Exhibit 10.05
DVI FINANCIAL SERVICES INC.
MASTER EQUIPMENT LEASE
LESSOR: ("Master Lease") LEASE NO. 0001357
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DVI Financial Services Inc.
500 Hyde Park DATE: August 28, 1996
Doylestown, PA 18901 -----------------
Telephone (215) 345-6600
LESSEE:SMT Health Services Inc.
BILLING ADDRESS: EQUIPMENT ADDRESSES:
1200 Johnie Dodds Boulevard
10521 Perry Highway Mount Pleasant, SC 29464
Wexford, PA 15090 510 South Mill Street
Manning, SC 29102
501 Robertson Boulevard
Walterboro, SC 29488
TERMS AND CONDITIONS
1. LEASE.
Lessor leases to Lessee, and Lessee hires from Lessor, all of the tangible
personal property (with all present and future accessories, additions, upgrades,
attachments, repairs and replacement parts, collectively called "Equipment")
described in each equipment schedule executed from time to time pursuant to this
Master Lease ("Equipment Schedule"). Each Equipment Schedule shall (a) be on
Lessor's form, (b) incorporate all of the terms of this Master Lease, and (c)
contain additional terms as Lessor and Lessee agree.
2. TERM.
(a) The term of this Master Lease shall begin on the date set forth above
and shall continue in effect so long as any Equipment Schedule remains in
effect.
(b) The lease term for each Equipment Schedule shall begin on the date of
shipment to Lessee of the Equipment (or any part thereof) described in such
Equipment Schedule or such later date as Lessor may designate in writing (the
"Commencement Date"), and shall continue thereafter for the term set forth in
such Equipment Schedule. On the Commencement Date, Lessee shall execute and
deliver to Lessor a Delivery and Acceptance Certificate, in a form to be
specified by Lessor, which confirms the Commencement Date.
(c) THIS LEASE AND THE LEASE TERM FOR EACH EQUIPMENT SCHEDULE ARE NOT
CANCELABLE BY LESSEE.
3. RENT AND PAYMENT.
Lessee shall pay Lessor, as rental for the Equipment during each month of
the term of any Equipment Schedule, the monthly rent set forth in such Equipment
Schedule, together with any and all monthly rent payable pursuant to Section
8(a) hereof in connection with any accessions, additions, upgrades with
attendant maintenance contracts, and improvements to any of the Equipment, which
shall be payable in advance without notice or demand on the dates set forth in
such Equipment Schedule. Lessee agrees to pay interim rent in an amount equal to
the pro rata periodic monthly rent from the Commencement Date to the first
regular monthly periodic rent payment date. Thereafter, the regular periodic
rent shall be due on the first day of each succeeding period commencing with the
first day of the month following the Commencement Date as set forth on the
Equipment Schedule. Lessee shall pay the monthly rent and all other money due
under this Master Lease or any Equipment Schedule by check or wire transfer so
as to constitute immediately available funds at Lessor's address set forth above
or at such other place as Lessor shall designate in writing, or if to an
assignee of Lessor, at such place as such assignee shall designate in writing,
and Lessee shall make such payments free and clear of all claims, demands or
setoffs against Lessor or such assignee. Whenever any payment (of rent or
otherwise) is not made within three (10) business days from the date due
hereunder, Lessee shall pay Lessor a late charge of five percent (5%) of any
payment not paid when due, plus the lesser of eighteen percent (18%) interest
per year or the highest lawful rates on such payment until received, or such
lesser maximum amount as is permitted by applicable law. In addition, Lessor at
its option may require at any time that Lessee make all payments due hereunder
or under any Equipment Schedule by certified check or by wire transfer.
4. REQUEST FOR EQUIPMENT.
Lessee requests Lessor to order the Equipment described in any Equipment
Schedule executed by Lessee from the supplier named in such Equipment Schedule,
to arrange for delivery to Lessee at Lessee's expense, and to pay for the
Equipment as provided in such Equipment Schedule. Lessee acknowledges and agrees
that: (a) Lessee has independently selected the supplier and the Equipment, and
that Lessor will rely on specifications provided by Lessee in ordering the
Equipment; (b) Lessee shall be responsible for all costs and expenses relating
to the selection, shipment, delivery, assembly, installation, testing,
adjusting, servicing, operation and acceptance of the Equipment; (c) unless the
Equipment Schedule otherwise provides, Lessor's payment to the supplier will
occur only after Lessee has confirmed (on Lessor's Delivery and Acceptance
Certificate) satisfactory delivery, assembly, installation, inspection and
acceptance of the Equipment; (d) Lessor shall have no responsibility for any
delay, failure or refusal on the part of any supplier to accept or fill Lessor's
order; (e) upon Lessee's acceptance of Equipment, Lessee shall execute Lessor's
Delivery and Acceptance Certificate; (f) Lessor has the option to terminate any
Equipment Schedule and all obligations to Lessee under such Equipment Schedule,
and to recover from Lessee any deposit paid by Lessor to the supplier, if the
Equipment described in such Equipment Schedule has not been delivered,
assembled, installed and accepted by Lessee within 60 days from the date that
Lessor orders the Equipment; (g) no supplier is Lessor's agent, or authorized to
bind Lessor or waive or alter any provision of this Master Lease or any
Equipment Schedule; and (h) if Lessee cancels this Master Lease after execution
of such but prior to the Lessee's execution of the Delivery and Acceptance
Certificate, Lessor may withhold and keep any deposits or funds paid by Lessee
to Lessor.
