Exhibit 10.18
[SUMMIT Leasing Logo]
SCHEDULE NO. 001
To Master Lease No. 60060
dated as of December 3, 1997
between Summit Leasing Corporation, as Lessor
and ABLE OIL COMPANY, as Lessee
1. COMMENCEMENT DATE OF SCHEDULE LEASE TERM: The Commencement Date of this
Schedule shall be the earlier of (a) the first date on which any Equipment
under this Schedule to this Master Lease is delivered to Lessee or Xxxxxx's
agent or consigned to a carrier for shipment to Lessee or Xxxxxx's agent,
or (b) December 10, 1997. Said Commencement Date for this Schedule is
December 10, 1997.
2. DESCRIPTION OF THE EQUIPMENT:
(a) Nature of Equipment: The Equipment will consist generally of the
following: (1) ONE NEW 1998 FREIGHTLINER MODEL FL80 TRUCK
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VIN #: 0XX0XXXX0XX000000.
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A complete list of the Equipment including Serial #s is attached as Annex A.
(b) Seller:
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(c) Total Capitalized Cost: $ 45,619.28
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3. EQUIPMENT LOCATION: The above Equipment is to be located and delivered to
Lessee's premises at 000 Xxxxx 00, Xxxxxxxx, XX 00000.
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Phone No. at Location: 000-000-0000.
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4. LEASE TERM: The term of this Schedule (the "Lease Term") shall be 48
months and -0- additional days, commencing on the Commencement Date.
5. ADVANCE PAYMENT: A payment in the amount of $1,224.52 shall be due and
payable by Lessee upon Xxxxxx's acceptance of the Master Lease and this
Schedule. Such amount shall be the sum of $100.00 for Lessor's expenses
related to the transaction contemplated by this Schedule (including but not
limited to UCC search and filing fees) and $1,124.52 for advance rent
("Advance Rent"), Advance Rent (X) has ( ) has not been applied to the first
Rent Payment
6. RENT PAYMENTS: For all items of Equipment covered in this Schedule, Rent
Payments shall be paid monthly, the first Rent Payment payable in advance to
be due on Dec. 10, 1997, ("First Rent Date"), and thereafter on Jan. 10,
1998, and on the 10th day of each month (the "Rent Period") thereafter until all
Rent is paid in full through and including Nov. 10, 2001. Each Rent Payment
is in an amount equal to 2.465% of the Total Capitalized Cost or shall be in
the amount of $1,124.52 plus, in either event, (unless a valid tax exemption
certificate is presented
to Lessor and filed) sales and use tax in the amount of $ -0- making a total
Rent Payment of $1,124.52 per month. Additional Rent of $ -0- per day for
each day Xxxxxx has possession of the Equipment subsequent to the
Commencement Date and prior to the First Rent Date shall be due on the First
Rent Date.
7. BROKER'S COMMISSIONS: Any claim which may be made for commissions in
regard to this transaction shall be the sole responsibility of the Lessee.
8. ADDITIONAL INFORMATION: If such information is unavailable on the date
this Schedule is executed, Lessor is authorized to supply and complete the
Commencement Date (#1), Rent Payment dates and amount of Additional Rent
(contained in #6), the number of additional days in the Lease Term (#4) and
information pertaining to the Description of Equipment (Annex A), based upon
information supplied to Lessor by Seller. In such event, Lessor shall provide
Lessee with an additional true copy of this Schedule immediately upon its
completion.
9. INSURANCE:
(a) Public Liability: $1,000,000 total liability, $1,000,000 per
occurrence.
(b) Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value (as set forth on Annex D-1 hereto) or the full
replacement cost of the Equipment. The amount of Insurance during first year
of the Lease Term shall be not less than the Total Capitalized Cost of the
Equipment:
(c) Medical Malpractice (if applicable): $__________ total, liability,
$________ per occurrence.
10. TAX ID NUMBER: The federal tax identification number (or Social Security
number) of the Lessee is _____________.
11. STIPULATED LOSS AND TERMINATION VALUES:
(a) If, with respect to any of the Equipment, Lessee is required for any
reason whatsoever to pay to Lessor a stipulated loss value (the "Stipulated
Loss Value" or "SLV") or a termination value (the "Termination Value" or
"TV"), Lessee shall pay to Lessor a Stipulated Loss Value or Termination
Value, as the case may be, equal to the sum of the following:
I.a In the case of the SLV, the amount set forth in the attached SLV
Table as of the first day of the Rent Period of the Lease Term of this
Schedule in which there occurs an event of loss, damage or destruction of
any of the Equipment (an "Event of Loss"), multiplied by the Total
Capitalized Cost of the Equipment to which the Event of Loss relates; or
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I.b In the case of the TV, the amount set forth in the attached TV
Table as of the first day of the Rent Period of the Lease Term of this
Schedule in which there occurs (i) a termination of the Schedule or a
demand by Lessor for payment of the TV (a "Termination"), multiplied by
the Total Capitalized Cost of the Equipment to which the Termination
relates; and
II. All Rent Payments, Additional Rent and reimbursement due Lessor
and all federal, state and Local Taxes, costs and expenses incurred by
Lessor on account of the Event of Loss or the Termination, as the case
may be; and
III. All sums due Lessor under Sections 6 and 9 of the Master Lease.
(b) Rent and Additional Rent shall continue to accrue on the affected
Equipment until Lessor has received the SLV or TV, as the case may be, in
immediately available funds.
