| Bison CommercialLeasingCorp. | ||||||||
| ~560 Broadhóllow Road-Suite 201 | Lease No. | |||||||
| MeFvillw, NY 11747 | ||||||||
| EQUIPMENT LEASE AGREEMENT | ||||||||
| Lessee Spirits Management, Inc. | ||||||||
| Full Legal Name-Include DBA if Applicable | ||||||||
| Billing Address | City | State | ZIp | |||||
| 780 New York Avenue-SuiteA | Huntington | NY | 11743 | |||||
| SUPPLIER(Nameand Address) | Quantity | Full Descriptionof Equipment~ Including.Make, Model andSerial Number | ||||||
| Please SeeAttachedSchedule A | ||||||||
| Term (From Equipment FrequencyofPayments | InitialPayment | |||||||
| Acceptance) | Rent(plus(to accompany lease) $2189.69 | Total Cost $-Residual | ||||||
| ~ Monthly | tax) | Value~Q~ | ||||||
| MonthsfiQ | ~First$l.144.840Deposit $_ ~Last$1.144.840 | |||||||
| ~ | ||||||||
| DOther_ | Other$- | |||||||
| ~ | $I.052.73 | |||||||
| ~ | ||||||||
| EquipmentLocation:(ifdiffers from | ||||||||
| Lessee billing address). | ~ | |||||||
Lessor will lease to Lessee and Lessee will lease from Lessor the above-described personal property (collectively and including replacements the "Equipment" and individually an"1tem'~ wider the terms of this equipment lease agreement ("lease") which are act forth here and onpage 2 of this lease.
I. LESSEE'SOBUGATIONS.Lessee's obligations as to an Item (other than as set foith niparagraph 2) conmience when Lessor has any right orobligation as tothe Item and cud when the Item is returned to Lessor in accordance with paregrapb9 except as otherwise provided.
2. PAYMENTS.The rent shown above is based on theTotalCost. Actual rent will be calculated lathe proportion that the actualcoatpaid by Lessor for the Equipment bears to the Total Cost
Applicable sales and use taxes will be added to the rent. If this transaction is not consummated, any initial rent payment may be retained by Lessor as partial compensation for Lessor's costs and mpenses incurred. Any excess or deficiencybetween theinitial rentpayment and the rentpaymentaa finally determined wiU be payable with orcredltcd to the second rent payment. The second rent payment will be due on the 1st day of the month, or other period set forth above~ following Lessee's executionof theCertificate of Acceptance for the Equipment if execution occurs on or before the 15th of the month and otherwise on the 15th of the following month, orotherperiod set tbrthabove. Subsequent rent wilibe due on the same day of each period set forth above, thereafter during the term, whether or not an invoice is rendered or received. Other amounts due hereunder are payable upon Lessee's receipt of an invoice theieflr. LesseewlllpayLessoraniountS due under this lease at Lessor's address shown above oras Lessor mayotherwise noti~' Lessee. Amounts to be applied to the last rent payment(s~w1l1 be applied ininverse order until exbaustedprovided there has been no dthultundertire lease. If there isa dethult, payments may be applied to Lessee's obligations as Lessor chooses.
3.LESSORTERMINATION. If the Certificate of Acceptance has not been executed and delivered to Lessor, Lessor may temnminate this Lease ouno(lce to Lessee. in which case Lessee will assume all obligations and duties with respect to the Equipment, (a) subsequent to 60 days from the Lease date, (b)upoii a material adverse change in Lessee's financial condition, (c) ifthc Equipment's actual cost would exceed the Total Cost or(d) if the lease is in default
4. SOF1'WARE~ If any of the Equipment includes computer software, Lessor will only finance Lessee's coat to purchase or license the software. Lessor will not be apartyto any related license agreement. In all other respects the software will be treated as aniteni.
5.DELIVERY; ACCEPTANCE. Lessee will either (a) execute and deliver the Certificate of Acceptance or(b) give Lessor notice specit'jingaayptuperobiectionto anyItem within14 days of completion of Equipment delivery. If the certificate of Acceptance is not furnished within this period, Lessor may terminate the lease as contemplated inparagraph3. Upon direction by Lessor, Lessee will pay directly to the appropriate party any invoice applicabletoanItemwhich maybe furnished Lessor subsequent to the acceptance of the Equipment.
6.LOCATION; INSPECTION; USE. Lessee will keep, orpennanently garage and not remove from such location for more than 30 days or from the United States fur anyperiod, each Item in
Lessee's possession and controlatthe Equipment Location or such other location to which Lessor may correent in writing. Upon request, Lessee will advise Lessor as to the exact location of an Item. Lessor may inspect an Item during normal business hours, and Lessee will ensure Lessor's access %rsuchpurpose. Each Item will be operated carefWly and properly in compliance with all applicable governmental, insurance and manufacturer's warranty requirements and all manufacturer's instructions.
7.MAiNTENANCE; ALTERATIONS. Lessee willmaintaineach kern ingoodcondltion and zepairand as'specifled in such requirements. Lessee will cause each item of a type generally covered byaservice contracttobe covered under a contract providing sufficient coverage issued bya competentservicirigendty. Lessee will not make any alterations or additions to an Item which detract from its economic value or functional utility except asstatedin the second preceding sentence. Alterationsoradditioursnotreadily removable ormadetocomply with governmental requirements will be deemed accessions and will be returned toLessor with theItem.
