Meridian Leasing
MASTER LEASE AGREEMENT
FINANCE LEASE, ARTICLE 2A UCC
MERIDIAN LEASING INC.
Master Lease Agreement No. 01678
THIS MASTER LEASE AGREEMENT (the "Lease"), dated as of the 29th day of
November, 1995, is executed by and between MERIDIAN LEASING INC., a
Pennsylvania corporation, with a place of business located at Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, XX 00000 (together with its successors and assigns,
if any, the "Lessor") and XXXXXXXX'X INC. OF NEW YORK, a New York
corporation, with its mailing address and chief place of business at 000
X. 00xx Xxxxxx Xxxxx 0000 Xxx Xxxx, XX 00000, (the "Lessee").
The Parties hereto, for good and valuable consideration and intending to
be legally bound, hereby agree as follows:
1. MASTER LEASE WITH SCHEDULES:
(a) Subject to the terms and conditions set forth below, Lessor
agrees to lease to Lessee and Lessee agrees to lease from Lessor such unit
or units of equipment (the "Equipment" and individually sometimes "Item"
or "Item of Equipment") described in any Master Lease Schedule (a
"Schedule") now or hereafter from time to time executed by the parties
pursuant hereto, and any and all such Schedules are deemed a part hereof.
Each Schedule shall incorporate this Lease by reference. Capitalized terms
not otherwise defined herein will have the meaning provided for in any
Schedules.
(b) Lessor has no obligation to purchase Equipment from the
manufacturer or supplier thereof ("Supplier") or to lease the same to
Lessee under any Schedule unless each of the following is satisfied and
delivered to Lessor prior to the Commencement Date with respect to the
Schedule in form and substance satisfactory to Lessor: (i) a Schedule
relating to the Equipment then being leased hereunder reflecting Lessor's
Cost, and a term and rate satisfactory to Lessor, (ii) unless Lessor has
delivered its purchase order for the purchase of such Equipment, a
Purchase Order Assignment and Consent in form satisfactory to Lessor,
(iii) a Closing Certificate in form satisfactory to Lessor, (iv) a
Certificate of Insurance which complies with the requirements of Section 7
and the Schedule, and (v) a properly executed Certificate of Acceptance in
form satisfactory to Lessor covering each Item of Equipment set forth in
the Schedule and the execution by Lessee of any Certificate of Acceptance
will (i) confirm that each Item of Equipment described thereon has been
delivered to and irrevocably accepted by Lessee for lease hereunder, and
(ii) constitute Lessee's acknowledgment that Lessee has received a copy of
and has approved the contract under which Lessor acquired the Equipment.
Lessee hereby waives as between Lessor and Lessee any right to revoke
acceptance of the Equipment under this Lease once made and evidenced by
its Certificate of Acceptance. Lessee shall also deliver such other
documents as Lessor may reasonably request.
2. TERM:
The Lease of and rent for Equipment leased under any Schedule will
commence on the day specified in the Schedule as the Commencement Date,
and will continue for the period specified as the "term" in the said
Schedule as the same may be extended pursuant to the terms hereof.
3. RENT:
Payment of rent will be made during the term of the Lease on the due
dates and in the amount set forth in the Schedule and will not be prorated
for any cause or reason except as herein specifically provided. If one or
more advance payments of rent are required, the advance rent will be due
and paid in the amount specified in the Schedule upon acceptance by Lessor
of each Schedule providing for such rent. Lessor will apply said advance
rent toward the first basic rent payment and, provided no default is then
existent hereunder, the balance, if any, of the advance rent will be
applied to the final rent payment. Subsequent rent payments will be due
periodically thereafter as specified in the Schedule. In no event will any
advance rent or any other rent payment be refunded to Lessee, it being the
intention of the parties hereto that the rents and other amounts payable
by the Lessee hereunder will continue to be payable in all events unless
the obligation to pay the same will be terminated pursuant to the terms
hereof. All rent will be paid to the Lessor in immediately available funds
without notice or demand on the due dates with respect thereto at Lessor's
address set forth above or as otherwise directed by the Lessor in writing.
In order to secure all obligations of Lessee hereunder, Lessee hereby
grants to Lessor a security interest in the amount of any advance rent not
applied to the first basic rent payment.
4. USE, OPERATION AND INDEMNIFICATION:
(a) Lessee will not assign, sublet, mortgage, hypothecate or alter
any of the Equipment leased hereunder or any interest in the Lease, nor
will Lessee remove any of the Equipment from the location specified in the
Schedule without (except in the ordinary course of its business for use or
maintenance) the prior written consent of Lessor, and any attempt to so
assign, sublet, mortgage, hypothecate, alter or remove will constitute a
default hereunder and such assignment, sublease, mortgage, or
hypothecation will be void and without effect. Lessee will keep all
Equipment leased hereunder free and clear from all claims, liens and
encumbrances whatsoever.
(b) Lessee agrees to indemnify, save and keep harmless Lessor, its
agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including
legal expenses of whatsoever kind and nature, in contract or tort,
howsoever arising from any cause whatsoever including but not limited to
Lessor's strict liability in tort, or otherwise arising out of (i) the
selection, manufacture, purchase, financing, acceptance or rejection of
Equipment, the ownership of Equipment during the term of this Lease, and
the delivery, lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent and other
defects, whether or not discoverable by Lessor or Lessee and any claim for
patent, trademark or copyright infringement) or (ii) the condition of
Equipment sold or disposed of after use by Lessee, any sublessee or
employee of Lessee. Lessee hereby represents and warrants that each Item
of Equipment acquired and leased hereunder is new and not previously used
unless specifically disclosed on the Schedule and Lessee agrees to
indemnify, save and keep harmless Lessor against any loss howsoever
arising directly or indirectly from any subsequent determination that the
Supplier has sold Items of Equipment for lease hereunder which have been
previously used. Lessee will, upon request, at its own expense, defend any
and all actions based on, or arising out of, any of the foregoing and this
indemnification will survive termination of the Lease.
(c) Lessee will not without the prior written consent of Lessor (i)
make any material alterations of the Equipment or (ii) affix or install
any accessory, equipment or device on any Equipment leased hereunder if
such addition will impair the originally intended function or use of such
Equipment. All additions, repairs, parts, supplies, accessories, equipment
and devices furnished, attached or fixed to any Equipment will thereupon
without further act or instrument become the property of Lessor (except
such as may be removed without in any way affecting or impairing the
originally intended function, condition or use of such Item). Further,
Lessee will not, without the prior written consent of Lessor and subject
to such conditions as Lessor may impose for its protection, affix or
install any Equipment leased hereunder to or in any other personal
property or in real property.
5. SERVICE AND MAINTENANCE:
(a) Lessee will, at its sole expense, at all tines maintain all Equipment
consistent with recommendations of the Supplier and as required by the
conditions of any warranty in order to maintain same current and effective
and in good operating order, repair, condition and appearance and keep all
Equipment protected from the elements, except during use in the normally
contemplated manner. Lessee will, at its own expense, provide all
maintenance and service and make all repairs and replacements reasonably
necessary for such purposes. If any parts of the Equipment are worn out,
lost or are otherwise rendered unfit for use, Lessee will, at its own
expense, replace such parts promptly by replacement parts of at least
equal value and utility with title thereto vesting in Lessor free and
clear of all liens and encumbrances. Lessee will, at its expense, affix in
a prominent position on each Item of Equipment plates, tags or other
identifying labels showing ownership of the Equipment by Lessor. Lessor
will, at all reasonable times, have the right to inspect the Equipment and
Lessee's maintenance records related thereto.
(b) Lessee will, at its sole expense, make all alterations and
modifications with respect to the Equipment that may at any time during
the term of this Lease or any Schedule hereunder by required to comply
with any applicable law or any governmental rule or regulation.
