SIEMENS
AGREEMENT
AGREEMENT made April 1, 1997 between Siemens Hearing Instruments, Inc. a
Delaware corporation having its principal office at 00 Xxxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, and HealthCare Hearing Clinics, Inc., having its
principal address at 000 XX Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxx, XX 00000.
1. Financing - Siemens Hearing Instruments, Inc. has approved the lease
between Siemens Credit Corporation and HealthCare Hearing Clinics,
Inc., with a lease term of four (4) years and an annual interest rate
of 8.25% per year.
2. Incremental Interest Rate - The number of hearing aids, net of returns,
purchased after April 1, 1997 by HealthCare Hearing Clinics, Inc. and
HC HealthCare Hearing Clinics Ltd. from Siemens Hearing Instruments,
Inc. and Siemens Hearing Instruments Ltd. of Canada will determine the
Annual Incremental Interest Rate assessed against the outstanding
balance between HealthCare Hearing Clinics, Inc. and Siemens Credit
Corporation - See Exhibit A.
3. Invoicing - Interest will be invoiced and calculated by Siemens Hearing
Instruments, Inc. at the end of each three month period based upon the
outstanding balance between HealthCare Hearing Clinics, Inc. and
Siemens Credit Corporation. For the first three quarters, the
Incremental Interest rate will be estimated based on the current year's
level of hearing aids. At the end of each 12 month period, the prior
three estimates will be adjusted to the level of hearing aids for the
full year.
4. Payment - HealthCare Hearing Clinics, Inc. agrees to pay Siemens
Hearing Instruments, Inc. within 10 days of the invoice date.
5. Construction - This agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
HealthCare Hearing Siemens Hearing
Clinics, Inc. Instruments, Inc.
/s/ Xxxxx X. Kawasaki /s/ [illegible]
Name Name
V. P. Finance V. P. Finance
Title Title
Page 1 of 2
SIEMENS
EXHIBIT A - SCHEDULE OF INCREMENTAL INTEREST RATES
INCREMENTAL
INTEREST
YEAR ANNUAL HEARING AIDS (NET) RATE
--------------------------------------------------------------------------------
1 From 0 to 2,400 8.25%
1 From 2,401 to 2,600 7.25%
1 From 2,601 to 2,800 6.25%
1 From 2,801 to 3,000 5.25%
1 From 3,001 to 3,300 4.25%
1 From 3,301 to 3,600 3.25%
1 From 3,601 to 3,900 1.75%
1 From 3,901 or more 0.00%
INCREMENTAL
INTEREST
YEAR ANNUAL HEARING AIDS (NET) RATE
--------------------------------------------------------------------------------
2 From 0 to 2,400 8.25%
2 From 2,401 to 3,000 7.25%
2 From 3,001 to 3,600 6.25%
2 From 3,601 to 4,200 5.25%
2 From 4,201 to 4,800 4.25%
2 From 4,801 to 5,400 3.25%
2 From 5,401 to 6,000 1.75%
2 From 6,001 or more 0.00%
INCREMENTAL
INTEREST
YEAR ANNUAL HEARING AIDS (NET) RATE
--------------------------------------------------------------------------------
3 From 0 to 2,400 8.25%
3 From 2,401 to 3,000 7.25%
3 From 3,001 to 3,600 6.25%
3 From 3,601 to 4,200 5.25%
3 From 4,201 to 4,800 4.25%
3 From 4,801 to 5,400 3.25%
3 From 5,401 to 6,000 1.75%
3 From 6,001 or more 0.00%
INCREMENTAL
INTEREST
YEAR ANNUAL HEARING AIDS (NET) RATE
--------------------------------------------------------------------------------
4 From 0 to 2,400 8.25%
4 From 2,401 to 3,000 7.25%
4 From 3,001 to 3,600 6.25%
4 From 3,601 to 4,200 5.25%
4 From 4,201 to 4,800 4.25%
4 From 4,801 to 5,400 3.25%
4 From 5,401 to 6,000 1.75%
4 From 6,001 or more 0.00%
Page 2 of 2
SIEMENS SIEMENS CREDIT CORPORATION
MASTER EQUIPMENT LEASE AGREEMENT
AGREEMENT #: 000-0000000-000
LESSOR: SIEMENS CREDIT CORPORATION
000 X.X. Xxxxxxx 00, Xxxxx 000, Xxxxxxxxxxx, XX 00000-0000
(000) 000-0000
Administrative Offices:
0000 Xxxxxx Xxxxx Xxxx. X.X., Xxxx Xxxxx, XX 00000-0000
(000) 000-0000
LESSEE:
HealthCare Hearing Clinics, Inc.