8. LOSSANDDAMAGE;STIPULATED VALUE Lessee will bearall risk of loss, theft, destruction or requisition of or damagetoan Item ("Casualty Occurrence'). Lessee will give Lessor prompt notice of a Casualty Occurrence and will then repair the Item, provided, if Lessor decides the Itemislost, stolen, destroyed or damaged beyond repair or is requisitioned or suffers a coirstnrctive loss under an insurancepolicy carried hereunder, Lessee will pay Lessor the "Stipulated Value" equal to (a) anyamounts due Lessor from Lessee at the timeof thepayment, (b)the remaining rents as to the Item with each discounted to present value at5%per annum from the date due to tire date of payment and (c) the percentage of the actual costtoLessor of the Item indicated wider "Residual Value" above similarly discounted, Upon such payment this lease will terminate as to the Item, with Lessee becoming entitled to Lessor's interest therein AS-IS, WHERE-IS without any warranty.
9.SURRENDER. Upon the c,q,iration or earlier termination of this lease. Lessee will promptly return each Item, properly packed andtedwith freight prepaid,toLessor ata location Lessor specifics in the samc~condition and repair as at the commencement of the term hereof reasonable wear and tear excepted; provided that at Lessor's request, Lessee will store an Itemibr up to 90 days after lease e,q,fratioe. During the storage periodLessee will remain liable for all Lessee's leaseobligations as toihe Item except that no rent will be due. Lessee has no right to retain a Unit after lease expiration or the end of the storage period and Lessee will be liablefornaddionalrentforeachperiOdorportionofaperiod the Item ii retained thereafter in addition to any other amounts contemplated herein.10.TffLING REGISTRATION. Except as Lessor may e~ct titling or registration, each Item subjectto title registration laws will at all timesbetitledand/orregistered by Lesseeon behalfof Lessor in such a mamier and jurisdiction as Lessor directs. Lessee willpromnptly notify Lessorof any necessary oradvisable retitling and/orre-registration of an Item inadi~rent jurisdiction.11.TAXES. Lesseewillpay as directed by Lessor or reimburse Lessor fbr all taxes and other govcnuuental assessments (exclusiveof faderalandstatetaxesbased onLessor's net incomne)relativoto theEquipment orthis lease. Returns in connection with such obligations will, at Lessor's option, be prepared and filed by Lessoror by LesseeasLessor directs.12.INSURANCE. Lessee will maintain(a) allrisk insurance on the Equipmentfornot less than its full replacement value nsnung Lessor as Loss Payee and (b) combined public liability and property damage insurance with a single limit of not less than $500,000 per occurrence, or such otheramount asLessormay require on noticetoLessee. naming Leasoras an Additional Insured. This insurance must be in a form and with companies approved by Lessor, must name Lessee as a Named Insured, must provide at least ten(10)days advance written notice to Lessorofchange or cancellation, must provide breach ofwarrantyprotectiorr, where relevant, and mustpr~ovids that the coverage is "primary". Insurance proceeds, at Lessor's option, willbe appliedto(a) the repair of applicable Items, (b) payment of the Stipulated Value and/or (c) payment ofotherobligationstoLessor. Any excess will belong to Lessee. Lessee appoints Lessor as Lessee's attorney-in-facttodo all things necessary or advisable to secure payments under any policy contemplated berebyonacoountofaCasualtyOccurzence. Lessee will cause Lessor to receive evidence reasonably requestedbyLessorof thecoveragerequired above.
IthliaQ?f)~(3
| EQUIPMENTLEASE AGREEMENT-PAGE 2 |
| 13. | LESSOR'S FAYMENT.IfLessee fails to perform any lease obligation, Leasornmayperfbim the obligation, and Lessee will reimburse Lessor's related costs. |
| 14. | ~NDEMN~1Y. Lessee will indemnii~,, defand and hold harmless Lessoragainst any liabilities, losses, claims, actions and expenses,h~hidhmgcourt costs and legal expenses, incurTed by |
Lessor relating to this lease or the Equipment, including claims of latent or other defacts, strict liability claims (whether in either case relating to an event within the lease term) and claims ftmrpatent, tradeniarkorcopyright infringement. Eachparty will give theother noticeof any covered event promptly after learning thereof
15.DEFAULT. This lease will be in default if(s) Lessee fails to pay any amount hereunder when due; (b)Lessee failato perform any other obligation hereunder or under any other agreement between Lessor and Lessee; (c) Lessee dies oris declared legally incompetent, if an individuak (d) a petition is filed by or against Lessee under the Ba*uptcy Act orunder any other law providing relief for debtors; (e) Lessee makes an assignment for the benefit of creditors, areceiver or trusteeisappointed for Leases, a proceeding contemplating winding up of Lessee's affairs is instituted, Lessee ceases business a~irs or Lessee makes an abnormal trensferofa materislportion of Lessee's aasels (f) an event described in(c)~ (d) or (e) occurs astoa guarantor of Lessee's obligations hereunder; or(g) there is a material misrepresentation to Lessor by Lessee ora guarantor in connection with this Lease.
16.REMEDIES. If the Lease is in default, Lessor may, at its option, do any one or moreofthe following: (a)use self-help and otherlawflrlremediestotake possessionofany Items; (b)sell or otherwise dispose of any Itemsinsmannerwlmichiscommercially reasonable; (c) terminate this lease as to any Items on notice to Lessee;(d)recover from Lessee all amounts thendue and owing hereunder, plus as reasonable liquidateddeme~.at Lessor's election (1) the Stipulated Value of the Equipment, upon the payment of which Lessee will become entitled to Lessor's interestin the Equipment AS-IS, WHERE-IS without any warranty whatsoever; (ii) If Lessor has sold an Item, the df~rence between the Stipulated Value of the Item arid the net sales price (net of all Lessor's costs and expenses of sale) or (iii) if Lessor has not sold an Item (and has not exercised the remedy in clause (i)), the amount set by law using an eight (8%) discount rate or(e) utilize any other remedy available to Lessoratlaw cm equity.
