HomeMy WebLinkAbout12-2078
WONG FLEMING, P.C.
Ian S. Clement
PA Bar ID: 205539 _J
1515 Market Street, Suite 820 . ;.:
Philadelphia, PA 19102 C -==
Tel: (215) 546-2776
Attorneys for Plaintiff Colonial Pacific Leasing Corporation
Colonial Pacific Leasing Corporation
1010 Thomas Edison Blvd., SW.,
Cedar Rapids, IA 52404
Plaintiff,
V.
Harry I. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL DIVISION eiviijem
Case No. kR- o2b?a Civil Action
VERIFIED COMPLAINT
Plaintiff Colonial Pacific Leasing Corporation ("Colonial") by and through its
undersigned counsel, hereby submits this Complaint against Harry I. Morris, Jr. ("Morris") and
in support thereof, avers as follows:
PARTIES
1. Plaintiff Colonial Pacific Leasing Corporation is a company organized and
existing pursuant to the laws of the State of Delaware with its principal place of business at 1010
Thomas Edison Blvd SW, Cedar Rapids, IA 52404.
a. On August 4, 2008, CitiCapital Commercial Corporation merged with
in
CitiCorp Leasing, Inc., transferring the Security Agreements described in
s
this Complaint, infra, to CitiCorp Leasing, Inc. 4/o-3.1-6 pp Arrt/
Of as
P, #( gags
1
,n
b. On August 4, 2008, a Certificate of Amendment of Certificate
Incorporation was executed wherein it was resolved that CitiCorp Leasing,
Inc. would be named GE Capital Commercial, Inc.
C. On December 31, 2009, GE Capital Commercial Inc. assigned the Loan
and Security Agreements described in this Complaint, infra, to Colonial
Pacific Leasing Corporation.
2. Morris is a Pennsylvania resident with an address of 424 Railroad Avenue,
Shiremanstown, PA 17011 and is the President of Hampton Construction Management, Limited,
("Hampton") a Pennsylvania corporation with a place of business located at 424 Railroad
Avenue, Shiremanstown, PA 17011 and 3607 Hartzdale Drive, Camp Hill, PA 17055.
JURISDICTION AND VENUE
3. The Court has jurisdiction over original actions for breach of contract pursuant to
42 Pa. C.S. § 931.
4. The Court of Common Pleas, Cumberland County is the proper venue pursuant to
Pa.R.C.P. No. 2179(a) (1).
STATEMENT OF FACTS
Security Agreement No. 9634428001
5. On June 30, 2005, Hampton entered into a Security Agreement (hereinafter
"Agreement I") with Colonial, wherein Hampton agreed to make payments to Colonial for the
lease of the following equipment ("hereinafter First Set of Equipment"):
a. (1) Case Hydraulic Excavator CX330
S/N: DAC331266
A true and correct copy of Agreement 1 is attached hereto as Exhibit A.
2
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6. Pursuant to Agreement 1, Hampton agreed to lease the First Set of Equipment by
making monthly installment payments in the amount of $4,304.75 for a term of 60 months,
beginning on or about August 1, 2005.
7. Upon information and belief, Hampton used the First Set of Equipment at its
place of business, located at 424 Railroad Avenue, Shiremanstown, PA 17011.
8. Pursuant to paragraph 5.1 of Agreement 1, entitled "Events of Default," Hampton
agreed that a default shall occur if "(a) Buyer fails to pay when due any amount owed by it to
Seller... (h) a petition in bankruptcy ... or similar relief is filed by or against Buyer." See
Exhibit A.
9. Pursuant to paragraph 5.2 of Agreement 1, entitled "Remedies" the parties agreed
that, "Upon the occurrence of an event of default, and at any time thereafter as long as the default
continues, Seller may, at its option, with or without notice to Buyer (i) declare this agreement to
be in default, (ii) declare the indebtedness hereunder to be immediately due and payable..." See
Exhibit A.
10. Pursuant to paragraph 5.2 of Agreement 1, upon Hampton's default, Hampton
agreed to pay "(a) the reasonable fees of any attorneys retained by Seller, and (b) all other legal
expenses incurred by Seller." See Exhibit A.
11. Further, and pursuant to Agreement 1, Hampton agreed to a "Delinquency Charge
of 1 '/2% per month for the period of delinquency... otherwise at the highest rate Buyer can
legally obligate itself to pay and/or Seller can legally collect." See Exhibit A ¶ 5.3.
12. On or about October 1, 2009, Hampton defaulted under the terms of Agreement 1
by failing to make its minimum monthly payment.
3
I 111
13. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 1 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
14. Colonial subsequently repossessed the First Set of Equipment.
15. On or about December 14, 2010 Colonial sold the First Set of Equipment for Net
Proceeds of $38,109.31, which was credited to the account.
16. The post-sale deficiency balance was $14,909.51
17. Colonial has applied the surplus from sale of the equipment referenced in
Agreement 6, below, to this account, leaving a deficiency balance of $0.00.
18. However, Colonial sustained significant damages and is entitled to payment
from Hampton for interest, reasonable attorneys' fees, and costs of collection.
Lift Lease Agreement No. 9634430001
19. On November 21, 2005, Hampton entered into a Lift Lease Agreement
(hereinafter "Agreement 2") with Colonial, wherein Hampton agreed to make payments to
Colonial for the lease of the following equipment ("hereinafter Second Set of Equipment"):
a. (1) Caterpillar Track Loader 963C
S/N: BBD01154
A true and correct copy of Agreement 2 is attached hereto as Exhibit B.
20. Pursuant to Agreement 2, Hampton agreed to lease the Second Set of Equipment
by making monthly installment payments in the amount of $2,969.05 for a term of 66 months,
beginning on or about January 1, 2006.
21. Upon information and belief, Hampton used the Second Set of Equipment at its
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
4
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22. Pursuant to paragraph 17 of Agreement 2, entitled "Default and Remedies,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount owed
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit B.
23. Pursuant to paragraph 17 of Agreement 2, the parties agreed that, "Upon the
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (a)
declare all sums due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee to
Lessor ...to be immediately due and payable..." See Exhibit B.
24. Pursuant to paragraph 17 of Agreement 2, upon Hampton's default, Hampton
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the like,
including reasonable attorney's fees and other legal expenses..." See Exhibit B.
25. Further, and pursuant to Agreement 2, Hampton agreed to "a Delinquency Charge
calculated thereon at the rate of 1 ''/z% per month for the period of delinquency..." See Exhibit B
¶ 4.
26. On or about November 1, 2009 Hampton defaulted under the terms of Agreement
2 by failing to make its minimum monthly payment.
27. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 2 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
28. Colonial subsequently repossessed the Second Set of Equipment.
29. On or about December 14, 2010, Colonial sold the Second Set of Equipment for
Net Proceeds of $44,068.63, which was credited to the account.
5
30. Colonial sustained significant damages and is entitled to payment from Hampton
for the deficiency balance of $81,524.06, as well as interest, reasonable attorneys' fees and costs
of collection.
Lift Lease Agreement No. 9634431001
31. On November 21, 2005, Hampton entered into a Lift Lease Agreement
(hereinafter "Agreement 3") with Colonial, wherein Hampton agreed to make payments to
Colonial for the lease of the following equipment ("hereinafter Third Set of Equipment"):
a. (1) Caterpillar Hydraulic Excavator 318CL
S/N: GPA00300
A true and correct copy of Agreement 3 is attached hereto as Exhibit C.
32. Pursuant to Agreement 3, Hampton agreed to lease the Third Set of Equipment by
making monthly installment payments in the amount of $1,927.02 for a term of 66 months,
beginning on or about January 1, 2006.
33. Upon information and belief, Hampton used the Third Set of Equipment at its
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
34. Pursuant to paragraph 17 of Agreement 3, entitled "Default and Remedies,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount owed
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit C.
35. Pursuant to paragraph 17 of Agreement 3, the parties agreed that, "Upon the
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (a)
declare all sums due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee to
Lessor ...to be immediately due and payable..." See Exhibit C.
6
36. Pursuant to paragraph 17 of Agreement 3, upon Hampton's default, Hampton
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the like,
including reasonable attorney's fees and other legal expenses..." See Exhibit C.
37. Further, and pursuant to Agreement 3, Hampton agreed to "a Delinquency Charge
calculated thereon at the rate of 1 '/2% per month for the period of delinquency..." See Exhibit C
¶ 4.
38. On or about October 1, 2009, Hampton defaulted under the terms of Agreement 3
by failing to make its minimum monthly payment.
39. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 3 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
40. Colonial subsequently repossessed the Third Set of Equipment.
41. On or about December 14, 2010, Colonial sold the Third Set of Equipment for
Net Proceeds of $47,946.63, which was credited to the account.
42. Colonial sustained significant damages and is entitled to payment from Hampton
in the amount of $37,561.10, as well as interest, reasonable attorneys' fees and costs of
collection.
Lift Lease Agreement No. 9634433001
43. On November 21, 2005, Hampton entered into a Lift Lease Agreement
(hereinafter "Agreement 4") with Colonial, wherein Hampton agreed to make payments to
Colonial for the lease of the following equipment ("hereinafter Fourth Set of Equipment"):
a. (1) Caterpillar Track Loader 953C
D/N: BBX00946
A true and correct copy of Agreement 4 is attached hereto as Exhibit D.
7
44. Pursuant to Agreement 4, Hampton agreed to lease the Fourth. Set of Equipment
by making monthly installment payments in the amount of $2,428.41 for a term of 66 months,
beginning on or about January 1, 2006.
45. Upon information and belief, Hampton used the Fourth Set of Equipment at its
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
46. Pursuant to paragraph 17 of Agreement 4, entitled "Default and Remedies,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount owed
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit D.
47. Pursuant to paragraph 17 of Agreement 4, the parties agreed that, "Upon the
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (a)
declare all sums due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee to
Lessor ...to be immediately due and payable..." See Exhibit D.
48. Pursuant to paragraph 17 of Agreement 4, upon Hampton's default, Hampton
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the like,
including reasonable attorney's fees and other legal expenses..." See Exhibit D.
49. Further, and pursuant to Agreement 4, Hampton agreed to "a Delinquency Charge
calculated thereon at the rate of 1 '/2% per month for the period of delinquency..." See Exhibit D
¶ 4.
50. On or about November 1, 2009, Hampton defaulted under the terms of Agreement
4 by failing to make its minimum monthly payment.
8
51. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 4 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
52. Colonial subsequently repossessed the Fourth Set of Equipment.
53. On or about December 14, 2010, Colonial sold the Fourth Set of Equipment for
Net Proceeds of $43,241.13, which was credited to the account.
54. Colonial sustained significant damages and is entitled to payment from Hampton
in the amount of $61,829.44, as well as interest, reasonable attorneys' fees and costs of
collection.
Lift Lease Agreement No. 9634432001
55. On November 21, 2005, Hampton entered into a Lift Lease Agreement
(hereinafter "Agreement 5") with Colonial, wherein Hampton agreed to make payments to
Colonial for the lease of the following equipment ("hereinafter Fifth Set of Equipment"):
a. (1) Caterpillar Hydraulic Excavator 315CL
S/N: CJC01117
A true and correct copy of Agreement 5 is attached hereto as Exhibit E.
56. Pursuant to Agreement 5, Hampton agreed to lease the Fifth Set of Equipment by
making monthly installment payments in the amount of $1,816.22 for a term of 66 months,
beginning on or about January 1, 2006.
57. Upon information and belief, Hampton used the Fifth Set of Equipment at its
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
58. Pursuant to paragraph 17 of Agreement 5, entitled "Default and Remedies,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount owed
9
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit E.
59. Pursuant to paragraph 17 of Agreement 5, the parties agreed that, "Upon the
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (a)
declare all sums due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee to
Lessor ...to be immediately due and payable..." See Exhibit E.
60. Pursuant to paragraph 17 of Agreement 5 upon Hampton's default, Hampton
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the like,
including reasonable attorney's fees and other legal expenses..." See Exhibit E.
61. Further, and pursuant to Agreement 5, Hampton agreed to "a delinquency charge
calculated thereon at the rate of 1 %z% per month for the period of delinquency..." See Exhibit E
¶4
62. On or about October 1, 2009, Hampton defaulted under the terms of Agreement 5
by failing to make its minimum monthly payment.
63. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 5 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
64. Colonial subsequently repossessed the Fifth Set of Equipment.
65. On or about December 14, 2010, Colonial sold the Fifth Set of Equipment for Net
Proceeds of $38,674.62, which was credited to the account.
66. Colonial sustained significant damages and is entitled to payment from Hampton
in the amount of $41,914.13, as well as interest, reasonable attorneys' fees and costs of
collection.
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Lease A reement No. 9634435001
67. On September 5, 2006, Hampton entered into a Lease Agreement (hereinafter
"Agreement 6") with Colonial, wherein Hampton agreed to make payments to Colonial for the
lease of the following equipment ("hereinafter Sixth Set of Equipment"):
a. (1) Peterbilt (PACCAR) Truck 335 w/ Autocrane Titan 60 14'
S/N: 2NPLHD6X97M685087
b. Mechanic Service Body
S/N: 605K/120-0606-088
A true and correct copy of Agreement 6 is attached hereto as Exhibit F.
68. Pursuant to Agreement 6, Hampton agreed to lease the Sixth Set of Equipment by
making monthly installment payments in the amount of $1,913.61 for a term of 60 months,
beginning on or about October 1, 2006. Upon information and belief, Hampton used the Seventh
Set of Equipment at its place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17011.
69. Pursuant to paragraph 16 of Agreement 6, entitled "Default and Remedies,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount owed
by it to Lender... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit. F.
70. Pursuant to paragraph 16 of Agreement 6, the parties agreed that, "Upon the
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (a)
declare all sums due and to become due hereunder and all other sums then owing by Lessee to
Lessor to be immediately due and payable; (b) declare all other debts then owing by Lessee to
Lessor ...to be immediately due and payable..." See Exhibit F.
71. Pursuant to paragraph 17 of Agreement 6, upon Hampton's default, Hampton
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the like,
including reasonable attorneys' fees and other legal expenses.. _" See Exhibit F.
11
72. Further, and pursuant to Agreement 6, Hampton agreed to a "Delinquency Charge
calculated thereon at the rate of 1 '/z% per month for the period of delinquency." See Exhibit F ¶
4.
73. On or about October 1, 2009, Hampton defaulted under the terms of Agreement 6
by failing to make its minimum monthly payment.
74. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 6 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
75. Colonial subsequently repossessed the Sixth Set of Equipment.
76. On or about December 14, 2010, Colonial sold the Sixth Set of Equipment for Net
Proceeds of $106,746.00, which was credited to this account, leaving a balance of $0.00, the
surplus being applied to Agreements 1 and 7.
77. However, Colonial sustained significant damages and is entitled to payment from
Hampton for interest, reasonable attorneys' fees, and costs of collection.
Loan and Security Agreement No. 9634437001
78. On June 25, 2008, Hampton entered into a Loan and Security Agreement
(hereinafter "Agreement 7") with Colonial, wherein Hampton agreed to make payments to
Colonial for the lease of the following equipment ("hereinafter Seventh Set of Equipment"):
a. (1) Takeuchi Skid Steer Loader TB180FR
S/N:17830578
b. GME Trench Compactor 4M820
S/N: M0803398
A true and correct copy of Agreement 7 is attached hereto as Exhibit G.
12
79. Pursuant to Agreement 7, Hampton agreed to lease the Seventh Set of Equipment
by making monthly installment payments in the amount of $1,943.05 for a term of 48 months,
beginning on or about August 1, 2008.
80. Upon information and belief, Hampton used the Seventh Set of Equipment at its
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17011.
81. Pursuant to paragraph 5.1 of Agreement 7, entitled "Events of Default," Hampton
agreed that a default shall occur if "(a) Debtor fails to pay when due any amount owed by it to
Lender... (h) a petition in bankruptcy ... or similar relief is filed by or against Debtor." See
Exhibit G.
82. Pursuant to paragraph 5.2 of Agreement 7, entitled "Remedies" the parties agreed
that, "Upon the occurrence of an event of default, and at any time thereafter as long as the default
continues, Lender may, at its option, with or without notice to Debtor (i) declare this agreement
to be in default, (ii) declare the indebtedness hereunder to be immediately due and payable..."
See Exhibit G.
83. Pursuant to paragraph 5.2 of Agreement 7, upon Hampton's default, Hampton
agreed to pay "(a) the reasonable fees of any attorneys retained by Lender, and (b) all other legal
expenses incurred by Lender." See Exhibit G.
84. Further, and pursuant to Agreement 7, Hampton agreed to a "Delinquency
Charge" of 1 '/% per month for the period of delinquency... otherwise at the highest rate Debtor
can legally obligate itself to pay and/or Lender can legally collect." See Exhibit G ¶ 5.3.
85. On or about October 1, 2009, Hampton defaulted under the terms of Agreement 7
by failing to make its minimum monthly payment.
13
86. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 7 by filing a petition for bankruptcy in the United States Bankruptcy Court for the
Middle District of Pennsylvania.
87. Colonial subsequently repossessed the Seventh Set of Equipment.
88. On or about December 14, 2010, Colonial sold the Seventh Set of Equipment for
Net Proceeds of $37,112.13, which was credited to the account.
89. Colonial has applied the surplus from sale of the equipment referenced in
Agreement 6, above, to this account, leaving a deficiency balance of $25,128.10.
90. Colonial sustained significant damages and is entitled to payment from Hampton
in the amount of $25,128.10, as well as interest, reasonable attorneys' fees and costs of
collection.
Personal Guaranties
91. On or about June 30, 2005 and October 14, 2005, Morris executed a two separate
Continuing Guaranties, specifically agreeing to be held responsible for all "present and future
liabilities, obligations and indebtedness" of Hampton to Colonial under the Agreements. A true
and correct copy of the Continuing Guaranties is attached hereto as Exhibit H.
92. Despite demand by Colonial, to date, Morris has failed and refused to pay the
balance owed to Colonial in the amount of $247,956.83 in accelerated payments, past-due
payments and late charges.
93. Colonial sustained significant damages and is entitled to payment from Morris in
the amount of $247,956.83, as well interest, reasonable attorneys' fees and costs of collection.
Chapter 11 Bankruptcy
94. On or about March 16, 2010, Hampton filed a petition for Chapter 11 bankruptcy
in the United States Bankruptcy Court for the Middle District of Pennsylvania.
14
95. On or about November 4, 2010, an Order Rejecting Executory Contract as to
some of the equipment set forth in the agreements was entered. A true and correct copy of the
Order Rejecting Executory Contract is attached hereto as Exhibit I.
96. On or about May 12, 2011, the automatic stay as to the remaining equipment set
forth in the agreements was terminated. A true and correct copy of the Order terminating
automatic stay is attached hereto as Exhibit J.
97. Colonial has subsequently repossessed and sold the equipment, applying the net
proceeds, in the amount of $355,898.45 from said sales to the deficiency owed by Hampton and
Morris.
98. The deficiency balance on all agreements is $247,956.83.
99. Colonial is entitled to payment from Morris in the amount of $247,956.83, as well
as interest, reasonable attorneys' fees and costs of collection.
COUNT I: BREACH OF CONTRACT
(Personal Guaranty)
100. Plaintiff incorporates by reference the preceding numbered Paragraphs in this
Complaint as if set forth at length herein.
101. Colonial and Guarantor, Morris entered into a valid contract where Morris agreed
to be held liable for the debts of Hampton to Colonial for the lease of the Sets of Equipment.
102. Hampton defaulted under the terms of the Agreements making Guarantor, Morris
liable for the debt.
103. Colonial sustained significant damages in the amount of $247,956.83 due to
Guarantor Morris's failure make payment.
104. Despite demand, Morris has failed to remit the sum owed to Colonial.
15
WHEREFORE, Plaintiff, Colonial Pacific Leasing Corporation demands judgment
against Defendant Harry I. Morris, Jr. in the amount of $247,956.83 as well as interest,
reasonable attorneys' fees and costs and such other relief as the Court may deem equitable and
just.
WONG FLEMING
A ProfessionaWQrpi
ff Colonial Pacific Leasing
n?-Dated: March',- 2012 By?
Ian S. Clement
16
VERIFICATION PURSUANT TO PA R.C.P 1024
I verify that the statements in this pleading are true and correct upon my personal
knowledge or upon my information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa C.S.A. Sec. 4904 relating to unswom falsifications to
authorities.
Dated: March , 2012
17
Exhibit A
SECURITY AGREEMENT
(Conditional Sale Contract)
.A11111111k
citicapitaP
The undersigned buyer, meaning all buyers }aptly and severally ("Buyer'), having been quoted both a time sale price and cash sale price, has elected
to purchase and hereby purchases from the undersigned seller ("Seller') for the time sale price shown below, under the terms and provisions of this
agreement, the following described property (herein, with all present and future attachments, accessories, replacement parts, repairs, additions, and all
proceeds thereof, referred to as "Collateral")
ONE (1) CASE HYDRAULIC EXCAVATOR CX330 SIN DAC331266
The Collateral will be used primarily for [Kbusiness or commercial use other than farming operatlons,0 farming operations When not in use, the
Collateral will be kept at 424 RAILROAD AVE SHIREMANSTOWN PA 17011 CUMBERLAND
and, when in use, will be used only in the following State(s)
PAYMENT SCHEDULE Buyer promises to pay Seller the UNPAID
TIME BALANCE (Item 7) In 60 installments as follows
(Total Ho orimtW1*-U)
For equal successive monthly mstafiments
(a) S 4,304 75 on 08101/2005
(DNA)
and a like sum on the like date of each month thereafter until fully paid,
For other than equal successive monthly installments
(b)
provided, however, that the final installment shall be in the amount of
the remaining unpaid balance
INSURANCE COVERAGE
LIABILITY INSURANCE COVERAGE FOR BODILY
INJURY AND PROPERTY DAMAGE CAUSED TO
OTHERS IS NOT INCLUDED IN THIS AGREEMENT.
PHYSICAL DAMAGE INSURANCE COVERING THE COLLATERAL IS
REQUIRED, however, Buyer has the option of furnishing the required
insurance through an agent or broker of Buyer's choice
Description of Trade-in
Gross Allowance
Less Amount Owing To
Trade-In (Net Allowance)
$ 0 00
$ 0 00
$ 000
(EMer ebo- nA n Z(b))
1 (a) Selling Price $ 219,000 00
`
(b) Sales Tax $ 12,360 00
CASH SALE PRICE (a + b) $ 231,360 DO
2 (a) Cash Down Payment $ 13,000 00
(b) Trade-in (See above) S 0 00
(c) Net Rental Credit $ 000
TOTAL DOWN PAYMENT (a + b + c) $ 13,000 00
3 UNPAID BALANCE OF CASH
SALE PRICE (1 Minus 2) $ 218,360 00
4 OTHER CHARGES
(a) Physical Damage
Insurance $ 0 00
(b) Official Fees $ 0 00
(c) Other $ 0 00
(Describe)
Check if Applicable 11 Buyer requests and authorizes Seiler to
obtain insurance coverage in the nature of "All Risk" Insurance (Fire, TOTAL OTHER CHARGES (a + b + c)
extended coverage, vandalism, theft and collision and containing
exclusions from coverage acceptable to Seller) on the Colaterai for 5 PRINCIPAL BALANCE (3+4)
months from the date of this Agreement, and for the premium
Of $ 0 00 with a $ 000. deductible per 6 (a) Finance Charge $
ocr_trrrence
DELINQUENCY CHARGE For each installment not paid when due,
Buyer agrees to pay to Seiler a delinquency charge calculated thereon
at the rate of 1 /2 % per month for the period of delinquency or, at
Seller's option, 5% of such Installment, provided that such a
delinquency charge is not prohibited by taw, otherwise at the highest
rate Buyer can legally obligate itself to pay and/or Seiler can legally
collect
(b) Administrative Fee $
TOTAL FINANCE CHARGE (a + b)
7 UNPAID TIME BALANCE (5+6)
8 TIME SALE PRICE (1+4+6)
$ coo
$ 218,360 00
39,525 00
40000
S 39,925 00
S 258,285 00
$ 271,285 00
Annual Percantage Rate.
Cast of Cnrdt (Finance Charge plus Administrative Fee) 6 81
Page 1 of 6 or Searlty Agreement dated between HAMPTON
and GROFF TRACTOR E EQUIPMENT, (Seller) which
num er DAC331266 _
ORIGINAL. FOR CITICAPITAL
621626 Rev 092004
Gomm I Non-VeMVanous States (R D )
1 11
an item
semi
1 218665 2 0 XC 20050628134315
CITICAPITAL is a service mark of Citicorp
Buy.er's Initials
A member of citigroupr
7 0 ASSIGNMENT AND GENERAL
71
Chattel Paper This Agmemard is entered hnto by Seller and Buyer on the express undaistandmg that this Agreement will be purchased by CrbCapdd Commercial Corporation or
one of its Affiliates ('CtdCapftr) each of which is an operating subsidiary of a national bank This agreement is to be assigned only to ObCapdal and is sublet to the security
interest of CitiCapdal The only copy of this Agreement that constitutes 'Chattel Paper" for all purposes of the Undorm Commercial Cade is the copy marked "ORIGINAL FOR
CITICAPITAV which is delivered to and held by CibCaptal Any assignment or transfer of this Agreement to any assignee other than CitiCapdal without the eVmss written consent
of CrtrCapdal violates the rights of CtlCapilal Any attempted assignment to any other party without the express whiten consent of CtiCapdal shall be VOID and of no tome and
etfed No assignee or secured party other then CdrCapdaf or a party receiving an assignment with the express written consent of CitiCapdal will under any circumstances acquire
any rights in, under or to this Agreement or any sums due hereunder
72
Assignment, Seller intends to assign this agreement to CrbCap6ai As an inducement to CdrCapdal to accept an assignment of this Agreement from Seiler, Buyer hereby (a)
consents to such assignment antl agrees nil to assert against Cd?Capdal claims, courrtadarnt daims in rewupment, abatement, reduction, defenses or set-oft for bmadh of
warranty or for any other reason which Buyer could assert against Seller or the manuracturer of the Equipment, except defenses which cannot be waved under the Uniform
Commercial Code (b) agrees to make and/or settle any and all claims with regard to the Collateral directly and exdusrvely against and with Seller or the manufacturer and Buyer
agrees not to assert any of such dams, against CrbCapilal, and (c) agrees eat upon assignment, the seventy interests granted herein will inure to the benefit of CntiCaptal and its
Affiliates Any suns at any lime owing to Buyer and in the possession of CitnCapdal or any such Afilale stroll secure the liabilities of Buyer to CitiCaptal and any Affiliate of
Crticapital
73 General (a) Waiver of any default shall not be a waiver of any other default (b) All of Seller's rights are cumulative and not altemative (c) No
waiver or change In this Agreement or in any related note shalt bind Seiler unless to writing signed by one of its officers (d) The term "Seller"
shall include an assignee of Seller who ?s the holder of this agreement (e) Any provision hereof contrary to, prohibited by or invalid under
applicable laws or regulations shall be inapplicable and deemed omitted herefrom, but shall not invalidate the remaining provisions hereof (f)
Buyer waives all exemptions to the extent permitted by law (g) Seller may correct patent errors herein (h) Arty captions to the provisions of this
Agreement are for convenience only and do not limit or affect the application or interpretation of this Agreement (i) AV of the teens and provisions
of this agreement shall apply to and be binding upon Buyer, its heirs, personal representatives, successors and assigns and shall inure to the
benefit of Seller, its successor and assigns (I) The acceptance by Seller of any remittance from a party other than Buyer shall in no way
constitute Seller's consent to the transfer of any of the Equipment to such party (k) If allowed by law, the "reasonable fees of attorney" retained
by Seller shall include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Seller in enforcing any
of Seller's rights hereunder or in the prosecution or defense of any litigation related to this Agreement or the transactions contemplated by this
Agreement (1) Buyer represents and warrants that there is no material pending or threatened investigation by any governmental authority,
litigation or other legal proceeding (m) So long as any of the Liabilities remains unpaid or unperformed, Buyer will provide Seller with such
financial information as Seller may reasonably request, including copies of Buyers financial statements prepared in accordance with generally
accepted accounting principles consistently applied within 30 days of the end of each of Buyer's fiscal quarters and within 90 days after the end of
each of Buyer's fiscal years Such financial statements shall be prepared on the same basis (reviewed, audited, etc ) as Buyer's financial
statements are currently prepared unless advised by the Seller otherwise, at which time the Buyer will comply with the Seller's request (n) Buyer
waives any right it may have to direct the application of any payments made by it to Seller, and Seller may at its option offset and deduct any
liability or obligation of Buyer from any or all sums owed by it to Buyer
74 Additional Covenants and Oral Agreement Buyer and Seller agree that this ?s a five-page agreement and each page hereof constitutes a part
of this Agreement THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
75 Waiver of Trial By Jury Seller and Buyer hereby waive any nght to trial by jury in any action relating to this Agreement Seller and Buyer hereby,
for themselves, their successors and assigns, WAIVE ANY RIGHT TO SUE FOR OR COLLECT FROM THE OTHER PARTY ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULT OF OR RELATING TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ENFORCEMENT BY EITHER PARTY OF ITS
RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES ARE PROVEN TO BE THE DIRECT RESULT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Government fight terrorism and money laundering, f=ederal law requires us to obtain,
verify, and record information that identifies each person or business that opens an account or establishes a
relationship. What this means for you, when you open an account or establish a relationship, we will ask for your
name, street address, date of birth, and identification number, such as a social security number or taxpayer
identification number. For businesses, we will ask for the business name, street address and tax identification
number. Federal law requires us to obtain this information. We may also ask to see your driver's license or other
identifying documents that will allow us to identify you We appreciate your cooperation.
Page 5 of 6 of Security Agreement dated between HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and GROFF TRACTOR E EQUIPMEN , (Seiler) which includes, without limitation an deco of collateral with the following serial
number_ DAC3312eo
621626 Raw osrtooa ORIGINAL FOR CMCAP(TAL
Comm9 "0n* AVannus States tR o > Buyers Initials
1218665 2 0 XC 20050628134315
DELIVERY AND ACCEPTANCE OF COLLATERAL
(Check Appropriate Box)
On the Collateral was delivered to Buyer with all installation and other work necessary for the proper use of the Collateral
corn to at t agreed upon by Buyer and Seller, the Collateral was inspected by Buyer and found to be in satisfactory condition in all
respects and delivery was unconditionally accepted by Buyer
The Collateral has not yet been delivered to or accepted by Buyer and, upon delivery, Buyer agrees to execute a delivery and acceptance certificate
in a form acceptable to Seller or Seller's assignee
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIG CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES Buyer and Seller agree that this is a six page agreement and each page hereof constitutes a part of this
agreement
NOTICE TO BUYER - DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK
SPACES. YOU ARE ENTITLED TO A COPY OF THE AGREEMENT YOU SIGN
Buyer's Social Security or Federal Taxpayer Identification Number is 251800323 and Co-Buyer's is
Buyer hereby acknowledges receipt of an exact copy
of this contract.
Date
Seller GROFF TRACTOR & EQUIPMENT, INC Buyer(s) HAMPTON CONSTRUCTION MANAGEMENT, LTD
r
By By
_ Title _ Pe4s?t?'
Title
By _
6779 CARLISLE PIKE Title
(tf co-0uyty, co-pertnw of oo-ollkaf sign hare and slow whsh)
(Street Address)
State of Organization
MECHANICSBURG PA 17055 Pnnapal ResidencelChlef Executive Office/Place of Business
(cq stw.na 29 cme)
424 RAILROAD AVE _
($beat Addrees)
SHIREMANSTOWN CUMBERLAND PA 17011
(City COUNTY State end Zp Code)
Date of Birth
11MM&=VS0Ie Propdew5hp)
Page 6 of 6 of Secugf Agreement dated yeteen HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and GROFF TRACTOR b EQUIPMENT, INC (Seiler) wtuch includes without limitation, an item of Collateral vnth the follwnng sent
num _ DAC331266
621526 Rev 082004
Comm L Not-Vet,-Vanous Stales (R D)
lit
ORIGINAL FOR CITICAPITAL
1 218665 2 0 XC 20050628134315
1 0 THE COLLATERAL
1 1 Down Payment and Disclaimer. Buyer represents and warrants that (a) any check or instrument presented to Seller as any portion of a 'Cash
Down Payment Indicated on the first page of this Agreement represents funds immediately available to Seiler and will not be returned or
dishonored for any reason, and (b) Buyer has title to and the full right and authority to convey bde to any Trade-in listed on the first page of this
Agreement and, upon payment to the party listed on the first page of this Agreement (if any) of the amount indicated, Seller shall have title to the
Trade-In free and dear of any hen, claim, security interest or other interest of any party other than those claiming by through or under Seller
There are no warranties other than those made by the manufacturer of the Collateral SELLER MAKES NO REPRESENTATION OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS
OF THE COLLATERAL FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, unless such warranties are in writing and signed by Seller Seller shall not under any circumstances be liable for loss of
anticipatory profits or for consequential damages
12 Collateral Receipt and Use Buyer warrants and agrees that the Collateral was delivered to and accepted by Buyer in satisfactory condition, the
Collateral will be used solely for business purposes, the Collateral is free from and will be kept free from all bens, claims, security interests and
encumbrance other than that created hereby, notwithstanding Seller's claim to proceeds, Buyer will not, without Sellers prior written consent, sell,
rent, tend encumber, pledge, transfer, secrete or otherwise dispose of any of the Collateral, nor will Buyer permit any such act, the Collateral will
be maintained in good operating condition, repair and appearance, and will be used and operated with care, only by qualified personnel in the
regular course of Buyer's business and in conformity with all applicable governmental laws and regulations, the Collateral shall remain personal
property and not become part of any real property regardless of the manner of affixation, Setter may inspect the Collateral and all books and
records relating to the Collateral or Buyer's performance under this Agreement at all reasonable times and from time to time, the Collateral will be
kept by Buyer at Buyer's place of business which is indicated immediately below Buyer's signature and will not be removed from said location
without the prior written consent of Seiler, except that an item of Collateral which is mobile and of a type normally used at more than one location
may be used by Buyer away from said location in the regular course of Buyer's business provided that (a) such item is not removed from the
United States, and (b) if such item is not returned to said location within 30 days, Buyer will immediately upon Seller's request, and each 30 days
thereafter until the item is returned, report the then current location thereof to Seller in writing
1 3 Insurance Buyer shall at all times bear all risk of loss of, damage to or destruction of the Collateral Buyer agrees to procure forthwith and
maintain insurance on the Collateral, for the actual cash value thereof and for the life of this agreement, in the form of Fire Insurance with
Combined Additional Coverage and Collision, Theft and/or Vandalism and Malicious Mischief Coverage when appropriate, plus such other
insurance as Seller may specify from time to time, all in form and amount and with insurers satisfactory to Seller Buyer agrees to deliver promptly
to Seller certificates or if requested, policies of insurance satisfactory to Seller, each with a standard tong form loss payable endorsement naming
Seller or its assigns as loss payee as their interests may appear Each policy shall provide that Seller's interest therein will not be invalidated by
the acts omissions or neglect of anyone other than Seller, and will contain insurer's agreement to give 30 days prior written notice to Seller before
cancellation of or any matenal change in the policy will be effective as to Seller, whether such cancellation or change is at the direction of Buyer
or insurer Sellers acceptance of policies in lesser amounts or risks will not be a waiver of Buyer's foregoing obligation Buyer assigns to Seller all
proceeds of any physical damage insurance maintained by Buyer with respect to the Collateral and any and all returned premiums, up to the
amount owing hereunder by Buyer Buyer directs all insurers to pay such proceeds directly to Seller Buyer authorizes Seller to endorse Buyer's
name to all remittances without the joinder of Buyer
2 0 SECURITY INTEREST
21 Security Interest Seller retains title to and Buyer hereby grants Seller a first and perfected security interest in the Collateral to secure payment of
the Time Balance indicated on first page of this Agreement and all other obligations of Buyer to Seiler under this Agreement Buyer further grants
to Seller, Sellers successors and assigns and any Affiliate of any of them a security interest in the Collateral (separate and distinct from and
subordinate only to the security interest granted to Seller above) to secure the payment and performance of all now existing or hereafter ansing
debts, liabilities and obligations of Buyer of every land and character whether now existing or hereafter ansing, and whether direct, Indirect,
absolute, contingent, primary, secondary, or otherwise, to Seller or Seller's successors or assigns and any Affiliate of any of them, whether under
this Agreement or any other agreement, and whether due directly or acquired by assignment ("Liabilities") For the purposes of this Agreement,
an "Affiliate" of any party means and includes any direct or indirect parent, subsidiary or sister entity of that party Any sums at any time owing to
Buyer and in the possession of Seller or any such Affiliate shall secure the Liabilities of Buyer to Seller and any Affiliate of Seller Upon any
assignment of this Agreement by Seller, the security interests granted herein will be assigned to and inure to the benefit of such assignee and the
Affiliates of such assignee The security interests granted herein shall continue to be effective regardless of any retaking or redelivery of the
Collateral to Buyer
22 Perfection and Preservation of Security Interest Buyer agrees, at its own cost and expense to do everything necessary or expedient to
perfect and preserve the security interests of Seller obtained hereunder, to extinguish or defend any action, proceeding or claim affecting the
Collateral including but not limited to any mechanics lien, forfeiture action or proceeding, and to pay promptly any taxes, assessments, license
fees and other public or private charges when levied or assessed against the Collateral, this agreement or an accompanying note Buyer
authorizes Seller or any officer, employee or designee of Seller or any assignee of Seller (or any designee of such assignee) to fie a financing
statement describing the Collateral for itself and as representative of its Affiliates Buyer agrees to execute and deliver to Seller, upon Seller's
request, such documents, writings, records and assurances as Seller deems necessary or advisable for the confirmation or perfection of the
security interest in the Collateral and Seller's rights hereunder, including such documents, writings, records and assurances as Seller may require
for filing or recording
23 Location of Buyer (i) If Buyer is a corporation, limited liability company, limited partnership or other registered organization, its state of
organization is in the state set forth immediately below its signature on the last page of this Agreement and Buyer agrees that it will not change its
form or state of organization without 30 days prior written notice to Seller (ii) If Buyer is an individual, his/her principal place of residence is at the
address set forth immediately below his/her signature on the last page of this Agreement and, if Buyer changes Buyers principal residence,
Buyer will notify Seller in writing of a change in his/her principal place of residence within 30 days of such change Buyer agrees to reimburse
Seller for all costs incurred by Seller related to any such change
Page 2 of 6 of Security reement dated between HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and er GROFF DAC331268 TRACTORS EQUIPMENT, INC (Seller) which indudes, without limitation, an item of Collateral with the folloviing serial
number D
ORIGINAL FOR CITiCAPITAL
621626 Rev OW20e4
GmI NonrVeh-Venous states (RD ) Bu s Initials
7 71
1 218665 2 0 XC 20OW628134315
3 0 ACCOUNT MANAGEMENT AND PAYMENT PROCESSING
31 Application of Payments All payments made by Buyer to Seller pursuant to this Agreement may be applied first to any indebtedness which is
not secured, then to delinquency charges, then to finance charges, then to insurance payments, then to any other fees or other amounts payable
hereunder other than the Liabilities secured by a purchase money security interest in the Collateral, until all of such Liabilities are paid in full, and
then to the Liabilities secured by a purchase money security interest in the Collateral in the order in which the Liabilities were incurred This
provision controls over any conflicting provision or language in this Agreement or in any other agreement between Seller and Buyer unless the
parties mutually agree in writing in a subsequent agreement to override this provision
32 Debft Transactions Seller or any assignee or other holder of this Agreement (collectively "Holder") may but shah not be required to offer Buyer
the option of paying any of Buyer's obligations to Holder through printed or electronic checks, drafts or charges ("Debit Transactions") Each
such Debit Transaction may be orally authorized by Buyer, any representative or officer of Buyer or any other parry having access to or control of
the account upon which the Debit Transaction is to be charged Buyer authorizes Holder or any officer, employee or designee of Holder to initiate
Debit Transactions from Buyer's account in the verbally authorized amount plus the Holders then Debit Transaction Fee This authorization may
be canceled at any time by Buyer giving at least three-business day's prior written notice to Buyer's bank and Holder Buyer authorizes Holder to
substitute a Debit Transaction for any check or other remittance submitted by Buyer in the amount of that remittance Payment by Debit
Transactions is not required by Seller nor is its use a factor in the approval of credit
33 Payment Processing Buyer hereby agrees that any payment made by Buyer hereunder by remittance and received by Seller at an address
other than the address specified on the related invoice may be replaced by the Holder with a substitute written or electronic instrument of equal
amount and presented to Buyer's financial institubon for payment from the account referenced on the remittance from Buyer
34 Returned Payments In the event that a check, draft or other remittance sent by Buyer or a Debit Transaction authorized by Buyer is returned
unpaid or rejected for any reason other than the lack of a proper endorsement by Seller, Seller agrees that the application of such payment to
Buyer's Liabilities will be reversed and Buyer agrees to immediately pay Seller the amount of such returned payment, plus any delinquency
charge accruing as the result of the reversal of any such payment Buyer further agrees to pay Seller any amount charged to Seller by any
depositary institution because of such return and an additional handling charge in the amount, if any, equal to $20, or in the event applicable law
limits or restricts the amount of such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or
restricted in accordance with applicable law
35 Authorization to Share Information Seller or any assignee of this Agreement may receive from and disclose to any assignee of Seller or any
Affiliate of either of them, the seller or manufacturer of any Equipment, any Guarantor or other party having a disclosed or undisclosed obligation
related to the Liabilities or Collateral, or any potential purchaser, participant or investor in Buyer's Liabilities or any assignee or affiliate of any of
them (herein collectively, the "Entity"), and any credit reporting agency for any purpose, information about Buyer's accounts, credit application
and credit experience with Seller or any Entity Buyer authorizes any Entity to release to Seller or any assignee, or any Affiliate of either of them
any information related to Buyers accounts, credit experience and account information regarding Buyer This shall be continuing authorization
for all present and future disclosures of Buyer's account Information, credit application and credit experience on Buyer made by Seller,
or any Entity requested
4 0 PERFORMANCE BY SELLER
41 Performance If Buyer fails to perform any of its obligations hereunder, including, without limitation, Buyer's obligation to insure the Collateral or
to protect and preserve the security interest of Buyer, Seiler may perform the same, but shall not be obligated to do so, for the account of Buyer to
protect the interest of Seller or Buyer or both, at Seller's option, Buyer shall immediately repay to Seller any amounts paid by Seller together with
interest thereon at the rate payable upon acceleration of Buyers obligations under this Agreement Performance by Seller will not constitute a
waiver of any default by Buyer
42 Power of Attorney BUYER HEREBY APPOINTS SELLER OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF SELLER, OR ANY ASSIGNEE
OF SELLER (OR ANY DESIGNEE OF SUCH ASSIGNEE) AS BUYER'S ATTORNEY IN FACT TO, IN BUYER'S OR SELLER'S NAME (a)
PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE
POLICY INSURING THE COLLATERAL, (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT, DOCUMENT, FINANCING STATEMENT,
TITLE APPLICATION, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN SELLER'S OPINION, IS NECESSARY TO
PERFECT AND/OR GIVE PUBLIC NOTICE OF THE INTERESTS OF SELLER IN ANY COLLATERAL THAT SECURES OR THAT MAY
SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF BUYER TO SELLER, AND (c) ENDORSE BUYER'S NAME ON ANY REMITTANCE
REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE COLLATERAL OR THE PROCEEDS OF THE SALE, LEASE OR
OTHER DISPOSITION OF THE COLLATERAL (WHETHER OR NOT THE SAME ISA DEFAULT HEREUNDER) This power is coupled with an
interest and is irrevocable as long as any Liabilities remain unpaid
50 DEFAULT AND REMEDIES
51 Events of Default Time is of the essence An event of default shall occur if (a) Buyer falls to pay when due any amount owed by it to Seller, any
assignee or any Affiliate, successor or assign of either of them under this Agreement or under the terms of any promissory note delivered in
conjunction with this Agreement, (b) or if Buyer fails to pay any Liabilities when due to Seller or an assignee or any Affiliate, successor or assign
of either of them or is otherwise in default under any other document, agreement or instrument (c) Buyer defaults under the terms of any secured
indebtedness or indebtedness of a material amount to any other party, (d) Buyer falls to perform or observe any other term or provision to be
performed or observed by it hereunder or under any other instrument or agreement furnished by Buyer to Setter or an assignee or to any Affiliate,
successor or assign of either of them or otherwise acquired by Seller or an assignee or any Affiliate, successor or assign of either of them, (e)
Buyer becomes insolvent or ceases to do business as a going concern, (f) any of the Collateral is lost or destroyed, (g) Buyer makes an
assignment for the benefit of creditors or takes advantage of any law for the relief of debtors, (h) a petition in bankruptcy or for an arrangement
reorganization, or similar relief is filed by or against Buyer, (i) any property of Buyer is attached, or a trustee or receiver is appointed for Buyer or
for substantial part of its property, or Buyer applies for such appointment, p) Seller in good faith believes that the prospect of payment or
performance hereunder is impaired, (k) Buyer falls to pay any final judgment, court order, or, for sovereign borrowers, any declaration of
moratorium, (1) if there shall occur an appropriation, confiscation, retenhon, or seizure of control, custody or possession of any Collateral by any
governmental authority including without limitation, any municipal, state, federal or other governmental entity or any governmental agency or
Page 3 of 6 of Sewnty AgrBement dared between HAMPTON CONSTRUCTION MANAGEMENT, LTD (gayer)
and GROFF TRACTOR & EQUIPMENT, INC (Seller) which includes, without limitation, an item of Collateral with the following serial
number DAC33112156
ORIGINAL FOR CITICAPITAL
621626 Rev 0 Buyer's
C- I J
Comm Non-VWehVa Various Stales (R D I
t 71
1218665 2 0 XC 2005062 81 34 315
Instrumentality (all such entitles, agencies and instrumentalities shall hereinafter be collectively refereed to as "Governmental Authonty"), (m) if
anyone in the control, custody or possession of any Collateral or the Buyer is accused or alleged or charged (whether or not subsequently
arraigned, indicted or convicted) by any Governmental Authority to have used any Collateral in connection with the commission of any crime
(other than a misdemeanor moving violation), (n) there shall be a material adverse change in any of the (I) condition (financial or otherwise),
business performance, prospects, operations or properties of the Buyer, (II) legality, validity or enforceability of this Agreement, (III) perfection or
priority of the lien granted in favor of Seller pursuant to this Agreement, (iv) the ability of the Buyer to repay the indebtedness or perform its
obligations under this Agreement or, (v) rights and remedies of the Seiler under this Agreement are impaired, (o) there shall be a death of Buyer or
a majority owner of Buyer or a guarantor of the Buyers Liabilities, (p) except for the security interest, lien or reservation of title in favor of Seller or
as otherwise granted herein, there shall be any lien, claim or encumbrance on any of the Collateral securing the indebtedness or obligation of
Buyer to Seller, or (q) Buyer defaults under any guaranty, collateral agreement, or other support agreement
52 Remedies Upon the occurrence of an event of default, and at any time thereafter as long as the default continues, Seller may, at its option, with
or without notice to Buyer (I) declare this agreement to be in default, (u) declare the indebtedness hereunder to be immediately due and payable,
(It) declare all other debts then owing by Buyer to Seller, or any successor or assignee of Seller or any Affiliate of any of them to be Immediately
due and payable, (iv) cancel any insurance and credit any refund to the indebtedness, and (v) exercise all of the rights and remedies of a secured
party under the Uniform Commercial Code and any other applicable laws, including the right to require Buyer to assemble the Collateral and
deliver it to Seller at a place to be designated by Seller which is reasonably convenient to both parties and to lawfully enter any premises where
the Collateral may be without judicial process and take possession thereof Acceleration of any L.Iabillbes or indebtedness, if so elected by Seller,
shall be subject to all applicable laws including those pertaining to refunds and rebates of unearned charge Any property other than Collateral that
is in or upon the Collateral at the time of repossession may be taken and held without liability until its return requested by Buyer Unless otherwise
provided by law, any requirement of reasonable notice which Seller may be obligated to give regarding the sale or other disposition of Collateral
will be met if such notice is mailed to Buyer at its address shown herein or to the most current address designated by Buyer to Seller in writing at
least ten days before a time of sale or other disposition Seller may dispose of any Collateral at a public or private sale or at auction Seller may
buy at any sale and become the owner of the Collateral Buyer agrees that Seiler may bring any legal proceedings it deems necessary to enforce
the payment and performance of Buyer's obligations hereunder in any court in the State shown in Sellers address set forth herein, and service of
process may be made upon Buyer by mailing a copy of the summons to Buyer at its address shown herein The inclusion of a trade name or
division name in the identification of Buyer hereunder shall not limit Seller's right, after the occurrence of an event of default, to proceed against all
of Buyers assets, including those held or used by Buyer individually or under another trade or division name Expenses of retaking, holding,
preparing for sale, selling and the like shall include (a) the reasonable fees of any attorneys retained by Seller, and (b) all other legal expenses
incurred by Seller Buyer agrees that Buyer is liable for all amounts due hereunder, including any deficiency remaining after any disposition of
Collateral after default Seiler may sell the Collateral without giving any warranties as to the Collateral Seller may disclaim any warranties of title,
possession, quiet enjoyment, or the like This procedure will not be considered to adversely affect the commercial reasonableness of any sale of
the Collateral
5 3 Acceleration Interest Buyer agrees to pay Seller, upon acceleration of the above indebtedness, interest on all sums then owing hereunder at
the rate of 1 112% per month if not prohibited by law, otherwise at the highest rate Buyer can legally obligate itself to pay or Seller can legally
collect Any note taken herewith evidences indebtedness and not payment
60 PREPAYMENT
61 Partial Prepayment and Automatic Reschedule Buyer does not have the right to prepay only a portion of the balance of this Agreement prior to
matunty without the consent of Seller (a) In the event that there are several units subject to this Agreement and all of that portion of the obligation
that relates to a specific unit is paid in full either as a result of a casualty loss related to the unit which is reported in writing to Seller or the sate of
the unit with the prior consent of Seller, Seller will apply the proceeds received by Seller and identified as relating to any such transaction to the
balance due under this Agreement and reschedule the remaining monthly payments under this Agreement over the then remaining term (b) In
the event that Buyer is obligated to Seller or to an assignee of Seiler under the terms of any other agreement, and Seller or such assignee
received one or more remittance(s) (other than as indicated in 61(a) above) with respect to this Agreement at a time when any amount is past due
under another agreement, Seiler or Seller's assignee will have the right to apply any portion of such excess to the payments then due or past due
under the other agreement (c) In the event that Seller receives one or more a remittance(s) (other than as indicated in 61(a) or 6 1(b) above)
with respect to this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the aggregate
excess amount is equal to or less than four regularly scheduled payments under this Agreement, Seiler will apply the amount of such excess to
the immediately succeeding monthly payments under this Agreement In the event that Seller receives one or more remittance(s) with respect to
this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the excess amount is in an
aggregate amount greater than four regularly scheduled payments under this Agreement, or Seller will, at Seller's option either (I) apply the
amount of such excess to the final maturing installment payments under this Agreement, or (it) apply the amount of such excess to the balance
due under this Agreement and reschedule the remaining monthly payments under this Agreement over the then remaining term The Interest or
finance charge Included In this Agreement is precomputed and early payment of one or more Installments prior to their maturity date
may not reduce the total Interest or finance charge payable by Buyer under this Agreement unless the monthly payments are
rescheduled (d) In the event that Seller elects to reschedule the monthly payments under this Agreement, the portion of the balance remaining
unpaid under this Agreement at the time of reschedule will be calculated in the same manner as upon prepayment (but without penalty) The
Finance Charge or Annual Percentage Rate applicable to the rescheduled payments will be the lesser of the rate Included in this Agreement and
the maximum rate allowed by applicable law Buyer's rescheduled payments will appear on Buyer's account statement
62 Prepayment In Full Buyer has the right to prepay the indebtedness under this Agreement in full (but not in part) at any time Upon prepayment
Buyer win receive a rebate of the unearned portion of the finance charge calculated using an actuarial method or such other method as is required
by any applicable law minus, of the prepayment is made prior to the last twelve months of the contract, a prepayment processing fee equal to the
lesser of (a)1 % of the originally scheduled balance on the date of prepayment for each full twelve month period remaining under the term of this
Agreement as of prepayment and (b) the maximum prepayment and/or acquisition charge allowed by applicable law, provided, however, that no
such prepayment and/or acquisition charge shall be due if this Agreement is subject to the laws of Arizona, Connecticut (and the rash sale price is
$50,000 or less with respect to trader or motor vehicle collateral or $16,000 or less with respect to non-vehicular collateral), Idaho, Montana,
Nebraska, New York, Rhode Island, or West Virginia All accrued and unpaid late charges and other amounts chargeable to Buyer under this
Agreement will be payable immediately upon such prepayment
Page 4 of 6 of Securr?iyy,,qq??reement dated between HAMPTON CONSTRUCTION MANAGEMENT, LTD
and GROFFTRACTOREEQUIPMENT,INC- (Buyer)
(Seller) which includes, without (imrtaLon, an item of Cotlateral vvth tine following sent
number DAC331266
621626 Rio 092004 ORIGINAL FOR CITICAPMAL
Comm9 Nor+VWVnnws Shea (R 0 )
1 71
1 218665 2 0 XC 20050628134315
ASSIGNMENT OF SELLER
(WITHOUT RECOURSE)
crticapital-
DOCUMENTS (check appropriate) D led
?r b?g o?? Debtor HAMPTON CONSTRUCTION MANAGEMENT, LTD
1.'? Security Agreement
? Promissory Note
? Guaranty
Street
424 RAILROAD AVE
? City, State & Zip SHIREMANSTOWN PA 17011
? Present Balance Owed by Debtor $ 258,285 00
For value received, the undersigned ("Assignor") hereby sells, assigns and transfers to CITICAPITAL COMMERCIAL CORPORATION, its successors
and assigns ("Assignee"), WITHOUT RECOURSE as to the financial ability of the debtor named above ("Debtor) to pay, all Assignor's right, title and interest in
and to (a) the security agreement or other btle retention or hen instrument described above (tile "Security Agreement") between Assignor and Debtor, (b) any
notes, guaranties and other documents executed in connection with the Security Agreement (herein, with the Security Agreement, called the "Documents"), (c)
all amounts due or to become due under the Documents, (d) the property in which a security interest or hen is granted to or reserved by Assignor under the
Security Agreement (the "Collateral"), and (e) all of Assignor's rights and remedies under or in connection with the Documents, including the right, without notice
to Assignor and without affecting Assignors liability hereunder (i) to collect any and all amounts owing under the Documents, (it) to endorse Assignor's name or
any note or remittance received, (gi) to release or discharge Debtor or any other persons obligated under the Documents, on terms satisfactory to Assignee, by
operation of law or otherwise, (iv) to settle, compromise or adjust any and all rights against and to grant extensions of bme of payment to Debtor or any other
persons obligated under the Documents, and (v) to take any other action Assignor might tale: but for this assignment Assignor warrants that the Documents
are genuine, collectable, enforceable and in all respects what they purport to be, all signatures, names, addresses, amounts and other statements and facts
contained in the Documents and herein are true and correct, Debtor has obtained all insurance required by the Security Agreement and such insurance is in full
force and effect, the Collateral was sold to Debtor in a bona fide time sale transaction. Debtor has paid the down payment in cash or as otherwise set forth in the
Security Agreement, and no part thereof was loaned directly or indirectly by Assignor, the Collateral was delivered in satisfactory condition to Debtor on the date
set forth below, was properly installed if required, and was accepted by Debtor, Debtor is not in default under the Security Agreement, all parties to the
Documents have the capacity to contract and none of such parties is a minor, the security interest, lien and reservation of title evidenced by the Security
Agreement are valid, first, prior to all others and effective against all persons, Assignor has caused or will promptly cause such actions or procedures to be taken
as are required or permitted by statute or regulation to perfect such security interest, hen and reservation of title in Assignee's favor, including, without limitation,
filing financing statements, recording documents and obtaining Certificates of Title disclosing Assignee's interest, Assignor has full btle to and the right to sell and
assign the Documents and the security interest, lien and reserved the evidenced thereby, and this assignment conveys the same free and dear of all bens and
encumbrances whatsoever, the Documents are and will continue to be free from defenses, counter-claims, cross-claims and set-offs, and Assignor shall
continue to be liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terns, covenants or conditions contained in the Documents
or any release of, or failure on the part of Assignee to realize upon or protect, the Collateral or any lien thereon
Assignor agrees that Assignee may audit its books and records relating to the Documents Assignee shall have no obligations of Assignor as seller
under the Security Agreement Unless otherwise agreed under the provisions of any applicable underlying agreement, any amount retained by Assignee as a
reserve or holdback shah be held by Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
assignee or any affiliate of Assignee, and shall be paid to Assignor without interest when all amounts due under the Documents have been paid in full, provided
that no direct or contingent obligation of Assignor, whether hereunder or under any other agreement with Assignee or any affiliate of Assignee, is in default at the
time such reserve or holdback amount is to be paid to Assignor In the event of any such default Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations If Assignee gives a rebate of finance charge computed on the total finance charge
payable by Debtor, and such rebate is greater than a like rebate computed on the portion of the finance charge to be earned hereafter by Assignee, Assignor will
pay to Assignee upon demand the difference between such rebates, the portion of the finance charge to be earned hereafter by Assignee is the excess of (t) the
amount to be collected under the Security Agreement and retained by Assignee, over (n) the amount paid or to be paid by Assgnee to Assignor for the Seventy
Agreement ANY REASSIGNMENT OF THE DOCUMENTS AND/OR THE COLLATERAL BY ASSIGNEE SHALL BE WITHOUT RECOURSE OR WARRANTY
OF ANY KIND Assignor waives presentment and demand for payment, protest and notice of non-payment, and subordinates all rights Assignor may now or
hereafter have against Debtor to any rights Assignee may now or hereafter have against Debtor Assignee shall have no authority to, and will not, without
Assignee's prior written consent, accept collections, repossess, substitute or consent to the return of the Collateral, or modify the terms of the Documents
Assignee's knowledge at any time of any breach of or non-compliance with any of the foregoing shall not constitute any waiver by Assignee Assignor waives
notice of acceptance hereof At the request of Assignee, Assignor agrees to give reasonable assistance to effect collection of the Documents and repossession
of the Collateral, and any such services shall be furnished without cost to Assignee unless Assignee otherwise agrees in writing Assignor agrees to store on
Assignors premises, without cost to Assignee, any repossessed Collateral Assignor hereby acknowledges that such Collateral shall at all times remain the
property of Assignee and Assignor shall have no right to sell, lease, rent, move or otherwise transfer or dispose of such Collateral without the prior written
consent of Assignee
If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, Assignor will indemnify and hold Assignee harmless from
any losses, damages or claims ansing therefrom and will, without requiring Assignee to proceed against Debtor or any other person or any security. repurchase
the Documents on demand and pay Assignee in cash the balance remaining unpaid thereunder plus any expenses of collection, repossession, transportation
and storage (including reasonable attorney's fees and court osts) curred y Assignee, less any customary refund by Assignee of unearned finance charges
The Collateral was dehv, to Debtor on - , G
(Date)
Dated ASSIGNOR GROFF TRACTOR & EQUIPMENT, INC
?f Name Y of i ? {ualai?cdpwabon or partnership
rvM/?? trade d any, after nine )
BY.-
p%cer G/
must sign and show m(parate title d partitarship a general
partner must sign If or partner, show which)
Title
620854 Rev 05!2004
Assignrnem of Seller (WORT
1 02
Page 1 of 7
CITICAPITAL is a service mark of CibCAip 1218665 2 0 XC 20050628134315
A memberof Migroup'T
Exhibit B
Lift Lease Agreement
Name and Address of Lessee ("Lessee")
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
.w..
citicapitall]
Name and Address of Lessor ("Lessor")
CLEVELAND BROTHERS EQUIPMENT CO., INC.
3607 HARTZDALE DR 5300 PAXTON ST
CAMP HILL PA 17055 HARRISBURG PA 17111-2525
LESSOR'S COST
DESCRIBE EQUIPMENT FULLY Equipment Total Cost $ 212,200.00
(1) CATERPILLAR TRACK LOADER 963C S/N BBD01154 Shipping & Handling Cost $ 000
Installation Cost $ 0.010
Other (Specify) 0.001
212,200.
TOTAL COST$ 21
30697 HARTZDAL? DR ENT: CAMP HILL PA
nA ENTALPAYMENT IS
A. TERM: 66 - Months following the first day of the month
after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
0 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 100.00
E. RENTAL PAYMENT: 66 Payments of $ 2,969.05
PLUS APPLICABLE TAXES
F. SECURITY DEPOSIT: $ 0.00
H. PAYMENT SCHEDULE: THE ADVANCE R
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LESSOR.
INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMENT.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
THE FIRST DAY OF JANUARY , _ 06 (MOLAR).
Each installment in the groups below is payable on a consecutive monthly b
1 advance payment(s) of $2,969.05on 12101/2005
65 installment(s) of $2,969.05 commencing on 0110112006
TERM OPTION: (if left blank or marked "NA". Paragraph(s) 11A and/or 118 are
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 77,856.20
Conversion Term 12 Months
Conversion Payments - 6,488.02
Conversion Rate: (check one and initial) El Fixed %Paragraph 13 of this Lassa)
® Floating - 1.00 % plus the Prime rate (as dsnned In
Option Date:
Option Price $ -
G. 5 MACRS Class Life of Equipment Conversion Term -- Months
The Termination Value Table attached to this Lease is a part of Conversion Payment $ -
and incorporated into the terms of this lease. Conversion Rate: (check one and initial)
0 Fixed -- %
? Floating - _ % pt„s tha Primm me Jas 4.11-d M
P.ragraph 17 f IN. Lea-)
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease") and the obligations and liabilities of Lessee under this Lease are effective on the date of
Lessor's acceptance of this Lease ("Effective Date"), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under and subject to the terns and provisions hereof until the end of the Term specified
above ("Term"), the personal property described above and on any supplemental schedule(s) identified as constituting a pan of this lease Ilnerein, with all present and future
attachments, accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as "Equipment"). This Lease is for the Term commencing on the date the
Equipment is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments (including advance
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments are payable without notice or demand. Alt amounts payable under this Lease to Lessor are payable at
Lessor's address set font herein or at such other address as Lessor may specify from time to time in writing- Except as otherwise specifically provided herein, Lessee's obligation to
pay the Rental Payments and all other amounts due or to became due under this Lease shall be absolute and unconditional under all circumstances, regardless of any set-off,
counterclaim, recoupment, defense or other claim whatsoever. Any Security Deposit is held as security for Lessor's obligations and will be refunded in full, without interest, upon
-1 in hill rd them nhinations.
Page 1 of 5 of Lease Agreement dated 1121,05 between r1AMPTON CONSTRUCTION MANAGEMENT, LIMrTED rte-ee) and
CLEVELAND BROTHERS EQWPMENT CO., INC. (Lessor) Which Includes, without limitation. an Rem of Equipment wth the following serial number
BBD01154 Le a Intilials
704004 -3 Re?oN2004 ORIGINAL FOR CITICAPITAL
Iseo4004.wpd Lin LeawFixed Rate
1.17 1.247875.2.0 XC:20051107070646
CITICAPITAL is a service mark of Citicorp. Amember ofcittgrouO,
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due. Lessee agrees to pay Lessor a delinquency charge
calculated thereon at the rate of 1 1/2% per month for the period of delinquency or, at Lessors option, 5% of such Rental Payment or other sum due under this Lease, provided that
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and/or lessor can legally collett. Lessee agrees to reimburse
Lessor immediately upon demand for any amount charged to Lessor by any depositary institution because a check, draft or other order made or drawn by or for the benefit of Lessee is
returned unpaid for any reason and, if allowed by law, to pay Lessor an additional handling change in the amount of $25.00 or in the event applicable law limits or restricts the amount
of
such reimbursement and/or handling charge, the amounts changeable under this provision will be limited and/or restricted in accordance wilh applicable law.
5. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction for tax
or other purposes. Lessee acknowledges and agrees that: the Equipment is of a size, design, capacity and manufacture selected by Lessee; Lessor is not the manufacturer of the
Equipment or the manufacturers agent; LESSEE LEASES THE EQUIPMENT 'AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY,
FITNESS OR SUITA131UTY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED.
Lessee will not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or make any settlement with the manufacturer or seller
to Lessor of the Equipment (both herein called "Seller") without Lessors prior written consent; and the selection, servicing and maintaining of the Equipment shall be entirely at Lessee's
risk and expense. Lessee agrees, at its own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications of the Seller and with all of the
terms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted by law with respect to the
Equipment; (d) to maintain the Equipment in good operating condition, repair and appearance; and (e) to furnish Lessor promptly with such financial statements and other information as
Lessor may reasonably request from time to time.
6. TERMINATION VALUE. "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty foss. If Lessor and Lessee have executed a
Termination Value Table with respect to tits Lease, the Temtino6on Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Termination Value Table with reaped to this Lease, the Termination Value as of any date
shall mean an amount equal to the total of all accrued and unpaid Rental Payments and all other amounts then due and remaining unpaid plus the greater d; (a) the then Fair Market
Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment as of that date in the same condition as when received by Lessee, reasonable wear and tear
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrued and
unpaid Rental Payments and all other amounts then due and remaining unpaid plus the then present worth of all unaccrued Rental Payments plus either (i) the Purchase Option Price,
or (f) N no purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when received
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease.
Present worth shall be determined by discounting such unissued Rental Payments from their respective due dates at the Rate of 2.00 %.
7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction of the Equipment tram the data of its delivery until Its return. If, for any reason, any of the
Equipment Is lost, stolen, destroyed or damaged beyond repair, Lessee shall (a) immediately and fully inform, Lessor with regard thereto, and (b) promptly pay to Lessor
the Termination Value calculated as of the date of payment thereof. Any amounts actually received by Lessor from insurance or otherwise on Lessee's behalf for such
loss or damage shall be applied to reduce Lessee's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction of the
Equipment or the total or partial loss of use or possession thereof to Lasso, shall not release or relieve Lessee from tb obligations and liabilities under this Lease_
Lessee agrees to procure and maintain at all times on and after the Eff tctlve Dabs such liability, physical damage and other insurance as Lessor may require from time to
time. Lessee agrees that all such Insurance shall be In form and amount and with insurers satisfactory to Lessor, and that Lessee will deliver promptly to Lessor
certificates or, upon request, policies satisfactory to Lessor evidencing such insurance. Ali liability policies shall name Lessor as an additional Insured, and all physical
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their interests may appear. Each policy shall provide that Lessor's interest
therein shall not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shat) contain the Insurer's agreement to give Lessor at bast 30 days
prior written notice before cancellation or any material change in the policy shall be effective as to Lessor, whether such cancellation or change is at the direction of
Lessee or the insurer.
8. TAXES_ Lessee shall be liable for all taxes, levies, duties, assessments, and other governmental charges (including any penalties and interest, and any fees for titles or registration)
levied or assessed against Lessee, Lessor or the Equipment, upon or with respect to the lease or the purchase, use. operation, leasing, ownership, value, mium or other disposition d
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Lessee in writing otherwise.
Lessor will file all returns and remit all personal property taxes applicable to the Equipment Lessee agrees to reimburse Lessor for all such personal property taxes immediately upon
receipt of Lessors invoice including without limitation such taxes assessed or arising during the term of this Lease but remitted by Lessor after the termination of this Lease. At Lessors
option, Lessee agrees to remit, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessors reasonable estimate of the personal property taxes
that will be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's obligations under this
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus will be either
credited to Lessee's other obligations to Lessor or returned to Lessee. It requested, Lessee agrees to file promptly on behalf of Lessor all requested lax returns and reports Concerning
the Equipment in form satisfactory to Lessor, with all appropriate governmental agencies and to mad a copy thereof to Lessor concurrently with the filing thereof. Lessee further agrees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessments and
other governmental charge.,,. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of tiffs Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at all times remain in Lessor and Lessee will at all times, at its own cost and
expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and dear from all such claims,
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or termination
of this Lease, Lessee, at lessees sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition as when
received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted, Lessee shelf, upon Lessors request, and at Lessee's own expense, firmly affix to the
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor of the Equipment. It Lessee fails to perform duty
and promptly any of its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shall not be obligated to do so, for the
account of Lessee to prated the interest of Lessor or Lessee or both, at Lessors option. Any amount paid or expense (including reasonable attorney's fees), penalty or other liability
incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIG14T OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor. Lessor shag have the right to inspect the Equipment so all reasonable times and from time to time as Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without Lessors prior written consent. Lessor or any assignee or successor of Lessor shall have the right to transfer, sell or assign all or any portion of this Lease or the indebtedness
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL NOT
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR
BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor, Lessee agrees that it
will not, without the prior written consent of the assignee, purchaser or secured parry, (i) prepay any amounts owing under this Lease; (ii) modify or amend this Lease; or (iii) exercise
any rights which are exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the option to
purchase all, but not less than all, of the Equipment described in the Lease on the Option Dale (as specified on the first page of this Lease) upon the following terms and conditions:
(1)
Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at feast ninety (90) but not more than one hundred twenty (120) days prior to the Option Date
and (2) Lessee has paid ale Rent accruing prior to the Option Date on or before the Option Date, Failure to give such notice or to pay the Term Option Price on or before the Option
Date will render the Lessee's options to purchase nut and void. The purchase price for the Equipment on the Option Date shall be the then Fair Market Value of the Equipment which,
for purposes of the Option Date only, Lessor and Lessee agree shall be the Term Option Price (as specified on the first page of this Lease). Lessor and Lessee agree that the Term
Option Price is a reasonable prediction of the then Fair Market Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shall be payable on the
Option Date in cash or, at Lessee's option, as provided in Paragraph 119 of this Lease.
Pape 2 of 5 of Lease Agreement dated 1112IMS between HAMPTON CONSTRUC110N MANAGEMENT. UWTED (Lasses)
and 68D01 154 CLEVELAND BROTHERS EQUIPMENT CO. INC. (lesso) wNch ntludes, without Rralatlon, an kern of Equtpmanr with the tolbw6p seral numbar.
704004 -3 Rev 092004 Less 's Initials
Is
e04004.wpd ern LeasefFixed Rate ORIGINAL FOR CiTICAPLTAL
I'll
1.247875.2.0 XC:20051107070646
B. Conversion Option During Term. In the event Lessee exercises Lessees option to purchase the Equipment on the Option Date as provided in paragraph A above, Lessee may
elect to pay the Term Option Price to Lessor upon the following terms and conditions: (1) Lessee agrees to pay the Tenn Option Price in the equal oonsecubve monthly installments
for the Conversion Term as indicated on the first page of this Lease with the first such installment payable on the Option Data and each succeeding installment payable on a like date
of each month thereafter until fully paid and provided that the final installment shall be in the amount of the then remaining unpaid balance. In addition to the payment provided above,
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this Lease) payable monthly on the
unpaid principal balance; (2) Lessee agrees to give Lessor written notice of Lessee's election pursuant to this Paragraph at least ninety (90) but not more than one hundred twenty
(120) days prior to the Option Date; (3) Lessee grants to Lessor, its successors and assigns, a security interest In the Equipment complete with all present and future attachments,
accessories, replacement parts, repairs, additions, and all proceeds thereof, aft herein referred to collectively as "Collateral" to secure payment and performance of the Indebtedness
and all absolute and all contingent obligations and tiabilifies of Lessee to Lessor, or to any assignee of Lessor, (4) Lessee shall be a "debtor" and Lessor a "secured party" as those
terms are used under the Uniform Commercial Code; (5) Lessee agrees, at its own cost and expense, to do everything necessary or expedient to perfect and preserve the security
interest of Lessor granted hereunder, and (6) All of the terms and provisions of the Lease shall be and remain in full force and effect except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lessee may purchase aft, but not less than aft, of the Equipment described in the Lease at the expiration of the Term of the Lease upon
the following leans and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at least ninety (90) bul not more than
one
hundred twenty (120) days prior to the expiration of the Term of the Lease and (2) the purchase price to be paid to Lessor for such Equipment shag be the than Fair Market Value (as
defined below) of such Equipment, plus an amount equal to the Rental Payments then unpaid under the leans of the Lease, plus applicable taxes, if any, on the above sum, all payable
in rash. Failure to give such notice or to pay the end of term Option Price on or before the expiration of the Term of the Lease will render the Lessee's options to purchase null and
void. Upon such payment. Lessor will execute and deliver a big of sale conveying title to the Equipment to Lessee on an "AS IS, WHERE IS "BASES, WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The term "Fair Market Value" as used herein shall be determined on the basis of, and shall be equal in amount to, the value which the Equipment would
obtain in an arms length sale transaction between an Informed and willing buyer-user (other than a buyer currently in possession) and an informed and willing seller under no
compulsion to sell and assuming that the Equipment is their in the condition required under the terms of the Lease. If on or before sixty (60) days prior to the expiration of the Term
of
the Lease, Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of such Equipment, such value shall be determined in accordance with the foregoing
definilion by a qualified independent appraiser selected by Lessor. The appraiser shall be instructed to make such determination within a period of 45 days following appointment, but
in
no event later than 10 days prior to the expiration of the Term of the Lease, and shall promptly communicate such determination in writing to Lessor and Lessee. The appraiser's
determination of such Fair Market Value shag be conclusively binding upon both Lessor and Lessee, The expenses and fees of this appraiser shall be home by Lessee.
13, PRIME RATE: The "Prime Rate" wig mean the Prime Rate as published from time to time in the Money Rates section of The Wag Street Jaunt as the base rate on corporate
loans. if more than one Prime Rate or a range of rates is published, the Prime Rate will be highest of the published rates. In the event the Prime Rate as published in The Wag Street
Joumal ceases to exist or The Wall Street Journal ceases to publishing a Prime Rate, CifiCapital will substitute a comparable index that is outside the control of CitiCapital. In the
event
of an error by The Waft Street Joumal, the "Prime Rate" will be based upon the Prime Rate as corrected.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shag be ardided to modified accelerated cost recovery (or depreciation) deductions with respect to the Equipment, and
should, under any circumstances whatsoever, except as specifically set forth below, either the United States government or any state tax authority disallow, eliminate, reduce,
recapture, or disqualify, in whole or in part, any benefits consisting of accelerated coal recovery (or depreciation) deductions with resped to any Equipment. Lessee shag then indemnity
Lessor by payment to Lessor, upon demand, of a sum which stung be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full term of this Lease)
the same after-tax casts now and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Return") that Lessor
would have realized had there not been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalfies which may be assessed by the
governmental authority with respect to such loss or disallowance. In addition, if Lessee shag make any addition or improvement to any Equipment, and as a result thereof, Lessor is
required to include an additional amount in its taxable income, Lessee shag also pay to Lessor, upon demand, an amount which shall be equal to the amount necessary to permit Lessor
to receive (on an after-tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or improvement not been made. Lessor
and Lessee agree that the Class Life of the Equipment for federal income tax purposes is as indicated on the from side of this Equipment Schedule. Lessee shall not be obligated to pay
any sums required by this section with respect to any Equipment in the event the cause of the We of the deductions results So* from one or more of the following events: (1) a failure
of Lessor to timely claim modified accelerated cost recovery (or depredation) deductions for the Equipment in Lessors tax return, other than a failure resulting from the Lessors
determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cost recovery (or depreciation) deductions, or (2) a failure of Lessor
to have sufficient gross income to benefit from accelerated cost recovery (or depredation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any federal or
state tax authority against the Lessor with respect to the disallowarroe, of cost recovery (or depreciation) deductions.
All amounts payable by Lessee pursuant to this section shall be payable directly to Lessor. All the indemnities contained in this section shalt continue in full force and eHed
notwithstanding the expiration or other termination of the Lease in whole or in part and are expressly made for the benefit of, and shall be enforceable by, Lessor. Lessees obligations
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under some other agreement by another party.
The obligations of Lessee under this section are expressly made for the benefit of, and small been forceable by, Lessor without necessity of declaring the Lease in default and Lessor
may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have.
1 S. DEFAULT BY LESSEE: It Lessee at any time defaults in any of its obligations to Lessor, such default shall be considered an abandonment of all options herein and all options
herein shall immediately expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease are trot assignable and that no modification of the provisions hereof shall be binding unless in
writing and signed by an officer of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An evert of default shell occur if: (a) Lessee fails to pay when due any amount owed by ii to Lessor or any affiliate
(irrctuding, without limitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any
amount
owed by t to Lessor or any afn!iate (including, without )imitation, any direct or indirect parent, subsidiary or sister entity), successor; (b) Lessee breaches any warranty or provision
hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and any affiftate (including, without limitation, any direct or indirect
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors; (d) any property of Lessee is attached; (e) a
petition
in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future statute, taw or
regulation; (f) Lessee or its shareholders lake any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or for any substantial pan of
its
property; (h) if there shall occur an (i) appropriation, (ii) confiscation, (ifi) retention, or (iv) seizure of cordrol, custody of possession of the Equipment by any governmental authority
including, without limitation, any municipal, state, federal or other governmental entity or any governmental agency or instrumentality (all such entities, agencies and instrumentalities
shalt hereinafter be collectively referred to as "Governmental Authority"); (i) if anyone in the control, custody or possession of the Equipment or the Lessee is accused or alleged or
charged (whether or to subsequently arraigned, indicted or convicted) by any Governmental Authority to have used the Equipment in connection with the commission of any crime
(other than a misdemeanor moving violation); (j) there shall be a material adverse charge in any of the: (i) condition (financial or otherwise), business, performance, prospects,
operations or properties of the Lessee (ii) legality, validity or enforceability of this Lease, (ii) perfection or priority of the lien granted in favor of to Lessor pursuant to this
Lease, (iv)
ability of the Lessee to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (k) there shall be
a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee under this Lease: or (1) except for the security interest, lien or reservation of title in favor of Lessor
or as
otherwise granted herein, there shalt be any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor_
Upon the occurrence of an evert of default Lessee shall be in default hereunder and Lessor may, at As option, with or without notice to Lessee (a) declare all sums due and to become
due hereunder and an other sums then owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or instrument; (b)
declare all other debts then owing by Lessee to Lessor or any affiliate (including, without limitation, any direct or indirect parent, subsidiary or sister entily),successor orassignee
of
Lessor to be immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by Lessee of any
and all provisions of this Lease and to recover the damages for the breach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's
expense at such place as Lessor may designate which is reasonably convenient to both parties; (e) exercise one or more of the rights and remedies available to a secured party under
the Uniform Commercial Code, whether or not this transaction is subject lhereto; (1) enter, or its agents may enter, without notice or l abifily or legal process, into
Page 3 of 5 of Lease Agreement dated 11,121705 between- HAMPTON CONSTRUCTION MANAGEMENT, UM1TED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limkalion, an item of Equipment with the toWwriq seriat number
-BBD01154 Less 's Initials
704001'3 RevOW004
Ise04004.wpd tin Leaserri-il Rate
1.17 L247875.2.0 XC:20051107070646
ORIGINAL FOR CITtCAPITAL
any premises where the Equipment may be, or is believed by Lessor to be, and repossess all or any part thereof, disconnecting and separating the same from any other property and
using all force necessary and permitted by applicable law. Lessee hereby expressly waiving all further rights to possession or the Equipment after default and all claims for injuries
suffered through or loss caused by such repossession; and/or (g) apply any security deposit or other amounts held by Lessor to any indebtedness of Lessee to Lessor.
In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, holding,
preparing for sale, selling and the like, including reasonable attorneys' fees and other legal expenses, less (3) any amount actually received by Lessor from the re-tease, sale or other
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained will require Lessor to re-lease, sell
or otherwise dispose of the Equipment. No remedy of Lessor hereunder shat) be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in addition
to every other remedy. A waiver of a default shell not be a waiver of any other or a subsequent default. If allowed by law, "the reasonable fees for attorneys" retained by Lessor shall
include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Lessor in enforcing any of Lessor's rights hereunder or in the prosecution
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. AN notices to Lessee relating hereto will be considered received when delivered in
person or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lassw may sell the Equipmert without giving arty warranties
as to the Equipment Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Equipment-
18. INDEMNITY: Lessor (which term as used herein includes Lessors successors, assigns, agents, and servants) shall have no responsibility or liability to Lessee, its successors or
assigns or any other person with respect to any Liabilities (as "Liabilities" is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and expense,
to indemnify, defend, protect and save Lessor and keep it harndess from and against, any and all Liabilities. The term "Liabilities" as used herein shalt include any and aft liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or not
any transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
and in any way relating to or arising out of this Lease or the selection, manufacture, purchase, acceptance, ownership, delivery, non-&4iivery, lease, possession, use, operation,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, return or other disposition of the Equipment (including without limitation, (i) claims as a
result of
latent or patent defeds, whether or not discoverable by Lessor or Lessee, (u) claims for trademark, paterd or copyright infringement, and (iii) tort dams of any kind (whether based on
Lessors alleged negligence or otherwise), Including claims for injury or damage to property, or injury or death to any person (including Lessee's employees) or, for any claim of liability
hereby indemnified against. The indemnities arising under this paragraph shall survive payment of all otherobligations under this Lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT: (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION,IS NECESSARY TO PERFECT ANDIOR GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESSEE TO
LESSOR: AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE
PROCEEDS OF THE SALE, !EASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessor's request such documents,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest in Equipment and Lessors rights hereunder,
including such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any officer, employee or designee of Lessor or
any assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or designee of
Lessor or any assignee of Lessor (or any designee of such assignee) to fide financing statements covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint verdure, or other entity (herein
collectively. the "Entity), including, without limiting the generality of the foregoing. Lessors parent or any affiliate or any subsidiary of Lessor and any credit reporting agency or
other
entity whether or not related to Lessor for any purpose, information about Lessees accouns, credit application and credit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessee's accounts, credit experience and account information regarding the Lessee. This shall be continuing authorization for all
present and future disclosures of Lessee's account information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to release
such information to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor through printed checks ("Debit
Transactions") drawn pursuant to this authorization upon Lessees checking account, using lessees checking account number, bank routing code and other information which Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to initiate Debit Transactions from Lessees checking account in the amount necessaryto pay the rental
payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by Lessor, plus
a fee of ten dollars ($10.00) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable under this
provision shall be limited and/or restricted in accordance with applicable law. Lessor may from tine to time increase or decrease the Debit Transaction fee upon prior written notice
addressed to Lessees bast known address as shown on the records of Lessor and such increase or decrease shag be effective as stated in the written notice. Unless prohibited by
applicable law, Lessees continued use of Debit Transactions after the effective data specified in such notice shall conclusively establish Lessees agreement to pay the new Debit
Transaction fee stated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check drawn in
accordance with this authorization. Unfit cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations hereunder
or
under any other present or future agreement with or which Is held by Lessor. This authorization may be canceled at any time by Lessee giving at least three (3) business days prior
written notice to Lessee's bank and Lessor. Payment by Debit Transactions is not required by Lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes: however, if for
urppoosses of perfection, this contract is interpreted by any court as a lease intended as security, Lessee grants to Lessor, its affiliates (including, without
Pmitat"ton, any direct or indirect parent, subsidiary or sister entity), successors and assigns a security interest in the Equipment to. secure the payment and
performance of all debts and all liabilities of Lessee to Lessor o every kind and character, whether now existing or hereafter arising and whether direct,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirecilparent, subsidia or
sister entity), successors or assigns of Lessor, now existing or hereafter arising, whether under this Lease or any otheragreement, and whether due direct or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redelivery of the Equipment to Lessee. Upon
any assignment of this Lease by Lessor, the assignee shall then be deemed the Lessor for purposes of this provision. All payments made by Lessee to Lessor
with reference to this Lease shag be applied first to any indebtedness which is not secured, then to late charges then to any other fees or other amounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to puaase money debt. This provision controls
over any conflicting provision or language in this Lease or in any other agreement between Lessor and Lessee unless the parties mutually agree in writing in a
subsequent agreement to override this provision. {8l Any provisions hereof contrary to,. prohibited by or invalid under applicable laws or regulations shall be
inapplicable and deemed omitted herefrom, but sRha i not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to herein
constitute the entire agreement of the parties hereto. No oral aggreement, guaranty, promise, condition, representation or warranty shall be binding. All prior
conversations, agreement or representations related hereto Bna/or to the Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the patty to be bound. (D) The only copy of this Lease that will constitute "chattel paper" for
purposes of the Uniform Commercial Code is the onglnat of this lease marked 'Original for CitiCapital.` E ANY ASSIGMENT OR TRANSFER OF THIS
LEASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITAL COMMERCIAL LEASING CORPORATION OR ITS AFFILIATES
("CITICAPITAL") VIOLATES THE RIGHTS OF CITICAPITAL.
