BLT LEASING CORP.
[original illegible] Third Avenue
New York, New York 10158 Equipment Lease
(212) 236-0860 No. 1333
LESSEE: O'Brien Environmental Energy, Inc.
225 South Eighth Street
Philadelphia, PA 19106
LOCATION OF EQUIPMENT
SELLER: (If other than Lessee's Address):
QUANTITY DESCRIPTION OF LEASED EQUIPMENT: MODEL NO., CATALOG NO. PRICE
OR OTHER IDENTIFICATION
See Equipment Schedule attached hereto and made part hereof.
TOTAL = $ 380,000.00
TERMS AND CONDITIONS OF LEASE
A. MONTHLY RENT PAYMENT B. TERM OF LEASE C. COMMENCEMENT DATE
$ 8,740.00 60 MONTHS
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D. ADVANCE RENTALS E. RENTAL INSTALLMENT(S) TO WHICH ADVANCE
$ 8,740.00 RENTALS SHALL BE APPLIED 1st MONTHS
-------------------- --------------------------------------
ADDITIONAL PROVISIONS (IF ANY)
1. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor the personal property described above and in
any Schedule signed by the parties and made a part hereof (herein
called "Equipment").
2. The term of this lease ("Entire Term") shall be the
number of months stated in B (plus any partial month if the
commencement date is other than the first day of a month),
commencing on the date stated in C. Lessee authorizes Lessor to
insert said commencement date, provided such date shall not be
earlier than the date of delivery to Lessee of the Equipment or a
substantial part thereof.
3. The total rent for the Entire Term of this lease is
equal to the monthly rent payment stated in A multiplied by the
number of months stated in B (plus a pro-rata portion of one
month's rent if the commencement date is other than the first day
of a month). Lessee agrees to pay the total rent in monthly
installments, in advance, each in the amount stated in A (except,
in the event the commencement date is other than the first day of
a month, the first installment, which shall be a pro-rata portion
of said amount), commencing on the date stated in C and
continuing on the first day of each month thereafter. The
Advance Rentals stated in D shall be paid by Lessee prior to
Lessor's acceptance of this Lease and shall be applied to the
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rental installments stated in E. Payment of all rentals shall be
made to Lessor at its above-stated address, or as it shall
otherwise designate in writing.
4. Lessor make NO WARRANTIES as to the Equipment and none
shall be implied, including without limitation, its condition,
merchantability or fitness for a particular purpose or compliance
with any applicable governmental requirements or regulation.
Lessee agrees to look solely to the manufacturer, seller or
carrier of the Equipment for any claim arising from any defect,
breach of warranty, failure or delay in delivery, misdelivery or
inability to use the Equipment for any reason whatsoever and
Lessee's obligations to Lessor hereunder shall not in any manner
be affected thereby. Lessor shall not be liable for any loss,
damage or expense caused directly or indirectly by any item of
Equipment, the use, maintenance, repair or servicing thereof, by
any delay or failure to provide same, by any interruption of
service or loss of service or loss of use, or for any loss of
business or other consequential damages however caused.
5. Lessee has selected and requested Lessor to order the
Equipment from the above named Seller. Lessor agrees to order
same from Seller but shall not be liable for specific performance
or damages if for any reason Seller delays or fails to fill the
order. Lessor has no obligation to install the Equipment and
Lessee shall look solely to Seller for any manuals or other
literature relating to the Equipment.
6. Lessee shall accept the Equipment upon its delivery and
authorizes Lessor to insert herein the serial numbers and any
additional description of the items of Equipment so delivered.
Unless Lessee gives Lessor and Seller written notice of each
defect or other proper objection to any item of Equipment within
five (5) business days after delivery thereof, it shall be
conclusively presumed that the Equipment was duly delivered and
unconditionally accepted by Lessee. If Lessee refuses delivery
of any item of Equipment for any reason whatsoever, then and in
that event, Lessee agrees to pay the price invoiced to Lessor by
Seller, or if such payment is not made, Lessee does indemnify and
hold Lessor harmless from and agrees to protect and defend Lessor
at Lessee's expense against any claim of liability and damage by
Seller with reference to such item. Upon such payment, this
lease shall terminate as to said item of Equipment only, and the
rental hereunder shall be proportionately adjusted. The purchase
order, if any, may, at Lessor's option, provide in substance that
if Lessee shall refuse to accept delivery of any item ordered,
Lessor shall be deemed relieved of any liability under such
purchase order and that all obligations thereunder shall, upon
such refusal, be deemed solely those of Lessee, with the same
force and effect as if Lessee, instead of Lessor, had placed such
order; and Lessee hereby agrees in such event, to be bound by
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such provision. Lessor shall not be responsible for the failure
of the purchase order to contain any description, specification,
term or condition with respect to any item leased hereunder, or
its delivery, assembly or installation, not set forth herein.
