DCC
MASTER LEASE AGREEMENT
Xxxx Commercial Credit
Lessee Information
LESSEE (Complete Legal Name) UNIVERSAL MONEY CENTERS, INC.
BUSINESS PHONES (000) 000-0000
BILLING ADDRESS 0000 XXXXXX XXXX
XXXX XXXXXXX XXXXXXX
XXXXXX
XXXXX XX
ZIP 66202
Lease Acceptance (Sign and initial here for both the Master Lease
as well as for the Lease Schedule No. One below)
AGREEMENT TO ALL TERMS OF THIS LEASE (both front and back sides)
THIS LEASE IS NON-CANCELLABLE and consists of all terms on front and reverse
hereof. This Lease is the full and final agreement and cannot be modified or
terminated except by written agreement signed both by Lessee and Lessor.
LESSEE:
/s/ Xxxxx X. Xxxxxx
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(Signature(s) above and initial to right)
Print Name: Xxxxx X. Xxxxxx
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Title: CEO
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Acknowledged and Accepted: /s/ DSB
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(Please Initial)
LEASE SCHEDULE NO. ONE (If additional room is required, complete Schedule A and
attached signed Schedule A tot his Lease) shall be deemed a part of this Lease
and shall be subject to and shall incorporate all terms and conditions set forth
herein on both the front and back hereof.
LEASE TERM: 60 MONTHS
MONTHLY LEASE PAYMENT: $876.90 (EXCLUSIVE of Applicable Tax)
INTERIM RENT PAYMENT
An amount equal to 1/30th of the monthly payment multiplied by the number of
days from and including the Acceptance Date to the 1st day of the month
immediately following the acceptance date.
QUANTITY: ___________
DESCRIPTION OF EQUIPMENT TO BE LEASED
(SEE ATTACHED SCHEDULE A EQUIPMENT)
SERIAL NUMBER: ___________
For Xxxx Commercial Credit Use Only
ACCEPTED BY XXXX COMMERCIAL CREDIT CORPORATION, Lessor (the term "Lessor") shall
include its successors and assigns.)
Signature(s) ___________________ Date 11/20/98 Master Lease Number 5002179
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THE MASTER LEASE AND EACH LEASE SCHEDULE ARE NONCANCELLABLE BY LESSEE. THE
MASTER LEASE AND EACH LEASE SCHEDULE SHALL BECOME EFFECTIVE UPON EXECUTION BY
LESSOR AT ITS OFFICE. THE PARTIES AGREE THAT THE MASTER LEASE AND EACH LEASE
SCHEDULE IS A "FINANCE LEASE" AS DEFINED BY ss.2A103(G) OF THE UNIFORM
COMMERCIAL CODE ("UCC").
This Master Lease Agreement ("Master Lease") between Lessor and Lessee is in
consideration of the mutual covenants, terms, and conditions herein contained,
and shall apply to certain items of machinery, equipment and other personal
property, together with all components, parts, replacements, additions and
attachments (collectively the "Equipment") now incorporated therein or hereafter
incorporated therein described in any Lease Schedule. This Master Lease sets
forth master terms and conditions. Each lease schedule executed by the parties
hereto ("Lease Schedule") shall incorporate all of the terms and conditions of
this master Lease as they may from time to time be amended and shall contain
such additional terms and conditions as Lessee and Lessor may agree from time to
time. Each Lease Schedule together with the terms and conditions of this Master
Lease shall constitute a separate and distinct lease between Lessor and Lessee.
Each Lease Schedule shall be enforceable according to the terms and conditions
contained therein without regard to any other Lease Schedule. In the event of a
conflict between the provisions of the Master Lease and any Lease Schedule, the
provisions of the Lease Schedule shall prevail in respect to that Lease
Schedule. Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, in accordance with the terms and conditions of the applicable Lease
Schedule, Equipment identified on such Lease Schedule. Lessee authorizes Lessor
to insert in the Lease Schedule the serial numbers and other identification data
pertaining to the Equipment when delivered. The term of the Lease with respect
to any item of the Equipment shall consist of the term set forth in the Lease
Schedule relating thereto ("Lease Term") and shall commence upon acknowledgment
of the applicable Acceptance Certificate (as defined herein) by Lessor,
effective the date of the Acceptance Certificate.
