Exhibit 10.10.1
[Logo] symbolease NO. F-96-801
MASTER LEASE AGREEMENT
Dated: August 19, 1996
LESSOR: SYMBOLEASE, INC. LESSEE: FACTORY CARD OUTLET OF AMERICA,
Ltd.
Principal place of business: Principal place of business:
One Symbol Plaza 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000 Xxxxxxxxxxx, XX 00000
The subject matter of the Agreement (the "Agreement") shall be Equipment
marketed by Symbol Technologies, Inc. ("Vendor") described in Exhibit A. Any
lease transaction requested by Lessee and accepted by Lessor shall be specified
in an Equipment Schedule ("Schedule"). A Schedule shall refer to and incorporate
by reference this Agreement and when signed by the parties, shall constitute the
Lease for the Equipment specified therein. The Schedule may include additional
terms and conditions as agreed upon between the parties, as well as amounts to
be financed. Financing may include software charges on Licensed Programs and/or
support services marketed by Vendor. Each Schedule shall constitute a separate
lease. The parties agree that each Schedule is a "Finance Lease" as defined by
ss.2A-103(g) of the Uniform Commercial Code.
1. AGREEMENT TERM. This Agreement shall be effective when signed by both parties
and may be terminated by either party with one month's prior written notice.
However, each Lease then in effect shall survive any termination of this
Agreement.
2 CREDIT REVIEW. For each Lease, Lessee consents to any reasonable credit
investigation and review by Lessor.
3. ASSIGNMENT TO LESSOR. Lessee hereby assigns, exclusively to Lessor, Lessee's
right to acquire the Equipment, Licensed Programs and/or support services from
Vendor. This assignment is effective when Lessor accepts the applicable Schedule
and Lessor shall then be obligated to purchase and pay for the Equipment.
If the Equipment is subject to a Volume Purchase Agreement or to another
discount offering, Lessor will pay the same amount for the Equipment that would
have been payable by Lessee.
4. SELECTION AND USE OF EQUIPMENT AND LICENSED PROGRAMS. Lessee agrees that it
shall be responsible for the selection, use of, and results obtained from, the
Equipment, licensed programs, and any other associated equipment, programs, or
services. Lessor has acquired the Equipment solely for the purposes of leasing
such products under the Schedule.
5. LESSEE'S OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. Lessee agrees that its
Monthly Rental and other obligations hereunder shall be irrevocable,
independent, absolute and unconditional and shall not be subject to any
abatement, reduction, recoupment, defense, offset or counterclaim otherwise
available to Lessee against Lessor, nor, except as otherwise expressly provided
herein or as agreed to by Lessor in writing, shall this Agreement terminate for
any reason whatsoever prior to the end of the Initial Period or the end of any
Automatic Renewal Period.
6. ASSIGNMENT.
a. LESSEE MAY ASSIGN THIS AGREEMENT OR ANY OF ITS RIGHTS HEREUNDER OR
SUBLEASE THE EQUIPMENT WITH THE PRIOR WRITTEN CONSENT OF LESSOR, which will not
be unreasonably withheld. NO PERMITTED ASSIGNMENT OR SUBLEASE SHALL RELIEVE
LESSEE OF ANY OF ITS OBLIGATIONS THEREUNDER. In no event shall Lessee remove the
Equipment from the United States.
x. Xxxxxx may sell and assign its rights and interests in any Equipment and
in any Schedule hereunder, to another party ("Lessor's Assignee") either
outright or as collateral security for loans. Upon notice of any such assignment
and instructions from Lessor, Lessee shall pay its Monthly Rental and perform
its other obligations hereunder to the Lessor's Assignee (or to another party
designated by Lessor's Assignee). Upon any such sale or assignment, LESSEE'S
OBLIGATIONS TO LESSOR'S ASSIGNEE UNDER THE ASSIGNED EQUIPMENT SCHEDULE SHALL BE
ABSOLUTE AND UNCONDITIONAL AND LESSEE WILL NOT ASSERT AGAINST LESSOR'S ASSIGNEE
ANY CLAIM, DEFENSE OR COUNTERCLAIMS WHICH LESSEE MIGHT HAVE AGAINST LESSOR.
Lessor's Assignee shall have all of the rights but none of the obligations of
Lessor under this Agreement. Notwithstanding Any assignment by Lessor, Lessor's
Assignee shall not be deemed to have assumed or to be obligated to perform any
of the obligations of Lessor.