7. Lessee shall keep the Equipment within the United
States at the above-stated Location of Equipment or, if none is
specified, at Lessee's above-stated address within the United
States and Lessee shall not remove any of the same therefrom
without Lessor's prior written consent not unreasonably withheld
(except, in the event the Equipment is installed in a motor
vehicle, such motor vehicle shall be principally garaged at the
above-stated Location of Equipment and may be temporarily removed
therefrom in connection with the ordinary use of such motor
vehicle).
8. Lessee shall use the Equipment in a careful manner and
shall, at its expense, keep the Equipment in good repair and
comply with all laws, ordinances, regulations or requirements of
any governmental authority, official, board or department
relating to its installation, possession, use or maintenance.
9. The Equipment is, and shall at all times remain, the
property of Lessor and Lessee shall have no right, title or
interest therein or thereto except as set forth herein. Upon
Lessor's request, Lessee shall affix and keep in a prominent
place on each item of Equipment labels, plates or other markings
indicating that the Equipment is owned by Lessor.
10. Lessee shall not make any modifications, alterations,
additions or improvements to the Equipment outside of industry
standards without Lessor's prior written consent. All such
additions and improvements shall belong to Lessor. The Equipment
shall remain personal property regardless of its affiliation to
any realty. Lessor shall have the right to enter Lessee's
premises during business hours to inspect the Equipment and
observe its use. Lessee represents, warrants and covenants that,
unless Lessee owns the premises in which the Equipment is to be
located and said premises are not subject to any mortgage or
lease, Lessee shall provide Lessor, within 30 days following the
execution by Lessee of this lease, with a waiver from each lessor
or mortgagor of the premises in which the Equipment is to be
located of any rights which such lessor or mortgagor may have in
respect of the Equipment (including, but not limited to, claims
against the Equipment by reason of accession, distraint or that
the Equipment constitutes a fixture affixed to real property) and
to procure for Lessor, in form acceptable to Lessor, such
documents with respect to such waiver as Lessor may reasonably
request.
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11. Lessee shall bear the entire risk of loss, theft,
destruction of or damage to the Equipment or any part thereof
from any cause whatsoever and shall not be relieved of the
obligation to pay the total rent or any other obligation
hereunder because of any such occurrence. In the event of damage
to any item of Equipment, Lessee, at its sole expense and at the
option of Lessor, shall immediately place the same in good
repair. If Lessor determines that any item of Equipment is lost,
stolen, destroyed or damaged beyond repair, Lessee, at its sole
expense and at the option of Lessor, shall (a) replace the same
with like equipment in good repair, or (b) acquire Lessor's
interest in such item of Equipment by paying Lessor in cash in
addition to any other amount due hereunder, the unpaid balance of
the total rent for the unexpired term hereof attributable to said
item. Upon Lessor's receipt of such payment, Lessee shall be
entitled to Lessor's interest in said item and to possession of
same at its then location, as is, and without recourse to Lessor.
12. Lessee shall, at its expense, keep the Equipment fully
insured favor of Lessor against loss, fire, theft, damage or
destruction from any cause whatsoever in an amount not less than
the total rent hereunder, and such additional insurance against
injury, loss or damage to persons or property arising out of the
use or operation of the Equipment as is customarily maintained by
the owners of like property, with companies satisfactory to
Lessor under policies providing for 30 days' notice to Lessor of
modification or cancellation by the insurer or Lessee. Each
policy shall provide that, as to the interest or coverage of
Lessor or Lessor's assignee, the insurance afforded thereby shall
not be suspended, forfeited, or in any manner prejudiced by any
default or by any breach of warranty, condition, or covenant on
the part of Lessee. Lessor, at its option, may apply any
proceeds of said insurance to replace or repair the Equipment
and/or to Lessee's obligations hereunder. If Lessee shall fail
to provide said insurance or, within ten (10) days after Lessor's
request therefor, shall fail to deliver the policies or
certificates thereof to Lessor, then Lessor, at its option, shall
have the right to procure such insurance and to add the cost
thereof to the rent payment next becoming due which Lessee agrees
to pay as additional rent.
