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EXHIBIT 10.24
MASTER EQUIPMENT LEASE
This Master Equipment Lease Agreement ("Agreement") is entered into as
of the 19th day of November, 1991, by and between General Electric Capital
Computer Leasing Corporation ("Lessor") and Covia Partnership ("Lessee").
Article I. Leasing, Term and Rent
1.1 This Agreement states the general terms and conditions upon which Lessor
from time to time will acquire and lease certain equipment, additions or
upgrades ("Equipment") to Lessee. At the time Lessor and Lessee mutually agree
to lease particular Equipment, such items of Equipment ("Item") shall be
described on an Equipment schedule ("Schedule") in the form of Exhibit A, which
Schedule shall incorporate this Agreement by reference. Each Schedule shall
constitute a separate lease ("Lease"). If specific provisions of a Schedule are
inconsistent with this Agreement, the Schedule shall control.
1.2 A Lease shall commence with respect to an Item on the date ("Lease
Commencement Date") which (a) for Equipment installed by the vendor, supplier or
manufacturer (any such vendor, supplier or manufacturer being herein called a
"Vendor"), is the date the Equipment is accepted by Lessee, and (b) for all
other Equipment (e.g., not requiring installation, or used), is five days after
the Equipment is delivered to Lessee. Lessee shall notify Lessor of the Lease
Commencement Date by promptly delivering to Lessor a Certificate of Acceptance
in the form of Exhibit B. If the Lease Commencement Date is the first day of a
month, the "Term Commencement Date" shall be the same date. If not, the Term
Commencement Date shall be the first day of the month immediately following the
Lease Commencement Date.
1.3 Prior to any Lease Commencement Date, Lessee agrees to provide to Lessor an
executed Schedule and the documents identified on the Schedule. If Lessee shall
fail timely and properly to deliver such documents to Lessor, Lessor shall have
no obligation to lease the Equipment in respect of which such documents are
requested. Lessors' obligation to lease Equipment to Lessee is further subject
to (a) no "Default" (as defined in Section 6.1), or event which with the giving
of notice, passage of time or both, would constitute a Default, occurring and
continuing under this Agreement or any Lease, and (b) the Lease Commencement
Date being prior to the "Cut off Date" (as set forth in the applicable
Schedule). In the event the conditions precedent stated in this Section 1.3 are
not satisfied, and Lessor has delivered its purchase order for the Equipment to
Vendor or entered into a purchase order assignment with Lessee, then Lessor
shall be entitled to (x) assign (or re-assign, as applicable) the purchase order
for the Equipment to Lessee without recourse or warranty, (y) collect from
Lessee all sums theretofore paid by Lessor to Vendor (less any sums previously
paid by Lessee to Lessor), and (z) collect from Lessee any out-of-pocket
expenses incurred in connection with the Equipment or purchase order (less any
sums previously paid by Lessee to Lessor).
1.4 The "Term" of the Lease shall consist of the "Interim Period" (the period of
time from and including the Lease Commencement Date to the Term Commencement
Date), if any, plus the number of full months specified in the Schedule as the
"Initial Term." Thereafter, if no Default, or event which
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with the giving of notice, passage of time or both, would constitute a Default,
has occurred and is continuing under a Lease, the Term shall be automatically
extended on a month-to-month basis unless the Lease is terminated by either
party by giving sixty days' notice of termination to the other party. Such
termination shall be effective on a date not earlier than sixty days after said
notice, and in no event prior to expiration of the Term. The last day of the
Term (i.e., Initial Term or month-to-month extension period, as applicable)
shall be the "Termination Date."
1.5 Lessee shall pay to Lessor as rent ("Rent") for the Equipment, "Interim
Rent" equal to one-thirtieth of the "Basic Rent" specified in the Schedule for
each day of the Interim Period, plus the Basic Rent for each full month of the
Term. All Rent payments shall be due for such periods and at such times as
indicated on the applicable Schedule. Lessee shall pay to Lessor one-thirtieth
of the Basic Rent for each day beginning with the day after the Termination Date
up to and including the date the Equipment is made available for shipment in
accordance with Section 2.8.
ARTICLE II. USE OF EQUIPMENT BY LESSEE
2.1 Lessee shall be responsible for the preparation of a suitable site for the
Equipment on or before its scheduled delivery date and for the installation of
the Equipment. Equipment which requires installation shall be installed by the
Equipment manufacturer or its designated representatives. All installation
charges shall be borne by the Lessee.