6. RETURN OF EQUIPMENT:
(a) Unless otherwise provided in the Schedule, upon termination of the
Lease or of any Schedule upon default or by expiration of the term hereof
or thereof or upon termination for any other cause, Lessee will, at its
sole cost and expense, promptly return the Equipment to Lessor at any
address specified by Lessor in the same condition as received, reasonable
wear and tear and normal depreciation from proper use and maintenance
alone excepted, capable of performing its originally intended use at its
originally rated capacity. Lessee will be responsible for all costs and
expenses for packing, shipping and insuring the Equipment until delivered
to the location designated by Lessor. Lessee will also provide storage
without charge to Lessor, if requested' for ninety (90) days after the
termination of the Lease. At least ninety (90) days prior to the last day
of the term, Lessee shall deliver to Lessor a report of an independent
expert advising Lessor on the condition of the Equipment and its
compliance with the terms hereof.
(b) In addition to Lessor's other rights and remedies hereunder, if the
Equipment is not returned on the last day of the term or repairs are
necessary to place the Equipment in the condition required hereby, Lessee
shall continue to pay for the period of delay and acceptance of such rents
by Lessor will not constitute a renewal of the Lease or a waiver of the
Lessor's right to a prompt return.
7. INSURANCE:
Lessee hereby assumes all risks of damage, loss, theft, or destruction,
partial or complete, with respect to each Item of Equipment during the
term of the Lease and during any storage period until Lessee has returned
or disposed of the Equipment as provided for herein. Lessee will, at its
own expense, keep each Item of Equipment insured against all risks with
extended coverage and insurance companies satisfactory to Lessor, with
Lessor named as loss payee for an amount at least equal to such amount as
designated in writing from time to time by Lessor and, failing any such
designation, to an amount at least equal to the greater of (1) the fair
market value of the Equipment, or (ii) the then current Stipulated Loss
Value of the Equipment determined by reference to the related Schedule.
Lessee agrees to obtain and maintain at its expense with insurance
companies of recognized standing general public liability insurance for
the protection of Lessor and Lessee, as their interests may appear, in an
amount at all times satisfactory to Lessor and otherwise as specified in
the related Schedule against claims for bodily injury, death or property
damage arising out of the use, ownership, possession, operation or
condition of the Equipment. Each insurer will agree, by endorsement upon
the policy or policies issued by it, or by independent instruments
furnished to Lessor, that Lessor will have the power to file claims
against the insurer under said policy, that it will give Lessor thirty
(30) days written notice before the policy or policies in question will be
altered, expired or canceled last day and that no act or default of any
person other than Lessor, its agents, or those claiming under Lessor, will
affect Lessor's rights to recover under such policy or policies in case of
loss. Lessee will deliver to Lessor the policies or evidence of insurance
and renewal thereof satisfactory to Lessor prior to the Commencement Date
and thirty (30) days prior to each expiration date thereof for each Item
of Equipment. The failure of Lessee to secure or maintain such insurance
will constitute a default under this Lease. In the event of such breach,
Lessor may, but will not be obligated to, obtain such insurance. In the
event that Lessor obtains such insurance, an amount equal to the cost of
such insurance will be deemed supplemental rent to be paid forthwith by
Lessee.
8. LOSS OR DAMAGE:
(a) Lessee hereby assumes and is solely responsible for the entire risk
of use, operation and/or loss of the Equipment and for each and every
accident or hazard resulting therefrom and all losses and damages
associated therewith howsoever arising.
(b) In the event of the total loss, destruction, theft or damage beyond
repair (determined without reference to the remaining term with respect
thereto) of the Equipment or any Item (a "Casualty Occurrence"), Lessee
will pay to Lessor on the next due date for rent following the Casualty
Occurrence or on the last day of the term with respect to such Equipment
an amount equal to the rent then due plus an amount equal to the
Stipulated Loss Value of such Equipment as of such due date. Upon payment
of such amounts, and provided no default exists hereunder, Lessee will be
entitled to recover possession of such Item and title thereto will vest in
Lessee free and clear of the right and interest of Lessor.
(c) In the event of damage to any Item of Equipment which does not amount
to a Casualty Occurrence, Lessee will give prompt notice of such damage to
Lessor and, at Lessee's sole cost and expense, Lessee will promptly repair
such Item, restoring it to its previous condition and the condition
assuming Lessee had met all of its obligations required for maintenance
hereunder. Provided Lessee is not in breach or default of this Lease, any
proceeds of insurance received by Lessor with respect to any such loss
will be paid over by Lessor to Lessee to the extent necessary to reimburse
Lessee for costs incurred and paid by Lessee in repairing such damaged
Equipment, but only upon evidence satisfactory to Lessor that such repairs
have been accomplished.
9. TRANSFER OF WARRANTIES:
Notwithstanding anything contained herein to the contrary and to the
extent permitted by law and contract, Lessor will pass through without
representation to Lessee the benefit of all warranties, if any, of the
Supplier of the Equipment and, so long as there exists no default
hereunder, Lessee will have the right to, and will, directly avail itself
of all warranties made by the Supplier with respect to the Equipment.
Lessee will give Lessor notice of any claim made by Lessee against the
Supplier of the Equipment and any cash settlement of any such claim will
be payable solely to Lessor.
10. TAX TREATMENT AND INDEMNIFICATIONS:
(a) It is acknowledged and agreed by the parties that they are entering
into this Lease with the assumption that Lessor and the consolidated group
of which Lessor is a member (all references to Lessor in this Section
include such consolidated group) will be treated for federal income tax
purposes (and to the extent allowable, for state and local tax purposes)
as the owner of all Equipment leased hereunder and will have a federal tax
rate of at least 35% during the term of the Lease.
(b) Unless otherwise provided for in a particular Schedule, the Lessee
acknowledges and agrees that each Schedule has been executed by Lessor
based upon the following representations and warranties of Lessee: (i)
each Item of Equipment has been placed in service on the Commencement
Date; (ii) Lessor will not under the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder (the "Code"), be
required to include in its gross income, for federal income tax purposes,
any amount with respect to any improvement, modification or addition made
by Lessee to any Item of Equipment; (iii) Lessor shall be entitled to
accelerated cost recovery deductions ("Recovery Deductions") for Lessor's
Cost of each Item of Equipment over the number of years indicated on the
related Schedule by using the 200% declining balance method permitted
under Code Section 168 and the half year convention, unless otherwise
required by operation of Code Section 168(d)(3)(A); (iv) no Item of
Equipment is limited use property within the meaning of Rev. Proc. 76-30;
and (v) for federal income tax purposes, all amounts included in the gross
income of the Lessor with respect to each Item of Equipment will be
treated as derived from or allocable to sources within the United States.
