FIRST HAWAIIAN LEASING, INC.
XXX 00000
XXXXXXXX, XXXXXX 00000
TELEPHONE 000-0000
MASTER LEASE AGREEMENT NO. A2500
Lessee: HAWAIIAN NATURAL WATER CO.
0000 Xxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxx, Xxxxxx 00000
Phone No. (000) 000-0000 Xxxxxxx XX Xx. X00-0000000 Xxxxxx GE Tax No. X10521179
Kind of Business: Corporate
1. MASTER LEASE AGREEMENT. First Hawaiian Leasing, Inc. (the "Lessor")
hereby agrees to lease to the above-described Lessee, and the Lessee agrees to
lease from the Lessor, all machinery, equipment and other personal property
("Equipment") described in the lease schedules ("Lease Schedules") executed
concurrently herewith, or which may from time to time hereafter be executed by
the Lessor and the Lessee and attached hereto and incorporated by reference,
upon the terms and conditions set forth in this Master Lease Agreement and the
Lease Schedules. As used herein, the term "this Lease" includes this Master
Lease Agreement and all Lease Schedules, and unless the Lessor has made an
election to separate this Lease pursuant to paragraph 20 below, this Lease shall
constitute one undivided lease of the Equipment. All of the terms, covenants and
conditions of this Lease shall govern the rights and obligations of the Lessor
and the Lessee, except as specifically modified in writing.
2. LEASE TERM. This Lease shall become effective upon the execution of this
Lease by the parties and shall terminate upon the full performance and
satisfaction of all of the terms, covenants and conditions set forth in this
Lease. The Rental Term for each item of Equipment is provided in the Lease
Schedule. Once the Rental Term has commenced, the Lessee shall have no right to
terminate the lease of the Equipment described in the Lease Schedule prior to
the expiration of such Rental Term.
3. RENT. The Lessee shall pay the Lessor the amount of rent set forth in
the Lease Schedules on the dates specified therein; provided, however, if the
actual Capitalized Cost of the Equipment differs from the amount set forth in
the Lease Schedules, the Lessor may adjust the amount of rent based on the
amount of any such difference. The method of adjusting the rent is set forth in
the Lease Schedules. As used in this Lease, the term "actual Capitalized Cost"
means the cost to the Lessor of purchasing, delivering and, to the extent
approved by the Lessor, the costs of installing and making the Equipment
available for use. Interim rental shall be paid by the Lessee to the Lessor as
provided in the Lease Schedules. All rental payments shall be paid at the office
of the Lessor or such other place as the Lessor may hereafter specify in writing
to the Lessee. If the Lessor's interest in this Lease is assigned to a third
party, all rental payments shall be paid at the office of the assignee or such
place as the assignee may hereafter specify in writing to the Lessee. The Lessee
shall pay all rent to the Lessor or the Lessor's assignee without deduction,
setoff or demand, and the amount of such rent shall not be reduced in amount
during any period in which the Equipment is being serviced or repaired. In
addition to the rental payments, the Lessee shall pay such other sums as are
specified in this Lease.
4. GENERAL EXCISE TAX. The Lessee shall pay to the Lessor, as additional
rent, an amount equal to the gross income taxes payable by the Lessor under the
Hawaii general excise tax law, or any similar state, federal or county law which
may be hereafter enacted, on account of any rental income, purchase option price
or other sums actually received or constructively received by the Lessor from
the Lessee pursuant to this Lease. These gross income taxes shall be due at the
time the rental income and other sums subject to gross income taxes are received
by the Lessor.
5. INTEREST ON PAST DUE AMOUNTS AND HANDLING CHARGES. If the Lessee shall
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fail to pay any rental payment or other sum required to be paid to the Lessor
under this Lease, the Lessee shall pay interest on the delinquent payment at the
interest rate specified in the Lease Schedules. If more than one interest rate
is specified in the Lease Schedules, (a) the interest rate specified in the
Lease Schedule shall apply to the rental payments covered thereby, and (b) the
highest rate specified in the Lease Schedules shall apply to all other sums
required to be paid to the Lessor under this Lease. In addition, the Lessee
shall pay, as a handling charge, the amount specified in the Lease Schedules for
returned checks written against insufficient funds.
6. REGISTRATION, LICENSES, EXPENSES, FEES AND TAXES ON EQUIPMENT.
(a) The Lessee shall pay all expenses incurred in the use, maintenance and
operation of the Equipment, including, without limitation, all registration and
license fees, fuel costs, repair and maintenance expenses, towing charges, fines
and penalties.
(b) In addition to the gross income taxes described in paragraph 4 above,
the Lessee shall pay all personal property and ad valorem taxes, sales and use
taxes, assessments, duties and charges now or hereafter imposed by any federal,
state or county taxing authority upon the Equipment or this Lease, whether the
same shall be imposed on the Lessor or the Lessee and together with any
penalties or interest assessed thereon for any late payment; provided, however,
this Lessee covenant shall not apply to the payment of the Lessor's net income
taxes arising from this Lease or to the payment or any penalties or interest
directly attributable to any late payments made by the Lessor.
(c) The Lessee shall reimburse and hold the Lessor harmless for any and all
amounts which the Lessor may pay in satisfaction, release or discharge of the
Lessee's obligations under this paragraph 6.
7. SELECTION, DELIVERY AND INSTALLATION COSTS OF EQUIPMENT.
(a) SELECTION OF EQUIPMENT. The Lessee hereby acknowledges: (i) that it has
selected the type, quantity and method of delivery of the Equipment, and the
manufacturer and/or dealer (sometimes hereafter called the "Vendor") of the
equipment; (ii) that the Lessor has not selected and does not manufacture or
supply the Equipment; (iii) that the Lessor has or will acquire the Equipment
solely in connection with this Lease; (iv) that the Lessor has informed the
Lessee in writing that the Lessee is entitled to the promises and warranties,
including those of any third party, provided to the Lessor by the Vendor in
connection with the contract by which the Lessor has or will acquire the
Equipment, and the Lessee may communicate with the Vendor and receive a
statement of those promises and warranties, including any disclaimers and
limitations of them or of remedies; (v) that the Lessee has selected the
Equipment solely in reliance on the Vendor's warranties and representations; and
(vi) that the Lessor has not made any representations to the Lessee concerning
the use, condition, operation, efficiency or safety of the Equipment. The Lessee
also acknowledges that the sales representatives or other agents of the Vendor
are not the agents of the Lessor, and therefore, are not authorized to waive or
alter any term covenant or condition of this Lease.
(b) DELIVERY OF EQUIPMENT. The Lessor will order the Equipment from the
Vendor selected by the Lessee for delivery to the Lessee (based on shipment
terms determined by the Lessee) at the time and place set forth in each Lease
Schedule. If the Vendor fails to meet the Outside Delivery Date set forth in the
Lease Schedule, either the Lessor or the Lessee may, at its option, terminate
the Lease Schedule by giving the other party written notice thereof within ten
(10) days after the expiration of the Outside Delivery Date; provided, however,
the termination of the Lease Schedule shall not relieve the Lessee of its
obligation to pay any accrued but unpaid carrying charges owed to the Lessor
pursuant to the Lease Schedule or other recourse agreement executed by the
Lessee for any advances paid to the Vendor.
(c) DELIVERY AND INSTALLATION COSTS. The Lessee shall pay all
transportation costs, sales, excise or use taxes, handling and installation
charges for the Equipment; provided, however, if any such charges are advanced
or approved by the Lessor, then these charges may be added to the Capitalized
Cost of the Equipment.
8. INSPECTION AND ACCEPTANCE OF EQUIPMENT; REJECTION.
(a) The Lessee shall make, at its own expense, all necessary inspections
and tests of the Equipment to determine whether the Equipment conforms to the
Lessee's requirements and specifications within the Inspection Period specified
in the Lease Schedule.
(b) Upon the completion of its inspection of the Equipment, the Lessee
shall promptly deliver to the Lessor an executed acceptance certificate (the
"Acceptance
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Certificate") or reject the Equipment pursuant to paragraph 8(c) below.
THE LESSEE SHALL NOT PUT THE EQUIPMENT TO ITS INTENDED USE, OTHER THAN FOR
INSPECTION AND TESTING PURPOSES, PRIOR TO THE EXECUTION AND DELIVERY OF THE
ACCEPTANCE CERTIFICATE. IF THE LESSEE FAILS TO DELIVER THE ACCEPTANCE
CERTIFICATE OR REJECT THE EQUIPMENT PRIOR TO THE EXPIRATION OF THE INSPECTION
PERIOD PROVIDED IN THE LEASE SCHEDULE, THE LESSOR MAY TERMINATE ITS COMMITMENT
TO LEASE THE EQUIPMENT TO THE LESSEE PURSUANT TO THIS LEASE. IN ADDITION, THE
LESSOR SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO CONSIDER THE LESSEE'S
FAILURE TO DELIVER THE ACCEPTANCE CERTIFICATE AS CONCLUSIVE EVIDENCE THAT THE
EQUIPMENT WAS DELIVERED TO THE LESSEE IN GOOD CONDITION AND THAT IT HAS BEEN
ACCEPTED BY THE LESSEE. THE LESSEE'S ACCEPTANCE OF THE EQUIPMENT PURSUANT TO
THIS PARAGRAPH 8(b) SHALL BE FOR THE SOLE PURPOSE OF COMMENCING THE LESSEE'S
RENTAL PAYMENT AND OTHER OBLIGATIONS TO THE LESSOR UNDER THIS LEASE.
ACCORDINGLY, THE LESSEE'S ACCEPTANCE OF THE EQUIPMENT SHALL BE SOLELY FOR THE
BENEFIT OF THE LESSOR, AND SHALL BE WITHOUT PREJUDICE TO THE LESSEE'S RIGHTS
AGAINST THE VENDOR OF THE EQUIPMENT FOR REMEDYING ANY CLAIMED DEFECTS.
(c) The Lessee may reject the Equipment if such rejection is permitted
under the Hawaii Uniform Commercial Code or any other applicable law governing
the sale of goods. If the Lessee elects to reject the Equipment, the Lessee
agrees (i) to promptly notify the Lessor and the Vendor in writing that the
Equipment has been rejected and the reasons therefor; (ii) to cooperate with the
Lessor in complying with, at the Lessee's own expense, all applicable laws
dealing with the obligations of a purchaser in rejecting the Equipment, (iii) to
follow any reasonable instructions received from the Lessor or the Vendor with
respect to the Equipment, (iv) to hold the Equipment with reasonable care for a
reasonable time after the Lessee's notification of rejection, and (v) to
indemnify and hold harmless, the Lessor from all claims, damages, actions, costs
and expenses (including attorneys' fees) and liabilities arising out of or
connected with the rejection of the Equipment by the Lessee.
9. WARRANTIES.
(a) NO LESSOR'S WARRANTIES. THE LESSOR, NOT BEING THE MANUFACTURER OF THE
EQUIPMENT NOR THE MANUFACTURER'S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF
ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO:
ANY WARRANTY AGAINST INFRINGEMENT (INCLUDING ANY CLAIMS FOR PATENT INFRINGEMENT)
BY ANY PERSON; THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE; THE DESIGN OR THE CONDITION OF THE EQUIPMENT; THE
WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS
OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO; OR ANY DEFECTS
WHATSOEVER; IT BEING UNDERSTOOD THAT THE EQUIPMENT IS BEING LEASED TO THE LESSEE
"AS IS".
(b) VENDOR'S WARRANTIES TO BE IN LIEU OF ALL OTHERS. THE LESSEE HEREBY
AGREES THAT THE VENDOR'S EQUIPMENT WARRANTIES SHALL BE IN LIEU OF ALL OTHERS,
EXPRESSED OR IMPLIED, DURING THE TERM OF THIS LEASE, AND THAT THE LESSOR SHALL
NOT BE LIABLE TO THE LESSEE FOR THE LOSS OF ANY PROFITS, LOSS OF WORKING TIME,
INJURY TO ANY PERSON OR PROPERTY, LOSS OF BUSINESS OR ANY OTHER DAMAGES, DIRECT
OR INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHERWISE CAUSED OR RESULTING FROM THE
POSSESSION, USE AND LOSS OF USE OF THE EQUIPMENT. THE LESSEE SHALL MAKE ANY
CLAIM ON ACCOUNT THEREOF SOLELY AGAINST THE VENDOR. The Lessor agrees to assign
solely for the purpose of assisting the Lessee in the assertion of its claim,
all of the Lessor's rights to any Vendor warranties on the Equipment. All claims
or actions under any Vendor warranties shall be made by the Lessee, at its own
expense, and the Lessor shall have no obligation to make any claim on any such
warranty; provided, however, if to the extent any breach of warranty results in
damage or liability to the Lessor or the Lessor's interest in the Equipment,
Lessor may, but shall not be under any obligation to, make or prosecute a claim
or action in addition to or in lieu of any claim or action by the Lessee. Any
proceeds recovered by the Lessee from any claims made against the Vendor shall
first be used to repair the affected Equipment.
(c) Once the Equipment has been accepted by the Lessee or presumed accepted
by the
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Lessee pursuant to paragraph 8 above, no defects or unfitness of the Equipment
for use in the Lessee's business shall relieve the Lessee of, or shall be a
defense to, the Lessee' performance of its obligations under this Lease,
including, without limitation, the obligation to make the rental payments due to
the Lessor.