(c) The Indemnities set forth in Sections 6 and 9 of the Master Lease
shall terminate with respect to such Equipment for which the Lessor receives
the timely payment in full of the SLV or TV, as the case may be, but only with
respect to Local Taxes applicable to tax periods subsequent to the tax period
in which the SLV or TV is paid. Said indemnities shall continue in full force
and effect with respect to Local Taxes applicable to tax periods prior to and
including the tax period in which the SLV or TV is paid.
12. ADDITIONAL PROVISIONS:
(a) Lessee certifies that:
I. there is no error, misstatement or omission in the
representations, warranties and covenants made and/or agreed to by the
Lessee in the Master Lease designated above or in any certificate of any
officer of the Lessee given to the Lessor pursuant thereto, and all the
terms and conditions of the Master Lease designated above to be complied
with and performed by the Lessee on or before the Closing Date have been
complied with and performed; and
II. all other representations and warranties made by the Lessee in
the Master Lease are true and correct on the date hereof with the same
force and effect as if made on the date hereof.
(b) Lessee represents and warrants that Lessee has consulted with its
counsel, accountants and such other professionals as it deems appropriate in
regard in the terms of and prior to its execution of the Master Lease and all
Schedules thereto.
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(c) Lessee acknowledges that:
I. Lessor has not made any representation to Lessee of the
accounting or tax treatment to be afforded Lessor to Lessee pursuant to
any federal, state or local law or regulation or upon the Master Lease or
any Schedule thereunder; and
II. Lessee intends to claim all tax benefits to an owner of the
Equipment and agrees that Xxxxxx shall have no duty to file for or claim
the same.
Except as expressly modified hereby, all terms and provisions of the Master
Lease shall remain in full force and effect. Defined terms used but not
defined herein shall have the same meaning as in the Master Lease. This
Schedule is not binding or effective with respect to the Master Lease or
Equipment until executed on behalf of Xxxxxx and Xxxxxx by authorized
representatives of Lessor and Lessee, respectively.
This Schedule No. 001 includes the following annexes and attachments [List
all applicable annexes and attachments]:
ANNEX A
ANNEX E
Dated: Dec 3, 1997 Accepted Dec 3, 1997
LESSEE:
ABLE OIL COMPANY SUMMIT LEASING CORPORATION
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By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
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Title: President Title: Vice President
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LESSEE: ABLE OIL COMPANY No. 60060
ADDRESS: 000 XXXXX 00
XXXXXXXX, XX 00000
MASTER LEASE
Dated as of Dec. 3, 1997
SUMMIT LEASING CORPORATION, a New Jersey corporation, together with all
assigns, successors and Affiliates ("Lessor") hereby agrees to lease to
Lessee, and will hereby agree to hire and rent from Lessor, solely for use in
Lessee's business, all equipment and other personal property, together with
all replacements, repairs, attachments, accessories, tools, parts, xxxxxxx,
substitutions and additions thereto or used therewith (the "Equipment")
described in each schedule hereto (each a "Schedule"); subject to the terms
and conditions of this Master Lease and each Schedule (together, the
"Lease"). Each Schedule incorporates the terms and conditions of this Master
Lease and shall constitute a separate lease between Lessor and Lessee.
Defined terms shall have the meanings set forth herein, in the Schedules and
in any annexes thereto.
1. TERM AND RENT. The term of this Master Lease shall commence as of the
date set forth above and shall continue until the obligations of Lessee under
this Master Lease and all Schedules shall have been fully performed. The
Lease Term of each Schedule shall begin on the commencement date set forth on
such Schedule ("Commencement Date") and shall continue until all the
obligations of the Lessee have been fully performed to regard to all
Equipment set forth in the applicable Schedule. The installments of rent
(each a "Rent Payment") shall be payable periodically and shall be received
by Lessor on the dates, in the amounts, for the Rent Periods over the Lease
Term indicated in the Schedule without deduction, offset or abatement of any
kind until the balance of all the Rent Payments and all Additional Rent and
all expenses chargeable to Lessee (collectively, "Rent") under this Master
Lease and such Schedule shall have been paid in full. Additional Rent shall
include, without limitation, all costs and expenses incurred by Lessor in
performance by it (in its sole discretion and without implying any obligation
to do so) of any duty of Lessee hereunder relating to the Equipment, the
Master lease and each Schedule hereto, together with all items of Additional
Rent and Advance Rent specified herein and in the Schedule. Advance Rent in
the amount set forth in each Schedule shall be due and payable upon Xxxxxx's
acceptance of such Sehedule and shall be applied as set forth in the
Schedule. Advance Rent shall not be returned to the Lessee under any
circumstances but may be credited to the Termination Value in Xxxxxx's sole
discretion. Additional Rent shall be payable on the earlier of demand or with
the next regularly scheduled Rent Payment. All Rent shall be received by
Lessor in immediately available funds during regular business hours on or
before the date due.