All remedies are cumulative and may be exercised concurrently or separately from thee to time. Lessee will also pay Lessor all costs and expenses not o~et against the proceeds of sale of any Equipment incurred by Lessor in enforcing the lease, including those incurred bynsing Lessor's salaried employees and those prior to filing of an action or in connection witha dismnissedsctiorL Any waiver by Lessor ofapmvision of this lease must be in writing and forbearance by Lessor will not constitute a waiver. Post-default amounts will bear interest of 18% per annumoratsuch lesser default rateasset by law until paid.17.ASSIGNMENT. Without the prior written consent of Lessor, Lessee will not sublet, transfer an interest in or allowalien against any Item ortransfer an interest in or allowalien against this lease except alieninan Item or this lease created by Lessor. Lessee's interest isnotassigeableby operationoflaw. All Lessor's rights under this lease and to the Equipmentntaybedisposedof without noticeto Lessen, but subjecttothe rights of Lessee hereunder. Lessee will ackeowledge receipt ofanynotice of assignmentinwriting andwill pay any assigned amounts as directed in the notice. If Lessor assigns this lease or any interest herein, Lessee will not assert against the assignee any claim or defense it may have against Lessor, and Lessee will pursue any rights on account thereof solely against Lessorpersonally, including if lessor rejects the leaseinabanbuplcypmceeding or Lessor interferes with Lessee's quiet eqjoymentOfany Equipment. No assignee will be obligated toperlbrm any obligation of Lessor under this lease unless assumed by the assignee. Subject to the foregoing this lease is for the benefit o~ and binds. the heirs, legatees, personal representatives. successors and assigns of the parties.
18.OWNERSHIP. PERSONAL PROPERTY. This isa lease, sad Lessee's rights to the Equipment are those solely of a lessee notwithstanding say trade-in or dowupsymeut Lessee may make. Lessee will mark the Equipment or Equipment Location at Lessor's requesttoindicate Lessor's ownership of the Equipment Each Item will remain personalty despite attachment to realty. Lessee will obtain and deliver to Lessor, upon Lessor's request, real property waivers in form satisfactory to Lessor from all persons clahningan interestinthe real propertyonwhich an Item Is omit to be located.19.ADD~ONAL DOCUMENTS. Lessee will obtain and delivertoLessor such documents as Lessorrequeststoprotect its interest in this lease and the Equipment, including precautionary financingtet~~rw,muand fixture filings, both of which Lessee hereby alternatively authorizes LessortoslgnonLessee'sbehalf Lessee will reimburse Lessor firm all Lessor's search, filing and appraisal fees and other costs paid third parties in connection with this lease. Lesseewillfurnish Lessor suchfln~ie1date or information relative to this lease or the Equipinentas Lessor may flora timetotime reasonably request If this leaseisfound to baa financing Lessee will be decreed to have granted Lessors security interestin thóEquipment.20. LATEPAYMENT. If Lessee fails to pay ananioünthereunderwithin10days of when due, Lessee will pay Lesao~(a)a5%late charge, (b) amounts Lessorpays others in connection with collection of the arñount and(C)Lessor's standard returned check charge, if relevant.21.DEPOSIT. Any deposit Lessee furnishes in connection with this lease will not bear interest and may be appliedbyLessor to any obligations of Lessee to Lessomwhich are in default When Lessee has satisfied all Lessee's obligations hereunder, Lessor will return anysemeining balance of the deposit to Lessee. 22. GENERAL This lease contains the entire agreement between Lessor and Lessee concerning the lease of theEquipmnent and maybe amended only byawrit*en agreement signed by the party to be charged. Notices hereunder must beinwriting and mailed with appropriateU.S.First Class Mail postage piepaid to the party involved at Its respective address set forth above oratsuch other addresses such party mayprovide the other on notice. Notices to Lessee willbe e~ctiveupondeposit and to Lessor upon receipt Eachpartywlll promptly notify the otherofany changeinaddress. The singular
23.GOVERNING LAW; VENUE. THIS LEASEWILL BE GOVERNED BY THE INTERNAL LAWS OF CALIFORNIA. VENUE FOR ANY RELATED ACTION WILL BE INAN
APPROPRIATE COURT 114 CONTRA COSTA COUNTY, CALIFORNIA SELECTEDBY LESSOR TO WHICHLESSEECONSENTS OR IN ANOThERCOURTLESSORSELECTS HAVING
JURISDICTIONOVER TIlE PARTIES.
24. NET LEASE. NOOFFSET.THIS ISANET LEASE TERMINABLE BY LESSORONLY AS EXPRESSLY PROVIDED HEREIN AND NOT TERIIINABLE BY LESSEE FORANY REASON INCLUDING THE FAILUREOF THEEQUIPMENT TO OPERATEPROPERLY. LESSEE'S OBLIGATION TO MAKE ALLPAYMENTS UNDER THIS LEASE IS
ABSOLIJ1'E AND
UNCONDITIONAL AND WILL NOT BESUBJECT TO ANY ABATEMENT, COUNTERCLAIM. RECOUPMENT, OFFSETOR DEFENSELESSEE'SOBLIGATIONS UNDERTHIS LEASE.
SURVIVE THE EXPIRATIONOR EARLIERTERMINATIONOP THELEASE
| 25. | NOAGENCY.LESSEE ACKNOWLEDGES THATNEITHER THE SUPPLIERNOR ANYFINANCIAL INTERMEDIARYNORANY AGENTOPEITHER IS AN AGENT OF LESSOR, |
THAT NONE OP SUCHPARTIES IS ATJ~HORJZED TO WAIVE OR ALTER ANY TERMOR CONDiTION OFTHIS LEASE ANDTHATNOREPRESENTATION AS TO THE EQUIPMENT
ORAllYOTHERMATI'ER BY ANY SUCHPARTYISBINDING UPON LESSOR.