23. RENEWAL: Unless Lessee notifies Lessor in writing at least ninety (90) days prior to the expiration of the Tenn of Lessees intention to return the Equipment or to exercise any
option to purchase, or Lessor notifies Lessee in writing at least runty (90) days prior to the expiration at the Term of Lessors intention to terminate this Lease, this Lease will
automatically renew and continue on a month to month basis following the initial Term ("Renewal Term`) until such lime as either Lessor or Lessee provides the other parry with at
least ninety (90) days prior written notice of that party's intention to temminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice period.
All of the terms and provisions of this Lease shall govern during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shall automatically
expire on the expiration of the Term and shall be inapplicable to any Renewal Term.
Pape 4 of 5 of Lease AarsemeM dated 11121/05 between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO., INC. ! (Lessor) wtlldh inUWas, nnthout limitation, an hem of Epulpment vrith irle following serial number.
B121D01154.__ _ Les e's initials
704004 3 Revo811Ra ORIGINAL FOR CITICAPITAL
Iae040W.vvpd Lift LeaserF fixed Rat Rate
1.17 1.247875.2.0 XC:20051107070646
Z4. RETURN OF EQUIPMENT: N Lessee does not exercise, or is precluded from exercising, the option to purchase the Equipmenl at the expiration of the Term or any Renewal
Term of this Lease. Lessee shall, at Lessee's sole cost and expense, return an, but not less than all, of the Equipment to Lessor immediately upon the expiration of the Tern or any
Renewal Term of this Lease pursuant to the terms and conditions contained in Lessor's Standard Return Conditions for equipment similar to the Equipment subject to this Lease (a
copy of which has been delivered to Lessee in conjunction with this Lease). If Lessee does not surrender the Equipment to Lessor as herein provided, Lessee will be in default of this
Lease as to such Equipment, and Lessee shag pay Lessor. as liquidated damages and not as penally, an amount equal to one hundred ten percent (110%) of the Monthly Rental
Payment applicable to such Equipment. Such payment shall comaencti with the month immediately following the end of the Term or any Renewal Term and shall continue thereafter
monthly until the Equipment is returned to Lessor. Lessee agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual
value exposure and other losses, which are incapable of an exact determination, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the end of
the Tenn or any Renewal Term. Notwithstanding the foregoing, Lessor shall have the right to obtain immediate possession of the Equipment at any firma after the end of the Term or
any Renewal Term for such Equipment.
25. LOCATION OF LESSEE: (a) It Lessee is a corporation, lmiled liability company, limited partnership or other registered organization, its state of organ)zation is in the state set
forth on the last page of this Lease: (b) it Lessee is an individual, hisrher principal place of residence is at the address set forth on the last page of this Lease; (c) if Lessee Is
an
organization, its place of business or it it has more than one place of business. its chief executive office is located at the address set forth on the last page of this Lease. Lessee
agrees that it will not, without the prior written consent of Lessor, change its slate of organization if it is a corporation, limited liability company, limited partnership or other
registered
organization or the location of As chief executive office or its place of business if A is an organization. If Lessee is an individual, Lessee must Miry Lessor in writing of a change
in
his/her princi pal place of residence 30 days prior to such change.
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and )resented to Lessee's financial institution for payment from the account
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessee's financial institution for
payment from the account referenced on Lessees check.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and record Information
that identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open an
account or establish a relationship, we will ask for your name, street address, date of birth, and Identification number, such as a social security
number or taxpayer identification number. For businesses, we will ask for the business name, street address and tax Identification number.
Federal law requires us to obtain this Information. We may also ask to see your driver's license or other identifying documents that will allow
us to Identify you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 3118105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WITH ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO., INC.
(h wrpmanon or limited Mbft Comp". up sulk dUod party ign and caw her or
his title. If pried partneM:p, a general panner most sign ehn- Mar We. If sde
Proprietorship. than sob p,atrielor must sign and shay MN into. If individual, then
Inevidual should sign and show We as Individually.-)
Title _ Pies f - er1-r-
Date: 112IMS Federal Tax 10 # or SSN: r
By - ---
Title _ TWI L t ?' °-' -
Date: 11121105 Federal Tax ID #:
Date of Birth:
(Individual/Sole Proprietor)
State of Organization _ PA
Page 5 of 5 of Lease Agreement dated 112t/as between HAMPTON CONSTRUCTION MANAGEMENT UMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO-, INC. _ (Lassa) which indrdes, without limitation, an ham of Equipment with the logowing serial number.
BBD01154
704004 -3 Rev Ot12004
i Ise04OD4 wpd Lift Lease/Fixed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247875.2.0 XC:20051107070646
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
citicapital
Amok
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
11121105 3118!05
Address: 3607 HARTZDALE DR Guarantor(s): Date of Guaranty:
HARRY 1. MORRIS JR.
CAMP HILL PA 17055
E uipment:
OADER 963C SIN BBDOII54
CK
R
j Monthly Rental:
A
L
CATERPILLAR T
(1
2,969.05
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the following
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITiCAPITAL COMMERCIAL LEASING CORPORATION and its successors and assigns;
(c) "Lessee' will mean and refer to the lessee identified above whose principal place of business is located at the
address indicated above:
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, accessories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or other
documents, instruments or certificates executed or delivered in connection with the Lease:
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Documents, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments and all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Value (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same condition as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then present
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the normal use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Paragraph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from their
respective due dates at the rate of 2,00 %. Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts payable
under the Lease as of that date.
Page 1 of 3 of ?Lviffbcwghum 1112110t)TPIRENT C6 1FIC- between
(Lessee) and
with the following serial number 86001154
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessor) which includes, without limitation, an item of Equipment
701306
1.00
1.247875.2.0 XC:20051107070646
CmCAPfrAt Is a service mark of Citicorp. A member of c111(JroupJ
2. Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's rights and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
Assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Assignor's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjust any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or
consent to the return of the Collateral, or modify the terns of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents, Revenues or Equipment: (c) to deliver to Assignee all original
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of Its
obligations under any of the Documents.
3. Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution of this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any interest in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoever; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addresses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties to the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipment has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rights of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental or other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in cash or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor, the Equipment was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, and was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor has no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a default
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will continue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documents and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action which may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agreement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligations with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Documents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the date of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid rentals or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equipment with
the following serial number 88DOl154
701306
1.00
1.247875.2.0 XC:20051107070646
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equipment,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any kind in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any kind in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to secure
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise agreed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assignor to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be held by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreement with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event of any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value calculated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereunder,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Documents
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expenses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligated to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiver of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreement will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptance of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rights
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assignee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHETHER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE WILL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVISION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR THE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR ANY
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNOR'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11r21105
ASSIGNOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By:
Title:
Page 3 of 3 of Assignment of Lease dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equipment with
the following serial number BBD01154
701306
1.00
1.2478752.0 XC:20051107070646
WHEEL/CRAWLER LOADER STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terns and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnuakAllowed Hours"), Lessee agrees to pay additional rental equa toTo-t?onthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined b the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly fumish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: (KOO
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturers minimum recommended specifications while operated
under full load, unless otherwise specified herein-
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum- There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion property
removed or treated. All material (e-g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that tyke as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs and will have at least 50% of tire wear remaining in usable
condition.
C. Undercarriage. Track components, including rails, pads, sprockets, idlers and undercarriage shall have
at least 50% wear life remaining in accordance to measurements with the manufacturers guidelines.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturers minimum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including but not limited to,
differentials, planetaries, drop boxes/transfer cases and wet brake systems will be in good condition and operate
quietly without vibrations or leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold machine safely during nonnal operation. No drums or other braking
components will be damaged or cracked.
H. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pins. Boom hoist times and steering
times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal specifications.
L Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
]. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/mspection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT. LIMTED
f J? ?y t
gy_ '} mot'' _.?/ ./°
Title: PSL1.---4`
LESSOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By. a
Title: (1 t ??'
citicapital?
DELIVERY AND ACCEPTANCE CERTIFICATE
To: (" CitiCapital
Reference is made to the contract dated
(the "Contract") between the
undersigned and _ CLEVELAND BROTHERS EQUIPMENT CO. INC. (dleraessor) -
(the "Dealer") for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
The Property was delivered to undersigned at the location designated in the Contract on 3118/05
_ (Data)
All installation and other work necessary for the proper use of the Property, if any has been completed.
The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. CitiCapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 255.362.74 and the present unpaid balance or total rentals is $ 255,362.74
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CitiCapital HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Dated t?+21roS
625024 Rev. 7-92
Dealer Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp.
Buyer
(Name of individual(s), corporation or partnership.)
By (tf corporation authorized officer must sign, and s le line. IT paMershlP, a
gen 1 partner mu sign. I er(s). show which.
Title ??S
Co-Buyer _
By -
(If co-buyer, co-partner or co-Officer, sign here and show Which.)
Title --
A member of citigroupT
1.247875.2.0 XC:20051107070646
Exhibit C
Lift Lease Agreement
Name and Address of Lessee ("Lessee")
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DR
CAMP HILL
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR HYDRAULIC EXCAVATOR 318CL SIN GPA00300
PA 17111-2525
LESSOR'S COST
Equipment Total Cost $ 139'1
Shipping & Handling Cost $
installation Cost $
Other (Specify)
- - - - -- - 139,
LOCRR OF LOKI KENT: CAMP HILL PA 17011
H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
H
A TERM: 66 Months following the first day of the month PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LESSOR.
after delivery INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMENT.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
06 (MO/YR).
THE FIRST DAY OF JANUARY ,
0 RENTAL(S) PLUS APPLICABLE TAXES. _
Each installment in the groups below is payable on a consecutive monthly b
1 advance payment(s) of $1,927.02 on 12/0112005
C. INTERIM RENTAL: Per day rental for the period from delivery to 65 installment(s) of $1,927.02 commencing on 01/0112006
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE:
E_ RENTAL PAYMENT:
F. SECURITY DEPOSIT: $
100.00
66 Payments of $ 1,927.02
PLUS APPLICABLE TAXES
0.00
G. 5 MACRS Class Life of Equipment
The Termination Value Table attached to this Lease is a part of
and incorporated into the terms of this lease.
TERM OPTION: (if left blank or marked "NA", Paragraph(s) 11A and/or 118 are
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 52,248.40
Conversion Term 12 _ Months
Conversion Payment $ 4.354.03
Conversion Rate: (check one and initial)
Fixed % Paragraph 13 of this Lease)
® Floating A-00% plus the Prime rote (as defined In
Option Date:
Option Price $ ---
Conversion Term - Months
Conversion Payment $ ----
Conversion Rate: (check one and initial)
? Fixed - %
? Floating - - % phis the Prime m. I.. defined in
Paragraph 13 of this Lease)
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terns and provisions of this Lease Agreement ("thls Lease-) and the obligations and liabilities of Lessee under this Lease are effective on the date of
Lessees acceptance of this Lease ("Effective Date"), even though the Term and Lessees obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under and subject to the terms and provisions hereof until the end of the Term specified
above ("Tenn"), the personal property described above and on any supplemental schedule(s) identified as constituting a part of this lease (herein, with all present and future
attachments, accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as "Equipment"). This Lease is for the Term commencing on the date the
Equipment is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments (including advance
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: AN Rental Payments are payable without notice or demand. All amounts payable under this Lease to Lessor are payable at
Lessors address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided herein. Lessee's obligation to
pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under all circumstances, regardless of any set-off.
counterclaim, recoupment, defense or other claim whatsoever. Any Security Deposit is held as security for Lassoes obligations and will be refunded in full, without interest, upon
payment in full of those obligations.
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee) and
Page 1 of 5 d tea" Agreement dated ++mros between
CLEVELAND BROTHERS EQUIPMENT CO_, INC_ (Lessor) which includes, without limitation, an item of Equipment writs the "owing sepal number.
GPA00300 Lesse ' Initials
704004 -3 RevGM004 ORIGINAL FOR CITICAPITAL
1se04004.wpd Lift L ease/F ed Rate
1.17 1.247902.2.0 XC:20051107071451 ,.I?.
CITICAPITAL is a service mark of Citicorp. Amember of clttgroupl
PA 17011
.w?
citicapital?
Name and Address of Lessor ("Lessor")
CLEVELAND BROTHERS EQUIPMENT CO- INC.
5300 PAXTON ST
HARRISBURG
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due, Lessee agrees to pay Lessor a delinquency charge
calculated thereat at the rate of 1 112% per month for the period of delinquency or, at Lessors option, 5% of such Rental Paymerd or other sum due under this Lease, provided that
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally roiled. Lessee agrees to reimburse
Lessor immediately upon demand for any amount charged to Lessor by any depositary institution because a check, draft or other order made or drawn by or for the benefit of Lessee is
returned unpaid for any reason and, if allowed by lave, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the amount
of
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
S. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction for lax
or other purposes. Lessee acknowledges and agrees that: the Equipment is of a size, design, rapacity and manufacture selected by Lessee; Lessor is not the manufacturer of the
Equipment or the manufacturers agent; LESSEE LEASES THE EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION. QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY,
FITNESS OR SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED-
Lessee will not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or make any settlement with the manufacturer or seller
to Lessor of the Equipment (both herein called "Seller") without Lessors prior written consent; and the seledion, servicing and maintaining of the Equipment shall be entirely at Lessee's
risk and expense. Lessee agrees. at is awn cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications of the Seller and with all of the
terms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted try law with rasped to the
Equipment; (d) to maintain the Equipment in good operating condition, repair and appearance: and (e) to furnish Lessor promptly with such financial statements and other information as
Lessor may reasonably request from time to time.
S. TERMINATION VALUE: "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have executed a
Termination Value Table with respect to this Lease, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Temlination Value Table with resped to this Lease, the Termination Value as of any date
shall mean an amount equal to the total of all accrued and unpaid Rental Payments and all other amounts then due and remaining unpaid plus the greater d: (a) the then Fair Market
Value (as determined In accordance with Paragraph 12 of this Lease) of the Equipment as of that date in the sarne conrifion as when received by Lessee, reasonable wear and tear
from the normal use thereof alone excepted, as well as in the condition required upon its return delarmined in accordance with this Lease, and (b) an amount equal to all accrued and
unpaid Rental Payments and all other amounts then due and remaining unpaid plus the then present worth of all unaccrued Rental Payments plus either (I) the Purchase Option Price,
or (ii) t no purchase option is offered, the Fair Markel Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when received
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease.
Present wash shall be determined by discounting such unaccrued Rental Payments from their respective due dates at the Rate of 2.00 %.
7. INSURANCE: Lessee shall bear all risk of Was of, damage to, or destruction of the Equipment from the date of its delivery until its return. If, for any reason, any of the
Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall (a) Immediately and fully Inform Lessor with regard thereto, and (b) promptly pay to Lessor
the Termination Value calculated as of the date of payment thereof. Any amounts actually received by Lessor from Insurance or otherwise on Lessee's behalf for such
lass or damage shall be applied to reduce Lessee's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction of the
Equipment or the total or partial loss of use or possession thereof to Lessee, shall not release or relieve Lasses from its obligations and liabilities under this Lease.
Lessee agrees to procure and maintain at all times on and after the Effective Data such Iiability, physical damage and other Insurance as Lessor may require from time to
time. Lessee agrees that all such insurance shall be in form and amount and with Insurers satistactory to Lessor, and that Lessee will deliver promptly to Lessor
certificates or, upon request, policies satisfactory to Lessor evidencing such Insurance. All liability policies shall name Lessor as an additional Insured, and all physical
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provide that Lessor's Interest
therein shalt not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain the Insurer's agreement to give Lessor at least 30 days
prior written notice before cancellation or any material change in the policy shall be effective as to Lessor, whether such cancellation or change Is at the direction of
Lessee or the insurer.
8. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other governmental charges (including any penalties and interest, and any fees for titles or registration)
levied or assessed against Lessee. Lessor or the Equipment, upon or with respect to the lease or the purchase, use, operation, leasing, ownership, value, return or other disposition
of
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Lessee in writing otherwise,
Lessor will file gill returns and remit all personal property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor for all such personal property taxes immediately upon
receipt of Lessors invoice including without limitation such taxes assessed or arising during the term of this Lease but remitted by Lessor after the termination of this Lease. At Lessor's
option, Lessee agrees to remit, along with Lessee's rental payments under this Lease. an amount equal to a percentage of Lessors reasonable estimate of the personal property taxes
that will be assessable against the Equipment during the suooeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's obligations under thus
paragraph. Lessee will remain obligated in the event that such amounts are insuffident to fully reimburse Lessor for the actual amount of such taxes and any surplus will be either
credited to Lessee's other obligations to Lessor or returned to Lessee. If requested, Lessee agrees to file promptly on behalf of Lessor all requested tax returns and reports concerning
the Equipment in torn satisfactory to Lessor, with all appropriate governmental agencies and to mail a copy thereof to Lessor concurrently with the riling thereof. Lessee further agrees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessments and
other governmental charges. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment well at an times remain in Lessor and Lessee will at all times, at its own cost and
expense, proted and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and dear from all such claims,
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or termination
of this Lease, Lessee, at Lessee's sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition as when
received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Lessee shall, upon Lessors request, and at Lessees own expense, firmly affix to the
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor of the Equipment. It Lessee falls to perform duly
and promptly any of its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shall not be obligated to do so, for the
account of Lessee to proted the interest of Lessor or Lessee or both, at Lessors option. Any amount paid or expense (including reasonable attorneys fees), penalty or other liability
incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor. Lessor shall have the right to inspect the Equipment at all reasonable times and from time to time as Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without Lessors prier written consent. Lessor or any assignee or successor of Lessor shall have the right to transfer, sell or assign all or any portion of this Lease or the indebtedness
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL NOT
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOLIPMENT. ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR
BREACH ? vOF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor. Lessee agrees that it
will not, without the prior written consent of the assignee, purchaser or secured party, n prepay any amounts owing under this Lease; (hi) modify or amend this Lease; or Ci) exercise
any rights which are exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the option to
purchase all, but not less than all, of the Equipment described in the Lease on the Option Date (as specified on the first page of this Lease) upon the following terms and conditions:
(1)
Lessee gives Lessor written notice of Lessee's invent to exercise this option to purchase at least ninety (90) but not more than one hundred twenty (120) days prior to the Option Date
and (2) Lessee has paid all Rent accruing prior to the Option Date on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before the Option
Date will render the Lessee's options to purchase nun and void. The purchase price for the Equipment on the Option Dace shall be the then Fair Market Value of the Equipment which,
for purposes of the Option Date only, Lessor and Lessee agree shall be the Term Option Price (as specified on the first page of this Lease). Lessor and Lessee agree that the Term
Option Price is a reasonable prediction of the then Fair Market Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shall be payable on the
Option Date in cash or, at Lessee's option, as provided in Paragraph 11 B of this Lease.
Page 2 of 5 or Lease Apreanxnl dalsd 11/21105 between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED (Lessee)
and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) wMtrl VKNdes, wfthoul IhnftlxM, an item or Egdpmerd with the foAowkV serial number
GPA00300 Les*e's Initials
704004 -3 Rev 0872004
Ise04004.wpd Lim LaasarFwed Rate ORIGINAL FOR CITICAPITAL
117 1.247902.2.0 XC:20051107071451
B. Conversion Option During Term. In the event Lessee exercises Lessee's option to purchase the Equipment on the Option Date as provided in paragraph A above, Lessee may
elect to pay the Tenn Option Price to Lessor upon the following terms and conditions: (1) Lessee agrees to pay the Term Option Price in the equal consecutive monthly installments
for the Conversion Term as indicated on the first page of this Lease with the first such instalment payable on the Option Date and each succeeding installment payable on a like date
of each month thereafter until fully paid and provided that the final installment shall be in the amount of the then remaining unpaid balance. In addition to the payment provided above.
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this Lease) payable monthly on the
unpaid principal balance; (2) Lessee agrees to give Lessor written notice of Lessee's election pursuart to this Paragraph at least ninety (90) but riot more than one hundred twenty
(120) days prior to the Option Date; (3) Lessee grants to Lessor, its successors and assigns, a security interest in the Equipment complete with all present and future attachments,
accessories. replacement parts, repairs, additions, and all proceeds thereof, all herein refereed to collectively as "Collateral" to secure payment and pertormence of the Indebtedness
and all absolute and all contingent obligations and liabilities of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor and Lessor a "seared party" as those
terms are used under the Uniform Commercial Code; (5) Lessee agrees, at its own cost and expense, to do everything necessary or expedient to perfect and preserve the security
interest of Lessor granted hereunder, and (6) All of the terms and provisions of the Lease shag be and remain in full tome and effect except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lessee may purchase all, but not less than all, of the Equ(pmert described in the Lease at the expiration of the Tenn of the Lease upon
the following terms and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at (Past ninety (90) but not more than
one
hundred twenty (120) days prior to the expiration of the Term of the Lease and (2) the purchase price to be paid to Lessor for such Equipment shelf be the then Fair Markel Value (as
defined below) of such Equipment, plus an amount equal to the Rental Payments then unpaid under the terms of the Lease, plus applicable taxes, 0 any. on the above sum, all payable
in cash. Failure to give such notice or to pay the end of term Option Price on or before the expiration of the Tenn of the Lease will render the Lessee's options to purchase null and
void. Upon such payment. Lessor wig execute and deliver a bill d sale conveying title to the Equipment to Lessee on an -AS IS, WHERE IS -BASIS, WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The term "Fair Market Value' as used herein shag be determined on the basis of, and shag be equal in amount to, (he value which the Equipment would
obtain in an anus length sale transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an Wormed and willing seller under no
compulsion to sell and assuming that the Equipment is then in the condition required under the terms of the Lease. If on or before sixty (60) days prior to the expiration of the Term
of
the Lease. Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of such Equipment, such value shall be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by Lessor. The appraiser shag be instructed to make such determination within a period of 45 days following appointment, but
in
no event later than 10 days prior to the expiration of the Term of the Lease, and shall promptly communicate such delemination in writing to Lessor and Lessee. The appraisers
determination of such Fair Market Value shall be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be bome by Lessee.
13. PRIME RATE: The "Prime Rate" will mean the Prime Rate as published from time to time in the Money Rates section of The Wad Street Journal as the base rate on corporate
loans. If more than one Prime Rate or a range of rates is published, the Prime Rate will be highest of the published rates- In the event the Prime Rate as published in The Walt Street
Journal ceases to exist or The Watt Street Journal ceases to publishing a Prime Rate, CiliCapital will substitute a comparable index that is outside the control of CitiCapital. In the
event
of an error by The Waft Street Joumal, the "Prime Rate" will be based upon the Prime Rate as corrected.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shag be entitled to modified accelerated cost recovery (or depreciation) deductions with respect to the EquipmenL and
should, under any circumstances whatsoever, except as specifically set forth below, either the United States government or any state tax authority disallow, eliminate, reduce,
recapture, or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (or depreciation) deductions with respect to any Equipment. Lessee shall then indemnify
Lessor by payment to Lessor, upon demand, of a sum which shat) be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full tern of this Lease)
the same after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions cdxtemptated by this Lease (referred to hereafter as "Economic Return") that Lessor
would have realized had there net been a loss or disallowance of such berhefts, together with. an an after-tax bass, arty interest or penalties which may be assessed by the
governmental authority with respect to such loss or disallowance. In addition, if Lessee shag make any addition or improvement to any Equipment, and as a result thereof, Lessor is
required to include an additional amount in its taxable income, Lessee shag also pay to Lessor, upon demand, an amount which shall be equal to the amount necessary to permit Lessor
to receive (on an after-tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or Improvement not been made. Lessor
and Lessee agree that the Class Life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule. Lessee shag not be obligated to pay
any sums required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from one or more of the following events: (1) a failure
of Lessor to timely claim modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lessor's tax return, other than a failure resulting from the Lessors
determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cost recovery (or depredation) deductions, or (2) a failure of Lessor
to have suffident gross income to benefit from accelerated cost recovery (or depredation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any federal or
state tax authority against the Lessor with respect to the disallowance of cost recovery (or depredation) deductions.
All amounts payable by Lessee pursuant to this section shell be payable directly to Lessor. AM the indemnities contained in this section shag continue in full force and effect
notwithstanding the expiration or other termination of the Lease In whole or in part and are expressly made for the benefit of, and shall be enforceable by, Lessor. Lessee's obligations
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under some other agreement by another party.
The obligations of Lessee under this section are expressly made for the benefit of. and shall been forceable by, Lessor without necessity of declaring the Lease in default and Lessor
may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have.
15. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations to Lessor, such default shag be considered an abandonment of all options herein and all options
herein shall immediately expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: It is agreed that Lessees rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unless in
writing and signed by an officer of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shall occur if. (a) Lessee fails to pay when due any amount owed by it to Lessor or any affiliate
(lrecluding, without limitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee faits to pay when due any
amount
owed by lt to Lessor or any affiliate (inducting, without limitation, any direct or indirect parent, subsidiary or sister entity), successor, (b) Lessee breaches any warranty or provision
hereof or under any ether document, agreement or instrument between Lessor and Lessee or between Lessee and any affiliate (including, without limitation, any direct or indirect
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a gang concern, becomes insolvent, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors'. (d) any property of Lessee is attached; (e)
a petition
in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future statute, law or
regulation; (f) Lessee or its shareholders take any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or for any substantial part of
its
property: (h) if there shag occur an (i) appropriation, (ii) confiscation, (iii) retention, or (iv) seizure of control, custody or possession of the Equipment by any governmental authority
including, without limitation, any municipal, state, federal or other governmental entity or any governmental agency or instrumentality (all such entities, agencies and instrumentalities
shall hereinafter be collectively referred to as "Govemmental Authority"); (i) if anyone in the control, custody or possession of the Equipment or the Lessee is accused or alleged or
charged (whether or not subsequently arraigned, indicted or convicted) by any Govemmental Authority to have used the Equipment in connection with the commission of any crime
(other than a misdemeanor moving violation); G) there shall be a material adverse change in any of the: (i) condition (financial or otherwise), business, performance, prospects,
operations or properties of the Lessee (ii) legality, validity or enforceability of this Lease, (b) perfection or priority of the fien granted in favor of to Lessor pursuant to this
Lease, (iv)
ability of the Lessee to repay the indebledness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired: (k) there shall be
a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee under this Lease; or p) except for the security interest, lien or reservation of title in favor of Lessor
or as
otherwise granted herein, there shag be any lien, claim or encumbrance on any of the Equipment searing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee shag be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare all sums due and to become
due hereunder and all other sums then owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or instrument; (b)
declare an other debts then owing by Lessee to Lessor or any affiliate (including, without imitation, any direct or intSred parent, subsidiary or sister ertity),suocessor or assignee
of
Lessor to be immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by Lessee of any
and all provisions of this Lease and to recover the damages for the !reach thereof; (d) require Lessee to assemble the Equipment and deriver same forthwith to Lessor at Lessees
expense at such pace as Lessor may designate which is reasonably convenient to bah parties; (e) exercise one or more of the rights and remedies available to a seared party under
the Uniform Commercial Code, whether or not this transaction is subject thereto; (f) enter, or its agents may enter, without notice or liability or legal process, into
Palle 3 of 5 of Lease Agraemmt dared /1!21105 HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
betwe (Lescea) and
_ CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) wNch induces, without rmdatim, an item of Equipment mill the following serial number.
GPA00300 Les ee's Initials
704004'3 Rev08r2004
Ise04004.wpd Lift Leasel%i d Rate
1.17 ORIGINAL FOR CITICAPITAL 1.247902.2.0 XC20051107071451
any premises where the Equipment may be, or is believed by Lessor to be. and repossess all or any part thereof, disconnecting and separating the same from any other property and
using all force necessary and permitted by applicable law, Lessee hereby expressly waiving all further rights to possession of the Equipment after default and all claims for injuries
suffered through or loss caused by such repossession; and/or (g) apply any security deposit or other amounts held by Lessor to any indebtedness of Lessee to Lessor,
In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, holding,
preparing for sale, selling and the like, including reasonable attorneys' fees and other legal expenses, less (3) any amount actually received by Lessor from the re-tease, sate or other
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained will require Lessor to release, sell
or otherwise dispose of the Equipment. No remedy of Lessor hereunder shag be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in addition
to every other remedy. A waiver of a default shag not be a waiver of any other or a subsequent default. It allowed by law, 'the reasonable fees for attorneys" retained by lessor stall
include the amount of any flat tee, retainer, contingent fee or the hourly charges of any attorney retained by Lessor in enforcing any of Lessor's rights hereunder or in the prosecution
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. All notices to Lessee relating hereto wig be considered received when delivered in
person or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lessor may sell the Equipment without giving any warranties
as to the Equipment. Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the commercial
reasonableness of any sate of the Equipment.
18. INDEMNITY: Lessor (which term as used herein includes Lessors successors, assigns, agents, and servants) shall have no responsibility or liability to Lessee, its successors or
assigns or any otter person with respect to any Liabilities (as "Llabililles" is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and expense,
to indemnify, defend, protect and save Lessor and keep it harmless from and against, any and all Liabilities, The term "Usbililies" as used herein shag include any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or not
any transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
and in any way relating to or arising out of this Lease or the selection, manufacture, purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use, operation,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, return or other disposition o(the Equipment (inducting without limitation, () claims as a result
of
latent or patent defects, whether or not discoverable by Lessor or Lessee. (o) claims for trademark, patent or copyright infringement, and (iii) tort dams of any kind (whether based
on
Lessor's alleged negligence or otherwise), including claims for injury or damage to property, or injury or death to any person (including Lessee's employees) or, for any claim or liability
hereby indemnified against, The indemnities arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEES OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION,IS NECESSARY TO PERFECT AND/OR GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESSEE TO
LESSOR; AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME 1S A DEFAULT HEREUNDER). This power is coupled with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessor's request, such documents,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest in Equipment and Lessors rights hereunder,
including such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any officer, employee or designee of Lessor or
any assignee c (Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or designee of
Lessor or any assignee of Lessor (or any designee of such assignee) to file financing statements covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint venture, or other entity (herein
collectively, the "Entity'), including, without limiting the generality of the foregoing, Lessor's parent or any affiliate or any subsidiary of Lessor and any credit reporting agency
or other
entity whether or not related to Lessor for any purpose, information about Lessee's accounts, credit application and coedit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessee's accounts, credit experience and account information regarding the Lessee. This shall be continuing authorization for all
present and future disclosures of Lessee's account information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to release
such lnformauoo to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor through printed checks ("Debit
Transactions") drawn pursuant to this authorization upon Lessee's checking account, using Lessee's cocking account number, bank routing code and other information which Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to initiate Debit Transactions from Lessee's checking account in the amount necessary to pay the rental
payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by Lessor, plus
a fee of ten dollars ($10.00) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable under this
provision shalt be limited andfor restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior written notice
addressed to Lessee's last known address as shown on the records of Lessor and such increase or decrease shall be effective as stated in the written notice. Unless prohibited by
applicable law. Lessee's continued use of Debit Transactions after the effective data specified in such notice stall conclusively establish Lessee's agreement to pay the new Debit
Transaction fee stated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check drawn in
accordance with this authorization. Until cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations hereunder
or
under any other present or future agreement with or which is held by Lessor. This authorization may be canceled at any time by Lessee giving at least three (3) business days prior
written notice to Lessee's bank and Lessor_ Payment by Debit Transactions is not required by Lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however, if for
purposes of perfection, this contract interpreted by any couN as a lease intended as security, Lessee grants to Lessor, its affiliates (including, without
limitation, any direct or indirect parent, subsidiary or sister enhty), successors and assigns a security interest in the Equipment to secure the payment and
performance of at! debts and ail liabilities of Lessee to Lessor o(r every kind and character, whether now existing or hereafter arising, and whether direct,
tndtrect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (incuding, without limitation, any direct or indirect arent, subsidiary or
sister entity), successors or assigns of Lessor, now exlsfing or hereafter ansing, whether under this Lease or any other agreement, and whether due directly or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redelivery of the Equipment to Lessee. Upon
any assignment of this Lease by Lessor, the assignee shall then be deemed the Lessor for purposes of this provision. All payments made by Lessee to Lessor
vii reference to this Lease shall be applied first to any indebtedness which is cwt secured, then to late charges then to arty ether fees or other amounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purchase money debt. This provision controls
over any congicting provision or language in this Lease or (n any other agreement between Lesser and Lessee unless the parties mutually agree In writing in a
subsequent agreement to override this pprovision. ((B)) Any provisions hereof contrary to, prohibited by or invalid under applicable taws or regulations sha11 be
inapplicable and deemed omitted here from, but sFinaiI not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to (herein
constitute the entire agreement of the parties hereto. No oral agreerrhent, guaranty, promise, condition representation or warranty shalt be binding. All prior
conversations, agreement or representations related hereto and/or to the Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute "chattel paper" for
purposes of the Uniform Commercial Code is the on final of this Lease marked "Origginal for CitiCapital.' E ANY ASSIGMENT OR TRANSFER OF THIS
LEASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN ci-TICAPITAL COMMERCIAL LUSING CORPORATION OR ITS AFFILIATES
("CITICAPITAL") VIOLATES THE RIGHTS OF CITICAPITAL-
23. RENEWAL: Unless Lessee notifies Lessor in writing at least ninety (90) days prior to the expiration of the Term of lessee's intention to return the Equipment or to exercise any
opfron to purchase, or Lessor notifies Lessee in writing at least ninety (90) days prior to the expiration of the Tenn of Lessors intention to terminate this Lease, this Lease will,
automatically renew and continue on a month to month basis foltewing the initial Term ("Renewal Term") until such time as either Lessor or Lessee provides the other patty with at
feast ninety (90) days prior written notice of that party's intention to terminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice period.
j All of the terms and provisions of this Lease shall govern during any Renewal Tenn, except that any option on the part of Lessee to purchase the Equipment shag automatically
expire on the expiration of the Term and shall be inapplicable to arty Renewal Term.
Page 4 or 5 of Lease Agreement fend 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, UMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO...- (Lessor) which includes, without Imitation, an item of Equipment with 0he forowing serial number.
SaPA00300 _____ Lerea's initials
704000 Rev 08r20M LZA>wL
ise04004.wpd Lift Lease/Fixed Rate ORIGINAL FOR CITICAPITAL
h.17 1.247902.2.0 XC;20051107071451
24. RETURN OF EQUIPMENT: If Lessee does not exercise, or Is precluded from exercising, the option to purchase the Equipment at the expiration of the Tenn or any Renewal
Term of this Lease, Lessee shall, at Lessees sole cost and expense, return all, but not less than all, of the Equipment to Lessor immediately upon the expiration of the Term or any
Renewal Term of this Lease pursuanl to the tenor and conditions contained in Lessors Standard Return Conditions for equipment similar to the Equipment subject to this Lease (a
copy of which has been delivered to Lessee in conjunction with this Lease). H Lessee does not surrender the Equipment to Lessor as herein provided, Lessee will be in default of this
Lease as to such Equipment, and Lessee shall pay Lessor, as liquidated damages and not as penalty, an emourt equal to one hundred ten percent (1 to%) of the Monthly Rental
Payment applicable to such Equipment Such payment shall commence with the month immediately following the end of the Term or any Renewal Term and shell continue thereafter
monthly until the Equipment is returned to Lessor. Lessee agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual
value exposure and other losses, which are incapable of an exact detemwntation, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the end of
the Term or any Renewal Tern. Notwithstanding the foregoing, Lessor shall have the tight to obtain immediate possession of the Equipment at any time after the end of the Term or
any Renewal Term for such Equipment.
25. LOCATION OF LESSEE: (a) If Lessee is a Corporation, limited liability company, limited partnership or other registered organization, its state of organization is in the state set
forth on the last page of this Lease: (b) it Lessee is an individual, hisfher principal place of residence is at the address set forth on the last page of this Lease: (c) if Lessee is
an
organization, its place of business or H it has more than one place of business, its chief executive office is located at the address set forth on the last page of this Lease, Lessee
agrees that t will not, without the prior written consent of Lessor, change its state of organization if it is a corporation, limited liability company, limited partnership or other
registered
organization or the location of its chief executive office or its place of business if it is an organization. If Lessee is an individual. Lessee must notify Lessor in writing of a change
in
hislher principal place of residence 30 days prior to such Change-
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the account
referenced on the cheek from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessees financial institution for
payment from the account referenced on Lessee's check.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and record information
that Identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open an
account or establish a relationship, we will ask for your name, street address, date of birth, and identification number, such as a social security
number or taxpayer identification number. For businesses, we will ask for the business name, street address and tax identification number.
Federal law requires us to obtain this Information. We may also ask to see your driver's license or other identifying documents that will allow
us to identify You. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 3/18105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
The Equipment teased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessors assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WITH ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED LESSOR' CLEVELAND BROTHERS EQUIPMENT CO., INC.
`?)Ip 161
lt.O
BY
(g . or Gnited 6abrdy company, an aW4 4-v ust sign a d show her or
iris tire. If unclad Prl .,", a gn,eral Parter and ahew that ti0s. If sets
prept.-hp. then was proprietor must sign and show that title. If individual. then
indhild'?ual should sign and show 101a as 'Indinvilually,J
Title t r-3 j 61" I
Date: 11121105 Federal Tax IDS or SSN: _
Date of Birth:
State of
rdividual/Sole Proprietor)
PA
By
---
Title -Av. -
Date: Itntlos Federal Tax ID #:
Page 5 of 5 of Lease Agreement dated t+r21ro5 between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED (Leaaee) and
CLEVELAND BROTHERS EQUIPMENT CO_ INC. (Lessor) which includes, witlwtA limdatlon an item of Equipment with the following aerial number,
GPA00300
704004-3 Rev 0&12004
Iseo40o4.wpd Lit Lease/Fixed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247902.2.0 XC:20051107071451
EXCAVATOR STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnuakAllowed Hours"), Lessee agrees to pay additional rental equa to e monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours:
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as tube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Undercarriage. Track components, including rails, pads, sprockets, idlers and rollers shall have at least
50% wear lice remaining in accordance to measurements per the manufacturers guidelines.
'fires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that re as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs anill have at least 50% of tire wear remaining in usable
condition.
D Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F_ Mechanical Drive Train. The transmission/hydrostatic drive systems including, but not limited to, pumps,
motors, planetaries, and wet brake systems will be in good condition and operate quietly without vibrations or
leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold machine safely during normal operation No drums or other braking
components will be damaged or cracked.
ll. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses mustbe fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pins. Boom cycle times and steering
functions must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Boom and stick must be straight and in good condition with no visible repairs.
Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease-
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time duri ng normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for venfrcation and inspection as Lessor may elect.
N. :Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/ *inspection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT LIMITED
By;
Title: ?
LESSOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By - - -(?"( - -
Title: " . J??y.-1"" ?-
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
,1111111011111111,
citicapitalJ
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
11121105 3118105
Address: 3607 HARTZDALE DR Guarantor(s): Date of ua nt :
?
?
HARRY 1. MORRIS JR. j
L?
U
CAMP HILL PA 17011 ?
r ttt
EqQuipment:
XCAVATOR 31SCL SIN GPA00300
IC Monthly Rental:
E
(1) CATERPILLAR HYDRAUL
1,927.02
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the following
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and Its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located at the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, accessories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or other
documents, instruments or certificates executed or delivered in connection with the Lease;
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Documents, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments and all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Value (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same condition as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then present
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the normal use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Paragraph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from their
respective due dates at the rate of 0.00 %. Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts payable
under the Lease as of that date.
Page 1 of 3 of 11r2`1103 IMIR CA6OAW4I9?$u1PAlERr ca lra? between
n ?..w
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
with the following serial number GPA0o300
701306
1.00
(Lessor) which includes, without limitation, an item of Equipment
1.247902.2.0 XC:20051107071451
CITICAPITAL Is a service mark of Citicorp. A member of citigroupi
2.
3.
Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignors rights and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
Assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Assignor's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjust any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all original
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of its
obligations under any of the Documents.
Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution of this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any interest in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoever; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addresses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties to the
Documents have the capacity to contract and none of such parties is a minor: Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipment has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rights of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental or other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in Cash or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor; the Equipment was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, and was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor has no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a default
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will continue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documents and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action which may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agreement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligations with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Documents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the date of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid rentals or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11/21/05 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equipment with
the foflowing serial number GPA00300
701306
1.00
1.247902.2.0 XC:20051107071451
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equipment,
Documents and Revenues from Assignor to Assignee- If Assignor is deemed to have retained an interest of any kind in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any kind in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to secure
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise agreed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assignor to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be held by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreement with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event of any
default by Assignor in the performance of any such obligations. Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value calculated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereunder,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Documents
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expenses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligated to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiver of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreement will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptance of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rights
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assignee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHETHER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED- ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE WILL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVISION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR THE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR ANY
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNOR'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11121105
ASSIGN - CLEV ND OTHERS EQUIPMENT CO.INC.
By:
Title: '
11121!05 HAMPTON CONSTRUCTION MANAGEMENT. LIMITED
Page 3 of 3 of Assignment of Lease dated between
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC_ (Lessor) which includes. without limitation, an item of Equipment with
the following serial number GPA00300
701306
1.00
1.247902.2.0 XC:20051107071451
nrw
citicapitalJDELIVERY AND ACCEPTANCE CERTIFICATE
To: (" CitiCapital
Reference is made to the contract dated 11121105 (the "Contract") between the
undersigned and _ CLEVELAND BROTHERS EQUIPMENT CO. INC.
(Seiler/Lessor)
(the "Dealer") for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
The Property was delivered to undersigned at the location designated in the Contract on 3/18105
(Date)
All installation and other work necessary for the proper use of the Property, if any has been completed.
I The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. CitiCapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 167,489.36 and the present unpaid balance or total rentals is $ 167,489.36
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CitiCapitat HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Buyer
Dated _---11/2]!05. (Name of individual(s), corporation or partnership.)
f ?O
By
(If corporation, authorized officer must sign ends corporate title. If pannership, a
gene artner mist sign. If owner(s), show which.)
Title
Co-Buyer
By
(If co-buyer, co-partner or co-officer, sign here and show which.)
Title
625D24 Rev. 7-92
Dealer Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp. A member of CltlgroupT
1.247902.2.0 XC20051107071451
Exhibit D
Lift Lease Agreement
Name and Address of Lessee ("Lessee")
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DR
r-Amp uH I PA 17011
asticapitaIjOh,
Name and Address of Lessor ("Lessor")
CLEVELAND BROTHERS EQUIPMENT CO., INC.
5300 PAXTON ST
HARRISBURG
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR TRACK LOADER 953C SIN BBX00946
PA 17111-2525
LESSOR'S COST
Equipment Total Cost $ -
Shipping & Handling Cost $
Installation Cost S
Other (Specify)
36Q7 HARTZ?ALE DR ENT: CAMP HILL PA 17011
3607 fiA Z ALE DR H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
A. TERM: 66 _ Months following the first day of the month PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LESSOR.
after delivery INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMENT.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS: cyc_
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST MONTHLY ON THE FIRST DAY OF EACH MO H BEGI NING ON
0 RENTAL(S) PLUS APPLICABLE TAXES. THE FIRST DAY OF JANUARY 9A ONR).
Each installment in the groups below is payable on a consecutive monthly b
1 advance payment(s) of $2,428.41 on 1210112005
C. INTERIM RENTAL: Per day rental for the period from delivery to 65 installment(s) of $2,428.41 commencing on 0110112006
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 100.00
E. RENTAL PAYMENT: 66 Payments of $ 2,428.41
PLUS APPLICABLE TAXES
F. SECURITY DEPOSIT: $ 0.00
TERM OPTION: (If left blank or marked "NA". Paragraph(s) 11A and/or 118 are
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Dale: 1211110
Option Price S 65,655.71
Conversion Tenn 24 _ Months
Conversion Payment $ -- 2,743.99
Conversion Rate: (check one and initial) Fixed % Paragraph 13 of this Let")
® Floating _ -1-0()-% Plus the Prune rate (as defined in
G. 5 MACRS Class Life of Equipment
The Termination Value Table attached to this Lease is a part of
and incorporated into the terms of this lease.
Option Data:
Option Price $
Conversion Term - Months
Conversion Payment $ -- -
C nveision Rate: (check one and initial)
Fixed %
? Floating - % plus the Prime rate (ss defined M
Panpnph 13.? this Les-)
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease'and the obligations and liabilities of Lessee under this Lease are effective on the date of
Lessors acceptance of this Lease ("Effective Date"), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and Was from Lessor, under and subject to the terms and provisions hereof until the end of the Term specified
above ("Term"), the personal property described above and on any supplemental schedule(s) identified as constituting a part of this lease (herein, with all present and future
attachments, accessories, replacement pans. repairs, and additions, and all proceeds thereof, referred to as "Equipment"). This Lease is for the Term commencing on the date the
Equipment is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of at, Rental Payments (including advance
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments are payable withoul notice or demand. All amounts payable under this Lease to Lessor are payable at
Lessors address set forth herein or at such doer address as Lessor may specify from time to time in writing. Except as otherwise specifically provided herein, Lessee's obligation to
pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under an circumstances, regardless of any setoff,
counterclaim, recoupment, defense or other claim whatsoever. Any Security Deposit is held as security for Lassoes obligations and will be refunded in full, without interest, upon
1 V its between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee) and
Page 1 W 5 at Lease Agreunent dated
CLEVELAND BROTHERS EWIPMENT CO., INC. _ (lesson whist Includes, wiNO:x limitation, an item of Equipment with the following serial number.
BBX00946 _ OR
704004 -3 RevOW004 ORIGINAL FOR CITiCAPITAL
lse040D4.wpd Lift LeaselFinad Rate
I A7 1.247646.3.0 XC720051107071759
CITICAPITAL is a service mark of Citicorp. A memberof cltigroup'T
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which Is not paid when due, Lessee agrees to pay Lessor a delinquency charge
calculated thereon at the rate of 1 112% per morth for the period of delinquency or, at Lessors option, 5% of such Rental Payment or other sum due under this Lease, provided that
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally collect. Lessee agrees to reimburse
Lessor immediately upon demand for any amount charged to Lessor by any depositary institution because a check, draft or other order made or drawn by or for the benefit of Lessee is
returned unpaid for any reason and, if allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the amount
of
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
5. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction for tax
or other purposes. Lessee acknowledges and agrees that: the Equipment is of a size, design, capacity and manufacture selected by Lessee: Lessor is nol the manufacturer of the
Equipment or the manufacturers agent; LESSEE LEASES THE EQUIPMENT AS IF AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY,
FITNESS OR SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED.
Lessee will not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or snake any settlement with the manufacturer or seller
to Lessor of the Equipment (both herein called "Seller") without Lessors prior written consent; and the selection, servicing and maintaining of the Equipment shall be entirely at Lessee's
risk and expense. Lessee agrees, at its own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications of the Seger and with all of the
terms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted by law with respect to the
Equipment; (d) to maintain the Equipment in good operating condition, repair and appearance; and (e) to fumish Lessor promptly with such financial statements and other information as
Lessor may, reasonably request from time to time.
6. TERMINATION VALUE: "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. It Lessor and Lessee have executed a
Termination Value Table with respect to this Lease, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Termination Value Table with respect to this Lease, the Termination Value as of any date
shall mean an amount equal to the total of all accrued and unpaid Rental Payments and all other amounts then due and remaining unpaid plus the greater of: (a) the then Fair Market
Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment as of that date in the same condition as when received by Lessee, reasonable wear and tear
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrued and
unpaid Rental Payments and all other amounts then due and remaining unpaid plus the then present worth of all unacerued Rental Payments plus either (i) the Purchase Option Price,
or (ii) if no purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when received
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease,
Present worth shall be determined by discounting such unaccrued Rental Payments from their respective due dales at the Rate of 2.00 %.
7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction of the Equipment from the date of its delivery until its return. If, for any reason, any of the
Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall (al immediately and fully inform Lessor with regard thereto, and (b) promptly pay to Lessor
the Termination Value calculated as of the date of payment thereof. Any amounts actually received by Lessor from Insurance or otherwise on Lessee's behalf for such
loss or damage shat be applied to reduce Lessee's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction of the
Equipment or the total or partial loss of use or possession thereof to Lessee, shall not release or relieve Lasses from its obligations and liabilities under this Lease.
Lessee agrees to procure and maintain at all times on and after the Effective Data such liability, physical damage and other Insurance as Lessor may require from time to
time. Lessee agrees that all such insurance shall be in form and amount and with Insurers satisfactory to Lessor, and that Losses wilt deliver promptly to Lessor
certificates or, upon request, policies satisfactory to Lessor evidencing such Insurance. All liability policies shall name Lessor as an additional insured, and all physical
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provide that Lessor's interest
therein shall not be invalidated by arty acts, omissions or neglect of anyone other than Lessor, and shall contain the insurer's agreement to give Lessor at least 30 days
prior written notice before cancellation or any material change in the policy shall be offectlve as to Lessor, whether such cancellation or change is at the direction of
Lessee or the insurer.
8. TAXES: Lessee shah be liable for all taxes, levies, duties, assessments, and other governmental charges (including any penalties and interest, and any tees fortifies or registration)
levied or assessed against Lessee. Lessor or the Equipment, upon or with respect to the lease or the purchase, use, operation, leasing, ownership, value, return or other disposition
of
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Lessee in writing otherwise,
Lessor wilt file all returns and remit all personal property taxes applicable to the Equipment Lessee agrees to reimburse Lessor for all such personal property taxes immediately upon
receipt of Lessors invoice including without limitation such taxes assessed or arising during the term of this Lease but remifed by Lessor after the termination of this Lease. At Lessor's
option, Lessee agrees to remit, along with Lessees rental payments under this Lease, an amount equal to a percentage of Lessors reasonable estimate of the personal property taxes
that will be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's obligations under this
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus will be either
credited to Lessees other obligations to Lessor or returned to Lessee. If requested, Lessee agrees to fete promptly on behalf of Lessor all requested tax returns and reports concerning
the Equipment in form satisfactory to Lessor, with all appropriate governmental agencies and to mail a copy thereof to Lessor concurrently with the filing thereof. Lessee further agrees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessments and
other governmental charges. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at all times remain in Lessor and Lessee will at all times, at its own cost and
expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and clear from all such claims,
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining in each Instance the prior written approval of Lessor. Upon the expiration or termination
of this Lease. Lessee, at Lessee's sale expense, shall return the Equipmerd unencumbered to Lessor at a place to be designated by Lessor, and in the same condition as when
received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Lessee shall, upon Lessors request, and at Lessees own expense, firmly affix to the
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor of the Equipment. If Lessee fails to perform duty
and promptly any of its obagations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, bid shall not be obligated to do so, for the
account of Lessee to protect the interest of Lessor or Lessee or both, at Lessors option. Any amourd paid or expense (including reasonable attorneys fees), penalty or other liability
incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor. Lessor shall have the right to inspect the Equipment at all reasonable times and from time to time as Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without Lessors prior written consent. Lessor or any assignee or successor of Lessor shall have the right to transfer, sell or assign all or any portion of this Lease or the indebtedness
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL NOT
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR
BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor, Lessee agrees that it
will not, without the prior written consent of the assignee, purchaser or secured party, () prepay any amounts owing under this Lease; (it) modify or amend this Lease; or (iii) exercise
any rights which are exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the option to
purchase all, but not less than all. of the Equipment described in the Lease on the Option Date (as specified on the first page of this Lease) upon the following terms and conditions:
(1)
Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at least ninety (90) but not more than one hundred twenty (120) days prlor to the Option Date
and (2) Lessee has paid all Rent accruing prior to the Option Date on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before the Option
Date will render the Lessee's options to purchase null and void. The purchase price for the Equipment on the Option Date shall be the then Fair Market Value of the Equipment which,
for purposes of the Option Dale only. Lessor and Lessee agree shall be the Term Option Price (as specified on the first page of this Lease). Lessor and Lessee agree that the Tenn
Option Price is a reasonable prediction of the then Fair Market Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shall be payable on the
Option Date in cash or, at Lessee's option, as provided in Paragraph 118 of this Lease.
Page 2 of 5 of Lease Agreemem dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee)
ant CLEVELAND BROTHERS EQUIPMENT CO., INC. _ (Le.aor) which incs,des, wtrhwt 1knit" n. en ram of Equipment with the renewing serial number.
MX081i4s
Le nitiafs
704004 -3 Rev 082001
tae040D4.wpd Un LeaselFtxed Rate ORIGINAL FOR CITICAPITAL
1.17
1.247846.3.0 XC:200S1107071759
B. Conversion Option During Term. in the event Lessee exercises Lessee's option to purchase the Equipment on the Option Date as provided in paragraph A above, Lessee may
elect to pay the Term Option Price to Lessor upon the following terns and conditions: (1) Lessee agrees to pay the Term Option Price in the equal consecutive monthly installments
for the Conversion Term as indicated on the first page of this Lease with the first such installment payable on the Option Date and each succeeding instalment payable on a like date
of each month thereafter until fully paid end provided that the final installment shall be in the amount of the then remaining unpaid balance. In addition to the payment provided above,
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this Lease) payable monthly on the
unpaid principal balance; (2) Lessee agrees to give Lessor written notice of Lessee's election pursuant to this Paragraph at least ninety (90) but not more than one hundred twenty
(120) days prior to the Option Date; (3) Lessee grants to Lessor, its successors and assigns, a security interest in the Equipment complete with all present and future attachments,
accessories, replacement pans, repairs, additions, and an proceeds thereat, an herein referred to collectively as "Collateral" to secure payment and performance of the Indebtedness
and all absolute and all contingent obigalions and liabilities of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor' and Lessor a "secured party" as those
terms are used under the Uniform Commercial Code; (5) Lessee agrees, at its own cost and expense, to do everything necessary or expedient to perfect and preserve the security
interest of Lessor granted hereunder, and (6) Ali of the terns and provisions of the Lease shall be and remain in full force and effect except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lessee may purchase all, but not less tharh all, of the Equipment described in the Lease at the expiration of the Tern of the Lease upon
the following terms and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at least ninety (90) but not more then
one
hundred twenty (120) days prior to the expiration of the Term of the Lease and (2) the purchase price to be paid to Lessor for such Equipment shall be the then Fair Market Value (as
defined below) of such Equipment, plus an amount equal to the Rental Payments then unpaid under the terms of the Lease, plus applicable taxes, if any, on the above sum, all payable
in rash. Failure to give such notice or to pay the end of term Option Price on or before the expiration of the Term of the Lease will render the Lessees options to purchase null and
void. Upon such payment, Lessor will execute and deliver a bill of sale conveying title to the Equipment to Lessee on an "AS IS, WHERE IS "BASIS. WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12- FAIR MARKET VALUE: The term "Fair Market Value" as used herein shall be determined on the basis of, and shall be equal in amount to, the value which the Equipment would
obtain in an arms length sale transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an informed and willing seller under no
compulsion to sell and assuming that the Equipment is then in the condition required under the terms of the Lease, If on a before sixty (60) days prior to the expiration of the Term
of
the Lease. Lessor and Lessee are unable to agree upon a determination of the Fair Markel Value of such Equipment, such value shall be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by Less". The appraiser shaft be instructed to make such determination within a period of 45 days following appointment, but
in
no event later than 10 days prior to the expiration of the Term of the Lease, and shall promptly communicate such determination in writing to Lessor and Lessee. The appraiser's
determination of such Fair Market Value shall be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be borne by Lessee.
13. PRIME RATE: The "Prime Rate" will mean the Prime Rate as published from time to time in the Money Rates section of The Watt Street Journal as the base rate on corporate
loans. If more than one Prime Rate or a range of rates is published, the Prime Rate will be highest of the published rates. In the event the Prime Rate as published in The Watt Street
Journal ceases to exist or The Wall Street Journal ceases to publishing a Prime Rate, CiIiCapAaI will substitute a comparable index that is outside the control of CitiCapitat. In the
event
of an error by The Wall Street Journal, the "Prime Rate" wig be based upon the Prime Rate as corrected.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to modified accelerated cost recovery (or depreciation) deductions with respect to the Equipment, and
should, under any circumstances whatsoever, except as specifically set forth below, either the United States government or any state tax authority disallow, eliminate, reduce,
recapture, or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (" depreciation) deductions with respell to any Equ ipmerA, Lessee shag then indemnify
Lessor by payment to Lessor, upon demand, of a sum which shall be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full term of this Lease)
the same after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Retum") that Lessor
would have realized had there not been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed by the
governmental authority with respect to such loss or disallowance. In addition, if Lessee shall make any addition "improvement to any Equipment, and as a result thereof, Lessor is
required to include an additional amount in its taxable income. Lessee shall also pay to Lessor, upon demand, an amount which shall be equal to the amount necessaryto permit Lessor
to receive (on an after-tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or improvement not been made. Lessor
and Lessee agree that the Class life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule. Lessee shall not be obligated to pay
any sums required by this section with respect to any Equipment In the event the cause of The loss of the deductions results solely from one or more of the following events: (1) a failure
of Lessor to timely claim modified accelerated cost recovery (" depreciation) deductions for the Equipment in Lessor's tax return, other than a failure resulting from the Lessor's
determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for dairnlng aocelerated cost recovery (" depredation) deductions, or (2) a failure of Less"
to have sufficient gross income to benefit from accelerated cost recovery (or depredation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any federal or
state tax authority against the Lessor with respect to the disallowance of cost recovery (or depredation) deductions.
Ail amounts payable by Lessee pursuant to this section shall be payable directly to Lessor. Ali the indemnities contained in this section shell continue in full force and effect
notwithstanding the expiration or other termination of the Lease in whole or in part and are expressly made for the benefit of, and shall be enforceable by, Lessor. Lessees obligations
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under some other agreement by another party.
The obligations of Lessee under this section are expressly made for the benefit of, and shelf been tameable by, Lessor without necessity of declaring the Lease in default and Lessor
may initially proceed directly against Lessee under thus section without first resorting to any other rights of indemnification it may have.
15_ DEFAULT BY LESSEE: If Lessee at any time defaults in any of As obligations to Lessor, such default shall be considered an abandonment of all options herein and all options
herein shag immediately expire and become null and void.
I a. OPTIONS NOT ASSIGNABLE: It is agreed that Lessees rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unless in
writing and signed by an officer of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shag occur if: (a) Lessee fals to pay when due any amount owed by it to Lessor or any affiliate
(indudmg, without limitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee faits to pay when due any amount
owed by it to Lessor or any affiliate (including, without limitation, any direct or indirect parent, subsidiary or sister entity), successor, (b) Lessee breaches any warranty or provision
hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and any affiliate (including, without limitation, any direct or indirect
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes an assignment for the benefit of
creditors. admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors; (d) any property of Lessee is attached; (e) a
petition
in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future statute, law or
regulation; (f) Lessee or its shareholders take any action looking to its dissolution or liquidation: (g) a trustee or receiver is appointed for Lessee or for any substantial part of
its
property; (h) if there shall occur an (i) appropriation, (ii) confiscation, (iii) retention, or (iv) seizure of control, custody or possession of ft Equipment by any governmental authority
including, without limitation, any municipal, state, federal or other governmental entity or any governmental agency or instrumentality (all such entities, agencies and instrumentalities
shag hereinafter be collectively referred to as "Governmental Authority"): (f) if anyone In the control, custody or possession of the Equipment or the Lessee is accused or alleged or
charged (whether or not subsequently arraigned, indicted or convicted) by any Governmental Authority to have used the Equipment in connection with the commission of any crime
(other than a misdemeanor moving violation); QI) there shall be a material adverse change in any of the: (i) condition (financial or otherwise), business, performance, prospects,
operations or properties of the Lessee (g) legality, vasty or enforceability of this Lease, (iii) perfection or priority of the lien granted in favor of to Lessor pursuant to this Lease,
(iv)
ability of the Lessee to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (k) there shag be
a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee under this Lease; or p) except for the security interest, lien "reservation of title in favor of Lessor
or as
otherwise granted herein, there shalt be any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee shag be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare all sums due and to become
due hereunder and all other sums then owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or Instrument; (b)
declare all other debts then owing by Lessee to Lessor or any affiliate (including, without limitation, any direct or indirect parent, subsidiary or sister entity),successor or assignee
of
Lessor to be Immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at taw or in equity to enforce performance by Lessee of any
and all provisions of this Lease and to recover the damages for the breach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's
expense at such place as Lessor may designate which is reasonably convenient to bath parties; (e) exercise one or more of the rights and remedies available to a secured party under
the Uniform Commercial Code, whether "not this transaction is subject thereto; (0 enter, or its agents may enter, without notice or liability or legal process, into
Page 3 of 5 of Lease Agreement dated 11121rOS botween HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lassa) wWwh includes, witiwut limitation, am item of Equipment with the twkowing serial number.
88X00946 Les a s Initials
70,4004 -3 Rev 060004
Isao4oo4.wpd Lin Lease/Fixed Rate
1.17 ORIGINAL FOR CITICAPITAL 1.247846.3.0 XC:20051107071759
any premises where the Equipment may be, or is believed by Lessor to be, and repossess all or any part thereof, disconnecting and separating the same from any other property and
using all force necessary and permitted by applicable law, Lessee hereby expressly waiving all further rights to possession of the Equipment after default and all daims for injuries
suffered through or loss caused by such repossession; and/or (g) apply any security deposit or other amounts held by Lessor to any indebtedness of Lessee to Lessor.
In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, holding,
preparing for sale, selling and the like, induding reasonable attorneys' fees and other legal expenses, less (3) any amount actually received by Lessor from the re-lease, sale or other
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained will require Lessor to release, sell
or otherwise dispose of the Equipment. No remedy of Lessor hereunder shall be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in addition
to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default. If allowed by law, "the reasonable fees for attorneys" retained by Lessor shall
include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Lessor in enforcing any of Lessors rights hereunder or in the prosecution
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. All notices to Lessee relating hereto will be considered received when delivered in
person or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lessor may sell the Equipment without giving any warranties
as to the Equipment. Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affed the commercial
reasonableness of any sale of the Equipment.
18. INDEMNITY: Lessor (which term as used herein includes Lessors successors, assigns, agents, and servants) shalt have no responsibility or liability to Lessee, its successors or
assigns or any other person with respect to any Liabilities (as "LlablI tree is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and expense,
to indemnify, defend, protect and save Lessor and keep it harmless from and against, any and all Liabilities. The term "Liabilities" as used herein shall include any end all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or not
any transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
and in any way relating to or arising out of this Lease or the selection, manufacture, purchase, acceptance, ownership, delivery, non-dekvery, lease. possession, use, operation,
condition, servicing, maintenance. repair, improvement, alteration, replacement, storage, return or other disposition of the Equipment (including without limitation, (i) claims as a
result of
latent or patent defects, whether or not discoverable by Lessor or Lessee. (h) claims for trademark patent or copyright lntringement, and (Iii) tort dams of any kind (whether based an
Lessors alleged negligence or otherwise), including claims for injury or damage to property, or injury or death to any person (including Lessee's employees) or, for any claim or liability
hereby indemnified against. The indemnities arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT.
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION,IS NECESSARY TO PERFECT AND/OR GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESSEE TO
LESSOR; AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such documents,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest in Equipment and Lessors rights hereunder,
including such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any officer, employee or designee of Lessor or
any assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or designee of
Lessor or arty assignee of Lessor (or any designee of such assignee) to file financing statements covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint venture, or other entity (herein
collectively, the "Entity"), including, without limiting the generality of the foregoing. Lessor's parent or any affiliate or any subsidiary of Lessor and any credit reporting agency
or other
entity whether or not related to Lessor for any purpose, information about Lessee's accounts, credit application and credit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessee's accounts, credit experience and account information regarding the Lessee. This stall be continuing authorization for all
present and future disclosures of Lessee's account information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to release
such information to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor through printed checks ("Debit
Transactions") drawn pursuant to this authorization upon Lessee's checking account, using Lessees checking account number, bank routing code and other information which Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes lessor to initiate Debit Transactions from Lessees checking account in the amount necessary to pay the rental
payments, delinquency charges, of such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by Lessor, plus
a fee of ten dollars ($70.00) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable under this
provision shall be limited and/or restricted in accordance with applicable taw. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior written notice
addressed to Lessee's last known address as shown on the records of Lessor and such increase or decrease shalt be effective as staled in the written notice. Unless prohibited by
applicable law, Lessee's continued use of Debit Transactions after the effective date specified in such notice shall conclusively establish Lessees agreement to pay the new Debit
Transaction fee slated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check drawn in
accordance with this authorization. Until cancelled by Lessee, this authorization shag be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations hereunder
or
under any other present or future agreement with or which is held by Lessor. This authorization may be canceled at any time by Lessee giving at least three (3) business days prior
written notice to Lessees bank and Lessor. Payment by Debit Transactions is not required by Lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however, if for
urrppoos'es of perfection, this contract is interpreted by any court as a (ease intended as security, Lessee grants to Lessor, its affiliates (including, without
ny direct or indirect parent, subsidiary or sister entity), successors and assigns a security interest in the Equipment to secure the payment and
PmilabG, any'
performance of all debts and all liabilities of Lessee to Lessor of every kind and character, whether now existing or hereafter arising and whether direct,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirecf parent, subsidiary or
sister entity), successors or assigns of Lessor, now existing or hereafter arising, whether under this Lease or any other agreement, and whether due directly or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redelivery of the Equipment to Lessee. Upon
any assignment of this Lease by Lessor, the assignee shall then be deemed the Lessor for purposes of this provision. All payments made by Lessee to Lessor
with reference to this Lease shall be applied first to any. indebtedness which is not secured, then to late charges then to any other fees or other amounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purchase money debt. This provision controls
over any conflicting provision or language in this Lease or in any other agreement between Lessor and Lessee unless the parses mutually agree in writing in a
subsequent agreement to override this p?rovision. (B) An provisions hereof contrary to, prohibited by or invalid under applicable laws or regulations shall be
inapplicable and deemed omitted here from, but shall not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to herein
constitute the entire agreement of the parties hereto. No oral agreement, guaranty, promise, condition, representation or warranty shall be binding. All prior
conversations, agreement or representations related hereto anrjlor to the Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be Hound. (0) The only copy of this Lease that will constitute "chattel paper" for
purposes of the Uniform Commercial Code is the original of this Lease marked "Original for CitiCapital." E)) ANY ASS)GMENT OR TRANSFER OF THIS
!EASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITAL COMMERCIAL LASING CORPORATION OR ITS AFFILIATES
("CITICAPITAL") VIOLATES THE RIGHTS OF CITICAPITAL.
23. RENEWAL: Unless Lessee notifies Lessor in writing at least ninety (90) days prior to the expiration of the Tenn of Lessees intention to return the Equipment or to exercise any
option to purchase, or Lessor notifies Lessee in writing at least ninety (90) days prior to the expiration of the Term of Lessors intention to terminate this Lease, this Lease will
automatically renew and continue on a month to month basis following the initial Term (Renewal Term') until such time as either Lessor or Lessee provides the other party with at
least ninety (90) days prior written notice of that party's intention to temminale this Lease. Rental Payments will continue to be due and owing until expiration of such notice period.
All of the terns and provisions of this Lease shall govern during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shall automatically
expire on the expiration of the Term and shall be inapplicable to any Renewal Term.
Page 4 of 5 of Leax ,qq?erreemeM dated 11021105 between HAMPTON CONSTRUCTION MANAGEMENT, UMrrED (lease.) and
CLEVEtANG apt THERS EQUIPMENT CO., INC. (Lessor) which indrdes, withoul Fmitsbon, an item of Equipment with the following serial number
RAX00949 Less . s initials
704004 "3 Rev 092004
Ise04004.wpd Lim LeasefFixed Role ORIGINAL FOR CITICAPITAL
1.17 1.247846.3.0 XC:20051107071759
Z4. RETURN OF EQUIPMENT: If Lessee does no( exercise, or is precluded from exercising, the option to purchase the Equipment at the expiration of the Term or any Renewal
Term of this Lease. Lessee shall, at Lessee's sole cost and expense. return all, but not less than all, of the Equipment to Lessor immediately upon the expiration et the Term or any
Renewal Term of this Lease pursuant to the terms and conditions contained in Lessor's Standard Return Conditions for equipment similar to the Equipment subject to this Lease (a
copy of which has been delivered to Lessee in conjunction with this Lease). If Lessee does not surrender the Equipment to Lessor as herein provided, Lessee wig be in default of this
Lease as to such Equipment, and Lessee shag pay Lessor, as liquidated damages and not as penally, an amount equal to one hundred ten percent (1109:) of the Monthly Rental
Payment applicable to such Equipment. Such payment shall commence with the north immediately following the end of the Term or any Renewal Term and shall continue thereafter
monthly unlit the Equipment is returned to Lessor. Lessee agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual
value exposure and other losses, which are incapable of an exact determination, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the end of
the Term or any Renewal Term. Notwithstanding the foregoing, Lessor shall have the right to obtain immediate possession of the Equipment at any time after the end of the Term or
any Renewal Term for such Equlpmer0.
25. LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability company, limited partnership or other registered organization, its state of organization is in the state set
forth on the last page of this Lease: (b) t Lessee is an individual, hisfher principal place of residence is at the address set forth on the last page of this Lease; (c) if Lessee is
an
organization, its place of business or if it has more than one place of business, fits chief executive office is located at the address set forth on the last page of this Lease. Lessee
agrees that it will not, without the prior written consent of Lessor, change its state of organization t i1 is a corporation, limited liability company, limited partnership or other
registered
organization or the location of its chief executive office or its place of business it it is an organization. If Lessee is an individual, Lessee must notify Lessor in writing of a change
in
his/her principal place of residence 30 days prior to such change.
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the account
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessee's financial institution for
payment from the account referenced on Lessees check.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and record Information
that Identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open an
account or establish a relationship, we will ask for your name, street address, date of birth, and Identification number, such as a social security
number or taxpayer identification number. For businesses, we will ask for the business name, street address and tax Identification number.
Federal law requires us to obtain this information. We may also ask to see your driver's license or other identifying documents that will allow
us to identify you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all Circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
[x] On 3118105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
i
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires-
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WITH ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMBED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO., INC,
i
By (g cbipmafion nr 6rriked rshirly cmnpan en o Wwnxed p sign and show hu a
W. We. If Gmled partnership, a genera! partner must n and show that tick. If sole
PruprietoraNp, then sole proprietor must sign and show that title. If thdhvidual, then
individual should pign and show We as -Indkiduagy.')
Title CSt P1
Date: lhrzvos ` Federal Tax ID # or SSW -
By - du,o
- -
Title 1W ' C , ? `??
Date: 1121r03 Federal Tax ID #:
Date of Birth: _.__
(Individual(Sole Proprietor)
State of Organization:
Page 5 of 5 of Lease Agreement dated t 121105 between HAMPTON CONSTRUCTION MANAGEMENT LIMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO.. INC. (Lessor) which includes, wit hoU firnitadon, an item of Equipment with the togaMng serial nurnber:
Bex009t1i
704004 -3 Rev 082004
IsaO4004.wpd Litt Lease/Fixed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247846.3.0 XC:20051107071759
WHEEL/CRAWLER LOADER STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term ofthe
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnuakAllowed Hours"), Lessee agrees to pay additional rental equa to a monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement- To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: 800
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimumrecommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or burn. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. Ail material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that type as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs andwi?l have at least 50% of tire wear remaining in usable
condirion.
C. Undercarriage. Track components, including rails, pads, sprockets, idlers and undercarriage shall have
at least 50% wear life remaining in accordance to measurements with the manufacturers guidelines.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturers warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including but not limited to,
differentials, planetaries, drop boxes/transfer cases and wet brake systems will be in good condition and operate
quietly without vibrations or leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold machine safely during normal operation. No drums or other braking
components will be damaged or cracked.
H. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pins. Boom hoist times and steering
times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. n addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect
N. Inspections.
For 94 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/inspection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMTED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
t
By: By: _
Title: 6 1 ot tN? Title:
lk?-1 ? `??
,w.
citicapital?
DELIVERY AND ACCEPTANCE CERTIFICATE
To: (" CitiCapital ")
Reference is made to the contract dated 11121/05 (the "Contract") between the
undersigned and - CLEVELAND BROTHERS EQUIPMENT CO., INC.
(Seller/Lessor)
(the "Deafer') for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
1. The Property was delivered to undersigned at the location designated in the Contract on ___ 3/18105
(Date)
2_ All installation and other work necessary for the proper use of the Property, if any has been completed.
3. The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, rec oupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. CitiCapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 cash
and $ 0-Do net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 211,073.82 and the present unpaid balance or total rentals is $ 211,073.82
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CitiCapital
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Buyer
Dated 11!21105 (Name of individual(s), corporation or partnership.)
Y
(if corporation, authorized officer must sign and show wry to title. If partnership, a
general rtner must sign. If owner(s), show which.)
Title ?Q eS I ;P.. Co-Buyer _
By
(If co-buyer, co-partner or co-officer, sign here and show which.)
Title
625024 Rev. 7-92
Deater Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp. Amember of cltlgroupT
1-247846.3.0 XC:20051107071759
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
ILEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Address: 3607 HARTZDALE DR
CAMP HILL PA 17011
E(1j CIA ' Tent:
ERPILLAR TRACK LOADER 953C SIN BBX00946
Date of Lease:
11121105
HARRY I. MORRIS JR.
mthly Rental:
2,428.41
D?7r2,i f Gu?lr?ty:
[/lJ
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the following
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located at the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, accessories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or other
documents, instruments or certificates executed or delivered in connection with the Lease.,
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Documents, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to became due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments and all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Value (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same condition as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then present
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the normal use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Paragraph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from their
respective due dates at the rate of 2.00 % Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts payable
under the Lease as of that date.
{Le 11121105 between
Page 1 of 3 of ? fkp6nc6MlrERgtMurpmEN rcu.- -
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
with the following serial number 80X00946
701306
1.00
(Lessor) which includes, without limitation, an item of Equipment
err..
citicapitalJDelivery Date:
3118105
1.24784fi.3.0 xC20051107071759
CITICAPITAL is a service mark of Citicorp. A memberof citigroupT
2. Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's rights and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
Assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Assignor's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjust any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all original
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of its
obligations under any of the Documents.
3. Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution of this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any interest in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoever; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addresses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties to the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipment has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rights of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental or other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in cash or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor; the Equipment was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, and was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor has no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a default
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will continue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documents and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action which may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agreement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligations with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Documents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the date of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid rentals or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' fees
and court costs) (the "Repurchase Price') incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11121105 - between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EOUIPMENT CO.. INC. (Lessor) which includes, without limitation, an item of Equipment with
the following serial number SBX00946
701306
1.00
1.247846.3.0 XC:20051107071759
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equipment,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any kind in
the Equipment. Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any kind in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to secure
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise agreed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assignor to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be held by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreement with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event of any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value calculated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereunder,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Documents
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expenses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligated to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiver of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreement will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptance of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rights
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assignee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHETHER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE WILL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVISION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR THE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR ANY
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNOR'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 1 frzuos
ASSIGNOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By:
Title: St''
Page 3 of 3 of Assignment of Lease dated 11111/0s _ between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equipment with
the following serial number BBX00946 _
701306
1.D0
1.247646.3.0 XC:20051107071759
Exhibit E
Lift Lease Agreement
Name and Address of Lessee ("Lessee'?
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DR
CAMP HILL
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR HYDRAULIC EXCAVATOR 315CL SIN CJC01117
PA 17111-2525
LESSOR'S COST 13
Equipment Total Cost $
Shipping & Handling Cost $
Installation Cost $
Other (Specify)
LOCA71pN OF EQUIPMENT: CAMP HILL PA 17011
3607 66 H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
A. TERM: - Months following the first day of the month PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LESSOR.
after delivery INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMENT.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS:
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
06 MO/YR .
0 RENTAL(S) PLUS APPLICABLE TAXES. THE FIRST DAY OF JANUARY
Each installment in the groups below Is payable on a consecutive monthly b
1 advance payment(s) of $1,816.22 on 1210112005
65 installment(s) of $1,816.22 commencing on 0110112006
C. INTERIM RENTAL: Per day rental for the period from delivery to
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 100.00
1,816.22
E. RENTAL PAYMENT: 65 Payments of $PLUS APPLICABLE Taxes
F. SECURITY DEPOSIT: $ 0.00
G. 5 MACRS Class Life of Equipment
The Termination Value Table attached to this Lease is a part of
and incorporated into the terms of this lease.
TERM OPTION: (If left blank or marked "NA", Paragraph(s)11A and/or 11B are
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 49,241.92
Conversion Term 12 _ Months
Conversion Payment $ 4,103.49
Conversion Rate: (check one and initial)
? Fled % Paragraph 13 of this Lease)
® Floating _ 1.00 % plus the Prima rah fas defined In
Option Date:
Option Price $
Conversion Term Months
Conversion Payment $
Conversion Rate: (check one and initial)
0 Fixed - --- %
? Floating % plus the Prime rate I- denned In
Paragraph 13 0l thls Lea-)
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease") and the obligations and I(abi ties of Lessee under this Lease are effective on the date of
Lessors acceptance of this Lease ("Effective Date"), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under and subject to the terms and provisions hereof until the end of the Term specified
above ('Tenn"), the personal property described above and on any supplemental schedule(s) identified as constituting a part of this lease (herein, with all present and future
attachments, accessories, replacement parts, repairs, and additions, and ail proceeds thereof, referred to as " Eu fern als"equal is thea sum for the Term
all ental Payments i dud h acute trace
Equipment is de0wred to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments are payable without notice or demand. All amounts payable under this Lease to Lessor are payable at
Lessors address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided herein, Lessees obligation to
pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under all circumstances, regardless of any set-off,
counterclaim, recoupment. defense or other claim whatsoever. Any Security Deposit is held as security for Lessors obligations and will be refunded in fug, without interest, upon
payment in full of those obligations.
11121705 between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED (Lessee) and
Page 1 M 5 W Lease Agreement dated
CLEVELAND BROTHERS EQUIPMENT CO., INC. _ (Lessor) which irxhudes, without farulaLOn, an item of Equipment with the tonhwirp senai number
s Initials
C.1C01117
704004 -3 Rev 080004 ORIGINAL FOR CITICAPITAL
os.wpd Lift Leax1F red Rata
1.17 1.247888.2.0 XC:200511 07071 01 7
1.17 A member of cittgroup'r
CITICAPITAL is a service mark of Citicorp.
PA 17011
AOW
citicapital
Name and Address of Lessor ("Lesson
CLEVELAND BROTHERS EQUIPMENT CO_ INC.
5300 PAXTON ST
HARRISBURG
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due, Lessee agrees to pay Lessor a delinquency charge
calculated thereon at the rate of 1 112% per month for the period of delinquency or, at Lassoes option, 5% of such Rental Payment or other sum due under this Lease, provided that
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally collect. Lessee agrees to reimburse
Lessor immediately upon demand for any amount charged to Lessor by any depositary institution because a check draft or other order made or drawn by or for the benefit of Lessee is
returned unpaid for arty reason and, it allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the amount
of
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
5- NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction for tax
or other purposes. Lessee acknowledges and agrees that: the Equipment is of a size, design, capacity and manufacture selected by Lessee; Lessor is not the manufacturer of the
Equipment or the manufacturers agent: LESSEE LEASES THE EQUIPMENT "AS IS' AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR
WARRANTY. EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY. MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY. DURABILITY,
FITNESS OR SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED.
Lessee will not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring arty suit or claim against or make any settlement with the manufacturer or seller
to Lessor of the Equipment (both herein called "Seller) without Lassoes prior written consent: arts the selection, servicing and maintaining of the Equipment shad be entirely al Lessee's
risk and expense. Lessee agrees, at is own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications of the Seller and with all of the
/emu of
any Insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any ceilificates of title required or permitted by law with respect to the
Equipment: (d) to maintain the Equipment in good operating condition, repair and appearance: and (e) to furnish Lessor promptly with such financial statements and other information as
Lessor may reasonably request from time to time.
6. TERMINATION VALUE: 'Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casually loss. If Lessor and Lessee have executed a
Termfnatiori Value Table with respect to this Lease, the Termination Value as of any date coil be the amount indicated on that table plus any accrued and unpaid Rentals or other
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Termination Value Table with respect to this Lease, the Termination Value as of arty date
shall mean an amount equal to the Iota] of all accrued and unpaid Rental Payments and ail other amounts then due and remaining unpaid plus the greater of: (a) the then Fair Market
Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment as of that dale in the same condtion as when received by Lessee, reasonable wear and tear
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrued and
unpaid Rental Payments and all other amounts then due and remaining unpaid plus the then presets worth of all unaccrued Rental Payments plus either (i) the Purchase Option Price,
or (ii) if no purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of lhis Lease) of the Equipment in the same condition as when received
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon Its return determined in accordance with this Lease.
Present worth shall be determined by discounting such unaccrued Rental Payments from their respective due dates at the Rate of 2.00 %.
7. INSURANCE; Lessee shall bear all risk of toss of, damage to, or destruction of the Equipment from the date of its delivery until Its return. If, for any reason, any of the
Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall (a) immediately and fully Inform Lessor with regard thereto, and (b) promptly pay to Lessor
the Termination Value calculated as of the date of payment thereof. Any amounts actually received by Lessor from insurance or otherwise on Lessee's behalf for such
loss or damage shall be applied to reduce Lessee's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction of the
Equipment or the total or partiat toss of use or possession thereof to Lessee, shall not release or relieve Losses from Its obligations and liabilities under this Lease.
Lessee agrees to procure and maintain at all times on and after the Effective Date such liability, physical damage and other Insurance as Lessor may require from time bD
time. Lessee agrees that all such insurance shall be In form and amount and with Insurers satisfactory to Lessor, and that Lessee will deliver promptly to Lessor
certificates or, upon request, policies satisfactory to Lessor evidencing such insurance. All liability policies shall name Lessor as an additional insured, and ail physical
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provide that Lessor's interest
therein shall not he invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain the Insurer's agreement to give Lessor at least 30 days
prior written notice before cancellation or any material change in the policy shall be effective as to Lessor, whether such cancellation or change is at the direction of
Lessee or the Insurer.
8. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other governmental charges (inducting any penalties and interest, and any fees for titles or registration)
levied or assessed against Lessee, Lessor or the Equipment, upon or with respect to the lease or the purchase, use, operation, leasing, ownership, value, return or other disposition
of
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessoes net income. Urdess Lessor notifies Lessee in writing otherwise,
Lessor wig file all returns and remit all personal property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor for all such personal property taxes immediately upon
receipt of Lessors invoice including without limitation such taxes assessed or arising during the term of this Lease but remitted by Lessor after the teirninatfon of this Lease, At Lessors
option. Lessee agrees to remit, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessor's reasonable estimate of the personal property taxes
that wig be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's obfigal]ons under this
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus will be either
credited to Lessee's other obligations to Lessor or returned to Lessee- If requested, Lessee agrees to file promptly on behalf of Lessor an requested tax returns and reports concerning
the Equipment in fort satisfactory to Lessor, with all appropriate governmental agencies and to mad a copy thereof to Lessor concurrently with the filing thereof. Lessee further agrees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessments and
other governmental charges. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at an limes remain in Lessor and Lessee will at all times, at its own cost and
expense, protect and defend the title of Lessor from and against an claims, liens and legal processes of creditors of Lessee and keep the Equipment free and clear from all such claims,
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or termination
of this Lease, Lessee, at Lessees sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition as when
received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Lessee shad, upon Lessors request, and at Lessees own expense, finniy affix to the
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor of the Equipment. If Lessee fails to perform duty
and promptly any of its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shag not be obligated to do so, for the
amount of Lessee to protect the interest of Lessor or Lessee or both, at Lessors option. Any amount paid or expense (including reasonable attorney's fees), penalty or other liability
incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment-
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor. Lessor shag have the right to inspect the Equipment at an reasonable times and from time to time as Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without Lessors prior written consent. Lessor or any assignee or successor of Lessor shag have the right to transfer, sell or assign all or any portion of this Lease or the indebtedness
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL NOT
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR
BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor. Lessee agrees that it
will not, without the prior written consent of the assignee, purchaser or segued party, (t) prepay any amounts owing under this Lease: (ii) modify or amend this Lease; or (6i) exercise
any rights which ate exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the option to
purchase all, but not less than all, of the Equipment described in the Lease on the Option Date (as specified on the first page of this Lease) upon the following terms and conditions:
(1)
Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at least ninety (90) but not more than one hundred twenty (120) days prior to the Option Date
and (2) Lessee has paid all Rent accruing prior to the Option Date on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before the Option
Date will render the Lessee's options to purchase null and void. The purchase price for the Equipment on the Option Date shall be the then Fair Market Value of the Equipment which,
for purposes of the Option Date only, Lessor and Lessee agree shall be the Term Option Price (as specified an the first page of this Lease). Lessor and Lessee agree that the Term
Option Price is a reasonable predction of the then Fair Markel Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shalt be payable on the
Option Date in cash or, at Lessee's option, as provided in Paragraph 11 B of this Lease.