2. TITLE. Lessor shall at all times own and retain title to the
Equipment, subject to its right to pledge, sell or assign its interests as
hereinafter provided. Lessee shall acquire no rights therein except as a
lessee hereunder. All documents of title and evidence of delivery, including
but not limited to all bills of sale, invoices and purchase orders shall be
delivered to the Lessor. Lessee will not place upon, change or remove any
labels, plates, insignia, or lettering on the Equipment except that at any
time during the Lease Term, and upon request of Lessor, Lessee will affix to
the Equipment, in a prominent place, labels, plates, or other markings
supplied by Lessor indicating Lessor's ownership of the Equipment. Lessee
shall at all times keep the Equipment free from any legal process or
encumbrance whatsoever, including but not limited to all liens, attachments,
levies and executions, and shall give Lessor immediate written notice
thereof, post such bonds and sureties when and as Lessor may request against
the same and shall indemnify and hold harmless Lessor from any loss
(including, without limitation, all reasonable attorneys' fees, costs and
disbursements) caused or occasioned thereby. Lessee shall not affix or permit
the Equipment to be affixed to realty so as to change its nature to real
property; Lessee agrees that the Equipment shall remain personal property at
all times regardless of how attached or installed.
3. NO TRANSFER BY XXXXXX. WITHOUT THE LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE MAY NOT, BY OPERATION OF LAW OR OTHERWISE, (a) ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS MASTER LEASE OR ANY SCHEDULE
OR ANY INTEREST IN EITHER, OR (b) TRANSFER, ASSIGN, SELL, SUBLET, LICENSE,
LEND OR OTHERWISE DISPOSE OF THE EQUIPMENT OR PERMIT SAME TO BE USED BY
ANYONE OTHER THAN LESSEE OR LESSEE'S EMPLOYEES. ANY ATTEMPT OF ANY SUCH
DISPOSITION SHALL BE NULL AND VOID AND OF NO EFFECT.
4. PURCHASE AND ACCEPTANCE; NO WARRANTIES BY XXXXXX. Lessee requests
Lessor to purchase the Equipment from the manufacturer or supplier ("Seller")
of the Equipment identified in each Schedule and arrange for delivery to
Lessee at Lessee's expense. Lessor shall have no responsibility for delay or
failure of Seller to deliver the Equipment. XXXXXX ACKNOWLEDGES THAT XXXXXX
HAS INDEPENDENTLY SELECTED THE EQUIPMENT LEASED HEREUNDER PRIOR TO HAVING
REQUESTED THE LESSOR TO PURCHASE THE SAME AND THAT LESSOR IS NOT THE
MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR THE AGENT OF EITHER. XXXXXX HAS
MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE,
DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING THE DESIGN OR SUITABILITY OF SUCH EQUIPMENT, ITS DURABILITY, ITS
FITNESS FOR ANY PARTICULAR PURPOSE, ITS MERCHANTABILITY, ITS CONDITION,
CAPACITY AND/OR ITS QUALITY. THE WORKMANSHIP IN THE EQUIPMENT OR IN
CONNECTION WITH THE INSTALLATION THEREOF, THE EQUIPMENT'S COMPLIANCE WITH THE
REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO,
AND AS BETWEEN LESSEE AND LESSOR, LESSEE LEASES THE EQUIPMENT "AS IS".
NEITHER LESSOR, ITS ASSIGNS NOR AFFILIATES SHALL BE LIABLE TO LESSEE FOR ANY
LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY
BY THE EQUIPMENT OR ANY ADJUSTMENT THERETO, OR BY ANY INTERRUPTION OF SERVICE
OR LOSS OF USE THEREOF OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER, AND
THERE SHALL BE NO ABATEMENT OR APPORTIONMENT OF ANY OF THE RENT PAYMENTS BY
REASON OF ANY FAILURE OR DEFECT IN THE EQUIPMENT OR ANY LOSS OF USE OF THE
EQUIPMENT. NO REPRESENTATION OR WARRANTY AS TO THE EQUIPMENT OR ANY OTHER
MATTER MADE BY SELLER OR ITS AGENTS TO THE LESSEE SHALL BE BINDING ON LESSOR
NOR SHALL ANY BREACH BY SELLER RELIEVE LESSEE OF, OR IN ANY WAY REDUCE OR
POSTPONE ANY OF LESSEE'S OBLIGATIONS TO LESSOR AS SET FORTH HEREIN. WITHOUT
LIMITING THE FOREGOING, AND REGARDLESS OF CAUSE, LESSEE WILL NOT ASSERT ANY
CLAIM WHATSOEVER AGAINST LESSOR OR ITS ASSIGNS OR AFFILIATES FOR LOSS OF
PROFITS OR ANTICIPATORY PROFITS OR ANY OTHER DIRECT, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES, NOR SHALL LESSOR OR LESSOR'S AGENTS, ASSIGNS OR
AFFILIATES BE RESPONSIBLE FOR ANY DAMAGES OR COSTS WHICH MAY BE ASSESSED
AGAINST LESSEE IN ANY ACTION WHATSOEVER INCLUDING, WITHOUT LIMITATION, FOR
INFRINGEMENT OF ANY LETTERS PATENT, TRADEMARK OR COPYRIGHT OR OTHER
PROPRIETARY RIGHTS. XXXXXX MAKES NO WARRANTY AS TO THE TREATMENT OF THIS
LEASE FOR TAX OR ACCOUNTING PURPOSES. Lessee shall timely pay all Rent when
due hereunder without reduction, offset or credit of any kind. Lessee shall
promptly make all claims relating to or pertaining to the Equipment solely
against the Seller. Lessor hereby assigns to Lessee during the Lease Term,
solely for the purpose of making and prosecuting any such claim and to the
extent assignable, any rights it may have against Seller under any written
warranty and for breach of warranty or representation respecting the
Equipment. Xxxxxx acknowledges that Xxxxxx has informed Xxxxxx in writing,
either previously ??? this Lease, of the following: (a) the identity of the
Seller, (b) that the Lessee is entitled to the promises and warranties
provided to Lessor by the Seller in connection with the Equipment, and (c)
Lessee may communicate with Seller to receive a complete statement of any
such written promise or warranty including any disclaimers of ???. This
assignment by Lessor to Lessee shall continue only so long as Xxxxxx is not
in default hereunder. Notwithstanding any statement that may be made by Seller
or Seller's agents, or any broker, or any payment made to any of the above.