| 26. | DISCLAIMEROF WARRANTIES.LESSEE ACKNOWLEDGES THAT THE EQUIPMENT AND THE SUPPLIERHAVEBEEN SELECTEDBY LESSEE,THAT LESSORMAKES NO |
WARRANTY ASTO LESSOR'S TITLE,THAT LESSEE LEASES THE EQUIPMENT"AS-IS" AND THUSTHAT LESSORSPECIFICALLYDISCLAIMS ANY IMPLIED WARRANTY AS TO
THE EQUIPMENT. WAN ITEMDOESNOTFUNCFIONPROPERLY,LESSEE WILL MAKE ANY RESULTANT CLAIMS AGAINST THE SUPPLIER ORMANIJFACTURER.
| 27. | FINANCE LEASE, DIVISION 10AND SIMILAR RIGHTS WAiVER. LESSEEAGREESTHAT THIS LEASE WILL BE TREATED ASA"FINANCE LEASE" WITHIN DIVISION 10 |
OF THE CALIFORNiACOMMERCIALCODE ("DIVISION 10").THUS LESSEEWILL BE ENTITLED TO THE PROMISES ANDWARRANTIES LESSOR RECEIVES UNDEREACH
CONTRACT EVIDENCINGLESSOR'SPURCHASEOF THEEQUIPMENT,iNCLUDING ANYMANUFACTIJRERORTHIRD-PARTYWARRANTIES.LESSEE ACKNOWLEDGES THAT
LESSOR HASADViSED LESSEE TO CONTACT THE EQUIPMENT SUPPLIERPORA DESCRIPTION OF THOSE PROMISES AND WARRANTIES,INCLUDING ANY RELATED
DISCLAIMERS OR LIMiTATIONS, INCLUDING OF REMEDIES. CONSISTENT W1TH LESSEE'S ASSUMPTION OFAlLEQUIPMENT RELATED RISKS ANDTHE TREAThIENT OF
THISLEASEAS A "FINANCE LEASE,"LESSEE WAIVES ANY RIGHTS, DEFENSES AND CLAIMSAGAINST LESSOR WHICH RElATE TO THE EQUIPMENTARISING UNDER
DIVISIONIO OR OTHERAPPLICABLELAW.
| LESSEE'SINITIALS HERE(S) |
includesthephiralandtheword"Lessor"includesallassigneesofLessor. Theliabilityofco-lesseesisjointandseveral. Paragraphtitlesarenotanaidininterpretation.
By execution hereof Lessee requests Lessor to order the Equipmentfrom theSupplier and to lease the Equipment to Lessee hereunder. Execution hereof by a duly authorized o~cerofLcssori,vttne1~i Lessor's acceptanceofsuch o~r. Lessee authorizes Lessortoinsert identification data as to the Equipment above. Lessee warrants that Lessee will use the Equipment solely for commercialor businesspurposes. Lessee recognizes that Lessor will check Lessee's credit references and history and advise others as to Lessor's experience with Lessee arid consents thereto. Lessee certifies andwarrants that the financial data and other information which Lessee has submitted orwill submit to Lessor is orwill be arnie and complete statementofthe matters covered.
| Lessor and Lessee have executed this lease as of ~e) |
| Lessor:BisonCommercialLeasingCorn. |
| SpiritsManagement,Inc. |
| PRINT LEGAL N | OF SSEEABOVE | |||||||
| By~)1j~l~ | ||||||||
| e | Z | |||||||
| ~4~ | ||||||||
| 1Y | ||||||||
| President | ||||||||
| Title | any M. | tein | Title | |||||
| By | ||||||||
Title
EQUiPMENT SCHEDULE51A"
| LEASED |
ThisEquipmentSchedule A is to be attached to andbecome partof that Schedule of LeasedEquipmentdated______________
_________________________________________________________by and between theundersigned and
QTY DESCRIPTION MODEL NO. SERIAL NO.BISON CO~IMERCLAL
Vendor:LEASINGCORP.~euor).
ThiCEquipmentSchedule "A is herebyverifiedas correot by theundersignedLessee, who atiknowledgesreceiptof a copy.
| Lessee:SPIRITS MANAGEMENT, INC. |
| Signature~~)b?J (I~L~/ | /~_L | ('1') | ||||
| BARRY M. BROOKSTEIN | ||||||
| Title: | PRESIDENT | |||||
Title
| BisoncommercialLeasing Coip. 560Broadliollow road-Suite201 Melville, NY 11747 |
| L | ||
| e | ||
| a | ||
| è | CERTIFICATE OF ACCEPTANCE | |
| e | ||
| N | ||
| o | NSTRUCTIONS | |
| . | ||
1. SIGN, DATE AND MAILTHIS CERTIFICATETO LESSOR AT LESSOR'SADDRESSSETFORTHABOVE WHENALL THEEQUIPMENT HASBEENDELIVERED ANDISACCEPTABLE.
| 2. | DO NOTSIGNUNLESS ALL ITEMS AREACCEPI ABLE. |
| 3. | IF ANY ITEMS ARE UNACCEPTABLE,PROMPTLY NOTIFY LESSOR AT SUCH ADDRESS OF THE SPECIFICS. |
LESSEEACKNOWLEDGES RECEIPTOF ALL OFTHE EQUIPMENT AND ITSACCEPTANCEFORPURPOSESOFTHE
| LEASE. |
LESSEE ACKNOWLEDGES THAT THE RENT FOR THEEQUIPMENT WILLBEBASEDON THEEQUIPMENTSACTUALCOST.
