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EXHIBIT 10.16
PLEASE RETURN TO HILLSIDE FINANCE INTERNATIONAL
WHEN RECORDED MAIL TO:
HILLSIDE FINANCE INTERNATIONAL, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ THIS SPACE FOR RECORDER'S USE
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LANDLORD'S/MORTGAGEE'S WAIVER
This Landlord's/Mortgagee's Waiver ("Waiver") is entered into by
Hillside Finance International, LLC, ("LESSOR") and Eye Laser Associates.
("UNDERSIGNED")
This Waiver is entered into in light of the following mutually agreed
to facts:
WHEREAS, Eye Laser Associates, LLC, ("LESSEE") has entered into a
certain lease of real estate located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PREMISES") a legal description of which is attached
hereto as Schedule A with Undersigned having an address at __________________
________________________________; and
WHEREAS, Lessor, pursuant to that certain Per Procedure Equipment Lease
dated as of _________________________, ("LEASE") and Annex A - Equipment
Schedule No. Kawesh-101 dated as of ________________________, between Lessor
and Lessee, personal property consisting of machinery and/or equipment,
including any and all present and future accessories, additions, upgrades,
attachments, repairs and replacement parts, all as more fully described in
Schedule B hereto or subsequent Schedules entered into between Lessor and
Lessee (all hereinafter collectively referred to as the "EQUIPMENT"), for the
better utilization of the Premises by the Lessee;
NOW THEREFORE, the Undersigned, in consideration of the Lessor's
leasing the Equipment to the Lessee, and in consideration of the benefit to the
Undersigned resulting from such better utilization of the Premises, and
intending to be legally bound, does hereby agree that:
1. Title to, ownership of, and the right to possession as provided in
the Lease, of the Equipment shall be and remain at all times in the Lessor, its
successors, and assigns, free of any claim or right of the Undersigned, its
successors and assigns. The Undersigned waives each and every right which it
now has, or may hereafter have, under the laws of any state, or by virtue of
the Lease between Undersigned and Lessee or any other instrument or agreement
now in effect or hereafter executed, to levy upon or distrain for rent in
arrears or in any manner to claim or assert ownership, possession or title to,
or to place a lien upon the Equipment.
2. The Equipment so leased by the Lessor to the Lessee under the Lease
or any renewal, extension or modification thereof, shall not, by reason of its
installation or being placed in or upon the Premises, be construed as real
property or as forming a part of any building thereon, but shall retain its
character as personal property and shall at all times be severable from the
Premises, and shall not be or be deemed a fixture by reason of being placed in
any such building or in any manner annexed,
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attached or connected to the Premises.
3. It is further agreed that Lessor or its assigns or agents may
enter the Premises at any time for the purpose of inspecting, preserving,
protecting, displaying, selling and/or removing the Equipment from the Premises
whenever Lessor feels it is necessary to do so to protect its interest and
without liability or accountability to the Undersigned.
4. Lessor may, without affecting the validity of this Agreement,
extend the times of payment of any indebtedness of Lessee to Lessor or alter the
performance of any of the terms and conditions of the Lease, without the
consent of the Undersigned and without giving notice to the Undersigned.
5. The Undersigned will notify any purchaser of the Premises, or any
part thereof, and any future mortgagee or other encumbrance holder with respect
to the Premises, or any part thereof, of the existence of this Waiver; and this
Waiver shall run with the land and shall be binding upon the successors and
assigns of the Undersigned and shall inure to the benefit of the successors and
assigns of the Lessor.
6. This instrument shall in all respects be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, we have executed this Landlord's/Mortgagee's Waiver
as of this ___ day of ____________, ____.
_________________________________
(Landlord/Mortgagee)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Managing Member
---------------------------------
Eye Laser Associates
▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
(Print Name)
State of )
) ss.
County of )
On ___________, before me, the undersigned, a notary public in and for said
State, personally appeared __________________________________, known to me (or
proved to me on the basis of satisfactory evidence ) to be person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature __________________(SEAL)
NOTARY PUBLIC
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SCHEDULE A
(LEGAL DESCRIPTION OF PREMISES)
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SCHEDULE B
One (1) VISX STAR Excimer Laser System including: 1) Excimer Laser System, 1)
Patient Chair, 1) Printer, 1) Accessory Kit, Installation, 2 Years Warranty,
10) Key Cards for PTK and 10) Vision Key Cards for PRK, TOGETHER WITH ALL
PARTS, ACCESSORIES, ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND
SUBSTITUTIONS THERETO AND THEREFORE., TOGETHER WITH ALL PARTS, ACCESSORIES,
ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS THERETO,
AND THEREFOR
Delivery included
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Eye Laser Associates, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Notice of Assignment
Gentlemen:
Pursuant to the Per Procedure Lease No. Kawesh-101 the ("Lease"), between the
undersigned, as lessor ("Lessor"), and Eye Laser Associates, LLC as lessee
("Lessee"), Lessor leased to Lessee the equipment (the "Equipment") described
therein. Please be advised that Lessor has sold the Equipment to DVI CAPITAL
COMPANY ("Purchaser") and has assigned to Purchaser as of ___________________,
19____ all of the Lessor's rights under the Lease, but none of the obligations,
pursuant to a Purchase and Sale Agreement and Lease Assignment to be executed
between the parties. Lessor remains fully liable for all lessor obligations
under the Lease.
Please pay to Purchaser directly (or to any other party designated by Purchaser
in a notice delivered to you) all "rent" (as that term is used in the Lease)
payable under the Lease beginning on the Lease Commencement Date, as well as
all other sums payable under the Lease at any time (the "Rent") at the
following address:
DVI CAPITAL COMPANY
P.O. BOX 1312
DEPARTMENT 15092
NEWARK, NJ 07101-1213
By executing this letter, ▇▇▇▇▇▇ acknowledges and affirms (for the benefit of
Purchaser) as follows:
1. The Lease has been duly and validly executed and delivered by ▇▇▇▇▇▇, is
the valid and binding obligation of Lessee, and is in full force and
effect.
2. No default or condition, which, with or without the passage of time, the
giving of notice or both, would constitute a default, exists under the
Lease by either Lessee or, to the best of Lessee's knowledge, Lessor.
3. The Lease term for the items of Equipment is 66 months, commencing on
the Lease Commencement Date as such term is defined in the Lease and
terminating _____________________________, 19____. There are 6 remaining
consecutive monthly rentals each payable in the amount $0 and 60
remaining consecutive minimum monthly rentals each payable in the amount
of $12,800.00 (plus all applicable taxes) beginning on the Lease
Commencement Date. Notwithstanding the foregoing, the terms of the Lease
provide that the minimum monthly rental in any month will only be paid
in such month to the extent that the number of procedures performed
multiplied by the Per Procedure Fee equals or exceeds such monthly
rental. If the number of procedures performed exceeds the Monthly
Target, then the rentals due in that month will exceed the minimum
monthly rental. If the number of procedures performed is less than the
Monthly Target, then the rentals due in that month will be less than the
minimum monthly rental.
4. The Equipment is in good working order and condition and is acceptable
for leasing under the Lease and is currently in the possession and
control of Lessee at: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
5. There are no additional agreements between Lessee and Lessor relating to
the Equipment subject to the Lease.
6. Lessee consents to the assignment herein by ▇▇▇▇▇▇ and will remit and
deliver all rent directly to Purchaser at the address set forth above.
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7. Lessee by certified mail, will deliver all notices and other
communications, relating to any default or alleged default under the Lease, any
sublease or relocation of the Equipment or any other matter which could have a
material adverse effect on Purchaser's interest in the Equipment or the Lease,
given to or made by Lessee pursuant to the Lease to Purchaser at the following
address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Portfolio
Administration
8. Lessee will not enter into any agreement amending, modifying or
terminating the Lease without the prior written consent of Purchaser, and any
such attempted agreement shall be void.
9. Lessee will not assert against the Purchaser any defense, counterclaim
or offset that Lessee may have against Lessor or any other party.
10. ▇▇▇▇▇▇ acknowledges and agrees that only the copy of the Per Procedure
Lease Agreement stamped "Counterpart Number 1" constitutes chattel paper the
possession of which can perfect a security interest.
Please return this letter, when executed by ▇▇▇▇▇▇, to the undersigned at the
address set forth herein.
Very truly yours,
Hillside Finance International LLC
By: __________________________________
Title: _______________________________
Acknowledged by:
Eye Laser Associates, LLC
By: /s/
__________________________________
Title: Managing Member
______________________________
Date: 3-28-96
_______________________________
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89193 IMPORTANT--READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM
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.
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1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL
Eye Laser Associates, LLC TAX NO.
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1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL
TAX NO.
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2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
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3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
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4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL
NAME Hillside Finance International, LLC TAX NO. OR BANK TRANSIT
MAILING ADDRESS ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ AND A.B.A. NO.
CITY Lancaster, STATE MA ZIP CODE 01523 04,3293183
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5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL
NAME TAX NO. OR BANK TRANSIT
MAILING ADDRESS AND A.B.A. NO.
CITY STATE ZIP CODE
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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).