13. Lessee covenants and agrees to keep the Equipment free
and clear of all levies, liens, and encumbrances and to pay all
charges, taxes and fees which may now or hereafter be imposed
upon the ownership, leasing, rental, sale, purchase, possession
or use of the Equipment except taxes on or measured by Lessor's
income. If any of same shall remain unpaid when due, Lessor may
pay same and add such payment to the rent payment next becoming
due, as additional rent.
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14. Lessee agrees to indemnify and save Lessor harmless
from any and all claims, actions, proceedings, expenses, damages
and liabilities, including reasonable attorneys' fees, arising
out of or in any manner pertaining to the Equipment or this lease
including, without limitation, the ownership, selection,
possession, purchase, delivery, installation, leasing, operation,
use, control, maintenance and return of the Equipment, any claims
of trademark, patent or copyright infringement with respect to
the Equipment and the recovery of claims under insurance policies
thereon. Lessee's obligation to indemnify Lessor pursuant to
this paragraph shall survive any termination of this lease.
15. Lessee shall not assign, pledge, mortgage or otherwise
transfer or encumber any of its rights under this lease or in the
Equipment or any part thereof, nor sublet any part thereof, nor
permit its use by anyone other than Lessee and its regular
employees, without Lessor's prior written consent. Any such
purported transfer, assignment or other action without Lessor's
written consent shall be void. Lessor may, without notice,
transfer or assign this lease or any interest herein and may
mortgage, encumber or transfer any of its right or interest in
and to the Equipment or any part thereof and, without limitation,
each assignee, transferee and mortgagee shall have the right to
transfer or assign its interest. Each such assignee, transferee
and mortgagee shall have all of the rights but none of the
obligations of Lessor under this lease and Lessee shall not
assert against any of them any defense, claim, counterclaim or
set-off that Lessee may have against Lessor.
16. As used in this lease, the term "Event of Default"
shall mean any of the following: (a) the failure by Lessee to
make any payment when due hereunder or the failure by any Obligor
(as hereinafter defined) to pay when due any of the Liabilities
(as hereinafter defined); (b) the failure by an Obligor to
observe or perform (i) any other agreement or obligation to be
observed or performed hereunder or under any agreement, document
or instrument delivered to Lessor by or on behalf of an Obligor
or otherwise relating to any of the Liabilities (collectively,
the "Other Documents"), or (ii) any other obligation of an
Obligor to Lessor or to Bank Leumi Trust Company of New York
("Bank"); (c) any representation made by or on behalf of any
Obligor in this lease or in any of the Other Documents shall at
any time prove to have been incorrect or untrue when made; (d)
the making by an Obligor of any misrepresentation to Lessor or
the failure on the part of an Obligor to disclose to Lessor any
material fact in connection with this lease or otherwise, either
contemporaneously herewith or at any time prior or subsequent to
the execution hereof; (e) the material breach by an Obligor of
any warranty contained herein or in any of the Other Documents;
(f) a default in the payment of any indebtedness owed to any
individual in excess of 1/2 million or entity other than Lessor
<Page 6>
or Bank, or a default in the performance or observance of the
terms of any agreement, document or instrument pursuant to which
such indebtedness was created, secured or guaranteed, the effect
of which default is to cause or permit the holder of any such
indebtedness to cause the same to be due prior to its stated
maturity (whether or not such default is waived by the holder
thereof); (g) the failure of an Obligor to pay, withhold, collect
or remit when asserted or due any tax, assessment or other sum
payable with respect to the Equipment or any security for any of
the Liabilities (including without limitation any premium on any
insurance policy with respect (to any of the Equipment or any
security for any of the Liabilities, or any insurance policy
assigned to Lessor as security for any of the Liabilities), or
the making of any material tax assessment against any Obligor by
the United States or any state or local government not contested
in good faith; (h) the entry of a judgment against an Obligor or
any attachment, levy or execution against any property of an
Obligor, or the condemnation or seizure of any part of any
property of an Obligor by any governmental authority or court at
the instance of such governmental authority; (i) the death of an
Obligor, if an individual, or the death of any individual member
of an Obligor, if a partnership or joint venture; (j) the
suspension of the usual business of an Obligor, or the
dissolution, liquidation or other termination of existence of an
Obligor, or the adoption of any resolution for the dissolution,
liquidation or other termination of existence of an Obligor;
(k) the failure of an Obligor (or any admission in writing by an
Obligor of its inability) to generally pay its debts as they
become due or the insolvency or business failure of an Obligor;
(l) the filing of an application for appointment of a trustee,
