MASTER EQUIPMENT LEASE
EXHIBIT
10.1
Lease
Date: November
5, 2007
Lessee:
Premier
Oncology Management of Nassau, LLC, a limited
liability company
organized and registered under the laws of the State of New
York.
Organizational Identification Number (if any): N/A
(Note:
this number is not
the same
as the Taxpayer Identification Number.)
Chief
executive office/residence: 0
Xxxxxxxxxx Xxxxx, Xxxxx 00 Xxxxx, Xxxxx 00, Xxxxxx, Xxx Xxxxxx
00000.
Lessor:
M&T
Credit Services, LLC, a New York limited liability company having its chief
executive office at One M&T Plaza, Buffalo, New York 14203, Attn: Counsel’s
Office.
1. Lease.
Subject
to the terms hereof, Lessor shall lease to Lessee, and Lessee shall lease from
Lessor, the units of personal property described on each Equipment Schedule
together with all substitutions, replacements, repairs, upgrades, additions,
accessories, products and proceeds (collectively, the “Equipment” and
separately, a “Unit”) described on each Equipment Schedule (each an “Equipment
Schedule” or “Schedule”) now or hereafter attached hereto, each of which shall
incorporate all the terms and conditions of this Master Equipment Lease. Where
rights to receive license fees for Software (as described below) and charges
for
Services (as described below) supplied or to be supplied to Lessee are included
in the amount financed by Lessor under the Lease, references to leasing,
purchasing, ownership and administration of Equipment under the Lease shall
be
broadly interpreted to include such Financed Fees (as defined below). “Software”
means the software and all related documentation, corrections, updates and
revisions used in connection with Equipment financed under a Schedule.
“Services” means all training, installation, transportation, handling,
maintenance, custom programming, integration, technical consulting and support
services relating to Equipment and specified on a Schedule. “Financed Fees”
means the Software license, usage or other fees and the charges for Services,
if
any, specified on a Schedule. Each Schedule shall constitute a separate lease
and the term “Lease” as used below shall refer to an individual Schedule which
incorporates this Master Equipment Lease, together with the Certificate of
Acceptance for that Schedule. In case of inconsistency, the terms of the
Schedule shall control.
2. Term.
The Term
of this Lease shall consist of (i) the Interim Term, if any, and
(ii) the Base Term. The Interim Term, if any, shall commence on the date of
the Lessee’s execution of the Certificate of Acceptance (provided such date is
other than the first of the month) (“Acceptance Date”) and shall extend to the
last day of that month (the “Interim Term”). The Base Term shall commence on the
first day of the month following the Interim Term, if any, and shall continue
for the number of periods specified on the Schedule (the “Base Term”). If the
Acceptance Date is the first day of the month there shall be no Interim Term.
Lessor is authorized to enter the commencement date and other ministerial
information on the Schedule upon receipt of the Certificate of Acceptance.
The
terms and conditions of this Lease shall continue in effect during any renewal
term.
3. Rent;
Late Charge.
Lessee
agrees to pay directly to Lessor at the above address or to Lessor’s assignee
the rental payments plus any interim rent as specified on the Equipment Schedule
together with all other amounts which may become due under this Lease (the
“Rent”). All Rent shall be paid without notice, setoff or demand. If any Rent is
not received within five (5) days of the due date, Lessor may charge and Lessee
shall be obligated to pay a late charge in the amount specified on the Schedule,
or, if none is so specified, five percent (5%) of the delinquent
amount.
4. Net
Lease; Lessee’s Obligations Absolute.
This
Lease is a net lease. Lessee’s obligation to pay Rent shall be absolute and
unconditional and shall not be subject to any abatement, deferral, reduction,
defense, counterclaim, setoff or recoupment for any reason, including without
limitation any claim against the manufacturer or loss of possession or use
of
the Equipment.
5. Disclaimer
of Warranties; Lessee’s Obligations.
LESSEE
ACKNOWLEDGES THAT FOR THE PURPOSES OF UCC ARTICLE 2A THIS IS A STATUTORY FINANCE
LEASE AND LESSOR IS NOT AN AGENT OF THE MANUFACTURER OR VENDOR OF THE EQUIPMENT
NOR A LICENSOR. LESSEE SELECTED THE EQUIPMENT AND VENDOR OR LICENSOR. LESSEE
IS
SATISFIED THAT THE EQUIPMENT IS SUITABLE AND FIT FOR LESSEE’S PURPOSES. LESSOR
MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED, AS TO, WITHOUT LIMITATION, QUALITY,
CONDITION, MERCHANTABILITY, DESIGN, CAPACITY, WORKMANSHIP OR PERFORMANCE OF
THE
EQUIPMENT, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. No defect or unsuitability
of the Equipment or delay in delivery shall relieve Lessee of the obligation
to
pay Rent or any other obligation under this Lease. Lessor hereby assigns to
Lessee any interest it may have in manufacturers’ warranties which Lessee may
enforce in Lessee’s name and at Lessee’s sole expense. Lessee knows it may have
rights under any vendor purchase documents and can contact the vendor if any
for
a description of such rights.