Pape 2 of 5 of Lease Agreement dated 11ra1/0s between HAMPTON CONSTRUCTION MANAGEMENT, UMMED (Lessee)
and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lerwry wfich F-Ndes, With-A AMSiion, an wen or EQuonenl with the law ing so" wnber.
cjcot1t7 Leas Initials
704004 -3 Rev 0812004
lseo4oo4.wpd Lit LeaserFixed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247888.1.0 XC:20051107071017
B. Conversion Option During Term. In the event Lessee exercises Lessee's option to purchase the Equipment on the Option Date as provided in paragraph A above. Lessee may
elect to pay the, Tenn Option Price to Lessor upon the following terms and conditions: (1) Lessee agrees to Pay the Term Option Price in the equal consecutive monthly installments
for the Conversion Term as indicated on the first page of this Lease with the first such installment payable on the Option Date and each succeeding installment payable on a like date
of each month thereafter until fully paid and provided that the final instalment shall be in the amount of the then remaining unpaid balance, in addition to the payment provided above,
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this Lease) payable monthly on the
unpaid principal balance; (2) Lessee agrees to give Lessor written notice of Lessee's election pursuant to this Paragraph at least ninety (90) but not more than one hundred twenty
(120) days prior to the Option Date; (3) Lessee grants to Lessor. its successors and assigns, a security interest in the Equipment complete with all present and future attachments,
accessories, replacement parts, repairs, additions, and all proceeds thereof, all herein referred to collectively as "Collateral' to secure payment and performance of the Indebtedness
and all absolute and all contingent obligations and liabilities of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor" and Lessor a "seared party" as those
terms are used under the Uniform Commercial Code; (5) Lessee agrees, at its own cost and expense, to do everything necessary or expedient to perfect and preserve the security
interest of Lessor granted hereunder, and (6) All of the terns and provisions of the Lease shag be and remain in full force and effect except as indicated in this paragraph,
C_ Option to Purchase On Expiration Of Tern. Lessee may purchase all. but not less than all, of the Equipment described in the Lease at the expiration of the Tenn of the Lease upon
the following terns and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at least nicety, (90) but not more than
one
hundred twenty (120) days prior to the expiration of the Term of the Lease and (2) the purchase price to be paid to Leaser for such Equipment shall be the then Fair Market Value (as
defined below) of such Equipment, plus an amount equal to the Rental Payments then unpaid under the temps of the Lease, plus applicable taxes, if any, on the above sum, all payable
in cash. Failure to give such notice or to pay the and of term Option Price on or before the expiration of the Term of the Lease will render the Lessee's options to purchase null and
void. Upon such payment, Lessor will execute and deliver a bill of sale conveying title to the Equipment to Lessee on an "AS IS, WHERE IS "BASIS, WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The term "Fair Market Value" as used herein shag be deternined on the basis of, and shall be equal in amount to, the value which the Equipment would
obtain in an arms length sale transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an informed and willing seller under no
compulsion to sell and assuming that the Equipment is then to the condition required under the terms of the Lease. If on or before sixty (60) days prior to the expiration of the Term
of
the Lease, Lessor and Lessee are unable to agree upon a determination of the Fair Markat Value of such Equipment, such value shall be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by Lessor, The appraiser shall be instructed to make such determination within a period of 45 days following appointment, but
in
no event later than 10 days prior to the expiration of the Term of the Lease, and shag promptly communicate such determination in writing to Lessor and Lessee. The appraisers
determination of such Fair Market Value shall be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shag be bome by Lessee.
13. PRIME RATE: The "Prime Rate" will mean the Prime Rate as published from time to time in the Money Rates section of The Wall Street Journal as the base rate on corporate
loans. If more than one Prime Rate or a range of rates is published, the Prime Rate will be highest of the published rates. In the event the Prime Rate as published in The Waft Street
Journal ceases to exist or The Wall Street Journal ceases to publishing a Prime Rate. CRICapital wig substitute a comparable index that is outside the control of CitiCapital. In the
event
of an error by The Waft Street Journal, the "Prime Rate' will be based upon the Prime Rate as corrected.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to modified accelerated cost recovery (or depreciation) deductions with respect to the Equipment, and
sWuld, under any circumstances whatsoever, except as specifically set forth below, either the United States government or any state tax authority disallow, eliminate, reduce,
recapture, or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (or depreciation) deductions with respect to any Equipment, Lessee shall then indemnify
Lessor by payment to Lessor, upon demand, of a sum which shall be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full term of this Lease)
the same after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Return") that Lessor
woad have realized had there not been a toss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed by the
governmental authority with respect to such loss or disallowance. In addition, it Lessee shag make any addition or improvement to any Equipment, and as a result thereof, Lessor is
required to include an additional amount in its taxable intone, Lessee shall also pay to Lessor, upon demand, an amount which shall be equal to the amount necessary to permit Lessor
to receive (on an after-tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or improvement not been made. Lessor
and Lessee agree that the Class Life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule. Lessee shag not be obligated to pay
any sums required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from one or more of the following events: (1) a failure
of Lessor to timely claim modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lassoes tax return, other than a failure resulting from the Lessors
determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cost recovery (or depreciation) deductions, or (2) a failure of Lessor
to have sudfident gross income to benefit from accelerated cost recovery (or depredation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any federal or
state tax authority against the Lessor with respect to the disallowance of cost recovery (or depreciation) deductions.
All amounts payable by Lessee pursuant to this section shag be payable directly to Lessor. All the indemnities contained in this section shat) continue in full force and effect
notwithstanding the expiration or other termination of the Lease in whole or in part and are expressly made for the benefit at, and shall be enforceable by, Lessor. Lessees obligations
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under some other agreement by another party.
The obligations of Lessee under this section are expressly made for the benefit of, and shag been forceable by, Lessor without necessity of declaring the Lease in default and Lessor
may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have.
15. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations to Lessor, such default shall be considered an abandonment of all options herein and erg options
herein shalt immediately expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: it is agreed that Lessee's rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unless in
writing and signed by an officer of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shall occur if: (a) Lessee fails to pay when due any amount owed by it to Lessor or any affiliate
(including, without limitation, arty direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any
amount
owed by it to Lessor or any affiliate (including, without Imitation, any direct or indirect parent, subsidiary or sister entity), successor; (b) Lessee breaches any warranty or provision
hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and any affiliate (including, without fimftatlon, any direct or indirect
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes an assignment forthe benefit of
creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors; (d) any property of Lessee is attached; (a) a
petition
in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future statute, law or
reguialion; (f) Lessee or its shareholders take any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or for any substantial part of
its
property, (h) if there shag occur an (i) appropriation, (ii) confiscation, (a)) retention, or (iv) seizure of control, custody or possession of the Equipment by any governmental authority
including, without limitation, any municipal, state, federal or other governmental entity or any governmental agency or instrumentality (act such entities, agencies and instrumentalities
stag hereinafter be collectively referred to as "Governmental Authority"); (n) if anyone in the control, custody or possession of the Equipment or the Lessee is accused or alleged or
charged (whether or not subsequently arraigned, inducted or convicted) by any Governmental Authority to have used the Equipment in connection with the commission of any crime
(other than a misdemeanor noving violation); 0) there shall be a material adverse charge in any of the: (i) condition (financial or otherwise), business, performance, prospects,
operations or properties of the Lessee (ii) legality, validity or enforceability of this Lease, (iii) perfection or priority of the lien granted in favor of to Lessor pursuant to this
Lease, (iv)
ability of the Lessee to repay the indebtedness or perform its obligations under ibis Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (k) there shag be
a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee under this lease; or (1) except for the security interest, lien or reservation of title in favor of Lessor
or as
otherwise granted herein, there shall be any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee shall be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare all sums due and to become
due hereunder and all other sums then owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or instrument; (b)
declare all other debts then owing by Lessee to Lessor or any affiliate (including, without limitation, any direct or indirect parent, subsidiary or sister entity),successor or assignee
of
Lessor to be immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by Lessee of any
and all provisions of this Lease and to recover the damages for the breach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's
expense at such place as Lessor may designate which is reasonably convenient to both parties; (e) exercise one or more of the rights and remedies available to a secured party under
the Uniform Commercial Code, whether or not this transaction is subject thereto; (r) enter, or its agents may enter, without notice or liability or legal process, into
Page 3 of 5 of Lease Agreement Gated 11121105 bet," „ HAMPTON CONSTRUCTIrNt )AANAGEMENT, LIMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lemur) which includes, without (imitation, an item of Equipment with the following serial number.
CJC01117 Less
704004 -3 Rev 082004
Ise04D04. Wpd Litt LeaeNFixed Rate
1.17 ORIGINAL FOR CITICAPITAL 1.247888.1.0 XC:20051107071017
any premises where the Equipment may be, or is believed by Lessor to be, and repossess all or any pad thereof, disconnecting and separating the same from any other property and
using an force necessary and permitted by applicable law, Lessee hereby expressly waiving all further rights to possession of the Equipment after default and all daims for injuries
suffered through or loss caused by such repossession; and/or (g) apply any security deposit or other amounts held by Lessor to any indebtedness of Lessee to Lessor.
In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, holding,
preparing for sale, selling and the like, including reasonable attorneys fees and other legal expenses, less (3) any amount actually received by Lessor from the re-lease, sale or other
disposition of the Equipment. Lessee hereby waives arty right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained wig require Lessor to release, sell
or otherwise dispose of the Equipment No remedy of Lessor hereunder shalt be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in addition
to every other remedy- A waiver of a default shall not be a waiver of any other or a subsequent default. if allowed by law, 'the reasonable fees for attorneys" retained by Lessor shall
include the amount of any nail fee, retainer, contingent fee or the hourly charges of any attorney retained by Lessor in enforcing any of Lessors rights hereunder or in the prosecution
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. AN notices to Lessee relating hereto will be considered received when delivered in
parson or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lessor may sell the Equipment without giving any warranties
as to the Equipment. Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the commercial
reasonableness of any sale of the Equipment.
18. INDEMNITY: Lessor (which term as used herein includes Lessors successors, assigns, agents, and servards) shall have no responsibility or liability to Lessee, its successors or
assigns or any other person with respect to any Liabilities (as "LlabllWeV is herein defined), and Lasses hereby assumes liability for, and hereby agrees, at its sole cost and expense,
to indemnify. defend, protect and save Lessor and keep it harmless from and against, arty and all Liabilities. The term'Uabitifies" as used herein shell include any and all liabilities,
obligations, losses, damages, penalties, damns, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or not
any transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
and in any way relating to or arising out of this Lease or the selection, manufacture, purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use, operation,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, return or other disposition of the Equipment (including without lirriil rtion, (i) claims as
a result of
laterd or patent defects, whether or not discoverable by Lessor or Lessee, (k) claims for trademark, patent or copyright infringement, and (iii) tort dams of any kind (whether based
on
Lessors alleged negligence or otherwise). including claims for injury or damage to property, or injury or death to any person (including Lessee's employees) or, for any claim or liability
hereby indemnified against. The indemnities arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION,IS NECESSARY TO PERFECT AND/OR GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESSEE TO
LESSOR', AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT MI-ETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such documents,
writings, records and assurances as Lessor deems necessary or advisable for the corprmabon or perfection of the security interest in Equipment and Lessors rights hereunder,
including such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any officer, employee or designee of Lessor or
any assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or designee of
Lessor or any assignee of Lessor (or any designee of such assignee) to file financing statements Covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint venture, or other entity (herein
collectively, the "Entity), including, without limiting the generality of the foregoing, Lessors parent or any affiliate or any subsidiary of Lessor and any credit reporting agency or
other
entity whether or not related to Lessor for any purpose, information about Lessees accounts, credit application and credit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessees accounts, credit experience and account information regarding the Lessee. This shall be continuing authorization for all
present and future disclosures of Lasses's account information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to release
such information to Lessor
21. DEBIT TRANSACTIONS: Lessor may bul shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor through printed checks ("Debit
Transactions' drawn pursuant to this authorization upon Lessee's checking accourd. using Lessees checking account number, bank routing code and other information which Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to initiate Debit Transactions from Lessee's checking account in the amount necessary to pay the rental
payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by Lessor, plus
a fee of ten dollars ($10.00) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable under this
provision shelf be Kmited and/or restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior written notice
addressed to Lessee's last known address as shown out the records of Lessor and such Increase or decrease shall be effective as stated in the written notice. Unless prohibited by
applicable law, lessees continued use of Debit Transactions idler the effective date specified in such notice shall conclusively establish Lessees agreement to pay the new Debit
Transaction fee stated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer our any printed check drawn in
accordance with this authorization. Until cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations hereunder
or
under any other present or future agreement with or which is held by Lessor. This authorization may be canceled at any time by Lessee giving at least three (3) business days prior
written notice to Lessee's bank and Lessor. Payment by Debit Transactions is not required by Lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however, if for
purposes of perfection, this contract is interpreted by any court as a lease intended as security, Lessee grants to Lessor, its affiliates (including, without
limitation, any direct or indirect parent, subsidiary or sister entity, successors and assigns a security interest in the Equipment to secure the payment and
performance of all debts and afh liabilities of Lessee to Lessor o every kind and character, whether now existing or hereafter arising and whether direct,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirec( parent, subsidiary or
sister entity), successors or assigns of Lessor, now existing or hereafter ansing, whether under this Lease or any other agreement, and whether due directly or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redefivery of the Equipment to Lessee. Upon
any assignment of this Lease by Lessor, the assignee shall then be deemed the Lessor for purposes of this provision. All payments made by Lessee to Lessor
with reference to this Lease shall be applied first to any indebtedness which is not secured, then to late charges then to any other fees or other amounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purchase money debt. This provision controls
over any conflicting provision or language in this Lease or in any other agreement between Lessor and Lessee unless the parties mutually agree in writing in a
subsequent agreement to override this provision. (Bl Any provisions hereof contrary to,. prohibited by or invalid under applicable laws or regulations shall be
inapplicable and deemed omitted here rom, but s a l not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to herein
constitute the entire agreement of the parties hereto. No oral aggr?eement, guaranty, promise, condition, representation or warranty shall be binding. All prior
conversations, agreement or representations related hereto andlor to the Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute "chattel paper" for
purposes of the Uniform Commercial Code is the on'goral of this Lease marked 'Ottgginal for CHiCapital.' (E ANY ASSIGMENT OR TRANSFER OF THIS
LEASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CMCAPITAL COMMERCIAL LEASING CORPORATION OR ITS AFFILIATES
("CITICAPITAL") VIOLATES THE RIGHTS OF CMCAPiTAL.
23. RENEWAL: Unless Lessee notifies Lessor in writing at least ninety (90) days prior to the expiration of the Term of Lessees intention to return the Equipment or to exercise arty
option to purchase, or Lessor notifies Lessee In writing at least ninety (90) days prior to the expiration of the Tenn of Lessors intention to terminate this Lease, this Lease will
automatically renew and continue on a month to month basis following the initial Term (Renewal Term) until such time as either Lessor or Lessee provides the other party with at
least ninety (90) days prior written notice of that party's intention to terminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice period.
All of the terms and provisions of this Lease shall govem during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shall automatically
expire on the expiration of the Term and shall be inapplicable to any Renewal Term.
Page 4 of 5 of Lease Agroemenl Oaletl t t/21/05 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO. ING (Lessor) which indudas, without imitation, an item of Equipment with the follovring seriat rwmber.
CI=117 Le 's Initials
704004 -3 Rev 082004
Iaa04004.wpd Lift Leas Rymd Rate ORIGINAL FOR CITICAPITAL
1.17 1.247888.1.0 XC:20051 1 0707 1 0 1 7
24. RETURN OF EQUIPMENT: if Lessee does not exercise, or is precluded from exercising, the option to purchase the Equipment at the expiration of the Tenn or any Renewal
Term of this Lease. Lessee shall, at Lessee's sole cost and expense, return all, but not less than all, of the Equipment to Lessor immediately upon the expiration of the Term or any
Renewal Term of this Lease pursuant to the terms and condi6ars contaired in Lessors Standard Return Conditions for equipment similar to the Equipment subject to this Lease (a
copy of which has been delivered to Lessee in conjunction with this Lease). If Lessee does not surrender the Equipment to Lessor as herein provided, Lessee will be in default of this
Lease as to such Equipment, and Lessee shall pay Lessor. as liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the Monthly Rental
Payment applicable to such Equipment. Such payment shall commence with the month immediately following the end of the Term or any Renewal Tenn and shalt continue thereafter
monthly until the Equipment is returned to Lessor. Lessee agrees that such frgtidaled damages are a reasonable estimate and fair compensation for the costs, expenses, residual
value exposure and other losses, which are incapable of an exact determination, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the end of
the Tenn or any Renewal Tern. Notwithstanding the foregoing. Lessor shall have the right to obtain immediate possession of the Equipment at any time after the end of the Term or
any Renewal Term for such Equipment.
25. LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability company, limited partnership or other registered organization, its state of organization is in the state set
forth on the last page of this Lease; (b) if Lessee is an individual, hiwlw principal place of residence Is at the address set forth on the last page of this Lease; (c) 4 Lessee is an
organization, its pace of business or if I has more than one place of business, its chief executive office is located at the address set forth on the last page of this Lease. Lessee
agrees that it will not, without the prior written consent of Lessor, change its state of organization if it is a corporation, limited liability company, limited partnership or other
registered
organization or the location of its chief executive office or its place of business if it is an organization. If Lessee is en individual, Lessee must notify Lessor in writing of a change
in
his/her principal place of residence 30 days prior to such change.
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the account
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessee's financial institution for
payment from the account referenced on Lessee's check-
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL
To help the United States Government fight terrorism and money laundering. Federal law requires us to obtain, verify, and record Information
that identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open an
account or establish a relationship, we will ask for your name, street address, date of birth, and Identification number, such as a social security
number or taxpayer identification number. For businesses, we will ask for the business name, street address and tax identification number.
Federal law requires us to obtain this Information. We may also ask to see your driver's license or other identifying documents that will allow
us to identify you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all Circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 3/18105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER MTH ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
By V4. (II co,ponsm or imitad Mbiaty company, an "he&" pally mu arW slaw her or
his title. tf united pat-hip. a general panner natal sign show that 1hh. If role
proprWwW fp, Iben zok proprietor mud lion and show that title. if individual, then
itikid-Il fwWd sign and show tab" Individuagr. )
Title e t"` S1 a.,?
21105
Date: III Federal Tax 11) # or SSN:
LESSOR; CLEVELAND BROTHERS EQUIPMENT CO., INC.
By -- -
Tttle 1J? ? "r` `"- Date: 1121/05 Federal Tax ID #:
Date of Birth:
(individual/Sole Proprietor)
State of Organization PA
Pape 5 of 5 of Lease Agreement dated 11!2'1/03 between HAMPTON CONSTRUCTION MANAGEMENT. UMITED (Lessee) and
CLEVELAND BROTHERS EQUIPMENT CO.. INC. (Lessor) which includes, without imitation, an item of Equipment with the following seal number.
CJC011f7 _
704004'3 Rev 082004
Ise04004.wpd Lift LeaselFixed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247888.1.0 XC:20051107071017
EXCAVATOR STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnuallAllowed Hours"), Lessee agrees to pay additional rental equa to a monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage far portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours:
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as tube oil and hydraulic tluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Undercarriage. Track components, including rails, pads, sprockets, idlers and rollers shall have at least
50% wear life remaining in accordance to measurements per the manufacturers guidelines.
C. Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that type) as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs an d will have at least 50% of tire wear remaining in usable
condirion.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturers warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including, but not limited to, pumps,
motors, planetaries, and wet brake systems will be in good condition and operate quietly without vibrations or
leaks.
G. Brakes. The brake system includin the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and sto or hold machine safely during normal operation. No drums or other braking
components will be damaged por cracked.
H. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pms. Boom cycle times and steering
functions must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Boom and stick must be straight and in good condition with no visible repairs.
Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have a propriate ANSI inspection certificates,
permits and other cert ification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business Its during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/inspection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if judgment
fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT LIMITED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By: -X ` By: (?? - .
Title: P43 r )" ? Title: 1
,w,
citicapitalJ
DELIVERY AND ACCEPTANCE CERTIFICATE
To-. C' CitiCapital 11)
Reference is made to the contract dated
(the "Contract") between the
undersigned and CLEVELAND BROTHERS EQUIPMENT CO. INC. ( elleftessor)
(the "Dealer") for the lease or purchase of the property (the "Property-) oescrtoea merelrl.
The undersigned hereby Confirms and agrees as follows:
The Property was delivered to undersigned at the location designated in the Contract on __3118105
(Date)
All installation and other work necessary for the proper use of the Property, if any has been completed.
The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. CitiCapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 157.857.88 and the present unpaid balance or total rentals is $ 157,857.88
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CitiCapital HAMPTON CONSTRUCTION MANAGEMENT, L1MtTE0
Buyer
Dated __ 111205 (Name of individual(s), corporation or partnership.)
By , faL? /?
(it corporation, authorized officer must sign and shov6 ale title, if partnership, a
gene`aWdner must sign. Ir owner(s), show which.)
Title
Co-Buyer
By
(if co-buyer, co-partner or co•olrrcer, sign here and show which.)
Title
625024 Rev. 7-92
Dealer Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp. Amember of cltlgroupT
1.247688.1.0 XC:20051107071017
AOW
ASSIGNMANDOF LEASE aticapitaf
BILL OF SALE TO EQUIPMENT
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
11/21105 3/18105
Address: Guarantor(s): Date of Guaranty: 3607 CAM ALE DR HARRY I MORRIS Jr.
CAMP HILL 1LL PA 17011
E ulPPment: Monthly Rental:
(1 CATERPILLAR HYDRAULIC EXCAVATOR 315CL SIN CJC01117 1,816.22
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the following
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to C171CAPITAL COMMERCIAL LEASING CORPORATION and Its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located at the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, accessories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or other
documents, instruments or certificates executed or delivered in connection with the Lease;
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Documents, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments and all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Value (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same condition as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then present
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the normal use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Paragraph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from their
respective due dates at the rate of 0.00 %. Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts payable
under the Lease as of that date.
11121105 between
Page l of 3 at'CLA6B??1E? E?uiPMEATCC?
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
J--) a
with the following serial number CJC01117
701306
1.00
CITICAPITAL is a service mark of Citicorp.
(Lessor) which includes, without limitation, an item of Equipment
1.247888.1.0 XC:20051107071017
Amember of cttlgroup'T
3.
Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's rights and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
Assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Assignor's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjust any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all original
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of its
obligations under any of the Documents.
Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution of this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any interest in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoever; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addresses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties to the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipment has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rights of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental or other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in cash or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor; the Equipment was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, and was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor has no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a default
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will continue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documents and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action which may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agreement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligations with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Documents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the date of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid rentals or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11121105 - between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., iNC. (Lessor) which includes, without limitation, an item of Equipment with
the following serial number CJC01117
701306
1.00
1.247888.1.0 XC:2005 1 1 0 7071 0 1 7
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equipment,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any kind in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any kind in
any of them. Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to secure
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise- Unless otherwise agreed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assignor to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be held by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreement with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event of any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value calculated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereunder,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Documents
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expenses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligated to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiver of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreement will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptance of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rights
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assignee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHETHER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE WILL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVISION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR THE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR ANY
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNOR'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11121105
Page 3 of 3 of Assignment of Lease dated 11121105
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC.
the following serial number CJC01117
701306
1.00
ASSIGN R: CL L SROTHERSEQUIPMENT. CO.
By:
Title:
between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessor) which includes, without limitation, an item of Equipment with
1.247888.1.0 XC:20051107071017
Exhibit F
2\
Name and Address of Lessee ("Lessee")
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DRIVE
CAMP HILL
Ad%k
Lease Agreement citicapltalJ
Name and Address of Lessor ("Lessor)
CITICAPITAL COMMERCIAL LEASING CORPORATION
90 MATAWAN ROAD, STE 102
MATAWA
DESCRIBE EQUIPMENT FULLY I LESSOR'S COST
Equipment Total Cost $ 122,000.00
(1) PETERBLT (PACCAR) TRUCK 33S SIN 2NPLHD6X97M685087,WITH AUTOCRANE TITAN 6014' Shipping & Handling Cost $
AND MECHANIC SERVICE BODY SIN 605KI120-0606-088
Installation Cost $
Other (Specify) 456.00
TOTAL COST $
LOCATION OF EQUIPMENT:
3607 HARTZDALE DRIVE CUMBERLAND CAMP HILL PA 17011
A. TERM: 60 Months following the first day of the Each installment in the groups below is payable on a consecutive monthly ba
month after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
1 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to the
first of the following month calculated as Monthly Rental divided by 30
times the number of days from the Delivery Date through the end of
the month in which the Equipment is delivered plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 0.00
E. RENTAL PAYMENT: - B0 Payments of $ _1_913,61
744.85
36
PLUS APPLICABLE TAXES ,
H. PURCHASE OPTION PRICE AT END OF TERM:
F. SECURITY DEPOSIT: 0.00 Plus Applicable Taxes
Any Termination Value Table attached to this Lease is a part of and
incorporated into the terms of this Lease. 1. TAX LEASE STATUS:(check one and initial)
X Tax Lease: If checked, this Lease is a Tax Oriented Lease and
G. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT
the provisions of Paragraph 13 of this Lease apply.
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO O
LESSOR. IN TERIM RENTAL IS PAYABLE UPON DELIVERY OF Non-Tax Lease: If checked, this Lease is not a Tax Oriented
THE EQUIPMENT. Lease and the provisions of Paragraph 13 of this Lease do not apply.
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON J. 5 MACRS Class Life of Equipment.
THE FIRST DAY OF OCTOBER 06 (MOIYR).
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease") and the obligations and liabilities of Lessee under this Lease are effective on the date
of Lessor's acceptance of this Lease (-Effective Date'), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under and subject to the terms and provisions hereof until the end of the Term
specified above ("Term"), the personal property described above and on any supplemental schedule(s) identified as constituting a part of this lease (herein, with all present and
future attachments. accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as "Equipment). This Lease is for the Term commencing on the
date the Equipment is delivered to Lcssee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments
(including advance and interim rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments are payable without notice or demand. Ali amounts payable under this Lease to Lessor are
payable at Lessors address set forth herein or at such other address as Lessor may specify from time to time in writing, Except as otherwise specifically provided herein,
Lessee's obligation to pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under all circumstances,
regardless of any set-off, counterclaim, recoupment, defense or other claim whatsoever. Any Security Deposit is held as security for Lessors obligations and will be refunded in
fug, without interest, upon payment in full of these obligations.
Page 1 of 5 of Lease Agreement dated 915106 between RAMPTON CONSTRUCTION MANAGEMENT, LIMITED (lessee) and
CITICAPITAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without limitation, an item of Equipment with the following serial number,
2NPLK06X97M665037 _
702004 -2 Rev0&*004 ORIGINAL FOR CITICAPITAL Lessee's )nitials
1xe02004 wpd StandardFMV Tax Lease
t.td
CITICAPITAL is a service mark of Citicorp. 1.293683.1.0 XQ20060831092533 Amember of citigroupT
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due, Lessee agrees to pay Lessor a delinquency charge
calculated thereon at the rate of 1 1R% per mwrrlh for the period of delinquency or, at Lessor's option 5% of such Rental Payment or other sum due under this Lease, provided that such
a delinquency charge is not prchbited by law, otherwise a the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally called. Lessee agrees to reimburse Lessor
invnediately upon demand for any amount charged to Lessor by arty depositary institution because a check, draft or other order made or drawn by or for the benefit of Lessee is returned
unpaid for any reason arid, it allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the amount of such
reinbursement andlar handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
5, NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction
for tax or other purposes. Lessee ack aMedges and agrees that: the Equipment is of a size, design, capacity and manufacture selected by Lessee; Lessor is not the manufacturer of
the Equipment or the manufacturer's agent: LESSEE LEASES THE EQUIPMENT "AS IS' AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY,
FITNESS OR SUITABILITY OFTHE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, E(PRESSOR IMPLIED.
Lessee will not assert any, claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or make any settlement with the manufacturer or seller
to
Lessor of the Equipment (both herein railed "Seller'} without Lessor's prior written consent, and the selection, servicing and maintaining of the Equ iprrent shall be entirely at Lessee's
risk
and expense. Lessee agrees, at its own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any, published instructions or specifications of the Seller and with all of the
terms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted by law with respect to the
Equipment; (d) to maintain the Equipment in good operating oondtion, repair and appearance; and (e) to furnish Lessor promptly with such financial statements and other information as
Lessor may reasonably request from time to time.
5. TERMINATION VALUE: "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have executed a
Termination Value Table with respect to this Lease, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Termination Value Table with respect to this Lease, the Termination Value as of any date
shall mean an amount equal to the total of all accrued and unpaid Rental Payments and all other amounts then due and remaining unpaid pars the greater of: (a) the then Fair Market
Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment as of that date in the same condition as when received by Lessee, reasonable wear and tear from
the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrued and unpaid
Rental Paymerts and all other amounts then due and remaining unpaid pis the then present worth of all tnaccrued Rental Payments pis either () the Purchase Option Price, or (ii) if no
purchase option is offered, the Fair Market Value (as deterrned in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when received by Lessee,
reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease Present worth shall
be determined by rfisaanting such unaccrued Rental Payments from their respective due dates at the Rate of t_ao %
7. INSURANCE: Lessee shall bear all risk of lass of, damage to, or destruction of the Equipment from the date of its delivery until its return. If, for any reason, any of the Equipment
is
lost, stolen, destroyed or damaged beyond repair. Lessee shall (a) immediately and fully inform Lessor with regard thereto, and (b) promptly pay to Lessor the Termination Value
calculated as of the date of payment thereof. Arty arrourts actually received by Lessor from insurance or otherwise on Lessee's behalf for such loss or damage shall be applied to reduce
Lessee's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction of the Equipment or the total or partial loss of use or possession thereof
to
Lessee, shall not release or relleve Lessee from its obligations and !abilities under this Lease. Lessee agrees to procure and maintain at all times on and after the Effective Date such
liability, physical damage and other insurance as Lessor may require from time to time. Lessee agrees that all such insurance shall be in form and amount and with insurers satisfactory
to Lessor, and that Lessee will deliver promptly to Lessor certificates or, upon request, policies satisfactory to Lessor evidencing such insurance. All liability policies shall name
Lessor as
an additional insured, and an physical damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their interests may appear. Each policy shall provide
that Lessor's interest therein shall not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain the insurers agreement to give Lessor at least
30
days prior written notice before cancellation or any material change in the policy shall be effective as to Lessor, whether such cancellation or charge is at the direction of Lessee
or the
insurer.
a. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other governmental charges (including any penalties and interest, and any fees for tales or registration)
levied or assessed against Lessee, Lessor or the Equipment, upon or with respect to the lease or the purchase, use, operation, leasing, ownership, value, return or other disposition
of the
Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessor's net income. Unless Lessor notifies Lessee In writing otherwise,
Lessor will file all returns and remit all personal property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor for all such personal property taxes
immediately upon recelp of Lessor's Invoice including without llmttatfon such taxes assessed or arising during the term of this Lease but remitted by Lessor after the
termhlation of this Lease,
At Lessors option, Lessee agrees to remit, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessor's reasonable estimate of the personal
property taxes that will be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's
obligations under this paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any
surphis will be either credited to Lessee's other obligation to Lessor or returned to Lessee. I requested, Lessee agrees to file promptly on behalf of Lessor all requested tax returns
and
reports concerning the Equipment in forth satisfactory to Lessor, with all appropriate governmental agencies and to nail a copy thereof to Lessor concurrently with the fling thereof.
Lessee further agrees to keep or cause to be kept and mein available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes,
assessments and other governmental charges. The obligations arising under this paragraph shall survive payment of all other obtigatlons under this Lease and the termination
of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at ad times remain in Lessor and Lessee will at all times, at its own cost arc
expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and clear from all such claims,
liens and processes. Lessee agrees not to after or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or terninatior
of this Lease, Lessee, at Lessee's sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition as when receivec
by Lessee, reasonable wear and teat resulting from normal use thereof atone excepted. Lessee shall, upon Lessor's request, and at Lessee's own expense firmly affix to the Equipment.
In a conspiwous place, such label, sign or other device as Lessor may supply to identfhy Lessor as the owner and lessor of the Equipment. If Lessee fails to perform duly and promptty
any of its obligations under this Lease (including, without irritation, insuring the Equipment), Lessor may perform the same, but shall not be obligated to do so, for the account of
Lessee
to protect the interest of Lessor or Lessee or both, at Lessor's option. Any amount paid or expense (including reasonable attorney's fees), penalty or other liability incurred by Lessor
it
such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be ta'pt by Lessee at the location 4xicated herein, and wil
riot be removed from said location without the prior written consent of Lessor. Lessor shall have the right to inspect the Equipment at all reasonable times and from time to time as
Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without lessors prior written consent. Lessor or any assignee or successor of Lessor stall have the no to transfer, sell or assign ad or any portion of this Lease or the indeblednese
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL NOT ASSERT
AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR BREACH OF
WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER THIS LEASE EXCEPT
DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor, Lessee agrees that 9 will not, without the
prior written consent of the assignee, purchaser or secured party, (i) prepay any amounts owing under this Lease; (it) modify or amend this Lease; or (ii) exercise any rights which are
exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: PURCHASE OPTION: It the amount set forth as the Purchase Option Price is $-0- or is left blank, Lessee shall have no option
whatsoever to purchase any of the Equipment. If "FMV" or a dollar amount other than $-0- is indicated as the Purchase Option Price, Lessee is not then in default and Lessee has paid
all other amounts payable under the terms of this Lease, Lessee shall have the option to purchase all but not less than all of the Equipment subject to Ihis Lease at the end of the Tenn
of
this Lease at the Purchase Option Price indicated. If -FMV" is designated as the Purchase Option Price, the purchase price shall be the Fair Market Value of the Equipment in the return
condition required at the end of the Tema. Any sales or other applicable taxes and any personal property or other taxes (whether or not then payable) assessable against the Equipment
shall be the responsibility of Lessee and will be payable to Lessor along with the Purchase Option Price.
Page 2 of 5 of Lease Agreement dated 915M between HAMPTON eoNSTRUCTION MANAGEMENT, UMITED (Lessee)
and CITICAPITAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without limitation, an item of Equipment with the following serial number;
2NPLH06x97M611Saa7 Lessee's In' Pals
ORIGINAL FOR CITICAPITAL
702004 .2 Rev 0612004
Ise02004.wpd Standard/FMV Tax Lease 1.293683.1.0 XC:20060831092533
1.14
Lessee must notify Lessor in writing at least ninety (90) days prior to the expiration of the Term of Lessee's intention to return the Equipment or to exercise any option to purchase.
Failure to give such notice or to pay the Purchase Option Price on or before the expiration of the Term wig fender Lessee's option to purchase null and void. Lessor is authorized and
directed to apply the amount of any security deposit to the Purchase Option Price and the balance, if any, of the Purchase Option Price must be received by Lessor no later than ten
(10) days after ft last day of the Lease Term. Upon receipt of the total Purchase Option Price and all other amounts payable under this Lease. Lessor shall convey the Equipment to
Lessee AS IS, WHERE IS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
12. FAIR MARKET VALUE: The term "Fair Market Value" as used herein shall be detemlined on the basis of, and shall be equal in amount to, the value which the Equipment
would obtain in an arms length sale transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an informed and wilting seller under no
compulsion to sell and assuming that the Equipment is then in the condition required under the terns of the Lease. If on or before 60 days prior to the expiration of the Term of the
Lease. Lessor and Lessee are uroble to agree upon a determ nation of the Fair Market Value of such Equipment, such value shag be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by lessor. The appraiser shall be instructed to make such determination within a period of 45 days following appointment, but
in
no evert Later than 10days prior to the expiration of the Term of the Lease, and shall promptly communicate such detemriration in writing to Lessor and Lessee. The appraiser's
detemrination of such Fair Market Value shag be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be borne by Lessee.
13. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to modified accelerated cost recovery (or depreciation) deductions with respect to the Equipment, and
should, under any circumstances whatsoever, except as specifically set forth below, either the United States government or arry state tax authority disallow, eliminate, reduce, recapture,
or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (or depreciation) deductions with respect to any Equipment, Lessee shall then indemnfy Lessor
by
payment to Lessor, upon demand, of a sum which shall be equal to the amourtt necessary to permit Lessor to receive (on an after-tax basis aver the fug term of this Lease) the same
after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Return's that Lessor would have
realized had there not been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed by the governmental authority
with respect to such loss or disallowance. In addition, if Lessee shall make any addition or improvement to any Equipment, and as a result thereof, Lessor is required to include an
additional amount in its taxable income, Lessee shall also pay to Lessw, upon demand, an amount which shall be equal to the amount necessary to permit Lessor to receve (on an after-
tax basis over the full term of this Lease) the same Economic Return Ihal Lessor would have realized had such addition or improvement not been made. Lessor and Lessee agree that
the Class Life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule.
Lessee shag not be obligated to pay any sums required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from one or more
of the following events: (1) a failure of Lessor to timely claim modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lessors tax return, other than a
failure
resulting from the Lessor's determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cast recovery (or depreciation) deductions,
or (2) a failure of Lessor to have sufficient gross income to benefit from accelerated cost recovery (or depreciation) deductions. Lessor agrees to promptly notify Lessee of any claim
made by any federal or state tax authority against the Lessor with respect to the disallowance of cost recovery (or depreciation) deductions. All amounts payable by Lessee pursuant to
this section shag be payable directly to Lessor. All the indemnities contained in this section shall continue in full force and effect notwithstanding the expiration or other termination
of the
Lease in whole or in part and are expressly made for the benefit of, and shall be enforceable by, Lessor.
Lessee's obligations under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under some other
agreement by another party. The odigatiors of Lessee under this section are expressly made for the benefit of, and shall be enforceable by, Lessor without necessity of declaring the
Lease in default and Lessor may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have
14, DEFAULT BY LESSEE: If Lessee at any time defaults in any of is obligations to Lessor, such default shall be considered an abandonment of all options herein and alt options
herein shall immediately expire and become nult and void
15. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unless in
writing and signed by an officer of the party to be charged
16. DEFAULT AND REMEDIES: An event of default shag occur if: (a) Lessee fails to pay when due any amount owed by it to Lessor or any affiliate (including, without limitation, any
direct or indv ct parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any amount owed by f to Lessor or any affiliate
(induding, without limitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under any otter document, agreement or instrument; (b) Lessee
breaches any warranty or provision hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and arty affiliate (including, without
limitation, any direct or indirect parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes
an
assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors: (d) any property
of Lessee
is attached; (e) a petition in bankruptcy or for an arrangement, reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present
or future
statute, law or regulation; (1) Lessee or its shareholders take any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or forany substantial
part
of its property; (h) if Ihnere shag occur an (i) appropriation, (ii) confiscation, (d) retention, or (iv) seizure of cordrol, custody or possession of the Equipment by any govemmental
authority
including, without lirritatoR any municipal, state, federal or other governmental entity or any governmental agency or instrumentality (all such entities, agencies and instrumertaldies
shall
hereinafter be collectively referred to as 'Governmental Authority"); (i) if anyone in the control, custody or possession of the Equipment or the Lessee is accused or alleged or charged
(whether or not subsequently arraigned, indicted or convicted) by any Governmental Authority to have used the Equipment in connection with the cammission of arty crime (other than a
misdemeanor moving violation); (j) there shall be a material adverse change in any of the: (k) condition (financial or otherwise),business, performance, prospects, operations or
properties of the Lessee (4) legality, validity or enforceability of this Lease, (iii) perfection or priority, of the lien granted in favor of to Lessor pursuant to this Lease, (N) ability
of the Lessee
to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (1) there shall be a death of a majority
owner
of Lessee or a guarantor of the obligations of Lessee under this Lease; or (m) except for the security interest, lien or reservation of title in favor of Lessor or as otherwise grafted
herein,
there shag be any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee shall be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare as sums due and to become
due hereunder and all other sums then owing by Lessee to Lessor to be immediately due and payable; (b) declare all other debts then owing by Lessee to Lessor or any affifiate
(including, without fimitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor to be immediately, due and payable, (c) proceed by appropriate
court action or actions or other proceedings efther at law or in equity to enforce performance by Lessee of any and all provisions of this Lease and to recover the damages for the breach
lhereot(d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's expense at such place as Lessor may designate which is reasonably convenient
to both parties; (e) exercise one of more of the rights and remedies available to a secured party under the Uniform Commercial Code, whether of not this transaction is subject thereto;
(1)
enter, or its agents nay enter, without notice or liability or legal process, into arty premises where the Equipment may be, or is believed by Lessor to be, and repossess all or any
part
thereof, disconnecting and separating the same from any other property and using all force necessary and permitted by applicable law, Lessee hereby expressly, waiving all further rights
to possession of the Equipment after default and all claims for injuries suffered through or loss caused by such repossession; and/or (g) apply any security deposit or other amnurds
held
by Lessor to any, indebtedness of Lessee to Lessor. In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penally, (1) the Termination
Value plus (2) all expenses of retaking, holding, preparing for sale, selling and the like, including reasonable attorneys fees and other legal expenses, less (3) any amount actually
received by Lessor from the re-lease, sale or other disposition of the Equipment. Lessee hereby waives any right to trial by jury in arty proceeding arising out of this Lease. Nothing
herein contained will require Lessor to re-lease, sell or otherwise dispose of the Equipment. No remedy of Lessor hereunder shall be exclusive of any other remedy herein or provide by
law, but each shall be cumulative and in addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default If allowed by law, '1 he
reasonable fees for attorneys' retained by Lessor shag include the amount of any flat fee, retainer, contingent fee or the hourly charges of arty attorney retained by Lessor in enforcing
any of lessor's rights hereunder or in the prosecution of defense of any litigation related to this Lease or the transactions contemplated by this Lease. All notices to Lessee relating
hereto will be considered received when delivered in person or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lessor
may sell the Equipment without giving any warranties as to the Equipment Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not
be consideredto adversely affect the comunercial reasonableness of any sale of the Equipment.
17. INDEMNITY: Lessor (which tern as used herein includes Lessors successors, assign, agents, and servants) shall have no responsibility or liability to Lessee, As successors or
assigns or any other person with respect to any Liabilities (as "Liabilities" is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and expense,
to
indemnify, defend, protect and save Lessor and keep it harmless from and against, any and all 1-Jaba3ies. The tern liabilities" as used herein shall include any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or not any
transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
Page 3 of 5 of Lease Agreement dated WSr06 between HAMPTON CONSTRUCTION MANAGEMENT LIMITED
(lessee) and
CITICAPRAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without IimAation, an item of Equipment with the following serial number:
2NPLHD6X97M685087
702004 '2 Rev 082004 Lessee's Initials
1se02004.wpd ShndardFMV Tax Lead
1.14 ORIGINAL FOR CITICAPITAL
1.293683.1.D XC:20060831092533
and in any way relating to or a rising out of this Lease or the selection, manufacture, purchase, acceptance, ownership, delivery, rondetivery, lease, possession, use, operation,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, return or other disposition of the Equipment (including without imitation, (i) claims as a result
of tatent or patent defects, whether or not discoverable by Lessor or Lessee, (ii) claims for tradematl5, patent or copyright infringement, and (iii) tort dams of any kind (whether based
on Lessor's alleged negligence or otherwise), including dairm for injury or damage to property, or injury or death to arty person (including Lessee's employees) or, for any claim or
liabitity hereby indemnified against The indemnities arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease,
18. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR PROOF
OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION, IS NECESSARY TO PERFECT AND/OR GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESSEE TO
LESSOR; AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT OR THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with an
interest and is irrevocable so brig as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such documents,
writings, records and assurances as Lessor deems necessary or advisable for the conrwmatlon or perfection of the security interest in Equipment and Lessor's rights hereunder, including
such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any officer, employee or designee of Lessor or arty
assignee of Lessor for arty designee of such assignee) to file a financing statement describing the Equipment Lessee authorizes Lessor or any officer, employee or designee of Lessor
or any assignee of Lessor (or any designee of such assignee) to rile financing statements covering assets of Lessee other than the Equipment described herein.
19. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business truss, association, company, partnership, joint venture, or other entity (herein
colectrvety, the "Erltyl, including, without limiting the generality of the foregoing, Lessor's parent or any affiliate or any subsidiary of lessor and any credit reporting agency or
other
entity whether or not related to Lessor for any purpose, information about Lessee's accounts, credit application and credit experience with Lessor and Lessee authtodzes any Entity to
release to Lessor arty information related to Lessee's accounts, credit experience and account information regarding the Lessee. This shall be continuing authorization for all present
and future disclosures of Lessee's account Information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to release such
Information to Lessor-
20. DEBIT TRANSACTIONS. Lessor may but shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor through printed checks ('Debit
Transactions"} drawn pursuant to this authorization upon Lessee's checking accent, using Lessee's checking account number, bank fouling code and other irdomation which Lessee
provides to Lessor prior to the first Debit Transaction Lessee authorizes Lessor to initiate Debit Transactions from Lessees checking account in the amount necessary to pay the
rental payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement wither which is held by
Lessor, plus a fee of ten dollars ($10.00) for each Debit Transaction initiated by Lessor. In the evert applicable law prohibits or restricts the amount of such fee, the fee chargeable
under this provision shall be limited and/or restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior written
notice addressed to Lessee's last known address as shown on the records of Lessor and such increase or decrease shall be effective as stated in the written notice. Unless prohibited
by applicable law, Lessee's continued use of Debit Transactions after the effective date specified in such notice shall conclusively establish Lessee's agreement to pay the new Debit
Transaction fee stated therein Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check drawn in
accordance with this authorization. Until cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations hereunder
or
under any other present or future agreement with or which is held by Lessor. This authorization may be cantered at any time by Lessee giving at least three (3) business days prior
written notice to Lessee's bark and Lessor. Payment by Debit Transactions is not required by lessor nor is its use a factor in the approval of credit.
21. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however, if for
purposes of perfection, this contract is interpreted by any court as a lease intended as severity. Lessee grants to Lessor, its affiliates (including, without
limitation, any direct or indirect parent, subsidiary or sister entity), successors and assigns a security interest in the Equipment to secure the payment and
performance of all debts and all liabilities of Lessee to Lessor o every kind and character, whether now existing or hereafter arising and whether direct,
Indirect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirect paint, subsidiary or
sister entity), successors or assigns of Lessor, now existing or hereafter ansing, whether under this Lease or any other agreement and whether due directly or
by assignment The security interest granted herein shall continue to be effective regardless of any retaking of redelivery of the equipment to Lessee. Upon
any assignment of this Lease by lessor, the assignee shall then be deemed the Lessor few purposes of this provision. AN payments made by Lessee to Lessor
with reference to this Lease shall be applied first to any indebtedness which is not secured, then to late charges, then to any other fees or other amounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purchase money debt. This provision controls
over any conflicting provision or Iangwage in this Lease or in any other agreement between Lessor and Lessee unless the parties mutually agree in writing in a
subsequent agreement to override this provision. (B) Any provisions hereof contrary to, prohibited by or invalid under applicable laws or regulations shall be
inapplicable and deemed omitted herefrom, but shall not invalidate the remaining provisions hereof, (C) This Lease and any addenda referred to herein
constitute the entire agreement of the parties hereto. No oral agreement, guaranty, promise, condition, representation or warranty shall be binding All prior
conversations, agreement or representations related hereto and/or to the Equipment are superseded herebyn and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute 'chattel pape' for
purposes of the Uniform Commercial Code is the original of this Lease marked 'Original for CitiCapital. (E) ANY ASSIGMENT OR TRANSFER OF THIS
LEASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITAL COMMERCIAL LEASING CORPORATION OR ITS AFFILIATES
("CHICapifal") VIOLATES THE RIGHTS OF CitiCapital.
22. RENEWAL. Unless Lessee notifies Lessor in writing at least ninety (90) days prior to the expiration of the Term of Lessee's intention to return the Equipment or to exercise any
option to purchase, or Lessor notifies Lessee in writing at least ninety (90) days prior to the expiration of the Tenn of Lessor's intention to terminate this Lease, this Lease will
automaically renew and continue on a month to month basis following the initial Term ('Renewal Term l until such time as either lessor or Lessee provides the other party with at
least ninety (90) days prior written notice of that party's interuton to terminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice period.
All
of the terms and provisions of this Lease shall govern during any Renewal Term, excepl that any option on the part of Lessee to purchase the Equipment shall automatically expire on
the expiration of the Term and shall be inapplicable to arty Renewal Term.
23. RETURN OF EQUIPMENT: If Lessee does not exercise, or is precluded from exercising, the option to purchase the Equipment at the expiration of the Termer any Renewal
Tenn of this Lease, Lessee shag, at Lessee's sole cost and expense, return all, but not less than all, of the Equipment to Lessor immediately upon the expiration of the Term or arty
Renewal Term of this Lease pursuant to the terms arid conditions contained in Lessors Standard Return conditions for equipment similar to the Equipment subject to this Lease (a
copy of which has been delivered to Lessee in conjunction with this Lease).
It Lessee does rxri surrender the Equipment to lessor as herein provided, Lessee will be in default of this Lease as to such Equipment, and Lessee shag pay Lessor, as
liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the Morthly Rental Payment applicable to such Equipment. Such payment shall
convnence with the month immediately folowing the end of the Term or any Renewal Term and shall continue thereafter monthly until the Equipment is returned to Lessor. Lessee
agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual value exposure and other losses, which are incapable of an
exact detemunation, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the end of the Term or any Renewal Term. Notwithstanding the
foregoing, Lessor shall have the right to obtain immediate possession of the Equipment at any time after the end of the Term or any Renewal Term for such Equipment.
Page 4 of 5 01 Lease Agreement dated 91906 between "Am 'ON C0145TRUG110N MANAGEMENT, LIMITED (Lessee) and
CITICAPITAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without limitation, on item of Equipment with the follawing serial number:
214PL"0607IA11631507
702004 -2 Rev 08/2004
be02004.vrpd StandardfFMV Tex Lease
1.14 ORIGINAL FOR CITICAPITAL 1.293683.1.0 XC:20060EI31092533
24. LOCATION O F LESSEE: (a) d Lessee is a corporation, limited liability company, limited partnership or other registered organization, its state of incorporation is in the state set
forth on the last page of this Lease; (b) if Lessee is an individual, his/her principal place of residence is at the address set forth on the fast page of this Lease; (c) t Lessee is
an
organization, Its place of business W if it has more than one place of business, its chief executive office is located at the address set forth on the last page of this Lease. Lessee
agrees that it will not, wiihoul the prior written consent of t.essof, change its state of organization if it is a corporation, limited liability company, limited partnership or other
registered
organization or the location of its chief executive office or its place of business if t is an organization. If Lessee is an individual, Lessee must notify Lessor in writing of a change
in
Nsltxr principal place of residence 30 days prior to such change.
25. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the account
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessee's financial institution for
payment from the amount referenced on Lessee's check.
QOVERNING LAW. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS, BUT ONLY TO THE EXTENT SUCH LAW
IS NOT PREEMPTED BY FEDERAL LAW OR REGULATION.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal taw requires us to obtain, verify, and record
information that identifies each person or business that opens an account or establishes a relationship. What this means for you:
when you open an account or establish a relationship, we will ask for your name, street address, date of birth, and Identification
number, such as a social security number or taxpayer Identification number. For businesses, we wlil ask for the business name,
street address and tax Identification number. Federal law requires us to obtain this information. We may also ask to see your
driver's license or other Identifying documents that will allow us to Identity you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
® On 911106 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee, Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALLTHE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL
RIDERS EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER
WITH ALL RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE:
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
By
(It capent M or IhMled IWQIQy campeiy, an authorized )" must sign and shoo her
his tile. hWt dWdne+shlo,age-al pertnc must sign end shw that tills. 9
sde prapAelmhip, then sde popd tor must sign sod shoe W N tilt. K hdAdual, thin
t W,dM oel should sign and show Lida as 'IndMdusay.")
Title
Date: 9/sro8 Federal Tax ID # or SSN: -
Date of Birth:
State of Organization:
PA
LESSOR:
CITICAPITAL COMMERCIAL LEASING CORPORATION
By - Uou, &, Pl?
-4,0
Title ' f V
Dale: 915106 Federal Tax ID #:
Page 5 of 5 of Lease Agreement dated 915006 been HAMPTONCDHSTRUCnON MANAGEMENT, Uh1ITED (Lessee)
and CITICAPITAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without lindtation, an item of Equipment with the follwmg serial number
2NPLHDsx97M6e5087
702001 -2 Rev 0811004
Lse02DP1.wpd bmndarNFMV Tax teats
1.11 ORIGINAL FOR CITICAPITAL
1.293683.1.0 XC 20060831092533
A*Ak
citicapitalJ
AMENDMENT TO LEASE AGREEMENT
(PURCHASE AND RENEWAL OPTIONS)
This Amendment To Lease Agreement (this "Amendment") is attached to and incorporated into the terms of that certain Lease
Agreement (the "Lease") between IED - New Jersey , as Lessor, and
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED as Lessee, dated 915106
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree
to amend the Lease as follows:
1. Paragraph 11 of the Lease is hereby deleted and the following inserted in lieu thereof:
11. OPTIONS AVAILABLE TO LESSEE
A. OPTIONS ON EXPIRATION OF INITIAL TERM: Upon expiration of the Term of the Lease, the Lessee must exercise
one of the following options:
(i) Option to Purchase: Lessor hereby grants to Lessee the option to purchase all, but not less than all, of the
Equipment described in the Lease at the expiration of the Term provided that Lessee is not then in default under the terms of
the Lease and that Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at least 90 but
not more than 120 days prior to the expiration of the Term of the Lease. The purchase price will be payable on the
expiration date of the Lease. The purchase price to be paid to Lessor for the Equipment will be the then Fair Market Value
of the Equipment which Lessor and Lessee agree will be $ 36,744.85 , plus an amount equal to the Rental
Payments then unpaid under the terms of the Lease, plus applicable taxes, if any, on the above sum, all payable in cash.
Lessor and Lessee agree that the foregoing purchase price is a reasonable prediction of the Fair Market Value of the
Equipment at the expiration of the Term. Upon such payment, Lessor will execute a bill of sale conveying title to the
Equipment to Lessee on an "AS IS, WHERE IS" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY
KIND.
(ii) Option to Renew: Lessee may renew and continue the Lease with respect to all, but not less than all, of the
Equipment described in the Lease, following the expiration of the Term of the Lease, for a period of 12 months (the
"Renewal Term"), upon the following terms and conditions: (1) Lessee must pay to Lessor for the Renewal Term 12
Rental Payments in the amount of $ , 3,197.65 each for each month of the Renewal Term, which will be due and
payable on the first day of each month during the Renewal Term; (2) Lessee agrees to give Lessor prior written notice of
Lessee's intent to exercise this option to renew at least 90 but not more than 120 days prior to the expiration of the Term of
the Lease; and (3) all of the terms and conditions of the Lease will continue to remain in full force and effect during the
Renewal Term and, if this option to renew becomes effective, the word "Term" wherever the same appears in the Lease will
include the Renewal Term.
Lessee's failure to give any such notice to purchase or renew, or to pay the end of Term option price on or before the
expiration of the Term of the Lease, will render the Lessee's option to purchase null and void and Lessee will be deemed to
have efected to renew the Lease as provided above.
B. OPTION TO PURCHASE ON EXPIRATION OF RENEWAL TERM: Lessor hereby grants to Lessee the option to
purchase all, but not less than all, of the Equipment described in the Lease at the expiration of the Renewal Term provided
that Lessee is not then in default under the terms of the Lease and that Lessee gives Lessor written notice of Lessee's intent
to exercise this option to purchase at least 90 but not more than 120 days prior to the expiration of the Renewal Term.
Failure to give such notice, or to pay the end of the Renewal Term purchase option price on or before the expiration of the
Renewal Term of the Lease, will render the Lessee's option to purchase null and void. The purchase price will be payable
on the expiration of the Renewal Term. The purchase price to be paid to Lessor for the Equipment will be the then Fair
Market Value (as defined in the Lease) of the Equipment plus an amount equal to the Rental Payments then unpaid under
the terms of the Lease, plus applicable taxes, if any, payable in cash. Upon such payment, Lessor will execute a bill of sale
conveying title to the Equipment to Lessee on an "AS IS, WHERE IS" BASIS, WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND.
701982
1.02
1.293683.1.0 XC:20060831092533
CRICAPITAL is a service mark of Citicorp. Amember of atigroupr
2. Paragraph 23 of the Lease is hereby deleted and the following inserted in lieu thereof:
23. RETURN OF EQUIPMENT: If Lessee does not exercise, or is precluded from exercising, the option to purchase the
Equipment at the expiration of the Renewal Term of this Lease, Lessee shall, at Lessee's sole cost and expense, return all, but
not less than all, of the Equipment to Lessor immediately upon the expiration of the Renewal Term of this Lease pursuant to the
terms and conditions contained in Lessor's Standard Return Conditions for equipment similar to the Equipment subject to this
Lease (a copy of which has been delivered to Lessee in conjunction with this Lease)_ If Lessee does not surrender the
Equipment to Lessor as herein provided, Lessee will be in default of this Lease as to such Equipment, and Lessee shall pay
Lessor, as additional liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the Monthly
Rental Payment applicable to such Equipment. Such payment shall commence with the month immediately following the end of
the Renewal Term and shall continue thereafter monthly until the Equipment is returned to Lessor. Lessee agrees that such
liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual value exposure and other
losses, which are incapable of an exact determination, incurred by Lessor as a result of Lessees retaining possession of the
Equipment beyond the end of the Renewal Term. Notwithstanding the foregoing, Lessor shall have the right to obtain immediate
possession of the Equipment at any time after the end of the Renewal Term for such Equipment.
3. DEFINED TERMS: The terms "Equipment', "Fair Market Value", "Rental Payments", and "Term" as used herein have the same
meaning as defined in the Lease (and as modified in this Agreement).
4. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations to Lessor, such default will be considered an
abandonment of the options contained in this Agreement and the options herein will immediately expire and become null and void.
5. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Amendment are not assignable and that no
modification of the provisions hereof will be binding unless in writing and signed by an officer of the party to be charged.
6. Except as expressly modified hereby, the Lease is and shall remain in full force and effect.
Lessor IED - New
By
Title
701982
1.02
Lessee
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Title
1.293683.1.0 XC:20060831092533
VERIFICATION REPORT
AOW
citicapital
DEBTOR/LESSEE NAME & ADDRESS
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DRIVE
CAMP HILL PA 17011
Verification Conducted (Verifier Initial & Show Name of Person Contacted)
by telephone contact with
by personal contact with
photographs attached.
Verify as shown below and initial
--
Debtor/Lessee acknowledges all terms of the Security/Lease Agreement.
T- o a C? t and inspection of all collateral.
G:????Debtor/Lessee acknowledges possession and satisfactory installation of all collateral in good
operable condition,
(Describe all collateral and show location below. Attachdule "A" if necessary)
(i) PETERBILT (PACCAR) TRUCK 335 SIN 2NPLHD6X97M685 7 WITH AUTOCRANE TITAN 60 14'
MECHANIC SERVICE BODY PACKAGE SIN 605KI120-0606-088 %,/
I hereby certify that: I have personally inspected all the collateral described above and/or verified this transaction as
indicated above except as otherwise stated herein.
Date: 1 \ 0
Signature: f?
3.4? \-
Title: AV [
620428 Rev. 3180
Verdfc2lion Report
1.00
CITICAPITAL is a service mark of Citicorp.
1.293683.1.0 XC:20060831092533
A memberof cltlgroupl,
PURCHASE ORDER NO.
Pursuant To LEASE AGREEMENT DATED 915108
Between Citicapltal Commercial Leasing Corporation ("Owner')
and THE BELOW NAMED LESSEE ("Lessee")
To the below named Seller:
citicapitalJ
Please place the order of Owner for the equipment described below and on any supplemental schedule that is identified as constituting a part hereof (the
"Equipment"). The Equipment shall be new unless noted below under the description of Equipment.
Please shi the Equipment promptly to the Lessee at the location of Equipment shown below.
P
Describe equipment and all services and transportation costs to be paid by Owner (Describe fully, including make, kind of unit, model and serial number and
any other pertinent information.) (If additional space needed, check box and attach 'Schedule A7 consisting of pages).
(1) PETERBILT (PACCAR) TRUCK 335 SIN 2NPLHD6X97M685087,WITH AUTOCRANE TITAN 6014'
AND MECHANIC SERVICE BODY SIN 605KI120-0606-088
LOCATION OF EQUIPMENT: PURCHASE PRICE
STREET ADDRESS 3607 HARTZDALE DRIVE
CITY, STATE & ZIP CODE
CAMP HILL PA 17011
COUNTY CUMBERLAND Equipment Total Cost $ 122,000.00
SELLER: CURRY SUPPLY CO. Shipping & Handling Cost 0.00
STREET ADDRESS Installation Cost
ROUTE 866 465.00
CITY, STATE & ZIP CODE Sales Tax
CURRYVILLE PA 16631 0.00
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED TOTAL COST $ 122,465.00
STREET ADDRESS 3607 HARTZDALE DRIVE
CITY, STATE & ZIP CODE
CAMP HILL PA 17011
COUNTY
The purchase price of the Equipment, including all applicable sales, use and excise taxes, payable by Owner is the TOTAL COST shown above, less any cash
discount of Seller. The TOTAL COST includes all of Seller's charges for the services and transportation, if any, specified above or on any supplemental
schedule which is identified as constituting a part hereof. Seller hereby agreeing to furnish all of such services and transportation. Any charges for services
and transportation not included in the TOTAL COST of the Equipment (nduding, without limitation, any unspecified cost of crating, boxing, packing, unloading,
assembling, Installing and testing the Equipment) are to be paid by Lessee and Owner is not responsible thereof. Sellers delivery to Owner of its invoice for
the Equipment shall constitute a warranty by Seller to Owner that the Equipment has been or shall be delivered to and accepted by Lessee at the location of
Equipment shown above, and that the Equipment conforms in all respects to the specifications furnished to Seller with his order. Seller's invoice shall
adequately describe the Equipment, including serial numbers, if any, shall evidence the sale of the Equipment to Owner but delivery thereof to Lessee; and
shall contain the date of shipment of the Equipment. Payment of Sellers invoice will be made within 10 days after delivery of the Equipment to Lessee in
accordance with the terms hereof and the written acceptance by Lessee of the Equipment in form satisfactory to Owner. If Lessee does not accept the
Equipment for any reason, Owner shall have no obligation to Seller hereunder and Seller shall refund to Owner any and all sums paid by or incurred by Owner
or on account of the Equipment.
It is further agreed that Seller will notify Lessee and Owner when the Equipment is shipped. This order shall be a contract between the parties upon Owner's
receipt of Seller's acceptance on the duplicate order enclosed.
Pogo 1 of 2 or Purchase Order dated 915196 between
and C171CAPITAL COMMERCIAL LEASING CORPORATION
2NPLHD6x97M685037
701302 1.02
Lease Oocument 1302n.doc
CITICAPITAL is a service mark of Citicorp
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee)
(Lessor) whkh Inca des, without I1mltaUM an Rem of Equipment wtb the following serial number:
Lessees Initials
1.293683.1.0 XC:20060831092533 Amember crtlgroupT
TERMS AND PROVISIONS OF PURCHASE ORDER
1. DELIVERY TO BE MADE TO LESSEE. Lessee is authorized on behalf of Owner to receive delivery of the Equipment.
2_ INSPECTION AND REJECTION, All of the Equipment shall be received subject to the right of inspection and rejection after delivery thereof at the
location of Equipment shown on the front side hereof. If the Equipment is to be assembled, installed and/or tested, the same must be done before
Lessee accepts the Equipment Equipment that is defective or otherwise not in accordance with this order may be returned for credit and Seller shall
assume all transportation and handling charges in connection therewith. Rejected Equipment shall not be replaced and the purchase price thereof
shall not be adjusted, except upoh Owner's specific instructions in writing to that effect.
3. RISK OF LOSS. Seller shall bear all risk of loss of any of the Equipment covered by this order until physically delivered at the designated place and
accepted by Lessee in writing on form satisfactory to Owner, and shall also bear all risk of loss on Equipment not accepted or rejected by Owner or
Lessee.
4. REJECTION OF EQUIPMENT AND CANCELLATION BY OWNER. If Lessee or Owner shag reject or refuse to accept any of the Equipment pursuant
to this order for any reason whatsoever, Owner shall be deemed relieved of any liability to Seller under this order as to such Equipment. Seller will
settle directly with Lessee all claims and disputes regarding the Equipment. This order may be cancelled by Owner as to any of the Equipment, without
liability, for any reason and at any time prior to the acceptance of such Equipment by Lessee. Seller will settle directly with Lessee all claims and
disputes regarding the Equipment.
5. NO ASSIGNMENT BY SELLER. Seller agrees not to assign this order without the prior written consent of Owner. In the absence of such
consent, such assignment shall not be effective and, at Owner's option, shall effect a cancellation of ail Owner's obligations hereunder.
6. PATENTS. Seller agrees to indemnify. protect and hold harmless Owner, its successors and assigns, and Lessee and its successors and assigns,
against all claims, demands, damages, costs or expenses (including attorneys' fees) for actual or alleged infringements of any patent covering any
Equipment hereby ordered or the use thereof.
7. FAIR LABOR ASSURANCE. Seller warrants and represents that the Equipment has been produced in compliance with the requirements of the Fair
Labor Standards Act of 1938 as amended and other applicable municipal, state and federal laws and regulations.
8. WARRANTIES BY SELLER. Seller warrants that: absolute ownership of the Equipment shall pass to Owner free and clear of all liens and
encumbrances at the time of the acceptance by Lessee and not before; the Equipment will be fit and sufficient for the purpose intended; and the
Equipment will conform to the specifications, drawings or samples, if any, furnished or adopted by Owner and/or Lessee, and will be merchantable, of
good quality and free from defects in material and workmanship. If the lease application and the lease which give rise to this purchase order were
obtained by Seller, they are genuine and have been validly executed by Lessee, and Seller acknowledges that Seller acted in its own behalf or in
behalf of Lessee and the Seller's acts did not and shall not constitute Seller as Owner's agent in any respect whatsoever. Seller agrees that all of its
usual warranties, express and implied as to the Equipment and the services specified on the front side hereof and on any supplemental schedule which
is identified as constituting a part hereof are hereby made to Lessee as well as to Owner, and that Seller will comply with all its obligations with respect
to the Equipment and will remain solely responsible therefor to Owner and to Lessee. No part or parts made according to Owner's or Lessee's design
will be sold to any other person, firm or corporation. The foregoing is in addition to and not in Bou of any and all other warranties express or implied.
9. EXCUSABLE DELAYS. Seller Will not be responsible for delays or defaults in delivery if occasioned by unforeseeable cause beyond the control and
without the fault or negligence of Seller; and Owner shall not be responsible for failure to receive or take delivery if occasioned by any like cause on its
or Lessee's part.
10. DISCOUNTS. All quantity, cash or other discounts granted by Seller as a direct or indirect result of the purchase herein ordered shall be paid to
Owner. Seller represents and warrants that no payments or other consideration have been or will be paid to or received by Lessee or any other person
as a direct or indirect result of the purchase herein ordered.
11. INDEMNIFICATION. Seller agrees to indemnify and save Owner harmless from and against any and all liability, loss, damages, expenses, causes of
action, suits, proceedings, claims or judgments of whatsoever kind or nature, in contract or in tort and whether based on Owner's strict liability in tort or
otherwise, on account of actual or alleged injury to persons (including death), damages to property, loss of business or another loss, which may result
from malfunction of Equipment or otherwise from any act or omission of Seller, its agents or employees. In the event of a suit or cross-suit against
Owner by Lessee or any third party, Seller further agrees that Seller shall promptly upon request defend at Seller's expense any such suit or cross-suit.
12. MECHANICS' LIENS. If Seller or any subcontractor performs any services such as the assembly, installation or testing of the Equipment, Seller will
furnish (it requested) waivers of mechanics' liens and affidavits under the law of the State in which such services are performed.
13. FOR WORK ON LESSEE'S PREMISES. If Seller's services under this order involve work by Seller on the premises of Lessee. Seller shall take all
necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and, except to the extent that any
such injury is due solely and directly to Lessee's negligence, shall indemnify Lessee and Owner against all loss which may result in any way from any
act or omission of Seller, its agents, employees, or subcontractors and Seller shall maintain such Public Liability, Property Damage and Employers
Liability Compensation insurance as will protect Lessee and Owner from said risks and from any claims under any applicable Workmen's
Compensation and Occupational Disease Acts.
14. NO PURCHASE ORDER CHANGES. No changes of or amendments to this order shall be binding without Owner's written approval.
SELLER'S ACCEPTANCE OF ORDER:
By
Lessee
By \
Title Title NJ I
Pepe 2 d 2 d Padre" Order dated 915MG between HAMPTON CONSTRUCTION MANAGEMENT, UMITED _ (Lessee)
eM CITICAMAL COMMERI`f rIMM90 CORPORATION (tesw) rMm Indades, w4hpA WOoDcn, sn item d Egriprrront pith the I'di-mg sedal nun0er se's INthls
2NPLH0SX97M665067
701]021.02
Luse 0x -l 1302n.dee 1.293683.1.0 XC:20060831092533
CURRYSUPPLY Fax-.81d7934877 Sep 5 2006 9.55 P.03
Sp-05-2506 09:28 FROMi IG CL2 Y CITICAP 17177950875 T0:0147934877 P.004?004
MNS ANo PRWOO N3 OF PBRCKASE C=5111
1. Gf3tVM TO ifi NAOGe'M UMEli taaoae is ssrtl+adaed oa bsha{t s! O+rr?Kb toaalw 110tvr.ry of 1I» 1lq.apa.rd.
> OWNIPTION ARID RldRcilON. All of ON Equlptrwst soil by nwNed atrttpct b ire:spit o< bspesden and tsprgbs nb(d0" ptaresr of Otte
bddton of lgrdprrwrd shewa vn the Rout ebb hKW. I she llqulpaasrd 4 lobe sraandded. Installed antler toted, Me .arm tout M lane Mfon
Lome ample tfte EgtdpmsnL tgaiprood that Is deftalw or etlnraase rat b saoordarse vAh pia order my to ntumd for Mott and Baler std
WYrrw d lroVolbtlon and tsrdlbq ohorpe In wwo dloo ftreaith. Rued Equlptnerd soil not be ropbaad and fait ptachsoe ptiaa ttwfeof
std not to valrsted. except upon Owners speoft inabruoiofs M W ft Is llat afloat.
3. MK CF LrOSS. Bsltat dot boor st rfek d loft of arty of tint t:gv"*M arared by ft order until phlnlooll dsliou" F AU* I to I d pow and
:::plod by Mtieas in ,wr" on mart sabledory to oepwr, and sdo$ sire bar d salt of loss on dgtipment not aeaapled or rojeow by Owner a
Leame.
d. RSJBMN OP R UlrP MW AND UMCXU ATiON OY OWNER l Lwess or owner stfal rldaat or rMrn b aaupf Rey d tlro Equtppmrrd prunsst
to his order Ibr any reaaoh dadueslfll, Orator tMl be learned roiaved o! any Ilablllr to Ssl.r ado tlsls islet a1 to eueb ECUtan»ri. ashes vA
salt d roM [sill Loss" all oaf and dkpuba naardina the Fqupnsant ThY odor may bit cssoeled by Dearer rs m ergs et Mtu fitiulp+rrrtC vre}sout
1.6alig, for am loses and at any'Unns pilot b ttfr soeoptsnas of suds Lrgrdp M1A by Lseaw. f30lNr VAR souls 0 49* .•A1ft Lsssae ail sienna srrd
Owuw moss" Its ttuburmfd.
iL No ASSWMMiNT BY LMAM doter Marisa not is aeelgn this slider uiftlssst the prior wrtNsn wnwd of Owner. in VA absr,oa of such
o mw*. sooh mAgi mod sod ad be dfadwe and, at Owrrr4 option, shel ~ a e atYwlktbn,at aN OWAWs obtlpelJ" INMUndw.
a PATENM boost agow b Inaeftft platest and bead Mm+lua O mm. p tucavears and aaelpno, and Lease and ft evoca sts and aestpna,
sombet aA alelnnw, danwrWo. doneoaa, code or nrparess OrAm +p alsfmge' toss) fur .dial or eloped lrAHmp menu of ¦ny pow* covering wry
Egtiprr.sd htrsby orttattid a ft m dterov.
7'. FAIR LABOR ASSUPANOi. Beta vwrnrde and ropawenb that foe CqulpMwA hu bean produced in carplonae w1h ibs ragWrornonb of the pay
uba Set WW* Ad of ION as ant ridad end atharapploable h1ur idp.l no and aderal b w cad relalations.
b. WAMANM BY 8K.LM Boar wWrits Ihrh absebrls.swtwrs* of tits lq*mu t dd pass b owner Area and dust of orb tans and
ummi ramos at ore M o of t1N somptam by Lasses and rwt hebM; ile Egdpnlist wit 10 R and tlutidlfd Art the ptoow Mended, and Ste
15"Ontsad snot oodorM to the speoMcsdow. ds WN* m govVies, N ohy. f arbhod of edgrbd by Owrwr aaafm Lessee, auras oral be rmerchantable, of
gooddq?dftbtji srA rosy we 0wti4M atd tevo bane N ilea loose applt:dlon ens Uts teas. vd6M On do tte tds Pads" alder van
o
mAvow item In toy r asbspec M Soar coral In am betas of in
:roay Rapard %dtraeewf, alms r list as of No
bunff of Losses and On Bef>sre ** did PA and shallwdk b Boost as OM ane and
Must worwove, eIFreoe and ortpied a is the ft*r or t and the ue*n tpedld an tie hill Olds owes[ end on any supplorrMfdsl aedt." which
Is kbrd W as comoM lop a part Mrsof am I vdV W640 to 1.0"s d snl to I. Over, abd ant Beoor vtlf sevniOl *0 so b otitloellons "M moped
b do f[gdp?reM ins WN nrrnlm $0101/ nspans64 ttturefar b Dwner sod to Lassie, Me porter taris mode swan" m *w4ee or Lome% daabn
vast a so14 M any 4pet parass, not or ccrporalfon. The fbreydM N lot adflsn band not In ow d any sod so ofherwarnndes express a brpls d.
D. CxCMM1.1i OMAYI. AsS r call not be responsible for doMp of debulls In bWWV 1 om wic rted IIV tut:bnssable muse beyond the oonbol and
:ohm rho a.rt or nadllonea of Soler; and Omw atel not be rospoisoble for hilts to rssfw? or tole delvery * occasioned by any U cause on to
at Lesaeti part.
10. M UNTIL Al quarttsly, cash or artier dhoowte lndsd by sdist as a drom or %Arod result of dw purdtase herd: odarod shel be paid to
Ow *f, Baler nprvtvhr atdrtanerffe liar rte psynnrrb et stiwr eottddarollest hm born or Wll be paid to or naslvad by Leeds Of any Whar portion
as a dh d or btdhd revel fills wthess l arebt oadsrsd.
11. lIa7OMMOAMOIL Seller airaea m inrdormoir and salw Omm hemdsse from end sp pint wW and ap kMoy, bra, damages, axpons", toaav of
=Am% WIK promodrgs, aiabne sr Judim+ms of whabeavar mod or mebm in eanlsd or In WNW thww hand on Ow NI ON left In tent or
othandas, an nooowit of eeatd or aMpN iijury to psraans Qtdndbta draft dean oo lo prop W. less of bushoss w trn im lea. vrlrleh osy liens
from naMinotioo of ftipawd or eftWou from env ad woad aft of dolor. Ile agents or sw byess ti dN went d • vub or oroae.sat:carnal
Qw w by LveNe a Olio third patsy. Boller ttrrd+ae sasses tlrat assn shat prerrpty upon raqued defend al BNem expanse any pitch sue ar Ua s"A
17, otAipds' UML it Bahr at any subcorwaaw prforms any nrWm errata s¦ Ow am.", Intlaomion ar tedrq of tie f *rmeri. BdAor vast
Qf roquestst0 W OM of machoR • hero and WAnfts andar tie levrof fM Obb fn ulsiett itch servien era pw%rmed.
WORK OM UMBE 'S PINAM ES. l solar. somAoao under Brla ardor Involve work by altar on the pnmaa of Lessee. bathe: did Waal
ryiaaraudena b prerert tie am"noo all argr INuny to parson w pro" daallo the p?eireee d eatsh 1lMafk end, ompt b the exlaMth" any
E lydtslr Is dw scaly std dbedly to Canoe's nor/f?ersos, sbN Indurnft Leases and Ounwr asstret al lees widsh my wrdt bit era way irons my
lit nndaabn of 80w. Its agarft employees, or adromsadon arras boor shell nnbdafn awl Public Llablity, Property Como* and Dnp"r'i
. ,tJd,* Contpotwaom bamenss m vrAl proud Lsame and owner from sold rake and 1ram1 arpt otsbna undo any nppAmbly viarbrrsen's
.: ;•;': •: laa?pl?paa?s,.sdon srM Ocarpaportal Daasas Aso.
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• • BILLER 8 A000PTANCE OP QRDFA: teaaee
By
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citicapital?
ON HIGHWAY TRUCKS STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement or
equipment lease schedule ("Lease") entered into on 915106 between the Lessee and
Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, oris
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of
the Lease, Lessee will, at Lessees sole cost and expense, return and unload all, but not less than
all, of the Equipment in a manner consistent with the manufacturer's recommendations and
practices to Lessor immediately upon the expiration of the Tenn of the Lease at such location as
Lessor directs and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 38,000 miles of use per year (the "Annual
Allowed Miles") Lessee agrees to pay additional rental equal to the monthly Rental Payment divided by 1/12 of the
Annual Allowed Miles, per each excess mile. A 'year" shall be a twelve-month period commencing on the date of
Lessor's acceptance of the Lease, and each successive twelve-month period thereafter during the term of the Lease.
To calculate excess usage for portions of the Lease Term shorter than one year, the Annual Allowed Miles will be
prorated accordingly. The miles of use of an item shall be determined by the odometer attached to said item of
Equipment, and the current mile usage for such item is set forth below. If any such odometer becomes inoperable or
inaccurate, Lessee shall immediately repair or replace same, and shall immediately notify Lessor in writing of such
event and of the correct miles of usage of the Equipment before and during the period of time the odometer was
inoperable or inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request
from time to time in order to document the miles of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand,
Current Odometer Reading: 458
2. Return Conditions
• All components must meet or exceed the manufacturer's minimum recommended specifications while
operated under full load, unless otherwise specified herein. Equipment must be able to pass all then
current DOT requirements for operation.
• No lass will be broken, chipped or cracked. The interior upholstery will be free from cuts, tears, burns,
or ogher damage.
• There will be no damage to any exterior or interior surfaces that in aggregate, costs in excess of $250 to
repair.
• All decals (other than the manufacturer's original decals), numbers, customer identification, glue and
adhesives must be removed from the Equipment prior to return without damage to paint or any other
portion of the Equipment.
• All frame and structural components must be structurally sound, without breaks, bends, cracks, or
excessive wear.
• Cooling, heating and lubrication systems must not have any leaking systems or be contaminated. All
internal fluids, such as lube oil and hydraulic fluids must be filled at operating levels, all filler caps must
be secured, and all filters must be new filters that meet or exceed OEM standards.
• All batteries must be fully operational without any dead cells or cracked cases.
• All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
8. Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that type) as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs and will have at least 50% of tire wear remaining in
usable condition.
C. Electrical System. The alternator, starter, drive motors and electronic control units must be in workable
conditions. All electrical harnesses must be in workable condition without any sectional repair. All gauges,
senders, and switches must be functional.
D. Engine. The engine must have been maintained in accordance with manufacturer's warranty and
maintenance instructions per the applicable machine manuals including overhaul of the engine as required.
All engine components must meet or exceed the manufacturers minimum recommended specifications while
operated under full load.
700175 Rev 1.01
1212005
Page 1 of 2
CITICAPITAL is a service mark of Citicorp. Amember of citig-or
1.293683.1.0 XC20060831092533
Determination of satisfaction of these specifications shall be made by subjecting the engine to standard
industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis, and fuel
and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
E. Mechanical Drive Train. The transmission/hydrostatic drive systems and drop boxes/transfer cases
including, but not limited to, differentials, planetaries, and wet brake systems will be in good condition and
operate quietly without vibrations or leaks.
F. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold the machine safely during normal operation. No drums or other braking
components will be damaged or cracked.
G. Hydraulic Equi ment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully
operational at rated capacit with no leaks, bent cylinder rods, or worn out bushings/ ins. Boom hoist times
and steering times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
H. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
1. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or prior repairs,
J. Sheet Metal & Body. Sheet metal must be in operational condition without breaks and bends as provided
when the machine was first delivered. Body shall be straight, true, and free from rust or excess wear.
K. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until
the Equipment has been accepted by the Lessor at such location as Lessor's directs. Such insurance must
be in an amount equal to the replacement value of the Equipment and show Lessor as loss payee and must
conform to all other specifications for insurance provided in the Lease.
L. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state
and local health and safety laws and requirements, and, if applicable, have appropriate ANSI inspection
certificates, permits and other certification necessary to operate the Equipment. In addlUon, Lessee will have
initiated, compiled and retained records relating to preventative maintenance and repairs indicating dates and
hour meter readings and verified by parts invoices. At any time during normal business hours during the
Term of the Lease, Lessee will make such records available to Lessor for verification and inspection as
Lessor may elect.
M. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's
agent`s} during normal business hours for purposes of a detailed appraisal/inspection. The inspection must
specifically cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee
will bear all expenses of this inspection.
N. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the standards
set forth above, or if Lessee fails to discharge its obligations set forth above with regard to anyy item of Equipment,
Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such ifem of Equipment as
determined by Lessor in its sole discretion in an amount up to the Termination Value applicable to such item of
Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the definitions
prescribed for such terms in the Lease Agreement.
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED IED - New Jersey
LESSEE: LESSOR:
By: C 3t=:L-? - By
Title: \ LLQ=g L `2-tf '-? p?
700175 Rev 1.01
1212005
Page 2 of 2
1.293683.1.0 XC:20060831092533
Exhibit G
25-Jun-2008 01:3Bpm From-CITICAPITAL
73ZBB8 2587 T-310 P.001 F-303
c t capital
i
LOAN AND SECURITY AGREEMENT
Ttte undersigned debtor, meaning MS OCbtors jointly and severally ('Debtor'), to secure iheobligations set forth herein grants to the Lender named below therein, with its
successors and assigns. Wllea "Lender') under the terms and p(ovision" of this agreement (Inls "Agreement") a seCUtlly Iltlerest in the following described property
therein, wi(;)as present a SKID{ rpaccessories STEER ORDER T8180FR SINI 1783057pans, repairs and additions or subsillutbns. referred to collectively a$'Equlpmont'): TEUCHI
(1) GME TRENCH COMPACTOR 4M820 SIN M0803398 B
MTh e Equipment will ba used primarily for business or commercial usoother than farming operotions. Ll The Equipment will be used primarily for fa pang opo; lions.
When not in use, the Equipment will be kept at; 3607 HARTZDALE DRIVE CAMP HILL 7700
PAYMENT SCHEDULE
Debtor promises to pay Lender the Total Amount including precomputed
interval of $ 93,266.410 in 48 installments as follows:
(a) S 1.943.05 on 08101!2006 and a fike sum on
the like date of each month thereafter until fully paid.
(b) In irregular installments as follows:
USE OF PROCEEDS
Lender Is hereby irtevocably authot'rt:od and directed to disburae the
proceeds of this Agreement as follows:
tlm u-ni Nn?e lN_emm? sect Admr.-1
S' 81,436.26 GROFF TRACTOR d EQUIPMENT. INC.
5779 CARLISLE PIKE
MECNANICSBURG, PA M55
s O.QO
provided, however, that the final Inatallatent will be in the amount of the
then remaining unpaid balance plus any and all other accrued and unpaid
sums due hereunder. All amounts payable under this Agreement are
payable at Lender's address shown below or at such other address as
Lender may specify from tines to time in writing. Any note taken in
con)unction with tnis Agreement evidences indebtedness and nolpayment
The interest under this Agreement is precomputed. The Total Amount is
calculated based on an interest rate of 8.64 % per annum based on
a 360-day year of twelve 30-day months. The cost of credit, which includes
interest and the administrative fee of S 100.00 'm calculated
based on an interest rate of 6.75 % per annum based on a 360-day
year of twelve 30-day months. Late payments may atlect the actual Total
Amount payable due to increased accrued interest.