custodian or receiver for an Obligor or of any part of an
Obligor's property, or an assignment for the benefit of creditors
by an Obligor, or the making or sending of notice of any intended
bulk transfer by an Obligor; (m) the filing of a petition in
bankruptcy by or against an Obligor, or the commencement by or
against an Obligor of any proceeding under any bankruptcy or
insolvency law or statute, or any law or statute relating to the
relief of debtors or arrangement of debt, readjustment of
indebtedness, reorganization, receivership or composition, or the
extension of indebtedness; or (n) such a change in the condition
or affairs (financial or otherwise) of an Obligor as shall, in
the sole opinion of Lessor, increase Lessor's risk with respect
to this lease, the Equipment or any of the Liabilities or any
security therefor. [original illegible] Upon the occurrence of
an Event of Default, then, at Lessor's option, the entire unpaid
total rent for the balance of the Entire Term hereof shall be at
once due and payable and Lessor may, without demand or legal
process, terminate this lease and enter upon the premises where
the Equipment is located, take possession of and remove same, and
exercise any one or more of the following rights and remedies,
without liability to Lessee therefor and without affecting
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Lessee's obligations hereunder: (i) sell, lease or otherwise
dispose of the Equipment or any part thereof at one or more
public or private sales, leases or other dispositions, at
wholesale or retail, for such consideration, on such terms, for
cash or on credit, as Lessor may deem advisable, on at least ten
(10) days' notice to Lessee of any public sale or of the time
after which a private sale, lease or other disposition may be
made (which notice Lessee acknowledges is reasonable); or
(ii) retain the Equipment or any part thereof, crediting Lessee
with the then reasonable rental value thereof for the balance of
the Entire Term of this lease; or (iii) pursue any other remedy
granted by any existing or future document executed by Lessee or
by law. Lessee agrees to pay all Lessor's expenses, including
but not limited to the costs of repossessing, storing, repairing
and preparing Equipment for sale or lease, commissions payable in
connection with any such sale or lease, and reasonable attorney's
fees if an attorney shall be consulted. The net proceeds
realized from any such sale, lease or other disposition or the
exercise of any other remedy, after deducting therefrom an amount
equal to 20% of the invoice cost of the Equipment and all
expenses (which amount shall be retained by Lessor), shall be
applied toward payment of the unpaid rentals hereunder through
the end of the Entire Term of this lease. Lessee to remain
liable for any deficiency. Any amount due Lessor under this
paragraph shall be deemed liquidated damages for the breach
hereof and not a penalty. All rights and remedies of Lessor
shall be cumulative and not alternative. Lessor's failure to
exercise or delay in exercising any right or remedy shall not be
construed as a waiver thereof, nor shall a waiver on one occasion
be construed to bar the exercise of any right or remedy on a
future occasion.
For purposes of this lease, (a) the term "Obligor" shall
mean Lessee and any guarantor or hypothecator or any other party
liable for any of the Liabilities of Lessee in addition to
Lessee, and (b) the term "Liabilities" shall mean all liabilities
and obligations of any kind of all Obligors (or any partnership,
joint venture or other group of which an Obligor is a member) to
Lessee or Bank whether (i) for the account of Lessor or Bank, or
as agent for others, (ii) acquired directly or indirectly by
Lessor or Bank from Lessee or others, (iii) absolute or
contingent, joint or several, secured or unsecured, liquidated or
unliquidated, due or not due, contractual or tortious, or now
existing or hereinafter arising, or (iv) incurred by an Obligor
as principal, surety, endorser, guarantor or otherwise, and
including without limitation all expenses, including attorneys'
fees, incurred by Lessor or Bank in connection with any such
liabilities or obligations or any security therefor.
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17. Lessee agrees to pay a later charge of 5 cents per dollar on
any rent installment in default ten (10) days or more not
theretofore accelerated.
18. Lessee agrees that this lease is irrevocable for the
Entire Term, that Lessee's obligations under this lease are
absolute and shall continue without abatement and regardless of
any disability of Lessee to use the Equipment or any part thereof
because of any reason including, but not limited to war, act of
God, governmental regulations, strike, loss, damage, destruction,
obsolescence, failure of or delay in delivery, failure of the
Equipment to operate properly, termination by operation of law or
any other cause. Lessee warrants that the application,
statements and credit or financial information submitted by it to
Lessor are true and correct and made to induce Lessor to enter
into this lease and to order the Equipment from Seller. Lessee
will provide to Lessor audited annual financial statements and
such other interim financial statements as Lessor may request,
such financial statements to be furnished within 120 days after
the end of each fiscal year or appropriate interim period of
Lessee during the Entire Term of this lease.