In connection with any assignment by Lessor of its interest in the Equipment or
this Agreement, Lessee acknowledges that the assignment will not materially
change the duty of or materially increase the burden of risk imposed on Lessee.
Upon any such assignment, Lessee agrees to execute (i) any document reasonably
requested by Lessor acknowledging such assignment and affirming to Lessor's
Assignee basic provisions of this Agreement and the Schedule, and (ii) UCC-1
precautionary filings reasonably requested.
7. WARRANTIES. Lessor grants to Lessee the benefit of any and all warranties
made available by Vendor in the Agreement for Acquisition of Products and
Services. Lessor warrants that neither Lessor nor anyone acting or claiming
through Lessor, by assignment or otherwise, will interfere with Lessee's quiet
enjoyment of the use of the Equipment so long as no event of default shall have
occurred and be continuing. EXCEPT FOR LESSOR'S WARRANTY OF QUIET ENJOYMENT,
LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL LESSOR'S LIABILITY OF ANY
KIND INCLUDE ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF
LESSOR HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
8. TAXES. Lessee shall pay to Lessor an amount equal to all taxes paid, payable
or required to be collected by Lessor, however designated, which are levied or
based on the Monthly Rental or on the possession, use, operation lease, rental,
sale, purchase, control or value of the Equipment, including, without
limitation, registration and license fees and assessments, state and local
privilege or excise taxes, sales and use taxes, personal and other property
taxes, and taxes or charges based on gross revenue, but excluding taxes based on
Lessor's net income. Lessor shall invoice Lessee for all such taxes and Lessee
shall promptly remit to Lessor all such taxes and charges upon receipt of such
invoice from lessor. Lessee shall pay all penalties and interest resulting from
its failure to timely remit such taxes to Lessor when invoiced by Lessor and to
pay all subsequent penalties and interest due from any adverse rulings from
taxing authorities due to a failure to classify the lease properly for tax
and/or accounting purposes. Lessor shall file all required sales and use tax and
personal property tax returns and reports concerning the Equipment with all
applicable governmental agencies. It is the Lessee's responsibility at the time
the order is placed to provide Lessor with documentation required by the taxing
authorities to sustain any tax exemptions.
9. LESSEE AUTHORIZATION. So long as Lessee is not in default under the Lease (a)
Lessee is authorized to act on Lessor's behalf concerning delivery and
installation of the Equipment, any Vendor warranty service of the Equipment, and
any Licensed Program support services, and (b) Lessee shall have, solely for
these purposes, all rights Lessor may have against Vendor under the Agreement
for Acquisition of Products and Services. The foregoing authorization shall not
constitute any surrender of Lessor's interest in the Equipment.
10. LEASE TERM. The Initial Term of the Lease shall expire at the end of the
number of Payment Periods, specified as "Term" in the Schedule, after the
Commencement Date. Commencement Date, for purposes of this Agreement, is defined
as the first day of the month following the date in which Vendor has the
Equipment installed, ready for use and has successfully completed Vendor's
installation procedures (the "Acceptance Date"). Thereafter, the term of this
Agreement for all such Equipment shall be automatically extended for successive
twelve-month periods ("Automatic Renewal Periods") on the terms and conditions
which are set forth in this Agreement and the Schedule unless and until
terminated by either party giving to the other not less than three 13) months
prior written notice. Any such termination shall be effective only on the last
day of the Initial Period or the last day of any Automatic Renewal Period.
2
11. RENT AND PAYMENT. As to any Equipment leased thereunder. the "Monthly
Rental" payable by Lessee to Lessor shall be set forth in the applicable
Schedule. The Monthly Rental shall begin on the Acceptance Date and shall be
payable by Lessee in advance on the first day of each month throughout the
Initial Period and any Automatic Renewal Period. Lessee's obligation to pay
shall begin on the Acceptance Date. Rent will be invoiced in advance of the
first day of the Payment Period. When the Acceptance Date is not on the first
day of a calendar month, the applicable payment will be prorated on the basis of
30-day months. Lessee shall pay all Monthly Rental to Lessor, its successors or
assigns, at Lessor's address set forth above (or as otherwise directed in
writing by Lessor, its successors or assigns), whether or not Lessee has
received any notice that such payment is due. LESSEE SHALL NOT XXXXX, SET OFF,
OR DEDUCT ANY AMOUNT OR DAMAGES FROM OR REDUCE ANY MONTHLY RENTAL FOR ANY REASON
WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, ITS SUCCESSORS OR ASSIGNS.
