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Exhibit 10.32
MASTER LEASE PURCHASE AGREEMENT
THIS AGREEMENT is entered into the 18th day of December, 1995 between
FIDELITY LEASING CORPORATION ("Lessor") whose address is 0 Xxxx Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, and PHARMCHEM LABORATORIES, INC.
("Lessee") whose address is 0000 X X'Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000.
Lessor and Lessee from time to time may enter into written agreements in the
form of "Lease Purchase Addenda" for the leasing of equipment by Lessor to
Lessee. To facilitate such transactions, Lessor and Lessee are entering into
this Master Lease Purchase Agreement (the "Master Lease"), the terms and
provisions of which shall be incorporated by reference in each such Lease
Purchase Addendum, and they MUTUALLY AGREE AS FOLLOWS:
1. LEASE PURCHASE ADDENDUM
If Lessor agrees to lease equipment when requested by Lessee, the parties shall
sign a Lease Purchase Addendum ("Addendum") setting forth the particulars
regarding the transaction, including, without limitation, the list of items of
equipment (individually, an "Item" and, collectively, the "Equipment"), the
prices of each Item (including disclosure of all rebates, discounts and other
incentives received or receivable with respect thereto), "Related Costs",
including taxes, transportation, installation and other applicable costs, the
aggregate of the foregoing ("Total Cost"), length of the Basic Term, rental
rates, purchase and renewal options, if any, and other applicable provisions.
"Cost of an Item" shall mean the price of the Item plus its applicable portion
of Related Costs. In the absence of a signed Addendum, this Master Lease shall
not constitute a lease or a commitment by either party to enter into a lease.
2. REQUEST TO LEASE; EQUIPMENT ACCEPTANCE
(A) Request: Specifications. Signing an Addendum shall constitute the
request from Lessee to Lessor to lease the Equipment, and the Addendum and this
Master Lease shall constitute the lease and agreement (the "Lease") regarding
the Equipment. As security for all obligations of Lessee to Lessor now existing
or hereafter arising under this Lease, Lessee grants Lessor a security interest
in all Equipment. At the time of signing the Addendum, Lessee shall furnish
Lessor detailed specifications ("Specifications") of the Items, including
descriptions, prices, delivery terms and instructions, installation provisions
and all other applicable specifications. Lessee assumes full responsibility
with respect to the selection of Items supplied for lease and the specification
thereof; the Lessor shall have no liability or responsibility with respect
thereto regardless of whether the Specifications prove inadequate for the
intended purpose or use.
(B) Inspection: Acceptance. It is Lessee's responsibility to receive
and promptly inspect and test each Item tendered for delivery by a supplier and
the installation thereof. Lessee shall give Lessor written notice of acceptance
of an Item as soon as it can be determined that the Item and its installation
are in compliance with Specifications. As between Lessee and Lessor, the giving
of such written notice shall constitute Lessee's irrevocable acceptance of the
Item or Items designated in the notice, whether or not such Items or their
installation are defective in any respect, and notwithstanding any failure of
an Item or its installation to conform to Specifications, without prejudice
however to rights which Lessor and Lessee, or either of them, may have against
any other person, whether with respect to design, manufacture, condition or
otherwise.
(C) Purchase Cut-Off Date. If, by the "Purchase Cut-Off Date" set
forth in an Addendum, Lessee shall not have given Lessor written notice of
acceptance of an Item, Lessor shall have no obligation to lease the Item to
Lessee. In such event, Lessee shall immediately reimburse Lessor for all
Lessor's costs and expenses with respect thereto, and Lessee shall indemnify and
defend Lessor against and hold Lessor harmless from any and all cost, expense,
loss, liability and damage that Lessor may suffer or that may be asserted
against Lessor by reason of Lessor's failure or refusal to lease such Item. Any
such Item shall be deemed to be deleted from the Addendum and no longer
included in the Equipment.
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(D) Conditions Precedent. Lessee shall deliver to Lessor such further
instruments, documents and certifications as Lessor reasonably may request,
including without limitation evidences of authority (e.g., corporate
certificates, corporate resolutions, partnership documents and authorizations),
evidence of insurance, purchase orders and acceptances thereof, purchase and
sale agreements and financial information, and instruments and documents to
implement, perfect or continue the perfection of Lessor's rights and remedies as
Lessor of the Equipment, including Uniform Commercial Code forms. Lessee's
delivery of the foregoing and of the Specifications are conditions precedent to
any obligation of Lessor to make any commitments to pay for the Equipment or any
item.
(E) Supplemental Lease Request. If at any time prior to the Closing Date
Lessee requests Lessor to add further items to the Equipment, and if Lessor so
agrees, Lessee shall execute a Lease Purchase Addendum Supplement in a form
supplied by Lessor, which shall become part of the Addendum, subject to all of
its provisions and the provisions of this Master Lease, and the equipment
specified therein shall be items of Equipment under the Lease.
(F) Closing. Following the date ("Closing Date") which is the earlier of (i)
the date Lessee gives Lessor written notice of acceptance of the last item or
(ii) the Purchase Cut-Off Date (or on such other day as is mutually agreed).
Lessor shall send Lessee a Closing Schedule ("Schedule"), setting forth any
adjustments to descriptions and Costs of Items and Total Cost and confirming the
Closing Date, amount of Periodic Rental installments, payment schedules, and
insurance requirements. Lessee's signature on any such Schedule shall signify
the Lessee's agreement that the Schedule is correct. Notwithstanding any
discrepancies or disagreements between Lessor and Lessee regarding the
Schedules, Lessee shall pay all rentals as they become due in accordance with
the terms and conditions of the Lease. If Lessee establishes an error that
affects the amount of rentals, Lessor shall give Lessee a credit for any
overpayment of rentals, and Lessee promptly shall pay Lessor any underpayments.
The Schedules are incorporated herein by reference.
