement the
prime rate as announced by European American Bank increases, the lease
pricing contained herein will be adjusted by the proportionate increase.
Above terms and conditions are subject to an expiration date of
FEBRUARY 8, 1997 .
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Lessee agrees that upon Lessor's acceptance of this Letter Agreement, it
shall be deemed a part of, and be incorporated into the Lease, until replaced
and superseded by a Master Lease Schedule (as defined in Lease). Lessee
further agrees that the rental term and conditions set forth herein may be
modified in any subsequent Master Lease Schedule, which will finalize certain
terms and conditions of the Lease of the Equipment from Lessor, and confirm
Lessee's receipt and acceptance of the same. Lessee further agrees that
immediately upon receipt of the Master Lease Schedule, Lessee will execute
and return it to Lessor.
During each month prior to that in which the lease payments specified herein
shall commence, Lessee agrees to pay Lessor a monthly Deferral Service Charge
equal to 1.00% of the funds for Equipment disbursed by Lessor for the benefit
of Lessee on or before the due date of such Charges.
This shall confirm that Lessor has established a discretionary line of Leasing
Availability to Lessee in the amount set forth above. Lessee further
understands that subject to definite agreements being reached on ancillary
documentation, instruments, certificates, opinions, guarantees and assurances
necessary or desirable in the form and substance satisfactory to Lessor, and
further subject to the fact that there be no material adverse change or
prospects in the financial and business condition of Lessee or any guarantor
of Lessee's obligations to Lessor, from the date of this letter, as expressed
in the financial statements of Lessee and/or any guarantor furnished to
Lessor, all as determined by Lessor.
Lessee's Leasing Availability with Lessor shall be subject to the terms and
conditions contained in this Letter. This letter supersedes any and all prior
written or oral understandings between Lessee and Lessor; provided however
that all written and oral representations made by Lessee to Lessor with
respect to the financial status of Lessee and/or any guarantor, or any other
provision hereof shall survive the issuance of this letter.
Lessee hereby authorizes AEL Leasing Co., Inc. to sign and execute on its
behalf, any and all necessary UCC forms regarding the interest of AEL Leasing
Co., Inc. in its equipment.
THIS LETTER AGREEMENT IS SUBJECT TO ALL OF THE TERMS AND CONDITIONS SET FORTH
IN LEASE.
LESSOR LESSEE
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Accepted at Reading, Pennsylvania, UNIVERSITY OF FLORIDA TISSUE BANK, INC.
this _____ day of ______ of 19__ ---------------------------------------
Name
0 XXXXXXXX XXXX BOX 31
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Xxxxxxx
XXXXXXX XX 00000
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City State Zip
By: By: /s/ Xxxxx X. Xxxxxx
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Title
AMERICAN EQUIPMENT LEASING
Courier Address A Division of AEL Leasing Co., Inc. Mailing Address
0 Xxxxxxxx Xxxxx (610) 775-3134 XX Xxx 00000
Xxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
[AEL LOGO] Master Lease
Agreement #72966
MASTER LEASE AGREEMENT
This Lease Agreement ("Lease") dated this 8 day of August, 1996, by and
between American Equipment Leasing, a division of AEL Leasing Co., Inc.
("Lessor"), a Pennsylvania corporation whose address is X.X. Xxx 00000,
Xxxxxxx, Xxxxxxxxxxxx 00000-0000, and UNIVERSITY OF FLORIDA TISSUE BANK, INC.
("Lessee"), a Corporation, having its chief executive offices located at 0
XXXXXXXX XXXX XXX 00 XXXXXXX, XX 00000
WITNESSETH:
WHEREAS, Lessee desires to lease from Lessor the personal property described
in each written Schedule and/or Master Lease Letter Agreement delivered to
Lessor now and from time to time hereafter for acceptance or rejection.
NOW THEREFORE, in consideration of the mutual promises and agreements
set forth herein, Lessor and Lessee agree as follows:
1. LEASE. Lessor shall lease to Lessee and Lessee shall lease from Lessor
those items of Equipment described in each Schedule and/or Master Lease
Letter Agreement now and from time to time hereafter delivered to and
accepted by Lessee (hereinafter sometimes individually and sometimes
collectively referred to as "Equipment"). THIS LEASE AND EACH SCHEDULE AND/OR
MASTER LEASE LETTER AGREEMENT AND ANY SCHEDULE EXECUTED IN CONNECTION
THEREWITH AS ACCEPTED BY LESSOR MAY NOT BE CANCELLED BY LESSEE FOR ANY REASON
DURING THE TERM INDICATED HEREIN AND THEREIN.
2. ORIGINAL TERM. Lessor leases the Equipment to Lessee for the rental term
("Original Term") specified in each Schedule and/or Master Lease Letter
Agreement upon the terms and conditions specified herein by this reference
hereto.
3. RENEWAL. Should Lessee fail to return Equipment in accordance with
paragraph 18 hereof, at Lessor's exclusive option this Lease may be continued
on a month to month basis as to those Equipment until thirty (30) days after
Lessee returns such Equipment to Lessor. In the event this lease is continued
on a month to month basis, Lessee shall pay Lessor rental as to those
Equipment in the same periodic amounts as indicated in the "Monthly Rental
Payment" field set forth on the particular Schedule and/or Master Lease
Letter Agreement of which those Equipment were subject.