(c) If by reason of (1) the inaccuracy in law or in fact of any of the
assumptions or representations or warranties set forth in Subsections (a)
or (b) of this Section, (2) the inaccuracy of any statement or any letter
or document furnished to Lessor by or on behalf of Lessee in connection
with the transactions contemplated under the Lease, or (3) the act,
failure to act or omission of or by Lessee of (4) any change in the Code
occurring prior to the Commencement Date on any Schedule, Lessor will (i)
lose, will not have the right to claim or if there will be disallowed with
respect to Lessor all or any portion of the Recovery Deduction as to any
Item of Equipment on such Schedule, (ii) be required to include in its
gross income any alteration, modifications or addition to, any Item, other
than an alteration, modification or addition which is permitted without
adverse tax consequences to Lessor under Rev. Procs. 75-21, 76-30 or 79-48
(an "Improvement Loss"), or (iii) suffer a decrease in Lessor's net return
over the then remaining portion of the term of the Lease (any such
occurrence referred to hereinafter as "Loss") for such Schedule, then at
Lessor's option either (X) the rent on such Schedule will, on and after
the next succeeding date for the payment thereof upon notice to the Lessee
by the Lessor that a Loss has occurred, and describing the amount as to
which Lessor intends to claim indemnification and the reason for such
adjustment in reasonable detail, be increased by such amount, which will
cause Lessor's net return over the then remaining portion of the term of
the Lease (taking into account the tax effect from deferred utilization of
tax basis resulting from changes in the method of calculating Recovery
Deductions) to equal the net return that would have been available if such
Loss had not occurred, or (Y) in lieu of a rent increase, the Lessee shall
pay to Lessor on such next succeeding date for the payment of rent such
sum as will cause Lessor's net return over the term of the Lease in
respect of the Equipment to equal the net return that would have been
available if such Loss had not occurred. If such Loss occurs after the
expiration or termination of the Lease, Lessor will notify Lessee of such
Loss and Lessee will, within sixty (60) days after such notice, pay to
Lessor such sum as required by the preceding clause (Y). Lessee will
forthwith pay on demand to Lessor an amount on an after-tax basis which
will be equal to the amount of any interest and/or penalties which may be
assessed by the United States or any state against Lessor as a result of
the Loss.
(d) For purposes of this Section a Loss will occur upon the earliest of
(1) the happening of any event which in Lessor's judgment reasonably may
cause such Lass, (2) the payment by Lessor to the Internal Revenue Service
of the tax increase, if any, resulting from such Loss, or (3) the
adjustment of the tax return of Lessor to reflect such Loss. Lessor will
be responsible for, and will not be entitled to a payment under this
Section on account of, any Loss due solely to one or more of the following
events: (i) the failure of Lessor to have sufficient taxable income to
benefit from the Recovery Deduction; (ii) any disposition of the Equipment
by Lessor prior to any default which has occurred and is continuing under
the Lease; or (iii) the failure of Lessor to properly claim the Recovery
Deduction.
(e) The indemnities and assumptions of liability provided for herein and
all Lessor's rights and privileges herein will continue in full force and
effect notwithstanding the expiration or termination of the Lease.
11. DISCLAIMER:
Lessee acknowledges that it alone selects the Equipment and the
Supplier(s) thereof. LESSEE UNDERSTANDS AND AGREES THAT LESSOR MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT
TO THE EQUIPMENT. IT IS UNDERSTOOD AND AGREED THAT NO WARRANTY IS TO BE
IMPLIED WITH RESPECT TO THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY, THE FITNESS OF THE EQUIPMENT FOR A PARTICULAR PURPOSE, OR
WITH RESPECT TO PATENT, TRADEMARK, COPYRIGHT OR OTHER INFRINGEMENT OR THE
LIKE. NOTHING HEREIN CONTAINED WILL BE CONSTRUED AS DEPRIVING THE LESSEE
OF WHATEVER RIGHTS, IF ANY, LESSEE MAY HAVE AGAINST THE SUPPLIER AND/OR
MANUFACTURER OF THE EQUIPMENT AND LESSEE AGREES TO LOOK SOLELY TO SUCH
THIRD PARTIES WITH RESPECT TO ANY AND ALL CLAIMS CONCERNING THE EQUIPMENT.
12. NO ABATEMENT:
This Lease is a net Lease, intended by the parties to constitute a
"Finance Lease" under Article 2A of the Uniform Commercial Code as in
effect in Pennsylvania (the "UCC") and Lessee waives any right to suspend
the performance of all or any of its obligations hereunder. This is not a
consumer lease and the promises of Lessee hereunder and under each
Schedule are irrevocable upon acceptance of the Equipment under each
Schedule. Lessor and Lessee each hereby waive the provisions of the UCC,
Section 2A 401 through 403 inclusive, and it is the intent of the parties
that under no circumstances is the Lease or any Schedule to be subject to
repudiation by either party. Lessee's obligation to pay rent and all other
amounts due hereunder is absolute, unconditional and not subject to
cancellation. Lessee agrees to pay rent and all other amounts due
hereunder when due without abatement or reduction, irrespective of any
claims, demands, set-offs, actions, suits or proceedings that it may have
or assert against Lessor or any Supplier or manufacturer of Equipment or
any part thereof. Lessor will have no liability to Lessee in the event
that any Supplier, manufacturer or one or more others fails to perform any
obligations at any time due to Lessor, Lessee, persons in privity with
Lessor or Lessee and any other persons, or any one or more of the
foregoing.
13. DEFAULT; REMEDIES:
(a) Each of the following will constitute a default hereunder: (a) Lessee
fails to pay rent or any other amount when due under any Schedule and such
failure will continue for five (5) days from the due date thereof; (b)
Lessee breaches any of the other terms or covenants hereof (including
without limitation any Schedule) or commits any other act of default
specified in this Lease; (c) any representation or warranty of Lessee
contained herein or in any other document or instrument delivered in
connection herewith or made from time to time hereafter is false or
misleading when made; (d) Lessee or any Guarantor become insolvent or
ceases to do business as a going concern; (e) the Equipment or any Item is
abused, illegally used, or misused; (f) Lessee or any Guarantor makes any
assignment for the benefit of creditors, receivership or the like is filed
with respect to Lessee, or any substantial part of Lessee's property is
attached or a receiver, trustee or liquidator is appointed for Lessee or
any substantial part of Lessee's property or whenever Lessor may deem
itself insecure hereunder; (g) Lessee or any Guarantor fails to make any
payment on indebtedness for borrowed money when due, or to make any
payment on a lease or installment sale obligation when due, in each case
when any applicable grace period for such obligation has expired and the
lender, lessor or creditor has commenced to exercise any remedy, but only
if the indebtedness or other obligations for which payment is sought is an
amount equal to or in excess of $100,000; (h) final judgment for the
payment of money aggregating in excess of $100,000 will be outstanding
against Lessee for more than sixty (60) days from the date of entry and
will not have been discharged in full or stayed or fully bonded; or (i)
Lessee or any Guarantor shall suffer any material adverse change in their
financial position which may reasonably cause Lessor to feel the payment
of rent hereunder may be impaired. On the occasion of any such default
hereunder, Lessor, at its option, may do any one or more of the following:
(1) declare this Lease and any or all Schedules in default upon notice to
Lessee, whereupon the entire amount of rent and all other amounts
remaining to be paid over the balance of the term of all Equipment then
leased hereunder, computed from the date of Lessee's default, will become
immediately due and payable and be accelerated; (2) proceed by appropriate
court action or actions at law or in equity or in bankruptcy to enforce
performance by Lessee of the covenants and terms of this Lease and/or to
recover damages for the breach thereof; (3) terminate this Lease and any
or all Schedules upon notice to Lessee; (4) whether or not this Lease or
any Schedules be so terminated, upon demand by Lessor, Lessee will return
the Equipment consistent with its obligation in Section 6 hereof. Lessor
may without notice to Lessee repossess the Equipment wherever found, with
or without legal process, and for this purpose Lessor and/or its agents
may enter upon any premises of or under control or jurisdiction of Lessee
or any agent of Lessee without liability for suit, action or other
proceedings by Lessee (any damages occasioned by such repossession being
hereby expressly waived by Lessee except for the damages occasioned by
gross negligence or willful misconduct, and remove the Equipment
therefrom.