SEE ATTACHED SCHEDULE
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7. CHECK /X/ 7A. / / PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
/ / (1) / / (2) / / (3) / / (4)
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8. CHECK /X/ / / DEBTOR IS A "TRANSMITTING UTILITY"
IF APPLICABLE IN ACCORDANCE WITH UCC SEC. 9105 (1)(n)
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9. DATE: C 10. THIS SPACE FOR USE OF FILING OFFICER
/s/ 3-28-96 O (DATE, TIME, FILE NUMBER AND FILING
SIGNATURE(S) OF DEBTOR(S) D OFFICER)
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/s/ 1
TYPE OR PRINT NAME(S) OF DEBTOR(S) 2
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SIGNATURE(S) OF SECURED PARTY(IES) 5
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TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 8
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11. Return copy to: 0
NAME
ADDRESS
CITY
STATE
ZIP CODE
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FORM UCC-1--
APPROVED BY THE SECRETARY OF STATE
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ANNEX A TO LEASE: Kawesh-101
EQUIPMENT SCHEDULE: Kawesh-101
Certain Terms and Provisions
LESSEE:
Full Legal Name: Eye Laser Associates, LLC
Billing and Notice Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fed. Tax I.D.:
Send Invoice to Attention of: _____________________________
EQUIPMENT: The equipment described on Schedule I to this Annex A -
Equipment Schedule Kawesh-101.
EQUIPMENT LOCATION: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INTERIM TERM: The period commencing on the Lease Commencement Date and
ending on, and including 180 days thereafter.
BASE TERM COMMENCEMENT DATE: If there is an Interim Term, the Base Term
Commencement Date shall be the day immediately
following the last day of the Interim Term. If
there is no Interim Term, the Base Term
Commencement Date shall be the Lease
Commencement Date.
BASE TERM: The period commencing on the Base Term Commencement Date and
ending on, and including, the 60 monthly anniversary of the Base
Term Commencement Date.
LEASE COMMENCEMENT DATE:
PER PROCEDURE FEE: $256.00
PER PROCEDURE USE TAX: 0
MONTHLY TARGET: 50.
TOTAL REQUIRED RENT: $768,000.00 (The product of the Per Procedure Fee times
the Monthly Target times the total number of Monthly
Payment Periods in the Base Term).
RENT FOR INTERIM TERM: $0
▇▇▇▇▇▇'S ADDRESS FOR NOTICES: Hillside Finance International, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTOR:
THIS COUNTERPART [IS____/IS NOT____] THE ORIGINAL CHATTEL PAPER COUNTERPART
(Check whichever is applicable).
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SCHEDULE 1
TO
EQUIPMENT SCHEDULE NO. KAWESH-101
One (1) VISX STAR Excimer Laser System including: 1) Excimer Laser System, 1)
Patient Chair, 1) Printer, 1) Accessory Kit, Installation, 1 Year Warranty, 10)
Key Cards for PTK and 10) Vision Key Cards for PRK, TOGETHER WITH ALL PARTS,
ACCESSORIES, ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS
THERETO AND THEREFORE., TOGETHER WITH ALL PARTS, ACCESSORIES, ATTACHMENTS,
ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS THERETO AND THEREFOR.
Eye Laser Associates, LLC
(Lessee)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Managing Member
------------------------
▇▇▇▇ ▇▇▇▇▇▇
------------------------
(Print Name)
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Lease Number: Kawesh-101
PER PROCEDURE LEASE AGREEMENT
This PER PROCEDURE LEASE AGREEMENT, dated as of the date set forth
below the signature hereto of Lessor (this "Lease"), is between Hillside
Finance International LLC, as lessor ("Lessor"), and the lessee identified in
Annex A ("Lessee").
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
1. DEFINITIONS: The terms "Equipment", "Equipment Location", "Interim
Term", "Base Term", "Base Term commencement Date", "Per Procedure Fee",
"Monthly Target" and "Total Required Rent" shall have the meanings specified in
Annex A. Certain other terms are defined in the body of this Lease. The
following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or
any other day on which banks located in New York, New York are legally
authorized to be closed.
"Delivery and Acceptance Certificate" shall mean a delivery and
acceptance certificate relating to the Equipment and executed by ▇▇▇▇▇▇, in
substantially the form attached hereto as Annex B.
"Lease Commencement Date" shall mean the date as of which Lessee shall
have executed the Delivery and Acceptance Certificate pursuant to Section 2 or
such other date as set forth in Annex A.
"Monthly Payment Period"" shall mean the successive monthly periods
during the Base Term beginning, in each case, immediately following the end of
the next preceding Monthly Payment Period (or, in the case of the first
Monthly Payment Period, on the Base Term Commencement Date) and ending in the
next succeeding month on the same day (or, if there is no same day, the last
day) of such month as the day of the month on which the Base Term Commencement
Date occurs.
"Procedure" shall mean a single use of the Equipment for a corrective
eye surgery procedure.
"Rent" shall mean, for the Base Term, all amounts payable by Lessee
pursuant to Section 3(a), for any Renewal Term, the Rent payable by Lessee for
such Renewal Term as determined pursuant to Section 10, and for the Interim
Term, the Rent, if any, so specified in Annex A.
"Semiannual Payment Period" shall mean the period comprised of the
first six Monthly Payment Periods and each successive period thereafter of six
consecutive Monthly Payment Periods during the Base Term.
"Term" shall mean the Interim Term, if any, the Base Term and, if this
Lease shall have been renewed pursuant to Section 10 for one or more Renewal
Terms, all such Renewal Terms.
"User" shall mean each user of the Equipment for one or more Procedures.
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"User Agreement" shall mean a user agreement with respect to the Equipment
between Lessee and a User.
The terms "hereof", "herein", "hereunder" and comparable terms refer to
this Lease as a whole and not to a particular section, subsection, paragraph or
other subdivision hereof.
2. ACCEPTANCE AND LEASE OF EQUIPMENT. Promptly after delivery of the
Equipment to Lessee at the Equipment Location, ▇▇▇▇▇▇ shall execute and deliver
to Lessor the Delivery and Acceptance Certificate. ▇▇▇▇▇▇ agrees that effective
upon such execution and delivery all of the certifications and acknowledgements
of Lessee contained therein are incorporated herein by reference as if fully set
forth herein.
▇▇▇▇▇▇ hereby agrees to lease to Lessee hereunder, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees
to lease from Lessor hereunder, the Equipment for the Term.
3. RENT: (a) As Rent for the Equipment during the Base Term, Lessee shall
pay to Lessor the amounts set forth below, such payments to be made at the times
and in the manner specified below:
(i) For each Monthly Payment Period Lessee shall pay to Lessor an amount
equal to the Per Procedure Fee times the number of Procedures performed during
such Monthly Payment Period.
(ii) For each Semiannual Payment Period, Lessee shall pay to Lessor (in
addition to all amounts payable pursuant to paragraph (i) above) an amount equal
to the excess, if any, of (1) the product of the Monthly Target times the Per
Procedure Fee times the total number of Monthly Payment Periods elapsed from the
Base Term Commencement Date through the end of such Semiannual Payment Period
over (2) the sum of (x) the total amount of Rent payable pursuant to paragraph
(a)(i) above for all Monthly Payment Periods elapsed from the Base Term
Commencement Date through the end of such Semiannual Payment Period plus (y) the
total amount of Rent payable pursuant to this paragraph (a)(ii) for all prior
Semiannual Payment Periods.
(iii) Notwithstanding the provisions of paragraphs (a)(i) and (a)(ii)
above, the aggregate amount of Rent payable by Lessee hereunder for the Base
Term pursuant to this paragraph (a) shall be the Total Required Rent. Lessee
shall not be required to make any payment of Rent under paragraph (a)(i) or
(a)(ii) above to the extent that the amount of such payment, when added to all
other Rent previously or concurrently paid by Lessee hereunder, shall exceed the
Total Required Rent.
(b) Within two Business Days after the end of each Monthly Payment Period,
Lessee shall inform ▇▇▇▇▇▇ as to the number of Procedures performed during such
Monthly Payment Period, together with such information with respect thereto as
Lessor shall have reasonably requested. Lessee hereby authorizes Lessor to
obtain from the manufacturer of the Equipment and from any person entitled to
royalties for the use thereof information as to the number of key cards sold
with respect to the Equipment for any Monthly Payment Period. If Lessee fails to
provide Lessor information as to the number of Procedures for any Monthly
Payment Period as required above, such number may be estimated by Lessor. Upon
such information becoming available to Lessor, Lessor shall invoice Lessee for,
and Lessee shall forthwith pay to Lessor, any resulting underpayment of Rent,
and Lessor shall reflect any resulting overpayment of Rent as a credit in
▇▇▇▇▇▇'s next monthly invoice to Lessee.
(c) Lessor shall invoice Lessee for Rent payable pursuant to paragraphs
(a)(i) and (a)(ii) above. ▇▇▇▇▇▇ agrees to make each payment of Rent, in the
manner specified by
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Lessor, not later than the fifth Business Day after the date of the invoice
therefor.
(d) Rent for the Equipment for any Renewal Term shall be payable in
the amounts and at the times determined pursuant to Section 10. Rent, if any,
for the Interim Term shall be payable in the amounts and at the times specified
in Annex A.
(e) The obligation of Lessee to pay Rent hereunder shall be absolute
and unconditional and shall not be affected by any circumstance of any
character, including, without limitation: (1) any counterclaim, setoff,
recoupment, interruption, deduction, defense, abatement, suspension, deferment,
diminution or reduction; (2) any defect in the condition, design, quality,
operation or fitness for use or purpose of the Equipment; (3) any damage to,
removal, abandonment, salvage, loss, scrapping or destruction of, or any
requisition or taking of, the Equipment, or any part thereof or interest
therein; (4) any restriction, prevention, interruption or curtailment of or
interference with any use, operation or possession of the Equipment, or any
part thereof or interest therein; (5) any defect in, or any lien or
encumbrance on title to, the Equipment; or (6) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing. This Lease if NON
CANCELABLE.