(d) The foregoing provisions of paragraph 7 above (relating to selection of
the Equipment), paragraph 8 above (relating to the Lessee's inspection and
acceptance of the equipment), this paragraph 9 (relating to the Lessor's
disclaimer of warranties), and paragraph 27 (relating to indemnification)
reflect the parties' intention of structuring this Lease as a "finance lease"
within the meaning of Hawaii Uniform Code Article 2A - Leases (as codified in
Chapter 490 of the Hawaii Revised Statutes, as amended). These provisions are
material to the determination of the amount of rent payable under this Lease,
and, accordingly, shall be construed to effect this intention of the parties.
10. TITLE TO AND LOCATION OF EQUIPMENT; NO ATTACHMENT TO REALTY; NOTICE OF
OWNERSHIP; ADVERTISEMENTS.
(a) Title to the Equipment shall remain with the Lessor at all times and
the Lessee shall have no right, title or interest therein except as expressly
set forth in this Lease.
(b) The Equipment shall at all times be and remain personal property even
though the Equipment may now or hereafter be affixed to realty.
(c) The Equipment shall be delivered to the location specified in the
appropriate Lease Schedule and shall not thereafter be removed from such
location without the written consent of the Lessor.
(d) The Lessor shall be permitted to display notice of its ownership of the
Equipment by affixing to the Equipment an identifying stencil or plate or any
other indicia of ownership, and the Lessee shall not alter, deface, cover or
remove such ownership identification.
(e) Notwithstanding any provision to the contrary, the Lessee may affix
advertisements or insignia of the Lessee's design to the Equipment but the
Lessee shall, upon the expiration of the Rental Term, restore the Equipment to
its original condition prior to the installation thereof and remove all evidence
of the same. All expenses for the installation and removal thereof shall be
borne by the Lessee.
11. INSURANCE; NOTICE OF ACCIDENTS AND COOPERATION. The Lessee agrees to
provide and maintain at its sole expense:
(a) A policy of commercial general liability insurance issued by a
financially responsible and substantial insurer which (1) insures the Lessor,
the Lessee and the Lessee's agents, servants and employees with respect to their
liability for bodily injury and property damage resulting from or arising out of
the operation of the Equipment, (2) names the Lessor as an additional insured,
(3) provides products liability coverage (if requested by the Lessor) and (4)
shall be in such amounts as are reasonably satisfactory to the Lessor.
(b) A policy of insurance issued by a financially responsible and
substantial insurer which insures the Equipment against all hazards requested by
the Lessor, including but not limited to, fire, lightning, explosion, smoke
damage, theft, vandalism and malicious mischief, water damage, transportation
hazards, and extended coverage. Such insurance shall name the Lessor and the
Lessee as the loss payee as their interests may appear and shall be in such
amounts as are reasonably satisfactory to the Lessor. All proceeds from such
insurance shall be credited by the Lessor toward the Lessee's obligations under
paragraph 12 below, and the balance of the proceeds, if any, shall be the
property of the Lessee.
All insurance shall be in force not only during the Rental Term of the
Equipment, but from the date of execution of the Lease Schedule, or, if the
Equipment is ordered from a Vendor, from the date risk of loss passes from the
Vendor until the date the Equipment is returned to the Lessor at its place of
business or other place designated by the Lessor for the return of the Equipment
(or, in case the Equipment is lost or destroyed, until the Lessee's obligations
are terminated pursuant to paragraph 12 below). All insurance shall provide for
a thirty-day prior written notice to the Lessor of any cancellation of insurance
or change in coverage. The Lessee shall furnish the Lessor with a certificate or
other satisfactory evidence of the maintenance of all insurance required
hereunder. Notwithstanding the foregoing, the Lessee shall have a continuing
duty to inform the Lessor of the cancellation or change in coverage of any
insurance required by this Lease.
The Lessee hereby irrevocably appoints the Lessor as its attorney-in-fact
with full power to negotiate, prosecute, settle or compromise all claims or
actions under or pursuant to such insurance policies and to execute in the name
of the Lessee any proofs of claim or loss and to endorse in the name of the
Lessee on any settlement, draft or check. The Lessee shall cooperate in the
prosecution of all claims.
The Lessee shall also provide and pay for any other insurance or bond that
may be
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required by any governmental authority as a condition to, or in connection with,
the Lessee's use of the Equipment.
If the Equipment is involved in any accident, damaged, stolen or destroyed,
the Lessee shall report the same to the Lessor in writing within 24 hours, and
the Lessee agrees that Lessee shall cooperate fully with the Lessor and any
insurance carriers in the investigation and defense of any and all claims or
suits arising from the Lessee's operation or use of the Equipment.
The Equipment shall not be used by any person, in any manner, or for any
purpose that would cause any insurance required herein to be suspended,
canceled, rendered inapplicable or increased in cost.
The Lessee acknowledges that the Lessor has not conditioned this Lease upon
the Lessee procuring the insurance required hereunder from any insurance company
designated by the Lessor. This Lease constitutes written notice to the Lessee
that the Lessee may procure the insurance required by this Lease from any
insurance company authorized to do business in the State of Hawaii.
12. LOSS, DAMAGE TO OR DESTRUCTION OF EQUIPMENT.
(a) The Lessee shall bear the risk of loss, damage to or destruction
("Loss") of the Equipment, whether resulting from fire, theft, collision,
governmental action or any cause whatsoever, and regardless of whether the Loss
is covered by insurance or not, from the date of execution of the Lease Schedule
(or if the Equipment is ordered from a Vendor, then from the date risk of loss
passes from the Vendor) until the Equipment is returned to the Lessor upon the
expiration of the Rental Term or earlier termination of this Lease.
(b) ANY LOSS OF THE EQUIPMENT SHALL NOT RELIEVE THE LESSEE OF ANY
OBLIGATIONS UNDER THIS LEASE, INCLUDING ITS OBLIGATION TO PAY RENT, UNLESS AND
UNTIL THE LESSEE'S OBLIGATIONS ARE TERMINATED BY THE LESSOR PURSUANT TO
PARAGRAPH 12(d) BELOW.
(c) If the Equipment is damaged, the Lessee shall promptly repair the same
at its own expense. When such damage has been repaired to the satisfaction of
the Lessor and paid for, there shall be paid or credited to the account of the
Lessee, any money received by the Lessor on account of any insurance policy
maintained by the Lessee with respect to such damage under paragraph 11 above.
(d) If any Equipment is stolen, lost, confiscated or damaged beyond repair,
the Lessee shall pay the Lessor, in cash, the "Stipulated Loss Value" specified
in the Lease Schedule. The Lessee shall continue to pay the periodic rental
payments until the Stipulated Loss Value is paid to the Lessor in full, and the
Stipulated Loss Value payable to the Lessor shall be the amount specified for
the month in which the payment of the Stipulated Loss Value is made to the
Lessor. Upon the receipt of such payment, the Lessor shall, subject to the
rights of any insurer providing coverage on the Loss, transfer to the Lessee all
of the Lessor's interest in the Equipment subject to the Loss (on an "as is,
where is" basis) and the rent payable to the Lessor under this Lease shall be
reduced by the amount of rent attributable to such Equipment.
13. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If the Lessee shall fail
to perform promptly any of its obligations under this Lease, the Lessor may, at
its option, perform any act or make any payment which the Lessor deems necessary
for the maintenance and preservation of the Equipment and the Lessor's title
thereto, including payments for satisfaction of liens, repairs, taxes, levies,
and insurance; and all sums paid or incurred by the Lessor in connection
therewith, shall be additional rent under this Lease and shall be payable to the
Lessor on demand. The performance of any act or payment by the Lessor shall not
be deemed a waiver or release of any obligation or default on the part of the
Lessee.
14. SECURITY DEPOSIT. Upon the execution of each Lease Schedule, the Lessee
shall deposit with the Lessor the amount stated therein as security for the full
and faithful performance by the Lessee of all terms, covenants and conditions
required under this Lease. The security deposit shall not be construed as rent
(unless accepted by the Lessor in writing as rent) or release the Lessee of any
obligation to the Lessor, and the Lessor may at any time apply the same to the
payment of any indebtedness of the Lessee to the Lessor or any loss or expense
incurred by the Lessor due to the Lessee's default, and the security deposit (or
the balance thereof) shall be returned to the Lessee, without interest, upon the
Lessee's full performance and satisfaction of all of its obligations to the
Lessor under this Lease.
15. MAINTENANCE OF EQUIPMENT; ALTERATION. The Lessee shall at all times
repair and maintain the Equipment in accordance with standards of good
maintenance, and at the expiration of the Rental Term shall return the Equipment
to the Lessor in good operating condition, subject to normal wear and tear of
the Equipment based on proper use and
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maintenance thereof. The Lessee may, with the Lessor's consent, alter and
remodel the Equipment, and install thereon and remove therefrom any accessories
and equipment as the Lessee shall consider advisable for the purpose of its
operations but not in excess of the manufacturer's rated capacity of the
Equipment; provided, however, the Lessee shall at the expiration of the Rental
Term (if so required by the Lessor), restore the Equipment to its original
condition, subject to normal wear and tear. All parts which are incorporated
into the Equipment shall be the property of the Lessor, and all parts removed
therefrom and replaced in the course of repair, alteration and remodeling or
restoration thereof, shall be the property of the Lessee. During the Rental
Term, the Lessee shall maintain complete records covering the repair,
maintenance, and any alteration or remodeling of the Equipment.
16. USES OF EQUIPMENT; LESSOR'S INSPECTION AND REPORTS. The Lessee may
possess and use the Equipment in accordance with this Lease, provided that any
such use is in conformity with all applicable laws, any insurance policy and any
manufacturer's warranties covering the Equipment. The Lessor shall have the
right, upon reasonable prior notice to the Lessee and during the Lessee's
regular business hours, to inspect the Equipment and maintenance records at the
premises of the Lessee or wherever the Equipment may be located. The Lessee
shall promptly notify the Lessor of all details arising out of any change in
location of the Equipment, any encumbrances thereon or any accident resulting
from the use or operation thereof.
17. LESSOR'S PURCHASE OPTION.
(a) If at the expiration of the Rental Term specified in the Lease Schedule
the Lessee shall not be in default under any provision of this Lease, the Lessee
shall have the option to purchase the Equipment (on an "as is, where is" basis)
for a purchase price equal to the then FAIR MARKET VALUE of such Equipment;
provided that the Lessee has given the Lessor written notice of its intention to
exercise this purchase option at least sixty (60) days prior to the expiration
of the Rental Term.
(b) If the Lessor and the Lessee are unable to determine the fair market
value of the Equipment by mutual agreement, then such value shall be determined
by an independent appraiser mutually acceptable to the Lessor and the Lessee. If
the parties are unable to select the appraiser by mutual agreement, the
appraiser shall be selected pursuant to the rules of the American Arbitration
Association. All costs of the appraisal shall be paid by the Lessee.
(c) Although the Equipment is to be sold (on an "as is, where is" basis) it
shall be assumed for purposes of determining the fair market value of the
Equipment that the Equipment is in good operating condition, subject only to
normal wear and tear (it being understood that the fair market value of the
Equipment shall not be reduced as a result of the Lessee's failure to repair and
properly maintain the Equipment in a good operating condition). Payment of the
purchase option price shall be due no later than the expiration date of the
Rental Term for the Equipment, and if the payment is not made on or before such
expiration date, the Lessee shall pay interest on the purchase option price from
the expiration date to the date on which the purchase option price is paid to
the Lessor. Interest shall be computed at the interest rate specified in the
Lease Schedule for past due amounts.
18. SURRENDER OF EQUIPMENT; HOLDOVER RENT. Upon the expiration of the
Rental Term, and subject to the provisions of paragraph 17 above, the Lessee
shall, at its own expense, deliver the Equipment, in good repair, condition and
working order, ordinary wear and tear resulting from proper use and maintenance
excepted, to the location or person designated by the Lessor for the return of
the Equipment. In addition, the Lessee shall turn over to the Lessor true and
complete copies of all records pertaining to the repair, maintenance, and any
alteration or remodeling of the Equipment during the Rental Term, including the
records covering work performed pursuant to any service contracts entered into
by the Lessee with the vendor or manufacturer of the Equipment. If the Equipment
is not returned to the Lessor upon the expiration of the Rental Term, the Lessee
shall pay to the Lessor, as holdover rent, an amount equal to 1/30th of the
monthly rental payment specified in the Lease Schedule for such Equipment, for
each day following the expiration date until the Equipment is delivered to the
Lessor pursuant to the requirements of this Lease.
19. TAX INDEMNIFICATION.
(a) The Lessor and the Lessee have entered into this Lease on the basis
that it will qualify as a "true lease" for federal and state income tax
purposes, and the Lessee acknowledges that the Lessor shall be entitled to the
depreciation deductions, credits and other benefits ("Tax Benefits") as are
provided by the Internal Revenue Code of 1986, as amended (the "Code"), and by
the tax laws of the State of Hawaii ("Hawaii Tax Law") to the owner of the
Equipment at the time each Lease Schedule is executed by the parties. The Lessee
further acknowledges that the lease rent payable hereunder has been determined,
in
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large part, upon the assumption that the Lessor shall be entitled to claim the
Tax Benefits. The Lessee will not directly or indirectly take any action or file
any tax returns or other documents inconsistent with the intent to qualify this
Lease as a true lease for tax purposes and the Lessee will file such returns,
take such actions and execute such documents as may be reasonable and necessary
to facilitate the intent of this paragraph. For purposes of this paragraph 19,
the "Lessor" shall include any affiliated group of corporations of which the
Lessor is presently or may become a member and which files a consolidated income
tax return.