3. LESSEE'S WARRANTIES
(A) Lessee represents and warrants to Lessor that it is a corporation or
partnership duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and that it is qualified to do business
in every jurisdiction where the failure to qualify would have a materially
adverse effect on Lessor's rights hereunder; it has taken all corporate or
partnership action which may be required to authorize the execution, delivery
and performance of this Lease, and such execution, delivery and performance will
not conflict with or violate any provision of its Charter or Articles or
Certificate of Incorporation, By-laws or any provisions thereof, or in the case
of a partnership, its Certificate of Partnership or Limited Partnership and its
Partnership Agreement, or result in a default or acceleration of any obligation
under any agreement, order, decree or judgment to which it is a party or by
which it is bound, nor is it now in default under any of the same; there is no
litigation or proceeding pending or threatened against it which may have a
materially adverse effect on Lessee or which would prevent or hinder the
performance by it of its obligations hereunder; this Lease and the attendant
documents constitute valid obligations of the Lessee, binding and enforceable
against it in accordance with their respective terms; no action by or with any
commission or administrative agency is required in connection herewith; it has
the power to own its assets and to transact business in which it is engaged; it
will give to Lessor prompt notice of any change in its name, identity or
structure.
(B) Lessee's written acceptance of an Item and its installation shall
constitute a REPRESENTATION AND WARRANTY BY Lessee to Lessor that: (i) the Item
is personal property in good order ad condition; (ii) the Item conforms to
Specifications; (iii) unless otherwise specified, the Item has not been used
prior to its acceptance by Lessee; and (iv) at all times Lessee shall keep the
Equipment in Lessee's possession at the address specified in the Addendum unless
Lessor shall otherwise consent in writing. Lessee shall not cause, suffer or
permit any Item to be attached or affixed to real property or improvements
thereon (collectively, "Realty") unless Lessor first shall consent thereto in
writing and Lessee shall have obtained from all persons having any interest in
the Realty written consents which approve such attachment, waive any claims to
or encumbrances upon attached Items and consent to the detachment and removal of
such
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Items at any time by Lessor or Lessee. Notwithstanding attachment of any items
to Realty, all the Equipment at all times shall be and remain personal
property. Upon termination of Lessee's right to possession of the Equipment,
whether by expiration of the Term or otherwise. Lessee at its sole cost and
expense shall detach and remove the Equipment from the Realty and save Lessor
harmless from and indemnify and defend Lessor against any claim, demand, loss,
liability, and damage arising from such detachment or removal, or both.
4. TERM OF LEASE
The Term of the Lease ("Term") will consist of an "Interim Term" and a "Basic
Term." The Interim Term shall begin on the Closing Date, and shall continue
until the time the Basic Term begins. The Basic Term shall begin on the last
day of the calendar month immediately following the month in which the Closing
Date occurs, and shall continue for the length of the Basic Term set forth in
the Addendum.
5. INTERIM RENTAL
During the Interim Term, Lessee shall pay rent ("Interim Rental"), in an amount
determined by Lessor by applying the "Interim Rental Rate" set forth in the
Addendum to the Total Cost, for the number of days from the Closing Date to the
date the Basic Term begins. Such Interim Rental shall be payable on the first
day of the Basic Term.
6. PERIODIC RENTAL
Lessee shall pay rent ("Periodic Rental") for the Basic Term in an amount
calculated by multiplying the Total Cost by the Periodic Rental Rate set forth
in the Addendum multiplied by the number of months constituting the length of
the Basic Term. Lessees shall pay installments of Periodic Rental to Lessor in
accordance with the payment schedule set forth in the Addendum.
7. LATE PAYMENT
If any installment of rent or other sum owing under the Lease shall not be paid
when due and shall remain unpaid for ten (10) days, Lessee shall pay Lessor a
late charge equal to five percent (5%) of the amount delinquent, but in no
event at a rate greater than limited by any applicable law. Such late charge is
in addition to and not in lieu of other rights and remedies Lessor may have.
8. INSURANCE
Lessee shall procure and continuously maintain and pay for (a) all risk
insurance against loss or damage to the Equipment for not less than the full
replacement value thereof naming Lessor as Loss Payee and (b) combined single
limit liability insurance, insuring Lessor and Lessee, all in such amounts and
against such risks and hazards as are set forth in the Addendum, with insurance
companies and pursuant to contracts or policies satisfactory to Lessor. All
contracts and policies shall include provisions for the protection of Lessor
notwithstanding any act or neglect of or breach or default by Lessee, shall
provide that proceeds of all insurance shall be payable first to Lessor to the
extent of its liability or interest as the case may be, shall provide that they
may not be modified, terminated or canceled unless Lessor is given at least
thirty (30) days' advance written notice thereof, and shall provide that the
coverage is "primary coverage" for the protection of Lessee and Lessor
notwithstanding any other coverage carried by Lessee or Lessor protecting
against similar risks. Lessee shall promptly notify any appropriate insurer and
Lessor of each and every occurrence which may become the basis of a claim or
cause of action against the insureds and provide Lessor with all data pertinent
to such occurrence. Lessee shall furnish Lessor with certificates of such
insurance or copies of policies upon request, and shall furnish Lessor with
renewal certificates not less than ten (10) days prior to the renewal date.