(f) If, prior to or at the end of any Semiannual Payment Period, the
average number of Procedures per month performed during such Semiannual Payment
Period is less than the Monthly Target and an amount equal to or greater than
the Monthly Target times the Per Procedure Fee has become or is expected to
become payable pursuant to paragraph (a)(ii) above for such Semiannual Payment
Period, then Lessor may require Lessee to provide an explanation of (x) the
circumstances under which such average number of Procedures per months is less
than the Monthly Target and (y) the actions which have been taken to eliminate
such deficiency. Failing a suitable explanation or course of remedial action,
Lessor shall have the right to give notice to Lessee unilaterally amending the
definitions in this Lease of "Monthly Target" and "Per Procedure Fee" in order
to more accurately reflect ▇▇▇▇▇▇'s performance, provided that the product of
the Monthly Target times the Per Procedure Fee shall remain unchanged. Upon the
giving of such notice such definitions shall be amended as set forth therein,
effective as of the commencement of the Monthly Payment Period next following
the date of such notice.
4. SELECTION OF EQUIPMENT; DISCLAIMER OF WARRANTY: Lessee has
selected the Equipment and the supplier or manufacturer from whom Lessor has
agreed to purchase the Equipment; Lessor is not the manufacturer of the
Equipment and Lessor is leasing the Equipment to Lessee "AS IS". ▇▇▇▇▇▇ MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THIS LEASE OR AS TO THE
ABSENCE OF ANY PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT. Lessor transfers to
Lessee for the Term all warranties, if any, made by the manufacturer of the
Equipment.
▇▇▇▇▇▇ ALSO ACKNOWLEDGES THAT NEITHER THE SUPPLIER NOR ANY SALESMAN,
EMPLOYEE, REPRESENTATIVE OR AGENT OF THE SUPPLIER IS ▇▇▇▇▇▇'S AGENT OR
REPRESENTATIVE AND THAT NONE OF THEM IS AUTHORIZED TO WAIVE OR CHANGE ANY TERM,
PROVISION OR CONDITION OF THIS LEASE AND EXCEPT FOR THE MANUFACTURER'S
WARRANTIES, MAKE ANY REPRESENTATION OR WARRANTY ABOUT THIS LEASE OR THE
EQUIPMENT. LESSOR SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS IN MAKING
DELIVERIES OR REPAIRS NOR FOR ANY DAMAGES WHATSOEVER OCCASIONED BY ANY BREACH
OF WARRANTY OR REPRESENTATION OR RESULTING FROM THE USE OR PERFORMANCE OF THE
EQUIPMENT. ▇▇▇▇▇▇'S OBLIGATION TO PAY IN FULL ANY AMOUNT DUE UNDER THIS LEASE
SHALL NOT BE AFFECTED BY ANY DISPUTE, CLAIM COUNTERCLAIM, DEFENSE OR OTHER
RIGHT WHICH LESSEE MAY HAVE OR
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ASSERT AGAINST THE SUPPLIER OR THE EQUIPMENT MANUFACTURER.
5. USE OF EQUIPMENT: Lessee shall, and shall cause each User to,
comply with all federal, state and local laws, rules and regulations, all
manufacturer's recommendations and warranty requirements and all professional
standards and practices in connection with the use of the Equipment. Lessee
shall not permit the Equipment to be used other than by qualified personnel.
Prior to the use of the Equipment by any User other than Lessee, Lessee shall
enter into a User Agreement with such User in substantially the form set forth
in Annex C or in such other form as shall be acceptable to Lessor. Lessee
hereby assigns to Lessor, and grants to Lessor a security interest in, all of
Lessee's rights in each such User Agreement; provided that upon request of
Lessor Lessee shall enter into an Assignment and Security Agreement
substantially in the form attached hereto as Annex D.
6. MAINTENANCE AND REPAIR: Lessee shall, at its own cost and expense,
keep the Equipment in good repair, condition and working order, except for
ordinary wear and tear, and Lessee will supply all parts and servicing
required. All replacement parts used and installed and repairs made to the
Equipment will become Lessor's property. Lessee shall, at its own cost and
expense, make any modifications to the Equipment which may be required by law.
Lessee may, with ▇▇▇▇▇▇'s prior written consent, make other modifications to
the Equipment subject to such conditions relating thereto as shall be specified
by Lessor. Lessor shall be deemed the owner of any such modifications which
are required by law or which are not easily removable without causing damage to
the Equipment. Before returning the Equipment, Lessee shall remove all other
such modifications and restore the Equipment to its original condition. If
Lessee fails to remove such modifications, Lessor shall be deemed the owner of
such modifications (but without waiving any of Lessor's rights regarding the
foregoing removal and restoration obligations of Lessee).
7. TITLE, PERSONAL PROPERTY, LOCATION AND INSPECTION: Lessor owns the
Equipment and Lessee has the right to use the Equipment for the full term
provided Lessee complies with the terms and conditions of this Agreement. The
Equipment is personal property even though the Equipment may become attached to
any real estate. ▇▇▇▇▇▇ agrees not to permit a lien or encumbrance to be
placed upon the Equipment or to remove the Equipment from the Equipment
Location without Lessor's prior written consent. If ▇▇▇▇▇▇ feels it is
necessary, ▇▇▇▇▇▇ agrees to provide ▇▇▇▇▇▇ with waivers of interest or liens,
from anyone claiming any interest in the real estate on which the Equipment is
located. Lessor shall also have the right, at reasonable times, to inspect the
Equipment. If requested by Lessor, Lessee will place and maintain on the
Equipment a marker satisfactory to Lessor identifying Lessor as the owner of
the Equipment.
8. ASSIGNMENT: ▇▇▇▇▇▇ AGREES NOT TO TRANSFER, SELL, SUBLEASE, ASSIGN,
PLEDGE OR ENCUMBER EITHER THE EQUIPMENT OR ANY RIGHTS UNDER THIS LEASE WITHOUT
LESSOR'S PRIOR WRITTEN CONSENT. Lessor may sell, assign or transfer this
Lease, including an assignment for security purposes. ▇▇▇▇▇▇ agrees that if
Lessor shall sell, assign or transfer this Lease, the new owner will have the
same rights and benefits that Lessor now has and will be obligated to perform
Lessor's obligations only to the extent provided in the instrument of
assignment or transfer. ▇▇▇▇▇▇ agrees that the right of the new owner will not
be subject to any claims, defenses, or set-offs that ▇▇▇▇▇▇ may have against
Lessor.
9. REDELIVERY AND RENEWAL: On or prior to the last day of the Term,
Lessee shall return the Equipment, freight and insurance prepaid, to Lessor in
good condition and working order, ordinary wear and tear excepted, and free and
clear of all liens and encumbrances, in a manner and to a location designated
by Lessor.
10. RENEWAL RIGHT: So long as no default by Lessee under this Lease
exists and subject to the terms of this Section 10, Lessee shall have the right
to renew this
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Lease for a period of one year (a "Renewal Term") commencing upon the
expiration of the Base Term and may similarly renew this Lease, for an
unlimited number of times, upon the expiration of any Renewal Term then in
effect for an additional Renewal Term of one year. To exercise such option,
Lessee shall give Lessor notice thereof not later than 90 nor earlier than 120
days prior to the expiration of the Base Term or then current Renewal Term, as
the case may be. The rent payable during any Renewal Term shall be the then
fair rental value of the Equipment (assuming the Equipment has been maintained
in the condition required by this Section 6), as such fair rental value and the
times for payment of and other terms relating to such rent shall be mutually
agreed by Lessor and Lessee. All of the other terms and provisions of this
Lease shall be applicable during any Renewal Term. Notwithstanding the
foregoing, if Lessor and Lessee are unable to reach agreement as to the amount,
times for payment of and other terms relating to the rent for the Equipment for
any proposed Renewal Term as to which ▇▇▇▇▇▇ has given notice of election as
provided above, ▇▇▇▇▇▇'s notice of election shall be void and of no effect and
this Lease shall terminate at the end of the Base Term or then current Renewal
Term, as the case may be.
11. PURCHASE OPTION: Notwithstanding anything to the contrary in the
Per Procedure Lease and Annex A to Lease, Lessor and Lessee hereby agree,
provided no default has occurred and is continuing under the Per Procedure
Lease, at the end of the Base Term, Lessor will sell all, but not part of, the
Equipment listed on the Annex A to Lease AS IS, WHERE IS and transfer title to
Lessee for the consideration of One Dollar ($1.00) and will execute such
documentation as necessary to effect such transfer of title to the extent title
was conveyed to Lessor. Any instrument of transfer shall contain the
following: THE EQUIPMENT TRANSFERRED HEREBY IS TRANSFERRED "AS IS" AND "WHERE
IS". THE SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF
ANY KIND WHATSOEVER IN REGARD TO SUCH EQUIPMENT. THE SELLER HEREBY DISCLAIMS
ANY AND ALL REPRESENTATIONS AND WARRANTIES IN REGARD TO SUCH EQUIPMENT,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR USE OR
FITNESS FOR ANY PARTICULAR USE, OR OF QUALITY, DESIGN, CONDITION, CAPACITY,
SUITABILITY OR PERFORMANCE.
12. LOSS OR DAMAGE: Lessee is responsible for the risk of loss or
destruction of, or damage to, the Equipment. No such loss or damage shall
relieve Lessee from any obligations under this Lease. In the event of damage
to or loss or destruction of the Equipment, ▇▇▇▇▇▇ agrees to promptly notify
Lessor in writing of such fact and shall, at Lessor's option, (a) repair the
Equipment to good condition and working order, (b) replace the Equipment with
like equipment by transferring title thereto to Lessor, free of all liens and
encumbrances, in which case such equipment shall be subject to this Lease and
be deemed the Equipment, or (c) pay to Lessor the present value of the total of
all unpaid Rent payments for the full Term (which, in the case of the Base
Term, shall be the unpaid portion of the Total Required Rent) plus the
estimated fair market value of the Equipment at the end of the Term, all
discounted at [six percent (6%)] per year, together with all other amounts due
and unpaid hereunder, whereupon this Lease shall terminate. All proceeds or
insurance received by Lessor as a result of such loss or damage will be applied,
where applicable, toward the replacement or repair of the Equipment or the
payment of Lessee's obligations. For purposes of this Section 12 and Section
17a, the estimated fair market value of the Equipment at the end of the Term
shall be determined by mutual agreement between Lessor and Lessee or, at the
request of either party, by an independent appraiser selected by ▇▇▇▇▇▇.