(b) If for any reason (including, without limitation, changes in or
interpretations of tax laws), the Lessor shall be unable to claim, lose the
benefit of, or suffer a disallowance or recapture of all or any portion of the
Tax Benefits, or if the Lessor's net rate of return with respect to the Lease
shall be adversely affected by a change in the corporate income or franchise tax
rates (all of the foregoing events being hereinafter referred to as a "Loss"),
the Lessee shall, upon written notice thereof by the Lessor, promptly pay to the
Lessor an amount which, after deduction of all taxes required to be paid by the
Lessor in respect to the receipt thereof, shall be equal to (i) such sums as are
necessary to cause the Lessor's net rate of return with respect to this Lease to
equal the net rate of return the Lessor would have received if such Loss had not
occurred, plus (ii) such sums as will reimburse Lessor, on an after-tax basis,
for any reasonable costs, attorneys' fees, interest, and penalties incurred in
connection with the Tax Benefits which are lost, disallowed, or recaptured. The
amount of the indemnification payment shall be determined by the Lessor via the
Xxxxxx and Xxxxxxx LAS2 lease analysis system or other comparable lease analysis
software program selected by the Lessor. If the Rental Term for the Equipment
has not expired, the Lessee shall have the option of paying the indemnification
payment in a lump sum or spreading it over the remaining lease rental payments.
If any such indemnification payment affects the Stipulated Loss Value of the
Equipment, the Stipulated Loss Value specified in the Lease Schedule shall be
appropriately adjusted by the Lessor. If a verification of the indemnification
payment is requested by the Lessee, the Lessor shall provide, at the Lessee's
expense, a written verification by the Lessor's certified public accounting firm
or other certified public accounting firm of comparable size and stature in the
community, confirming the accuracy of the Lessor's computation of the amounts
claimed by the Lessor pursuant to this indemnification.
If a claim shall be made by the Internal Revenue Service or the Hawaii
Department of Taxation which, if successful, would require the Lessee to
indemnify the Lessor or its assignee under this Paragraph l9(b), and if the
Lessor, at the Lessee's sole cost and expense, receives a written opinion of tax
counsel acceptable to the Lessor that there is substantial authority to contest
such claim, then the Lessor shall either (i) waive its rights to such
indemnification, or (ii) at the Lessee's sole cost and expense, use its best
efforts and take such actions as may be reasonably necessary to contest such
claim. The Lessee's obligations under this paragraph 19 shall survive the
expiration or termination of this Lease.
20. ASSIGNMENT BY LESSOR.
(a) All rights of the Lessor under this Lease and in the Equipment covered
thereby may be assigned, pledged, mortgaged, transferred or otherwise disposed
of, either in whole or in part, without notice to the Lessee, but always subject
to the rights of the Lessee under this Lease. The Lessor may, in its sole
option, elect to sever this Lease and treat each Lease Schedule as a separate
lease, and if this election is made by the Lessor, the Lessee shall, upon the
Lessor's request, execute such instruments as may be necessary to confirm the
severance of this Lease into more than one lease and shall provide an
appropriate estoppel certificate to confirm the absence of any defaults by the
Lessor under this Lease.
(b) If the Lessor assigns this Lease or the rent due or to become due
hereunder or any other interest herein, as security for any of Lessor's
indebtedness or otherwise, no breach or default by the Lessor under this Lease
shall excuse the Lessee's performance of its obligations hereunder, and the
Lessee shall, upon receiving notice of such assignment, pay all rent to the
Lessor's assignee. The Lessee's obligation to pay the rent to the Lessor's
assignee shall be absolute and unconditional and shall not be subject to any
defense or offset, and the Lessor's assignee shall not be obligated to the
Lessee to perform any duty, covenant or condition required to be performed by
the Lessor under this Lease.
(c) No assignment of this Lease by the Lessor shall interfere with the
Lessee's quiet enjoyment and use of the Equipment so long as the Lessee is not
in default in performing its obligations under this Lease.
21. ASSIGNMENT BY LESSEE. The Lessee shall not assign or transfer its
interest in the Lease and the Equipment covered thereby, nor shall Lessee
pledge, mortgage or
7
otherwise encumber the Equipment, without the Lessor's prior written consent.
Without limiting the generality of the foregoing:
(a) If the Lessee is a partnership, a withdrawal or change, voluntary,
involuntary or by operation of law, of any general partner, or the dissolution
of the partnership, shall be deemed an assignment or transfer of the Lessee's
rights under this Lease; and if the partnership is a limited partnership, the
assignment or transfer of a majority interest of the limited partnership units
of the Lessee shall also be deemed an assignment or transfer of the Lessee's
rights under this Lease; and
(b) If the Lessee consists of more than one person, a purported assignment,
voluntary, involuntary or by operation by law, from one person to the other
shall be deemed an assignment or transfer; and
(c) If the Lessee is a corporation, any dissolution, merger, consolidation,
or other reorganization of, the Lessee, or the sale or other transfer of a
controlling percentage of the capital stock of the Lessee or any corporation
directly or indirectly controlling the Lessee, or the sale of at least fifty-one
percent (51%) of the value of the assets of the Lessee shall be deemed an
assignment. The phrase "controlling percentage" means the ownership of, and the
right to vote, stock possessing at least fifty-one percent (51%) of the total
combined voting power of all classes of the Lessee's capital stock issued,
outstanding, and entitled to vote for the election of directors.
No assignment or transfer shall in any way release the Lessee or any
guarantor of this Lease from their obligations under this Lease or any guaranty.
The Lessee and any guarantor shall remain primarily liable to the Lessor for the
payment of rent and the performance of all other obligations due under this
Lease or any guaranty, notwithstanding any such assignment or transfer. If the
Lessee assigns or transfers this Lease without the Lessor's consent, the Lessor
may demand and collect rent payments from the purported assignee or transferee
without waiving its right to enforce this Lease against the Lessee, and such
collection of rent by the Lessor shall not be deemed a waiver of any rights of
the Lessor under this Lease or any guaranty.
If the Lessee desires the Lessor's consent to the assignment or transfer of
this Lease, the Lessee shall give the Lessor not less than sixty (60) days'
prior written notice thereof. Notwithstanding any provision to the contrary, the
Lessor may, in addition to any other reasons supportive of refusal to consent,
refuse to consent to an assignment or transfer because of an honest belief,
reasonably formed:
(a) That the proposed assignee is financially unable to perform in
accordance with the terms of this Lease; or
(b) That the use to be made of the Equipment by the proposed assignee is
not within the scope of the use specified in this Lease or the Lease Schedule.
Without limiting the foregoing, the Lessor must at all times be satisfied
with the proposed assignee's experience, management ability and financial
capacity. The Lessor shall consent to a proposed merger or transfer of the
Lessee's corporate stock or assets only if satisfied with all particulars,
including but not limited to, the financial status, place of incorporation and
the financial, personnel, management and experience qualifications of the
proposed assignee.
The Lessor may require an investigation of the financial condition,
business reputation, credit standing, performance history, quality of business
operation and other relevant aspects of the Lessee's proposed assignee to be
conducted to enable the Lessor to make an informed decision on whether the
Lessor should consent to the assignment. All reasonable costs of such an
investigation shall be paid for by the Lessee.
Any assignment or transfer of this Lease by the Lessee without the prior
written consent of the Lessor, shall constitute an event of default under this
Lease.
22. ADMINISTRATION FEES. The Lessor shall have the right to collect from
the Lessee an administration fee for processing any consents, modifications or
amendments relating to this Lease. The administration fee shall be based upon
the Lessor's standard processing fees, as determined from time to time during
the Lease Term, and shall include all costs and expenses, including reasonable
attorneys' fees, incurred by the Lessor in processing the matters requested by
the Lessee.
23. DEFAULTS. If (1) the Lessee shall default in the payment of rent or any
other amount due to the Lessor under this Lease; or (2) the Lessee shall default
in the observance or performance of any term, covenant or condition of this
Lease. or (3) the Lessee shall die, or become incompetent or insolvent; or (4)
the Lessee shall fail to comply with the insurance requirements of this Lease,
or if the insurance is canceled or the coverage reduced prior to the termination
of this Lease; or (5) the Lessee shall create any unauthorized lien or
encumbrance on the Equipment which shall adversely affect the Lessor's rights
under this
8
Lease and in the Equipment; or (6) a proceeding in bankruptcy, receivership,
reorganization or insolvency is instituted by or against the Lessee, or the
Lessee shall make an assignment for the benefit of its creditors; or (7) the
Equipment is involuntarily transferred by operation of law, confiscated,
attached, seized or threatened with confiscation, attachment or seizure; or (8)
the Lessee shall be in default under any other lease between the Lessor and the
Lessee and any applicable grace period therefor has expired; or (9) any guaranty
of this Lease shall be repudiated or breached, or any guarantor of this Lease
shall die, or become incompetent, or make an assignment for the benefit of his
creditors, or become involved in any proceeding in bankruptcy, receivership,
reorganization or insolvency affecting his assets, and upon the occurrence of
any of the foregoing events, the Lessee shall fail to provide a substitute
guarantor whose financial responsibility and credit worthiness is, in the
Lessor's reasonable judgment, at least equal to that of the original guarantor
within forty-five (45) days after a request therefor is made by the Lessor; or
(10) the Lessee shall engage in any act or activity which, in the Lessor's
exclusive judgment, shall in any way prejudice or render insecure the Lessor's
rights in the Equipment, THEN in any of such events, the Lessor may terminate
this Lease, or, at its election, exercise any one or more of the following
remedies, with or without terminating this Lease:
(a) Recover from the Lessee the sum of (i) all delinquent rental payments
and other sums due to the Lessor under this Lease, (ii) the amount of the
Stipulated Loss Value (such amount being computed by multiplying the total
Capitalized Cost of the Equipment by the applicable percentage set forth in the
Stipulated Loss Schedule attached to the Lease Schedule, opposite the last month
for which a delinquent monthly rental payment shall be due from the Lessee), and
(iii) interest and late charges due thereon; or
(b) Enter upon the Lessee's premises and take possession of the Equipment,
without notice or demand and without any court order or other process of law,
and the Lessee hereby waives any damages occasioned by such taking of
possession; or
(c) Lease the Equipment to any other person upon such terms and conditions
as the Lessor, in its discretion, shall determine; or
(d) Sell or otherwise dispose of the Equipment in such commercially
reasonable manner as the Lessor shall determine; or
(e) Bring any action for damages or pursue any other remedy provided by
law.
No right or remedy herein conferred upon or reserved by the Lessor is
exclusive, but shall be cumulative and may be enforced separately or
concurrently from time to time. The proceeds of any rental or sale of the
Equipment, after deducting all costs and expenses incurred in the repossession,
repair, storage, rental or sale, shall be credited to the payment of the
Lessee's obligations hereunder. The Lessee shall remain liable for any
deficiency. A termination of this Lease shall occur only upon written notice by
the Lessor to the Lessee. Regardless of the remedy or remedies pursued by the
Lessor, the Lessee shall be liable for all costs of collection, repossession,
storage, rental, sale or other charges, including reasonable attorneys' fees
incurred by the Lessor in enforcing any of its rights under this Lease.
24. FORCE MAJEURE. The Lessor shall not be liable for any delay in
delivering the Equipment, or for any failure to perform any provision hereof,
resulting from fire or casualty, riot, strike or other labor difficulty,
governmental regulation or restriction or any cause beyond the Lessor's control.
25. NO WAIVER. The failure of either the Lessor or the Lessee in any one or
more instances to insist upon the performance of any of the terms, covenants or
conditions of this Lease, to exercise any right or privilege in this Lease
conferred or the waiver of any breach or any term, covenant or condition of this
Lease, shall not be construed as thereafter waiving any such term, covenant,
condition, right or privilege, but the same shall continue and remain in full
force and effect as if no such forbearance or waiver had occurred. Without
limiting the foregoing, the Lessor's acceptance of any partial payments or
delinquent payments (and any late charges or interest thereon) shall not be
deemed to be a waiver by the Lessor of any term, covenant or condition of this
Lease to be performed or observed by the Lessee, and the Lessor shall be
entitled to pursue any remedy available to it hereunder until the Lessee has
fully performed all of its obligations under this Lease. Any check for less than
the full amount owed by the Lessee, with an endorsement or accompanying
statement that the payment constitutes an accord and satisfaction, may be
accepted by the Lessor without prejudice to the Lessor's right to collect the
full amount owed by the Lessee; it being understood that the concept of accord
and satisfaction is not applicable to the payments required by this Lease.
26. NOTICE. Any notice given under this Lease by the Lessor to the Lessee
may be given personally or by certified mail, postage prepaid, addressed to the
Lessee at the Lessee's address as set forth in this Lease. Any notice given
under this Lease by the
9
Lessee to the Lessor shall be given by sending the same by certified mail,
postage prepaid, to the Lessor at its address as set forth in this Lease or by
serving the same personally at the office of the Lessor.
27. INDEMNIFICATION. The Lessee shall indemnify and hold harmless the
Lessor, its successors and assigns, from all losses, damages, injuries, claims,
demands, liabilities, costs and expenses (including reasonable attorneys' fees
incurred by the Lessor in the defense of any claims or actions) arising out of
the condition, use or operation of the Equipment during the term of this Lease,
including without limitation, all losses, damages, liabilities, claims, costs
and expenses arising from the death or injury of any person or damage to any
property, irrespective of the theory of liability asserted against the Lessor
(including by way of example and not any limitation, claims that the Lessor was
negligent in leasing the Equipment to the Lessee or in failing to properly
maintain the Equipment, or claims of strict liability in tort or breach of
warranty); provided, however, this indemnification shall not apply to any
losses, damages, injuries, claims, demands, liabilities, costs and expenses
caused by the proven (and not merely alleged) willful misconduct of the Lessor
or any of its agents or employees, but unless the Lessor's willful misconduct
shall be established by a final, nonappealable judgment of a court of competent
jurisdiction, the Lessor shall be entitled to the full benefits of this
indemnification, including the right to reimbursement for all costs and
expenses, including reasonable attorneys' fees, incurred in the defense of any
claims or demands asserted by any party against the Lessor. This indemnification
is based upon the Lessor's status as a finance lessor. The Lessee has selected
the Equipment, and the Lessor has no duty to inspect and maintain the Equipment
and has no right to possession of the Equipment during the Rental Term for the
Equipment. This indemnification is therefore a material business term of this
Lease and shall survive the expiration or termination of this Lease.