5. EQUIPMENT SELECTION; DISCLAIMER OF WARRANTIES; WAIVERS.
(a) Lessee acknowledges, represents and warrants that Lessee has made the
selection of Equipment based on Lessee's own judgment, and expressly disclaims
any reliance upon statements made by Lessor or Lessor's agents, employees or
salespersons.
(b) LESSOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
THE CAPACITY, CONDITION, DESIGN, DURABILITY, MATERIAL, MERCHANTABILITY,
PERFORMANCE, QUALITY, SUITABILITY, WORKMANSHIP OR VALUE OF THE EQUIPMENT OR ITS
FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT WILL SATISFY THE
REQUIREMENTS OF ANYLAW, RULE, REGULATION, SPECIFICATION OR CONTRACT, OR ANY
OTHER REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT
TO THE EQUIPMENT OR ANY ASSOCIATED ITEM OR ANY ASPECT THEREOF. AS TO THE LESSOR,
LESSEE LEASES THE EQUIPMENT "AS IS".
(c) Lessee acknowledges that (i) Lessor is neither the manufacturer of the
Equipment nor a manufacturer's agent, supplier or dealer, and has no familiarity
with the Equipment; and (ii) Lessor shall have no obligation to assemble,
install, test, adjust or service the Equipment.
(d) Lessor shall not be liable, to Lessee or otherwise, to any extent
whatsoever, for the selection, quality, condition, merchantability, suitability,
fitness, operation or performance of the Equipment. Without limiting the
generality of the foregoing, Lessor shall not be liable, to Lessee or otherwise,
for any liability, claim, loss, damage or expense of any kind or nature
(including strict negligent liability in tort) caused, directly or indirectly,
by the Equipment or any inadequacy thereof for any purpose, or any deficiency or
defect therein, or the use or maintenance thereof, or any repairs, servicing or
adjustments thereto; or any delay in providing or failure to provide any part
thereof, or any interruption or loss of service thereof, or any loss of
business, or any damage whatsoever and howsoever caused.
(e) REGARDLESS OF CAUSE, LESSEE WILL NOT ASSERT ANY CLAIM WHATSOEVER
AGAINST LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR ANY OTHER INDIRECT, SPECIAL
OR CONSEQUENTIAL DAMAGES. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND
EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO
BE SEVERABLE FROM ANY OTHER PROVISION AND IS A SEPARABLE AND INDEPENDENT ELEMENT
OF RISK ALLOCATION AND IS INTENDED TO BE ENFORCED AS SUCH.
(f) If the Equipment fails to comply with any representation or warranty
made by the supplier or manufacturer thereof, or is defective or improperly
assembled or installed or otherwise unsatisfactory for any reason, Lessee shall
make claim on account thereof against the supplier or manufacturer thereof, and
Lessee shall nevertheless pay all rent and perform all other obligations under
this Master Lease and all Equipment Schedules without asserting any claim
against Lessor. Lessor hereby assigns to Lessee, without recourse and solely for
the purpose of prosecuting such a claim, all rights that Lessor may have against
the supplier and manufacturer of Equipment for breach of warranty or other
representations with respect to the Equipment; provided, however, that this
assignment shall not preclude Lessor, in its sole discretion, from asserting and
prosecuting such a claim. Lessee shall indemnify and hold Lessor harmless from
and against any and all claims, costs, expenses, damages, losses and liabilities
incurred or suffered by Lessor as a result or incident to any such action by
Lessee for breach of warranty or other representations with respect to the
Equipment.
(g) Lessor makes no representation or warranty as to the treatment of this
Master Lease or any Equipment Schedule for tax or accounting purposes or
otherwise.
(h) Lessee hereby waives its rights and remedies under Pennsylvania
Commercial Code Section 10508 through 10522 with respect to Lessee's right to
cancel any Equipment Schedule, reject any of the Equipment, recover damages or
any other rights and remedies provided thereunder in connection with any default
by Lessor or any other circumstances therein provided.
6. TITLE AND ASSIGNMENT.
(a) Nothing contained in this Master Lease, or in any Equipment Schedule,
shall give or convey to Lessee any right, title or interest in or to the
Equipment, or any additions, upgrades, accessions, or improvements thereto,
except as a Lessee as set forth in this Master Lease and such Equipment
Schedule, and Lessee represents and agrees that Lessee shall hold the Equipment
subject and subordinate to the rights of the owner thereof. The Equipment is
and at all times shall remain the property of Lessor (or Lessor's successor in
interest), and except as expressly set forth in this Master Lease or any
Equipment Schedule, Lessee shall have no right, title, equity or interest in the
Equipment and no right or option to purchase or otherwise acquire title to or
ownership of the Equipment. Lessee shall, at Lessee's sole cost and expense:
(i) defend and protect the ownership of, title to, and interest in the Equipment
of Lessor, Lessor's successors in interest, and any assignee or secured party,
against all parties claiming against or through Lessee; (ii) keep the Equipment
free and clear from any legal process, liens, claims, demands and encumbrances
(except those incurred by Lessor); and (iii) give Lessor prompt written notice
of any legal process, liens, claims, demands and encumbrances made by any party
(except Lessor) with respect to the Equipment. Lessee shall, and Lessor may on
behalf of Lessee, at Lessee's expense, execute and file such financing
statements, applications for registration and other documentation as Lessor
shall require for the purpose of protecting or perfecting the interest of
Lessor, or any assignee, transferee or secured party, in the Equipment.
