LEASING INNOVATIONS, INCORPORATED LEASE AGREEMENT XX. XXX000000
000 X. Xxx 000, Xxxxx X
Xxxxxx Xxxxx, XX 00000
(000)000-0000 0(800)000-0000
Lessee: Blue Rhino Corporation Vendor: National Datacomputer, Inc.
000 Xxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxxx Xxxxxxxx, Xxxx. 0
Xxxxxxx-Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Lessee's Tax/I.D.#: 00-0000000
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Deliver to Address (if other than above)
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Quantity Description
See Attached Schedule A
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When Payable [X] Monthly Minimum Term Amount of Each Rental Payment [ ] Security Deposit $
[ ] Quarterly A B -------------------
Check One [ ] Other 30 Months $1,183.66 [X] Advance Payment $2,367.32
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plus applicable sales tax
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Additional provisions (If Any) First and Last Payment Due in Advance
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TERMS AND CONDITIONS - PLEASE READ CAREFULLY BEFORE SIGNING
1. LEASE Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor the equipment described above or on any attached Schedule(s), on the
terms and conditions set forth in this lease agreement.
2. WARRANTIES. LESSOR HAS NOT MADE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, THE QUALITY OR CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR A PARTICULAR PURPOSE. Lessor will not be
liable for any loss or damage to Lessee or others arising from defects,
negligence, delays, failure to deliver, interference with any patent, trademark,
copyright or other intellectual property right, or nonperformance of the
equipment. No representation or warranty as to the equipment or any other matter
by the manufacturer, vendor or others shall be binding on lessor nor shall the
breach of such release Lessee from any of Lessee's obligations to Lessor. Lessor
assigns to Lessee all warranties of third parties concerning the subject matter
hereof without recourse against Lessor. Lessee confirms that: (a) They are a
corporation duly organized and validly existing and in good standing under the
laws of the State of North Carolina; (b)(i) The leasing of the Equipment from
Lessor by Lessee, the execution and delivery of the Lease, Rental Schedule,
Certificate of Delivery and Acceptance (in the case of a sale-leaseback, the
sale of the Equipment by Lessee to Lessor and the Xxxx of Sale) and other
related instruments and agreements and the compliance by Lessee with the terms
thereof, (ii) have been duly and legally authorized by appropriate corporate
action taken by Lessee, (iii) are not in contravention of, and will not result
in a breach of, any of the terms of Lessee's Certificate of Incorporation, its
By-laws, or of any provisions relating to any of it's Loan Agreement, Credit
Agreements, or indentures of Lessee, or any other contract, agreement or
instrument to which Lessee is a party or under which it is bound, and (iv) will
not violate any applicable state or federal laws. (c) The Lease, Rental
Schedule, Certificate of Delivery and Acceptance and/or Xxxx of Sale and other
related instruments and agreements with respect to the Equipment, when executed
by Lessee's duly authorized officers or designees and delivered to Lessor, will
constitute a valid and legally binding obligation of Lessee, enforceable in
accordance with the terms thereof. (d) Lessor's title to the Equipment is
absolute and Lessee's right, title and interest in and to the Equipment
described in any Rental Schedule, and the rentals thereof, will not be affected
or impaired by the terms of any Loan Agreement or Indenture, or any other
contract, agreement or instrument, to which Lessee is a party, or under which it
is bound. (e) There is not now pending against or affecting Lessee, nor to our
knowledge is there threatened, any action, suit or proceeding at law or in
equity or by or before any administrative agency which if decided adversely to
Lessee, would directly or indirectly affect or impair your title to the
Equipment, or would materially impair of affect Lessee's financial condition or
operation. (f) No authorization, approval or consent of any public body, agency,
commission or board, federal, state or local, is necessary or required, by
statute or otherwise, in connection with the execution of the Lease, Rental
Schedule, Certificate of Delivery and Acceptance and/or Xxxx of Sale and other
related instruments and agreements or for the assumption of the obligations of
Lessee thereunder.