9. TAXES
Lessee shall pay all taxes, fees, assessments and other governmental charges of
whatsoever kind or character and by whomsoever payable on or relating to any
Item of Equipment or the sale, purchase, ownership, use, value, value added,
possession, shipment, transportation, delivery or operation thereof or the
exercise of any option, election or performance of any obligation by Lessee
hereunder, which may accrue or be levied, assessed or imposed during the Term
and any Renewal Term or which remain unpaid as of the date of surrender of such
Item to Lessor, and all taxes of any kind imposed by any federal, state,
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local, or foreign taxing authority against Lessor on or measured by any amount
payable by Lessee hereunder, including, without limitation, all license and
registration fees and all sales, use, value, ad valorem, personal property,
excise, gross receipts, stamp or other taxes, imposts, duties and charges
together with any penalties, fines or interest thereon, except taxes of Lessor
on net income imposed by the United States or any state. Lessee shall reimburse
Lessor for any payments made by Lessor which are the obligation of Lessee under
the Lease, but Lessee shall not be obligated to pay any amount under this
Section so long as it shall in good faith and by appropriate proceedings
contest the validity or the amount thereof, unless such contest would adversely
affect Lessor's interest in any Item of Equipment or would subject any Item to
forfeiture or sale. Lessee shall indemnify Lessor on an after-tax basis against
any loss, claim, demand and expense, including legal expense, resulting from
such nonpayment or contest and further agrees to indemnify Lessor against any
and all taxes, assessments and other charges imposed upon Lessor under the laws
of any federal, state, local or foreign government or taxing authority, as a
result of any payment made by Lessee pursuant to this Section. Whenever this
lease terminates as to any Item, Lessee will on request advance to Lessor the
amount estimated by Lessor to equal personal property taxes on the item which
are not yet payable but for which Lessee will afterward become liable
hereunder; Lessor will account to Lessee for such advances. On request of
either Lessor or Lessee, the other will submit written evidence of all payments
required of it under this Section.
10. MAINTENANCE, ETC.
(A) Lessee at its expense at all times shall: (i) keep the Equipment in
good and efficient working order, condition and repair, ordinary wear and tear
excepted, and make all inspections and repairs, including replacement of worn
parts, to effect the foregoing and to comply with requirements of laws,
regulations, rules and provisions and conditions of insurance policies; and
(ii) pay all costs, expenses, fees and charges incurred in connection with the
use or operation of the Equipment and of each item, including but not limited
to repairs, maintenance, storage and servicing. Lessee shall not make any
alterations, substitutions, improvements or additions to the Equipment or
Items, except those required in order to comply with laws, regulations, rules
and insurance policies, unless Lessor first shall have consented thereto in
writing. Notwithstanding any consent by Lessor, Lessee shall pay all costs and
expenses of the foregoing. All replacements, repairs, improvements,
alterations, substitutions and additions shall constitute accessions to the
Equipment and shall be subject to Lessor's security interest.
(B) Lessor hereby transfers and assigns to Lessee, for so long during the
Term and any Renewal Term as Lessee is not in default, Lessor's right, title
and interest in, under and to any assignable factory and dealer warranty,
whether express or implied, with respect to the Equipment. All claims and
actions upon any warranty shall be made and prosecuted by Lessee at its sole
cost and expense. Lessor shall have no obligation to make or prosecute any
claim upon or under a warranty. So long as Lessee shall not be in default,
Lessor shall cooperate with Lessee with respect to a claim on a non-assignable
warranty, at Lessee's expense. Lessee shall have proceeds of a warranty claim
or recovery paid to Lessor. Lessor shall make such proceeds available for any
repair, restoration or replacement to correct such warranted condition. Excess
proceeds shall be used to reduce Lessee's Lease obligations.
11. USE
So long as Lessee shall not be in default, Lessee shall be entitled to the
possession, use and quiet enjoyment of the Equipment during the Term and any
Renewal Term in accordance with the terms of the Lease. Lessee warrants that
the Equipment will at all times be used and operated solely in the conduct of
Lessee's business for the purpose for which it was designed and intended and
under and in compliance with applicable laws and all lawful acts, rules,
regulations and orders of any governmental bodies or officers having power to
regulate or supervise the use of such property, except that Lessee may in good
faith and by appropriate proceedings contest the application of any such rule,
regulation or order in any reasonable manner that will not adversely affect the
interest of Lessor in any Equipment or subject the same to forfeiture or sale.
Lessee will not permit its rights or interest hereunder to be subject to any
lien, charge or encumbrance and will keep the Equipment free and clear of any
and all liens, charges, encumbrances and adverse claims (except those arising
from acts of Lessor).
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12. NET LEASE; LOSS AND DAMAGE
(A) This is a net lease. Lessee assumes all risk of and shall
indemnify Lessor against all damage to and loss of the Equipment from any cause
whatsoever, whether or not such loss or damage is or could have been covered by
insurance. Except as otherwise specifically provided herein, the Lease shall
not terminate and there shall be no abatement, reduction, suspension or
deferment of interim or Periodic Rental for any reason, including damage to or
loss of the Equipment or any one or more items. Lessee promptly shall give
lessor written notice of any material loss or damage, describing completely and
in detail the cause and the extent of loss and damage. At the option of Lessor,
Lessee shall: (i) repair or restore the damaged or lost items to good condition
and working order; or (ii) replace the damaged or lost items with similar
equipment in good condition and working order; or (iii) pay Lessor in cash the
Stipulated Loss Value of the damaged or lost items. Upon Lessee's complying with
the foregoing, Lessor shall pay or cause to be paid over to Lessee the net
proceeds of insurance, if any, with respect to such damage or loss. "Damage" and
"loss" shall include damages and losses of any kind whatsoever including,
without limitation, physical damage and partial or complete destruction,
including intentionally caused damage and destruction, and theft.
(B) If Lessee pays Lessor the Stipulated Loss Value for an item,
that the Lease shall terminate with respect to that item, that shall no longer
be deemed part of the Equipment and Lessee shall be entitled to retain the
item. However, it is understood that Lessor make no representation or warranty
with respect to the item, and further that Lessor shall have no obligation to
pay any tax with respect thereto. In the event that Lessee pays Lessor the
Stipulated Loss Value for an item, no further interim Rental shall be payable
with respect to the item, and Periodic Rental for the remainder of the Term
shall be reduced by multiplying the Cost of that item by the Periodic Rate by
the number of months then remaining in the Basic Term.
13. STIPULATED LOSS VALUE
The "Stipulated Loss Value" of an item shall be a sum computed by Lessor, which
is equal to that portion of the Cost of that item which remains outstanding
presuming that Periodic Rental payments received are first applied to earned
but unpaid interest at the rental rate as specified in the Addendum. The
Stipulated Loss Value for the Equipment shall not exceed the amount set forth
in the Closing Schedule for the Lease Year during which the loss occurs, which
amount shall be pro-rated monthly effective to the month in which payment of
the Stipulated Loss Value is received by Lessor. A "Lease Year" is a
twelve-month period beginning on the Closing Date or on any anniversary thereof.