6. Assignment.
LESSEE
MAY NOT ASSIGN, SUBLEASE, TRANSFER OR DISPOSE OF ANY OF ITS RIGHTS UNDER THIS
LEASE without Lessor’s prior written consent. LESSEE SHALL REMAIN PRIMARILY
LIABLE ON THE LEASE. Lessor may assign this Lease without Lessee’s consent and
Lessee admits that such assignment constitutes no material increase in Lessee’s
duties or risk and Lessee would not object even if it did. Lessor will provide
Lessee with notice of any such assignment. Lessee’s obligations under the Lease
shall constitute a direct, independent and unconditional obligation of Lessee
to
any assignee of Lessor. Lessee agrees that any assignee shall have the right
to
exercise all rights, privileges and remedies (either in its own name or in
the
name of Lessor) which by the terms of this Lease are permitted to be exercised
by Lessor.
7. Title;
No Other Liens; Security Interest.
Lessor
has and will retain good and marketable title to and a residual interest in
the
Equipment and not merely a security interest in it. Lessor and Lessee do not
intend this Lease as a disguised installment sale or disguised security
agreement. Title to any replacement parts or integral additions to the Equipment
shall automatically vest in Lessor. In the event that this transaction shall
be
determined to be something other than a “True Lease”, Lessee hereby grants to
Lessor and any assignee of Lessor a continuing security interest in all of
Lessee’s right, title and interest in and to the Equipment, together with any
and all proceeds of the Equipment or other tangible and intangible property
of
Lessee resulting from the sale (authorized or unauthorized) or other disposition
of the Equipment. Lessee further agrees and covenants not to create or permit
any lien or other encumbrance upon the Equipment or this Lease other than
assignee’s interest, and agrees that if Lessee breaches this covenant assignee
may cancel this Lease. Lessor’s ownership interest in and title to the Equipment
shall not be impaired though Lessee’s name may appear on the title
certificate.
8. Risk
of Loss.
Lessee
assumes the entire risk of loss to the Equipment. Lessee shall advise Lessor
in
writing promptly of the circumstances and extent of any damage. If the Equipment
is irreparably damaged, lost, stolen or taken by eminent domain or otherwise,
Lessee shall, at Lessor’s option, (a) replace it with like equipment
approved by Lessor and transfer title to such replacement item to Lessor, or
(b) pay to Lessor all Rent due and to become due, less the net amount of
any recovery actually received by Lessor from insurance or otherwise. When,
in
Lessor’s sole discretion, the Equipment can be repaired, Lessee shall at its
expense promptly effect such repairs as Lessor deems necessary for compliance
with this Lease. Any insurance proceeds received by Lessor for repair of the
Equipment shall, at Lessor’s option, be paid either directly to the party
completing the repairs, or to reimburse Lessee for the cost of such repairs;
provided, however, that Lessor shall have no obligation to make any payment
until receipt of evidence satisfactory to Lessor that such repairs have been
completed; and further provided that Lessor may apply such proceeds to the
payment of Rent if there shall have occurred and be continuing an Event of
Default or any event which with lapse of time or notice, or both, would become
an Event of Default. Lessee shall, upon Lessor’s request, undertake, by
litigation or otherwise, in Lessee’s name, the collection of any claim against
any person for such loss or taking, but Lessor shall not be obligated to
undertake the collection of any such claim.
9. Representations
and Warranties of Lessee.
9.1 Authority.
If
Lessee is a business entity, it is duly organized, validly existing and in
good
standing under the laws of the above-named state of organization. Lessee has
the
full power and authority to execute, deliver and perform its obligations in
accordance with this Lease. The execution and delivery of this Lease will not
(i) violate any applicable law of any governmental authority or any
judgment or order of any court, other governmental authority or arbitrator;
(ii) violate any agreement governing Lessee or to which Lessee is a party.
Lessee’s certificate of incorporation, by-laws or other organizational documents
do not prohibit any term or condition of this Lease. Each authorization,
approval or consent from, each registration and filing with, each declaration
and notice to, and each other act by or relating to, any party required as
a
condition of Lessee’s execution, delivery or performance of this Lease
(including any shareholder or board of directors or similar approvals) has
been
duly obtained and is in full force and effect. Lessee has the power and
authority to transact the business in which it is engaged and is duly licensed
or qualified and in good standing in each jurisdiction in which the conduct
of
its business or ownership of property requires such licensing or such
qualifications.
10. Maintenance
and Repairs; Business Purpose Only.
Lessee
at its sole expense shall cause the Equipment to be maintained and kept in
good
repair according to the manufacturer’s specifications. Lessee shall use the
Equipment only in the manner and for the BUSINESS
PURPOSES
for
which it was designed and intended.
11. Insurance.
Lessee
shall maintain at its own expense and at all times property damage, fire, theft
and comprehensive insurance for the full replacement value of the Equipment
with
loss payable provisions in favor of Lessor as loss payee as its interests may
appear and maintain public liability insurance in the amounts required by Lessor
for the relevant Schedule, naming Lessor as additional insured, all under
policies in form, substance and amount and written by companies approved by
Lessor. All policies will require thirty (30) days’ prior written notice to
Lessor of any amendment or cancellation. If Lessee fails to obtain the insurance
as provided herein, Lessor may, but is not obligated, to obtain such insurance
as Lessor may deem appropriate including, if it so chooses, “single interest
insurance” which will cover only Lessor’s interest in the Equipment. Lessee
shall pay Lessor for the cost of such insurance. Lessor shall have the option
to
apply any insurance proceeds toward Rent or apply the insurance proceeds
received by it towards repair or replacement of the item of Equipment in respect
of which such proceeds were received. Upon the request of Lessor, Lessee shall
from time to time deliver to Lessor copies of such insurance policies, or other
evidence of such policies satisfactory to Lessor and such other related
information Lessor may reasonably request.