(herein "Lessee")
000 XX Xxxxx Xxx., Xxxxx 0000
(Address)
Xxxxxxxx, Xxxxxx 00000
(City, State, Zip)
TERMS AND CONDITIONS OF AGREEMENT
1. MASTER LEASE: This Master Equipment Lease Agreement (herein "Agreement") sets
forth the basic terms and conditions upon which Lessor shall ease to Lessee and
Lessee shall lease from Lessor items of property specified in leasing schedules
(herein "Leasing Schedules") to be entered into from time to time. Each Leasing
Schedule shall incorporate the terms and conditions of the Agreement and shall
constitute a lease as to the property specified in such leasing Schedule (herein
"Equipment"). The term "Lease" as used in the Agreement shall mean the
applicable Leasing Schedule as incorporating the terms and conditions of the
Agreement. The Agreement shall become effective at the time of Lessor's
acceptance (by execution hereof) at its New Jersey address set forth above, by
an authorized representative of Lessor.
2. TERM AND LEASE PAYMENTS: The lease term of the Equipment shall be for the
period specified in the Leasing Schedule (herein "Lease Term"). The Lease Term
shall commence upon the commencement date specified in the Leasing Schedule
(herein "Commencement Date") and thereupon Lessee, upon request by Lessor,
agrees to execute and deliver to Lessor a delivery and acceptance certificate in
the form supplied by Lessor. For the Lease Term, Lessee agrees to pay to Lessor
the number of lease payments specified in the Leasing Schedule, each in the
amount specified in the Leasing Schedule (herein "Lease Payments") for the
payment periods specified in the Leasing Schedule (herein "Payment Periods"),
including any Advance Lease Payments on the same day of each consecutive Payment
Period thereafter for the duration of the Lease Term. Any Advance Lease Payments
(unless otherwise specified in the Leasing Schedule) will be applied to Lease
Payment #1, then to the remaining Lease Payments in reverse order. Lessee agrees
to pay on demand, as a late charge, 1.3% per month limited by the maximum rate
permitted by law, on all overdue payments under the Lease, whether such payments
are due prior to or after a Default (as hereinafter defined). All payments
provided for in the Lease shall be payable at the office of Lessor set forth
above, or at any other place designated by Lessor. The Lease is a net lease and
Lessee shall not be entitled to any abatement of, reduction of, or setoff
against Lease Payments for any reason whatsoever. The Lease may not be
terminated or canceled for any reason whatsoever, except as expressly provided
in the Lease. No amounts under the Lease may be prepaid.
(CONTINUED ON FOLLOWING PAGES)
================================================================================
IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as of
the dates set forth below. For all purposes hereof, the date of the Agreement
shall be the date of Lessor's acceptance as set forth below. Lessee acknowledges
that no amendment to any Leasing Schedule or the Agreement shall be effective
unless in writing signed by the parties hereto.
ACCEPTED BY:
LESSOR: SIEMENS CREDIT CORPORATION
BY:
(Authorized Signature)
NAME:
(Printed or Typed)
TITLE:
DATE:
BY EXECUTION HEREOF, THE SIGNER CERTIFIES THAT (S)HE HAS READ THE ENTIRE
AGREEMENT, THAT LESSOR OR ITS REPRESENTATIVES HAVE MADE NO AGREEMENTS OR
REPRESENTATIONS EXCEPT AS SET FORTH HEREIN OR IN THE LEASING SCHEDULE AND THAT
(S)HE IS DULY AUTHORIZED TO EXECUTE THE AGREEMENT ON BEHALF OF LESSEE.
LESSEE: HEALTHCARE HEARING CLINICS, INC.
