LEASE AGREEMENT
---------------
Lease No. 000-00000-00
Lease Date May 5, 1995
TERMS AND CONDITIONS OF LEASE
--------------------------------------------------------------------------------
LESSOR: LCA LEASING CORP. (hereinafter called "Lessor")
ADDRESS: 0000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
LESSEE: SMA VIDEO INC.
(hereinafter called "Lessee")
ADDRESS: 000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
SUPPLIER: RANK CINTEL INC. XXXXXXX-XXXXX COMPANY
(hereinafter called "Supplier")
ADDRESS: 25358 AVENUE STANFORD 0000 XXXXX
XXXXXXXXXXX, XX 00000
XXXXXXXXX, XX 00000
--------------------------------------------------------------------------------
Quantity Description of Leased Equipment (Make, Kind, Model No., Serial No. and
any other pertinent identification) (Collectively "Equipment") and individually
"item" herein)
--------------------------------------------------------------------------------
(1) NEW RANK CINTEL TELECINE SYSTEM. (1) NEW XXXXXXX-XXXXX CLEANING MACHINE.
--------------------------------------------------------------------------------
Location of Equipment
ADDRESS: 000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
--------------------------------------------------------------------------------
BASE TERM: 60 : $
--------------------------------------------------------------------------------
RENTAL PAYMENTS: The first 60 payment(s) each at $16,227.89; followed by 0
payment(s) each at $O; followed by 0 payment(s) each at $O;
followed by 0 payment(s) each at $O; followed by 0 payment(s)
each at $0.
ADVANCE RENTALS: First 0 month(s) and Last 0 month(s) rental payment(s)
payable at the time of signing this Lease in the total amount
of $0.
--------------------------------------------------------------------------------
ADDITIONAL TERMS AND CONDITIONS OF LEASE:
1. LEASE OF EQUIPMENT. Lessor leases to Lessee and Lessee hereby leases from
Lessor all the Equipment. Lessee hereby authorizes Lessor to insert in this
lease ("Lease") the serial numbers and other identification information of the
Equipment when determined by Lessor.
2. ORDERING EQUIPMENT. Lessor nbagrees to order the Equipment from Supplier
upon the terms and conditions of Lessor's purchase order. Lessee agrees to
arrange for delivery of Equipment and Lessee shall inspect the Equipment upon
its arrival and shall promptly execute the Delivery and Acceptance Receipt or
notify Lessor in writing of any defects in the Equipment. Lessee agrees that
upon execution of the Delivery and Acceptance Receipt it shall be conclusively
presumed as between Lessor and Lessee that Lessee has fully inspected the
Equipment, that the Equipment is in good condition and repair and that Lessee
is satisfied with and has accepted the Equipment. In case Lessee gives written
notice of a defect with respect to any item of Equipment, Lessee shall on
demand by Lessor pay Lessor any amounts theretofore paid or owing by Lessor in
respect of the purchase of such item of Equipment and upon such payment Lessee
shall be subrogated to Lessor's claim, if any, against Supplier and Lessee
shall indemnify and save Lessor harmless from any and all liability to the
Supplier and/or any other person with regard thereto. Lessee further agrees
that upon execution of the Delivery and Acceptance Receipt, Lessee has
accepted the Equipment and thereby waives any and all of its rights to cover,
reject or revoke acceptance of the Equipment and Lessee acknowledges and
understands that Lessor purchases the Equipment for Lessee's use and
possession in reliance upon this representation.
3. TERM. The term of this lease shall commence on the earlier of the first day
of the month in which Lessee executes and delivers to Lessor the Delivery and
Acceptance Receipt hereinafter mentioned or thirty (30) days after delivery of
the Equipment to the Lessee at the location(s) designated herein, and ends on
the last day of the last month of the number of months stated above as the term
of this Lease.
4. RENT. Lessee shall pay Lessor the total rental for the term of this Lease,
which shall be the total amount of all rental payments stated above, plus such
additional rental as may arise. All monthly payments of rental shall be payable
in advance on the date this Lease commences or on such date that Lessor
designates for such payment and on the same day of each month thereafter,
whether or not Lessor has rendered an invoice therefor. at the office of Lessor
set forth herein or to such other place as Lessor may from time to time
designate in writing.
5. ADVANCE RENTALS. Lessee shall deposit with Lessor any Advance Rentals set
forth herein. Any Advance Rentals so taken shall be non-interest bearing.
Lessor may, but shall not be obligated to, apply any Advance rentals to cure
any default to Lessee hereunder, in which event Lessee shall promptly restore
any amount so applied. Failure to restore immediately Applied Rentals applied
by Lessor shall be a default hereunder.
6. SECURITY DEPOSIT. Lessor shall retain any Security Deposit set forth in this
Lease as security for the performance by Lessee of its obligations hereunder.