Lessee shall pay all fees, costs and expenses of any such appraiser.
13. INDEMNITY: Lessor shall not be responsible for any losses or
injuries caused by the Equipment or the installation, use, maintenance or
condition thereof. ▇▇▇▇▇▇ agrees to indemnify Lessor and its officers,
directors, employees and agents, on an
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after-tax basis, for and to defend and hold harmless Lessor and each such other
person against any and all claims, including claims for personal injury,
liabilities, losses, costs or damages, including attorneys fees and costs,
resulting or arising in any manner from or in connection with the Equipment,
including the installation, use, maintenance or condition thereof.
14. TAXES: ▇▇▇▇▇▇ agrees to pay when due all license and registration fees,
sale and use taxes, personal property taxes and all other taxes and charges,
relating to the ownership, leasing, rental, sale, purchase, possession or use of
the Equipment, but excluding any net income taxes payable by Lessor on payments
of Rent hereunder. ▇▇▇▇▇▇ further agrees to pay Lessor, on demand, any tax
(including any income tax) payable by Lessor by reason of any payments made by
Lessee pursuant to the immediately preceding sentence. ▇▇▇▇▇▇ agrees that if
Lessor pays any taxes or charges on ▇▇▇▇▇▇'s behalf, ▇▇▇▇▇▇ shall reimburse
Lessor, on an after-tax basis, for all such payments and shall pay Lessor on
demand interest thereon from the date paid by ▇▇▇▇▇▇ until reimbursed by ▇▇▇▇▇▇
at the rate specified in Section 17 plus reasonable costs incurred by ▇▇▇▇▇▇ in
collecting and administering any taxes, assessments or fees and remitting
thereto the same to appropriate authorities. ▇▇▇▇▇▇ agrees that Lessor shall
have the right each year to estimate the yearly personal property taxes that
will be due for the Equipment, together with such additional amount as shall be
necessary so that the payments to Lessor by Lessee pursuant to this sentence
shall be on an after-tax basis, and Lessee will pay Lessor 1/12th of the
estimated taxes and such additional amount within ___ days after the end of each
Monthly Payment Period. Promptly after the actual amount of such taxes is
determined, Lessee shall pay to Lessor the amount of any underpayment together
with an additional amount thereon calculated as provided in the next preceding
sentence, and Lessor shall refund to Lessee any overpayment together with the
portion of the additional amount paid pursuant to the next preceding sentence
which is allocable thereto.
15. INSURANCE: During the term of this Lease, Lessee will keep the
Equipment insured with responsible insurers against all risks of loss or damage
in an amount not less than the higher of 110% of the initial purchase price of
the Equipment from the supplier or manufacturer and the replacement cost of the
Equipment, without deductible and without co-insurance. Lessee shall also obtain
and maintain for the term of this Lease, comprehensive public liability
insurance covering both personal injury and property damage of at least
$2,000,000 per occurrence. Lessor shall be the sole named loss payee on the
property insurance and shall be named as an additional insured on the public
liability insurance. Each such insurance policy shall (i) provide that no
cancellation or termination of coverage shall be effective as to Lessor unless
the insurer shall have provided Lessor 30 days prior written notice thereof by
certified mail and (ii) contain such other provisions for the benefit of the
loss payee or additional insured, as the case may be, as shall be requested by
Lessor. Lessee will pay all premiums for such insurance and shall deliver from
time to time upon request of Lessor proof of insurance coverage satisfactory to
Lessor. If Lessee does not provide such insurance, ▇▇▇▇▇▇ agrees that Lessor
shall have the right, but not the obligation, to obtain such insurance, in which
event Lessee shall pay Lessor for all costs thereof.
16. DEFAULT: Lessee shall be in default under this Lease if any of the
following occurs: (a) Lessee shall fail to pay when due any payment of Rent or
other sum payable under this Lease; (b) Lessee shall breach any warranty or
other obligation under this Lease, or any other agreement with Lessor; (c)
Lessee shall breach any warranty or other obligation under any license agreement
governing the use and operation of the Equipment; or (d) Lessee, any partner of
Lessee or any guarantor of Lessee obligations hereunder dies, Lessee shall
become insolvent or unable to pay its debts when due, Lessee shall stop doing
business as a going concern; Lessee shall merge, consolidate, transfer all or
substantially all its assets; Lessee, any guarantor of ▇▇▇▇▇▇'s obligations
hereunder or any partner of Lessee shall voluntarily file or have filed against
it involuntarily, a petition of liquidation, reorganization, adjustment of debt
or similar relief under the Federal Bankruptcy Code or any other present or
future federal or state bankruptcy or insolvency law, or a trustee, receiver or
liquidator shall be appointed of it or a substantial part of its assets.
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17. REMEDIES: Lessor shall have the following remedies if a
default by Lessee under this Lease shall occur:
a. Lessor may upon written notice, declare the entire balance
of the unpaid Rent for the full Term (which in the case of the Base
Term shall be the unpaid portion of the Total Required Rent)
immediately due and payable, sue for and receive all such unpaid Rent
and any other payments then accrued or accelerated under this Lease or
any other agreement between Lessor and Lessee plus the estimated fair
market value of the Equipment at the end of the Term; provided that all
such accelerated Rent and the estimated fair market value of the
Equipment shall be discounted to the date of the default at six (6%)
per year (or at such other rate as shall be required by law);
▇. ▇▇▇▇▇▇ may charge Lessee interest on all moneys due Lessor
at the rate of fifteen percent (15%) per year from the date of default
until paid, but in no event more than the maximum rate permitted by law;
▇. ▇▇▇▇▇▇ may charge a return-check or non-sufficient funds
charge ("NSF Charge") to reimburse Lessor for the time and expense
incurred with respect to the check that is returned for any reason
including insufficient or uncollected funds, which NSF Charge is
stipulated and liquidated at $25.00;
▇. ▇▇▇▇▇▇ may require that Lessee return the Equipment to
Lessor, and in the event Lessee shall fail to return the Equipment
Lessor or its agents may enter upon the premises peaceably with or
without legal process where the Equipment is located and repossess the
Equipment. Such return or repossession of the Equipment shall not
constitute a termination of this Lease unless ▇▇▇▇▇▇ expressly so
notifies Lessee in writing. In the event the Equipment is returned or
repossessed by Lessor and unless Lessor shall have terminated this
Lease, Lessor shall sell or re-rent the Equipment to such persons and
upon such terms as Lessor may determine, at one or more public or
private sales and with or without notice to Lessee and apply the net
proceed after deducting the costs and expenses of such sale or re-rent,
to Lessee's obligations with Lessee remaining liable for any
deficiency and with any excess being retained by Lessor. The credit
for any sums to be received by Lessee from any such rental shall be
discounted to the date of the rental agreement at six percent (6%) per
year; and
▇. ▇▇▇▇▇▇ may exercise any and all other remedies permitted by
applicable law, including, without limitation, the Uniform Commercial
Code as in effect in New York or any other relevant jurisdiction.
Lessee shall also be required to pay all expenses incurred by Lessor in
connection with the enforcement of any remedies hereunder, including all
expenses of repossessing, storing, shipping, repairing and selling the
Equipment and all reasonable attorney's fees.
Whenever any payment of Rent is not made when due, ▇▇▇▇▇▇
agrees to pay Lessor, on demand, interest on such unpaid Rent from the date
due until such Rent shall have been paid at the rate of fifteen percent (15%)
per annum, but in no event more than the maximum rate permitted by law. Such
amount is payable in addition to all amounts payable by ▇▇▇▇▇▇ as a result of
the exercise of any other remedies.
All of ▇▇▇▇▇▇'s remedies hereunder are cumulative, and are in
addition to any other remedies provided for by law, and may, to the extent
permitted by law, be exercised either concurrently or separately. The exercise
of any one remedy shall not be deemed an election of such remedy, or preclude
the exercise of any other remedy. No failure on Lessor's
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part to exercise any right or remedy and no delay in exercising any right or
remedy shall operate as a waiver of any right or remedy or modify the terms of
this Lease. A waiver of any default shall not be construed as a waiver of any
other or subsequent default.
18. WARRANTY OF BUSINESS PURPOSE: Lessee hereby warrants and
represents that the Equipment will be used for business purposes, and not for
personal, family or household purposes.
19. UCC FILINGS; FURTHER ASSURANCES; FINANCIAL STATEMENTS: Lessee
authorized Lessor to file a financing statement with respect to the Equipment
or Lessor's security interest in any Service Agreement signed by Lessor where
permitted by the Uniform Commercial Code and grants Lessor the right to sign
such financing statement on ▇▇▇▇▇▇'s behalf. ▇▇▇▇▇▇ agrees to sign any such
financing statement upon request of ▇▇▇▇▇▇. The filing of a financing
statement with respect to the Equipment is not to be construed as evidence that
any security interest was intended to be created, but only to give public
notice of Lessor's ownership of the Equipment. If this Lease is deemed at any
time to be one intended as security then Lessee grants to Lessor a security
interest in the Equipment and the proceeds from the sale, rent or other
disposition in the Equipment. ▇▇▇▇▇▇ agrees to execute such further instruments
as Lessor may reasonably request to carry out more effectively the intent and
purpose of this Lease and to protect and maintain Lessor's right, title and
interest in and to the Equipment. If Lessor shall so request, ▇▇▇▇▇▇ agrees to
submit financial statements (audited if available) on a quarterly basis.