BY:
(Authorized Signature)
NAME:
(Printed or Typed)
TITLE:
DATE:
3. DISCLAIMER OF WARRANTIES; LIMITATION OF REMEDY; LIMITATION OF LIABILITY:
Lessee has selected both the Equipment and the supplier (identified in the
Leasing Schedule, herein "Supplier") from who at Lessee's request Lessor agrees
to purchase the Equipment. LESSEE ACKNOWLEDGES THAT LESSOR HAS NO SPECIAL
FAMILIARITY OR EXPERTISE WITH RESPECT TO THE EQUIPMENT. LESSEE AGREES THAT THE
EQUIPMENT LEASED UNDER THE LEASE IS LEASED "AS IS" AND IS OF A SIZE, DESIGN AND
CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT THE SAME IS
SUITABLE FOR LESSEE'S PURPOSES, AND THAT EXCEPT AS MAY OTHERWISE BE SPECIFICALLY
PROVIDED HEREIN OR IN THE LEASING SCHEDULE, LESSOR HAS MADE NO REPRESENTATION OR
WARRANTY AS TO ANY MATTER WHATSOEVER. LESSOR DISCLAIMS, AND LESSEE HEREBY
EXPRESSLY WAIVES AS TO LESSOR, ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT
INCLUDING BUT NOT LIMITED TO ALL EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR
WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST PATENT INFRINGEMENTS OR
DEFECTS, WHETHER HIDDEN OR APPARENT, AND ALL EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT TO COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW,
REGULATION, SPECIFICATION OR CONTRACT RELATIVE THERETO. IN NO EVENT SHALL LESSOR
BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN TORTS) FOR ANY LOSS
OF USE, REVENUE, ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LEASE OR THE USE,
PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT. If the Equipment is not properly
installed, does not operate as represented or warranted by the Supplier,
manufacturer and/or service company or is unsatisfactory for any reason, Lessee
shall make any claim on account thereof solely against the Supplier,
manufacturer and/or service company and shall, nevertheless, pay Lessor all
amounts payable under the Lease and shall not set up against Lessee's
obligations any such claims as a defense, counterclaim, deduction, setoff or
otherwise. For the Lease Term, for so long as no Default (as hereinafter
defined) has occurred and is continuing, Lessor assigns to Lessee (to the extent
permitted by law) any right Lessor may have against the Supplier, manufacturer
and/or service company to enforce, at Lessee's expense (if any), any product
warranties with respect to the Equipment, provided however, Lessee shall
indemnify and defend Lessor from and against all claims, expenses, damages,
losses and liabilities incurred or suffered by Lessor in connection with any
such action taken.
4. TITLE; IDENTIFICATION; PERSONAL PROPERTY: Lessee acknowledges that subject to
the provisions of Section 10 hereof, title to the Equipment shall at all times
be vested in Lessor, and no right, title or interest in the Equipment shall pass
to Lessee other than, conditioned upon Lessee's compliance with and fulfillment
of the terms and conditions of the Lease, the right to possess and use the
Equipment for the full Lease Term. Lessee agrees not to sell, assign, sublet,
pledge, or otherwise encumber any interest in the Lease or the Equipment and
agrees to keep the same free from any lien, encumbrance, right of distraint or
any other claim which may be asserted by any third party. Lessee shall
immediately notify Lessor in writing of any tax or other liens attaching to the
Equipment. Lessor may require plates or markings to be affixed to or placed on
the Equipment indicating Lessor's interest. Lessor and Lessee hereby confirm
their intent that the Equipment always remain and be deemed personal property
even though the Equipment may hereafter become attached or affixed to realty.
Lessee shall obtain all such waivers as Lessor may reasonably require to
acknowledge Lessor's title to and assure Lessor's right to remove the Equipment,
including any landlord and mortgagee waivers.