1. TERMS AND CONDITIONS. In consideration of Lessor's purchase of the equipment
selected by Lessee, Lessor leases to Lessee, and Lessee leases from Lessor, the
equipment identified above and on any attached Schedule A pursuant to the terms
and conditions
set forth herein. In no case shall the preprinted terms and conditions on
Lessee's or Supplier's standard transactional documentation (i.e., order forms
and invoices) apply to Lessor. The Equipment shall be deemed to have been
accepted by Lessee for all purposes under the Lease Schedule upon Lessor's
receipt of a certificate, in form satisfactory to Lessor, executed by Lessee
certifying Lessee's terms of acceptance (the "Acceptance Certificate"). Lessee
will sign the Acceptance Certificate authorizing Lessor to pay for the Equipment
only after Lessee has received and accepted the Equipment as fully operable for
Lessee's purposes.
2. LESSEE'S WARRANTIES. Lessee represents, warrants and covenants to Lessor, and
Lessor relies on the fact that: (a) Lessee has read and understood this Master
Lease and each Lease Schedule before it was signed; (b) LESSEE HAS SELECTED THE
EQUIPMENT BASED ON ITS OWN JUDGMENT, IS FULLY SATISFIED WITH BOTH THE EQUIPMENT
AND THE SUPPLIER OF THE EQUIPMENT, AND HAS REVIEWED AND APPROVED THE SUPPLIER'S
PURCHASE ORDER OR AGREEMENT COVERING THE EQUIPMENT PURCHASED FOR LEASE TO
LESSEE; (c) Lessee shall provide to Lessor within 120 days after the close of
each of Lessee's fiscal years, and, within 45 days of the end of each quarter of
Lessee's fiscal year, a copy of its financial statements which will be, (i)
accurate and correct in all material respects, and (ii) prepared in accordance
with generally accepted accounting principles consistently applied; (d) the
Equipment is leased exclusively for Lessee's established business purposes; (e)
Lessee has the form of business organization indicated, and is duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or organization and is duly qualified to do business wherever
necessary to carry on its present business and operations and to own its
property; (f) Lessee has the power and authority to enter into the Master Lease,
all Lease Schedules and all other related instruments or documents hereunder
("Documents"), and such Documents (i) have been duly authorized by all necessary
action on the part of Lessee consistent with its form of organization and duly
executed and delivered by authorized officers or agents of Lessee, whose
signatures hereon are, in all respects, authentic, (ii) do not require the
approval of, or the giving notice to, any federal, state, local or foreign
governmental authority, (iii) do not contravene any law binding on Lessee or any
certificate or articles of incorporation or by-laws or partnership certificate
or agreement; (iv) do not violate, result in any breach of, or constitute a
default under, or result in the creation of any lien, charge or security
interest or other encumbrance upon any assets of Lessee or on the Equipment
pursuant to any agreement, indenture, or other instrument to which Lessee is a
party or by which it or any of its assets may be bound, and (v) constitute
legal, valid and binding obligations of Lessee enforceable in accordance with
their terms; (g) Lessee has experienced no material adverse change in its
financial condition or operations since the date of its financial statements
provided to Lessor nor does there exist any pending or threatened actions or
proceedings before any court or administrative agency which might materially
adversely affect Lessee's financial condition or operations; (h) the address
indicated by Lessee is the chief place of business and chief executive office of
Lessee; and (I) Lessee will pay all costs connected with the Equipment,
including, without limitation, taxes, insurance, repairs, shipping, early
termination fees, collection costs and other expenses normally paid in a net
lease. Lessee shall be deemed to have reaffirmed the foregoing warranties each
time it executes a Lease Schedule.