Any Security Deposit so taken shall be non-interest bearing. Lessor may, but
shall not be obligated to, apply any Security Deposit to cure any default of
Lessee hereunder, in which event Lessee shall promptly restore any amount so
applied. If Lessee is not in default of any Lessee's obligations hereunder, any
Security Deposit will be returned to Lessee at the termination of this Lease. In
the event that Lessor applies said Security Deposit and Lessee fails to retore
immediately the Security Deposit, Lessee shall be in default hereunder. Lessee
further agrees that Lessor may apply said Security Deposit without conducting a
public or private sale as Lessee agrees that such sale is not necessary under
the circumstances. Lessee further agrees that Lessor may commingle the Security
Deposit with Lessor's general funds and need not segregate the Security Deposit.
7. NON-CANCELABLE NET LEASE. Lessor is the owner of the Equipment for all
purposes. THIS LEASE IS A NON-CANCELABLE NET LEASE. WHEN LESSEE SIGNS AND
DELIVERS A DELIVERY AND ACCEPTANCE RECEIPT FOR AN ITEM, ITS OBLIGATIONS TO PAY
ALL RENT AND OTHER AMOUNTS-WHEN DUE FOR THE ITEM AND OTHERWISE TO PERFORM AS
REQUIRED HEREUNDER ARE UNCONDITIONAL, IRREVOCABLE AND INDEPENDENT. THESE
OBLIGATIONS ARE NOT SUBJECT TO CANCELLATION, TERMINATION, PREPAYMENT,
MODIFICATION, REPUDIATION, EXCUSE OR SUBSTITUTION BY LESSEE. LESSEE IS NOT
ENTITLED TO ANY ABATEMENT, REDUCTION, OFFSET, DEFENSE OR COUNTERCLAIM WITH
RESPECT TO THESE OBLIGATIONS FOR ANY REASON WHATSOEVER, WHETHER ARISING OUT OF
DEFAULT OR OTHER CLAIMS AGAINST LESSOR OR THE MANUFACTURER OR SUPPLIER OF THE
ITEM, DEFECTS IN OR DAMAGE TO THE ITEM, ITS LOSS OR DESTRUCTION, OR OTHERWISE.
This Lease shall not terminate, nor the respective obligations of Lessor or
Lessee be otherwise affected nor shall Lessor have any liability whatsoever to
Lessee, by reason of any defect in or damage to or reduction in value or use
of or loss or destruction of any or all items of Equipment from whatever
cause, including without limitation, any prohibition, commercial frustration,
impossibility, frustration of purpose, or commercial impracticability of
Lessee's use of the Equipment or any item thereof, or the interference with
such use by restrictions imposed by any governmental law, regulation, decree,
ruling or other such legal determination.
8. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT (A)
ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE, OR OTHERWISE DISPOSE OF THIS LEASE, THE
EQUIPMENT OR ANY INTEREST THEREIN, OR (B) SUBLET OR LEND THE EQUIPMENT OR PERMIT
IT TO BE USED BY ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. ANY SUCH
PURPORTED ASSIGNMENT, SUBLEASE OR LOAN IS VOID. LESSOR MAY ASSIGN THIS LEASE OR
GRANT A SECURITY INTEREST IN THE EQUIPMENT IN WHOLE OR IN PART WITHOUT NOTICE TO
LESSEE, AND LESSOR'S ASSIGNEE OR SECURED PARTY MAY THEN ASSIGN THIS LEASE OR THE
SECURITY AGREEMENT WITHOUT N0TICE TO LESSEE. LESSEE AGREES THAT ANY SUCH
ASSIGNMENT WILL NOT MATERIALLY INCREASE LESSEE'S RISK OR BURDEN. EACH SUCH
ASSIGNEE AND/OR SECURED PARTY SHALL HAVE ALL THE RIGHTS BUT NONE OF THE
OBLIGATIONS OF LESSOR UNDER THIS LEASE. LESSEE SHALL RECOGNIZE SUCH ASSIGNMENTS
AND/OR SECURITY AGREEMENTS AND SHALL NOT ASSERT AGAINST THE ASSIGNEES AND/OR THE
SECURED PARTIES ANY DEFENSE, COUNTERCLAIM OR SETOFF THAT LESSEE MAY HAVE AGAINST
LESSOR.
9. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES THAT LESSEE HAS SELECTED BOTH
THE SUPPLIER AND THE LEASED EQUIPMENT AND HAS REQUESTED LESSOR TO PURCHASE SAME
FOR LESSEE AND, IN TURN, LEASE SAME THERETO. LESSOR LEASES THE EQUIPMENT AS-IS,
WHERE-IS, AND WITH ALL FAULTS. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT
THE SAME IS SUITABLE FOR LESSEES PURPOSES, AND THAT LESSOR HAS MADE NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID
EQUIPMENT FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LESSEE
FURTHER ACKNOWLEDGES THAT FOR ALL PURPOSES HEREUNDER THE SUPPLIER IS LESSEE'S
AGENT. LESSEE ACKNOWLEDGES THAT SUPPLIER IS NOT AN AGENT OF OR SPOKESMAN FOR
LESSOR AND THAT NO STATEMENTS, ACTS, OMISSIONS OR REPRESENTATIONS OF SUPPLIER
ARE BINDING ON LESSOR. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A DEALER OR
MERCHANT OF THE GOODS LEASED AND LESSEE REPRESENTS THAT LESSEE HAS NOT RELIED ON
LESSOR'S SKILL OR JUDGMENT IN SELECTING OR FURNISHING THE EQUIPMENT. LESSEE
ACKNOWLEDGES AND AGREES THAT NEITHER SUPPLIER NOR ANY OTHER PERSON IS AUTHORIZED
TO MAKE ANY STATEMENTS OR REPRESENTATIONS AND THAT NONE ARE BINDING ON LESSOR
AND FURTHER THAT THE BREACH OF SUCH DO NOT RELIEVE LESSEE OF OR IN ANY WAY
AFFECT ANY OF LESSEE'S OBLIGATIONS TO LESSOR HEREIN. If the Equipment is not
properly installed, or is unsatisfactory for any reason, Lessee shall,
nevertheless, pay Lessor all rental payable under this Lease and shall not set
up against Lessee's obligations any such claims as a defense, counterclaim,
offset or otherwise. Lessee further agrees that it hereby waives any claim
(including any claim based on strict or absolute liability in tort) it might
have against Lessor for any loss, damage (including incidental or consequential
damage) or expense caused by the Equipment and will defend, indemnify. and hold
Lessor harmless from any claims. actions, or causes of action arising out of
said Equipment. Lessee will make any claims for any unsatisfactory item only
against the manufacturer, Supplier, or seller and at its own expense and not
against Lessor. All warranties to the extent that they are assignable, if any,
from the Supplier to the Lessor are assigned to the Lessee for the term of this
Lease as long as the Lease is not in default for the Lessee to exercise at its
expense. All warranty as to any tax or accounting consequences resulting from
this Lease are disclaimed by Lessor and Lessee represents to Lessor it has
sought and obtained independent professional advice and has relied on same in
deciding to enter into this Lease and Lessee assumes all tax and accounting
risks and all risks as to the stylization of this Lease.
10. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee acknowledges, represents and
warrants to Lessor the following:
(a) Lessor has not selected, manufactured, or supplied the Equipment;
(b) Lessor acquired the Equipment or the right to possession and use of the
Equipment in connection with the Lease.
(c) Lessee has received a copy of, reviewed and approved each contract by which
Lessor acquired the Equipment or the right to possession and use of the
Equipment, before signing this Lease:
1 of 4 pages
(d) Lessee, before signing this Lease, received an accurate and complete
statement designating the promises and warranties and any disclaimers of
warranties, limitations or modifications of remedies, or liquidated damages,
including those of a third party, such as the manufacturer of the Equipment,
provided to the Lessor by the person supplying the Equipment in connection with
or as part of each contract by which Lessor acquired the Equipment or the right
to possession and use of the Equipment;
(e) Lessee has selected Supplier(s) and directed Lessor to purchase the leased
Equipment and/or the right to possession and use of the Equipment from
Supplier(s);
(f) Unless previously known to or acknowledge by Lessee, Lessor informed
Lessee in writing before Lessee signed this Lease, (1) of the identity of each
person supplying the Equipment to Lessor, (2) that the Lessee is entitled to
the promises and warranties including those of any third party, provided to
the Lessor by the person supplying the Equipment in connection with or as a
part of the contract by which the Lessor acquired the Equipment or the right
to possession and use of the Equipment, and (3) that the Lessee may
communicate with the person supplying the Equipment to the Lessor and receive
an accurate and complete statement of those promises and warranties, including
my disclaimers and limitations of them or of remedies;
(g) Lessor provides no warranties or other rights with respect to the
purchase of the Equipment and any and all rights Lessee has with respect to
the purchase of the Equipment are solely against Supplier.
11. EQUIPMENT INSTALLATION AND DELIVERY. Lessee will install or arrange to
install (or base, in the case of a motor vechicle or other movable Equipment)
the Equipment at the location specified herein. Lessee may not move the
Equipment to another location without first obtaining the consent of Lessor in
writing which consent may be withheld by Lessee at its sole discretion. In
such event Lessee must notify Lessor in writing before the move and cooperate
with Lessor in filing appropriate financing statements. Lessee will insure
that the Equipment remains personal property even though it may be installed
on real property. Lessee will at its expense cause each item subject to
vehicle or other registration laws to be fully and correctly titled,
registered and licensed and will apply for and cause a certificate of title to
be issued for the item showing Lessor as both owner and (if possible) sole
lienholder. The Equipment may not be removed to any location other than the
United States of America notwithstanding any term hereof and to do so is an
act of default.