12. Compliance;
Inspection.
Lessee
shall comply with all governmental laws, regulations, requirements and rules,
including without limitation environmental and licensing laws and all
manufacturer’s operating instructions and warranty requirements for the
Equipment, and with the conditions and requirements of all policies of insurance
with respect to the Equipment and this Lease. At any time during business hours,
Lessor may enter the premises where the Equipment is located, to inspect the
Equipment.
13. Taxes
and Costs.
Lessee
shall pay all applicable sales, use and other taxes whether or not stated on
the
Schedule (including without limitation any amounts due pursuant to increases
in
rates effective during the Term), license and registration fees, assessments
and
other government charges, however designated, based upon the Equipment or the
Rent or upon the operation, maintenance, repair, return or other disposition
of
the Equipment, or for titling or registering the Equipment, including taxes
measured by the net income of Lessor to the extent that such taxes are assessed
in lieu of other governmental charges. If Lessee represents that Lessee is
exempt from payment of income taxes and sales taxes, Lessee will provide Lessor
with evidence of such exemptions. Lessee shall pay all shipping and delivery
charges and other expenses incurred in connection with the Equipment and pay
all
lawful claims which might become a lien on the Equipment. Lessee will also
pay
all reasonable costs and expenses (including all reasonable fees and
disbursements of all counsel retained for advice, suit, appeal or other
proceedings or purpose and of any experts or agents it may retain), which Lessor
may incur in connection with (i) the administration of this Lease,
including any administrative fees Lessor may impose for the preparation of
discharges, releases or assignments to third-parties; (ii) the enforcement
and collection of any Rent or any guaranty thereof; (iii) the exercise,
performance ,enforcement or protection of any of the rights of Lessor hereunder;
or (iv) the failure of Lessee to perform or observe any provisions hereof.
After such demand for payment of any cost, expense or fee under this Section
or
elsewhere under this Lease, Lessee shall pay interest at the highest legal
rate
from the date payment is demanded by Lessor to the date reimbursed by Lessee.
All such costs, expenses or fees under this Lease shall be added to the Rent,
and shall be due and payable on demand.
14. Application
of Payments.
Payment
shall be applied first to Lessor’s costs and Expenses including without
limitation attorney’s fees, collection costs and expenses incurred in performing
Lessee’s obligations under this Lease to the extent provided for in this Lease,
next to charges and fees such as late charges, and last to Rent.
15. General
Indemnity. Lessee
shall indemnify Lessor and its Affiliates and each officer, employee,
accountant, attorney and other agent thereof (each such person being an
“Indemnified Party”) on demand, without any limitation as to amount, against
each liability, cost and expense (including all reasonable fees and
disbursements of all counsel retained for advice, suit, appeal or other
proceedings or purpose, and of any expert or agents an Indemnified Party may
retain) heretofore or hereafter imposed on, incurred by or asserted against
any
Indemnified Party (including any claim involving any allegation of any violation
of applicable law of any governmental authority (including any environmental
law
or criminal law)), however asserted and whether now existing or hereafter
arising, arising out of or in connection with the manufacture,
purchase, ownership, delivery, installation, possession, use, storage,
operation, failure, maintenance, repair, return, repossession or other
disposition of the Equipment or with this Lease including without limitation
claims for injury to or death of persons and for damage to property
(collectively “Claims”);
provided, however, the foregoing indemnity shall not apply to liability, cost
or
expense solely attributable to an Indemnified Party’s gross negligence or
willful misconduct. Lessee shall give Lessor and any assignee prompt notice
of
any Claim. This indemnity agreement shall survive the termination of this
Lease
16. Tax
Indemnity.
Lessee
represents, warrants and covenants that the entire Equipment cost to Lessor
qualifies as cost of “property” for purposes of Internal Revenue Code §168, as
amended; no person other than Lessor has claimed or will claim any tax deduction
or credit related to the Equipment; Lessee will take all actions reasonably
requested at any time to protect Lessor’s tax ownership of the Equipment; the
Equipment is not “limited use property” for purposes of Revenue Procedures 75-28
(1975-1 C.B. 752) and 76-30 (1976 C.B. 847); and the Equipment will be placed
in
service within the meaning of I.R.C. §168 by no later than the Acceptance Date.
