1
10 (aaa) Ex-10(aaa)
FINANCING LEASE
[BANK ONE LOGO (R)] LEASE SCHEDULE NO. 0000000000
LESSOR: BANC ONE LEASING CORPORATION
LESSEE: COMPUROUTE, INC.
1. GENERAL. Reference is made to the Master Lease Agreement dated as of
November 17, 1997, as amended from time to time ("Master Lease"), between the
above Lessee and Lessor. This Lease Schedule is signed and delivered under the
Master Lease. Unless otherwise defined herein, capitalized terms defined in the
Master Lease will have the same meaning when used in this Schedule.
2. FINANCING. Lessor finances for Lessee, and Lessee finances with Lessor, all
of the property ("Equipment") described below:
Quantity Description (New Unless Specified as Used) Amount Financed
-------- ------------------------------------------ ---------------
See Attached Schedule A-1 Equipment Cost 356,635.51
Documentation Fee 375.00
Sales Tax 0.00
TOTAL $357.010.51
===========
3. FINANCING TERM AND INSTALLMENT PAYMENTS. The Lease Term for the Equipment
begins on the earlier of the Acceptance Date or the Commencement Date and
continues for the number of months after the Commencement Date as stated in the
Lease Term box below. The Acceptance Date is the date that Lessor accepts
this Schedule as stated below Lessor's signature. The Commencement Date is the
[ ] 1st [X] 15th day of the month in which the Acceptance Date occurs.
Lease Term Number of Payments Installment Payments (excluding Taxes)
60 Months 60 60 MONTHLY 7,152.06
PAYMENT DUE DATES: On the Commencement Date and on the same day of each Month
thereafter until paid in full. Total Advance Payment of $0.00 to be applied as
follows:
$0.00 Security Deposit $0.00 First and Last 0 Payment(s)
$0.00 Set-up/Filing/Search Fees $0.00 Other (Specify)
Lessee shall pay to Lessor all amounts stated above on the due dates stated
above, except that the Total Advance Payment is due on the Commencement Date.
There shall be added to each installment payment all applicable Taxes as in
effect from time to time.
4. SECURITY INTEREST. This Schedule is not intended to be a true lease, but is
intended to be a secured debt financing transaction. As collateral security for
payment and performance of all Secured Obligations (as defined in Paragraph A on
the reverse side of this Schedule) and to induce Lessor to extend credit from
time to time to Lessee (under the Lease or otherwise). Lessee hereby grants to
Lessor a first priority security interest in all of Lessee's right, title and
interest in the Equipment, whether now existing or hereafter acquired, and in
all Proceeds (as defined in Paragraph A on the reverse side of this Schedule).
Lessee represents, warrants and agrees that Lessee currently is the lawful owner
of the Equipment and that good and marketable title to the Equipment shall
remain with Lessee at all times. Lessee represents, warrants and agrees: that
Lessee has granted to Lessor a first priority security interest in the Equipment
and all Proceeds; and that the Equipment and all Proceeds are, and at all times
shall be, free and clear of any Liens other than Lessor's security interest
therein. Lessee at its sole expense will protect and defend Lessor's first
priority security interest in the Equipment against all claims and demands
whatsoever.
5. LESSEE'S ASSURANCES. Lessee irrevocably and unconditionally: (a) reaffirms
all of the terms and conditions of the Master Lease and agrees that the Master
Lease remains in full force and effect; (b) agrees that the Equipment is and
will be used at all times solely for commercial purposes, and not for personal,
family or household purposes; and (c) incorporates all of the terms and
conditions of the Master Lease as if fully set forth in this Schedule.
6. PURCHASE ORDERS AND ACCEPTANCE OF EQUIPMENT. Lessee agrees that (i) Lessor
has not selected, manufactured, sold or supplied any of the Equipment, (ii)
Lessee has selected all of the Equipment and its suppliers, and (iii) Lessee
has received a copy of, and approved, the purchase orders or purchase contracts
for the Equipment. AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT: (a) LESSEE
HAS RECEIVED, INSPECTED AND APPROVED ALL OF THE EQUIPMENT; (b) ALL EQUIPMENT IS
IN GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS OR CONTRACTS AND
ALL APPLICABLE SPECIFICATIONS; (c) LESSEE IRREVOCABLY ACCEPTS ALL EQUIPMENT FOR
PURPOSES OF THE LEASE "AS-IS, WHERE-IS" WITH ALL FAULTS; AND (d) LESSEE
UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO REVOKE ITS ACCEPTANCE OF
THE EQUIPMENT.
7. MISCELLANEOUS: At the end of lease term, Lessee shall make a final payment
of $1.00.
Principal Amount: $357,010.51 Interest Rate Per Annum: 7.49%
Lessee Promises to pay said principal amount, with interest at said rate,
in the amount and at the times stated in this schedule. Interest calculated on
basis of a 360-Day year.
LESSEE HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. LESSEE AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE. THIS SCHEDULE IS EXPRESSLY SUBJECT TO THE TERMS AND
CONDITIONS ON THE REVERSE SIDE OF THIS SCHEDULE.
Accepted By: COMPUROUTE, INC.
BANC ONE LEASING CORPORATION ------------------------------------
(Name of Lessee)
By: By: /s/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------- ---------------------------------
Title: Title: President
------------------------ ------------------------------
Acceptance Date: Witness Signature: /s/ Xxxxx X. Xxxx
-------------- ------------------
White: Lessor's Original Yellow: Duplicate Pink: Duplicate
MM-3A (3/94)
2
CORPORATE LEASE ACKNOWLEDGEMENT
State of Texas :
------------- :
:SS
County of Dallas :
------------- :
The above mentioned foregoing instrument, was acknowledged before me this
11/17, 1997 by (Officers' Name) XXXXXXXXX X. XXXXXXXXX, (Officer's Title)
----- -- -----------------------
PRESIDENT, of COMPUROUTE, INC., a DELAWARE corporation, on behalf of the
--------- ---------------- --------
corporation.
/s/ Xxxxx X. Xxxxx
---------------------------------
[Notary Seal] Notary Public
Commission Expires 6/23/98
--------------
3
[BANK1ONE LOGO (R)]
Banc One Leasing Corporation
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT is made, entered and dated as of NOVEMBER 17, 1997,
by and between:
LESSOR: LESSEE:
BANC ONE LEASING CORPORATION COMPUROUTE, INC.
0000 Xxxxxxx Xxxxxxx, Xxxxx X-0 00000 XXXXXX XXXXX
Xxxxxxxx, Xxxx 00000 XXXXXX, XX 00000
1. LEASE OF EQUIPMENT: Lessor leases to Lessee, and Lessee leases from Lessor,
all the property described in the Lease Schedules which are signed from time to
time by Lessor and Lessee.