(b) Lessee shall, at Lessee's expense, affix to the Equipment such labels,
signs or other devices as Lessor may supply to identify Lessor as the owner and
Lessor of the Equipment. Lessee authorizes Lessor to insert in any Equipment
Schedule and in any financing statement or other documents the serial numbers
and other identification data of the Equipment when determined by Lessor. The
Equipment is and at all times shall remain personal property regardless of any
attachment or affixation of the Equipment to any real property or improvements
thereon.
(c) LESSEE SHALL NOT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, (i) ASSIGN
THIS MASTER LEASE OR ANY EQUIPMENT SCHEDULE OR ANY INTEREST HEREIN OR
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THEREIN, (ii) ENTER INTO ANY SUBLEASE, LOAN OR SIMILAR ARRANGEMENT WITH RESPECT
TO THE EQUIPMENT, OR (iii) TRANSFER, ASSIGN, CONVEY, ENCUMBER, PLEDGE OR
OTHERWISE DISPOSE OF ANY EQUIPMENT OR ANY INTEREST THEREIN; AND ANY ATTEMPT BY
LESSEE TO DO ANY OF THE FOREGOING WITHOUT LESSOR'S PRIOR WRITTEN CONSENT SHALL
BE VOID.
(d) Lessee shall keep, maintain and use the Equipment only at the place
designated on the Equipment Schedule, and shall not move the Equipment to any
other location without the Lessor's prior written consent.
(e) This Master Lease and any rights of Lessor hereunder and under any
Equipment Schedule shall be assignable by Lessor without notice to or the
consent of Lessee. Lessee acknowledges and understands that the terms and
conditions of each Equipment Schedule have been fixed by Lessor in anticipation
of Lessor's ability to sell and assign its interest or grant a security interest
under each Equipment Schedule and the Equipment listed therein in whole or in
part to a security assignee (the "Secured Party") for the purpose of either
assigning: (i) Lessee's obligation to pay rent pursuant to such Equipment
Schedule (Lessor having transferred the right to receive such rent to the
Secured Party), or (ii) securing a loan to Lessor. Lessor may also sell and
assign its rights as owner and lessor of the Equipment under any Equipment
Schedule to an assignee (the "Assignee") which may be represented by a bank or a
trust company acting as a trustee (the "Owner Trustee") for the Assignee. After
such assignments the term Lessor shall mean, as the case may be, such Assignee
or Owner Trustee and any Secured Party (collectively "Lessor Transferee").
Lessee acknowledges and agrees that:
(1) Any such Lessor Transferee shall have and be entitled to exercise any and
all discretion, rights and powers of Lessor hereunder or under any Equipment
Schedule, but such Lessor Transferee shall not be obligated to perform any of
Lessor's obligations hereunder or under any Equipment Schedule; provided,
however, that such Lessor Transferee shall not disturb Lessee's quiet and
peaceful possession of the Equipment and use thereof for its intended purpose
during the terms hereof so long as Lessee is not in default of any provision
hereof and such Lessor Transferee continues to timely receive all amounts of
rent payable under such Equipment Schedule;
(2) Lessee will pay all rent and any and all other amounts payable by Lessee
under any Equipment Schedule to such Lessor Transferee, notwithstanding and
Lessee hereby waives any defense or claim of whatever nature, whether by reason
of breach of such Equipment Schedule or otherwise, which Lessee may or might now
or hereafter have as against Lessor or any prior Lessor Transferee (Lessee
reserving its right to have recourse directly against Lessor on account of any
such defense or claim); and
(3) Subject to and without impairment of Lessee's leasehold rights in and to
the Equipment, Lessee holds the Equipment for such Lessor Transferee to the
extent of such Lessor Transferee's rights therein.
7. NET LEASE, TAXES AND FEES.
(a) Lessor and Lessee acknowledge and agree that each Equipment Schedule
constitutes a net lease and that Lessee's obligation to pay all rent and any and
all amounts payable by Lessee under any Equipment Schedule shall be absolute and
unconditional, and shall not be subject to any abatement, reduction, setoff,
defense, counterclaim, interruption, deferment or recoupment for any reason
whatsoever; and that such payments shall be and continue to be payable in all
events.
(b) Lessee shall, at Lessee's sole cost and expense and in addition to the
rent due under any Equipment Schedule, promptly pay all taxes, assessments,
license fees, permit fees, registration fees, fines, interest, penalties and all
other governmental charges (including without limitation income, gross receipts,
sales, use, excise, personal property, ad valorem, stamp, documentary and other
taxes), whether levied, assessed or imposed on Lessee, Lessor, the Equipment or
otherwise, relating to the Equipment or the delivery, leasing, operations,
ownership, possession, purchase, registration, rental, sales or use thereof
during the term of any Equipment Schedule, or the interest of Lessee in the
Equipment or under any Equipment Schedule, or the rental or other payments
thereunder or earnings arising therefrom (excepting only taxes on Lessor's net
income). Lessee shall file all returns required in connection therewith and
shall promptly furnish copies to Lessor. Lessee shall reimburse Lessor for any
such taxes paid by Lessor within ten (10) days of receipt of Lessor's invoice
therefor. Any applicable sales tax will be paid to the manufacturer,
manufacturer's agent, supplier, dealer or appropriate taxing agency by Lessor.