(b) With respect to any Equipment returned to Lessor, or repossessed by
Lessor pursuant to provision (4) above, Lessor may hold or use such
Equipment for any purpose whatsoever or either sell same at a private or
public sale, cash or credit, or re-lease same for such term and upon such
rental as will be solely determined by Lessor. In the event of the sale or
re-leasing by Lessor of any such Equipment, Lessee will be liable for, and
Lessor may forthwith recover from Lessee as liquidated damages for breach
of this Lease, and not as a penalty, an amount equal to (X) the entire
amount of rent which would have accrued for the balance of the term for
such Equipment computed from the date of Lessee's default, plus (Y) an
amount determined by multiplying Lessor's Cost by the percentage indicated
for the Stipulated Loss Values for the final rent period during the term
hereof, less (Z) the proceeds of any sale or re-leasing of such Equipment,
after first deducting therefrom all costs and expenses of repossession,
storage, repairs, reconditioning, sale, re-leasing, attorneys' fees and
collection fees with respect to such Equipment provided, however, in no
event shall the damages calculated hereunder be less than an amount equal
to 10% of Lessor's Cost of the Equipment. If Lessee fails to return any
Equipment to Lessor or Lessor is unable, for any reason, to effect
repossession of any Equipment, then with respect to such Equipment, Lessee
will be liable for, and Lessor may forthwith recover from Lessee as
liquidated damages for breach of this Lease, and not as a penalty, an
amount equal to the sum of the amounts specified in items (X) and (Y)
above for such Equipment provided, however, in no event shall the damages
calculated hereunder be less than an amount equal to 10% of Lessor's Cost
of the Equipment. Whether or not any Equipment is returned to, or
repossessed by Lessor, as aforesaid, Lessee will also be liable for, and
Lessor may forthwith recover from Lessee, all unpaid rent and other unpaid
sums that accrued prior to the date of Lessee's default. In addition to
the foregoing, Lessor may also recover from Lessee all costs and expenses,
including without limitation attorneys' fees and fees of collection
agencies, incurred by Lessor in exercising any of its rights or remedies
hereunder. Since pursuant to the foregoing Lessor may receive or recover
payment of the amounts specified in paragraph (1) and items (X) and (Y)
above earlier than Lessor would otherwise be entitled to receive or
recover same but for Lessee's default, such amounts will be discounted to
their then present value at the rate of six percent (6%) per annum, and
there will be added to such amounts, after such discount, interest at the
rate specified in Section 18 hereof from the date of Lessee's default up
to the date of the payment of such amounts to Lessor.
(c) Lessee hereby AUTHORIZES THE PROTHONOTARY OR CLERK OR ANY ATTORNEY OF
ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE, UPON OR AFTER THE
OCCURRENCE OF ANY DEFAULT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
LESSEE AT ANY TIME FOR ALL AMOUNTS DUE HEREUNDER INCLUDING ACCELERATED
RENTALS AS PROVIDED FOR HEREIN INCLUDING THE AMOUNT DUE UPON FAILURE TO
RETURN THE EQUIPMENT AND ALL OTHER DAMAGES OR OTHER AMOUNTS TO WHICH
LESSOR MAY BE ENTITLED UPON DEFAULT, WITH OR WITHOUT DECLARATION, WITH
COSTS OF SUIT, RELEASE OF ERRORS, WITHOUT STAY OF EXECUTION AND WITH 15%
ADDED FOR LESSOR'S ATTORNEYS' FEES. Lessee waives and releases all relief
from all appraisement rights on any property levied upon, voluntarily
condemns the same, authorizes the Prothonotary, Clerk or attorney to enter
upon the Writ of Execution such voluntary condemnation and, to the extent
permitted by law, waives all rights or appeal, inquisition, stay of
execution and exemption under any law now or later in force. A copy of
this Lease, verified by Lessor, may be filed in such suit in lieu of the
original Lease. The right to confess judgment will not be exhausted by any
single or subsequent exercise, but Lessor will be entitled to confess
judgment successively, by any exercise thereof, whether or not such
exercise will be held by any court to be invalid, voidable or void, but
the power will continue undiminished and may be exercised from time to
time, and contemporaneously in more than one jurisdiction, as often as
Lessor will elect until all obligations of Lessee hereunder will have been
satisfied in full. Lessee consents to the jurisdiction of the courts of
Pennsylvania and the Federal District Court for the Eastern District of
Pennsylvania in any action or proceeding which may be brought under or in
connection with this Lease or any obligation with respect thereto or to
enforce any agreement contained herein or in any such obligation, and in
the event such action or proceeding will be brought against it, Lessee
agrees not to raise any objection to such jurisdiction or the laying of
venue in Berks County, Pennsylvania. Lessee agrees that service of process
in any such action or proceeding may be duly effected upon him or her by
service in accordance with the provisions of the Uniform Interstate and
International Procedure Act.
14. CUMULATIVE REMEDIES:
The remedies herein provided in favor of Lessor are not exclusive, but
will be cumulative and will be in addition to all other remedies in
Lessor's favor existing in law, in equity or in bankruptcy. The receipt
and acceptance by Lessor of any rent or other payment after occurrence of
a default will not be deemed to be a waiver of such default on the part of
Lessor. In the event that any court or competent jurisdiction determines
that any provision of this Lease is invalid or unenforceable in whole or
in part, such determination will not prohibit Lessor from establishing its
damages sustained as a result of any breach of this Lease in any action or
proceeding in which Lessor seeks to recover such damages. Any repossession
or resale of any Equipment will not bar an action for damages for breach
of this Lease, as hereinbefore provided, and the bringing of an action or
the entry of judgment against Lessee will not bar Lessor's right to
repossess any or all Equipment.
15. ASSIGNMENTS:
Lessor may without the consent of Lessee sell, assign or otherwise
transfer or grant a security interest in, its right, title and interest in
the Equipment, this Lease or any Schedule and the rent due or to become
due thereunder and when so sold, assigned, transferred or encumbered this
Lease will be free of any counterclaim. set-off, defense or cross-claim by
Lessee as against such assignee whenever arising, before or after such
sale, assignment, transfer or security grant. Upon notice to Lessee of
such sale, assignment, transfer or security interest, Lessee agrees to
direct all payments hereunder, if requested, to Lessor's assignee.
16. PAYMENT OF TAXES:
Lessee agrees to pay promptly when due, and to indemnify and hold Lessor
harmless from, all license, title and registration fees whatsoever, all
levies, imposts, duties, charges or withholdings whatsoever, and all
sales, use, personal property, franchise (howsoever calculated), and other
taxes whatsoever together with any penalties, fines or interest thereon)
whether assessed levied or imposed by any governmental or taxing authority
against or upon Lessor or otherwise, with respect to any Equipment or the
purchase, acquisition, ownership, delivery, leasing, possession, use,
operation, control, return, or other disposition thereof, or the rents,
receipts or earnings arising therefrom, or with respect to this Lease,
excluding, however (i) any such taxes or charges to the extent they are
included in Lessor's Cost, (ii) any federal taxes levied on Lessor's net
income, or (iii) state or local taxes levied on Lessor's net income, as
net income . determined under, and at rates which do not exceed those
originally imposed by the jurisdiction in which the Equipment is located
as specified in the related Schedule. In the event any such fees, levies,
imposts, duties, charges or taxes are paid by Lessor, or if Lessor be
required to collect or pay any thereof, Lessee will reimburse Lessor
therefor (plus any penalties, fines or interest thereon) promptly upon
demand. Until Lessor notifies Lessee to the contrary, Lessee will promptly
before any penalty attaches, prepare and file in Lessor's name or on
Lessor's behalf all personal property tax returns covering the Equipment
and Lessee will pay the personal property taxes levied or assessed thereon
directly to the levying authority. If Lessor timely notifies Lessee that
Lessor will prepare and/or file any such return, Lessee will, promptly
upon being invoiced by Lessor, reimburse Lessor for the full amount of
such personal property taxes so paid by Lessor. All of the obligations of
Lessee under this Section with respect to any fees, levies, imposts,
duties, charges, withholdings and taxes (plus any penalties, fines or
interest thereon and, in the event that any of the foregoing are deemed to
be income to Lessor, any attendant income tax) assessed, levied, imposed
or accrued prior to the expiration or other termination of this Lease will
continue in full force and effect notwithstanding such expiration or other
termination. Lessee will either provide Lessor a copy of all property and
other tax returns filed hereunder by Lessee in Lessor's name or on
Lessor's behalf or provide to Lessor an affidavit or a responsible
corporate officer certifying that the property taxes so identified therein
have been reported and are current.