5. PAYMENT OF TAXES; GENERAL INDEMNIFICATION: Lessee shall pay promptly to
Lessor when due, all taxes, fees and assessments, including but not limited to,
all license and registration fees, sales, use, property, gross receipts, excise,
transaction, ad valorem, privilege, intangible, stamp or other taxes or charges,
together with any fines, penalties or interest thereon, now or hereafter imposed
by any governmental body, upon or with respect to, any of the Equipment or the
use, possession, ownership, leasing, operation, delivery or return thereof
(excluding, however, franchise taxes and any taxes based on the net income of
Lessor). Any fees, taxes or other amounts paid by Lessor upon failure of Lessee
to make such payments set forth in this Section 5 shall be payable upon demand
from Lessee to Lessor. Lessee agrees to indemnify and hold Lessor harmless from
and against any and all claims, losses, damages, penalties, actions, suits and
liabilities (including negligence, tort and strict liability), together with all
reasonable legal costs and expenses in connection therewith incurred by Lessor
which result from, or relate to, the manufacture, purchase, ownership,
maintenance, modification, delivery, installation, possession, condition, use,
acceptance, rejection, operation or return of the Equipment.
6. INSTALLATION AND DELIVERY: Lessee shall provide a suitable installation
environment for the Equipment as specified in the applicable manufacturer's or
Supplier's manuals, and except as otherwise specified by the manufacturer or
Supplier, furnish all labor required for unpacking and placing each item of
Equipment in the desired location. Lessee shall also be responsible for any
delivery, rigging, destination and installation charges charged by the
manufacturer or Supplier with respect to the Equipment.
7. OPERATION; USE; INSPECTION: For the full Lease Term, Lessee shall operate the
Equipment in accordance with all applicable manufacturer and Supplier manuals or
instructions by fully qualified and duly authorized personnel only, in
accordance with all applicable laws and regulations. The Equipment shall be used
for business purposes only and only for its normally intended purpose. For said
Lease Term, Lessee shall properly maintain the Equipment, or cause it to be
property maintained, by a fully qualified service company, and shall immediately
notify Lessor in writing of the entity maintaining the Equipment and of any
change of such entity. Such maintenance shall be performed in accordance with
all requirements necessary to enforce all product warranty rights. All operating
and maintenance costs with respect to the Equipment shall be borne by Lessee.
Lessee shall not: (a) use, operate or locate the Equipment in any area excluded
from coverage by any insurance required under the Lease; (b) abandon the
Equipment; (c) alter the Equipment; (d) permit the Equipment to be removed from
the equipment location specified in the Leasing Schedule (herein "Equipment
Location"), or any subsequent location, without the prior written consent of
Lessor, which consent shall not be unreasonably withheld; (e) without the prior
written consent of Lessor, allow the Equipment or any item of it to be affixed
to realty in such manner as to cause the Equipment or such item to become a
fixture; or (f) without the prior written consent of Lessor, affix or install
any accessory, equipment or device on any item of Equipment if such (i) is not
readily removable, or (ii) will impair the originally intended function or use
of such Equipment. All additions, repairs, parts, accessories, equipment and
devices attached or affixed to any item of Equipment which are not readily
removable, shall become the property of Lessor and part of the Equipment for all
purposes hereof. Lessor shall have the right from time to time during normal
business hours to enter upon the Equipment Location or elsewhere for the purpose
of confirming the existence, condition or proper maintenance of the Equipment.
8. RISK OF LOSS; INSURANCE: (a) Lessee agrees that it shall bear all risk of
loss, damage to or destruction of the Equipment. Lessee shall give Lessor prompt
notice of any damage to or loss of any Equipment or of any occurrence arising
from the possession, use or operation of the Equipment resulting in death or
bodily injury, or damage to property. In the event of damage to any item(s) of
Equipment, Lessee shall immediately place such item(s) in good repair (with no
abatement of Lease Payments) with the proceeds of any insurance recovery applied
to the cost of such repair. Should any item(s) of Equipment become lost, stolen,
destroyed, worn out, damaged beyond repair, condemned, confiscated, seized or
requisitioned (herein "Event of Loss"), Lessee shall, at the option of Lessor,
either (i) replace the same with like equipment in good repair (with no
abatement of Lease Payments), or (ii) pay to Lessor on the lease payment date
immediately following such Event of Loss, the pro rata portion relating to such
item(s) of the sum of (A) the remaining Lease Payments for the balance of the
Lease Term and (B) the purchase option price specified in the Leasing Schedule
(herein "Purchase Option Price"), such sum discounted at the per annum rate
implicit in the Lease assuming exercise by Lessee of any purchase option
contained in the Lease (herein "Lease Rate"), plus any other payments due from
Lessee to Lessor with respect to such item(s), whereupon the Lease shall
terminate as to such item(s) and Lessor shall adjust the remaining Lease
Payments and Purchase Option Price accordingly.