Where applicable, Lessee acknowledges that such tax may have been included in
calculating lease payments.
8. CARE, USE, MAINTENANCE AND REPAIR, AND INSPECTION BY LESSOR.
(a) Lessee shall, at Lessee's sole expense, at all times during the term of
each Equipment Schedule and until return of the Equipment to Lessor, (i)
maintain the Equipment in good operating order, repair, condition, appearance
and protect the Equipment from deterioration, and provide all accessories,
upgrades, repairs, replacement parts and service required therefor; (ii) enter
into and maintain a maintenance contract with the manufacturer of the Equipment
or, with the prior written consent of Lessor, with such other party as shall be
acceptable to Lessor, and shall provide Lessor with a copy of such contract and
all supplements thereto; (iii) use the Equipment in a careful, proper and lawful
manner in accordance with standards, specifications or instructions issued by
the manufacturer, and provide necessary site preparation, supplies, energy and
personnel; (iv) comply with all the laws, ordinances, rules, regulations and
other requirements relating to the installation, possession, use or maintenance
of the Equipment, including the requirements of any applicable insurance policy
or warranty; (v) obtain and comply with the requirements of all permits,
licenses and agreements relating to the installation, possession, use or
maintenance of the Equipment; and (vi) purchase, or permit Lessor to purchase,
any and all additions, improvements, upgrades (as and when any upgrades may
become available) and maintenance contracts associated with such upgrades, or
accessions to any of the Equipment which Lessor may permit or require Lessee to
acquire or which Lessor may, at its option, elect to acquire, with the cost of
any and all such additions, improvements, upgrades, maintenance contracts or
accessions to be treated as additional original equipment cost with respect to
the applicable items of Equipment and which additional cost shall be amortized
as additional rental payments by increasing the monthly rental amount payable
under Section 3 hereof by the amount corresponding to the amount which would be
payable as monthly rent hereunder as if such additional cost constituted a
portion of the original equipment cost of the applicable Equipment for Equipment
to be leased under the applicable Equipment Schedule for a term equal to the
remaining lease term of the applicable Equipment Schedule.
(b) Unless Lessor otherwise consents in writing, Lessee shall not: (i) part
with possession of or control over the Equipment; (ii) permit any party other
than Lessee and Lessee's qualified employees to operate the Equipment; (iii)
permit any nonqualified party to repair or service the Equipment; (iv) permit
the Equipment to be used for personal, family, household or agricultural
purposes; or (v) make any additions, alterations orimprovements to the Equipment
other than as required or permitted by the terms of this Master Lease. All
repairs, replacement parts, alterations, additions, improvements, upgrades and
accessions to any of the Equipment, whether or not any of the foregoing was
authorized, required, financed or purchased by Lessor, shall become the property
of Lessor.
(c) Upon the request of Lessor, Lessee shall at reasonable times during
business hours make the Equipment available to Lessor for inspection at the
place where it is normally located and shall make Lessee's log and maintenance
records pertaining to the Equipment available to Lessor for inspection.
9. LESSEE'S REPRESENTATIONS AND WARRANTIES.
Lessee hereby represents, warrants and agrees that, with respect to this
Master Lease and each Equipment Schedule:
(a) The execution, delivery and performance thereof by Lessee have been
duly authorized by all necessary corporate or partnership action.
(b) Each individual executing such was duly authorized to do so.
(c) This Master Lease and each Equipment Schedule constitute legal, valid
and binding agreements of Lessee enforceable in accordance with their terms.
(d) The Equipment is personal property and when subjected to use by Lessee
will not become fixtures under applicable law.
(e) During the lease term, Lessee shall deliver and shall cause all
obligors, guarantors and parties whose contracts with Lessee are used as
additional collateral under this Master Lease to deliver to Lessor audited or
reviewed financial statements for each of such party's most recent fiscal years
ended, tax returns and unaudited financial statements certified by such party
for the most recent quarter ended, consisting of at least a balance sheet,
income statements and statements of changes in financial position, and any other
information requested by Lessor from time to time, prepared in accordance with
generally accepted accounting principles.
(f) Lessee shall provide any and all monthly operating statistics or data
and shall use its best efforts to obtain from any party benefitting from the use
of the Equipment through services provided by the Lessee any and all operating
statistics, data, or information requested by Lessor from time to time.
(g) The execution, delivery and performance of this Master Lease and each
Equipment Schedule will not violate any law or regulation applicable to Lessee,
or cause a default under any agreement to which Lessee is a party or is subject.
10. DELIVERY AND RETURN OF EQUIPMENT.
Lessee hereby assumes the full expense of transportation and in-transit
insurance to Lessee's premises and installation thereat of the Equipment. Upon
termination (by expiration or otherwise) of each Equipment Schedule, Lessee
shall, pursuant to Lessor's instructions and at Lessee's expense (including
without limitation expenses of transportation and in-transit insurance), return
the Equipment to Lessor in the same operating order, repair, condition, and
appearance as when received, less normal depreciation and wear and tear. Lessee
shall have the Equipment deinstalled and removed from its location only by the
manufacturer of the Equipment or by such other party as shall have been
previously approved in writing by Lessor. The manufacturer or such other
preapproved party shall certify in writing to Lessor at the time of such
deinstallation that the Equipment includes all appropriate or required upgrades
and that it is in good working order. Lessee shall transport the Equipment by
means and return the Equipment to Lessor at such address all as shall be
directed by Lessor. Lessee shall bear all costs of deinstallation, removal and
return of the Equipment, including all costs as may be incurred by Lessee or
Lessor to acquire the upgrades required under the terms of this Master Lease, to
service and repair the Equipment and to otherwise put the Equipment in the
condition required under this Section 10.
