EXHIBIT 10.6
[FIFTH THIRD BANK LOGO]
ADDENDUM
TO
MASTER EQUIPMENT LEASE
BETWEEN
CINTECH SOLUTIONS, INC.
AND
THE FIFTH THIRD LEASING COMPANY
THIS ADDENDUM is intended to be attached to, and the provisions hereof are
hereby incorporated into that certain Master Equipment Lease, dated December 18,
2001, (the "Lease"), executed by CINTECH SOLUTIONS, INC., an Ohio corporation
(the "Lessee") and THE FIFTH THIRD LEASING COMPANY, an Ohio corporation (the
"Lessor").
1. FIXED CHARGE COVERAGE RATIO. So long as any of the Obligations remain
outstanding, Lessee will not permit its Fixed Charge Coverage Ratio, on a
consolidated basis, to be less than 1.20 : 1.00 as calculated on a rolling four
(4) quarter basis, as measured on the last day of each calendar quarter.
2. If Lessee fails to maintain the Fixed Charge Coverage Ratio, Lessee will
maintain cash in excess of Two Million Dollars ($2,000,000) on deposit in Fifth
Third Bank.
3. DEFINITIONS. The terms used herein shall have the meanings set forth
below:
(a) Current Maturities of Long Term Debt" means that portion of the
principal amount of Long Term Debt, which must be repaid during the twelve
fiscal months prior to the date on which the determination is being made.
(b) "Distributions" means (i) declaring of any dividends by Lessee;
(ii) issuing of any additional shares of Lessee's capital stock; or (iii)
granting of any warrants, options or other rights to purchase Lessee's stock.
(c) "EBITDA" means the amount of Lessee's earnings before interest,
taxes, depreciation and amortization for each fiscal year.
(d) "Fixed Charge Coverage Ratio" means the ratio of (a) Lessee's
EBITDA to (b) the sum of Lessee's interest expense, Distributions, Current
Maturities of Long Term Debt, and unfunded capital expenditures for the prior
fiscal year.
(e) "Indebtedness" means (i) all items (except items of capital stock,
of capital surplus, of general contingency reserves or of retained earnings,
deferred income taxes, and amount attributable to minority interest if any)
which in accordance with generally accepted accounting principles would be
included in determining total liabilities on a consolidated basis (if Lessee
should have a subsidiary) as shown on the liability side of a balance sheet as
at the date as of which Indebtedness is to be determined, (ii) all indebtedness
secured by any mortgage, pledge, lien or conditional sale or other title
retention agreement to
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which any property or asset owned or held is subject, whether or not the
indebtedness secured thereby shall have been assumed (excluding non-capitalized
leases which may amount to title retention agreements but including capitalized
leases).
(f) "Long Term Debt" means Indebtedness, which either by its terms is
not payable in full within one year from the date incurred, or the repayment of
which may, at the option of the obligor, be extended for a period of more than
one year from the date incurred.
(g) "Obligation(s)" means all loans, advances, indebtedness,
liabilities and obligations of Lessee owed to each of Lessor and the affiliates
of Fifth Third Bancorp of every kind and description whether now existing or
hereafter arising including without limitation, those owed by Lessee to others
and acquired by Lessor or any affiliate of Fifth Third Bancorp, by purchase,
assignment or otherwise, and whether direct or indirect, primary or as guarantor
or surety, absolute or contingent, liquidated or unliquidated, matured or
unmatured, whether or not secured by additional collateral, and including
without limitation all liabilities, obligations and indebtedness arising
hereunder, the Lease and the other loan documents, all obligations to perform or
forbear from performing acts, all amounts represented by letters of credit now
or hereafter issued by Fifth Third Bank for the benefit of or at the request of
Lessee, and all expenses and attorneys' fees incurred by Lessor and any
affiliate of Fifth Third Bancorp hereunder or any other document or instrument
related to any of the foregoing.
ENTIRE AGREEMENT. Lessee agrees that there are no conditions or understandings,
which are not expressed in the Lease and the Addendum referred to herein.