Late charges on any past due payments, taxes or other charges hereunder shall
accrue at the rate of 2% per month or if such rate shall exceed the maximum rate
allowed by law, then at the highest rate that is permitted to be charged on
liquidated amounts after judgement) beginning with the date that such amount was
due and continuing until the amount is paid. If late charges are assessed by a
lending institution due to any late payment, Lessee agrees to pay such late
charges or to reimburse Lessor for their payment.
12. OWNERSHIP AND INSPECTION.
a. The Equipment shall at all times remain the property of Lessor or its
assigns. By this Agreement, Lessee acquires no ownership rights in the
Equipment. Lessor may affix (or require Lessee to affix) tags, decals or plates
to the Equipment indicating Lessor's ownership and Lessee shall not permit their
removal or concealment.
b. Licensed Programs are licensed and provided by Vendor directly to Lessee
under the terms and conditions of the Agreement for Acquisition of Products and
Services.
c. LESSEE SHALL KEEP THE EQUIPMENT AND LESSEE'S INTEREST UNDER THIS
AGREEMENT FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES, EXCEPT THOSE PERMITTED
BY LESSOR OR ITS ASSIGNS.
x. Xxxxxx, its assigns and their agents shall have free access to the
Equipment at all reasonable times during normal business hours for the purpose
of inspecting the Equipment and for any other purpose contemplated in this
Agreement.
13. USE, ALTERATIONS AND ATTACHMENTS.
a. After Lessee receives and inspects any Equipment and the Equipment has
been verified by Lessee to Lessor to be operational according to the Vendor
published specifications, Lessee shall execute and deliver to Lessor an
Acceptance Certificate in a form provided by Lessor; provided, however, that
Lessee's failure to execute and deliver an Acceptance Certificate for any
Equipment shall not affect the validity of this Agreement with respect to the
Equipment.
b. Lessee shall be entitled to unlimited usage of the Equipment which is
leased solely for commercial or business purposes, during the Initial Period,
the Automatic Renewal Periods and any extension or renewal periods approved by
Lessor in writing.
c. Lessee will at all times keep the Equipment in its sole possession and
control. Removal from the location stated in the Schedule requires prior written
consent of the Lessor.
d. Lessee shall cause the Equipment to be installed, used, operated and at
the termination of this Agreement as to each Equipment Schedule, allow Lessor to
deinstall the Equipment for removal.
e. Alterations in or additional attachments to the Equipment requires prior
written consent of Lessor. Any such alterations or attachments shall be made at
Lessee's expense and shall not interfere with the normal and satisfactory
operation or maintenance of the Equipment. Vendor may incorporate engineering
changes or make temporary alterations to the Equipment upon request of Lessee.
Unless Lessor shall otherwise agree in writing, all such alterations and
attachments shall be and become the property of Lessor or, at the option of
Lessor, shall be removed by Lessee at the termination of this Agreement as to
such Equipment and Equipment restored at Lessee's expense to its original
condition, reasonable wear and tear only excepted.
f Lessee acknowledges that the Equipment is and shall remain personal
property during the term of this Agreement. Lessee shall not permit the
Equipment to become an accession to other goods or a fixture to, or part of, any
real property.
3
4. MAINTENANCE AND REPAIRS; RETURN OF EQUIPMENT.
a. During the continuance of this Agreement and at its expense, Lessee (i)
shall keep the Equipment in good repair, working order and condition; (ii) shall
make all necessary adjustments, repairs and replacements; (iii) shall furnish
all required parts, mechanisms, devices and servicing; and (iv) shall not use or
permit the Equipment to be used for any purpose for which in the opinion of
Vendor, the Equipment is not designed or reasonably suitable. Such parts,
mechanisms and devices shall immediately become a part of the Equipment for all
purposes hereunder.
b. During the continuance of this Agreement and at its own expense, Lessee
shall enter into and maintain in force a contract with Vendor for maintenance of
each item of Equipment. Such contract as to each item shall be in place prior to
shipment with a commencement date at the expiration of Vendor's warranty period,
if any, relating to such item.
c. At the termination of this Agreement and at its expense, Lessee shall
return the Equipment to Lessor at the location within the continental United
States designated by Lessor. Upon such return, the Equipment shall be in the
same operating order, repair, condition, and appearance as on the Acceptance
Date, excepting reasonable wear and tear from proper use thereof including all
engineering changes theretofore prescribed by Vendor. Lessee shall provide
maintenance qualification letters and/or arrange for and pay the cost of repairs
which are necessary for Vendor to accept the Equipment under contract
maintenance at its then standard rates.