3. LESSEE'S WAIVER OF DAMAGES AND WARRANTIES FROM LESSOR. Lessee leases the
Equipment from Lessor "AS IS/WHERE IS". IT IS SPECIFICALLY UNDERSTOOD AND AGREED
THAT (A) EXCEPT AS TO QUIET ENJOYMENT, LESSOR MAKES ABSOLUTELY NO WARRANTIES,
EXPRESS OR IMPLIED; (B) LESSOR
EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION, THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR USE OF THE EQUIPMENT, ITS DESIGN OR CONDITION, ITS QUALITY, CAPACITY
OR WORKMANSHIP, THE CONFORMITY OF THE EQUIPMENT TO ANY LAW, RULE, REGULATION,
SPECIFICATION OR CONTRACT OR PURCHASE ORDER RELATING THERETO, OR PATENT
INFRINGEMENT; (C) NO REPRESENTATION OR WARRANTY BY THE SUPPLIER OR SALESPERSON
IS BINDING ON LESSOR NOR SHALL BREACH OF SUCH WARRANTY RELIEVE LESSEE OF
LESSEE'S OBLIGATION TO LESSOR HEREUNDER. IT IS FURTHER AGREED BY LESSEE THAT ALL
RISKS RELATING TO THE EQUIPMENT AND ITS USE ARE, AS BETWEEN LESSOR AND LESSEE.
TO BE BORNE BY LESSEE AND THAT LESSOR SHALL HAVE NO LIABILITY TO LESSEE,
LESSEE'S CUSTOMERS, OR ANY THIRD PARTIES FOR (A) ANY LOSS, DAMAGE, OR EXPENSE OF
ANY KIND OR NATURE ARISING OUT OF THE MASTER LEASE, ANY LEASE SCHEDULE OR ANY
EQUIPMENT; (B) ANY LOSS OF BUSINESS OR SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER; OR (C) ANY DAMAGES BASED ON STRICT OR
ABSOLUTE TORT LIABILITY OR LESSOR'S NEGLIGENCE. LESSEE HEREBY WAIVES ANY CLAIM
AGAINST LESSOR IN CONNECTION WITH OR ARISING OUT OF THE OWNERSHIP, LEASING,
FURNISHING, PERFORMANCE OR USE OF THE EQUIPMENT AND THE BENEFITS OF ANY AND ALL
IMPLIED WARRANTIES AND REPRESENTATIONS OF LESSOR, AND LESSEE EXPRESSLY WAIVES
ANY AND ALL RIGHTS OR REMEDIES AGAINST LESSOR PROVIDED UNDER THE UNIFORM
COMMERCIAL CODE (the "UCC"). To the extent permitted by applicable, law, Lessee
hereby waives any rights Lessee may otherwise have to: 1) cancel or repudiate
any Lease Schedule or the Master Lease; 2) revoke acceptance of or reject the
Equipment; 3) claim a security interest in the Equipment; 4) accept partial
delivery of the Equipment; 5) sell or dispose of the Equipment upon rejection or
revocation; 7) claim an agency relationship between Supplier and Lessor. All
warranties from the Supplier to Lessor are, to the extent they are assignable,
hereby assigned to Lessee for the Lease Term or until an Event of Default
occurs, for Lessee's exercise at Lessee's expense.