2.2 Lessee shall at its expense comply with and conform to all federal, state
and local laws, ordinances, rules and regulations relating to the possession,
use, maintenance or modification of the Equipment. Lessee shall not take any
action which would impair or violate Vendor's patent rights or copyrights in and
to the Equipment, or any software license for the Equipment. On reasonable prior
notice to Lessee, Lessor and Lessor's agents shall have the right, during
Lessee's business hours, to enter the premises where the Equipment is located
for the purpose of inspecting the Equipment and observing its use. Lessor and
Lessor's agents shall comply with any reasonable security measures established
by Lessee.
2.3 Lessee shall at its expense affix and maintain in a prominent position on
each item any plates, tags or identifying labels provided by Lessor to indicate
its ownership of the Equipment.
2.4 Lessee may at its expense relocate the Equipment with the prior written
consent of Lessor, which consent shall not be unreasonably withheld. In no event
shall Lessee relocate the Equipment outside the continental United States.
2.5 Lessor hereby assigns to Lessee for the Term all warranties made with regard
to the Equipment by Vendor. With respect to warranties which are not assignable,
Lessor agrees to take such reasonable actions at Lessee's request and expense as
are necessary to enforce such warranties for Lessee's benefit.
2.6 It is the intention of Lessor and Lessee that the Equipment shall at all
times be and remain personal property and shall not become a fixture upon or a
part of any real property where the Equipment is located. Lessee shall not
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affix the Equipment to the real property. Lessee shall obtain and provide to
Lessor, upon request, waivers from each real property landlord, mortgagee or
lienholder for the site at which the Equipment is located, waiving any interest
that it may have in the Equipment arising from its interest in the real
property.
2.7 Lessee shall at its expense and at all times during the Term operate and
maintain the Equipment in good operating order, repair, condition and
appearance, normal wear and tear excepted, and in accordance with Vendor's
specifications and recommendations. Lessee covenants that it will, at its
expense, enter into, maintain and enforce for the Term a maintenance agreement
with a maintenance organization acceptable to Lessor, covering at least prime
shift maintenance of the Equipment.
2.8 On or before the Termination Date, Lessee shall pack the Equipment in
accordance with Vendor's guidelines and in Vendor's standard packaging
materials, load the Equipment on board such carrier as Lessor shall specify, and
deliver the same to Lessor at any destination within the continental United
States designated by Lessor. Any dismantling, packaging, transportation and
shipping charges shall be borne by Lessee, and at Lessee's option, arranged by
Lessee. The Equipment returned to Lessor shall, at the time it is removed from
Lessee's premises, be in the same condition and working order as when delivered
to Lessee, reasonable wear and tear excepted, and certified for manufacturer's
maintenance by its manufacturer.
ARTICLE III. UPGRADES
3.1 Lessee may from time to time install alterations, additions and upgrades to
the Equipment (collectively "Upgrades") if they are readily removable, will not
impair the originally intended function or purpose of the Equipment, and are not
subject to any lien or security interest in favor of any other party. Upgrades
which are owned by Lessee shall, upon Lessor's request, be removed from the
Equipment prior to return of the Equipment pursuant to Section 2.8. Lessee at
its own expense shall repair any damage caused by such removal and return the
Equipment to its original state, normal wear and tear excepted. Any Upgrade
which is not removed prior to return of the Equipment to Lessor shall become the
property of Lessor upon return of the Equipment, and Lessee shall have no
further right, title or interest in the upgrade or in the proceeds thereof.
Alternatively, Lessee and Lessor may negotiate a sale of the Upgrade to Lessor,
provided that Lessor may accept or reject a purchase price in its sole
discretion.
3.2 Lessee shall not, without the prior written consent of Lessor, affix or
install any Upgrade on the Equipment if it is not readily removable. If Lessor
consents to a non-removable Upgrade, it shall be affixed or installed in
accordance with applicable law, shall become the property of Lessor upon
affixation or installation, and shall be considered an Item.
ARTICLE IV. RISK OF LOSS
4.1 From the date Equipment is delivered to Lessee until it is returned to
Lessor, Lessee shall bear all risk of loss, damage, theft, destruction, wearing
out and condemnation to or of the Equipment from any and every cause whatsoever.
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4.2 Lessee shall at its expense maintain all risk, public liability, theft and
property damage insurance on the Equipment in amounts as stated in the Schedule.
