Exhibit 10.08
LAUREL CAPITAL CORPORATION
FINANCE LEASE
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[412] 366-6440
Finance Lease No. 2165
This Lease, made this 26st day of July 1996 by and between LAUREL CAPITAL
CORPORATION ("Lessor") and SMT HEALTH SERVICES INC. ("Lessee").
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents
from Lessor, all the machinery, equipment and other personal property
(individually "Item of Equipment" and collectively "Equipment") described in
Equipment Lease Schedules which are or may from time to time hereafter be
executed by Lessor and Lessee and attached hereto or incorporated herein by
reference ("Schedules") upon the terms and conditions set forth in this Lease,
as supplemented, as regards each Item of Equipment, by the terms and conditions
set forth in the Schedule identifying that Item of Equipment. Whenever reference
is made herein to "this Lease", it shall be deemed to include each of the
several Schedules and the Insurance Schedule(s) referred to herein all of which
constitute one undivided lease of the Equipment.
2. TERM.
(a) The obligations under this Lease commence upon the written acceptance
hereof by Lessor and shall end upon full performance and observance of each and
every term, condition and covenant set forth in this Lease and any extensions
hereof. The rental term for Equipment listed in each Schedule shall commence on
the date indicated on such Schedule and shall terminate on the last day of the
term stated in such Schedule.
(b) In the event Lessor shall make payments on the Equipment prior to the
commencement date of the rental term as indicated on the Schedule, Lessee shall
pay interim rental payments from the date of such payments by Lessor to the
commencement date of the rental term. The interim rental payments shall be
based on the daily equivalent of two (2.00%) percent over the prime interest
rate (fully floating) as announced from time to time by PNC Bank, National
Association. Interim rental payments are due monthly.
3. RENT. The rent, including interim rental payments, for the Items of
Equipment described in each Schedule shall be the amount stated in such
Schedule. Rent is an absolute obligation of Lessee due upon the inception of
each rental or interim rental term and payable as specified in each particular
Schedule irrespective of any claims, demands, set-offs, actions, suits or
proceedings that Lessee may have or assert against Lessor or any supplier of
Equipment. Rent and interim rent shall be payable to Lessor at its office, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
Lessor or its assigns may designate in writing to Lessee from time to time.
4. DELINQUENT RENT PENALTY. If Lessee shall fail to pay any rent, interim rent
installment or other amount due hereunder within ten (10) days after the due
date and until all sums due hereunder have been declared due and payable in
accordance with ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ shall pay to Lessor a late charge of five
(5%) percent of such amount due for each month or part thereof for which said
rent or other sums shall be
delinquent. After all sums are declared due and payable in accordance with
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ shall pay interest at the rate of fifteen (15%) percent per
annum or the maximum contract rate permitted by law, whichever is less, on such
accelerated sums from the date of acceleration until paid, and whether or not
judgment hereon has been entered.
5. DELIVERY AND INSTALLATION. Lessee will select the type, quantity and
supplier of each Item of Equipment and in reliance thereon such Equipment will
then be ordered by Lessor from such supplier or Lessor may at its option elect
to accept an assignment of any existing purchase order. Lessor shall not be
liable for loss or damage occasioned by any cause, circumstance or event of
whatsoever nature, including, but not limited to, failure of or delay in
delivery, delivery to wrong location, delivery of improper equipment or property
other than the Equipment, damage to the Equipment, governmental regulations,
strikes, embargoes or other causes, circumstances or events whether of a like or
unlike nature. Lessee, at its expense, will pay all transportation, packing,
installation, testing and other charges in connection with the delivery,
installation and use of each Item of Equipment. In the event that the cost of
any Item of Equipment differs from the price set forth in the purchase order
therefor, the monthly rental shall be changed accordingly to fully reflect any
such difference. In the event that Lessee fails or refuses to accept delivery
of the Equipment within ninety (90) days following the execution of the Lease
(unless such period is extended by an agreement between Lessor and Lessee in
writing), Lessor may terminate the Lease and Lessee will remit to the Lessor an
amount equal to the down payment and installments previously paid by the Lessor
to the vendor or supplier of the Equipment, together with interest accrued
thereon at the highest contractual rate enforceable against Lessee under
applicable law but never at a rate higher than fifteen (15%) percent per annum.
Lessor shall assign to Lessee without recourse all of Lessor's interest in and
to the Equipment under the vendor purchase agreements.
6. WARRANTY OF LESSEE'S QUIET POSSESSION. Lessor warrants and covenants that
so long as Lessee faithfully performs this Lease, Lessee, subject to the
disclaimer of warranties set forth immediately below, shall be entitled to
quietly possess and use the Equipment without interference.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE,
LESSOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S
AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT
TO THE EQUIPMENT. THIS DISCLAIMER OF WARRANTIES INCLUDES BUT IS NOT LIMITED TO
ANY WARRANTY REGARDING: THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR
ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE EQUIPMENT; THE QUALITY OR
CAPACITY OF THE EQUIPMENT; THE WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE
EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT
PERTAINING THERETO; PATENT INFRINGEMENT; OR LATENT DEFECTS; it being agreed that
all such risks, as between Lessor and Lessee, are to be borne by the Lessee.