(b) For the full Lease Term, Lessee at its expense, shall maintain comprehensive
general liability insurance, and "fire and allied perils" and "all risks"
property insurance with respect to the Equipment (as primary insurance for
Lessee and Lessor), both in such amounts as Lessor shall require, except that
such property insurance shall be in an amount at least equal to the greater of
the full replacement value of the Equipment or the sum of the remaining Lease
Payments for the balance of the Lease Term; and such insurance shall be placed
with carriers
Page 2 of 4
acceptable to Lessor. The liability insurance policy shall name Lessor as
additional insured and the property insurance policy shall name Lessor as loss
payee to the extent its interest may appear, and both policies shall provide
that they may not be canceled or altered without at least thirty (30) days prior
written notice to Lessor. Lessee irrevocably appoints Lessor its agent and
attorney-in-fact for the purpose of adjusting and settling any property
insurance hereunder and endorsing in Lessee's name any instruments or payments
received in respect thereof. Lessee shall furnish to Lessor within thirty (30)
days of delivery of the Equipment, a certificate of insurance that such coverage
is in effect; however, Lessor shall be under no duty either to ascertain the
existence of or to examine such insurance policies or to advise Lessee in the
event that such insurance coverage does not comply with the requirements hereof.
9. DEFAULT AND REMEDIES: (a) Any of the following shall constitute a default by
Lessee under the Lease (herein "Default"): (i) failure by Lessee to pay any
amounts under the Lease when due and such remains unremedied for a period of ten
(10) days from the due date; or (ii) failure by Lessee to comply with any
provisions or perform any of its obligations arising under the Lease or under
any other documents or agreements relating to the Lease, and such remains
unremedied by Lessee for a period of twenty (20) days; or (iii) any
representations or warranties made or given by Lessee in connection with the
Lease or the Agreement, or any other document or agreement relating to the Lease
or the Agreement, were false or misleading in a material way when made; or (iv)
subjection of the Equipment to levy or execution or other judicial process which
is not or cannot be removed within thirty (30) days from the subjection thereof;
or the imposition of any unauthorized lien on or transfer of the Equipment by or
through Lessee; or (v) commencement of any insolvency, bankruptcy or similar
proceedings by or against Lessee or any guarantor of any of Lessee's obligations
under the Lease (herein "Guarantor"), including any assignment by Lessee or any
Guarantor for the benefit of creditors and in the case of any such involuntary
proceedings, such is not dismissed within thirty (30) days of institutions; or
the inability of Lessee to generally pay its debts as they become due; or (vi)
any act of Lessee which imperils the value of the Equipment or the prospect of
full performance of Lessee's obligations under the Lease, including but not
limited to the liquidation or dissolution of Lessee or the commencement of any
acts relative thereto, or without the prior written consent of Lessor, any sale
or other disposition of all or substantially all of the assets of Lessee, or any
merger or consolidation of Lessee unless Lessee is the surviving entity, or the
cessation of business by Lessee; or (vii) a default by Lessee under any other
agreement or note with Lessor, or with any assignee of the Lease; or (viii) the
death or dissolution of Lessee or of any Guarantor, the withdrawal of any
partner of Lessee if Lessee is a partnership, or the inability of Lessee or of
any Guarantor of the Lease to perform any of the obligations contained in the
Lease or in any applicable guaranty.