Lessee agrees not to do anything to impair or lessen the value of Lessor’s
anticipated tax benefits related to the Equipment and expressly agrees that
Claims under the indemnity provided in the preceding paragraph shall include
any
disallowance, elimination, recapture, reduction or disqualification, in whole
or
in part, of any tax benefits of Lessor incurred as a result of any act or
omission or misrepresentation of Lessee (a “Loss”). If Lessor suffers a Loss,
Lessee shall pay to Lessor as additional Rent on the next succeeding rental
payment date after Lessor delivers to Lessee written notice of a Loss, or if
there is no such date, within thirty (30) days after such notice, the amount
which, after deduction of all taxes, interest, additions to tax and penalties
that have been or will be required to be paid by Lessor at the highest marginal
corporate income or franchise tax rates under all applicable federal, state
and
local laws, regulations and ordinances, will preserve the Net Economic Return
that would have been realized by Lessor had such Loss not occurred. In the
case
of a Loss resulting from Lessor’s inability to offset, for federal or local
income or State franchise tax purposes, income taxable at a rate equal to
Lessor’s highest marginal corporate tax rate, basic Rent for the related
Schedule shall be adjusted to preserve the Net Economic Return. “Net Economic
Return” means the maintenance, at a minimum, of Lessor’s (i) after-tax
yield (ii) after-tax aggregate cash flows, and (iii) return on assets
as computed by Lessor as of the date of the execution of the Schedule. All
of
Lessor’s rights and privileges arising from the indemnity in this paragraph
shall survive the expiration or other termination of this Lease. For purposes
of
this indemnity the term “Lessor” shall include any affiliated group (within the
meaning of I.R.C. '1504) of which Lessor is a member for any year in which
a
consolidated income tax return is filed for such affiliated group.
17. Location.
Lessee
shall not remove the Equipment from its business location specified on the
respective Schedule without Lessor’s prior written consent. Upon the expiration
or termination of this Lease, unless Lessee purchases the Equipment pursuant
to
the Rider attached to the Schedule, Lessee shall, at its sole expense, store
and
continue to insure the Equipment for up to one hundred eighty (180) days and
shall deliver the Equipment to Lessor in good condition, ordinary wear and
tear
excepted, at a location within the United States designated by the
Lessor.
18. Financial
Statements.
Lessee
shall maintain a system of accounts established and administered in accordance
with generally accepted accounting principles and practices for its industry
consistently applied, and, promptly deliver to the Lessor (i) within sixty
(60) days after the end of each of its first three fiscal quarters, an unaudited
consolidating and consolidated financial statement of the Lessee and each of
the
Lessee’s subsidiaries, if any, as of the end of such quarter, which financial
statement shall consist of income and cash flows for the quarter, for the
corresponding quarter in the previous fiscal year and for the period from the
end of the previous fiscal year, with a consolidating and consolidated balance
sheet as of the quarter end all in such detail as the Lessor may request;
(ii) within ninety (90) days after the end of each fiscal year,
consolidating and consolidated statements of the Lessee’s and each of the
Lessee’s subsidiaries’, if any, income and cash flows and its consolidating and
consolidated balance sheet as of the end of such fiscal year, setting forth
comparative figures for the preceding fiscal year and to be (check applicable
box, if no box is checked the financial statements shall be
audited):
x
audited o
reviewed o
compiled
by
an
independent certified public accountant acceptable to the Lessor; all such
statements shall be certified by the Lessee’s Managing Member to be correct and
in accordance with the Lessee’s and each of the Lessee’s subsidiaries’, if any,
records and to present fairly the results of the Lessee’s and each of the
Lessee’s subsidiaries’, if any, operations and cash flows and its financial
position at year end; and (iii) with each statement of income, a
certificate executed by the Lessee’s Managing Member or other such person
responsible for the financial management of the Lessee (A) setting forth
the computations required to establish the Lessee’s compliance with each
financial covenant, if any, during the statement period, (B) stating that
the signers of the certificate have reviewed this Lease and the operations
and
condition (financial or other) of the Lessee and each of Lessee’s subsidiaries,
if any, during the relevant period and (C) stating that no Event of Default
occurred during the period, or if an Event of Default did occur, describing
its
nature, the date(s) of its occurrence or period of existence and what action
the
Lessee has taken with respect thereto. The Lessee shall also promptly provide
the Lessor with copies of all annual reports, proxy statements and similar
information distributed to shareholders, partners or members, and copies of
all
filings with the Securities and Exchange Commission and the Pension Benefit
Guaranty Corporation, and shall provide, in form satisfactory to the Lessor,
such additional information, reports or other information as the Lessor may
from
time to time reasonably request regarding the financial and business affairs
of
the Lessee or any of the Lessee’s subsidiaries, if any. If the Lessee is an
individual, the Lessee shall provide annually a personal financial statement
in
form and detail acceptable to the Lessor and such other financial information
as
the Lessor may from time to time reasonably request.
19. No
Liens.
Lessee
shall not create or suffer to exist any lien or other encumbrance of any kind
upon the Equipment or this Lease and agrees that if Lessee breaches this
covenant Lessor may, at its option, but without any obligation to do so: (i)
cancel this Lease; or (ii) perform or comply, or otherwise cause performance
or
compliance, with such terms including the payment or discharge of all taxes,
fees, security interest or other liens, encumbrances or claims, at any time
levied or placed on the Equipment or this Lease. Nothing in this Paragraph
shall
be construed to limit, abridge, supercede, or otherwise invalidate the right
of
Lessor to make expenditures or to take action or perform an obligation of Lessee
as set forth in Paragraph 23 of this Lease.
20. Quiet
Enjoyment; Equipment is Personalty.
Lessor
covenants that so long as no Event of Default shall have occurred, Lessee shall
be entitled to quiet possession and use of the Equipment in accordance with
this
Lease. Lessor and Lessee agree that the Equipment shall remain personal
property. Lessee will obtain and deliver upon Lessor’s request any landlord and
mortgagee waivers in recordable form, satisfactory to Lessor, from all persons
claiming any interest in the real property on or in which the Equipment is
located.