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GUARANTY
To induce Lessor to enter into the within lease, the undersigned jointly and
severally unconditionally guarantees to Lessor the prompt payment when due of
all of Lessee's obligations to Lessor under the lease. Lessor shall not be
required to proceed against Lessee or the equipment or enforce any other remedy
before proceeding against the undersigned. The undersigned agrees to pay all
attorney's fees and other expenses incurred by Lessor by reason of default by
the Lessee or the undersigned. The undersigned waives notice of acceptance
hereof and of all other notices or demands of any kind to which the undersigned
may be entitled. The undersigned consents to any extensions or modifications
granted to Lessee and the release and/or compromise of any obligations of Lessee
or any other obligors and guarantors without in any way releasing the
undersigned from its obligations hereunder. This guaranty shall bind the heirs,
administrators, representatives, successors and assigns of the undersigned, and
may be enforced by or for the benefit of any assignee or successor of Lessor.
The undersigned consents to the jurisdiction of any Federal or State Court,
located in San Diego County, California with respect to any legal action
commenced hereunder.
X X
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GUARANTOR SIGNATURE DATED GUARANTOR SIGNATURE DATED
Accepted By
LEASING INNOVATIONS, INCORPORATED BLUE RHINO CORPORATION
By Signature Illegible By /s/ Xxxxx Xxxxxxxxx V.P./CFO
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Authorized Signature Lessee's Signature Title
7/30/96 Treasurer /s/ Xxxxxxx X. Xxxxxx 7/30/96
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Date Title Witness's Signature and Date
3. TERM AND RENT. This lease will commence on the first day of the month in
which Lessee confirms its acceptance of the equipment and will continue for the
minimum number of months (above). Lessee shall be deemed to have confirmed
acceptance of the equipment if, within five (5) business days after delivery of
the equipment, Lessee has not given Lessor written notice of any objection
thereto or if Lessee makes any rent payments. The rent specified in "B" (above).
Lessee will make all rental payments, in advance, on the date or dates specified
by Lessor in a notice or notices. This lease is a noncancellable lease and
cannot be canceled by Lessee during the minimum term hereof. This lease shall be
automatically renewed for an additional one month renewal term at the completion
of the minimum term or the renewal term. Unless otherwise specified, any Advance
Payment shall be applied first to the first rental payment and then to the
latest maturing rental payments. Lessor may apply all or any part of any
Security Deposit to cure any default of Lessee under this lease. If upon final
termination of this lease, Lessee has fulfilled all of the terms and conditions
hereof, then Lessor shall pay to Lessee any remaining balance of the Security
Deposit, without interest.
4. PURCHASE ORDERS AND EQUIPMENT ACCEPTANCE. Lessee agrees that (a) Lessor has
not selected, manufactured, sold or supplied any of the equipment, (b) Lessee
has selected all of the equipment and its suppliers, (c) Lessor is purchasing
the equipment solely in connection with this lease and (d) Lessee has received a
copy of, and approved, the purchase orders/contracts for the equipment. Lessor
hereby notified Lessee that Lessee may have rights under such purchase
orders/contracts and advises Lessee to contact such suppliers for a description
of any such rights. Lessee agrees that as of the acceptance date: (a) Lessee has
received and inspected the equipment, (b) the equipment is in good working order
and complies with the purchase orders/contracts, (c) Lessee irrevocably accepts
the equipment for purposes of this lease "as-is, where-is, will all faults", and
(d) Lessee unconditionally waives any right it may have to revoke its acceptance
of the equipment.
5. WAIVER OF RIGHTS. Lessee's obligation to pay all rent and other amounts
under this lease is ABSOLUTE AND UNCONDITIONAL UNDER ALL CIRCUMSTANCES
WHATSOEVER, and shall not be affected by any circumstances of any character
whatsoever, including without limitation any limitation, any setoff,
counterclaim, defense or reduction which Lessee may have against Lessor or
anyone else for any reason whatsoever.
6. OWNERSHIP OF EQUIPMENT. Lessor shall at all times retain title to the
equipment. Lessee, at its expense, will protect and defend Lessor's title to the
equipment and will keep it free and clear of any and all claims, liens, and
encumbrances. Lessee will obtain and maintain at its expense all required,
customary or appropriate licenses, titles, registrations, and permits reflecting
Lessor as owner.
