EQUIPMENT LEASE
AGREEMENT, dated the 16th day of December, 1998, by and between XXXXXXX
X'XXXXXX, residing at 00 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxxxxxx, Xxx Xxxx 0000,
hereinafter referred to as "Lessor", and TRADE-WINDS ENVIRONMENTAL RESTORATION,
INC., a domestic corporation, with offices at 000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx,
Xxx Xxxx 00000, hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, the Lessor is the owner of a 1985 42' custom Topaz powerboat named
"DORADO" (Diesel-DL704502) ID #TPP80074A686; and
WHEREAS, the Lessee is desirous of leasing the above described boat and the
equipment attached thereto and more specifically described on Schedule "A"
annexed to this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Lease. Lessee hereby leases from Lessor, and Lessor leases to Lessee,
the personal property described (herein called "equipment").
2. Rent. For the next twenty-four (24) months, the Lessee agrees to pay
rent subject to the schedule set forth below: the sum of TEN THOUSAND
($10,000.00) DOLLARS per month for the first six (6) months commencing December
16, 1998 and the sum of FIVE THOUSAND ($5,000.00) DOLLARS per month for the next
eighteen (18) months commencing June 16, 1999. The Lessee has the option to
extend this lease for an additional one (1) year at a monthly
rental of FIVE THOUSAND ($5,000.00) DOLLARS. In order to so exercise the option,
the Lessee must notify the Lessor by November 1, 2000. The first rent payment is
due when this lease is signed by the Lessor. All rent shall be paid to Lessor at
his address set forth above, or as otherwise directed by Lessor in writing.
3. Security Deposit. The Lessor may, but shall not be obliged to, apply the
security deposit in the sum of THIRTY THOUSAND ($30,000.00) to cure any default
of Lessee hereunder, in which event the Lessee shall promptly restore the
security deposit to the full amount specified above. Upon termination of this
lease and all renewals hereof, if Lessee has fulfilled all the terms and
conditions hereof, the Lessor shall return to the Lessee any remaining balance
of the security deposit actually made by Lessee.
4. Use. The Lessee shall use the equipment in a careful manner and shall
comply with all laws relating to its possession, use or maintenance.
5. Labels. If Lessor supplies the Lessee with labels stating that the
equipment is owned by the Lessor, Lessee shall affix and keep the same upon a
prominent place on each item of equipment.
6. Repairs. The Lessee, at its expense, shall keep the equipment in good
repair and furnish all parts, mechanisms and devices required therefor.
7. Alternations. The Lessee shall not make any
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alterations, additions or improvements to the equipment without the Lessor's
prior written consent. All additions and improvements made to the equipment
shall belong to Lessor.
8. Surrender. Upon the expiration or earlier termination of this lease, the
Lessee, at its expense, shall return the equipment in good repair, ordinary wear
and tear resulting from proper use thereof alone excepted, by delivering it to
such place as Lessor may specify.
9. Loss and Damage. The Lessee shall bear the entire risk of loss, theft,
damage or destruction of the equipment from any cause whatsoever, and no loss,
theft, damage or destruction of the equipment shall relieve the Lessee of the
obligation to pay rent or of any other obligation under this lease.
In the event of damage to any item of equipment, the Lessee shall
immediately place the same in good repair. If Lessor determines that any item of
equipment is lost, stolen, destroyed or damaged beyond repair, the Lessee at the
option of the Lessor shall:
(a) replace the same with like equipment in good repair, or
(b) pay Lessor in cash all of the following: (i) all amounts then owed
by the Lessee to the Lessor under this lease; (ii) an amount equal to ten
percent (10%) of the actual cost of said item, and (iii) the unpaid balance
of the total rent for the
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initial term of this lease attributable to said item. Upon Lessor's receipt
of such payment, the Lessee shall be entitled to whatever interest the
Lessor may have in said item, in its then condition and location, without
warranty express or implied. The parties hereto agree that the sum of the
amounts numbered (ii) and (iii) will equal the fair value of said item on
the date of such loss, theft, damage or destruction and the remaining rent
payment thereunder shall be reduced by such amount as is paid under item
(iii) above prorated over the remaining term hereof.
10. Insurance; Liens. Taxes. The Lessee shall provide and maintain
insurance against loss, theft, damage or destruction of the equipment in an
amount not less than $150,000.00 and a general liability policy which shall
provide for $l,000,000.00 single limit coverage, with any loss payable to
Lessor. Each policy shall expressly provide that said insurance, as to Lessor
and its assigns, shall not be invalidated by any act, omission or neglect of
Lessee. The Lessor may apply the proceeds of said insurance to replace or repair
the equipment and/or to satisfy the Lessee's obligations hereunder. At Lessor's
request, the Lessee shall furnish proof of said insurance.
The Lessee shall keep the equipment free and clear of all levies, liens and
encumbrances. The Lessee shall pay all charges and taxes (local, state and
federal) which may now or hereafter be imposed upon the ownership, leasing,
rental, sale, purchase,
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possession or use of the equipment, excluding however, all taxes on or measured
by the Lessor's income.