14. SECURITY INTEREST AND MARKING
(A) This lease is one intended as security and for tax purposes,
both parties will treat this transaction as a secured loan by Lessor to Lessee.
(B) If so requested by Lessor, Lessee will affix tags, supplied by
Lessor, reflecting Lessor's security interest in the Equipment.
15. LESSEE'S INDEMNITIES
Lessee will defend, indemnify and hold harmless Lessor from and against any
claim, cause of action, damage, liability, cost or expense (including but not
limited to legal fees and costs) which may be asserted against or incurred in
any manner by or for the account of Lessor or Lessee: (i) relating to the
Equipment or any part thereof, including without limitation the manufacture,
construction, purchase, delivery, acceptance or rejection, installation,
ownership, sale, leasing, removal or return of the Equipment, or as result of
the use, maintenance, repair, replacement, operation or the condition thereof
(whether defects are latent or discoverable); (ii) by reason or as a result of
any act or omission of Lessee for itself or as agent or attorney-of-fact for
Lessor hereunder; (iii) as a result of claims for patent, trademark or
copyright infringement; or (iv) as a result of product liability claims or
claims for strict liability.
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16. LESSOR MAY PERFORM
If Lessee at any time shall fail to pay to any person any sum which Lessee is
required by the Lease to pay or shall fail to do or perform any other thing
Lessee is required by the Lease to do or perform, Lessor at its option may pay
such sum or do or perform such thing, and Lessee shall reimburse Lessor on
demand for the amount of such payment and for the cost and expense which may be
incurred by Lessor for such acts or performance, together with interest thereon
at the Default Rate from the date of demand until paid.
17. EVENTS OF DEFAULT AND REMEDIES
(A) Events of Default. Each of the following shall constitute an event
of default:
(i) Failure to perform and comply with the provisions and
conditions of Section B hereof; or
(ii) Failure to pay on the date when due, any sum, including
installments of rental, owed by Lessee or any affiliate of
Lessee at anytime to Lessor; or
(iii) Failure to perform and comply with any other provision or
condition of the Lease within thirty (30) days after Lessor
shall have given Lessee written notice of default with respect
thereto; or
(iv) Any event of default occurs with respect to any obligations of
Lessee to lessor on or with respect to any transactions,
debts, undertakings or agreements other than the lease; or
(v) If any representation or warranty made by Lessee herein or in
any statement or certificate furnished by Lessee in connection
with this Agreement proves untrue in any material respect as
of the date of making thereof, and shall not be made good
within thirty (30) days after written notice thereof to
Lessee, or Lessee becomes insolvent or is generally not paying
its debts as they become due or makes an assignment for
benefit of creditors; or
(vi) Proceedings are commenced by Lessee under the Federal
Bankruptcy Code or any similar Federal or State laws for the
relief of debtors are commenced against Lessee and are not
dismissed within sixty (60) days after such commencement, or a
trustee or receiver is appointed for Lessee or a major part of
its property and is not discharged within thirty (30) days
after such appointment; or
(vii) Any item of Equipment is seized or levied on under legal or
governmental process against Lessee or against such item of
Equipment or for any reason Lessor deems itself insecure; or
(viii) The merger, consolidation, reorganization, conversion to a
Subchapter "S" status or dissolution of a corporate or
partnership Lessee which has a materially adverse effect upon
Lessor's position under the Lease.
(B) Remedies. The occurrence of an Event of Default shall terminate any
obligation of Lessor to lease Equipment or items thereof to Lessee. When an
Event of Default has occurred and is continuing, Lessor at its option may:
(i) Proceed by appropriate court action or actions, either at law
or in equity, to enforce performance by the Lessee of the
applicable covenants of this Lease or to recover damages for
the breach thereof; and/or
(ii) Without notice or demand declare immediately due and payable
the entire Stipulated Loss Value of any and all Items of
Equipment then under lease plus any and all amounts which
under the terms of the Lease may be then due; and thereupon
MetLife shall have an immediate right to pursue all remedies
provided by law, including, without limitation, the following:
(a) Lessee agrees to put Lessor in possession of the
Equipment on demand;
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(b) Lessor is authorized to enter any premises where
Equipment is situated and take possession thereof
without notice or demand and without legal proceedings.
(c) At Lessor's request, Lessee will assemble the Equipment
and make it available to Lessor at a place designated by
Lessor which is reasonably convenient to both parties.
(d) Lessee agrees that ten (10) days from the time notice
is sent shall be a reasonable period of notification of
a sale or other disposition of the Equipment;
(e) Lessee agrees to pay on demand the amount of all
expenses reasonably incurred by Lessor in protecting or
realizing on the Equipment;
(f) If Lessor disposes of the Equipment, Lessee agrees to
pay any deficiency remaining after application of the
net proceeds to the amounts due hereunder.
If upon the occurrence of an Event of Default, Lessor brings suit or otherwise
incurs expenses for protection of Lessor's rights, Lessee will pay Lessor its
legal fees, in a reasonable amount, together with Lessor's collection expenses
and court costs. In addition, from and after an Event of Default, Lessee shall
be liable for interest on amounts due Lessor hereunder at a rate per annum
computed monthly which shall be five (5) percentage points above the prime
rate, but not greater than the maximum rate, if any, limited by application law
("Default Rate"); provided however, that Lessee shall not be assessed a late
charge during such period of time that Default Rate is accruing against Lessee
as herein stated. The remedies herein provided in favor of Lessor shall not be
deemed to be exclusive but shall be concurrent and cumulative and in addition
to all other remedies available at law or equity. The exercise or partial
exercise of any remedy shall not restrict Lessor from further exercise of that
remedy or any other remedy.