LESSEE UNDERSTANDS THAT(1)BASEDHEREONLESSOR WILL PAY FOR THE EQUIPMENT, (ii) EQUIPMENTACCEPTANCESTARTS LESSEE'SIRREVOCABLEOBLICATIONS UNDER THELEASE,(iii) LESSOR HASMADENO
EXPRESS, AND HAS DISCLAIMED ANY IMPLiED,EQUIPMENTWARRANTIES AND (iv)LESSEE'S OBLIGATIONS
WILL NOT BEAFFECTEDBY EQUIPMENT OROTHERPROBLEMS.Date
B~PresidentBariyI~f~rooksteinTitle
QuantityDescriptionof LeasedEquipmentSee AttachedSchedule A
| SpiritsManagement, Inc. PRINT LE ALNAMEOFLESSEEABOVE |
Title
| 560Broidhollow Road-Suite201 Melville, NY11747 |
| CONTINUINGGUARANTYOF INDEBTEDNESS |
| TO: | BiaonCommercial Leasing Corn. | |||
| RE: | Spirits Management, Inc. | ("Customer") |
GUARANTY; "INDEBTEDNESS." We will bebenefitedbythe success of Customer and to induce you to provide leasing andior financial seivices to Customer we jointly and severally unconditionally guarantee and promise to pay you in Iawflrlmoney of the.Unitcd States and toperforzn any and all Indebtedness of Customer to you. The word "hidcbtedness is used in Its moat comprehensive sense antI includes all obligations and liabilities of Customer under leases, equipment finance agreements or otherwise, whether Customer may be liable with others and whether recovery upon such Indebtedness maybe barred orotherwise wienforceable for any reason, inchiding lapse of the statute of limitations or the bankruptcy of Customer.
(1)CONTINUING GUARANTY. This is a continuing guaranty covering present and fiflure Indebtedness, except Indebtedness created afteractual receipt byyou of written notice of this Guaranty's revocation as to firture Indebtedness. Extensions or other revisions of current Indebtedness and additional Indebtedness created pursuant to previously executed commitments shall not be considered new Indebtedness. Any such notice must be sent to you by registered mail with U.S. Mail postage prepald, addressed to you at1450Treat Boulevard, Walnut Creek, CA94596.Anotice from only one of us will nota~ct anyother guarantor's liability.(2) JOINT AND SEVERAL; SEPARATE ACTIONS;WAiVEROFSTATUTEOFLIMITATIONS; REINSTATEMENTOF LIABILITY.Our obligations hereunder are joint and several and independent of the obligationsof Customer. Aseparate action or actions may be brought and prosecuted against us, without proceeding against Customer.We waive any statute oflimitatiousaffecting our liabilityhercunder. Our liability shall be reinstat5d a~ to any payment on the Indebtedness required to be returned by you.
(3) AUTHORIZATIONS.We authorize you, without notice or demand and without afihcting our liability hereunder, from time to time to (a) amend, compromise or otherwise change or waive any of the terms of the Indebtedness (b)lake security for this Guaranty or the Indebtedness and exchange, enforce, waive, release, subordinate,thu toperfect, sellorotherwise dispose of and consent to the owner's lease or other disposition ofany such security; (c) consent to Customer's assignment of any lease which is part of the Indebtedness or Customer's sublease of any related property; (d) release, add or substitute parties liable far the Indebtedness; and (e) apply payments received on the Indebtedness as you may choose. You may without notice assign this Guaranty in whole orinpart. We may not assignour obligations hereunder.
(4)OUR WARRANTIES. We warrant that (a) this Guaranty is executed at Customer's request; (b)we will not, without yourprior written consent, dispose of a substantial part of our assets; and (c) we have adequate means of obtaining Information pertaining to Customer's financial condition and business activities and have obtained such information relative to Customer as we deemed appropriateinorder to assess our risks in connection herewith. We agree to keep adequately infonned of any matters which might a~ct our risks hereunder. You have no obligation to disclose information you obtain regarding Customer to us.
(5) OURWAIVERS.We waiveany right to require you to (a) proceed against any other person to enforce the Indebtedness; (b)pxoceed against or exhaust any leased property or collateral relative to the Indebtedness; (c) give us any notice with respect to leased or other property repossessed from Customer; (d) pursue any other remedy in your power or (e)give any notices in connection with the Indebtedness or this Guaranty including as to additional ormodifiCd Indebtedness.
We waive any defense to liability arising from (a) any defense of any other person, (b) the cessation, other than by payment and performance In faILof theIndebtedness or Customer's liability therefor; (c) the use of any property leased or thinced In connection with the Indebtedness for purposes other than those understood by us; (d) any act or omission by you which directly or indirectly discharges Customer on any Indebtedness or which increases the probability or amount of our liability hereunder; (a) your feilure to enforce or delay in enforcing your rights as to the Indebtedness; (I) an impainnent of any security for the Indebtedness or any guaranty thereot~ or (g) any other rights, privileges, defenses orprotections available to us by reason of Sections 2787 to 2855, inclusive, of the California Civil Code. Until all Indebtedness ispald, we shall have no subrogation rights against Customer or right of reimbursement against Customer because of the performance of this Guaranty. Our waivers include our waiver of any rights and defenses which we may have because any Indebtedness is secured by real property. This means, among other things that (a) you may collect from us without first foreclosing on any real orpersonal property security pledged by Customer for any Indebtedness and (b) if you forecloseon anyreal property security pledged by Customer for any Indebtedness:(i)the amountofthe Indebtednessmaybereduced only by the priceforwhich that security is sold at the foreclosure sale, even if the security is worth more than the sale price, and (11) youmaycollect from us even if you, by foreclosing on the real property security, have destroyed any rightwemay have to collect fiom Customer. This is an unconditional waiver, as are all other waivers in this Guaranty, which relate to any rights and defenses wemayhave because Indebtedness is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections580a,S80b~ 5804 or 726 of the Code ofCivil ProcedUre. Further in this respect, we waive all tights and defenses arising outof anelection of remedies by you, even though that election of remedies, such as a nosdudicial foreclosure with respect to real property security for any Indebtedness, has destroyed our rightsofsubrogation and reimbursement against Customerby the operation ofSection580dofthe Codeof CivilProcedure or otherwise.EACH OFTHE WAIVERS SEF FORTH ABOVE ARE MADE WITHOURPULL KNOWLEDGEOFTHEIR SIGNIFICANCE ANDCONSEQUENCES, INCLUDINGTHAT WiTHOUT THESE WAIVERSWE MIGHT BE ABLE TO AVOID FURTHER LIABIlITY UNDER THIS GUARANTYUPONTHE OCCURRENCE OF AN EVENT TO WHICH A
WAIVER RELATES, AND WE BElIEVE THAT UNDER THE CIRCUMSTANCES THE WAIVERS ARE REASONABLE ANDNOT CONTRARY TO PUBlIC POlICY OR LAW.Waivers determined to be cannery to any applicable law orpublic policy shall be eflbctlve to the extent pcuuittódby law.