28. FURTHER ASSURANCE. The Lessee shall execute and deliver to the Lessor
upon the Lessor's request, such instruments and assurances as the Lessor deems
necessary for the confirmation or perfection of this Lease and the Lessor's
rights hereunder. In furtherance thereof, the Lessor may file or record this
Lease or a financing statement with respect thereto so as to give notice to any
interested parties. Any such filing or recording shall not be deemed evidence of
any intention to create a security interest under the Uniform Commercial Code.
29. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
(a) This Lease shall be governed by and interpreted under the laws of the
State of Hawaii. The venue for any legal action relating to this Lease shall be
Honolulu, Hawaii. If the Lessee is not a resident of the State of Hawaii, the
Lessee irrevocably submits to the jurisdiction of the state courts of the State
of Hawaii and the United States District Court for the District of Hawaii for
purposes of any legal action relating to this Lease. However, this paragraph
shall not preclude the Lessor, in its sole discretion, from initiating any legal
action or proceeding in any other jurisdiction where the Lessee or its assets
can be found.
(b) The Lessor and the Lessee each hereby waives trial by jury in any legal
action, proceeding or counterclaim brought by either party against the other on
any matter whatsoever arising out of, or in any way connected with, this Lease
and the Equipment covered thereby, including, without limitation, claims of
breach of contract or claims for injuries and damages.
/s/ MB for HNW Inc.
-------------------
(Lessee's Initials)
30. GENERAL PROVISIONS.
(a) Binding Force. This Lease shall be binding upon and inure to the
benefit of the Lessor, the Lessee, and their respective heirs, personal
representatives, successors, successors in trust, and permitted assigns.
(b) Gender. The use of any gender shall include all genders, and the use of
the singular shall apply in the plural sense, where more than one party has
executed this Lease as the Lessee and the context shall so require.
(c) Joint and Several Liability. The obligations of all persons signing
this Lease as Lessee shall be joint and several.
(d) No Partnership. By entering into this Lease, Lessor shall not, for any
purpose, become a partner of the Lessee in the conduct of the Lessee's business,
a joint venturer or a member of a joint enterprise with the Lessee.
(e) Lessor's Consent. Whenever the Lessor's consent or approval is
required, unless the Lessor has reserved the right of sole or absolute
discretion, such consent or approval
10
shall not be unreasonably withheld, and no charge shall be made therefor other
than the administration fee described in paragraph 22 and other provisions of
this Lease for processing the Lessor's consent or approval.
(f) Severability. If any provision of this Lease shall be deemed invalid or
unenforceable, the remaining provisions of this Lease shall not be affected
thereby and shall remain in full force and effect as binding obligations of the
parties.
(g) Amendments. This Lease may not be amended except by a written
instrument executed by the parties.
/s/ MB
-------------------
(Lessee's Initials)
(h) No Oral Representations and Agreement. The Master Lease Agreement, all
Lease Schedules now or hereafter executed by the parties, and all other written
instruments now or hereafter attached to or specifically described in this Lease
or acknowledged by both parties in writing (collectively called the "Lease
Documentation".) constitute the entire agreement between the Lessor and the
Lessee with respect to the lease of the Equipment. The Lessee acknowledges that
no other written or oral agreements or representations have been made by the
Lessor with respect to this Lease or the Equipment, except as set forth in the
Lease Documentation or in any written document executed by the Lessor's duly
authorized representative. /s/ MB ------------------- (Lessee's Initials)
(i) Commitment Letters Superseded. This Lease (together with all Lease
Schedules) supersedes all commitment letters or proposal letters relating to the
Equipment, and in the event of any conflict between the provisions of this Lease
and those of any commitment letters or proposal letters, the provisions of this
Lease shall control.
31. SIGNIFICANCE OF LEASE PROVISIONS. Although most of the terms of this
Lease are contained in the Lessor's printed form documentation, the Lessee
acknowledges that the provisions of this Lease have been bargained for by the
Lessor in the Lessor's underwriting of this Lease and the determination of the
lease rental rate to be charged the Lessee under this Lease.
/s/ MB
-------------------
(Lessee's Initials)
32. FINANCING STATEMENTS. The Lessee shall cooperate in executing such
Uniform Commercial Code financing statements as may be required by the Lessor to
perfect the Lessor's interest in the Equipment and the Lessor's security
interest in all rents, profits and proceeds derived by the Lessee from any
sublease of the Equipment. The filing of any such financing statements is not
intended to be a factor in determining whether this Lease constitutes a secured
transaction or a true lease under the Hawaii Uniform Commercial Code.
33. NATURE OF TRANSACTION. IT IS THE INTENTION OF THE PARTIES THAT THIS
LEASE BE A TRUE LEASE, AND NOT A CONDITIONAL SALE OF, OR A LOAN FOR, THE
EQUIPMENT LEASED HEREBY, AND ALL OF THE PROVISIONS OF THIS LEASE SHALL BE
CONSTRUED SO AS TO GIVE EFFECT TO THIS INTENTION OF THE PARTIES.
34. OTHER. (See Attached Addendum)
IN WITNESS WHEREOF, the parties have executed this Master Lease on December
08, 1994.
FIRST HAWAIIAN LEASING, INC. HAWAIIAN NATURAL WATER CO.
By: /s/ XXXXXX X. XXXX BY: /s/ XXXXXX XXXXXX
-------------------------- ------------------------
Its: XXXXXX X. XXXX XXXXXX Its: PRESIDENT
VICE PRESIDENT
By:
--------------------------
Its:
By:
--------------------------
Its: LESSEE
11
FIRST HAWAIIAN LEASING, INC.
NON-TAX-ORIENTED LEASE ADDENDUM
This Addendum shall constitute a part of the Master Lease Agreement No.
A2500 (the "Master Lease Agreement") executed by parties. Unless otherwise
defined herein, all capitalized terms shall have the meanings provided in the
Master Lease Agreement.
1. LOSS, DAMAGE TO OR DESTRUCTION OF EQUIPMENT. Paragraph 12(d) of the Lease
is hereby amended to read as follows:
If any Equipment is stolen, lost, confiscated or damaged beyond
repair, the Lessee shall pay the Lessor, in cash, the "Buyout"
specified in the Lease Schedule. The Lessee shall continue to pay the
periodic rental payments until the Buyout is paid to the Lessor in
full. The Buyout payable to the Lessor shall be the amount specified
for the month in which the payment of the Buyout is made to the
Lessor. Upon the receipt of such payment, the Lessor shall, subject to
the rights of any insurer providing coverage on the Loss, transfer to
the Lessee all of the Lessor's interest in the Equipment subject to
the Loss on an "as is, where is" basis and the rent payable to the
Lessor under this Lease shall be reduced by the amount of rent
attributable to such Equipment.
2. LESSEE'S PURCHASE OPTION AND NATURE OF EQUIPMENT. Paragraph 17 is hereby
deleted in its entirety. Lessee's purchase option rights are set forth in
the Lease Schedule. Paragraph 18 of the Lease is hereby amended to delete
the reference to "Paragraph 17 above" and to substitute in lien thereof,
the phrase "the Lease Schedule."
3. TAX INDEMNIFICATION AND NATURE OF TRANSACTION. Paragraphs 19 and 33 of the
Lease are hereby deleted in their entirety, based on the parties agreement
that this Lease shall not constitute a "true lease" for federal income tax
and state tax purposes.
4. DEFAULTS. The remedy described in clause (a) in paragraph 23 of the Lease
is hereby amended to read as follows:
Recover from the Lessee the sum of (i) all delinquent rental payments
and other sums due to the Lessor under this Lease, (ii) the amount of
the Buyout opposite the last month for which a delinquent monthly
rental payment shall be due from the Lessee, and (iii) interest and
late charges due thereon.
DATED: December 8th, 1997
-----------------------
FIRST EAWAIIAN LEASING, INC. HAWAIIAN NATURAL WATER CO.
By: /s/ XXXXXX X. XXXX BY: /s/ XXXXXX XXXXXX
-------------------------- -------------------------
Its: XXXXXX X. XXXX XXXXXX Its: PRESIDENT
VICE PRESIDENT
By:
--------------------------
Its:
By:
--------------------------
Its: LESSEE
FIRST HAWAIIAN LEASING, INC.
LEASE SCHEDULE NO. 65048
1. DESCRIPTION OF EQUIPMENT: See Exhibit A attached hereto and made a part
hereof.
2. TOTAL CAPITALIZED COST OF EQUIPMENT: $130,800.80
3. RENTAL TERM: 60 months
The Rental Term specified above shall commence on the earlier of: (a) the
date of expiration of the inspection period specified in paragraph 8 below
for all Equipment described in Exhibit A or (b) the date on which the
Lessee executes the Acceptance Certificate for all of such Equipment;
provided, however, the commencement date for the Rental Term shall be
adjusted to begin on the first day of the next calendar month if the
controlling date under (a) or (b) above does not occur on the first day of
a calendar month. Following the commencement date, the Rental Term shall
continue for the number of months specified above, it being the intention
of the parties that the stated Rental Term be the same for all items of
Equipment described in Exhibit A. This provision shall not be construed,
however, to relieve the Lessee of its obligation for the payment of Interim
Rental provided in paragraph 4 below.
4. MONTHLY RENTAL PAYMENT: $ 2,803.06
Hawaii General Excise Tax at n/a% $ N/A
----------
TOTAL MONTHLY RENTAL PAYMENT $ 2,803.06
LEASE FACTOR: $21.43 PER THOUSAND DOLLARS OF CAPITALIZED COST OF EQUIPMENT
Upon the commencement of the Rental Term, the Lessee shall pay to the
Lessor the Total Monthly Rental Payment specified above. The Lessee hereby
acknowledges and agrees that the Total Monthly Rental Payment is (i) based
upon the total Capitalized Cost of the Equipment and the Lease Factor
stated above; (ii) is inclusive of the Hawaii general excise tax at the
rate currently in effect, and (iii) is subject to adjustment if the actual
Capitalized Cost of the Equipment differs from the amount set forth above
and in Exhibit A, it being understood that the figures stated above and in
Exhibit A are based on the best information available to the Lessor and the
Lessee as of the date hereof.
The first Total Monthly Rental payment, together with any accrued but
unpaid Interim Rental payments, shall be due upon the commencement date of
the Rental Term, and all subsequent Total Monthly Rental Payments shall be
due on the FIRST day of each subsequent calendar month.
INTERIM RENTAL PAYMENT: The Lessee shall pay, as Interim Rental, on any
item of Equipment accepted or used by the Lessee prior to the commencement
of the Rental Term, an amount equal to the product of the Lease Factor
times One One Thousandth (1/1000) of the Capitalized Cost of such
Equipment, plus the amount of the applicable Hawaii general excise tax, to
compensate the Lessor for the Lessee's use and enjoyment of the Equipment
prior to the commencement of the Rental Term. The Interim Rental shall be
payable monthly and shall accrue from the date on which the Equipment is
accepted or used until the commencement of the Rental Term.
5. INTEREST ON PAST DUE AMOUNTS AND HANDLING CHARGES:
(a) Pursuant to paragraph 5 of the Master Lease Agreement, the interest
rate on delinquent payments shall be as follows: 5 % per month, (b) Lessor
will assess a handling charge of $13.50 for each returned check written
against insufficient funds.
6. OTHER CHARGES TO BE PAID BY LESSEE: (Describe):
(a) Recording Fee for UCC-1 Financing Statement (Notice of Lease) $ 20.00
(b) $ -0-
(c) $ -O-
7. DELIVERY OF EQUIPMENT: Delivery of the Equipment to the Lessee will be
scheduled to occur on or before December 15, 1994, (the "Outside Delivery
Date").
8. INSPECTION PERIOD: The Lessee shall have a period of five day(s) after
delivery and installation to inspect the Equipment unless the time for
inspection is extended with the Lessor's approval.
9. LOCATION OF EQUIPMENT: Pursuant to paragraph 10(c) of the Master Lease
Agreement, the Equipment shall be kept at 16-
(continued)
-1-
TERMS OF GUARANTY
1. Guaranteed Obligations; Continuing Guaranty. As an essential inducement
to Lessor to lease equipment to the Lessee from time to time and as a
consideration for its so doing, the Guarantors hereby unconditionally and
irrevocably guarantee to Lessor that:
(a) The Lessee will duly and punctually pay all lease rentals, purchase
option prices, collection costs, attorneys' fees and all other sums to be paid
by the Lessee under all leases, now existing or hereafter executed, between
Lessor and the Lessee, together with any recourse agreements executed in
connection with such leases (such leases and recourse agreements are
collectively called the "Leases");
(b) The Lessee will duly and punctually observe and perform every other
terms, covenants and conditions on its part to be observed or performed under
the Leases and under all of the documents, instruments and agreements.
contemplated thereby; and
(c) The Guarantors will pay to Lessor upon demand all of Lessor's costs and
expenses, including reasonable attorneys' fees, incurred in connection with any
negotiations or workout involving the Lessee's obligations under the Leases or
the Guarantors' obligations under this Guaranty; or in any collection efforts
affecting the Guarantors, or in the enforcement of this Guaranty.