2. CERTAIN DEFINITIONS: "Schedule" means each Lease Schedule signed by Lessee
and Lessor which incorporates the terms of this Master Lease Agreement,
together with all exhibits, riders, attachments and addenda thereto.
"Equipment" means the property described in each Schedule, together with all
attachments, additions, accessions, parts, repairs, improvements, replacements
and substitutions thereto. "Lease", "herein", "hereunder", "hereof" and similar
words mean this Master Lease Agreement and all Schedules, together with all
exhibits, riders, attachments and addenda to any of the foregoing, as the same
may from time to time be amended, modified or supplemented. "Prime Rate" means
the prime rate of interest announced from time to time as the prime rate by
Bank One, Columbus, NA; provided, that the parties acknowledge that the Prime
Rate is not intended to be the lowest rate of interest charged by said bank in
connection with extensions of credit. "Lien" means any security interest, lien,
mortgage, pledge, encumbrance, judgment, execution, attachment, warrant, writ,
levy, other judicial process or claim of any nature whatsoever by or of any
person. "Fair Market Value" means the amount which would be paid for an item of
Equipment by an informed and willing buyer (other than a used equipment or
scrap dealer) and an informed and willing seller neither under a compulsion to
buy or sell. "Lessor's Cost" means the invoiced price of any item of Equipment
plus any other cost to Lessor of acquiring an item of Equipment. All terms
defined in the Lease are equally applicable to both the singular and plural
form of such terms.
3. LEASE TERM AND RENT: The term of the lease of the Equipment described in
each Schedule ("Lease Term") commences on the date stated in the Schedule and
continues for the term stated therein. As rent for the Equipment described in
each Schedule, Lessee shall pay Lessor the rent payments and all other amounts
stated in such Schedule, payable on the dates specified therein. All payments
due under the Lease shall be made in United States dollars at Lessor's office
stated in the opening paragraph or as otherwise directed by Lessor in writing.
4. ORDERING, DELIVERY, REMOVAL AND INSPECTION OF EQUIPMENT: If an event of
default occurs or if for any reason Lessee does not accept, or revokes its
acceptance of, equipment covered by a purchase order or purchase contract or if
any commitment or agreement of Lessor to lease equipment to Lessee expires,
terminates or is otherwise canceled, then automatically upon notice from Lessor,
any purchase order or purchase contract and all obligations thereunder shall be
assigned to Lessee and Lessee shall pay and perform all obligations thereunder.
Lessee agrees to pay, defend, indemnify and hold Lessor harmless from any
liabilities, obligations, claims, costs and expenses (including reasonable
attorney fees and expenses) of whatever kind imposed on or asserted against
Lessor in any way related to any purchase orders or purchase contracts. Lessee
shall make all arrangements for, and Lessee shall pay all costs of,
transportation, delivery, installation and testing of Equipment. The Equipment
shall be delivered to Lessee's premises stated in the applicable Schedule and
shall not be removed without Lessor's prior written consent. Lessor has the
right upon reasonable notice to Lessee to inspect the Equipment wherever
located. Lessor may enter upon any premises where Equipment is located and
remove it immediately, without notice or liability to Lessee, upon the
expiration or other termination of the Lease Term.
5. MAINTENANCE AND USE: Lessee agrees it will, at its sole expense: (a) repair
and maintain the Equipment in good condition and working order and supply and
install all replacement parts or other devices when required to so maintain the
Equipment or when required by applicable law or regulation, which parts or
devices shall automatically become part of the Equipment; (b) use and operate
the Equipment in a careful manner in the normal course of its business and only
for the purposes for which it was designed in accordance with the
manufacturer's warranty requirements, and comply with all laws and regulations
relating to the Equipment, and obtain all permits or licenses necessary to
install, use or operate the Equipment; and (c) make no alterations, additions,
subtractions, upgrades or improvements to the Equipment without Lessor's prior
written consent, but any such alterations, additions, upgrades or improvements
shall automatically become part of the Equipment. The Equipment will not be
used or located outside of the United States.
6. NET LEASE; NO EARLY TERMINATION: The Lease is a net lease. Lessee's
obligation to pay all rent and all other amounts payable under the Lease is
absolute and unconditional under any and all circumstances and shall not be
affected by any circumstances of any character including, without limitation,
(a) any setoff, claim, counterclaim, defense or reduction which Lessee may
have at any time against Lessor or any other party for any reason, or (b) any
defect in the condition, design or operation of, any lack of fitness for use
of, any damage to or loss of, or any lack of maintenance or service for any of
the Equipment. Each Schedule is a noncancelable lease of the Equipment
described therein and Lessee's obligation to pay rent and perform all other
obligations thereunder and under the Lease are not subject to cancellation or
termination by Lessee for any reason.
7. NO WARRANTIES BY LESSOR: LESSOR LEASES THE EQUIPMENT AS-IS, WHERE-IS, AND
WITH ALL FAULTS. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, OF ANY KIND AS TO THE EQUIPMENT INCLUDING, WITHOUT LIMITATION: ITS
MERCHANTABILITY; ITS FITNESS FOR ANY PARTICULAR PURPOSE; ITS DESIGN, CONDITION,
QUALITY, CAPACITY, DURABILITY, CAPABILITY, SUITABILITY OR WORKMANSHIP; ITS
NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR
OTHER INTELLECTUAL PROPERTY RIGHT; OR ITS COMPLIANCE WITH ANY LAW, RULE,
SPECIFICATION, PURCHASE ORDER OR CONTRACT PERTAINING THERETO. Lessor hereby
assigns to Lessee the benefit of any assignable manufacturer's or supplier's
warranties, but Lessor, at Lessee's written request, will cooperate with Lessee
in pursuing any remedies Lessee may have under such warranties. Any action taken
with regard to warranty claims against any manufacturer or supplier by Lessee
will be at Lessee's sole expense. LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, OF ANY KIND AS TO THE FINANCIAL CONDITION OR FINANCIAL
STATEMENTS OF ANY PARTY OR AS TO THE TAX OR ACCOUNTING TREATMENT OR CONSEQUENCES
OF THE LEASE, THE EQUIPMENT OR THE RENTAL PAYMENTS.