(b) Upon any Default, Lessor may exercise any one or more of the following
remedies (which remedies shall be cumulative to the extent permitted by law):
(i) terminate the Lease; (ii) declare all remaining Lease Payments for the
balance of the Lease Term discounted at the Lease Rate, plus all other amounts
due from Lessee, immediately due and payable in full, whereupon such shall
become immediately due and payable; (iii) secure peaceable repossession and
removal of the Equipment by Lessor or its agent without judicial process; (iv)
demand and Lessee shall return the Equipment to Lessor in accordance with
Section 11 hereof; (v) sell, lease or otherwise dispose of the Equipment at
public or private sale without advertisement or notice except that required by
law, upon such terms and at such place as Lessor may deem advisable and Lessor
may be the purchaser at any such sale; (vi) demand and Lessee shall pay all
expenses in connection with the Equipment relating to its retaking,
refurbishing, selling or the like; (vii) exercise any other right or remedy
which may be available to it under the Uniform Commercial Code or any other
applicable law. In the event that Lessor disposes of the Equipment pursuant to
this Section 9(b), Lessee shall be liable for any deficiency remaining after
such disposition and application of the resulting net proceeds, less the
Purchase Option Price discounted at the Lease Rate, to Lessee's obligations
under the Lease in the order of application as Lessor shall elect.
10. PURCHASE OPTION: Provided no Default has occurred and is continuing and
provided the Lease shall not have previously terminated, Lessee shall have the
option, exercisable by written notice to Lessor received by Lessor at least
ninety (90) but not more than one hundred eighty (180) days before the
expiration of the Lease Term, to purchase on the day following the last day of
such Lease Term (herein "Purchase Date"), all but not less than all of the
Equipment subject to the Lease for the Purchase Option Price. Provided Lessee
has exercised such option, Lessee shall pay to Lessor on the Purchase Date the
aforementioned purchase price in cash, together with all sales and other taxes
applicable to the transfer of the Equipment and any other amounts as may then be
due and owing under the Lease, whereupon Lessor shall transfer its interest in
the Equipment to Lessee without recourse or warranty, on an as-is, where-is
basis. In the event that Lessee fails to exercise such purchase option, Lessee
shall (upon termination of the Lease) return the Equipment to Lessor on demand,
in accordance with the provisions of Section 11 hereof.
11. RETURN OF EQUIPMENT: Upon demand of Lessor pursuant to Section 9 or 10
hereof, Lessee, at its own risk and expense, shall immediately return the
Equipment to Lessor, packed for shipment in accordance with manufacturer's
specifications, in good working order and eligible for manufacturer's
maintenance, if available, freight prepaid and insured, to such location within
the continental United States as Lessor shall designate.
12. LESSEE REPRESENTATIONS AND ASSURANCES: Lessee represents: that it is duly
organized and validly existing under the laws of its state of organization and
by consummation of the Lease transaction, Lessee is not in violation of any
governmental statute or regulation, nor will consummation of the Lease
transaction cause any breach, default or violation of the organizational or
charter documents or any judgment, decree or agreement, all as may apply to
Lessee; that the Lease transaction was duly authorized by all appropriate action
by Lessee; and the Lease is enforceable in accordance with its terms. Lessee s
hall promptly execute and deliver to Lessor such further documents and take such
further action as Lessor may reasonably request in order to more effectively
carry out the intent and purpose of the Lease. Lessee shall provide Lessor with
audited and other financial statements and such other information as Lessor
shall reasonably request from time to time.
13. NOTICES; CHANGES; SECURITY: Notices, requests or other communications
required under the Lease to be sent to either party shall be in writing shall be
(a) by United States first class mail, postage prepaid, and addressed to the
other party at the address specified above (or to such other address as such
party shall have designated by proper notice) or (b) by personal delivery.
Lessee consents to service of process by certified mail at its address above (or
to such other address as Lessee shall have designated by proper notice) in
connection with any legal action brought by Lessor. Lessee authorizes Lessor to
fill in descriptive material in the Lease (including serial numbers) and to
correct any patent errors under the Lease. In the event the Lease is deemed to
be intended as security, Lessor shall have, to secure all payments and all other
obligations of Lessee to Lessor under the Lease, a security interest in the
Equipment together with all accessions, attachments, replacements,
substitutions, modifications and additions thereto, now or hereafter acquired,
and all proceeds thereof (including insurance proceeds). Lessee shall execute
and authorizes Lessor to file with such authorities and at such locations as
Lessor may deem appropriate, Uniform Commercial Code financing statements
relating to the Equipment and/or the Lease, and Lessee agrees to reimburse
Lessor upon demand for all costs incurred relative thereto. In addition, Lessee
hereby irrevocably appoints Lessor its agent and attorney-in-fact to execute in
the name of Lessee and file any Uniform Commercial Code financing statements or
security agreements with respect to the Equipment in any place Lessor deems
necessary. Lessee also agrees that an original or a photocopy of the Lease
(including any addenda, attachments and amendments to the Lease) may be filed by
Lessor as a Uniform Commercial Code financing statement. Lessee
Page 3 of 4
agrees to immediately notify Lessor in writing of any change in Lessee's name or
address, identity, corporate structure, social security or taxpayer
identification number as applicable, or discontinuance of any of its places of
business.