21. Events
of Default.
Any of
the following events or conditions shall constitute an “Event of Default”:
(i) if not cured within ten (10) days after notice from Lessor, failure by
the Lessee to pay when due (whether at the stated maturity, by acceleration,
upon demand or otherwise) the Rent, or any part thereof, or there occurs any
event or condition which after notice, lapse of time or after both notice and
lapse of time will permit acceleration of Rent; (ii) if not cured within
ten (10) days after notice from Lessor, default by the Lessee in the performance
of any obligation, covenant, term or condition of this Lease, or any other
agreement with the Lessor or any of its affiliates or subsidiaries
(collectively, “Affiliates”); (iii) if not cured within ten (10) days after
notice from Lessor, failure by the Lessee to pay when due (whether at the stated
maturity, by acceleration, upon demand or otherwise) any indebtedness or
obligation in excess of Twenty-five thousand dollars ($25,000) owing to any
third party or any Affiliate, the occurrence of any event which could result
in
acceleration of payment of any such indebtedness or obligation or the failure
to
perform any material agreement with any third party or any Affiliate;
(iv) the Lessee is dissolved, becomes insolvent, generally fails to pay or
admits in writing its inability generally to pay its debts as they become due;
(v) the Lessee makes a general assignment, arrangement or composition
agreement with or for the benefit of its creditors or makes, or sends notice
of
any intended, bulk sale; the sale, assignment, transfer or delivery of all
or
substantially all of the assets of the Lessee to a third party; or the cessation
by the Lessee as a going business concern; (vi) the Lessee files a petition
in bankruptcy or institutes any action under federal or state law for the relief
of debtors or seeks or consents to the appointment of an administrator,
receiver, custodian or similar official for the wind up of its business (or
has
such a petition or action filed against it and such petition action or
appointment is not dismissed or stayed within forty-five (45) days);
(vii) the reorganization, merger, consolidation or dissolution of the
Lessee (or the making of any agreement therefor); (viii) the death or
judicial declaration of incompetency of the Lessee, if an individual;
(ix) the entry of any judgment or order, in excess of Twenty-five thousand
dollars ($25,000), of any court, other governmental authority or arbitrator
against the Lessee which is not satisfied within ten (10) days after the entry
thereof; (x) falsity, omission or inaccuracy of material facts submitted to
the Lessor or any Affiliate (whether in a financial statement or otherwise);
(xi) a material adverse change in the Lessee, its business, assets,
operations, affairs or condition (financial or otherwise) from the status shown
on any financial statement or other document submitted to the Lessor or any
Affiliate, and which change the Lessor reasonably determines will have a
material adverse affect on (a) the Lessee, its business, assets, operations
or condition (financial or otherwise), or (b) the ability of the Lessee to
pay the Rent; (xii) any pension plan of the Lessee fails to comply with
applicable law or has vested unfunded liabilities that, in the opinion of the
Lessor, might have a material adverse effect on the Lessee’s ability to repay
its debts; (xiii) any indication or evidence received by the Lessor that
the Lessee may have directly or indirectly been engaged in any type of activity
which, in the Lessor’s discretion, might result in the forfeiture or any
property of the Lessee to any governmental authority; (xiv) any direct or
indirect change in the beneficial ownership of Lessee or any Guarantor, except
The Sagemark Companies Ltd, whether by operation of law or otherwise, after
which the percentage of any issued and outstanding shares of any class of stock
of such Lessee or Guarantor, beneficially owned by any person or group of
persons having beneficial ownership of any such shares, has changed by at least
ten percent (10%) more or less than it was on the date of the Lease;
(xv) the occurrence of any event described in Section 21 (i) through and
including 21(xiv) with respect to any subsidiary or to any endorser, guarantor
(“Guarantor”) or any other party liable for, or whose assets or any interest
therein secures, payment of any of the Rent; or (xvi) the Lessor in good
xxxxx xxxxx itself insecure with respect to payment of the Rent.
22. Remedies.
Immediately upon the occurrence of any Event of Default, Lessor (or assignee)
may, without notice or demand, take any or all of the following steps:
(a) immediately terminate the Lease and require Lessee, at its expense,
promptly to return all or any portion of the Equipment to the possession of
Lessor at such place as Lessor may designate; (b) without process of law,
enter upon the premises where the Equipment is located and take immediate
possession of the Equipment, free from all claims for loss or damage caused
by
repossession; (c) declare immediately due and payable an amount equal to
the present value of (1) all unpaid Rent due and to become due during the
entire Term, plus (2) the purchase price payable under Lessee’s purchase
option, if constructively exercised, using a factor selected by Lessor in its
sole discretion to determine present value; (d) sell, re-lease or otherwise
dispose of the Equipment as is or with any commercially reasonable preparation,
at public or private sale, in one or more parcels, upon any terms, at such
place(s) and time(s) and to such persons or firms as Lessor deems best, without
demand or notice, although Lessee agrees ten (10) business days’ written notice
if given shall be deemed reasonable notice; or (e) exercise any other right
or remedy in equity or under applicable law, including without limitation
remedies of a secured party under the Uniform Commercial Code. Lessee shall
be
liable for all costs and expenses incurred by Lessor for sale or re-lease,
including reasonable brokers’ commissions and attorneys’ fees and disbursements,
whether for internal or outside counsel. To the extent permitted by applicable
law, Lessee hereby waives any valuation, inquisition, stay, appraisal or
redemption laws which, but for this provision, might be applicable to any sale
or re-lease of the Equipment.