Lessor is not responsible or liable for any direct, indirect, incidental or
consequential damage to, or loss resulting from, the installation, operation or
use of any Item of Equipment or any product manufactured thereby.
8. NATURE OF EQUIPMENT. Not withstanding anything to the contrary contained
in this Agreement, including the characterization of this Agreement as a lease,
the parties hereto acknowledge and agree that, legal title to each Item of
Equipment leased hereunder shall be with the Lessee. Each Item of Equipment
shall remain personal property, notwithstanding the manner in which it may be
affixed to any real property. Lessee will otherwise take all action required to
keep the Equipment free and clear of all levies, liens and encumbrances which
result from any act or omission of the Lessee. Lessor assumes no liability and
makes no representation as to the treatment by Lessee of this Lease, the
Equipment, or to the rental payments for
financial statement or tax purposes.
9. LOCATION OF EQUIPMENT. Each Item of Equipment shall be placed into service
at the location specified in Exhibit B, Location of Equipment attached to the
Schedule. Lessee shall promptly provide written notice to Lessor of any and all
location changes.
10. LESSOR'S RIGHT OF INSPECTION. Lessor and its agents shall have the right
during business hours to enter upon the premises where any Item of Equipment is
located (to the extent Lessee can permit) for the purpose of inspection.
11. USE OF EQUIPMENT. Lessee must use the Equipment in a careful and proper
manner in conformity with (i) all statutes and regulations of each governmental
authority having jurisdiction over the Lessee and/or the Equipment and its use,
and (ii) all policies of insurance relating to the Equipment and/or its use. In
addition, Lessee shall not (i) use any Item of Equipment in any manner that
would impair the applicability of manufacturer's warranties or render any Item
of Equipment unfit for its originally intended use; nor (ii) permit anyone other
than authorized and competent personnel to operate any Item of Equipment.
12. ALTERATIONS. Without the prior written consent of Lessor, which consent
shall not be unreasonably withheld, Lessee shall not make any alterations,
modifications or attachments to the Equipment. All alterations, modifications
and attachments of whatsoever kind or nature made to any Item of Equipment must
be removed without damaging the functional capabilities or economic value of the
affected Item of Equipment upon the termination of the Lease. Under no
circumstances shall any such alteration, modification or attachment be
encumbered by Lessee.
13. MAINTENANCE AND REPAIRS. Lessee shall at its own expense and without
authority to bind Lessor maintain each Item of Equipment in good mechanical
condition and running order, normal wear and tear excepted. Immediately upon
installation, Lessee shall provide to Lessor a perfected first lien security
interest in any and all replacement parts.
14. RISK OF LOSS, DAMAGE AND THEFT.
(a) All risk of loss, damage, theft or destruction, partial or complete, to
any Item of Equipment incurred or occasioned by any cause, circumstance or event
of whatever nature will be borne by Lessee from and after delivery of each Item
of Equipment to a carrier FOB point of origin. Lessee shall promptly notify
Lessor of any theft of or loss or damage to the Equipment.
(b) Neither total nor partial loss of use or possession of any Item of
Equipment shall ▇▇▇▇▇ the rent.
(c) An Item of Equipment shall be deemed subjected to total loss when (i) it
has disappeared regardless of the reason for disappearance or (ii) when it has
sustained physical damage and the estimated cost of repair exceeds 75% of the
fair market value (as determined by an independent appraiser chosen by Lessor)
on the date of damage. Lessee's duty to pay rent for any Item of Equipment
subjected to total loss shall be discharged by paying to Lessor the sum of the
then unpaid principal plus accrued interest plus the purchase option at the
price specified on the Schedule plus any applicable prepayment penalty plus all
costs associated with releasing the Lessor's security interest plus any other
sums then due and payable under the Lease. The amount of applicable insurance
proceeds, if any, actually received by Lessor shall be subtracted from the
amount for which Lessee is liable under this Paragraph 14.
(d) Lessee shall cause any Equipment subjected to partial loss to be restored
to original capability. Lessor shall, upon receiving satisfactory evidence of
restoration, promptly pay to Lessee the proceeds of any insurance or
compensation received by Lessor, by reason of such partial loss, provided
however, that Lessor shall release such proceeds, to the extent such proceeds
have been received by Lessor, in advance of restoration to the extent necessary
to purchase materials or make progress payments upon the submission of
appropriated work orders, invoices, estimates, or other satisfactory
documentation.
(e) Lessor shall not be obligated to undertake the collection of any claim
against any person for either total or partial loss of any Item of Equipment.
After Lessee discharges its obligations to Lessor under either 14(c) or 14(d)
above, Lessee may, for Lessee's own account, proceed to recover from third
parties and shall be entitled to retain any amount recovered. Lessor shall
supply Lessee with any necessary assignment of claim.
15. INDEMNIFICATION.
(a) Non-tax Liability. Lessee assumes liability for, and hereby agrees to
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indemnify, protect and hold harmless, Lessor, its agents, servants, employees,
officers, successors and assigns from and against, any and all liabilities,
obligations, losses, damages, injuries, claims, demands, penalties, actions,
costs and expenses, including reasonable attorney's fees, of whatsoever kind and
nature, arising out of (i) the manufacture, installation, use, condition
(including, but not limited to, latent and other defects and whether or not
discoverable by Lessee or Lessor), operation, ownership, selection, delivery,
leasing, removal or return of any Item of Equipment, regardless of where, how
and by whom operated, or (ii) any failure on the part of Lessee to perform or
comply with any covenantor condition of this lease.