8. INSURANCE: Lessee at its sole expense shall at all times keep each item of
Equipment insured against all risks of loss or damage from every cause
whatsoever for an amount not less than the greater of the full replacement value
or the Lessor's Cost of such item of Equipment. Lessee at its sole expense shall
at all times carry public liability and property damage insurance in amounts
satisfactory to Lessor protecting Lessee and Lessor from liabilities for
injuries to persons and damage to property of others relating in any way to the
Equipment. All insurers shall be reasonably satisfactory to Lessor. Lessee shall
deliver to Lessor satisfactory evidence of such coverage. Proceeds of any
insurance covering damage or loss of the Equipment shall be payable to Lessor as
loss payee and shall, at Lessor's option, be applied toward (a) the replacement,
restoration or repair of the Equipment, or (b) payment of the obligations of
Lessee under the Lease. Proceeds of any public liability or property insurance
shall be payable first to Lessor as additional insured to the extent of its
liability, then to Lessee. If an event of default occurs and is continuing, or
if Lessee fails to make timely payments due under Section 9 hereof, then Lessee
automatically appoints Lessor as Lessee's attorney-in-fact with full power and
authority in the place of Lessee and in the name of Lessee or Lessor to make
claim for, receive payment of, and sign and endorse all documents, checks or
drafts for loss or damage under any such policy. Each insurance policy will
require that the insurer give Lessor at least 30 days prior written notice of
any cancellation of such policy and will require that Lessor's interests remain
insured regardless of any act, error, omission, neglect or misrepresentation of
Lessee. The insurance maintained by Lessee shall be primary without any right of
contribution from insurance which may be maintained by Lessor.
9. LOSS AND DAMAGE: (a) Lessee bears the entire risk of loss, theft, damage or
destruction of Equipment in whole or in part from any reason whatsoever
("Casualty Loss"), No Casualty Loss to Equipment shall relieve Lessee from the
obligation to pay rent or from any other obligation under the Lease.
Page 1 of 4
4
9. LOSS AND DAMAGE (CONTINUED): In the event of Casualty Loss to any item of
Equipment, Lessee shall immediately notify Lessor of the same and Lessee shall,
if so directed by Lessor, immediately repair the same. If Lessor determines
that any item of Equipment has suffered a Casualty Loss beyond repair ("Lost
Equipment"), then Lessee, at the option of Lessor, shall: (1) Immediately
replace the Lost Equipment with similar equipment in good repair, condition and
working order free and clear of any Liens and deliver to Lessor a xxxx of sale
covering the replacement equipment, in which even such replacement equipment
shall automatically be Equipment under the Lease; or (2) On the rent payment
date which is at least 30 but no more than 60 days after the date of the
Casualty Loss, pay to Lessor all amounts then due and payable by Lessee under
the Lease for the Lost Equipment plus the Stipulated Loss Value for such Lost
Equipment as of the date of the Casualty Loss. Upon payment by Lessee of all
amounts due under the above clause (2), the lease of the Lost Equipment will
terminate and Lessor shall transfer to Lessee all of Lessor's right, title and
interest in such Equipment on an "as-is, where-is" basis with all faults,
without recourse and without representation or warranty of any kind, express or
implied.
(b) "Stipulated Loss Value" of any item of Equipment during its Lease Term
equals the present value discounted in arrears to the applicable date at the
applicable SLV Discount Rate of (1) the remaining rents and all other amounts
[including, without limitation, any balloon payment and, as to a terminal
rental adjustment clause ("TRAC") lease, the TRAC value stated in the Schedule,
and any other payments required to be paid by Lessee at the end of the
applicable Lease Term] payable under the Lease for such item on and after such
date to the end of the applicable Lease Term and (2) an amount equal to the
Economic Value of the Equipment. For any item of Equipment, "Economic Value"
means the Fair Market Value of the Equipment at the end of the applicable Lease
Term as originally anticipated by Lessor at the Commencement Date of the
applicable Schedule; provided, that Lessee agrees that such value shall be
determined by the books of Lessor as of the Commencement Date of the applicable
Schedule. After the payment of all rent due under the applicable Schedule and
the expiration of the Lease Term of any item of Equipment, the Stipulated Loss
Value of such item equals the Economic Value of such item. Stipulated Loss
Value shall also include any Taxes payable by Lessor in connection with its
receipt thereof. For any item of Equipment, "SLV Discount Rate" means an
interest rate equal to the Prime Rate in effect on the Commencement Date of the
Schedule for such item minus two percentage points.
10. TAX BENEFIT INDEMNITY. (a) The Lease has been entered into on the basis
that Lessor shall be entitled to such deductions, credits and other tax benefits
as are provided by federal, state and local income tax law to an owner of the
Equipment (the "Tax Benefits") including, without limitation: (1) modified
accelerated cost recovery deductions on each item of Equipment under Section 168
of the Code (as defined below) in an amount determined commencing with the
taxable year in which the Commencement Date of the applicable Schedule occurs,
using the maximum allowable depreciation method available under Section 168 of
the Code, using a recovery period (as defined in Section 168 of the Code)
reasonably determined by Lessor, and using an initial adjusted basis which is
equal to the Lessor's Cost of such item; (2) amortization of the expenses paid
by Lessor in connection with the Lease on a straight-line basis over the term
of the applicable Schedule; and (3) Lessor's federal taxable income will be
subject to the maximum rate on corporations in effect under the Code as of the
Commencement Date of the applicable Schedule.
(b) If on any one or more occasions (1) Lessor shall lose, shall not have
or shall lose the right to claim all or any part of the Tax Benefits, (2) there
shall be reduced, disallowed, recalculated or recaptured all or any part of the
Tax Benefits, or (3) all or any part of the Tax Benefits is reduced by a change
in law or regulation (each of the events described in subparagraphs 1, 2 or 3 of
this paragraph (b) will be referred to as a "Tax Loss"), then, upon 30 days
written notice by Lessor to Lessee that a Tax Loss has occurred, Lessee shall
pay Lessor an amount which, in the reasonable opinion of Lessor and after the
deduction of all taxes required to be paid by Lessor with respect to the receipt
of such amount, will provide Lessor with the same after-tax net economic yield
which was originally anticipated by Lessor as of the Commencement Date of the
applicable Schedule.
(c) A Tax Loss shall occur upon the earliest of: (1) the happening of any
event (such as disposition or change in use of an item of Equipment) which may
cause such Tax Loss; (2) Lessor's payment to the applicable taxing authority of
the tax increase resulting from such Tax Loss; or (3) the adjustment of
Lessor's tax return to reflect such Tax Loss.