4. RENT: SECURITY DEPOSIT. (a) The aggregate rent for any Equipment during
the Original Term is the amount specified therefor in each Schedule and/or
Master Lease Letter Agreement and is payable by Lessee to Lessor in the
number and amount of payments specified therein. Notwithstanding the time of
delivery or acceptance of the Equipment by Lessee, the first payment of rent
therefor will be due and payable by Lessee to Lessor as indicated in the
"Commencement Date" field on the Schedule and/or Master Lease Letter
Agreement; all subsequent payments of rent during the Original Term will be
due and payable by Lessee to Lessor in such monthly payments due on the same
day of each month thereafter (or other calendar period indicated) in each
Schedule and/or Master Lease Letter Agreement, until the aggregate rent due
thereunder is paid in full, (b) Upon receipt of written notice from Lessor,
Lessee agrees to make all rental payments (both original and renewal) in cash
or by certified or cashiers' check. All rental payments (both original and
renewal) shall be made by Lessee to Lessor at the office of Lessor at Flying
Hills Corporate Center, 0 Xxxxxxxx Xxxxx, X.X. Xxx 00000, Xxxxxxx, XX
00000-0000, or at such other place or places as Lessor may designate in
writing to Lessee, (c) Lessee will, concurrently with its execution and
delivery of each Schedule and/or Master Lease Letter Agreement, if required
by Lessor, deposit with Lessor, as a security deposit, the amount specified
therefor on the Schedule and/or Master Lease Letter Agreement. To secure the
payment of "Lessee's Obligations" (hereinafter defined), Lessee hereby grants
Lessor a security interest in said security deposit, and at the end of the
Original Term, if any, provided there is then no existing Event of Default
and Lessee has performed all of the terms and conditions of this Lease and
the Schedule and/or Master Lease Letter Agreement to be performed by Lessee.
Lessor shall return the security deposit to Lessee, (d) Subject to paragraph
27 hereof, Lessee's obligation to pay rent is for the full Original Term, is
unconditional and is payable without notice or demand and without any
abatement, deduction or set-off of any nature. Lessee shall have no right to
any interest from any security deposit, and waives any claim to any such
interest or profits from such security deposit.
5. LESSEE'S OBLIGATIONS. "Lessee's Obligations" shall mean all liabilities
and obligations now or at any time or times hereafter owing, arising, due
and/or payable by Lessee to Lessor under this Lease and each Schedule and/or
Master Lease Letter Agreement (including all Options set forth therein),
howsoever evidenced, and whether direct, contingent, fixed or otherwise. If
any payment of rent or other portion of Lessee's Obligations is not paid when
due, Lessee shall pay Lessor (i) a service charge equal to the greater of 5%
of such unpaid portion of Lessee's Obligations or $2.50, plus (ii) interest
which shall accrue on such unpaid portion of Lessee's Obligations at the
maximum rate permitted by law per annum from the due date until paid. It is
agreed that in no event and under no circumstances shall any amount paid by
the Lessee to Lessor exceed the highest lawful rate permissible, under
applicable Law. If in any circumstances whatsoever, it is determined that
performance under this Lease shall result in a payment of interest in excess
of that allowed by applicable law, then such excess interest collected shall
not be applied to the payment of interest and interest shall be at the
highest rate allowed by law. Such service charges and interest shall become a
part of Lessee's Obligations, payable by Lessee to Lessor upon demand.
6. LESSEE'S OBLIGATIONS FOR EQUIPMENT ORDERED. Pursuant to the terms of this
Lease, Lessee, from time to time, will make oral and written requests that
Lessor obtain Equipment and lease the same to Lessee pursuant to the terms
hereof and all Schedule and/or Master Lease Letter Agreements from time to
time executed and delivered by Lessee in favor of Lessor. Lessee hereby
acknowledges and agrees that all Equipment so ordered by Lessor at the
request of Lessor, whether pursuant to any Schedule and/or Master Lease
Letter Agreement, other written request or any oral request, shall be deemed
to be
Equipment leased to Lessee pursuant to this Lease from the date of such
request, and all obligations and liabilities incurred by Lessor in connection
with all Equipment so ordered, shall be part of Lessee's Obligations
hereunder, payable by Lessee to Lessor in full. Upon Lessee's acceptance of
the Equipment so ordered, that portion of Lessee's Obligations relating
thereto shall be payable by Lessee to Lessor in accordance with the terms,
conditions and provisions of this Lease and the Schedule and/or Master Lease
Letter Agreement covering such Equipment. Lessee further agrees that it will
reimburse Lessor immediately upon Lessor's demand therefor for that portion of
Lessee's Obligations relating to such Equipment, in the event that, for any
reason whatsoever, Lessor does not accept such Equipment. Moreover, Lessee
agrees to indemnify Lessor and hold Lessor harmless from any and all claims
by any person or entity whatsoever arising out of Lessee's failure or refusal
to accept any such Equipment.
7. LESSEE'S OBLIGATIONS FOR ADVANCES. Lessee hereby acknowledges that
Lessor, from time to time hereafter, may make advances (the "Advances") to or
for the benefit of Lessee. Lessee hereby agrees that all such Advances made
by Lessor shall be part of Lessee's Obligations hereunder, payable by Lessee
to Lessor in full, upon such terms and conditions, and at such times, as
Lessor may from time to time specify. To compensate Lessor for the Advances
so made, Lessee agrees to pay Lessor a monthly Lease Deferral Service Charge,
as specified by Lessor in any Schedule and/or Master Lease Letter Agreement
executed and delivered by Lessee in favor of Lessor, or otherwise.
8. SELECTION OF EQUIPMENT, LESSEE IS SOLELY RESPONSIBLE FOR THE SELECTION OF
BOTH (I) THE EQUIPMENT, AND (II) THE SUPPLIER FROM WHOM LESSOR IS TO PURCHASE
THE EQUIPMENT, AS SPECIFIED IN EACH SCHEDULE AND/OR MASTER LEASE LETTER
AGREEMENT. LESSEE WARRANTS THAT LESSEE HAS NEGOTIATED OR WILL NEGOTIATE
DIRECTLY WITH THE SUPPLIER WITH REFERENCE TO THE EQUIPMENT. LESSEE HEREBY
ACKNOWLEDGES THAT LESSOR HAS NOT PARTICIPATED AND WILL NOT PARTICIPATE IN
SAID NEGOTIATIONS AND HAS AND WILL HAVE NO KNOWLEDGE OF THE QUALITY AND
FITNESS OF THE EQUIPMENT. LESSOR AGREES TO ORDER EQUIPMENT SPECIFIED IN EACH
PURCHASE ORDER FROM THE SPECIFIED SUPPLIER, BUT LESSOR SHALL HAVE NO
RESPONSIBILITY FOR DELAY OR FAILURE TO FILL SUCH SCHEDULE AND/OR MASTER LEASE
LETTER AGREEMENT. LESSEE HEREBY AUTHORIZED LESSOR TO INSERT IN EACH SCHEDULE
AND/OR MASTER LEASE LETTER AGREEMENT AND/OR DOCUMENTS AND FORMS, THE SERIAL
NUMBERS, AND OTHER IDENTIFICATION DATA, OF THE EQUIPMENT WHEN DETERMINED BY
LESSOR.