18. SURRENDER
At any time that Lessee is required to deliver the Equipment to Lessor, Lessee
shall immediately cease using the Equipment and at Lessee's expense shall
redeliver and surrender the Equipment to Lessor in good order, condition and
repair, ordinary wear and tear excepted, securely crated and safely packed, at
a place to be designated by Lessor in the State where the Equipment by the
terms of the Addendum is required to be kept, and, if Lessor so specifies,
loaded FOB on a common or contract carrier designated by Lessor.
19. HOLDOVER
If Lessee shall not immediately redeliver and surrender any Item of Equipment
to Lessor when required by the terms hereof, Lessee shall pay Lessor, at such
time or times as Lessor may demand, a sum equal to a one-month installment of
Periodic Rental for each calendar month or fraction of a month during which
such failure to redeliver and surrender continues.
20. INSPECTION; REPORTS
Lessor, its agents and employees shall have the right to enter upon any
premises where the Equipment or Items are then located to inspect and examine
the same during normal business hours and at any other times if Lessor
reasonably believes any Items or Lessor's rights are in jeopardy of damage or
loss. So long as Lessee is not in default, Lessor shall give Lessee not less
than twenty-four (24) hours notice of such inspection. Lessee shall
immediately give Lessor written notice of any damage to or loss of the
Equipment or any Items from any cause, including without limitation damage or
loss caused by accident, the elements, intentional acts and theft. Such notice
shall set forth an itemization of the affected Items and a detailed account of
the event, including names of any injured persons and a description of any
damaged property arising from any such event or from any use or operation of
the Equipment or any Items, and of any attempt to take, distrain, levy upon,
seize or attach the Equipment or any Items. All rights granted to Lessor herein
are for the benefit of Lessor and shall not be construed to impose any
obligation on Lessor, whether or not Lessor makes any inspections or receives
any reports.
21. FINANCIAL AND OTHER DATE
During the Term and any Renewal Term, Lessee: (a) shall furnish Lessor annual
balance sheets and profit and loss statements of Lessee and any guarantor of
Lessee's obligations accompanies, at Lessor's request, by the audit report of
an independent certified public accountant acceptable to Lessor; and (b) at
Lessor's request, shall furnish Lessor all other financial information and
reports reasonably by Lessor at any time, including quarterly or other interim
balance sheets and profit and loss statements of Lessee and
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any such guarantor. Lessee shall furnish such other information as Lessor may
reasonably request at any times concerning Lessee and its affairs.
22. WARRANTY OF INFORMATION
Lessee warrants that all information furnished and to be furnished to Lessor is
accurate and that all financial statements it has furnished and hereafter may
furnish Lessor, including operating statements and statements of condition, are
and will be prepared in accordance with generally accepted accounting
principles, consistently applied, and reasonably reflect and will reflect, as
of their respective dates, results of the operations and the financial
condition of Lessee and of any other entity they purport to cover.
23. NON-WAIVER
Neither the acceptance by Lessor of any payment or any other performance, nor
any act or failure of Lessor to act or to exercise any rights, remedies or
options in any one or more instances shall constitute a waiver of any such
right, remedy or option or of any other then existing or thereafter accruing
right, remedy or option, or of any breach or default then existing or
thereafter occurring. No purported waiver by Lessor of any right, remedy,
option, breach or default shall be binding unless in writing and signed by an
officer of Lessor. A written waiver by Lessor of any right, remedy, option,
breach or default shall not constitute a waiver of any other then existing or
thereafter accruing right, remedy or option or of any other then existing or
thereafter occurring breach or default.
25. NOTICES; PAYMENTS
(A) A written notice may be given: (i) by delivering the same to a
corporate officer of the party to whom it is directed (the "Addressee"), or to
a general partner if the Addressee is a partnership, or to the owner if the
Addressee is a sole proprietorship, or (ii) by mailing the notice to the
Addressee by first class mail, registered or certified, with postage prepaid,
addressed to the Addressee at the address following its name in the opening
paragraph of this Master Lease or to such other address as Addressee may
specify by notice in writing given in accordance with this Section. A notice so
mailed shall be deemed given on the third business day following the date of
mailing. A "business day" shall be any day that is not a Saturday or Sunday or
a legal holiday.
(B) The Lessee shall make all payments to Lessor at the place where the
notice is to be mailed to Lessor pursuant to subparagraph (A). Payments are
deemed paid when received by Lessor.
25. ASSIGNMENT
(A) Lessee shall not assign the Lease or any rights in or to the Equipment
or Items. Any attempted assignment shall be of no effect, unless Lessor first
shall have consented thereto in writing. Lessor's consent to an assignment in
any one or more instances shall not impose any obligation upon Lessor to
consent to any other or further assignments. Lessor's consent to an assignment
shall not release Lessee from any obligations with respect to the Lease unless
expressly so stated in the written consent.
(B) All rights of Lessor hereunder may be assigned, pledged, mortgaged,
transferred or otherwise disposed of, either in whole or in part, without
notice to Lessee but subject always to the rights of Lessee under this lease.
If Lessee is given notice of any such assignment, Lessee shall acknowledge
receipt thereof in writing. In the event that Lessor assigns this Lease or the
rent due or to become due hereunder or any other interest herein, whether as
security for any of its indebtedness or otherwise, no breach or default by
Lessee hereunder or pursuant to any other agreement between Lessor and Lessee,
should there be one, shall excuse performance by Lessee of any provision
hereof, it being understood that in the event of such default or breach by
Lessor that Lessee shall pursue any rights on account thereof solely against
Lessor. No such assignee shall be obligated to perform any duty, covenant or
condition requested to be performed by Lessor under the terms of this Lease.
Page 8
9
26. SURVIVAL
The representations, warranties, indemnities and agreements of Lessee, and
Lessee's obligations under any and all provisions of the Lease, shall survive
the expiration or other termination of the Lease, shall be binding upon its
successors and assigns and are expressly made for the benefit of and shall be
enforceable by Lessor and its successors and assigns.
27. MISCELLANEOUS
(A) The term "Lessor" shall mean the Lessor named herein and its
successors and assigns.
(B) Whenever the context so requires, any pronoun gender includes all
other genders, and the singular includes the plural. If more than one person
constitute Lessee, whether as a partnership or otherwise, all such persons are
and shall be jointly and severally liable for all agreements, undertakings and
obligations of Lessee.