4. PAYMENTS. Lessee agrees to make lease payments in advance and to pay such
other charges as provided herein. Lease payments shall be increased by any cost
or expense Lessor incurs to preserve the Equipment or to pay taxes, assessments,
fees, penalties, liens, or encumbrances. Unless Lessor gives written notice of a
new address, all payments under any Lease Schedule shall be sent to Lessor at
the address provided by Lessor. Each payment received, at Lessor's discretion,
will be applied first to the oldest charge due under the applicable Lease
Schedule. THE MASTER LEASE AND EACH LEASE SCHEDULE IS A NET LEASE AND LESSEE
SHALL NOT BE ENTITLED TO ANY ABATEMENT OR REDUCTION OF RENTS OR OF ANY OTHER
AMOUNTS PAYABLE HEREUNDER FOR ANY REASON, including, without limitation, any
problems it may have with the Equipment. Without Lessor's prior written consent,
any payment to Lessor of a smaller sum than due at any time under a Lease
Schedule shall not constitute a release or an accord and satisfaction for any
greater sum due, or to become due, regardless of any endorsement restriction,
unless otherwise agreed by both parties in a signed writing. LESSEE'S OBLIGATION
TO PAY ALL RENT AND ANY OTHER AMOUNTS DUE THEREUNDER OR ANY LEASE SCHEDULE SHALL
BE ABSOLUTE AND UNCONDITIONAL UNDER ALL CIRCUMSTANCES. If any rent or other
amount payable hereunder shall not be paid when due, Lessee shall pay Lessor:
(a) a one-time late
charge in the stipulated and liquidated amount of $.05 per dollar of the amount
not paid or $5.00, if greater; (b) a late charge during every month after the
first month in which the sum is late computed daily on the amounts then due and
unpaid at a rate of 1-1/2% per month, or, if less, the highest applicable rate
permitted by law; and (c) all collection costs and expenses.
5. TAXES, ASSESSMENTS AND FEES. Lessee agrees to pay all licensing, filing and
registration fees; TO SHOW THE EQUIPMENT AS "LEASED EQUIPMENT" ON TAX RETURNS;
WHEN ALLOWED BY LAW, FILE ALL PERSONAL PROPERTY TAX RETURNS AND TO PAY ALL
PERSONAL PROPERTY TAXES ASSESSED AGAINST THE EQUIPMENT WHEN DUE; to pay when
due, and defend, hold harmless Lessor against liability for all other taxes,
assessments, fees and penalties which may be levied or assessed in respect to
the Equipment, its use or any interest therein, or any lease payments, including
but not limited to all federal, state, and local taxes, however, designated,
levied or assessed, whether upon Lessee or Lessor or the Equipment or upon the
sale, ownership, use or operation, excepting only any income taxes levied on the
rental payments made to Lessor. If any report or return for personal property
tax is required by law to be filed by Lessor, Lessee shall so notify Lessor
prior to the assessment date, and Lessee shall promptly reimburse Lessor for
personal property taxes paid, including any interest, fines or penalties
incurred as a result of late filing if Lessee fails to provide Lessor with the
notice required hereby. Lessee shall promptly provide Lessor with a copy of any
and all filings and tax assessment notices with respect to personal property
tax, and if Lessee fails to do so, Lessor has the right to charge Lessee an
assessment of an appropriate amount to insure against any tax liability. The
Lessee agrees to comply with all state and local laws requiring the filing of ad
valorem tax returns relating to the Equipment. Lessor may, at its option, pay on
Lessee's behalf such taxes and other amounts, file applicable returns, and
collect full reimbursement from Lessee. Lessee agrees that Lessor is entitled to
all tax benefits resulting from ownership of the Equipment. Lessee agrees that,
should any such tax benefits be disallowed, Lessee shall indemnify Lessor for
such loss by paying Lessor an amount equal to the value of the lost benefits.
Lessee agrees to pay Lessor a documentation fee to be billed with the first
lease payment to cover account setup and administrative costs.