11. INSURANCE.
During the term hereof and until return of the Equipment to Lessor, Lessee
shall, at Lessee's expense: (i) maintain insurance covering damage, destruction,
loss or theft of the Equipment from any cause whatsoever for not less than an
amount equal to the greater of the replacement value or the amount calculated
pursuant to clause (vi) of Section 15(b) hereof; (ii) maintain public liability
(including liability with respect to the use of the Equipment), professional
liability insurance (covering Lessee and its employees and any and all other
parties as may have possession of or as may operate any of the Equipment), and
property damage insurance in an amount satisfactory to Lessor; (iii) maintain,
if applicable as determined in the sole discretion of Lessor, business
interruption and automobile insurance (where the Equipment constitutes mobile
magnetic resonance imaging equipment or other mobile equipment); and (iv)
promptly notify Lessor of any actual or alleged damage, destruction, liability,
loss or theft relating to the Equipment or the use or operation thereof. All
insurance shall be in form, substance and amount satisfactory to Lessor and/or
Lessor's Transferee, shall contain a lender's form endorsement with waiver of
breach of warranty clause (form 438-BFU or its equivalent), and shall be issued
by insurers acceptable to Lessor, and shall name Lessor or any Lessor Transferee
as loss payee with respect to all policies of property insurance and as an
additional insured with respect to all other policies of insurance. Lessee
shall obtain endorsements to all such policies of insurance which shall provide
that any amendment or cancellation of any such policy shall not be effective
unless Lessor shall have been given thirty (30) days' prior written notice of
any such intended amendment or cancellation. Self-insurance is unacceptable
unless Lessor shall so provide upon its prior written consent. Lessee shall
deliver to Lessor originals or certified copies of such policies, certificates
of coverage thereunder and loss payee, additional insured, and notice of
amendment or cancellation endorsements. In addition, as collateral security for
Lessee's obligations hereunder and under the Equipment Schedules, Lessee hereby
assigns, transfers and conveys to Lessor all of Lessee's right, title and
interest in and to all of the foregoing policies of insurance and the insurance
coverage provided thereunder and Lessee shall deliver and cause each insurer
under each of such policies of insurance to deliver to Lessor assignments of
such policies and coverage which assignments shall be in form and substance
satisfactory to Lessor.
12. RISK OF LOSS.
During the term of each Equipment Schedule, and until return of the
Equipment to Lessor, Lessee shall bear all risk of damage, destruction, loss or
theft of the Equipment from any cause whatsoever. No damage, destruction, loss
or theft of the Equipment or delay in payment or deficiency or absence of
insurance proceeds, and no unavailability or delay in obtaining supplies,
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parts or service for the Equipment or failure of the Equipment to function for
any cause whatsoever, and no change in laws or regulations governing or
restricting the use of the Equipment (including the future enactment of any laws
or regulations prohibiting the use of the Equipment), shall release Lessee of
the obligation to pay rent or any other obligation hereunder. Upon the
occurrence of any reparable damage, Lessee shall promptly make such repairs and
restore the Equipment to good repair, condition and working order. Upon the
occurrence of any irreparable damage, destruction or loss of the Equipment,
Lessee shall, at Lessor's option: (i) replace the Equipment with like equipment
in good repair, conditionand working order with documentation creating clear
title thereto in Lessor; or (ii) pay Lessor the amounts required under Section
15 of this Master Lease to the same extent as though a default had occurred
hereunder. Subject to such conditions as Lessor may require, any insurance
proceeds paid to Lessor as a result of any damage, destruction, loss or theft of
the Equipment shall be applied to Lessee's obligations hereunder, provided that
if the Equipment is not repaired or replaced as provided above, such insurance
proceeds shall be applied first to Lessor's expected residual interest in the
Equipment. Lessor shall have no obligation to collect or pursue any claim
arising from any damage, destruction, loss or theft of the Equipment, including
any claim under any applicable insurance policy.
13. INDEMNITY.
Lessee shall, at Lessee's sole cost and expense, indemnify, hold harmless
and defend Lessor and its agents, employees, officers and directors, and its
successors in interest, from and against any and all claims, actions, suits,
proceedings, costs, expenses, damages and liabilities, including attorney's
fees, arising out of, connected with, resulting from or relating to the
Equipment or the condition, delivery, leasing, location, maintenance,
manufacture, operation, ownership, possession, purchase, repair, repossession,
return, sale, selection, service or use thereof, including without limitation:
(i) claims involving latent or other defects (whether or not discoverable by
Lessee or Lessor), (ii) claims for trademark, patent or copyright infringement,
and (iii) claims for injury or death to persons or damage to property or loss of
business or anticipatory profits, whether resulting from acts or omissions of
Lessee or Lessor or otherwise. Lessee shall give Lessor prompt written notice of
any claim or liability covered by this section. The indemnities under this
section shall survive the satisfaction of all other obligations of Lessee herein
and the termination of this Master Lease or any Equipment Schedule.