(C) All captions and section, paragraph and other divisions and
subdivisions are for convenience of reference only and shall not affect the
construction, interpretation or meaning of the agreement or Lease or of any of
the provisions thereof.
(D) This Lease shall be governed by and construed according to the law
of the State of Washington.
(E) This Lease shall be binding upon and, except as limited in Section
25 hereof, shall inure to the benefit of Lessor and Lessee and their respective
successors and assigns.
(F) This Lease cannot be canceled or terminated except as expressly
provided herein.
(G) Wherever Lessor's consent is required hereunder, such consent will
not be unreasonably withheld.
(H) Lessee's obligation to pay or reimburse Lessor for expenses as
provided hereunder shall be limited to reasonable expenses.
28. LESSOR'S DISCLAIMER
Lessee acknowledges and agrees that it has selected both the Equipment of the
type and quantity which is the subject of this Lease and the supplier from whom
the Equipment was purchased. LESSOR MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS,
CONDITION, QUALITY, WORKMANSHIP, OR THE SUITABILITY, ADEQUACY, OPERATION, USE
OR PERFORMANCE OF THE EQUIPMENT OR AS TO ITS MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. ANY DELAY IN DELIVERY SHALL NOT AFFECT THE VALIDITY OF THIS
LEASE. The Lessee understands and agrees that neither the supplier nor any
salesman or any agent of the supplier is an agent of Lessor. No salesman or
agent of supplier is authorized to waive or alter any term or condition of this
Lease, and no representation as to the Equipment or any other matter by the
supplier shall in any way affect Lessee's duty to pay the rent and perform its
obligations as set forth in this Lease. Lessor shall not be liable to Lessee
for any incidental, consequential, or indirect damages or for any act, neglect,
omission, breach or default by any third party.
29. NO AFFILIATION WITH SUPPLIERS
Lessee warrants that neither it nor any of its officers, directors (if a
corporation) or partners (if a partnership) has, directly or indirectly, a
substantial financial interest in the manufacturer or supplier of any Equipment
except as previously disclosed in writing to Lessor.
Page 9
10
30. ENTIRE AGREEMENT
This Master Lease and any Lease Purchase Addenda hereto shall constitute the
entire agreement between the parties and shall not be altered or amended except
by an agreement in writing signed by the parties hereto or their successors or
assigns.
IN WITNESS WHEREOF Lessor and Lessee have signed this agreement as of
the day and year first hereinabove written.
LESSOR: LESSEE:
FIDELITY LEASING CORPORATION
By: By: /s/ Xxxx Xxxxxxx
------------------------ ------------------------
Its Its V.P. Lab Ops
------------------------ ------------------------
Page 10
11
LEASE PURCHASE ADDENDUM NO. 1
THIS ADDENDUM is entered into the 8th day of January, 1996 between FIDELITY
LEASING CORPORATION ("Lessor") whose mailing address is 0 Xxxx Xxxxxxxx Xxxx
Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 and PharmChem Laboratories, Inc.
("Lessee") whose address is 0000 X. X'Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000.
Lessee has requested to lease from Lessor the following items of personal
property (individually, an "Item" and, collectively, the "Equipment") for the
prices and for delivery as follows:
NAME AND ADDRESS OF COMPLETE DESCRIPTION OF
SUPPLIER QUANTITY EQUIPMENT UNIT PRICE
Olympus America, Inc. 1 New Olympus AU800 $265,000.00
X.X. Xxx 0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000 Serial #406704
SALES TAX $ 21,862.50
TOTAL COST $286,862.50
_______________________________________________________________________________
Date Delivery Instructions to be specified
Delivery by Lessee to Supplier TOTAL COST: $286,862.50
Expected:
_______________________________________________________________________________
Street City County State
SHIP TO
LESSEE AT:
-------------------------------------------------------------------------------
Lessee and Lessor AGREE that subject to the conditions and agreements herein
and in the Master Lease referred to below (i) Lessor shall lease the Equipment
to Lessee, and (ii) Lessee shall lease the Equipment from Lessor and perform
and comply with the provisions of this Agreement.
Certain Definitions and Stipulations:
Purchase Cut-Off Date: January 8, 1996
Particular Lease Terms:
Length of Basic Term: Sixty (60) months
Periodic Rental Rate (for each installment) 2.040% percent (%) of Lessor's Cost of the Equipment
Payment Schedule: monthly in arrears
Interim Rental: $5,156.35
Purchase: On the last day of the term of this Lease or any
extension thereof, Lessee shall purchase for cash all Lessor's interest in
Equipment then under lease for $1.00. Upon payment of the purchase price and of
all Rentals and other sums owing under this Lease, Lessor shall transfer to
Lessee all right and interest of Lessor in and to the Equipment, in its then
condition, without any representation or warranty other than the warranty that
the Equipment is not subject to any liens resulting from acts of Lessor.
Premises where Equipment will be kept: 0000 X X'Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
12
PharmChem-Fidelity
Lease Purchase Addendum 1
Page 2
INSURANCE REQUIRED:
LIABILITY: Not less than $1,000,000 Combined Single Limit Liability
insurance, including bodily injury and death, and property damage,
naming Lessor as additional insured.
PHYSICAL DAMAGE. Not less than the Stipulated Loss Value of the
Equipment at any time All risk physical damage insurance, including
loss by burglary, theft, and malicious mischief, for full replacement
value of the equipment, naming Lessor as loss payee.