Additionally, if Lessee shall relocate the Equipment in accordance with Section
2.4, Lessee shall maintain in-transit insurance on the Equipment. All policies
for such insurance shall include Lessor as an additional insured, as its
interest may appear, and shall name Lessor as loss payee. All insurance shall be
primary and shall not be subject to any co-insurance clause. All policies of
insurance required hereunder shall be issued by insurance companies acceptable
to Lessor and shall provide that they may not be canceled or materially altered
without at least thirty days' prior written notice to Lessor. Not later than the
Lease Commencement Date, Lessee shall furnish Lessor with certificates and, if
requested, copies of all insurance policies required to be carried by Lessee
with respect to the Equipment.
4.3 In the event any Item is lost, destroyed, stolen or damaged beyond repair
("Casualty"), Lessee shall be liable to Lessor and shall pay Lessor an amount
("Casualty Value") equal to all Rent and other amounts then due and owing with
respect to such Item plus the Stipulated Loss Value determined in accordance
with Annex A to the applicable Schedule. Lessee shall pay Lessor such Casualty
Value within thirty days of the date of the Casualty. Upon receipt by Lessor of
the Casualty Value for any Item, the Lease shall terminate with respect to such
Item. Upon termination of the Lease with respect to an Item, Lessee shall
dispose of Item salvage in accordance with Lessor's instructions. In the event
of a partial destruction of or repairable damage to any Item, the Lease shall
continue with respect to such Item and Lessee shall at its expense promptly
cause such Item to be repaired to a condition acceptable to Lessor. There shall
be no abatement of Rent hereunder in such event. Lessee will notify Lessor of
any Casualty or partial destruction to the Equipment within three business days
of the date of its occurrence.
ARTICLE V. ASSIGNMENT OR SUBLEASE
5.1 Lessee SHALL NOT ASSIGN, SUBLEASE, HYPOTHECATE, MORTGAGE, PLEDGE OR
ENCUMBER, IN WHOLE OR IN PART, ITS RIGHTS UNDER THIS AGREEMENT OR ANY LEASE, OR
ITS RIGHTS TO THE Equipment OR ANY ITEM, WITHOUT THE PRIOR WRITTEN CONSENT OF
Lessor, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. Any action in
contradiction hereto shall be null and void and without force or effect. Lessee
may assign or sublease this Agreement or any Lease to any affiliate of Lessee,
provided that such assignment or sublease shall not relieve Lessee of its
obligations under this Agreement or such Lease. Lessor shall have the option to
substitute itself for the assignee or subleasees under the terms of any proposed
assignment or sublease.
5.2 Lessor may without notice to Lessee assign, sublease, hypothecate, mortgage,
pledge or encumber, in whole or in part, its right, title and interest in and to
this Agreement, any Lease or, subject to Lessee's rights hereunder, any Item. In
the event of any such action by Lessor: (a) upon notification by Lessor and
request by an assignee, Lessee will make all payments of Rent and other amounts
due hereunder directly to such assignee; (b) Lessee's obligations hereunder
shall not be subject to any reduction, abatement, defense, set-off, counterclaim
or recoupment for any reason whatsoever; (c) Lessee will not, after obtaining
knowledge of any such assignment, consent to any modification of the Agreement
or any assigned Lease
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without the consent of such assignee; (d) Lessor's assignee shall be entitled to
such right, title and interest in the Agreement, Lease or Equipment as is set
forth in Lessor's notification of assignment to Lessee; (e) Lessor's assignee
shall have no right to modify the Lease without the prior written consent of
Lessee; and (f) Lessor shall not be relieved of its obligations under the Lease.
ARTICLE VI. DEFAULT AND REMEDIES
6.1 With respect to each Lease, the occurrence of any of the following events
shall constitute a Default hereunder; (a) a failure by Lessee to pay when due
any Rent or other charge required to be paid by Lessee hereunder, and the
continuance of such failure for seven days after notice from Lessor; (b) a
failure by Lessee to maintain insurance on the Equipment as required by Section
4.2; (c) a failure by Lessee to perform or observe any other term or condition
of a Lease, which failure is not cured within thirty days after notice from
Lessor; (d) the breach by Lessee of any term or condition of any software
license for the Equipment or used in conjunction with the Equipment, provided
that such breach has a material adverse impact on the value or usefulness of the
Equipment; (e) Lessee ceases doing business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to pay
its debts as they become due, files a petition seeking relief for itself under
the federal Bankruptcy Code or any similar federal or state statute, law or
regulation, or files an answer admitting the material allegation of such a
petition, or consents to or acquiesces in the appointment of a trustee, receiver
or liquidator for the Equipment or for Lessee or all or any substantial part of
its assets or properties; (f) the filing of proceedings against Lessee under the
federal Bankruptcy Code or any similar federal or state statute, law or
regulation, which have not been dismissed within sixty days of filing, or the
appointment without Lessee's consent or acquiescence of any trustee, receiver or
liquidator for Lessee or any substantial part of Lessee's assets or properties,
which appointment has not been vacated within sixty days of appointment; (g)**;
or (h) any representation or warranty of Lessee proves untrue.