Xxxxxx understands and agrees that Seller, any broker and any agent of
either, are not agents of Lessor and that none of the above are authorized to
bind Lessor or to waive or alter any term or condition of this Master Lease
or any Schedule.
5. TERMINATION BEFORE EQUIPMENT ACCEPTANCE. If all the Equipment has
not been delivered, installed and accepted in writing by Lessee (in form
satisfactory to Lessor) on or before the Commencement Date, Lessor may, at
its sole option, on written notice to Lessee, terminate this Master Lease in
respect to all its obligations to Lessee with respect to the affected
Schedule(s).
6. NET LEASE; TAXES. (a) Taxes Other Than Income Tax. Lessee hereby
assumes liability for, shall indemnify and defend Lessor against, and shall
pay an Additional Rent when due, all fees, taxes and governmental charges
(including without limitation, all license and registration fees and all
sales, use, ad valorem, personal property, ???, gross receipts, franchise,
??? or other taxes, imports, duties and charges, together with all penalties,
fines or interest thereon) of every kind and nature ("Local Taxes") whenever
imposed upon or in any way relating to (i) Lessor in its capacity as Lessor
or in its capacity as owner of any Equipment, (ii) Lessee, (iii) the
Equipment (including without limitation the manufacture, purchase, ownership,
shipment, transportation, delivery, installation, leasing, possession, use,
operation, storage and return of the same) or (iv) this Master Lease and each
Schedule or (v) any permitted sublease(s). Lessee shall, at its expense,
promptly pay, report and file when due for the appropriate parties, with the
appropriate authorities, any and all Local Taxes and all returns and reports
required to be filed with respect to all Local Taxes (with copies to Lessor)
showing Lessor as owner of the Equipment. Upon Xxxxxx's request, Lessee shall
notify Lessor of all applicable taxes and all such requirements and furnish
Lessor in writing with all information and pay to Lessor all sums required
for Lessor to effect such filings and pay all Local Taxes not less than sixty
(60) days prior to the last date such filing may be made without extensions
and without the payment of any fine, penalty or interest. Upon notice of any
Determination that any Local Taxes are due, Lessee shall promptly pay Lessor
as Additional Rent an amount sufficient to pay all such Local Taxes
(including without limitation all penalties and interest due thereupon) in
full.
(b) Income Tax. The obligation, if any, of Lessee to indemnify
Lessor for income taxes is set forth in the Schedule and incorporated by
reference herein.
(c) Determination. For purposes of this Master Lease, a
Determination shall mean and shall be deemed to have been made upon Lessor's
receipt from any applicable taxing authority of a demand for payment of tax,
a notice of disallowance of deduction, exemption or tax credit or similar
notice or a notice of any tax increase or additional Local Taxes or Income
Tax. Lessor shall have no obligation and Lessee shall have no right to
contest any Determination beyond the level of the auditing agent.
(d) Tax Indemnification. Lessee intends the Rent paid hereunder to
be absolutely net to Lessor, and Xxxxxx shall indemnify, defend, protect and
keep harmless Lessor and all respective agents, employees, officers,
directors thereof, from and against any and all liabilities, obligations,
losses, damages, claims, demands, penalties, actions, costs and expenses
(including without limitation all reasonable attorneys' and other
professional fees, costs and disbursements) arising out of, relating or
pertaining to any such Local Taxes and Income Taxes (if applicable, under one
or more Schedules). For the purpose of this Section 6 and each Schedule,
"Lessor" shall include any member of an affiliated group, within the meaning
of Section 1504 of the Code.
(e) Survival of Obligations in Respect of Taxes. The indemnities,
promises, duties and obligations of the Lessee under this Section 6 and each
Schedule are in addition to and shall not limit the indemnities set forth in
Section 9, below, and, notwithstanding the expiration or other termination of
this Master Lease and all Schedules, shall survive and continue in full force
and effect until the expiration of the time(s) permitted by law, as extended
by the Lessor, for each taxing authority to examine, assess, collect or
impose any return, report, tax or penalty in respect of, due to or relating
to the Equipment.
7. CARE, USE AND LOCATION. Lessee, at its own cost and expense, shall
maintain and keep the Equipment in good repair, condition and working order,
and in such condition as will maintain its eligibility for the manufacturer's
maintenance agreement, and shall use the Equipment solely in compliance with
applicable laws and regulations and with any and all manufacturer's and
seller's licenses, recommendations, instructions and warranties. The
Equipment shall not be augmented, altered or removed from the Equipment
location shown on the Schedule without Lessor's prior written consent. Lessor
shall have the right to inspect the Equipment, without notice, at all
reasonable times.