D£L;NOUENCY: For each lnsrallMant net paid when due, Debtor agrees to
pay Lender a delinquency ch2or9e cwtulated on the amount of such
installment at the rate of 114% per month for the period of the delinquency,
or, at Lendet's option, MI. of such installment, provided that such a
delinquency charge is not prohibited by law, otnerwiae at the highest rate
that Debtor can legally obligate itself to pay and/or Lender can legally
collect.
o.oa
Debtor hereby acknowfaciges and agrees that the proceeds of this Agreement
will be used for commercial. business or agricultural purposes and wit not be
used for personal, family of household purpo3e3.
Lender may disburse the proceeds "no checks, drafts, orders, transfer funds,
or any other method or media Lender deems desirable. 0+5bur3ement may be
made in Lender's name an Debtors behalf o6n Debtors name. Disbursement in
accordance with the above instructions or any written supplement to these
instructions will constitute payment and delivery to and receipt by Debtor of 80
such proceeds.
INSURANCE: PhysiCal damagC insurance covering the Equipment is
required. Debtor can furnish this insurance through an agent of brokef of
DebtoT's choke. Debtor hereby autho&os Lender and any assignee to
release to any insurance company affiliated with Lender or, any assignee
any information relating tp s contrail or policy of insurance that is
providing or may provide insurance coverage against physical damage to
the Equipment.
rage t of s of Loan and Securlry agreement dalad OWZ512008 between nAMPTON CONSTRUCTION UANA45EMEN7 LIMITED lnthwr)rind
CITICAPITAL COMMERCIAL CORPORATION It.cndcri.
671700 ORIGINAL FOR CITlCAPITgI
I oc Rey. US12DOa 1.390619.1.0 X(;.20080624074735 Buy I'S Initials
C'.riyroup I-. i5 nn rgvw credit opportunity lenoor. C1A000ilot t.3 a service mark or C+litlroup inc.
25-Jun-2008 01:38pat Frole-CITICAPITAL 732 189 258T T-310 P. 002 F-303
t.D THE EQUIPMENT
1.t Disclaimer. LENDER MAKES NO REPRESENTATION OR WARRANTIES. EXPRESS OR IMPLIED, AS TO THE QUALITY. WORKMANSHIP, DESIGN,
ME RCHAN I'ABILRTr, SUITABILITY. OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE. OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER. EXPRESSOR(MPLIED. Debtor's obligations hereunder are absolute ariduiricanditional notwithstanding the exIstence, location or condition of any Nem
of Equipment or its suitability for use in Debtor's business.
1.2 Equipment Receipt and Use. Debtor warrants and agrees that: the Equipment will be used solely for business purposes; the Equipment la free from and will
be kept tree from all fens, claims, security interests and encumbraneo other than that created hereby: notwithstanding Lender's claim to proceeds. Debtor will not, without
lender's prior written consent sell, rent. lenea. encumber, pledge. transfer, secrete or otherwise dispose of any of the Equipment, nor wig Debtor permit any such act; tie
Equipment will be maintained in good operating condition, repair and appearance, and will be used and operated with care, only by qualified personnel in the regular
course 0 Debtors business and in conformity with an appbcabia govemmental laws and regulations; the Equipment shag remain personal property and not bocome part
of any real property regardless of the manner of affixation; Lender may inspect the Equipment and an books and records relating to ink Equipment or Debtor's
pertormance under this Agr"rneni at all reasonable times and from time to time: the Equipment will be kept by Debtor at Debtors place of business which is indicated
immediately below Debtors signature and will not be removed from Said location without the priorwrincri Consent of Lender, except thatan Item of Equipment which is
mobile and of a type normally used at more than one location may be used by Debtoraway from said location in the regular course of Debtors business provided that (a)
such stem is not removed from the Uniled States. and (b) if such item is not feturned to said location within 30 days, Debtor wig immediately upon Lender's request and
each 30 days thereafter until the item is returned report the then current location thereof to Lender in writing.
1.3 insurance. Debtor "1 31 all tbnos bear all risk of loss of. damage 10 or destruction at the Equipment Debtor agmes to procure fe4hwith and maintain
insurance on (Ile Equipment. for the actual cash value thereof and for the rife of this agreement, in the form of Fire Insurance with Combined Additional Coverage and
Collision. Theft andfor Vandalism and Mafcious Mischief Coverage when appropriate, plus such ottt2c insurance a6 Lender may specify from time to time, all in farm and
amount and with insurers satisfactory to Lender. Debtor agrees to dkfiver promptly to Lender certificates or I1 requested, policies of insurance satisfactory to Lender.
each with a standara tong-form toss-payable endorsement naming Lendaf or its assigns as toss-payee as their interests may appear. Each policy shall provide that
Lender's interest therein will not DO invalidated by theacts, omissions or neglect Of anyone otherthan Lender, and wig contain insurer's agreement to give 30 days prior
written notice to Lender before cancellation Of or any material change in the polity willbe e"wive asio Lendet,whaitiler suert cancellation or change is of the direction of
Debtor or insurar. Lender's acceptance of policies in tosser amounts or risks will not be a waiver of Debtor's foregoing obligation. Debtor assigns to Lender all proceeds
of any physical oamage insurance maintained by Debtor with rtspeC%to the Equipment and any and all returned premiums, up to the amount owing hereunder by Debtor.
Debtor directs ell etSUfefs to puy such proceeds dlreclly to Lender. DeDtoraulnorizes Lender toendorse Debtors naive to all remittances wilhoul the joinder of Debtor.
2.0 SECURITY INTEREST
2.1 Security into (out Debtor hereby grants Lender a first and perfected security interest in the Equipment to secure payment of the Total Amount Indicated on
first page of this Agreemenl and all other ooligalions of Debtor to tender under this Agreement. Debtor further grants to Lender, Lender's successors and assigns and
any Alf Yale of any of them, a securely
Miciess in the Equipment (separate and distinct from and suboroinale only to the SecuGly interest granted to Lender above) to secure the payment and performance of all
now existing or hereafter arising debts, liabilities and obligations of Debtor of every kind and character whether now existing or hereafter arising, and whether direct,
indirect. absolute. contingent, primary. secondary, or otherwise, to Lender or Lender's succossors or assigns and any Affiliate of any of them, whether under this
Agreement or any other agreement. and whether due directly or acquired by assignment ('Liabilities). For the purposes of this Agreement, an'Alflpate-of any parry
means and includes any direct or indirect parent, subsidiary or sister entity of that party. The security interests granted herein will inure to the benefit of Lender and its
Affiliates. A,sy sun rls at anytime owing to Debtor and in the P053CSSiOn Of Lender or any such Atfiliate shall secure the Liabilities of Debtor to Lender and any Atfttiate of
Lender. Upon any assignment of this Agreement by Lender, the security interests granted herein win be assigned to and inure to the benefit of such paaignee and the
Affiliates of such assignee. The security interests granted herein shall continue to be effective regardless of any retaking or redeklrery at the Equipment to Debtor-
2.2 Perfection and Preservation of Security Interest. Debtor agrees. at & own cost and expanse: to do everything necessary or expedient to perfect and
preserve the security interests of Lender oblained herettnder: to extinguish or defend any action, proceeding of claim affecting the Equipment including but not Ymiled to
ally mechanic's lion. forfeiture action or proceeding; and to pay promptly any taxes, assessments, license fees and other public or private charges when levied or
assessed against The Equipment. lhisagrcemonioranaccompanying note. Debtor authorizes tender or anyofffcecemployeeordeslgnoeofLender ofanyaasigneeof
Lender (or any designae of such assignee) to file a financing statement deserib> rtq the Fquipmerit for itself and as representative of its Affiliates. Debtor agrees to
execute and deliver to Lender, upon Lender's request, such documents,writings. records and assurances asi-ender deems necessary or advisablefarihe confirtnalion
or perfection of the security ulteresl in the Equipment and Lender's rights hereunder. including such documents, wrifings_ MCD113S and assurances as Lender may require
for filing or recording.
2.3 Location of Debtor. (1) If Debtor is o carporation. limited habilifycompany, limited p9nnersnip or other registered organization. Its state of organization is in the
state set forth immediately below as signature on tt%last page of this Agicetnenl and Debtor agrees that i? will not change its form or state or organization without 30
days prior wrilren notice to Lender. (i) if Deblor is an individual, his/her principal place of re-..idence is at the address sot forth immediately below hislher signature on the
last page of M:s AgieOrnnnt and, it Debtor changes Debtor's pr'tncipah residence, Debtor will notify Lender in writing or a change in hlslher principal place of residence
within 30 days of such change. Debtor agrees to reimburse Lender for all costs incurred by Lander related to any such change.
3.0 ACCOUNT MANAGEMENT AND PAYMENT PROCESSING
3.1 Application of Payments. All payments made by Debtor to Lander pursuant to this Agreement may be applied first to any indeolvilnesswnicli is not secured,
Then to definquency charges, then to interest. then to insurance payments, lhLn to" other fees or other amounts payable hereunder other than the Liabllinas secured
oy a purchase money security interest in the Equipment until ail of such Liabilities are paid in fug, and then to the Liabilalos secured by a purchase money securely
interest in the Equipment in the order in which ine Liabilities were incurred. This provision controls over any conflicting provision or language in this Agreement or in any
other agreement between Lander and Debtor unless the parties mutually agree in writing in a subsequent agreement to override this provision.
3.2 DeDltTiansactions. Lender or any assignee or other holder ofthisAgreement (collect;valy`Holder) may but shall nor be required to offer Debtor the Option
of paying any of Debtors obligations to Holder through printed or electronic checks, drafts or charge3 r0eb11 Transactions"). Each such Debit Transaction may be
pretty authorized by Ocblor. any representative or officer of Debtor or any other party having access to or control of lno account upon which the Debit Transaction is to be
Chargeo. Deolorauthorizes Holder or any officer.employee or designee of Holder to initiate Debit Transactions from Debloesaccount intheverbatlyauthorized amount
plus ono molder's then Debit Transaction Fee. This authorization may be canceled at any time by Debtor giving at feast Ihree-business day's prior written notice to
Debtor's Dank and Holder. Debtor authorizes Holder to substitute a Debit Transaction for any check or other reminance submitted by Debtor in the amount of that
remittance. Payment by Debit Transactions is not required by Lender not i5 its use a factor in the approval of credit.
3.3 Payment Processing. Debtor hereby agrees that any payment made by Debtor hereunder by remittance and received by tender at an address oithef than the
address specified on the related invoice may be replaced by the Holder with a substitute written or electronic Instrument of equal amount end presonted to Debtor's
financial insrirutgn for payment from the account referenced an the remittance from Debtor.
3.4 Returned Payments, In the event that a check, draft or other remittance sent by Debtor or a Debit Transaction authorized by Debtor Is returned unpaid or
rejected for any reason otnor !Ilan the tack of a proper endorsement by Lender. Lender gees that the application of such paymenilo Dabtors Liabilities will be reversed
and Dubtor agrees to immediately pay Lender the amount of such returned payinenl. plus any decinquoAt-y charge accruing as the result of the reversal of any such
payment. Debtor futincr agrees to pay Lender any amount charged to Lender by any depositary institution because of such return and art eddilional handling charge In
the antount, if any. equal to $20, or in the event applicable law limits or reStricts the amount of such reimbursement andror handing charge, the amounts chargeable
under this provision will be limited andfoc restricted in aecordance with applicable taw.
3.5 Authorization to Share information. Lender or any assignee of this Agreement may receive from and disclose to any Affiliate of Lander, the seller or
manufacturer of any Equipment, any Guarantor or other party having a disclosed or undisclosed obligation related to the liabilities or equipment. or any potential
c of Loa, o..a e......;i Iuama 0er2642008 uawocn M?.MProm coNSTRUCTIce MAWAOCMCHT, LIMITEo
,,,u CITICAprTAL COM1V1 R AL CORPORATJON (Lender). (Doom.)
$21700 ORIGINAL FOR CITICAPITAL
I do n- d5f2uoe _ 1.390619.1.0 XC.20080624074735 suycrs lnlfiats
732 998 2587 T-310 P 003/011 F-303
25-Jun-Z009 W-.39in From-CiT(CAP(TA(
purchases, oat(icinant OC investor in Debtors Liaoildles or any assignee or atOiate of any of them (herein collectively, the "Entity'), and any credit reporting agency fat
arty purpose. inforol3oon about Debtor's accounts. credit application and credit expedence wfrh Lender or any Entity. Debtarauthorizes any Entity to release to Lender or
;fry aS%ignee. or any Affiliate of either at Them any information tela led to Debtors accounts, credit experience and account information regarding Debtor. This shall be
continuing authorization for ell present and future disclosures of Debtors account information, credit application and credit experience on Debtor made by
Lender, or any Entity requested.
rt.D PERFORMANCE BY LENDER
4.1 Performance. It Debtor fails to perform any of its obligations hereunder, including, without limsalion, Debtor's obligation to insure the Equipment or to protect
and preserve the security intere5l of Debtor, Lender may perform the same, but shall not Be obligated to do so, for the account of Debtor to protect the interest ofl_cnder
Or OeDIDr Or both, at Lender's option, Debtor shall immediately repay to Lender any amounts paid by Lender together with interest lhcroon at the rate payable upon
acceleration of Debtor's obligations under this Agfearnenl. Perlorfnance by Lender writ not conslitule a waiver of any default by Debtor.
4.2 Power of Attoinoy, DEBTOR HEREBY APPOINTS LENDER OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LENDER. OR ANY ASSIGNEE OF
tEt4OER (OR ANY DESIGNEE OF SUCH ASSIGNEE) AS DEBTOR'S ATTORNEY-IN FACT TO, IN DEBTOR'S OR LENDER'S NAME: (a) PREPARE, EXECUTE AND
SUBMIT ANY NOTICE OR PROOF OF LOSS IN OROER TO REALIZE THE BENEFITS OFANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE,
EXECUTE AND FILE ANY AGREEMENT. DOCUMENT, FINANCING STATEMENT. TITLE APPLICATION, INSTRUMENT(OR ANY OTHER WRITING OR RECORD)
THAT, IN LENDER'S OPINION. IS NECESSARY TO PERFECT ANDlOR GIVE PUBLIC NOTICE OF THE INTERESTS OF LENDER IN ANY EOUiPMENT THAT
SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF DEBTOR TO LENDER: AND (c) ENDORSE DEBTORS NAME ON ANY
REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING 107HE EQUIPMENT OR THE PROCEEDS OF THE SALE, LEASE OR OTHER
DISPOSITION OF THE. EQUIPMENT "ETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coupled with an interest and is nevorable as tong
as any Liabilities remain unpaid.
5.0 DEFAULT AND REMEDIES
6.1 Events of Default. Timc is of the essence. An event of default stall occur if. (a I Nator fails to pay when due any amount owed by it to Lender, any assignee
of any Affiliate, successor of assign of either of aiem under this Agreement or under Itte terms of any ptamissory note delivered in conjunction with this Agreement: (b) or
if Debtor fails to pay any Liabilities when due to Lender or an assignee or any Affiliate. successor or assign of either of them Otis otherwise in default under any other
document. agreement 0( instrument: (c) Debtor defaults under die terms of any secured indebtedness or indebtedness of a material amount 10 any olner parry; fd) Debtor
fails to perform or observe any other teen or provision to be performed or observed by it hereunder or under any other ins(rumentor agreement furnished by Debtor to
Lender or to any affiliate of Lender or olnorwise acquired by Lander or any Affiliate of Lender, (e) Debtor becomes Insolvent or ceases to do business as a going concern:
(1) any of the Equipment is lost or destroyed. (O) Debtor makes an assignment br the benefit of Creditors or takes advantage of any law for the relief of debtors; (h) a
petition in bankruptcy or for an arrangement reorgamzaton. or similar relief is filed by or against Debtor (1) any properly of Debtor b attached, or a trustee or receiver is
appoinieo for Dablor or for substantial part of its property, or Debtor applies (w such appointment: 61 lender in good faith believes that the prospect of payrrient or
performance hereunder is impaired, (k) Debtat fails to pay any final judgment, court order, or, far sovereign borrowers. any dectaralian of moratorium; (I) if there stag
occur an () appropriation. (ii) confiscation. (iii) rutention, or (N) seizure of control, custody or possession of any Equipment by any governmental authority including
without limitation, any municipal. state. federal or other governmental entity or any governmental agency or fnstrumenlality fail such entities, agencies and
instrumentalities "if heroinalrer be cogecuvey referred to as'Govarnmentat Authority',): (m) it anyone in the control, custody or possession of arty Equipment or the
Dettlor is accused or alleged or charged (wheiner or not subsequenty arraigned, indicted or convicted) by any Governmental Authority to have used any Equipment in
connection with the commission or any crime (other Ulan a misdemeanur moving viotallort): (n) there snail be a material adverse change in any of the (i) condition
(financizii orothelwiso). business performance. prospects, operations or properties of the Debtor (II) legatiry, vallOkyor enforceability of this Agreement, (in) perlect)on or
priority of the berm granted in favor of Lendcl pursuant to this Agreement. IN) ability of the Debtor to repay the and indebtedness or perform its obiigatiom under this
Agreement or IV) rights alto remedies of trio Lcndei under the Agrovntent are impaired (o) there Stott be a death of majority owner of Debtor or a guarantor of Ine
obligations of Debtor under this Agreement: (p) except for the security interest. lien of reservation of title in favor of Lender or as olnerwisegranted rierein, there shall be
any lien, claim of encumbrance on any of the Equipment securing the indebtedness or obligation of Debtor to Lender or (q) Oebtor defaults under any guaranty,
collateral agreement, or other support agree merit.
5.2 Remedies. Upon Ina occurrence of on event of default. and Many time Nereafler as long as the default continues. Lender may, at Its option, with or without
notice to Debtor (i) declare this agreement to be in default, (ii) declare the indebtedness hereunder to be immediately due and payable, (n) declare all otherdebts Ilion
owing by Debtor to Lender, or any successor or assignee of Lender or any nifdiale of any of them to be immediately duo and payable, (rv) cancel any insurance and
credit any refund to the indebtedness, and (v) exercise all of the rights and remedies of o sewred party under the Uniform Commercial Code and anyother app0oable
laws. including the tight to require Debtor to assemble the Equipment and deliver Ato tender at a place to be designaled by Lander which is reasonably convenient to
both parties and to lawfufty enter any premises where the Egiispmenl may be wilnarl judicial procoss and take possession thereof. Acceleration of any List:Aittes or
indebtedness. t( So elected by Lerider, snail be Subject to all applicable taws including those pemaining to refunds and rebates of unearned charge Any property other
than Equipment that is In or upon the Equipmcnt at the Ifine of repossassion may be taken and held wiihoui liability unfit its return requested by Debtor. Unless otherwise
provided by law, any requircmard of reasonable notice which Lender may be obligated to give regarding me sale or other disposition of Equipment wilt be met of such
notice is mailed to Debtor at its address shown herein or to the most current address designated by Debtor to Lenderin writing al least ten days before 3 time of sale or
outer disposition. Lender may dispose of any Equipmcnl at a public or private sate or vt auction. Lender may buy at any safe and become fee owner of the Equipment
Debtor agrees foal lender may bring any legal proceedings it deems necessary to enforce the payment and performance of OeDtOr's oblotiions hereunder in any court
in the State shown in Lenders address set forth herein, and service of process maybe trade upon Oebtw by mailing a copy of the summons to Debtor at its address
shown nerein. The inclusion of a trade nave of division nome in the identification of Debtor hateUndei snail not limit Lender's right, alter the oteUrrenee of an event of
delaull, to proceed against all of Debtor's assets, including tttose held or used by OebtOr individually of under another trade or division name. Expenses of retaking.
holding, preparing for sate. selling and Inc like shag Include (a) the reasonable leas of any attorneys, retained by Lendet, and (b) all other legal expenses thorned by
Lender. Debtor agrees that Debtor is 63blc for all amounts due nenrunder, including any oeficlency remaining after ariy disposition of Equipment after default. Lender
may sell the Equipmcnt without giving any warranties as to the Equipment. Lender may disclaim any warranties of title, possession, quiet enjoyment, or the like. This
procedure wilt not be considered to adversely affect the commmclaI reesdnablenoss of any sale of the Equipment.
5.3 Acceleration Interest. Debtor agrees to pay Lender, upon acceleration of the above Indebtedness, interest on all sums then owing hereunder of the rate of 1
1r2% per morlln If not prohibited by law, olnerwiye at the highest Ate Debtor can legally obti.gate itself to pay or Lender can "airy collect, Any notu taken herewlth
evidences Indebtedness and not payment.
5.0 PREPAYMENT
6.1 Partial Prepayment and Automatic PCschodule, Debtor does not have the right to prepay only a portion of the balance of this Agreement pilot to maturily
without the cunsent of Lenoer (a) In the event that there are several unlu subjtact to this Agreement and ad of (hat portion of tha obligation that relates to a specific unit
is paid in fun either as a result at a casualty loss related to the unit which is repotted in writing to Lender or the sale of the Unit with the prior written consent of Lender.
Lendet wig apply the procc6'ds received by lender and identified as relating to any such transaction to the balance due under this Agreement and reschedule the
remaining montny payments under tnis Agreement over the inert remaining term. (b) In the event that Debtor is obligated to Loader or to an assignee of Lender under
the terms of any other agreement, and Lender or such assignee receives and or more remittance(s) (other than as indicated in 8.1(a) above) with respect to this
Agreement at a time wnen any amount is past due under another agreement. Lender or Lender'5 assignee will have the right to apply any portion of such excess to the
payments then due of past due under the other agreement. (c) in rho event that Lender receives one of mote a rerninance(s) (Other Than as indicated in 6.1(9) re 6.7 (b)
above) -ith respect to 1015 Agreemem in an agpregale amount in excess of the then amounts due and unpaid under this Agreement, and the excess amount is equal to
or less than four (4) iCgularly %hedated under this Agreement. Lender will apply the amount of SuCh excess to fine immediately succeeding monthly oaymenis under
Page s of s of Loss -IS Sa irI Agreement dated OG12512008 b twten HAMPTON CONSTRUCTION MANAGEMENT. LIMITED comm.)
snit CITICAPrrAL COMMC-RCrAL CORF0 RA-rro-ff -- ILVnder).
521700 ORIGINAL FOR CITiCAPITAL Aj?
t.06 Key.OSlycob 7.390519.1,0 XC:2 002 06 24 0 14 73 5 Buyet's Initial%
25-Jun-2008 01:40pm From-CITICANTAL T32 888 2587 T-310 P.0041011 F-303
eiis Agrocmenl. In (he event that Lender receives one or more a remittance(s) with respect to this Agreement in an aggregate amount in excess of the then amounts due
and unpaid under the Agreement, and the excess amount is in an aggregate amount greater than four 14) regularly scheduled payments under this Agreement, Lender
win, at lender's option ei0lef Ill apply the amountof suds excess to the final matuntg InStalirnent payments under this Agreement or (n) apply the amount of such excess.
to the balance due under this Agreement and reschedule the refraining monthly payments under this Agreement over the then remaining term. The into teat or finance
charge included in this Agreement is ptecomputedandcarly payment atone or more instatlmentt prior totheir matutity date may not reduce the total Ifitere3l
or finance charge payable by Debtor under this Agreement unless the monthly payments are rescheduled. (d) In the event that Lender efeds to reschedule the
monthly payments under this Agreement, the Penton of the balance remaining unpaid under this Agreement at the time of reschedule will be calculated in the same
manner as upon prepayment (but without penalty). The Finance Cnarge or Annual Percentage Rate applicable io the rescheduled payments will be the lesser of the
interest rate included in this Agreement and the maximum rate allowed by applicable taw, Debtor's rescheduled monthly payments will appear on Debtor's account
statement.
9,2 Prepayment in Full. Debtahastherightioprepay lhcindeblednessunder lhisAgreementinfull (but not in part) at anytime. Upon prepayment Debtor will
receive u rebate of the unearned portion of the finance charge calculated using an actuarial method Or such other method as Is required by any applicable law minus. if
me prepayment is made prior to the last twelve monies of the contract. a prepayment proceedng fee equal to the lesser of (a) 1% of the originally scheduled balance on
nhv date of prepayment for each ftrh twelve month period remaining until (ht originally scheduled of later extended due dale of the final installment payable under this
Agreement as of prepayment and (b) the max'rrnurn prepayment andror acquisition charge allowed by applicable law. A11 accrued and unpaid late Cnargbs and other
amounts chargeable to Debtor unaer Inis Agreement will be payable immediately upon such prepayment.
7.1) ASSIGNMENT AND GENERAL PROVISIONS
7.1 Chattel Paper. The only copy of fills Agiecmcnt that constitutes 'Chattel Paper for all purposes of lint "Olotm Commercial Code is the copy marked
'ORIGINAL FOR CITICAPITAL" which is aeliverea to and held oy CitiCapilal. Debtor acknowledges anal Lender is on operating subsidiary of a national bank-
7.2 Assignment and Waiver. TnisAgreeme,ttmaynotlreassigned by Debtor without [noprior written consent of Le rider. Lender may sell, transferor assign any
or an ngnis under this Agreement or sell a participa lion therein without notice to, acknowledgment of, or consent from Debtor. Agars inducemen(to Lcndor to extend
credit to Debtor and to any such assignee or participant to accept an assignment at or participation In any interval in this Agreement from Lender, Debtor hereby (a)
consents to such assignment or participation and agrees not to assen against Lender or any such assignee or participant any claims, counterclaim, claims in
recoupmenf, abatement, reduction. defenses, or set-olls for breach of warranty or for any other reasonwhich Debtor could assert agein5t Lender. any Such assignee of
participant or the manufacturerof the Equipment, except defences which cannot be waived under the Uniform Commercial Cacti and (b) agrees to make andlgr settle
any and all calms with regard to the Equipment directly and exclusively against and with the manufacturer and Debtor agrees not to assert any of such claims against
Lender or any assignee or participant. Qebtor hereby waives any right of set-off Debtor may now Of hereafter have against Lendet or any assignee of or participant in
this Agreement of any rights under this Agreement.
72 General. (a) Waiver of any default shall not oe a waiver of any oltter default. (bl All of Lender's rights are wmutative and not 3kem2tivt. (c) No waiver
change in this agreement or in any related rtp1C shall bind Lender unless in writing signed by one of its officers. (d) The term "Lender" shall Include an assignee of
Lender who is the holder of this agreement. (C) Any provision hereo(contrary to, prohibtted by or invalid under applicable laws or regulations shall be inapplicable and
deemed omitted herefrom, but shall not invalidate the remaining provisions hereof (f) Dablor waives all exemptions to the orient permitted by law. (g) Lender may
correct patent altars herein. (h) Any captions to the provisans of this Agreement are bf convenience only and do not ilmil or ati the application or Interpretation of this
Agreement, ti) All of the terms and provisions 0111119 agreement shah apply to and be binding upon Debtor, its heirs. personal representatives. successors and assigns
and shalt Inure to the benetit of Lender, its successor and assigns. ()) The acceptance by Lender of any readttance from a parry other than Debtor shall In no way
constitute Lenders Consent to the transicr of any of the Equipment 1o such party. (k) if allowed by law, the'reasortabfe fees of enomcyJ'retained by Lender shall include
ate amount of any flat tee, retainer, contingent fee or ire hourly charges of any attofncy retained by lender in enforcing any of Lenders rights hereunder or in the
prosecution or defense of any litigation related to this Agreemenl or the transactions conternplaled by this Agreement. (1) Debtor represents and warrants that there is no
imlerial pending of threatened investigation by any governmental authority, litigation or other "at proceeding. (m) So long as any of the liabilities remains unpaid or
unperformed. Debtor will provide Lender with such financial information as Lender may reasanady request. including copies of Debtor's financial statements prepared in
accordance with generally accepteC accounting principles consistently applied wllnin 30 days of the end of each of Debtors fiscal quarters and within g0 days alter lino
end of each of Debtor's fiscal years. Such financial statements shall be preparad on the same basis (reviewod. audited, etc.) as Debtor's financial statements are
currently prepared unless advised by the Lender otherwise, at which tame the Debtor will comply with the Lenders request. (n) Debtor waives any right it may have to
direct the application of any payments made by 11 10 Lender. and Lender may at its option offset and deduct any liability or obligation of DetXor from any ores sums owed
by d to D2blor.
7.4 Additional Covenants and Oral Agreement Lender and Debtor agree that this is a four page security agreement and each page hereof constitutes a
part of this agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS. OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
7.5 Waivor of Trial By Jury, Lenoer and Debtor hereby waive any right to trial by jury irl any action faial'Ng to this Agreement. Debtor hereby, for itself, its
successors and assigns. WAIVES ANY RIGHT TO SUE OR COLLECT FROM LENDER ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL. PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULTOF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE ENFORCEMENT BY LENDER OF ITS RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT THATANY SUCH DAMAGES ARE
PROVEN TO tIC Thr DIRECT RESULT OF THE GROSS NEGLIGL'NCE OR WILLFUL MISCONDUCT OF THE LENDER.
7.6 Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS, BUT ONLY TO THE EXTENT SUCH LAW IS NOT
PREEMPTED BY FEDERAL LAW OR REGULATION.
7.7 Pax Copies. Lender and Deblot agree Ihat Lender is supposed to receive originally signed copies of all documents relating to this Agreement including,
without lirnhation. this Agreement and any addendum thereto, any guaranty. and any rmfulions and cefiiftcates Ofauthonly (all of the foregoing collectively referred to as
the 'Transaction DOclanenl5 ). However- Deblor agrees that if the original Of any of such Transacton Documents is not received by Lender, then Lender may treat and
rely on any version of any such Transaction Document that has been trensmined (o lender by facsimile transmission ('fax') as the signed orlg(nal of euchTtanseaion
Document. However. no tax version of any such document will become effective and binding upon Lender until manually signed by Lender in Lender's offices. In Such
event, Debtor waives rrolice of Lender's acceptance of suds.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Government light terrorism and money laundering, Federal law requires us to obtain, verify, and
record information that identifies each person or business that opens an account or establishes a relationship. What this
means for you: when you open an account or establish a relationship, we will ask for your name, street address, date of birth,
and identification number, such as asocial security number or taxpayer identification number. For businesses, we will ask for
the business name, street address and tax identification number. Federal law requires us to obtain this information. We may
also ask to see your driver's license or other identifying documents that will allow us to identify you. We appreciate your
cooperation.
PAoe 4 of S of Loen and Scar 4 r#enwnt dstr d 06125/2009 bet- HAMPTON CONSTRUCTION MANAGEMENT LIMITED
and CITICAPITAL COMMERCIAL CORPORATION tundcq. (doblor)
aztioo ORIGINAL FOR CITICAPITAL
06 Rcv.6S12008 1390619.1.0 XC20CM624074735 uyc s Inlilarc
Z5-Jun-2008 01:40pa From-CITICAPITAL
732 888 2587 T-310 P.005/011 F-303
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(CheCx Appropriate Box)
Nrikoi'3 obligations and tiablrtttes to (..ender are absolute and urwonditionat under as circurllstsnces and regardless of any ta& re of operation or Debtor's bss of
possession of any teem or Equipment of lhd cessation or interruption of Debtor's business for any reason whatsoever,
On (O-AS-48, the Equipment boing purchased with the procoedt: of this Agreement was delivered to Debtor with all installation and other work
necessary for the proper use of the Equiprrlud completed at a location hgfCCd upon by Debtor, the Equipment was inspected by Debtor and found lobe in
sadsfactory.condilion in all respects and Celivery was unconditionally accepted by Deblof.
Q The Equipment being purchased with the proceeds of thin Agreemcothas notyet been deltvOrcd to or accepted by Ocbtor and. upon dewely,oeblor
agrees to execute sucll aefivary and acceptance ce(lificale as Lender requires.
Q All of the Equipment was acquired, by Debtor prior to the date hereof and was previously delivered to and unconditionally acceplod by Debtor.
(.)area: 06115(2008
Lender
CITICAPITAL COMMERCIAL CORPORATION
By:
Title.
90 MATAWAN ROAD, 5TE 102
(Street Aderesa)
MATAWAN NJ 07747
(Chy. State and 2;0 Codei
Debtorla) heroby sctlnotwtedgc(t) receipt of an exact copy of this contract.
Debtor
HAMPTON CO STRUCTION MANAGEMENT, LIMI
By:
Title:
St
State of Organization: PA Date of Birth: NIA
tsow proprietor only)
Federal Taxpayer ID or SSN: -
-Principal Residence/Chief Executive Office/Place of Business
3607 HARTZDALE DRIVE
tStreet Address)
CAMP HILL PA 17011
(Cny, St. IC ono Ip Code)
Co-Debtor
By:
Title: _
State of Organization:
Federal Taxpayer ID or SSN
Date of Birth:
tSote PIePT;etor OAV)
Principal Residence/Chief Executive Office/Place of Business:
NA
(51rerel Addrest)
(COY. State and Zip Code)
Pabr S ors .(L... and Securittyy wgqroomont 00104 iW2S)2069 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED iooeto.
.nom CITICAPITAL COMMERCIAL G0nr`0n^T10N r1-ender), )
621700
105 Rev, U92W5
ORIGINAL FOR WICAPITAL
1.390619.1.0 XC:2008062 4 0 7 4 735
JUN-26-2008 THU 09:26 AM Groff Tractor FAX NO. 7177661580
P. 02
i GROFF TRACTOR & EQUIPMENT, INC.
• 6779 CARLISLE PIKE
MECHANICSBURG, PA. 47050
(747) 766.7874 FAX(717)768.1580
Machantcaburg, PA. ' State College, PA.
TRACrOW ?r EQUIPMENT, INC. Ephrata, PA. • New Stanton, PA. ' Valencla, PA.
SOLD TO SHIP TO
14A545P HAMPTON CONSTRUCTION PO# REQ
NO PO NO.SALE
3601 HARTZDALE DR
CAMP HILL, PA 17011
Tax D Qty Description -------------------------------* Price Amount
?. ... .
Wi
DESGRIPTl l;t :NE
. THE FaLLO,W;ING
CHA
PiJR S>? . Off`
.
060.00....
. ....
,
.
.
,;.,.::.
060,00 RK>;UCH2.. TH180FR EXCAVATOR 77S,O0Q
ie"
::06.040 ...::<...... :N.::j;'7.$-3"0'578 .... ? .
,
.... .:. ,... ... ,... ...:•a:?°:?:? ,...
,0,60:00 .. .... ..
060.D6 GN)E 4M820.<TREb7C1? HOX 13621 R0`
06000 S. N M0.80339@
7w- IN OF.
0 6.0.0 0 LESS.
-;
`:0:6 0 o a .:.....::::.:
::
...
06000 NPK E210A 6REAKFR.S/N 72031 2500 00
_0.60.00.
.. ... .. ,.
,00,000 TERMS FINANCE WITH CITICAPITAL
=0'0 0 0 0
00000 RS PER SO# 08 29
'
** OTAL
DES RPTION :NEW. '..76121 Q
tMS: NCT 30 (UNLESS OTi1£RWiSE N=01: A 1 1/29b SERME CKARGLI ON ALL fNVOfCE5 OVER 3o DAYS (I WA PER ANNUM). rW1I'IIfW5: ALL RETURNS MUST 0K ACCOMPANIRA
TFUS INVOICE. ALL RETURNS An SU&1ECrl"0 A I C'N RESTOCKING CHAR(JE- FEI)rRAL LA.k: 23-IG38679. PLEASE INOICATk: INVOICE N1jM8EH WrrH YOUR P.WrrrANCE.
** SUBTOTAL 76121.00
Charge Sale SALES TAX 5317.26
X
PAY THIS * 1 $81438.26
AMOUNT `
YSSR PACKING!Wrl
Exhibit H
CONTINUING GUARANTY
I?
For Valuable Consideration the receipt and suffioe'Guaranq of winch is hereby acknowledged, the undersigned, for themselves, their heirs, executors, personal representatives,
successors and assigns (mdrvdually called ntor" and colledvely raped 'Guaranors') jointly and severally and in solhdo, hereby unconditionally
guarantee to GROFF TRACTOR & EQUIPMENT, INC its successors, endorsees and assigns, (collectively
(Secured Party or Lessor) .
called • CitiCapital .) that HAMPTON CONSTRUCTION MANAGEMENT, LTD
(Party to be Guaranteed)
(the 'Company), whose address is
424 RAILROAD AVE SHIREMANSTOWN PA 17011
shall promptly and fully perform pay and discharge all of its present and future habkldies, obligations and indebtedness to CibCapdal, whether direct or indirect, joint or several,
absolute or contingent, secured or unsecured, matured or unmatured, and whether ongmely contracted with or otherwise acquired by GhCapdal (all of which liabilities, obligations and
indebtedness are herein individually and collectively called the "Indebtedness' ) This Guaranty is an absolute and unconditional guarantee of payment and not of coPecbbility The
liability of each Guarantor hereunder is riot conditional or contingent upon the genuineness, validity sufficiency or enforceability of the Indebtedness on any instruments, agreements
or
chattel paper related thereto (collectively taped "Agreements") or any security or collateral therefor (collectively ceded "Seounty) or the pursuit by CMCapdal of any rights or remedies
which it now has or may hereafter have If the Company fails to pay the indebtedness promptly as the same becomes due, or otherwise fads to perform any obligation under any of the
Agreements, each Guarantor agrees to pay an demand the entire Indebtedness and all losses costs, attomeys' fees and expenses which may be suffered by CrkCapdal by reason of
the Company's default or the default of any Guarantor hereunder, and agrees to be bound by and to pay on demand any deficiency established by the sale of any of the Agreements or
Security all without relief from valuation and approsemerd laws and without requiring CdiCapital to (i) proceed against the Company by suit or otherwise, (a) foreclose proceed
against, Icgwdate or exhaust any of the Agreemerits or Securdy, or (err) exercise, pursue or enforce any right or remedy CdiCapital may have against the Company, any co-Guarantor
(whether hereunder or under a separate instrument) or any other party Each Guarantor agrees that this Guaranty shalt not be discharged or affected by any circumstances which
constitute a legal or equitable discharge of a Guarantor or surety, or by the death of any Guarantor, the records of CrbCapdal shall be received as con dusrve evidence of the amount
of
the Indebtedness at any time owing, one or more successive or concurrent suds may be brought and maintained against any or all of the Guarantors, at the option of CdiCapital, with or
without joinder of the Company or any of the otter Guarantors as parties thereto, such Guarantor will not avail itself of any defense whatsoever which the Company may have against
GbCaptal other then full payment of the Indebtedness, and such Guarantor will not seek a charge of venue from any jurisdiction or court in Mich any action, proceeding or litigation
is commenced
EACH GUARANTOR HEREBY WAIVES NOTICE OF ANY ADVERSE CHANGE IN THE COMPANY'S CONDITION OR OF ANY OTHER FACT WHICH MIGHT MATERIALLY
INCREASE SUCH GUARANTOR'S RISK, WHETHER OR NOT CITICAPITAL HAS KNOWLEDGE OF THE SAME EACH GUARANTOR ALSO HEREBY WAIVES ANY CLAIM,
RIGHT OR REMEDY WHICH SUCH GUARANTOR MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE COMPANY THAT ARISES HEREUNDER AND/OR FROM THE
PERFORMANCE BY ANY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM, REMEDY OR RIGHT OF SUBROGATION, REIMBURSEMENT
EXONERATION, CONTRIBUTION INDEMNIFICATION OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF CITICAPITAL AGAINST THE COMPANY OR ANY
SECURITY WHICH CITICAPITAL NOW HAS OR HEREAFTER ACQUIRES, WHETHER OR NOT SUCH CLAIM, RIGHT OR REMEDY ARISES IN EQUITY, UNDER CONTRACT BY
STATUTE UNDER COMMON LAW OR OTHERWISE
No termination hereof shall be effective unlit the Guarantors deliver to CdiCapdal a written notice signed by them electing not to guarantee any now extension of credit that may be
granted by CdiCapdal to the Company after its receipt of such notice, but such notice shall not affect the obligahora of the guarantors hereunder as to any and all Indebtedness existing
at the time such notice is recerved Each Guarantor hereby warves (t) notice of acceptance hereof and notice of extensions of credit given by CdiCapdal to the Company from time to
Urns (u) presentment demand protest, and notice of non-payment or protest as to any note or other evidence of indebtedness signed, accepted endorsed or assigned to CitiCapital
by the Company (w) all exemptions and )homestead laws, (hv) any other demands and notices required by law and (v) any right to trial by jury CdrCapdal may at any time and from
time to time without notice to or the consent of any Guarantor, and without affecting or impairing the obligation of any Guarantor hereunder, (a) renew, extend or refinance any pall
or
all of the Indebtedness of the Company or any Indebtedness of its customers, or of any co-Guarantor (whether hereunder or under a separate instrument) or any other party (b) accept
partial payments of the Indebtedness and apply such payments to any part of the Indebtedness, (c) settle, release (by operation of law or otherwise), compound compromise, tolled
or liquidate, in any manner, any of the Indebtedness, any Security or any Indebtedness of any co-Guarantor (whether hereunder or under a separate instrument) or any other party, (d)
consent to the transfer of any Security, (e) old and purchase at any sale of anyof the Agreements or Security, and (f) exercise any and all rights and remedies available to GirCapdai
by
law or agreement even if the exercise thereof may atfed, modify or eknunate any rights or remedies which a Guarantor may have against the Company Each Guarantor shall continue
to be liable under this Guaranty, the provisions hereof shall remain in full force and effect, and CdiCapdal shall not be estopped from exercising any rights hereunder, notwithstanding
(n) CrtiCapdal waiver of or failure to enforce any of the terms, covenants or conditions contained in any of the Agreements, (u) any release of, or failure on the part of CdnCapital
to
perfect any security interest in or foreclose, proceed against, or exhaust any Security, or (m) CdiCaptal failure to take new, additional or substitute security or collateral forthe
Indebtedness
Each Guarantor agrees that CdrCaptal may bring any legal proceedings it deems necessary to enforce any or all of such Guarantor's obligations hereunder in any court in the State in
which CibCap ears office administering the Indebtedness is loomed and service of process may be made upon such Guarantor by mailing a copy of the summons to such Guarantor at
its address last known to GbCapital All rights and remedies of CdrCapdal one cumulative and not ahemative Each provision of this Guaranty is intended to be severable Any term or
provision hereof declared to be contrary to, prohibited by or invalid under applicable laws or regulators shall be inapplicable and deemed omitted herefrom, bud shall not invalidate
the
remairang terms and provisions hereof
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty on 30 ?V
(flm)
Witness
Witness
Guarantors Federal Taxpaya nhficaton or ial
Guarantor HARRY I MORRIS Jr
(LS)
(Name of ndneduia corpora or paMershp)
BY TJf)a =NA1VtOVn\i
(a owpoaale guannlor aulhorhed officer moat sign she.- cuapord. err If p.nnernh4 pus a
Securty Number his geenam peieror must alp ant anew -PVNer ells r IrMMdrel guarantor sham 9,dirkwltY Baer
424 RAILROAD AVE
Address SHIREMANSTOWN PA 17011
Note Insert exact company names where appropnate, individual guarantors must sign guaranty without Idles Sign simply "John Smith, Individually,' not 'John Smith, President'
DO NOT USE THIS FORM If the guarantor resides or has a principal place of business in Kentucky
6201361 Rev 03/2005
1 03 Page 1 of 1 1218665 2 0 XC 20050628134315 Amember of crtigrour
CITICAPITAL is a service mark of Citicorp
Exhibit I
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Debtor
COLONIAL PACIFIC LEASING
CORPORATION,
Movant
CASE NO: I-10-bk-02067-MDF
CHAPTER 11
RE: DOCKET ENTRY NO: 90
V.
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Respondent
ORDER REJECTING EXECUTORY CONTRACT
Upon consideration of the Motion for an Order Approving Rejection of an Executory
Contract with Colonial Pacific Leasing Corporation (the "Agreement"), and the Court finding
that proper notice and opportunity for a hearing having been given, and the Court further finding
that the certain Agreement referenced in the Motion is burdensome to the Debtor's estate and
would cause undue administrative expense if not rejected; it is hereby
ORDERED AND DECREED that:
1. The Agreements among Debtor and Colonial Pacific Leasing Corporation
("Colonial") for five (5) Leases referenced in the Motion be and hereby is deemed rejected.
2. Colonial, in its capacity as counterparty to the Agreement, shall have twenty (20) days
from the date of this Order to file a claim for damages for such rejection, which claim shall be in
accordance with the provisions of the United States Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure, respectively. Failure to timely file such claim for damages shall cause
such claim to be barred forever from recovery of any amount within this bankruptcy case, or
otherwise, for or on account of any, such alleged claim for damages arising from rejection of such
agreement.
By Me Court,
Dated: November 4, 2010
Chief Bankruptcy Judge
(JK)
Case 1:10-bk-02067-MDF Doc 103 Filed 11/04/10 Entered 11/04/10 11:18:15 Desc
Main Document Page 1 of 1
1
Exhibit J
i
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Debtor
COLONIAL PACIFIC LEASING
CORPORATION,
Movant
V.
CHAPTER 11
CASE NO. 1: 1 0-bk-02067 MDF
RE: DOCKET ENTRY NO. 167
ORDER
AND NOW, upon consideration of the Colonial Pacific Leasing Corporation
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Respondent
("Colonial"), Certification of Default of debtor/respondent, Hampton Construction Management,
Limited Pursuant to Order entered by this Court on March 29, 201. 1, and after notice it is hereby:
ORDERED that the Movant's motion be GRANTED; and it is
FURTHER ORDERED that the stay afforded by Section 362 of the Bankruptcy Code is
modified so as to permit to exercise all remedies afforded by state law with regard to the
following equipment, s/n, as follows:
a. Caterpillar Loader Wheel Dozer 924G Serial No: DDA01098
b. Peterbilt (PACCAR) Truck 335 Serial No: 2NPLHD6X97M685087 with
Autocrane Titan 60 14' and Mechanic Service Body Serial No: 605K/120-0606-088
(collectively the "Equipment"), including but not limited to pursuing the issuance of a Writ of
Replevin to take possession of the Equipment; and it is
Case 1: 1 0-bk-02067-MDF Doc 170 Filed 05/12/11 Entered 05/12/11 13:43:56 Desc
Main Document Page 1 of 2
4
FURTHER ORDERED that Colonial is authorized to retain, sell, lease, or otherwise
dispose of the Equipment without further Order of this Court or notice to the Debtors, to collect
any and all such payments on account of its sale, lease or other disposition of the
above-described Equipment and to apply such payments to Colonial claim(s) against the
Debtors.
By the Cowl,
CNet Bankruptcy Judge
{JK)
Dated: May 12, 2011
Case 1:10-bk-02067-MDF Doc 170 Filed 05/12/11 Entered 05/12/11 13:43:56 Desc
Main Document Page 2 of 2
WONG FLEMING, P.C.
Ian S. Clement
PA Bar ID: 205539
1515 Market Street, Suite 820
Philadelphia, PA 19102
Tel: (215) 546-2776
Attorneys for Plaintiff Colonial Pacific Leasing Corporation
Colonial Pacific Leasing Corporation
1010 Thomas Edison Blvd., SW.,
Cedar Rapids, IA 52404
V.
Plaintiff,
Harry I. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL DIVISION
Case No.
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST
THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION
WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE
SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN
ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR. DEFENSES OR
OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED
THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A
JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT
FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR
ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY
LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE
OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL
HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
`.i 'J
mr.? I
;! ii
Colonial Pacific Leasing Corporation
Case Number
vs.
Harry I. Morris, Jr. 2012-2078
SHERIFF'S RETURN OF SERVICE
04/10/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search
and inquiry for the within named defendant to wit: Harry I. Morris, Jr., but was unable to locate him in his
bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Harry I.
Morris, Jr. Request for service at 424 Railroad Avenue, Shiremanstown, Pennsylvania 17011 does not
exist.
SHERIFF COST: $48.00 SO ANSWERS,
April 10, 2012 RON R ANDERSON, SHERIFF
WONG FLEMING, P.C. 1 0 .
Ian S. Clement r-> 3
PA Bar ID: 205539
1515 Market Street, Suite 820 ("j"OERL A Q COU T
Philadelphia, PA 19102 ' E"S Y VAN1A YTel: (215) 546-2776
Attorneys for Plaintiff Colonial Pacific Leasing Corporation
Colonial Pacific Leasing Corporation
1010 Thomas Edison Blvd., SW.,
Cedar Rapids, IA 52404
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL DIVISION
Plaintiff,
V.
Case No. 2012-02078
Civil Action
Harry I. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
PRAECIPE TO REINSTATE/REISSUE
TO THE PROTHONOTARY:
( ) REISSUE WRIT
(X) REISSUE COMPLAINT
WONG FLEMING
A Professional Corporation
Attorneys for Plaintiff Colonial Pacific Leasing
Corporation
DATED. April 19, 2012 By G2
Ian Clement, Esq.
a06u.? at?
Ck« a a ?
??.a?uQ89
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
44
?)f HF !?F?,qT1,",QN ?TAr,;
2012 APR 27 AM 9: 5
CU P?NSYLVANIq TY
Colonial Pacific Leasing Corporation
vs.
Harry I. Morris, Jr.
SHERIFF'S RETURN OF SERVICE
Case Number
2012-2078
04/25/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on April 25, 2012 at 1540
hours this Complaint and Notice upon defendant Harry I. Morris, Jr. is returned not served it has expired.
SHERIFF COST: $28.00 SO ANSWERS,
April 26, 2012 RON R ANDERSON, SHERIFF
SHERIFF'S OFFICE OF CUMBERLAND COUNT'
?3 ^?
rn+aa
? .
r;i
Ronny R Anderson 2 T ..
Sheriff
C-D
Jody S Smith Cc
Chief Deputy - D?--
Richard W Stewart
T>
°? c
Solicitor -i
Colonial Pacific Leasing Corporation
vs.
Harry I. Morris, Jr.
Case Number
2012-2078
SHERIFF'S RETURN OF SERVICE
05/09/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he made a diligent search
and inquiry for the within named defendant to wit: Harry I. Morris, Jr., but was unable to locate him in his
bailiwick. He therefore returns the within Complaint and Notice as not found as to the defendant Harry I.
Morris, Jr. Request for service at 3607 Hartzdale Drive, Camp Hill, Pennsylvania 17011 the Defendant
was not found. Deputies were advised, Harry I. Morris, Jr. may have worked for Hampden Construction at
424 Railroad Avenue, Camp Hill, Pennsylvania 17011, but this structure is no longer existing.
SHERIFF COST: $48.45 SO ANSWERS,
May 09, 2012 RbNISW R ANDERSON, SHERIFF
t'? t r
WONG FLEMING, P.C.
Ian S. Clement
PA Bar ID: 205539
1515 Market Street, Suite 820
Philadelphia, PA 19102
Tel: (2115) 546-2776
Attorneys for Plaintiff Colonial Pacific Leasing Corporation
Colonial Pacific Leasing Corporation
1010 Thomas Edison Blvd., SW.,
Cedar Rapids, IA 52404
Plaintiff,
V.
Harry 1. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL DIVISION
Case No. 2012-02078
Civil Action
PRAECIPE TO REINSTATE/REISSUE
TO THE PROTHONOTARY:
( ) REISSUE WRIT
(X) REISSUE COMPLAINT
WONG FLEMING
A Professional Corporation
Attorneys for Plaintiff Colonial Pacific Leasing
Corporation
DATED: May 29, 2012 By:
411, r15 PA A'ri`l
e? 1?3y
e#01159-73
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
ortit'q ai LrupbcrYT4
OF4'CE IFF
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
1? J!A' 12 A l 8: 1 rr
4 t BE E R ? f'Y t W 1.1 ?l ? V if'W kV ?Yi
PEP SYLVANIA
Colonial Pacific Leasing Corporation
Case Number
vs.
Harry I. Morris, Jr. 2012-2078
SHERIFF'S RETURN OF SERVICE
06/01/2012 04:35 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on June 1
2012 at 1635 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Harry I. Morris, Jr., by making known unto himself personally, at 590 Lucinda Lane,
Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to
him personally the said true and correct copy of the same.
e???41110-11
STEPHEN BENDER, DEPUTY
SHERIFF COST: $38.00
June 07, 2012
SO ANSWERS,
RON R ANDERSON, SHERIFF
'c? Cou?tySuite Sher& Teleoso`t, Inc.
COLONIAL PACIFIC LEASING IN THE COURT OF COMMON PLEAS
CORPORATION, CUMBERLAND COUNTY,
PENNSYLVANIA r
Plaintiff _
NO: 2012-02078 - -=
V.
CIVIL ACTION
HARRY I. MORRIS, JR.
?n CD
r, C= vr...
Defendant
PRELIMINARY OBJECTIONS OF DEFENDANT, HARRY I. MORRIS, JR.
Defendant, Harry I. Morris, Jr. ("Defendant"), by and through his counsel, Cunningham &
Chernicoff, P.C., submits his Preliminary Objections to Plaintiffs Verified Complaint, and in
support thereof, states as follows:
1. On or about April 2, 2012, Plaintiff filed its Verified Complaint ("Complaint")
against Defendant.
2. On or about May 31, 2012, the Complaint was reinstated by the Prothonotary of
Cumberland County, and was served by the Sheriff of Cumberland County on
June 1, 2012.
PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(4)
LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER)
3. Defendant hereby incorporates all of the above paragraphs as though more fully
set forth at length below.
4. Pa. R.C.P. 1028(a)(4) provides that a Preliminary Objection may be filed on the
ground of legal insufficiency of a pleading.
5. In Paragraph 91 of the Complaint, Plaintiff alleges that Defendant executed a
continuing guaranty of the debt of Hampton Construction Management, Ltd. In
favor of Plaintiff in connection with certain of the loan/lease and security
agreements attached to the Complaint.
6. The document, attached to Plaintiffs Complaint as Exhibit "H", purports to
guarantee "to Groff Tractor and Equipment, Inc., its successors, endorsees, and
assigns (collectively called "CitiCapital")..." the debts of Hampton Construction
Management, Ltd.
However, the Complaint fails to state or allege that Plaintiff is a successor or
assign of Groff Tractor and Equipment, Inc. or CitiCapital, or to attach a written
assignment. The Complaint does not set forth that Defendant guaranteed any
obligation to Colonial Pacific.
8. Accordingly, Plaintiffs claims against Defendant on the basis of the Continuing
Guaranty dated June 30, 2005 (the "June 30 Guaranty") are legally insufficient, as
Plaintiff has averred that it maintains the right to sue Plaintiff on the basis of a
personal guaranty issued to a party other than the Plaintiff and Plaintiff has not
averred that Defendant provided a guaranty to Plaintiff.
WHEREFORE, Defendant, Harry I. Morris, Jr. respectfully requests that this Honorable
Court dismiss Plaintiffs Complaint and grant to Defendant such other relief as is may be just and
proper.
PRELIMINARY OBJECTION PURSUANT TO Pa.R.C.P. 1028(a)(2)
FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT
9. Defendant hereby incorporates all of the above paragraphs as though more fully
set forth at length below.
10. Pa. R.C.P. 1028(a)(2) provides that a Preliminary Objection may be lodged on the
basis of the failure of a pleading to conform to law or rule of court, or the
inclusion of scandalous or impertinent matter.
11. Pa. R.C.P. 1019(i) states that when a claim or defense is based upon a writing, the
pleader shall attach a copy of the writing, or the material part thereof.
12. Paragraph 91 of Plaintiffs Complaint avers that Defendant executed two (2)
separate Continuing Guaranties, the June 30 Guaranty, and another purportedly
executed on or about October 14, 2005.
13. Plaintiff further avers that true and correct copies of both such documents are
attached to the Complaint as Exhibit "H".
14. However, only the June 30 Guaranty is attached to the Complaint as Exhibit "H".
15. Accordingly Plaintiff failed to attach to the Complaint the alleged continuing
guaranty dated October 14, 2005, in violation of Pa. R.C.P. 1019(i).
WHEREFORE, Defendant, Harry I. Morris, Jr. respectfully requests that this Honorable
Court dismiss Plaintiffs Complaint and grant to Defendant such other relief as is may be just and
proper.
PRELIMINARY OBJECTION ON THE BASIS OF 1028(a)(3)
INSUFFICIENT SPECIFICITY IN A PLEADING
16. Defendant hereby incorporates all of the above paragraphs as though more fully
set forth at length below.
17. Pa.R.C.P. 1028(a)(3) provides that a Preliminary Objection may be filed on the
ground of insufficient specificity in a pleading.
18. Plaintiffs Complaint generally avers that:
a. It is the assignee of seven (7) lease/loan agreements and companion
security agreements;
b. That a default has or had occurred under each of the seven separate
security agreements, and that by virtue of said defaults, the equipment
secured by the Security Agreements was repossessed, and sold with the
proceeds being applied to amounts allegedly owed to Plaintiff,
19. However, for each separate loan and security agreement or life lease agreement,
Plaintiff fails to itemize as to the remaining amounts owed for each of the subject
leases or loans, or to state with sufficient specificity the treatment of surpluses or
deficiencies that arose by virtue of the sale of the collateral.
20. Moreover, Plaintiff fails to itemize, in a specific and concise manner, the amounts
due under each agreement at the time of each respective alleged default under
each respective agreement, less the net proceeds recognized from the sale of the
various articles of equipment, plus each individual cost allegedly incurred and
chargeable to Defendant in a clear, specific manner.
21. Plaintiff also makes demand for interest reasonable attorney fees and costs of
collection, yet fails to itemize any of the interest costs of collection or attorney
fees its seeks.
22. Accordingly, Plaintiffs Complaint is not pleaded with sufficient specificity to
permit Defendant to adequately respond to the averments made by Plaintiff
respecting amounts due under each agreement, including interest, attorney fees,
and cost of collection, and the total amounts due under all of the Agreements
combined.
WHEREFORE, Defendant, Harry I. Morris, Jr. respectfully requests that this Honorable
Court dismiss Plaintiffs Complaint and grant to Defendant such other relief as is may be just and
proper.
Respectfully submitted,
CUNNINGHA & CHERNICOFF, P.
a
Date: June 20, 2012 By:
Aobe?rXIE. hernicoff, Esquire
Attorney I.D. #23320
Nicholas A. Fanelli, Esquire
Attorney I.D. #308136
2320 North Second Street
Harrisburg, PA 17110
Telephone: (717) 238-6570
Attorney for Defendant
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Assistant, with the law firm of Cunningham & Chernicoff,
hereby certify that a true and correct copy of PRELIMINARY OBJECTIONS OF
DEFENDANT, HARRY I. MORRIS, JR. was served by first-class mail, postage prepaid, on
the following:
Ian S. Clement, Esquire
Wong Fleming, P.C.
1515 Market Street
Suite 820
Philadelphia, PA 19102
CUNNINGHAM & CHERNICOFF, P.C.
i
Date: June 20, 2012 By. dVA? "4?1
Julieanne Ametrano
F:',Home\NFANELLI\Documents\MORRIS.HARRY\Preliminary Objectionsmpd
WONG FLEMING, P.C.
Ian S. Clement
PA Bar ID: 205539
1515 Market Street, Suite 820
Philadelphia, PA 19102
Tel: (215) 546-2776
Attorneys for Plaintiff Colonial Pacific Leasing
Corporation
Colonial Pacific Leasing Corporation
1010 Thomas Edison Blvd., SW.,
Cedar Rapids, IA 52404
Plaintiff,
V.
Harry I. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
(NOTICE TO PLEAD
TO: Defendant Harry I. Morris.
You are notified to plead to the Amended Complaint set fo
herein within twenty (20) days from the date of service o a
judgment may be entered against you.
Ian S. Clement, Esq.
Attornevs for Colonial
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
PENNSYLVANIA
CIVIL DIVISION
Case No. 12-2078 Civil Term n
G
Civil Action ?C-
Z?
=TZ
7
4 c
VERIFIED AMENDED COMPLAINT
Plaintiff Colonial Pacific Leasing Corporation ("Colonial") by and through
undersigned counsel, hereby submits this Complaint against Harry I. Morris, Jr. ("Morris")
in support thereof, avers as follows:
PARTIES
1. Plaintiff Colonial Pacific Leasing Corporation is a company organized
existing pursuant to the laws of the State of Delaware with its principal place of business at 10
Thomas Edison Blvd SW, Cedar Rapids, IA 52404.
am ?
-v
° ca
4_
10
1
s '
a. On August 4, 2008, CitiCapital Commercial Corporation merged wii
CitiCorp Leasing, Inc., transferring the Security Agreements described
this Complaint, infra, to CitiCorp Leasing, Inc.
b. On August 4, 2008, a Certificate of Amendment of
Incorporation was executed wherein it was resolved that CitiCorp
Inc. would be named GE Capital Commercial, Inc.
C. On December 31, 2009, GE Capital Commercial Inc. assigned the
and Security Agreements described in this Complaint, infra, to Cc
Pacific Leasing Corporation
A true and correct copy of the assignments are attached hereto as Exhibit A
2. Morris is a Pennsylvania resident with an address of 424 Railroad A
Shiremanstown, PA 17011 and is the President of Hampton Construction Management,
("Hampton") a Pennsylvania corporation with a place of business located at 424
Avenue, Shiremanstown, PA 17011 and 3607 Hartzdale Drive, Camp Hill, PA 17055.
JURISDICTION AND VENUE
3. The Court has jurisdiction over original actions for breach of contract pursuan
42 Pa. C.S. § 931.
4. The Court of Common Pleas, Cumberland County is the proper venue pursuant
Pa.R.C.P. No. 2179(a) (1).
STATEMENT OF FACTS
Security Agreement No. 9634428001
2
_ I
5. On June 30, 2005, Hampton entered into a Security Agreement
"Agreement I") with Colonial, wherein Hampton agreed to make payments to Colonial for
lease of the following equipment ("hereinafter First Set of Equipment"):
a. (1) Case Hydraulic Excavator CX330
S/N: DAC331266
A true and correct copy of Agreement 1 is attached hereto as Exhibit B.
6. Pursuant to Agreement 1, Hampton agreed to lease the First Set of Equipment
making monthly installment payments in the amount of $4,304.75 for a term of 60
beginning on or about August 1, 2005.
7. Upon information and belief, Hampton used the First Set of Equipment at i
place of business, located at 424 Railroad Avenue, Shiremanstown, PA 17011.
8. Pursuant to paragraph 5.1 of Agreement 1, entitled "Events of Default," H
agreed that a default shall occur if "(a) Buyer fails to pay when due any amount owed by it
Seller... (h) a petition in bankruptcy ... or similar relief is filed by or against Buyer."
Exhibit B.
9. Pursuant to paragraph 5.2 of Agreement 1, entitled "Remedies" the parties
that, "Upon the occurrence of an event of default, and at any time thereafter as long as the
continues, Seller may, at its option, with or without notice to Buyer (i) declare this agreement
be in default, (ii) declare the indebtedness hereunder to be immediately due and payable..."
Exhibit B.
10. Pursuant to paragraph 5.2 of Agreement 1, upon Hampton's default,
agreed to pay "(a) the reasonable fees of any attorneys retained by Seller, and (b) all other
expenses incurred by Seller." See Exhibit B.
3
11. Further, and pursuant to Agreement 1, Hampton agreed to a "Delinquency Char
of 1 '/z% per month for the period of delinquency... otherwise at the highest rate Buyer ca
legally obligate itself to pay and/or Seller can legally collect." See Exhibit B ¶ 5.3.
12. On or about October 1, 2009, Hampton defaulted under the terms of Agreement
by failing to make its minimum monthly payment.
13. On or about March 16, 2010, Hampton further defaulted under the terms
Agreement 1 by filing a petition for bankruptcy in the United States Bankruptcy Court for
Middle District of Pennsylvania.
14. On November 1, 2009, Hampton's outstanding balance on Agreement 1
$48,300.44, which consisted of the following:
Regular rental
payments
$37,665.15
537 days @ $19.81 per
Interest day $10,635.29
Total
$48,300.44
15. Colonial subsequently repossessed the First Set of Equipment
16. On or about December 14, 2010 Colonial sold the First Set of Equipment for
auction to the highest bidder for $40,604.31.
17. Colonial incurred $2,495.00 in repossession costs
18. Colonial realized net proceeds of $38,109.31, which was credited to the
leaving a deficiency balance of $14,909.51, which included post-sale interest of $286.22
days at $1.01 per day) and $1,937.16 in late charges (nine months at $215.24 per month).
19. Colonial has applied the surplus from sale of the equipment referenced
Agreement 6, below, to this account, leaving a deficiency balance of $0.00 on Agreement 1.
4
i
20. However, Colonial sustained significant damages and is entitled to payme
from Hampton for interest, reasonable attorneys' fees, and costs of collection.
Lift Lease Agreement No. 9634430001
21. On November 21, 2005, Hampton entered into a Lift Lease
(hereinafter "Agreement 2") with Colonial, wherein Hampton agreed to make payments
Colonial for the lease of the following equipment ("hereinafter Second Set of Equipment"):
a. (1) Caterpillar Track Loader 963C
S/N: BBD01154
A true and correct copy of Agreement 2 is attached hereto as Exhibit C.
22. Pursuant to Agreement 2, Hampton agreed to lease the Second Set of Equi
by making monthly installment payments in the amount of $2,969.05 for a term of 66
beginning on or about January 1, 2006.
23. Upon information and belief, Hampton used the Second Set of Equipment at
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
24. Pursuant to paragraph 17 of Agreement 2, entitled "Default and Remedies"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit C.
25. Pursuant to paragraph 17 of Agreement 2, the parties agreed that, "Upon
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (? )
declare all sums due and to become due hereunder and all other sums then owing by Lessee
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee
Lessor ...to be immediately due and payable..." See Exhibit C.
5
i ?
i
26. Pursuant to paragraph 17 of Agreement 2, upon Hampton's default, Har
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the
including reasonable attorney's fees and other legal expenses..." See Exhibit C.
27. Further, and pursuant to Agreement 2, Hampton agreed to "a Delinquency
calculated thereon at the rate of 1 %2% per month for the period of delinquency..." See Exhibit
¶ 4.
28. On or about November 1, 2009 Hampton defaulted under the terms of
2 by failing to make its minimum monthly payment.
29. On or about March 16, 2010, Hampton further defaulted under the terms of
Agreement 2 by filing a petition for bankruptcy in the United States Bankruptcy Court for t e
Middle District of Pennsylvania.
30. On November 1, 2009, Hampton's outstanding balance on Agreement 2
$125,592.69, which consisted of the following:
Regular rental
payments
Sales/Use taxes
Late charges
Residual rental stream
Sales tax on remaining
amounts due
19 mos. @$2,969.05
19 mos. @ $178.14
19 mos. @148.45
$56,411.95
$3,384.66
$2,820.55
$59,410.88
Total
$3,564.65
$125,592.69
31. Colonial subsequently repossessed the Second Set of Equipment.
32. On or about December 14, 2010, Colonial sold the Second Set of Equipment
a auction to the highest bidder at $45,993.63.
33. Colonial incurred $1,925.00 in repossession costs.
6
A
34. Colonial realized net proceeds from the sale of the equipment of $44,068.6
'which was credited to the account, leaving a deficiency balance of $81,529.06.
s '
35. Colonial sustained significant damages and is entitled to payment from Har,
for the deficiency balance of $81,529.06, as well as interest, reasonable attorneys' fees and
of collection.
6
Lift Lease Agreement No. 9634431001
36. On November 21, 2005, Hampton entered into a Lift Lease
1 '
(hereinafter "Agreement 3") with Colonial, wherein Hampton agreed to make payments
Colonial for the lease of the following equipment ("hereinafter Third Set of Equipment"):
a. (1) Caterpillar Hydraulic Excavator 318CL
SIN: GPA00300
A true and correct copy of Agreement 3 is attached hereto as Exhibit D.
37. Pursuant to Agreement 3, Hampton agreed to lease the Third Set of Equipment
making monthly installment payments in the amount of $1,927.02 for a term of 66
beginning on or about January 1, 2006.
38. Upon information and belief, Hampton used the Third Set of Equipment at i
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
39. Pursuant to paragraph 17 of Agreement 3, entitled "Default and
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee{"
See Exhibit D.
40. Pursuant to paragraph 17 of Agreement 3, the parties agreed that, "Upon
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (?)
declare all sums due and to become due hereunder and all other sums then owing by Lessee
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee
Lessor ...to be immediately due and payable..." See Exhibit D.
41. Pursuant to paragraph 17 of Agreement 3, upon Hampton's default,
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the
including reasonable attorney's fees and other legal expenses..." See Exhibit D.
8
k
42. Further, and pursuant to Agreement 3, Hampton agreed to "a Delinquency Charg
calculated thereon at the rate of 1 %2% per month for the period of delinquency..." See Exhibit
s
¶ 4.
43. On or about October 1, 2009, Hampton defaulted under the terms of Agreement
by failing to make its minimum monthly payment.
44. On October 1, 2009, Hampton's outstanding balance on Agreement 3
$90,507.73, which consisted of the following:
Regular rental
payments
Sales/Use taxes
Late charges
Residual rental stream
Sales tax on remaining
amounts due
20 mos. @$1,927.02
20 mos. @ $115.62
20 mos. @$96.35
$38,540.40
$2,312.40
$1,927.00
$40,309.37
Total
18.56
$90,507.73
45. On or about March 16, 2010, Hampton further defaulted under the terms
Agreement 3 by filing a petition for bankruptcy in the United States Bankruptcy Court for tl
Middle District of Pennsylvania.
46. Colonial subsequently repossessed the Third Set of Equipment.
47. On or about December 14, 2010, Colonial sold the Third Set of Equipment
auction to the highest bidder for $40,309.37.
48. Colonial incurred $1,925.00 in repossession costs.
49. Colonial realized net proceeds of $47,946.63, which was credited to the
leaving a deficiency balance of $37,561.10
9
50. Colonial sustained significant damages and is entitled to payment from H
'in the amount of $37,561.10, as well as interest, reasonable attorneys' fees and costs
I .
collection.
Lift Lease Agreement No. 96344313001
51. On November 21, 2005, Hampton entered into a Lift Lease
(hereinafter "Agreement 4") with Colonial, wherein Hampton agreed to make payments
Colonial for the lease of the following equipment ("hereinafter Fourth Set of Equipment"):
a. (1) Caterpillar Track Loader 953C
D/N: BBX00946
A true and correct copy of Agreement 4 is attached hereto as Exhibit E.
52. Pursuant to Agreement 4, Hampton agreed to lease the Fourth Set of
by making monthly installment payments in the amount of $2,428.41 for a term of 66
beginning on or about January 1, 2006.
53. Upon information and belief, Hampton used the Fourth Set of Equipment at
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
54. Pursuant to paragraph 17 of Agreement 4, entitled "Default and Remedied,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit E.
55. Pursuant to paragraph 17 of Agreement 4, the parties agreed that, "Upon
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (?)
declare all sums due and to become due hereunder and all other sums then owing by Lessee
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee
Lessor ...to be immediately due and payable..." See Exhibit E.
10
"s
56. Pursuant to paragraph 17 of Agreement 4, upon Hampton's default,
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the
including reasonable attorney's fees and other legal expenses..." See Exhibit E.
57. Further, and pursuant to Agreement 4, Hampton agreed to "a Delinquency
calculated thereon at the rate of 1 %2% per month for the period of delinquency..." See Exhibit
¶4.
58. On or about November 1, 2009, Hampton defaulted under the terms of
4 by failing to make its minimum monthly payment.
59. On November 1, 2009, Hampton's outstanding balance on Agreement 4
$105,070.57, which consisted of the following:
Regular rental
payments 19 mos. @$2,428.41 $46,139.79
Sales/Use taxes 19 mos. @ $145.70 $2,768.30
Late charges 19 mos. @$121.42 $2,306.98
Residual rental stream $50,807.08
Sales tax on remaining
amounts due $3,048.42
Total
$105,070.57
60. On or about March 16, 2010, Hampton further defaulted under the terms
Agreement 4 by filing a petition for bankruptcy in the United States Bankruptcy Court for
Middle District of Pennsylvania.
61. Colonial subsequently repossessed the Fourth Set of Equipment.
62. On or about December 14, 2010, Colonial sold the Fourth Set of Equipment
auction to the highest bidder for $45,066.13.
63. Colonial incurred repossession costs of $1,825.00
11
1 f f
64. Colonial realized net proceeds of $43,241.13, which was credited to the accoun
'leaving a deficiency balance of $61,829.44.
65. Colonial sustained significant damages and is entitled to payment from
in the amount of $61,829.44, as well as interest, reasonable attorneys' fees and costs
collection.
Lift Lease Agreement No. 9634432001
66. On November 21, 2005, Hampton entered into a Lift Lease
(hereinafter "Agreement 5") with Colonial, wherein Hampton agreed to make payments
Colonial for the lease of the following equipment ("hereinafter Fifth Set of Equipment"):
a. (1) Caterpillar Hydraulic Excavator 315CL
S/N: CJC01117
A true and correct copy of Agreement 5 is attached hereto as Exhibit F.
67. Pursuant to Agreement 5, Hampton agreed to lease the Fifth Set of Equipment
making monthly installment payments in the amount of $1,816.22 for a term of 66
beginning on or about January 1, 2006.
68. Upon information and belief, Hampton used the Fifth Set of Equipment at
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17055.
69. Pursuant to paragraph 17 of Agreement 5, entitled "Default and Remedied,"
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount
by it to Lessor... (e) a petition in bankruptcy ... or similar relief is filed by or against Lessee."
See Exhibit F.
70. Pursuant to paragraph 17 of Agreement 5, the parties agreed that, "Upon
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee
declare all sums due and to become due hereunder and all other sums then owing by Lessee
12
1 ?
Lessor to be immediately due and payable... (b) declare all other debts then owing by Lessee
' Lessor ...to be immediately due and payable..." See Exhibit F.
71. Pursuant to paragraph 17 of Agreement 5 upon Hampton's default,
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the
including reasonable attorney's fees and other legal expenses..." See Exhibit F.
72. Further, and pursuant to Agreement 5, Hampton agreed to "a delinquency
calculated thereon at the rate of 1 %2% per month for the period of delinquency..." See Exhibit
¶4.
73. On or about October 1, 2009, Hampton defaulted under the terms of Agreement
by failing to make its minimum monthly payment.
74. On October 1, 2009, Hampton's outstanding balance on Agreement 5
$80,588.75, which consisted of the following:
Regular rental
payments
Sales/Use taxes
Late charges
Residual rental stream
Sales tax on remaining
amounts due
Total
20 mos. @$1,816.22
20 mos. @ $108.97
20 mos. @$90.81
$36,324.40
$2,179.40
$1,816.20
$37,989.39
$2,279.36
$80,588.75
75. On or about March 16, 2010, Hampton further defaulted under the terms
Agreement 5 by filing a petition for bankruptcy in the United States Bankruptcy Court for
Middle District of Pennsylvania.
76. Colonial subsequently repossessed the Fifth Set of Equipment.
77. On or about December 14, 2010, Colonial sold the Fifth Set of Equipment
auction to the highest bidder for $40,499.62.
13
78. Colonial incurred $1,825 in repossession costs.
79. Colonial realized net proceeds of $38,674.62, which was credited to the
leaving a deficiency balance of $41,914.13
80. Colonial sustained significant damages and is entitled to payment from
in the amount of $41,914.13, as well as interest, reasonable attorneys' fees and costs
collection.
Lease Agreement No. 9634435001
81. On September 5, 2006, Hampton entered into a Lease Agreement
"Agreement 6") with Colonial, wherein Hampton agreed to make payments to Colonial for
lease of the following equipment ("hereinafter Sixth Set of Equipment"):
a. (1) Peterbilt (PACCAR) Truck 335 w/ Autocrane Titan 60 14'
SIN: 2NPLHD6X97M685087
b. Mechanic Service Body
S/N: 605K/120-0606-088
A true and correct copy of Agreement 6 is attached hereto as Exhibit G.
82. Pursuant to Agreement 6, Hampton agreed to lease the Sixth Set of Equipment
making monthly installment payments in the amount of $1,913.61 for a term of 60
beginning on or about October 1, 2006. Upon information and belief, Hampton used the
Set of Equipment at its place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 1701
83. Pursuant to paragraph 16 of Agreement 6, entitled "Default and
Hampton agreed that a default shall occur if "(a) Lessee fails to pay when due any amount
by it to Lender... (e) a petition in bankruptcy ... or similar relief is filed by or against
See Exhibit G.
84. Pursuant to paragraph 16 of Agreement 6, the parties agreed that, "Upon
occurrence of an event of default... Lessor may, at its option, with or without notice to Lessee (
14
declare all sums due and to become due hereunder and all other sums then owing by Lessee
'Lessor to be immediately due and payable; (b) declare all other debts then owing by Lessee
Lessor ...to be immediately due and payable..." See Exhibit G.
85. Pursuant to paragraph 17 of Agreement 6, upon Hampton's default, H
agreed to pay "all expenses of retaking, holding, preparing for sale, selling and the
including reasonable attorneys' fees and other legal expenses..." See Exhibit G.
86. Further, and pursuant to Agreement 6, Hampton agreed to a "Delinquency
calculated thereon at the rate of 1 '/z% per month for the period of delinquency." See Exhibit G
4.
87. One or about October 1, 2009, Hampton defaulted under the terms of
6 by failing to make its minimum monthly payment.
88. On October 1, 2009, Hampton's outstanding balance on Agreement 6
$84,958.66, which consisted of the following:
Regular rental
payments
Sales/Use taxes
Late charges
Residual rental stream
Sales tax on remaining
amounts due
23 mos. @$1,913.61
20 mos. @ $114.82
20 mos. @$28.70
$44,013.03
$2,460.86
$660.10
$35,513.84
Total
$2,130.83
$84,958.66
89. On or about March 16, 2010, Hampton further defaulted under the terms
Agreement 6 by filing a petition for bankruptcy in the United States Bankruptcy Court for
Middle District of Pennsylvania.
90. Colonial subsequently repossessed the Sixth Set of Equipment.
15
91. On or about December 14, 2010, Colonial sold the Sixth Set of Equipment
auction to the highest bidder for $108,165.63
92. Colonial incurred $1,419.63 in repossession costs.
93. Colonial realized net proceeds of $106,746.00, which was credited to
account, leaving a credit balance of $21,787.34.
94. Colonial applied $14,909.51 of the credit balance on to the deficiency balance
Agreement 1, leaving a zero (0) balance on Agreement 1.
95. Colonial applied the remainder of the credit balance to the deficiency incurred
Agreement 7.
96. However, Colonial sustained significant damages and is entitled to payment
Hampton for interest, and reasonable attorneys' fees.
Loan and Security Agreement No. 9634437001
97. On June 25, 2008, Hampton entered into a Loan and Security
(hereinafter "Agreement 7") with Colonial, wherein Hampton agreed to make payments
Colonial for the lease of the following equipment ("hereinafter Seventh Set of Equipment"):
a. (1) Takeuchi Skid Steer Loader TB 180FR
S/N:17830578
b. GME Trench Compactor 4M820
SIN: M0803398
A true and correct copy of Agreement 7 is attached hereto as Exhibit H.
98. Pursuant to Agreement 7, Hampton agreed to lease the Seventh Set of Equipme
by making monthly installment payments in the amount of $1,943.05 for a term of 48 mond
beginning on or about August 1, 2008.
99. Upon information and belief, Hampton used the Seventh Set of Equipment at
place of business, located at 3607 Hartzdale Drive, Camp Hill, PA 17011.
s
16
100. Pursuant to paragraph 5.1 of Agreement 7, entitled "Events of Default," Hampt
agreed that a default shall occur if "(a) Debtor fails to pay when due any amount owed by it
Lender... (h) a petition in bankruptcy ... or similar relief is filed by or against Debtor."
Exhibit H.
101. Pursuant to paragraph 5.2 of Agreement 7, entitled "Remedies" the parties
that, "Upon the occurrence of an event of default, and at any time thereafter as long as the default
continues, Lender may, at its option, with or without notice to Debtor (i) declare this agreeme
to be in default, (ii) declare the indebtedness hereunder to be immediately due and payable..
See Exhibit H.
102. Pursuant to paragraph 5.2 of Agreement 7, upon Hampton's default,
agreed to pay "(a) the reasonable fees of any attorneys retained by Lender, and (b) all other
expenses incurred by Lender." See Exhibit H.
103. Further, and pursuant to Agreement 7, Hampton agreed to a "Delinq
Charge" of 1 '/2% per month for the period of delinquency... otherwise at the highest rate f
can legally obligate itself to pay and/or Lender can legally collect." See Exhibit H ¶ 5.3.
104. One or about October 1, 2009, Hampton defaulted under the terms of
7 by failing to make its minimum monthly payment.
105. On November 1, 2009, Hampton's outstanding balance on Agreement 7
$63,421.30 which consisted of the following:
Regular rental
payments
$51,819.43
454 days @ $25.55 per
Interest
Total
$11,601.87
$63,421.30
17
106. On or about March 16, 2010, Hampton further defaulted under the terms
'Agreement 7 by filing a petition for bankruptcy in the United States Bankruptcy Court for
Middle District of Pennsylvania.
107. Colonial subsequently repossessed the Seventh Set of Equipment.
108. On or about December 14, 2010, Colonial sold the Seventh Set of Equipment
realized net proceeds of $37,112.13, which was credited to the account.
109. The post-sale deficiency balance was $32,005.93, which included $2,879.4
interest (379 days at $7.25 per day) and $2,817.35 in late charges ($97.15 per month for
months).
110. After applying $14,909.51 of the credit balance from Agreement 6 to
deficiency balance on Agreement 1, a $6,877.83 credit remained regarding the sale of
equipment in Agreement 6.
111. Colonial applied the $6,877.83 credit balance to the deficiency balance
Agreement 7, leaving a deficiency balance of $25,128.10 on Agreement 7.
112. Colonial sustained significant damages and is entitled to payment from
in the amount of $25,128.10, as well as interest, reasonable attorneys' fees and costs
collection.
Personal Guaranties
113. On or about June 30, 2005 and October 14, 2005, Morris executed a two
Continuing Guaranties, specifically agreeing to be held responsible for all "present and fi
liabilities, obligations and indebtedness" of Hampton to Colonial under the Agreements. A
and correct copy of the Continuing Guaranties is attached hereto as Exhibit I.
18
114. Despite demand by Colonial, to date, Morris has failed and refused to pay th?
'balance owed to Colonial in the amount of $247,956.83 in accelerated payments,
payments, and late charges.
115. Colonial sustained significant damages and is entitled to payment from Morris
the amount of $247,956.83, as well interest, reasonable attorneys' fees, and costs of collection.
Chapter 11 Bankruptcy
116. On or about March 16, 2010, Hampton filed a petition for Chapter 11
in the United States Bankruptcy Court for the Middle District of Pennsylvania.
117. On or about November 4, 2010, an Order Rejecting Executory Contract as
some of the equipment set forth in the agreements was entered. A true and correct copy of
Order Rejecting Executory Contract is attached hereto as Exhibit J.
118. On or about May 12, 2011, the automatic stay as to the remaining equipment
forth in the agreements was terminated. A true and correct copy of the Order
automatic stay is attached hereto as Exhibit K.
119. Colonial has subsequently repossessed and sold the equipment, applying the
proceeds, in the amount of $355,898.45 from said sales to the deficiency owed by Hampton
Morris.
120. The deficiency balance on all agreements is $247,956.83.
121. Colonial is entitled to payment from Morris in the amount of $247,956.83, as
as interest, reasonable attorneys' fees and costs of collection.
19
COUNT I: BREACH OF CONTRACT
(Personal Guaranty)
122. Plaintiff incorporates by reference the preceding numbered Paragraphs in
Complaint as if set forth at length herein.
123. Colonial and Guarantor, Morris entered into a valid contract where Morris
to be held liable for the debts of Hampton to Colonial for the lease of the Sets of Equipment.
124. Hampton defaulted under the terms of the Agreements making Guarantor, N
liable for the debt.
125. Colonial sustained significant damages in the amount of $247,956.83 due t
Guarantor Morris's failure make payment.
126. Despite demand, Morris has failed to remit the sum owed to Colonial.
WHEREFORE, Plaintiff, Colonial Pacific Leasing Corporation demands
against Defendant Harry I. Morris, Jr. in the amount of $247,956.83 as well as
reasonable attorneys' fees and costs and such other relief as the Court may deem equitable
just.
WONG FLEMING
A Professional Corporation
AttfteArRlaintiff Colonial Pacific Leasins
Dated: July L, 2012 B
S. Clement
20
VERIFICATION PURSUANT TO PA R.C.P 1024
I verify that the statements in this pleading are true and correct upon my personal
knowledge or upon my information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa C.S.A. Sec. 4904 relating to unsworn falsifications to
authorities.
Dated: July, 2012
20
WL
m
rna m
? y
L?