9. NO WARRANTIES BY LESSOR. LESSOR MAKES NO WARRANTY, GUARANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY EQUIPMENT DESCRIBED
ON ANY SCHEDULE AND/OR MASTER LEASE LETTER AGREEMENT, INCLUDING, BUT NOT
LIMITED TO: MERCHANTABILITY, FITNESS, CONDITION, DESIGN FOR A PARTICULAR
PURPOSE, QUALITY OR CAPACITY OF THE EQUIPMENT, WORKMANSHIP, COMPLIANCE WITH
THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING TO
THE EQUIPMENT OR COPY-RIGHT INFRINGEMENT, TRADE SECRET INFRINGEMENT, PATENT
INFRINGEMENT OR PATENT DEFECTS, LESSEE ACKNOWLEDGES THAT THE EQUIPMENT
SUBJECT TO THIS LEASE AND EACH SCHEDULE AND/OR MASTER LEASE LETTER AGREEMENT
ARE, AND WILL BE, "AS IS". LESSOR IS NOT, AND WILL NOT, BE RESPONSIBLE OR
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OR LOSSES RESULTING FROM THE INSTALLATION, OPERATION OR USE OF ANY OF THE
EQUIPMENT OR ANY PRODUCTS MANUFACTURED THEREWITH OR THEREBY. FURTHER,
NOTWITHSTANDING LESSOR'S ACCEPTANCE OF ANY SCHEDULE AND/OR MASTER LEASE LETTER
AGREEMENT, LESSOR IS NOT RESPONSIBLE OR LIABLE FOR ANY SUCH DAMAGES OR LOSSES,
RESTITUTION, SPECIFIC PERFORMANCE OR ANY OTHER REMEDY IN THE EVENT THAT FOR
ANY REASON ANY SUPPLIER OF THE EQUIPMENT FAILS TO DELIVER THE SAME TO LESSOR
OR LESSEE OR IN ANY OTHER MANNER OR RESPECT BREACHES OR FAILS TO PERFORM ITS
CONTRACT WITH LESSOR.
THE PARTIES AGREE THAT THIS LEASE IS A "FINANCE LEASE" AS DEFINED BY
SECTION 2A-103(g) OF THE UNIFORM COMMERCIAL CODE (UCC). LEASE ACKNOWLEDGES
EITHER (a) THAT LESSEE HAS REVIEWED AND APPROVED ANY WRITTEN AND APPROVED ANY
WRITTEN SUPPLY CONTRACT (AS DEFINED BY UCC SECTION 2A-103(y)) COVERING THE
EQUIPMENT PURCHASED FROM THE "SUPPLIER" (AS DEFINED BY UCC SECTION 2A-103(x))
THEREOF FOR LEASE TO LESSEE OR (b) THAT LESSOR HAS INFORMED OR ADVISED
LESSEE, IN WRITING, EITHER PREVIOUSLY OR BY THIS LEASE OF THE FOLLOWING: (i)
THE IDENTITY OF THE SUPPLIER; (ii) THAT THE LESSEE MAY HAVE RIGHTS UNDER THE
SUPPLY CONTRACT; AND (iii) THAT THE LESSEE MAY CONTACT THE SUPPLIER FOR A
DESCRIPTION OF ANY SUCH RIGHTS LESSEE MAY HAVE UNDER THE SUPPLY CONTRACT.
LESSOR 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 THE USE OR MAINTENANCE THEREOF OR THE FAILURE OR OPERATION
THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT THEREOF, OR BY ANY DELAY OR
FAILURE TO PROVIDE ANY SUCH MAINTENANCE, REPAIRS, SERVICE OR ADJUSTMENT, OR
BY ANY INTERRUPTION OF SERVICE OR LOSSES OF USE THEREOF OR FOR ANY LOSS OF
BUSINESS HOWSOEVER CAUSED, LESSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL
DAMAGES AS THAT TERM IS USED IN UCC SECTION 2-719(3). NO DEFECT OR UNFITNESS
OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY ANY
INSTALLMENT OF RENT OR ANY OTHER OBLIGATION UNDER THIS LEASE. LESSOR SHALL
HAVE NO OBLIGATION UNDER THIS LEASE IN RESPECT OF THE EQUIPMENT AND SHALL HAVE
NO OBLIGATION TO INSTALL, ERECT, TEST, ADJUST OR SERVICE THE EQUIPMENT.
LESSOR AGREES, SO LONG AS THERE SHALL NOT HAVE OCCURRED OR BE CONTINUING ANY
EVENT OF DEFAULT AS DEFINED IN THIS LEASE OR EVENT WHICH WITH LAPSE OF TIME OR
NOTICE, OR BOTH, MIGHT BECOME AN EVENT OF DEFAULT HEREUNDER, THAT LESSOR WILL
PERMIT LESSEE TO ENFORCE IN LESSEE'S OWN NAME AND AT LESSEE'S SOLE EXPENSE
ANY SUPPLIER'S OR MANUFACTURER'S WARRANTY OR AGREEMENT IN RESPECT OF THE
EQUIPMENT TO THE EXTENT THAT SUCH WARRANTY OR AGREEMENT IS ASSIGNABLE, LESSEE
ACKNOWLEDGES THAT LESSEE HAS REVIEWED AND APPROVED THE PURCHASE ORDER, SUPPLY
CONTRACT OR PURCHASE AGREEMENT COVERING THE EQUIPMENT PURCHASED FROM THE
SUPPLIER OR SUPPLIER THEREOF FOR LEASE TO LESSEE.