(b) Direct Tax Costs. In addition to all other rents payable hereunder, the
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Lessee agrees to indemnify, protect and hold harmless Lessor, its agents,
servants, employees, officers, successors and assigns from and against any and
all taxes, license fees, assessments and other governmental charges, fees, fines
or penalties of whatsoever kind or character and by whomsoever payable, which
are levied, assessed, imposed or incurred during the lease term, (i) on or
relating to each Item of Equipment, including any tax on the sale, ownership,
use, leasing, shipment, transportation, delivery or operation thereof, (ii) on
the exercise of any option, election or performance of an obligation by the
Lessee hereunder, (iii) of the kind generally referred to in items (i) and (ii)
above which may remain unpaid as of the date of delivery of any Item of
Equipment to the Lessee irrespective of when the same may have been levied,
assessed, imposed or incurred, and (iv) by reason of all gross receipts,
business and occupation, and like taxes on or measured by rents payable
hereunder levied by any state or local taxing authority having jurisdiction
where any Item of Equipment is located. The Lessee agrees to comply with all
state and local laws requiring the filing of ad valorem tax returns relating to
each Item of Equipment. Any statements for such taxes received by the Lessor
shall be promptly forwarded to the Lessee. This subparagraph shall not be
deemed to obligate the Lessee to pay (i) any taxes, fees, assessments and
charges which may have been included in the Lessor's cost of each Item of
Equipment as set forth in Schedule(s) hereto, or (ii) any income or like taxes
against the Lessor on or measured by the net income from the rents payable
hereunder. The Lessee shall not be obligated to pay any amount under this
subparagraph so long as it shall, at its expense and in good faith and by
appropriate proceedings, contest the validity or the amount thereof unless such
contest would adversely affect the title of the Lessee, or any security interest
of Lessor, to an Item of Equipment or would subject any Item of Equipment to
forfeiture or sale. The Lessee agrees to indemnify the Lessor against any loss,
claim, demand and expense including legal expense resulting from such nonpayment
or contest.
(c) Indemnity Payment. The amount payable pursuant to subparagraphs 15(a)
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and 15(b) shall be payable upon demand of the Lessor accompanied by a statement
describing in reasonable detail such loss,
liability, injury, claim, expense or tax and setting forth the computation of
the amount so payable.
(d) Survival. The indemnities and assumptions of liabilities and obligations
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provided for in this Paragraph 15 shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease.
16. LESSEE'S ASSIGNMENT. Without the prior written consent of the Lessor,
Lessee shall not bail, hypothecate, transfer or dispose of any Item of Equipment
or any interest in this Lease nor impair the Lessor's title to the Equipment.
Lessee shall not assign this Lease, nor shall this Lease or any rights under
this Lease or in any Item of Equipment inure to the benefit of any trustee in
bankruptcy, receiver, creditor, or other successor of Lessee whether by
operation of law or otherwise, without prior written consent of the Lessor.
17. LESSOR'S ASSIGNMENT. All rights of Lessor hereunder and in any Item of
Equipment may be assigned, pledged, mortgaged, transferred, or otherwise
disposed of, either in whole or in part, without notice to Lessee. No such
assignee shall be obligated to perform any duty, covenant, or condition required
to be performed by Lessor under the terms of this Lease. Such assignee shall
have all rights, powers and remedies given to Lessor by this Lease, and upon
notice to Lessee, shall be named as loss payee or co-insured under all policies
of insurance maintained pursuant to Paragraph 18 hereof. If Lessor assigns this
Lease or the monies due or to become due hereunder or any other interest herein,
Lessee agrees not to assert against Lessor's assignee any defense, set-off,
recoupment, claim or counterclaim which Lessee may have against Lessor, whether
arising under this Lease or any other transaction between Lessor and Lessee.
Subject to Paragraph 16 hereof and this Paragraph 17, this Lease inures to the
benefit of, and is binding upon, the heirs, legatees, personal representatives,
successors and assigns of the parties hereto.
18. INSURANCE. Lessee will at its own expense insure each Item of Equipment in
compliance with the terms and conditions of the Insurance Schedule(s) attached
hereto or incorporated herein by reference inform satisfactory to Lessor with
insurance carriers approved by Lessor and in an amount not less than one hundred
five (105%) percent of the unpaid principal balance due hereunder. The proceeds
of any insurance policy due by reason of theft or loss of or damage to any Item
of Equipment shall be applied as provided in Paragraph 14 hereof. In addition
to the compliance with the terms and conditions of the Insurance Schedule(s) and
the other terms and conditions of this Paragraph 18, the Lessee shall comply
with the following conditions:
(a) Lessee, prior to the inception of any rental term, shall deliver to
Lessor all required policies of insurance or in the alternative certificates of
insurance (in triplicate);
(b) Lessee shall cause each insurer to agree by endorsement on the policies
or certificates of insurance or by an independent instrument furnished Lessor
that each such insurer will give at least thirty (30) days written notice to
Lessor before any such policy or policies of insurance will be altered or
cancelled for any reason, including without limitation, failure of the Lessee to
pay premiums;
(c) All coverage required by the Insurance Schedule(s) must be in effect when
Lessor takes delivery or causes delivery to be made FOB point of origin;
(d) All insurance policies must indicate that the Lessor is an additional
insured for all aspects of liability insurance coverage and is loss payee for
all aspects of insurance coverage relating to the theft or loss of or damage to
Equipment and the proceeds of any public liability or property damage insurance
shall be applied first to the extent of the Lessor's liability;
(e) Lessee will furnish renewal policies or renewal certificates of insurance
(in triplicate) listing Lessor as an additional insured and/or loss payee, as
required by this Lease, no later than thirty (30) days prior to the expiration
of any insurance coverage required hereby.