15. UPGRADES. Lessee shall have the option to upgrade the Equipment specified in
any Schedule at any time after ninety (90) days following the Commencement Date
providing that Lessee provides Lessor with ninety (90) days prior written notice
of its intention to upgrade. For the purposes of this provision, an upgrade will
be considered to be equipment manufactured by the Lessor that replaces the
Equipment specified on the Equipment Schedule to be upgraded. The new lease rate
will be determined by the Lessor.
16. EQUIPMENT ADDITIONS. Lessee shall have the option to add equipment to the
Equipment specified in any Schedule providing that the Lessee provides Lessor
with ninety (90) days prior written notice of its intent to make such additions.
For purposes of this provision, equipment additions will be considered to be
parts, features or model changes manufactured by Vendor that can be added to the
existing Equipment on any Schedule to provide increased capacity and/or
performance. The lease rate for the equipment additions will be determined by
the Lessor.
17. PURCHASE OPTION. Assuming no Event of Default shall have occurred and be
continuing, at the end of the Initial Term or end of any renewal term, the
Lessee may, with ninety 190) days prior written notice to the Lessor, purchase
all, but not less than all, of the Equipment listed in any Schedule at then Fair
Market Value of the Equipment.
18. RISK OF LOSS ON LESSEE. From and after the date that the Equipment is
installed and until the Equipment is returned to Lessor as provided in this
Agreement, Lessee shall bear all risk of loss, to the Equipment, howsoever
caused. If any item of Equipment is rendered unusable as a result of any
physical damage to or destruction of the Equipment or if any item of Equipment
is lost or stolen, then:
a. Lessee shall give Lessor immediate notice thereof, and this Agreement as
to such item shall continue in full force and effect without any abatement of
any Monthly Rental. Lessee shall determine and notify Lessor, within fifteen
(15) days after the date of occurrence, whether such item of Equipment can be
repaired.
b. If Vendor determines that such item of Equipment can be repaired, Lessee
shall request Vendor at Lessee's expense to have such item of Equipment promptly
repaired.
c. If Vendor determines that the item of Equipment cannot be repaired or if
the item of Equipment is lost or stolen, then Lessee shall, at its expense,
promptly replace such item of Equipment with like Vendor equipment having a
comparable or greater value and convey title to such replacement to Lessor free
and clear of all liens and encumbrances, whereupon this Lease shall continue in
full force and effect as though such loss, damage, theft or destruction had not
occurred.
All proceeds of insurance received by Lessor or Lessee under any insurance
policy shall be applied toward the cost of any such repair or replacement.
4
19. LIABILITY INSURANCE. Lessee shall obtain and maintain comprehensive general
liability insurance, in an amount of $1,000,000 or more for each occurrence,
with an insurer having a "Best's Policyholders" rating of B+ or better. The
policy shall name Lessor as an additional insured as Lessor's interests may
appear and shall contain clause requiring the insurer to give Lessor at least
one month's prior written notice of the cancellation, or any alteration in the
terms, of the policy. Lessee shall furnish to Lessor, upon request, evidence
that such insurance overage is in effect.
20. GENERAL INDEMNITY. This lease is a net lease. Therefore, Lessee shall
indemnify Lessor against, and old Lessor harmless from, any and all claims,
actions damages, obligations, liabilities and liens; and all costs and expenses
including legal fees, incurred by Lessor in connection therewith; arising out of
the Lease including, without limitation, the purchase, ownership, lease,
licensing, possession, maintenance, condition, use or return of the Equipment or
Licensed Programs; or arising by operation of law; excluding, however, any of
the foregoing which result from the sole negligence or willful misconduct of
Lessor. Lessee agrees that upon written notice by Lessor of the assertion of any
claim, action, damage, obligation, liability or lien, Lessee shall assume full
responsibility of the defense thereof. Any payment pursuant to this paragraph
shall be of such amount as shall be necessary so that, after payment of any
taxes required to be paid thereon by Lessor, including taxes on or measured by
the net income of Lessor, the balance will equal the amount due hereunder. The
provisions of this paragraph with regard to matters arising during the Lease
shall survive the expiration or termination of the Lease.