7. CARE, USE AND LOCATION. Lessee will keep and maintain the equipment in good
operating condition, repair, and appearance, reasonable wear and tear excepted
and shall use the equipment in the regular course of its business. Lessee will
not modify the equipment unless in accordance with a recommendation by the
manufacturer, without the prior written consent of Lessor. The Equipment shall
always remain and be deemed personal property even though attached to realty.
Lessee shall keep the equipment at the location shown herein and shall not
remove the equipment without the prior written consent of Lessor. Lessor shall
have the right to enter Lessee's premises at reasonable times to inspect the
equipment.
8. TAXES. Lessee will pay directly, or to Lessor, all excise taxes, sales and
use taxes, personal property taxes, and charges which may be imposed by any
governmental entity during the term of this lease arising from the acquisition,
use, ownership or leasing of the equipment whether due before or after
termination of this lease. Property taxes due for the last year of the lease
will be paid for Lessee when the lease expires or terminates. Unless otherwise
agreed to in writing, Lessor shall file personal property tax returns with
respect to the equipment. With respect to personal property taxes, upon Lessor's
request, Lessee shall pay to Lessor, in advance and at the times requested by
Lessor the taxes which Lessor anticipates will be due during the year.
9. INSURANCE. Lessee shall, at its own expense, keep the equipment insured
against all risks of loss or damage from every cause whatsoever, for no less
than the full replacement value thereof and shall carry public liability,
personal injury, and property damage insurance covering the equipment and its
use. All such insurance shall be in form, amount and with insurers satisfactory
to Lessor and shall provide for at least ten (10) days written notice of
cancellation to Lessor. Such policies shall name Lessor as Loss Payee as its
interest may appear with respect to property damage coverage and as Additional
Insured with respect to public liability coverage. Lessee shall deliver to
Lessor satisfactory evidence of insurance coverage required hereunder. Should
Lessee not deliver to Lessor satisfactory evidence of insurance coverage as
required herein, Lessee shall pay to Lessor, in addition to the cost of
insurance which the Lessor may obtain (if any), a fee equal to ten dollars
($10.00) per month. Payment of such fee does not relieve Lessee from its
obligations to obtain such insurance. Lessor shall be under no duty to ascertain
the existence or to examine the insurance policies. Lessor may, but shall not be
obligated to, insure the equipment at the expense of Lessee. Lessee hereby
irrevocably appoints Lessor as Lessee's attorney-in-fact to make claim for,
receive payment of, and execute and endorse all documents, checks, or drafts
received in payment for loss or damage under any such insurance policies.
10. INDEMNITY. Lessee will indemnify, defend by counsel approved by Lessor, and
hold Lessor, its affiliates, their officers, agents and employees harmless from
and against all loss, liability and expense, including reasonable attorney's
fees (including costs of a successful defense) for claims for negligence, tort,
strict liability, bodily injury, including death, or property damage, or for any
alleged violation of rights of others, including contact, patent, trademark,
copyright or industrial property rights, or for any alleged violation of any
law, ordinance, rule, regulation or decree, arising from the purchase, delivery
installation, operation, ownership, maintenance, use, malfunction or
interruption of this lease.
11. LOSS OR DAMAGE. Lessee shall bear all risks of loss of and damage to the
equipment from any cause and the occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of such loss or damage,
Lessee, at the option of Lessor, shall (a) replace the same in good repair,
condition and working order, or (b) replace the same with like equipment in good
repair, condition and working order.