19. ADDITIONAL DOCUMENTS. If Lessor shall so request, Lessee shall execute and
deliver to Lessor such documents, including without limitation, UCC Financing
and Continuation Statements, as Lessor shall deem necessary or desirable for
purposes of continuing this Lease or recording or filing to protect the interest
of Lessor in each Item of Equipment. Any such filing or recording shall not be
deemed evidence of any intent to create a security interest.
20. FURNISHING FINANCIAL INFORMATION. During the term of this Lease and any
extensions or renewals hereof, Lessee will furnish to Lessor:
(a) Within forty five (45) days after the end of each of the first three
quarterly periods of Lessee's fiscal year, a balance sheet and statement of
income of Lessee as at the close of such quarterly period from the beginning of
the fiscal year to the date of such statement, prepared in accordance with
generally accepted accounting principles, consistently applied, and in such
reasonable detail as Lessor may request, certified as true, complete and correct
by an authorized officer of the Lessee.
(b) As soon as practicable, but in any event within ninety (90) days after the
end of each fiscal year, a copy of its annual audit prepared by a certified
public accountant selected by Lessee and satisfactory to Lessor.
(c) In a timely manner such financial statements, reports and other
information as the Lessee shall send from time to time to its stockholders
and/or file with the Securities and Exchange Commission and/or other materials
which Lessor shall reasonably request.
21. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. If Lessee fails to
promptly perform any of its obligations under this Lease, Lessor may perform the
same for the account of Lessee without waiving Lessee's failure as a default.
All sums paid or expense or liability incurred by Lessor in such performance
(including reasonable legal fees) together with interest thereon at the highest
contractual rate enforceable against Lessee, but never at a higher rate than
15% per annum simple, shall be payable by the Lessee upon demand as additional
rent.
22. PURCHASE OPTION. Provided Lessee is not in default hereunder, Lessee may
purchase all, but not less than all, of the Items of Equipment listed on each
individual Schedule at the price specified in such Schedule at the end of the
rental term. The purchase of the Items of Equipment shall occur AS IS, WHERE
IS, WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER except that Lessor
shall deliver title to the Items of Equipment free of any lien or encumbrance
created by any act of the Lessor. In the event the Lessee fails to exercise its
purchase option, Lessee will return those Items of Equipment not purchased,
freight and insurance prepaid, to Lessor (or Lessor's nominee) at a location
designated by Lessor. If Lessee fails to exercise its purchase option and fails
to return any Item of Equipment, then at Lessor's option this Lease may be
extended on a month-to-month basis, with rent payable on the first of each
month, at the rate applicable during the lease term just ended.
23. EVENTS OF DEFAULT. Any of the following events or conditions shall
constitute an Event of Default hereunder and entitle the Lessor, at its option,
to avail itself of the remedies more fully set forth in Paragraph 24 hereof:
(a) Non-payment by Lessee of any rent or other amount provided for in this
Lease when the same becomes due whether by acceleration or otherwise;
(b) Failure of the Lessee to perform any of the non-monetary obligations,
terms or conditions of this Lease within thirty (30) of receipt of written
notification thereof from Lessor;
(c) The Lessee shall commence a voluntary case or other proceeding seeking
liquidation, reorganization, or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect, or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or the taking
possession by any official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of its creditors,
or shall fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(d) If an involuntary case or other proceeding should be commenced against
Lessee seeking liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of thirty (30) days;
(e) The occurrence of any event described in this Paragraph 23(c) through (d)
hereof with respect to any guarantor or any other party liable for payment or
performance of this Lease;
(f) Any certificate, statement, representation, warranty or financial
statement heretofore or hereafter furnished pursuant to or in connection with
this Lease by or on behalf of Lessee or any guarantor or other party liable for
payment or performance of this Lease is false in any material respect at the
time as of which the facts therein set forth were stated or certified, or omits
any substantial contingent or unliquidated liability or claim against Lessee or
any such guarantor or other party, or, upon the date of execution of this
document or any Schedule, there shall have been any materially adverse change in
any of the facts disclosed by any such certificate, statement, representation or
warranty, which shall not have been disclosed in writing to Lessor at or prior
to the time of the execution of this document or such Schedule.
24. REMEDIES. Upon the happening of any Event of Default hereunder, the rights
and duties of the parties shall be as set forth in this Paragraph 24.