21. EVENTS OF DEFAULT. The occurrence of any one or more of the following events
(each an "Event of Default") shall constitute a default under this Agreement:
a. Lessee fails to pay any Monthly Rental when the same becomes due and
such failure shall continue uncured for thirty (30) days after written notice
thereof is given to Lessee;
b. Except as expressly provided herein, Lessee attempts to, or does,
remove, sell, assign, transfer, encumber, sublet or part with possession of any
one or more items of the Equipment, or any interest under this Agreement, except
as expressly permitted herein.
c. Through the act or omission of Lessee, any item of Equipment is subject
to any levy, seizure, attachment assignment or execution; or Lessee abandons any
item of Equipment.
d. Lessee fails to observe or perform any of the other obligations required
to be observed or performed by Lessee hereunder and such failure shall continue
uncured for ten (10) days after written notice thereof is given to Lessee.
e. Lessee's representations and warranties made in this Agreement or in
connection herewith shall be false or misleading in any material respect.
f. Lessee ceases doing business as a going concern, makes an assignment for
the benefit of creditors, in insolvent, admits in writing its inability to pay
its financial obligations as they become due, files a voluntary petition in
bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking
for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar arrangement under any present or future
statute, law or regulation or files an answer admitting the material allegations
of a petition filed against it in any such proceeding, consents to or acquiesces
in the appointment of a trustee, receiver or liquidator of it or of all or any
substantial part of its assets or properties, or if it or its shareholders shall
take any action looking to its dissolution or liquidation.
g. Within thirty (30) days after the commencement of any proceedings
against Lessee seeking reorganization, arrangement, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, such proceedings shall not have been dismissed, or if within thirty
(30) days after the appointment without Lessee's consent or acquiescence of any
trustee, receiver or liquidator of it or of all or any substantial part of its
assets and properties, such appointment shall not be vacated.
5
22. REMEDIES. Upon the occurrence of an Event of Default, Lessor shall have the
option, with or without giving notice to Lessee, to do any one or more of the
following;
a. Lessor may enforce this Agreement according to its terms;
x. Xxxxxx may cause Vendor to refuse to deliver the Equipment to Lessee;
c. By notice to Lessee, Lessor may terminate this Agreement as to any or
all Schedules;
d. Lessee shall remain fully liable for and shall pay Lessor for (i) all
sums due and payable under the Schedule for all periods up to and including the
date on which Lessor has declared this Agreement to be in default; (ii) all
costs and expenses incurred by Lessor on account of such default, including, but
not limited to, all court costs and reasonable attorneys' fees; and (iii) all
reasonable damages as provided by law (collectively "Lessor's Damages").
e. Whether or not this Lease is terminated as to any or all Equipment
Schedules, Lessor may (i) take possession of any or all of the Equipment listed
on any or all Schedules, wherever situated, and for such purpose, subject to
Lessee's security regulations, Lessor may enter upon any of Lessee's premises
without any court order and without liability for so doing (Lessee hereby waives
any action for trespass or damages by reason of such entry or taking
possession); (ii) without removal, render the Equipment unusable and dispose of
the same on Lessee's premises or (iii) cause Lessee (and Lessee hereby agrees)
to assemble the Equipment and either make it available to Lessor at a place
designated by Lessor or return it to Lessor as provided in this Agreement.
x. Xxxxxx may xxx for and recover all rents and other payments that accrue
after the occurrence of the Event of Default, as the same become due;
x. Xxxxxx may recover from Lessee, as liquidated damages ("Liquidated
Damages") for loss of a bargain and not as a penalty, an amount equal to the
present value of all future Monthly Rentals to be paid by. Lessee during the
remainder of the Initial Period or any Automatic Renewal Period then in effect,
discounted at the rate of eight percent (8%) per annum, which payment shall
become immediately due and payable;
x. Xxxxxx may sell, dispose of, hold, use or lease any Equipment as Lessor
in its sole discretion may determine without any duty, except as provided below,
to account to Lessee. Lessee may purchase at any such sale, and Lessor shall not
be obligated to give preference to the sale, lease or other disposition of the
Equipment over the sale, lease or other disposition of similar equipment owned
by or leased by or through Lessor.