6.2 Upon the occurrence of a Default, Lessor by written notice to Lessee may
declare the subject Lease in default, and unless otherwise agreed to by Lessor,
such Default shall apply to any Leases executed hereunder specifically
designated in such notice. Alternatively, Lessor may, without waiving the
Default, make a payment or perform or comply with the provisions of the Lease,
the nonpayment, nonperformance or noncompliance of which caused the Default, and
in addition to any other obligations hereunder, Lessee shall pay Lessor upon
demand the amount of such payment and/or shall reimburse Lessor for the expenses
actually incurred in connection with such payment, performance or compliance, as
the case may be.
6.3 Upon Default, Lessor shall have the right, in its sole discretion, to
exercise any one or more of the following remedies in order to protect its
interests, reasonably expected profits and economic benefits. Lessor may (a)
declare any Lease entered into pursuant to this Agreement in default, (b)
terminate in whole or in part any Lease, (c) recover from Lessee any and all
amounts then due and to become due, discounted to present value at the rate of
U.S. Treasury bills with a three-month maturity, (d) take possession of any or
all Items, wherever located, with demand and notice, and without any court
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order or other process of law, and (e) demand that Lessee return any or all
Items in accordance with Section 2.8 and, for each day that Lessee shall fail to
return any Item, Lessor may demand an amount equal to the Rent, prorated on the
basis of a thirty-day month, in effect immediately prior to such Default. Upon
repossession or return of such Item(s), Lessor may sell, lease or otherwise
dispose of such Items in a commercially reasonable manner, with or without
notice and on public or private bid, and apply the net proceeds thereof toward
the amounts due under the Lease, but only after deducting (x) all expenses,
including attorneys' fees, incurred in connection therewith, and (y) in the case
of any sale, the estimated fair market value at retail of such Items as of the
scheduled expiration of the Lease, or (z) in the case of any replacement lease,
the rent due for any period beyond the scheduled expiration of the Lease for
such Items. Any excess proceeds are to be retained by Lessor.
6.4 The foregoing remedies are cumulative and may be exercised in lieu of or in
addition to each other or any remedies at law, in equity or under statute.
Lessee waives demand of performance and notice of or place of sale or other
disposition and the manner and place of any advertising. No delay or failure to
exercise any right, power or remedy by Lessor shall impair any such right, power
or remedy of Lessor, nor shall it be construed to be a waiver of or acquiescence
in any later breach or Default.
ARTICLE VII. NET LEASE PROVISIONS
7.l Lessor warrants that Lessor will not interfere, nor cause anyone acting by
or through Lessor to interfere, with Lessee's quiet enjoyment of the use of the
Equipment, so long as no Default shall have occurred and be continuing. EXCEPT
FOR Lessor'S WARRANTY OF QUIET ENJOYMENT, Lessor MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE Equipment
DESIGN, WORKMANSHIP OR MATERIALS, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. Lessee ACKNOWLEDGES THAT VENDOR AND Lessor
ARE SEPARATE ENTITIES, EACH OF WHICH HAS ENTERED INTO THIS TRANSACTION FOR
INDEPENDENT BUSINESS REASONS, AND THAT NEITHER Lessor NOR VENDOR HAS ACTED,
ACTS, OR SHALL BE DEEMED TO HAVE ACTED OR ACT, AS AN AGENT OF THE OTHER. Lessor
shall have no responsibility or liability to Lessee for (a) loss or damage
caused directly or indirectly by any Item, or (b) the delivery, use, operation,
servicing, maintenance, repair, replacement or performance of any Item. The
foregoing disclaimers shall not operate to release General Electric Company, if
it is the manufacturer of the Equipment, or any other Vendor, from warranties
provided in any other operative document.