Lessee further acknowledges that Lessor will rely upon the executed Delivery
and Acceptance Receipt by paying Supplier for the Equipment upon Lessor's
receipt thereof. Therefore, Lessees execution of the Delivery and Acceptance
Receipt shall conclusively establish that the Equipment covered thereby is
acceptable to Lessee for all purposes of this Lease and shall constitute an
acceptance of the Equipment described in the Lease.
12. LOCATION: INSPECTION: TAXES: USE. Lessee will be entitled to unlimited
use of the Equipment and Lessee represents the Equipment will be used only for
business or commercial purposes and not for personal, family or household
purposes. Lessee will at its expense comply with all laws, rules, regulations,
requirements, and orders applying to the Equipment and its use, maintenance,
repair, condition, storage and operation. Lessor may inspect the Equipment and
its maintenance records on reasonable notice. Lessee will keep the Equipment
free of liens, claims and encumbrances. Lessee will promptly pay, when due, all
taxes, liens, fees, costs and assessments upon the Equipment imposed by any
governmental, or other, entity or person whatsoever. If Lessee fails to do so,
Lessor may pay such tax and Lessee shall at once reimburse Lessor for the
amount thereof. Failure to pay such tax, when due, by Lessee shall constitute
an event of default hereunder by Lessee. Lessee shall affix and maintain
labels upon a visible place on each item of Equipment indicating that Lessor
is the owner of the Equipment and if Lessee shall fail or refuse to do so
Lessor may do so.
13. ALTERATIONS: MAINTENANCE. Lessee shall, at Lessee's own expense, maintain
the Equipment in good operating condition, repair appearance, furnish all
parts and labor required to keep the Equipment in such condition, protect same
from deterioration other than normal wear and tear, and only use the Equipment
in the regular course of Lessee's business and within normal capacity. For the
purpose of assuring Lessor that the Equipment will be properly serviced,
Lessee shall cause the Equipment to be maintained pursuant to a standard
preventative maintenance contract. Lessee shall not make any modifications,
alterations or additions to the Equipment without prior written consent of
Lessor, and then, all such modifications, alterations and additions shall
belong to Lessor and shall be returned to Lessor with the Equipment upon the
expiration or earlier termination of this Lease.
14. INSURANCE. Lessee shall keep the Equipment insured against all risks of
loss or damage from every cause whatsoever for not less than the full
replacement value thereof. The amount of such insurance shall be sufficient so
that neither Lessor nor Lessee will be considered a co-insurer. Lessee shall
carry public liability insurance, both personal injury and property damage,
covering the Equipment. All such insurance shall be in form and with companies
satisfactory to Lessor and shall name Lessor and its assignee as loss payee as
its interest may appear with respect to property damage coverage and as
additional insured with respect to public liability coverage. Lessee shall pay
the premiums for such insurance and upon Lessor's request deliver to Lessor
satisfactory evidence of insurance coverage required hereunder. The proceeds
of such insurance payable as a result of loss or damage to any item of
Equipment shall be applied to satisfy Lessee's obligations as set forth in
Paragraph 16 below. Lessee hereby irrevocably appoints Lessor as Lessee's
attorney-in-fact to make a claim for, receive payment of and execute and
endorse all documents, checks, or drafts received in payment for loss or
damage under any such insurance policy. Lessee agrees if Lessee shall fail to
procure, maintain, and pay for such insurance, Lessor shall have the right,
but not the obligation, to do so on behalf of Lessee. In the event Lessee does
not obtain and/or pay for such insurance, such failure to obtain and/or pay
for such insurance constitutes a default hereunder.
15. RISK OF LOSS. Lessee shall bear the entire risk of loss, theft, destruction,
damage or disrepair of the Equipment or any part thereof for any cause
whatsoever commencing with the date the Lessee or Lessor has entered into a
contract with Supplier(s) of the Equipment. No such loss, damage, theft,
destruction or disrepair of the Equipment shall relieve Lessee of the obligation
to pay rent or from any other obligation under this Lease. In the event of any
of the above, Lessee, at Lessee's own expense and at Lessor's option, shall
either (a) repair the Equipment, returning same to its previous condition,
unless irreparable; or (b) replace same with like Equipment of equivalent value,
in good condition and acceptable to Lessor, which shall become the property of
the Lessor, or (c) immediately pay Lessor the amount that would be due in the
event of a default upon this Lease. Lessor will then deliver a xxxx of sale for
the item and Lessee's obligation to pay rent for the item will terminate. All
proceeds of insurance received by Lessor as a result of such loss or damage
shall be applied either toward the replacement or repair of the Equipment or the
payment of the obligations of Lessee as set forth hereinabove.