(d) Lessor shall not be entitled to payment under this section for any Tax
Loss caused solely by one or more of the following events: (1) a disqualifying
sale or disposition of an item of Equipment by Lessor prior to any default by
Lessee; (2) Lessor's failure to timely or properly claim the Tax Benefits in
Lessor's tax return; (3) a disqualifying change in the nature of Lessor's
business or liquidation thereof; (4) a foreclosure by any person holding
through Lessor a security interest on an item of Equipment which foreclosure
results solely from an act of Lessor, or (5) Lessor's failure to have
sufficient taxable income or tax liability to utilize the Tax Benefits.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended. For
the purposes of this section 10, the term "Lessor" shall include any affiliate
group (within the meaning of section 1504 of the Code) of which Lessor is a
member for any year in which a consolidated income tax return is filed for such
affiliated group. Lessee's obligations under this section shall survive the
expiration, cancellation or termination of the Lease.
11. GENERAL TAX INDEMNITY: Lessee will pay, and will defend, indemnify and hold
Lessor harmless on an after-tax basis from, any and all Taxes (as defined below)
and related audit and contest expenses on or relating to (a) any of the
Equipment, (b) the Lease, (c) purchase, acceptance, ownership, lease,
possession, use, operation, transportation, return or other disposition of any
of the Equipment, and (d) rentals or earnings relating to any of the Equipment
or the Lease. "Taxes" means present and future taxes or other governmental
charges that are not based on the net income of Lessor, whether they are
assessed to or payable by Lessee or Lessor, including, without limitation (i)
sales, use, excise, licensing, registration, titling, franchise, business and
occupation, gross receipts, stamp and personal property taxes, (ii) levies,
imposts, duties, assessments, charges and withholdings, (iii) penalties, fines,
and additions to tax and (iv) interest on any of the foregoing. Unless Lessor
elects otherwise, Lessor will prepare and file all reports and returns relating
to any Taxes and will pay all Taxes to the appropriate taxing authority. Lessee
will reimburse Lessor for all such payments promptly on request. On or after any
applicable assessment/levy/lien date for any personal property Taxes relating to
any Equipment, Lessee agrees that upon Lessor's request Lessee shall pay to
Lessor the personal property Taxes which Lessor reasonably anticipates will be
due, assessed, levied or otherwise imposed on any Equipment during its Lease
Term. If Lessor elects in writing, Lessee will itself prepare and file all such
reports and returns, pay all such Taxes directly to the taxing authority, and
send Lessor evidence thereof. Lessee's obligations under this section shall
survive the expiration, cancellation or termination of the Lease.
12. GENERAL INDEMNITY: Lessee assumes all risk and liability for, and shall
defend, indemnify and keep Lessor harmless on an after-tax basis from, any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs and expenses, including reasonable attorney fees and expenses, of
whatsoever kind and nature imposed on, incurred by or asserted against Lessor,
in any way relating to or arising out of the manufacture, purchase, acceptance,
rejection, ownership, possession, use, selection, delivery, lease, operation,
condition, sale, return or other disposition of the Equipment or any part
thereof (including, without limitation, any claim for latent or other defects,
whether or not discoverable by Lessee or any other person, any claim for
negligence, tort or strict liability, any claim under any environmental
protection or hazardous waste law and any claim for patent, trademark or
copyright infringement). Lessee will not indemnify Lessor under this section
for loss or liability arising from events which occur after the Equipment has
been returned to Lessor or for loss or liability caused directly and solely by
the gross negligence or willful misconduct of Lessor. In this section, "Lessor"
also includes any director, officer, employee, agent, successor or assign of
Lessor. Lessee's obligations under this section shall survive the expiration,
cancellation or termination of the Lease.
13. PERSONAL PROPERTY: Lessee represents and agrees that the Equipment is, and
shall at all times remain, separately identifiable personal property. Upon
Lessor's request, Lessee shall furnish Lessor a landlord's and/or mortgagee's
waiver and consent to remove all Equipment. Lessor may display notice of its
interest in the Equipment by any reasonable identification. Lessee shall not
alter or deface any such indicia of Lessor's interest.
14. DEFAULT: Each of the following events shall constitute an event of default
under the Lease: (a) Lessee fails to pay any rent or other amount due under the
Lease within ten days of its due date; or (b) Lessee fails to perform or
observe any of its obligations in Sections 8, 18, or 22 hereof; or (c) Lessee
fails to perform or observe any of its other obligations in the Lease for more
than 30 days after Lessor notifies Lessee of such failure; or (d) Lessee or any
Lessee affiliate defaults in the payment, performance or observance of any
obligation under any loan, credit agreement or other lease in which Lessor or
any subsidiary (direct or indirect) of Banc One Corporation (which is Lessor's
ultimate parent corporation) is the creditor or lessor; or (e) any statement,
representation or warranty made by Lessee in the Lease, in any Schedule or in
any document, certificate or financial statement in connection with the Lease
proves at any time to have been untrue or misleading in any material respect as
of the time when made; or (f) Lessee becomes insolvent or bankrupt, or Lessee
admits its inability to pay its debts as they mature, or Lessee makes an
assignment for the benefit of creditors, or Lessee applies for, institutes or
consents to the appointment of a receiver, trustee or similar official for
Lessee or any substantial part of its property or any such official is
appointed without Lessee's consent, or Lessee applies for, institutes or
consents to any bankruptcy, insolvency, reorganization, debt moratorium,
liquidation, or similar proceeding relating to Lessee or any substantial part
of its property under the laws of any jurisdiction or any such proceeding is
instituted against Lessee without stay or dismissal for more than 30 days, or
Lessee commences any act amounting to a business failure or a winding up of its
affairs, or Lessee ceases to do business as a going concern; or (g) with
respect to any guaranty, letter of credit, pledge agreement, security
agreement, mortgage, deed of trust, debt subordination agreement or other
credit enhancement or credit support agreement (whether now existing or
hereafter arising) signed or issued by any party in connection with all or any
part of Lessee's obligations, under the Lease, the party signing or issuing any
such agreement defaults in its obligations thereunder or any such agreement
shall cease to be in full force and effect or shall be declared to be null,
void, invalid or unenforceable by the party signing or issuing it; or (h) there
shall occur in Lessor's reasonable opinion any material adverse change in the
financial condition, business or operations of Lessee.
Page 2 of 4
5
14. DEFAULT (CONTINUED):
As used in this section 14, the term "Lessee" also includes any guarantor
(whether now existing or hereafter arising) of all or any part of Lessee's
obligations under the Lease and/or any issuer of a letter of credit (whether now
existing or hereafter arising) relating to all or any part of Lessee's
obligations under the Lease, and the term "Lease" also includes any guaranty or
letter of credit (whether now existing or hereafter arising) relating to all or
any part of Lessee's obligations under the Lease.
15. REMEDIES. If any event of default exists, Lessor may exercise in any order
one or more of the remedies described in the lettered subparagraphs of this
section, and Lessee shall perform its obligations imposed thereby:
(a) Lessor may require Lessee to return any or all Equipment as provided
in the Lease.