17. LATE CHARGE:
If any rent or any other amount due hereunder from Lessee other than the
amounts due under this Section 17 is not paid within five (5) days after
the due date, Lessee agrees to pay a late charge equal to five percent
(5%) of such delinquent payment and such late charge shall be due and
payable within ten days after the date of notice of such late charge from
Lessor to Lessee. All amounts past due hereunder including any late charge
shall accrue interest at a rate equal to eighteen percent (18%) on the
amount of such delinquent rent or other payment, but not exceeding the
maximum permissible amount under applicable law. The failure of Lessor to
collect any late charge will not constitute a waiver of Lessor's right
with respect thereto.
18. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS:
In case of failure of Lessee to comply with any provision of the Lease or
any Schedule, Lessor will have the right, but will not be obligated, to
effect such compliance in whole or in part, and all money spent and
expenses incurred by Lessor will be paid by Lessee forthwith and will bear
interest at the daily equivalent of eighteen percent (18%) per annum from
the date said obligation was due. Lessor's action in effecting such
compliance will not be a waiver of Lessee's default. All such money spent
by and expenses of Lessor and any other obligation assumed or incurred by
Lessor in effecting such compliance will constitute additional rent
payable to Lessor with the next rent payment.
19. SEVERABILITY:
Any provision herein contained which may be invalid under applicable law
or any governmental rule or regulation, will be deemed omitted, modified
or altered to conform thereto.
20. NOTICES:
All notices required or permitted to be given hereunder will be in
writing and will be deemed given if sent by registered or certified mail
to the address of Lessor or Lessee stated herein or in any Schedule or to
such other place as either party may in writing direct pursuant to this
Section.
21. LEGAL CONSTRUCTION:
The validity, construction and performance of the Lease and any Schedule
will in all respects be governed by the laws of the Commonwealth of
Pennsylvania.
22. FINANCIAL INFORMATION:
Lessee agrees to provide Lessor with: (i) a balance sheet and statement
of income of Lessee, or any consolidated group of which Lessee is a
member, prepared in accordance with generally accepted accounting
principles and certified by independent certified public accountants or
other financial statements acceptable to Lessor within ninety (90) days
after the close of each fiscal year of Lessee occurring after the date of
this Lease, and (ii) from time to time such information relating to the
Equipment or the financial condition of the Lessee as Lessor may
reasonably request.
23. ADDITIONAL DOCUMENTS
Lessee agrees to execute or obtain and deliver to Lessor at Lessor's
request such additional documents as Lessor may reasonably deem necessary
or appropriate to protect Lessor's interest in the Equipment and in this
Lease including, without limitation, financing statements. Lessee will
pay, or reimburse Lessor on demand, for any filing fees or expenses
incurred by Lessor in connection with any such additional documents.
Lessee hereby designates Lessor its attorney-in-fact and authorizes and
empowers Lessor to execute and complete in Lessee's name and on Lessee's
behalf all financing statements and other documents necessary to and
anticipated by any Schedule to provide to Lessor the benefits anticipated
by such Schedule.
24. MISCELLANEOUS:
The Lease will not be binding on Lessor until executed by an authorized
officer of Lessor. Lessor and Lessee waive all rights to trial by jury in
any litigation arising herefrom or in relation hereto. Lessee will, at
Lessee's sole expense, obtain from each owner, landlord, mortgagee or
other person having an encumbrance, lien or other interest on or in the
premises in which the Equipment is or will be located, all necessary
consents to the installment and use of the Equipment therein and the
removal thereof in accordance with the terms of the Lease, together with
waivers of claim with respect to the Equipment, and record the same when
and where necessary. This Lease shall be executed in two originals,
counterpart #2 shall be retained by Lessee and counterpart #1 shall be
retained by Lessor and duly marked as such and shall be the only original
for chaste' paper purposes.
25. ENTIRE AGREEMENT:
This Lease and any instrument referred to herein together with any
Schedule(s), Attachment(s), or Rider(s) signed by the parties or delivered
in connection herewith constitute the entire agreement of the parties with
respect to the subject matter hereof and will collectively constitute the
Lease with respect to an Item of Equipment and supersede any prior written
or oral agreement of the parties with respect to such Equipment. No agent
or employee of the Supplier is authorized to bind Lessor to the Lease, to
waive or alter any term or condition herein or add any provision hereto.
No variation or modification of the Lease and no waiver of any of its
provisions or conditions will be valid unless in writing and signed by
Lessor and Lessee.
MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------
Xxxxxx X. Xxxxxx Title: Treasurer
Title: President Date: November 29, 1995
Date: Witness: /s/ Xxxxxx X. Xxxx
-------------------------
Date: November 29, 1995
THE UNDERSIGNED LESSEE HEREBY ACKNOWLEDGES AND AGREES THAT ANY
MODIFICATION OR AMENDMENT OF THIS LEASE MUST BE IN WRITING AND THAT NO
MODIFICATION OR AMENDMENT SHALL BE ENFORCEABLE UNLESS SUCH MODIFICATION OR
AMENDMENT IS IN WRITING DULY SIGNED BY LESSEE AND LESSOR.
/s/ Xxxxxx X. Xxxxxxx
---------------------
XXXXXXXX'X, INC. OF NEW YORK
MERIDIAN LEASING INC. TRUE LEASE
MASTER LEASE SCHEDULE
Meridian Leasing Inc. Schedule Dated November 29, 1995 to
One Meridian Blvd. Master Lease Agreement Xx. 00000
Xxxxxxxxxx, XX 00000 Master Lease Schedule #001
The Master Lease Agreement referred to above is incorporated herein by reference
as if set forth at length and Lessee and Lessor confirm all the terms and
provisions thereof except as specifically set forth herein to the contrary.
A. Equipment
This Schedule covers all Equipment described in Rider #1 attached hereto
and made a part hereof.
B. Definitions and Meanings of Certain Terms
1. Advance Rental: $4,485.42
2. Lessor's Cost: $144,040.56
3. Commencement Date: November 29, 1995 (To be the date of execution of the
Certificate of Acceptance)
4. Term of Lease:__________ days (the "interim term") followed by a basic
term of 36 months and ending on
5. First Rent Payment Factor: .03114
6. Second Rent Payment Factor: -----
7. Additional Provisions: $100.00 processing fee.
8. All Riders (if any) in addition to Rider #1 are listed hereinafter and
made a part hereof: Rider #2, #5
C. Stipulated Loss Values
The Stipulated Loss Value of any Item of Equipment may be determined as of
any rent due date by multiplying Lessor's Cost for the Equipment by the
percentage applicable to such date in each case determined by reference to the
Schedule of Stipulated Loss Values attached hereto.
D. Tax Treatment
This is a true lease and not a conditional sale and the provisions of
Section 10 of the Lease shall be fully applicable. Recovery Deductions: 5 year
period using the 200% declining balance method and the half-year convention,
unless otherwise required by operation of Code Section 168(d)(3)(A).