20. GUARANTY: If a Guarantor is identified on Annex A, ▇▇▇▇▇▇
agrees to cause such guarantor to execute and deliver in favor of Lessor a
guaranty in substantially the form set forth in Annex E on or prior to the
Lease Commencement Date.
21. CHOICE OF LAW: THE TERMS OF THIS LEASE AND ALL RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND DELIVERED, AND TO BE FULLY PERFORMED, IN
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
Lessee consents to and agrees that personal jurisdiction over ▇▇▇▇▇▇ and
subject matter jurisdiction over the Equipment shall be with the courts of the
State of New York or the Federal District Court for the Southern District of
New York, solely at Lessor's option, with respect to the provisions of this
Lease.
22. NOTICE: Written notices will be deemed to have been given to
either party hereto when delivered personally or deposited in the United States
mail, postage prepaid, addressed to such party at its address set forth in Annex
A or at such other address as such party may have subsequently provided in
writing.
23. ENTIRE AGREEMENT; SEVERABILITY; WAIVERS: This Lease contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof. No agreements or understanding are binding on the parties
unless set forth in writing and signed by the parties. Any provision of this
Lease which for any reason may be held unenforceable in any jurisdiction shall,
as to jurisdiction, be ineffective without invalidating the remaining
provisions of this Lease. It is further agreed that the rights and remedies of
the parties are governed by this Lease and ▇▇▇▇▇▇ waives any and all rights and
remedies granted by Sections 2A-506 through 2A-522 of the Uniform Commercial
Code.
24. COUNTERPARTS: This Lease may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and
the same instrument. To the extent,
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if any, that this Lease constitutes chattel paper (as such term is defined in
the Uniform Commercial Code as in effect in any applicable jurisdiction), no
security interest in this Lease may be created through the transfer or
possession of any counterpart hereof other than the original chattel paper
counterpart so identified on Annex A.
25. REPRESENTATIONS AND WARRANTIES: Lessee represents and warrants
that it has full power and authority to enter into this Lease, that this Lease
has been duly authorized (if Lessee is a corporation or a partnership), executed
and delivered by Lessee, and that this Lease constitutes the legal, valid and
binding obligation of Lessee, enforceable against Lessee in accordance with its
terms.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ have each caused this Lease to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year set forth below the signature of ▇▇▇▇▇▇.
HILLSIDE FINANCE INTERNATIONAL
("LESSOR")
Signature:
-----------------------------
Title: Managing Director
For: Hillside Finance International LLC
Date:
----------------------------------
Eye Laser Associates, LLC
("LESSEE")
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Managing Member
---------------------------------
For: Eye Laser Associates, LLC
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ADDENDUM TO PER PROCEDURE LEASE AGREEMENT
NO. KAWESH-101,
DATED , 1995
BETWEEN HILLSIDE FINANCE INTERNATIONAL, LLC AS LESSOR
AND
EYE LASER ASSOCIATES, LLC
BETWEEN HILLSIDE FINANCE INTERNATIONAL, as Lessor and Eye Laser Associates,
LLC, as Lessee
In consideration of Lessor entering into an Per Procedure Lease Agreement with
Lessee, dated __________________________, the undersigned agree that:
The monthly payments due to Lessor under the Per Procedure Lease
Agreement shall have a priority over any withdrawal of funds by the
principals of Lessee and no payment, transfer, withdrawal or
distribution shall be made by Lessee to any individual or corporate or
partnership owner of Lessee or to any affiliated individual, corporation
or partnership until such time as the monthly lease payment has been
made. Any breach of this Addendum or Agreement, shall constitute an
Event of Default under the Per Procedure Lease Agreement.
HILLSIDE FINANCE INTERNATIONAL, LLC (LESSOR)
BY: ________________________________
TITLE: ____________________________
EYE LASER ASSOCIATES, LLC (LESSEE)
BY: /s/
--------------------------------
TITLE: Managing
-----------------------------
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ANNEX B TO LEASE
DELIVERY AND ACCEPTANCE CERTIFICATE
TO
PER PROCEDURE LEASE AGREEMENT NO. KAWESH-101
ANNEX A- EQUIPMENT SCHEDULE NO. KAWESH-101
THIS DELIVERY AND ACCEPTANCE CERTIFICATE ("Certificate") is being executed and
delivered pursuant to the Per Procedure Lease Agreement and Annex A - Equipment
Schedule referenced above, (collectively, the "Lease") between Hillside Finance
International, LLC as lessor ("LESSOR") and Eye Laser Associates, LLC as
lessee ("LESSEE") and for the benefit of the Lessor and pertains to the
following equipment ("EQUIPMENT"):
SEE ATTACHED EXHIBIT A
WE HEREBY CERTIFY AND ACKNOWLEDGE that all the Equipment subject to the above
referenced Lease and specified herein or in any above referenced schedule has
been delivered to us; that any necessary installation of the Equipment has been
fully and satisfactorily performed; that the Equipment has been examined and/or
tested and is in good operating order and condition and in all respects
satisfactory to Lessee; and that, after full inspection thereof, we have
accepted the Equipment for all purposes as of the date hereof, including,
without limitation, for purposes of the above referenced Lease. We hereby
represent and warrant that any right we may have now or in the future to reject
the Equipment or to revoke our acceptance thereof has terminated as of the date
of this Certificate, and we hereby waive any such right by the execution
hereof.
WE HEREBY FURTHER CERTIFY AND ACKNOWLEDGE that the Lessor has fully and
satisfactorily satisfied all its obligations under the Lease, and that any and
all conditions to the effectiveness of the Lease or to our obligations under
the Lease have been satisfied, and that we have no defenses, set-offs or
counterclaims to any such obligations, and that the Lease is in full force and
effect, and that no event of default has occurred thereunder.
WE HEREBY FURTHER CERTIFY AND ACKNOWLEDGE (IN ADDITION TO, AND WITHOUT IN ANY
WAY LIMITING, THE DISCLAIMERS OF LESSOR'S WARRANTIES SET FORTH IN THE LEASE)
THAT THE LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
THE CAPACITY, CONDITION, DESIGN, DURABILITY, MATERIAL, MERCHANTABILITY,
PERFORMANCE, QUALITY, SUITABILITY, WORKMANSHIP OR VALUE OF THE EQUIPMENT OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT WILL SATISFY THE
REQUIREMENTS OF ANY LAW, RULE, REGULATION, SPECIFICATION OR CONTRACT, OR ANY
OTHER REPRESENTATION OR WARRANTY OF ANY KIND OF NATURE WHATSOEVER WITH RESPECT
TO THE EQUIPMENT OR ANY ASSOCIATED ITEM OR ANY ASPECT THEREOF.
WE HEREBY FURTHER CERTIFY AN ACKNOWLEDGE that in the event the Equipment
subject to the Lease fails to perform as expected or represented by the
manufacturer/supplier, Lessee shall continue to make monthly payments to Lessor
as required under the terms of the Lease and Lessee shall look solely to the
manufacturer or supplier for the performance of all covenants and warranties
with respect to the Equipment and hereby agrees to indemnify Lessor and hold it
harmless from such non-performance or breach of warranty with respect to the
Equipment.
WE HEREBY FURTHER CERTIFY AND ACKNOWLEDGE that Lessor is not the manufacturer,
supplier, distributor or seller of the Equipment and has no control, knowledge
of familiarity with the conditioning, capacity, functioning or other
characteristics of the Equipment.
WE HEREBY FURTHER ACKNOWLEDGE that Lessor is relying upon this Certificate as a
condition to making payment to the manufacturer and/or supplier of the
Equipment.
Date Equipment Accepted:________________________
Eye Laser Associates, LLC (Lessee)
By: /s/
-----------------------------
Title: Managing Member
--------------------------
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EXHIBIT A
ONE (1) VISX STAR Excimer Laser System including: 1) Excimer Laser System, 1)
Patient Chair, 1) Printer, 1) Accessory Kit, Installation, 1 Year Warranty,
10) Key Cards for PTK and 10) Vision Key Cards for PRK, TOGETHER WITH ALL
PARTS, ACCESSORIES, ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND
SUBSTITUTIONS THERETO AND THEREFORE., TOGETHER WITH ALL PARTS, ACCESSORIES,
ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS THERETO AND
THEREFORE.
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ANNEX C TO LEASE
PER PROCEDURE USER AGREEMENT
This PER PROCEDURE USER AGREEMENT, dated as of the Commencement Date
(this "Agreement"), is between the Laser Center Operator identified in Annex A
("Operator"), and the user identified in Annex A ("User").
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree
as follows:
1. DEFINITIONS: The terms "Equipment", "Equipment Location," "Term,"
"Per Procedure Fee," "Monthly Target," and "Total Required Payments" shall have
the meanings specified in Annex A. Certain other terms are defined in the body
of this Agreement. The following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or
any other day on which banks located in New York, New York are legally
authorized to be closed.
"Commencement Date" shall mean the date as of which Operator shall have
executed this Agreement, as set forth below Operator's signature hereto.
"Monthly Payment Period" shall mean the successive monthly periods
during the Term beginning, in each case, immediately following the end of the
next preceding Monthly Payment Period (or, in the case of the first Monthly
Payment Period, on the Commencement Date) and ending in the next succeeding
month on the same day (or, if there is no same day, the last day) of such month
as the day of the month on which the Commencement Date occurs.
"Procedure" shall mean a single use of the Equipment for a corrective
eye surgery procedure.
"Semiannual Payment Period" shall mean the period comprised of the
first six Monthly Payment Periods and each successive period thereafter of six
consecutive Monthly Payment Periods during the Term.
The terms "hereof", "herein", "hereunder" and comparable terms refer to
this Agreement as a whole and not a particular section, subsection, paragraph
or other subdivision hereof.