This Guaranty is to be a continuing guaranty and shall accordingly remain in
effect until all sums due under the Leases have been paid in full and the
Lessee's performance of its obligations under the Leases have been satisfied in
full.
2. Direct and Primary Liability of Guarantors to Lessor. The liability of
the Guarantors to Lessor under this Guaranty is direct and primary, and is
independent of any secondary liability the Guarantors may have by virtue of
their status as a general partner, officer or stockholder of the Lessee (to
extent applicable). Accordingly, this Guaranty may be enforced by Lessor
regardless of any defense or setoff or counterclaim which the Lessee may have or
assert against Lessor, and regardless of whether or not Lessor has instituted
any suit, action or proceeding, or exhausted its remedies against the Lessee, or
exhausted the assets of the Lessee, or taken any steps to enforce any rights
against any other person to compel any such performance or to collect all or
part of such amount, and regardless of whether Lessor has obtained any judgment
against the Lessee for the amounts owed by the Lessee to Lessor under the
Leases.
3. Joint and Several Liability; Counterparts. If this Guaranty is executed
by two or more Guarantors, then the obligation of each Guarantor executing this
Guaranty shall be joint and several. This Guaranty may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same instrument, and in making proof of this
Guaranty, it shall not be necessary to produce or account for more than one such
counterpart.
4. Waiver. The Guarantors hereby unconditionally:
(a) waive any requirement that Lessor provide the Guarantor with notice of
any Leases hereafter executed by the Lessee which are covered by this Guaranty;
(b) waive any requirement that Lessor, in the event of any default by the
Lessee, first make demand upon, or seek to enforce remedies against, the Lessee
or any security before demanding payment under or seeking to enforce this
Guaranty;
(c) covenant that this Guaranty will not be discharged except by complete
performance by the Lessee of the obligations contained in the Leases;
(d) agree that this Guaranty shall remain in full force and effect without
regard to, and shall not be affected or impaired by, without limitation, any
invalidity, irregularity or unenforceability in whole or in part of any of the
provisions of the Leases or any limitation on the liability of the Lessee
thereunder; and
(e) forever waive any rights of appraisement with regard to the value of
any collateral which Lessor may apply as a credit to the obligations of the
Lessee, through foreclosure or otherwise, and agree that the determination by an
independent appraiser appointed by Lessor of the value of such collateral shall
be binding upon the Guarantors for all purposes.
The Guarantors acknowledge their responsibility for verifying from Lessor from
time to time the delinquent or nondelinquent status of the Lessee's account. To
the extent applicable, the Guarantors hereby unconditionally waive the
requirements of presentment, notice of dishonor and protest, and the Guarantors
hereby unconditionally waive all statutory or common law suretyship defenses now
or hereafter otherwise available.
5. No Release. The obligations of the Guarantors under this Guaranty shall
not be released, affected, stayed or impaired, without the written consent of
Lessor, by:
(a) any assignment of the Leases, although made without notice to, or
without the consent of, any Guarantor of the Leases; or
-2-
(b) any waiver by Lessor of the performance or observance by the Lessee of
any of the terms, covenants, or conditions contained in the Leases; or
(c) any extension of the time for payment of any amounts payable under or
in connection with the Leases or the time of performance by the Lessee or any
Guarantor of the Leases, of any obligations under or arising out of the Leases,
or any extension or renewal thereof; or
(d) the modification or amendment (whether material or otherwise) of any
duty, agreement or obligation of the Lessee set forth in the Leases, including
any agreement involving a workout of the Lessee's financial obligations to
Lessor under the Leases, or
(e) the voluntary or involuntary liquidation, sale or other disposition of
all or substantially all of the assets of the Lessee or any other Guarantor of
the Leases; or
(f) any receivership, insolvency, bankruptcy, reorganization, dissolution
or other similar proceedings affecting the Lessee or any Guarantor of the Leases
or any of their respective assets; or
(g) the release of any property from any lien or security interest created
by the Leases or the acceptance of additional or substitute property as security
under the Leases; or
(h) the release or discharge of the Lessee from the observance or
performance of any terms, covenants, or conditions contained in the Leases; or
(i) any action which Lessor may take or omit to take by virtue of the
Leases or through any course of dealing with Lessee; or
(j) any resignation, withdrawal, termination or other change in the
Guarantors' relationship with the Lessee;
(k) the addition of a new Guarantor or the release of any Guarantor of the
Leases; or
(1) the operation of law or any other cause, whether similar or dissimilar
to the foregoing.
6. Subrogation. If the Guarantors shall be required to make any payments on
account of the Leases, then, from and after the payment in full of the total
lease rent and other sums to be paid under the Leases and the discharge of all
obligations to be performed under the Leases, the Guarantors shall be subrogated
to the rights of Lessor against the Lessee. Until such payment in full and such
other performance and discharge, the Guarantors waive any rights they may have
to insist that Lessor enforce any of its remedies under the Leases and any
rights of the Guarantors may have to participate in any security for the
repayment of the Lessee's obligations under the Leases.
7. Subordination of Indebtedness of Lessee to Guarantors. Any indebtedness
of the Lessee now or hereafter held by the Guarantors is hereby subordinated to
the indebtedness of the Lessee to Lessor. Accordingly, after Lessor has provided
the Guarantors with notice of the Lessee's default under the Leases, such
indebtedness of the Lessee to the Guarantors shall, at the request of Lessor, be
collected, enforced and received by the Guarantors as trustee for Lessor and
shall be paid over to Lessor on account of the indebtedness of the Lessee to
Lessor without reducing or affecting in any manner the liability of the
Guarantors under the other provisions of this Guaranty.
8. Change of Financial Condition. The Guarantors will promptly notify
Lessor of any adverse change in any of their respective financial conditions
which might impair or diminish the value of this Guaranty. In the event of any
such adverse change, the Guarantors will, upon request by Lessor, promptly
furnish or make available to Lessor such satisfactory additional security in
such manner as Lessor may reasonably request to compensate for such adverse
change. The Guarantors shall promptly furnish Lessor with such information,
financial or otherwise, as Lessor may from time to time reasonably request
concerning the Guarantors.
9. New Partners or Stockholders. If the Lessee is a partnership or a
professional corporation, the Guarantors shall advise Lessor in writing of any
new partners admitted to the partnership, of any new shareholders of the
professional corporation and shall cause such new partners or shareholders to
execute this Guaranty.
10. Cumulative Rights. The rights and remedies of Lessor hereunder and
under the Leases are cumulative and not exclusive and may be exercised in whole
or in part and in any order and at any time or times as Lessor shall determine.
11. Amendment. The terms of this Guaranty may not be modified or amended,
except by a written agreement executed by the Guarantors with the written
consent of Lessor.
12. Notices. Any notices or demand to be given or served on the Guarantors
shall be in writing and personally delivered, or sent by registered or certified
mail addressed to the Guarantors at the address provided above. The Guarantors
may change its address from time to time by delivering to Lessor written notice
of any change of address. Service of any notice of demand shall be deemed
complete on the date of actual delivery or the expiration of the second day
after the date of mailing, whichever is earlier.
-3-
13. Submission to Jurisdiction. If any Guarantor is not a resident of the
State of Hawaii, such Guarantor hereby irrevocably submits, for purposes of any
action or proceeding which Lessor may bring to enforce this Guaranty, to the
jurisdiction of the courts of the State of Hawaii and the Federal District Court
for the District of Hawaii. This provision shall not, however, preclude Lessor
from commencing any action against the Guarantors in any other jurisdiction.
14. Binding Force. This Guaranty shall be binding upon the Guarantors and
their heirs, personal representatives, successors and permitted assigns, and it
shall inure to the benefit of and shall be enforceable by Lessor and its
successors and assigns from time to time. Lessor may asign this Guaranty, in
whole or in part, without notice, in connection with any transfer by Lessor of
its interest in the Leases.
15. Governing Law. This Guaranty shall for all purposes be construed in
accordance with the laws of the State of Hawaii.
16. Neuter Terms, etc. The use of the singular shall include the plural,
and the use of the neuter shall include the masculine and feminine, as the case
may be.
17. Special Conditions.
None.
This Guaranty has been executed as of the date written above.
/s/ XXXX XXXX
-------------------------------------- ---------------------------------------
XXXX XXXX
-------------------------------------- ---------------------------------------
-------------------------------------- ---------------------------------------
GUARANTORS
FHL-49
-4-
13. Submission to Jurisdiction. If any Guarantor is not a resident of the
State of Hawaii, such Guarantor hereby irrevocably submits, for purposes of any
action or proceeding which Lessor may bring to enforce this Guaranty, to the
jurisdiction of the courts of the State of Hawaii and the Federal District Court
for the District of Hawaii. This provision shall not, however, preclude Lessor
from commencing any action against the Guarantors in any other jurisdiction.
14. Binding Force. This Guaranty shall be binding upon the Guarantors and
their heirs, personal representatives, successors and permitted assigns, and it
shall inure to the benefit of and shall be enforceable by Lessor and its
successors and assigns from time to time. Lessor may asign this Guaranty, in
whole or in part, without notice, in connection with any transfer by Lessor of
its interest in the Leases.
15. Governing Law. This Guaranty shall for all purposes be construed in
accordance with the laws of the State of Hawaii.
16. Neuter Terms, etc. The use of the singular shall include the plural,
and the use of the neuter shall include the masculine and feminine, as the case
may be.
17. Special Conditions.
None.
This Guaranty has been executed as of the date written above.
/s/ XXXXXX XXXXXX /s/ XXXXX XXXXXXX
-------------------------------------- ---------------------------------------
XXXXXX XXXXXX XXXXX XXXXXXX
-------------------------------------- ---------------------------------------
-------------------------------------- ---------------------------------------
GUARANTORS
FHL-49
-4-
13. Submission to Jurisdiction. If any Guarantor is not a resident of the
State of Hawaii, such Guarantor hereby irrevocably submits, for purposes of any
action or proceeding which Lessor may bring to enforce this Guaranty, to the
jurisdiction of the courts of the State of Hawaii and the Federal District Court
for the District of Hawaii. This provision shall not, however, preclude Lessor
from commencing any action against the Guarantors in any other jurisdiction.
14. Binding Force. This Guaranty shall be binding upon the Guarantors and
their heirs, personal representatives, successors and permitted assigns, and it
shall inure to the benefit of and shall be enforceable by Lessor and its
successors and assigns from time to time. Lessor may asign this Guaranty, in
whole or in part, without notice, in connection with any transfer by Lessor of
its interest in the Leases.
15. Governing Law. This Guaranty shall for all purposes be construed in
accordance with the laws of the State of Hawaii.
16. Neuter Terms, etc. The use of the singular shall include the plural,
and the use of the neuter shall include the masculine and feminine, as the case
may be.
17. Special Conditions.
+
None.
This Guaranty has been executed as of the date written above.
/s/ XXXXXXX XXXXXXXXX
-------------------------------------- ---------------------------------------
XXXXXXX XXXXXXXXX
-------------------------------------- ---------------------------------------
-------------------------------------- ---------------------------------------
GUARANTORS
FHL-49
-4-
Master No. A2500
FIRST HAWAIIAN LEASING, INC.
December 7, 1994
HAWAIIAN NATURAL WATER CO.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
RE: Notice of Warranties In Connection with Finance Lease
Gentlemen:
This Notice is given to you for the purpose of confirming our lease arrangement
as a "finance lease" (as this term is defined in Article 2A of the Hawaii
Uniform Commercial Code). As you know, First Hawaiian Leasing, Inc. (the
"Lessor"), is not the manufacturer or supplier of any of the equipment (the
"Equipment") to be leased. You have requested the Lessor to acquire the
Equipment and to lease the same to you pursuant to a finance lease (the "Lease")
between Lessor, as the lessor, and you, as the lessee.
By signing this Notice in the space provided below, you acknowledge that (i) you
have selected the persons who manufacture, deal in and/or supply the Equipment
(together called the "Vendor"); and (ii) you have directed the Lessor to acquire
the Equipment from the Vendor in connection with the Lease.
By this Notice, you are informed that under Article 2A of the Hawaii Uniform
Commercial Code, you are entitled to any promises and warranties, including
those given by any third parties, which are provided to the Lessor by the Vendor
with respect to the Equipment, and you may communicate with the Vendor and
receive an accurate and complete statement of those promises and warranties,
including any disclaimers and limitations i of those promises and warranties, or
disclaimers and limitations of remedies.
Kindly acknowledge receipt of this Notice by signing this Notice in the space
provided below and returning it to us.
Sincerely,
FIRST HAWAIIAN LEASING, INC.
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Vice President
ACKNOWLEDGED AND RECEIVED THIS ON X Dec. 8th, 1994
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Print Name: Xxxxxx Xxxxxx
Its: Pres
FHL-(07/93)
OFFICER'S CERTIFICATE
FOR
CORPORATE LEASING RESOLUTIONS
I hereby certify to FIRST HAWAIIAN LEASING, INC. that:
1. I am the duly elected and qualified President (Corporate officer title)
of HAWAIIAN NATURAL WATER CO. (the "Corporation"). As an officer of the
Corporation, I have access to the records of the Corporation and am familiar
with the matters contained in this Certificate.
2. The following resolutions were adopted by the Board of Directors of the
Corporation
[check one]
|X| at a meeting duly held on September 19 ,1994, in accordance with the
By-laws of the Corporation:
|_| (for Hawaii corporations only) by unanimous written consent without a
meeting in accordance with Section 415-44 of the Hawaii Revised Statutes:
RESOLVED, that the Corporation enter into lease agreements from time
to time with FIRST HAWAIIAN LEASING, INC. ("Lessor") for the lease of
equipment having an acquisition or capitalized cost not exceeding the
principal sum of TWO HUNDRED THOUSAND AND NO/Dollars ($200,000.00***), it
being understood that the total amount of lease rentals, fees, charges,
expenses and other sums payable to the Lessor under such lease agreements
may exceed this limitation on the acquisition or capitalized cost of any
leased equipment.