N
N
00
ASSIGNMENT
GE Capital Commercial Inc., ("Assignor") hereby confirms that, FOR VALUABLE
CONSIDERATION, the receipt and sufficiency of which is acknowledged, Assignor hereby
transfers, assigns, and sets over to Colonial Pacific Leasing Corporation, its successors and assigns
("Assignee") all of the Assignor's right, title and interests in and to the accounts listed below (the
"Assigned Accounts'), including without limitation, all documents, leases, security agreement, or
other instrument, together with any promissory notes, guaranties, property rights, other instruments
related thereto, and other writings in any way relating to the Assigned Accounts (the "Financing
Documents"), all property and property rights owned by Assignor in connection with its interests in
the Assigned Accounts, and property and property rights held by Assignor as collateral for either or
both of the payment and performance of certain obligations under the Financing Documents.
ACCOUNT NUMBER OBLIGOR DATED
9634427-001 Hampton Construction Management, Limited 1/14/2005
9634428-001 Hampton Construction Management, LTD 6/30/2005
9634437-001 Hampton Construction Management, Limited 6/25/2008
This assignment is "AS IS - WHERE IS" and WITHOUT RECOURSE or warranty, express,
implied or statutory.
Effective December 31, 2009.
GE Capita Commercial nc
By:
Its: Authorized Signatory
ASSIGNMENT
GE Capital Commercial Inc., ("Assignor") hereby confirms that, FOR VALUABLE
CONSIDERATION, the receipt and sufficiency of which is acknowledged, Assignor hereby
transfers, assigns, and sets over to Colonial Pacific Leasing Corporation, its successors and assigns
("Assignee") all of the Assignor's right, title and interests in and to the accounts listed below (the
"Assigned Accounts"), including without limitation, all documents, leases, security agreement, or
other instrument, together with any promissory notes, guaranties, property rights, other instruments
related thereto, and other writings in any way relating to the Assigned Accounts (the "Financing
Documents"), all property and property rights owned by Assignor in connection with its interests in
the Assigned Accounts, and property and property rights held by Assignor as collateral for either or
both of the payment and performance of certain obligations under the Financing Documents
ACCOUNT NUMBER OBLIGOR DATED
9634430-001 Hampton Construction Management, Limited 11/21/2005
9634431-001 Hampton Construction Management, Limited 11/21/2005
9634432-001 Hampton Construction Management, Limited 11/21/2005
9634433-001 Hampton Construction Management, Limited 11/21/2005
9634435-001 Hampton Construction Management, Limited 9/5/2006
This assignment is "AS IS - WHERE IS" and WITHOUT RECOURSE or warranty, express,
implied or statutory.
Effective December 31, 2009.
GE Capit Commercial Inc
i
By:
Its: Authorized Signatory
SECURITY AGREEMENT
(Conditional Sale Contract) aticapita
The undersigned buyer, meaning all buyers jointly and severally ("Buyer), having been quoted both a time sale price and cash sale price, has laded
to purchase and hereby purchases from the undersigned seller ("Seller) for the time sate price shown below, under the terms and provisions of this
agreement, the following described property (herein, with all present and future attachments, accessories, replacement parts, repairs, additions, and all
proceeds thereof, referred to as "Collateral")
ONE (1) CASE HYDRAULIC EXCAVATOR CX330 SIN DAC331266
The Collateral will be used primarily for ? business or commercial use other than farming operations,? farming operations When not in u , the
D
Collateral will be kept at 424 RAILROAD SHIREMANSTOWN P 17011 CUMBERLAN
and, when in use, will be used only in the following State(s)
PAYMENT SCHEDULE Buyer promises to pay Seger the UNPAID
TIME BALANCE (Item 7) in 60 Installments as follows Descnpbon ofTradtln
(Tow No dliWdmeids)
For equal successive monthly installments
(a) $ 4,304 75 on 00!0112005
(ods)
and a like sum on the like date of each month thereafter until fully paid,
For other than equal successive monthly installments Gross Allowance $ 00
(b) Less Amount Owing To
S 00
Trade-in (Net Allowance)
provided, however, that the final installment shall be in the amount of
the remaining unpaid balance
$ 000
(Er*w elxwe and
1 (a) Selling Price $ 219,000 00
(b) safes Tax $ 12,360 00
CASH SALE PRICE (a + b) $ 231,3 00
2 (a) Cash Down Payment $ 13,000 00
(b) Trade-In (Sae above) $ 0 00
(c) Net Rental Credit $ 000
TOTAL DOWN PAYMENT (a + b + c) $ 13,00)00
3 UNPAID BALANCE OF CASH
INSURANCE COVERAGE SALE PRICE (1 Minus 2) $ 218,36 00
LIABILITY INSURANCE COVERAGE FOR BODILY 4 OTHER CHARGES
INJURY AND PROPERTY DAMAGE CAUSED TO (a) Physical Damage
OTHERS IS NOT INCLUDED IN THIS AGREEMENT. Insurance $ 0 00
PHYSICAL DAMAGE INSURANCE COVERING THE COLLATERAL IS (b) Official Fees $ 000
REQUIRED, however, Buyer has the option of furnishing the required (c) Other 0 00
Insurance through an agent or broker of Buyer's choice $ -
Check if
Applicable ? Buyer requests and authorizes seller to (Describe)
obtain insurance coverage in the nature of "All Risk" insurance (Fire, TOTAL OTHER CHARGES (a + b + c) $
extended coverage, vandalism, theft and collision and containing
exclusions from coverage acceptable to Seller) on the Collateral for 5 PRINCIPAL BALANCE (3+4) $ 218,38 00
months from the date of this Agreement, and for the premium
Of $ 0 00 with a $ 0 00 deductible per
'
6 (a) Koonce Charge $
39,52500
OCCUfT
ence 40000
(b) Administrative Fee $
DELINQUENCY CHARGE For each installment not paid when due,
l
h
h
l
d TOTAL FINANCE CHARGE (a + b) $ 39,82 00
cu
t
ereon
arge ca
ate
Buyer agrees to spay to Seiler a delinquency c
at
er month for the
eriod of delinquenc
or
at the rate of 136 %
UNPAID TIME BALANCE (5+6) E 258,28 00
p
y
,
p
Seller's option, 5% of such installment, provided that such a 8 TIME SALE PRICE (1+4+6) $ 271,2 00
delinquency charge is not prohibited by law, otherwise at the highest
75
rate Buyer can legally obligate itself to pay and/or Seller can legally Annual Percentage Rsb
Collect Cost of Credit (Finance Charge plus Administrative Fee)
Pa 1 020 of Secur??ryy AAppreerilarN da0ad between HAMPTON COIr STR
and GFF TRACTiR 8 EQUIPMENT, INC (Seller) which includes,
number 069331266
621626 Rev 092004
Comm I Non-VdfVanous States (R D )
1 11
ORIGINAL FOR CITICAPITAL
an item of
1 218665 2 0 XC 20050628134315
CITICAPITAL is a service mark of Citicorp Amemberof
7 0 ASSIGNMENT AND GENERAL
71
Chattel Paper This Agreansnl is entered into by Seller and Buyer on the express understanding that this Agreement will be purchased by C&Ceplal Commercial Corp xabon or
one of its ARdhates ('CtdCapMar) each of which is an operating suba6ary d a netonal bank This agreement is to be assigned only to CdrCapdal and is nulled to security
interest of CdhCapdel The ordy copy of this Agreement that constitutes "Chattel Paper for all purposes of the Undorm Commercial Code is the copy marked 0ORICI111 L FOR
CITICAPITAL" which is delivered to and held by CrtCept(al Any assignment or tranater of this Agreement to any assignee other than CrtCapdal without the express write I consent
of CdCApdel violates the rights of CdiCaptal Any attempted assigmient to any other party without the express written consent of QbCoprlal shall be VOID and of no kirce and
Brad No assignee or secured party other than CNCaprtal or a parry receiving an assignment with the express written consent of CrliCaprtal will under any arcurnslam s acquire
any rights in, under or to this Agreement or any sums due hereunder
72
Assignment. Seger intends to assign thus agreerent to CrbCapdal As an inducement to CrbCapdal to accept an assignment or this Agreemeill from Seller, Buyer (a)
conserds to such assgnmend and agrees not to assert against CdhCapdal daims, oouMerdaim, darns in recoupmenl, abeMntent, reduction, dellenses or set-oft nor ireed of
-warranty or for any other reason wtwch Buyer could assert against Seller or the maiudaduer of the Equipment, except defenses which cannot be waived under Uniform
Caerwnenyal Code (b) agrees to make sndfor sotto any and all dawns with regard to the collateral directly and exclusively against and with Seller or the mmnufaduror 4 rid Buyer
agrees not to assert any of such dams against CdrCapdel, and (c) agrees that upon asagnmerd, the security interests granted herein will enure to the benefit of CehCapi 31 and its
AftILffies Any sums at any brae owing to Buyer and in the possession of CrhCagtat or arty such Af6lude shall secure the Lrabitbes of Buyer to CrtiCaprtal and any Mute of
CrbCaprtal
73 General (a) Waiver of any default shall not be a waiver of any other default (b) All of Sellers rights are cumulative and not altematlve (c) No
waiver or change in this Agreement or in any related note shall bind Seller unless in writing signed by one of its officers (d) The term " Ilex'
shall include an assignee of Seller who is the holder of this agreement (e) Any provision hereof contrary to, prohibited by or invalid under
applicable laws or regulations shall be inapplicable and deemed omitted herefrom, but shall not invalidate the remaining provisions hereof (f)
Buyer waives all exemptions to the extent permitted by law (g) Seller may correct patent errors herein (h) Arty captions to the provisions of this
Agreement are for convenience only and do not limit or affect the application or interpretation of this Agreement (I) AM of the terms and proo sions
of this agreement shall apply to and be binding upon Buyer, its heirs, personal representatives, successors and assigns and shall inure to the
benefit of Seller, its successor and assigns U) The acceptance by Seller of any remittance from a patty other than Buyer shall in way
constitute Selers consent to the transfer of any of the Equipment to such party (k) if allowed by law, the "reasonable fees of attorney' tatned
by Seller shall include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Seller in enforci any
of Sellers rights hereunder or in the prosecution or defense of any litigation related to this Agreement or the transactions contemplated y this
Agreement (1) Buyer represents and warrants that there is no matenal pending or threatened investigation by any governmental a only
litigation or other legal proceeding (m) So long as any of the Liabilities remains unpaid or unperformed, Buyer will provide Seller will i such
financial information as Seller may reasonably request, including copies of Buyer's financial statements prepared in accordance with ge erelly
accepted accounting principles consistently applied within 30 days of the end of each of Buyers fiscal quarters and within 90 days after the end of
each of Buyers fiscal years Such financial statements shall be prepared on the same basis (reviewed, audited, etc ) as Buyers fit ancial
statements are currently prepared unless advised by the Seller otherwise, at which time the Buyer will comply with the Seller's request (n Buyer
waives any right it may have to direct the application of any payments made by it to Seller, and Seller may at its option offset and ded ct any
liability or obligation of Buyer from any or all sums owed by it to Buyer
74 Additional Covenants and Oral Agreement Buyer and Seller agree that this is a five-page agreement and each page hereof constitute a part
of this Agreement THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY N T BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
75 Waiver of Trial By Jury Seller and Buyer hereby waive any right to trial by jury in any action relating to this Agreement Seller and Buyer reby,
for themselves, their successors and assigns, WAIVE ANY RIGHT TO SUE FOR OR COLLECT FROM THE OTHER PARTY ANY DI ECT,
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULT OF OR RELATI G TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ENFORCEMENT BY EITHER PARTY F ITS
RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES ARE PROVEN TO BE THE DIRECT R SULT
OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Goverment fight terronsm and money laundering, Federal law requires us to ob in,
verify, and record information that identifies each person or business that opens an account or estabiishe a
relationship. What this means for you. when you open an account or establish a relationship, we will ask for y ur
name, street address, date of birth, and identification number, such as a social security number or taxp er
identification number. For businesses, we will ask for the business name, street address and tax ldentlficat on
number. Federal law requires us to obtain this information. We may also ask to see your driver's license or o ter
identifying documents that will allow us to identify you We appreciate your cooperation.
Page 5 of a or Secun[v Agreement dated between HAMPTON CONSTRUCTION MANAGEMENT, LTD (?)
1Yer
and GROFF TRAC OR R EqU
(Seger) which includes, without bmdatron an dem of Collateral with the following
number pit 311266
621626 Raw 09rM04 ORIGINAL FOR CITICAKTAL
Co l NorfVsRVanoua States (R D) fBuyer's Ifni
III I A r
121 SM 2 0 XC 20050628134315
DELIVERY AND ACCEPTANCE OF COLLATERAL
(Check Appropriate Box)
On the Collateral was delivered to Buyer with all installation and other work necessary for the proper use of the Collateral
com at t agreed upon by Buyer and Seiler, the Collateral was inspected by Buyer and found to be in sabsfadory condition in all
respects and delivery was unconditionally accepted by Buyer
The Collateral has not yet been delivered to or accepted by Buyer and, upon delivery, Buyer agrees to execute a delivery and acceptance ceto
in a form acceptable to Seller or Seller's assignee
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED Y
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES THERE ARE NO UNWRITTEN OR I
AGREEMENTS BETWEEN THE PARTIES Buyer and Seller agree that this is a six page agreement and each page hereof constitutes a part of is
agreement
NOTICE TO BUYER - DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLA
SPACES. YOU ARE ENTITLED TO A COPY OF THE AGREEMENT YOU SIGN
Buyer's Social Security or Federal Taxpayer Identification Number is 251800323 and Co-Buyer's is _
Buyer hereby acknowledges receipt of an exact copy
Date l0 ' 30 of this contract.
Seller GROFF TRACTOR 6 EQUIPMENT, INC Buyer(s) HAMPTON CONSTRUCTION MANAGEMENT, LTD
F
By By
--A?
V
Title /? a
By
Title
6779 CARLISLE PIKE
(SO" Add-)
MECHANICSBURG
(Cry Statr and ZIP coda)
PA 17055
/I
Title
pr m-hW, wjannar or C"ftwr aW have and show -Nd
State of Organization
Principal Residence/Chief Executive 018ce/Place of Business
424 RAILROAD AVE
(Sheet Addrsas)
CUMBERLAND PA 17011
(City COUNTY Sieta aria Z a, Cud,)
Date of Birth
(hdhdduaYSala Provdakw+hv)
Page 6 d 6 of Spyresmerit dated _HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and' GROFF TWO R i EQUIPMENT, IN between (Seller) which includes without limitation, an deco of Collateral voth the foilmwQ
number DA 1266
621628 Rev 004M4
rComm I Non-Veh-Varian SW" tR D)
ORIGINAL FOR CITICAPITAL
1 218665 2 0 XC 20050628134315
1 0 THE COLLATERAL
1 i Do*n Payment and Disclaimer. Buyer represents and warrants that (a) any check or instrument presented to Seller as any portion of a ' ash
Dorm Payment indicated on the first page of this Agreement represents funds immediately available to Seller and well not be return or
dishonored for any reason, and (b) Buyer has btle to and the full right and authority to convey title to any Trade-In listed on the first page f this
Agreement and, upon payment to the party listed on the first page of this Agreement (if any) of the amount indicated, Seller shall have title the
Trade-In free and dear of any lien, claim, security interest or other interest of any party other than those claiming by through or under eller
There are no warranties other than those made by the manufacturer of the Collateral SELLER MAKES NO REPRESENTATION OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITN ESS
OF THE COLLATERAL FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSO ER,
EXPRESS OR IMPLIED, unless such warranties are in writing and signed by Seller Seller shall not under any circumstances be liable for lo ss of
anticipatory profits or for consequential damages
12 Collateral Receipt and Use Buyer warrants and agrees that the Collateral was delivered to and accepted by Buyer in satisfactory conditio , the
Collateral will be used solely for business purposes, the Collateral is free from and will be kept free from all liens, claims, security interest; and
encumbrance other than that created hereby, notwithstanding Seller's claim to proceeds, Buyer will not, without Seller's prior written consent sell,
rent, lend encumber, pledge, transfer, secrete or otherwise dispose of any of the Collateral, nor will Buyer permit any such act, the Collate I will
be maintained in good operating condition, repair and appearance, and will be used and operated with care, only by qualified personnel the
regular course of Buyer's business and in conformity with all applicable govemmental laws and regulations, the Collateral shall remain pe al
property and not become part of any real property regardless of the manner of affixation, Seller may inspect the Collateral and all boo and
records relating to the Collateral or Buyer's performance under this Agreement at all reasonable times and from bme to time, the Collateral 11 be
kept by Buyer at Buyer's place of business which is indicated immediately below Buyer's signature and will not be removed from said I bon
without the prior written consent of Seiler, except that an item of Collateral which is mobile and of a type normally used at more than one I bon
may be used by Buyer away from said location in the regular course of Buyer's business provided that (a) such gem is not removed the
United States, and (b) 0 such item is not returned to said location within 30 days, Buyer will immediately upon Sellers request, and each 30 ays
thereafter until the item is returned, report the then current location thereof to Seller in writing
13 Insurance Buyer shall at all times bear all risk of loss of, damage to or destruction of the Collateral Buyer agrees to procure forthwn and
maintain insurance on the Collateral, for the actual cash value thereof and for the life of this agreement, in the form of Fire Insurance with
Combined Additional Coverage and Collision, Theft and/or Vandalism and Malicious Mischief Coverage when appropriate, plus such titer
insurance as Seller may specify from time to time, all in form and amount and with insurers satisfactory to Seiler Buyer agrees to deliver pr ptly
to Seller certificates or if requested, policies of insurance satisfactory to Seller, each with a standard long form loss payable endorsement n ring
Seiler or its assigns as loss payee as their interests may appear Each policy shall provide that Sellers interest tlterein will not be invalids d by
the acts omissions or neglect of anyone other than Seller, and will contain insurers agreement to give 30 days prior written notice to Seller fore
cancellation of or any material change in the policy will be effective as to Seller, whether such cancellation or change is at the direction of yer
or insurer Sellers acceptance of policies in lesser amounts or risks will not be a waiver of Buyers foregoing obligation Buyer assigns to Sell r all
proceeds of any physical damage insurance maintained by Buyer with respect to the Collateral and any and all returned premiums, up the
amount owing hereunder by Buyer Buyer directs all insurers to pay such proceeds directly to Seller Buyer authorizes Seller to endorse Bu ers
name to all remittances without the joinder of Buyer
2 0 SECURITY INTEREST
21 Security Interest Seller retains title to and Buyer hereby grants Seiler a first and perfected security interest in the Collateral to
re paym ntof
the Time Balance indicated on first page of this Agreement and all other obMgabons of Buyer to Seller under this Agreement Bfurther g
FE its
to Seller, Sellers suc essors and assigns and any Affiliate of any of them a security interest In the Collateral (separate and nct fro
li and
subordinate only to the security interest granted to Seller above) to secure the payment and performance of all now existing or hereafter ing
debts, liabilities and obligations of Buyer of every land and character whether now existing or hereafter ansing, and whether direct, i red,
absolute, contingent, primary, secondary, or otherwise, to Seller or Sellers successors or assigns and any Affiliate of any of them, whether rider
this Agreement or any other agreement, and whether due directly or acquired by assignment ("Liabiiktes'7 For the purposes of this Agr ent,
an "Affiliate" of any party means and includes any direct or indirect parent, subsidiary or sister entity of that party Any sums at any bme owl g to
Buyer and in the possession of Seller or any such Affiliate shall secure the Liabilities of Buyer to Seller and any Affiliate of Seller Upo any
assignment of this Agreement by Seller, the security interests granted herein will be assigned to and inure to the benefit of such assignee a the
Affiliates of such assignee The security interests granted herein shall continue to be effective regardless of any retaking or redelivery the
Collateral to Buyer
22 Perfection and Preservation of Security Interest Buyer agrees, at its own cost and expense to do everything necessary or expedi t to
he
perfect and preserve the security interests of Seller obtained hereunder, to extinguish or defend any action, proceeding or claim affec Itthe
Collateral including but not limited to any mechanic's lien, forfeiture action or proceeding, and to pay promptly any taxes, assessments, h se
fees and other public or private charges when levied or assessed against the Collateral, this agreement or an accompanying note er
authorizes Seller or any officer, employee or designee of Seller or any assignee of Seller (or any designee of such assignee) to file a finng
statement describing the Collateral for Itself and as representative of its Affiliates Buyer agrees to execute and deliver to Seller, upon S ns
request, such documents, wrfings, records and assurances as Seller deems necessary or advisable for the confirmation or perfection security interest in the Collateral and Sellers rights hereunder, including such documents, writings, records and assurances as Seller may re uire
for filing or recording
23 Location of Buyer (I) If Buyer is a corporation, limited liability company, limited partnership or other registered organization, its sta of
organization is in the state set forth immediately below its signature on the last page of this Agreement and Buyer agrees that it will not char its
form or state of organization without 30 days prior written notice to Seller (u) If Buyer is an individual, his/her principal place of residence is it the
address set forth immediately below his/her signature on the last page of this Agreement and, if Buyer changes Buyers principal residence,
Buyer will notify Seller in wilting of a change in his/her principal place of residence within 30 days of such change Buyer agrees to reim rse
Seller for all costs incurred by Seller related to any such change
Pape 2 016 of? pu?rrgqyy gq1?mement dated betwean HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and GROFF TRACT ORa EQUIPMENT, W
number DA 331266 tSeller) wrath includes, without limtatiott, an dent of Collateral with the Tonovnng
ORIGINAL FOR CITICAPITAL
Qxm R"` r B ' As In
Comm I NprVeMVacnous Stets (R O i
1 71 I
1 21 8665 2 0 XC 20050828134315
3 0 ACCOUNT MANAGEMENT AND PAYMENT PROCESSING
31 Application of Payments All payments made by Buyer to Seller pursuant to this Agreement may be applied first to any indebtedness ich is
not secured, then to delinquency charges, then to finance charges, then to insurance payments, then to any other fees or other amounts ble
hereunder other than the Liabilities secured by a purchase money security interest in the Collateral, until all of such Liabilities are paid in fu , and
then to the Uabilibes secured by a purchase money security interest in the Collateral in the order in which the Liabilities were incurred This
provision controls over any conflicting provision or language in this Agreement or in any other agreement between Seller and Buyer unle s the
parties mutually agree in writing in a subsequent agreement to override this provision
32 Debit Transactions Seller or any assignee or other holder of this Agreement (collectively "Holder") may but shall not be required to offer uyer
the option of paying any of Buyer's obligations to Holder through printed or electronic checks, drafts or charges ("Debit Transactions") Each
such Debit Transaction may be orally authorized by Buyer, any representative or officer of Buyer or any other party having access to or con rol of
the account upon which the Debit Transaction is to be charged Buyer authorizes Holder or any officer, employee or designee of Holder to r mate
bebit Transactions from Buyer's account in the verbally authorized amount plus the Holder's then Debit Transaction Fee This authonzab may
be canceled at any time by Buyer giving at least three-business day's prior written notice to Buyer's bank and Holder Buyer authorizes Hol er to
substitute a Debit Transaction for any check or other remittance submitted by Buyer in the amount of that remittance Payment by Debit
Transactions is not required by Seller nor is its use a factor in the approval of credit
33 Payment Processing Buyer hereby agrees that any payment made by Buyer hereunder by remittance and received by Seller at an ad ress
other than the address specified on the related invoice may be replaced by the Holder with a substitute written or electronic instrument of equal
amount and presented to Buyer's financial institution for payment from the account referenced on the remittance from Buyer
34 Returned Payments In the event that a check, draft or other remittance sent by Buyer or a Debit Transaction authorized by Buyer is ret med
unpaid or rejected for any reason other than the lack of a proper endorsement by Seller, Seller agrees that the application of such pa t to
Buyer's Liabilities will be reversed and Buyer agrees to immediately pay Seller the amount of such returned payment, plus any delinquency
charge ao=ng as the result of the reversal of any such payment Buyer further agrees to pay Seller any amount charged to Seller b any
depositary institution because of such return and an additional handling charge in the amount, if any, equal to $20, or in the event appiicebl law
limits or restricts the amount of such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited or
restricted in accordance with applicable law
35 Authorization to Share Information Seger or any assignee of this Agreement may receive from and disclose to any assignee of Seller any
AMItate of either of them, the seller or manufacturer of any Equipment, any Guarantor or other party having a disclosed or undisclosed obli tion
related to the Liabilities or Collateral, or any potential purchaser, participant or investor in Buyers Liabilities or any assignee or affiliate of y of
them (herein collectively, the 'Entity"), and any credit reporting agency for any purpose, information about Buyer's accounts, credit appl tion
and credit experience with Seller or any Entity Buyer authorizes any Entity to release to Seller or any assignee, or any Affiliate of either of em
any information related to Buyer's accounts, credit expenence and account information regarding Buyer This shall be continuing authoriz ion
for all present and future disclosures of Buyers account Information, credit application and credit experience on Buyer made by Iler,
or any Entity requested
40 PERFORMANCE BY SELLER
41 Performance If Buyer fails to perform any of its obligations hereunder, including, without limitation, Buyer's obligation to insure the Collate I or
to protect and preserve the security interest of Buyer, Seiler may perform the same, but shall not be obligated to do so, for the account of Bu r to
protect the interest of Seller or Buyer or both, at Seller's option, Buyer shall immediately repay to Seller any amounts paid by Seller togeth with
interest thereon at the rate payable upon acceleration of Buyer's obligations under this Agreement Performance by Seller will not constft to a
waiver of any default by Buyer
42 Power of Attorney BUYER HEREBY APPOINTS SELLER OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF SELLER
OR ANY ASST EE
,
OF SELLER (OR ANY DESIGNEE OF SUCH ASSIGNEE) AS BUYER'S ATTORNEY IN FACT TO, IN BUYER'S OR SELLER'S NAM (a)
PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSU CE
POLICY INSURING THE COLLATERAL, (b) PREPARE, EXECUTE AND FILE ANY AGREEMENT, DOCUMENT, FINANCING STATEN NT,
TITLE APPLICATION, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN SELLER'S OPINION, IS NECESSAR TO
PERFECT AND/OR GIVE PUBLIC NOTICE OF THE INTERESTS OF SELLER IN ANY COLLATERAL THAT SECURES OR THAT Y
SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF BUYER TO SELLER, AND (c) ENDORSE BUYER'S NAME ON ANY REMITT CE
REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE COLLATERAL OR THE PROCEEDS OF THE SALE
LEAS OR
,
OTHER DISPOSITION OF THE COLLATERAL (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER) This power is coupled w an
interest and is irrevocable as long as any Liabilities remain unpaid
50 DEFAULT AND REMEDIES
51 Events of Default Time is of the essence An event of default shall occur if (a) Buyer fails to pay when due any amount owed by it to Seller any
assignee or any Affiliate, successor or assign of either of them under this Agreement or under the terms of any promissory note deliver in
conjunction with this Agreement, (b) or if Buyer fails to pay any Liabilities when due to Seller or an assignee or any Affiliate, successor or a sign
of either of them or is otherwise in default under any other document, agreement or instrument, (c) Buyer defaults under the terms of any red
indebtedness or indebtedness of a material amount to any other party, (d) Buyer fails to perform or observe any other term or provision be
performed or observed by it hereunder or under any other instrument or agreement furnished by Buyer to Seller or an assignee or to any All rate,
successor or assign of either of them or otherwise acquired by Seller or an assignee or any Affiliate, successor or assign of either of the , (e)
Buyer becomes insolvent or ceases to do business as a going concern, (f) any of the Collateral is k)st or destroyed, (g) Buyer malt an
assignment for the benefit of creditors or takes advantage of any law for the relief of debtors, (h) a petition in bankruptcy or for an arrange ent
reorganization, or similar relief is filed by or against Buyer, (i) any property of Buyer is attached, or a trustee or receiver is appointed for Buy !r or
for substantial part of its property, or Buyer applies for such appointment, 6) Seller in good faith believes that the prospect of payme it or
performance hereunder is impaired, (k) Buyer fails to pay any final judgment, court order, or, for sovereign borrowers, any declaratio n of
moratorium, p) if there shall occur an appropriation, confiscation, retention, or seizure of control, custody or possession of any Collateral b any
governmental authority including without limitation, any municipal, state, federal or other governmental entity or any governmental agen cy or
Page 3 of B of Seventy Awee rent dated between HAMPTON CONSTRUCTION MANAGEMENT, LTD (Buyer)
and GROFF TRACTOR d EQUIPMENT INC
(Seller) whictt includes, wittIout 6mtadon, an dam of Collateral with the follow rig se
number al
621628 Rev ov2oa ORIGINAL FOR CITICAPITAL Bu s Iniba
Comm I Non-Veh-Varox States (R D j s
1N
1 218885 2 0 XC 20050628134315
instrumentality (all such entities, agencies and instrumentalities shall hereinafter be collectively referred to as 'Governmental Authority"),
anyone in the control, custody or possession of any Collateral or the Buyer is accused or alleged or charged (whether or not subset
arraigned, indicted or convicted) by any Governmental Aulhonty to have used any Collateral In connection with the commission of any
(other than a misdemeanor moving violation), (n) there shall be a material adverse change in any of the (r) condition (financial or othe
business performance, prospects, operations or properties of the Buyer, (u) legality, validity or enforceability of this Agreement, (in) perfect
priority of the lien granted in favor of Seller pursuant to this Agreement, (iv) the ability of the Buyer to repay the indebtedness or perk
obligations under this Agreement or, (v) rights and remedies of the Seiler under this Agreement are impaired, (o) there shall be a death of Bt
a majority owner of Buyer or a guarantor of the Buyees Liabilities, (p) except for the security interest, Iren or reservation of title in favor of Sf
as otherwise granted herein, there shall be any ben, claim or encumbrance on any of the Collateral securing the indebtedness or obliga
Buyer to Seller, or (q) Buyer defaults under any guaranty, collateral agreement, or other support agreement
52 Remedies Upon the occurrence of an event of default, and at any time thereafter as long as the default continues, Seller may, at its optio
or without notice to Buyer (i) declare this agreement to be in default, (n) declare the indebtedness hereunder to be immediately due and pt
(n) declare all other debts then owing by Buyer to Seller, or any successor or assignee of Seller or any Affiliate of any of them to be imme
due and payable, (tv) cancel any insurance and credit any refund to the indebtedness, and (v) exercise all of the rights and remedies of a 9
party under the Uniform Commercial Code and any other applicable laws, including the right to require Buyer to assemble the Collator
deliver it to Seller at a place to be designated by Seller which is reasonably convenient to both parties and to lawfully enter any premises
the Collateral may be without judicial process and take possession thereof Acceleration of any Liabilities or indebtedness, If so elected by
shall be subject to all applicable laws including those pertaining to refunds and rebates of unearned charge Any property other than Collated
is in or upon the Collateral at the time of repossession may be taken and held without liability until its return requested by Buyer Unless oth
provided by law, any requirement of reasonable notice which Seller may be obligated to give regarding the sale or other disposition of Co
will be met if such notice is mailed to Buyer at its address shown herein or to the most current address designated by Buyer to Seller in wr
least ten days before a time of sale or other disposition Seller may dispose of any Collateral at a public or private sale or at auction Seib
buy at any sale and become the owner of the Collateral Buyer agrees that Seller may bring any legal proceedings it deems necessary to e
the payment and performance of Buyer's obligations hereunder in any court in the State shown to Sellers address set forth herein, and ser
process may be made upon Buyer by mailing a copy of the summons to Buyer at its address shown herein The inclusion of a trade nE
division name in the idenblication of Buyer hereunder shall not limit Seller's right, after the occurrence of an event of default, to proceed ago
of Buyers assets, including those held or used by Buyer individually or under another trade or division name Expenses of retaking, h
preparing for sale, selling and the like shall include (a) the reasonable fees of any attorneys retained by Seller, and (b) all other legal ex;
incurred by Seiler Buyer agrees that Buyer is liable for all amounts due hereunder, including any deficiency remaining after any dispose
Collateral after default Seller may sell the Collateral without giving any warranties as to the Collateral Seller may disclaim any warranties i
possession, quiet enjoyment, or the like This procedure will not be considered to adversely affect the commercial reasonableness of any
the Collateral
5 3 Acceleration Interest Buyer agrees to pay Seller, upon acceleration of the above indebtedness, interest on all sums then owing hereur
the rate of 1 1112% per month if not prohibited by law, otherwise at the highest rate Buyer can legally obligate itself to pay or Seller can
collect Any note taken herewith evidences indebtedness and not payment
60 PREPAYMENT
61 Partial Prepayment and Automatic Reschedule Buyer does not have the right to prepay only a portion of the balance of this Agreement p
maturity without the consent of Seiler (a) In the event that there are several units subject to this Agreement and all of that portion of the obis,
that relates to a specific unit is paid in full either as a result of a casualty loss related to the unit which is reported in wnting to Seller or the
the unit with the prior consent of Seller, Seller will apply the proceeds received by Seller and identified as relating to any such transaction
balance due under this Agreement and reschedule the remaining monthly payments under this Agreement over the then remaining term
the event that Buyer is obligated to Seller or to an assignee of Seiler under the terms of any other agreement, and Seller or such ass
received one or more remittance(s) (other than as indicated in 61(a) above) with respect to this Agreement at a time when any amount is pa
under another agreement, Seiler or Seller's assignee will have the right to apply any portion of such excess to the payments then due or pa
under the other agreement (c) In the event that Seller receives one or more a reruttence(s) (other than as indicated in 61(a) or 6 1(b) a
with respect to this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the aggi
excess amount is equal to or less than four regularly scheduled payments under this Agreement. Seller will apply the amount of such exc
the immediately succeeding monthly payments under this Agreement In the event that Seller receives one or more remittance(s) with resp
this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the excess amount is
aggregate amount greater than four regularly scheduled payments under this Agreement, or Seller will, at Seller's option either (1) app
amount of such excess to the final maturing installment payments under this Agreement, or (n) apply the amount of such excess to the W
due under this Agreement and reschedule the remaining monthly payments under this Agreement over the then remaining term The Inten
finance charge Included in this Agreement is precomputed and early payment of one or more Installments prior to their maturity
may not reduce the total interest or finance charge payable by Buyer under this Agreement unless the monthly payment
rescheduled (d) In the event that Seiler elects to reschedule the monthly payments under this Agreement, the portion of the balance rem
unpaid under this Agreement at the time of reschedule will be calculated in the same manner as upon prepayment (but without penalty)
Finance Charge or Annual Percentage Rate appltcable to the rescheduled payments will be the lesser of the rate included in this Agreemei
the maximum rate allowed by applicable law Buyer's rescheduled payments will appear on Buyer's account statement
62 Prepayment In Full Buyer has the right to prepay the indebtedness under this Agreement in full (but not in part) at any time Upon prepa
Buyer will receive a rebate of the unearned portion of the finance charge calculated using an actuarial method or such other method as is re
by any applicable law minus, if the prepayment is made prior to the last twelve months of the contract, a prepayment processing fee equal
lesser of (a) 1 % of the originally scheduled balance on the date of prepayment for each full twelve month period remaining under the tern
Agreement as of prepayment and (b) the maximum prepayment and/or acquisition charge allowed by applicable law, provided, however, t
such prepayment and/or acquisition charge shall be due d this Agreement is subject to the laws of Arizona, Connecticut (and the cash sale;
$50,000 or less with respect to trader or motor vehicle collateral or $16,000 or less with respect to non-vehicular collateral), Idaho, Me
Nebraska, New York, Rhode Island, or West Virginia All accrued and unpaid late charges and other amounts chargeable to Buyer and
Agreement will be payable immediately upon such prepayment
Page rid 4tiROF ?Onr3?UJ,d ENT, between HAMPTON CONSTRUCTION MANAGEMENT. LTD ING (Serer) which includes, without limitation, an item of Collateral with One
number DACS31256
621526 Rev oa2oo4 ORIGINAL FOR CITiCAPiTAL But
'Comm9 NonVeh-Vanes States (R D )
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1218665 2 0 XC 20050628134315
ASSIGNMENT OF SELLER
(WITHOUT RECOURSE)
DOCUMENTS (check appropriate) D led
Secunty Agreement b'g o?aS
? Promissory Note
? Guaranty
Street 424
City, State & Zip
? Present Balance Owed by Debtor $
For value received, the undersigned ("Assignor") hereby sells, assigns and transfers to CITICAPiTAL COMMERCIAL CORPORATION, its succi
and assigns ("Assignee"), WITHOUT RECOURSE as to the financial ability of the debtor named above ("Debtor") to pay, all Assignor's right, tide and ante
and to (a) the security agreement or other title retention or ben instrument described above (the "Security Agreement') between Assignor and Debtor, (1
notes, guaranbes and other documents executed in connection with the Security Agreement (herein, with the Se=ty Agreement, called the "Document`
all amounts due or to become due under the Documents, (d) the property in which a security interest or lien is granted to or reserved by Assignor and
Security Agreement (the "Collateral"), and (e) all of Assignor's rights and remedies under or in connection with the Documents, including the right, without
to Assignor and without affecting Assignor's liability hereunder (i) to collect any and all amounts owing under the Documents, (n) to endorse Assignor's na
any note or remittance received, (ei) to release or discharge Debtor or any other persons obligated under the Documents, on terms satisfactory to Assign
operation of law or otherwae, (hv) to settle, compromise or adjust any and all rights against and to grant extensions of brae of payment to Debtor or any
persons obligated under the Documents, and (v) to take any other action Assignor might take but for this assignment Assignor warrants that the Docui
are genuine, collectable, enforceable and in all respects what they purport to be, all signatures, names, addresses, amounts and other statements and
contained in the Documents and herein are true and correct, Debtor has obtained all insurance required by the Security Agreement and such insurance is
force and effect, the Collateral was sold to Debtor in a bona fide time sale transaction. Debtor has paid the down payment in cash or as otherwse set forth
Security Agreement, and no part thereof was loaned directly or indirectly by Assignor, the Collateral was delivered in satisfactory condition to Debtor on the
set forth below, was properly installed if required, and was accepted by Debtor, Debtor is not in default under the Security Agreement, all parties
Documents have the rapacity to contract and none of such parties is a minor, the security interest, lien and reservation of btte evidenced by the Se
Agreement are valid, first, prior to all others and effective against all persons, Assignor has caused or will promptly cause such actions or procedures to be
as are required or permitted by statute or regulation to perfect such security interest, ben and reservation of title in Assignee's favor, including, without limit
filing financing statements, recording documents and obtaining Certificates of Title disclosing Assignee's interest, Assignor has full title to and the nghl to se
assign the Documents and the security interest, ben and reserved true evidenced thereby, and tNs assignment conveys the same free and dear of all lien
encumbrances whatsoever, the Documents are and will continue to be free from defenses, counter-darts, cross-claims and set-ores, and Assignor
continue to be liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or conditions contained in the Docur
or any release of, or failure on the part of Assignee to realize upon or protect, the Collateral or any ban thereon
Assignor agrees that Assignee may audit its books and records relating to the Documents Assignee shall have no obligations of Assignor as
under the Security Agreement Unless otherwise agreed under the provisions of any applicable underlying agreement, any amount retained by Assignee
reserve or holdback shad be held by Assignee as security for but not in heu of the performance of Assignor's obligabons under this or any other agreemen
assignee or any affiliate of Assignee, and shall be paid to Assignor without interest when all amounts due under the Documents have been paid in full, pro
that no direct or contingent obligation of Assignor, whether hereunder or under any other agreement with Assignee or any affiliate of Assignee, is in default, time such reserve or holdback amount is to be paid to Assignor In the event of any such default, Assignee may apply any reserve, holdback, accot
property in Assignee's possession toward satisfaction of such obligations If Assignee gives a rebate of finance charge computed on the total finance d
payable by Debtor, and such rebate is greater than a like rebate computed on the porbon of the finance charge to be earned hereafter by Assignee. Assgni
pay to Assignee upon demand the difference between such rebates, the portion of the finance charge to be earned hereafter by Assignee is the excess of
amount to be collected under Viva Security Agreement and retained by Assignee, over ii) the amount paid or to be paid by Assignee to Assignor for the Se
Agreement ANY REASSIGNMENT OF THE DOCUMENTS AND/OR THE COL.LAT L BY ASSIGNEE SHALL BE WfTHOM RECOURSE OR wARR)
OF ANY KIND Assignor waives presentment and demand for payment, protest and notice of non-payment, and subordinates all rights Assignor may ni
hereafter have against Debtor to any rights Assignee may now or hereafter have against Debtor Assignee shall have no authority to, and will not, w
Assignee's prior written consent, accept collections, repossess, substitute or consent to the return of the Collateral, or modify the terms of the Docum
Assignee's knowledge at any time of any breach of or non-compliance with any of the foregoing shall not constitute any waiver by Assignee Assignor w
notice of acceptance hereof At the request of Assignee, Assignor agrees to give reasonable assistance to effect collection of the Documents and reposse
of the Collateral, and any such services shall be furnished without cost to Assignee unless Assignee otherwise agrees in writing Assignor agrees to sto
Assignor's premises, without cost to Assignee, any repossessed Collateral Assignor hereby acknowledges that such Collateral shall at all times remw
property of Assignee and Assignor shall have no right to sell, lease, rent, move or otherwise transfer or dispose of such Collateral without the prior w
consent of Assignee
If arty of the foregoing warranties are untnie, or d Assignor breaches any provision hereof, Assignor will indemnify and hold Assignee harmless
any losses, damages or claims ansing therefrom and will, without requiring Assignee to proceed against Debtor or any other person or any security, repurc
the Documents on demand and pay Assignee in cash the balance remaining unpaid thereunder plus any expenses of collection. repossession, transport
and storage (including reasonable attorney's fees and court osts) curred y Assignee, less any customary refund by Assignee of unearned finance charge
The Collateral was delive d to Debtor on 6 I-) 6
Dated b (% ?:/ (Date)
ASSIGNOR GROFF TRACTOR r5 EQUIPMENT, INC
or parinarsiiq
a^Y, ether nams )
6205% Rev 0542004
AsswmeM of Saw (MR)
102
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CITiCAPITAL is a service mark of Citicorp 1218665 2 0 XC 20D50628134315
??
Lift Lease Agreement
Name and Address of Lessee ("Lessee)
HAMPTON CONSTRUCTION MANAGEMENT, LIMBED
citicapital ,
Name and Address of Lessor ("Lessor")
CLEVELAND BROTHERS EQUIPMENT CO., INC.
3607 HARTZOALE DR
17055 5300 PAXTON ST
HARRISBURG PA 17111-2525
CAMP HILL PA
LESSOR'S COST
DESCRIBE EQUIPMENT FULLY Equipment Total Cost $ 212,201
(1} CATERPILLAR TRACK LOADER 963C S1N BBD01154 Shipping & Handling Cost $
t
Installation Cost $ 1
Other (Specify) i
TOTAL CO 212,20
ST
0?FAAENT:
LOCATION 6J CAMP HILL PA
L
H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
9 the first day of the
A TERM: 66 Months follawrin month PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LE:
after delivery INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EOUIPN
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS:
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
THE FIRST DAY OF JANUARY 06 (MO/YR).
0 RENTAL(S) PLUS APPLICABLE TAXES. Each Installment In the groups below is payable on a consecuti
1 advance payment(s) of $2,969.05on 1210112005
C. INTERIM RENTAL: Per day rental for the period from delivery to 65 Installment(s) of $2,969.05 commencing on 0110112006
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE:
E. RENTAL PAYMENT:
100.00
66 Payments of $ 2,969.05
PLUS APPUCABLE TAXES
F. SECURITY DEPOSIT: $ 0.00
G. 5 MACRS Class Life of Equipment
The Termination Value Table attached to this Lease Is a part of
and incorporated into the terms of this lease.
TERM OPTION: (it left blank or marked "NA", Paragraph(s) 11A andlor 11l
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 77,656.20
Conversion Term 12 Months
Conversion Payment $ 6.486.02
Cgnversion Rate: (check one and initial)
? Fixed %Paragraph 13 of this Loam)
®FlOatfng _ ?-% plus the Prkna rate Is* defined In
Option Date:
Option Price $
Conversion Term Months
Conversion Payment $
-
lE version Rate: (check one and initial)
?J Fixed %
? Floating % pi- th. Prim raw mss deened
Paragraph 113 of Oda Lase)
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease) and the obligations and liabilities of Lessee under this Lease are effective on the
Lessors acceptance of this Lease ("Effective Dab'), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under end subject to the terms and provisions hersof until the end of the Term I
above ("Term"), the personal property downbed above and on any supplemental schedule(s) identified as constituting a part of this lease (herein, with all present ai?
attachments, accessories, replacement pens, repairs. and addltiorm and all proceeds thereof. referred to as "EquipmenC). This Leese is for the Term commencing on the
Equipment is delivered to Lessee. For the Term or any portion thereof. Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments (including {
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: Ad Rental Payments are payable without notice or demand. All amounts payable under this Lease to Lessor are
Lessors address set font herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided heroin, Lessee's obli
pay the Rental Payments and all other amounts due or to become due under this Lease shell be absolute and unconditional under all circumstances, regardless of sm
counterclaim, reompment, defense or other claim whatsoever. Any Security Deposit is held as security for Lassoes obligations and will be refunded in full, without intend
payment in full of #am obligations.
Pape 1 of 5 of Lear Apreemerl dated 11121= between _ NANPTON CONSTRUCTION MANAGEMENT. LIMITED (Lessee)
CLEVELAND BROTHERS EQUIPMENT CO, INC. (Lessor) which Includes, withoul limitation, an Item of Equipment wdh the following serial number.
BBD01154 L.
Twoar . RFo d Rat ORIGINAL FOR CITICAPITAL
1.17 wpa Lift Lease/Food Rate
t 1.247875.2.0 XC:20051107070646
CITICAPITAL is a service mark of Citicorp. Amember oftato
monthly b
are
dale of
future
to the
able at
stion to
set-o8,
t, upon
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due. Lessee agrees to pay Lessor a delinquency c other S calculated thereat at the rate of 1 112% per month for the period of delinquency or, at Lessor's option, 5% of such RePayment
mentor can legally tan co e under this
agrees to radar
such a delinquency charge is riot prohibited by law, otherwise at the highest rate Lessee on legally obligate Itself to pay
Lessor Immediately upon demand for any amount charged to Lessor by any depositary institution because a check, draft or other order made or drawn by or for the benefit of Les.
returned unpaid for any reason and, if allowed by law, to pay Lessor an additionat handling charge In the amount of $25.00 or in the event applicable law Gnus or restricts the amt
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited andfor restricted in accordance with applicable law.
5. NO WARRANTIES BY LESSOR, MAINTENANCE. AND COMPLIANCE WITH LAWS: Lessor makes no representations or wartanbes as to the character of this transaction
rer
Lessee acknowledges and agrees that the Equipment is of a size, design. capacity and manufacture selected by Lessee: Leer is not the manENTATIC
or direr purposes.
Equipment or the rnanu(adurera agent; LESSEE LEASES THE EQUIPMENT 'AS IS' AND LESSOR FIRS NOT MADE, AND DOES NOT MAKE, ANY WARRANTY, EXPRESS OR IMPLIED. AS TO THE VALUE, CONDITION, QUALITY, MATERIAL. WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURAE
sect a c OF THE EQUIPMENT
FITNESS SUITABILITY
*W. regardlesss of cause, against Lessor. Lessee will not bring any suit oar doim against or make an y settlement with the mmaanufadurer o
Lessee will not assert any y taint whatsoever, "Set at shall be entirely Le
to Lessor of the Equipment (loth herein called "Seiler without Lessors pnorwritfen consent: and the selection, servicing and maintaining pee Equipment
in the regular course d Le
risk arld expense. Lessee agrees, at its own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified
of the Sailer and with ants tat to
business: (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted by law with respec
Equipment: (d) to maintain the Equipment in good operating condition, repair and appearance: and (e) to furnish Lessor promptly with such financial statements and other intomma
Lessor may reasonably request from time to time.
6. TERMINATION VALUE. "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. H Lessor and Lessee have execs
Termination Value Table with respect to this Lease, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or
amounts payable under this Lease as of that date. If Lessor and Lessee have not executed a Terrrenabon Value Table with reaped to this Lease, the Termintdion Value as of am
shall mean an amount equal to the total o fall accrued and unpaid Rental Payments and all other amounts then due and remadrJng unpaid plus the greater d: (a) the then Fair k
Value (as detdmined in accordance with Paragraph 12 of this lease) of the Equipment as of that date in the some condition as when received by Lessee, reasonable wear an
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and ) either n a (arm ui Purchase Option
unpaid Rental Payments and all other amounts then due and remaining unpaid plus the then present worth of ll tats' Lease Rental the Paymmntts p us the tame she Purc a when to
in as
or (It) if no purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12
by Lessee, reasonable wear and tear from the normal use thereof atone excepted, as well as in the condition required upon its return d2ete ned in accordance with this I
Present worth stall be determined by discounting such unacci ued Rental Payments from their respective due dates at the Rate of
7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction of the Equipment from the deft of its delivery until Its return. If, for any reason, any
Equipment Is lost, stolen, destroyed or donaged beyond repair, Lessee shall (a) Immodlataiy and fully inform Lessor with regard thereto, and (b) promptly ley to L
the Termination Value calculated as of the dab of payment thereof. Any amounts actually received by Lessor from insurance or otherwise on Lessee's behaN for
loss or damage shall be applied to reduce Lasaee's obligation under this paragraph- Escept as expressly provided heroin, the fetal or partial destruction ,
Equipment or the total or partial loss of use or possession thereof to Losses, shall not release or relieve Lessee from its obligations and liabilities under this i
Lessee agrees to procure and maintain at all times on and after the Effective Date such liability, physical damage Lessorand eand rr Insura
that tnce as wdeiWx spromptly quire r o L
time. Lessee agrees that all such Insurance shall be in form and smount and with insurers satisfactory to coryflcates or, upon request, policies satisfactory to Lessor evidencing such Insurance. At liability policies that/ name Lessor as an additional Insured, and all pt
damage policies shalt provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provide that Lessor's in t least therein shall not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain
nor such eant?em onto give Les sset ache direct
prior written notice before cancellation or any material change in the policy shall be effective as to Lessor,
Lessee or the insurer.
S. TAXES: Lessee shag be liable for all taxes, levies, duties, assessments, and other government charges (including any penalties and interest. and any fees fortitles or rag
to the lease or the purchase. use, operation, leasing, ownership, value, return or other dispc
levied or assessed against Lessee. Lessor the g there. upon or with rasped
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Loss" mmed(et
Lessor will file all returns and remit ant personal property taxes applicable to the Equipment Lessee agrees to reimburse Lessor for all such personal property taxes
receipt of Lessors invoice including without limitation such taxes assessed or arising during the tern of this Lease bud remitted by Lessor after the tem-ination of this Lease. At
option, Lessee egress to rant, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessors reasonable estimate of the personal props
that will be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against Lessee's obligations u
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus will
credited to Lessees other obligations to Lessor or returned to Lessee. If requested. Lessee agrees to file promptly on behalf of Lessor all requested tax returns and reports m
eLessee furthe
the Equipment in form satisfactory to Lessor. with ail appropriate governmental agencies and to mail a copy thereof to Lessor concurrently itht Ming thereof.
s easessm
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining l the
other governmental charges. The obligations arising under this paragraph shalt survive payment of all other obligations under this Lease and the termination c (this Lease.
9. LESSOR'S TITLE. STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at all times remain in Lessor and Lessee will at all fires, at Its own
expense, prded and defend the tWe of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and dear from all sue
liens and processes. Lessee agrees riot to after or modify the Equipment without first obtaining in each instance the prior written approval of lessor. Upon the expiration or to
of this Lease. Losses, at Lessee's sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition
received by Lessee, reasonable wear and tear resulting from normal use thered atone excepted. Lessee shall, upon Lessors request, and at Lassoe's own expense, firmly a
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor of to Equipment. II Lessee fags to per
and promptly any of its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shag not be obligated to do s
account of Lessee to protect the interest of Lessor or lessee or both, at Lessors option. Any amount paid or expense (including reasonable attorneys fees), penally or oth
incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipmert will be kept by Lessee at the location indicated herein, at
be removed from said location without the prior written consent of Lessor. Lessor shag have the right to inspect the Equipment at all reasonable times and from time to time
may require. Lessee will not soft, assign. transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under It of this Le
inde without Lessors prior written consent. Lessor or any assignee nt or consent from Lessee. LESSEE WAIVES, DISCLAIMS AGREESeTHA1T IT V
and/or obligations hereunder. NEt notice, acknowledgeme
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMEM', ABATEMENT. REDUCTION, DEFENSES, OR SET-0
BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE LINE
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment royend this ease; I I
will not, without the prior written consent of the assignee, purchaser or secured pant, (m) prom any amounts owing under this Lease: (G) modify
any rights which are exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the
purchase all, but not less than all, at the Equipmert described in the Lease on the Option Date (as specified on the first page of this Lease) upon the following terms and coed
Lessee gives Lessor written notice or Lessee's intent to exercise this option to purchase at least ninety (90) bit not mote than one hundred twenty (120) bays prior to the O,
and (2) Lessee has paid all Rent accruing prior to the Option Dale on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before i
Date will render the Lessee's options to purchase null and void. The purchase price for the Equipment on the Option Date shall be the then Fair Market Value of the Equipm
for purposes of the Option Date only. Lessor and Lessee agree shall be the Term Option Prins (as specified on the first page of this Lease). Lessor and Lessee agree thha
Option Price Is a reasonable prediction of the than Fair Market Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shag be peye
Option Date in cash or, at Lessee's option, as provided in Paragraph 11B of this Lease.
Paps 2 of S of Lease Agrreomra dated 11121106 behween MAMPTON CONSTRUCTION MANAGEMENT LJWMD
nrhd CLEVELAND BROTHERS EQtJWU NT Co., INC._ (Lasswr wMa h ncAMes, wNmat WrAmU m. w sent of EquWmrs with the kAmnp aerial number L s Init
I
7p4w4 pp4 -3 3 Rev 00!1004
414004.WPd Lift LeaseJF6ced Rate ORIGINAL FOR CITICAPiTAL
1.17 1.247875.2.0 XC:20051107070646
that
KAW
ee is
rnt of
or tax
N the
4 OR
LITY,
LIED.
seller
ism's
see's
,ms of
to the
ion as
.ad a
other
date
arket
Itear
I and
,rice,
rived
ease.
if the
issor
such
f the
one.
not to
esaor
/skal
forest
days
on of
iy upon
.essoes
ly taxes
,der this
e either
hcerning
agrees
rants and
east and
i claims,
mutation
its when
ix to the
)rm duly
m, for the
r liability
i will not
s Lessor
is Lease
Madness
ILL NOT
'FS FOR
_R THIS
yes that it
exercise
option to
dons: (1)
tion Date
is option
mnt which,
the Term
hie on the
B. Conversion Option During Term. In the evert Lessee exerdses Lessee's option to purchase the Equipment an the Option Date as provided in paragraph A above, Lessee may
mon?7dd ll is
elect to pay theTenn Option Price to Lessor upon the fdbwing terms and eprmditiens: (t) Lessee sprees t0 pay the Term Option Price in the equal consecutive ke tfor the Conversion Term as indicated on the first page of this Lease with the first such installment payable on the Option Date and each woeeadirg instailmxrt payabof each rnoh?h thereafter until fully paid and provided that the final installment shag be in the amount d the then rernaimng unpaid balance. In addition to the payment Lessee promises and agrees to pay interest on the remaining unpaid baleae at the applicable Conversion Rate (as specified on the first page of this Laws) payable monthly the
hundred lY
unpaid principai balance: (2) Lessee agrees to give Lessor written notice of Lessee's election pursuant to this Paragraph at least pole 90with tent all col more present than
end one ne Mure h h attach nts,
(120) days prior to the Option Date; (3) Lessee grants to Loam, its successors and sell a security interest In the Equipnent and performance of the Indebted
accessories. replacement parts, repairs, additions. and all proceeds thereof, all herein referred to coloctively so *C Werer to secure payment ari *as
and all absolute and all contingent obligations and tiaatilies of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor and Lessor a "seared party' as ose
necessary or expedient to perfect and preserve the rity
terms are used under the Uniform Commercial Code: (5) Lessee agrees, at its own cost and expense, to do everything
interest of Lessor granted hereunder, and (6) AN of the terms and provisions of the Lease shall be and remain in fug force and effect except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lasses may purchase all, but not less than all, of the Equipment described in the Lease at the expiration of the Term of the Leese upon
the following terms and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at least ninety (90) but not more the aria
hundred twenty (120) days prior to the expiration of the Term of the Lease and (2) the purchase price to be paid to Lessor for such Equipment shall be the then Fair Market Vat a (as
ull and
defined below) of such Equipment, plus an amount equal to the Rental Paymerts then unpaid under the terms of the Lease, plus applicable taxes. if any, on the above sum, all in rash. Failure to give such notice or to pay the end of term Option Price on or before the expiration of the Term of the Lease will render the Lessee's options to purchase npayable
void. Upon such payment, Lessor will execute and deliver a bill of sale conveying title to the Equipment to Lessee on on'AS IS, WHERE IS "BASIS, WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The term 'Fair Market Value" as used herein shall be determined on the basis d, and shell be equal in amount to, the value which the Equipment d
obtain in an arms length sale transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an informed lan expiration of then Term of
compulsion to sell and assuming that the Equipment is then in the condition required under the terms d the Lease. If on or before study (60) days prior to t the Lease. Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of such Equipment, such value stall be determined in accordance with the foregoing
definition by a qualified independent appraiser selected by Lessor. The appraiser shall be instructed to make such determination within a period of 45 days following appointment, but in
no event late than 10 days prior to the expiration of the Term of the Lease, and shall promptly communicate such determination in writing to Lessor and Lessee, The aW, es
determination of such Fair Market Value shag be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be borne by Lessee.
13. PRIME RATE: The "Prime Rate" will mean the Prime Rate as published tram time to time in the Money Rates section of The Welf Street Journal as the base rata on coroorate the
Rate as loans. If more than one Prime Rate or a range of rates is published. the Prirne Rate will be highest of the published rates. innthexeve that is outside the control d ? in I Waltha? l event
Journal ceases to exist or The Wall Street Journal ceases to publishing a Prime Rate, CitiCapitai will substitute a comparable
of an error by The War! Street Journal. the "Prime Rate" will be based upon the Prime Rate as weeded.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shah be entitled to modified accelerated cost recovery (or depreciation) deductions with respect to the Equi , and
should, under any dnoumsances whatsoever, except as specifically set forth below. ether the thrilled States government or any state tax authority disallow, eliminate, induce,
recapture, or disqualify, in whole or in part any benefits consisting of accelerated coal recovery (or depredation) deductions with respect to any Equipment, Lessee shall then ! mnfy
Lessor by payment to Lessor, upon demand, of a sum which stag be equal to the amount necessary to permit Lessor to receive (an an after-tax basis over the full term of this ease)
the same after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Return") that es?
would have realized had there net been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed
governmental authority with rasped to such loss or disallowance. In addition, If Lessee stall make any addition or improvement to any Equipment, and as a result thereof, L is
required to include an additional amour in its taxable income, Lessee shag also pay to lessor. upon demand, an amount which shall be equal to the amount necessary to permit essor
to receive (on an after-tax basis over the full term of this Lease) the same Economic Return that Leaser would have realized had such addition or improvement not been made. Lessor
and Lessee agree that the Class Life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule. Lessee shall not be obligated to pay
any sums required by this section with rasped to any Equipment in the event the cause of the loss of the deductions results act* from one or more of the following events: (1) failure
ssoes
of Lessor to timely claim modified accelerated cost recovery (or depredation) deductions for the Equipment in Lessors tax return, other than a failure re resulting a fr from the failure L Lessor
determinagan, based upon opinion of counsel or otherwise, that no reasonable basis exists for daimirhg accelerated cost recovery (or depreciation)
to have sufficient gross income to benefit from accelerated cost recovery (or depreciation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any f eras or
state lax authority against the Lessor with respect to the disallowance of coat recovery (or depreciation) deductions.
Al amounts payable by Lessee pursuant to this section shah be payable directly to Lessor. Ail the indemnities contained In this section shah continue in full force an I effect
notwithstanding the expiration or other termination of the Lease in while or in part and are expressly made for the benefit of. and shall be enforceable by, Lessor. Lessee's aliens
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with reaped to the same matter under some other agreement by anoth party.
The obligations at Lessee under this section are expressly made for the bene& of. and shall been forceable by, Lessor without necessity of doctoring the Lease in default an Lessor
may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have.
15. DEFAULT BY LESSEE: if Lessee at any time defaults in any of its obligations to Lasso. such default shah be considered an abandonment of all options herein and all options
herein shall immediately expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: it is agreed that Lessee's rights under this Lease are net assignable and that no modification d the provisions hereof shall be binding unles in
writing and signed by an officer of the party ?o be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shag occur d: (a) Lessee faits to pay when due any amount owed by it to Lessor or e affiliate
(including. without limitation, any direct or inclined parent, subsidiary or sister erdity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any amount
owed by it to Lessor or any affiliate Concluding, without limitation, any dired or indirect parent. subsidiary or sister entity), successor; (b) Lessee breaches arty warranty or frovision
hereof or under any other document, agreement or instnmhent between Lessor and Lessee or between Lessee and any affiliate (including, without limitation, any direct indirect
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes ansee assignment for the nefit d
creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the refief of debtors; (d) any property of Les Is attached; (e) petition
in bankruptcy or for an arrangement. reorganization, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any present or future statut , law or
regulation: (0 Lessee or its shareholders take any action looking to its dissolution or fiquiciatran: (g) a trustee or receiver is appointed for Lessee or for any substantial rt of
h) if there shall occur an (c) appropriation, (B) confiscation, (iii) retention, or (iv) seizure of control, custody or possession of the Equipment by any govemmemal uNarity
property; ( its
including. without limitation, any municipal, stale, federal or other governmental entity or any governments! agency or Instrumentality ell such entities, agendas and Malities
still hereinafter be collectively referred to as "Governmental Authority"); (1) if anyone in the control. custody or possession of the Equipment or the Lessee is accused or or
charged (whether or not subsequently arraigned, indided or convicted) by any GovemmefMal Authority to have used the Equipment in connection with the commission of y crime
(other than a misdemeanor moving violation); (j) there shah be a material adverse charge in any d the: (i) condition (financial or otherwise). business, performance, peels.
operations or properties of the Lessee (i) legality, validity or enforceabiNy of this Lease. (N) perfection or priority of the Non granted in favor of to Lessor pursuant to this Lease, (iv)
ability of the Lessee to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (k) there snag be a
death of a majority owner of Lessee or a guarantor of the obligations of Lessee under this Lease; or (1) except for the seamy interest. Gen or reservation of tide in favor of Lessor or as
otherwise granted herein, there shalt be any lien, claim or encumbrance on any of the Equipment searing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default lessee shat be in default hereunder and Lessor may, at Its option, with or without notice to Lessee (a) declare ail sums due and 1 become
due hereunder and all other suns then owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or instru nent; (b)
declare all other debts then owing by Lessee to Lessor or any affiliate (including. without limitation. any direct or indirect parent. subsidiary or sister enMy),successor or asignee of
Lessor to be immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at law or in equity ?o enforce performance by Lesisee of any
and ail provisions of this Lease and to recover the damages for the broach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's
expense at such place as lessor may designate which is reasonably convenient to both parties: (e) exercise one or more of the rights and remedies available to a seared under
the Uniform Commercial Code, whether or not this transaction is subject thereto. (f) enter, or its agents may enter, wiNrad notice or liability or legal process, into
11121105 betas HAMPTON CONSTRUCTION MANAGEMENT. utBTEn (Luum ) and
Pass 3 of 5 at Lease A dated (Lasser) wygh Includes. w0l limitation. an item of Equipment with she fomwing aerial rw r.
CLLEVELAEVELA ND BROTHERS EQUIPMENT CO INC. Lea 's nitiel5
BBDO11u
7041104 .3 Rev 06!2004
04.wpd ctrl LseselFasd Rate
1.17 1.247875.2.0 XC:20051107070646
1'17 ORIGINAL FOR CITiCAPITAL
any premises where the Equipment may be, or is believed by Lessor to be, and repossess ail or any part thereof, disconnecting and separating the some from any other and
using all force necessary and permitted by applicable law. Lessee hereby expressly waiving all "her rights to possession of the Equipment after default and all claims for I'ties
suffered through or loss caused by such repossession; arhdlor (g) apply any security deposit or other mounts held by Lessor to any Indebtedness of Lessee to Lessor.
in addition.' Losses agents to pay, to Lessor. as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, hci ing,
preparing for sale, selling and the like. including reasonable aaomeys' fees and other legal expenses, less (3) any amount actually received by Lessor from the re-Iesse, sale or er
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained will require Lessor to release sell
or otherwise dispose of the Equipment. No remedy of Lessor hereunder shat) be exclusive of any other remedy herein or provide by law, but each shall be cumulative end in ack Son
to every other remedy. A waver of a default slurp not be a waiver of any other or a subsequent default. H allowed by law, "the reasonable fees for aftomeys" retain ad by Lessor tiall
include the amount of any tat fee, retainer, contingent fee or the hourly charges of any attorney, retained by Lessor in enforcing any of Lessors rights hereunder or in the prosee titan
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. AN notices to Lessee retailing hereto will be considered received when deli in
person or marled to Lessee at the address sot forth in this Lease. or at any later address designated in writing by Lessee. Lessor may sell the Equipment without giving any warra Ybes
as to the Equipment Lessor may disclaim any warranties of title, possession, quiet enjoymenl, or the Ike. This procedure will not be considered to adversely affect the comet real
reasonableness of any sale of the Equipment.
18. WDEMNITY: Lessor (which term as used herein includes Lassoes Successors, assigns, agents, and servants) shall have no responsibility or liability to Lasses, its s or
assigns or any otter person with respect to any Liabilities (as "Liabittlee is heron defined), and Lessee hereby assumes liability for, and hereby agrees, at its sde cost end e ,
to indemnity, defend, prated and save Lessor and keep it harmless from and against any and all Liabilitec The term 'Liabilities! as used herein shall include any and all li 'hies,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursenents of whatsoever kind and nature. including legal fees and expenses. (whether not
any transaction contemplated hereby is oonsummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise)
and in any way relating to or arising out of this Lease or the selection, merndactura, purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use, ope lion,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, return or other disposition of the Equipment (including without limitation, (i) claims as e h of
latent or patent defeds, whether or not discoveralble by Lessor or Lessee, (i) claims for trademark, patent or copyright infringement, and (Iii) tort clams of any kind (whether based on
Lessors alleged negligence or otherwise), including daims for injury or damage to properly, or injury or death to any person (including Lessee's employees) or, for any claim or I ability
hereby indemnified against. The indemnities arising under this paragraph shall survive payment of all other obligations under this lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (O ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEES ATTORNEY-IN-FACT TO, IN LESSEES OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTI E OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT: (b) PREPARE, EXECUTE AND FILE ANY AGREE ENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION,IS NECESSARY TO PERFECT ANDIO GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESS E TO
LESSOR: AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT 01 ? THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is dour with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request such dove Ms,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest In Equipment and Lessors rights hereunder,
Including such documents, writings, records and assurances as Lessor may require for fling or recording. Lessee authorizes Lessor or any officer, employee or designee of Le aor or
any assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or desi nee of
Lessor or any assignee of Lessor (or any designee of such assignee) to file financing statements covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust association, company, partnership, joint venture, or other entity herein
collectively, the 'Entity"), inducing. without limiting the generality of the foregoing. Lessors parent or any affiliate or any subsidiary of Lessor and any credit reporting agency other
entity whether or not related to Lessor for any purpose, information about Lessee's accounts, credit application and credit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessee's accounts, credit experience and aocouM Information regarding the Lessee. This shall be continuing authortratlon for all
present and future disclosures of Lessee's account information, credit application and credit experience on Lessee made by Lessor, or any Entity requested to ease
such Information to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shall not be required to offer Lessee the option of paying arty of Lessee's obligations to Lessor through printed checks Debit
Transactions") drawn pursuant to this authorization upon Lessee's checking account, using Lessee's checking account number, bank routing code and other infommtion which asses
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to initiate Debit Transactions from Lessee's checking account in the amount necessary to pay t rental
payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or whidh is held by L s 3r , plus
a fee of ten dollars ($70.00) for each Debit Transaction Initiated by Lessor. In the evert applicable law prohibits or restricts the amount of such fee, the fee chargeable u air this
provision shall be limited andfor restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior writt notice
addressed to Lessee's last known address as shown on the records of Lessor and such increase or decrease shelf be effective as stated in the written notice. Unless prohi ' ed by
applicable law, Lessees continued use of Debit Transactions after the effective date specified in such notice shall conclusively establish Lessee's agreement to pay then Debit
Transaction roe stated therein. Lessee authorizes Lessor or any offerer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check d awn in
accordance with this authorization. Until cancegd by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations here rider or
under any other present or future agreement with or which Is held by Lessor. This authorization may be canceled at any time by Lessee giving at least three (3) business prior
written notice to Lessee's bank and Lessor. Payment by Debit Transactions is not required by Lessor rho is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however If for
purposes of perfection, this contract is Interrppre?ted by any court as a lease intended as security, Lessee grants to Lessor, its affiliates (including, hout
limitation, any direct or indirect parent, subsidiary or sister antityrr, successors and assigns a security interest in the Equipment to secure the payme t and
performance of all debts and all liabilities of Lessee to Lessor of every kind and character, whether now existing or hereafter arisingg, and whether fired,
indirect, absolute, contingent, primary, secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirect parent, subsid' rtYy or
sister entity), successors or assigns of Lessor, now existing or hereafter arising, whether under this Lease or any other agreement, and whether due dire tfjr or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redelivery of the Equipment to Lessee. Upon
anY assignment of this Lease by Lessor, the nee shall then be deemed the Lessor for purposes of this provision. All payments made by Lessee to essor
with reference to this Lease shaft be applied to any indebtedness which is not secured, then to late charges then to any other fees or other a cants
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purse money debt. This provision . ntrols
over any conflicting provision or language in this Lease or in any other agreement between Lessor and Lessee unless the parties mutually agree in wrltn in a
subsequent agreement to override this provision. ((B An provisions hereof contrary to, prohibited by or invalid under applicable laws a regulations all be
inapplicable and deemed omitted herefrom, but s(Ia?! not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to erem
constitute the entire agreement of the parties hereto. No oral agreement, guaranty, promise, condition, representation or warranty shag be binding. prior
conversations, agreement or representations related hereto and/or to the Equipment are superseded hereby and no modification hereof shat be b riding
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute "chattel pap r" for
purposes of the Uniform Commercial Code is the onqlinal of this Lease marked "O inal for CltiCapital." (E) ANY ASSIGMENT OR TRANSFER OF THIS
`EASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITUL COMMERCIAL LEASING CORPORATION OR ITS AFFILI TES
("CITICAPiTAL") VIOLATES THE RIGHTS OF CITICAPITAL.
23. RENEWAL: Unless Lessee notifies Lessor in writing at bast ninety (90) days prior to the expiration of the Tenn of Lessee's intention to return the Equipment or to exerd any
option to purchase, or Lessor notifies Lessee in writing at least ninety (90) days prior to the expiration of the Term of Lessors intention to terrinale this Lease, this Lem t will
automatically renew and continue on a month to month basis following the Initial Term ('Renewal Term") until such lime as ether Lessor or Lessee provides the other party th at
least ninety (90) days prior written notice of that parry's Intention to terminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice riot.
All of the terms and provisions of this Lease shag govern during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shish outom icalty
expire on the expiration of the Tenn and shall be inapplicable to any Renewal Term.
Paps 4 of 5 of Wes pp???eosmmeM aid 1U2110li between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED ! (Leases) and
CLEYELANO THERe EQUIPMENT CO_ INC. (Lessor) which indWes, without imRadon, an item of Equipment with the following serial number
aUMM4 Less Initials
704004 -3 Rw 080*4
4 d.wPd uh (easeell'b id Raft ORIGINAL FOR CITICAPiTAL
1.17 1.247875.2.0 XC20051107070fi46
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?. RETURN OF EQUIPMENT: 0 Lessee does not exe dse, or is Precluded from exercising, the option to purchase the Equipment at the expiration of the Tenn of any Re
irm of this Lease. Lessee shall, at Lessee's sole east and expense, return all. but not less than at, of the Equipment to Lessor immediately upon the expiration of the Term or any
erewal Term of this Lease pursrmrd to the terms and conditions contained In Lassoes Standard Return Conditions for equipment similar to the Equipment subject to this Leas s (a
,py of which has been delivered to Lessee in conjunction with this Lease). if Lessee does riot surrender the Equipment to Lessor as herein provided. Lamm will be in default of this
rose as to such Equipment, and Lessee shat pay Lessor, as liquidated damages and not as penalty, an amount equal to one hundred ten percent (710%) of the Monthly R tal
eymerd applicable to such Equipment. Such payment shall commence wIth the month immediately folkrMng the and of the Term or any Renewal Term and shall continue therea
' fter
onthly until the Equipment is returned to Lesser. Lessee agrees that such liquidated damages are a reasonable estimate and fair compensation for the Costs, expenses, r ual
due exposure and other losses, which are incapable of an exact determination, Incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the en of
e Term or any Renewal Tenn. Notwithslandmg the foregoing, Lessor Snell have the right to obtain immediate possession of the Equipment at any time after the end of the Te or
by Renewal Term for such Equipment-
L LOCATION OF LESSEE: (a) h Lessee is a corporation, limited liability eonparry, limited partnership or other registered orgarnization, its state of organization is in the star set
rth on the last page of this Lease; (b) 't Lessee is an individual, hasher principal pace of residence is at the address set forth on the last page of this Lease; (c) if Lessee I an
,gankation, its place of business or lt it has more than are place of business, its chief executive office Is bceted at the address set forth on the last page of this Lease. Lw a"
frees that It will not. without the prior written Consent of Lessor. change its state of organization If It is a corpaatim limited liability company, limited partnership or other regi red
rganizalton or the location of its chief executive office or its place of business if it is an organ¢ation. H Lessee is an individual, Lessee must notify Lessor in writing of a chant a in
sgher principal place of residence 30 days prior to such change.
PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the add
6 s
.
pacified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the acm unt
derenced an the check from Lessee. If Lessee sends arty payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Le. sea
hall be deemed to have authorized Lessor to substitute such check with an instrument of equal amount and present the substitute instrument to Lessee's financial institute for
ayment from the accou nt referenced on Lessee's check.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and record Informati n
that Identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open n
we will ask for your name, street address, date of birth, and Identification number, such as a social secure
account or establish a relationship
,
number or taxpayer Identification number. For businesses, we will ask for the business name, street address and tax Identification numb .
Federal law requires us to obtain this information. We may also ask to we your driver's license or other Identifying documents that will alit
us to identify you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under ail circumstances and regardless of any failure of operation or to
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 3118105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of 1 he
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee conftrms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RI DERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WITH ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, UMITED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO., INC.
By, By
(k corporation err rrrw a.traly eonhpary, N audwtrad wM n and dww har w
file tent. x lataad paMSrdlp, • ganwd paMe nwd sign show that Ulu. It sob
pop almst*. Nan sob pmprisim mud sign and show that alb. If khavnduiK than
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Title
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Date: 11121005 Federal Tax ID * or SSN: 251800323 Date; 11121ros Federal Tax ID fM
Date of Birth:
(individual/Sole Proprietor)
State of Organization- PA
sage 5 of 5 of Lease Agreement dated 1112IMS between HAMPTON CONSTRUCTION MANAGEMENT LIMITED (Lessee); wid
CLEVELAND BROTHERS EQUIPMENT CO.. INC. (Lessor) which intAxles, without limitation. an ken of EgAxrent with the following serial number.
BBD01151
7040043 Rev 0812004
U04004.wpd um LeaswTomd Rate ORIGINAL FOR CMCAPITAL
t.t7 1.247875.2.0 XC:20051107070646
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
citicapitalJ
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
11121106 3116105
Address: 3607 HARTZDALE DR Guarantor(s): Date of Guara nty:
CAMP HILL PA 17055 HARRY 1. MORRIS JR.
Equipment: Monthly Rental:
(1( CATERPILLAR TRACK LOADER %3C SIN BBD01164
2,969.05
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located a the
address indicated above;
(d) "Equipment' will mean and refer to the equipment described above, together with all attachments, acre ries,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or ther
documents, instruments or certificates executed or delivered in connection with the Lease:
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Document , all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments a d all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Value (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same conditi n as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as ii I the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount qual
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then pr sent
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the norma use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Para raph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from their
respective due dates at the rate of 0.00 %. Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts payable
under the Lease as of that date.
p? t?f?p
ti ft-A Page 1 of 3 of 11121106
"CMDBRDfEI1StEQUTP1rIERT?61r? between
HAMPTON CONSTRUCTION MANAGEMENT. LIMITED
with the following serial number BBOOI154
701306
1.00
(Lessor) which includes, without limitation, an item of
1.247875.2.0 XC:20051107070646
CmCAPRAL Is a z"ce mark of Citicorp. A memberof
2. Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee sill of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's right and
rp-medies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
Assignor's obligations to Assignee hereunder. (a) to collect and retain any and all Revenues, (b) to endorse Assignor's
flame on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjus any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated and the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, subSbt to or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents. Revenues or Equipment; (c) to deliver to Assignee all o ginal
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of its
obligations under any of the Documents.
3. Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests f the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any inte est in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and Ilea of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever, Assignor will forever fend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoeve ; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addr ses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties o the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Leas e, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all origi als of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, unter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipme it has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or ri hts of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental o other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in sh or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor, the Equipme it was
delivered in satisfactory condition to Lessee on the date set forth below, was property installed if required, an was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor as no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a efault
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will ntinue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording docume s and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action whi may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agr ement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that As ignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of an such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligatio with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may me to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, cove nts or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision here f, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Do ments
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the date of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid re tats or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equip ent with
the following serial number 08001154
701306
1.00
1.247875.2.0 XC:20051107070646
5.
6.
Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equipr
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any ki
ttie Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any ki
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to se
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise aE
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assign
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be he
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreemen
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor wi
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreemenl
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event c
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, accot
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value caICL
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount
or payable by Lessee and the Stipulated Loss Value of the Equipment.
Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereun
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any o
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Docum
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all exper
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retain(
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligate
give regarding the sate or other disposition of the Equipment or Documents will be met if such notice is maile
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from tirr
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiv
any other default. All of Assignee's rights are cumulative and not aftemative. No waiver or change in this agreemen
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of aoceptan(
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all r
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assii
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHET
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE)
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVI!
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNI
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11/21105
ASSIGNOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
By:
Title:
Page 3 of 3 of Assignment of Lease dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of
the fonowing serial number BBDO1154
701306
1.00
in
in
Ir to
i by
with
with
any
it or
paid
by
I to
to
to
r of
will
of
nee
with
1247875.2.0 XC:20051107070646
WHEEL/CRAWLER LOADER STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"Annua&Allowed Hours'), Lessee agrees to pay additional rental equa tort monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: 0
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lubc oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of tha` t type) as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs andwill have at least 50% of tire wear remaining in usable
condition.
C. Undercarriage. Track components, including rails, pads, sprockets, idlers and undercarriage shall have
at least 50% wear life remaining in accordance to measurements with the manufacturers guidelines.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minunum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including but not limited to,
differentials, planetaries, drop boxes/transfer cases and wet brake systems will be in good condition and operate
quietly without vibrations or leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and sto or hold machine safely during normal operation. No drums or other braking
components will be damagedpor cracked.
H. Hydraulic Equipment. All hydraulic pimps, cylinders, valves,pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pins. Boom hoist times and steering
times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal specifications.
I. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
oal business hours during the Term of the Lease,
readings and verified by parts invoices. At any time during n rm
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee truest make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/ins ection. The inspection must spell ca l
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT. LIMTED
J t
By:
Title: aw-- I
LESSOR: CLEVELAND BROTHERS EQUIPMENT CO. INC.
U
Title: ?' `?
Aft?
citicapital?
DELIVERY AND ACCEPTANCE CERTIFICATE
To:
(" CitiCapital
Reference is made to the contract dated 111211R5 _ (the "Contract") between the
undersigned and CLEVELAND BROTHERS EQUIPMENT CO. INC. _
dler essor)
(the "Dealer") for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
1. The Property was delivered to undersigned at the location designated in the Contract on 3118105
(Date)
2. Ail installation and other work necessary for the proper use of the Property, if any has been completed.
3. The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. Citicapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 255.362.74 and the present unpaid balance or total rentals is $ 255,38274
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CitiCapital
HAMPTON CONSTRUCTION MANAGEMENT, L.IMTfED
Dated 11121105
Buyer
By
Title
Co-Buyer
By
(Name of Individual(s), corporation or partnership.)
ration, authorized officer must sign and sho to title. If partnership, a
partner mu sign. If owner(s). show which.
(If co-buyer. co-partner or co-officer. sign here and show which-)
625024 Rev. 7-92
Dealer Sate or
Lease 1.01
CITICAPITAL is a service mark of Citicorp.
Title
A memberof citlgmur
1.247875.2.0 XC:20051107070646
?
citicapital
Lift Lease Agreement
Name pnd Address of Lessee ("Lessee) Name and Address of Lessor ('Lessor")
HAMPTON CONSTRUCTION MANAGEMENT, LnnTED CLEVELAND BROTHERS EQUIPMENT CO. INC.
3607 HARTZDALE DR 5300 PAXTON ST
CAMP HILL PA 17011 HARRISBURG
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR HYDRAULIC EXCAVATOR 318CL SIN GPA00300
PA 17111-2525
LESSOR'S COST
Equipment Total Cost $ _...
Shipping S Handling Cost $
Installation Cost $
Other (Specify)
A. TERM: 66 Months following the first day of the month
after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
0 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 100.00
E. RENTAL PAYMENT: 66 Payments of $ 1,927.02
PLUS APPLICABLE TAXES
F. SECURITY DEPOSIT: $ 0.00
G. 5 MACRS Class Life of Equipment
The Termination Value Table attached to this Lease is a part of
and incorporated Into the terns of this lease.
H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LES
INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMI
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
THE FIRST DAY OF JANUARY 06 (MO/YR).
Each installment in the groups below is payable on a eonsecutiv
1 advance payment(s) of $1,927.02 on 1210112005
65 installment(s) of $1,927.02 commencing on 0110112006
1. TERM OPTION: (If left blank or marked "NA", Paragraph(s) 11A and/or 111
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Opton Price $ 52,246.40
Conversion Term 12 Months
Conversion Payment $ 4,354.03
Cqnversion Rate: (check one and initial)
Fixed % PareWsph 13 of this Lease)
® Floating _ 1.00 % plustee Prime rob (as defined In
Option Date:
Option Price $
Conversion Term Morrths
Conversion Payment $
Conversion Rate: (check one and initial)
? Fixed %
? Floating % plus use Prime rat-(ace darned o
Paragraph 13 O this Loaael
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease) and the obligations and liabilities of Lessee under this Lease are effective on the
Lewes acceptance of this Lease ("Effective Date"), even though the Tenn and Lessee's obligation to pay the remaining Rental Payments may begin on a later dale.
2, LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires end takes from Lessor, under and subject to the terns and provisions hereof until the and of the Tenn t
above ("Term"), the personal property described above and on any supplemental schedule(s) Identified as constituting a part of this lease (herein, with all present an
attachments, accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as "Equipment"). This Lease is for the Tom commenting on the
Equipment is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments (including i
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: AN Rental Payments are payable without notice or demand. Ali amounts payable under this Lease to Lessor are pe
Lessor's address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided herein, Lessee's ors(
pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under all circumstances, regardless of am
counterclaim, mooupmertL defense a otter claim whatsoever. Any Security Deposit Is held as security for Lessors obligations and will be refunded in full, without intere
payment in full of those obligations.
Page t of 5 of Lenae AgntamttM dated 11121M between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (L
CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lesso) which includes, wehohd Ibnaatitva, an item of Equipment with the tOk wft serialnumber.
7043 RlFlmdR0C ORIGINAL FOR CITICAPITAL
1se04064.wpd Lilt Lease/Fsred Rata
1.17 1.247902.2.0 XC:20051107071451
CITICAPITAL Is a service mark of Citicorp. Amemberof
monthly b
are
ate of
xified
future
to the
vane
ble at
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el-off,
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4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lassa which is not paid when due. Lessee agrees to pay Lessor a deinquen
calculated thereon at the rate of 1 112% per month for the period of delnquenry or, at Lessor's option, 5% of such Rental Payment or other sum due under this Lease, pro
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally coiled. Lessee agrees to
Lessor immediately upon demand for any amount charged to Lessor by any depositary institution because a check, draft or other order made or drawn by or for the benefit of
returned unpaid for any reason and, if allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
5. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or warranties as to the character of this transaction or tax
or other purposes. Lessee adutowledges and agrees that: the Equipment Is of a size, design, rapacity and manufacture selected by Lessee; Lessor is not the manufacturer the
Equipment or the manufacturees agent; LESSEE LEASES THE EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATIOIJ OR
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE CONDITION, QUALITY, MATERIAL. WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURAS LITY,
FITNESS OR SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IM LIED.