10. CLAIMS AGAINST SUPPLIER. IF ANY ITEMS EQUIPMENT ARE NOT PROPERLY
INSTALLED, DO NOT OPERATE AS REPRESENTED OR WARRANTED BY SUPPLIER, OR ARE
UNSATISFACTORY FOR ANY REASON, LESSEE SHALL MAKE ANY CLAIM ON ACCOUNT
THEREOF SOLELY AGAINST SUPPLIER AND SHALL, NEVERTHELESS, PAY LESSOR ALL RENT
PAYABLE UNDER THIS LEASE AND EVERY SCHEDULE AND/OR MASTER LEASE LETTER
AGREEMENT RELATED HERETO. LESSOR WILL INCLUDE, AS A CONDITION OF ANY PURCHASE
ORDER DELIVERED TO ANY SUPPLIER, THAT SUPPLIER AGREE THAT ALL WARRANTIES,
AGREEMENTS AND REPRESENTATIONS, IF ANY MADE BY SUPPLIER TO LESSEE OR LESSOR
MAY BE ENFORCED BY LESSEE IN ITS OWN NAME. LESSOR HEREBY AGREES TO ASSIGN TO
LESSEE, SOLELY FOR THE PURPOSE OF MAKING AND PROSECUTING ANY SAID CLAIM, ALL
OF THE RIGHTS WHICH LESSOR HAS OR MAY HAVE AGAINST ANY SUPPLIER FOR BREACH
OF WARRANTY OR OTHER REPRESENTATION RESPECTING ANY EQUIPMENT, PROVIDED LESSEE
IS NOT IN DEFAULT HEREUNDER.
Agreements relating to Equipment not so involved shall remain in full force
and effect. Upon such payment, if all Equipment leased to Lessee pursuant to
this Lease and all Schedule and/or Master Lease Letter Agreements related
hereto are so involved, this Lease and each Schedule and/or Master Lease
Letter Agreement related hereto will terminate. Further, upon such payment,
Lessee and/or Lessee's insurer shall be entitled to Lessor's interest in such
Equipment for salvage purposes, in their then condition and location, as is,
WITHOUT WARRANTY, EXPRESSED OR IMPLIED. (c) If any or all of the Equipment are
partially damaged or partially destroyed, the obligation of Lessee to pay
rent therefor will not xxxxx, this Lease and the applicable Schedule and/or
Master Lease Letter Agreement will remain in effect, and Lessee, on demand and
at its expense, will forthwith (i) cause said Equipment to be restored to
good condition and repair, or (ii) replace said Equipment of the same make
and of the same or later model, and in good condition and repair acceptable
to Lessor.
20. INDEMNITY. Lessee assumes liability for, and hereby agrees
unconditionally, absolutely, irrevocable and continuing to indemnify,
protect, defend, save and keep harmless Lessor, its employees, officers,
directors, successors and assigns, from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs and
expenses, including legal expenses, of whatever kind and nature, imposed on,
incurred by or asserted against Lessor, its agents, employees, officers,
directors, successors and assigns, in any way relating to or arising out of
the ownership, possession, use, selection, delivery, leasing, operation,
maintenance, return or condition of the Equipment or any failure on the part
of Lessee to perform or comply with any of the terms or conditions of this
Lease or any Schedule and/or Master Lease Letter Agreement thereto. The
assumptions of liability and indemnities contained in this paragraph will
continue in full force and effect and survive the execution, acceptance,
delivery, expiration and or termination of this Lease and any Schedule and/or
Master Lease Letter Agreement hereto.
21. INSURANCE. (a) Lessee agrees, at its expense, to obtain and maintain
insurance on the Equipment against loss or damage by fire, theft, explosion
and all other hazards and risks ordinarily subject to extended coverage
insurance and against such other hazards and risks as Lessor may request for
the full insurable value thereof by policies in form and issued by insurance
companies satisfactory to Lessor, (b) Lessee agrees, at its expense, for the
protection of Lessor and Lessee, as their interests may appear, to obtain and
maintain, with insurance companies satisfactory to Lessor, general public
liability insurance, in amounts reasonably acceptable to Lessor, for personal
injury or death or property damage arising out of the use, ownership,
possession, operation, or condition of the Equipment. (c) If so requested by
Lessor, a certified copy of such insurance policies, or certificates
evidencing such insurance, in the aforesaid form and amounts, must be
delivered to Lessor within ten days of Lessee's execution and delivery of
this Lease to Lessor. Lessor's acceptance of policies not conforming hereto
will not constitute a waiver by Lessor of any obligation of Lessee under this
paragraph. (d) Each such insurer will agree, by endorsement upon the policy
or policies issued by it or by independent instruments furnished to Lessor,
that losses are payable to Lessor and that such insurer will give Lessor
thirty days' prior written notice before the policy or policies will be
altered, cancelled or terminated, and that no act or default of any person
other than Lessor will effect Lessor's right to recover thereunder in case of
loss. (e) Lessee hereby directs all insurers to pay all proceeds of the
aforesaid policies to Lessor, and hereby irrevocably appoints Lessor its
agent and attorney-in-fact for the purpose of making, settling and adjusting
claims under said policies, endorsing the name of Lessee on any check, draft,
instrument or other item of payment for the proceeds of said policies and for
determining whether to replace the Equipment or take cash. (f) Except as
hereinafter provided, proceeds of the aforesaid policies may be applied by
Lessor, upon receipt, in any manner determined by Lessor, provided, however,
that (i) in the event subparagraph 19(b) is relevant, the insurance proceeds
will be applied by Lessor in reduction of Lessee's Obligations; and (ii) in
the event subparagraph 19(c) is relevant, the insurance proceeds will be
paid by Lessor to Lessee, provided that Lessee has, to Lessor's satisfaction,
fulfilled obligations under this Lease and any Schedule and/or Master Lease
Letter Agreement hereto. (g) Lessee acknowledges that the terms and
provisions of this paragraph 21 shall be deemed "material" with respect to
subparagraph 29(a) (iii) hereof.
22. TAXES. Lessee shall keep Equipment free and clear of all levies, liens,
and encumbrances. Lessee shall in the manner directed by Lessor, (a) make and
[illegible] declarations and returns in connection with all charges and taxes
(local, state, and federal), which may now or hereafter be imposed upon or
measured by the ownership, leasing, sale, purchase, possession, or use of
Equipment, excluding however, all taxes on or measured lessor's net income,
and (b) pay all such charges and taxes in the event that Lessor shall elect
to make and file any or all declarations and returns in connection with such
charges and taxes, to pay the same, then the Lessee shall reimburse the
Lessor, upon demand of the Lessor, for any and all such charges and taxes
applicable to the Equipment leased by Lessor to Lessee. Lessor's good faith
acceptance of a tax exemption does not represent an assurance that the state
will also accept the certificate as valid at the time of audit review. Lessee
is responsible for any future audit adjustment if the certificate is not
accepted. Lessee agrees to reimburse Lessor for the amount of audit
adjustment and the aggregate of tax, interest, and penalty, if a certificate
is subsequently denied.