RESOLVED, that [check one and list corporate officers' title]
|X| any one of the following officers:
President
---------------------------------------------------------------------------
V.P. Finance
---------------------------------------------------------------------------
|_| any two of the following officers:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
|_| other combination: --------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
is/are authorized and empowered for and in the name of the Corporation as
its corporate act and deed, on such terms and conditions as such officer(s)
may agree upon with the Lessor to execute and deliver to the Lessor lease
agreements, equipment lease schedules, equipment acceptance certificates,
recourse agreements, assignments and such other instruments, certificates,
or agreements as the Lessor may require or such officer(s) may approve by
execution and delivery thereof to consummate the lease transactions
authorized by these resolutions.
RESOLVED, that the above designated officer(s) is/are also authorized
and empowered for and in the name of the Corporation as its corporate act
and deed, on such terms and conditions as such officer(s) may agree upon
with the Lessor to mortgage, pledge, or otherwise encumber to or for the
benefit of the Lessor any or all of the Corporation's property, real or
personal, to secure payment of the lease rentals, fees, charges. expenses
and other sums due to the Lessor under any lease documents.
RESOLVED, that these resolutions shall supplement, and not supersede,
any resolutions previously adopted by the board of directors of the
Corporation, which may
1
FHL-52 (12/88)
prescribe any limitations on the total acquisition or capitalized cost of
equipment which the Corporation may lease from the Lessor at any one time
or from time to time.
RESOLVED, that all actions previously taken by such officer(s) in
connection with the Corporation's leasing of equipment from the Lessor are
hereby ratified and confirmed.
RESOLVED, that the Secretary, any Assistant Secretary or other officer
of the Corporation be authorized and directed to certify to the Lessor a
copy of these resolutions, the present offers referred to in these
resolutions, and, if and when any change is made in the persons filling any
of the offices.
RESOLVED, that these resolutions shall constitute a continuing
authority to the above designated officer(s) to act on behalf of the
Corporation, and the Lessor is authorized and requested to rely and act
thereon, until these resolutions are revoked by the Corporation and formal
written notice of such revocation, duly certified, shall have been given to
the Lessor.
3. These resolutions have been duly entered in the minutes book of the
Corporation. These resolutions are in conformity with the Articles of
Incorporation and By-Laws of the Corporation and are now in full force and
effect.
4. The consent of the stockholders of the Corporation to the transactions
authorized in the resolutions is not required.
5. No proceeding toward the merger, consolidation, sale of assets or
business, or dissolution or liquidation of the Corporation has been commenced
and no such proceeding is contemplated.
6. First Hawaiian Leasing, Inc. is entitled to act in reliance upon the
matters contained in this Certificate.
Dated this 8th day of December , 1994.
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Title: Pres.
-----------------------------
(AFFIX CORPORATE SEAL)
2
FHL-52 (12/88)
FIRST HAWAIIAN LEASING, INC.
ACCEPTANCE CERTIFICATE
This Acceptance Certificate pertains to all of the Equipment described in
the attached Exhibit A. The Equipment is covered by Lease Schedule No. 65169,
which forms a part of Master Lease Agreement No. A2500 executed by the Lessor
and the Lessee (hereinafter call the "Lease").
1. Acceptance of the Equipment. The Lessee hereby certifies to the Lessor
that:
(a) All of the Equipment has been delivered and installed; and
(b) The Lessee has accepted the Equipment for purposes of commencing the
Lessee's rental payment obligations under the Lease.
This acceptance of the Equipment is without prejudice to the Lessee's
rights against the vendor or manufacturer of the Equipment for remedying any
claimed defects.
2. Special Acknowledgments. The Lessee hereby acknowledges:
(a) That the Lessee has selected the type, quantity and method of delivery
of the Equipment and the manufacturer and/or dealer (sometimes
hereafter called the "Vendor") of the Equipment; that the Lessor has
not selected and does not manufacture or supply the Equipment; that
the Lessor has or will acquire the Equipment solely in connection with
the Lease, that the Lessor has informed the Lessee in writing that the
Lessee is entitled to the promises and warranties, including those of
any third party, provided to the Lessor by the Vendor in connection
with the contract by which the Lessor acquired the Equipment and the
Lessee may communicate with the Vendor and receive a statement of
those promises and warranties, including any disclaimers and
limitations of them or of remedies; that the Lessee has selected the
Equipment solely in reliance on the Vendor's warranties and
representations; and that the Lessor has not made any representations
to the Lessee concerning the use, condition, operation, efficiency or
safety of the Equipment. The Lessee also acknowledges that the sales
representatives or other agents of the Vendor are not the agents of
the Lessor, and therefore, are not authorized to waive or alter any
term, covenant or condition of the Lease.
(b) THAT THE LESSOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED
TO: ANY WARRANTY AGAINST INFRINGEMENT (INCLUDING ANY CLAIMS FOR PATENT
INFRINGEMENT) BY ANY PERSON; THE MERCHANTABILITY OF THE EQUIPMENT OR
ITS FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR THE CONDITION OF
THE EQUIPMENT; THE WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE
EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR
CONTRACT PERTAINING THERETO; OR ANY DEFECTS WHATSOEVER; IT BEING
UNDERSTOOD THAT THE EQUIPMENT IS BEING LEASED TO THE LESSEE "AS IS."
(c) That the Vendor's equipment warranties shall be in lieu of all others,
expressed or implied, during the term of the Lease, and that the
Lessor shall not be liable to the Lessee for the loss of any profits,
loss of working time, injury to any person or property, loss of
business or any other damages, direct or indirect, special,
consequential or otherwise caused or resulting from the possession,
use and loss of use of the Equipment; that the Lessee shall make any
claim on account thereof solely against the Vendor; that the Lessor
has agreed to assign solely for the purpose of assisting the Lessee in
the assertion of its claims, all of the Lessor's rights to any Vendor
warranties on the Equipment; that all claims or actions under any
Vendor warranties shall be made by the Lessee, at its own expense; and
that the Lessor shall have no obligation to make any claim on any such
warranty; provided, however, if to the extent any breach of warranty
results in damage or liability to the Lessor or the Lessor's interest
in the Equipment, Lessor may, but shall not be under any obligation
to, make or prosecute a claim or action in addition to or in lieu of
any claim or action by the Lessee.
(d) That no defects or unfitness of the Equipment for use in the Lessee's
business shall relieve the Lessee of, or shall be a defense to, the
Lessee's performance of its obligations under the Lease, including,
without limitation, the obligation to make the rental payments due to
the Lessor.
3. Payment Authorization. The Lessee hereby authorizes the Lessor to pay for
the Equipment in accordance with the terms of any purchase orders for the
same.
DATED: 4/19 , 1995
HAWAIIAN NATURAL WATER CO.
/s/ Xxxxxx Xxxxxx
-------------------------------
Its: Pres.
-------------------------------
LESSEE
FHL-39(Rev. 1/92)
FIRST HAWAIIAN LEASING, INC.
LEASE SCHEDULE NO. 65169
1. DESCRIPTION OF EQUIPMENT: See Exhibit A attached hereto and made a part
hereof.
2. TOTAL CAPITALIZED COST OF EQUIPMENT: $18,429.84
3. RENTAL TERM: 60 months
The Rental Term specified above shall commence on the earlier of: (a) the
date of expiration of the inspection period specified in paragraph 8 below
for all Equipment described in Exhibit A or (b) the date on which the
Lessee executes the Acceptance Certificate for all of such Equipment;
provided, however, the commencement date for the Rental Term shall be
adjusted to begin on the first day of the next calendar month if the
controlling date under (a) or (b) above does not occur on the first day of
a calendar month. Following the commencement date, the Rental Term shall
continue for the number of months specified above, it being the intention
of the parties that the stated Rental Term be the same for all items of
Equipment described in Exhibit A. This provision shall not be construed,
however, to relieve the Lessee of its obligation for the payment of Interim
Rental provided in paragraph 4 below.
4. MONTHLY RENTAL PAYMENT: $ 399.19
Hawaii General Excise Tax at n/a% $ N/A
--------
TOTAL MONTHLY RENTAL PAYMENT $ 399.19
LEASE FACTOR: $21.66 PER THOUSAND DOLLARS OF CAPITALIZED COST OF EQUIPMENT
Upon the commencement of the Rental Term, the Lessee shall pay to the
Lessor the Total Monthly Rental Payment specified above. The Lessee hereby
acknowledges and agrees that the Total Monthly Rental Payment is (i) based
upon the total Capitalized Cost of the Equipment and the Lease Factor
stated above; (ii) is inclusive of the Hawaii general excise tax at the
rate currently in effect, and (iii) is subject to adjustment if the actual
Capitalized Cost of the Equipment differs from the amount set forth above
and in Exhibit A, it being understood that the figures stated above and in
Exhibit A are based on the best information available to the Lessor and the
Lessee as of the date hereof.
The first Total Monthly Rental payment, together with any accrued but
unpaid Interim Rental payments, shall be due upon the commencement date of
the Rental Term, and all subsequent Total Monthly Rental Payments shall be
due on the first day of each subsequent calendar month.
INTERIM RENTAL PAYMENT: The Lessee shall pay, as Interim Rental, on any
item of Equipment accepted or used by the Lessee prior to the commencement
of the Rental Term, an amount equal to the product of the Lease Factor
times One One Thousandth (1/1000) of the Capitalized Cost of such
Equipment, plus the amount of the applicable Hawaii general excise tax, to
compensate the Lessor for the Lessee's use and enjoyment of the Equipment
prior to the commencement of the Rental Term. The Interim Rental shall be
payable monthly and shall accrue from the date on which the Equipment is
accepted or used until the commencement of the Rental Term.
5. INTEREST ON PAST DUE AMOUNTS AND HANDLING CHARGES:
(a) Pursuant to paragraph 5 of the Master Lease Agreement, the interest
rate on delinquent payments shall be as follows: 5% per month, (b) Lessor
will assess a handling charge of $13.50 for each returned check written
against insufficient funds.
6. OTHER CHARGES TO BE PAID BY LESSEE: (Describe):
(a) Recording Fee for UCC-1 Financing Statement (Notice of Lease) $ 20.00
(b) $ -0-
(c) $ -O-
7. DELIVERY OF EQUIPMENT: Delivery of the Equipment to the Lessee will be
scheduled to occur on or before April 10, 1995, (the "Outside Delivery
Date").
8. INSPECTION PERIOD: The Lessee shall have a period of five day(s) after
delivery and installation to inspect the Equipment unless the time for
inspection is extended with the Lessor's approval.
9. LOCATION OF EQUIPMENT: Pursuant to paragraph 10(c) of the Master Lease
Agreement, the Equipment shall be kept at 15-
-1-
(continued)
000 Xxx Xxxxxxx Xxxx, Xxxxx, Xxxxxx 00000, and shall not be removed
therefrom without the written consent of the Lessor. The Lessor may, in its
sole discretion, withhold its consent to any transfer of the Equipment
outside the State of Hawaii.
10. SECURITY DEPOSIT: $399.19
11. STIPULATED LOSS VALUE OF EQUIPMENT: The amount of the Stipulated Loss Value
to be paid by the Lessee to the Lessor pursuant to paragraph 12(d) of the
Master Lease Agreement for any Equipment lost, damaged, confiscated or
destroyed during the Rental Term shall be determined by multiplying (a) the
total Capitalized Cost of such Equipment by (b) the applicable percentage
set forth in the Stipulated Loss Schedule which is attached hereto and made
a part hereof. The applicable percentage is the figure listed opposite the
month in which the Stipulated Loss Value is actually paid to the Lessor in
full. (This is based on the assumption that the Lessee has paid all
periodic lease rental payments, including the lease rental payment for the
month in which the Stipulated Loss Value is paid to the Lessor in full.)
If, for any reason, the loss shall occur prior to the commencement of the
Rental Term, the Stipulated Loss Value to be paid to the Lessor shall not
be less than the Stipulated Loss Value for the first month of the Rental
Term. In addition, the Lessee shall continue to pay Interim Rental until
the Stipulated Loss Value is paid to the Lessor in full. The actual amount
of the Stipulated Loss Value shall be calculated as of the month in which
the Stipulated Loss Value is paid to the Lessor in full. (This assumes that
the Lessee has paid all Interim Rental, including the Interim Rental for
the month in which the Stipulated Loss Value is paid to the Lessor in
full.)
12. LESSOR'S TAX BENEFITS: For purposes of the tax indemnification provisions
of paragraph 19 of the Master Lease Agreement:
(a) The Lessor will take the maximum depreciation deductions (modified
ACRS) permitted by law as of the date of this Lease Schedule based on
a N/A-year class life.
(b) The Lessor's Tax Benefits are based upon the following tax rates being
applicable during the Rental Term: N/A for federal income tax purposes
and N/A for Hawaii income tax purposes.
(c) The Lessor will be entitled to claim the N/A Capital Goods Excise tax
credit for Hawaii franchise tax purposes, and
(d) The Lessor's Tax Benefits are based upon a Hawaii franchise tax rate
of N/A being applicable during the Rental Term.
(e) Other: N/A.
13. OTHER CONDITIONS:
End of Rental Term Purchase Option Price of the Equipment is $1.00 plus the
amount of any applicable Hawaii general excise tax thereon.
This Lease Schedule shall be attached to and made a part of Master Lease
Agreement No. A2500 (hereinabove called the "Master Lease Agreement").