2. GRANT OF RIGHT TO USE: Effective as of the Commencement Date,
Operator hereby grants to User, and User hereby accepts, the right to use the
Equipment for Procedures during the Term at the Equipment Location for
Procedures on the terms and conditions set forth in this Agreement.
23
3. SERVICE FEE: (a) User shall pay to Operator for the use of the Equipment
during the Term the amounts set forth below ("Service Fee Payments"), such
Service Fee Payments to be made at the times and in the manner specified below:
(i) For each Monthly Payment Period, User shall pay to Operator an amount
equal to the Per Procedure Fee times the number of Procedures performed during
such Monthly Payment Period.
(ii) For each Semiannual Payment Period, User shall pay to Operator (in
addition to all amounts payable pursuant to paragraph (i) above) an amount equal
to the excess, if any, of (1) the product of the Monthly Target times the Per
Procedure Fee times the total number of Monthly Payment Periods elapsed from the
Commencement Date through the end of such Semiannual Payment Period over (2) the
sum of (x) the total amount of Service Fee Payments payable pursuant to
paragraph (a)(i) above for all Monthly Payment Periods elapsed from the
Commencement Date through the end of such Semiannual Payment Period plus (y) the
total amount of Service Fee Payments payable pursuant to this paragraph (a)(ii)
for all prior Semiannual Payment Periods.
(iii) Notwithstanding the provisions of paragraphs (a)(i) and (a)(ii)
above, the aggregate amount of Service Fee Payments payable by User hereunder
for the Term pursuant to this paragraph (a) shall be the Total Required
Payments. User shall not be required to make any Service Fee Payment under
paragraph (a)(i) or (a)(ii) above to the extent that the amount of such Service
Fee Payment, when added to all other Service Fee Payments previously or
concurrently paid by User hereunder, shall exceed the Total Required Payments.
(b) Within two Business Days after the end of each Monthly Payment Period,
User shall inform Operator as to the number of Procedures performed during such
Monthly Payment Period, together with such information with respect thereto as
Operator shall have reasonably requested.
(c) Operator shall invoice User for Service Fee Payments payable pursuant
to paragraphs (a)(i) and (a)(ii) above. User agrees to make each Service Fee
Payment, in the manner specified by Operator on its behalf, not later than the
fifth Business Day after the date of the invoice therefor.
(d) Subject to the continuing obligation of Operator to make available the
Equipment for User's use, the obligation of User to make Service Fee Payments
hereunder shall be absolute and unconditional. Except as otherwise provided
herein, this Agreement in NON CANCELABLE.
4. USE OF EQUIPMENT: User shall comply with all federal, state and local
laws, rules and regulations, all manufacturer's recommendations and warranty
requirements, all professional standards and practices and all reasonable
requirements of Operator in connection with the use of the Equipment.
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5. ASSIGNMENT: USER AGREES NOT TO TRANSFER, SELL, SUBLEASE, ASSIGN, PLEDGE
OR ENCUMBER ANY RIGHTS UNDER THIS AGREEMENT WITHOUT OPERATOR'S PRIOR WRITTEN
CONSENT. Operator may sell, assign or transfer this Agreement, including an
assignment for security purposes, to any person. User agrees that if Operator
shall sell, assign or transfer this Agreement, the new owner will have the same
rights and benefits that Operator now has and will be obligated to perform
Operator's obligations only to the extent provided in the instrument of
assignment or transfer.
6. INDEMNITY: User agrees to indemnify Operator, any assignee of Operator's
rights hereunder and their respective officers, directors, employees and agents
for and to defend and hold harmless each such person against any and all claims,
including claims for personal injury, liabilities, losses, costs or damages,
including attorneys fees and costs, resulting or arising in any manner from or
in connection with the use of the Equipment by User or by any other person with
User's permission.
7. DEFAULT: User shall be in default under this Agreement if any of the
following occurs: (a) User shall fail to pay when due any Service Fee Payment or
other sum payable under this Agreement; (b) User shall breach any warranty or
other obligation under this Agreement, or any other agreement with Operator; (c)
Operator shall breach any warranty or other obligation under any license
agreement governing the use and operation of the Equipment; or (d) User dies,
shall become insolvent or unable to pay its debts when due, shall voluntarily
file or have filed against it involuntarily, a petition of liquidation,
reorganization, adjustment of debt or similar relief under the Federal
Bankruptcy Code or any other present or future federal or state bankruptcy or
insolvency law, or a trustee, receiver or liquidator shall be appointed of it or
a substantial part of its assets.
If a default by User under this Agreement shall occur, Operator may, at its
option, terminate this Agreement by giving written notice of termination to
User, and may pursue any and all other remedies permitted by applicable law.
Whenever any Service Fee Payment is not made when due, User agrees to pay
Operator, on demand, interest on such unpaid Service Fee Payment from the date
due until such Service Fee Payment shall have been paid at the rate of fifteen
percent (15%) per annum, but in no event more than the maximum rate permitted by
law. Such amount is payable in addition to all amounts payable by User as a
result of the exercise of any other remedies.
All of Operator's remedies hereunder are cumulative, and are in addition to
any other remedies provided for by the law, and may, to the extent permitted by
law, be exercised either concurrently or separately. The exercise of any one
remedy shall not be deemed an election of such remedy, or preclude the exercise
of any other remedy. No failure on Operator's part to exercise any right or
remedy and no delay in exercising any right or remedy shall operate as a waiver
of any right or remedy or modify the terms of this Agreement. A waiver of
default shall not be construed as a waiver of any other or subsequent default.
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8. WARRANTY OF BUSINESS PURPOSE: User hereby warrants and
represents that the Equipment will be used by User for business purposes, and
not for the personal, family or household purposes.
9. CHOICE OF LAW: THE TERMS OF THIS AGREEMENT AND ALL RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND DELIVERED, AND TO BE FULLY PERFORMED, IN
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
10. NOTICE: Written notices will be deemed to have been given to
either party when delivered personally or deposited in the United Stated mail,
postage prepaid, addressed to such party at its address set forth in Annex A or
at such other address as such party may have subsequently provided in writing.
So long as any security or other assignment by Operator of any of Operator's
rights hereunder shall be in effect, User shall furnish to the assignee a copy
of all notices which User gives to Operator hereunder.
11. ENTIRE AGREEMENT; SEVERABILITY: This Agreement contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof. No agreements or understanding are binding on the parties unless
set forth in writing and signed by the parties. Any provision of this Agreement
which for any reason may be held unenforceable in any jurisdiction shall, as to
jurisdiction, be ineffective without invalidating the remaining provisions of
this Agreement.
IN WITNESS WHEREOF, Operator and User have each caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year set forth below.
OPERATOR
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Managing Member
-------------------------------
For: Eye Laser Associates, LLC
Date:
--------------------------------
USER
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title:
-------------------------------
For: RK and Laser Eye Institute of
California
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ANNEX A
Certain Terms and Provisions
LASER CENTER OPERATOR:
Full Legal Name: Eye Laser Associates, LLC
Notice Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
USER:
Full Legal Name:
Billing and Notice Address:
Fed. Tax I.D.:
Send Invoice to Attention of:
EQUIPMENT: The equipment described in Schedule I to this Annex A.
EQUIPMENT LOCATION: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TERM: The period commencing on the Commencement Date and ending on, and
including, the 66 monthly anniversary of the Commencement Date.
PER PROCEDURE FEE: $256.00
MONTHLY TARGET: .
TOTAL REQUIRED PAYMENTS: $ (The product of the Per Procedure
Fee times the Monthly Target times the total number
of Monthly Payment Periods in the Base Term.)
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ANNEX D TO LEASE
ASSIGNMENT AND SECURITY AGREEMENT
ASSIGNMENT AND SECURITY AGREEMENT (this "Assignment") dated as of the
date set forth in Annex A, is between the assignor identified in Annex A
("Assignor") and Hillside Finance International LLC, as assignee ("Assignee").
WITNESSETH
WHEREAS, Assignee, as lessor, and Assigner, as lessee, have entered
into the Lease identified in Annex A (the "Lease"), which provides for the
lease by Assignee to Assignor of the Equipment identified in Annex A, and
WHEREAS, Assignor and the user identified in Annex A (the "User") have
entered into the user agreement identified in Annex A (the "User Agreement")
providing for the use of the Equipment by User; and
WHEREAS, Section 5 of the Lease requires that Assignor enter into with
Assignee this Assignment whereby Assignor, as security for its obligations
under the Lease, shall assign to Assignee its rights under the User Agreement;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein and in the Lease, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION .1. Certain Defined Terms
.1.1 Certain terms are defined in the body of this Assignment. The
terms "hereof", "herein", "hereunder" and comparable terms refer to this
Assignment as a whole and not to a particular section, subsection, paragraph or
other division hereof. As used in this Assignment, the term "Assigned Rights"
shall mean all of the rights and property assigned to the Assignees hereunder.
SECTION .2. Assignment of Rights, Title and Interest in, to and under
the Assigned Agreements.