(b) Lessor or its agent may repossess any or all Equipment wherever found,
may enter the premises where the Equipment is located and disconnect, render
unusable and remove it, and may use such premises without charge to store or
show the Equipment for sale.
(c) Lessor may sell any or all Equipment at public or private sale, with or
without advertisement or publication, may re-lease or otherwise dispose of it
or may use, hold or keep it.
(d) Lessor may require Lessee to pay to Lessor on a date specified by
Lessor, with respect to any or all Equipment (i) all accrued and unpaid rent,
late charges and other amounts due under the Lease on or before such date, plus
(ii) as liquidated damages for loss of a bargain and not as a penalty, and in
lieu of any further payments of rent, the Stipulated Loss Value of the
Equipment on such date, plus (iii) interest at the Overdue Rate on the total of
the foregoing ("Overdue Rate" means an interest rate per annum equal to the
higher of 18% or 2% over the Prime Rate, but not to exceed the highest rate
permitted by applicable law). The parties acknowledge that the foregoing money
damage calculation reasonably reflects Lessor's anticipated loss with respect
to the Equipment and the related Lease resulting from the event of default. If
an event of default under section 14(f) of this Master Lease Agreement exists,
then Lessee will be automatically liable to pay Lessor the foregoing amounts as
of the next rent payment date unless Lessor otherwise elects in writing.
(e) Lessee shall pay all costs, expenses and damages incurred by Lessor
because of the event of default or its actions under this section, including,
without limitation any collection agency and/or attorney fees and expenses, any
costs related to the repossession, safekeeping, storage, repair, reconditioning
or disposition of the Equipment and any incidental and consequential damages.
(f) Lessor may terminate the Lease and/or any or all Schedules, may xxx to
enforce Lessee's performance of its obligations under the Lease and/or may
exercise any other right or remedy then available to Lessor at law or in equity.
Lessor is not required to take any legal process or give Lessee any notice
before exercising any of the above remedies. None of the above remedies is
exclusive, but each is cumulative and in addition to any other remedy available
to Lessor. Lessor's exercise of one or more remedies shall not preclude its
exercise of any other remedy. No action taken by Lessor shall release Lessee
from any of its obligations to Lessor. No delay or failure on the part of
Lessor to exercise any right hereunder shall operate as a waiver thereof, nor
as an acquiescence in any default, nor shall any single or partial exercise of
any right preclude any other exercise thereof or the exercise of any other
right. After any default, Lessor's acceptance of any payment by Lessee under
the Lease shall not constitute a waiver by Lessor of such default, regardless
of Lessor's knowledge or lack of knowledge at the time of such payment, and
shall not constitute a reinstatement of the Lease if the Lease has been
declared in default by Lessor, unless Lessor has agreed in writing to reinstate
the Lease and to waive the default.
If Lessor actually repossesses any Equipment, then it will use
commercially reasonable efforts under the then current circumstances to attempt
to mitigate its damages; provided, that Lessor shall not be required to sell,
re-lease or otherwise dispose of any Equipment prior to Lessor enforcing any of
the remedies described above. Lessor may sell or re-lease the Equipment in any
manner it chooses, free and clear of any claims or rights of Lessee and without
any duty to account to Lessee with respect thereto except as provided below.
If Lessor actually sells or re-leases the Equipment, it will credit the net
proceeds of any sale of the Equipment, or the net present value (discounted at
the then current Prime Rate) of the rents payable under any new lease of the
Equipment, against and up to (but not exceeding) the Stipulated Loss Value of
the Equipment and any other amounts Lessee owes Lessor, or will reimburse
Lessee for and up to (but not exceeding) Lessee's payment thereof. The term
"net" as used above shall mean such amount after deducting the costs and
expenses described in clause (e) above of this section. If Lessor elects in
writing not to sell or re-lease any Equipment, it will similarly credit or
reimburse Lessee for Lessor's reasonable estimate of such Equipment's Fair
Market Value.
16. LESSOR'S RIGHT TO PERFORM: If Lessee fails to make any payment under the
Lease or fails to perform any of its other agreements in the Lease (including,
without limitation, its agreement to provide insurance coverage as stated in
the Lease), Lessor may itself make such payment or perform such agreement, and
the amount of such payment and the amount of the expenses of Lessor incurred in
connection with such payment or performance shall be deemed to be additional
rent, payable by Lessee on demand.
17. FINANCIAL REPORTS: Lessee agrees to furnish to Lessor: (a) annual financial
statements setting forth the financial condition and results of operation of
Lessee (financial statements shall include the balance sheet, income statement
and changes in financial position and all notes thereto) within 120 days of the
end of each fiscal year of Lessee; (b) quarterly financial statements setting
forth the financial condition and results of operation of Lessee within 60 days
of the end of each of the first three fiscal quarters of Lessee; and (c) such
other financial information as Lessor may from time to time reasonably request
including, without limitation, financial reports filed by Lessee with federal
or state regulatory agencies. All such financial information shall be prepared
in accordance with generally accepted accounting principles. If Lessee fails to
furnish the annual financial statements to Lessor within 30 days of Lessor's
written request, then Lessor may, at its option, charge Lessee a
non-performance fee equal to all the rentals due under the Lease for the then
current month (unless otherwise prohibited by law) and such fees shall be
deemed to be additional rent, payable by Lessee on demand.
18. NO CHANGES IN LESSEE: Lessee shall not: (a) liquidate, dissolve or suspend
business; (b) sell, transfer or otherwise dispose of all or a majority of its
assets, except that Lessee may sell its inventory in the ordinary course of its
business; (c) enter into any merger, consolidation or similar reorganization
unless it is the surviving corporation; (d) transfer all or any substantial
part of its operations or assets outside of the United States of America; or
(e) without 30 days advance written notice to Lessor, change its name or chief
place of business. Lessee shall at all times maintain a tangible net worth
which is no less than the greater of 75% of its tangible net worth as of the
date of the Master Lease Agreement or 75% of its highest tangible net worth
thereafter.
19. LATE CHARGES: If any rent or other amount payable under the Lease is not
paid when due, then as compensation for the administration and enforcement of
Lessee's obligation to make timely payments, Lessee shall pay with respect to
each overdue payment on demand an amount equal to the greater of fifteen
dollars ($15.00) or five percent (5%) of the each overdue payment (but not to
exceed the highest late charge permitted by applicable law) plus any collection
agency fees and expenses.