EARLY TERMINATION: At any time after the second Lease Year (and so long as
Lessor is not in default), Lessee may terminate this Lease on any Periodic
Rental payment date by giving Lessor at least thirty (30) days advance written
notice, which shall be irrevocable. On the date of termination, Lessee shall
pay Lessor the total of (i) Periodic Rental due on the date and all other
amounts due hereunder, (ii) the Stipulated Loss Value, and (iii) a prepayment
premium. For purposes of this Lease, "Prepayment Premium" shall mean the
amount, if any, payable by Lessee to Lessor to offset the adverse impact to
Lessor of a downward movement in interest rates from either the Acceptance Date
(the date Debtor signed the proposal letter) for fixed rate bids or the Closing
Date for fleet to takedown bids to the date of termination. The Prepayment
Premium is determined by (i) calculating the decrease (expressed in basis
points) in the current weekly average yield of three year U.S. Treasury Notes
(as published in Federal Reserve Statistical Release H.15[519]) from the
applicable Acceptance or Closing Date to the prepayment date, (ii) dividing the
difference by 100, (iii) multiplying the result by the applicable premium
factor shown below, and (iv) multiplying the product by the Stipulated Loss
Value.
NUMBER OF MONTHS REMAINING YEARS PREMIUM FACTOR
-------------------------- ----- --------------
60-49 (5) .024
48-37 (4) .019
36-25 (3) .014
24-13 (2) .010
12-1 (1) .005
MASTER LEASE: Lessor and Lessee are entering into or have entered into a
Master Lease Purchase Agreement ("Master Lease") dated December 18, 1995. All
of the terms, conditions, agreements and provision of the Master Lease are
incorporated herein by this reference and constitute a part of this Addendum.
If there shall be any conflict between any provision of the Master Lease and a
provision of this Addendum, the provision of the Addendum shall govern.
LESSOR'S DISCLAIMER: Lessee acknowledges and agrees that it has selected both
the Equipment of the type and quantity which is the subject of this Addendum
and the supplier from whom Lessor purchased the Equipment. LESSOR MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESIGN, COMPLIANCE
WITH SPECIFICATIONS, CONDITION, QUALITY, WORKMANSHIP, OR THE SUITABILITY,
ADEQUACY, OPERATION, USE OR PERFORMANCE OF THE EQUIPMENT OR AS TO ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ANY DELAY IN DELIVERY
SHALL NOT AFFECT THE VALIDITY OF THE MASTER LEASE OR THIS ADDENDUM. The Lessee
understands and agrees that neither the supplier nor any salesman nor any agent
of the supplier is authorized to waive or alter any term or condition of the
Master Lease or this Addendum, and no representation as to the Equipment or any
other matter by the supplier shall in any way affect Lessee's duty to pay the
rent and perform its obligations as set forth in the Master Lease or this
Addendum. Lessor shall not be liable to Lessee for incidental, consequential,
or indirect damages or for any act, neglect omission, breach or default by
Lessor or any third party.
MISCELLANEOUS: The parties hereto hereby agree to amend the Master Lease
Purchase Agreement Section 27.D shall be changed such that the laws of the
State of California shall apply. The Master Lease Purchase agreement shall be
amended, with respect to this Lease Purchase Addendum NO. 1 only, such that the
Basic Term shall begin on January 31, 1996.
LESSOR LESSEE:
FIDELITY LEASING CORPORATION PHARMCHEM LABORATORIES, INC.
By: By: /s/ Xxxxx X. Xxxxxx
---------------------------- ----------------------------
Its: Its: CFO/VP
--------------------------- ---------------------------
13
LEASE PURCHASE ADDENDUM NO. 2
THIS ADDENDUM is entered into the 19th day of January, 1996 between FIDELITY
LEASING CORPORATION ("Lessor") whose mailing address is 0 Xxxx Xxxxxxxx Xxxx
Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000 and PharmChem Laboratories, Inc.
("Lessee") whose address is 0000X X'Xxxxx Xxxxx, Xxxxx Xxxx, XX 00000.
Lessee has requested to lease from Lessor the following items of personal
property (individually, an "Item" and, collectively, the "Equipment") for the
prices and for delivery as follows:
NAME AND ADDRESS OF COMPLETE DESCRIPTION OF
SUPPLIER QUANTITY EQUIPMENT UNIT PRICE
Olympus America, Inc. 1 New Olympus AU800 $265,000.00
X.X. Xxx 0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000 Serial #406705.
SALES TAX $ 21,862.50
TOTAL COST $286,862.50
_______________________________________________________________________________
Date Delivery Instructions to be as specified
Delivery by Lessee to Supplier TOTAL COST: $286,862.50
Expected:
_______________________________________________________________________________
Street City County State
SHIP TO
LESSEE AT:
-------------------------------------------------------------------------------
Lessee and Lessor AGREE that subject to the conditions and agreements herein
and in the Master Lease referred to below (i) Lessor shall lease the Equipment
to Lessee, and (ii) Lessee shall lease the Equipment from Lessor and perform
and comply with the provisions of this Agreement.
Certain Definitions and Stipulations:
Purchase Cut-Off Date: January 15, 1996
Particular Lease Terms:
Length of Basic Term: Sixty (60) months
Periodic Rental Rate (for each installment) 2.0275% percent (%) of Lessor's Cost of the Equipment
Payment Schedule: Monthly in arrears
Interim Rental Rate: $2,227.96 plus $71.72 per day from the Funding Date through
January 31, 1996
Purchase: On the last day of the term of this Lease or any
extension thereof, Lessee shall purchase for cash all Lessor's interest in
Equipment then under lease for $1.00. Upon payment of the purchase price and of
all Rentals and other sums owing under this Lease, Lessor shall transfer to
Lessee all right and interest of Lessor in and to the Equipment, in its then
condition, without any representation or warranty other than the warranty that
the Equipment is not subject to any liens resulting from acts of Lessor.
Premises where Equipment will be kept: 0000 X X'Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
14
PharChem-Fidelity
Lease Purchase Addendum 2
Page 2
Insurance Required:
Liability: Not less than $1,000,000 Combined Single Limit Liability
insurance, including bodily injury and death, and property damage,
naming Lessor as additional insured.
Physical Damage. Not less than the Stipulated Loss Value of the
Equipment at any time All risk physical damage insurance, including loss
by burglary, theft, and malicious mischief, for full replacement value
of the equipment, naming Lessor as loss payee.