.2.1 Assignor, as security for the full payment and performance as and
when due of all obligations of Assignor under the Lease and this Assignment,
including without limitation the payment when due of all Rent (as defined in
the Lease) and all other amounts payable by Assignor under the Lease or this
Assignment, (collectively, the "Secured Obligations"), hereby assigns,
transfers, conveys and sets over to Assignee, and grants to Assignee a
continuing security interest in, all of Assignee's rights, title and interest
in, to and under the User Agreement and all proceeds thereof, including without
limitation:
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(a) all Service Fee Payments (as defined in the User
Agreement) and all other payments due and to become due under the User
Agreement, whether as contractual obligations, damages payable to
Assignor for any breach thereunder, or otherwise;
(b) all of Assignor's claims, rights, powers or privileges and
remedies under the User Agreement;
(c) all rights of Assignor to receive proceeds of any bonds,
insurance, indemnity, warranty or guaranty with respect to the User
Agreement;
(d) all of Assignor's rights under the User Agreement (i) to
make determinations, (ii) to exercise any right of election (including
election of remedies) or option or to give or receive any notice,
consent, waiver or approval together with full power and authority to
demand, receive, enforce, collect or give receipt for any of the
foregoing or any property which is the subject of the User Agreement,
(iii) to endorse any checks, or other instruments or orders, (iv) to
terminate, amend, supplement or modify the User Agreement, (v) to file
any claims and (vi) to take any action which, in the opinion of
Assignee, may be necessary or advisable in connection with any of the
foregoing; and
(e) the proceeds and products of any and all of the foregoing.
.2.2 It is hereby expressly agreed that, anything contained
herein to the contrary notwithstanding, Assignor shall remain liable under the
User Agreement to perform all the obligations assumed by it thereunder and
Assignee shall have no obligation or liability thereunder by reason of or
arising out of the assignments herein contained, nor shall Assignee be required
or obligated in any manner to perform or fulfill any obligations of Assignor
under the User Agreement or pursuant thereto, or to make any payment, or to
present or file any claim, or to take any other action to enforce any right
assigned to it hereunder or to which it may be entitled pursuant thereto any
time or times.
.2.3 Assignor hereby undertakes that, notwithstanding the
assignments herein contained, it shall punctually perform all its obligations
under the User Agreement.
.2.4 Following the occurrence and continuance of a default by
Assignor under Section 16 of the Lease, Assignee shall be entitled but not
obligated to perform, itself or through its nominee(s), all or any of
Assignor's obligations under the User Agreement without thereby releasing
Assignor from its obligations thereunder, and to perform in its or Assignor's
name all acts which Assignor is entitled to perform with respect to the User
Agreement.
.2.5 Except as otherwise provided in this Section 2, and
except during any period when a default by Assignor under Section 16 of the
Lease shall be continuing, Assignor may collect and receive all amounts payable
by User, and exercise all of its rights, powers
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privileges and remedies, under the User Agreement; provided, that without the
prior written consent of Assignor, Assignee shall not waive any of its rights
under, or enter into or consent to any amendment, modification, waiver or
termination of, the User Agreement.
.2.6 Assignor ▇▇▇▇▇▇ agrees that, forthwith upon the execution of
this Assignment, it will give to User notice by registered mail of the
execution and delivery hereof and of the assignment of the User Agreement
hereunder. Said notice shall also contain a request that a copy of all
notices, demands or declarations at any time delivered to Assignor by User
shall be delivered to Assignee. Assignor will immediately upon the receipt
thereof, deliver to Assignee copies of all such notices, demands or
declarations at any time received by Assignor from User.
SECTION .3. Remedies
.3.1 If a default by Assignor under Section 16 of the Lease shall be
continuing, Assignee shall, subject to the terms of the User Agreement, have
all rights of a secured party under the Uniform Commercial Code of New York or
any other relevant jurisdiction to enforce the assignments and security
interests contained herein and in addition shall have the right (a) to enforce
all remedies, rights, powers and privileges of Assignor under any or all of
the Assigned Rights, (b) to sell any or all of the Assigned Rights at public or
private sale upon at least 10 days prior written notice and/or (c) to
substitute itself or any nominee or agent in lieu of Assignor as a party to the
User Agreement.
.3.2 Assignor irrevocably appoints Assignee, its successors and
assigns, Assignor's true and lawful attorney, with full power (in the name of
Assignor, the predecessor in interest under the User Agreement or otherwise),
upon the occurrence and during the continuance of a default
by Assignor under Section 16 of the Lease, (i) to carry out the provisions
of this Assignment and to take any action and execute any instrument which
Assignee may deem necessary or advisable to accomplish the purposes hereof in
accordance with the terms of this Assignment, and (ii) to ask, require, demand,
receive, compound and give acquittance for any and all monies and claims for
monies due and to become due under or arising out of the User Agreement, to
endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute (or, if previously
commenced, assume control of) any proceedings and to obtain any recovery in
connection therewith which Assignee may deem to be necessary or advisable. The
foregoing appointment is irrevocable and coupled with an interest.
SECTION .4. Miscellaneous
.4.1 Expenses. Assignor agrees to pay, upon demand, to Assignee
(together with interest thereon at the rate specified in Section 17b of the
Lease), the amount of any and all fees and expenses, including without
limitation the reasonable fees and expenses of its counsel, which Assignee may
incur in connection with (x) the preservation or protection of the Assigned
Rights or any of Assignee's rights under this Agreement, (y) the exercise or
enforcement of any rights or remedies of Assignee hereunder or (z) the failure
by Assignor to perform or observe any of the provisions hereof.
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30
.4.2 Further Assurances. Assignor hereby undertakes, at its own expense,
to accomplish any appropriate filings (including the filing of financing
statements) relative to the assignments herein contained and execute, sign,
deliver and (if required) make any appropriate filings in connection with such
further assurance, instrument, document, act or thing as in the opinion of
Assignee may be necessary or desirable for the purpose of more effectually
assigning the Assigned Rights and/or perfecting the assignments herein contained
and/or enabling Assignee to enjoy the full benefit of the assignments and the
rights and the powers herein granted to Assignee. Assignor hereby authorizes
Assignee to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Assigned Rights without
the signature of Assignor where permitted by law.
.4.3 Payments. All moneys collected or received in respect of the
Assigned Rights, and any and all moneys collected or received in any proceedings
pursuant to this Assignment shall be applied to the Secured Obligations.
.4.4 Binding Effect. All of the covenants, warranties, undertakings and
agreements of Assignor hereunder shall bind Assignor and its permitted
successors and assigns and shall inure to the benefit of Assignee and its
successors and assigns whether so expressed or not.
.4.5 No Waiver; Cumulative Remedies. No failure to exercise, and no delay
in exercising, any right, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude or require any other or future exercise thereof or
the exercise of any right, power or privilege hereunder. All rights, powers and
remedies granted to Assignee hereunder shall be cumulative, may be exercised
singly or concurrently and shall not be exclusive or any rights or remedies
provided by law.
.4.6 Illegality. In the event that by reason of any law or regulation in
force or to become in force, or by reason or a ruling of any court whatsoever,
or by any other reason whatsoever, the assignments herein contained and security
interest granted hereby are either wholly or partly defective, Assignor hereby
undertakes to furnish Assignee with the alternative assignments and security
and/or to do all such other acts as, in the opinion of Assignee, shall be
required in order to ensure and give effect to the full intent of this
Assignment.
.4.7 Continuing Assignment and Termination. This Assignment shall create
a continuing assignment of the Assigned Rights and shall remain in full force
and effect until payment in full of the Secured Obligations.
.4.8 Waivers, Amendments, Supplements and Other Modifications. The
provisions of this Assignment may be waived, amended, supplemented or otherwise
modified from time to time, in whole or in part, only by writing signed by
Assignor and Assignee.
.4.9 Assignment. Assignor hereby consents to any assignment of this
Assignment in whole or in part by Assignee in connection with the assignment of
its rights
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under the Lease in whole or in part. In the event of any assignment or transfer
of this Assignment, the term "Assignee" as used in this Agreement shall be
deemed to mean any such assignee or transferee, as the case may be. No
assignment of this Assignment may be made by Assignor without the prior written
consent of Assignee.
.4.10 Notices. Any notice or other communication hereunder shall be
given in the manner set forth in the Lease.
.4.11 Governing Law. THE TERMS OF THIS ASSIGNMENT AND ALL RIGHTS AND
OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND DELIVERED, AND TO BE FULLY PERFORMED, IN
THE STATE OF NEW YORK, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
.4.12 Survival of Agreements. All agreements, representations and
warranties made herein shall survive the execution and delivery of this
Assignment.
.4.13 Severability. In case any one or more of the provisions contained
in this Assignment shall be invalid, illegal or unenforceable in any respect
under any law, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby.
.4.14 Execution of Counterparts. This Assignment may be executed in
any number of counterparts. All such counterparts shall be deemed to be
originals and shall together constitute but one and the same instrument.
.4.15 Representations and Warranties. Assignor represents and warrants
that it has full power and authority to enter into this Assignment, that this
Assignment has been duly authorized (if Assignor is a corporation or a
partnership), executed and delivered by Assignor, and that this Assignment
constitutes the legal, valid and binding obligation of Assignor, enforceable
against Assignor in accordance with its terms.
IN WITNESS WHEREOF this Assignment has been executed and delivered as of
the date and year specified in Annex A.
ASSIGNOR
Signature: /s/
----------------------------
Title: Managing Member
--------------------------------
For: Eye Laser Associates, LLC
ASSIGNEE
Signature:
----------------------------
Title:
--------------------------------
For: Hillside Finance International, LLC
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ANNEX A TO ASSIGNMENT
CERTAIN TERMS AND PROVISIONS
DATE OF ASSIGNMENT:
ASSIGNOR: Eye Laser Associates, LLC
USER AGREEMENT:
USER:
EQUIPMENT: The equipment described in Schedule I to this Annex A.
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HILLSIDE FINANCE INTERNATIONAL, LLC
Per Procedure Lease No. Kawesh-101
UNLIMITED GUARANTY OF PER PROCEDURE LEASE
The undersigned, jointly and severally request that Hillside Finance
International, LLC herein after called Lessor, extend credit or to otherwise do
business with Eye Laser Associates, LLC hereinafter called Lessee, and in
consideration thereof and of benefits to accrue to each of us therefrom each of
the undersigned as a primary obligor, severally and jointly and unconditionally
guarantees to you that Lessee will fully and promptly perform, pay and
discharge all its present and future obligations to you, irrespective of any
invalidity therein, or the unenforceability thereof, and agree without your
first having to proceed against Lessee of to liquidate any security therefor,
to pay on demand all sums due you from Lessee and all losses, costs, attorney's
fees or expenses, which may be suffered by you by reason of ▇▇▇▇▇▇'s default or
default of any of the undersigned.