Lessee will not assert any claim whatsoever. regardless of cause, against Lessor. Lessee will not bring any auk or claim against or make any settlement with the manufacturer or seller
to Lessor of the Equipment (both herein called "Schell without Lessors prior written coarsen; and the selection, servicing and maintaining of the Equipment shall be entirely at L see's
risk and expense. Lessee agrees, at its own cast and expense: (a) to cause the Equipment to be operated with rare and only by qualified personnel in the regular course of L sees
business; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published instructions or specifications of the Seller and with all of the tei ms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems rmcesaary and any eartiftcates of the required or permitted by law with rasped o the
Equipment; (d) to maintain the Equipment in good operating oori hlim repair and appearance; and (e) to furnish Lessor promptly with such financial statements and other informal on as
Lessor may reasonably request from time to time.
6. TERMINATION VALUE: "Termination Valera" of the Equipment Is the value of the Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have exec
Termination Value Table with rasped to this Lease, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or
amounts payable under this Lease as of that date. If Lessor and Lessee have cal executed a Termination Value Table with reaped to this Lease, the Temhination Value as of ant
shall meant an amourt equal to the total of all accrued and unpaid Rental Payments and all other amounts then due and remaining unpaid plus the greater d: (a) the then Fair A
Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment as of that date in the same condition as when received by Lessee, reasonable wear an
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrue
unpaid Rental Payments and an other amounts than due and remaining unpaid plus the then present worth of all unaoaued Rental payments plus either 17 the Purchase Option
or (t) 9 no purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when rex
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this L
Present worth shat be determined by discounti rig such unaarued Rental Payments from their respective due dates at the Rated --__.K._00%.
7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction of the Equipment from the dab of its delivery until Its return. If, for any reason, any r
Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall (a) knmedlately and fully Inform Lessor with regard thereto, and (b) promptly pay to U
the Termination Value calculated as of the dab of payment thereof. Any amounts actually received by Lessor from Insurance or otherwise on Lessee's behalf for
loss or damage shall be applied to reduce Lessae's obligation under this paragraph. Except as expressly provided herein, the total or partial destruction c
Equipment or the total or partial lose of use or possession thereof to Lessee, shall not release or relieve Lessee from Its obligations and flabilltes under this L
Lessee agrees to procure and maintain at all limas on and after the Effective Dab such liabliity, physical damage and other Insurance as Lessor may requite from th
time. Lessee agrees that aft such insurance shall be In form and amount and with Insurers satisfactory to Lessor, and that Lessee vAll deliver promptly to U
cerdscatse or, upon request, policies satisfactory to Lessor evidencing such Insurance. All Idabtlty policies shall name Lessor as an additional Insured, and all phl
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provkle that Lessor's In
therein shall not be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain the Insurer's agreement to give Lessor at least 30
prior written notice before cancellation or any material change in the policy shall be effective as to Lessor, whether such cancellation or change Is at the directi
Lessee or the insurer.
6. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other governmental changes (inducting any penalties and interest, and any fees for titles or regist ion)
levied or assessed against Lessee. Lessor or the Equipment. upon or with reaped to the lease or the purchase, use, operation. leasing, ownership, value, return or other di n of
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Lessee in writing the 'se,
Lessor will file an returns and remit all personal property taxes applicable to the Equipmeot. Lessee agrees to reimburse Lessor for cep such personal property taxes immediately
receipt of Lessors invoice inducting without limitation such taxes assessed or arising during the term of this Lease but renhited by Lessor after the termination of this Lease. At L sots
option, Lessee agrees to remit, slang with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessors reasonable estimate of the personal pmperty es
that will be assessable against the Equipment during the succeeding tax year. Any such amounts rented to Lessor will be credited by Lessor against Lessee's obligations and this
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus will be 'ther
credited to Lessee's other obligations to Lessor or returned to Lessee. If requested, Lessee agrees to file promptly on behalf of lessor all requested tax returns and repots conict ring
the Equipment in form satisfactory to Lessor, with alt appropriate governmental agencies and to mail a copy thereof to Lessor concurrently with the filing thereof. Lessee further tees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessment and
other governmental charges. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the termination at this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at all times remain in Lessor and Lessee will at all times, at its own and
expertise, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and dew from all such Id
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or lermof this Lease, Lessee, at Lessee's sole expense, shall return the Equipment unencumbered to Lessor at a place to be designated by Lessor, and in the same condition areceived by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Lessee shall, upon Lassoes request, and at Lessee's own expense, firmly affiEquipment, in a conspicuous place, such label, sign or other device as Lessor may supply to identify Lessor as the owner and lessor or the Equipment. If Lesfalls to perforand promptly any d its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shall rat be obligated to do so, account of Lessee to protect the interest d Lessor or Lessee or both, al Lassoes option. Any amount paid or expense (including reasonable W1cnWs fees), penalty or othher incurred by Lessor in such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and wi not
be removed from said location without the prior written consent of Lessor. Lessor shall have the right to insped the Equipment at all reasonable times and from time to time as sor
may require. Lessee will not son, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this L we
without Lassoes prior written consent. Lessor or any assignee or successor of Lessor shall have the right to transfer, sell or assign all or any portion of this Lease or the indebted ess
and/or obligations hereunder, without notice, acknowledgement or onset from Lessee. LESSEE WAIVES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT WILL 40T
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS OR
BREACH OF WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UNDER HIS
LEASE EXCEPT OFFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor. Lessee agrees at it
will not, without the prior written consent of the assignee, purchaser or secured party, 0 prepay any amounts owing under this Lease; (N) modify or amend this Lease; or Nh a"10 "at
any rights which are exercisable orgy with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the optic n to
purchase all, but not teas than all, of the Equipment described in the Leans on the Option Date (as specified on the first page of this Lease) upon the following terms and conditions (1)
Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at least ninety (90) but not more than one hundred twenty (120) days prior to the Option ate
and (2) Lessee has paid all Rend accruing prior to the Option Date on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before the Option
Date will render the Lessee's options to purdtase null and void. The purchase price for the Equipment on the Option Date shafl be the then Fair Market Value of the Equipment which,
for purposes of the Option Date only, Lessor and Lessee agree shall be the Term Option Prim (as specified on the first page of this Lease). Lessor and Lessee agree that the Option Price is a reasonable prediction of the then Fair Market Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shall be payable lemn
the
Option Date in cash or, at Lessee's option, as provided In Paragraph 1 tB of this Lease.
Pape 2 Of 5 of Leese Aer"Manl oared I t121105 behmen K MPTON CONSTRUC71DN MANAGUMEM Ura1TED
WWI
OPA00700 CLEVELAND BROTHERS EQUIPMENT CO INC. _ Msar) which Wbdas, wNhoul Nnaartion, an Nab Of E9Lr4rrharN With ft IolowYe a" rhumbar.
704p0/ •3 Rev L sti
1ssN004.wpd Us LeasslFtKadd attee ORIGINAL FOR CITICAPITAL
1.17
1.247902.2.0 XC:20051107071451
B. Conversion Option During Term. In the event Lessee exercises Lessee's option to purchase the Equipment on the Option Date as provided in paragraph A above, Loam may
elect to pay the Tenn Option Price to Lessor upon the following terms and conditions: (1) Lessee agrees to pay the Tenn Option Price in the equal consecutive monthly instal nts
for the Conversion Tenn as indk an the first page of this Lease with the first such instalment payable on the Option Date and each succeeding installment payable an a like date
of each month thereafter until fully paid and provided that the final instalment shag be in the amount of the then remaining unpaid balance. In addition to the payment provided ve,
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this base) payable monthly the
unpaid principal balance: (2) Lessee agrees to give Lessor written notice of Lessee's election pursuant to this Paragraph at least ninety (90) but not more than one hundred my
(120) days prior to the Option Date; (3) lessee grants to Lessor, its successom and assigns, a security interest in the Equipment complete with all present and future attach nts,
accessories, replacement pant, repairs, additions, and all proceeds thereof, all herein referred to collectively as "Collateral" to secure payment and performance of the Indebt ness
and all absolute and all contingent obligations and liabilities of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor" and Lessor a "seared party" as hose
terms are used under the Uniform Commercial Code; (5) Lessee agrees, at its own cast and expense, to do everything necessary or expedient to period and preserve the rity
interest of Lessor granted hereunder, and (6) All of the terms and provisions of the Lease shag be and retrain in full tome and effect except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lessee may purchase all, but not less than all, of the Equipment described in the Lease at the expiration of the Term of the L upon
the following temts and conditions: (1) lessee agrees to give Lessor prior written notice of Lessees intent to exercise this option to purchase at least ninety (90) but not more th none
hundred twenty (120) days prior to the expiration of the Term of the Lame and (2) the purchase price to be paid to Lessor for such Equipment stall be the then Fair Market Val a (as
defined below) of such EquipmoM, plus an amount equal to the Rental Payments then unpaid under the terms of the Lease, plus applicable taxes, if any, on the above sum, all yable
in cash, Failure to give such notice or to pay the end of term Option Price on or before the expiration of the Tenn of the Lease will render the Lessee's options to purchase n II and
void. Upon such payment, Lessor will execute and deliver a bill a sale conveying We to the Equipment to Lessee on an 'AS IS, WHERE IS "BASIS, WITHOUT REPRESENTA IONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The term 'Fair Market Value" as used herein ahal be determined on the basis of, and shall be equal in amount to, the value which the Equipment mould
obtain in an arms length sale transaction between an informed and willing buyer-user (otter than a buyer currently in possession) and an informed and willing seller u er no
compulsion to sell and assuming that the Equipment is then in the condition required under the terns of the Lama. If on or before sixty (60) days prior to the expiration of the T run of
the Lease, Lessor and Lessee are unable to Was upon a detsmtination of the Fair Market Value of such Equipment- such value shall be determined in accordance with the for going
definition by a quailed independent appraiser selected by Lessor. The appraiser shall be instructed to make such detemrination within a period of 45 days following appointment, but in
no evert later than 10 days prior to the expiration of the Term of the Lease, and shall promptly communicate such determination in writing to Lessor and Lessee. The a sets
determination of such Fair Market Value shall be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be bome by Lessee.
13. PRIME RATE: The "Prime Rate" will mean the Prime Rate as published from time to time in the Money Rates section of The Weft Stmt Joumef as the base rate on rate
loans. if more than one Prime Rate or a range of rates is published, the Prime Rate will be highest of the published rates. In the event the Prime Rate as published in The Wad treat
Journal ceases to exist or The Wall Street Journal ceases to publishing a Prime Rate, CitiCapital will substitute a comparable index that is outside the control of CitiCapital. In the event
of an error by The Wale Street Joumal, the "Prime Race" will be' aud upon the Prime Rate as oo reete d.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shag be entitled to modified accelerated cost recovery (or depreciation) deductions with respell to the Equipme and
should, under any circumstances whatsoever, except as speefiea9y, set forth below, either the United States government or arty state tax authority disallow, eliminate, duce,
recapture, or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (or depreciation) deductions with respect to any Equipment, Lessee shag then Incl mnlfy
Lessor by payment to Lessor, upon demand, of a sum which shall be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full term of this ease)
the same after-tax cash flow and after-tax yield assumed by lessor In evaluating the transactions contemplated by this Lease (referred to hereafter as 'Economic Retum") that essor
would have realized had there not been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed y the
governmental authoriy with respect to such kiss or disallowance. In addition, K Lessee shall make any addition or improvement to any Equipment, and as a result thereof, L sor is
required to include an additional amount in its taxable income, Lessee shall also pay to Lessor, upon demand, an amount which shall be equal to the amount necessary to perms essor
to receive (on an alter-tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or Improvement not been made, essor
and Lessee agree that the Class Life of the Equipment for federal income tax purposes is as indicated on the from side of this Equipment Schedule. Lessee shag not be obligated o pay
any sums required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from one or more of the following events: (1) a allure
of Lessor to timely claim modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lessees tax return, other than a failure resulting from the L s
determination, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cost recovery (or depredation) deductions, or (2) a failure of essor
to have sufficient gross Income to tench from accelerated cost recovery (or depredation) deductions- Lessor agrees to promptly notify Lessee of any claim made by any federal or
state tax authority against the Lessor with respect to the disallowance of cost recovery (or depredation) deductions.
All amounts payable by Lessee pursuant to this section shall be payable directly to Lessor. AN the indemnities contained in this section shall continue in full force a effect
notwithstanding the expiration or other termination of the Lease In whole or In part and are expressly made for the bereft of, and shall be enforceable by, Lessor. Lessee's obi ations
under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same mater under some other agreement by anothparty.
The obligations of Lessee under this section we expressly made for the benefit of, and shall been forceable by. Lessor without necessity of declaring the Lease in default and essor
may initially proceed directly against Lessee under this section without first resorting to any other rights of indenaification it may have.
15. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations to Lessor, such default shall be considered an abandonment of all options herein and all opti s
herein shall immediately expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unless n
writing and signed by an officer of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shag occur if., (a) Lessee fads to pay when due any amount owed by it to Lessor or any lute
(including, without limitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due arty a nt
owed by it to Lessor or any affiliate (including, without limitation, any direct or indeed parent, subsidiary or sister entity), successor; (b) Lessee breaches any wanenty or pri vision
hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and any affiliate (including, without limitation, any direct or i direct
parent, subsidiary or sister entity) successor or assignee of Lessor, (c) Lessee ceases to do business as a going concern, becomes insolvent, makes an assignment for the be afit of
creditor, admits in writing its inability to pay its debts as they become due, or takes advantage of any lair for the relief of debtors; (d) any property of Lessee is attached; (e) a hion
in bankruptcy or for an amangemen, reorganization, composition, SWicialion, dissolution or similar relief is Cried by or against Lessee under any present or future statute, or
regulation; (t) Lessee or its shareholder We any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or for any substantial pa of its
property; (h) if there sham omr an C) appropriation, (1) confiscation, (ii) retention, or (iv) seizure of control, custody or possession of the Equipment by any governmental ocity
including, without Imitation, any municipal, state, federal or other governmental entity or any governmental agency or instrumentally (all such entities, agencies and Insfrume aihles
shag hereinafter be collectively referred to as "Governmental Authority'); (i) if anyone in the control. custody or possession of the Equipment or the Lessee is accused or all or
charged (whether or not subsequently arraigned, Ifhdided or convicted) by any Governmental Authority to have used the Equipment in connection with the commission of any crime
(other than a misdemeanor moving violation); (j) there shall be a material adverse flange in any of the: (t) condition (financial or otherwise), business, performance, s,
operations or properties of the Lessee (li) legality, validity or enforceability of this Lease, (In) perfection or priority of the ion granted in favor of to Lessor pursuant to this Le , (iv)
ability of the Lessee to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are Impaired; (k) there she be a
death of a majority owner of Lessee or a guarantee of the obligations of lessee under this Lease; or ()) except for the security interest Ian or reservation of tide in favor of Less" or as
otherwise granted herein, there shall be any ben, claim "encumbrance on any of the Equipment searing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee sham be in default hereunder and Lessor may, at is option, with or without notice to Lessee (a) declare all sums due and to me
due hereunder and all other sums then owing by Lessee to Lessee to be immediately due and payable; or assignee of Lessor under any other document, agreement or instrumil ; (b)
declare all other debts then owing by Lessee to Less" or arty affiliate (including, withal Imitation, any direct or indirect parent, subsidiary or sister entmyy3nafessor or assignee of
Lessor to be immediately due and payable; (c) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by Lessee any
and all provisions of this Lease and to recover the damages for the breach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Le 's
expense at such piece as Lessor may designate which is reasonably convenient to both pates; (e) exercise one or more of the rights and remedies available to a secured party under
the Uniform Commercial Code, whether or not this transaction is subject thereto; (0 enter, or its agents may enter, without notice or Mobility or legal process, into
Pape 3 of 5 of L"se Agreement dated 11121M between- HAMPTON CONSTRUCTION MANAGEMENT, UMffED (Lessee) a id
_ CLEVELAND BROTHERS EQUWUENr CO INC. (Lasso) which i ckxles. MNhmq f rwatim. an item of Equipment with the fa0awinp serial nmbe .
OPA00300
Lessee's Initi its
704M -3 Rev08(M
rseW .wpd Lift LesselFbed !fate
1.17 ORIGINAL FOR CITICAPITAL 1.247902.2.0 XC:20051107071451
any premises where the Equipment may be, or is believed by Lessor to be. and repossess all or any part thereof. disconnecting and separating the same from any other propeft I
e and
using all force necessary and permitted by applicable law, Lessee hereby expressly waiving all ft~ rights to possession of the Equipment after default and all claims for iin juries
suffered though or loss caused by such repossession; andfor (g) apply any security deposit or oilier amounts told by Lessor to any indebtedness of Lessee to Lessor.
In addition, Lessee agrees to pay, to Lessor, as liquidated damages for loss of the bargain and not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, hol ding,
preparing lor sale, selling and the like, inducing reasonable atiomeys' fees and other legal expenses, less (3) any amount actually received by Lessor from the re-lease, sale or er
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained will require Lessor to rel . sell
or otherwise dispose of the Equipment. No remedy of Lessor hereunder shelf be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in ition
to every other remedy. A waiver of a clef" shelf not be a waiver of arty other or a subsequent default. If allowed by law, "the reasonable fees for attorneys' retained by Lessor shall
include the amount of any flat fee, retainer, contingent fee or the hourly charges of any atlomay retained by Lessor in enforcing any of Lessor's rights hereunder or in the 'on
or defense of any Iitigabon related to this Lease or the transactions contemplated by this Lease. All rations to Lessee relating hereto will be considered received when deliver A in
person or malted to Lessee at the address sot forth in this Lease, or at any later address designated in writing by Lessee. Lessor may sell the Equipment wilhout giving any warn tles
as to the Equipment. Lessor may disclaim any warranties of tide, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the comm, rdal
reasonableness of arry We of the Equipment.
18. NDEMNiTY: Lessor (which term as used herein includes Lessor's successors, assigns, agents, and servants) shall have no responsibility or liability to Lessee, its succes ors or
assigns or any other person with respect to any Liabiides (as "Liabilities" is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and nse,
to indemnity, defend, proted and save Lessor and keep it harmless from and against, any and all Liabilities. The term "UetrFdes' as used heroin shag include any and all is Allies,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature, inducing legal fees and expenses, (whether or not
any transaction contemplated hereby is consummated) imposed on, Incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or oth rwise)
and in any way relating to or arising out of this Leese or the selection, manufacture, purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use, ration, opt condition, servicing, maintenance, repair, improvement alteration, replacement, storage, return or other disposition of the Equipment (including without imitation, (7 claims as a suit of
latent or patent defects, whether or not discoverable by Lessor or Lasses, (ii) chime for trademark, patent or copyright infringement, and (ii) tat dams of any kind (whether be ad on
Lessor's alleged negligence or otherwise), inducing calms for injury or damage to property, or injury or death to any person (inducing Lessee's employees) or, for any claim or ability
hereby indemnified against. The indemnities arising under this paragraph shall survive payment of all other obligations under this Lease and the termination of this Lease.
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER. EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (O ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEES OR LESSOR'S NAME' (a) PREPARE, EXECUTE AND SUBMIT ANY NO'I E OR
PROOF OF LOSS IN ORDER TO REAUZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGREE ENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT. IN LESSOR'S OPINION,IS NECESSARY TO PERFECT ANDiO GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LESS E TO
LESSOR; AND (e) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT THE
PROCEEDS OF THE SALE LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coup) with
an Interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such docu erns,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest In Equipment and Lessors rights he rider,
including such documents, writings, records and assurances as Lesser may require for Ming or recording. Lessee authorizes Lessor or any officer, employee or designee of Le sor or
arty assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or arty officer, employee or desi ee of
Lessor or any assignee of Lessor (or any designee of such assignee) to file financing statements covering assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint venture, or other entity mein
collectively, the "Entity'), including, without limiting the generally ofthe foregoing, lessors parent or any affiliate or any subsidiary of Lessor and any credit reporting agency o other
entity whether or not related to lessor for any purpose, Information about Lessee's accounts, credit application and credit experience with Lessor and Lessee authorizes any E lity to
release to Lessor arty information related to Lessee's accounts, credit experience and account Information regarding the Lessee. This shaft be continuing authorization r all
present and future disclosures of Lessee's account information, credit application and credit experience on Lessae made by Lessor, or any Entity requested to lease
such Information to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shall not be required to offer lessee the option of paying any of Lessee's obligations to Lessor through printed checks 'Debit
Transactions") drawn pursuant to this authorization upon Lessee's checking account, using Lessee's checking account number, bank routing code and other intonation which essee
provides to Lessor prior to the first Debit Transaction. Lessee sullarizes Lessor to initiate Debit Transactions from Lessee's checking account in the amount necessary to pay rental
payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by Len or, plus
a fee of ten dollars ($10.00) for each Debit Transaction initiated by Lessor, In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable u er this
provision shall be limited andfor restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon prior writt notice
addressed to Lessee's last known address as shown on the records of Lessor and such increase or decease shall be effective as stated in the written notice. Unless prohi led by
applicable law, Lessee's continued use of Debit Transactions after the effective date specified in such notice shall conclusively establish Lessee's agreement to pay no , Debit
Transaction fee stated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer on any printed check d in
accordance with this authorization. Until cancelled by Lessee, We authorization shall be valid for all Debit Transactions Lessor initiates in payment of Lessee's obligations herau er or
under any other present or figure agreement with or which is held by Lessor. This authorization may be canceled at any time by Losses giving at least three (3) business da s prior
written notice to Lessee's bank and Lessor. Payment by Debit Transactions is not required by lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; however, it for
urrppoosses of perfection, this contrad is interpreted by any court as a lease intended as security, Lessee grar?ts to Lessor, is affiliates (including, w out
Pmdation, any tired or indirect are nt, subsry or sister enGtyl, successors and assigns a security interest in the Equipment to secure the ppayymme and
d and character, whether now existing or hereafter arising, and whether 'red,
performance of alt debts and all Iiablltties of Lessee to Lessor o every
c k,
nndirecl absolute, contingent, primary, stroondary, or otherwise, or to any affiliates (including, without limitation, any direct or Indirect parent. subsid or
sister entitysuccessors or assigns of Lessor, now exlstmg or hereafter ansing, wwhether under this Lease or any other agreement, and whether due dire or
by assignment. The security interest granted herein shall continue to be effective regardless of any retaking or redelivery of the Equipment to Lessee, pon
anrr assignment of this Lease by Lessor, the assignee shat! 'n,
be deemed the Lessor for purposes of this provision. All payments made by Lessee to L ssor
reference to this Lease shat be appled first W- any indebedness which is not secured, then to late charges then to any other fees or other a unts
payable hereunder other than purchase money debt, unfit all of such indebtedness is paid in full, and then to purchase money debt. This provision co trols
over any conflicting provision or language In this Lease or in any other agreement between Lessor and Lessee unless the parties mutually agree in son in a
subsequent agreement to override this provision. (B] Any provisions hereof contrary to, prohitltted by or invalid under applicable laws or regulations sh 11 1
inapplicable and deemed omitted heral om, but shhat not invalidate the remaining provisions hereof. (C) This Lease and any addenda referred to rein
constitute the entire agreement of the parties hereto. No oral agreement, guaranty, promise, condition representation or warranty shall be binding. All prior
conversations, agreement or representations related hereto andlor to the Equipment are superseded' hereby, and no modification hereof shah t a bl ding
unless In writing and signed by an authorized representative of the party to be bound.. (D) The onlyy copy (off this Lease that will constitute "chattel pap for
U
QSE TO ANY NCommercial ECU E PARgTYnaOTHER THAN CiTICAPITrAL COMMERCIAL"LEASING CAORPOi ATIONN ORI SFAFFILI TES
("CRICAPITAL") VIOLATES THE RIGHTS OF CITICAPiTAL.
Z3. RENEWAL: Unless Lessee notifies Lessor In writing at least ninety (90) days prior to the expiration of the Term of lessee's intention to return the Equipment or to exercise any
option to purchase, or Lessor notifies Lessee in writing at least ninety (90) days prior to the expiration of the Tern of Lessors intention to terminate this Lease, this Leas will
automatically renew and continue on a month to mash basis fallowing the initial Term ("Renewal Term') tmdl such time as either Lessor or Lessee provides the other party wi h at
least ninety (90) days prior written notice of that padys intention to terminate this Lease. Rental Payments will continue to be due and owing until expiration of such notice pe iod.
All of the terms and provisions of this Lease shall govern during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shelf automat mily
expire on the expiration of the Term and shall be inapplicable to any Renewal Term.
Pape 4 of 5 Of Lease go?sy?pd dated 1112IMS between HAMPTON CONSTRUCTION MANAGEMENT, UMMM - (losses) and
CLEVELAND aROTHERS EQUIPMENT CO.. INC. (Lessor) which includes, without Wnilafti, an item of Equipment vrith the fdlowkq serial number.
rrA0a9a0
iW ss 4.wpd Lift Lease/Fe" Late ORIGINAL FOR CITiCAPITAL
1.17 1.247902.2.0 XC:20051107071451
24. RETURN OF EQUIPMENT: If Lessee does not exercise, or Is precluded from exercising, the option to purchase the Equipment 01 the expiration of the Term of any fRR
Term of this Lease, Lessee shall. at Lessee's sole coat and expense, return al. but not less than all, of the Equipment to Lessor im edately upon the expiration of the TenRenewal Term of this Lease pursuant to the teals and Conditions contained in Lessors Standard Return Cort6fons for equipment similar to te Equipment suNild to this copy of %ttlich furs been deiwred to Lessee in conjunction with this Lease). It Lessee does not surrender the Equipment to Lessor as herein provided, Lessee will be in defaLease is fo such Equipment, and Lessee shall pay Lessor, as liquidated damages and not as penalty, an amount equal to one hundred ten petcant (110%) of the MonthlPayment applicable to such Equipment. Such payment shall commence with the math immediately following the end of the Term or any Renewal Term and shall continue tmonthly uMd the Equipment is returned to Lessor. Lessee agrees that such liquidated darmages are a reasonable estimate and far compensation for the costs, expenses, value exposure and other lasses, which are incapable of an axed determination, incurred by Lessor as a result of lessees retaining possession of the Equlprnent beyond ththe Term a any Renewal Term. Notwithstanding the foregoing, Lessor shall have the fight to obtain immediate possession of the E
any Renewal Term for such Equipment. kdpmeM at srly time aver the end a the 25. LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability company, limited partnership or other registered organzation, Its state of organization is in the stab set
forth on the last page of this Lease: (b) if Lessee is an individual, hl&%w principal place of residence is at the address set forth on the last page of this Lease: (c) if Lessee ' an
organization, its pace of business or it it has more then one place of business. Its chief executive office is located at the address set forth on the last page of this Lease. Lessee
agrees that it will not, without the prior written consent of Lessor, charge its state of organization if it is a corporation, limited labiity company, limited partnership or other regist -fW
organization or the location of its chief executive office or its place of business if t is an organization. If lessee is an individual. Lessee must ratify Lessor in writing of a change in
hisi'her principal place of residence 30 days prior to such charge.
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the ad"
specified on the related invoice may be replaced by Lessor with a substitute Inartrumenl of equal amount and presented to Lessee's financial institution for payment from the andu'rit
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified an the related invoice, then L see
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal amouil and present the substitute instrument to Lessee's financial institudo for
payment from the account referenced on Lessee's check.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CMCAPITAL
To help the United States Govemment fight terrorism and money laundering. Federal law requires us to obtain, verify, and record Informat!
that Identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open a
account or establish a relationship, we will ask for your name, street address, date of birth, and Identification number, such as a social secs
number or taxpayer Identification number. For businesses, we will ask for the business name, stroet address and tax Idantiticatlon numbs .
Federal law requires us to obtain this Information. We may also ask to see your driver's license or other Identifying documents that will all
us to identify you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this tease are absolute and uncondiflonal under all circumstances and regardless of any failure of operation or to
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 31`18105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use of the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in 1111
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WITH L
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED LESSOR: CLEVELAND BROTHERS EQUIPMENT CO., INC.
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Date: 1112tms Federal Tax IDS or SSN: 251800323
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Date: 11r21ro5 Federal Tax 10 #:
Date of Birth:
(Individual/Sole Proprietor)
State of Organization- PA
Page 5 of 5 of Lease Aprsemerd dated 11121105 between HAMPTON CONSTRUCTION MAN GfM1ENT LIMITED (Losses)
CLEVELAND BROTHERS EQUIPMENT CO INC. (Lsamr) which ind des, whhait SAkaden, an item of EgWM*rd with to following s no member,
GPAa0300
704004'3 Rev 092004
Isa04004.wpd Lin LeasafFinad Rate ORIGINAL FOR CITCAPITAL
1.17
1.247902.2.0 XC:20051107071451
EXCAVATOR STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration ofthe Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnualAllowed Hours'), Lessee agrees to pay additional rental equal to a mon y Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the penod of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: Loso
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion pproperly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed 8om the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Undercarriage. Track components, including rails, pads, sprockets, idlers and rollers shall have at least
50% wear line remaining in accordance to measurements per the manufacturers guidelines.
C. Tires. All tires will be of the same original size, typ and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that pc as upon delivery to Lessee. All tires will have no
missmg or damaged parts, gouges or section repairs anill have at least 50% of tire wear remaining in usable
condition.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minunum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysts
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including, but not limited to, pumps,
motors, planetaries, and wet brake systems will ea mi good condition and operate quietly without vibrations or
leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and sto or hold machine safely during normal operation No drums or other braking
components will be damagedp or cracked.
H. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder rods, or worn out bushings/pins. Boom cycle times and steering
functions must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
3. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Boom and stick must be straight and in good condition with no visible repairs.
Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agents)
during nomtal business hours for purposes of a detailed appraisal/inspection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT. LIMITED LESSOR. CLEVELAND BROTHERS EOUIPMENT CO INC
By: BY 4 4
Title: ??s!? Title:
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
citicapital%
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
11/21105 3118105
Address: 3607 HARTZOALE DR Guarantor(s): Date of ua n
CAMP HILL PA 17011 HARRY 1. MORRIS JR i? ?L f
r l
MuTment: Monthly Rental:
C TERPILLAR HYDRAULIC EXCAVATOR 318CL SIN GPAOt M
1,927.02
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and Its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located a the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, acces ries,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lessee with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or ther
documents, instruments or certificates executed or delivered in connection with the Lease;
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Document , all
deposits or advance rentals made under the Documents, and all other amounts (whether payable under any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments a all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Valu (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same conditi as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as i the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount ual
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then pr nt
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease or no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Leas ) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the normal use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Parag aph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments from heir
respective due dates at the rate of o.oo %. Notwithstanding the foregoing, in the event that the Lessee and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value s of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts pay able
under the Lease as of that date.
Page 1 of 3 of Mb918ft9§ % 11/21ro - between
(Lessee) and
with the following serial number GPA00300
HAMPTON CONSTRUCTION MANAGEMENT, LIMBED
(Lessor) which includes, without (imWon, an item of
701306
1.00
1.247902.2.0 XC:20051107071451
CmCAPrrAt Is a service mark of Cltlcorp. A member Of
2. Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignors right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's right and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without affecting
assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Assi nor's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated under the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adju any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for'this Assignment. From this date forward, Assignor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substit a or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all tices
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all o ginal
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any f its
obligations under any of the Documents.
Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution o this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any inter st in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoever the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addre ses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties t the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all origin Is of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with II its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, co nter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipmen has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rig is of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental or Cher
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in ca ;h or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor; the Equipmen was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, and was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor h no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a default
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will con inue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause uch
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security interest or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording document and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action which may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agreement
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligations with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assigno will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenan s or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protec the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receiver or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to tender the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Documents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the da a of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid ren s or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorneys' ees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11/21105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which Includes, without limitation, an item of Equipment i-vith
the foflowing serial number GPA00300
701306
1.00
1.247902.2.0 XC20051107071451
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equip ent,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any ki d in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any ki d in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to s re
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise a reed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assign r to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be het by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreement with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event o any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full erm
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value calculated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount aid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereun r,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any of er
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Docume is
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expen s
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attomeys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligate to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waive of
any other default. All of Assignee's rights are cumulative and not altemative. No waiver or change in this agreement ill
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptant of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rig is
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assig e
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHETHER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF ANY
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE WILL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVISION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR TliE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR A Y
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGNO 'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11/21/05
EQUIPMENT CO.INC.
By: _
Title:
Page 3 of 3 of Assignment of Lease dated 11121/05 been HAMPTON CONSTRUCTION MANAGEMENT. LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of Equipment
the following serial number GPA00300
701306
1.00
1.247902.2.0 XC:20051107071451
citicapital
DELIVERY AND ACCEPTANCE CERTIFICATE
To: (" CitiCaphal
Reference is made to the contract dated
undersigned and CLEVELAND BROI
(the "Contract") between the
(the "Dealer') for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
1. The Property was delivered to undersigned at the location designated in the Contract on
2. All installation and other work necessary for the proper use of the Property, if any has been completed.
3. The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
(Date)
4. The undersigned's obligations and liabilities under the Contract to citicapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. Citicapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0,00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 167.489.36 and the present unpaid balance or total rentals is $ 167,489.36
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of CiliCapital
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Buyer
Dated -- -1-i12V05- (Name of individual(s), corporation or partnership.)
By
(If corporation, authorized officer must sign ond-s64 corporate title. If partnership, a
gen nw must sign. If owner(s), show which.)
Title
Co-Buyer
By
(If co-buyer, co-partner or w-officer, sign here and show which.)
Title
625024 Rev. 7-92
Dealer Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp. Arnemberof crtlgr`XOT
1.247902.2.0 XC:20051107071451
;?
Lift Lease Agreement
Name and Address of Lessee ("Lessee'
HAMPTON CONSTRUCTION MANAGEMENT. LIMITED
3607 HARTZDALE DR
rAUP HILL PA 17011
citicapital? i
Name and Address of Lessor ("Lessor)
CLEVELAND BROTHERS EWWMENT CO., INC.
5300 PAXTON ST
HARRISBURG PA 17111-2525
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR TRACK LOADER 9530 SIN BOX00946
LESSOR'S COST
Equipment Total Cost $
Shipping & Handling Cost $
Installation Cost $
Other (Specify)
A. TERM: 66 Months following the first day of the month
after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
0 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
D. ADMINISTRATIVE FEE: $ 100.00
E. RENTAL PAYMENT: 66 Payments of $ 2,428.41
PLUS APPLICABLE TAXES
F. SECURITY DEPOSIT: $ 0.00
G. 5 MACRS Class Ufa of Equipment
The Termination Value Table attached to this Lease Is a part of
and Incorporated Into the terms of this lease.
H. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LES'
INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPMI
THE REMAINING RENTAL PAYMENTS ARE PAYABLE APNIN*GON
FOLLOWS: C1?"
MONTHLY ON THE FIRST DAY OF EACH MO BEGI THE FIRST DAY OF JANUARY , 06 OIYR).
Each installment in the groups below is payable on a consecutiv
1 advance payment(s) of $2,428.41 on 12110112005
65 Installment(s) of $2,428.41 commencing on 0110112006
TERM OPTION: (If M blank or marked "NA". Paragraph(s) 11A and/or V
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 65,655.71
Conversion Term %i4 Months
Conversion Payment $ 2.743.99
Conversion Rate: (check one and initial)
El Fixed % Paragraph 13 of this Lew)
® Floating _ 1.-% Wwum Prim raw (as dsened h
Option Date:
Option Price S
Conversion Term Months
Conversion Payment $
Conversion Rate: (check one and initial)
? Fixed %
? Floating % Pius the Prima Mar IL
Paragmph 13 of this L
TERMS AND PROVISIONS OF LEASE
monthly b
are
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("We Loseah and the obligations and liabilities of Last" under this Lease are elfectivtt an date or
Lessors acceptance of this Lease ("Efra tlve Dab"), even though the Tenn and Lassoe's obligation to pay the remaiNng Rental Payments may begin on a later date.
2. LEASE: Lessor hereby teases to Lessee, and Lessee hereby hires and takes from Lessor, under and skbied to the terns and provisions hereof until the and of the Term specified
above ("Term'), the personal property described above and on wry supplemental schedule(s) Identified as constituting a pan of this lease (herein, with all present and future
attachments, accessories, reptacernent pans. repairs, and additions, and all proceeds thereof, referred to as "Equipment"). This Lease is for the Term commencing on t dale the
Equipment is delivered to Lessee. For the Term or any portion thereof. Lessee agrees to pay to Lessor aggregate rentals equal to the sum of an Rental Payments (including advance
rentals) in accordance with the Payment Schedule.
5. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments we payable without notice or demand. Ail amounts payable under this Lease to Lessor are at
Lessor's address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as okherwise specillcalhy provided herein, Lessee's an to
pay the Rental Payments and s1 other amounts dire or to become due under this Lease shall be absolute and uncondi lonal under sil circumstances, regardless of y set-cif,
countercialm, recoupment, defense or other dsim whatsoever. Any Security Deposit is held as seowrlly for Lessors obliget'ans and win be refunded in full, without I upon
oa rment In fug of those obligations.
Pape 1 of 5 of lease Agroemam dew 11121105 between HAMPTON CONSTRUCTION MANAGEMENT. LIMITED (Lessee and
CLEVELAND anOTNEAa EW NT CO, INC. (Lessor) which Induces, wehout firruls6on, an ism of Equipmsrd win the fdlaxirq serial number.
Le Initials
lasxoosrs
70a001 -3 ftev0e120o4 ORIGINAL FOR CITICAPITAL
1se01001.wpd L311 Lsase/Fned Rate
1.17 1.247646.3.0 XC:20051107071759
CITiCAPITAL is a service mark of Citicorp. Amember of c
,4
WHEEL/CRAWLER LOADER STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnualAllowed Hours"), Lessee agrees to pay additional rental equa ttoo Ee monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediate) repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: 800
2. Return Conditions
General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that type) as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs and -will have at least 50 /a of tire wear remaining in usable
condition.
C. Undercarriage. Track components, including rails, pads, sprockets, idlers and undercarriage shall have
at least 50% wear life remaining in accordance to measurements with the manufacturers guidelines.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
II
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including but not limited to,
differentials, planetaries, drop boxes/transfer cases and wet brake systems will be in good condition and operate
quietly without vibrations or leaks.
G. Brakes. The brake system includin the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold machine safely during normal operation. No drums or other braking
components will be damaged or cracked.
H. Hydraulic Equipment. All hydraulic pp s, cylinders, valves, pipe/tubinp and hoses must be fully operational
at rated capacity with no leaks, bent cylind rods, or worn out bushings/pins- Boom hoist times and steering
times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPSNOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessors agnts)
during normal business hours for purposes of a detailed appraisal/inspection. The inspection must spec111 ca !
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
0. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT LIKED LESSOR:
l
Sr•
By:
Title: ! F QS I J e iJ
To:
citicapital
DELIVERY AND ACCEPTANCE CERTIFICATE
(" CitiCapital
Reference is made to the contract dated 11121105 (the "ContracfJ between the
undersigned and CLEVELAND BROTHERS EQUIPMENT CO. INC.
( en esso
(the "Dealer") for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
1. The Property was delivered to undersigned at the location designated in the Contract on 3119M5
(Date)
2. All installation and other work necessary for the proper use of the Property, if any has been completed.
3. The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to Ciucapital as assignee of the Dealer will be absolute
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim available
to undersigned for breach of warranty or for any other reason whatsoever.
5. citicapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0,00 cash
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals was
$ 211.073.82 and the present unpaid balance or total rentals is $ 211,073.82
This certificate will supplement and not after the terms of the Contract and is given to induce Citicapital to purchase the
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and will
inure to the benefit of citicapital
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Buyer
Dated 11m us (Name of individual(s), corporation or partnership-)
By I_11'__J • kbl 1 rrCB-r-?i e ?-
(if corporation, authorized officer must sign and show co, to title. If partnership, a
genend?j rbrar must sign. If owner(s), show which.)
Title 1 eS l cL,, +-
625024 Rev. 7.92
Dealer Sale or
Lease 1.01
CmCAPITAL is a service mark of Citicorp.
Co-Buyer
By
Title
(If co-buyer, co-partner or co-officer, sign here and show which.)
A memberot atigroupl'
1.247846.3.0 XC20051107071759
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
citicapital ?
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease: Delivery Date:
1121I05 3118105
Address: 3607 HARTZDALE DR Guarantor(s): Datepf Gui anty:
1
11 HARRY I. MORRIS JR.
70
CAMP HILL PA
EQQuipmer% Monthly Rental:
(1) CATERPILLAR TRACK LOADER 953C SIN BSX00946 2,428.41
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment"), the
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and Its successors and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located at the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, acces sories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Less e with
respect to the Equipment;
(f1 "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements o r other
documents, instruments or certificates executed or delivered in connection with the Lease;
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Docume nts, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable und er any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments
d all
n
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market V Lie (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same Cond lion as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well a in the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amou equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then resent
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease
if no
r
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this L se) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the nor all use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Pa graph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments fta their
respective due dates at the rate of 2.00 %. Notwithstanding the foregoing, in the event that the Les a and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Val as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts yable
under the Lease as of that date.
Page 1 of 3 of'KAM648MORti 112110 between
(Lessee) and
with the following serial number BBX00946
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessor) which includes, without limitation, an Item of
701306
1.00
CrnCAPITAL Is a service mark of Citicorp.
1.247846.3.0 XC:20051107071759
2. Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assign all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's rig is and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without a ecting
Assignor's obligations to Assignee hereunder: (a) to collect and retain any and all Revenues, (b) to endorse Ass gnor's
. name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated un er the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adj st any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated under the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, signor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee m from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all notices
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all riginal
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desirable in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obligations
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any of Its
obligations under any of the Documents.
3. Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution f this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any interest in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clea of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever; Assignor will forever defend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoev r; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, add sses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties to the
Documents have the capacity to contract and none of such parties is a minor; Assignor is the lessor under the Lease, the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipme it has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or rights of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental o other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in sh or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor, the Equipment was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, an was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor as no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would constitute a efault
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will tinue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security inte est or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documen and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action whic may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan ag ment
or other agreement to which Assignor is a party or by which it may be bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not impair or constitute any waiver of any such warranty or of any of Assignor's obligation with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may me to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assig r will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covens is or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
4. Remedy Upon Breach. If any of the foregoing warranties are untrue, or if Assignor breaches any provision here , or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receive or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to ten r the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the Docu ents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the ate of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid ten als or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attomey ' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 11121105 between
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC.
the following serial number BBXOO946
701306
1.00
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessor) which includes, without limitation, an item of
with
1.247846.3.0 XC:20051107071759
5. Reserve and Security Interest. This Assignment constitutes an absolute sale and assignment of the Equi ent,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any nd in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any ind in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to cure
all obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise a reed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assig or to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be held by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreeme it with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor without
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreeme with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event of any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, acco nt or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its ful term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value talc dated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amour paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereu der,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any ther
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Documents
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expe ses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligat d to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mail to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from ti a to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waiv r of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreeme will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptan a of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all hts
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assi nee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHET ER
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF NY
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE LL
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVI ION
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR HE
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR NY
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGN R'S
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11121105
CLEVELAND BROTHERS EQUIPMENT CO. INC.
By: .
Title:
Page 3 of 3 of Assignment of Lease dated 11121105 between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which includes, without limitation, an item of
the following serial number BRX00946
701306
1.D0
with
1.247846.3.0 XC:20051107071759
??
Lift Lease Agreement
Name and Address of Lessee ("Lessee")
HAMPTON CONSTRUCTION MANAGEMENT, UMITED
3607 HARTZDALE DR
nwaao utt f PA 17011
.ook
citicapitalJ
Name and Address of Lessor ("Lessor')
CLEVELAND BROTHERS EQUIPMENT CO. INC.
5300 PAXTON ST
HARRISBURG
DESCRIBE EQUIPMENT FULLY
(1) CATERPILLAR HYDRAULIC EXCAVATOR 315CL SIN CJC01117
A. TERM: 66 _ Months following the first day of the month
after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
0 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to
the first of the following month calculated as Monthly Rental
divided by 30 times the number of days from the Delivery Date
through the end of the month in which the Equipment is delivered
plus applicable taxes.
0. ADMINISTRATIVE FEE: $ 100.00
E. RENTAL PAYMENT: 66 Payments of $ 1,816.22
PLUS APPLICABLE TAXES
F. SECURITY DEPOSIT: $ 0.60
G. 5 MAC RS Class Life of Equipment
The Termination Value Table attached to this Lease Is a part of
and incorporated into the terms of this lease.
PA
PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO LE:
INTERIM RENTAL IS PAYABLE UPON DELIVERY OF THE EQUIPN
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS
FOLLOWS:
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON
THE FIRST DAY OF JANUARY 06 (MOLAR).
Each installment in the groups below Is payable on a consecuti
1 advance payment(s) of $1,816.22 on 1210112005
65 installment(s) of $1,816.22 commencing on 0110112006
H.
TERM OPTION: (if left blank or marked "NA", Paragraph(s) I1A andfor 1
not applicable to this Lease) PLUS INTEREST AND
APPLICABLE TAXES
Option Date: 1211110
Option Price $ 49,241.92
Conversion Term 12 Months
Conversion Payment $ 4,103.49
Conversion Rate: (check one and initial)
? Fixed % Paragraph 13 of this Lease)
®Floating __ 1.00 %plua the PAme role bas defined i
Option Date:
Option Price $ -
Conversion Term Months
Conversion Payment $ -
Conversion Rate: (check one and initial)
U Fixed %
? Floating %s pies the Prime raft tas dinned
Paragraph 13 of this Laser
TERMS AND PROVISIONS OF LEASE
monthly b
are
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ('tfils Lase') and the obligations and Itabines of Lessee under this Lease are effective on thl date of
Lessors acceptance of this Lease ("Effective Date"), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE. Lessor hereby leases to Lessee, and Losses hereby hires and takes from Lessor, under and subject to the terms and provisions hereof until the and ofthe Term pecified
above ("Tenn"), the personal property described above and on any supplemental sit edule(s) Identified as constituting a pan of this lease (therein, with all present a future
attachments, accessories, replacement parts, repairs, and additions, and ail proceeds thereat. referred to as "Equipment"). This Lease is for the Term commencing on the date the
Equipment is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Payments (including advance
rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: Ali Rental Payments are payable withal notice or demand. AN amounts payable under this Lease to Lessor are yable at
Lessors address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided herein, Lessee's obl )ation to
pay the Rental Payments and all other amounts due or to become due under this Lease Shall be absolute and unconditional under all circumstances, regardless of a set-off,
counterclaim, rewupment. defense or other Claim whatsoever. Any Security Deposit is held as security for Lessor's obligations and will be refunded in full, without into at, upon
ns"renerd in hull d those oblieation&.
Page 1 d 5 of) ease Agreement dated 11R1r08 between _ HAMPTON CONSTRUCTION MANAGEMENT, LIMITED (Lessee
CLEVELAND BROTHERS EQUIPMENT CO., INC. (Lessor) which Includes. witlhoui Rnritation, on item of Equipment with the fotkr#&V serial number
C1C01117 Le s Initials
704004 -3 Rey0WOD4 ORIGINAL FOR CITICAPITAL
Isea1004.wpd Lift Lease/Fmed Rate
1.17 1.247888.2.0 XC:20051107071017
CITICAPITAL is a service mark of Citicorp. Amemberofcltf
PA 17111-2525
LESSOR'S COST
Equipment Total Cost $ 131
Shipping & Handling Cost $
Installation Cost $
Other (Specify)
131
4. DELINQUENCY CHARGES: For each Rental Payment or other sum due under this Lease which is not paid when due, Lessee agrees to pay Lessor a delinquency charge
calculated thereon at the rate of 1 112% per month for the period of delinquency or, at Lessons option. 5% of such Rental Payment or other sum due under this Lease, provided
such a delinquency charge is not prohibited by law, otherwise at the highest rate Lessee can legally obligate bad to pay andfor Lessor can legally tolled. Lessee agrees to rebm
Lessor invnediiately upon demand for any amount charged to Lessor by any depositary institution because a cheek, draft or other order made or drawn by or for the benefit of Le is
returned unpaid for any reason and, if allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the event applicable law limits or restricts the am nt I
such reimbursement and/or handling charge, the amounts chargeable under this provision will be limited and/or restricted in accordance with applicable law.
tt. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no representations or wami ntles as to the character of this transaction tax
or other purposes. Lessee acknowledges and agrees that: the Equipment is of a size, design, capacity and manufacture selected by Lessee; Lessor is not the manufacturer fire
Equipment or the manufadurves agent; LESSEE LEASES THE EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATI OR
WARRANTY. EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL. WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURAB L.ITY,
FITNESS OR SUITABILITY OF THE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IM LIED.
Lessee will not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or make any settenerd with the manufacturer or seller
to Lessor of the Equipment (both herein called "Seller") without Lesson's prior written consent: and the selection, servicing and maintaining of the Equipment shall be entirely at L see's
risk and expense. Lessee agrees, of its own cost and expense: (a) to cause the Equipmert to be operated with care and only by qualified personnel In the regular course of Lessee's
business; (b) to comply with all applicable laws, nubs and regulations retailing to the Equipment, with any published instructions or specifications of the Seller and with all of the t of
any Insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of We required or permitted by law with respect to the
Equipment; (d) to maintain the Equipment in good operating condition, repair and appearance: and (e) to fumish Lessor promptly with such financial statements and other informal on as
Lessor may reasonably request from lime to lime.
8. TERMINATION VALUE: "Termination Value of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have qFairM a
Termination Value Table with rasped to this Lease, the Temrnation Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentr
amounts payable under this Lease as of that date. if Lessor and Lessee have not executed a Temhination Value Table with respect to this Lease, the Termination Value ae
shall mean an amount equal to the total of all accrued and unpaid Rental Payments end all other amounts than due and remaining unpaid plus the greater of: (a) the then t
Value (as determined in accordance with Para graph 12 of this Lease) of the Equipment as d that date in the same condiition as when received by Lessee, reasonable wr
from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all d
unpaid Rental Payments and all other amo nts then due and remaining unpaid plus the then present worth of all unaecrued Rental Payments plus either Oe the Purchase .
or (ii) if no purchase option is offered, the Fair Market Value (as determined in aeeordanoe with Paragraph 12 of this Lease) d the Equipment in the same condition as wal
by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as in the condition required upon its return determined in accordance with this Lease.
Present worth shall be determined by discounting such unaccrued Rental Payments from their respective due dales al the Rate of 2.00 %.
7. INSURANCE- Lessee shall tear all risk of loss of, damage to, or destruction of the Equipment from the date of No delivery until Its return. If, for any reason, any tiro
Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall (a) immediately and fully inform Lessor with regard thereto, and Ib) prwnpty pay to Lessor
the Termination Value calculated as of the date of payment thereof. Any amounts actually received by Lessor from Insurance or otherwise an Lessee's behalf for such
loss or damage shag be applied to reduce Lessee's obligation under this paragraph. Except as expressly provided herein, the total or parts[ destruction o the
Equipment or the trial or partial loss of use at possession thereof to Lessee, shall not release or relieve Lessee from its obligations and liabilities under this ase.
Lessee agrees to procure and maintain at all times on and after the Effective Data such liability, physical damage and other insurance as Lessor may require from a to
time. Lessee agrees that all such Insurance shall be in form and amount and with Insurers satisfactory to Lessor, and that Lessee will deliver promptly to L ssor
certificates or, upon request, policies satisfact ry to Lessor evidencing such Insurance. AN Nobility policies shall news Lessor as an additional Insured, and all ph kal
damage policies shall provide that payment thereof shall be made to Lessor and Lessee as their Interests may appear. Each policy shall provide that Lessor's In rest
therein shall not be invalidated by arty sets, omissions or neglect of anyone other than Lessor, and shall contain the Insurer's agreement to give Lessor at least ?0 ys
prior written notice before cancellation or any maternal change in the policy shall be effective as to Lessor, whether such cancellation or change is at the directi n of
Lessee or the Insurer.
8. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other govammemal charges (including any penalties and interest, and any fees for Was or regi ration)
levied or assessed against Lessee. Lessor or the Equipment, upon or with rasped to the lease or the purchase, use, operation. basing, ownership, value, mum or other dispo tion of
the Equipment, or the rent, earnings or receipts arising therefrom, exclusive, however, of any taxes based on Lessors net income. Unless Lessor notifies Lessee in writing oth noise.
Lessor will file all returns and renit an personal property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor for all such personal property taxes immediate upon
receipt of lessors invoice including without limitation such taxes assessed or arising during the term of this Lease but remitted by Lessor altar the lamination of this Lease. At sloes
option. Lessee agrees to remit, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessors reasonable estimale of the personal prope taxes
that will be assessable against the Equipment during the succeeding tax year. Any such smouts remited to Lessor vnll be credited by Lessor against Lessee's obligations under this
paragraph. Lessee will remain obligated in the event that such amounts are insufficient to fully reimburse Lessor for the actual amount of such taxes and any surplus well either
credited to Lessee's other obligations to Lessor or returned to Lessee. If requested, Lessee agrees to file promptly on behalf of Lessor all requested tax returns and reports coring
the Equipment in form satisfactory to Lessor, with all appropriate governmental agencies and to mail a copy thereof to Lessor concurrently with the filing thereof. Lessee further agrees
to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the Equipment and pertaining to the aforesaid taxes, assessments and
other governmental charges. The obligations arising under this paragraph shay survive payment of all other obligations under this Lease and the termination of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Idle to the Equipment will at an times remain in Lessor and Lessee will at all times, at its own st and
expense, protect and defend the title of Lessor from and against all claims, liens and legal processes of creditors of Lessee and keep the Equipment free and dear from all such claims.
liens and processes. Lessee agrees not to after or modify the Equipment without first obtaining in each instance the prior written approval of Lessor. Upon the expiration or le nation
of this Lease, Lessee, at Lessee's ads expense, shall return the Equipment unencumbered to Lessor at a piece to be designated by Lessor, and in the same condition a when
received by Lessee, reasonable wear and tear resulting from normal use thereof alone excepted. Lessee shall, upon Lessors request, and at Lessees own expense, firmly affi to the
Equipment, in a conspicuous place, such label, sign or other device as Lessor may supply to Identify Lessor as the owner and lessor of the Equipment. If Lessee falls to perfo7n duty
and promptly any of its obligations under this Lease (including, without limitation, insuring the Equipment), Lessor may perform the same, but shall not be obligated to do so for the
account of Lessee to profed the interest of Lessor or Lessee or both, at Lessors option. Any amoud paid or expense (inducting reasonable attorneys fees), penalty or oth liability
ineurred by Lessor in such performance shall be payable by Lessee upon demand as additional rem for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be kept by Lessee at the location indicated herein, and will not
be removed from said location without the prior written consent of Lessor. Lessor shall have the fight to inspect the Equipment at alt reasonable times and from lime to time Lessor
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under this Lease
without Lessors prior written consent. Lessor or any assignee or successor of Lessor shall hove the right to transfer, sell or assign all or any portion of this Lease or the Inds ness
and/or obligations hereunder, without notice, acknowledgement or consent from Lessee. LESSEE WANES, RELINQUISHES, DISCLAIMS AND AGREES THAT IT Wit NOT
ASSERT AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OF S FOR
BREACH OF WARRANT/ OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UN THIS
LEASE EXCEPT DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL. CODE. After receiving notice of any assignment by Lessor. Lessee agrei s that it
will not, without the prior written consent of the assignee, purchaser or severed party, (1) prepay any amounts owing under this Lease. (ii) mooffy or amend this Lease; or CO e
any rights which we exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: Lessor hereby grants to Lessee the following options: A. Option To Purchase During Term. Lessor hereby grants to Lessee the on to
purchase all, but not less than all, of the Equipment described In the Lease on the Option Date (as specified on the first page of this lease) upon the fdloMng terms and cond : (1)
Lessee gives Lessor written notice d Lessee's intent to exercise this option to purchase at lead ninety (90) but not more than one hundred twenty (120) days prior to the Opt on Dale
and (2) Lessee has paid all Rent accruing prior to the Option Date on or before the Option Date. Failure to give such notice or to pay the Term Option Price on or before th Option
Date will render the Lessee's options to purchase null and void. The purchase price for the Equipment on the Option Date shag be the then Fair Market Value of the Equipment which,
for purposes of the Option Date only, Lessor and Lessee agree shall be the Term Option Price (as specified on the first page of this Lease). Lessor and Lessee agree that a Term
Option Price is a reasonable prediction of the then Fair Markel Value of the Equipment as of the Option Date. The Term Option Price, plus any applicable taxes, shall be payable on the
Option Date in cash or, at Lessee's option. as provided in Paragraph 1 t B of this Lease.
Page 2 of 5 of tease Agnwwnt dated 11/21/05 beb~ HAMPTON CONSTRVCTION MANAGEMENT, LIUMED_ (L seal
sm CLEVELAND BR07HERS EQUIPMENT CO., INC. (Lessor) -Wdi kukolet wawt IsngAWN m am of Egdpmrt rah the foaming ease number.
CJcollw L initial
704004 -3 Rev 06rtoo4
M&04004.wpd LA LeaserFpmd Rate ORIGINAL FOR CITiCAPiTAL
1-17 1.247888.1.0 XC:20051107071017
B. Conversion Option During Term. In the event Lessee exerdses Lessee's option to purchase the Equipment on the Option Date as provided in paragraph A above. Lesseq may
elect to pay the Tam Option Price to Lessor upon the following terms and cordtion t: (1) Lessee agrees to pay the Term Option Price in the equal consecutive rrmocnthiy install
for the Conversion Tam as indcated on the first page of this Lease with Oro first such indali ent payable on the Option Date and each succeeding instalment payable on a ilk date
of each month thereafter until fully paid and provided that the final instalment shall be in the amount of the then remaining unpaid balance, In addition to the payment provided
Lessee promises and agrees to pay interest on the remaining unpaid balance at the applicable Conversion Rate (as specified on the first page of this Lease) payable monthly the
.unpaid principal balance; (2) Lessee agrees to give Lessor written notice of Lessee's election pursued to this Paragraph at least ninety (90) but not more then one hundred my
(120) days prior to the Option Dale; (3) Lessee granola to Lessor. its successors and assigns. a security Interest in that Equipmrornl compete with all present and future attach s.
accessories. replacement parts, repairs, additions. mid ail proceeds thereof. elf herein referred to collectively as "Collateral" to secure payment and performance of the Inded ness
and all absolute and all contingent obligations and liabilities of Lessee to Lessor, or to any assignee of Lessor; (4) Lessee shall be a "debtor" and Lessor a "secured party' as hose
terms are used under the Uniform Commercial Code: (5) Lessee agrees, at its own cost and expense, to do everything necessary or expedient to perfect and preserve the rity
interest of Lessor granted hereunder, and (6) AN of the terns and provisions of the Lease shall be and remain in full force and cried except as indicated in this paragraph.
C. Option to Purchase On Expiration Of Term. Lessee may purchase all, but not less than al. of the Equipment described In the Lease at the expiration of the Tern of the Leas ? upon
the following terms and conditions: (1) Lessee agrees to give Lessor prior written notice of Lessee's intent to exercise this option to purchase at lset ninety (90) but not more in one
hundred twenty (120) days prior to the expiration of the Tam of the Lease and (2) the purchase price to be paid to Lessor for such Equipment shall be the then Fair Market Va us (as
defined below) of such Equipment, plus an amount equal to the Rental Payments then unpaid under the terra of the Dose, plus applicable taxes, if any. on the above sum, all able
in cash. Failure to give such notice or to pay the and of tern Option Price on or before the cordon of the Term of the Leese will render the Lessee's options to purchase n II and
void. Upon such paymerd, Lessor will execute and deliver a big of sale conveying title to the Equipment to Lessee on an "AS IS, WHERE IS "BASIS, WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
12. FAIR MARKET VALUE: The tern "Fair Market Value" as used herein shag be determined on the basis of, and shall be equal in amount to, the value which the Equipment would
obtain in an arms length sate transaction between an informed and willing buyer-user (other than a buyer currently in possession) and an informed and willing seller u er no
compulsion to sell and assuming that the Equipment is then in the condition required under the terms of the Lease. O on or before sixty (60) days prior to the expiration of the TLtm of
the Lease, Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of such Equipment, such value shall be determined in accordance with the f ng
definition by a qualified independent appraiser selected by Lessor. The appraiser shag be intruded to make such decterrnation within a period of 45 days following appointment but in
no event later than 10 days prior to the expiration of the Term of the Lease, and shag promptly communicate such determination in writing to Lessor and Lessee. The ap 'see's
determination of such Fair Market Value shall be condustvely binding upon both Lessor and Lessee. The expenses and fees of the appraiser shall be borne by Lessee.
13. PRONE RATE: The "Prime Rate" will mean the Prime Rate as published from time to time in the Money Rates section of The WAN Shad Journal as the bass rate on ccH poste
loans. N more than one Prince Rate or a range of rates is published, the Prime Rate will be highest of the published rates. In the event the Prime Rate as published in The W Street
Journal ceases to east or The Wall Street Journal ceases to publishing a Prime Rate. CIOCsplfal will substitute a comparable Index that is outside the control of CitiCapital. In IN - event
of an error by The Waff Street Journal, the "Prime Rate" will be based upon the Prime Rate as corrected.
14. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to modified accelerated coal recovery (or depredation) deductions with respect to the Equipme it. and
should, under any circumstances whatsoever, except as specifically set forth below, either the United States government or any stale tax authority disallow, eliminate, reduce,
recapture, or disqualify, in whole or In part, any benefits consisting of accelerated cost recovery (or depredation) deductions with respect to any Equipment, Lessee shall then i mnity
Lessor by payment to Lessor, upon demand, of a sum which shall be equal to the amount necessary to permit Lessor to receive (on an afta4ax basis over the full term of this -ease)
the same after-tax cash Now and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as "Economic Return") that Lessor
would have realized had there not been a loss or disallowance of such benefits, together with. on an after-tax basis, any interest or penalties which may be assessed by the
govemmerdal authority with rasped to such Ions or disallowance. In addition, N Lessee shelf make any addition or improvemard to any Equipment, and as a result thereof, Ussor is
required to include an additional emourd in Its taxable Income. Lessee shall also pay to Lessor. upon demand an amount which shall be equal to the amount necessary to permit Lessor
to receive (on an after-tax basis over the full tam of this Lease) the same Economic Return that Lessor would have realized had such addition or improvement not been made. Lessor
and Lessee agree Oat the Class Life of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule. Lessee shag not be obli to pay
any sums required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from one or more of the following events: (1) failure
of Lessor to timely dawn modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lessors tax return, other than a failure resulting from the ors
datemxmation, based upon opinion of counsel or otherwise, that no reasonable basis exists for claiming accelerated cost recovery (or depreciation) deductions, or (2) a failure of Lessor
to have sufficient gross income to benefit from accelerated cost recovery (or depredation) deductions. Lessor agrees to promptly notify Lessee of any claim made by any federal or
stale tax authority against the Lessor with rasped to the cisallowance of cost recovery (or depredation) deductions.
All amounts payable by Lessee pursuant to this section shall be payable directly to Lessor. All the Indemnities contained in Ibis section shag continue in full force ard effect
notwithstanding the expiration or other termination of the Leese in whole or in part and are expressly made for the berm of, and shall be enforceable by, Lessor. Lessee's ations
under this section shell be that of primary obligor irrespective of whether Lessor shag also be indernnified with respect to the same matter under some other agreement by anoth r party.
The obligations of Lessee under this section are expressly made for the benefit of. and shall been forceable by Lessor without necessity of declaring the Lease in default Lessor
may initially proceed directly against Lessee under this section without first resorting to any other rights or indemnification it may have.
15. DEFAULT BY LESSEE If Lessee at any time defaults in any of its obligations to Lessor, such default shag be considered an abandonment of all options herein and all opts s
herein shall irrnnediatdy expire and become null and void.
16. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding unles in
writing and signed by an of air of the party to be charged.
17. DEFAULT AND REMEDIES: DEFAULT AND REMEDIES: An event of default shag occur iY. (a) Lessee fella to pay when due any amount owed by it to Lessor or any affiliate
(inducing, without limitation, arty dared or indirect parent, subildery or sister entity) successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any mount
owed by it to Lessor or any affiliate (including, without limitation, any direct or indirect parent, subsidiary or sister entity), successor; (b) Lessee breaches any warranty or picivision
hereof or under any other document, agreement or instrument between Lessor and Lessee or between Lessee and any affiliate (including, without imitation, any direct or indired
parent, subsidiary or sister entity) successor or assignee of Lessor, (e) Lessee ceases to do business as a going concern, becomes Insolvent, makes an assignment forthe bncefit of
creditors, admits in writing its inability to pay its debts as they become due, or takes advantage of any law for the relief of debtors; (d) any properly of Lessee is attached; (s) a petition
in bankruptcy or for an arrangement. reorganization. composition, liquidation, dissolution or similar relief is filed by of against Lessee under any present or future statute law or
regulation; (f) Lessee or its shareholders take any action looking to its dissolution or fpudetion; (g) a trustee or receiver is appointed for Lessee or for any substantial rt of its
property; (h) if there shall ocar an (i) appropriation, (d) confiscation, (it) reterftn. or (iy seizure of control, custody or possession of the Equipment by any govemme old uth ority
including. without knitation. any municipal, stale, federal or other governmental entity or any governmental agency or instrumentality (ail such entities, agenda s end i alities
shag hereinafter be collectively referred to as "Governmental Authority); (I) if anyone in the control, Custody or possession of the Equipment or the Lessee is amrsed of al or
charged (whether or nit subsequently arraigned, indicted or convicted) by any Governmental Authority to have used the Equipment in connection with the commission of y crime
(other than a misdemeanor moving violation); 0) there shag be a material adverse charge in arty of the: (I) condition (financial or otherwise), business, performance, p spects,
operations or properties of the Lessee (i) legality, validity or enforceability of this Lease, (ini) perfection or priority of the lien granted in favor of to Lessor pursued to Ibis Le (iv)
ability of the Lessee to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (k) there an be a
death of a majority owner of Leases or a guarantor of the obligations of Lessee under this Leese; or (1) except for the security interest, Ifen or reservation of title in favor of Les or as
otherwise granted herein, there shag be any ran. claim or ancunnbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor.
Upon the occurrence of an event of default Lessee shall be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare ail sums due and to become
due hereunder and all other sums than owing by Lessee to Lessor to be immediately due and payable; or assignee of Lessor under any other document, agreement or instrument: (b)
declare all other debts ten owing by Lessee to Lessor or any affiliate (including, without limitation, any direct or irdired parent, subsidiary or sister entiy),suceessor or as$ gnee of
Lessor to be immediately due and payable: (c) proceed by appropriate coat adios or actions or other proceedings either at law or in equity to enforce performance by Lesset of any
and all provisions of Oft Lease and to recover the damages for the breach thereof; (d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's
expense at such place as Lessor may designate which is reasonably convenient to both parties; (e) exercise one or more of the rights and rernedes available to a secured pai?y under
the Uniform Comnwdal Code, whether or rat this transaction is subject thereto; (f) enter, or Its agents may enter, without notice or liability or legal process. Into
Pans 3 of 5 of Leese AgrearwA dated 11121105 between.- FIAMATON CONSTRUCTION MANAGEMENT. UNITED (Lessee and
CLEVELAND BROTHERS EQUIPMENT CO.. INC. _ (Lessor) which indWes, without Wri tabor, an ibis d Equipment with it* hTowing serial n r.
CJCO1117 Less 's t ' ' Is
704004 '3 Rev 0812004
Ise04004.wrpd Lift LeaselFbaed Rate
1.17 1.247888.1.0 XC:20051107071017
ORIGINAL FOR CIIICAPITAL
any prarnises where the Equipment may be, or is believed by Lessor to be. and repossess all or any pan thereof, disconnecting and separating the same from any other propertand
using all force necessary and permitted by applicable law. Lessee hereby expressly waiving all bather rights to possession of the Equipment after default and all claims for injiunes
suffered through or loss caused by such repossession: and/or (g) apply any security deposit or other amounts held by Lessor to any indebtedness of Lessee to Lesser.
In addition, 4essee agrees to pay, to Lessor, as liquidated damages for loss of the bargain snd not as a penalty, (1) the Termination Value plus (2) all expenses of retaking, holding,
preparing for safe, selling and the like. including reasonable attomeys' fees and other legal expenses. less (3) any amourd actually received by Lessor from the re-Iesss, sale or tither
disposition of the Equipment. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease. Nothing herein contained wig require Lessor to re-lease sell
or otherwise disperse of the Equipment No remedy of Lessor hereunder shag be exclusive of any other remedy herein or provide by law, but each shall be cumulative and in addition
to every odw remedy. A waiver of a default shall not be a waiver of any other or a subsequent delault if allowed by law. "the reasonable fees for attorneys" retained by Lessor all
include the amount of any flat fee, retainer, contingent fee or the hourly dirges of any attorney retained by Lessor in enforcing any of Lessees rights hereunder or in the pr*secAion
or defense of any litigation related to this Lease or the transactions contemplated by this Lease. AN notices to Lessee relating hereto will be considered received when deli in
person or mailed to Lessee at the address set forth in this Lease, or at any later address designated in writing by Lessee. Lessor may sell the Equipment without giving any wan ties
as to the Equipment. Lessor may disclaim any warrantees of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the comirry real
reasonableness of any sale of the Equipment.
18. INDEMNITY: Lessor (which term as used herein includes Lessees successors, assigns, agents, and servants) shelf have no responsibility or liability to Lessee, its succiss ors or
assigns or any other person with respect to any Liabilities (as "Llabffltia C is heroin defined), and Loom hereby assumes liability for, and hereby agrees, at it able cost and nee,
to indemnify, defend, protect and save Lessor and keep it harmless from and against, any and alt Liabilities. The tern liabilities' as used herein shaft include any and all tie ities,
obligations, losses, damages, penalties. claims, actions, tufts, costs, expenses and disbursements of whatsoever kind and nature, including too fees and expenses, (whether or net
any transaction contemplated hereby is consummated) Imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute ttability or of rivise)
and in any way relating to or arising out of this Lease or the selection, manufacture, purchase, acceptance. ownership, delivery, non-delivery. lease, possession, use, ration,
oonciifion, servicing, maintenance, repair, improvement, aMrsdon, replacernent, storage, return or other disposition of the Equipment (including without limitation, () claims as a sult of
latent or patent defects, whether of not discoverable by Lessor or lessee, (i) claims for trademark, psterd or copyright Infringement. and (Iii) tort dams of any kind (whether be an
Lessor's alleged negligence or otherwise). including claims for iry'ury or damage to properly, or byury or death to any person (nduding Lessee's employees) or, for any claim or 'ability
hereby indemnified against. The indemnities arising under this paragraph shag survive payment of all other obligations under this Lease and the termination of this Lease_
19. POWER OF ATTORNEY: LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR (O ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEY-IN-FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTI E OR
PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGRE ENT,
DOCUMENT, FINANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S XWINION,IS NECESSARY TO PERFECT ANDIO GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LES E TO
LESSOR; AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT O THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (M11ETHER OR NOT THE SAME 15 A DEFAULT HEREUNDER). This power is coup! with
an interest and is irrevocable so long as indebtedness remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessors request, such dor-L menu,
writings, records and assurances as Lessor deems necessary or advisable for the confirmation or perfection of the security interest in Equipment and Lessors rights hereunder,
including such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or any dicer, employee or designee of Lessor or
any assignee of Lessor (or any designee of such assignee) to fib a financing statement describing to Equipment. Lessee authorizes Lessor or any offkxr, employee or d nee of
Lessor or any assignee of Lessor (or any designee of such assignee) to file financing statements coveting assets of Lessee other than the Equipment described herein.
20. PRIVACY WAIVER Lessor may receive from and disdose, to any individual, corporation. business est. association. company, partnership, joint verdure, or other entity (herein
collectively, the "Entity'), Including, without limiting the generality of the foregoing, Lessors partied or any atfiliaie or any subsidiary of Lessor and any credit reporting agency other
entity whether or not related to Lessor few any purpose, information about Lessee's accounts, credit application and credit experience with Lessor and Lessee authorizes any Entity to
release to Lessor any information related to Lessee's accounts, credft experience and account information regarding the Lessee. This shall be continuing authhorizatio for all
present and future disclosures of Lessee's account information, credit application and credit experience on Less" made by Lessor, or any Entity requested to lease
such information to Lessor
21. DEBIT TRANSACTIONS: Lessor may but shelf not be required to fifer L.essae the option of paying any of Lessee's obligations to Lessor through printed checks ("Debit
Transactions") drawn pursuant to this authorization upon Lessees checking account, using Lessees checking account number, bank routing code and other information whi Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to initiate Debit Transactions from Lessees checking account in the smourd necessary to pay t rental
payments, delinquency charges. or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by l or, plus
a fee of ten dagara (510.00) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee chargeable u erthis
provision shaft be limited and/or restricted in accordance with applicable taw. Lessor may from time to time Increase or decrease the Debit Transaction fee upon prior notice
addressed to Lessee's last known address as shown on the records of Lessor and such Increase or decrease shat be effective as stated in the written rodeo. Unless prot fled by
applicable law, Lessee's continued use of Debit Transactions after the effective date specified in such notice shag conclusively establish Lessees agreement to pay then Debit
Transaction tee stated therein. Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's name as drawer an any printed check town in
accordance with this authorization. Until cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lasser initiates in payment of Lessee's obligations he rider or
under any other present or future agreement with at which is held by Lessor. This authorization may be canceled at any lime by Lessee giving at least three (3) business d ays prior
written notice to Lessee's bank and Lessor. Payment by Debit Transactions is not required by Lessor nor is its use a factor in the approval of credit.
22. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; howeve , if for
ppuurrppoosses of perfection, this contract is interpreted by any court as a lease intended as security, Lessee grants to Lessor, Its affiliates (including, ithout
timilation, any direct or indirect parent, subsidiary or sister entity), successors and assigns a security interest in the Equipment to. secure the yaym nt and
performance of all debts and all liabilities of Lessee to Lessor of every kind and character, whether now existing or hereafter arising, and whittler direct,
indirect, absolute, contingent, primary secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirect parent, subs! or
sister entity), successors or assigns of Lessor, now existing or hereafter ansing, whether udder this Lease or any other agreement, and whether due dir Z or
ctive regardless of any retaking or redelivery of the Equipment to Lessee Upon
by assignment. The security interest granted herein shall continue to be efile
anyy assignment of this Lease by Lessor, the assignee shall then be deemed the Lessor for purposes of this provision. Ail payments made by Lessee to essor
with reference to this Lease shall be applied firs] to any indebtedness which is not secured, then to late charges then to any other fees or other a ounts
payable hereunder other than purchase money debt, until all of such indebtedness is paid in full, and then to purEhase money debt. This provision ontrols
over any conflicting provision or language in this Le(as)e or In any other agreement between Lessor and Lessee unless the parties mutually agree in writ g in a
subsequent agreement to override this provision. hail Any provisions hereof contrary to,, prohibited t or invalid under applicable laws or regulations hall be
inapplicable and deemed omitted here rom, but s a 1 not invalidate the remaining provisions hereori f. (C) This Lease and any addenda referred t herein
constitute the entire agreement of the parties hereto. No oral aggreement, guaranty, promise, condition, representation or warranty shall be binding. 1 prior
conversations, agreement or representations related hereto an/or to the Equipmnt are superseded hereby, and no modification hereof shall be indmg
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute "chattel pa er" for
pu?rcppooses of the Uniform Commercial Code (s the onginal of this Lease marked •prinal for Cit?Capital.' (E) ANY ASSIGMENT OR TRANSFER O THIS
SE TO AN VIOLATES THE RIGHTS OF PAR PITi4L ER THAN CITICAPITAL COMMERCIAL LEASING CORPORATION OR ITS AFFI ATES
iCIL
23. RENEWAL: Unless Lessee notifies Lessor in % ttlmp at least ninety (90) days prior to the expiration of the Term of lessee's intention to return the Equipment or exerd so any
option to purchase, or Lessor notifies Lessee In writing at bast ninety (90) days prior to the expiration of the Tern of Lassoes intention to temhinate this Lease, this Lease will
automatically renew and continue on a month to month basis following the initial Term ('Renewal Term") until such time as either Lessor or Lessee provides the other party with at
least ninety (90) days prior written notice of that partys intention to terminate this Lease. Rentai Payments will continue to be due and owing uMl expiration of such notice rind.
All of the terms and provisions of this Lease shag govern during any Renewal Term, except that any option on the pan of Lessee to purchase the Equipment shall automatically
expire on the expiration o (the Tern and shall be inapplicable to any Renewal Term.
Pepe 0 W 5 tl Leaa+ gpneert?x titled 11121/05 betwe0n _ HAMPTON CONSTRUCTION VANAGEYENT, UWMD (Lessee) an
CLEVEUIND 6MERS EQUIPMENT Co., INC. (LessoA which Intl de., without imitation. an item of Egjomnt with the following wrist number.
rure1117 - Le 'sl ds
704064 -3 Rev 092004
I111e04004.wpd Lift Lease/Flxed Rate ORIGINAL FOR CITICAPITAL 51
1.17 1.247888.1.0 XC:20051107071017
24, RETURN OF EQUIPMENT: if Lessee does not exercise, or Is precluded from exercising, the option to purchase the Equipment at the expiration of the Tema or any Renewal
Term of this Lease, Lessee shall, at Lessee's sole cost and expense, return all, bud not less than all, of the Equbpmad to Lessor immediately upon that expiration of to Term any
Renewal Tenn of this Lease pursuant to the terns and conditions contained in Lassoes Standard Return Conditions for equipment airrilar to the Equipment subject to this Le (a
copy of which has been delivered to Lessee in co*ncton with this Lease). If Lessee does not surrender the Equipment to lessor as herein provided. Lessee will be to default this
Lease as to such Equipment, and Lessee shall pay Lessor, as liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the Monthly R tell
payment applicable to such Equipment. Such payment shall commence with the month immediately following the end of the Term or any Renewal Term and shall continue Cher er
monthly until the Equipment is returned to Lessor. Lessee agrees that such fqudated damages are a reasonable estimate and for compensation for the coals, expenses, Fes uel
value exposure and other losses, which are incapable of an exact delerndnation, incurred by Lessor as a result of Lessees retaining possession of the Equipment beyond the e of
the Term or any Renewal Term. Notwithstanding the foregoing. Lessor shall have the right to obtain immediate possession of the Equipment at any time after the end of the Te or
any Renewal Term for such Equipment.
25. LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability company, limited partnership or other registered organization, its state of organization Is in the stat set
font on the last page of this Lease: (b) if Lessee is an individual, his1her principal place of residence Is at the address sal forth on the lest page of "is Lease; (c) if Lessee an
organization, its place of business or if it has more than one place of business, its chid executive office is located at the address sal forth on the last page of this Lease. Le s
agrees that R will not, without the prior written consent of Lessor, change Its state of organization if it is a corporation. limited liability company. limited partnership or other regis red
organization or the location of its chief executive office or its place of business if R is an organization. If Lessee is an Individual, Lessee must notify Lessor in writing of a char a In
hisfher principal place of residence 30 days prior to such change.
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than the address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from the um
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to Lessor at any address other than the one specified on the related invoice, then Lessee
shall be deemed to have authorized Lessor to substitute such check with an instrument of equal sm ourd and present the substitute instrument to Lessee's financial insthutin for
payment from the account referenced on Lessee's check
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITiCAPITAL
To help the United States Government fight terrorism and money laundering. Federal law requires us to obtain, verify, and record Informad
that identifies each person or business that opens an account or establishes a relationship. What this means for you: when you open
account or establish a relationship, we will ask for your name, street address, date of birth, and identification number, such as a social secut
number or taxpayer Identification number. For businesses, we will ask for the business name, street address and tax identification numb
Federal law requires us to obtain this Information. We may also ask to see your driver's license or other fdenWng documents that will all
us to identtfy you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all circumstances and regardless of any failure of operation or
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
On 3118105 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use o the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory Condition i all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading as
applicable, upon defivery of the Equipment was
? The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALL THE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND ALL RIDERS
EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGETHER WI ALL
RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
By.
in co Mabee or emMed May company, an aurrtaised pay. mu and show her or
hie We. if Wised partrwrshp, a gerwid partner mud so dqw Ihd ale. II sots
propdaimW p, then sole rsop"w must sips and show Nat all. If indrA&W. Ihen
mddwW ud" sign and show 01110 w'N6vdua1klr.")
Title ay 51 d.,t -
Date: 111211os Federal Tax ID * or SSN: 251800323
LESSOR: CLEVELAND BROTHERS EQUWMENT CO., INC.
By (nA ),A.-J(2
_
7T---U
Title A? L XtC
Date: 11121105 Federal Tax ID #:
Date of Birth: --
(IndividuallSole Proprietor)
State of Organization, PA -
Page 5 of 5 of Lease Agreemera dated 11t21105 behwM HAMPTON CONSTRUCTION MANAGEME111LIMITED 7and
CLEVELAND BROTHERS EQUIPMENT CO INC (Lease) which Ndudes, without Imitation. an item of Equrpmattwith the fnllawing serial manber
C.1C01117
704004'3 Rav GGOD 4
Isa04004.wpd till LeasNFlxed Rate ORIGINAL FOR CITICAPITAL
1.17 1.247888.1.0 XC:20051107071017
EXCAVATOR STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement entered into
on 11/21/05 between the Lessee and Lessor named below.
Notwithstanding anything to the contrary contained in the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of the
Lease, Lessee will, at Lessee's sole cost and expense, return and unload all, but not less than all, of
the Equipment in a manner consistent with the manufacturer's recommendations and practices to
Lessor immediately upon the expiration of the Term of the Lease at such location as Lessor directs
and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 1500 hours of use per year (the
"AnnualAllowed Hours"), Lessee agrees to pay additional rental equa to the monthly Rental Payment divided
by 1/12 of the Annual Allowed Hours, per each excess hour. A "year" shall be a twelve-month period
commencing on the date of Lessor's acceptance of the Lease Agreement, and each successive twelve-month
period thereafter during the term of the Lease agreement. To calculate excess usage for portions of the Lease
Term shorter than one year, the Annual Allowed Hours will be prorated accordingly. The hours of use of an
item shall be determined by the hour meter attached to said item of Equipment, and the current hour usage for
such item is set forth below. If any such hour meter becomes inoperable or inaccurate, Lessee shall
immediately repair or replace same, and shall immediately notify Lessor in writing of such event and of the
correct hours of usage of the Equipment before and during the period of time the hour meter was inoperable or
inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request from time
to time in order to document the hours of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Machine Hours: 130
Tr_
2. Return Conditions
A. General Condition.
All components must meet or exceed the manufacturer's minimum recommended specifications while operated
under full load, unless otherwise specified herein.
No glass will be broken, chipped or cracked.
No upholstery will have any cut, tear or bum. There will be no damage to any exterior or interior material that
costs in excess of $250 to repair.
All decals (other than the manufacturer's original decals), numbers, customer identification, glue and adhesives
must be removed from the Equipment prior to return without damage to paint or any other portion of the
Equipment.
All frame and structural components must be structurally sound, without breaks, bends, cracks or excessive
wear.
Cooling, heating and lubrication systems must not have any leaks or be contaminated. All internal fluids, such
as lube oil and hydraulic fluids must be filled to operating levels, all filler caps must be secured, and all filters
must be new filters that meet or exceed OEM standards. All batteries must be fully operational without any
dead cells or cracked cases.
All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or gravel) must be properly removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Undercarriage. Track components, including rails, pads, sprockets, idlers and rollers shall have at least
50% wear life remaining in accordance to measurements per the manufacturers guidelines.
C. Tires. All tires will be of the same original size, type and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires ofthat type) as upon delivery to Lessee. All tires will have no
missing or damaged parts, gouges or section repairs an d will have at least 50% of tire wear remaining in usable
condition.
D. Electrical System. The alternator, starter, and electronic control units must be in workable conditions. All
electrical harnesses must be in workable condition without any sectional repair. All gauges, senders, and
switches must be functional.
E. Engine. The engine must have been maintained in accordance with manufacturer's warranty and maintenance
instructions per the applicable machine manual, including overhaul of the engines as required. All engine
components must meet or exceed the manufacturer's nummum recommended specifications while operated
under full load. Determination of satisfaction of these specifications shall be made by subjecting the engine to
standard industry testing to include (but not limited to) testing of the crankcase manifold pressure, oil analysis
and fuel and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
F. Mechanical Drive Train. The transmission/hydrostatic drive systems including, but not limited to, pumps,
motors, planetaries, and wet brake systems will be in good condition and operate quietly without vibrations or
leaks.
G. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and sto or hold machine safely during normal operation No drums or other braking
components will be damaged or or cracked.
H. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully operational
at rated capacity with no leaks, bent cylinder ro ds, or worn out bushings/pins. Boom cycle times and steering
functions must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
1. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
J. ROPS/FOPS Structure. The ROPS/FOPS structure will have no damage or repair.
K. Sheet Metal. All sheet metal must be in operational condition without breaks and bends as provided when the
machine was first delivered. Boom and stick must be straight and in good condition with no visible repairs.
Bucket must be in good condition and without excessive wear.
L. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until the
Equipment has been accepted by the Lessor at such location as Lessor directs. Such insurance must be in an
amount equal to the replacement value of the Equipment and show Lessor as loss payee and must conform to all
other specifications for insurance provided in the Lease.
M. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state and
local health and safety laws and requirements, and if applicable, have appropriate ANSI inspection certificates,
permits and other certification necessary to operate the Equipment. In addition, Lessee will have initiated,
compiled and retained records relating to preventative maintenance and repairs indicating dates and hour meter
readings and verified by parts invoices. At any time during normal business hours during the Term of the Lease,
Lessee will make such records available to Lessor for verification and inspection as Lessor may elect.
N. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's agent(s)
during normal business hours for purposes of a detailed appraisal/mi spection. The inspection must specifically
cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee will bear all
expenses of this inspection.
STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the
standards set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item
of Equipment, Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such
item of Equipment as determined by Lessor in its sole discretion in an amount up to the Termination Value
applicable to such item of Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the
definitions prescribed for such terms in the Lease Agreement.
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
By:
Title: ?kst?
LESSOR: CLEVELAND BROTHERS EOUIPMENT CO. INC.
By.
Title: I ? t
arr.
citicapital? i
DELIVERY AND ACCEPTANCE CERTIFICATE
To:
C' CitiCapital ")
Reference is made to the contract dated 11121105 (the "Contract") between the
undersigned and CLEVELAND BROTHERS EQUIPMENT CO. INC.
(the "Deafer") for the lease or purchase of the property (the "Property") described therein.
The undersigned hereby confirms and agrees as follows:
1. The Property was delivered to undersigned at the location designated in the Contract on 3118105
(Data)
2. All installation and other work necessary for the proper use of the Property, if any has been completed.
3. The Property has been inspected and accepted by the undersigned as satisfactory in all respects.
4. The undersigned's obligations and liabilities under the Contract to CitiCapital as assignee of the Dealer will be
and unconditional and will not be subject to any abatement, reduction, recoupment, defense, set-off or counterclaim
to undersigned for breach of warranty or for any other reason whatsoever.
5. CitiCapital is neither the manufacturer, distributor nor seller of the Property and has no knowledge of or familiarity with it.
6. The undersigned has paid a total down payment or advance rental of $ 0.00 consisting of $ 0.00 c
and $ 0.00 net trade-in allowance for used equipment and the original unpaid balance or total rentals 1
$ 157.857.88 and the present unpaid balance or total rentals is $ 157,857.88
This certificate will supplement and not alter the terms of the Contract and is given to induce CitiCapital to purchase
Contract. This certificate is binding on undersigned's heirs, administrators, legal representatives, successors and assigns and
inure to the benefit of CitiCapital
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
Dated 11121105
Buyer
By _
Title
Co-Buyer
By
(Name of individual(s), oorporation or partnership.)
I?rre
(If corporation, authorized dliicer must sign and short
pe riner must sign. if owner(s), show %tirh.)
ustA4?i-
It partnership, a
(if co-bvyer, co-partner or co-oKicer, sign here and show which.)
525024 Rev. 7-92
Dealer Sale or
Lease 1.01
CITICAPITAL is a service mark of Citicorp.
Title
A memberof cdq=0'
1.2471188.1.0 xC:20051 1 07071 01 7
ASSIGNMENT OF LEASE
BILL OF SALE TO EQUIPMENT
citicapitalJi
LEASE AND EQUIPMENT INFORMATION
Lessee: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED Date of Lease:
11!21!05 Delivery Date:
3118105
Address:
3607 HARTZDALE DR
CAMP HILL PA 17011 Guarantor(s): Date of Guara
HARRY I MORRIS Jr. ty:
E uipment:
(1j CATERPILLAR HYDRAULIC EXCAVATOR 315CL SIN CJC01117 Monthly Rental:
1,816 22
1. Definitions. Whenever used in this Assignment of Lease and Bill of Sale to Equipment (this "Assignment'), the following
terms will have the following meanings
(a) "Assignor" will mean and refer to the undersigned;
(b) "Assignee" will mean and refer to CITICAPITAL COMMERCIAL LEASING CORPORATION and its successes and assigns;
(c) "Lessee" will mean and refer to the lessee identified above whose principal place of business is located the
address indicated above;
(d) "Equipment" will mean and refer to the equipment described above, together with all attachments, accessories,
replacement parts, repairs and additions thereto, and all cash and non-cash proceeds thereof;
(e) "Lease" will mean and refer to the lease agreement described above entered into between Assignor and Lease with
respect to the Equipment;
(f) "Documents" will mean and refer to the Lease and any schedules, guaranties, security agreements or other
documents, instruments or certificates executed or delivered in connection with the Lease;
(g) "Revenues" will mean and refer to all rental payments and any other amounts payable under the Documen s, all
deposits or advance rentals made under the Documents, and all other amounts (whether payable unde any
purchase or renewal option or otherwise) due or to become due under the Documents; and
(h) "Stipulated Loss Value" will mean an amount equal to the total of all accrued and unpaid Rental Payments a d all
other amounts then due and remaining unpaid under the Lease plus the greater of (1) the then Fair Market Vale (as
determined in accordance with Paragraph 12 of the Lease) of the Equipment as of that date in the same conditi on as
when received by Lessee, reasonable wear and tear from the normal use thereof alone excepted, as well as n the
condition required upon its return determined in accordance with Paragraph 21 of the Lease, or (2) an amount equal
to all accrued and unpaid Rental Payments and all other amount due and remaining unpaid plus the then p sent
worth of all unaccrued Rental Payments plus either the Purchase Option Price as set forth in the Lease o if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lea e) of
the Equipment in the same condition as when received by Lessee, reasonable wear and tear from the norm I use
thereof alone excepted, as well as in the condition required upon its return determined in accordance with Par raph
21 of the Lease. Present worth shall be determined by discounting such unaccrued Rental Payments fro their
respective due dates at the rate of 0,00 %. Notwithstanding the foregoing, in the event that the Less and
Assignor have executed a Stipulated Loss Value Table with respect to the Lease, the Stipulated Loss Value as of
any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other amounts yable
under the Lease as of that date.
p? ?f?q?ad 11121105
Page 1 of 3 of'CL 60AMMOSVgt11PI8E1aT 1R<` between
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
with the following serial number CJC01117 _
701306
1.00
CmCAPITAL is a service mark of Citicorp.
(Lessor) which includes, without limitation, an item of
1.247888.1.0 XC:20051107071017
Amemberof
2.
3.
Assignment and Bill of Sale. For Value Received, Assignor hereby sells, assigns and transfers to Assignee all of
Assignor's right, title and interest in and to the Documents, the Revenues, the Equipment, and all of Assignor's right and
remedies under or in connection with the Documents, including the right, without notice to Assignor and without aff ng
Assignor's obligations to Assignee hereunder. (a) to collect and retain any and all Revenues, (b) to endorse Assig or's
name on any remittance received, (c) to release, substitute or discharge Lessee or any other persons obligated and r the
Documents, on terms satisfactory to Assignee, by operation of law or otherwise, (d) to settle, compromise or adjus any
and all rights against and to grant extensions of time of payment to Lessee or any other persons obligated and the
Documents, and (e) to take any other action Assignor might take but for this Assignment. From this date forward, Ass gnor
will have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substit to or
consent to the return of the Collateral, or modify the terms of the Documents. Assignor agrees: (a) that Assignee may from
time to time audit its books and records relating to the Documents; (b) to promptly forward to Assignee copes of all n tires
sent or received by Assignor concerning the Documents, Revenues or Equipment; (c) to deliver to Assignee all o inal
copes of the Documents except Lessee's copy; and (d) to perform such further acts as are necessary or desira le in
Assignee's reasonable judgment to obtain the full benefits hereunder. Assignee does not assume any obliga ions
under any of the Documents and Assignor agrees that this Assignment will not relieve Assignor of any f its
obligations under any of the Documents.
Assignor's Warranties. Assignor represents and warrants to Assignee that: At the time of the execution o this
Assignment, Assignor was the owner of the Equipment, Documents and Revenues subject only to the interests of the
Lessee in the Equipment under the terms of the Lease; no party, other than Assignee and Lessee, will have any inter st in
the Equipment and this Assignment conveys the Equipment, Documents and Revenues to Assignee free and clear of all
liens, encumbrances or other interests of whatever kind in favor of any third party whatsoever, Assignor will forever d fend
Assignee's title in and to the Equipment, Documents and Revenues against any and all persons whatsoeve ; the
Documents are genuine, enforceable and in all respects what they purport to be; all signatures, names, addresses,
amounts and other statements and facts contained in the Documents and herein are true and correct; all parties o the
Documents have the capacity to contract and none of such parties is a minor, Assignor is the lessor under the Leas , the
Lease is the only lease covering the Equipment and is the entire agreement between Assignor and Lessee; all originals of
the Documents other than Lessee's copy have been or will be delivered to Assignee; Assignor will comply with all its
warranties and other obligations under the Lease; the Documents are and will continue to be free from defenses, counter-
claims, cross-claims and set-offs, and are in compliance with all applicable laws and regulations; the Equipme t has
retained and will retain its character as personal property; there are no termination, purchase or renewal options or ri hts of
third parties in or to the Documents or Equipment except as stated therein; there has been no prepayment of rental o other
monies owing under the Documents except as stated in the Lease and such amount has been paid by Lessee in sh or
as otherwise set forth in the Lease, and no part thereof was loaned directly or indirectly by Assignor; the Equipme t was
delivered in satisfactory condition to Lessee on the date set forth below, was properly installed if required, an was
unconditionally accepted by Lessee; neither Assignor nor Lessee is in default under the Lease and Assignor h 3s no
knowledge of the occurrence of any event which, with the passage of time or the giving of notice, would Constitute a efault
under the Lease; the security interest or reservation of title evidenced by the Lease is and, after assignment, will co tinue
to be valid, first, prior to all others and effective against all persons; Assignor has caused or will promptly cause such
actions or procedures to be taken as are required or permitted by statute or regulation to perfect such security inter st or
reservation of title in Assignee's favor, including, without limitation, filing financing statements, recording documen and
obtaining Certificates of Title disclosing Assignee's interest; Assignor has taken all necessary corporate action whit may
be required to authorize the acts called for herein; and this Assignment is not in violation of any indenture, loan agre ment
or other agreement to which Assignor is a party or by which it maybe bound. Assignor acknowledges that Assignee
will be relying upon the foregoing warranties and that the knowledge of Assignee of any breach of any such
warranty will not Impair or constitute any waiver of any such warranty or of any of Assignor's obligation with
respect thereto. Assignee will have no obligation to notify Assignor of any breach of any such warranty that may come to
its attention or to undertake or continue to undertake any cure or remedy of any defect in the Documents. Assignor will
continue liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covens is or
conditions contained in the Documents or any release of, or failure on the part of Assignee to realize upon or protect the
Equipment or any interest therein.
Remedy Upon Breach. If any of the foregoing warranties are untrue, or N Assignor breaches any provision here , or if
Assignor becomes insolvent or makes an assignment for the benefit of creditors, or if a petition for a receive or in
bankruptcy is filed by or against Assignor, then, in any such event, Assignor will, without requiring Assignee to ten er the
Documents or the Equipment or to proceed against Lessee or any other person or any security, repurchase the D ents
and the Equipment on demand and pay Assignee in cash an amount equal to the Stipulated Loss Value as of the ate of
payment thereof plus all other amounts owed to Assignee under the Documents (whether as accrued and unpaid re als or
otherwise) plus any expenses of collection, repossession, transportation and storage (including reasonable attorney ' fees
and court costs) (the "Repurchase Price") incurred by Assignee with respect to the Equipment or Documents
Page 2 of 3 of Assignment of Lease dated 1112IMS between
(Lessee) and CLEVELAND BROTHERS EQUIPMENT CO., I NC.
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
the following serial number CJC01117
701306
1.00
(Lessor) which includes, without limitation, an item of Equipm nt with
1.247888.1.0 XC:20051107071017
5. Reserve and Security Interest This Assignment constitutes an absolute sale and assignment of the Equip' ent,
Documents and Revenues from Assignor to Assignee. If Assignor is deemed to have retained an interest of any k nd in
the Equipment, Documents or Revenues, or to the extent that any Court deems Assignor to have an interest of any k nd in
any of them, Assignor hereby grants to Assignee a security interest in the Equipment, Documents and Revenues to s cure
all, obligations of Assignor to Assignee whether arising under this Assignment or otherwise. Unless otherwise a reed
under the provisions of any applicable underlying agreement, any portion of the purchase price payable by Assig or to
Assignee in conjunction with this Assignment which is retained by Assignee as a reserve or holdback will be h d by
Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreemen with
Assignee or any affiliate of Assignee and Lessee's obligations under the Lease, and will be paid to Assignor wi out
interest when all direct and all contingent obligations of Assignor, whether hereunder or under any other agreemen with
Assignee or any affiliate of Assignee, and Lessee's obligations under the Lease, have been satisfied. In the event o any
default by Assignor in the performance of any such obligations, Assignee may apply any reserve, holdback, account or
property in Assignee's possession toward satisfaction of such obligations. If the Lease is terminated prior to its full term
and the stipulated loss value paid or payable under the Lease by Lessee is less than the Stipulated Loss Value cak:u ated
in accordance with this Assignment, Assignor will pay to Assignee upon demand the difference between the amount paid
or payable by Lessee and the Stipulated Loss Value of the Equipment.
6. Additional Provisions. Time is of the essence. If Assignor fails to pay Assignee any amount payable hereun er,
Assignee will have all of the rights and remedies of a secured party under the Uniform Commercial Code and any of er
applicable laws. Until payment therefor, Assignee may (but will not be obligated to) continue to liquidate the Docume is
and the Equipment, and Assignor will continue to remain liable for any deficiencies. Assignor agrees to pay all expenses
incurred by Assignee in enforcing its rights hereunder, including the reasonable fees of any attorneys retained by
Assignee. Unless otherwise provided by law, any requirement of reasonable notice which Assignee may be obligate to
give regarding the sale or other disposition of the Equipment or Documents will be met if such notice is mailed to
Assignor at its address shown in the Lease, or such other address as Assignor will designate to Assignee from time to
time in writing, at least five days before the time of sale or other disposition. Waiver of any default will not be a waive of
any other default. All of Assignee's rights are cumulative and not alternative. No waiver or change in this agreement will
bind Assignee unless in writing and signed for Assignee by one of its officers. Assignor waives notice of acceptance of
this Assignment, presentment and demand for payment, protest and notice of nonpayment, and subordinates all rights
Assignor may now or hereafter have against Lessee, the Equipment, Documents or Revenues to any rights Assignee
may now or hereafter have.
ANY REASSIGNMENT OR RESALE OF THE DOCUMENTS OR THE EQUIPMENT BY ASSIGNEE, WHE-
HEREUNDER OR UNDER ANY OTHER AGREEMENT, WILL BE WITHOUT RECOURSE OR WARRANTY OF
KIND OR NATURE, EXPRESS OR IMPLIED. ASSIGNOR AGREES AND ACKNOWLEDGES THAT ASSIGNEE
HAVE NO LIABILITY TO ASSIGNOR FOR FAILURE ON THE PART OF LESSEE TO COMPLY WITH ANY PROVI
CONTAINED IN THE LEASE RELATING TO THE CONDITION OF THE EQUIPMENT UPON ITS RETURN OR
EXCESS USAGE OF THE EQUIPMENT BY LESSEE. NO SUCH FAILURE ON THE PART OF LESSEE NOR
FAILURE BY ASSIGNEE TO REQUIRE COMPLIANCE WILL RELIEVE ASSIGNOR OF ANY OF ASSIGN
OBLIGATIONS UNDER THE TERMS OF THIS ASSIGNMENT.
The Equipment was delivered to and unconditionally accepted by Lessee on the date indicated above.
Dated: 11121105
By. .
Title:
BROTHERSEQUIPMENT. CO.
Page 3 of 3 of Assignment of Lease dated 11121/05 between
(LeSSee) and C LAND BROTHERS EQUIPMENT CO., INC.
the following serial number _ CJCoi117
701306
1.00
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessor) which indudes, without limitation, an item of Equipment
1.247888.1.0 XC:20051107071017
',
??
Zi 01
1
Lease Agreement aticapitalJ
Name and Address of Lessee ("Lessee) Name and Address of Lessor ("Lessor)
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED CITICAPITAL COMMERCIAL LEASING CORPORATION
3607 HARTZDALE DRIVE 90 MATAWAN ROAD, STE 102
CAMP HILL PA 17M1 MsTAWAN u r nnw r
DESCRIBE EQUIPMENT FULLY LESSOR'S COST
Equipment Total Cost $ 122, .00
(1) PETERBILT (PACCAR) TRUCK 335 SfN 2NPLHD6X97M685087,WITH AUTOCRANE TITAN 6014'
AND MECHANIC SERVICE BODY SIN 605KRZO
0606 Shipping & Handling Cost S 0.00
-088
-
Installation Cost S 0.00
Other (Specify) .00
TOTAL COSTS 122,46 5.001
LOCATION OF EQUIPMENT:
3607 HARTZDALE DRIVE CUMBERLAND CAMP HILL PA 17011
A TERM: 60 Months following the first day of the Each installment in the groups below Is payable on a consecutb a mo
month after delivery
B. ADVANCE RENTAL PAYMENTS: FIRST RENTAL AND LAST
1 RENTAL(S) PLUS APPLICABLE TAXES.
C. INTERIM RENTAL: Per day rental for the period from delivery to the
first of the following month calculated as Monthly Rental divided by 30
times the number of days from the Delivery Date through the end of
the month in which the Equipment is delivered plus applicable taxes.
D. ADMINISTRATIVE FEE: S 0.00
E. RENTAL PAYMENT: 60 Payments of $ 1,913.61
PLUS APPLICABLE TAXES H. PURCHASE OPTION PRICE AT END OF TERM: 36,744,8
F. SECURITY DEPOSIT: 0.00 Plus Applicable Taxes
Any Termination Value Table attached to this Lease is a part of and
incorporated into the terms of this Lease. 1. TAX LEASE STATUS:(check one and initial)
G. PAYMENT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS X Tax Lease: If checked, this Lease is a Tax Oriented Lea a and
PAYABLE UPON DELIVERY OF THE LEASE APPLICATION TO the provisions of Paragraph 13 of this Lease apply.
LESSOR. IN TERIM RENTAL IS PAYABLE UPON DELIVERY OF Non-Tax Lease: If checked, this Lease is not a Tax Orie nted
THE EQUIPMENT. Lease and the provisions of Paragraph 13 of this Lease do not app
THE REMAINING RENTAL PAYMENTS ARE PAYABLE AS FOLLOWS: y.
MONTHLY ON THE FIRST DAY OF EACH MONTH BEGINNING ON J. 5 MACRS Class Life of Equipment.
THE FIRST DAY OF OCTOBER 06 (MOIYR).
TERMS AND PROVISIONS OF LEASE
1. EFFECTIVE DATE: The terms and provisions of this Lease Agreement ("this Lease") and the obligations and liabilities of Lessee under this Lease are effective on dad
of Lessor's acceptance of this Lease (-Effective Date"), even though the Term and Lessee's obligation to pay the remaining Rental Payments may begin on a later date.
2. LEASE: Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor, under and subject to the terms and provisions hereof until the end of Tom
specified above ("Term"), the personal property described above and on any supplemental schedule(s) identified as constituting a part of this lease (herein
with all pres ent arm
,
future attadvnon13, accessories, replacement parts, repairs, and additions, and all proceeds thereof, referred to as "Equipmentl. This Lease is for the Term commenci on IN
date the Equ0nent is delivered to Lessee. For the Term or any portion thereof, Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all Rental Pa imienh
(mdudi g advance and interim rentals) in accordance with the Payment Schedule.
3. PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Paymerts are payable without notice or demand All amounts payable under this Lease to Less or are
payable at Lessor's address set forth herein or at such other address as Lessor may specify from time to time in writing. Except as otherwise specifically provided
' rein;
Lessee
s obligation to pay the Rental Payments and all other amounts due or to become due under this Lease shall be absolute and unconditional under all circumst ances
regardless of any set-off, counterclaim, recoupment, defense or other claim whatsoever. Any Security Deposit is held as security for Lessor's obligations and will be refur ,
ded in
full, without interest, upon payment in full of these obligations.
Page 1 of 5 of Lease Agreement dated WSf06 between HAMPTON CONSTRUCTION MANAGEMENT, UMITED (Lessee) nd
Cn1CAP1TAL COMMERCIAL LEASI NO CORPORATION (Lessor) which Includes, without liry tation, an item crf Equipment with the following serial nu
'
ZNPLHOU(YTN[e50e7
702004 .2 ReyOar2004 ORIGINAL FOR CITICAPITAL Lessee's WWI;
es02004 wpd SbndardfMV Tax tease
1.1{
Tthfy be
CITICAPITAL is a service mark of Citicorp. 1.293683.1.0 XC:20060831092533 Amemberof Crtfgroup'f
4. DELINQUENCY CHARGES: For each Rental Payment or other sun due under this tease which is not paid when due, Lessee agrees to pay Lessor a delinquer icy charge
calculated thereon at the rate of 1 1/2% per month for the period of delinquency or, at Lessors option, 5% of such Rental Payment or other sun due urruder this Lease
provicim l that such
,
a delinquency charge Is not prohibited by law, otherwise a the highest rate Lessee can legally obligate itself to pay and/or Lessor can legally coiled. Lessee agrees to reimbu rse Lessor
immediately upon demand for any amourt charged to Lessor by any depositary Institution because a check, draft or other order made or drawn by or for the benefit of Lessee returned
unpaid for any reason and, if allowed by law, to pay Lessor an additional handling charge in the amount of $25.00 or in the evert applicable law limb or restricts the amou
reimbursdment and/or herding charge, the amourdc chargeable under this provision will be limited arxyor restricted in a
d nt of such
ccor
ance with applicable law.
5. NO WARRANTIES BY LESSOR, MAINTENANCE, AND COMPLIANCE WITH LAWS: Lessor makes no represertations or warranties as to the character of this rsactkn
for tax or other purposes. Lessee ackacwledges and agrees that the Equipment is of a size, design, capacity and manufacture selected by Lessee; Lessor Is rot the manut
' urer of
the Equipment or the manufacturer
s agent: LESSEE LEASES THE EQUIPMENT "AS IS" AND LESSOR HAS NOT MADE, AND DOES NOT MAKE
ANY REPRESENT ION OR
,
WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION, QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY
DUF ABILITY
,
FITNESS OR SUITABILITY OFTHE EQUIPMENT FOR ANY USE OR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER
EXPRESSOR ,
MPLIED
,
Lessee wig not assert any claim whatsoever, regardless of cause, against Lessor. Lessee will not bring any suit or claim against or make any settlement with the manufacturer .
seller to
Lessor of the Equipment (both herein called "Sellerl wiCwut lessor's prior written consent; and the selection, servicing and mairtaining of the Equipment stall be entirely at Les 's risk
and expense. Lessee agrees, at its own cost and expense: (a) to cause the Equipment to be operated with care and only by qualified personnel in the regular course of Lessee's
busireas; (b) to comply with all applicable laws, rules and regulations relating to the Equipment, with any published Instructions or specifications of the Seger and with all of terms of
any insurance policy covering the Equipment; (c) to obtain, or sign any documents Lessor deems necessary and any certificates of title required or permitted by law with res to the
Equipment; (d) to maintain, the Equipment in good operating condition, repair and appearance; and (e) to furnish Lessor promptly with such financial statements and other infor lion as
Lessor may reasonably request from time to time.
6. TERMINATION VALUE: "Termination Value" of the Equipment is the value of the Equipment for purposes of insurance and casualty loss. If Lessor and Lessee have executed a
Termination Value Table with respect to this (rase, the Termination Value as of any date will be the amount indicated on that table plus any accrued and unpaid Rentals or other
amouts payable under this Lease as of that date. If Lessor and Lessee have not executed a Termination Value Table with reaped to this Leese, the Termination Value as of any date
steel mean an amount equal to the total of all accrued erd unpaid Rental Payments and all other amounts then due and remaining unpaid plus the greater of: (a) the then Fair Market
Value (as detenrred in accordance with Paragraph 12 of this tease) of the Equipment as of that date in the same condition as when received by Lessee, reasonable wear and ear from
the normal use thereof alone accepted, as well as in the condition required upon its return determined in accordance with this Lease, and (b) an amount equal to all accrued a unpaid
Rental Payments and ad other amounts teen due and remair" unpaid plus the then present worth of all uaeaued Rental Payments plus either (I) the Purchase Option price, r (!) if no
purchase option is offered, the Fair Market Value (as determined in accordance with Paragraph 12 of this Lease) of the Equipment in the same condition as when received toj Lessee,
reasonable wear and tear from the normal use thereof alone accepted, as well as in the condition required upon its return determined in accordance with this Lease. Present rth shall
be determined by discounting such unaocrued Rental Payrrenfs from their respective due dates at the Rate of _ Lan %
7. INSURANCE: Lessee shall bear all risk of loss of, damage to, or destruction of the Equipment from the date of its delivery until its return If, for any reason, any of the E ipment is
lost, stollen, destroyed or damaged beyond repair, Lessee shall (a) imn lately and fully inform Lessor with regard thereto, and (b) promptly pay to Lessor the Temw*m n Value
calculated as of the date of payment thereof. Any amounts actually received by Lessor from insurance or otherwise on Lessee's behalf for such loss or damage shall be applied
' o reduce
Lessee
s obligation under this paragraph Except as tocpressly Provided herein the total or partial destruction of the Equipment or the total or portal loss of use or possession hereof to
Lessee, shat not release or relieve Lessee from its obligations and liabilities under this Lease. Lessee agrees to procure and maintain at all times on and after the Effective to such
tiabifGy, physical damage and other insurance as Lessor may require from time to time. Lessee agrees that all such insurance shall be in form and arcou and with insurers ory
to Lessor, and that Lessee will deliver promptly to Lessor cerifcates or, upon request, policies satisfactory to Lessor evidencing such Insurance. AN liability, policies shall ror a ssor as
an additional insured, and all physical damage policies shag provide that payment thereof shad be made to Lessor and Lessee as their interests may appear. Each policy slu
' I provide
that Lessor
s interest therein shag rot be invalidated by any acts, omissions or neglect of anyone other than Lessor, and shall contain the insurer's agreement to give Lessor a least 30
days prior written notice before cancellation or any material charge in the policy shall be effective as to Lessor, whether such cancellation or change is at the direction of Less se or the
insurer.
e. TAXES: Lessee shall be liable for all taxes, levies, duties, assessments, and other govemmertal charges (including any penalties and interest, and any fees for tikes or rel; istration)
levied or assessed against Lessee, Lessor or the Equipment, upon or with respect to the lease or the purchase, use, operation, leasing, ownership, value, return or other disposit
i on of the
Equipment, or the rant, earn
ngs or receipts arising therefrom, exclusive, however, of any taxes based on Lessor's and income. Unless Lessor notiAes Losses In wrhGng rwise
Lessor will die all returns and rwrdt aid personal property taxes applicable to the Equipment. Lessee agrees to reimburse Lessor for ad such personal prope
' ,
taxes
Irroredlistaly upon receipt of Lessor
s Invoice Including without limitation such taxes assessed or arising during the term of this Lease but remitted by Lessor er the
terminatfon of this Lease.
At Lessor's option, Lessee agrees to remit, along with Lessee's rental payments under this Lease, an amount equal to a percentage of Lessor's reasonable estimate of the wsonal
property taxes that will be assessable against the Equipment during the succeeding tax year. Any such amounts remitted to Lessor will be credited by Lessor against L essee's
obligations under this paragraph Lessee will remain obligated in the evert that such amounts are insufficient to fay reimburse Lessor for the actual amount of such taxes
' and any
surplus will be either credited to Lessee
s other obligations to Lessor or returned to Lessee, lf requested, Lessee agrees to file promptly on behalf of Lessor all requested tax ret am and
reports concerning Cie Equipment in forth satisfactory to Lessor, with all appropriate governmental agencies and to mail a copy thereof to Lessor concurrently with the filing
Lessee further agrees to keep or cause to be kept and made available to Lessor any and all necessary records relevant to the use of the E
ui
ment and
ertainin
t
th
f thereof.
q
p
p
g
o
e o
assessments and other governmental charges. The obligations arising under this paragraph shall survive payment of all other obligations under this Lease and the to taxes,
Ination
of this Lease.
9. LESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT: Title to the Equipment will at all times remain in lessor and Lessee win at an tines
at its own xist arc
,
expense, protect and defend the tine of Lessor from and against all claims, liens and legal processes of creditors or Lessee and keep the Equipment free and dear from all sucl claims
liens and processes. Lessee agrees not to alter or modify the Equipment without first obtaining In each instance the prior written approval of Lessor. Upon the expiration or t
of this Lease, Lessee, at Lessee's sole expense, shag return the Equiprne rt unencumbered to Lessor at a palace to be desi
nated b
L
d i
h ,
bor
g
y
essor, an
n t
e same condition as when
by Lessee, reasonable wear and tear resulting from nomal use thereof alone excepted. Lessee shall, upon Lessor's request, and at Lessee's own expense fumy aft to the E eivec
ip ment
in a conspicuous place, such label, sign or other device as Lessor may supply to Identify Lessor as the owner and lessor of the Equipment. If Lessee fails to perform duly and
any of Its obligations under this Lease (including, without Irritation
insuring the Equipment)
Lessor may perform the sane
but sh
ll
t b
b
i ,
orri try
,
,
,
a
e o
no
l
gated to do so, for the account
to protect the interest of Lessor or Lessee or both, at Leasor's option. Any amount paid or expertise (including reasonable adomey's fees), penalty or other liability incurred by L Lessee
ssor Ir
such performance shall be payable by Lessee upon demand as additional rent for the Equipment.
10. POSSESSION, LOCATION OF EQUIPMENT, RIGHT OF INSPECTION AND ASSIGNMENT: The Equipment will be tept by Lessee al the location indicated herein and wil
,
not the removed from said location without the prior written consent of Lessor. Lessor shag have the right to inspect the Equipment at all reasonable times and from time to time
may require. Lessee will not sell, assign, transfer, pledge, encumber, secrete, sublet or otherwise dispose of any of the Equipment or any interest of Lessee in or under t Lessor
L
without Lessor's prior written consent. Lessor or any assignee or successor of Lessor shelf have the rgft to transfer, sell or assign an or cry portion of this Lease or the ind
and/or obligations hereunder, without notice, ackrdwledgement or corsent from Lessee
LESSEE WAIVES
RELINQUISHES
DIS ease
edness
.
,
,
CLAIMS AND AGREES THAT IT WILL NOT
AGAINST ANY ASSIGNEE OF LESSOR ANY CLAIMS, COUNTERCLAIMS, CLAIMS IN RECOUPMENT, ABATEMENT, REDUCTION, DEFENSES, OR SET-OFFS FOR BR
WARRANTY OR FOR ANY OTHER REASON INCLUDING THE RIGHT TO WITHHOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE UN
ER T SERT
CH OF
D
HIS LEASE E
DEFENSES THAT CANNOT BE WAIVED UNDER THE UNIFORM COMMERCIAL CODE. After receiving notice of any assignment by Lessor, Lessee agrees that it will not? wit XCEPT
out the
prior written consent of the assignee, purchaser or secured party, (i) prepay any amounts owing under this Lease; (II) modify or amend this Lease; or (iii) exercise any fights 'ch are
exercisable only with the consent of the Lessor.
11. OPTIONS AVAILABLE TO LESSEE: PURCHASE OPTION: If the amount set forth as the Purchase Option Price is S-0- or is left bland, Lessee shall have in
whatsoever to purchase any of the Equipment. If "FMV' or a dollar amourt other than S-0- is indicated as the Purchase Option Price
Lessee Is not then in d
f
lt
d L ) option
,
e
au
an
essee
an other amounts payable under the terns of this Lease, Lessee shall have the option to purchase all but not less than all of the Equipment subject to this Lease at the end of the s paid
Term of
this Lease at the Purchase Option price indicated if "FMV" is designated as the Purchase Option Price, the purchase price shall be the Fair Market Value of the Equipment in th e return
condition required at the end of the Term. Any sales or other applicable taxes and any personal property or other taxes (whether or not then payable) assessable against the E
shall be the responsibility of Lessee and will be payable to Lessor along with the Purchase Option Price. ip er t
Page 2 of 5 of lease Agreement dated 9f5o6 between MAMPraN CONSTRUCTION MANAGEMENT, UUffM (Lessee)
and CITICAPITAL COMMERCIAL LEASING CORPORATION (Lessor) which includes, without limitation, on item of Equipment with the following serial
2NPLHOMMUGaSM Lessee's h
702004 -2 Rey 08l2004 ORIGINAL FOR CITICAPITAL
Ise02004.wpd Standard/FMV Tax Lease 1.293683.1.0 XC:2006083iO92533
1.14
Lessee must notify Lessor in writing at least ninety (90) days prior to the expiration of the Term of Lessee's intention to return the Equipment or to exercise any option to rchase.
Failure to give such notice or to pay the Purchase Option Price on or before the expiration of the Term will render Lessee's option to purchase null and void, Lessor is author ' zed and
directed to apply the amount of any security deposit to the Purchase Option Price and the balance, f any, of the Purchase Option Price must be received by Lessor no later n ten
(10) days after the last day of the Lease Term. Upon receipt of the total Purchase Option Price and all other amounts payable under this Lease, Lessor shall corwey the Equil mug to
Lessee AS IS, WHERE IS, Wn14OUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABI ITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
12. FAIR MARKET VALUE: The term "Fair Market Valus' as used herein shag be determined on the basis of, and shag be equal in amount to, the value which the E 'prrert
would obtain In an arms length sat transaction between an informed and willing txryer-user (o0ter than a buyer currently in possession) and an informed and willing seller rider no
compulsion to sell end assuming that the Equipment is then in the condition required under the terms of the Lease. If on or before 60 days prior to the expiration of the Ter of the
Lease, Lessor and Lessee are unable to agree upon a determination of the Fair Market Value of such Equipment, such value shall be determined in accordance with the ing
definition by a qualified independent appraiser selected by lessor. The appraiser shag be instructed to make such determination within a period of 45 days following appDirftm but in
no evert later than 10days prior to the expiration of the Term of the tease, and shall promptly communicate such determination in writing to Lessor and Lessee. The ap ,
caiser's
determination of such Fair Market Value shag be conclusively binding upon both Lessor and Lessee. The expenses and fees of the appraiser shag be borne by Lessee.
13. TAX INDEMNITY: Lessee and Lessor agree that Lessor shall be entitled to modified accelerated cost recovery (or depreciation) deductions with rasped to the Equipm
should, under any cirarrmtances whatsoever, except as specifically set forth below, either the United States goverment or any state tax authority disallow
eliminate
redu
r ent, and
t
,
,
ce,
or disqualify, in whole or in part, any benefits consisting of accelerated cost recovery (or depredation) deductions with respect to any Equipment, Lessee shall then Irdernify p
ure,
essor
payment to Lessor, upon demand, of a sum which shall be equal to the amount necessary to permit Lessor to receive (on an after-tax basis over the full term of this Lease) same
after-tax cash flow and after-tax yield assumed by lessor in evaluating the transactions contemplated by this Lease (referred to hereafter as 'Economic Return) that lessor old have
realized had there not been a loss or disallowance of such benefits, together with, on an after-tax basis, any interest or penalties which may be assessed by the governmental authority
with respect to such loss or disallowance, In addition, if Lessee shall make any addition or improvement to any Equipment, and as a result thereof, Lessor is required to ' ude an
additional amount in its taxable It=", Lessee shall also pay to Lessor, upon demand, an amount which shall be equal to the amount necessary to permit Lessor to receive (o an after-
tax basis over the full term of this Lease) the same Economic Return that Lessor would have realized had such addition or improvement not been made. Lessor and Lessee a gree that
the Class Lie of the Equipment for federal income tax purposes is as indicated on the front side of this Equipment Schedule.
Lessee shag rat be obligated to pay arty suers required by this section with respect to any Equipment in the event the cause of the loss of the deductions results solely from o or more
of the following events: (1) a failure of Lessor to timely claim modified accelerated cost recovery (or depreciation) deductions for the Equipment in Lessor's tax return, other that a failure
resetting from the Lessors d elemination, based upon opinion of counsel or otherwise, that no reasonable basis exists for dairning accelerated cost recovery (or depreciation)
i unctions
or (2) a failure of Lessor to have suffic
ent gross income to benefit from accelerated cost recovery (or depreciation) deductions. Lessor agrees to promptly notify Lessee of a ,
rty claim
made by any federal or state tax authority against the Lessor with respect to the disallowance of cost recovery (or depredation) deductions All amounts payable by Lessee mart to
this section shag be payable directly to Lessor. All the mderrriges contained in this section shall continue in full force and effect notwithstanding the expiration or other terming on of the
Lease in whole or in part and are expressly made for the benefit of, and shall be eriorceatile by, Lessor.
Lessees obligations under this section shall be that of primary obligor irrespective of whether Lessor shall also be indemnified with respect to the same matter under so ns other
agreement by another party. The obligations of Lessee under this section are expressly trade for the benefit of, and shall be enforceable by, Lessor without necessity of decl aring the
Lease in default and Lessor may initially proceed directly against Lessee under this section without first resorting to any other rights of indemnification it may have
14. DEFAULT BY LESSEE: If Lessee at any time defaults in any of As obligations to Lessor, such default shall be considered an abandonment of all options herein and all ions
herein shall immediately expire and become null and void
15. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Lease are not assignable and that no modification of the provisions hereof shall be binding Ness in
writing and signed by an officer of the party to be charged
16. DEFAULT AND REMEDIES: An evert of default shag occur f: (a) Lessee fade to pay when due any amount owed by it to Lessor or any affiliate (including, without brinita ry any
direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under this Lease or if Lessee fails to pay when due any amount owed by it to Lessor or a affiliate
(induciiirg, without linrtatiory any drect or indirect parent, subsidiary or sister entity), successor or assignee of Lessor under any other document, agreement or Irstrumert; ( Lessee
breaches any warranty or provision hereof or under ary other doournert, agreement or Instrument between Lessor and Lessee or between Lessee and any affiliate (including , without
firri ation, any direct or indirect parent, subsidiary or sister entity) successor or assignee of lessor, (c) Lessee ceases to do business as a going concern,
becomes insolvent,
kes an
grop
assignment for the benefit of creditors, admits in writing is Inability to pay its debts as they become due, or takes advantage of
is attached; (a) a petition in bankruptcy or for an arrangement, reorganizabon, composition, liquidation, dissolution or similar relief is filed by or against Lessee under any pre it future
statute, law or regulation; (f) Lessee or its shareholders take any action looking to its dissolution or liquidation; (g) a trustee or receiver is appointed for Lessee or for any su ial part
of its property; (h) f there shag occur an (i) appropriation, (i) coriscatloR (W) retention, or (Iv) selzure of control, custody or possession of the Equipment by any governmental
including without limitation, any municipal, state, federal or other governmenal entity or any govertrrental agency or instrumentality (all such entities, agencies and irstrune
Rhority
s stag
hereinafter be collectively referred to as "Governmental Authority); (i) if anyone in the cortrol, custody or possession of the Equipment or the Lessee is accused or allege harged
(whether or not sub sequerty arraigned, indicted or corMcted) ty arty Governmental Authority to have used the Equipment in connection with the commission of arty crime than a
misdemeanor moving violation); p) there shall be a material adverse change in any of the: (k) condition (financial or otherwise),busiiess, performance, prospects
oper tiors or
,
properties of the Lessee (e) legality, validity or enforceability of this Lease, (iii) perfection or priority of the ben grerted in favor of to Lessor pursuant to this Lease, (N) ability of Lessee
to repay the indebtedness or perform its obligations under this Lease or (v) rights and remedies of the Lessor under this Lease are impaired; (Q there shall be a death of a major owner
of Lessee or a guarattor of the obligations of Lessee under this Lease; or (m) except for the security Interest lien or reservation of title in favor of Lessor or as otherwise grant herein
there shag be any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Lessee to Lessor. ,
Upon the occurrence of an event of default Lessee shag be in default hereunder and Lessor may, at its option, with or without notice to Lessee (a) declare all sums due and to t;ecome
due herelu der and all other suers then owing by Lessee to Lessor to be immediately due and payable; (b) declare all other debts then owing by Lessee to Lessor or a affiliate
(Inducing, without Imitation, any direct or indirect parent, subsidiary or sister entity), successor or assignee of Lessor to be immediately due and payable, (c) proceed by a opriste
coot action at actions or otter proceedings ether at law or in equity to enforce performance by Lessee of any and all provisions of this Lease and to recover the damages for breach
theieof;(d) require Lessee to assemble the Equipment and deliver same forthwith to Lessor at Lessee's expense at such place as lessor may designate which is reasonalty enient
to both parties; (e) exercise one or more of the rights and remedies available to a secured party under the Uniform Comanercial Code, whether or not this transaction is subject eto; M
enter, or its agents may enter, without notice or liability or legal process, into ary premises where the Equipment may be, or is believed by Lessor to be, and repossess an or part
thereof, disconnecting and separating the same from any other property and using all fore necessary and permitted by applicable law, Lessee hereby expressly waiving all furih rights
to possession of the Equipment after default and at claims for injuries suffered through or loss caused by such repossession; andfor (g) apply any security deposit or other amo s held
by Lessor to any indebtedness of Lessee to Lessor. In addition, Lessee agrees to pay, to Lessor, as liquidated damages for bas of the bargain and not as a penalty
(1) the Te 'nation
,
Value plus (2) all expenses of Walft holding, preparing for sale, selling and the W. including reasonable attorneys! fees and other legal expenses, less (3) any amount tally
received by Lessor from the re-lease, sate or other disposition of the Equipmert. Lessee hereby waives any right to trial by jury in any proceeding arising out of this Lease.
herein contained will require Lessor to re-lease, sell or otherwise dispose of the Equipment. No remedy of Lessor hereunder shag be exclusive of any other remedy herein or othing
vide by
law, but each shall be cursiative and in addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default If allowed by
" -the
reasonable fees for atlorneys
retained by Lessor stall include the amount of any fat fee, retainer, contingent fee or the homy charges of any attorney retained by Lessor In
' ,
orcing
any of lessor
s rights hereunder or in the prosecution or defense of any litigation related to this Lease or the transactions contemplated by this Lease. All notices to Lessee
lating
re
hereto will be considered received when delivered in person or mailed to Lessee at tte address set forth in this Lease, or af*V later address designated in writing by Lessee. Lessor
may sell the Equipment without giving any warranties as to the Equipment Lessor may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not
be considered to adversely affect the commercial reasonableness of any sale of the Equipment
17. INDEMNITY: Lessor (which term as used herein includes Lassoes successors, assigns, agents, and servants) shall have no responsibility or lability to Lessee
its succe mis or
,
assigns or any other person with respect to any Liabilities (as "Llabilitles" Is herein defined), and Lessee hereby assumes liability for, and hereby agrees, at its sole cost and e to
indemnify, defend, protect and save Lessor and keep it harmless from and against, any and all Labildies. The term liabilities" as used herein shall include any and all ' ,
bilities
obligations, lasses, damages, penalties, claims, action, suits, costs, expenses and disbursements of whatsoever kind and nature, including legal fees and expenses, (whether or ,
not any
transaction contemplated hereby is consummated) imposed on, incurred by or asserted against Lessor or the Equipment (whether by way of strict or absolute liability or otherwise
Page 3 of 5 of Leans Agreement dated bet men HAM"011 CONSTRUCTION MA14AGEMENT U1411WO (Lessee) and
CrnCAPITAL COMMERCIAL LEASING CORPORATION
(Lessor) which includes, without limitation, an item of Equipment with the fotowkng serial number,
2HPLHDIX97MOMI
702004 4 Rev 08r=4 Le Ssee'S I Rita
be=4.wpd Standard"V Tax Lease
1.14 ORIGINAL FOR CITICAPITAL
1.293683.1.0 XC:20060831092533
and in any way retai lg to or a rising out of this Lease or the selectior, manufacture, purchase, acceptance, ownership, delivery, non-delivery, lease, possession, use, op ration,
condition, servicing, maintenance, repair, improvement, alteration, replacement, storage, ntttm or other disposition of the Equipment (including without tirrotation, (i) claims as result
of talent or paterd detects, whether or not discoverable by Lessor or Lessee, (I) claims for trademark, patent or copyright infringement, and (iii) tort dorm of any kind NAwthe based
on Lessors alleged negligence or otherwise), including claims for injury or damage to property, or injury or death to any person (including Lessee's employees) or, for any laim or
liability hereby Irtdertmified against The Indemnities arising under this paragraph shalt survive payment of aM other obligations under this Lease and the ternrinnation of this Least.
16. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LESSOR, OR ANY ASSIGNEE OF LESSOR OR ANY
DESIGNEE OF SUCH ASSIGNEE) AS LESSEE'S ATTORNEYdN FACT TO, IN LESSEE'S OR LESSOR'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE PROOF
OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE, EXECUTE AND FILE ANY AGR EMENT,
DOCUMENT, FYVANCING STATEMENT, INSTRUMENT (OR ANY OTHER WRITING OR RECORD) THAT, IN LESSOR'S OPINION, IS NECESSARY TO PERFECT AN R GIVE
PUBLIC NOTICE OF THE INTERESTS OF LESSOR IN ANY EQUIPMENT THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF LE SEE TO
LESSOR; AND (c) ENDORSE LESSEE'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE EQUIPMENT :)R THE
PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE EQUIPMENT (W 4ETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This power is coLO with an
Interest and is irrevocable so king as indebfedrtess remains unpaid from Lessee to Lessor. Lessee agrees to execute and deliver to Lessor, upon Lessor's request, such ments,
writings, records and assurances as Lessor deems; necessary or advisable for the confirmation or perfection of the security interest in Equipment and Lessor's rights hereunder, including
such documents, writings, records and assurances as Lessor may require for filing or recording. Lessee authorizes Lessor or art/ officer, employee or designee of Les or any
assignee of Lessor (or any designee of such assignee) to file a financing statement describing the Equipment. Lessee authorizes Lessor or any officer, employee or designee f Lessor
or any assignee of Lessor (or any designee of such assignee) to file financing statements covering assets of Lessee other than the Equipment described herein.
19. PRIVACY WAIVER: Lessor may receive from and disclose to any individual, corporation, business trust, association, company, partnership, joint venture, or other en (herein
collectively, the "Entity'), including, without limiting the generatgy of the foregoing, Lessors parent or any affiliate or any subsidiary of Lessor and any credit reporting agenc f or other
entity whether or not related to Lessor for any purpose, information about Lessee's accounts, credit application and credit experience with Lessor and lessee authorizes a Entity to
release to Lessor any information related to Lessee's accounts, credit experience and account information regarding the Lessee. This shall be continuing authorizatton for a ll present
and future disclosures of Lessee's account Information, credit application and credit experience on Lessee made by lessor, or any Entity requested to rele ase such
Infonmation to Lessor.
20. DEBIT TRANSACTIONS. Lessor may but shall not be required to offer Lessee the option of paying any of Lessee's obligations to Lessor though printed checks ("Debit
Transactions'} drawn prsuart to this authorization upon Lessee's checking account, using Lessee's checking account number, band routing code and other irfomnation which Lessee
provides to Lessor prior to the first Debit Transaction. Lessee authorizes Lessor to Initiate Debit Transactions from Lessee's checking account in the amount necessary to pay the
rental payments, delinquency charges, or such other amounts as may now or hereafter be due hereunder or under any other present or future agreement with or which is held by
Lessor, plus a fee often dollars (E10.OD) for each Debit Transaction initiated by Lessor. In the event applicable law prohibits or restricts the amount of such fee, the fee c rgeable
antler this provision shall be limited andfor restricted in accordance with applicable law. Lessor may from time to time increase or decrease the Debit Transaction fee upon written
notice addressed to Lessee's last known address as shown on the records of Lessor and such increase at decrease shall be effective as stated in the written notice. Unless ibded
by applicable law, Lessee's continued use of Debit Transactions after the effective dale specified In such notice shall condusivety establish Lessee's agreement to pay then Debit
Transaction fee stated therein Lessee authorizes Lessor or any officer, employee or designee of Lessor to endorse Lessee's rare as drawer on any printed check wn in
accordance with this aulhoraaticru Until cancelled by Lessee, this authorization shall be valid for all Debit Transactions Lessor initiates in payrthert of lessee's obligations he or
under any other present or hive agreement with or which is held by Lessor . This authorization may be canceled at art/ time by Lessee giving at least three (3) business ys prior
wriften notice to Lessee's bank and Lessor. Payrnert by Debit Transactions Is not required by lessor nor Is its use a factor In the approval of credit
21. GENERAL PROVISIONS: (A) It is the intention of the parties hereto that this contract constitutes a lease for tax and other purposes; howev r, if for
purposes of perfection, this contract is interpreted by any court as a lease intended as security, Lessee grants to Lessor, its affiliates (including, without
limitation, any direct or indirect parent, subsidiary or sister entity), successors and assigns a security interest in the Equipment to secure the paym t and
performance of ant debts and all liabilities of Lessee to Lessor o every kind and character, whether now existing or hereafter anstng and whethe direct,
indirect, absolute, contingent, primary secondary, or otherwise, or to any affiliates (including, without limitation, any direct or indirectparent, subsi isry or
sister entity) successors or assigns of Lessor, now existing or hereafter ansing whether under this Lease or any other agreement and whether due di ctfy or
by assignment The security Interest granted herein shag continue to be effe&e regardless of any retaking or redelivery of the equipment to Lessee Upon
any assignment of this Lease by Lessor, the assignee shag then be deemed the Lessor for purposes of this provision. AN payments made by Lessee U Lessor
with reference to this Lease shall be applied first to any indebtedness which is not secured, then to late charges, then to any other fees or other ounts
payable hereunder other than purchase money debt until all of such indebtedness is paid in full, and then to purchase money debt. This provision ntrols
over any conflicting provision or language in this Lease or In any other agreement between Lessor and Lessee unless the parties mutually agree in wrr
' rig in a
subsequent agreement to overkde this provision. (B) Any provisions hereof contrary to, prohibited by or invalid under applicable laws or regulations hall be
inapplicable and deemed omitted herefrom, but shah not invalidate the remaining provisions hereof, (C) This Lease and any addenda referred t herein
Constitute the entire agreement of the parties hereto. No oral agreement, guarantpromise, condition, representation or warranty shall be binding I prior
conversations, agreement or reprasento9ons related hereto an%or to the Equipment are superseded hereby, and no modification hereof shall be binding
unless in writing and signed by an authorized representative of the party to be bound. (D) The only copy of this Lease that will constitute 'chattel p P for
purposes of the Uniform Commercial Code Is the original of this Lease marked Original for CitiCapital. (E) ANY ASSIGMENT OR TRANSFER O THIS
LEASE TO ANY ASSIGNEE OR SECURED PARTY OTHER THAN CITICAPITAL COMMERCIAL LEASING CORPORATION OR ITS AFFI IATES
("CIIICapltal") VIOLATES THE RIGHTS OF CHICapitaL
22. RENEWAL. Unless Lessee notifies Lessor In writing at least ninety (90) days prior to the expiration of the Term of Lessee's intention to return the Equipmerd or to exe se any
option to purchase, or Lessor notifies Lessee in writing at feast ninety (90) days prior to the expiration of the Tenn of Lessors intention to terminate this Lease, this ase will
automatically renew and continue on a month to month basis following the initial Term rRenewal Tern'] until such time as either Lessor or Lessee provides the otter part f with at
least ninety (90) days prior written notice of that pady's intention to terminate this Lease. Rental Payments will continue to be due and owing urd expiration of such notice Tod. All
of the terns and provisions of this Lease stall govem during any Renewal Term, except that any option on the part of Lessee to purchase the Equipment shall automatically pire on
the expiration of the Term and shall be inapplicable to any Renewal Term.
23. RETURN OF EQUIPMENT: If Lessee does not exercise, or is preluded from exercising, the option to purchase the Equipment at the expiration of the Term or any I
Term of this Lease, Lessee shall, at Lessee's sole cost and expense, return all, but riot less than all, of the Equipment to Lessor immediately upon the expiration of the Te or any
Renewal Tenn of this Lease pusuart to the terns and conditions contained in Lessors Standard Return Conditions for equipmert similar to the Equipment subject to this se (a
copy of which has been delivered to Lessee in conjunction with this Lease).
If Lessee does not surrender the Equipment to Lessor as herein provided, Lessee will be in default of this Lease as to such Equipment, and Lessee shag pay Le. Sir, as
liquidated damages and not as penalty, an amount equal to one hundred ten percent (110%) of the Monthly Retrial Payment applicable to such Equipment. Such payme it shall
commence with the month Immediately following the and of the Term or any Renewal Term and shall continue thereafter monthly until the Equipment Is retuned to Lessor. ssee
agrees that such liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual value exposure and other losses, which are ircapa a of an
exact determination, incurred by Lessor as a result of Lessees retiouv g possession of the Equipment beyond the end of the Term or any Renewal Term g the
foregoing, Lessor shall have the right to obtain immediate possession of the Equipment at any time after the end of the Term or any Renewal Term for such Equiprrent.
Page 4 of 5 of Lease Agreement dated NSM between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
(Lessee)
CITICAPITAL COMMEWAL LEASING CORPORATION (Lessor) which includes, without limitation, an item of Equipment with tine following sarial number:
2NPLtODMTMU5087
704004 '2 Ron, OW004
bs020e4.wpd SdngardrFMV Tax Lane
1.14 ORIGINAL FOR CITICAPITAL 1.293683.1.0 XC:20060831092533
24, LOCATION OF LESSEE: (a) If Lessee is a corporation, limited liability company, limited partnership or other registered organization, its state of incorporation is in thit state set
forth on the last page of this Lease; (b) C Lessee is an individual, hislher principal place of residence is at the address set forth on the last page of this Lease; (c) if Lessee is an
organiarticin, its place of business or if it has more than one place of business, its chief executive office is located at the address set forth on the last page of this Lea Lessee
agrees that it will not, without the poor written consent of Lessor, change its slate of organization 14 is a corporation, limifed liability company, limited partnership or other egistered
organization or the location of its chief executive office or is place of business if it is an organization. If Lessee is an individual, Lessee must notify Lessor in writing of a .hange in
hisrherprinapel place of residence 30 days prior to such change,
26. PAYMENT PROCESSING. Lessee hereby agrees that any payments made by Lessee hereunder by check and received by Lessor at an address other than t h! address
specified on the related invoice may be replaced by Lessor with a substitute instrument of equal amount and presented to Lessee's financial institution for payment from account
referenced on the check from Lessee. If Lessee sends any payment hereunder by check to lessor at any address otter than the one specified on the related invoice, t n Lessee
shall be deemed to have authorized Lessor to substitute such check with an inetnment of equal attaunt and present the substitute instrument to lessee's financial ins itution for
payment from the amount referenced on Lessee's check.
GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS, BUT ONLY TO THE EXTENT SUCH LAW
M NOT PREEMPTED BY FEDERAL LAW OR REGULATION.
IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and rE
Information that Identifies each person or business that opens an account or establishes a relationship. What this means for
when you open an account or establish a relationship, we will ask for your name, street address, date of birth, and Identific
number, such as a social security number or taxpayer Identification number. For businesses, we will ask for the business n
street address and tax Identification number. Federal law requires us to obtain this Information. We may also ask to see
driver's license or other Identifying documents that will allow us to Identity you. We appreciate your cooperation.
DELIVERY AND ACCEPTANCE OF EQUIPMENT
Check Appropriate Box)
Lessee's obligations and liabilities under this Lease are absolute and unconditional under all circumstances and regardless of any failure of operation or loss
of possession of any item of Equipment or the cessation or interruption of Lessee's business for any reason whatsoever.
® On 911/06 , the Equipment leased under this Lease was delivered to Lessee with all installation necessary for the proper use f the
Equipment completed at a location agreed to by Lessee and the Equipment was inspected by Lessee and found to be in satisfactory condition in all
respects and delivery thereof was unconditionally accepted by Lessee. Lessee confirms and agrees that the hour meter or mileage reading, as
applicable, upon delivery of the Equipment was
The Equipment leased under this Lease has not yet been delivered to or accepted by Lessee and, upon delivery, Lessee agrees to execute such
delivery and acceptance certificate as Lessor or Lessor's assignee requires.
THE UNDERSIGNED HEREBY AGREE TO ALLTHE TERMS AND PROVISIONS SET FORTH ON ALL FIVE PAGES OF THIS LEASE AND
RIDERS EXECUTED IN CONNECTION HEREWITH. LESSEE ACKNOWLEDGES RECEIPT OF A COMPLETE COPY OF THIS LEASE TOGEI
WITH ALL RIDERS AND OF LESSOR'S STANDARD RETURN CONDITIONS.
LESSEE:
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
By
(tl taporstlrr r ansta IYEgy mrpelly, an atMadtad lieu rrum sips and shot har or
his ab. If Wr4od pwbmshb. a W" Partner mist sign and rims that We. N
solo Proprietorship. than sore proprlstor must sips and show that title. U idvidual, User
hdl,ldual shad sips and shaetlde as
7steNdwy.')
rule V lce ?2 t ter
Date: 915106 Federal Tax ID # or SSN: 251800323
LESSOR:
CITICAPITAL COMMERCIAL LEASING CORPORATION
By U&UA
Title " i V
Date: 915106 Federal Tax ID #:
Date of Birth:
State of Organization: PA
Page 5 d 5 of lease Agreement dated w5m between "UPTON CONSTRUCTION MANAGEMENT, UMITED ? ?
7andNPLFID®(97Maaa0aC leech7 ITAL COMMERCIAL LEASING CORPORATION (Leaser) which includes, without limltatlon, an item of Equipment wth the following serial nurr
70=4 '2 Rev OW0041
1.nbeiz°oa''?°ttr°>»ifv7ax L.r'° ORIGINAL FOR CITICAPITAL
1.293683.1.0 XC:20060831092533
aticapitaf
AMENDMENT TO LEASE AGREEMENT
(PURCHASE AND RENEWAL OPTIONS)
This Amendment To Lease Agreement (this "Amendment") is attached to and incorporated into the terms of that certain Lease
Agreement (the "Lease") between IED - New Jersey , as Lessor, ar
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED as Lessee, dated 915106
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee hereby
to amend the Lease as follows:
1. Paragraph 11 of the Lease is hereby deleted and the following inserted in lieu thereof.
11. OPTIONS AVAILABLE TO LESSEE
A. OPTIONS ON EXPIRATION OF INITIAL TERM: Upon expiration of the Term of the Lease, the Lessee must exerci e
one of the following options:
(I) Option to Purchase: Lessor hereby grants to Lessee the option to purchase all, but not less than all, o the
Equipment described in the Lease at the expiration of the Term provided that Lessee is not then in default under the ter is of
the Lease and that Lessee gives Lessor written notice of Lessee's intent to exercise this option to purchase at least 911 but
not more than 120 days prior to the expiration of the Term of the Lease. The purchase price will be payable o the
expiration date of the Lease, The purchase price to be paid to Lessor for the Equipment will be the then Fair Market % lue
of the Equipment which Lessor and Lessee agree will be $ 36,744.85 , plus an amount equal to the R ntal
Payments then unpaid under the terms of the Lease, plus applicable taxes, if any, on the above sum, all payable in ash.
Lessor and Lessee agree that the foregoing purchase price Is a reasonable prediction of the Fair Market Value o the
Equipment at the expiration of the Term. Upon such payment, Lessor will execute a bill of sale conveying title t the
Equipment to Lessee on an "AS IS, WHERE IS" BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF Y
KIND.
(ii) Option to Renew: Lessee may renew and continue the Lease with respect to all, but not less than all, o the
Equipment described in the Lease, following the expiration of the Term of the Lease, for a period of 12 month (the
"Renewal Term"), upon the following terms and conditions: (1) Lessee must pay to Lessor for the Renewal Term 12
Rental Payments in the amount of $ 3,197.65 each for each month of the Renewal Term, which will be due and
payable on the first day of each month during the Renewal Term: (2) Lessee agrees to give Lessor prior written notice of
Lessee's intent to exercise this option to renew at least 90 but not more than 120 days prior to the expiration of the Term of
the Lease; and (3) all of the terms and conditions of the Lease will continue to remain in full force and effect durin the
Renewal Term and, if this option to renew becomes effective, the word "Term" wherever the same appears in the Leas will
include the Renewal Term.
Lessee's failure to give any such notice to purchase or renew, or to pay the end of Term option price on or before the
expiration of the Term of the Lease, will render the Lessee's option to purchase null and void and Lessee will be deem d to
have elected to renew the Lease as provided above.
B. OPTION TO PURCHASE ON EXPIRATION OF RENEWAL TERM: Lessor hereby grants to Lessee the opt
purchase all, but not less than all, of the Equipment described in the Lease at the expiration of the Renewal Term pn
that Lessee is not then in default under the terms of the Lease and that Lessee gives Lessor written notice of Lessee's
to exercise this option to purchase at least 90 but not more than 120 days prior to the expiration of the Renewal
Failure to give such notice, or to pay the end of the Renewal Term purchase option price on or before the expiration
Renewal Term of the Lease, will render the Lessee's option to purchase null and void. The purchase price will be pa
on the expiration of the Renewal Term. The purchase price to be paid to Lessor for the Equipment will be the the
Market Value (as defined in the Lease) of the Equipment plus an amount equal to the Rental Payments then unpaid
the terms of the Lease, plus applicable taxes, if any, payable in cash. Upon such payment, Lessor will execute a bill c
conveying title to the Equipment to Lessee on an "AS IS, WHERE IS' BASIS, WITHOUT REPRESENTATION
WARRANTIES OF ANY KIND.
701982
1.02
n to
ded
tent
arm.
the
able
Fair
rider
sale
OR
1.293663.1.0 XC:20060631092533
CiTICAPiTAL Is a service mark of CIt)corp. Amemberof
2. Paragraph 23 of the Lease is hereby deleted and the following inserted in lieu thereof:
23. RETURN OF EQUIPMENT: If Lessee does not exercise, or is precluded from exercising, the option to purchas
Equipment at the expiration of the Renewal Term of this Lease, Lessee shall, at Lessee's sole cost and expense, return a
not less than all, of the Equipment to Lessor immediately upon the expiration of the Renewal Term of this Lease pursuant
terms and conditions contained in Lessor's Standard Return Conditions for equipment similar to the Equipment subject 1
Lease (a copy of which has been delivered to Lessee in conjunction with this Lease). If Lessee does not surrendi
Equipment to Lessor as herein provided, Lessee will be in default of this Lease as to such Equipment, and Lessee she
Lessor, as additional liquidated damages and not as penalty, an amount equal to one hundred ten percent (110°x) of the M
Rental Payment applicable to such Equipment. Such payment shall commence with the month immediately following the e
the Renewal Term and shall continue thereafter monthly until the Equipment is returned to Lessor. Lessee agrees that
liquidated damages are a reasonable estimate and fair compensation for the costs, expenses, residual value exposure and
losses, which are incapable of an exact determination, incurred by Lessor as a result of Lessees retaining possession
Equipment beyond the end of the Renewal Term. Notwithstanding the foregoing, Lessor shall have the right to obtain immi
possession of the Equipment at any time after the end of the Renewal Term for such Equipment.
3. DEFINED TERMS: The terms "Equipment", "Fair Market Value", "Rental Payments", and "Term" as used herein have the
meaning as defined in the Lease (and as modified in this Agreement).
4. DEFAULT BY LESSEE: If Lessee at any time defaults in any of its obligations to Lessor, such default will be com,
abandonment of the options contained in this Agreement and the options herein will immediately expire and become null
5. OPTIONS NOT ASSIGNABLE: It is agreed that Lessee's rights under this Amendment are not assignable and
modification of the provisions hereof will be binding unless in writing and signed by an officer of the party to be charged.
6. Except as expressly modified hereby, the Lease is and shall remain in full force and effect.
Lessor IED - New Jersey
By
Title
701982
1.02
Lessee
By _
Title
HAMPTON CONSTRUCTION MANAGEMENT
Clr
1.293683.1.0 XC:20060831092533
the
but
the
this
the
pay
of
the
an
no
VERIFICATION REPORT aticapital
DEBTORILESSEE NAME & ADDRESS
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
3607 HARTZDALE DRIVE
CAMP HILL PA 17011
Verification Contucted (Verifier Initial & Show Name of Person Contacted)
by telephone contact with
Z-Vr-_by personal contact with 0 O <izz, y and inspection of all collateral.
photographs attached.
Verify as shown below and initial
Debtor/Lessee acknowledges all terms of the Security/Lease Agreement.
ebtor/Lessee acknowledges possession and satisfactory installation of all collateral in
operable condition.
(Describe all collateral and show location below. Attach edule "A" if necessary)
(1) PETERBILT (PACCAR) TRUCK 335 SIN 2NPLHD6X97M6B5 7 wITH AUTOCRANE TITAN 60 14'
MECHANIC SERVICE BODY PACKAGE SIN 605K/120.0606-088 ?
I hereby certify that: I have personally inspected all the collateral described above and/or verified this transaction as
indicated above except as otherwise stated herein.
Date: c'
Signature: j?i?
Title: A y
62042r? . 3/80
Revon
1.00
CITICAPITAL is a service mark of Citicorp.
1.293683.1.0 XC:20060831092533
A memberof
PURCHASE ORDER NO.
Pursuant To LEASE AGREEMENT DATED 9/5106
Between CRICapital Commercial Leasing Corporation ("Owner")
and THE BELOW NAMED LESSEE ("Lessee")
To the below named Seller:
nM4
citicapi al
Please place the order of Owner for the equipment described below and on any supplemental schedule that is identified as constituting a part here f (the
'Equipment"). The Equipment shall be new unless noted below under the description of Equipment.
Please ship the Equipment promptly to the Lessee at the location of Equipment shown below.
Describe equipment and all services and transportation costs to be paid by Owner. (Describe fully, including make, kind of unit, model and serial number
any other pertinent information.) (If additional space needed, check box and attach 'Schedule A7 consisting of pages).
(1) PETERBILT (PACCAR) TRUCK 335 SIN 2NPLHD6X97M685087,WITH AUTOCRANE TITAN 6014'
AND MECHANIC SERVICE BODY S/N 605KH20-0606-088 nd
LOCATION OF EQUIPMENT: PURCHASE PRICE
STREET ADDRESS
3607 HARTZDALE DRIVE -
CITY, STATE & ZIP CODE
CAMP HILL PA 17011
COUNTY CUMBERLAND Equipment Total Cost $ 122,000.00
SELLER: CURRY SUPPLY CO. Shipping & Handling Cost 0.00
STREET ADDRESS
ROUTE 866 Installation Cost
465,00
CITY, STATE & ZIP CODE
CURRYVILLE PA 16631 Sales Tax
0.00
LESSEE: HAMPTON CONSTRUCTION MANAGEMENT, LIMITED TOTAL COST $ 122,465.00
STREET ADDRESS 3607 HARTZDALE DRIVE
CITY, STATE & ZIP CODE
CAMP HILL PA 17011
COUNTY
The purchase price of the Equipment, including all applicable sales, use and excise taxes, payable by Owner is the TOTAL CAST shown above, less ant
discount of Seller. The TOTAL COST includes all of Seller's charges for the services and transportation, if any, specified above or on any supplen
schedule which is identified as constituting a part hereof. Seller hereby agreeing to furnish all of such services and transportation. Any charges for se
and transportation not included in the TOTAL COST of the Equipment (including, without limitation, any unspecified cost of crating, boxing, packing, unim
assembling, installing and testing the Equipment) are to be paid by Lessee and Owner is not responsible thereof. Seller's delivery to Owner of its invoi
the Equipment shall constitute a warranty by Seller to Owner that the Equipment has been or shall be delivered to and accepted by Lessee at the local
Equipment shown above, and that the Equipment conform in all respects to the specifications furnished to Seller with his order. Seller's invoice
adequately describe the Equipment, including serial numbers, if any, shall evidence the sale of the Equipment to Owner but delivery thereof to Lessee
shall contain the date of shipment of the Equipment. Payment of Seller's invoice will be made within 10 days after delivery of the Equipment to Lest
accordance with the terms hereof and the written acceptance by Lessee of the Equipment in form satisfactory to Owner. If Lessee does not accel
Equipment for any reason, Owner shall have no obligation to Seller hereunder and Seller shall refund to Owner any and all sums paid by or incurred by C
or on account of the Equipment.
It is further agreed that Seller will notify Lessee and Owner when the Equipment is shipped. This order shall be a contract between the parties upon Own
receipt of Seller's acceptance on the duplicate order enclosed.
page 1 of 2 of Purchase Order dated WSW between HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
and CITICAPITAL COMMERCIAL LEASING CORPORATION _ (Lossor) which lft*x§ s, without IkNtation, an Rem of Equipment with the folbvhm serial
serval number
2NPLHDBXSTMUSU7
Lessee's Initials
701302 1.02
Lease Document 1302rkdok:
CITICAPITAL is a service mark of Citicorp. 1.293683.1.0 XC:20060831092533
for
and
the
TERMS AND PROVISIONS OF PURCHASE ORDER
1. DELIVERY TO BE MADE TO LESSEE. Lessee Is authorized on behalf of Owner to receive delivery of the Equipment.
2_ INSPECTION AND REJECTION, All of the Equipment shall be received subject to the right of inspection and rejection after delivery thereof at the
location of Equipment shown on the front side hereof. if the Equipment is to be assembled, installed andfor tested, the same must be done fore
Lessee accepts the Equipment. Equipment that is defective or otherwise not in accordance with this order may be returned for credit and Sell r shall
assume all transportation and handling charges in connection therewith. Rejected Equipment shall not be replaced and the purchase price thereof
shall not be adjusted, except upoh Owner's speck instructions in writing to that effect.
3. RISK OF LOSS. Seller shall bear all risk of loss of any of the Equipment covered by this order unfit physically delivered at the designated pla and
accepted by Lessee in writing on form satisfactory to Owner, and shall also bear all risk of loss on Equipment not accepted or rejected by r or
Lessee.
4. REJECTION OF EQUIPMENT AND CANCELLATION BY OWNER. If Lessee or Owner shall reject or refuse to accept any of the Equipment pursuant
to this order for any reason whatsoever, owner shall be doomed relieved of any fiability to Setter under this order as to such Equipment. Set er wifl
settle directly with Lessee all claims and disputes regarding the Equipment. This order may be cancelled by Owner as to any of the Equipment, out
liability, for any reason and at any time prior to the acceptance of such Equipment by Lessee. Seller will settle directly with Lessee all alai s and
disputes regarding the Equipment.
5. NO ASSIGNMENT BY SELLER. Seller agrees not to assign this order without the prior written consent of Owner. In the absence o such
consent, such assignment shall not be effective and, at Owner's option, shall effect a cancellation of all Owner's obligations hereunder.
6. PATENTS. Seller agrees to indemnify, protect and hold harmless Owner, its successors and assigns, and Lessee and its successors and assigns,
against all claims, demands, damages, costs or expenses (including attorneys' fees) for actual or alleged infringements of any patent cove' g any
Equipment hereby ordered or the use thereof.
7. FAIR LABOR ASSURANCE. Seller warrants and represents that the Equipment has been produced in compliance with the requirements oft Fair
Labor Standards Act of 1938 as amended and other applicable municipal, state and federal laws and regulations.
8. WARRANTIES BY SELLER. Seger warrants that: absolute ownership of the Equipment shall pass to Owner free and clear of all lien and
encumbrances at the time of tha acceptance by Lessee and not before; the Equipment will be fit and sufficient for the purpose Intended; a d the
Equipment will conform to the spedfications, drawings or samples, if any, furnished or adopted by Owner and/or Lessee, and will be merchantable, of
good quality and free from defects in material and workmanship. If the lease application and the lease which give rise to this purchase orde were
obtained by Seller, they are genuine and have been validly executed by Lessee, and Seller acknowledges that Seller acted in its own behal or in
behalf of Lessee and the Seller's ads did not and shall not constitute Seller as Owner's agent in any respect whatsoever. Seller agrees that at of its
usual warranties, express and implied as to the Equipment and the services specified on the front side hereof and on any supplemental schedule which
is identified as constituting a part hereof are hereby made to Lessee as well as to Owner, and that Seller will comply with all its obligations with r sped
to the Equipment and will remain solely responsible therefor to Owner and to Lessee. No part or parts made according to Owner's or Lessee's esign
will be sold to any other parson, firm or corporation. The foregoing is in addition to and not in lieu of any and all other warranties express or implie .
9. EXCUSABLE DELAYS. Seller will not be responsible for delays or defaults in delivery if occasioned by unforeseeable cause beyond the contr I and
without the fault or negligence of Seller; and Owner shall not be responsible for failure to receive or take delivery if occasioned by any like cause on its
or Lessee's part.
10. DISCOUNTS. All quantity, cash or other discounts granted by Seller as a direct or indirect result of the purchase herein ordered shall be id to
Owner. Seller represents and warrants that no payments or other consideration have been or will be paid to or received by Lessee or any other p rson
as a direct or indirect result of the purchase herein ordered.
11. INDEMNIFICATION. Seller agrees to indemnify and save Owner harmless from and against any and all liability, loss, damages, expenses. Cau s of
action, suits, proceedings, claims or judgments of whatsoever kind or nature, in contract or in tort and whether based on Owrier's strict liability in rt or
otherwise, on account of actual or alleged injury to persons (induding death), damages to property, loss of business or another loss, which may esult
from malfunction of Equipment or otherwise from any ad or omission of Seller, its agents or employees. In the event of a suit or cross-suit a ainst
Owner by Lessee or any third party, Seller further agrees that Seller shall promptly upon request defend at Seller's expense any such suit or cross suit.
12. MECHANICS' LIENS. If Seller or any subcontractor performs any services such as the assembly, installation or testing of the Equipment, Sell r will
furnish (d requested) waivers of mechanics' lions and affidavits under the law of the State in which such services are performed.
13_ FOR WORK ON LESSEE'S PREMISES. If Seller's services under this order involve work by Seller on the premises of Lessee, Seller shall tae all
necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and, except to the extent th any
such injury is due solely and directly to Lessee's negligence, shall indemnify Lessee and Owner against all loss which may result In any way fro any
ad or omission of Seller, its agents, employees, or subcontractors and Seller shall maintain such Public Liability, Property Damage and Empl er's
Liability Compensation insurance as will protect Lessee and Owner from said risks and from any claims under any applicable Workmen's
Compensation and Occupational Disease Ads.
14. NO PURCHASE ORDER CHANGES. No changes of or amendments to this order shall be binding without Owner's written approval.
SELLER'S ACCEPTANCE OF ORDER: Lessee
By By
Title Title
Page 2 d 2 d PNdins Order dted OlSIOi behmen HAMPTON CONSTRUCTION MANAGEMENT, UN TED
a w CITICAPITAL COQ JM0 CORPORATION '-'-" (L-)
2NPl.Hr)M7M6YtS0a7 M1 '1 Wider Yfduds, WOwui aNlMlm, an loam d Equlpnerat Wlh the fdloWte rditl mxaDC: 's eitlala
701]021.02
Lease OocuffwM 1]02n d= 1.293683.1.0 XC:2006DB31092533 9?4
, CURRYSUPPLY Fax.8147934877 Sep 5 2006 9.55
S&P-05-MS 09:28 FRMICRAIG CI.EIStY CITICAP 17171950875 T0:9147934877
70MIS AND PROVISION OF pWICNASE OMM
t. DELWaRY TO NA MA=N TO LBUEIL Leases to auf mUW as bahdl of Ow pert s, re=tire 46MVery ci tae $9w0 atvt.
P.03
P. W4"004
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Loom 0=461 db0 /an}mW plat b bhelM or Hh.rwaa net b oaeodanoa wNr ilia uder may be mWmod *r Wd ad Ader sMM svo, dN no In aid. W"St wale OwnMa:p=oll= kubuolm M wag b t at db@L BWWMM dal net M rrplaoad and the p:aohaae pAaa ther.d
& PEEK OR Lieu. Eclat dbal bear rA Ibk d bsa el of fit = moved brylililt order is N d-u need sir tea abai?wld 61aaa end
ad4sapld br l?elea h wA/nl en torn aiAaebrfrto Owns. and rM O beer a/ ilea of boon q nt not aeaepbd w n)edled by 0wnar or
ssise.
d. IWIMN Op MA"MW AND OAN NU ATION Wf OWNER I Won or Owner owl nde=t or ralaa is ad4ba any d the tgdpnwd pancind
b bb erdar M nary mom wlud.aele r, Genv r ahel be domed wd*W d any hi ft b A&W wdp flab order as bands Equ**nL teller wo
left dhaol! fwlh Lemon all dolts and dbl axle mesdla the EqulAaata6 Tbb oiler mar be a howled by Dow nib ter at ftae Swil6nant vetoed
Mbft. IN MW besaa asd at ¦or three pdet b the ""eons of such Rq*n:atd ay I seem. Sutler wM sidle dbu* .am peas at ohms and
re1?/1 the te?ai ML
4 NO A bSiN M W SY SMAM , Soldier aag?rrsa0esa flat to asaA/n GM alder uHh" the plat wr lbn eeaa.en' of Oww. Ingo abarnne of ouch
txnsaaet sooh aweltwmMlt tlaaS last M dlterbe awl, at Ornwr'o epMera, char atatt a atwdldbn,et al OwaNy'a eb/latlales hareur+dor.
Q. P"A7ENM Sdu aaaan b Ira sivifry, protest and bald ha=nk- Owaay lb waxesema and Mena, ¦nd Lease sad Ave saoAosam and usalO+s,
d ablla, demands, abmaps, soft or sop- pwhadlr al MEW bas) for -kd or egged ki Mnp mis of enP i I I aowh+0 uqr
n wit lamb yGdMda OO M 64PW.
7. FAIR LAM AEeNRaML Eder waaavb and repawernb that as evotr ant hw been pMducd In oeI plnaea wAh tba Mograr nnb of the Pair
Ldsaf SlwAM Aatof tlO/"alaearbd and etMfappteabta Mvnkt K ebb wf AabralbflwAN regulations.
S. WANRANYMB BY INAA t War v mrft /I0h abrbda.awrion* of the lap0a ant *4 paaa b Owner 6u and dear of al Ibea and
«roarn MMS at the dots At sib0 aaopewaa by Iseme oral vat holwe; to Ega4 1 VA M R aafd tadldbld for the purpow Intended: and Ow
t gwlOwed wbb o=rder to flat speolla ideve daaNfte er varobs, r arq, fiaNahsd or adapbd by Owner snow Loom, aN vo be mardaordebb, d
Wod% 0 o d4kv bb? and have been VV* hewn a"°len wA silo Ma vddas On dab 911a plebme WIN wan
wi/* aeelllod by {a4so, and hater adbw+Nedpe dad Soler soled b b own hehar n In
bMf¦r d LNw sod tea Satbt'e E/b n/d real fad ahd net asaaarab soles 4 OwneYa alwtt !A apt saapalad whaaaefni. =NAM ap"a /rtt t/ d he
4ud eau w, eepteM asd tapled M b tae % 4nfllnt and go 4Nbae epcllod 0a to heat eNa bawd and IS any e:rpipitflraall adlaalada vahkia
1 derdled flu doraa0, Dale a pod hem are Mreby wade b Las" to vol as b Owner, ve d /wt Soler vdl aonplr Sth d le o1+4slien WM MWed
b tea igf4raant aM tvtl rerrfaba sebty reaporaa/dt tlanelorte Owner tad ta Lose", No realer part node scaoeft to 4rweeer Lanwe9 doadn
vaq tae aoW N any =sear paraaa.lrrn or taarpotalan, The %Md M Is lea addWt b and ttA ri Eau d aM nN aY a>Eaawaararia arprwar a tapled.
S. OtCYEAEt4 OMYS. Baler rill act lea aa.ptrwEda for dahlyl ar rlbuha b tN1rMIf r teabaloned by Irdbraaatabhr 4aawA beyond tae oeahdl and
oMleta M tai! or MMllalOS d tbnaAsr, and Qwaar ehrl nee be reepeasDb for baleen b 4414 ar hilts ddrery r exaokned y avy Ike taus. on Rt
ev Laaaeab put.
10. 111800UNTa. AN quaMly. etch or other dbdour a prated by Sapp a is Mean or bdwd rua of IM pyrohsae heal odaad that be paid to
*"I, solar rapreaeaa mdraasante tlat M P@Ym•mbw aNwr ttaaldnara/ttt have bean or adl be pfd b or resolved by Laos orany doer mme.
as a ifind er I dked nor/ aHN rslelra" hareb eelsiod.
t!, NGNN NNO WIL Eder 0""26 knista lry and save Owner hWMkft nom and a WkM IM and IM leanly. 1010.6410$44, OPnae, aa..e Of
aasaa, tadlt, 6n4stlrrla, INfAtw er}a?ewtl d whalaew kind orsorb=, b @wftd v b %p and t bow booed ae Ownoti NEW US* N led ar
onami a, an aewsrfl staslad or n"ld /Wry to penta=ne pnAW4 d danag4l prepargL on of buabasa a anauorlon, width any recall
faam nnNnerse of boonbrd or elhgglto hem nay and or svdubS of Dyer, is apids er earfpbI a& In *A event d s at or ore4.ordt aptnt
Owe r by Lose" ar any V*d garbs, Saner Odhat yress taat OWW 1141 tananpay tqm requed debnd at tlaleft axp rm any awn suet w gaewA
17, M A1 00S' LltiNi. If StA.r of ores aubasrasaokx prlon any sonfieve MM ¦n do ansaddr, Inuabtton or trra ki of *@ SmOrnec t. Sayer vll
-te a hl fx a0quadnq llslew of madhanla' Acne and MOW sederfln bwdtw Stab In xfidle Kith serAw are porfori
WORK ON LEVEE'S p11Ri11 IM r aalera wrvlses under the order L+Niele. rwutt k ttltr en site pnadsoa of Lou" help etN tabs al
aeagr panaaa.. M fa pdvnd 110 aeaann" slow *IV to Parise ar Prop" darns tae A?eEna4 of n* wok end, mono to Uw "two" any
k ft Is AN salq and d ro" b Lenaels MIIIIM n. ahd Ifdaedr L4sot pfd Owner against all %a %W* rapt flout In asy way WM any
r wrAuim of flalp, IS Wale. aaaplayaae, or aaboorlin eft and Seller anal sublb oath PW& lbb*/, A opergf Donap art Dlpbyees
Cot alen per" d Lossao and Owner frost Bald dska and from aft dtaln undo any apocable Vlhftw%
and Onodbrul Alb.
.yWPVRMUM WAN ONANI25L
Na dunOte f ar avarntbrwntr b fla/aaaabr sew/ be biadtsE va4lout t7vrrrsfa vaAbn approval
,; . .
.•
SELLERS A001"ANCE OFORDM'
By
TVs
hw a r7 d nor ?w?aa W - . . _ aaaa/Nw eoaenagrlaaa taswaaaaawr, ytdls
'd e?t+?waeas?.eMabbimm brarveseaaallem tool am Iva be tam"
40104 1"61400
1 lOlOR.1 elRr', elm
citicapital?
ON HIGHWAY TRUCKS STANDARD RETURN CONDITIONS
The following return conditions are a part of and incorporated into a Lease Agreement or
equipment lease schedule ("Lease") entered into on 915106 between the Lessee and
Lessor named below.
Notwithstanding anything to the contrary contained In the Lease, if Lessee does not exercise, or is
precluded from exercising, the option to purchase the Equipment at the expiration of the Term of
be-
he Lease, Lessee will, at Lessee s sole cost and expense, return and unload all, but not less than
all, of the Equipment in a manner consistent with the manufacturer's recommendations and
practices to Lessor immediately upon the expiration of the Term of the Lease at such location as
Lessor directs and pursuant to the terms and conditions contained in the Lease and as follows:
1. Excess Usage. If any item of Equipment shall have in excess of 38.000 miles of use per year (the',,Annual
Allowed Miles') Lessee agrees to pay additional rental equal to the monthly Rental Payment divided by 1/12 of the
Annual Allowed Miles, per each excess mile. A'year" shall be a twelve-month period commencing on the date of
Lessor's acceptance of the Lease, and each successive twelve-month period thereafter during the term of the Lease.