23. Lessor’s
Right to Cure.
If
Lessee fails to perform or comply with any of the terms hereof following any
applicable cure period, Lessor, at its option, but without any obligation to
do
so, may perform or comply, or otherwise cause performance or compliance, with
such terms including the payment or discharge of all taxes, fees, security
interest or other liens, encumbrances or claims, at any time levied or placed
on
the Equipment. An election to make expenditures or to take action or perform
an
obligation of Lessee under the Lease, after Lessee’s failure to perform, shall
not affect Lessor’s right to declare an Event of Default and to exercise its
remedies. Nor shall the provisions of this Section relieve Lessee of any of
its
obligations hereunder with respect to the Equipment or impose any obligation
on
Lessor to proceed in any particular manner with respect to the
Equipment.
24. Purchase
Option and Automatic Renewal.
Lessee
shall have only such option to purchase the Equipment upon expiration of the
Lease as specified in a separate Purchase and Renewal Option Rider (“Rider”) to
the Schedule. Any option shall be suspended during the existence of any Event
of
Default. In addition, in the event Lessee does not intend to exercise the
Purchase or Renewal Option as provided for in the Purchase and Renewal Rider
attached hereto and made a part hereof, Lessee must notify Lessor of its intent
to return the Equipment at least one hundred twenty (120) days but not more
than
two hundred seventy (270) days prior to the Base Term expiration date. If Lessee
intends to return the Equipment, it must do so to a location of Lessor’s
choosing under the terms and conditions set forth in this Lease. Until and
unless Lessee provides Lessor with the notice required hereunder, this Lease
shall automatically renew for additional twelve (12) month terms, during which
time all of the terms and conditions of the Lease and Schedule will remain
in
full force and effect.
25. Further
Assurances.
Lessee
will execute all documents and take all further actions requested by Lessor
to
protect Lessor’s interests under this Lease, including without limitation
Uniform Commercial Code financing statements. Lessor is authorized to file
this
Lease as a security agreement in lieu of a financing statement, to file
financing statements without the signature of Lessee, with copies to Lessee,
and
to execute financing statements on behalf of Lessee. Lessee will pay all costs
of filing financing statements with respect to this Lease, including without
limitation documentary stamp taxes. Lessee will cause Lessor’s interest in the
Equipment to be noted on any certificate of title relating to the
Equipment.
26. Power
of Attorney.
Lessee
hereby irrevocably appoints Lessor, its officers, employees and agents, or
any
of them, as attorneys-in-fact for Lessee with full power and authority in the
place and stead of Lessee and in the name of Lessee or its own name from time
to
time in Lessor’s discretion, to (a) execute financing statements relating
to the Equipment, (b) execute applications for certificates of title or
notices of lien relating to titled Equipment, (c) endorse checks, drafts or
other instruments drawn by the issuer of insurance covering the Equipment or
(d) execute and deliver any writing and take any other actions that the
Lessor deems necessary or desirable to perfect or protect Lessor’s interests
under this Lease. This power is coupled with an interest and if Lessee is a
natural person shall not be affected by any subsequent disability of the
Lessee.
27. Enforceability.
This
Lease shall be binding upon Lessee’s successors and assigns and shall be
enforceable by Lessor’s successors and assigns.
28. Waivers;
Changes in Writing.
No
course of dealing nor any omission, failure or delay of the Lessor in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or
further exercise thereof or the exercise of any other right or power. Lessee
expressly disclaims any reliance on any course of dealing or usage of trade
or
oral representation of the Lessor and agrees that none of the foregoing shall
operate as a waiver of any right or remedy of the Lessor. No notice to or demand
on the Lessee in any case shall entitle the Lessee to any other or further
notice or demand in similar or other circumstances. No waiver of any provision
of this Lease or consent to any departure by the Lessee therefrom shall in
any
event be effective unless made specifically in writing by the Lessor and then
such waiver or consent shall be effective only in the specific instance and
for
the purpose for which given. No modification to any provision of this Lease
shall be effective unless made in writing in an agreement signed by the Lessee
and the Lessor.
29. No
Commitment; Lessor’s Right to Terminate Commitments.
This
Master Equipment Lease is not a legal commitment to lend and Lessor shall have
no obligation to enter into any Schedule unless (1) Lessor has issued a
specific commitment for such Schedule, (2) no Event of Default or any event
which with lapse of time or notice, or both, would become an Event of Default
exists with respect to any agreement or other obligation of Lessee in any
capacity to Lessor or any of its Affiliates in any capacity, and (3) none
of the following has occurred: (a) there has been a material adverse change
in Lessee’s financial position or credit standing as determined by Lessor in its
sole discretion; (b) the Equipment fails to be delivered and accepted by
Lessee before the commitment expires; (c) Lessee or any Guarantor fails to
cause its counsel to deliver on its behalf any legal opinion requested by the
Lessor; (d) Lessee fails to deliver evidence satisfactory to Lessor that
Lessee has obtained and will maintain in force during the Lease Term all
federal, state and local permits, licenses and approvals necessary for the
acquisition, transportation, operation and maintenance of the Equipment,
including without limitation disposal of all associated wastes and by-products
and protection of operators and other persons in the vicinity of the Equipment;
or (e) any other condition specified in the Schedule has not been
fulfilled. Immediately upon Lessor’s termination or rejection of a Schedule or
commitment based on this section, Lessee will return, and reimburse Lessor
on
demand for all sums disbursed by Lessor with respect to, the Equipment and
proposed Schedule, including without limitation all Lessor’s attorneys’ fees and
disbursements, whereupon, if Lessee is not in default with respect to any
agreement with Lessor, Lessor will transfer to Lessee without warranty or
recourse any rights Lessor may have with respect to the Equipment.