20. NOTICES; POWER OF ATTORNEY: (a) Service of all notices under the Lease
shall be sufficient if given personally or couriered or mailed to the party
involved at its respective address set forth herein or at such other address as
such party may provide in writing from time to time. Any such notice mailed to
such address shall be effective three days after deposit in the United States
mail with postage prepaid. (b) With respect to any power of attorney covered by
the Lease, the powers conferred on Lessor thereby: are powers coupled with an
interest; are irrevocable; are solely to protect Lessor's interests under the
Lease; and do not impose any duty on Lessor to exercise such powers. Lessor
shall be accountable solely for amounts it actually receives as a result of its
exercise of such powers.
21. ASSIGNMENT BY LESSOR: Lessor and any assignee of Lessor, with or without
notice to or consent of Lessee, may sell, assign, transfer or grant a security
interest in all or any part of Lessor's rights, obligations, title or interest
in the Equipment, the Lease, any Schedule or the amounts payable under the Lease
or any Schedule to any entity ("transferee"). The transferee shall succeed to
all of Lessor's rights in respect to the Lease (including, without limitation,
all rights to insurance and indemnity protection described in the Lease). Lessee
agrees to sign any acknowledgement and other documents reasonably requested by
Lessor or the transferee in connection with any such transfer transaction.
Lessee, upon receiving notice of any such transfer transaction, shall comply
with the terms and conditions thereof. Lessee agrees that it shall not assert
against any transferee any claim, defense, setoff, deduction or counterclaim
which Lessee may now or hereafter be entitled to assert against Lessor. Unless
otherwise agreed in writing, the transfer transaction shall not relieve Lessor
of any of its obligations to Lessee under the Lease and Lessee agrees that the
transfer transaction shall not be construed as being an assumption of such
obligations by the transferee.
22. NO ASSIGNMENT, SUBLEASE OR LIEN BY LESSEE: LESSEE SHALL NOT, DIRECTLY OR
INDIRECTLY, (a) MORTGAGE, ASSIGN, SELL, TRANSFER, OR OTHERWISE DISPOSE OF THE
LEASE OR ANY INTEREST THEREIN OR THE EQUIPMENT OR ANY PART THEREOF, OR (b)
SUBLEASE, RENT, LEND OR TRANSFER POSSESSION OR USE OF THE EQUIPMENT OR ANY PART
THEREFOR TO ANY PARTY, OR (c) CREATE, INCUR, GRANT, ASSUME OR ALLOW TO EXIST
ANY LIEN ON THE LEASE, ANY SCHEDULE, THE EQUIPMENT OR ANY PART THEREOF.
Page 3 of 4
6
23. EXPIRATION OF LEASE TERM: (a) At least 90 days (or earlier if otherwise
specified), but no more than 270 days prior to expiration of the Lease Term of
each Schedule, Lessee shall give Lessor written notice of its electing one of
the following options for all (but not less than all) of the Equipment covered
by such Schedule: return the Equipment under clause (b) below; or purchase the
Equipment under clause (c) below. The election of an option shall be
irrevocable. If Lessee fails to give timely notice of its election, it shall be
deemed to have elected to return the Equipment.
(b) If Lessee elects or is deemed to have elected to return the Equipment
at the expiration of the Lease Term of a Schedule or if Lessee is obligated at
any time to return the Equipment, then Lessee shall, at its sole expense and
risk, deinstall, disassemble, pack, crate, insure and return the Equipment to
Lessor (all in accordance with applicable industry standards) at any location in
the continental United States of America selected by Lessor. The Equipment shall
be in the same condition as when received by Lessee, reasonable wear, tear and
depreciation resulting from normal and proper use excepted (or, if applicable,
in the condition set forth in the Lease or the Schedule), shall be in good
operating order and maintenance as required by the Lease, shall be certified as
being eligible for any available manufacturer's maintenance program, shall be
free and clear of any Liens as required by the Lease, shall comply with all
applicable laws and regulations and shall include all manuals, specifications,
repair and maintenance records and similar documents. Until Equipment is
returned as required above, all terms of the Lease shall remain in full force
and effect including, without limitation, obligations to pay rent and insure the
Equipment; provided, that after the expiration of any Schedule and before Lessee
has completed its return of the Equipment or its purchase option (if elected),
the term of the lease of the Equipment covered by such Schedule shall be
month-to-month or such shorter period as may be specified by Lessor.
(c) If Lessee gives Lessor timely notice of its election to purchase
Equipment, then on the expiration date of the applicable Schedule Lessee shall
purchase all (but not less than all) of the Equipment and shall pay to Lessor
the Fair Market Value of the Equipment plus all Taxes (other than income taxes
on Lessor's gains on such sale), costs and expenses incurred or paid by Lessor
in connection with such sale plus all accrued but unpaid amounts due with
respect to the Equipment and/or the Schedule. The Stipulated Loss Value or
Economic Value of any item of Equipment shall have no bearing or influence on
the determination of Fair Market Value under this clause (c). Upon payment in
full of the above amounts, and if no default has occurred and is continuing
under the Lease, Lessor shall transfer title to such Equipment to Lessee
"as-is, where-is" with all faults and without recourse to Lessor and without
any representation or warranty of any kind whatsoever by Lessor, express or
implied.
(d) For purposes of the purchase option of the Lease, the determination of
the Fair Market Value of any Equipment shall be determined (1) without deducting
any costs of dismantling or removal from the location of use, (2) on the
assumption that the Equipment is in the condition required by the applicable
return and maintenance provisions of the Lease and is free and clear of any
Liens as required by the Lease, and (3) shall be determined by mutual agreement
of Lessee and Lessor or, if Lessor and Lessee are not able to agree on such
value, by the Appraisal Procedure. "Appraisal Procedure" means the determination
of Fair Market Value by an independent appraiser acceptable to Lessor and
Lessee, or, if the parties are unable to agree on an acceptable appraiser, by
averaging the valuation (disregarding the one which differs the most from the
other two) of three independent appraisers, the first appointed by Lessor, the
second appointed by Lessee and the third appointed by the first two appraisers.
For purposes of the "Remedies" section of the Lease, the Fair Market Value shall
be determined by Lessor in good faith and any such valuation shall be on an
"as-is, where-is" basis without regard to the first sentence of this clause (d).
Lessee, at its sole expense, shall pay all fees, costs and expenses of the above
described appraisers.
24. GOVERNING LAW: THE INTERPRETATION, CONSTRUCTION AND VALIDITY OF THE LEASE
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OHIO. WITH RESPECT TO ANY ACTION
BROUGHT BY LESSOR AGAINST LESSEE TO ENFORCE ANY TERM OF THE LEASE, LESSEE
HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE OR
FEDERAL COURT IN THE FRANKLIN COUNTY, OHIO, WHERE LESSOR HAS ITS PRINCIPAL
PLACE OF BUSINESS AND WHERE PAYMENTS ARE TO BE MADE BY LESSEE.