(a) Upon Lessor's demand, the Equipment shall be promptly delivered to
Lessor, at that place or those places designated by Lessor. If Lessee does not
so deliver the Equipment, Lessee shall make the Equipment available for retaking
and authorizes Lessor, its employees and agents to enter the premises of the
Lessee and any other premises (insofar as Lessee can permit) for the purpose of
retaking. In the event of retaking, Lessee expressly waives all rights to
possession and all claims for injuries suffered through or loss caused by
retaking. Any repossession accomplished under this Paragraph 24(a) shall not
release Lessee from liability for damages of Lessor sustained by reason of
Lessee's default hereunder.
(b) Lessor may revoke Lessee's privilege of paying rent in installments and,
upon Lessor's demand, the Lessee shall promptly pay to Lessor the portion of the
rent then remaining unpaid plus all other sums due and unpaid.
(c) Lessor may sell or release the Equipment or any part thereof, at public
auction or by private sale
or lease at such time or times and upon such terms as Lessor may determine, free
and clear of any rights of Lessee and, if notice thereof is required by law, any
notice in writing of such sale or lease by Lessor to Lessee not less than ten
(10) days prior to the date thereof shall constitute reasonable notice thereof
to Lessee. All proceeds of the sale or releasing, or both (less (i) all expenses
incurred in retaking the Equipment, making necessary repairs to the Equipment
and enforcing this Lease, (ii) all damages that Lessor shall have sustained by
reason of Lessee's default, and (iii) reasonable attorney's fees) shall be
credited against Lessee's liability hereunder as and when received by Lessor.
Sums in excess of Lessee's liability shall belong to Lessee. The Lessee shall be
liable for any deficiency.
(d) The provisions of this Paragraph 24 shall not prejudice Lessor's right to
recover or prove damages for unpaid rent accrued prior to default, or bar an
action for a deficiency as herein provided, and the bringing of an action with
an entry of judgment against Lessee shall not bar the Lessor's right to
repossess any or all Items of Equipment.
(e) Lessor's remedies shall be available to Lessor's successors and assigns,
shall be in addition to all other remedies provided bylaw, and may be exercised
concurrently or consecutively. LESSEE WAIVES ANY AND ALL RIGHTS TO NOTICE AND
TO JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY LESSOR
IN THE EVENT OF A DEFAULT HEREUNDER BY LESSEE. LESSEE HEREBY WAIVES ANY RIGHT
TO DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING INSTITUTED BY
THE LESSOR OR THE LESSEE IN CONNECTION WITH THIS LEASE.
25. GOVERNING LAW AND CONSENT OF JURISDICTION. This Lease has been executed
and delivered in the Commonwealth of Pennsylvania. The laws and decisions of
said Commonwealth will govern and control the construction, enforceability,
validity and interpretation of this Lease, and of all agreements, instruments
and documents, heretofore, now or hereafter executed by Lessee and delivered to
Lessor pertaining or relating to this Lease or the transactions contemplated
herein. The parties agree that any action or proceeding arising out of or
relating to this Lease may be commenced in the Court of Common Pleas of
Allegheny County, Pennsylvania, or in the United States District Court for the
Western District of Pennsylvania and Lessee agrees that, in addition to any
other manner of service prescribed bylaw or rule of court, a summons and
complaint commencing an action or proceeding in either such Court shall be
properly served upon Lessee and shall confer personal jurisdiction if served
personally or by United States registered mail, return receipt requested, to the
Lessee at the address indicated below.
26. JUDGMENT BY CONFESSION. LESSEE HEREBY EMPOWERS THE PROTHONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD WITHIN THE UNITED STATES OR ELSEWHERE TO APPEAR
FOR LESSEE AND, WITH OR WITHOUT ONE OR MORE DECLARATIONS FILED, ENTER A JUDGMENT
OR JUDGMENTS AGAINST LESSEE IN FAVOR OF LESSOR, AS OF ANY TERM, FOR THE SUM THEN
DUE AND PAYABLE UNDER THIS LEASE, WITH COSTS OF SUIT AND ATTORNEY'S COMMISSION
OF 15% FOR COLLECTION; WITH RELEASE OF ALL ERRORS AND WITHOUT STAY OF EXECUTION,
AND INQUISITION AND EXTENSION UPON ANY LEVY IS HEREBY WAIVED AND CONDEMNATION
AGREED TO, AND THE EXEMPTION OF ALL PROPERTY FROM LEVY AND SALE ON ANY EXECUTION
HEREON IS ALSO HEREBY EXPRESSLY WAIVED AND NO BENEFIT OF EXEMPTION SHALL BE
CLAIMED UNDER OR BY VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY
HEREAFTER BE ENACTED.
27. CONFLICT OF PROVISIONS. In the event of any conflict of provisions between
any Schedule and any other document, the provisions of the Schedule shall
control.
28. AMENDMENTS AND WAIVERS. This document, the Schedule(s) and Insurance
Schedule(s) executed by Lessor and Lessee constitute the entire agreement
between Lessor and Lessee with respect to the Equipment and the subject matter
of this Lease. No term or provision of this Lease may be changed, waived,
amended or terminated except by a written agreement signed by both Lessor and
Lessee, except that Lessor may insert on the appropriate Schedule the serial
number of any Item of Equipment after delivery thereof. No express or implied
waiver by Lessor of any Event of Default hereunder shall in any way be, or be
construed to be, a waiver of any future or subsequent Event of Default whether
similar in kind or otherwise.