6. SUCCESSORS AND ASSIGNMENTS. LESSEE SHALL NOT TRANSFER, SELL, SUBLEASE,
ASSIGN, PLEDGE OR ENCUMBER EITHER THE EQUIPMENT OR ANY RIGHTS UNDER THIS LEASE
WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, and even with Lessor's consent,
Lessee shall remain jointly and severally liable to the full extent with
Lessee's assignee. ANY ATTEMPTED TRANSFER, SUBLEASE, ASSIGNMENT OR PLEDGE
WITHOUT LESSOR'S CONSENT SHALL BE VOID AND SHALL NOT RELEASE LESSEE OF ITS
OBLIGATIONS UNDER THE MASTER LEASE OR ANY LEASE SCHEDULE. However, in any case,
the provisions of this Lease bind all heirs, executors, administrators,
successors, trustees, and assigns of the Lessee and any guarantor. LESSOR MAY,
WITHOUT LESSEE'S CONSENT, ASSIGN ITS RIGHTS AND INTERESTS UNDER THIS LEASE
WITHOUT NOTICE. Lessee agrees that Lessor's assignee will have the same rights
and remedies that Lessor now has. Lessee agrees that the rights of Lessor's
assignee will not be subject to claims, defenses, or setoffs that Lessee may
have against Lessor. Lessee agrees that Lessor is not an agent of Lessor's
assignee and that Lessor has no affiliation with such assignee except for
assignment. Lessee stipulates that any such assignment by Lessor shall not
materially change Lessee's duties, obligations or risks under this Lease.
7. OWNERSHIP AND TITLE. Lessor is the sole owner of the Equipment, has sole
title and all residual rights, has the right to inspect the Equipment, and has
the right to affix and display a notice of Lessor's ownership thereon. The
Equipment shall remain Lessor's personal property whether or not affixed to
realty and shall not be part of any real property on which it is placed. At
Lessor's request, Lessee shall obtain a landlord and/or mortgage waiver for the
Equipment. All additions, attachments, and accessories placed on the Equipment
become part of the Equipment and Lessor's property. Lessee agrees to give and
record such notices, obtain such waivers and take such other action at its own
expense as may be necessary to prevent any third party (other than an assignee
of Lessor) from acquiring or having the right under any circumstances to acquire
any interest in the Equipment or any Lease Schedule and Lessee shall, at its
cost and expense, defend Lessor's title against and keep all of the Equipment,
the Master Lease, any Lease Schedule and any of Lessor's interests thereunder
free of all liens, claims and encumbrances of any kind.
8. OPERATION AND TERMINATION. Lessee shall be solely responsible for the
installation, operation and maintenance of the Equipment and at its own cost and
expense, keep it in good condition and running order, and shall use, operate and
maintain the Equipment in compliance with applicable laws and any applicable
manufacturer's manuals. The Lessee, at its expense, shall maintain in full force
and effect throughout the Lease Term a maintenance contract with a party
acceptable to Lessor. Upon return to lessor the Equipment must be eligible,
without further cost or expense, for immediate continuation of coverage under
Supplier's standard maintenance contract. Lessee agrees to keep and use the
Equipment only at the business address specified in the applicable Lease
Schedule, to never abandon or move the Equipment from that address, nor
relinquish possession of the Equipment except to Lessor. Lessee shall give
Lessor one hundred twenty (120) days written notice prior to the expiration of
the Lease Term, and sixty (60) days written notice prior to expiration of any
renewal term of the return of the Equipment and Lessor will designate the return
location within the continental United States. At the end of the Lease Term
Lessee shall, at Lessee's expense, immediately crate, insure and return the
Equipment to the designated location in as good a condition as when Lessee
received it, excepting only reasonable wear and tear and in the condition
reflecting Lessee's full compliance with the terms and conditions of this
section. If Lessee fails to give notice or fails to return the Equipment, the
Lease shall automatically renew on a month to month basis for a period not to
exceed twelve (12) months. The extension period may be terminated by either
party by giving thirty (30) days prior written notice. Upon such termination or
at the end of the twelfth month of the extension, Lessee shall return the
Equipment as provided above. Until the Equipment is returned to Lessor, Lessee
shall continue to pay rent in an amount equal to the monthly average rent during
the Lease Term, on the same due date set forth in the Lease.