(6) SUBORDINATION OF CUSTOMER'S OBLIGATIONS TO US. Anyindebtedness of Customer to us and any distribution rightson account of an equity interest we have in Customer are hereby subordinatedto theIndebtedneSsand assignedtoyou as security for this Guaranty and the Indebtedness. Upon requestweshall collect such amounts as tmstees for you and provide the amounts to you for applicationtothe Indebtedness. We will mark any notes or other documents evidencing such indebtednessofCustomer or equity rights witha legend that such documents are subject to this Guaranty and, if you so request, will deliver such documents to you together with such notationsor Instruments ofassignment as you may requestWewill provide you such other documents and take such other action as you request to enforce your rights hereunder.
(7) WAIVER OF AUTHENTICATIONOFVALIDITYOF ACTS. If Customer is anorganization,it is not necessaryfor you to inquire into the powerofCustomer or the agents purporting to act in Customer's behag and any Indebtedness madeor createdin reliance upon the professed exercise of such power shall be guaranteed hereunder.
| (8) | ENFORCEMENTCOSTS. Wewill pay your reasonable attorneys' fees and all other costs and expenses which you Incur In the enforcement of this Guaranty. |
| (9) | APPLICATION OF SINGULAR AND PLURAL IN CONTEXT AND CONSTRUCTION. If there is only oneof us,then all words used herein in the plural shall be deemed to have |
been used in the singular where the context so requires; and where there is more thanone Customer, the wont "Customer"shall mean all and any oneor more of them as the con~requims
(10)ENTIREAGREEMENT; ASSURANCES. This Guaranty represents our entire agreement relativeto the guarantyoftheIndebtedness and may not be modified except in a writing signedbyyou andus. We willpeiform such acts and deliver such documents and information as youmayrequest to carry out the purposesofthis Guaranty. (II)CALIFORNIA LAWS APPLICABLE; JURY WAIVER.This Guaranty Is governed by andconstrued in accordance with the lawsofthe State of California. WE WAIVE ANY RIGHT TO A TRIALBYJURY IN ANYACTION RELATED HERETO.
| Guarantors Name:Barry Br~c~4cjn | IN WiTNESS WHEREOF,we haveGuarantors executed this Guaranty Nanie asof | |||
| By: | C~T~W~L(L() | |||
| (Please write ortype addressbelow): | (Pleasewrite ortype addressbelow): | |||
| 14SeacrestDrive | ||||
| LloydNeck,NY 11743 | ||||
| By: |
| Title |
| Bison Commercial Leasing Corp. |
| BisonCommercialLeasingCorp. 560.Broadhollow Road -Suite 201 Melville,NY 11747 NOTICE OF ASSIGNMENT AND ACKNOWLEDGMENT OF NOTICE |
| Date:___________________ |
TO:
Youandwehave entered intoacertain equipmentleaseagreement(the("Agreement") dated asof ,20underwhich youintendtoleaseorfinanceor haveleasedorfinanced certainproperty (the "Equipment") morefully described intheAgreement.
Youarehereby notified that we willassigneitherall our right, title and interest in andto theremainingscheduledpaymentsandcertainotheramountsdueundertheAgreementor allour right, title andinterest in,and all our rights, dutiesandobligationsunder,theAgreement,including those rights topayments,toBankof the West("Bank"). Pursuantto theassignmentparagraph of theAgreement, you arehereby directed to pay any and all scheduledpayments,late charges and any otheramountsnow orhereafterdueunderthe Agreementwithrespect towhich Bank rendersan invoice toBankat the address setoutimmediately below or to such otherpartyor at such other place asdirectedin said
| invoice: |
| BANKOF THE WEST P.O. Box 4002 Concord, CA 94524-4002 |
By your execution ofthisNotice ofAssignmentand Acknowledgment of Notice below, you acknowledge receipt of notice ofsuchassignmentand further acknowledge:
1.Thatyouwillpayall scheduled paymentsand other amounts due under the Agreement for which
Bankshall render aninvoice as directed in the invoice withoutanyset-off ordeduction whatsoever,notwithstanding anydefectin, damage to or requisition ofanyof the Equipment oranyothersimilarordissimilar event,it beingunderstoodthatyour obligation to make such payments is absolute,unconditionaland irrevocable;
2. Withoutlimitingthe generality ofparagraph1,thatBank'srightto such amounts is not subject toanydefense, set-off counterclaimorrecoupment arisingout ofany claimyou may now orhereafterhave against us oranyotherparty,including,where theAgreement is a lease andwe haveretainedtheresidual position, anyclaimyou may haveagainst us resultingfromourrejectionof theAgreement in abankruptcyproceedinginvolving usorour interference withyourquietenjoymentof the Equipment foranyreason,itbeingunderstoodthatyouretaintherighttoassertanysuchclaimin aseparate actionagainstus or the other appropriateparty
3. ThatBank hasnot madeandshallnot byvirtueofsaidassignmentmakeany warrantieswhatsoever as to the Agreementor theEquipment,assumedany liability as toanywarrantieswe oranyother
| By: |
| Title |
| Bison Commercial Leasing Corp. |
pthymay have madewithrespect thereto or assumedanyofour dutiesto youunderor related to theAgreementexcept that if theAgreement.hasnotpreviously been consummated, Bank has assumed ourconditionalfundingobligation as setforth intheAgreement
4. That youwillnot enter intoanyamendmentof orreceive any waiveroraccommodation asto the
Agreement,without the prior writtenconsentofBank,itbeing understoodthatany suchamendment,waiveroraccommodation willbe void without such consent;and
5.That youunderstandthatBankwillrelyupon your agreementshereininconsummatingthe proposed assignment.