29. NOTICES. Except as otherwise provided in Paragraph 28 above, service of
all notices under this Lease shall be sufficient if given personally or mailed
to the party involved at its respective address set forth in the most recent
Schedule relating hereto, or at such address as such party may otherwise provide
in writing from time to time. Any such notice mailed to such address shall be
effective three (3) business days from the date of deposit in the United States
mail, duly addressed with first class postage prepaid.
30. GENDER; NUMBER. Whenever the context of this Lease requires, the neuter
gender includes the masculine and the feminine, and the singular number includes
the plural. Whenever the word Lessor is used herein, it shall include all
assignees of Lessor. If there is more than one Lessee named in this Lease, the
liability of each shall be joint and several.
31. TITLES. The titles to the paragraphs of this Lease are solely for the
convenience of the parties, and are not an aid in the interpretation of the
instrument.
32. SEVERABILITY OF PROVISIONS. If any provision of this Lease is held invalid
or unenforceable, the remaining provisions will not be affected thereby, and to
this end the provisions of this Lease are declared severable.
33. LESSEE RIGHT TO SUBLEASE. Lessor acknowledges and agrees that Lessee will
sublease the Equipment to SMT Mobile V Corp., or to any other wholly owned
subsidiary of Lessee upon prior written notice to Lessor, for the purpose of
providing magnetic resonance imaging services under certain Magnetic Resonance
Imaging Service Agreements. Lessee shall execute and assign to Lessor such
documents between Lessee and Sublessee as Lessor may reasonably request to
protect Lessor's rights under this Lease. Lessee acknowledges and agrees that in
no event shall any such sublease relieve Lessee from its obligations under this
Lease.
34. ADDITIONAL SECURITY. Lessee covenants and agrees that on or before the
commencement date of the rental term for the Equipment as designated in the
Schedule, Lessee will provide or cause to be provided to Lessor, in form and
substance satisfactory to Lessor an assignment of any and all Magnetic Resonance
Imaging Service Agreements, or similar agreements, now existing or hereinafter
acquired, to be serviced by the Equipment leased hereunder, and a first security
interest in any and all payments due thereunder. Lessee will promptly provide
written notice to Lessor of any additions, deletions, amendments, or
substitutions to any such agreements. Lessee also covenants and agrees to
provide, or cause to be provided to Lessor, upon Lessor's request, a Letter of
Credit inform and substance satisfactory to Lessor. WITNESS the due execution
hereof with the intent to be legally bound.
ATTEST/WITNESS: LESSEE: SMT HEALTH SERVICES INC.
ADDRESS: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By By ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------ ---------------------------------
Title Title CFO / Treasurer
--------------------- ------------------------------
Accepted at Pittsburgh, Pennsylvania by:
LAUREL CAPITAL CORPORATION
By
--------------------------------------
Title
-----------------------------------
LAUREL CAPITAL CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GUARANTY
July 26, 1996
Dear Sirs:
For value received, Undersigned jointly and severally unconditionally guarantee
to you and become surety to you for the full and prompt performance by SMT
Health Services Inc.; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; herein called
"Obligor", of all obligations which Obligor presently or hereafter may have to
you, and payment when due of all sums presently or hereafter owing by Obligor to
you, and agree to indemnify you against any losses you may sustain and expenses
you may incur in the enforcement of this agreement.
For the purposes of this guaranty and indemnity, all sums owing to you by
Obligor shall be deemed to have become immediately due and payable if (a)
Obligor defaults in any of its obligations to you; (b) a petition under any
provisions of the Bankruptcy Code, as amended, or for the appointment of a
receiver of any part of the property of Obligor be filed against Obligor, and be
not dismissed within thirty days; (c) such a petition is filed by Obligor;
(d) Obligor make a general assignment for the benefit of creditors, suspends
business or commits any act amounting to a business failure, or (e) an
attachment be levied or tax lien be filed against any of Obligor's property.
This shall be a continuing guaranty and indemnity and, irrespective of the lack
of any notice to or consent of the Undersigned, their obligations hereunder
shall not be impaired in any manner whatsoever by any (a) new agreements or
obligations of Obligor with you; amendments, extensions, modifications, renewals
or waivers of default as to any existing or future agreements or obligations of
Obligor or third parties with or to you, or extensions of credit by you to
Obligor; (b) adjustments, compromises or releases of any obligations of Obligor,
Undersigned or other parties, or exchanges, releases or sales of any security of
Obligor, Undersigned or other parties; (c) fictitiousness, incorrectness,
invalidity or unenforce-ability, for any reason, of any instrument or writing,
or acts of commission or omission by you or Obligor; (d) compositions,
extensions, moratoria or other relief granted to Obligor pursuant to any statute
presently in force or hereafter enacted, or (e) interruptions in the business
relations between you and Obligor. Notice of your acceptance hereof, of default
and non-payment by Obligor or any other parties, of presentment, protest and
demand, and of all other matters of which Undersigned otherwise might be
entitled, is waived.