30. Software
License; Service Financing.
To the
extent that any Schedule includes Software:
| (a) |
Lessee
acknowledges that (i) all Software listed on any Schedule, or incorporated
as a component of any Equipment listed in a Schedule, is governed
by
separate software license agreement(s) between Lessee and manufacturer(s)
or vendor(s) of the Software, solely in its (their) capacity as licensor
of such Software (the “Licensor”) relating to Software (the “License
Agreement”) governing Lessee’s rights thereto, (ii) the Lease does not
convey any explicit or implicit license for the use of the Software
or
other intellectual property relating to the Equipment, and (iii)
Lessor
does not hold title to any Software and Lessee is or shall be the
licensee
of such Software directly from the
Licensor.
|
| (b) |
Lessee
shall not amend, modify or otherwise alter, any term or condition
of any
the License Agreement, including, without limitation, any such term
or
condition related to (i) payment of any amounts due thereunder, (ii)
any
liabilities or obligations of Lessee as licensee, (iii) the payment
of
late fees on past due amounts, or (iv) the payment of applicable
taxes;
provided, however, that this provision shall not apply to those terms
and
conditions relating solely to amounts owing to Licensor which have
not
been financed under the Lease.
|
31. Entire
Agreement.
This
Lease (including the Schedules and Riders) constitutes the entire agreement
between Lessor and Lessee relating to the Equipment and supersedes all prior
dealings. This Lease may be amended only in a writing signed by both parties.
32. Notices.
Any
demand or notice hereunder or under any applicable law pertaining hereto shall
be in writing and duly given if delivered to Lessee (at 0 Xxxxxxxxxx Xxxxx,
Xxxxx 00 Xxxxx, Xxxxx 00, Xxxxxx, XX 00000, or as hereinafter notified by
Lessee, in writing), with a copy to Xxxxx Xxxxx, Esq, 0 Xxxxxxxxxx Xxxxx, Xxxxx
00 Xxxxx, Xxxxx 00, Xxxxxx, XX 00000, and to Xxxxxx X. Xxxxxxx, Esq, 00 Xxxx
Xxxxx Xxxx, Xxxxxxx, XX 00000, or to the Lessor (at the address on page one
and
separately to the representative of the Lessor responsible for Lessee’s
relationship with the Lessor at the address provided by Lessor). Such notice
or
demand shall be deemed sufficiently given for all purposes when delivered (i)
by
personal delivery and shall be deemed effective when delivered, or (ii) by
mail
or courier and shall be deemed effective three (3) business days after deposit
in an official depository maintained by the United States Post Office for the
collection of mail or one (1) business day after delivery to a nationally
recognized overnight courier service (e.g., Federal Express). Notice by e-mail
is not valid notice under this or any other agreement between Lessee and the
Lessor. Lessee shall immediately notify Lessor and any assignee of any change
in
the location of the Equipment or in Lessee’s address, name, management,
financial condition or form of organization. Time is of the essence with regard
to all Notices.
33. Generally
Accepted Accounting Principles.
Any
financial calculation to be made, all financial statements and other financial
information to be provided, and all books and records, system of accounting
and
reserves to be kept in connection with the provisions of this Lease, shall
be in
accordance with generally accepted accounting principles consistently applied
during each interval and from interval to interval; provided, however, that
in
the event changes in generally accepted accounting principles shall be mandated
by the Financial Accounting Standards Board or any similar accounting body
of
comparable standing, or should be recommended by Lessee's certified public
accountants, to the extent such changes would affect any financial calculations
to be made in connection herewith, such changes shall be implemented in making
such calculations only from and after such date as Lessee and the Lessor shall
have amended this Lease to the extent necessary to reflect such changes in
the
financial and other covenants to which such calculations relate.
34. Cumulative
Nature and Non-Exclusive Exercise of Rights and Remedies.
All
rights and remedies of the Lessor pursuant to this Lease shall be cumulative,
and no such right or remedy shall be exclusive of any other such right or
remedy. No single or partial exercise by the Lessor of any right or remedy
pursuant to this Lease or otherwise shall preclude any other or further exercise
thereof, or any exercise of any other such right or remedy, by the
Lessor.
35. Governing
Law; Jurisdiction.
This
Lease has been delivered to and accepted by the Lessor and will be deemed to
be
made in the State of New York. Except as otherwise provided under federal law,
this Lease will be interpreted in accordance with the laws of the State of
New
York excluding its conflict of laws rules. LESSEE
HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT IN THE STATE OF NEW YORK IN A COUNTY OR JUDICIAL DISTRICT WHERE
THE LESSOR OR ANY OF ITS AFFILIATES MAINTAINS A BRANCH AND CONSENTS THAT THE
LESSOR MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT LESSEE’S ADDRESS
SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED
IN THIS LEASE WILL PREVENT THE LESSOR FROM BRINGING ANY ACTION, ENFORCING ANY
AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST LESSEE INDIVIDUALLY, AGAINST
ANY SECURITY OR AGAINST ANY PROPERTY OF LESSEE WITHIN ANY OTHER COUNTY, STATE
OR
OTHER FOREIGN OR DOMESTIC JURISDICTION.