25. MISCELLANEOUS: (a) Subject to the limitations herein, the Lease shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, successors and assigns. (b) This Master Lease
Agreement and each Schedule may be executed in any number of counterparts,
which together shall constitute a single instrument. Only one counterpart of
each Schedule shall be marked "Lessor's Original" and all other counterparts
shall be marked "Duplicate". A security interest in any Schedule may be created
through transfer and possession only of the counterpart marked "Lessor's
Original". (c) Section and paragraph headings in this Master Lease Agreement
and the Schedules are for convenience only and have no independent meaning. (d)
The terms of the Lease shall be severable and if any term thereof is declared
unconscionable, invalid, illegal or void, in whole or in part, the decision so
holding shall not be construed as impairing the other terms of the Lease and
the Lease shall continue in full force and effect as if such invalid, illegal,
void or unconscionable term were not originally included herein. (e) All
indemnity obligations of Lessee under the Lease and all rights, benefits and
protections provided to Lessor by warranty disclaimers shall survive the
cancellation, expiration or termination of the Lease. (f) Lessor shall not be
liable to Lessee for any indirect, consequential or special damages for any
reason whatsoever. (g) Each payment made by Lessee shall be applied by Lessor
in such manner as Lessor determines in its discretion which may include,
without limitation, application as follows: first, to accrued late charges;
second, to accrued rent; and third, the balance to any other amounts then due
and payable by Lessee under the Lease. (h) If the Lease is signed by more than
one Lessee, each of such Lessees shall be jointly and severally liable for
payment and performance of all of Lessee's obligations under the Lease.
26. ENTIRE AGREEMENT: THE LEASE REPRESENTS THE FINAL, COMPLETE AND ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO. THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS
OR UNDERSTANDINGS AFFECTING THE LEASE OR THE EQUIPMENT. Lessee agrees that
Lessor is not the agent of any manufacturer or supplier, that no manufacturer
or supplier is an agent of Lessor, and that any representation, warranty or
agreement made by a manufacturer, supplier or their employees, sales
representatives or agents shall not be binding on Lessor.
27. JURY WAIVER: ALL PARTIES TO THIS MASTER LEASE AGREEMENT WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY RELATED TO THIS MASTER LEASE AGREEMENT.
COMPUROUTE, INC.
BANC ONE LEASING CORPORATION --------------------------------------------
(Name of Lessee)
Lessor
By: By: /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------------ ----------------------------------------
Title: Title: PRESIDENT
---------------------------- -------------------------------------
Lessee's Witness: /s/ Xxxxx X. Xxxx
--------------------------
-------------------------------------------------------------------------------
COMPUROUTE, INC.
Regardless of any prior, present
or future oral agreement or course --------------------------------------------
of dealing, no term or condition (Name of Lessee)
of the Lease may be amended,
modified, waived, discharged,
cancelled or terminated except by
a written instrument signed by the
party to be bound; except Lessee
authorizes Lessor to complete the
Acceptance Date of each Schedule
and the serial numbers of any
Equipment. By: /s/ Xxxxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: PRESIDENT
-------------------------------------
-------------------------------------------------------------------------------
Page 4 of 4
7
CORPORATE MASTER LEASE ACKNOWLEDGEMENT
State of Texas :
-------------- :
: SS
County of Dallas :
-------------- :
The above mentioned foregoing instrument, was acknowledged before me this
11/17, 1997 by (Officers' Name) XXXXXXXXX X. XXXXXXXXX, (Officer's Title)
PRESIDENT, of COMPUROUTE, INC., a DELAWARE corporation, on behalf of the
corporation.
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public
[Notary Seal]
Commission Expires 6/23/98
8
LESSEE'S SECRETARY CERTIFICATE OF
COMPUROUTE, INC. (the "Corporation")
-----------------------------------------------------------
The undersigned, who is the duly elected and acting Secretary or Assistant
Secretary of the Corporation, hereby certifies that the following is a true and
correct copy of resolutions duly adopted by the Board of Directors of the
Corporation in conformity with its charter, articles of incorporation and
by-laws
[SELECT ONE]
at a meeting of said Board duly called and held
------- 19 at which a quorum was present and acting -------------------,
---
-or-
X by unanimous written action of said Board as allowed by statute,
------- effective 11/17, 1997
--------- ---
and that such resolutions have not been amended or altered and are in full
force and effect on the date hereof.
"RESOLVED, that any officer of this Corporation be and is hereby
authorized and empowered in the name and on behalf of this Corporation from
time to time (i) to enter into one or more lease agreements, loan and security
agreements or conditional sale agreements ("Agreements") with Banc One Leasing
Corporation (the "Company") as lessor, secured party or seller, as the case may
be, concerning property to be leased, pledged as collateral, or sold to this
Corporation in such amounts and on such terms and conditions as such officer
deems appropriate; (ii) to mortgage, pledge, assign, and/or grant a security
interest in any of this Corporation's property, (iii) to supplement or amend
any such Agreements, and (iv) to execute and deliver such other documents
(including, without limitation, leases or promissory notes) and to do and
perform all other acts as such officer deems necessary, convenient or proper to
carry out the foregoing; and
FURTHER RESOLVED, that all that any officer shall have done or may do in
connection with the Agreements or the transactions described above is hereby
ratified and approved; and
FURTHER RESOLVED, that the foregoing resolutions shall remain in full
force and effect until written notice of their amendment or rescission shall
have been received by the Company."
The undersigned further certifies that the following are names and
specimen signatures of officers of the Corporation authorized by the above
resolutions, each of whom has been duly elected to hold and currently holds the
office of the Corporation set forth opposite his or her name:
Name Office Signature
---- ------ ---------
XXXXXXXXX X. XXXXXXXXX President /s/ Xxxxxxxxx X. Xxxxxxxxx
---------------------- -----------------------------
XXXXX X. XXXX Vice President /s/ Xxxxx X. Xxxx
---------------------- -----------------------------
Vice President
---------------------- -----------------------------
Page 1 of 2
9
Name Office Signature
---- ------ ---------
XXXXXX X. XXXXXX Secretary /s/ Xxxxxx X. Xxxxxx
---------------------- -----------------------------
---------------------- ---------------- -----------------------------
---------------------- ---------------- -----------------------------
IN WITNESS WHEREOF, I have hereto set my hand and affixed the seal of the
Corporation this 17 day of NOVEMBER , 1997 .