Each of the undersigned waives notice of acceptance hereof and of presentment
demand, protest, and notice of nonpayment or protest as to any note or
obligation signed, accepted, endorsed, or assigned to you by said ▇▇▇▇▇▇, and
all exemptions and Homestead Laws and any other demands and notices required by
law, and we and each of use waive all defenses, set-offs, and counterclaims.
You may, without notice to us, renew or extend any obligation of Lessee or of
co-guarantors, accept partial payments thereon or settle, release by operation
of law, or otherwise compound, compromise, collect, consent to the release or
transfer of such security and bid and purchase at any sale without affecting or
impairing the obligation of the undersigned hereunder.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE UNDER, AND SHALL BE GOVERNED
BY, THE LAWS OF THE STATE OF NEW YORK IN ALL RESPECTS, INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. ▇▇▇▇▇▇ AND GUARANTORS AGREE THAT ANY
CONTROVERSY OR CLAIMS ARISING OUT OF OR RELATING TO THIS GUARANTY SHALL BE
RESOLVED AT LESSOR'S OPTION IN ITS SOLE DISCRETION EITHER (a) BY ARBITRATION
IN THE STATE OF NEW YORK IN ACCORDANCE WITH THE RULES AND PRACTICES OF THE
AMERICAN ARBITRATION ASSOCIATION AND A JUDGMENT ON THE AWARD MAY BE ENTERED BY
ANY COURT OF COMPETENT JURISDICTION, OR (b) IN ANY STATE OR FEDERAL COURT IN
THE STATE OF NEW YORK, GUARANTORS HEREBY KNOWINGLY AND IRREVOCABLY WAIVES ANY
OBJECTIONS ON THE GROUNDS OF IMPROPER JURISDICTION OR VENUE TO AN ACTION IN THE
STATE OF NEW YORK AND AGREES THAT EFFECTIVE SERVICE OF PROCESS MAY BE MADE UPON
GUARANTOR BY MAIL.
All liabilities of Lessee shall mature immediately upon insolvency of the
Lessee, or the filing by or against the Lessee of any insolvency proceeding, or
the calling of a meeting of ▇▇▇▇▇▇'s creditors, or the death of ▇▇▇▇▇▇, if an
individual.
This guaranty shall bind our respective heirs, administrators, personal
representatives, successors and assigns, and shall inure to your successors and
assigns. All of your rights hereunder are cumulative and not alternative.
WITNESS our hands and seal this 28 day of March, 1996
INDIVIDUAL GUARANTOR'S SIGNATURE
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
City: San ▇▇▇▇ State: California Zip: 95124
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
State of: _______________________________
County of : ____________________________
This foregoing Guaranty was subscribed and sworn to, before me, on this _____
day of _________________ 19___
X ___________________________________________________
Notary Public
My Commission expires: ____________________________
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PLEASE FORWARD TO YOUR INSURANCE AGENT
Dear Agent:
Please use this letter as a request for insurance coverage for Eye Laser
Associates, LLC, in the amount of $584,650.00 which is equal to 110% of the
equipment cost. As you are the agent for Eye Laser Associates, LLC we request
that the policy be amended to incorporate the following items:
DVI CAPITAL COMPANY IS TO BE NAMED LOSS PAYEE AND ADDITIONAL INSURED
UNDER THE PROPERTY DAMAGE COVERAGE IN THE AMOUNT OF: $584,650.00.
DVI CAPITAL COMPANY IS TO BE NAMED ADDITIONAL INSURED UNDER THE EXISTING
LIABILITY COVERAGE ($2,000,000.00 minimum).
DVI CAPITAL COMPANY IS TO BE NAMED ADDITIONAL INSURED UNDER THE EXISTING
AUTOMOBILE LIABILITY COVERAGE. PLEASE INCLUDE PROPERTY DAMAGE COVERAGE.
COVERAGE IS ALL RISK WITH A 30 DAY NOTICE PRIOR TO CANCELLATION AND/OR
TERMINATION BY CERTIFIED MAIL.
EQUIPMENT LOCATION TO BE COVERED:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EQUIPMENT DESCRIPTION: Hillside Finance International, LLC Per
Procedure Lease Kawesh-101, Annex A - Equipment Schedule Kawesh-101
The items listed on the attached invoice(s) and made a part hereof constitute
the Equipment which is subject to the terms of the insurance coverage, TOGETHER
WITH ALL PARTS, ACCESSORIES, ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS,
AND SUBSTITUTIONS THERETO AND THEREFOR.
NOTE: KINDLY LIST LEASE # AND EQUIPMENT DESCRIPTION ON INSURANCE CERTIFICATE.
Property damage coverage will need to be increased to cover the above dollar
amount where the existing policy is insufficient so that our equipment will be
adequately insured.
Please issue a Certificate of Insurance evidencing the above items including
policy number(s) and date(s) of expiration and fax DVI Capital Company at (216)
520-2908 for review and approval prior to following up with the original hard
copy direct to DVI Capital Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (address for certificate holder).
In case we need to get in touch with you, please also include your name and
telephone number in the box for agent. If you are not authorized to issue a
Certificate, please contact our office as soon as possible so that we may
discuss how to proceed.
Sincerely,
Eye Laser Associates, LLC
By: /s/
------------------------------------
Date: 3/28/96
-----------------------------------
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DVI Capital Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Hillside Finance International, LLC PER PROCEDURE LEASE No.
Kawesh-101 Annex A - Equipment Schedule No. Kawesh-101
Gentlemen:
I herewith instruct DVI Capital Company to contact my insurance agent for the
purpose of obtaining insurance coverage on equipment I will be leasing/financing
from them. My insurance agent is as follows:
Agent: __________________________________________________________
Agency Name: __________________________________________________________
Address: __________________________________________________________
__________________________________________________________
Phone No.: __________________________________________________________
Insurance Carrier: ____________________________________________________
A copy of this authorization shall act as the original for the sole purpose of
obtaining insurance as set forth above.
Eye Laser Associates, LLC
Lessee
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title Managing Member
----------------------------
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▇▇▇▇▇▇'S CERTIFICATE OF SECRETARY
I, ▇▇▇▇ ▇▇▇▇▇▇, as (Assistant) Secretary of Eye Laser Associates, LLC, a
California limited liability corporation (the "Corporation"), hereby certifies
that:
1. The following is a complete and correct copy of resolutions duly
adopted by the Board of Directors of the Corporation at a meeting duly called,
conveyed and held on ______________, 19__, at which a quorum was present and
acting throughout and that the resolutions have not been amended or modified and
are in full force and effect:
RESOLVED, that the President, any Vice President, Treasurer, and Secretary
of this Corporation be, and each hereby is, authorized and empowered, for
and on behalf of this Corporation, to execute and deliver the Per Procedure
Lease Agreement ("Lease") dated as of _____________, 19__, between Hillside
Financial International, LLC as Lessor and the Corporation as Lessee and
any Lease Schedules, Addenda or Riders which are now attached to, and a
part of, the Lease and which may be executed from time to time hereafter;
the execution and delivery of the Lease by any such officers to be
conclusive evidence of the due authorization and approval thereof by this
Corporation.
RESOLVED, that the President, any Vice President, Treasurer, and Secretary
of this Corporation be, and each hereby is, authorized and empowered, for
and on behalf of this Corporation, to do such acts and things, and to
execute and deliver any and all Schedules, certificates, instructions,
requests, financing statements, and other instruments and documents as, in
their judgment, may be necessary or appropriate to consummate the
transactions and perform the obligations contemplated in the Lease; and
doing of such acts and things and the execution and delivery of such
amendments, certificates, instructions, requests, financing statements and
other instruments and documents to be conclusive evidence of the due
authorization and approval thereof by this Corporation.
2. The Lease, in substantially the same form as executed and delivered by
the Corporation, was presented to and approved by the Board of Directors of the
Corporation in connection with the adoption of the foregoing resolutions and
ordered filed with the Minutes of the Corporation.
3. I have examined the Charter, Articles of Incorporation and By-Laws of
the Corporation and am familiar therewith and there are no restrictions imposed
therein on the power and authority of the Board of Directors of the Corporation
to adopt the foregoing resolutions or upon the Corporation or its officers to
act in accordance therewith.
4. No proceeding of or the amendment of the Charter, Articles of
Incorporation or By-Laws of the Corporation or for the merger, consolidation,
sale of assets and business, liquidation or dissolution of the Corporation has
been commenced or is ending.
5. The Corporation is validly existing and in good standing under the laws
of the jurisdiction of its incorporation and is duly qualified to do business
and is in good standing in all jurisdictions in which any of the personal
property subject to the Lease is or may be located.
6. The following persons are on the date hereof duly elected, qualified
and acting officers of the Corporation holding the respective offices set
opposite their respective names and offices below are their genuine signatures.
NAME TITLE SIGNATURE
---- ----- ---------
▇▇▇▇ ▇▇▇▇▇▇ Managing Member /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------- ------------------- --------------------
--------------------- ------------------- --------------------
7. That, pursuant to the Corporation's By-Laws, Certificate of
Incorporation and any other appropriate documents of the Corporation as may be
necessary, I have the power and authority to execute this Certificate on behalf
of the Corporation, and that I have so executed this Certificate and set the
seal of the Corporation on the 28 day of March, 1996.
[Seal]
/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
(Assistant) Secretary
1