You alsowarrant:
1. That no event of default or eventwhich withthegivingof notice or lapse oftimeor both would constitute aneventof default under the Agreementhas occu±red andiscontinuing;
2. That you have not suffered a material adversechangein your financial conditionsinceapprovalof the subjectleasingtransaction;
3.Thatyou are notsubjectto orthreatened with any courtoradministrative proceedingwhich if.determined adversely wouldhave amaterial adverse effecton your businessoperations;and
4.Thatif the Agreement haspreviously been consummated, all rental payments underthe Agreementareeach due as follows:
All paymentsof $1,052.73 (j~lusany applicable tax)payable on the
| day of each | commencing | .20_ followed by | ||
| payment(s) of$ | (plusany applicable tax). | |||
| Very trulyyours, | ||||
| BisonCommercial LeasingCorp. | ||||
| By. | ||||
| Title | ||||
| Acknowledged and agreed tothis | ||||
| dayof | ||||
| Sj,irits Management. Inc. | ||||
| By:Q)~O~I~LO() BarryM. rookstein |
| Title |
1
| Bison Commercial Leasing Corp. |
| -2- |
Revised11/1/02
| Bison Commercial Leasing Corp. |
| To: |
| (To becompleted and signedbycustomer) |
| (Completeagent'sname, address andphonenumber) |
We have entered into alease/equipment financing agreement with Bankofthe West ('~Bank") und~rwhichtheBank will lease/financetheproperty described in theattachedcopy ofthetopportionoftheagreement.
Inaccordance with ourobligations please provideBankofthe West,Equipment Leasing Department,P.O.Box 8182, Walnut Creek, CA94596with evidenceofinsuranceincluding:
| Date: |
| a. | Anendorsement showing primary all riskor its equivalentcoverage for the equipment(the Bank must benamedasLossPayee) for notlessthan theaggregate Equipment |
Cost/Advanceshownon theagreement(for vehicles comprehensiveandcollision coveragewithdeductiblesof notmorethan $1,000).
| Spirits | Management, | |||
| Inc. | ||||
| GAL NOF | SSEEIDEBTORABOVE | |||
| -4 | ||||
| ~ | ||||
| Title |
| b. | Anendorsementshowingcombinedpublicliabilityandpropertyckn'Rgeinsurance witha singlelimitof not less than $500,000per occurrence,orsuchotheramountas theBank mayrequire on notice to Lessee,the Bankmust benamedas AdditionalInsured. |
| c. | Astandard 10-daysnotice ofcancellationor revision inourcoverage in favor of theBank |
| d. | Anendorsement providingtheBankfull breach of warrantyprotection, ifapplicable. |
Revised11/1/02
INSURANCE AUTHO1UZATION
By:
By:
| INSURANCE AUTHO1UZATION |
| BisonCommercialLeasingCorp. 560BroadhollowRoad-Suite201 Melville. NY 11747 Addendum toEquipmentLease Agreement #___________ |
| PURCHASE OPTION |
This addendum, when signedbyLessor and Lessee, shall become partoftheabove-referenced lease(the"Lease"). Capitalizedtermsnotdefinedhereinshallhave themeanings set forth in the Lease.
Lessorhereby gives Lessee anoption,whichoption shall not be assignable,to purchase, AS-IS-WHERE-IS, Lessor'sinterestin all, but not less than all, ofthe Equipment leasedOr otherwise included under the Lease at the expiration of the termthereoffor theResidual Valueof theEquipment As contemplated under the Lease, the term Equipment includes anysoftware as to whichLessor has advanced funds pursuantto the Lease,whether Lessor purchasedthe software or advanced thepurchase priceon Lessee's behalfor for Lessee's license of the software. As indicated above,Lessor's transfer iswithout warranty. Accordingly, by exercising this option Lessee will be obligated to payLessorthe ResidualValue percentageof the amountLessoradvanced-with respectlo any relevant software even thoughLessorwill not nec ssarily be transferring anythingto Lessee and eventhough anylicenseLessee orLessor hasforsuch software mayhave expired.
Lessee's righttoexercisesaid option is conditionedupon (a)Lessee having performed allof the terms andconditionsof the Lease, and of all otheragreementsbetweenLessee and Lessor,at thetime andinthe manner requiredtherein; (b) Lessorhavingreceived written notice ofLessee'selection toexercisesaidoption at Lessor's address specified in theLeasenot morethan sixty(60)days nor less than thirty (30) days prior to theexpirationof theLease; and (c)Lessee'spayment toLessor ofsaid purchaseoptionprice withrespect tothe Equipment at thetime the notice in (1,) above is given,togetherwithall taxeson ormeasuredbysuch purchase price. Notwithstanding any language to the contraryinthe Lease, intheeventofLessee's failure to exercisethe optiongrantedLessee hereinabove, Lessee will purchaseAS-IS-WHERE-IS Lessor's interestintheEquipmentat theexpirationof thetermof the Lease for saidResidual Valueofsuch Equipment
In suchcase,Lesseewillpay Lessorthepurchase price together with all taxeson ormeasuredbysuchpurchaseprice,upon the expirationof theLease.