14. SECURITY DEPOSIT.
For the purpose of securing all of Lessee's obligations under this Master
Lease and each Equipment Schedule, Lessee grants Lessor a security interest in
any security deposit described in any Equipment Schedule. Any such security
deposit may be commingled with other funds and shall be held without interest to
Lessee. Upon default under this Master Lease or any Equipment Schedule, Lessor
may, but shall not be obligated to, apply any such security deposit to any
obligation of Lessee under this Master Lease or any Equipment Schedule, in which
event Lessee shall promptly restore the amount thereof on demand. Upon
compliance by Lessee with all terms of this Master Lease and each Equipment
Schedule Lessor shall, at the end of the term of each Equipment Schedule and the
return of the Equipment to Lessor as provided herein, refund to Lessee the
balance of any security deposit pertaining to such Equipment Schedule.
15. DEFAULT AND REMEDIES.
(a) The occurrences of any one or more of the following events ("Events of
Default") shall constitute a default under this Master Lease, any Equipment
Schedule, or any other agreement between Lessor and Lessee: (i) Lessee's failure
to pay rent or any other amount required under an Equipment Schedule when due;
(ii) Lessee's failure to perform any other obligation or observe any other term
of this Master Lease or any Equipment Schedule; (iii) any representation or
warranty made to Lessor by Lessee in this Master Lease or in any other agreement
between Lessor and Lessee or by any guarantor proves to have been false in any
material respect when made; (iv) Lessee or any guarantor suffers a material
adverse change in its financial condition; (v) an event of default shall have
occurred under and be continuing under any other financing arrangement by Lessee
or any guarantor; (vi) levy, seizure or attachment of any Equipment; (vii)
commencement of proceedings under any bankruptcy, arrangement, reorganization or
insolvency law by or against, or appointment of a receiver or liquidator for any
property of, Lessee or any guarantor; (viii) any failure by Lessee, or any
direct or indirect subsidiary or affiliate of Lessee, or any direct or indirect
owner or party controlling, directly or indirectly, Lessee or any direct or
indirect subsidiary or affiliate of Lessee, to perform any obligation under any
agreement between Lessee or any such subsidiary, affiliate, owner or controlling
party, on the one hand, and Lessor, any Lessor Transferee, or any direct or
indirect subsidiary or affiliate of Lessor or any Lessor Transferee, on the
other hand, which agreement shall include, without limitation, any master lease,
any equipment schedule, any promissory note or other debt obligation of Lessee
to Lessor; or (ix) assignment for the benefit of creditors or bulk transfer of
assets by, or insolvency, cessation of business, termination of existence, death
or dissolution of, Lessee or any guarantor. As used in this Master Lease, the
term "guarantor" shall include any guarantor of this Master Lease or any
Equipment Schedule, and any owner of any property given as security for Lessee's
obligations hereunder or thereunder.
(b) Upon the occurrence of any one or more Events of Default, Lessor may
exercise any one or more of the following remedies without demand or notice to
Lessee and without terminating or otherwise affecting Lessee's obligations
hereunder: (i) declare the entire balance of rent for the remaining term of this
Lease to be immediately due and payable; (ii) require Lessee to assemble the
Equipment and make it available to Lessor at a place designated by Lessor; (iii)
take and hold possession of the Equipment and render the Equipment unusable, and
for this purpose enter and remove the Equipment from any premises where the same
may be located without liability to Lessor for any damage caused thereby; (iv)
sell or lease the Equipment or any part thereof at public or private sale for
cash, on credit or otherwise, with or without representations or warranties, and
upon such terms as shall be acceptable to Lessor; (v) use and occupy the
premises of Lessee for the purpose of taking, holding, reconditioning,
displaying, selling or leasing the Equipment, without cost to Lessor or
liability to Lessor; (vi) demand, sue for and recover from Lessee the sum of (A)
all rent and other amounts due hereunder, plus, as liquidated damages for loss
of a bargain and not as a penalty, and in lieu of any further payments of rent
for the Equipment, an amount equal to Lessor's Return for such Equipment
("Lessor's Return" shall mean, if the applicable Equipment Schedule provides for
Stipulated Loss Values, the applicable Stipulated Loss Value, and, otherwise,
the present value, discounted at five percent (5%), of all unpaid rent payments
to become due during the remaining lease term, (B) all late charges provided in
this Master Lease or any Equipment Schedule; (C) all expenses, including
attorney's fees, of Lessor or any Lessor Transferee incurred in enforcing any of
their rights under this Master Lease or any Equipment Schedule, including the
taking, holding, reconditioning, preparing for sale or lease, and selling or
leasing of the Equipment; (D) all other expenses, including attorney's fees,
incurred by Lessor or any Lessor Transferee incurred in enforcing any of their
rights under this Master Lease or any Equipment Schedule and including any and
all damages to real property arising from the removal of any of the Equipment,
and in the event any party holding an interest in any real property upon which
any of the Equipment is located shall demand a security deposit in connection
with any such removal, Lessee shall deliver and provide such deposit; (E) any
actual or anticipated loss in tax benefits to Lessor (as determined by Lessor)
resulting from the default or Lessor's repossession or disposition of the
Equipment; and (F) any other amounts payable by Lessee to Lessor underthis
Master Lease or any Equipment Schedule or damages suffered by Lessor not
otherwise compensated herein including, without limitation, damages arising from
Lessee's failure to maintain the Equipment as provided herein. Any sale or
lease of the Equipment by Lessor after default shall be free and clear of any
interest of Lessee.