8. OTHER COVENANTS AND WARRANTIES OF LESSEE. Lessee agrees that its
obligations under this Master Lease and each Schedule are absolute and shall
continue in full force and effect regardless of any disability of Lessee to
use the Equipment or any part thereof for any reason including, but not
limited to, war, act of God, provisions or operation of applicable law or
regulation, strike, loss, damage, destruction, obsolescence, failure of or
any delay in delivery, failure of the Equipment to properly operate, or any
other cause. Xxxxxx agrees, upon request, to procure such estoppel
certificates, landlord's and mortgagee's waivers and other similar documents.
Xxxxxx agrees to promptly furnish and cause its accountants to furnish Lessor
with audited annual financial statements of Xxxxxx, prepared by an
independent certified public accountant acceptable to Lessor, in accordance
with generally accepted accounting principles consistently applied, and such
interim financial and operating statements as Lessor may require. Lessee
represents and warrants that (a) it is not in the business of selling
equipment similar to the Equipment and does not hold the Equipment or any
similar items as inventory, and (b) it is in compliance with all laws,
regulations and ordinances applicable to its business, including but not
limited to all federal, state and local environmental laws and regulations.
9. INDEMNIFICATION. Lessee assumes liability for, and hereby agrees to
indemnify, defend, protect and keep harmless Lessor and all respective
agents, employees, officers, directors thereof, from and against any and all
liabilities, obligations, losses, damages, injuries, claims, demands,
penalties, actions, costs and expenses, of any kind whatsoever (including
without limitation all reasonable attorneys' and other professional fees,
costs and disbursements) arising out of the use, condition (including, but
not limited to, latent and other defects and whether or not discoverable by
Lessee or Lessor), operation, ownership, selection, delivery, leasing or
return of any items of Equipment, regardless of where, how and by whom
operated, or any failure on the part of Lessee to perform or comply with any
conditions of this Master Lease. Lessor shall have the right to select
counsel and direct the conduct of the litigation in any such section. The
indemnities provided for herein shall continue in full force and effect
notwithstanding the expiration or other termination of this Master Lease or any
Schedule or the assumption by Lessee of the control of such litigation.
Lessee is an obligor of Lessor and nothing contained in this Lease shall
authorize Lessee or any other person to operate any items of Equipment so as
to incur or impose any liability or obligation for or on behalf of Lessor
whatsoever. The indemnities provided in this Section 9 are in addition to and
shall not limit the indemnities set forth in Section 6 of this Master Lease
or under any Schedule.
10. PERFORMANCE BY XXXXXX OF XXXXXX'S OBLIGATIONS. In the event Lessee
fails to comply with any provision of this Lease, Lessor may, in its sole
discretion, effect such compliance on behalf of Lessee upon five (5) days
prior written notice to Xxxxxx. In such event, all expenses of Lessor in
effecting such compliance shall be paid by Lessee to Lessor as Additional
Rent.
11. SECURITY AGREEMENT. The parties agree that it is their intent to
create a true lease of the Equipment. Notwithstanding the foregoing, however,
and to protect Xxxxxx's interests in the Equipment, Lessee herewith grants
Lessor and all Affiliates, a first, purchase money security interest in and to
this Master Lease, each Schedule and all the Equipment as security for all
obligations due Lessor. In addition, Lessee, as security for all existing and
future obligations due Lessor and each Affiliate, hereby grants to Lessor and
each Affiliate a first priority lien on and security interest in (a) any
property in which Lessee has granted or in the future grants to any of Summit
Leasing Corporation, Summit Bancorp., any Summit Bank or any other entity
owned, in whole or in part by any of them (or any successor to any of them)
directly or through such
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other entities (in each case and including Summit Leasing Corporation, Summit
Bancorp. and each Summit Bank, each an "Affiliate") to secure any existing or
future obligations of Lessee to Lessor; and (b) any property of Lessee
(including without limitation cash accounts and deposits) now or hereafter
held, or any obligation now or hereafter owing Lessee, by Lessor or any
Affiliate; provided, however, if any Schedule is assigned by Lessor is an
entity other than an Affiliate, the lien and security interest granted in
this section shall cease upon such assignment, unless otherwise specified in
the instrument of assignment. Lessor is hereby authorized by Xxxxxx, at
Xxxxxx's expense, to cause this Master Lease, each Schedule and/or any
financing statements or other documents in respect thereto or to any items of
additional collateral in which Lessor has been or may be granted any lien or
security interest, to be filed, recorded, refiled and re-recorded and to
execute, on Xxxxxx's behalf, and deliver any statement or document for such
purpose. Xxxxxx agrees promptly to execute, deliver and record any such
statements or additional documents requested by Xxxxxx and to pay or
reimburse Lessor, as Additional Rent for any searches, filings, recordings or
stamp fees or taxes arising therefrom.