To calculate excess usage for portions of the Lease Term shorter than one year, the Annual Allowed Miles will be
prorated accordingly. The miles of use of an item shall be determined by the odometer attached to said item of
Equipment, and the current mile usage for such item is set forth below. If any such odometer becomes inoperable or
inaccurate, Lessee shall immediately repair or replace same, and shall immediately notify Lessor in writing of such
event and of the correct miles of usage of the Equipment before and during the period of time the odometer was
inoperable or inaccurate. Lessee shall promptly furnish Lessor such information as Lessor may reasonably request
from time to time in order to document the miles of usage of the Equipment. Lessee shall pay such additional rental
within ten (10) days of Lessor's written demand.
Current Odometer Reading:
2. Return Conditions
458
• All components must meet or exceed the manufacturer's minimum recommended specifications while
operated under full load, unless otherwise specified herein. Equipment must be able to pass all then
current DOT requirements for operation.
• No glass will be broken, chipped or cracked. The interior upholstery will be free from cuts, tears, burns,
or other damage.
• There will be no damage to any exterior or interior surfaces that in aggregate, costs in excess of $250 to
repair.
• All decals (other than the manufacturer's original decals), numbers, customer identification, glue and
adhesives must be removed from the Equipment prior to return without damage to paint or any other
portion of the Equipment.
• All frame and structural components must be structurally sound, without breaks, bends, cracks, or
excessive wear.
• Cooling, heating and lubrication systems must not have any leaking systems or be contaminated. All
internal fluids, such as lube oil and hydraulic fluids must be filled at operating levels, all filler caps must
be secured, and all filters must be new filters that meet or exceed OEM standards.
• All batteries must be fully operational without any dead cells or cracked cases.
• All items of Equipment must be cleaned and cosmetically acceptable with all rust and corrosion properly
removed or treated. All material (e.g. dirt, refuse, asphalt or ggravel) must be property removed from the
Equipment and disposed in accordance with all applicable federal, state and local laws and regulations.
B. Tires. All tires will be of the same original size, f and manufacturer (or similar quality manufacturer if the
original manufacturer no longer produces tires of that type) as upon delivery to lessee. All tires will have no
misting or damaged parts, gouges or section repairs and will have at least 50% of tire wear remaining in
usable condition.
C. Electrical System. The alternator, starter, drive motors and electronic control units must be in workable
conditions. All electrical harnesses must be in workable condition without any sectional repair. All gauges,
senders, and switches must be functional.
D. Engine. The engine must have been maintained in accordance with manufacturer's warranty and
maintenance instructions per the applicable machine manual including overhaul of the engine as required.
All engine components must meet or exceed the manufacturer's minimum recommended specifications while
operated under full load.
700175 Rev 1.01
1212005
Page 1 of 2
CITICAPITAL Is a service mark of Citicorp. Amernberof
1.293683.1.0 XC:20060831092533
Determination of satisfaction of these specifications shall be made by sub'ecting the engine to standard
industrytesting to include (but not limited to) testing of the crankcase manifold pressure, oil analysis, and fuel
and oil consumption. An independent inspection agent determined by the Lessor will perform all tests.
E. Mechanical Drive Train. The transmission/hydrostatic drive systems and drop boxes/transfer cases
including, but not limited to, differentials, planetaries, and wet brake systems will be in good condition and
operate quietly without vibrations or leaks.
F. Brakes. The brake system including the parking brake will be functioning as intended. Brakes will operate
smoothly and evenly and stop or hold the machine safely during normal operation. No drums or other braking
components will be damaged or cracked.
G. Hydraulic Equipment. All hydraulic pumps, cylinders, valves, pipe/tubing and hoses must be fully
operational at rated capacity with no leaks, bent cylinder rods, or worn out bushings/p?'ns. Boom hoist times
and steering times must be to minimal manufacturer specifications or repairs made sufficient to meet minimal
specifications.
H. Air Conditioning System. All air conditioning systems and components including compressor, evaporators,
condenser, motor, lines and fittings must be operational and useable without leaks.
1. BOPS/FOPS Structure. The ROPS/FOPS structure will have no damage or prior repairs,
J. Sheet Metal & Body. Sheet metal must be in operational condition without breaks and bends as provided
when the machine was first delivered. Body shall be straight, true, and free from rust or excess wear.
K. Transit Insurance. Lessee must insure the Equipment in accordance with the provisions of the Lease until
the Equipment has been accepted by the Lessor at such location as Lessor's directs. Such insurance must
be in an amount equal to the replacement value of the Equipment and show Lessor as loss payee and must
conform to all other specifications for insurance provided in the Lease.
L. Documents and Records. All items of Equipment must meet and conform to all applicable federal, state
and local health and safety laws and requirements, and, if applicable, have appropriate ANSI inspection
certificates, permits and other certification necessary to operate the Equipment. In addition, Lessee will have
initiated, compiled and retained records relating to preventative maintenance and repairs indicating dates and
hour meter readings and verified by parts invoices. At any time during normal business hours during the
Term of the Lease, Lessee will make such records available to Lessor for verification and inspection as
Lessor may elect.
M. Inspections.
For 90 days prior to return of the Equipment, the Lessee must make the Equipment available to Lessor's
agent{s) during normal business hours for purposes of a detailed appraisal/inspection. The inspection must
specifically cover, but not be limited to, the engine, transmission, hydraulic and electrical systems. Lessee
will bear all expenses of this inspection.
N. STORAGE OF THE EQUIPMENT. At Lessor's election, Lessee must provide safe, secure storage for the
Equipment for a period up to 180 days after expiration or early termination of the Lease at such location as is
satisfactory to Lessor.
3. Remedies. If, in the sole judgment of Lessor, any item of Equipment is damaged or does not meet the standards
set forth above, or if Lessee fails to discharge its obligations set forth above with regard to any item of Equipment,
Lessee will pay to Lessor, immediately upon demand, the cost of repairing or restoring such item of Equipment as
determined by Lessor in its sole discretion in an amount up to the Termination Value applicable to such item of
Equipment.
4. Defined Terms. All capitalized terms used herein but not otherwise defined herein shall have the definitions
prescribed for such terms in the Lease Agreement.
HAMPTON CONSTRUCTION MANAGEMENT, LIMITED IED - New Jersey
LESSEE:
LESSOR
By:
Title: ,VCS
700175 Rev 1.01
1212005
Page 2 of 2
1.293683.1.0 XC:20060831092533
??
25-Jun-2008 01:38pa From-CITICAPITAL
732 098 2507 T-310 P.001 F-303
ICa?II[?I
LOAN AND SECURITY AGREEMENT C t
The undersigned debtor, meaning Ttl debtors Jointly and severally ('Debtor), to "cure the obiigations set forth herein grants to the tender named below therein, with
successors and assigns. called *Lender") under the terms 8110 provisions of thq agreement (this -Agreement") a security utlerest in the followin0 described propel
(herein, witn as present and luture atiachmanis, sxessottes, -eoscemem ns, repair and additions or substhutions, referred to collectively as, Equipment'):
(1) TAKEUCHI SKID STEER LOADER T81801IR SIN 1783057pa8
(1) GME TRENCH COMPACTOR 4M820 SIN MD803398
U 1 ne r-qulpmem wfu oa used pnmamy nor ousel ?s pr ccppmnter' 2 use other than firming operations. C7 The Equipment wit be used primariy for farptiM1g oaoration .
When not in use. the Equipment will be kept at: 007 }IARTIDALE DRIVE CAM HILL pA 17811
PAYMENT SCHEDULE
Debtor promises to pay Lender the Total Amount including precomputed
interval of S 91,26660 in AD installments as follows:
(a) 5 1,943,05 on 0810112008 and a 1111Ie sum on
the like date of each month thereafter until fully paid.
(b) In irregular installments as follows:
provided, however, that the final Instillment will be in the amount of the
then remaining unpaid balance plus any and all other &WIred and unpaid
aura due hereunder. All amounts payable under this Agrocrmat are
Payable at Londoes address shown below or at such other address as
Lender may specify from time to time in writing. Any note taken in
conjunction with this Agreement evidences indebtedness and nolpaymant
The interest under this Agreement is precomputed. The Total Amount is
calculated based on an interest rate of 6.69 Y. per annum based on
a 360-clay year of twelve 30-day months. The cost of credh, which inctudea
interest and the administrative fee of $ 100,00 is calculated
based on an interest rate of 6.75 % per annum based on a 3604ay
year of twelve 30-day months. Late payments may affect the actual Total
Amount payable due to increased accrued interest.
DELINQUENCY: For each Installment net paid when due, Debtor agrees to
pay Lender a delinquency cflar9e caltulated on the amount of such
Installment at the rats of 1'/.% per month for the period of the delinquency,
or, at Lendss's option, s%6 of such installment, provided that such a
delinquency charge is not prohibited by law, oUlerwlse at the highest rate
that Debtor can legally obligate itself to pay andror Lender can legally
collect
USE OF PROCEEDS
Lender Is hereby irrevocably author(ssd and directed to disburaa the
proceeds of this Agreement as follows:
?tR?01,n1 N?tna lntimr and /IdercS'n
S. 81,436.56 _GROFF TRACTOR a EQUIPMENT INC.
6779 CARLISLE PIKE _
MECHANICSBURG PA 1'1055
s 0.00
0.00
Deblor hereby acknowledges and agrees that the proceeds of this Agreement
will be used for comrtlercial. business or agricultural purposes and will not be
used for personal, family or housahold purposes.
Lender may disburse the proceeds using checks, drafts, orders, transfer funds,
or any other method or media Lender deems desirable. Disbursement may be
made in Londe 3 name an Debtors tlehalf orin Debtors name. Disbursement[ in
accordance with the above instructions or any written supplement to these
instructions will cofiWhula payment and delivery to and receipt by Debtor of all
such proceeds.
INSURANCE: Physical damage insurance covering the Equipment is
required. Debtor can furnish this Insurance through an agent or broker of
Debtor's choke. Debtor hereby suthoftes Lender and any asslgnca to
release to any insurance compaAy aflialad with Lender or any assigned
any information relating to a contract or policy of insurance that is
providing or may provide insurance coverage against physical damage to
the Equipment.
Page l of 3 Of Loan and securI1tyy agrecrocntdalled osr2W006 between HA FTON CONSTRUCTION MANAGEMENT LIMITED
CITICAPITAL COMMERCIAL CORPORATION (Lendcri. tasntory and
521700 ORIGINAL FOR CITICAPITAL
1.06 I:cv. usn2ooa 1.390619.1.0 XG20 0 80624 0T4T35 $uy es nit
CiligroYp Irw. is aor vgwoi crcdh opportunity lender. CnrCephol is a Service mark of Ustiarojp Inc.
25-{un-2008 DIt38pa Fron-CITICAPITAL 131 888 2587 T-310 P.002 F-303
1.0 THE EQUIPMENT
1.1 oisr:laimer. LENDER MAKES NO REPRESENTATION OR WARRANTIES. EXPRESS OR IMPLIED, AS TOTHE QUALITY. WORKMANSHIP, DESIGI
MERCHrAN I'ABILITY, SUITABILITY, OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE. OR ANY OTHER REPRESENTATION OR WARRANT
WHATSOEVER. EXPRESS OR IMPLIED. Debtor's obligations hereunder are absolute and unconditlcrQl notwithstanding the exlstsnce, location orconditipn of any het
of Equipmem or its suitability for use in Debtor's business.
1.2 ' EquipmentRacsiptendUsc• Ocbtorwarrants andOWeesthat the Equipment win be Used Solely for business purpdses;theEquipment Isfree from andw
be kept free From ah rims, claims, security interests andenc umoranco other than that cneateo hereby; notwithstanding Lenders claim to proceeds. Debtor will not. wlthot
lender's prior written consent, sell, rent, beW. emumbEf, pledge. transter, secrete Or otherwise dispose of any of the Equipment, nor will Debtor permit any such acs; tih
Equipment will be maintained in good operating condition, repair and appearance, and will be used and operated with care, only by qualified personnel in the regure
course o1 Debtor's business and in conformity with all applicable govemmentat laws and regulatbrts; the Egvipmemishae remain personal property and nor become pa
of any real property regardless of the manner of affiliation; lender may inspect the Equipment and an books and records relating to me Equipment or Debtor'
performance under this Agreement at all reasonable times and from time to time, the Equipment will be kept by Debtor at Debtors place of business which is indicale
immediately below Debtuf s signature and will not be removed from said location withotu the priorwritten consent of lender, except that an item of Equipment which I;
mobile and of a type normally used at more than one location may be used by Debloraway, horn said location in the regular course otDebtors business provided that (a
such deco is not removed from the Urriled States. and (b) if such item is not retuinad to said location within 30 days. Debtor will immediately upon Lender's request ant
each 30 days thereafter until the item is returned report the then current W-211on thereof 10 Lender in writing.
1.3 lnsurance. Debtor shall at all times bear an risk of toss of. damage to or destruction of the Equipment Debtor agrees to procure forthwith and maintain
insurance on the Equipment. for the actual cash value thereof and for the life of INS agreement, in the form of Fire Incurafice with Combatted Additional Coverage arx
Collision. Theft and/or Vandalism and Maicious MischiafCoveraga when appropriate, plus such other cftrance at. Lender may specify from time to lime, an inform ant
anf0unt and with insurers satisfactory to Lender. Debtor agrees to d0ivor promptly to Lender cenifiCatea Or It requested, policies of insurance satisfactory to Lender
each with a standard tong-form foss-payebte endorsement naming Leader of its assigns as toss-payee as their lntarests may appear. Each policy shall provide tha
Lender's interest therein will not be invrlidated by the acts, omissions or neglect of anyone other than Lender, and will contain insurer's agreement to give 30 days prior
written notice to Lender before cancellation of or any material Change in the pollcy vrilbe ellective as 10 Lends, whether such cancellation of change is at the olfaction o
Oebtor or insurer. Lender's acceptance of policies in lesser smovrOu or risks will not be a waiver of Debtor's foregoing obligation. Debtor assigns to lender all proceeds
at" physical carnage insurance m3lnt3fieo by Debtor with respect to the Equipment and My and All returned premiums, up to the amount owing hereunder by Debtor.
Debtor directs air insurers to Puy tvch proceeds directly to Lender, Debtoraulnoraes Lender to endorse Debtors naine Ica an remittances without the joinder at Debtor.
2.0 SECURITY INTEREST
2.1 Security Interest. Debtor hereby grants Lender a first and perfected security interest in the equipment 10 secure payment of the Totem Amount Indicated per
first page of this Agreement and an Other obligations of Debtor to Lender under this Agreement. Debtor further grants to Lender, Lenders successors and assigns and
any Alflate of any of them, a security
ime-test, in the Equipment tseparaic and distinct from and subordinate only to the security interest granted to Lender above) to secure the payment and performance of all
now extsting or hereafter arising 001118, liabilities and obligations of Debtor of every kind and character whether now ekisting or hereafter arising, and whether deed,
inoir att. absolute. contingent, primary, secondary, or otherwise, to Lender or Lender's successors or assigns and any Affiliate of any of them, whether under this
Agreement or any other agreement. and whether due directly or acquired by assignment ('Liabilities). For the purposes of this Agreement, an'ANiiate' of any parry
means and includes any direct Or indirect parent, subsidiary or sister entity of that party. The security interests granted herein wit inure to the benefit of Lender and its
Affiliates. Array stir ns at anytime owing to Debtor and in the possession of Lender or any such Affiliate shall secure pre Liabilities at Debtor to Lender and any Affiliate of
Lender. Upon any assignment 01 this Agreement by Lender, the security interests granted herein will be assigned to and inure to the benefit of such assignee and the
Affiliates of such assignee. The security interests granted herein shall continue 10 be effective regardless of any retaking or redelivery of the Equipment to Ocblor_
2.2 Perfection and Preservation of Security interval. Debtor agrees. at its own cost and expanse: to do everyining necessary Or expedient to perfect and
preservo the security interests of Lender obtained hereunder: to extinguish or defend any action, proceeding of clalrrn artecling Me Equipment including but not limited to
any Mecnanic'S lien, forfeiture action or proceeding; and to pay promptly any taxes, assessments, license fees and other public or private charges when levied or
assessed against the Equipment. this agreement Oran arcompanying note. Debtor authorizes Lender or eery otficer. employee or designee of Lander or any assignee of
Lender (or any designee of such assignee) to file a financing statement describing the F_quipmenl for itself and as representative of Its Affiliates. DeMoragrees tO
execute and deliver to Lender, upon Lender's request. such documents, wnlinos, records and assurances as Lender deems necessary of advisable bar the confamanion
of perfection of the Security u110MISI in the Equipment and LOAft a rights hereunder. including such docuftronts, writings. records and assurances as Lender may require
for Fling or recording,
2.3 Location of Debtor. (?)if Debtor is a corporation, limited liability company, limited ponnersftip er other registered organization. its state of organization is in the
state set forth immediately below its signsAae on the last page Of this Agfomnenl and nebtor agrees that it will not change its tam or state of organization without 30
days prior written notice to Lender. (i) if Debtor is an individual, hts/hef prncipal Place of residence is at the address sot forth immediately below his/her signature on the
last page of this Agreement and, it Debtor changes Deblois principal residence, Debtor will notify Lender in writing of a change in his/her principal place of residence
within 30 days of such change, [)color agrees Ica reimburse Lender for all costs incurred by Lender related to any such change.
3.0 ACCOUNT MANAGEMENT AND PAYMENT PROCESSING
3.1 Application of Payments. AN payments made by Debtor to Lender puravent to this Agreement maybe applied First to any indebtedness wnlcn is not secured,
then to delinquency charges, then to interest. then to his urance payments, then to any other fees or other amounts payable hereunder other than the LWWI" secured
by a purchase money security interest in the Equipment. until ad of such Liabilities are paid in ful , and titan to the Liabilities secured by a purchase money security
interest in Me EquipmsM in the order in which the Liabindes were incurred. This provision controls over any conflicting provision or language in INS Agreernentor in any
other agreement between Lender and Debtor unless the parties mutually agree in writing in ll subsequent agreement to override this provision,
32 DebftTransactions. Lender of any assignee or other holder ofthisAgreement (collectively `Holder") may but shah not be required to offer Debtor the ophop
of paying any of Debtor's obligations to Holder through printed or electronic Checks, drafts Or Charges r0ebft Transactions"). Each Such Debit Transaction maybe
orally authorized by Debtor, any representative of officer of Debtor or any Other party having access Io or control Of Mir account upon which the Debit Transaction is to be
chargeo. Demorauthorizes Holder or any Of11Cer, employee or designee of Holder to initiate Debi) Transactions from Debtor's account in the viarbany sudrorsod amount
plus Eno Holder's then Debit Transaction Fee. This euthorization may be canceled at Any lime by Debtor giving at least thfee-business day's prior written notice to
Debtor's Dank and Holder. Oebbor authorizes Holder to substitute a Debit Transaction for any check or other remittance submitted by Debtor in Me artwunt of that
remittance, Payment by Debit Transactions is not required by Lender nor is its use a factor in the approval of credd.
3.3 Payment Processing. Debtor hereby agrees gnat anypayrruent made by Debtor hersunder by remittance and received by lender at an address otter than Use
address specifiea on lire related invoice maybe repriced by the Holder with a substitute written or electronic Instrument of equal amount end presented to Debtor's
Financial institution for payment ham the account referenced on the remittance (ram Debtor,
3.4 Returned Paymants, In the evert that a check, draft or other remittance sent by Debtor w a Debit Transaction authorized by Debtor is returned unpaid or
rejected for any reason otnor than the lack of a proper endorsement by lender, Lender tugrees MAI the application of such paymerrilOOeblors Liabilities will be reversed
and Dubior agrees to imn'100falery pay Lender the anhbunl Of such returned payment. plus any delinquency charge accruing As the resell of the reversal of any such
payment. Debtor further agrees to pay Lender any amount charged to Lender by" depbsna y fnitdutian because at such return and an additional handling charge In
the anrount, of any, equal to $20, of in the event applicable law limits or restricts IN amount of such reimbursement andlor handling charge, the amounts Chargeable
under this provision will be limited androc restricted in accordance with applicable law.
3,5 Authorization to Share information. Lender or any assignee of this Agreemant may receive from and disclose to eery Affiliate of Lender, the seller or
manufacturer at any Equipment, any Guarantor or other party having a disclosed or undisclosed obligation related to the liabliies or
_ equipmcnb, or any potential
:ny 2 or c er Lo., a.a ire.,. , w wranl eared oerasraaod estwCent Llnderl roar CONSTRUCTION MAMA OCM!!NT, UMIlTG0 (bsuM?
.nu CITICAPITAL COMMErRC AFL CORtORATION I
4217od ORIGINAL FOR CITICAPITAI AR?
1 08 Rev. dsr2ude 1.390619.1.0 XC.200SD624074735
'Buyers Initials
25-II?b-Y008 0):31pri Frat-CITiCAPITAL T32 911 2587 T-310 P.003/011 F-303
purchaser, partic(pent or investor in Debtor's Liabilities or any assignee or atbliate of any of them (he(ein COdoc6vely, the'EnVW), and any creelit reporting agency for
atly purpose. infonnation about Debtor's accounts, credit application and credit expedence wfrh Lender or any Entity. Debtor authorizes any Entity to release IoLender of
any assignee. or any Affiliale of either of them arty information totaled to Debtors accounts. credit experience and account inforrnatio t regarding Debtor. This s hall be
continuing authorization for off present and future disclosures of Debtortf account information, credit application and credit experience an Debtor made by
Lender, or any Entity requested.
4.0 PERFORMANCE BY LENDER
4.1 Parforrrumcc. If Debtor falls to perform any of its obligations Hereunder, including, without limlation, Debtor's obligation to insure the Equipment or to protect
and preserve the security interest of Debtor. Lender may perform the same, but shat not oe obligated to do so, for the account of Debtor to protect the interest of Lender
of DeDlor or both, at Lender's option, Debtor shah Immediately repay to Lender any amounts paid by Lender together with interest therbon at the rate payable upon
acceleration of Debtor's obligations under this Agreement. Pertormonee by Lender will apt constitute a wawa of arty default by Debtor.
4.2 Power M Anorlssy. DEBTOR HEREBY APPOINTS LENDER OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF LENDER. OR ANY ASSIGNEE OF
LE14DER (OR ANY DESIGNEE OF SUCH ASSIGNEE) AS DEBTOR'S ATTORNEY-IN FACT TO, IN OEBTOR'S OR LENDER'S NAME; (a) PREPARE, EXECUTE AND
SUBMIT ANY NOTICE OR PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OFANY INSURANCE POLICY INSURING THE EQUIPMENT; (b) PREPARE,
EXE-CUTE AND FILE ANY AGREEMENT. DOCUMENT, FINANCING STATEMENT. TITLE APPLICATION, INSTRUMENT (OR ANY OTHER tMRITrNG OR RECORD)
THAT, IN LENDER'S OPINION. 15 NECESSARY TO PERFECT ANDIOR GIVE PUDLIC NOTICE OF THE INTERESTS OF LENDER IN ANY EOUIPMENT THAT
SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF DEBTOR TO LENDER; AND (e) ENDORSE DEBTORS NAME ON ANY
REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO 7H6 EQUIPMENT OR THE PROCEEDS OF THE SALE, LEASE OR OTHER
DISPOSITION OF THE EQUIPMENT (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER). This poweris coupled with an interest and is inevocabie as long
as any Liabilities remain unpaid.
5.0 DEFAULT AND REMEDIES
6.1 Events of Default. Time i+ of the essenCe. An event of default slial pcour d: (a) Debtor fails to pay when due any amount owed by it to Lender, arty aisigtlee
or any Affiliate. successor Of assign of either of tilem under ids Agreemen(or under the tars of any promissory note delivered in conimdion with this Agreement; (b) or
if Debtor fails to pay any Liabilities when due to Lender or an assignee or any Affiliate, successor Ora &sign of either of them oils otherwise in default under any other
document. agreement or instrument: (e) Debtor defaults under life terms ofany secured indebtedness or indebtedness of a material amount to any other party: (d) Debtor
falls to perform or observe any other term or provision to be performed or observed by It hereunder or under any other instrument or agreement famished by Debtor to
Lenderor to any atfiliate of Lender of o?norwiss acquired by Lender or sny A(Ihlale df Lender, (e) Debtor becomes Insolvent orceasas to do business as a going concern;
(1) any of the Equipment is lost or destroyed. (a) Debtor makes an OWgi menl for the benefit of creditors or tastes advantage of any few for the relief of debtors; (h) a
petition in bankruptcy or for an arrangement reorgarn2ation, or similar relic} is filed by or against Debtor, 0) any Property of Debtor is attached, or a trustee or receiver is
appointed for Debtor or lot substantial part of its properly, elf Debtor opptieS for such appointment; 0) Lender in good faith Defieves that the prospect of payfnent On
performance hereunder is impaired; (k) Debtor faits to pay any final judgment, court order, or, (M sovereign borrowers. any declaration of moratorium; (t) if there shall
occur an O appropriation, (ii) confiscation, (ii) retention, or (iv( seizure of control, custody or possession of any Equipment by any governmental authority, including
without limitation, any municipw. state. federal or other governmenml entity or any governmental agency or instrumentality (all such entities, agencies and
instrumentalities shall heroine flew be collectively referred to a5'Govornmentol Authority,,); (m) it anyone in the COMM), custody orpossession of any Equipment or the
DeDlor is accused or alleged or charged (whether or not subsequently arraigned, indicted or convicted) by any Governmental Authority 10 have used any Equipment in
Coilnection with the commission or arty crime (other than a misderneanur moving viotaltoo); (n) there shall be a material adverse change in any of fhe (i) condition
(inancisd or oulerwiso). business performance, prospects, operations or properties of she Debtor (is) legality, validity or enfotceabirily of this Agreement, (i) perfection or
priority of the lien Drafted in favor of Lendct pursuant to this Agreement, liv) ability of the Qebtot to repay the and indebtedness or perform its obligations under this
Agreement or (y) fights and re nvdies of me Lender under the Agreement are impaired (a) there Shall be a death of majority owner of Debtor Of a guarantor of the
obligations of Debtaf undar this Agreement: (p) except for the security interest. lien or reservation of title in favor of Lender-or as otherwise granted Herein, there shad be
any lien, claim or encumbrance on any of the Equipment securing the indebtedness or obligation of Debtor to Lender or (q) Debtor defaults under any guaranty.
cofteferol agreement, or other supped agreemers).
512 Remedies. Upon the occurrence of an event of delavd, and At any time thereafter as tong as the default continues. Lander may, at 11% option, with of without
notice to Ddb(of (i) declare this agreement to be in default, (it) declare the indebtedness hereunder to be immediately due and payable, (n) declare as other debit Ulan
owing by Debtor to Lender, or any successor of assignee of Lender or any Affiliate of any of them to be immedlatey due and payable, (tv) cancel any insurance arid
credit any refund to me indebtedness, and (v) exercise all of the rights and remedies of a segued party under the Uniform Commercial Code and any other applicable
laws. including the right to require Deblor is assemble the Equipment and deliver !I to Lender at a place to be designated by Lander which is reasonably convenient to
both ponies and to lawfully enter any premises where the Equipment may be without jud(clad pfOCOSS and lake possession thereof. Acceleration of any ustilhies or
indebtedness. if so otected by L ntfer, snail lie Subject to all applicable laws including those peneilling to refunds and rebates of unearned charge Any property other
than, Equipment that is in or upon the Equipment al the lime of repossession may be taken and held without liability unfit its return requested by Debtor. Unless otherwise
provided by taw, any requirement of reasonable notice which Lender may be obligated to give regarding the sale or other disposition of Equipment will be met if such
notice is nailed to Debtor at its address shown herein or to the most current address designated by Debtor to Lender in writing at least ten days before a time of sale or
oillerdisposition. Lender may msposeof any Equipment at apublic or private Set* 0ralauction. Lender may buy at any sale and become Eno owner ofthe Equipment
Debtor agrees tnal Lender may bring any legal proceedings it deems necessary to enforce the payment and performance of 0emor's obligations hereunder in any Court
in the State shown in Lenders address Set form herein, ano service of process maybe made upon Debtor by malting a copy of the summons to Deblor at its address
shown nerain. The inciusion of a trade name Oi O"itin name In tt1C identification Of DeDlor hereunder shalt not tlmlt Lender's right, after the OCCUfrente, Man event of
detauh, to proceed against all of Debtor's assets, inctvding those held or used by Doctor individually or under another trade or division name. Exponses of retaking,
holding, preparing for sate. sell" and the Ilke shall tnclttoe (a) the reasonable fcos of any attorneys retained by Lander, and (b) as other legal expenses incurred by
Lender. Oebwr agrees that Debtor is iabic for all arm unts due hereunder, including any oeticfency remaining after any disposition of Equipment a(ter default Lender
may sell the Equipment without giving any warranties as to the Equipment. Lender may disclaim any warranties of fille, possession, quiet enjoyment, of the like. This
procedure will not be considered to aoversoly affect the Commit rcfal reasonableness of any sale of the Equipment.
5.3 Actclufation Interest. Debtor agrees to pay Lender, upon acceleration of the above InaliblednesS. interest on all sums than owing haround•r et the rate of 1
11214 per month It nor ptohibitod by law. otherwise at the highest rate Debtor can legally obligate itself to pay or Lender ran legally collect. Any 60tu taken herewith
evidences Indebledness and not payment.
6.0 PREPAYMENT
6.1 Partial Prepayment and Automatic Reschedule. Debtor does not hays the dWit to prepay only a portion of the balance of this Agreement prior to maturity
wi(hdut the consent of tender (a) In the event INu there are several units subject to (his Agteernent and as at that portion of the obligation that relates to a specific unit
is paid in fun either as a result of a casualty loss related to the unit which is reported in writing to Lender or the sale of the unit with the prior written consent of fender.
Lender will apply the proccocu; received by fender and identified as totaling to any such transaction to the balance due under this Agreement and reschedule the
remaining monthly payments under this Agreement over the then remaining term. (b) In the event that Debtor Is obligated to Leader or to an assignee of Lender under
the terms of any other agreement, and LCnder or such asslgnea receives one or more reminaiite(s) (other than as indicated in 6.1(a) above) with respect to this
Agreement at a time wrien any amount is past due under another agreement. Lander Of Lender's assignee will heye the right to apply any portion of such excess to the
pwymams then due or past due under the other agreement. (C) In rho event that Lender receivesone of more a remittance(s) (other than as WAcatad in s.t(a) of 6,1(b)
above) with respect to Inis Agreerrmem in an Agate gate amount In CkeeSS of the then amounts due and Lnpa10 undet this Agreement, and the excess amount is equal to
of less than four (4) regularly scheduled udder this Agreement. Lender will apply the amount of such excess to the immediately succeeding monthly Payments under
Page s of S o/ toss o.W Secuti Agretmentdsted OW2=0011 between HAMPTON CONSTRUCTION MA AGEMENT, LIMITED
..it CITlCA PrTAI CQM-M) fi AL COX?ORXTT-- (t.rnaerd. r
5217DD ORIGINAL FOR CiTICAPITAL -?t s[-y.11
1,05 Kew aSf2006 !?
1.390519.1.0 XC:2 00906240 74 735 Buyer's lnfdals
25-Just-2008 01:40pm From-CITICAPITAL TR 888 2581 T-310 P-0041011 F-303
et is Agreement. In (ha event that Lender receives one or more a remltlxrce(s) with respect to this Agreement in an aggtegate amount in excess of the then amounts du
and unpaid under the Agreement, and the eircess amount is in an aggregate amount greater than four (4) regularly scheduled payments under This Agreemenl, Lend)
will, at Lender's option either (i) apply the amount of such emus to the final maturing installment payments under this Agreemenl or (tl) apply the amount of such excel
to me balance due under this Agreement and reschedule the remaining monthly payments under this Agreement overthe than remaining teen. Tile inureat or frnanc
charge included in this Agreement is ptecomputed and early payment of orre Of more instalimertt prior totheir maturity data "not reduce the total irnterel
or finance charge payable by Debtor under this Agreement unless the monthly paymenU are rescheduled. (dI in the event that Lender elects to reschedule th
monthly payments under this Agreement, the portion bf the balance remaining unpaid under Nils Agreement at the time of Tschedula will be calculated in the sam
manner as upon prepayment (but without penalty). The Finance Charge or Annual Percentage Rate applicable to the rescheduled payments will be the lesser Of 1h
interest rate inefuded in this Agreement and the maximum rate allowed by applicable law, Debtors rescheduled monthly payments will appear on Debtors accour
stalcmcal.
6.2 Prapaymord in Full. Debtot has the right to prepay the indebtedness under this Agreement in full (but not in part) at any time. Upon prepayrnem Debtor Wl
receive u rebate of (he unearned portion of the finance charge calculated using an actuarial method or Such other method as Is required by any applicable law minus,
The prepayment ts made prior to the tall twelve months of the contract, a prepayment processing fee Squat to the lesser of (a) 1% of the originally scheduled balance o
the data of prepayment for each ftrl twelve month period remaining until the originally scheduled or later extended due dale of the final installment payable under thi
Agreement as of prepayment and (b) the maximum prepayment and/or acquisition charge allowed by applicable law. AN accrued and unpaid late charges and othe
amounts chargeable to Debtor under this Agreemenl will be payable immediately, upon such prepayment.
7.0 ASSIGNMENT AND GENERAL PROVISIONS
7.1 Chattel Paper. The only copy of Otis Agfccmcnt that constitutes 'Chattel Paper for as purposes aline Uniform Commercal Code is the Copy marks.
'ORIGINAL FOR CITFCAPITAL" which is delivered to end held by CaiCapllal. Debtor acknowledges [net Lender is on operating subsidiary of a national bank.
7.2 Assignment and Waiver. This Agreement may not lie assigned by Debtor without iris proof written Consent of Lender. Lender may sell, transferor assign an
or all ngnls under this Agreement or sell a panicipanon tnerain watiout notice to, acknowledgment of, or consent torn Debtor. All an inducement to Lender to ederx
Credit to Debtor and to any such assignee or participant to accept an assignment of or ponir potion in any interest in this Agreemenl from Lender, Debtor hereby (a
Consents to suCh assignment Dr participation and agrees nor to assert against Lender or any such assignee or participant any C1almS. rauntatdaim, claims 4
recoupment, abatement, reduction, deferrsea, or act-o"s for breach of warranty or for any other reason which Deblor could assert against Lender. any such assignee D
participant or the manufacturer of the Equipment, except defenses which cannot be waived under the Uniform Commercial Code; and (h) agrees to make andror settk
any and all Balms with regard to the Equipment directly and exclusively against arld with the manufacturer and Debtor agrees not to assert any of such claims agains
Lender of any assignee Of participant. Debtor hereby waives any right of set-off Debtor may now rx hereafter have against lender or any assignee of or participant it
this Agreement or any rights under this Agreement.
7.3 General. (a) Waiver of any default shad not be a waiver of" other default. (b) All of Lendef's rights are cumulative and not altemalmIl" (C) NO waive)
change in this agreement or in any related note shall bind Lender unless in writing signed by one of its officers. (d) The term "tender, s11ah Include an assignee al
Lender who is the holder of this agreement. (e) Any provision hereof contrary to, prohibited by or invalid under applicable taws or regulations shag be inapphcobie and
deemed omitted herefrom, but shall not invalidate the remaining provisions hereof. (Q Debtor waives &I exemptions lathe extent permitted bylaw. (g) Lander mey
correct patent errors herein. (h) Any captions to the provisions otth:s Agreememare lox corwefrance "end do not 11n'rl of af(eg theappbration of interpretation of this
Agreement. jr) All of the terms and provisions of tills agreement shah apply to and be binding upon Debtor, its heirs, personal representatives. successors and assignn
and saga Inure to ale benetil of lender, its vicotssor and assigsis. 0The acceptance by Lender of any remittance from a pang other than Debtor shelf In no way
constilute tenders consent to the transler of any of the Equipment to such party. (k) It abibwad bylaw, the'reaaonable fees of attorney" rolained by Lender alnsfl include
ate anwunt at any flat tee, retainer. Contingent fee or Iris hourly charges of any attorney retained by Lender in enforcing any of Lenders rights hereunder or in the
prosecution or deters Le of any litigation related to this Agreement or the transactions Contemplaled by IN% Agreement. (t) Debtor represents and warrants that there is no
material pending or threatened investigation by any governmental 2uftrity, litigation Of other legal proeaedinq (m) So long as any of the Liabilities remains unpaid or
unperformed. (kbtor will provide Lender with such financial information as lender may reasonably request. Inclutting copies of Debtor's financial statements prepared in
accordance with generally accepted accounting principles consistently applied within m days Of the end of each of Debtor s fiscal quarttxs and wilh)n 90 days after trio
end of each of Debtor's fiscal years. Such financial statements shall be prepared on the same basis (reviewed, audited, etc.) as Debtors financial statements are
currently prepared unless advised by the LCnder otherwise, at which rime the Debtor will comply with the Lender's request. (n) Debwr waives any right it may have to
direct the application of any payments nude by II to Lender, and Lender may at its option onset and deduct any liability or obligation of Depfor from any oral) sums owed
by it it Demof.
7.4 Additional Covenants and OralAgraemenL Lender and Debtor agree that this Is a four-pagc security agreement mad each page hereof constitutes a
pan of this agreement. THiS WRITTEN AGREEMENT REPRESENTS THE FINAL. AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
7.S Waiver of Trial By Jury. Lender and Debtor hereby waive any right to vial by jury in any action rotating to this Agreement. Debtor hereby, ter itsetr, its
successors and assigns, WAIVES ANY RIGHT TO SUE OR COLLECT FROM LENDER ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL. PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTC R AS A RESULT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE ENFORCEMENT SY L ENDER OF ITS RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES ARE
PROVEN TO tlE TNT! DIRECT RESULT OF THE GROSS NEGLIGL• NCE OR WILLFUL MISCONDUCT OF THE LENDER.
7.6 Governing Law. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS, BUT ONLY TO THE EXTENT SUCH LAW IS NOT
PREEMPTED BY FEDERAL LAW OR REGULATION.
7.7 Fax Copies. lender and Debtor agree that Lender is supposed to reuive originaly signed copies of all documents refilling to IN& Agreement including,
without limitation. this Agreement and any addendum thereto, any guaranty, and any fesofulions and certificates ofauthonty (au of the foregoing collectively referred to as
the 'Transaction Doctimenis'). However. Debtor agrees that if the original of any of arch Transaction Documents is not received by Lender, than Lender may treat and
rely on any version of any such Transaction Document that has been transmitted to Lender by facsimile transmission Viax.1 as the signed octglnal of such Transaction
Document. However, no fax version of any such document will became effective and binding upon Lender until manually signed by Lender in Lenders offices. In such
event, Debtor waives notice of Lender's acceptance of such.
IMIPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH
CITICAPITAL
To help the United States Government fight terrorism and money laundering, f=ederal law requires us to obtain, verify, and
record information that identifies each person or business that opens an account or establishes a relationship. What this
means for you: when you open an account or establish a relationship, we will ask for your name, street address, date of birth,
and identification number, such as asocial security number or taxpayeridentlfleadon number. For businesses, we will ask for
the business name, street address and tax identification number. Federal law requires us to obtain this information. We may
also ask to see your driver's license or other identifying documents that will allow us to identify you. We appreciate your
cooperation.
PA00 4 of S of Lean and Securi Agreement dead 0612b12008 bctr¦an?eelcrynM TO CONSTRUCTI N MAN GEMENT LOWED (pobtor)
.rid CrTICAPIA COMMt?R IAL CDRPOR4 N
6n rpd ORIGINAL FOR CITICAPITAL
1.06 Rev. b5)20ba 1.390619.1.0 XC:20OWS24074735 iuy- i
25-Jun-2008 V :40pm From-CITICAPITAL
732 888 2587 T-310 P.005/011 F-303
DELIVERY AND ACCEPTANCE OF EQUIPMENT
(Checx App(opriale Box)
Deotot's obligations and liabmies to (.ender are absolute and unconditional under all tnumstences and regatdtess of any faiwe of operation or Debtor's loss c
possession of any item of Equipment of the ClISSS00A or interruption Of Debtor's business for any reason whatsoever.
t? On ?'-'A5 "09• the Equiprrwnt boing purchased with the procaeds of this Agreement was delivered to Debtor with all instaltatlon and Other wor
necas"ry for the proper use of the Equiprnorlt completed at a location ayreLd upon by Debtor; the Ettulpment was inspeged by Debtor and found to be i
satlsfaLlory.cono!lion in all respects and delivery was unconditionally accepted by Debtor.
? The Equipment being purchased with tho proceeds of this Agreerttent hat notyst been delivered to or accepted by Ocbtor and. upon delWery, Ot1No
agrees to execute SuCll delivery and acceptance cerlificalc as Lender requires.
? All of the Equipment was acquired by Debtor prior to the date hereof and was previously delivered to and unconditionally acceplod by Debtor.
Dated: Ofif252008
Lender
CITICAPITAL COMMERCIAL CORPORATION
By
Title: W J lY a S T
90 6AATAWAN ROAD. STE toe-_-= ?*
(Slreel Aaareur
MATAWAN NJ 077d7
(Chy. Slate and 2p Coast
Oebtorls) hereby acllnowledgofs) receipt of an exact copy of this contract
Debtor
HAMPTON C STRUCTION MANAGEMENT, LIM
By:
Title: Restdt'C.;I- T
State of Organization: PA Date of Birth: N/A
ts- Proprittor only)
Federal Taxpayer ID or SSN: 25t80023
Principal ResidenCe/Chief E)rmlive Office/Place of Business
Uri? HARTZDALE DRIVE
(Stmt Aadress) CAMP HILL PA 17011
(Cry, tats area lp Codes
Co-Debtor
By:
Tine:
State of Organization: Date of Birth:
is«e o,epr eta w+M)
federal Taxpayer ID or SSNI
Principal Rasidence/Chief Executive Office/Place of Business:
NA
(SersM Agate ss)
(City. State and Zip Code)
P-0. S of S or Loan and Seeuri}y R CI Ag, ALesreCeOntRP06% doteedd Oti?2ti12008 between In0016?
CITICAPITAL COMME tLenaM 10N CONSTRUCTION ANAL MENT, LIMrTED I
_
h•
521700
1.06 Rev. 95(2006
ORIGINAL FOR CITICAPITAL
1.390619.1.0 XC:20090624074735
JUN-26-2008 THU 09:26 AM Groff Tractor
FAX NO. 7177661580
J ` GROFF TRACTOR & EQUIPMENT, INC.
MEMO_ 8779 CARLIsL.E PIKE
MECHANIGsBURG, PA. 17050
(717) 786.7871 FAX(717)768.1680
TRAM? & EQU/PINENT, IM EPh ata,hPA.G * Now Stanton, State
PA CII Valgncla, PA,
SOLD TO SHIP TO
HAS45P HAMPTON CONSTRUCTION PO# REQ
NO PO NO, SALE
3607 HARTZDALE DR
CAMP HILL, PA 17011
P. 02
Tax D Qty Description ----------------..--------------*
Price Amy
:.
SCR :P. . ,..,...
,.[D'E
06000
.,,:.,,,....PURCHASE O.F...THE FOLL WI
q NG. ^.. ... ... ... „
06000 T E
EXCAVA
:TQR ^ s:'.. • ..., ^...K'
.. ,,. ,
"....... .
.r0
.
5 a
C n!?
/?
...........
ENCkF. ,: X :.:
0.6,0.00, S
N
80339
MQ
3. 2=
,
..
.
0 6-U 60.00
.,. >, .. Lr.SS TRADE - IN
OF
..,
......:.. .
:..
:
: .
:.....
.
..
060.00 NPK E210A ERt~AKEFt
S/1!7 72031
. 250(
000:00. LESS...DO,WN.
PA MENT
'
.,
d W60
:..., ;..<,>:':>..
•.
...
..
;
::;
-
Q. C
.125
,
.. ;.:.....:::..
::>
:.:;:?
:
_
. ..
00000 ,.
TE12MS FINANCE
WITH CITICAQZTAL
' .. „... • , ,.• ... ,. .
.-
000'0. ? ? > ... ::...:... ..? -,: ;.....
.,0
n.
:'
:
00000 AS PER SO# C$43008 29
.
: : .`'
,?
? ? ,
, ....,,y : TOTAL . DESC'14.I=PTIdN NEW.>..762'21
,
GESS
INVOICES
OVER DAYS -1
5g ACCof4pj
0
Mtjt?rr
OnIERWISE 1VRTH S INEV03CE.AALL RE'f MS- ARS SUBJECT 10 A 16% R SS OCKI JC CH
%
CA
W
H
A GE. FEI)
CRAL
_IR 7
pLE&SF IND
u
T INYQ
E NlIM6E
EWT
1 J Yo
X
Charge Sale
** SUBTOTAL 76221.00
** SALES TAX 5317,26
* I - $81438.26
._/?
i
/
For Valuable Consideration the receipt and turfficiency of which CONTINUING GUARANTY aticapital
Is hereby acknowledged, the undersigned. for themselves, their heirs. executors, personal reares-
successors and aspire (individually called Guarantor" and collectively called 'Guarantors') jointly and severally and in Salida, hereby unconditionally gbanantee to' GROFF TRACTOR 8 EQUIPMENT, INC
( W Ply Lena) its successors, endorsees and assigns, (oollectrvey
- or
called' CitiCapltal ) that HAMPTON CONSTRUCTION MANAGEMENT, LTD
(Party to be Gwwanteed) (the 'Cam
pan)r). whose address 1s
424 RAILROAD AVE SHIREMANSTOWN PA 17011
shall promptly and fully perform pay and discharge all of its present and fuhre babkkbes, obligations and mdebtadness to CrI Capital, whether direct or indirect, joint or
absolute or contingent, seared or unsecured, matured or unmatured, and whether ongnafly contracted with or otherwise acquired by CmCapdal (all of which habilr es, obbgeb and
indebtedness are herein hrdmduslly and collectively caged the `Indebtedness' ) This Guar" a an absolute and unconditional guarantee of payment and not of The
hebddy of each Guarantor hereunder is not conditional or contingent upon the genuneress, validity suffiasnicy or enforoeabllty of the Indebtedness or arty instrumeri s, ag s or
chattel paper related thereto (collectively called 'Agreementil or any security orcollateral therefor (collectively cded'Security) or the pursuit by CatiCapital or any ngMs or
which it now has or may hereafter have If the Company fails to pay the indebtedness promptly as the same becomes due, or otherwise fads to perform any obligation under if
the
Agreertents. each Guarantor agrees to pay on demand the entire Indebtedness and all losses acts, attorneys' fees and expenses which may be suffered by QbCapdal by of
the Company's default or the default of any Guarantor hereunder, and agrees to be bond by and to pay on demand any deficiency established by the ads of any of the Ag its or
Security all without relief from valuation and apprarsenent laws and without requrmtg CNCspitd to (r) proceed against the Company by wt or otherwise, (a) foreclose rei If
against, liquidate or exhaust any of the Agreements or Security, or (III) exercise, pursue or erntooe any right or remedy CitlGpdal may have against do Company. any co-G cantor
(whether hereunder or under a separate Instrument) or any other tarty Each Guarantor agrees that this Guaranty shad not be discharged or ~ad by any orcumstan which
coratdute a legator equitable discharge of a Guarantor or surety, or by the death of any Guarador, the records of CrbCapdN shah be received as conclusive evidence of the nt of
the Indebtedness at any time sang, are, or more successive or concurrent suds may be brought and maatlaired against any or all of the Guarantors, at the option of CibCapdsl with or
without joinder of the Company, or any of the other Guarantors as parties thereto, such Guarantor will not eviol Itself of any defense whatsoever which the Company may have rat
CabCailal
p otter than full payment of the Indebtedness, and such Guarantor will not seek a change of venue from any junsdiction or court in which any action, proceeding or I gab-
is commenced
EACH GUARANTOR HEREBY WAIVES NOTICE OF ANY ADVERSE CHANGE IN THE COMPANY S CONDITION OR OF ANY OTHER FACT WHICH MIGHT MATE IALLY
INCREASE SUCH GUARANTOR'S RISK, WHETHER OR NOT CITICAPITAL HAS KNOWLEDGE OF THE SAME EACH GUARANTOR ALSO HEREBY WANES ANY IM,
RIGHT OR REMEDY WHICH SUCH GUARANTOR MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE COMPANY THAT ARISES HEREUNDER ANDIOR FR THE
PERFORMANCE BY ANY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM, REMEDY OR RIGHT OF SUBROGATION, REIMSURS ENT
EXONERATION, CONTRIBUTION INDEMNIFICATION OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF CITICAPITAL AGAINST THE COMPANY O ANY
SECURITY WHICH GTICAPITAL NOW HAS OR HEREAFTER ACQUIRES, WHETHER OR NOT SUCH CLAIM, RIGHT OR REMEDY ARISES IN EQUITY, UNDER CONTRA T BY
STATUTE UNDER COMMON LAW OR OTHERWISE
No tarmnstion hereof shall be affective unbl the Guarantors debar to GhCaptal a written notice signed by them electing not to guarantee any new extension of credit that i lay be
granted by C*Capdal to the Company after Its reeapt of such notice, but such notice shall not afftxt the obligations of the guarantors hereunder as to any and all Indebtedness sting
at the bme such notice is received Each Guarantor hereby waives (I) notice of acceptance hereof and nobw of extensions of credit given by C16Ceptsl to the Company from me to
time (a) presentment demand protest, and notice of non-payment or protest as to any note or other evidence of Idebtedness signed, accepted endorsed or assigned to Cob aptal
by the Company (w) all exemptions and homestead Ism, (iv) any otter demands and notices required by law and (h) any right to trial by pry Cticapdal may at any time a from
hms to tame without notice to or the consent of any Guarantor. and without affecting or Impairing the obligation of any Guarantor hereunder, (a) renew, extend or refinance any part or
all of the Indebtedness of the Company or any Indebtedness of its customers, or of any co-Guarantor (whether hereunder or under a separate Instrument) or any other party (b) accept
partial payments of the Indebtedness and apply such payments to any part of the Indebtedness, (c) settle, release (by operetxhn of law or otherwise), compound compromise, collect
or bquadete, in any maser, any of the indebtedness, any Security or any I ndebtedess of any co-Guarantor (whether hereunder or under a separate aatrumew) or any other rty, (d)
consent to the Insurer of any Security, (e) bid and purchase at any sale of anyof the Agrahernerts or Security, and M exercise any and all rights and remedies available to Citica by
law or agreement eve, if the exercise thafflof may affect, modify or eliminate any rights or remedies which a Guarantor may have against the Company Each Guarantor d "M roue
to be liable under this Guaranty, the provisions hereof shall remain in full force and effed, and CibCspfal shall not be estopped from exercisng any rights hereunder, Ing
(i) ObCapdal waiver of or falure to enforce any of the terms, covenants or conditions contained in any of the Agreements, (n) any release of, or failure on the part of to
perfect try security interest in or foreclose, proceed against, or exhaust try Security, or (ark) ObCapdal failure to take new, additional or substitute sewrhty or collateral or the
Indebtedness
Each Guarantor agrees that C*Captel may bring any legal proceedings it deems necessary to adores any or all of such Guarentors obligations hereunder in any court m the late in
which CrbCaptare office administering the Indebtedness is located ad service of process may be made upon such Guarantor by mailing a copy dthe summons to such Gus rtor at
its address last known to CitiCaptal All rights and raradies of CrhCaptal are amm/athve and not alternative Each provision of this Guaranty is intended to be severable Any term or
provision hared declared to be contrary to, prohibited by or invalid under applicable laws or regulations shall be inspphcable and deemed omtled hherefrom, but shall not invalid a the
remaining terms and provishorhs hereof
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty on J?J 1 6J
(DWA)
Witness . Guarantor HARRY I MORRIS Jr (L
(Name of nevi oorpon a pare-shp)
Witness By , TUffa =NO\vtovakk
(s • auraNa .una iz.d cinm sun sign ohow, ompa..t. too if pww-h p gas
Guaanlo, s Federal Taxpaye nhf?catan or at Security Number is rlertie) "few nxrt Wall aid" 7ertitar ?` s wwduu gi"o` 'f OM n"d r?
424 RAILROAD AVE
- Address SHIREMANSTOWN PA 17011
Note Insert exact company names where appropriate, individual quarantors roust sign guaranty without titles Sign simply "John Smith, Individually; not 'John Smith, Presxl t
DO NOT USE THIS FORM if the guarantor resides or has a principal place of business in Kentucky
620861 Rev 03/2005
1 03 Page 1 all
CITICAPMAL is a seance mark of Ctlcorp
1218665 2 0 XC 2DO50628134315 Amemberof
CONTINUING GUARANTY atica p ita P
For Valuable Consideration, the receipt and sufficiency of which is hereby acknowledged, the undersi for themselves, their heirs, executors, persona) representaWr
successors and assigns (individually called 'Guarantor" and celledivey called 'Guarantors' jointly and severally and in so(ido, hereby unconditiona
,guarantee td _ IRE. #6.32 (LE . WISBERR .
.
....................
. .Y) ...................................... ....................................._--....................., its successors, endorsees and assigns. (collectively
(secured Party rx Lessor)
called" CIUCapitai .) that HAMPTON CONSTRUCTION MANAGEMENT, LTD.
....................................................................................................................................... ................................................
(Party to be GuarantoW)
.................................................................................................
........................................................................................................ (the 'Company*), whaae address
424 RAILROAD AYE SHIREMANSTOWN PA 17011
...........................................................................................................................................................................................................................................................
shall promptly and fusty perform, pay and discharge all of its present and future labGlkies, obrtgatkxm and indebtedness to CiGCapital, whether direct or Indirect, joint or ral,
absolute or contingent, secured or unsecured, matured or unmetured, and whether originally contraded with or otherwise acquired by CItiCal*al (all of which liabilities, oblige! and
indebtedness are herein individually and collectively called the "Indebtedness' ). This Guaranty Is an absolute and unconditional guarantee of payment end not of oollec dbi , The
liability of each Guarantor hereunder is not conditional or contingent upon the genuineness, validity, suffidency or enforceability of the Indebtedness or any insWmenb, alt a Is or
chattel paper related thereto (collectively Called'Agreemerris") or any security or collateral therefor (collectively called 'Security) or the pursuit by CitiCapital of any rights or gas
which 0 now has or may hereafter have. If the Company fags to pay the Indebtedness promptly as the same becomes due, or otherwise fails to perform any obligation under a d the
Agreements, each Guarantor agrees to pay on demand the entire Indebtedness and all losses, costs, attomeyV fees and expenses which may be suffered by CifiCapgel by r son of
the Company's default or the default of any Guarantor hereunder, and agrees to be bound by and to pay on demand any deficiency established by the sale of any of the Agree nts or
Security, erg without relief from valuation and appralsemard laws and without requiring CifiCapital to n proceed against the Company by suit or otherwise, (ip foreclose, roceed
against, liquidate or exhaust any of the Agreements or Security. or (iii) exercise, pursue or enforce any right or remedy C)tiCapilal may have against the Company, any coat rentor
(whether hereunder or under a separate instrument) or any o01er party. Each Guarantor agrees that: this Guaranty shall rot be discharged or affected by any circumstance; which
constitute a legal or equitable discharge of a Guarantor or surety, or by the death of any Guarantor; the records of CifiCapital shag be received as conclusive evidence of the aunt of
the Indebtedness at any time owing; one or more successive or concurrent suits may be brought and maintained against any or alt of the Guarantors, at the option of CifiCapilal, with or
without )finder of the Company or any of the other Guarantors as parties thereto; such Guarantor will not aval Itself of any defense whatsoever which the Company may have against
CitiCapital other than full payment of the Indebtedness; and such Guarantor will net seek a change of venue from any jurisdiction or court in which any action, proceeding or Ii ' ation
is commenced.
EACH GUARANTOR HEREBY WAIVES NOTICE OF ANY ADVERSE CHANGE IN THE COMPANY S CONDITION OR OF ANY OTHER FACT WHICH MIGHT MATE IALLY
INCREASE SUCH GUARANTOR'S RISK. WHETHER OR NOT CITICAPrTAL HAS KNOWLEDGE OF THE SAME EACH GUARANTOR ALSO HEREBY WAIVES ANY LAIM,
RIGHT OR REMEDY WHICH SUCH GUARANTOR MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE COMPANY THAT ARISES HEREUNDER AND)OR FR THE
PERFORMANCE BY ANY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM, REMEDY OR RIGHT OF SUBROGATION, REIMBURSE ENT,
EXONERATION, CONTRIBUTION, INDEMNIFICATION, OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF CITICAPITAL AGAINST THE COMPANY O ANY
SECURITY WHICH CIiICAPITAL NOW HAS OR HEREAFTER ACQUIRES; WHETHER OR NOT SUCH CLAIM, RIGHT OR REMEDY ARISES IN EQUITY, UNDER CONTRA T, BY
STATUTE, UNDER COMMON LAW OR OTHERWISE
No lennination hereof shdi be effective until the Guarantors deliver to CiiCapital a written notice signed by them electing net to guarantee any new extension of credit that i my be
granted by CiiCapdal to the Company after its receipt of such notice, but such notice shag not affect the obligations of the guarantors hereunder as to any and all Indebtedness xisfing
at the time such notice is received. Each Guarantor hereby waves (i) notice of acceptance hereof and notice of extensions d credit given by CifiCapital to the Company from 'me to
time; (II) presentment, demand, protest. and notice d non-payment or protest as to any note or other evidence of indebtedness signed, accepted, endorsed or assigned to CAC;spital
by the Company, (16) an exemptions and homestead laws pv) any other demands and notices required by law; and (v) any right to trial by jury. CiliCapital may at any time a from
time to time, without notice to or the consent of any Guarantor, and without affecting or impairing the obligation of any Guarantor hereunder, (a) renew, extend or refinance any part or
all of the Indebtedness of the Company or any Indebtedness of its customers, or of any co-Guarantor (whether hereunder or under a separate instrument) or any other party; (b) accept
partial payments of the Indebtedness and apply such payments to any part of the Indebtedness; (c) settle, release (by operation of law or otherwise), compound, compromise, tolled
or liquidate, in any mamer, any of the Indebtedness, arty Security, or any Indebtedness of any co, Guarantor (whether hereunder or under a separate instrument) or any other rty; (d)
consent to the transfer of any Security; (e) bid and purchase at any sale of anyof the Agreements or Security; and (f) exercise any and all rights and remedies available to CiflCa 3ital by
law or agreement even if the exercise thereof may affect, modify or eliminate any rights or remedies which a Guarantor may have against the Company. Each Guarantor shall inue
to be gable ureter this Guaranty, the provisions hereof shag remain in fug force and effect, and CiiCapital shall not be eslapped from exercising any rights hereunder, ndvAtts nding
() CKICapital waiver of or failure to enforce any of the terms, covenants or conditions contained in any of the Agreements; (a) any release of, or failure on the part of Cif) d to
perfect any security interest in or foreclose, proceed against, or exhaust, any Security; or (di) CifiCapital failure to take new, additional or substitute security or collateral the
Indebtedness. %
Each Guarantor agrees that CgfCapital may bring any legal proceedings it deems necessary to enforce any or all of such Guarantor's obligations hereunder in any court in the ale in
which CACapuW's office administering the Indebtedness is located; and service of protest may he made upon such Guarantor by mailing a copy of the summons to such Guar. niorat
its address last known to CitiCapdal. All rights and remedies of CRICep)tal are cumulative and not attemefive. Each provision of this Guaranty is intended to be severable. Any arm or
provision hereof declared to be contrary to, prohibited by or invalid under applicable laws or regulations shag be inapplicable and deemed omitted herefrom, but shag net invalidate the
remaining terns and provisions hereof.
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty on
Witness
.......................................................................................................
Witness ..................
Guarantor's Federal Taxpaye I ntlfication or Social ty Number is
188408617
10114/05
(Dole)
Guarantor HARRY I MORRIS Jr.
..... ..... ...............................................................................(L. .)
(NMda Of irxYvldusr, w paMarship)
BY ....A .... MOIVIDUALLY ...................
(a tarpasts 9ueeaYNOr. a adkr must atgn ¦rw On. N paftmhp gw. . ¦
1Nrrarar psrhrar mW elan sad •ioar y . sec guaraNor, show I AMduay
424 RAILROAD AVE
Address SHIREMANSTOWN PA 17011
Note: Insert exact company names where appropriate, individual guarantors must sign guaranty without titles. Sign simply 'John Smith, Individually,' not 'John Smith,
DO NOT USE THIS FORM if the guarantor resides or has a principal place of business in Kentucky.
620061 Rev. 0312005
1.03 Page 1 of 1
CITICAPITAL is a service mark of Citicorp.
1.240142.1.0 XC:20051013074924 Amemberof
IIIIIIIIIIIII
Customer Name-
Contract Number Z (- of 1 co ?- r7 B ooa
r rr Division 9670, Edison, NJ 08837
rr.
Corporate Records Application
Page 1 of l
-ENNSYtVANIA
lepartment of State
c,
amp
DOS Homepage
Entity Details
Request Basic Entity Information
• New Request Entity Type PENNSYLVANIA BUSINESS CORPORATION
Free Search
Entity Name HAMPTON CONSTRUCTION MANAGEMENT, LIMITED
• General Name Search
• Old Name Search Entity No. 2718583
• Orphan Search Filing Date 10/10/1996 Letter of Consent No
I
Address 2745 N FRONT ST
HARRISBURG Pennsylvania USA 17110
County Dauphin Jurisdiction PA
Purpose BROAD
Limited No
Authority
Corporate Officers
Updated Date 10/10/1996
President MORRIS,HARRY I
Secretary
-
Treasurer
Vice-President
Instrument History
Doc Type
ARTICLES OF INCORPORATION-
BUSINESS
Home i Site Map ( view as Text Only
9667 1250 1251 10/10/1996
Back I
MR the
PAPowerPort
Copyright ® 2002 Pennsylvania Department of State. All Rights Reserved.
Commonwealth of PA Privacy Statement
Microfilm# Micro# Micro# Filing
Start End Date
https://www. dos.beta.state.pa. us/CorpsApp/'Corpsweb/Search/wfEntityDetails.aspx?Entit... 10/1
\ ?
//?
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Debtor
COLONIAL PACIFIC LEASING
CORPORATION,
Movant
CASE NO: 1-10-bk-02067-MDF
CHAPTER 11
RE: DOCKET ENTRY NO: 90
V.
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Respondent
ORDER REJECTING EXECUTORY CONTRACT
Upon consideration of the Motion for an Order Approving Rejection of an Executory
Contract with Colonial Pacific Leasing Corporation (the "Agreement"), and the Court finding
that proper notice and opportunity for a hearing having been given, and the Court further finding
that the certain Agreement referenced in the Motion is burdensome to the Debtor's estate and
would cause undue administrative expense if not rejected; it is hereby
ORDERED AND DECREED that:
1. The Agreements among Debtor and Colonial Pacific Leasing Corporation
("Colonial") for five (5) Leases referenced in the Motion be and hereby is deemed rejected.
2. Colonial, in its capacity as counterparty to the Agreement, shall have twenty (20) days
from the date of this Order to file a claim for damages for such rejection, which claim shall be in
accordance with the provisions of the United States Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure, respectively. Failure to timely file such claim for damages shall cause
such claim to be barred forever from recovery of any amount within this bankruptcy case, or
otherwise, for or on account of any such alleged claim for damages arising from rejection of such
agreement.
By the Court,
Dated: November 4, 2010
Chef BartWky Judge
(A)
Case 1:10-bk-02067-MDF Doc 103 Filed 11/04/10 Entered 11/04/1011:18:15
Main Document Page 1 of 1
? \?
? ,
40
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Debtor
COLONIAL PACIFIC LEASING
CORPORATION,
Movant
V.
CHAPTER 11
CASE NO. 1: 1 0-bk-02067 MDF
RE: DOCKET ENTRY NO. 167
ORDER
AND NOW, upon consideration of the Colonial Pacific Leasing Corporation
HAMPTON CONSTRUCTION
MANAGEMENT, LIMITED,
Respondent
("Colonial"), Certification of Default of debtor/respondent, Hampton Construction Management,
Limited Pursuant to Order entered by this Court on March 29, 2011, and after notice it is hereby:
ORDERED that the Movant's motion be GRANTED; and it is
FURTHER ORDERED that the stay afforded by Section 362 of the Bankruptcy Code is
modified so as to permit to exercise all remedies afforded by state law with regard to the
following equipment, s/n, as follows:
a. Caterpillar Loader Wheel Dozer 924G Serial No: DDA01098
b. Peterbilt (PACCAR) Truck 335 Serial No: 2NPLHD6X97M685087 with
Autocrane Titan 60 14' and Mechanic Service Body Serial No: 605K/120-0606-088
(collectively the "Equipment"), including but not limited to pursuing the issuance of a Writ of
Replevin to take possession of the Equipment; and it is
Case 1:10-bk-02067-MDF Doc 170 Filed 05/12/11 Entered 05/12/11 13:43:56
Main Document Page 1 of 2
FURTHER ORDERED that Colonial is authorized to retain, sell, lease, or otherwise
dispose of the Equipment without further Order of this Court or notice to the Debtors, to collect
any and all such payments on account of its sale, lease or other disposition of the
above-described Equipment and to apply such payments to Colonial claim(s) against the
Debtors.
By the Court,
ChWBa*n y,fudge
(A)
Dated: May 12, 2011
Case 1:10-bk-02067-MDF Doc 170 Filed 05/12/11 Entered 05/12/11 13:43:56
Main Document Page 2 of 2
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
~~~t~wtr oC ~~ur~Grly,,~b
,1
CIFf ...^.....::TH :~..LLSiF~
~' i~.~.u c~~' ~~;~.
~~~7 ~~~ ~ ~ ~~~ ~~ ~
ME3~(c~.~;,k~ ~„it~.T
~f<~SY'!_~~~i~l~
Colonial Pacific Leasing Corporation
Case Number
vs.
Harry I. Morris, Jr. 2012-2078
SHERIFF'S RETURN OF SERVICE
08/07/2012 05:30 PM -Michael Garrick, Deputy Sheriff, who being duly sworn according to law, states that on Au
7, 2012 at 1730 hours, he served a true copy of the within Complaint and Notice, upon the within Harr
defendant, to wit: Harry I. Morris, Jr., by making known unto himself personally, at 590 Lucinda Lane,
Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing
him personally the said true and correct copy of the same. ~ ~ _ ,
MICHAEL BARRICK, DEPUTY
SHERIFF COST: $38.45
August 09, 2012
SO ANSWERS,
RON R ANDERSON, SHERIFF
Vic! Coun!vSuite SheriY, TFI==„osnft, I;;^
~... ~
COLONIAL PACIFIC LEASING
CORPORATION,
Plaintiff
v.
HARRY I. MORRIS, JR.
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO: 2012-02078
CIVIL ACTION
NOTICE TO PLEAD
TO: Colonial Pacific Leasing Corporation
c/o Ian S. Clement, Esquire
Wong Fleming„ P.C.
1515 Market Street, Suite 820
Philadelphia, PA 19102
~ ~,
c;. N
~
~ ~- „~
;~ p `'~ ~ v
Syr, ~ °o
~o °~-
.,~
~~
~G
v
. ~
~ ,
YOU ARE HEREBY NOTIFIED TO PLEAD TI
THE ENCLOSED ANSWER WITH NEW
MATTER WITHIN TWENTY (20) DAYS FRO
THE DATE OF SERVICE HEREOF OR A
DEFAULT JUDGMENT MAY BE ENTERED
AGAINST YOU.
BY /~/v ~~ ~ ~vw~ v v
~' Robert E. Chernicoff, Esquire
PA Supreme Court ID# 23380
Nicholas A. Fanelli, Esquire
PA Supreme Court ID# 308.136
2320 North Second. Street
Harrisburg, PA 17110
y Telephone: (717) 238-6570
Date: ~4l
COLONIAL PACIFIC LEASING
CORPORATION,
Plaintiff
v.
HARRY I. MORRIS, JR.
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO: 2012-02078
CIVIL ACTION
ANSWER WITH NEW MATTER
NOW COMES Defendant, Harry I. Morris, Jr. ("Morris" or "Defendant"), by and tl
his undersigned counsel, and submits his Answer with New Matter and in support thereof,
as follows:
PARTIES
1. The first sentence of paragraph 1 of the Complaint is admitted.
a. Denied, pursuant to Pa.R.C.P. 1029(c).
b. Denied, pursuant to Pa.R.C.P. 1029(c).
c. Denied, pursuant to Pa.R.C.P. 1029(c).
2. Admitted.
JURISDICTION AND VENUE
3. Admitted.
4. Admitted.
STATEMENT OF FACTS
5. Admitted.
6. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
-2-
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
7. Admitted in part denied in part, it is admitted that Hampton used its First Set of
Equipment its place of business, but denied that such place of business is
at 424 Railroad Avenue, Shiremanstown, Pennsylvania 17011.
The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
9. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
10. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
11. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
12. The averments of this Paragraph constitute legal conclusions to which
-3-
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary; Defendant denies the averments of this
Paragraph.
13. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without waivi
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy in
the United States District Court for the Middle District of Pennsylvania.
14. After reasonable investigation, Defendants are without knowledge of
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that Hampton is not required to pay interest for 537 days at the
rate of $19.81 per day. Further, Plaintiff has not adequately explained the
calculations from which it derives the amounts allegedly due for the principal
interest and, therefore, the averments are denied. Hampton has an Order of the
United States Bankruptcy Court for the Middle District of Pennsylvania
confirming Hampton's Plan of Reorganization (the "Order"). Pursuant to the
Order, any such payments were discharged and any implication that such
payments are owed is denied.
15. Admitted.
16. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
-4-
____
r _ _.
therefore avers, that the sale of the First Set of Equipment was not
reasonable as required by Pennsylvania law.
17. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
18. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
19. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
20. Denied.
21. Admitted.
22. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
23. Admitted.
24. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of thi
Paragraph are inconsistent with said writing, they are denied.
-5-
---. _ _. T _~ ____ T
25. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
26. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
27. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
28. The averments of this Paragraph constitute legal conclusions to which
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
29. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without waivi
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy in
the United States District Court for the Middle District of Pennsylvania.
30. Denied as stated. Defendant denies that Hampton owes the regular rental
payments for nineteen (19) months plus applicable sales and use taxes.
-6-
_ __ T _ _ ___._
denies that Hampton owes or is indebted to Plaintiff for any late charges or
residual rental stream charges. Hampton has an Order of the United States
Bankruptcy Court for the Middle District of Pennsylvania confirming Hampton'
Plan of Reorganization (the "Order"). Pursuant to the Order, any such
were discharged and any implication that such payments are owed is denied.
31. Admitted.
32. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Second Set of Equipment was not
commercially reasonable as required by Pennsylvania law.
33. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
34. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
35. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
36. Admitted.
37. The averments of this Paragraph refer to a writing which is the best evidence of
-7-
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
3 8. Admitted.
39. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
40. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of thik
Paragraph are inconsistent with said writing, they are denied.
41. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
42. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
43. The averments of this Paragraph constitute legal conclusions to which
is advised by counsel that no response is necessary. If and to the extent a
-8-
_..__ T_.. _ . _..... ' ._.._.. __._... _.._.,..
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
44. Denied as stated. Defendant denies that Hampton owes the regular rental
payments for nineteen (19) months plus applicable sales and use taxes.
denies that Hampton owes or is indebted to Plaintiff for any late charges or
residual rental stream charges. Hampton has an Order of the United States
Bankruptcy Court for the Middle District of Pennsylvania confirming Hampton';
Plan of Reorganization (the "Order"). Pursuant to the Order, any such
were discharged and any implication that such payments are owed is denied.
45. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without wai
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy i
the United States District Court for the Middle District of Pennsylvania.
46. Admitted.
47. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Third Set of Equipment was not
reasonable as required by Pennsylvania law.
48. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
-9-
._T ~.
49. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
50. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
51. Admitted.
52. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
53. Admitted.
54. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
55. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
56. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
-10-
_.__.~ T _ _ _._ _ T_
57
58.
59
60.
61
consistent with said writing, they aze admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Pazagraph are inconsistent with said writing, they are denied.
The averments of this Pazagraph constitute legal conclusions to which
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
Denied as stated. Defendant denies that Hampton owes the regular rental
payments for nineteen (19) months plus applicable sales and use taxes.
denies that Hampton owes or is indebted to Plaintiff for any late charges or
residual rental stream charges. Hampton has an Order of the United States
Bankruptcy Court for the Middle District of Pennsylvania confirming Hampton's
Plan of Reorganization (the "Order"). Pursuant to the Order, any such
were dischazged and any implication that such payments are owed is denied.
The averments of this Paragraph aze legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without waivir.
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy in
the United States District Court for the Middle District of Pennsylvania.
Admitted.
-Il-
... .a-.-~-.-.. ..... - _: _~. _.__
62. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Fourth Set of Equipment was not commercially
reasonable as required by Pennsylvania law.
63. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
64. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
65. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
66. Admitted.
67. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
68. Admitted.
69. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
-12-
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
70. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
71. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
72. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
73. The averments of this Paragraph constitute legal conclusions to which
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
74. Denied as stated. Defendant denies that Hampton owes the regular rental
payments for twenty (20) months plus applicable sales and use taxes.
denies that Hampton owes or is indebted to Plaintiff for any late charges or
residual rental stream charges. Hampton has an Order of the United States
-13-
T
Bankruptcy Court for the Middle District of Pennsylvania confirming Hampton'
Plan of .Reorganization (the "Order"). Pursuant to the Order, any such
were discharged and any implication that such payments are owed is denied.
75. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without waivi
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy
the United States District Court for the Middle District of Pennsylvania.
76. Admitted.
77. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Fifth Set of Equipment was not
reasonable as required by Pennsylvania law.
78. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
79. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
80. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
-14-
~ _ . ~.
81. Admitted.
82. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
83. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of thik
Paragraph are inconsistent with said writing, they are denied.
84. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of this
Paragraph are inconsistent with said writing, they are denied.
85. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
86. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
87. The averments of this Paragraph constitute legal conclusions to which
-ts-
T'
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
88. Denied as stated. Defendant denies that Hampton owes the regular rental
payments for twenty-three (23) months plus applicable sales and use taxes.
Defendant denies that Hampton owes or is indebted to Plaintiff for any late
charges or residual rental stream charges. Hampton has an Order of the United
States Bankruptcy Court for the Middle District of Pennsylvania conf rming
Hampton's Plan of Reorganization (the "Order"). Pursuant to the Order, any
payments were discharged and any implication that such payments are owed is
denied.
89. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy in
the United States District Court for the Middle District of Pennsylvania.
90. Admitted.
91. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Sixth Set of Equipment was not
reasonable as required by Pennsylvania law.
92. After reasonable investigation, Defendant is without knowledge or information
-16-
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
93. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
94. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
95. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
96. Denied.
97. Admitted.
98. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of thi
Paragraph are inconsistent with said writing, they are denied.
99. Admitted.
100. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
-17-
~.~ ~ ~-
101. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
102. The averments of this Paragraph refer to a writing which is the best evidence of
the subject matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
103. The averments of this Paragraph refer to a writing which is the best evidence of
the subject .matter therein. To the extent the averments of this Paragraph are
consistent with said writing, they are admitted; to the extent the averments of
Paragraph are inconsistent with said writing, they are denied.
104. The averments of this Paragraph constitute legal conclusions to which
is advised by counsel that no response is necessary. If and to the extent a
is judicially determined to be necessary, Defendant denies the averments of this
Paragraph.
105. Denied as stated. Defendant denies that Hampton owes the regular rental
payments in the amount of $51,819.34 plus applicable sales and use taxes.
Defendant denies that Hampton owes or is indebted to Plaintiff for any late
charges or residual rental stream charges. Hampton has an Order of the United
States Bankruptcy Court for the Middle District of Pennsylvania confirming
Hampton's Plan of Reorganization (the "Order"). Pursuant to the Order, any
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_r _ ,---~.-_~
payments were discharged and any implication that such payments are owed is
denied.
106. The averments of this Paragraph are legal conclusions to which Answering
Defendant are advised by counsel that no response is necessary. Without wai
the foregoing, Defendant admits that Hampton filed a Petition for Bankruptcy i
the United States District Court for the Middle District of Pennsylvania.
107. Admitted.
108. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied. By way of further reply, Defendant believes,
therefore avers, that the sale of the Seventh Set of Equipment was not
commercially reasonable as required by Pennsylvania law.
109. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
110. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
111. After reasonable investigation, Defendant is without knowledge or information
sufficient to form a belief as to the truth of the averments of this Paragraph and
the same are, therefore, denied.
112. Denied.
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113. The averments of this Paragraph refer to writings which are best evidence of the ~
subject matter therein. To the extent that the averments of this Paragraph are
consistent with said writings, they are admitted; to the extent that the averments
this Paragraph are inconsistent with said writings, they are denied.
114. Admitted in part, denied in part. Defendant admits that he has failed and
to pay the sum demanded by Plaintiff, to wit, $247,956.83. Defendant denies
such failure to pay Plaintiff its demand is wrongful.
115. Denied. By way of further reply, Defendant denies that Plaintiff is entitled to
damages in the total sum of $247,956.83 plus interest, attorney fees and other
costs of collection. By way of further reply, Defendant believes, and therefore
avers, that the third-party sales performed by Plaintiff (or its predecessor) was
commercially reasonable pursuant to the Uniform Commercial Code, and did
realize a sum reasonably close to the fair market value of each piece of eq
that was repossessed. Therefore, Defendant believes that substantial setoffs
be made which will reduce the balance owed by Hampton Construction, Ltd.
116. Admitted.
117. Admitted.
118. Admitted.
119. Admitted in part, denied in part. Defendant admits that Colonial repossessed
certain of the equipment after May 12, 2011. Defendant, after reasonable
investigation, is without knowledge or information sufficient to form a belief as
the truth that the net proceeds of the sale of all the pieces of equipment totals
-20-
$355,898.45. Therefore, this averment is denied. By way of further reply
Defendant believes, and therefore avers, that the assorted sales of equipment
not commercially reasonable pursuant to the mandates of the Uniform
Commercial Code, as adopted in Pennsylvania.
120. Denied.
121. Denied. Morris believes, and therefore avers, that the assorted sales conducted 1
Colonial (or its predecessor) were not commercially reasonable, did not yield
reasonable fair market value of the equipment, and therefore mandate that any
amounts found to be due and owning by Morris to Colonial be offset
COUNT I -BREACH OF CONTACT
122. Defendants incorporates by reference each of the above Paragraphs as if more
fully set forth at length below.
123. The averments of this Paragraph are legal conclusions to which Morris is advi
by counsel that no response is necessary. If and to the extent a response is
judicially determined to be necessary, Morris admits that he entered into a
continuing guaranty on June 30, 2005 and a continuing guaranty on October 14,
2005. The remaining averments of this Paragraph are specifically denied.
124. The averments of this Paragraph are legal conclusions to which Answering
Defendant is advised by counsel that no response is necessary. If and to the
that a judically determined to be necessary, Defendant denies the averments of
this Paragraph.
-21-
125. Denied. Defendant denies that Colonial suffered damages in the amount of
$247,956.83. By way of further reply, Defendant believes, and therefore avers
that the sales conducted after repossession by Colonial (or its predecessor) were
not commercially reasonable and did not yield a fair market value of each piece
equipment sold. Therefore, any amounts which are determined to be due and
owning by Defendant to Plaintiff must be reduced accordingly.
126. Admitted.
WHEREFORE, Defendant, Harry I. Morris, Jr., respectfully requests that this Honorable
Court dismiss Plaintiff s Complaint and grant to Defendant such other relief as may be just and
proper.
NEW MATTER
127. Defendants incorporates by reference each of the above numbered Paragraphs as~ if
more fully set forth at length below.
128. Plaintiffs Complaint may be barred, in whole or in part, by the applicable
of limitations.
129. The post-repossession sales conducted by Plaintiff, or its agents or predecessors,
were not commercially reasonable as required by Pennsylvania law.
130. The sales failed to realize amounts reasonably close to the fair market value of tl
equipment sold, and thus additional setoff is due and owing which should
the obligations, if any, of Defendant hereunder.
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_ _ _ _ _ _ _ _ __ _ _ __ _ T _ ___ ___ _ _ ~ _ ~ _~ _ a
'I
WHEREFORE, Defendant, Harry I. Morris, Jr., respectfully requests that this Honorabl
Court dismiss Plaintiffs Complaint and grant to Defendant such other relief as may be just and
proper.
Respectfully submitted,
CUNNINGH & HE ICOFF, P.C.
Date: August , 2012 By:
Robert . Chernicoff, Esquire
Attorney I.D. #23320
Nicholas A. Fanelli, Esquire
Attorney I.D. #308136
2320 North Second Street
Harrisburg, PA 17110
Telephone: (717) 238-6570
Attorney for Defendant
-23-
VERIFICATION
I, Harry I. Morris, Jr., hereby verify that the statements made in the foregoing Answer
with New Matter are true and correct based on my personal knowledge or upon information
belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
§4904, relating to unsworn falsification to authorities
Date: g' 2 `'~ Z-O l2 ~_
Harry I. orris, Jr.
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Assistant, with the law firm of Cunningham & Chernico
hereby certify that a true and correct copy of ANSWER WITH NEW MATTER was served
first-class mail, postage prepaid, on the following:
Ian S. Clement, Esquire
Wong Fleming, P.C.
1515 Market Street
Suite 820
Philadelphia, PA 19102
Date: Augusta? , 2012
CUNNINGHAM & CHERNICOFF, P.C.
w,~
Julieanne Ametrano
F:U-Iome1NFANELL11DocumentslMORRIS.HARRYVInswer with New Mattecwpd
COLONIAL PACIFIC LEASING : IN THE COURT OF COMMON PLEAS
CORPORATION, : CUMBERLAND COUNTY, PENNSLVLMkNfA
Plaintiff
NO: 2012-02078
V.
CIVIL ACTION
HARRY I. MORRIS, JR., '
Defendant '
`-- cn
c^�
PRAECIPE TO ENTER APPEARANCE
Please enter the appearance of Marc W. Witzig, Attorney at Law, and Gina L. Lauffer,
Attorney at Law, on behalf of the Defendant, Harry I. Morris, Jr., in the above-captioned case.
CUNNINGHAM& CHERNICOFF, P.C.
B Y• G� W, Ul/i r
Marc . Witzig
Penna. Attorney Ident. No. 2992
2320 North Second. Street
Harrisburg, PA 17110
Telephone: (717) 238-6570
Fax: (717) 238-4809
mwitzig_ ,,c�clawpc.com
By:
GiVa L. Lauffer
Penna. Attorney Ident. No. 313863
2320 North Second. Street
Harrisburg, PA 17110
Telephone: (717) 238-6570
Fax: (717) 238-4809
Luffer o,cclawpc.com
Date: Mc,,� , 2013
COLONIAL PACIFIC LEASING : IN THE COURT OF COMMON PLEAS
CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
NO: 2012-02078
V.
CIVIL ACTION
HARRY I. MORRIS, JR.,
Defendant
CERTIFICATE OF SERVICE
I, Stacy A. Sollenberger, Legal Assistant with the law office of Cunningham &
Chernicoff, P.C., do hereby certify that a true and correct copy of the Praecipe to Enter
Appearance in the above-captioned matter was sent first class U.S. Mail, First Class Mail,
postage prepaid on this date, to the following:
Ian S. Clement, Attorney at Law
Wong Fleming, P.C.
1515 Market Street, Suite 820
Philadelphia, PA 19102
(Counsel for Plaintiff)
Stacy A. Solenberger
Date: Q- eh , 2013
WONG FLEMING 4' t
Amelia T. Taylor, Esq. 2013 D� r,f i
PA Bar ID: 5063 C(/pj8 C�3 AM/j;
Suite Market Street p 'NS Y/ ,UNT
Y
Philadelphia, PA 19102 vAN'A
(215) 546-2776
Attorneys for Plaintiff G.E. Capital
Information Technology Solutions, Inc.
d/b/a IKON Financial Services
IN THE COURT OF COMMON PLEAS
Colonial Pacific Leasing CUMBERLAND COUNTY, PENNSYLVANIA
Corporation
1010 Thomas Edison Blvd•, SW., No. 2012-02078
Cedar Rapids, IA 52404
CIVIL ACTION
Plaintiff,
v. PRAECIPE TO DISCONTINUE WITHOUT
PREJUDICE
Harry I. Morris, Jr.
424 Railroad Avenue
Shiremanstown, PA 17011,
Defendant.
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please discontinue this matter without prejudice.
Oødo: i
Amelia T. Taylor, s�E q.
Wong Fleming
1515 Market Street
Suite 820
Philadelphia, PA 19102
Tel.: 215-546-2776
Attorney ID# 50643