| Lessor: | Lessee: | |||||
| BisonCommercial LeasingCoip. | '4 | Spirits Management, Inc. | ABOVE | |||
| By: | President | |||||
| Title | ||||||
| Title | ||||||
By:
| 4 |
| .ACO~CERTIFICATE OF LIABILITY INSURANCE | SP?~2~DATE~M!DD!YYY~ | |||||||
| ' | THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION | |||||||
| B&G Group, Inc. | ONLY AND | CONFERS NO RIGHTS UPON THE CERTIFICATE | ||||||
| HOLDER. | THISCERTIFICATE DOES NOT AMEND, EXTEND OR | |||||||
| &G1icJ~tan, Inc. | ALTER THE COVERAGEAFFORDED | BY THE POLICIES BELOW. | ||||||
| E. Ames CourtPlainview NY 11803 | ||||||||
| Phone: | 516-576-0400 Fax:516-576-1177 | |||||||
| INSURERS AFFORDING COVERAGE | NAIC# | |||||||
| SpiritsManagementInc. | INSURER A: | USF&G | 357 | |||||
| 750 NewYork Ave. | ||||||||
| Huntington NY 11743 | ||||||||
| INSURER B: | ||||||||
| INSURERC: INSURERD: -- -_ ________ INSURER E: |
| COVERAGES |
POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONSANDCONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
| IDDI | POLICY NUMBER | POUCYEFFECTIVEPOUCY EXPIRATION | o | |||||||||||||||
| NSRI | TYPE OF INSURANCE | DATE (MM!D~~y)_J | LIMITS | |||||||||||||||
| - | ||||||||||||||||||
| GENERAL | UABILITY BK01518757 | 10/04/03 | 10/04/04 | EACH OCCURRENCE | $ 1,000 ,000 | |||||||||||||
| i1COMMERCIALGENERALLIABILITY | ||||||||||||||||||
| IjIOCCUR | ||||||||||||||||||
| ~~~t~nce) | $300,000 | |||||||||||||||||
| MEDEXP(Anyoneperson) | $10,000 | |||||||||||||||||
| PERSONAL & ADV INJURY | $ Excluded | |||||||||||||||||
| GENERAL AGGREGATE | $2,000,000 | |||||||||||||||||
| GENL AGGREGATE LIMIT APPLIES | ||||||||||||||||||
| PER: | ||||||||||||||||||
| - | POLICY[1~[~~1LOC | |||||||||||||||||
| PRODUCTS- COMP/OP AGG | $ 2 ,000,000 | |||||||||||||||||
| COMBINED SINGLE LIMIT (Ea | ||||||||||||||||||
| AUTOMOBILE LIABILITY | accident) | |||||||||||||||||
| ANY AUTO-ALL OWNED AUTOS- | ||||||||||||||||||
| SCHEDULED AUTOS-HIRED AUTOS- | ||||||||||||||||||
| NON-OWNED AUTOS | ||||||||||||||||||
| BODILY INJURY (Per person) | ||||||||||||||||||
| BODILY INJURY (Per | ||||||||||||||||||
| accident) | ||||||||||||||||||
| PROPERTY DAMAGE (Per | ||||||||||||||||||
| accident) | ||||||||||||||||||
| GARAGE LIABIUTY | AUTO ONLY-EA ACCIDENT | $ | ||||||||||||||||
| -~ANY AUTO | ||||||||||||||||||
| ~ | ||||||||||||||||||
| OTHER THAN | EAACS | |||||||||||||||||
| AUTO ONLY: | A | |||||||||||||||||
| $ | ||||||||||||||||||
| EXCESSIUMBRELLALIABILITY | EACH OCCURRENCE | S | ||||||||||||||||
| OCCUR | ||||||||||||||||||
| CLAIMS MADE | ||||||||||||||||||
| DEDUCTIBLE | ||||||||||||||||||
| RETENTION $ | ||||||||||||||||||
| - | ||||||||||||||||||
| AGGREGATE | S | |||||||||||||||||
| S | ||||||||||||||||||
| $ | - | |||||||||||||||||
| $ | ||||||||||||||||||
| WORKERS COMPENSATION AND | : | IWC STATU- 0TH-TORY | ||||||||||||||||
| EMPLOYERS' LIABILITY | LIMITS I ER | |||||||||||||||||
| ANY PROPRIETOR/PARTNER/EXECUTIVE | ||||||||||||||||||
| OFFICER/MEMBER EXCLUDED? | ||||||||||||||||||
| yes, describe under | ||||||||||||||||||
| SPECIAL PROVISIONS below | ||||||||||||||||||
| E.L. EACH ACCIDENT | $ | |||||||||||||||||
| EL. DISEASE-EA EMPLOYEE | S | |||||||||||||||||
| EL. DISEASE-POLICY LIMIT | S | |||||||||||||||||
| OTHER | 10/04/03 | 10/04/04 | ||||||||||||||||
| BK01518757 | Contents 457,334Ded | 500 | ||||||||||||||||
| SpecialForm |
OF OPERATIONS! LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT! SPECIAL PROVISIONS
Certificate Holder is listed as Loss Payee as respects leased equipment Subject to policy terms, conditions &
Rcviscd 11101/02
| 4 |
| exclusions. | ||||||
| CERTIFICATEHOLDER | CANCELLATION | |||||
| BANKWAL | SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE | |||||
| EXPIRATION | ||||||
| DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL10DAYS WRITTEN | ||||||
| BANKOF THE WEST | NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUTFAILURE TO DO SO SHALL | |||||
| ITS SUCCESSORS &/OR ASSIGNS | ||||||
| 201 N CIVICDRIVE SUITE 360 | IMPOSE NO OBLIGATION ORJJABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR | |||||
| WALNUTCREEK CA 94596 | ||||||
| REPRESENTATiVES. | ||||||
| AUTHORIZED REPRESENT | ~ | |||||
| D_~._(~_(~PC'~I_12_ItJC | ||||||
| ACORD25 (2001/08) |
| ~ACOR~CORPORATION1988 |