23. RIGHT TO PERFORM COVENANTS. If Lessee shall fail to make any payment or
perform any act required to be made or performed by Lessee hereunder, Lessor,
without waiving or releasing any obligation on the part of Lessee or any
Event of Default, may at any time thereafter make such payment or perform
such act for the account and at the expense of Lessee. All sums so paid by
Lessor and all expenses (including, without limitation, interest, overhead
expenses, and reasonable attorneys' fees) so incurred, which will be deemed
to be additional Rent and will become part of Lessee's Obligations, payable
with Lessee's Obligations, payable by Lessee to Lessor on demand.
24. ASSIGNMENT BY LESSOR. Lessor may, without Lessee's consent, assign this
Lease or any Schedule and/or Master Lease Letter Agreement or any interest
herein or therein, including without limitation, grant a security interest in
the Equipment. Lessor's assignee or secured creditor may reassign this Lease,
any Schedule and/or Master Lease Letter Agreement and/or such security
interest, without notice to Lessee. Each such assignee and/or secured party
shall have all of the rights but none of the obligations of Lessor under this
Lease or any Schedule and/or Master Lease Letter Agreement. Lessee shall
recognize each such assignment and/or security interest and shall not assert
against the assignee and/or secured party any defense, counterclaim, or
set-off that Lessee may have against Lessor. Nothing contained herein shall be
deemed to constitute a waiver of Lessee's right, remedies, defenses,
counterclaims or set-offs against Lessor, and all such rights are hereby
expressly reserved.
25. WITHOUT LESSOR'S PRIOR CONSENT, LESSEE SHALL NOT (A) ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE, OR OTHERWISE DISPOSE OF THIS LEASE, AND/OR THE EQUIPMENT
AND ANY SCHEDULE AND/OR MASTER LEASE LETTER AGREEMENT EXECUTED IN CONNECTION
THEREWITH, SUBJECT THEREOF, OR ANY INTEREST THEREIN, OR (B) SUBLET OR LEND
EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER THAN LESSEE OR LESSEE'S
EMPLOYEES.
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26. NOTICES. Lessee will promptly notify Lessor in writing: (a) of the amount
of any delinquent federal, state, county or municipal taxes assessed or
charged that may subject the Equipment to the hazard of seizure or lien; (b)
of any claim, demand, action or dispute known to Lessee relating to the
Equipment or the interests of Lessor or Lessee therein; and (c) of any
material accident or casualty in which the Equipment are directly or
indirectly involved or of any claim or demand arising from such accident or
casualty.
27. LESSEE'S WARRANTIES, REPRESENTATIONS AND COVENANTS. Lessee warrants,
represents and covenants to Lessor that: (a) the Equipment will [illegible]
at all times at Lessee's place of business specified above and, Lessee will
not remove the Equipment from said location without Lessor's prior written
consent and will promptly notify Lessor of any such change in location of the
Equipment; (b) Lessee immediately will advise Lessor in writing of any such
change in such location or in Lessee's place or places of business; (c)
Lessee will not dispose of the Equipment, or permit the Equipment to become
fixtures to real estate or accessions to other personal property; (d) Lessee
will not permit the Equipment at any time to become subject to any lien,
security interest, claim, charge or other encumbrance, except that which
Lessor may require to protect Lessor's rights hereunder and under any
Schedule and/or Master Lease Letter Agreement hereto; (e) Lessee will
acquire, at its expense, all permits, licenses and certificates required by
law with respect to the Equipment, their use, ownership or operation, and
Lessee will use and operate the Equipment solely in Lessee's business; (f)
Lessee is now and shall at all times hereafter be solvent and able generally
to pay its debts as the same become due and Lessee now owns and shall at all
times hereafter own property which, at a fair valuation, has a value greater
than the amount required to pay its debts; and (g) Lessee now has and shall
have at all times thereafter capital sufficient to carry on its business and
transactions and all businesses and transactions in which it is about to
engage.
28. EFFECT OF WAIVER. Lessor's failure at any time or times hereafter to
require strict performance by Lessee of any of the provisions, warranties,
covenants, terms and conditions contained in this lease, any Schedule and/or
Master Lease Letter Agreement hereto or in any other agreement, instrument or
document heretofore, now or hereafter executed by Lessee and delivered to
Lessor will not waive or diminish any right of Lessor thereafter to demand
strict compliance and performance therewith or with respect to any other
provision, warranty, covenant, term or condition contained in such other
agreements, instruments and documents. Any waiver of any Event of Default
will not waive or affect any other Event of Default, whether prior or
subsequent thereto. None of the terms, conditions or provisions of this Lease
will be deemed to have been waived by any act or knowledge of Lessor, its
agents or employees, but only by an agreement in writing signed by an officer
of Lessor and delivered to Lessee.