12. RISK OF LOSS. Lessee hereby assumes the entire risk of loss, damage
or destruction of the Equipment from any and every cause whatsoever upon the
earlier of delivery to Lessee or consignment to a carrier for shipment to
Lessee. In the event of loss, damage or destruction of any item of Equipment,
Lessee at its own expense and at Lessor's sole option, shall, within thirty
(30) days of such event, either (a) repair such items, returning each to its
previous condition, or replace such items with a like item acceptable to
Lessor and in good condition and of equivalent value, which shall become the
property of Lessor and included within the term "Equipment", or (b) pay
Lessor the Stipulated Loss Value (the "SLV") set forth in the Schedule for
all Equipment covered by such Schedule. Lessor shall apply any proceeds of
insurance received as a result of such loss, damage, or destruction prior to
the expiration of said thirty (30) day period to the obligations under this
Section 12, but the existence of such insurance and any claims thereunder
shall not excuse Xxxxxx's timely payment and performance of all obligations
under the Lease. Upon replacement as provided for in clause (a) or payment of
the SLV provided to clause (b) of this Section 12, this Master Lease and the
applicable Schedule shall terminate with respect to the items of Equipment so
paid for or replaced and Lessee shall take title to same on an as-is,
where-is basis. Any proceeds of insurance received by Lessor in excess of the
sums due from Lessee hereunder shall be promptly paid to Xxxxxx. Lessee
hereby waives all rights conferred by statute or otherwise to terminate
(except as herein expressly provided) or surrender this Master Lease or any
Schedule or the Equipment and to any abatement or reduction of the monthly
rentals on account of any damage to or loss or destruction of the Equipment
or any other event or condition.
13. 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 of the Equipment. The amount of such insurance shall at all
times be sufficient so that neither Lessor nor Lessee shall be considered a
co-insurer. Lessee shall also carry public liability insurance for both
personal injury and property damage covering the Equipment and the use
thereof, and medical malpractice insurance, if applicable. All such
insurance shall be in such amounts, form and with companies satisfactory to
Lessor and licensed to do business in all states in which the Equipment is
located. All insurance for loss or damages shall provide that losses shall
be payable directly to Lessor as Loss Payee and as additional insured. Lessee
shall furnish Lessor with certificates of insurance (or at Lessor's option
the original insurance policy(ies)) or other evidence satisfactory to Lessor
of the insurance coverage hereunder, along with evidence of payment of
premiums therefor. Each insurer shall agree, by endorsement upon the policy
or policies issued by it, certificate of insurance or by independent
instrument furnished to Lessor, that it will give Lessor not less than thirty
(30) days prior written notice of the effective date of any alteration,
non-renewal or cancellation of such policy, that such insurance shall be
primary without any right of contribution from any other insurance carrier
that the Lessor may have, that any duty imposed on the insured(s) or loss
payee(s) shall be solely the duties and obligations of the Lessee and not the
Lessor, that such insurance and the coverage of the Lessor under such policy
shall not be invalidated or impaired as to Lessor by any breach of warranty
or of the policy, act, omission or neglect by the Lessee. Lessee hereby
irrevocably appoints Lessor as Xxxxxx's attorney-in-fact to make claim for,
receive payment of and execute and endorse all documents, checks, or drafts
received in payment for loss or damage under each such insurance policy.
14. DEFAULT. Each of the following events (each an "Event of Default")
shall constitute an Event of Default hereunder: (a) Lessee shall default in
(i) the payment of any Rent or any other amount due hereunder, (ii) the
payment when due of any other indebtedness to the Lessor or an Affiliate, or
(iii) the performance of any other provision hereunder or under any note,
icon, contract or agreement with Lessor or an Affiliate, or (b) any warranty,
representation or statement made by Lessee herein, in any Schedule or in any
application, financial statement or other information furnished in writing to
the Lessor or any Affiliate shall prove to be false or misleading in any
respect, or (c) Lessee becomes insolvent or makes an assignment for the
benefit of creditors, or (d) upon the making of any levy, seizure or
attachment of any Equipment or the attempted assignment of or sublease by
Lessee of this Master Lease or any Schedule or its interest herein or therein
or the existence of any lien or charge on such interest; or (e) dissolution
or termination of existence of Lessee or discontinuance of its business, or
(f) Lessee applies for or consents to the appointment of a receiver, trustee,
conservator, or liquidator or any of the foregoing is appointed without the
application or consent of Lessee, or (g) a petition is filed by or against
Lessee under the Bankruptcy Code or any amendment thereto (including without
limitation a petition for reorganization, arrangement or extension) or under
any other insolvency law or laws providing for the relief of debtors, or (h)
the occurrence of an event of default under any other document or instrument
securing or guaranteeing the obligations of Lessee, or (i) Lessee shall
suffer, in the sole, reasonable judgment of Lessor, a material adverse change
in its financial or operating condition.
15. REMEDIES. If an Event of Default shall occur, Lessor shall have the
right to exercise any one or more of the following remedies, at its option,
at any time, without notice, and subject to applicable law: (a) terminate
this Master Lease and any or all Schedules, (b) declare the entire amount of
unpaid Rent for the balance of the term of this Master Lease and the Lease
Term of each Schedule immediately due and payable, whereupon Lessee shall
become obligated to pay to Lessor forthwith the Termination Value (the "TV")
set forth in each Schedule plus all indemnities set forth in Sections 6 and 9
and each Schedule, (c) without further demand or legal process enter into the
premises where the Equipment may be found and take possession of and remove
the Equipment, without liability for suit, action or other proceedings,
against which liability Lessee hereby agrees to indemnify Lessor, and all
rights of Lessee in the Equipment so repossessed or removed shall terminate
absolutely, and/or (d) cause Lessee, at Xxxxxx's expense to promptly return
the Equipment to Lessor and in the condition required hereunder. Lessee
hereby waives notice of, the posting of any bond in regard to, and hearing
with regard to, such retaking. Lessor, at its option, may use, ship, store,
repair or lease all Equipment repossessed and sell, re-lease or otherwise
dispose of any such Equipment at Lessee's location without any obligation to
pay rent or any other charge, or elsewhere, and at private or public sale,
Lessee shall be liable for and shall pay to Lessor as Additional Rent all
expenses incurred by Lessor in connection with the enforcement of any of
Lessor's remedies, including, without limitation (i) all expenses of
repossessing, storing, shipping, repairing and re-leasing or selling the
Equipment, and (ii) Lessor's reasonable attorneys' and professionals' fees,
costs and disbursements, Lessor and Lessee acknowledge the difficulty in
establishing a value for the unexpired Lease Terms and owing to such
difficulty agree that the TV set forth in each Schedule and the provisions of
this section represent an agreed measure of liquidated damages and are not to
be deemed a forfeiture or penalty. In the event Lessor takes possession of
the Equipment, the TV shall be reduced by any sums as and when received by
Lessor from the sale or re-lease of the Equipment after deduction of the
expense of retaking, reselling or re-leasing the Equipment, all attorneys'
and professionals' fees and costs incurred, and Xxxxxx's residual interest in
the Equipment.