SEVERABILITY. The declaration of invalidity of any provision of the Lease and
this Addendum shall not affect any part of the remainder of the provisions.
ASSIGNMENT. Lessee agrees not to assign any of Lessee's rights, remedies or
obligations described in the Lease and this Addendum without the prior written
consent of Lessor, which consent may be withheld in Lessor's sole discretion.
Lessee agrees that Lessor may assign some or all of its rights and remedies
described in the Lease and this Addendum without notice to, or prior consent
from, the Lessee.
MODIFICATION; WAIVER OF LESSOR. The modification or waiver of any of Lessee's
obligations or Lessor's rights under the Lease and this Addendum must be
contained in writing signed by Lessor. Lessor may perform Lessee's obligations,
or delay or fail to exercise any of its rights or remedies, without causing a
waiver of those obligations or rights. A waiver on one occasion shall not
constitute a waiver on another occasion. Lessee's obligations under the Lease
and this Addendum shall not be affected if Lessor amends, compromises,
exchanges, fails to exercise, impairs or releases (i) any of the obligations
belonging to any co-Lessee, endorser or guarantor, or (ii) the Collateral or any
other property securing the obligations.
WAIVER OF LESSEE. Demand, presentment, protest and notice of dishonor, notice of
protest and notice of default are hereby waived by Lessee, and any endorser or
guarantor hereof. Each of Lessee, including but not limited to all co-makers and
accommodation makers of the Lease and this Addendum, hereby waives all
suretyship defenses including but not limited to all defenses based upon
impairment of Collateral and all suretyship defenses described in Section 3-605
of the Uniform Commercial Code (the "UCC"). Such waiver is entered to the full
extent permitted by Section 3-605 (i) of the UCC.
GOVERNING LAW; CONSENT TO JURISDICTION. The Lease and this Addendum is delivered
in, is intended to be performed in, will be construed and enforceable in
accordance with and governed by the internal laws of, the State of Ohio, without
regard to principles of conflicts of law. Lessee agrees that the state and
federal courts in Xxxxxxxx County, Ohio shall have exclusive jurisdiction over
all matters arising out of the Lease and this Addendum, and that service of
process in any such proceeding shall be effective if mailed to Lessee at the
address set forth therefor below.
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JURY WAIVER. LESSEE, AND ANY ENDORSER OR GUARANTOR HEREOF, WAIVE THE RIGHT TO A
TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS LEASE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
WARRANT OF ATTORNEY. Lessee authorizes any attorney of record to appear for it
in any court of record in the State of Ohio, after maturity of this Lease,
whether by its terms or upon default, acceleration or otherwise, to waive the
issuance and service of process, and release all errors, and to confess judgment
against it in favor of Lessor for the principal sum due herein together with
interest, charges, court costs and attorneys' fees. Stay of execution and all
exemptions are hereby waived. If the Lease or this Addendum or any Obligation is
referred to an attorney for collection, and the payment is obtained without the
entry of a judgment, the obligors shall pay to the holder of such obligations
its attorneys' fees. GUARANTOR AGREES THAT AN ATTORNEY WHO IS COUNSEL TO LESSOR
OR ANY OTHER HOLDER OF SUCH OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR
LESSEE WHEN TAKING THE ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. LESSEE AGREES
THAT ANY ATTORNEY TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY LESSOR
OR HOLDER OF SUCH OBLIGATION. LESSEE WAIVES ANY CONFLICT OF INTEREST THAT MAY BE
CREATED BECAUSE THE ATTORNEY REPRESENTING SUCH ATTORNEY IS BEING PAID BY LESSOR
OR THE HOLDER OF SUCH OBLIGATION.
IN WITNESS WHEREOF, this Addendum to the Master Equipment Lease is executed on
the 21ST day of AUGUST, 2002.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
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CINTECH SOLUTIONS, INC. THE FIFTH THIRD LEASING COMPANY
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Chief Financial Officer Title: Vice President
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LESSEE LESSOR
By: /s/ Xxxx X. Xxxx
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Title: AVP
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LESSOR
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