16. GENERAL INDEMNITY. Lessee shall pay and defend, indemnify and hold Lessor
and any successor, assignee or secured party of Lessor harmless on an after-tax
basis from any and all reasonable legal fees whether or not suit has been filed
of any nature whatsoever that may be imposed on, incurred by or asserted against
an indemnified party with respect to any item or its purchase, acceptance,
delivery, ownership, leasing, possession, maintenance, use, operation or
transportation, whether or not any other parties are involved, including without
limitation claims (a) for latent or other defects, (b) for patent, trademark or
copyright infringement, (c) for personal injury, death or property damage, and
(d) based on the negligence of the indemnified party or on strict liability.
17. EVENT OF DEFAULT. Any of the following events or conditions shall
constitute an event of default with or without demand or notice to Lessee
hereunder:
(a) Lessee does not make any payment of rent or any other amount payable to
Lessor under this Lease or under any other indebtedness of Lessee to Lessor
arising independently of this Lease, when due;
(b) Lessee does not timely perform or observe any other covenant, condition
or agreement to be performed or observed under this Lease or under any other
agreement with Lessor;
(c) Any representation or warranty made by Lessee in any Lease, in any
agreement or in any application or financial statement or in any related
document proves to be incorrect in any material respect when made;
(d) Lessee ceases doing business as a going concern;
(e) Lessee becomes insolvent or makes an assignment for the benefit of
creditors;
(f) If a petition is filed by or against Lessee under the Bankruptcy Code or
under any insolvency law or proceeding;
(g) If Lessee applies for or consents to the appointment of a receiver,
trustee. conservator, or liquidator of Lessee or such receiver, trustee,
conservator. or liquidator is appointed without the application or consent of
Lessee;
(h) If any statement, representation or warranty furnished by Lessee to
Lessor after entering into this Lease is untrue or unperformed in any material
respect;
(i) If a creditor of Lessee or any other person or entity attaches or levies
execution against Lessee and the attachment or levy is not released within 48
hours;
(j) If Lessee makes a bulk transfer of its furniture, fixtures, furnishings,
equipment or inventory;
(k) If Lessee breaches any of the terms of any loan or
credit agreements, or defaults thereunder or if the condition of Lessee's
affairs so changes as to, in Lessor's opinion, increase the credit risk
involved and Lessor thereby becomes insecure as to performance of this Lease
or any other agreement with Lessee;
2 of 4 pages
(l) If Lessee shall create, incur, assume, cause or suffer to exist any
mortgage, trust deed, lien, pledge, hypothecation, or other encumbrance
attachment, or execution of any kind whatsoever upon, effecting or with
respect to the Equipment, this Lease or any of Lessor's interests under the
Lease or any other obligation due and payable to Lessor;
(m) If Lessee is an individual or sole proprietor and is judicially declared
incompetent.
Lessee may have more than one obligation with Lessor and a default on any one
such obligation constitutes a default on each other obligation at the option Of
Lessor with or without notice or demand.
For purposes of this section, Lessee also means any Guarantor of Lessee's
obligations under any lease and Lease also means my Guaranty of those
obligations. Therefore, in the event my Guarantor dies or any event of default
described above occurs with respect to any Guarantor, this Lease will be deemed
in default.
18. REMEDIES. If any event of default edits, Lessor without notice or demand may
do one or more of the following in any order and such remedies be cumulative:
(a) Lessor may require Lessee to deliver up any or all of the Equipment at
Lessee's expense at such pace or places as Lessor may require.
(b) Lessor may repossess any and all Equipment wherever found, may enter the
premises where the Equipment is located and disconnect, render unusable and
remove same without liability to Lessor, and may use such premises without
charge to store or show the Equipment for sale, re-lease, or other
disposition.
(c) If Lessor does not recover possession of the Equipment, Lessor may
require Lessee to pay Lessor as liquidated damages for loss of the benefit of
its bargain and not as a penalty, and in lieu of any further payments of rent
for the Equipment its Stipulated Loss Value. Stipulated Loss Value is defined
as: (1) All unpaid rent, delinquency charges, interest, and other amounts due
for the Equipment through the date of entry of judgment; and (2) All sums to
be paid pursuant to the terms of the Lease including but not limited to future
rents, the residual value of the Equipment and all tax recapture benefits
which sums shall be discounted as of the date of entry of judgment at the rate
of 6% (the discount will only apply to tax recapture benefits it allowed by
law). The parties acknowledge that the Stipulated Loss Value reasonably
reflects Lessor's anticipated loss with respect to the Equipment and this
Lease resulting from the event of default.