19. Lessor warrants, covenants and agrees that upon
expiration or termination of this lease and any renewal hereof,
with respect to any item of Equipment, Lessee shall, at its
expense, return such Equipment in the same condition as received,
reasonable wear and tear excepted, by delivering same to Lessor
or to a place designated by Lessor, unless Lessor shall elect to
abandon all or part of such Equipment.
20. Lessee further agrees that upon expiration of this
lease it shall pay promptly all costs, expenses and obligations
of every kind and nature relating to the Equipment which may
arise or become due during the term of this lease, whether or not
specifically mentioned herein. No rental or other sums payable
by Lessee pursuant to this lease shall be subject to set-off,
deduction, counterclaim or abatement, nor shall this lease
terminate, nor shall Lessee be entitled to any credit against
such rental or other sums for any reason whatsoever, including,
but not in any way limited to any damage to or destruction of the
Equipment or any item thereof, any limitation, restriction,
deprivation or prevention of, or any interference with Lessee's
use of the Equipment or any item thereof, whether the same shall
be lawful or unlawful, any dispossession of Lessee from the
Equipment or any item thereof by title paramount or otherwise;
the requisition or taking by statute or by exercise of the power
of eminent domain or other governmental authority or otherwise,
or by injunction or by any private person, of the Equipment or
any item thereof, the prohibition of Lessee's business, in whole
or in part, whether pursuant to law or otherwise, or any reason
whether similar or dissimilar to the foregoing.
<Page 9>
21. Lessee hereby agrees that all actions or proceedings
arising directly or indirectly from or in connection with this
lease shall be litigated only in the Supreme Court of the State
of New York or the United States District Court for the Southern
District of New York. Lessee consents to the jurisdiction of the
foregoing courts and consents that any process or notice of
motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or
the Southern District of New York by registered or certified
mail, return receipt requested, directed to Lessee at its address
set forth in this lease (and service so made shall be deemed
complete five (5) days after the same has been posted as
aforesaid) or by personal service, or in such other manner as may
be permissible under the rules of said courts. Lessee appoints
any officer of Lessor as agent for the purpose of accepting
service of any process within the State of New York, subject only
to the condition that the officer promptly mail a copy of that
process to Lessee at its address for notices hereunder.
22. Any notice to a party hereunder shall be deemed given
when mailed to said party by certified mail, return receipt
requested, at its address set forth herein or such other address
as either may designate for itself in such notice to the other.
23. Whenever the sense of this agreement requires, words in
the singular shall be deemed to include the plural and words in
the plural shall be deemed to include the singular. If more than
one Lessee is named herein, the liability of each shall be joint
and several.
24. This Agreement constitutes the entire mutual
understanding of the parties regarding the within subject matter
and may not be modified except in writing, signed by the party
against whom such modification is asserted. Lessee shall have no
option to purchase or otherwise acquire title to or ownership of
any of the Equipment unless such option is set forth in writing
signed by a duly authorized officer of Lessor.
25. Notwithstanding Lessee's acknowledgment, if any, that
this is a "true" lease, Lessee hereby authorizes Lessor, at its
option and as contemplated by Section 9-408 of the New York
Uniform Commercial Code, to file financing statements covering
the Equipment signed only by Lessor, and agrees to pay Lessor the
actual fee for such filings.
26. This lease shall be construed under the laws of the
State of New York and shall not become effective until accepted
by Lessor at its above office and upon such acceptance shall,
subject to Paragraph 15 hereof, inure to and bind the parties,
their successors, legal representatives and assigns. No
provision hereof which may be construed as unenforceable shall in
<Page 10>
any way invalidate any other provision hereof, all of which shall
remain in full force and effect. All representations,
warranties, indemnities and agreements of Lessee contained in
this lease shall survive and continue in full force and effect
notwithstanding termination or expiration of this lease.
No agent or employee of Seller is authorized to bind Lessor
to this Lease, to alter or waive any term or condition hereof, or
to add any provision hereto, notwithstanding any compensation or
benefit that may be given by Lessor to Seller or any agent or
employee of Seller.
The undersigned agree to all Terms and Conditions set forth
above and on the REVERSE SIDE HEREOF, and in witness thereof
hereby execute this lease.
ACCEPTED: NEW YORK, N.Y.
DATE: July 28, 1993 LESSEE: O'Brien Environmental
Energy, Inc.
Full Name of Individual,
Partnership or Corporation
LESSOR: BLT LEASING CORP.
By:/s/ By:/s/
- - -------------------------- ------------------------------
Person Authorized to
Sign Title