The rights and remedies afforded Lessor hereunder shall not be deemed to be
exclusive, but shall be in addition to any rights or remedies provided by law,
Lessor's failure promptly to enforce any right hereunder shall not operate as a
waiver of such rights and Lessor's waiver or any default shall not constitute a
waiver of any subsequent or other default. Lessor may accept late payments or
partial payments of amounts due under this Agreement and may delay enforcing any
of Lessor's rights hereunder without losing or waiving any of Lessor's rights
under this Agreement.
23. TAX INDEMNIFICATION. The Lease is entered into on the basis that under the
Internal Revenue Code of 1986, as amended (Code), Lessor shall be entitled to
(1) maximum Modified Accelerated Cost Recovery System (MACRS) deduction for
5-year property, and (2) deductions for interest expense incurred to finance
purchase of the Equipment, and 13) Gross Profit Tax Deferral.
Lessee represents, warrants, and covenants that at all times during the Lease:
a. No item of Equipment will constitute "public utility property as defined
in the Code;
b. Lessee will not make any election under the Code or take any action, or
fail to take any action, if such election, action or failure to act would cause
any item of Equipment to cease to be eligible for any MACRS deductions or
interest deductions;
6
c. Lessee will keep and make available to Lessor the records required to
establish the matters referred to in this Paragraph 23; and
Furthermore, if Lessee is a tax exempt entity, Lessee covenants that it will not
renew or extend the Lease if such action shall cause Lessor a Tax Loss as
described below.
If, as a result of any act. failure to act, misrepresentation, inaccuracy, or
breach of any warranty or covenant, or default under the Lease. by Lessee, an
affiliate of Lessee. or any person who shall obtain the use or possession of any
item of Equipment through Lessee, Lessor shall lose the right to claim or shall
lose the right to claim or shall offer any disallowance or recapture of all or
any portion of any MACRS deductions or interest deductions (Tax Loss) with
respect to any item of Equipment, then, promptly upon written notice to Lessee
that a Tax Loss has occurred, Lessee shall reimburse the Lessor for the amount
determined below.
The reimbursement shall be an amount that, in the reasonable opinion of Lessor,
shall make Lessor's after-tax rate of return and cash flows (Financial Returns),
over the term of the Lease for such item of Equipment. equal to the expected
Financial Returns that would have been otherwise available. The reimbursement
shall take into account the effects of any interest, penalties and additions to
tax required to be paid by Lessor as a result of any payments pursuant to this
paragraph. Financial Returns shall be based on economic and tax assumptions used
by Lessor in entering into the Lease.
All the rights and privileges of Lessor arising from this Paragraph 23 shall
survive the expiration or termination of he Lease.
For purposes of determining tax effects under Paragraphs 8, 17, and 23, the term
"Lessor" shall include, to the extent of interests, any partner in Lessor and
any affiliated group of corporations. and each member thereof, of which Lessor
or any such partner is or shall become a member and with which Lessor or any
such partner joining the filing or consolidated or combined returns or any
entity acquiring Equipment, Licensed Program and/or support services from
Lessor.
24. GENERAL.
a. Integration. All schedules or riders to this Agreement; Schedules
executed hereunder; schedules or riders attached to Schedules; other documents
referred to in Schedules and Acceptance Certificates, whether they are signed
before, on or after the date of this Agreement. are incorporated into this
Agreement by this reference. Such documents appertaining to any Schedule and
this Agreement constitute the entire agreement between the parties with respect
to the items of Equipment listed on such Schedule.
b. Modification. This Agreement may not be amended or modified except by a
writing signed by a duly authorized representative of each party.
c. Integration. The provisions of this Agreement shall be deemed to be
independent and severable. The invalidity or partial invalidity of any one
provision or portion of this Agreement under the laws of any jurisdiction shall
not affect the validity or enforceability of any other provisions of this
Agreement. The captions and headings set forth herein are for convenience of
reference only and shall not define or limit any of the terms hereof.
d. Notices. Notices hereunder shall be in writing and addressed to the
other party at the address herein or such other address provided by Notice
hereunder and shall be effective Ii) upon the next business day, if sent by
guaranteed overnight express service (such as Federal Express); (ii) on the same
day, if personally delivered; or (iii) three days after mailing, if sent by
certified or registered U.S. mail, postage prepaid and addressed to the other
party.
e. Governing Law. This Lease shall be governed by the laws of the State of
New York.
f. Binding Effect. The provisions of this Agreement shall inure to the
benefit of and shall bind Lessor and Lessee and their respective permitted
successors and assigns.
g. Financing Statements. Lessee shall sign and deliver to Lessor one or
more financing statements, supplements thereto and other instruments in order to
establish, perfect. extend and/or enforce the parties' interests in the
Equipment and under this Agreement. A photocopy of this Agreement shall be
sufficient as, and may be filed as, an original financing statement. If Lessee
defaults hereunder, then Lessor shall automatically be constituted as Lessee's
attorney-in-fact for the purpose of carrying out the provisions of this
paragraph.