(d) If Lessor recovers any Equipment, Lessor may sell by public or private sale,
re-lease, hold, retain, or otherwise dispose of the Equipment in any manner it
chooses, free and clear of any claims or rights of Lessee and without any duty
to account to Lessee with respect thereto except as provided hereinbelow:
(1) Lessor may hold and/or retain the Equipment and recover from Lessee
the Stipulated Loss Value.
(2) Lessor may re-lease the Equipment and recover from the Lessee the
Stipulated Loss Value less the amount to be received by Lessor for such
releasing which amount to be received by Lessor for such releasing shall
be discounted at the rate of 6%.
(3) Lessor may sell or otherwise dispose of the Equipment and recover
from the Lessee the Stripulated Loss Value less the net amount received
by Lessor from such sale.
(e) Lessor my xxx for all rentals due under the Lease as they shall accrue.
(f) In the event any of the damages provided above is inadequate, Lessor may
recover the present value of its profit including reasonable overhead the Lessor
would have made from full performance by the Lessee.
(g) Lessor may terminate any or all Leases, may xxx to enforce Lessee's
performance thereof, and/or may exercise any other right or remedy then
available to Lessor permitted at law or in equity.
No failure or delay on the part of the Lessor to exercise any right or remedy
hereunder shall operate as a waiver thereof.
In addition to the above, in all cases, Lessee shall be liable for all costs,
expenses and damages incurred by Lessor whether or not an event of default or
otherwise occurs, including but not limited to, all legal fees whether or not
suit is filed, allocable costs of in-house counsel and other staff, costs
related to the repossession, reconditioning and disposition of the Equipment,
and all incidental and consequential damages.
As used in this Lease, the Residual Value shall be deemed to be the estimated
value of the Equipment at the end of the stated term of this Lease (Lessor may
specifically enforce this provision which is a material inducement to Lessor in
entering into this Lease). For purposes of determining present value as used
herein, Lessor and Lessee agree to utilize the rate of 6%. Lessee acknowledges
that said present value interest rate factor has been freely negotiated between
Lessor and Lessee at a commercially reasonable rate, taking into account the
facts and circumstances as of the date hereof.
Lessor shall not be required to take possession of the Equipment or to proceed
with any legal process including but not limited to the repossessing of the
Equipment or giving Lessee notice before exercising any of the above remedies.
None of the above remedies is intended to be exclusive, but each is cumulative
and in addition to any other remedy available to Lessor. Lessor's exercise of
any one or more remedy shall not preclude its exercise of any other remedy. No
action taken by Lessor shall release Lessee from any of its obligations to
Lessor.
(h) Lessee may have more than one obligation with Lessor and in such event any
collateral securing any one such obligation is deemed collateral for each other
obligation and the security interest granted herein is intended to secure all
such obligations, jointly and severally, and is not limited to the obligations
set forth herein.
19. OWNERSHIP: PERSONAL PROPERTY. The Equipment is, and shall at all times be
and remain sole and exclusive property of Lessor, and Lessee, notwithstanding
any trade-in or down payment made by Lessee or on its behalf with respect to the
Equipment, shall have no right, title or interest therein or thereto, except as
to the use thereof subject to the terms and conditions of this Lease. The
Equipment is, and at all times shall remain, personal property notwithstanding
that the Equipment or any item thereof may now be, or hereafter become, in any
manner affixed or attached to, or imbedded in, or permanently resting upon real
property or any improvement thereof or attached in any manner to what is
permanent.
20. FINANCIAL REPORTS. Lessee shall provide Lessor with: (a) annual financial
statements within 120 days after and as of the close of each fiscal year,
including at least a balance sheet, statement of operations and statement of
changes in financial position, all prepared in accordance with generally
accepted accounting principles applied on a consistent basis, and (b) such other
information as Lessor may reasonably request from time to time.
21. LESSEE'S WAIVERS. To the extent permitted by law, Lessee hereby waives any
rights now or hereafter conferred by statute or otherwise which may require
Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's
damages or which may otherwise limit or modify any of Lessor's rights or
remedies hereunder.
22. DELINQUENCY CHARGES AND INTEREST AFTER DEFAULT. If Lessee fails to pay any
rent or other sum to be paid by Lessee to Lessor hereunder within ten (10) days
after the due date thereof, Lessee shall pay Lessor (a) an amount calculated at
the rate of six cents ($.06) per dollar ($ 1.00) for each such delayed payment,
and shall make such payment within ten (10) days after the original due date, as
compensation for Lessor's internal operating expenses arising as a result of
such failure, and (b) other amounts paid by Lessor relevant to the collection
thereof. All sums due as a result of any default shall accrue interest at the
rate of 18% per annum from date of default, or in not lawful, then at the
highest legal rate, until paid in full.