The obligations hereunder of Undersigned are both joint and several, and shall
be binding upon their respective heirs and personal representatives. The
failure of any person to sign this guaranty and indemnity shall not affect the
liability hereunder of any signer thereof. The death or release from liability
hereunder of any of Undersigned shall not relieve the others from liability
hereunder. Each of Undersigned may terminate his obligations hereunder as to
then future transactions between you and Obligor by registered mail notice to
you at your above-stated address, provided, however, that such termination shall
not affect either his liability hereunder with respect to any obligations of
Obligor to you incurred prior to your receipt of such notice, or the continuing
liability of such of the others of Undersigned as have not given such notice.
This guaranty and indemnity is assignable, shall be construed liberally in your
favor and shall inure to the benefit of your successors and assigns. If Obligor
should default in the performance of any of Obligor's obligations to you, and if
any third party makes any payment to you with respect thereto, such third party
shall, to the extent thereof, be subrogated to all of your rights against
Undersigned hereunder. Legal rights and obligations hereunder shall be
determined in accordance with the laws of the Commonwealth of Pennsylvania.
UNDERSIGNED HEREBY EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF
RECORD WITHIN THE UNITED STATES OR ELSEWHERE TO APPEAR FOR THEM AND, WITH OR
WITHOUT ONE OR MORE DECLARATIONS FILED, ENTER A JUDGMENT OR JUDGMENTS AGAINST
THEM OR ANY OF THEM IN FAVOR OF YOU, AS OF ANY TERM, FOR THE SUM THEN DUE AND
PAYABLE UNDER THIS AGREEMENT OF GUARANTY, WITH COSTS OF SUIT AND ATTORNEY'S
COMMISSION OF 15% FOR COLLECTION; WITH RELEASE OF ALL ERRORS AND WITHOUT STAY OF
EXECUTION, AND INQUISITION AND EXTENSION UPON ANY LEVY IS HEREBY WAIVED AND
CONDEMNATION AGREED TO, AND THE EXEMPTION OF ALL PROPERTY FROM LEVY AND SALE ON
ANY EXECUTION HEREON IS ALSO HEREBY EXPRESSLY WAIVED AND NO BENEFIT OF EXEMPTION
SHALL BE CLAIMED UNDER OR BY VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH
MAY HEREAFTER BE ENACTED.
This Guaranty has been executed and delivered in the Commonwealth of
Pennsylvania. The laws and decisions of said Commonwealth will govern and
control the construction, enforceability, validity and interpretation of this
Guaranty, and of all agreements, instruments and documents, heretofore, now or
hereafter executed by Undersigned and delivered to Lessor pertaining or relating
to this Guaranty or the transactions contemplated herein. The parties agree
that any action or proceeding arising out of or relating to this Guaranty may be
commenced in the Court of Common Pleas of Allegheny County, Pennsylvania, or in
the United States District Court for the Western District of Pennsylvania and
Undersigned agrees that, in addition to any other manner of service prescribed
by law or rule of court, a summons and complaint commencing an action or
proceeding in either such Court shall be properly served upon Undersigned and
shall confer personal jurisdiction if served personally or by United States
registered mail, return receipt requested, to the Undersigned at the address
indicated below.
Very truly yours,
CORPORATE GUARANTORS: SMT MOBILE V CORP.
Attest:
By By
----------------------------- ---------------------------------------
Title Title
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------
(Corporate Seal)
CONDITIONAL ASSIGNMENT AND SECURITY AGREEMENT
---------------------------------------------
This Conditional Assignment and Security Agreement ("Agreement") dated July
26, 1996 is entered into between SMT Health Services Inc.
("Assignor"/"Lessee"/"Sublessor"), SMT Mobile V Corp. ("Sublessee") and Laurel
Capital Corporation ("Assignee/Lessor").
This Agreement is entered into with reference to the following mutually agreed
to facts:
1. WHEREAS, Assignor and Assignee have entered into that certain Master
Equipment Lease ("Lease") dated July 26, 1996 providing for the lease of the
personal property described in the Lease ("Equipment");
2. WHEREAS, Assignor desires to sublease the Equipment pursuant to the terms
of a sublease dated July 26, 1996 entered into between Assignor and Sublessee
("Sublease").
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the above parties, hereby agree to the following
terms and conditions:
1. Consent to Sublease. Assignee hereby consents to Assignor's Sublease of
--------------------
the Equipment to Sublessee under the terms and conditions as provided herein.
2. Conditional Assignment. Assignor hereby conditionally assigns and grants
-----------------------
to Assignee a security interest in and all of its rights flowing from and under
the Lease and Sublease including without limitation the Equipment; provided,
--------
however, Assignee does not hereby assume duties, liabilities or obligations of
-------
Assignor under the Sublease.
3. Conditional Nature of Assignment. Assignee hereby acknowledges and agrees
---------------------------------
that so long as there exists no default of any of the terms of the Lease and/or
Sublease, Assignor shall have the right to enjoy all of the rights, benefits and
privileges arising under the Sublease.
4. Default. Upon or at any time after the occurrence of a breach under any
--------
of the terms, provisions or conditions as defined in the Lease and/or Sublease,
Assignee may, at its election, exercise any and all rights under the Lease
and/or Sublease, in addition to all of its rights under the Lease and/or
Sublease, in addition to all of its rights and remedies as a Secured party under
the Uniform Commercial Code.