9. RISK OF LOSS AND INSURANCE. Lessee hereby assumes all risk of loss, damage or
destruction for whatever reason to the Equipment ("Loss") from and after the
earlier of the date (a) on which the Equipment is ordered, or (b) Lessor pays
the purchase price of the Equipment, and continuing until Lessee has returned
the Equipment to the designated location and such Equipment has been accepted by
Lessor. Lessee shall immediately notify Lessor of the occurrence of any Loss or
other occurrence affecting Lessor's interests or the Equipment and shall, at
Lessor's option, make repairs or replacements at Lessee's expense. In such
event, Lessee agrees to continue to meet all payment and other obligations under
the Lease Schedule. Lessee agrees to keep the Equipment insured at Lessee's
expense against risks of loss or damage from any cause whatsoever. Lessee agrees
that such insurance shall not be less than an amount
equal to the total remaining stream of lease payments plus the higher of (i)
twenty percent (20%) of the total invoice cost of such Equipment and (ii) the
fair market value of the Equipment. Lessee also agrees that the insurance shall
be in such an amount as is reasonable to cover Lessor for public liability and
property damage arising from the Equipment or Lessee's use of it. Lessee agrees
to name Lessor as the loss payee and an additional insured. Each policy shall
provide that the insurance cannot be cancelled without thirty (30) days prior
written notice to Lessor. Lessee shall furnish Lessor with a copy of the
certificate of insurance annually. The proceeds of such insurance shall be
applied at Lessor's sole election toward the replacement or repair of the
Equipment or payment towards Lessee's obligations. Lessee appoints Lessor as
attorney-in-fact to make any claim for, receive payment of, or execute or
endorse all documents, checks or drafts for loss or damage or return of premium
under such insurance. Lessee has no right or claim to any insurance benefits
from Lessor.
10. INDEMNITY. Lessee assumes liability for, and hereby agrees to indemnify,
protect and hold Lessor and its affiliates harmless from and against any and all
liabilities (including, but not limited to, negligence, tort, and strict
liability), obligations, losses, damages, injuries, claims, demands, penalties,
actions, costs and expenses, including reasonable attorney's fees, of whatsoever
kind and nature (including without limitation, claims of injury, death, or
property damage), arising out of or related to (i) the Master Lease, each Lease
Schedule, or the Equipment, including, but not limited to, the manufacture,
purchase, financing, installation, use, condition (including, but not limited
to, latent and other defects and whether or not discoverable by Lessee or
Lessor), operation, ownership, selection, delivery, leasing, removal, return, or
other disposition of any Equipment, (ii) a breach by Lessee or any guarantor of
any representations or warranties under the Master Lease, any Lease Schedule or
guaranty, or failure by Lessee or any guarantor to perform or observe any
covenant or agreement to be performed by it under the Master Lease, any Lease
Schedule or any guaranty, or (iii) a violation of or non-compliance with any
law, including environmental laws. The indemnities and assumptions of
liabilities and obligations contained in this section and Section 5 shall
continue in full force and effect notwithstanding the expiration or other
termination of the Master Lease or any Lease Schedule.