Early Termination: At any time after the second Lease Year ( and so long
as Lessee is not in default), Lessee may terminate this Lease on any Periodic
Rental payment date by giving Lessor at least thirty (30) days advance written
notice, which shall be irrevocable. On the date of termination, Lessee shall
pay Lessor the total of (i) Periodic Rental due on the date and all other
amounts due hereunder, (ii) the Stipulated Loss Value, and (iii) a prepayment
premium. For purposes of this Lease, "Prepayment Premium" shall mean the
amount, if any, payable by Lessee to Lessor to offset the adverse impact to
Lessor of a downward movement in interest rates from either the Acceptance Date
(the date Debtor signed the proposal letter) for fixed rate bids or the Closing
Date for float to takedown bids to the date of termination. The Prepayment
Premium is determined by (i) calculating the decrease (expressed in basis
points) in the current weekly average yield of three year U.S. Treasury Notes
(as published in Federal Reserve Statistical Release H.15[519]) from the
applicable Acceptance or Closing Date to the prepayment date, (ii) dividing
the difference by 100, (iii) multiplying the result by the applicable premium
factor shown below, and (iv) multiplying the product by the Stipulated Loss
Value.
NUMBER OF MONTHS REMAINING YEARS PREMIUM FACTOR
60-49 (5) .024
48-37 (4) .019
36-25 (3) .014
24-13 (2) .010
12-1 (1) .005
Master Lease: Lessor and Lessee are entering into or have entered
into a Master Lease Purchase Agreement ("Master Lease") dated December 18,
1995. All of the terms, conditions, agreements and provision of the Master
Lease are incorporated herein by this reference and constitute a part of this
Addendum. If there shall be any conflict between any provision of the Master
Lease and a provision of this Addendum, the provision of the Addendum shall
govern.
Lessor's Disclaimer: Lessee acknowledges and agrees that it has selected
both the Equipment of the type and quantity which is the subject of this
Addendum and the supplier from whom Lessor purchased the Equipment. LESSOR MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESIGN, COMPLIANCE
WITH SPECIFICATIONS, CONDITION, QUALITY, WORKMANSHIP, OR THE SUITABILITY,
ADEQUACY, OPERATION, USE OR PERFORMANCE OF THE EQUIPMENT OR AS TO ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ANY DELAY IN DELIVERY
SHALL NOT AFFECT THE VALIDITY OF THE MASTER LEASE OR THIS ADDENDUM. The Lessee
understands and agrees that neither the supplier nor any salesman nor any agent
of the supplier is authorized to waive or alter any term or condition of the
Master Lease or this Addendum, and no representation as to the Equipment or any
other matter by the supplier shall in any way affect Lessee's duty to pay the
rent and perform its obligations as set forth in the Master Lease or this
Addendum. Lessor shall not be liable to Lessee for incidental, consequential,
or indirect damages or for any act, neglect omission, breach or default by
Lessor or any third party.
Miscellaneous: The parties hereto hereby agree to amend the Master
Lease purchase Agreement Section 27.D shall be changed such that the laws of
the State of California shall apply. The Master Lease Purchase agreement shall
be amended, with respect to this Lease Purchase Addendum NO. 2 only, such that
the Basic Term shall begin on January 31, 1996.
LESSOR LESSEE:
FIDELITY LEASING CORPORATION PHARMCHEM LABORATORIES, INC.
By: By: /s/ Xxxxx X. Xxxxxx
------------------------ ------------------------
Its Its CFO & VP
------------------------ ------------------------
15
This FINANCING STATEMENT is presented for filing and will remain effective with
certain exceptions for a period of five years from the date of filing pursuant
to section 9403 of the California Uniform Commercial Code.
-------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
PHARMCHEM LABORATORIES, INC. 00-0000000
---------------------------------------------------------------------------------------------
1B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000X X'XXXXX XXXXX XXXXX XXXX, XX 00000
---------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
(LAST NAME FIRST--IF AN INDIVIDUAL)
---------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
---------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
---------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BASE TRANSIT AND A.R.A. NO.
NAME FIDELITY LEASING CORPORATION
MAILING ADDRESS 0 XXXX XXXXXXXX XXXX, XXXXX 000 00-0000000
CITY XXXXXX, XXXXX XX 00000 ZIP CODE
---------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
OR BASE TRANSIT AND A.R.A. NO.
NAME
MAILING ADDRESS
CITY STATE ZIP CODE
---------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property
(include description of real property on which located and owner of record when required
by instruction 4).
TWO (2) OLYMPUS AU800 AUTOMATED CHEMISTRY ANALYZERS
SERIAL NUMBERS 406704, 406705
---------------------------------------------------------------------------------------------
7. CHECK [X] 7A. [ ] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN
IF APPLICABLE ARE ALSO COVERED ACCORDANCE WITH INSTRUCTION 5(o) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
---------------------------------------------------------------------------------------------
8. CHECK [X] [ ] DEBTOR 1S A -TRANSMITTING UTILITY IN ACCORDANCE WITH
IF APPLICABLE UCC 1 9105 (1)(A)
---------------------------------------------------------------------------------------------
9. DATE C 10. THIS SPACE FOR USE OF FILING
-- /s/ Xxxxx X. Xxxxxx, V.P. 1/18/96 O OFFICER (DATE, TIME, FILE NUMBER
D AND FILING OFFICER)
SIGNATURE(S) OF DEBTOR(S) E
------------------------------------------------- -----
PHARMCHEM LABORATORIES, INC.
TYPE OR PRINT NAME(S) OF DEBTOR(S)
-------------------------------------------------
-- /s/ Xxxx X. Xxxxxxx, V.P.
SIGNATURE(S) OF DEBTOR(S)
-------------------------------------------------
FIDELITY LEASING CORPORATION
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES)
-------------------------------------------------
1
11. Return copy to: 2
3
NAME -- -- 4
ADDRESS 5
CITY 6
STATE 7
ZIP CODE -- -- 8
------------------------------------------------- 9
FORM UCC.1-- 0
Approved by the Secretary of State
---------------------------------------------------------------------------------------------