7.2 Each Lease is a net lease and Lessee's obligations to pay Rent and other
amounts due shall be absolute and unconditional. This obligation of Lessee shall
not be affected by or subject to any abatement, reduction, set-off, defense,
counterclaim, interruption, deferment or recoupment of any kind whatsoever,
including without limitation Lessor's actual or alleged negligence or willful
misconduct, frustration of contract, or the loss of possession or destruction of
all or any part of the Equipment. It is the intent of the parties that Rent and
other amounts due shall continue to be payable in all events in the manner and
at the times set forth in the Lease. Nothing contained herein shall impair
Lessee's right to maintain an independent action at law or in equity.
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7.3 As additional Rent, Lessee shall pay and discharge before they become
delinquent, or shall reimburse Lessor in accordance with this Section for, all
license fees, assessments and sales, use, property, excise and other taxes,
however designated (each such fee, assessment or tax an "Imposition") now or
hereafter imposed or assessed by any foreign, federal, state or local government
upon the ownership, delivery, installation, leasing, renting, use or sale of the
Equipment, or the Rent or other charges payable hereunder, whether assessed on
Lessor or Lessee, together with any penalties or interest in connection
therewith attributable to Lessee's acts or failure to act. Notwithstanding the
foregoing, Lessee shall have no liability for any Imposition on or measured by
the net income "or gross revenue" of Lessor. For Imposition for which Lessor is
responsible under applicable law, Lessor shall file all declarations, forms and
returns and shall pay the taxing authority directly. Lessor shall invoice Lessee
for such Impositions and Lessee shall pay Lessor as additional Rent amounts owed
for such Impositions within thirty days of receipt of such invoice. For all
Impositions other than those described in the preceding sentence, Lessee shall
file all declarations, forms and returns and do all things necessary and
appropriate in connection with the levy, assessment, billing or payment of same,
including whatever action may be required to have the Imposition billed directly
to Lessee or to the Lessor in the care of Lessee. In all declarations, forms or
returns Lessee shall show Lessor as owner of the Equipment and shall send copies
of same to Lessor with evidence of payment.
7.4 Lessee shall indemnify, defend and hold harmless Lessor, its agents and
assignees, from and against any and all claims, actions, suits, proceedings,
costs, expenses (including court costs and "reasonable" attorneys' fees),
damages, obligations, penalties, injuries and liabilities (whether or not
discovered or arising before or after Lease termination) ("Claims"), arising out
of, connected with or resulting from the selection, manufacture, purchase,
acceptance or rejection of Equipment, the ownership of Equipment during the term
of this Agreement or any Lease (other than an action brought by a creditor of
Lessor or otherwise claiming title to the Equipment), and the delivery, lease,
possession, maintenance, use, condition, return or operation of Equipment or
Upgrades thereto (including, without limitation, latent and other defects,
whether or not discoverable by Lessor or Lessee, and any claim for patent,
trademark or copyright infringement), excepting only Claims that arise solely
out of the gross negligence or willful misconduct of Lessor. Lessee shall at its
expense defend any and all actions based on or arising out of the foregoing.
Lessee shall notify Lessor immediately upon receipt of notice or knowledge of
any event which may give rise to a Claim, and shall not, without the consent of
Lessor, settle any Claim without obtaining a full release of any and all
possible claims against Lessor. By way of example, Claims shall include any
action brought against Lessor based on a tort theory of liability which requires
that the plaintiff prove only that the defendant possessed or otherwise
controlled the Equipment in order to establish liability.
7.5 Lessee shall have no right, title or interest in or to the Equipment except
as Lessee and as expressly set forth in the Lease. Throughout the term of each
Lease, Lessee shall, upon Lessor's request, execute and deliver to Lessor for
filing such Uniform Commercial Code financing statements or other similar or
substitute documents as Lessor in its discretion deems necessary and/or
appropriate to protect its right, title and interest in and to the
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Equipment. Lessee shall at its expense protect and defend the title and rights
of Lessor to or in the Equipment from and against all claims, liens, charges,
encumbrances and legal processes, whether imposed, asserted or instituted by
creditors of Lessee or otherwise, and shall at its expense promptly take all
action necessary to discharge the same.