(c) The rights and remedies of Lessor hereunder are in addition to all
other rights and remedies provided by law. All of Lessor's rights and remedies
are cumulative and not exclusive, and may be exercised separately or
concurrently and in such order and manner as Lessor may determine. The exercise
of any one remedy shall not be deemed to be an election of such remedy or to
preclude the exercise of any other remedy. No default by Lessee or action by
Lessor shall result in a termination of this Master Lease or any Equipment
Schedule unless Lessor so notifies Lessee in writing, and no termination of this
Master Lease or any Equipment Schedule shall release or impair any of Lessee's
obligations hereunder or thereunder.
16. PURCHASE OPTION.
Notwithstanding anything to the contrary in the Master Lease and Equipment
Schedule, Lessor and Lessee hereby agree, provided no default has occurred and
is continuing under the Master Lease, at the end of the Equipment Schedule term,
Lessor will sell all, but not part of, the Equipment listed on the Equipment
Schedule AS IS, WHERE IS and transfer title to Lessee for the considersation of
One Hundred-One dollars (101.00) and will execute such documentation as
necessary to effect such transfer of title to the extent title was conveyed to
the Lessor. Any instrument(s) of transfer shall contain the following: THE
EQUIPMENT TRANSFERRED HEREBY IS TRANSFERRED "AS IS" AND "WHERE IS". THE SELLER
MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER
IN REGARD TO SUCH EQUIPMENT. THE SELLER HEREBY DISCLAIMS ANY AND ALL
REPRESENTATIONS AND WARRANTIES IN REGARD TO SUCH EQUIPMENT, INCLUDING, WITHOUT
LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR USE OR FITNESS FOR ANY
PARTICULAR USE, OR OF QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY OR
PERFORMANCE.
17. COSTS AND EXPENSES.
Lessee shall pay to Lessor, on demand, all costs and expenses incurred by
Lessor in connection with the execution, delivery, administration and
enforcement of this Master Lease, any Equipment Schedule, the transactions
contemplated hereby and thereby, and any costs and expenses related hereto or
thereto, including without limitation filing fees, registration fees, attorney's
fees and other out-of-pocket expenses.
18. PERFORMANCE BY LESSOR.
If Lessee shall fail to perform any obligation under this Master Lease or
any Equipment Schedule, Lessor shall have the right, but shall not be obligated,
with or without prior notice to Lessee, to perform the same (or, in the case of
Lessee's failure to maintain insurance, Lessor may obtain insurance protecting
the interest of Lessor only), and the costs thereof, together with interest at
the lesser of eighteen percent (18%) per year or the highest lawful rate, shall
be immediately payable by Lessee as additional rent for the Equipment.
19. FURTHER ASSURANCES.
Lessee shall, at its sole cost and expense, execute and deliver such
financial statements, certificates of title and other related documents and take
such action as Lessor or any Lessor Transferee may from time to time request for
the purpose of continuing and assuring the rights intended to be created by this
Lease or any Equipment Schedule, including without limitation, any
redocumentation of errors and omissions of this Master Lease and any Equipment
Schedule required by any Lessor Transferee or other successor to any interest of
Lessor.
20. NOTICES.
All notices, demands, requests and other communications under this Master
Lease and any Equipment Schedule: (a) shall be in writing; (b) shall be
delivered personally or by first class mail addressed to the party at its
respective address set forth herein or such other address as such party may
designate from time to time in writing; and (c) shall be effective when
personally delivered or deposited in the United States mail, duly addressed with
postage prepaid.
21. LAW GOVERNING - JURISDICTION, WAIVER OF JURY TRIAL.
LESSEE WARRANTS, REPRESENTS AND AGREES THAT: (a) THIS MASTER LEASE AND ANY
EQUIPMENT SCHEDULE HAVE BEEN MADE AND ENTERED INTO AS PENNSYLVANIA TRANSACTIONS;
(b) THIS MASTER LEASE AND ANY EQUIPMENT SCHEDULE SHALL BE CONSTRUED,
INTERPRETED, GOVERNED AND ENFORCED UNDER AND IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS) OF PENNSYLVANIA; (c)
JURISDICTION TO HEAR AND DECIDE ANY CASE OR CONTROVERSY ARISING OUT OF, OR TO
ENFORCE OR CONSTRUE, THIS MASTER LEASE OR ANY EQUIPMENT SCHEDULE, SHALL
EXCLUSIVELY RESIDE AND VEST IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, OR IF THAT COURT DOES NOT HAVE JURISDICTION, THEN IN
THE COURT OF COMMON PLEAS OF THE COMMONWEALTH OF PENNSYLVANIA FOR THE COUNTY OF
BUCKS; AND (d) THIS SECTION 21 MAY BE ENFORCED BY INJUNCTION, SPECIFIC
PERFORMANCE OR ANY OTHER EXTRAORDINARY OR EQUITABLE REMEDY. LESSOR AND LESSEE
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS LEASE
OR THE CONDUCT OF THE RELATIONSHIP BETWEEN LESSOR AND LESSEE.