12. FEES, COLLECTION EXPENSES, LATE CHARGES, AND ADVANCES. Lessee shall also
pay to Lessor with the first rental payment an administrative fee equal to: (a)
thirty dollars ($30.00) if the purchase price of the equipment is less that
$25,000.00, or (b) fifty dollars ($50.00) if the purchase price is $25,000.00
or greater. In addition, Lessee shall pay lessor a processing fee of $1.00 per
scheduled rental payment. If any rent or other amount payable hereunder is not
paid when due, then as compensation for the administration and enforcement of
Lessee's obligation to make timely payments, Lessee shall pay with respect to
each overdue payment on demand (i) any collection agency fees and expenses, plus
(ii) a late payment service fee of $10.00, which Lessee agrees is a reasonable
approximation of the internal costs that Lessor will incur as a result of
Lessee's delay in payment, plus (iii) interest at 18% per annum (but not to
exceed the highest rate permitted by law) on such overdue payment for the period
for which it is overdue. All advances made by Lessor to preserve said property
or to pay insurance premiums for insurance hereon (but not to exceed the highest
rate permitted by law) or to discharge and pay any taxes, liens or encumbrances
thereon shall be added to the unpaid balance of rentals due hereunder and shall
be repayable by Lessee to Lessor together with interest thereon at the highest
contract rate until paid. Lessee shall pay to Lessor a fee equal to fifteen
dollars ($15.00) for each check returned to Lessor unpaid, in addition to pay
late charge provided for herein for a delinquent payment.
13. ASSIGNMENT. LESSEE SHALL NOT, DIRECTLY OR INDIRECTLY (a) ASSIGN, SELL OR
OTHERWISE DISPOSE OF THIS LEASE OR ANY PART THEREOF, OR (b) SUBLEASE, LEND OR
TRANSFER POSSESSION OR USE OF THE EQUIPMENT OR ALLOW TO EXIST ANY LIEN OR OTHER
CLAIM TO THE EQUIPMENT OR ANY PART THEREOF, OR (c) CREATE, GRANT, ASSUME, OR
ALLOW TO EXIST ANY LIEN OR OTHER CLAIM TO THE EQUIPMENT OR ANY PART HEREOF.
Lessor and any assignee of Lessor, with or without notice to or consent of
Lessee, may sell, assign, transfer or grant a security interest in all or part
of Lessor's rights, obligations, title or interest, in the equipment, this lease
or the amounts payable under this lease to any entity (a "transferee") and in
such event the transferee shall have all of the rights, powers and remedies of
Lessor hereunder. Lessee shall not assert against any transferee and defense,
counterclaim or setoff which Lessee may have against Lessor. Lessee acknowledges
that any such transfer transaction will not materially increase or change its
obligations, burdens, duties or risks under this lease.
14. DEFAULT. Any of the following events or conditions shall constitute an
event of default hereunder: (a) Lessee fails to pay any rental or any other
payment hereunder when due; (b) Lessee fails to pay when due any indebtedness of
Lessee arising independently of this lease; (c) Lessee fails to perform any
other convenant herein and such failure continues for ten (10) days following
receipt of written notice from Lessor; (d) Lessee becomes insolvent or makes an
assignment for the benefit of creditors or ceases doing business as a going
concern; (e) a receiver, trustee, conservator, or liquidator of Lessee is
appointed with or without the application or consent of Lessee; (f) the filing
by or against Lessee of a petition under the Bankruptcy Code or any Amendment
thereto, or under any other insolvency law or laws providing for the relief of
Debtors; or (g) any representation or statement made or furnished to Lessor by
or on behalf of Lessee providing to have been false or misleading in any
material respect when made or furnished.
15. REMEDIES. If any event of default shall occur, Lessor may, at its own
option, exercise any one or more of the following remedies: (a) Lessee shall
pay upon demand by Lessor all rents and other monies then due, plus all rents
and other monies to become due, in the future discounted to present value at a
rate of 7% per annum, plus Lessor's originally anticipated residual value of the
equipment; (b) require Lessee to return the equipment to Lessor, and in the
event Lessee fails to do so, without demand or legal process, enter into the
premises where the equipment may be found and repossess the equipment without
any liability to Lessee; (c) use, hold, sell, lease, assign or otherwise dispose
of the equipment at public or private sale, with or without notice to Lessee,
without affecting the obligation of Lessee hereunder; (d) xxx for and recover
all amounts due from Lessee; (e) terminate this lease; or (f) pursue any other
remedy available to Lessor at law or in equity. Lessee agrees to pay Lessor all
costs and expenses, including reasonable attorney's fees, incurred by Lessor in
exercising any of its rights and remedies. All remedies of Lessor hereunder are
cumulative, and be exercised concurrently or separately, and are in addition to
any other remedies provided for by law. No failure on the part of the Lessor to
exercise and no delay in exercising any right or remedy shall operate as a
waiver thereof. No waiver by Lessor of any default shall constitute a waiver by
Lessor or any additional or subsequent default.