23. STATUTE OF LIMITATIONS. Any action by Lessee against Lessor for any default
by Lessor under this Lease, shall be commenced within one (1) year after any
such cause of action accrues.
24. ENFORCEABILITY. This Lease shall not be binding and enforceable until
accepted by the Credit Committee of LCA Leasing Corp., which convenes
periodically in New York which is the last act necessary to enforcement of this
Agreement.
3 of 4 pages
25. JURY TRIAL. TO THE EXTENT PREMITTED BY LAW, LESSEE WAIVES TRIAL BY JURY IN
ANY ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE, OR THE
TRANSACTIONS CONTEMPLATED HEREIN.
26. UNIFORM COMMERCIAL CODE FINANCING STATEMENTS. Lessee grants a security
interest to Lessor in all Equipment covered hereunder to the extent necessary
to protect Lessor's title to or interest in the Equipment and hereby authorizes
Lessor to file one or more financing statements covering the Equipment and any
and all other collateral and/or security. Lessee authorizes Lessor to sign,
file, record and otherwise process any such financing statements on Lessee's
behalf and agrees to pay Lessor all fees in connection with such filing.
27. COUNTERPARTS AND RECORDING. This Lease ease may be executed in any number
of required counterparts, each counterpart constituting an original. The
parties are to execute, acknowledge and delivery such further counterparts of
this Lease as may be required at any time in order to comply with the
provisions of any applicable law requiring the recording or filing of this
Lease or a copy hereof in any public office of the United Sates, any state or
any political or governmental subdivision of any state. Lessee agrees to pay
the fees and charges imposed by law for such mandatory recording or filing and
the necessary expenses of Lessor, if any, in effecting such recording or
filing. Only the counterpart marked "Original" may be used as a basis for the
granting of any security interest in chattel paper; all other counterparts not
nominated "Original" are deemed after execution to be mere true copies.
28. MISCELLANEOUS. This Lease shall be governed by the laws of the State of
New York. Any action to enforce this Lease may be brought in a State or
Federal court in New York County, New York, where each Lease has been entered
into and contracted to be performed. To the extent any provision of this Lease
may be determined to be invalid or unenforecable, such invalidity or
unenforceability shall not affect the other provisions hereof. All obligations
of each Lessee, if more than one, shall be joint and several. This Lease shall
be binding upon the parties, its/their successors, legal representatives and
assigns and is a valid legal instrument. All paragraph headings are inserted
for reference purposes only and shall not affect the interpretation or meaning
of this Lease. Time is of the essence in this Lease and each and all provisions
and payment of all indebtedness thereunder. The obligations and liabilities of
Lessee arising hereunder shall survive the expiration or earlier termination
hereof until all obligations have been met and all liabilities haw been paid
in full. Notices hereunder shall (a) be in writing, (b) be delivered
personally or sent by mail or overnight courier to the intended recipient at
its address specified above unless the recipient has given written notice of
another address. Lessee will notify Lessor in writing at least thirty (30) days
before changing its principal place of business or chief executive office.
Lessee will at its expense promptly sign and delivery to Lessor such documents
and assurances and take such further action as Lessor may reasonably request in
order to carry out the intent of this Lease. In the event Lessor incurs any
legal expense enforcement or defense of a term hereof Lessee shall pay all
attorneys fee and court costs whether or not suit is filed both at trial and on
appeal(s). Lessee authorizes Lessor or Lessor's agents to sign, file and record,
on Lessee's behalf, any financing statement Lessor reasonably considers
necessary to protect or perfect its interest in the Equipment and/or other
collateral, if any, and expressly authorizes and instructs Lessor to enter
serial numbers and other pertinent information upon this Lease as Lessor deems
desirable to protect Lessor's interest in the Equipment. Lessee further
authorizes Lessor or Lessor's agents to execute any documents on Lessee's behalf
which Lessee is required and fails to execute pursuant to the terms of the
Lease.
29. ALL MODIFICATIONS MUST BE IN WRITING. The terms of this Lease may not be
waived, altered, amended, modified, revoked, or rescinded and all other prior
and/or contemporaneous oral and written representations are merged herein. This
is the final expression of this Lease between Lessor and Lessee. Any agreements
to modify this Lease must be executed by Lessor and Lessee by a signed writing
and no attempt at modification or rescission of this Lease will be binding or
enforceable as a matter of law.
LCA LEASING CORP.
BY: /s/ Xxxx Xxxxx SVP
-----------------------------------------
Title
ACCEPTANCE DATE:
6/30 ,1995
-------------------------------- --
LESSEE:
SMA VIDEO INC.