29. DEFAULT; REMEDIES: (a) The occurrence of any one of the following events
will constitute a default by Lessee hereunder ("Event of Default"): (i)
failure to pay when due and payable any payment of rent (original or renewal)
or any other of Lessee's Obligations; (ii) failure by Lessee to perform, keep
and observe any term, provision, warranty, condition, covenant or
representation hereunder that is required to be performed, kept or observed
by Lessee (other than those contained in (i) above); (iii) if any any time or
times hereafter any material warranty, representation, statement, report or
certificate now or hereafter made or furnished to Lessor by or on behalf of
Lessee is not true and correct; (iv) if any of the Equipment or all or a
material part of Lessee's property is attached, seized, subjected to writ or
distress warrant, or is levied upon, or comes within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors and the
same is not terminated or dismissed within twenty days thereafter; (v) the
death of Lessee; (vi) the filing or commencement of any application,
proceeding or case by Lessee for Lessee's dissolution or liquidation, the
attempt by Lessee to make an assignment for the benefit of Lessee's
creditors, or the filing by Lessee of any case under the Bankruptcy Reform
Act of 1978, or any similar law, whether state or federal, for liquidation or
rehabilitation of Lessee or of any case for the appointment of a receiver,
trustee or custodian for all or a material part of the property of Lessee;
(vii) the filing against Lessee of any application, proceeding or case for
Lessee's dissolution or liquidation, or of any case against Lessee under the
Bankruptcy Reform Act of 1978 or any similar law, whether state or federal,
or of any case against Lessee for the appointment of a receiver, trustee or
custodian for all or a material part of the property of Lessee, and any such
application, proceeding or case is not dismissed or stayed within thirty days
after the filing thereof; (viii) the filing of a notice of tax lien or the
existence of any other lien, claim or encumbrance with respect to any of the
Equipment or all [illegible] material part of Lessee's property; (ix) if
Lessee is enjoined, restrained or in any way prevented by court order or
otherwise from conducting all or a material part of its business affairs in
the ordinary course of such injunction or restraint is not dismissed or
stayed within thirty days after the entry or filing thereof; (x) the
occurrence of a default or Event of Default under any agreement, by and
between Lessee and Lessor, instrument or document heretofore, now or at any
time or times hereafter executed and delivered by Lessee to Lessor or any
affiliate thereof; (xi) if Lessee is in default in the payment of any
indebtedness to any third party and such default is declared and is not cured
within the time, if any, specified therefor in any agreement governing the
same; (xii) if Lessee fails to notify Lessor in writing and does not secure
prior written approval from Lessor of any of the following changes regarding
Lessee; legal name, entity type or structure, chief place of business or
executive offices, or opening of an additional location or locations to
conduct business and/or to store Lessor's Equipment; or (xiii) through
Lessee's actions, Lessor's interest in its Equipment is jeopardized or in any
way becomes junior to any creditor. (b) Upon an Event of Default, Lessor may,
at its election and without notice or demand, exercise any one or more of the
following remedies in order to protect the interest and reasonably expected
profits and bargains of Lessor;
(a) upon notice to Lessee terminate this Lease and all Lease Schedules
executed pursuant thereto;
(b) upon the occurrence of any Event of Default or anytime thereafter, or if
Lessor decides, in its sole discretion, not to take possession of the
Equipment, Lessor continues to be the owner of the Equipment and may, but
is not obligated to, dispose of the Equipment by sale or otherwise, all
of which determinations may be made by Lessor in its absolute discretion
and for its own account;
(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 options which Lessee has contracted to pay);
(d) with or without terminating this Lease, recover from Lessee damages, not
as a penalty, but herein liquidated for all purposes and in an amount
equal to the sum of: (i) any accrued and unpaid rent as of the date of
entry of judgment in favor of Lessor plus late charges and all other sums
that may accrue hereunder; (ii) the present value of all future rentals
reserved in the Lease and contracted to be paid over the unexpired term
of the Lease discounted at a rate equal to the discount rate of the
Federal Reserve Bank of Philadelphia as of the date of entry of judgment
in favor of Lessor plus one percent (1%), (iii) all commercially
reasonable costs and expenses incurred by Lessor in any repossession,
recovery, storage, repair, sale, release, or other disposition of the
Equipment including reasonable attorneys' fees and costs incurred in
connection therewith or otherwise resulting from Lessee's default
(inclusive of attorneys' fees, fees of collection agencies, and other costs
incurred in the collection of the balance due); (iv) estimated
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residual value of the Equipment as of the expiration of this Lease or
any renewal thereof (if such lease has been renewed), and (v) any
indemnity, if then determinable. For purposes hereof, in the event that
Lessee shall pay all sums due to Lessor under sections (i) through (v)
of this paragraph prior to the date of entry of judgment, the date of
payment shall be deemed to be the data of entry of judgment for purposes
of this paragraph;
(e) in its sole discretion, re-lease or sell any or all of the Equipment at
a public or private sale on such terms and with or without notice, as
Lessor shall deem reasonable, at Lessor's place of business and recover
from Lessee damages, not as a penalty, but herein liquidated for all
purposes and in an amount equal to the sum of; (i) any accrued and
unpaid rent as of the later of (A) the date of default or (B) the date
that Lessor has obtained possession of the Equipment or such other date
as Lessee has made an effective tendor of possession of the Equipment
back to Lessor ("Default Date"), plus rent (at the rate provided for in
this Lease and any Lease Schedule) for the additional period (but in no
event longer than four (4) months that it takes Lessor to resell or
remarket all of the Equipment, plus late charges and all other sums that
may accrue hereunder; (ii) the present value of all future rentals
reserved in the Lease and contracted to be paid over the unexpired term
of the Lease discounted at a rate equal to the discount rate of the
Federal Reserve Bank of Philadelphia as of the Default Date plus one
percent (1%); (iii) all commercially reasonable costs and expenses
incurred by Lessor in any repossession, recovery, storage, repair,
sale, re-lease or other disposition of the Equipment including
reasonable attorneys' fees and costs incurred in connection with or
otherwise resulting from the Lessee's default; (iv) estimated residual
value of the Equipment as of the expiration of this Lease or any renewal
thereof (if such Lease has been renewed), and (v) any indemnity, if then
determinable; LESS the amount received by Lessor upon such public or
private sale or re-lease of such items of Equipment, if any;
(f) if (i) Lessor elects not to sell, re-lease or otherwise dispose of all
or part of the Equipment or (ii) does so by a re-lease which is not made
in a manner substantially similar to the Lease or any applicable Lease
Schedule or (iii) the measure of damages under subparagraphs (c) and (d)
above are not allowable under any applicable law, Lessor may recover the
market value, if any, as of the Default Date of the rent reasonably
estimated by Lessor to be obtainable for the Equipment during the
remaining Lease term or any renewal thereof then in effect, plus any
accrued and unpaid rent as of the Default Date;
(g) exercise any other right or remedy which may be available to it under
the Uniform Commercial Code or any other applicable law;
(h) a termination hereunder shall occur only upon notice by Lessor and only
as to such items of Equipment as Lessor specifically elects to terminate
and this Lease shall continue in full force and effect as to the
remaining items, if any;
(i) If this Lease 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, indebtedness at any time owing by Lessee
to Lessor. No remedy referred to in this Paragraph 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.