Lessee
acknowledges and agrees that the venue provided above is the most convenient
forum for both the Lessor and Lessee. Lessee waives any objection to venue
and
any objection based on a more convenient forum in any action instituted under
this Lease.
36. Additional
Waivers by Lessee. Lessee (a) waives personal service of process and
subpoenas, (b) consents to the service of process and subpoenas by
registered or certified mail, return receipt requested, directed to the Lessee’s
last known address (or such other address as Lessee may notify Lessor), with
such service deemed complete five days after mailing, (c) waives any right
to assert any counterclaim or setoff or any defense based upon any statute
of
limitations or any claim of laches, (d) waives its right to attack any
final judgment that is obtained as a direct or indirect result of any such
action and (e) consents to each such final judgment being sued upon in any
court having jurisdiction. LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES
CONFERRED BY UCC ARTICLE 2A SECTIONS 505-522, INCLUDING WITHOUT LIMITATION
ANY
RIGHTS TO (a) CANCEL OR REPUDIATE THE LEASE, (b) REJECT OR REVOKE
ACCEPTANCE OF THE EQUIPMENT, (c) RECOVER DAMAGES FROM THE LESSOR FOR BREACH
OF WARRANTY OR FOR ANY OTHER REASON, (d) CLAIM A SECURITY INTEREST IN ANY
REJECTED EQUIPMENT IN LESSEE’S POSSESSION OR CONTROL, (e) DEDUCT FROM RENT
ALL OR ANY PART OF ANY CLAIMED DAMAGES RESULTING FROM THE LESSOR’S DEFAULT UNDER
THE LEASE, (f) ACCEPT PARTIAL DELIVERY OF THE EQUIPMENT, (g) RECOVER
FROM LESSOR OR ASSIGNEE ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES FOR ANY REASON WHATSOEVER, AND (h) SPECIFIC PERFORMANCE, REPLEVIN
OR THE LIKE FOR ANY OF THE EQUIPMENT. Lessee also waives any statutory right
it
may have now or in the future to require the Lessor to sell or re-lease the
Equipment or otherwise to mitigate damages.
37. Interpretation.
Unless
the context otherwise clearly requires, references to plural includes the
singular and references to the singular include the plural; references to
“individual” shall mean a natural person and shall include a natural person
doing business under an assumed name (e.g.,
a
“DBA”); the word “or” has the inclusive meaning represented by the phrase
“and/or”; the word “including”, “includes” and “include” shall be deemed to be
followed by the words “without limitation”; and captions or section headings are
solely for convenience and not part of the substance of this Lease. Any
representation, warranty, covenant or agreement herein shall survive execution
and delivery of this Lease and shall be deemed continuous. Each provision of
this Lease shall be interpreted as consistent with existing law and shall be
deemed amended to the extent necessary to comply with any conflicting law.
If
any provision nevertheless is held invalid, the other provisions shall remain
in
effect. The Lessee agrees that in any legal proceeding, a photocopy of this
Lease kept in the Lessor’s course of business may be admitted into evidence as
an original. The captions in this Lease are for convenience only.
38. Waiver
of Jury Trial. The
Lessee and the Lessor hereby knowingly, voluntarily, and intentionally waive
any
right to trial by jury the Lessee and the Lessor may have in any action or
proceeding, in law or in equity, in connection with this Lease or any
transactions related hereto. The Lessee represents and warrants that no
representative or agent of the Lessor has represented, expressly or otherwise,
that the Lessor will not, in the event of litigation, seek to enforce this
jury
trial waiver. The Lessee acknowledges that the Lessor has been induced to enter
into this Lease by, among other things, the provisions of this
Section.
39.
Joint
and Several Liability. If
there
is more than one Lessee, each of them shall be jointly and severally liable
under this Lease and any Schedule entered into hereunder and the term “Lessee”
shall include each as well as all of them.
Acknowledgment.
LESSEE
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS LEASE,
INCLUDING THE GOVERNING
LAW,
JURISDICTION
AND
WAIVER
OF JURY TRIAL,
AND HAS
BEEN ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE.
LESSEE
ALSO ACKNOWLEDGES THAT ONLY LESSOR’S ORIGINAL OF EACH EQUIPMENT SCHEDULE
CONSTITUTES CHATTEL PAPER FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE. NO
SECURITY INTEREST CAN BE PERFECTED BY POSSESSION OF ANY OTHER
COUNTERPART.
|
Date: November
5, 2007
LESSEE:
|
Accepted on: November
5, 2007
LESSOR:
|
| PREMIER ONCOLOGY MANAGEMENT OF NASSAU, LLC | M&T CREDIT SERVICES, LLC |
|
By: /s/
Xxxxx X. Xxxxxxxxxx
Xxxxx
X. Xxxxxxxxxx, M.D.
Managing
Member
|
By: /s/
Xxxxxxxxx Xxxxx
Xxxxxxxxx
Xxxxx
Banking
Officer
|