Whenever any payment of Rent or other charge is not received by Lessor in
cash when due hereunder, Xxxxxx agrees to pay the Lessor (as an
administrative charge, occasioned by such delay), not later than the first day
of the following calendar month, an amount calculated at the rate of five
cents (5c) per one dollar ($1.00) of each such delayed payment, but such
charge shall not exceed the maximum allowed by law. Subsequent to declaration
of an Event of Default and acceleration of Rent by Xxxxxx, Xxxxxx agrees to
pay Lessor interest on all sums due Lessor (other than those attributable to
late charges and interest, if any) at the rate of two percent (2%) per month
but not to exceed the maximum rate provided by law. Such amounts shall be
payable in addition to all amounts payable by Xxxxxx as a result of exercise
of any one or more of the remedies herein provided.
3
All remedies of Lessor hereunder are cumulative, are in addition to any other
remedies provided for by law or in equity, and, to the extent permitted by
law or in equity, may be exercised concurrently or separately. The exercise
of any one remedy shall not be deemed to be an election of such remedy or to
preclude the exercise of any other remedy at a later time. No failure on the
part of the Lessor to exercise, and no delay in exercising, any right or
remedy shall operate as a waiver thereof or modify the terms of this Lease.
The waiver of any Event of Default shall not be a waiver of any other or
subsequent Event of Default. In the event this Master Lease and/or any
Schedule is determined to be a security agreement, Xxxxxx's recovery shall in
no event exceed the maximum permitted by law.
16. ALTERATIONS AND ATTACHMENTS. At any time during the term of this
Master Lease and any applicable Schedule, upon prior written consent of
Lessor, Lessee may add additional equipment, features or options ("Additional
Equipment"), supplied by any reputable manufacturer or supplier, to the
Equipment subject to the applicable Schedule, so long as (a) the performance
or usefulness of the Equipment is not reduced thereby, (b) the addition of
such Additional Equipment does not give the manufacturer or supplier the
right to cancel or limit any warranty or maintenance agreement with respect
to the Equipment, and (c) such Additional Equipment is "plug compatible" and
can be easily and readily removed from the Equipment without impairing the
appearance, operation, value, performance or usefulness of the Equipment.
Such Additional Equipment shall be, at Lessor's sole option: (x) acquired
directly by Lessee, or (y) leased to Lessee by Lessor under a separate
Schedule. Any Additional Equipment not in compliance with this Section 16
shall be conclusively deemed the property of Lessor.
17. ASSIGNMENT BY LESSOR. XXXXXX ACKNOWLEDGES XXXXXX'S RIGHT TO ASSIGN
THIS LEASE, ANY SCHEDULE AND/OR THE RENT DUE HEREUNDER AND CREATE A SECURITY
INTEREST IN ANY OF THE EQUIPMENT. NO ASSIGNEE OF LESSOR SHALL BE BOUND TO
PERFORM ANY DUTY, COVENANT OR CONDITION OR WARRANT (EXPRESSED OR IMPLIED)
ATTRIBUTABLE TO LESSOR. Lessee and each guarantor, surety and co-obligor
thereof, upon being notified of the assignment by Xxxxxx, shall
unconditionally pay directly to the assignee (or as directed by it) all Rent
and other sums due or to become due under the Schedules assigned. For the
purpose of determining the assignee's rights hereunder, the term "Lessor"
shall include the assignee after such assignment.
18. REDELIVERY. Upon expiration or earlier termination of this Master
Lease or any Schedule, Lessee shall return all the Equipment listed in each
Schedule, freight and insurance prepaid, to such location as Lessor may
designate in the continental United States, in good repair, condition and
working order, ordinary wear and tear from permitted use excepted, in a
manner reasonably designated by Lessor. Lessee shall provide Lessor with the
applicable manufacturer's certification that the Equipment is eligible for
maintenance under the manufacturer's standard maintenance agreement. Absent
an Event of Default hereunder, if Xxxxxx does not timely either return all
the Equipment listed in the applicable Schedule to Lessor or exercise any
renewal options available to it, if any, under such Schedule, the Equipment
shall continue to be held and leased hereunder, and the Lease Term shall
thereupon be extended indefinitely on a month-to-month basis as to said
Schedule, with rent payable in advance on the same terms and in the same
amount applicable during the Lease Term. Lessee or Lessor may terminate the
resulting month-to-month lease upon ninety (90) days' written notice,
whereupon Lessee shall forthwith deliver the Equipment to Lessor as set forth
in this Section 18.