(j) Lessor shall the right to apply Lessee's security deposit to reduce the
amount of lessee's obligations and proceed against Lessee for any
remaining sums owed.
30. COSTS, EXPENSES AND ATTORNEYS' FEES. If at any time or times after an
Event of Default Lessor employs counsel for advice with respect to this Lease
or any Schedule and/or Master Lease Letter Agreement hereto, or to intervene,
file a petition, answer, motion or other pleading in any suit or proceeding
relating to this Lessee, any Schedule and/or Master Lease Letter Agreement or
any Equipment, or to represent Lessor in any pending or threatened litigation
with respect to the affairs of Lessee, or to enforce any rights of Lessor
hereunder or under any Schedule and/or Master Lease Letter Agreement, or the
payment of Lessee's Obligations, then, in any of such events, all of Lessor's
reasonable attorney's fees arising therefrom, and any posts and expenses
relating thereto, will become part of Lessee's Obligations due hereunder,
payable by Lessee to Lessor on demand. Lessee otherwise agrees to pay all
other costs and expenses, including fees of collection agencies and other
expenses incurred in enforcing the terms and conditions thereof, such as
telephone and telegraph expenses, including phone calls by initiated by
Lessor as a result of Lessee's delinquency in rental payments.
31. GRANT OF SECURITY. As security of Lessee's Obligations, Lessee agrees
that all leases or leasehold interests, security interests, liens and
encumbrances heretofore, now and at any time or times hereafter granted or
executed by Lessee to Lessor shall secure Lessee's Obligations under this
Lease.
32. LESSEE'S WAIVERS. To the extent permitted by applicable law, Lessee
hereby waives any and all rights and remedies conferred upon a Lessee by
Sections 2A-508 through 2A-522 of the UCC, 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;
(vi) 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 items due
from Lessor; (x) recover any general, special, incidental, or consequential
damages, for any reason whatsoever, and (xi) specific performance, replevin,
datinue, sequestration, claim, and delivery of the like for any Equipment
indemnified to this Lease. To the extent permitted by applicable law, Lessee
also hereby, waive any rights now or hereafter conferred by statute or
otherwise which may require Lessor to sell, lese or otherwise use any
Equipment in mitigation of Lessor's damages as set forth in Paragraph 29 or
which may otherwise limit or modify any of Lessor's rights or remedies under
Paragraph 29. 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.
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33. APPLICABLE LAW; CONSENT TO JURISDICTION. (a) THIS LEASE, ALL SCHEDULE
AND/OR MASTER LEASE LETTER AGREEMENTS AND ALL AGREEMENTS, INSTRUMENTS AND
DOCUMENTS EXECUTED AND DELIVERED PURSUANT HERETO ARE SUBMITTED TO LESSOR AT
LESSOR'S PRINCIPAL PLACE OF BUSINESS STATED AFORESAID FOR LESSOR'S ACCEPTANCE
OR REJECTION AND SHALL BE DEEMED TO HAVE BEEN MADE THEREAT. THIS LEASE, ALL
SCHEDULE AND/OR MASTER LEASE LETTER AGREEMENTS AND ALL RELATED AGREEMENTS,
INSTRUMENTS AND DOCUMENTS SHALL BE GOVERNED AND CONTROLLED AS TO
INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT AND IN ALL
RESPECTS BY THE LAWS, [STATUTES] AND DECISIONS OF THE COMMONWEALTH OF
PENNSYLVANIA, (b) LESSEE, IN ORDER TO INDUCE LESSOR TO ACCEPT THIS LEASE AND
FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF
WHICH IS HEREBY ACKNOWLEDGED, AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING
DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR
FROM THE LEASE, ANY SCHEDULE AND/OR MASTER LEASE LETTER AGREEMENT OR ANY
RELATED AGREEMENT, INSTRUMENT OR DOCUMENT SHALL BE LITIGATED, AT LESSOR'S
SOLE DISCRETION AND ELECTION, ONLY IN COURTS HAVING SITUS WITHIN THE
COMMONWEALTH OF PENNSYLVANIA, LESSEE HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN THE
COMMONWEALTH OF PENNSYLVANIA. LESSEE HEREBY WAIVES ANY RIGHT LESSEE MAY HAVE
TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST LESSEE BY
LESSOR, OR ANY ASSIGNEE OF LESSOR IN ACCORDANCE WITH THIS PARAGRAPH.
34. FINANCIAL STATEMENTS. Lessee shall provide Lessor with such corporate
resolutions, opinions of counsel, annual and interim financial statements,
UCC-1 Financing Statements, and other documents as Lessor shall require from
time to time.
35. MISCELLANEOUS. (a) If any provision of this Lease or any Schedule and/or
Master Lease Letter Agreement hereto or the application thereof to any party
or circumstances is held invalid or unenforceable, the remainder of this
Lease and any applicable Schedule and/or Master Lease Letter Agreement and
the application of such provision to other parties or circumstances will not
be affected thereby, and to this and the provisions of this Lease and all
Schedule and/or Master Lease Letter Agreements are declared severable. (b)
Titles to the paragraphs in this Lease are solely for the convenience of this
Lease and are not in aid of interpretation in this Lease. (c) Time is of the
essence of this Lease, and all Schedule and/or Master Lease Letter Agreements
hereto, in each and all of their provisions. (d) This Lease, together with
the applicable Schedule and/or Master Lease Letter Agreement, contains the
full, final and exclusive statement of the agreement between Lessor and
Lessee relating to the lease of the Equipment and may not be amended, altered
or changed except by a writing signed by both Lessor and Lessee. (e) Lessee
will obtain and immediately deliver, or cause to be delivered to Lessor,
waivers of any rights in and to the Equipment from all owners and mortgages
of the real estate upon which the Equipment are or are to be located. (f) The
signature of any officer of Lessee, if Lessee is a corporation, or of any
partner or managing agent, if Lessee is a partnership, on this Lease, any
Schedule and/or Master Lease Letter Agreement or on any of the statements,
reports, waivers, agreements, instruments or documents now or from time to
time hereafter executed in the name of Lessee and delivered to Lessor will be
binding upon Lessee, (g) Lessee represents and warrants to Lessor has the
power and is duly authorized to enter into this Lease and to execute and
deliver the same to Lessor. (h) For purposes of determining the amount of
Lessee's obligations, the receipt of any check or any other item of payment
on account thereof will not be considered a payment on account thereof until
such check or other item of payment is honored when presented for payment.