E. Rent Payments
Lessee promises to pay rent for the interim term, if any, on the first day
of the basic term in an amount equal to $______________ and thereafter Lessee
promises to pay rent for the basic term by making 36 consecutive installments of
rent, with the first such payment due ______________ and with succeeding
payments due on the _____________ day of each month thereafter. Lessee
thereafter promises to pay 35 additional installments of rent each in the amount
of $4,485.42 on the ________________ day of each succeeding month during the
basic term.
Except as expressly modified hereby, all terms and provisions of the Lease
remain in full force and effect. The parties hereto have caused their duly
authorized officers to execute this Schedule as of the Commencement Date.
MERIDIAN LEASING, INC. XXXXXXXX'X INC. OF NEW YORK
By By: /s/ Xxxxxx X. Xxxxxxx
-------------------------- ---------------------
Xxxxxx X. Xxxxxx
Title: President Title: Treasurer
---------
Date:
Date: November 29, 1995
-----------------
Meridian Leasing
SCHEDULE OF STIPULATED LOSS VALUES
MERIDIAN LEASING INC.
Master Lease Agreement Xx. 00000
Xxxxxxxx Xx. 000, Dated November 29, 1995
The Stipulated Loss Value for any Item of Equipment at any due date is equal
to Lessor's Cost of such Equipment multiplied by the applicable percentage shown
below as of the applicable rent payment date.
Adjusted
Number Stipulation
of Value
Base as
Rent Percent
Payments of
Made Cost
1 105.291310
2 101.040857
3 96.872741
4 92.785600
5 88.786242
6 84.889393
7 81.069030
8 77.348214
9 73.700971
10 70.126084
11 66.646682
12 63.236859
13 59.895464
14 56.645690
15 53.461695
16 50.342391
17 47.291829
18 44.300991
19 41.371647
20 38.500020
21 35.687917
22 32.934350
23 30.235S93
24 27.593497
25 25.007126
26 22.472797
27 19.992410
28 17.565071
29 15.189322
30 12.886060
31 10.6329t6
32 8.450231
33 6.315668
34 4.228432
35 2.208909
36 0.000000
Thereafter
This Attachment is incorporated into the Master Lease Schedule referred to
above.
MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ----------------------------
Xxxxxx X. Xxxxxx
Title: Title: Treasurer
----------------------------- -------------
President
Date: Date: November 27, 1995
------------------------------ -------------------
Meridian Leasing
LEASE END OPINIONS
MASTER LEASE SCHEDULE NO. 001
MERIDIAN LEASING INC.
RIDER #2 LEASE END OPTIONS
Schedule dated November 29, 1995 to Master Lease Agreement No. 01678
1. RENEWAL AT FAIR MARKET RENTAL RATE
Length of Renewal Term: 12 months Number of Renewal Terms: One (1)
Upon the expiration of the original term under the referenced Lease and Schedule
and any renewal term provided for herein, provided that Lessee has paid all rent
and all other sums then due by Lessee to Lessor, or which would become due upon
request of Lessor, as required under the provisions of this Lease, and provided
that no default has occurred and then remains unremedied, Lessee will have the
option, exercisable on written notice to Lessor given at least 180 days prior to
the end of the original term or any renewal term, to renew the Lease with
respect to all, but not less than all (except for items for which Lessor has
received payment of the Casualty Value with respect thereto) of the Equipment
then subject to said Schedule for an additional term as set forth above (herein
called a "Renewal Term") at a rental for such renewal term that would be
obtained in an arms-length transaction between an informed and willing
prospective lessee and an informed and willing lessor under no compulsion to
lease (said rate being herein called the "Fair Market Rental Rate"). Lessee's
option provided for herein may not be exercised for more than the number of
renewal terms set forth above.
2. PURCHASE AT FAIR MARKET SALE VALUE
Upon expiration of the original term or any renewal term with respect to the
Equipment, provided that Lessee has paid all rentals and all other sums then due
by Lessee to Lessor, or which would become due upon request of Lessor as
required under the provisions of this Lease, and provided that no default has
occurred and then remains unremedied to Lessor's satisfaction. Lessee will have
the option, exercisable by written notice to be given to Lessor at least 180
days prior to the expiration of the term, to purchase all, but not less than all
(except for Items that have been destroyed and for which Lessor has received
payment of the Casualty Value with respect thereto) of the Equipment, for an
amount, payable on or before such expiration date, that would be obtained in an
arms-length transaction between an informed and willing buyer and an informed
and willing seller under no compulsion to sell (said amount being herein called
the "Fair Market Sale Value").
3. PROCEDURE
If, on or before a date 135 days prior to the expiration of the original term or
any renewal term with respect to the Schedule, Lessor and Lessee are unable to
agree upon a determination of the Fair Market Rental Rate or the Fair Market
Sale Value of the Equipment, Lessee will have no obligation to renew this Lease
or purchase the Equipment. However, if Lessee wishes to proceed with its option,
such value will be determined in accordance with procedure for appraisal set
forth herein. Lessee may not proceed simultaneously to exercise both options
provided for herein.
Appraisal means a procedure whereby two recognized independent equipment
appraisers, one chose by Lessee and one by Lessor, will mutually agree upon the
amount in question. To commence the procedure Lessee will give Lessor a written
notice appointing its appraiser not later than 125 days prior to the expiration
of the original or renewal term. Lessor will within fifteen (15) days thereafter
give Lessee a written notice appointing its appraiser. If within fifteen (15)
days after appointment of the two appraisers as described above, the two
appraisers are unable to agree upon the amount in question, a third recognized
independent appraiser will be chosen within five (5) days thereafter by the
mutual consent of such first two appraisers or, if such first two appraisers
fail to agree upon the appointment of a third appraiser, such appointment will
be made by an authorized representative of the American Arbitration Association
or any organization successor thereto. The decision of the appraisers so
appointed and chosen will be given within a period of ten (10; days after the
selection of such third appraiser. The average of the three appraisals arrived
at by said three appraisers will be binding and conclusive on Lessor and Lessee.
Lessor and Lessee will pay the fees and expenses of the respective appraisers
appointed by them and will share equally the fees and expense of the third
appraiser, if any, and those of the American Arbitration Association, if
applicable, PROVIDED, HOWEVER, that if Lessee does not exercise the option to
renew or purchase, then Lessee will pay the fees and expenses of all appraisers
and American Arbitration Association.
If Lessee does not elect to exercise such purchase or renewal option after the
decision of the appraisers, Lessor shall have an additional period of 120 days
storage rights at the risk and expense of Lessee from and after the later of the
end of the Lease term or Lessee's decision not to exercise such option.
After a determination of the Fair Market Rental Rate or the Fair Market Sale
Value of the Equipment has been made in accordance with the procedure described
above, Lessee may exercise its option to renew the Lease for the Fair Market
Rental Rate or to purchase the Equipment for the Fair Market Sale Value by
delivering written notification of such exercise to Lessor not less than ninety
(90) days prior to the expiration of the term.
If Lessee has elected to purchase the Equipment pursuant to this option and
provided Lessee is not then in default hereunder, Lessee will purchase from
Lessor and Lessor will sell to Lessee, without recourse or warranty, the
Equipment for a cash consideration equal to the Fair Market Sale Value thereof
which amount will be paid in full on the last date for the payment of basic rent
as provided for in the Schedule or the last such date provided for in any
renewal term. The Xxxx of Sale will be dated the date of payment.
If Lessee has elected to renew the Lease pursuant to this option, the renewal
rentals will be payable on the same day of each rental period consistent with
the rental payment dates of the original term of the Lease commencing with the
first rental period after the expiration of the original term and continuing
until the expiration of the renewal terms).