BY: /s/ illegible President
-----------------------------------------
Title
BY:
-----------------------------------------
Title
DATE: May 5 ,1995
--------------------------- --
ATTEST: (Witness or Notary) illegible
----------------------------------------------------
Name and Address
Subscribed and sworn to before me this 5 day of May , 1995
-------- --------- --
4 of 4 pages
EQUIPMENT LEASE SCHEDULE
Lease # 000-00000-000
Schedule No., 001 under Equipment Lease No. 001-03599 between LCA Leasing Corp.
(Lessor) and SMA VIDEO INC. of NEW YORK, NY (Lessee).
Lessor and Lessee agree to the following terms subject to the covenants and
conditions of the above identified lease:
1. SCHEDULE: This schedule is entered into as of the acceptance date stated
below between Lessor and Lessee. This schedule is made part of, is subject
to, and is incorporated by reference into the Lease, numbered and
identified, its terms and conditions. All terms not otherwise defined have
the definitions and meanings stated in the Lease.
2. EQUIPMENT LEASED: THE following equipment is leased under the terms and
conditions stated in the Lease and in this schedule. It is generally
described here and more specifically described in attached Exhibit "A".
(1) NEW RANK CINTEL TELECINE SYSTEM. (1) NEW XXXXXXX-XXXXX CLEANING
MACHINE.
3. TERM & RENT: The first 60 payment(s) each at $16,227.89; followed by 0
payment(s) each at $O; followed by 0 payment(s) each at $O; followed by 0
payment(s) each at $O; followed by 0 payment(s) each it $0.
ADVANCE RENTAL: $ 0 is due and payable at the signing of this schedule
being first 0 month(s) and last 0 MONTH(S) advance rentals.
SECURITY DEPOSIT. $ is due on or before the signing of the schedule as a
Security Deposit.
4. LOCATION: If different from Lessee's address, items of equipment shall be
located at the following address and shall not be moved without the prior
written consent of Lessor:
000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
5. INSURANCE: Lessee confirms that the insurance policies required under
section 14 of the terms and conditions of the Lease have been obtained, are
in full force and effect, and a binder or other evidence has been provided
to the satisfaction of Lessor.
6. REPRESENTATIONS BY LESSEE: Lessee represents and warrants that requirements
precedent to the lease and schedule have been fulfilled, satisfied or
complied with; representations and warranties about the Lessee are true,
correct and have experienced no material adverse change as of the date
hereof and no event of default under the lease exists as to this schedule
nor has occurred nor is continuing.
IN WITNESS WHEREOF, Lessor and Lessee execute this schedule upon the dates
written.
LCA LEASING CORP.
BY: /s/ Xxxx Xxxxx SVP
-----------------------------------------
Title
ACCEPTANCE DATE:
6/30 ,1995
-------------------------------- --
LESSEE:
SMA VIDEO INC.
BY: /s/ illegible President
-----------------------------------------
Title
BY:
-----------------------------------------
Title
DATE: May 5,1995
---------------------------------------
ATTEST: (Witness or Notary) illegible
----------------------------------------------------
Name and Address
Subscribed and sworn to before me this 5 day of May , 1995
-------- --------- --
FROM: (LESSEE) DATE May 5, 1995
SMA VIDEO INC. ---------------------
000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
TO: LCA LEASING CORP. (LESSOR)
0000 XXXXXXXXXXXX XXXXX
XXXXX 000
XXXXXXXXXX., XXXXXXXX 00000
RE: LEASE # 000-00000-000
Gentlemen:
The Above-Captioned Equipment Lease Agreement between us shall be amended and
supplemented, effective SIXTY (60) days prior to the expiration of the initial
term thereof and provided said Lease is not then and has not been in default, by
the addition to said Lease of the following:
OFFER OF PURCHASE: Notwithstanding anything to the contrary contained herein,
Lessee shall have the OBLIGATION to purchase Lessor's Right, Title and Interest
in and to the equipment, as a whole, but not in part, AS-IS, WHERE-IS, at the
end of the base or the initial term of this Lease for $ 1.00 (plus any and all
applicable taxes) provided that Lessee is not then and has not been in default
hereunder. Lessee agrees that any default hereunder shall render this Offer of
Purchase null and void, of no force or effect and that this provision will be
strictly enforced.
All else in said Equipment Lease shall remain unchanged and in full force and
effect.
If the foregoing is acceptable to you, kindly indicate your acceptance by
signing the enclosed copy of this letter and return such executed copy to the
undersigned, so that this agreement may become effective as set forth above,
SIXTY (60) days prior to the scheduled expiration of the Initial Lease Term. Any
default by Lessee under the Lease shall automatically negate your acceptance
hereof.
Very Truly Yours,
SMA VIDEO
BY: /s/ illegible President
----------------------------------
TITLE
ACCEPTED AND AGREE TO:
LCA LEASING CORP.
BY:/s/ Xxxx Xxxxx SVP
-------------------------------
TITLE
DATE: 6/30 , 1995
------------------ --