23. MISCELLANEOUS.
This Master Lease, any Equipment Schedule, and any other documents executed
herewith or therewith constitute the entire agreement with respect to the
subject matter hereof. No oral agreement, representation or warranty shall be
binding. Any provision of this Master Lease which is invalid or unenforceable
under applicable law shall not affect the remaining provisions hereof, and to
this end the provisions hereof are declared to be severable. Section headings
are for convenience of reference only, and shall not affect the interpretation
hereof. If more than one Lessee is named herein, the liability of each shall be
joint and several. Where appropriate and the
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context permits, the singular shall include the plural and vice versa. Upon
assignment of this Master Lease or any Equipment Schedule or Equipment (or any
part hereof or thereof or any interest herein or therein) by Lessor, the term
"Lessor" shall include the Assignee. Lessee waives notice and acceptance of this
Master Lease and any Equipment Schedule by Lessor. Time is of the essence of
this Master Lease and any Equipment Schedule.
24. WAIVER AND AMENDMENT.
No waiver or amendment of this Master Lease or any Equipment Schedule, or
any provision hereof or thereof, shall be effective unless in writing signed by
Lessor. No delay or failure to exercise any right, power or remedy accruing to
Lessor upon any default of Lessee shall impair any such right, power or remedy,
nor shall it be construed as a waiver of any such default, or an acquiescence
therein, or in any similar default thereafteroccurring, nor shall any waiver of
any single default be deemed a waiver of any other default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of Lessor must be in writing and shall be effective only
to the extent specifically set forth therein.
LESSEE INITIAL
-----------------
THIS MASTER LEASE, AND ANY EQUIPMENT SCHEDULE, ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH HEREIN
LESSEE ACKNOWLEDGES RECEIPT OF A COPY OF THIS MASTER LEASE
THIS MASTER LEASE, AND ANY EQUIPMENT SCHEDULE, SHALL BECOME EFFECTIVE ONLY UPON
WRITTEN ACCEPTANCE BY LESSOR
LESSOR: DVI FINANCIAL SERVICES INC. LESSEE: SMT Health Services Inc.
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
No security interest in an Equipment Schedule may be created through the
transfer or possession of any counterpart of the orginal Equipment Schedule
other than that Equipment Schedule marked "Secured Party's Original" and a
certified copy of the Master Agreement.
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EQUIPMENT SCHEDULE NO. 001
-----
TO
MASTER EQUIPMENT LEASE NO. 0001357
---------
("Master Lease")
LESSOR: DVI Financial Services Inc.
LESSEE: SMT Health Services Inc.
DATE OF MASTER LEASE: August 28, 1996
DATE OF EQUIPMENT SCHEDULE: August 28, 1996
LEASE TERM: 60
COMMENCEMENT DATE: September 20, 1996
RENT COMMENCEMENT DATE: October 1, 1996
MONTHLY RENT: $31,837.53
In the event there is an increase in the thirty (30) month Treasury
Note rate from the rate quoted in the proposal/commitment letter to the rate in
effect on the date the Schedule funds, then Lessor reserves the right to adjust
the Monthly Rent set forth in the Schedule by increasing the Monthly Rent by
that same rate of increase.
SALES/USE TAX: To be added to the monthly rental
ADVANCED PAYMENT: First Only
EQUIPMENT:ONE (1) GE HORIZON HISPEED 1.0T MOBILE MRI UNIT; ONE (1) 48' TRAILER
S/N 15251 MODEL TL4853 VIN 1JJV482E5TL291834, TOGETHER WITH ALL PARTS,
ACCESSORIES, ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, AND SUBSTITUTIONS
THERETO AND THEREFOR.
EQUIPMENT LOCATIONS: East Cooper Community Hospital
1200 Johnie Dodds Boulevard
Mount Pleasant, SC 29464
Clarendon Memorial Hospital
510 South Mill Street
Manning, SC 29102
Colleton Regional Hospital
501 Robertson Boulevard
Walterboro, SC 29488
MASTER LEASE:
This Equipment Schedule is issued pursuant to the Master Lease. All of the
terms, conditions representations and warranties of the Master Lease are hereby
incorporated by reference herein and made a part hereof as if they were
expressly set forth in this Equipment Schedule and this Equipment Schedule
constitutes a separate lease with respect to the Equipment described herein.
The parties hereby reaffirm all of the terms, conditions, representations and
warranties of the Master Lease except as modified herein, by their execution and
delivery of this Equipment Schedule.
If this Equipment Schedule contains a Stipulated Loss Value Rider, attached
hereto as Rider "A" and incorporated herein by this reference, then the
Stipulated Loss Value of each item of Equipment (to be determined as of the
rental payment date which has most recently occurred as of the date of
determination) shall be the percentage of the original purchase price of the
item or the dollar amount, as applicable, set forth in the Rider opposite the
applicable rental payment. If a
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percentage of the purchase price of the Equipment is to be used to calculate the
Stipulated Loss Value, the original purchase price of the Equipment subject to
this Schedule, including all applicable taxes, freight, transportation,
assembly, installation and other charges, is
$1,514,989.00.
------------
DVI Financial Services Inc. SMT Health Services Inc.
(Lessor) (Lessee)
By: By:
-------------------------------- --------------------------------
Title: Title:
----------------------------- -----------------------------
- ----------------------------------- -----------------------------------
(Print Name) (Print Name)
DVI.sch
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