7.6 Lessee hereby represents, warrants and covenants that (a) Lessor as owner of
the Equipment shall be entitled to all items of deduction specified in the
applicable Schedule ("Tax Benefits"), and (b) at no time will Lessee take or
omit to take, or permit any sublessee or assignee to take or omit to take, any
action (whether or not permitted hereby) which would result in the
disqualification of the Equipment for, or recapture of, all or any portion of
the Tax Benefits. If as a result of a breach of any representation, warranty or
covenant of Lessee relating to any Item(x) Lessor is not entitled to claim on
its Federal income tax return all or any portion of the Tax Benefits with
respect to any Item, or (y) any Tax Benefit claimed on the Federal income tax
return of Lessor is disallowed or adjusted by the Internal Revenue Service, or
(z) any Tax Benefit is recomputed or recaptured (any such determination,
disallowance, adjustment, recomputation or recapture being herein called a
"Loss"), then Lessee shall pay to Lessor as additional Rent such amounts, or
from time to time such amounts, on the next succeeding Rent payment date but in
no event more than thirty days after written notice to Lessee of such Loss, as
shall cause Lessor's net after-tax rate of return that would have been in effect
had Lessor been entitled to its anticipated utilization of all of the Tax
Benefits. Lessee shall not be responsible for any Loss which results from
Lessor's failure to accurately determine the Tax Benefits which apply to a
Lease. Lessee shall be entitled, at its expense, to dispute a disallowance,
adjustment, recomputation or recapture by the Internal Revenue Service, and
Lessor will provide reasonable assistance to support Lessee's actions.
7.7 Lessee agrees to take such further action and to execute such additional
documents, instruments and financing statements as Lessor shall reasonably
request in order to complete the transactions contemplated by this Agreement or
any assignment by Lessor or to protect Lessor's interest in the Equipment.
7.8 The rights and obligations set forth in this Article shall survive the
termination or expiration of this Agreement or any Lease.
ARTICLE VIII. MISCELLANEOUS
8.1 Any notice shall be effective upon personal delivery or mailing by certified
mail, return receipt requested. Notices shall be delivered or sent to the
addresses stated below, or at such other address as a party may provide by
notice.
8.2 Lessee shall upon Lessor's written request deliver to Lessor Financial
Statements certified to by a recognized firm of certified public accountants.
Upon written request, Lessee will deliver to Lessor quarterly, within ninety
days of the close of each fiscal quarter of Lessee, in reasonable detail,
quarterly Financial Statements certified to by the chief financial officer of
Lessee.
8.3 THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAW,
BUT NOT THE CHOICE OF LAW RULES, OF THE STATE OF ILLINOIS.
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8.4 This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, both written and oral, with
respect to the subject matter hereof. Lessor's failure at any time to require
strict performance by Lessee of any of the provisions hereof shall not waive or
diminish Lessor's right thereafter to demand strict compliance therewith. If any
provision of this Agreement shall be deemed unenforceable under applicable law,
it shall be deemed stricken, but the remainder of this Agreement shall remain in
full force and effect and shall be construed to give effect to the intent of the
parties. In any litigation arising out of a Lease, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees, whether or not the
action is prosecuted to judgment. NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY CONSEQUENTIAL DAMAGES ARISING UNDER OR IN ANY WAY CONNECTED WITH
THIS AGREEMENT. Time is of the essence in this Agreement.
8.5 This Agreement may not be altered or varied nor its provisions waived except
in writing duly executed by Lessor and Lessee.
8.6 Any payments of Rent or other amounts payable by Lessee hereunder that
become past due shall bear interest compounded monthly from the due date until
the date received by Lessor at the rate of twelve percent per annum or the
prevailing prime interest rate plus two hundred basis points, whichever is
greater.
8.7 This Agreement may be executed by the parties in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one instrument. To the extent a Lease constitutes chattel paper (as
such term is defined in the Uniform Commercial Code or portions thereof adopted
by the applicable jurisdiction), no security interest may be created or conveyed
through the transfer or possession of any document other than the original
Schedule to such Lease.
8.8 This Agreement may be terminated by either party upon thirty days' notice,
provided that each Lease then in effect shall survive any termination of this
Agreement.
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In witness whereof, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first
above-written.
Lessee: Lessor:
Covia Partnership General Electric Capital
Computer Leasing Corporation
By:_______________________________ By:___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. Lidstein
Title: President and CEO Title: VP - General Counsel
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: VP-Operations
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ATTACHMENT TO MASTERLEASE
PAGE 4
COVIA 12/3/91
GENERAL ELECTRIC CAPITAL COMPUTER LEASING CORPORATION
(g) the sale, transfer or disposal by Lessee of all or substantially all of its
assets or property, or the merger or consolidation of Lessee with any other
entity, unless
(i) Lessee is the surviving entity and has a net worth greater than or equal to
its net worth immediately prior to the merger or consolidation;
(ii) A majority of the surviving entity is retained by the entity holding a
majority interest in Lessee; or
(iii) Lessor consents to the sale, transfer or disposal, such consent not to be
unreasonably withheld;