If the Lessee fails to procure or maintain said insurance or to pay said
charges and taxes, the Lessor shall have the right but shall not be obligated,
to effect such insurance, or pay said charges and taxes. In that event, the
Lessee shall repay to the Lessor the cost thereof with the next payment of rent.
11. Indemnity. The Lessee shall indemnify the Lessor against, and hold the
Lessor harmless from, any and all claims, actions, proceedings, expenses,
damages and liabilities, including attorney's fee, arising in connection with
the equipment, including, without limitation, its manufacture, selection,
purchase, delivery, possession, use, operation or return and the recovery of
claims under insurance policies thereon.
12. Assignment. Without Lessor's prior written consent, the Lessee shall
not assign, transfer, pledge, hypothecate or otherwise dispose of this lease or
any interest therein.
The Lessor may assign this lease and/or mortgage the equipment, in whole or
in part, without notice to the Lessee; and its assignee or mortgagee may
reassign this lease and/or such mortgager without notice to the Lessee. Each
such assignee and/or mortgagee shall have all the rights but none of the
obligations of the Lessor under this lease. The Lessee shall recognize each such
assignment and/or mortgage and shall not assert against the
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assignee and/or mortgagee any defense, counterclaim, or set-off that the Lessee
may have against the Lessor. Subject to the foregoing, this lease insures to the
benefit of and is binding upon the heirs, legatees, personal representatives,
survivors and assigns of the parties hereto.
13. Charter or Other uses of Equipment. The Lessee is hereby authorized to
charter the subject equipment of this lease and to retain all of the proceeds of
said charter or charters so long as (i) Lessee is in compliance with all of the
terms and conditions of this lease; and (ii) that liability insurance with a
minimum coverage of $1,000,000.00 is purchased naming Lessor.
14. Late Charges and Interest. Should the Lessee fail to pay any part of
the rent herein reserved or any other sum required to be paid to the Lessor by
the Lessee, within ten (10) days after the due date thereof, the Lessee shall
pay unto the Lessor a late charge of five cents ($.05) for each One Dollar
($1.00) of said monthly rent or other sum which shall be delinquent.
15. Default. If the Lessee fails to pay any rent or other amount herein
provided within ten (10) days after the same is due and payable, or if the
Lessee fails to perform any other provision hereof within ten (10) days after
the Lessor shall have demanded in writing performance thereof, or if any
proceeding in bankruptcy, receivership or insolvency shall be commenced by or
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against the Lessee or its property, or if the Lessee makes any assignment for
the benefit of its creditors, the Lessor shall have the right, but shall not be
obligated, to exercise any one or more of the following remedies: (a) to xxx for
and recover all rents and other amounts then due or thereafter accruing under
this lease; (b) to take possession of any or all of the equipment, wherever it
may be located, without demand or notice, without any court order or other
process of law, and without incurring any liability to the Lessee, for any
damages occasioned by such taking of possession; (c) to sell any or all of the
equipment at public or private sale for cash or on credit and to recover from
the Lessee all costs of taking possession, storing, repairing and selling the
equipment, an amount equal to ten percent (10%) of the actual cost to the lessor
of the equipment sold, and the unpaid balance of the total rent for the initial
term of this lease attributable to the equipment sold, less the net proceeds of
such sale; (d) to terminate this lease as to any or all items of equipment; (e)
in the event the Lessor elects to terminate this lease as to any or all items of
equipment, to recover from the Lessee as to each item subject to said
termination the worth at the time of such termination of the excess, if any, of
the amount of rent reserved herein for said item for the balance of the total
hereof over the then reasonable rental value of said item for the same period of
time; (f) to pursue any other remedy now or hereafter existing at
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law or in equity.
Notwithstanding any such action that the Lessor may take, including taking
possession of any or all of the equipment, the lessee shall remain liable for
the full performance of all its obligations hereunder, provided, however, that
if the lessor in writing terminates this lease, as to any item of equipment, the
Lessee shall not be liable for rent in respect of such item accruing after the
date of such termination.
In addition to the foregoing, the Lessee shall pay Lessor all costs and
expenses, including reasonable attorneys' fees, incurred by the Lessor in
exercising any of its rights or remedies hereunder.
16. Notices. Any written notice or demand under this agreement may be given
to a party by mailing it to the party at the address set forth above, or at such
address as the party may provide in writing from time to time. Notice of demand
so mailed shall be effective when deposited in the United States mail, duly
addressed and with postage prepaid.
17. Multiple Lessees. If more than one Lessee is named in this lease, the
liability of each shall be joint and several.
18. Choice of Law. The lease shall be governed by and construed in
accordance with the laws of the State of New York.
19. Ownership. The equipment is, and shall at all times remain, the
property of the Lessor; and the Lessee shall have no
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right, title or interest therein or thereto except as expressly set forth in
this lease.
20. Entire Agreement; Waiver. This instrument constitutes the entire
agreement between the Lessor and the Lessee. Waiver by the Lessor or any
provision hereof in one instance shall not constitute a waiver as to any other
instance.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the day and year first above written.
/S/ XXXXXXX X'XXXXXX
-----------------------------------
XXXXXXX X'XXXXXX
TRADE-WINDS ENVIRONMENTAL
RESTORATION
By: /s/ Xxxx X. Xxxxxxxxxx
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