16. OPTION TO PURCHASE. Lessor hereby grants to Lessee the option to purchase
all (not part) of the equipment at the expiration of the term of this lease for
its then fair market value, provided Lessee is not in default hereunder. This
option maybe exercise by notifying Lessor in writing not less than sixty (60)
days prior to the expiration of the term of this lease. If such purchase option
is exercised, Lessee will at the expiration of the term of this lease pay to
Lessor the then fair market value.
17. RETURN OF EQUIPMENT. Upon expiration of the lease term or other
termination, Lessee shall immediately return the equipment, at Lessee's expense,
in good repair and condition, ordinary wear and tear excepted, in a manner and
to a location designated by Lessor. Should Lessee not return the equipment at
the end of the lease term, Lessee shall continue to pay rent to Lessor in the
sum and on the due dates set out in this lease as a month to month lease term
until the equipment is returned to Lessor.
18. UCC FILINGS. Lessor and Lessee agree that a reproduction of this lease may
be filed as a financing statement and shall be sufficient as a financing
statement under the Uniform Commercial code. Lessee shall execute or obtain or
deliver to Lessor, upon Lessor's request, such other documents as Lessor deems
necessary or advisable for the protection or perfection of this lease and
Lessor's rights hereunder and shall pay all costs incident thereto. Lessee
authorizes Lessor to insert in this lease, and in any filings, the serial number
of the equipment, and to sign Lessee's name in any filings. At Lessor's option,
Lessor may not file a financing statement in connection with the lease, and
charge Lessee a non-filing fee of no more than ten dollars ($10.00).
19. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL, COMPLETE, AND ENTIRE
AGREEMENT BETWEEN THE PARTIES. THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS OR
UNDERSTANDINGS AFFECTING THIS LEASE OR THE EQUIPMENT. NOTWITHSTANDING ANY PRIOR,
PRESENT OR FUTURE ORAL AGREEMENT OR COURSE OF DEALING, NO TERM OF THIS LEASE MAY
BE WAIVED, AMENDED OR CHANGED EXCEPT IN WRITING SIGNED BY BOTH PARTIES.
20. MISCELLANEOUS. All notices required under this lease shall be given to the
parties hereto in writing and delivered personally or by certified mail at the
address set forth herein or at such other address as such party may have
subsequently provided in writing. Time is of the essence of this lease. In
the event any provision hereof of shall be invalid or unenforceable, the
remaining provisions hereof shall remain in full force and effect. The
provisions of this lease shall be binding upon and shall inure to the benefit of
the permitted assigns, successors, heirs and personal representatives of Lessor
and Lessee. Lessor shall not be liable to Lessee for any indirect, consequential
or special damages for any reason whatever. If this lease is signed by more than
one Lessee, each of such Lessees shall be jointly and severally liable for
payment and performance of all of the Lessee's obligations under this lease.
21. JURISDICTION. This lease shall be binding when accepted in writing by the
Lessor in the State of California, and shall be deemed to have been made in San
Diego County, California. The interpretation, construction and validity of this
lease shall be governed by the laws of the State of California, where Lessor has
its principle place of business, and where payments are to be made by Lessee.
Lessee hereby voluntarily consents to the jurisdiction of any Federal or State
Court, located in San Diego County, California with respect to any legal action
commenced hereunder.
22. STATEMENT OF PURPOSE. Lessee hereby warrants and represent that the
equipment will be used for business purposes and not for personal, family or
household purposes, and Lessee acknowledges that Lessor has relied upon this
representation in entering into this lease.