IN WITNESS WHEREOF, the parties hereto have executed this Lease Schedule on
4/19, 1995.
FIRST HAWAIIAN LEASING, INC. HAWAIIAN NATURAL WATER CO.
/s/ Xxxxxx Xxxxxx
-------------------------------
By /s/ Xxxxxx X. Xxxx Its: Pres.
------------------------------------------- -------------------------------
Its: Xxxxxx X. Xxxx, Vice President LESSOR Its: LESSEE
FHL-15 (10/91)
- 2 -
EXHIBIT A
Page 1 of 1
LEASE SCHEDULE NO. 65169
FIRST HAWAIIAN LEASING, INC. LESSEE: HAWAIIAN NATURAL WATER CO.
Post Office Box 47600 0000 Xxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
QUANTITY SERIAL NO. DESCRIPTION AMOUNT
-------- ---------- ----------- ------
BOTTLING EQUIPMENT
Consisting of the following:
1 Videojet Excel Series 100 Printer $10,480.00
1 Value Pack - SEE: EXHIBIT A-2 196.00
1 Detactor, Reflex 275.00
1 Power Conditioner 220.00
1 Adjustable Printhead Stand 490.00
1 Spare Parts Kit - SEE: EXHIBIT A-1 1,055.00
1 Compressed Air Filter System NC
1 Console Stand NC
1 Sim-Co 42" Diameter Stainless Steel
Pack Off Table 5,005.00
Tax 708.84
--------------------------------------------------------------------------------
TOTAL CAPITALIZED COST $18,429.84
--------------------------------------------------------------------------------
Dated: /19. 1995
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Its: PRES.
EXHIBIT--A1
RECOMMENDED ON SITE SPARE PARTS KIT FOR USERS OF THE
VIDEOJET EXCEL Series 100
Spare Parts Kit (P/N 355615) for EXCEL Printers consists of the following parts:
PART NO. DESCRIPTION QUANTITY
ELECTRONICS CABINET
205295 Relay -- AC. SS 1
205604 Lamp, 14 V Incandescent 2
363022 Wire Assy. Ground 2
SP207011 Packaged Battery 2
HYDRAULICS CABINET/PRINTHEAD
203305 Ferrule, Front 1/8" dia. 2
203306 Ferrule, Rear 1/8" dia. 2
203307 Fitting, Nut for 1/8" dia. Tube 2
204446 Switch, Pressure Spst 1
206429 Valve, 3-way Solenoid 1
250077 Cable Tie, 7/64" Nylon 2
355258 Thumb Screw Assy. 1
355462 Spring, Compression 2
355961 Piston, Plunger Suction 1
356086 Tube Assy, 1/32" ID 1
356089 Tube Assy, 1/16" ID 1
356093 Tube Assy, 1/16" ID 1
SP205978 Pkd Pump Spring, XFR 1
SP206582 Packaged "0" Ring 1
SP207016 Packaged Diaphragm 1
SP355088 Pkd Pump Spring, Ink 1
SP356134 Pkd Regulator Assy 1
SP355236 Pkd Catcher Assy 1
SP355390 Filter/Tube Assy 2
SP355610 Packaged Diaphragm 1
SP355611 Packaged Diaphragm 1
SP363006 Universal Nozzle 1
EXPENDABLES
204667 Filter, 3 micron 1
SP205825 Pkd Ink Filter, Final 1
SPECIAL TOOLS
188614 Key, Hex. 050 1
186932 Gauge, High Voltage Plate 1
202047 Wash Bottle 1
205416 Cylinder, Graduated 1
355257 Holder, Magnifier 1
355262 Bracket Assy, Printhead Holder 1
355267 Pan, Wash Assy 1
SP251413 Pkd Bleed Tube 1
Exhibit A2
VideoJet Excel Series 100
1 - #16-82000XM Value Pack
(2) Quarts ink
(7) Quarts makeup fluid
March 14, 1995
Xx. Xxxxxx Xxxxxx
HAWAIIAN NATURAL WATER CO.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
SUBJECT: Lease No: 000-00000-00000
Xxxx Rotary Filler
Dear Marcus:
Enclosed are copies of you new lease documents.
Thank you for allowing us to assist you with your leasing requirements. If I can
be of further service, please call me at 000-0000.
Sincerely,
/s/ Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
Xx. Documentation Specialist
/dk
Enclosures
Consisting of the following:
1 Videojet Excel Series 100 Printer $10,480.00
I Value Pack - SEE: EXHIBIT A-2 196.00
1 Detector, Reflex 275.00
1 Power Conditioner 220.00
1 Adjustable Printhead Stand 490.00
1 Spare Parts Kit - SEE: EXHIBIT A-1 1,055.00
1 Compressed Air Filter System NC
1 Console Stand NC
1 Sim-Co 42" Diameter Stainless Steel
Pack Off Table 5,005.00
Tax 708.84
--------------------------------------------------------------------------------
TOTAL CAPITALIZED COST... $18,429.84
--------------------------------------------------------------------------------
Dated: 4/19, 1995
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Its: PRES
First Hawaiian Leasing, Inc.
Stipulated Loss Schedule
HAWAIIAN NATURAL WATER CO. LSE 65048
--------------------------------------------------------------------------------
Pmt. Date Balance
--------------------------------------------------------------------------------
1 01-Jan-95 127,997.74
2 01-Feb-95 126,342.24
3 01-Mar-95 122,671.90
4 01-Apr-95 122,986.58
5 01-May-95 121,286.15
6 01-Jun-95 119,570.48
7 01-Jul-95 117,839.43
8 01-Aug-95 116,092.86
9 01-Sep-95 114,330.63
10 01-Oct-95 112,552.60
11 01-Nov-95 110,758.63
12 01-Dec-95 108,948.57
13 01-Jan-96 107,122.29
14 01-Feb-96 105,279.63
15 01-Mar-96 103,420.45
16 01-Apr-96 101,544.60
17 01-May-96 99,651.94
18 01-Jun-96 97,742.31
19 01-Jul-96 95,815,56
20 01-Aug-96 93,871.53
21 01-Sep-96 91,910.07
22 01-Oct-96 89,931.03
23 01-Nov-96 87,934.25
24 01-Dec-96 85,919.56
25 01-Jan-97 83,886.81
26 01-Feb-97 81,835.84
27 01-Mar-97 79,766.48
28 01-Apr-97 77,678.57
29 01-May-97 75,571.94
30 01-Jun-97 73,446.42
31 01-Jul-97 73,301.84
32 01-Aug-97 69,138.04
33 01-Sep-97 66,954.84
34 01-Oct-97 64,752.06
35 01-Nov-97 62,529.53
36 01-Dec-97 60,287.08
37 01-Jan-98 58,024.52
38 01-Feb-98 55,741.68
39 01-Mar-98 53,438.37
40 01-Apr-98 51,114.41
41 01-May-98 48,769.62
42 01-Jun-98 46,403.80
43 01-Jul-98 44,016.77
44 01-Aug-98 41,608.34
45 01-Sep-98 39,178.32
46 01-Oct-98 36,726.51
47 01-Nov-98 34,252.72
48 01-Dec-98 31,756.75
49 01-Jan-99 29,238.40
50 01-Feb-99 26,697.48
51 01-Mar-99 24,133.78
52 01-Apr-99 21,547.09
53 01-May-99 18,937.21
EXHIBIT A
LEASE SCHEDULE NO. 65048
FIRST HAWAIIAN LEASING, INC. LESSEE: HAWAIIAN NATURAL WATER CO.
Post Office Box 47600 0000 Xxxxxxx Xxxxxx, Xxx 000
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
QUANTITY SERIAL NO. DESCRIPTION AMOUNT
-------- --------- ----------- -------
1 562-78-9-94 XXXX MODEL FG 155 ROTARY FILLER $125,770.00
Includes the following:
1 1.5 Liter, 1 Liter & One Half
Change Parts
] 618-12-9-94 Xxxx XX-25 Sports Capper
1 Timing Screw Infeed
1 Speed Indicator
] Missing Cap Detector
] Backlog Eye
1 Bottle Counter
] Electrical Panel
] Spare Parts Group
Tax 5,030.80
--------------------------------------------------------------------------------
TOTAL COST..... $130,800.80
--------------------------------------------------------------------------------
Dated December 8, 1994
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Its: Pres
FIRST HAWAIIAN LEASING, INC.
ACCEPTANCE CERTIFICATE
This Acceptance Certificate pertains to all of the Equipment described in
the attached Exhibit A. The Equipment is covered by Lease Schedule No. 65048,
which forms a part of Master Lease Agreement No. A2500 executed by the Lessor
and the Lessee (hereinafter call the "Lease").
1. Acceptance of the Equipment. The Lessee hereby certifies to the Lessor that:
(a) All of the Equipment has been delivered and installed; and
(b) The Lessee has accepted the Equipment for purposes of commencing the
Lessee's rental payment obligations under the Lease.
This acceptance of the Equipment is without prejudice to the Lessee's
rights against the vendor or manufacturer of the Equipment for remedying any
claimed defects.
2. Special Acknowledgments. The Lessee hereby acknowledges:
(a) That the Lessee has selected the type, quantity and method of delivery of
the Equipment and the manufacturer and/or dealer (sometimes hereafter
called the "Vendor") of the Equipment; that the Lessor has not selected and
does not manufacture or supply the Equipment; that the Lessor has or will
acquire the Equipment solely in connection with the Lease; that the Lessor
has informed the Lessee in writing that the Lessee is entitled to the
promises and warranties, including those of any third party, provided to
the Lessor by the Vendor in connection with the contract by which the
Lessor acquired the Equipment and the Lessee may communicate with the
Vendor and receive a statement of those promises and warranties, including
any disclaimers and limitations of them or of remedies; that the Lessee has
selected the Equipment solely in reliance on the Vendor's warranties and
representations; and that the Lessor has not made any representations to
the Lessee concerning the use, condition, operation, efficiency or safety
of the Equipment. The Lessee also acknowledges that the sales
representatives or other agents of the Vendor are not the agents of the
Lessor, and therefore, are not authorized to waive or alter any term,
covenant or condition of the Lease.
(b) THAT THE LESSOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO: ANY
WARRANTY AGAINST INFRINGEMENT (INCLUDING ANY CLAIMS FOR PATENT
INFRINGEMENT) BY ANY PERSON; THE MERCHANTABILITY OF THE EQUIPMENT OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR THE CONDITION OF THE
EQUIPMENT; THE WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT
WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT
PERTAINING THERETO; OR ANY DEFECTS WHATSOEVER; IT BEING UNDERSTOOD THAT THE
EQUIPMENT IS BEING LEASED TO THE LESSEE "AS IS."
(c) That the Vendor's equipment warranties shall be in lieu of all others,
expressed or implied, during the term of the Lease, and that the Lessor
shall not be liable to the Lessee for the loss of any profits, loss of
working time, injury to any person or property, loss of business or any
other damages, direct or indirect, special, consequential or otherwise
caused or resulting from the possession, use and loss of use of the
Equipment; that the Lessee shall make any claim on account thereof solely
against the Vendor; that the Lessor has agreed to assign solely for the
purpose of assisting the Lessee in the assertion of its claims, all of the
Lessor's rights to any Vendor warranties on the Equipment; that all claims
or actions under any Vendor warranties shall be made by the Lessee, at its
own expense; and that the Lessor shall have no obligation to make any claim
on any such warranty: provided, however, if to the extent any breach of
warranty results in damage or liability to the Lessor or the Lessor's
interest in the Equipment, Lessor may, but shall not be under any
obligation to, make or prosecute a claim or action in addition to or in
lieu of any claim or action by the Lessee.
(d) That no defects or unfitness of the Equipment for use in the Lessee's
business shall relieve the Lessee of, or shall be a defense to, the
Lessee's performance of its obligations under the Lease, including, without
limitation, the obligation to make the rental payments due to the Lessor.
3. Payment Authorization. The Lessee hereby authorizes the Lessor to pay for
the Equipment in accordance with the terms of any purchase orders for the
same.
X MB
-------
DATED: DEC 31, 1994
HAWAIIAN NATURAL WATER CO.
/s/ Xxxxxx Xxxxxx
-------------------------------------
Its: Pres
-------------------------------------
Its: LESSEE
First Hawaiian Leasing, Inc.
March 2, 1995
Xx. Xxxxxx Xxxxxx
HAWAIIAN NATURAL WATER CO.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
SUBJECT: Lease No: 000-00000-00000
Labeling System
Dear Marcus:
Enclosed are copies of your new lease documents.
Thank you for allowing us to assist you with your leasing requirements. If I can
be of further service, please call me at 000-0000.
Sincerely,
/s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
Xx. Documentation Specialist
/dk
Enclosures
0000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
X X. Xxx 00000 o Xxxxxxxx, Xxxxxx 00000 o Telephone (000) 000-0000 o
Facsimile (000) 000-0000
First Hawaiian Leasing, Inc.