7
h. Audited Financial Statements. Upon request, Lessee shall provide to
Lessor a copy of its annual audited financial statements.
i. Provisional Security Interest. In the event a court of competent
jurisdiction or other governing authority shall determine that this Agreement is
not a "true lease" or that Lessor (or its assigns) does not hold legal title to
or is not the owner of the Equipment, then this Agreement shall be deemed to be
a security agreement with Lessee, as debtor, having granted to Lessor, as
secured party, a security interest in the Equipment effective the date of this
Agreement; and Lessor shall have all of the rights, privileges and remedies of a
secured party under the New York Uniform Commercial Code.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the day and
year first above written.
LESSOR: SYMBOLEASE, INC. LESSEE: FACTORY CARD OUTLET OF AMERICA,
LTD.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------- --------------------------------
(signature) (signature)
Print: Xxxxx X. Xxxxx Print: Xxxx X. Xxxxxxx
-----------------------------
Executive Vice President
Title: President Title: Chief Administrative Officer
-----------------------------
Date:_______________________ Date: August 26, 1996
8
[LOGO] SYMBOLEASE
--------------------------------------------------------------------------------
EQUIPMENT SCHEDULE NO.9591999-1 (Modified 10/7/96)
DATED: August 19,1996
This Equipment Schedule ("Schedule") is executed in connection with Master Lease
Agreement No. F-96-801, dated August 19. 1996, ("Master Lease") between
SymboLease, Inc. ("Lessor") and Factory Card Outlet of America, Ltd. ("Lessee").
and incorporates by reference the terms and conditions of the Master Lease. When
signed by Lessor and Lessee, this Schedule shall constitute a lease for the
Equipment described herein.
1. EQUIPMENT: See Attachment "A"
2. EQUIPMENT LOCATION: See Attachment "B"
3. ACCEPTANCE DATE: September 15, 1996
4. COMMENCEMENT DATE: October 1, 1996
5. INTERIM RENT: N/A
6. INITIAL PERIOD: 49 Months
7. ORIGINAL EQUIPMENT COST: $1,246,656.
8. MONTHLY RENTAL: Forty-eight monthly rentals of $30,688.43 each
plus all applicable taxes and one monthly rental
of $24,933.12 each plus applicable taxes -
maintenance beyond the factory warranty period
is not included in this lease.
Initial Period: $30,688.43 (plus all applicable
taxes and freight)
9. OPTIONS: At the expiration of the initial period, Lessee
has the four following options: 1)Renew the
lease for additional years at a lease rate
factor to be determined; 2)Upgrade to new Symbol
technology on a replacement basis under a new
lease schedule; 3)Purchase the equipment for the
then fair market value, not to exceed nine
percent (9%) of the Original Equipment Cost;
4)Return the equipment to a location specified
by the Lessor.
LESSOR: SYMBOLEASE, INC. LESSEE: FACTORY CARD OUTLET OF AMERICA,
LTD.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------- --------------------------------
Xxxxx X. Xxxxx
Title: President Title: Executive Vice President
-----------------------------
Date:_______________________ Date: 10/14/96
-----------------------------
ATTACHMENT A
Equipment List for Equipment Schedule No 9591999-1
Forming Part of Master Lease #F-96-801
Qty Description of Equipment Product Number
--- ------------------------ --------------
536 Symbol Technologies L59100 Scanners SYM-002A09805
141 Symbol Technologies 3100 Batch Terminals SYM-PDT3100-S0824010
141 Symbol Technologies Single Xxxx Xxxxxxx XXX-XXX-0000-000X
000 Xxxx Modem Cable 25M SYM-59846-03-00
141 NiMH Rechargeable Batteries SYM-KT- 12596-02
141 Printer Cable SYM-25-10413-0l
1 Application Development Kit SYM-SW-10441-04
141 Rascal Printers MON-9450-04
1 Rascal Programming Guide MON-M09459-1