11. DEFAULT AND REMEDIES. If any one or more of the following events (an "Event
of Default") shall occur, then Lessor shall have the right to exercise any one
or more of the remedies set forth in this section: (a) Lessee fails to make any
payment, of rent or otherwise hereunder when due; or (b) Lessee or any guarantor
breaches any of its warranties, representations, or other obligations under the
Master Lease or any Lease Schedule, or any other agreement with Lessor, and
fails to cure such breach within ten (10) days after Lessor sends Lessee notice
of the existence of such breach; or (c) Lessee shall default on any other
indebtedness obligation or agreement of any kind with Lessor and shall not have
cured such default within a period of grace provided by such other agreement or
instrument; or (d) any execution or writ of process is issued in any action or
proceeding to seize or detain any of the Equipment; or (e) Lessee fails to
return any Equipment when required under Section 8; or (f) Lessee or any
guarantor shall commence, or take corporate action to authorize, a voluntary
case or other proceeding seeking liquidation, reorganization, or other relief
with respect to itself or its debts; or seek the appointment of a trustee,
receiver, liquidator, custodian, or other similar official; or consent, or fail
to object, to any such relief or to the appointment of any such official or to
the taking of possession of any of its property or to the commencement of an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of its creditors; or (g) Lessee becomes
insolvent or fails generally to pay its debts as they
become due; or (h) any guarantor revokes a guaranty provided to Lessor under the
Master Lease or any Lease Schedule or breaches any of its obligations under such
guaranty. Lessee shall promptly notify Lessor of the occurrence of any Event of
Default or the occurrence or existence of any event or condition which, upon the
giving of notice or lapse of time, or both, may become an Event of Default. If
an Event of Default occurs, Lessor may, in its sole discretion, exercise any or
all of the following remedies: (a) cause Lessee, upon written demand of Lessor
and at Lessee's expense, to promptly return any or all Equipment on any or all
of the Lease Schedules, to such location as Lessor may designate or to
immediately retake possession of the Equipment without any court order or other
process of law (and for such purpose Lessor may enter upon any premises where
the Equipment may be and remove the same); and Lessor may dispose of any or all
of the Equipment in good faith and recover from Lessee as damages all charges,
expenses or commissions incurred by Lessor in the transportation, care, custody
or disposition of such Equipment after the occurrence of the Event of Default or
otherwise resulting by reason of such default; (b) whether Lessor has recovered
the Equipment, or if so recovered, has elected to retain any or all of the
Equipment, dispose of the Equipment by sale, lease or otherwise, to recover as
liquidated damages for the loss of a bargain due to Lessee's Event of Default
and not as a penalty, the sum of the following: (i) all accrued and unpaid rent
and other amounts then due, plus (ii) as liquidated damages, the higher of fair
market value of the Equipment or an amount equal to the total remaining stream
of lease payments discounted to the present at six percent (6%) plus twenty
percent (20%) of the total invoice cost of such Equipment; all of the foregoing
amounts shall become immediately due and payable to Lessor, to the extent
permitted by UCC-2A, or any other provision of the UCC or other applicable law;
(c) exercise any remedy at law or equity, notice thereof being expressly waived
by Lessee, including any right or remedy which may otherwise be available to it
under the UCC; (d) with or without notice to Lessee, cancel the Master Lease or
any Lease Schedule without prejudice to Lessor's rights in respect of
obligations then accrued and remaining unsatisfied; and (e) exercise any remedy
at law or equity, notice thereof being expressly waived by Lessee, including any
right or remedy which may otherwise be available to it under the UCC. Lessor's
action or failure to act on one remedy constitutes neither (a) an election to be
limited thereto, (b) a waiver of any other remedy nor (c) a release of Lessee
from the liability to return the Equipment or for any loss or claim with respect
thereto. Nothing herein shall be deemed to prejudice Lessor's right to recover
or prove damages for unpaid rent accrued prior to default, or bar an action for
a deficiency as herein provided. The bringing of an action with an entry of
judgment against Lessee shall not bar the Lessor's right to repossess any or all
of the Equipment. Lessor's remedies shall be available to Lessor's successors
and assigns, shall be in addition to all other remedies provided by law, and may
be exercised concurrently or consecutively. LESSEE AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING COLLECTORS' CONTINGENCY FEES, AND TO PAY LESSOR'S ATTORNEY
FEES AS DAMAGES AND NOT COSTS in all proceedings arising under the Master Lease
or any Lease Schedule.