Upon payment of the Fair Market Sale Value, Lessor will upon request of Lessee,
execute and deliver to Lessee or to Lessee's assignee or nominee, a xxxx of sale
(without representations or warranties except that the Equipment is free and
clear of all claims, liens, security interest and other encumbrances by or in
favor of any person claiming through or under Lessor) releasing the Equipment
from the terms and scope of this Lease and to transferring title thereto to
Lessee or such assignee or nominee, in such form as may reasonably be requested
by Lessee, all at Lessee's expense.
Except as expressly modified hereby, all terms and provisions of the Lease
remain in full force and effect.
This Rider #2 is incorporated into the Schedule referred to above.
MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------
Xxxxxx X. Xxxxxx
Title: President Title: Treasurer
----------
Date: Date: November 29, 1995
-----------------
Master Lease Schedule =C01
RETURN PROVISIONS
RIDER #5
Master Lease Agreement #01678, Dated November 29, 1995
between MERIDIAN LEASING
INC., as Lessor, and
XXXXXXXX'X INC. OF NEW YORK, as Lessee.
This Rider forms a part of the above-referenced Schedule to Master Lease.
Terms defined in the Schedule and Master Lease will have the same meanings
when used in the Rider unless otherwise defined.
1. RETURN
Lessee shall, upon the expiration of the Lease Term of each Item of
Equipment, return such Item of Equipment to Lessor at such place within the
continental United States of America as Lessor pursuant to the provisions of
this Section, all of the provisions of this Lease with respect thereto shall
continue in full force and effect. Lessee shall pay all the costs and
expenses in connection with or incidental to the return of the Equipment,
including, without limitation, the cost of removing, dismantling by
manufacturer's representative (or anyone else designated by Lessor),
assembling, packing, insuring and transporting the Equipment. At the time of
such return, the Equipment shall be in the condition and repair required to
be maintained by Section 6 of the Lease and Section 2 hereof and free and
clear of all Liens. At the expiration of the Lease Term, Lessee shall
provide 120 days of storage for the units of Equipment free of charge.
During this period, each unit of Equipment must remain assembled and
operational:
2. OPERATION, MAINTENANCE. ADDITIONS
A) Lessee will, at its own expense, keep and maintain the Equipment in
good repair, condition and working order and furnish all parts,
replacements, mechanisms, devices and servicing required therefore so that
the value, condition and operating efficiency thereof will at all times be
maintained and preserved, reasonable wear and tear excepted. All such
repairs, parts, mechanisms, devices and replacements shall immediately,
without further act, become the property of Lessor and part of the
Equipment. Without limiting the generality of the foregoing provisions of
this Subsection, Lessee agrees that upon the required return of the
Equipment to Lessor pursuant to the Section 1 hereof, each item of Equipment
shall comply with the following criteria at minimum:
- At the time of return, the Equipment must be operational and able to perform
its required tasks effectively without repair or overhaul, complete with no
missing components. All components must be attached, clean and functioning.
- All manuals and documentation must be present and returned to Lessor.
- Dismantling and handling is to be done in accordance with the manufacturer's
instructions or normally accepted industry standards and practices.
- All peripheral and additional systems to the Equipment must be intact and
correctly operational.
- Meridian Leasing Inc. and potential purchasers of the Equipment must be
given access to the Equipment upon reasonable demand.
- The Equipment must remain at its current location during the term of the
lease and all auxiliary equipment must remain attached to or within close
proximity.
- All cables, wires, and attachments must be returned with the system.
B) Lessee will not make or authorize any improvement, change, addition or
alteration to the Equipment (i) if such improvement, change, addition or
alteration will impair the originally intended function or use of the Equipment
or impair the value of the Equipment as it existed immediately prior to such
improvement, change, addition or alteration; or (ii) if any parts installed in
or attached to or otherwise becoming a part of the Equipment as a result of any
such improvement, change, addition or alteration shall not be readily removable
without damage to the Equipment. Any part which is added to the Equipment
without violating the provisions of the immediately preceding sentence and which
is not a replacement or substitution for any property which was a part of the
Equipment, shall remain the property of Lessee and may be removed by Lessee at
any time prior to the expiration or earlier termination of the Lease Term. All
such parts shall be and remain free and clear of any Liens. Any such part which
is not so removed without further act, become the property of Lessor.
MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------
Xxxxxx X. Xxxxxx
Title: President Title: Treasurer
----------
Date: Date: November 29, 1995
-----------------
Meridian Leasing
CERTIFICATE OF ACCEPTANCE
Master Lease Schedule #001
MERIDIAN LEASING INC.
CERTIFICATE OF ACCEPTANCE
Meridian Leasing Inc.
Xxx Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Re: Master Lease Agreement No. 01678 and
the Schedule thereunder dated
November 29, 1995
The undersigned duly authorized representative of Lessee under the
referenced Master Lease Agreement and Schedule (the "Lease") does hereby
certify that I have inspected and accepted delivery of the following
Items of Equipment under and pursuant to the Lease:
EQUIPMENT: See Schedule A attached hereto and forming a part hereof.
DATE ACCEPTED (COMMENCEMENT DATE November 29, 1995
-----------------
The undersigned does hereby further certify that the foregoing Items of
Equipment are in good order and condition, and conform to the
specifications, requirements and standards applicable thereto. This
certificate does not waive any right Lessee or Lessor may have against
the manufacturer or supplier of the Equipment.
The undersigned does hereby further certify that as of the date hereof
(i) Lessee is not in default under the Lease, and (ii) the
representations and warranties made by Lessee pursuant to or under the
Lease are true and correct on the date hereof.
XXXXXXXX'X INC. OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Title: Treasurer
---------
November 29, 1995
-----------------
(Date - the Commencement Date)
Meridian Leasing
CLOSING CERTIFICATE
MASTER LEASE SCHEDULE #001
MERIDIAN LEASING INC.
CLOSING CERTIFICATE
Schedule dated November 29, 1995 to Master Lease Agreement No. 01678
Meridian Leasing Inc.
Xxx Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
As a condition to your advance of funds for the above referenced Lease and
Schedule, the undersigned as Lessee thereunder hereby represents, warrants and
covenants to you as Lessor each of the following as of the date hereof and as of
the "Commencement Date" under the Schedule.