Lessee irrevocably waives the right to direct application of any and all
payments at any time or times hereafter which may be received by Lessor by or
for the benefit of Lessee, and Lessee irrevocably agrees that Lessor will
have the continuing exclusive right to apply and reapply any and all such
payments received by Lessor at any time or times hereafter in such manner as
Lessor may deem advisable, notwithstanding any entry by Lessor on any of its
books and records. (i) This Lease and all Schedule and/or Master Lease Letter
Agreements and all agreements, instruments and documents executed and
delivered pursuant hereto or to consummate the transactions contemplated
hereunder, will be binding upon and inure to the benefit of their heirs,
executors, administrators, personal representatives, successors and assigns
of the parties hereto. (j) Whenever Lessor or Lessee (or [illegible] claiming
by, through or under them) desires, or for the enforcement of any of the
rights hereunder, is required, to give notice to or make demand [illegible]
the other party (or anyone claiming by, through or under it), it will be
sufficient service of such notice or demand to serve said notice or demand in
person or to place a copy thereof in an envelope addressed to said party as
its address referred to above, or such other address as each party may
designate in writing to the other, and deposit the same in the United States
mail, postage prepaid, by registered or certified mail. (k) All
representations and warranties of Lessee and all terms, provisions,
conditions agreements to be performed by Lessee contained herein will be true
and satisfied at the time of Lessee's execution of this Lease and any
Schedule and/or Master Lease Letter Agreement hereto and will survive the
same and will be and remain true and satisfied for the Original Term and any
Renewal Term hereunder and under any Schedule and/or Master Lease Letter
Agreement hereto. (l) If there is more than one signer (exclusive of Lessor)
of this Lease, whether as Lessee or a co-signer, their obligations will be
joint and several and the term "Lessee" will include each such party, jointly
and severally.
Lessee hereby authorizes AEL Leasing Co., Inc. to sign and execute on its
behalf, any and all necessary UCC forms regarding the interest of AEL
Leasing Co., Inc. in its equipment.
IN WITNESS WHEREOF, this Lease has been executed and delivered by Lessee
to Lessor as of the date and year set forth above.
UNIVERSITY OF FLORIDA TISSUE BANK, INC.
-----------------------------------------
Name of Lessee
Attest:
(Corporate Seal)
By _________________________ By /s/ Xxxxx X. Xxxxxx President
Title -------------------------------------
Title
Telephone (000) 000-0000
------------------------------
Accepted at Reading, PA this _____________ day of __________________, 19____.
American Equipment Leasing
a division of AEL Leasing Co., Inc.
By _____________________________________
Title
ADDENDUM "A"
WHEREAS, UNIVERSITY OF FLORIDA TISSUE BANK, INC. ("Lessee") and American
Equipment Leasing, a division of AEL Leasing Co., Inc. ("American") have
entered into a Master Lease dated AUGUST 8, 1996 ("Lease") for certain
equipment described therein ("Equipment") which at Lessee's request American
shall purchase from vendor(s) ("Vendor(s)") expressly for the purpose of
leasing said Equipment to Lessee; and
WHEREAS, at Lessee's request, American shall advance payments to
Vendor(s) for said Equipment prior to delivery and acceptance in accordance
herewith; and
WHEREAS, Lessee has agreed to reimburse American for said sums advanced
to Vendor(s) for the purchase of said Equipment in the event of cancellation
hereof and, in addition, to pay certain sums to American prior to final
acceptance of the Equipment, in accordance with the terms hereof.
1. Lessee hereby requests American to advance payment to Vendor(s) as
the purchase price or partial payment thereof, in accordance with the written
request of Lessee.
2. Lessee agrees to indemnify and hold harmless American, its
successors and assigns, from and against any and all actions, claims and
demands of any nature whatsoever, now and in the future, arising out of the
performance of the addendum A, and/or for all losses or expenses incurred as
a result of American's making said advances (including court costs and
reasonable attorney's fees incurred in the enforcement of this Addendum A by
American), and/or for any claims made by Vendor, in against American for
remaining sums due under a purchase order issued to Vendor, in the event of
termination and/or cancellation of the purchase order by American or Lease by
Lessee or for any damages resulting from the failure of Vendor to properly
complete the installation of Equipment.
3. It is expressly agreed that any funds advanced by American to Vendor
pursuant to Paragraph 1 are advanced at the sole request of the Lessee.
4. Lessee further agrees to immediately reimburse American for any
advances to Vendor(s) by American, in the event Lessee, Lessor or Vendor, for
any reason whatsoever, attempts to cancel the installation of the Equipment,
prior to final acceptance of the Equipment by Lessee.
5. Lessee hereby waives paragraph 12b of this Lease.
6. In the event that Lessee does not fully and finally accept the
Equipment subject of the Lease within 120 days after the date of the Addendum
A; American shall be entitled to retain all payments received and, Lessee
agrees to immediately reimburse American for all advances made pursuant to
Paragraph 1 hereof and further agrees to indemnify American pursuant to the
terms and conditions of Paragraph 2 hereof. Upon receipt by American of all
sums due for such reimbursement and other sums due, the Lease shall
thereafter be otherwise deemed canceled, and all rights and interest in the
Equipment shall be assigned to Lessee by American.
7. Default. In the event that Lessee shall default in any terms under
the Lease or under this Addendum A, American shall have no further obligation
to advance any sums to Vendor, and Lessee shall immediately reimburse
American for all advances to that date made pursuant to paragraph 1 hereof,
plus interest at the rate of 1 1/2 percent per month or the maximum allowed
by law, whichever is the lesser; plus any other sums due in accordance
herewith.
AMERICAN EQUIPMENT LEASING UNIVERSITY OF FLORIDA TISSUE BANK INC.
(a division of AEL Leasing Co., Inc.) --------------------------------------
By: By: /s/ Xxxxx X. Xxxxxx
-------------------------------- ------------------------------
Title: Title: President
-------------------------------- --------------------------
Dated: August 8, 1996
--------------------------