5. Term. This Agreement shall remain in full force and effect so long as any
-----
of the obligations, liabilities and debtness of Assignor to Assignee, whether
arising under the Lease or otherwise, remain outstanding.
6. Assignment. Assignee shall have the right to assign all of its rights
-----------
under this Agreement. Assignor and Sublessee shall not have any right to assign
this Agreement without the prior written consent of Assignee.
7. Amendment of Sublease. The Sublease shall not be changed, altered or
-----------------------
modified in any manner, except by the prior written consent of Assignee.
8. Subordination. Sublessee acknowledges that the Sublease is in all
--------------
respects subject and subordinate to the Lease, including without limitation, the
rights of Assignee to repossess the equipment and void the Sublease in the event
of a default by Assignor under the Lease.
9. Amendment. This Agreement shall not be released, discharged, changed or
-----------
modified in any manner, except by the prior written consent of Assignee.
10. Waiver. No waiver of any right hereunder shall be deemed a waiver or
-------
forfeiture of such right as to future matters.
11. California Law. This Agreement shall be governed by and construed in
---------------
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
LAUREL CAPITAL CORPORATION SMT HEALTH SERVICES INC.
"Assignee/Lessor" "Assignor/Lessee/Sublessor"
By: By:
-------------------------- ----------------------------
Title: Title:
----------------------- --------------------------
------------------------------ --------------------------------
(Print Name) (Print Name)
SMT MOBILE V CORP.
"Sublessee"
By:
----------------------------
Title:
-------------------------
--------------------------------
(Print Name)
SCHEDULE OF LEASED EQUIPMENT LAUREL CAPITAL CORPORATION ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE NO. 2165-1
------
-------------------------------------------------------------------------------
LESSEE (COMPLETE NAME AND ADDRESS) SUPPLIER (COMPLETE NAME AND ADDRESS)
SMT Health Services Inc. 1) GE Medical Systems; ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2) Calumet Coach Company
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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1. This schedule of leased equipment ("Schedule") is hereby made a part of the
lease between the undersigned Lessee and the undersigned Lessor dated
July 26, 1996. All terms and conditions of said lease are incorporated
-------------
herein by reference.
2. The equipment subject to the to the lease is:
-------------------------------------------------------------------------------
QUANTITY DESCRIPTION AND SERIAL NUMBER PRICE
-------------------------------------------------------------------------------
See Attached Schedule of Equipment, Exhibit "A"
Include all taxes levied at the time of sale, or
include in block 4.E. below, whichever is appropriate
in jurisdiction where equipment is located.
-------------------------------------------------------------------------------
THE TOTAL EQUIPMENT COST INCLUDING TAXES LEVIED AT THE TIME OF SALE IS:
$1,290,273.87
-------------
-------------------------------------------------------------------------------
3. Equipment shall be located at See Attached Schedule of Location of Equipment,
-------------------------------------------
Exhibit "B" and shall not be removed therefrom without Lessor's prior written
-----------
consent.
4. The original term of the lease as to the equipment described in this
Schedule is 3 years commencing on July 30, 1996 and terminating on
----- -------------
July 30, 1999 unless sooner terminated under the terms of the lease. As rent
-------------
for the equipment, Lessee shall pay total rent of $1,482,503.04 as follows:
-------------
----------------------------------------------------------------------------------------------------------------------------
A B C D E F G
Security Number and Date these Amt. of Tax on Total payment Date these
Deposit type payments payment payment (D+E) payments
(If any) of payments commence (if any) terminate
----------------------------------------------------------------------------------------------------------------------------
Monthly 36 7/31/96 41,180.64 0.00 41,180.64 5/31/99
-------- ------------- -------------- -------------- ----------------- ---------------
Quarterly
-------- ------------- -------------- -------------- ----------------- ---------------
Annually
-------- ------------- -------------- -------------- ----------------- ---------------
----------------------------------------------------------------------------------------------------------------------------
5. Lessee may, pursuant to Section 22 Purchase Option of the Lease Agreement,
purchase all but not less than all of the Items of Equipment listed hereon
for $1.00 at the end of the rental term.
6. By executing and delivering to Lessor, the Lessee Acceptance form attached
hereto, Lessee warrants, covenants and agrees that (a) Lessee has received
all Equipment described in this Schedule at the location described in 3
hereof; (b) Lessee has duly inspected and accepts such Equipment without
reservations; (c) Lessee is unconditionally bound to pay to Lessor the Total
Rent and other payments due under the Lease, whether or not any Equipment
described herein may now be or hereafter become unsatisfactory in any
respect; and (d) Notwithstanding anything contained herein, Lessor and Lessee
shall continue to have all rights which either of them might otherwise have
with respect to Equipment described herein against any manufacturer or seller
of said Equipment or any part thereof.
--------------------------------------------------------------------------------
ADDITIONAL REMARKS:
Lessee paid the first and last monthly rental payments in advance.
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SIGNATURES - IN INK
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Date , 19 Date , 19
------------------------ --- ------------------------ ---
Lessee: (Full legal name)
Lessor: LAUREL CAPITAL CORPORATION
SMT HEALTH SERVICES INC.
By By
---------------------------------- -----------------------------------
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