14. ASSIGNMENT BY LESSOR: LESSOR MAY ASSIGN OR TRANSFER ALL OR ANY INTEREST OF
LESSOR IN THE LEASE OR THE EQUIPMENT WITHOUT NOTICE TO LESSEE. UPON NOTICE OF
SUCH ASSIGNMENT LESSEE AGREES TO PAY DIRECTLY TO ASSIGNEE WITHOUT ABATEMENT,
DEDUCTION OR SETOFF ALL AMOUNTS WHICH BECOME DUE UNDER THE LEASE AND FURTHER
AGREES THAT IT WILL NOT ASSERT AGAINST ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR
SETOFF FOR ANY REASON WHATSOEVER IN ANY ACTION FOR PAYMENT OR POSSESSION BROUGHT
BY ASSIGNEE. Upon any such assignment, such assignee (herein "Assignee") shall
have and be entitled to any and all rights and remedies of Lessor under the
Lease, all references in the Lease to Lessor shall include Assignee except that
Assignee shall not be chargeable with any obligations or liabilities of Lessor
under the Lease. Lessee acknowledges that any assignment or transfer by Lessor
shall not materially change Lessee's duties or obligations under the Lease nor
materially increase the burdens or risks imposed on Lessee. Lessee shall (if
requested by Lessor) acknowledge in writing any assignments (including any
material terms of the Lease) in a form supplied by Lessor.
15. MISCELLANEOUS: LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY
PART OF ITS RIGHTS OR OBLIGATIONS UNDER THE LEASE OR ENTER INTO ANY SUBLEASE OF
ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE WRITTEN CONSENT OF LESSOR. The
Lease shall be binding upon and inure to the benefit of the parties hereto,
their legal representatives, permitted successors and assigns. THE PARTIES
HERETO WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY LITIGATION ARISING FROM OR
RELATED IN ANY WAY TO THE AGREEMENT, LEASE, OR THE TRANSACTION CONTEMPLATED
HEREBY. No waiver of any provision of the Lease shall be effective unless in
writing, signed by the party to be charged. No failure to exercise, no delay in
exercising, and no single or partial exercise on the part of Lessor of any
right, remedy, or power under the Lease, shall operate as a waiver thereof or
preclude Lessor from exercising any other right, remedy or power under the
Lease. Any provision of the Lease which is unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability, without invalidating the remaining provisions of the Lease.
No action, regardless of form, arising out of the Lease may be brought by Lessee
more than two (2) years after the cause of action has accrued. The
representations, warranties, obligations and indemnities of Lessee under the
Lease shall survive the termination of the Lease to the extent required for
their full observance and performance. The obligations of each co-maker (if any)
of the Lease, shall be primary, joint and several. In the event that Lessee
fails to meet any of its obligations under the Lease, Lessor may at its option
satisfy such obligation and Lessee shall reimburse Lessor on demand therefor. In
the event that legal or other action is required to enforce Lessor's rights
under the Lease (including the exercise of remedies under Section 9 hereof),
Lessee agrees to reimburse Lessor on demand for its reasonable attorneys' fees
and its other related costs and expenses. In addition, notwithstanding any
applicable state laws to the contrary, Lessee agrees to reimburse Lessor for all
reasonable attorneys' fees incurred by it incident to any action or proceeding
involving the Lessee brought pursuant to the Bankruptcy Code, as amended, which
are allowable under Section 506(b) thereof. The captions in the Agreement are
for convenience only and shall not define or limit any of the terms hereof. THE
AGREEMENT AND THE LEASE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW JERSEY WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICT OF LAWS THEREOF.
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