12. MISCELLANEOUS. The provisions of the Master Lease and each Lease Schedule
are severable and shall not be affected or impaired if any one provision is held
unenforceable, invalid, or illegal. Any provision held in conflict with any
statute or rule of law shall be deemed inoperative only to the extent of such
conflict and shall be modified to confirm with such statute or rule. THE MASTER
LEASE, TOGETHER WITH ALL LEASE SCHEDULES, ACCEPTANCE CERTIFICATES AND RIDERS
ATTACHED HERETO FROM TIME TO TIME, OR BY REFERENCE HERETO MADE A PART HEREOF
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND MERGES ANY OTHER UNDERSTANDING. At Lessor's
election the parties shall submit any matter arising out of this transaction,
including any claim, counterclaim, setoff, or defense, to binding arbitration by
the American Arbitration Association. The decision and award of the
arbitrator(s) shall be final and binding and may be entered as rendered in any
court having jurisdiction thereof. Lessee authorizes Lessor or its agents to
file, at Lessor's option, financing statements and/or fixture filings without
Lessee's signature and, if a signature is required by law, Lessee appoints
Lessor and its agents as Lessee's attorney-in-fact to execute such statements
and filings. Despite the express intent of the parties, in the event that any
Lease Schedule is not deemed to be a true lease, then solely in that event and
for that limited purpose, it shall be deemed a security agreement and, in that
regard, Lessee hereby grants Lessor a security interest in all lease payments
and Equipment, and all interest of Lessee therein, and all proceeds and products
thereof to secure Lessee's prompt payment and performance as and when due of all
obligations and indebtedness to Lessor under the Master Lease or any Lease
Schedule, but in no case shall this grant or any filing be deemed to contravene
a true-lease transaction. Without prejudicing the generality of this Section,
Lessor and Lessee intend to confirm strictly to the usury law applicable to this
transaction. Accordingly, it is agreed that the aggregate of all interest and
any other charges or consideration constituting interest under applicable law
that is contracted for, charged or received under any Lease Schedule or
otherwise shall under no circumstance exceed the maximum amount of interest
allowed by applicable law. If any usurious interest in such respect is provided
for in any Lease Schedule or otherwise, or if the acceleration or prepayment of
any indebtedness results in Lessee having paid any interest in excess of that
permitted by applicable law, then in such event, (a) Lessee shall not be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum amount of interest allowed by applicable law, (b) any excess
shall be deemed a mistake and cancelled automatically and, if theretofore paid,
shall be credited on any such indebtedness by Lessor, (c) the effective rate of
interest shall be automatically reduced to the maximum legal rate of interest
allowed by applicable law, and (d) all interest shall be allocated and spread
throughout the full term of any such indebtedness until paid in full so that the
rate or amount of interest does not exceed the applicable usury ceiling.
13. CONSENT TO OHIO LAW; JURISDICTION; VENUE, NOTICE. Lessee consents, agrees,
and stipulates that: (a) the Master Lease and each Lease Schedule shall be
deemed fully executed and performed in the State of Ohio and shall be governed
by and construed in accordance with the laws thereof; and (b) in any action,
proceeding, or appeal on any matter related to or arising out of the Master
Lease or any Lease Schedule, the Lessor and Lessee (i) SHALL BE SUBJECT TO THE
PERSONAL JURISDICTION OF THE STATE OF OHIO, including any state or federal court
sitting therein, and all court rules thereof; (ii) SHALL ACCEPT VENUE IN ANY
FEDERAL OR STATE COURT IN OHIO; and (iii) EXPRESSLY WAIVES ANY RIGHT TO A TRIAL
BY JURY so that trial shall be by and only to the court. Lessee agrees that any
notice or process served for any legal action or proceeding shall be valid if
mailed by certified mail, return receipt requested, with delivery restricted to
the Lessee, its registered agent, or any agent appointed in writing to accept
such process. Until Lessor and Lessee notify each other of any new address in
writing, any invoice, notice or transaction notice required by the Master Lease
or Lease Schedule or by law is validly given when mailed postage prepaid by
first class mail to the last known address.