(a) The Balance Sheet and Statement of Income of Lessee, or of any
consolidated group of which Lessee is a member, heretofore delivered to
Lessor have been prepared in accordance with generally accepted accounting
principles and fairly presents the financial position of Lessee or the
consolidated group of companies of which Lessee is a member on and as of the
date thereof and the results of its or their operations for the period or
periods covered thereby. Since the date of such Balance Sheet and Statement
of Income there has been no material adverse change in the financial or
operating condition of Lessee or of its consolidated group;
(b) Lessee agrees to furnish annually, within 90 days after the close of its
fiscal year, and also at Lessor's request, a certificate of an authorized
officer of Lessee stating that he has reviewed the activities of Lessee and
that, to the best of his knowledge, there exists no default, as such term is
defined in the Lease, and no event which, with the giving of notice or the
lapse of time or both, would become such a default;
(c) Lessee is a (corporation) (general partnership) (limited partnership),
organized and validly existing and in good standing under the laws of the
State of New York, with full power and capacity to enter into the Lease, all
documents relative to the purchase of the Equipment and any other documents
required to be delivered in connection with the Lease (said Lease, purchase
documents and other documents being hereinafter called "Documents") and is
duly qualified to do business wherever necessary to carry on its present
business, but particularly in all states where leased Equipment is to be
located;
(d) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws;
(e) No approval, consent or withholding of objections is required from any
federal, state or local governmental authority or instrumentality with
respect to the entry into or performance by Lessee of the Documents except
such as have already been obtained;
(f) The entry into and performance by Lessee of the Documents will not:
(i)violate any judgment, order, (law or regulation applicable to Lessee or
any provision of Lessee's Certificate of Incorporation of Bylaws (if a
corporation) or partnership agreement (if a partnership) or limited
partnership certificate lit a limited partnership!; or (ii)result in any
breach of, constitute a default under or result in the creation of any lien,
charge, security interest or other encumbrance upon any Item of Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement of other Instrument (other than the Lease or any purchase money
security interest retained by a Supplier)to which Lessee is a party;
(g) There are no suits or proceedings pending or threatened in court or
before any regulatory commission, board or other administrative governmental
agency against or affecting Lessee, which will have a material adverse
effect on the ability of Lessee to fulfill its obligations under the Lease;
(h) The Equipment accepted under the Certificate of Acceptance executed
pursuant to the Lease is tangible personal property and, when subjected to
use by Lessee, will not be or become fixtures under applicable laws; all
landlords and holders of liens with respect to premises where Equipment is
to be located have executed waivers, originals of which have been delivered
to Lessor herewith, and any landlord or mortgagee waiver executed in
connection with the Equipment is valid and enforceable against the person
executing the same and is sufficient to protect Lessor's interest in the
Equipment from any claim against the Equipment by said person. The Equipment
accepted under the Certificate of Acceptance is new and unused on the date
title thereto is acquired by Lessor;
(i) The representations, warranties and covenants of Lessee contained in the
Lease are true and correct on the date hereof and there exists this day no
default or event with which notice or time or both would be a default under
the Lease;
(j) Attached hereto is a full, true and complete copy of resolutions (if a
corporation) or other appropriate action (if a partnership)authorizing
Lessee to enter into the Lease, duly adopted or taken by the Board of
Directors of Lessee (if a corporation)or the general partners of Lessee (if
a partnership) at a meeting called and held on April 20, 1995 at which a
quorum was present and acting throughout, or (if a partnership) pursuant to
the terms of the partnership agreement, and said resolutions or other
actions have not been amended or rescinded and are in full force and effect
on the date hereof.
XXXXXXXX'X INC. OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Title: Treasurer
---------
Date: November 29, 1995
------------------
Meridian Leasing
If XXXXXXXX'X INC. OF NEW YORK is exempt from state sales/rental tax, please
return a copy of the Tars Exemption Certificate with the document package.
If not exempt from state sales/rental tax, please include the appropriate
tax amount with any advance rentals paid. Regardless, please enter your
company's Federal Tax I.D. Number below and return this form with the signed
documents.
Federal Tax I.D. Number: 00-0000000
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Meridian Leasing SALE AND LEASEBACK
MASTER LEASE # 01678
SCHEDULE #001
MERIDIAN LEASING INC.
XXXX OF SALE
FOR VALUE RECEIVED, XXXXXXXX'X INC. OF NEW YORK, a New York corporation
(herein called "Seller") does hereby sell, transfer and convey to Meridian
Leasing Inc. (hereinafter called "Buyer") all of Seller's right, title and
interest in the following Equipment:
See Schedule A attached hereto and forming a part hereof.
Seller hereby represents and warrants to Buyer and Seller hereby conveys to
Buyer good and marketable title to the Equipment free and clear of all liens and
encumbrances whatsoever except such liens and encumbrances as Buyer shall itself
create and the leasehold interest of Seller, Seller shall warrant and defend
good title consistent herewith in Buyer and Seller's obligation shall survive
the delivery of this Xxxx of Sale.
In witness whereof, Seller has executed this Xxxx of Sale.
XXXXXXXX'X INC. OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Treasurer
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Dated: November 29, 1995
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Master Lease #01678
Schedule #001, dated
PAY PROCEEDS LETTER
XXXXXXXX'X INC. OF NEW YORK hereby irrevocably directs Meridian Leasing Inc.
to pay the proceeds of the above lease as follows:
VENDOR ADDRESS PAYMENT
Xxxxxxxx'x Inc. 000 X. Xxxxxxxxxx Pike $144,040.56
Xxxxxxxx Xxxxxxx, XX 00000
Meridian Leasing Inc. reserves the right to withhold any advance rentals and
fees due when payment of proceeds is made directly to Lessee.
XXXXXXXX'X INC. Of NEW YORK
Signed: /s/ Xxxxxx X. Xxxxxxx
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Title: Treasurer
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Date: November 29, 1995
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Meridian Leasing
Description of Equipment
Master Lease Schedule #001
Meridian Leasing Inc.
Rider #1 Description of Equipment
Schedule dated November 29, 1995
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Master Lease Agreement No. 01678
Number of Model of Serial
Units Equipment Numbers Location Supplier
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See Schedule A attached hereto and forming a part hereof.
000 X. 00xx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000 SBM
Total Lessor's Cost $144,040.56
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MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx
Title: President Title: Treasurer
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Date: Date: November 29, 1995
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SCHEDULE A
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All equipment as acquired under lease to XXXXXXXX'X INC. OF NEW YORK pursuant to
Master Lease #01678, Schedule #001, dated ____, between MERIDIAN LEASING INC.
(Lessor) and XXXXXXXX'X INC. OF NEW YORK (Lessee).
QUANTITY DESCRIPTION S/N
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Four (4) PV High Resolution Workstations including:
Pentium 100 CPU, 256K Cache, 32MB
RAM, Middle tower case w/250 W PS+
extra fan, 1 GB hard drive, High
resolution Graphics Card w/6 MB
V + D RAM, One 1.44 MB 3.5" floppy
drive, Multi I/O Card w/ 1 parallel/
2 serial ports, Network Card and cable,
One Keyboard and mouse, WACOM UD 12"
x 12" Professional Tablet w/cordless
four button cursor and pressure pen,
NEC XP 17 17" color monitor
One (1) Xxxxx Optima External Modem
One (1) 4xCD ROM Drive
One (1) File Server including:
486DX/66 Mhz CPU, 256 K Cache, 16MB RAM
9" Monochrome VGA Monitor and card
Middle tower case with 250 w PS +
extra fan, 2 GB hard Drive, SCSI
controller, One 1.44 MB 3.5" floppy
drive, Multi I/O card w/ 1 parallel/
2 serial ports, Network Card and Cable,
9 port Ethernet Hub, keyboard and mouse,
Digital Data Storage 2 GB Tape
Backup Drive
One (1) Network Parallel Printing Unit including:
486DX/66 Mhz CPU, 256k CACHE , 16 MB
RAM, 9" Monochrome VGA Monitor and
Card, Middle tower case with 250 W PS +
extra fan, 340 MB Hard Drive, Adaptec
1542 SCSI Controller with FDD Control,
One 1.44 MB 3. 5 " floppy drive, Multi
I/O card w/ 1 parallel/ 2 serial ports,
Network card and cable, keyboard & mouse
One (1) Canon CJ-10 Printer, Scanner and copier
with 16 MB IPU computer interface
One (1) Canon IPU-10 with 24 MB computer interface
One (1) Epson ES600 Scanner
One (1) SBM Prostation Pentium 100
One (1) SBM Upgrade to 1GB Hard Drive
One (1) Sony 4x Internal w/tray, IDE CD-ROM
One (1) SBM Upgrade to 20" Display
Schedule A
Page 2
Thirty-six RG58 Cable for Thin EtherNet
One (1) SBM 1 yr Extended
One (1) Adobe Aldus PageMaker 5.0, 3.5"
One (1) Adobe Photoshop v3.0 Single
Documentation, Win
One (1) Adobe Illustrator v4.0 Single
Documentation, Win
One (1) On-site System Setup Workstation
The above equipment complete with all related parts, attachments,
accessories, substitutions and proceeds.
MERIDIAN LEASING INC. XXXXXXXX'X INC. OF NEW YORK
By: By: /s/ Xxxxxx X. Xxxxxxx
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Title: Title: Treasurer
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Date: Date: November 29, 1995
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