19. AMENDMENTS. This Master Lease and all Schedule(s) hereto TH CF.
contain the entire agreement between the parties with respect to the --------
Equipment, and may not be modified or rescinded except by a writing
signed by both parties. No representation, modification, rescission, TH CF.
warranty, waiver or collateral agreement by whomsoever made, whether --------
expressed or implied, affecting, modifying, or varying any term or
condition of this Master Lease or any Schedule shall be binding upon the
Lessor unless signed by an authorized officer of Lessor.
20. LAW APPLICABLE. This Master Lease shall be binding when accepted by
Lessor in New Jersey and except for local recording acts, shall be governed
by the laws of New Jersey. Xxxxxx agrees that the negotiation and acceptance
hereof have taken place in New Jersey and that by entering into this Master
Lease, Xxxxxx hereby consents to the personal and subject matter jurisdiction
of Federal and State courts located in New Jersey, for all actions arising
out of this Master Lease and designates either the County of Xxxxxx or Bergen
as Lessor may select in its sole discretion as the proper venue for any such
action in State court, and the County of Essex as the proper venue for any
such action in Federal court. To the extent permitted by law, Lessee waives
trial by jury in any action between the parties.
21. GENERAL. Any provision of this Master Lease which is deemed
unenforceable in any jurisdiction shall be ineffective, solely as to such
jurisdiction, to the extent of such unenforceability without invalidating
the remaining provisions thereof. This Master Lease inures to the benefit of
and is binding upon the heirs, legatees, personal representatives, successors
and assigns of the parties hereto. If there is more than one signatory
hereto as lessee, each shall be deemed a Lessee hereunder and the obligations
of each shall be joint and several.
22. NOTICE. All notices, reports and other documents provided for under
this Master Lease shall be in writing, and shall be effective five (5) days
after being sent, postage paid, certified mail or registered mail, return
receipt requested, addressed to Lessor or Lessee at the address set forth
below their respective signatures or to such other address and/or person as
each may designate for such purpose in writing to each other upon fifteen
(15) days prior notice from time to time. Notwithstanding the foregoing,
Lessor may give notice to Lessee by personal delivery to the notice address
set forth below, which notice shall be effective upon delivery to such
address.
23. ACKNOWLEDGMENTS. Lessee hereby acknowledges: (a) that Xxxxxx has
received an executed and true copy of this Master Lease; (b) that Lessee has
read and understands the restrictions on transfer and disclaimers of
warranties contained in paragraphs 3, 4, and 17 herein; and (d) that the
Equipment is non-consumer, business equipment leased by Lessee solely for
business purposes and will not be employed for personal, family or household
use.
IN WITNESS WHEREOF, the Lessor and Xxxxxx have each caused this Master
Lease to be duly executed the date first above written.
LESSEE: ABLE OIL COMPANY SUMMIT LEASING CORPORATION
-------------------
By: Xxxxxxx Xxxxxxxxxx By: Xxxxxxx Xxxxxxxxxxx
---------------------------- -------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
---------------------------- ------------------------
Title: CEO Title: VICE PRESIDENT
--------- ------------------
---------------------
* PARAGRAPH 19 MUST BE INDEPENDENTLY INITIALED BY XXXXXX AND XXXXXX
4
ANNEX A
to Schedule No. 001
to Master Lease Agreement No. 60060
Dated as of December 3, 1997
Description of Equipment
Serial Type and Model Number of Cost
Manufacturer Numbers of Equipment Units Per Units
------------ ------- --------------- ---------- ---------
Freightliner #0XX0XXXX0XX000000 FL80 Truck 1 $45,619.28
All invoices, bills of sale, and contracts to purchase the Equipment are
attached hereto.
Dated: December 3, 1997 Dated: December 10, 1997
LESSEE:
ABLE OIL COMPANY SUMMIT LEASING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------- ----------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President Title: Vice President
[SUMMIT LEASING LOGO]
ANNEX E
to Schedule No. 001
to Master Lease Agreement No. 60060
Dated as of December 3, 1997
PURCHASE OPTION
Provided that the Schedule has not been terminated and provided further
that there has not occurred and is then continuing an Event of Default under
the Master Lease or any Schedule thereunder, or any event which with the
giving of notice and/or the passage of time would become an Event of Default,
Lessee shall have the option to purchase all (but not less than all) the
Equipment set forth in the Schedule at the end of the Lease Term upon payment
of all Rent, Additional Rent and other charges then due, plus the sum of One
Dollar ($1.00). If Lessee purchases the Equipment, Lessee shall be
responsible for all applicable sales, use, transfer, ad valorem, excise,
stamp, and other transfer taxes and Local Taxes due upon the transaction.
ANY SALE BY LESSOR HEREUNDER SHALL BE AS-IS, WHERE-IS AND WITHOUT WARRANTY OF
ANY KIND. This option may be exercised only by the Lessee giving the Lessor
written notice of the Lessee's election to exercise this option at least
ninety (90) days before the expiration of the then effective original Lease
Term or Renewal Term, as the case may be. This Purchase Option si not
binding or effective with respect to the Master Lease or Equipment until
executed on behalf of Xxxxxx and Lessee by authorized representatives of
Lessor and Xxxxxx, respectively.
LESSEE:
ABLE OIL COMPANY SUMMIT LEASING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
---------------------------- ----------------------------
Name: Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Pres Title: Vice President
Dated: 12-03-97 Dated: December 10, 1997