Stipulated Loss Schedule
HAWAIIAN NATURAL WATER CO. LSE 65049
--------------------------------------------------------------------------------
Pmt. Date Balance
--------------------------------------------------------------------------------
1 01-Jan-95 44,030.68
2 01-Feb-95 43,461.21
3 01-Mar-95 42,886.63
4 01-Apr-95 42,306.90
5 01-May-95 41,721.97
6 01-Jun-95 41,131.80
7 01-Jul-95 40,536.34
8 01-Aug-95 39,935.54
9 01-Sep-95 39,329.35
10 01-Oct-95 38,717.73
11 01-Nov-95 38,100.62
12 01-Dec-95 37,477.98
13 01-Jan-96 36,849.76
14 01-Feb-96 36,215.91
15 01-Mar-96 35,576.37
16 01-Apr-96 34,931.10
17 01-May-96 34,280.04
18 01-Jun-96 33,623.15
19 01-Jul-96 32,960.37
20 01-Aug-96 32,291.65
21 01-Sep-96 31,616.93
22 01-Oct-96 30,936.16
23 01-Nov-96 30,249.29
24 01-Dec-96 29,556.26
25 01-Jan-97 28,857.01
26 01-Feb-97 28,151.50
27 01-Mar-97 27,439.66
28 01-Apr-97 26,721.44
29 01-May-97 25,996.78
30 01-Jun-97 25,265.62
31 01-Jul-97 24,527.91
32 01-Aug-97 23,783.58
33 01-Sep-97 23,032.58
34 01-Oct-97 22,274.84
35 01-Nov-97 21,510.31
36 01-Dec-97 20,738.93
37 01-Jan-98 19,960.63
38 01-Feb-98 19,175.35
39 01-Mar-98 18,383.03
40 01-Apr-98 17,583.61
41 01-May-98 16,777.02
42 01-Jun-98 15,963.20
43 01-Jul-98 15,142.08
44 01-Aug-98 14,313.60
45 01-Sep-98 13,477.69
46 01-Oct-98 12,634.29
47 01-Nov-98 11,783.33
48 01-Dec-98 10,924.74
49 01-Jan-99 10,058.45
50 01-Feb-99 9,184.39
51 01-Mar-99 8,302.50
52 01-Apr-99 7,412.70
53 01-May-99 6,514.92
First Hawaiian Leasing, Inc.
Stipulated Loss Schedule
HAWAIIAN NATURAL WATER CO. LSE 65049
--------------------------------------------------------------------------------
Pmt. Date Balance
--------------------------------------------------------------------------------
54 01-Jun-99 5,609.09
55 01-Jul-99 4,695.14
56 01-Aug-99 3,773.00
57 01-Sep-99 2,842.59
58 01-Oct-99 1,903.84
59 01-Nov-99 956.67
60 01-Dec-99 1.00
FIRST HAWAIIAN LEASING, INC.
ACCEPTANCE CERTIFICATE
This Acceptance Certificate pertains to all of the Equipment described in
the attached Exhibit A. The Equipment is covered by Lease Schedule No. 65049,
which forms a part of Master Lease Agreement No. A2500 executed by the Lessor
and the Lessee (hereinafter call the "Lease").
1. Acceptance of the Equipment. The Lessee hereby certifies to the Lessor
that:
(a) All of the Equipment has been delivered and installed; and
(b) The Lessee has accepted the Equipment for purposes of commencing the
Lessee's rental payment obligations under the Lease.
This acceptance of the Equipment is without prejudice to the Lessee's
rights against the vendor or manufacturer of the Equipment for remedying any
claimed defects.
2. Special Acknowledgments. The Lessee hereby acknowledges:
(a) That the Lessee has selected the type, quantity and method of delivery of
the Equipment and the manufacturer and/or dealer (sometimes hereafter
called the "Vendor") of the Equipment; that the Lessor has not selected and
does not manufacture or supply the Equipment; that the Lessor has or will
acquire the Equipment solely in connection with the Lease; that the Lessor
has informed the Lessee in writing that the Lessee is entitled to the
promises and warranties, including those of any third party, provided to
the Lessor by the Vendor in connection with the contract by which the
Lessor acquired the Equipment and the Lessee may communicate with the
Vendor and receive a statement of those promises and warranties, including
any disclaimers and limitations of them or of remedies; that the Lessee has
selected the Equipment solely in reliance on the Vendor's warranties and
representations; and that the Lessor has not made any representations to
the Lessee concerning the use, condition, operation, efficiency or safety
of the Equipment. The Lessee also acknowledges that the sales
representatives or other agents of the Vendor are not the agents of the
Lessor, and therefore, are not authorized to waive or alter any term,
covenant or condition of the Lease.
(b) THAT THE LESSOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO: ANY
WARRANTY AGAINST INFRINGEMENT (INCLUDING ANY CLAIMS FOR PATENT
INFRINGEMENT) BY ANY PERSON; THE MERCHANTABILITY OF THE EQUIPMENT OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR THE CONDITION OF THE
EQUIPMENT; THE WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT
WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT
PERTAINING THERETO; OR ANY DEFECTS WHATSOEVER; IT BEING UNDERSTOOD THAT THE
EQUIPMENT IS BEING LEASED TO THE LESSEE "AS IS."
(c) That the Vendor's equipment warranties shall be in lieu of all others,
expressed or implied, during the term of the Lease, and that the Lessor
shall not be liable to the Lessee for the loss of any profits, loss of
working time, injury to any person or property, loss of business or any
other damages, direct or indirect, special, consequential or otherwise
caused or resulting from the possession, use and loss of use of the
Equipment; that the Lessee shall make any claim on account thereof solely
against the Vendor; that the Lessor has agreed to assign solely for the
purpose of assisting the Lessee in the assertion of its claims, all of the
Lessor's rights to any Vendor warranties on the Equipment; that all claims
or actions under any Vendor warranties shall be made by the Lessee, at its
own expense; and that the Lessor shall have no obligation to make any claim
on any such warranty; provided, however, if to the extent any breach of
warranty results in damage or liability to the Lessor or the Lessor's
interest in the Equipment, Lessor may, but shall not be under any
obligation to, make or prosecute a claim or action in addition to or in
lieu of any claim or action by the Lessee.
(d) That no defects or unfitness of the Equipment for use in the Lessee's
business shall relieve the Lessee of, or shall be a defense to, the
Lessee's performance of its obligations under the Lease, including, without
limitation, the obligation to make the rental payments due to the Lessor.
3. Payment Authorization. The Lessee hereby authorizes the Lessor to pay for
the Equipment in accordance with the terms of any purchase orders for the
same.
DATED: DEC. 31, 1994
HAWAIIAN NATURAL WATER CO.
/s/ Xxxxxx Xxxxxx
--------------------------
Its: Pres
--------------------------
LESSEE
FIRST HAWAIIAN LEASING, INC.
LEASE SCHEDULE NO. 65049
1. DESCRIPTION OF EQUIPMENT: See Exhibit A attached hereto and made a part
hereof.
2. TOTAL CAPITALIZED COST OF EQUIPMENT: $44,994.92
3. RENTAL TERM: 60 months
The Rental Term specified above shall commence on the earlier of: (a) the
date of expiration of the inspection period specified in paragraph 8 below
for all Equipment described in Exhibit A or (b) the date on which the
Lessee executes the Acceptance Certificate for all of such Equipment;
provided, however, the commencement date for the Rental Term shall be
adjusted to begin on the first day of the next calendar month if the
controlling date under (a) or (b) above does not occur on the first day of
a calendar month. Following the commencement date, the Rental Term shall
continue for the number of months specified above, it being the intention
of the parties that the stated Rental Term be the same for all items of
Equipment described in Exhibit A. This provision shall not be construed,
however, to relieve the Lessee of its obligation for the payment of Interim
Rental provided in paragraph 4 below.
4. MONTHLY RENTAL PAYMENT: $ 964.24
Hawaii General Excise Tax @ n/a% $ N/A
--------
TOTAL MONTHLY RENTAL PAYMENT $ 964.24
LEASE FACTOR: $21.43 PER THOUSAND DOLLARS OF CAPITALIZED COST OF EQUIPMENT
Upon the commencement of the Rental Term, the Lessee shall pay to the
Lessor the Total Monthly Rental Payment specified above. The Lessee hereby
acknowledges and agrees that the Total Monthly Rental Payment is (i) based
upon the total Capitalized Cost of the Equipment and the Lease Factor
stated above; (ii) is inclusive of the Hawaii general excise tax at the
rate currently in effect, and (iii) is subject to adjustment if the actual
Capitalized Cost of the Equipment differs from the amount set forth above
and in Exhibit A, it being understood that the figures stated above and in
Exhibit A are based on the best information available to the Lessor and the
Lessee as of the date hereof.
The first Total Monthly Rental payment, together with any accrued but
unpaid Interim Rental payments, shall be due upon the commencement date of
the Rental Term, and all subsequent Total Monthly Rental Payments shall be
due on the FIRST day of each subsequent calendar month.
INTERIM RENTAL PAYMENT: The Lessee shall pay, as Interim Rental, on any
item of Equipment accepted or used by the Lessee prior to the commencement
of the Rental Term, an amount equal to the product of the Lease Factor
times One One Thousandth (1/1000) of the Capitalized Cost of such
Equipment, plus the amount of the applicable Hawaii general excise tax, to
compensate the Lessor for the Lessee's use and enjoyment of the Equipment
prior to the commencement of the Rental Term. The Interim Rental shall be
payable monthly and shall accrue from the date on which the Equipment is
accepted or used until the commencement of the Rental Term.
5. INTEREST ON PAST DUE AMOUNTS AND HANDLING CHARGES:
(a) Pursuant to paragraph 5 of the Master Lease Agreement, the interest
rate on delinquent payments shall be as follows: 5 % per month, (b) Lessor
will assess a handling charge of $13.50 for each returned check written
against insufficient funds.
6. OTHER CHARGES TO BE PAID BY LESSEE: (Describe):
(a) Recording Fee for UCC-I Financing Statement (Notice of Lease) $ 20.00
(b) $ -0-
(c) $ -0-
7. DELIVERY OF EQUIPMENT: Delivery of the Equipment to the Lessee will be
scheduled to occur on or before December 15, 1994, (the "Outside Delivery
Date").
8. INSPECTION PERIOD: The Lessee shall have a period of five day(s) after
delivery and installation to inspect the Equipment unless the time for
inspection is extended with the Lessor's approval.
9. LOCATION OF EQUIPMENT: Pursuant to paragraph 10(c) of the Master Lease
Agreement, the Equipment shall be kept at 16-
(continued)
000 Xxx Xxxxxxx Xxxx, Xxxxx, Xxxxxx 00000, and shall not be removed therefrom
without the written consent of the Lessor. The Lessor may, in its sole
discretion, withhold its consent to any transfer of the Equipment outside the
State of Hawaii.
10. SECURITY DEPOSIT: $964.24
11. STIPULATED LOSS VALUE OF EQUIPMENT: The amount of the Stipulated Loss Value
to be paid by the Lessee to the Lessor pursuant to paragraph 12(d) of the
Master Lease Agreement for any Equipment lost, damaged, confiscated or
destroyed during the Rental Term shall be determined by multiplying (a) the
total Capitalized Cost of such Equipment by (b) the applicable percentage
set forth in the Stipulated Loss Schedule which is attached hereto and made
a part hereof. The applicable percentage is the figure listed opposite the
month in which the Stipulated Loss Value is actually paid to the Lessor in
full. (This is based on the assumption that the Lessee has paid all
periodic lease rental payments, including the lease rental payment for the
month in which the Stipulated Loss Value is paid to the Lessor in full.)
If, for any reason, the loss shall occur prior to the commencement of the
Rental Term, the Stipulated Loss Value to be paid to the Lessor shall not
be less than the Stipulated Loss Value for the first month of the Rental
Term. In addition, the Lessee shall continue to pay Interim Rental until
the Stipulated Loss Value is paid to the Lessor in full. The actual amount
of the Stipulated Loss Value shall be calculated as of the month in which
the Stipulated Loss Value is paid to the Lessor in full. (This assumes that
the Lessee has paid all Interim Rental, including the Interim Rental for
the month in which the Stipulated Loss Value is paid to the Lessor in
full.)
12. LESSOR'S TAX BENEFITS: For purposes of the tax indemnification provisions
of paragraph 19 of the Master Lease Agreement:
(a) The Lessor will take the maximum depreciation deductions (modified
ACRS) permitted by law as of the date of this Lease Schedule based on
a N/A-year class life.
(b) The Lessor's Tax Benefits are based upon the following tax rates being
applicable during the Rental Term: N/A for federal income tax purposes
and N/A for Hawaii income tax purposes.
(c) The Lessor will be entitled to claim the N/A Capital Goods Excise tax
credit for Hawaii franchise tax purposes, and
(d) The Lessor's Tax Benefits are based upon a Hawaii franchise tax rate
of N/A being applicable during the Rental Term.
(e) Other: N/A.
13. OTHER CONDITIONS:
End of Rental Term Purchase Option Price of the Equipment is $1.00 plus the
amount of any applicable Hawaii general excise tax thereon.
This Lease Schedule shall be attached to and made a part of Master Lease
Agreement No. A2500 (hereinabove called the "Master Lease Agreement").
IN WITNESS WHEREOF, the parties hereto have executed this Lease Schedule on
Dec 8, 1994.
FIRST HAWAIIAN LEASING, INC. HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxxx Xxxxxx
------------------------------------ ---------------------------
Its: Xxxxxx X. Xxxx, Vice President Its: Pres
---------------------------
LESSEE
EXHIBIT A
LEASE SCHEDULE NO. 65049
FIRST HAWAIIAN LEASING, INC. LESSEE: HAWAIIAN NATURAL WATER CO.
Post Office Box 47600 0000 Xxxxxxx Xxxxxx, Xxx 000
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxx, Xxxxxx 00000
QUANTITY SERIAL NO. DESCRIPTION AMOUNT
1 Q694-059 VERSALINE VERTICAL ROLLER WRAP
LABELING MACHINE $42,839.35
Includes the following:
Spare Parts Kit
Spare Belts
Freight 425.00
Tax 1,730.57
--------------------------------------------------------------------------------
TOTAL COST..... $44,994.92
--------------------------------------------------------------------------------
Dated: December 8 , 1994
HAWAIIAN NATURAL WATER CO.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Its: President