------- ---------------- ---
(Corporate Seal) /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Secretary or Assistant Secretary [Select One]
Print Name: XXXXXX X. XXXXXX
-----------------------------------------------
Page 2 of 2
10
PREPAYMENT SCHEDULE ADDENDUM
(For Prepayment of a Financing Lease Schedule)
Dated NOVEMBER 17, 1997
--------------------
Lease Schedule No. 0000000000 Dated NOVEMBER 17, 1997
----------------------- --------------------------
Lessee: COMPUROUTE, INC.
Reference is made to the above Lease Schedule as previously amended
("Schedule") and to the Master Lease Agreement as previously amended ("Master
Lease") identified in the Schedule, which are by and between Banc One Leasing
Corporation ("Lessor") and the above lessee ("Lessee"). As used herein:
"Lease" shall mean the Schedule and the Master Lease, but only to the extent
that the Master Lease relates to the Schedule; and "Equipment" shall mean the
equipment covered by the Schedule. This Schedule Addendum amends and
supplements the terms and conditions of the Lease. Unless otherwise defined
herein, capitalized terms defined in the Lease shall have the same meaning when
used herein. SOLELY FOR PURPOSES OF THE SCHEDULE, LESSOR AND LESSEE AGREE AS
FOLLOWS:
1. Notwithstanding anything to the contrary in the Lease, Lessee and
Lessor agree that so long as Lessee gives Lessor at least 20 days prior written
notice (the "Notice Period"), Lessee may elect to prepay the outstanding
principal balance of the Schedule, in whole or in part, on the rent payment
date (a "Prepayment Date") following the Notice Period by paying to Lessor
(whether made voluntarily or involuntarily as a result of an acceleration of
the Maturity Date or otherwise), the total of the following: (a) all accrued
rent or installment payments, interest, Taxes, late charges and other amounts
then due and payable under the Schedule and the Master Lease to the extent it
relates to the Schedule; plus (b) the principal amount selected by Lessee for
prepayment in the notice of prepayment (hereinafter, the "Prepaid Principal");
plus (c) a prepayment premium, if any, equal to the product of (i) an Average
Lost Monthly Interest Income and (ii) the number of months from the Prepayment
Date to the Maturity Date (with any fraction of a month counted as a month),
discounted to present value at the Discount Rate. At the option of Lessor, in
its absolute and sole discretion, any prepayment shall be applied to
installments coming due hereunder in the inverse order of their due dates.
2. Solely for purposes of this Addendum, the following definitions in this
paragraph 2 shall apply to this Addendum. "Maturity Date" means the scheduled
expiration of the Lease Term of the Schedule as set forth in the Schedule.
"Average Lost Monthly Interest Income" means the amount determined by dividing
(i) the product of the Average Principal and the Lost Rate, by (ii) twelve
(12). "Average Principal" is the amount equal to either (i) one-half of the sum
of (A) the amount of Prepaid Principal and (B) the amount of principal that is
scheduled to be due on the Maturity Date ("Balloon Amount"), or (ii) the amount
of
Page 1
11
Prepaid Principal, if such amount is less than the Balloon Amount. "Lost Rate"
is the rate per annum equal to the percentage, if any, by which (i) the yield to
maturity of United States Treasury debt obligations having a maturity date
nearest to the Maturity Date ("Treasury Obligations") determined on the date
hereof exceeds (ii) the yield to maturity of Treasury Obligations determined on
the date of prepayment. "Discount Rate" is the rate per annum equal to the yield
to maturity of Treasury Obligations determined on the date of prepayment. The
maturity date and yield to maturity of the Treasury Obligations shall be
determined by Lessor, in its absolute and sole discretion, on the basis of
quotations published in The Wall Street Journal, or other comparable sources.
Treasury Obligations shall exclude any stripped U.S. Treasury obligations and
any U.S. Treasury obligations which have multiple maturity or call dates, and if
more than one issue of U.S. Treasury obligations has the applicable maturity
month, then the U.S. Treasury obligation with the highest yield to maturity
shall be used.
3. Except as expressly amended or supplemented by this Addendum and other
instruments signed by Lessor, the Lease remains unchanged and in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of
the date referenced above.
COMPUROUTE, INC. Banc One Leasing Corporation
(Lessee) (Lessor)
By: /s/ Xxxxxxxxx X. Xxxxxxxxx By:
--------------------------- ---------------------------
Title: PRESIDENT Title:
------------------------ ------------------------
Page 2
12
BANC ONE LEASING CORPORATION
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 1
=========== =================================================================
EQUIPMENT LOCATION: 00000 XXXXXX XXXXX
XXXXXX, XXXXX 00000
COUNTY: DALLAS
EQUIPMENT COST: $356,635.51
EQUIPMENT DESCRIPTION:
ONE (1) ORANGE ENGINEERING & MACHINE CO. 26" X 32" VACUUM LAMINATION PRESS
CONSISTING OF SIX PRODUCT TRAYS, ONE 26" X 32" COLD PRESS, ONE
LOADER/UNLOADER, AND TWO NON-INDEXING ACCUMULATORS
ONE (1) UNIDYNE CUT SHEET LAMINATOR
REPLACEMENT PARTS FOR LAMINATOR INCLUDING: THREE CASTER INFED, ONE
BELT DRIVE, TWO GEARS, FOUR BEARINGS, FOUR SWITCH TOGGLES, TWO
THERMOCOUPLES, TWO INSULATORS, TWO TUBS SPAGHETI, ONE TAPE GLASS, TWO
LOW SPEED CUT, AND ONE BRAKE KIT
ONE (1) AUTOTECH ALKALINE ETCHING UNIT
TOGETHER WITH ALL ATTACHMENTS, ADDITIONS, ACCESSIONS, PARTS, REPAIRS,
IMPROVEMENTS, REPLACEMENTS AND SUBSTITUTIONS THERETO.
This schedule A-1 is attached to and made a part of Lease Number 0000000000 and
constitutes a true and accurate description of the equipment.
Lessee:
COMPUROUTE, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------
Date: NOVEMBER 17, 1997
------------------------
13
CONDITIONAL SALE
INSURANCE REQUEST LETTER
XXXXXX XXXXXXX
-------------------------------------------------------
(Agent)
0000 X. 00XX XXXXXX, XXXXX 000
-------------------------------------------------------
(Street Address)
XXXXXXX, XX 00000-0000
-------------------------------------------------------
(City, State, Zip)
(000) 000-0000
-------------------------------------------------------
(Telephone Number)
Dear Agent:
Before our lease transaction can close, we need a properly executed Certificate
of Insurance or binder covering the equipment we are leasing. Please send proof
immediately of the following insurance requirements in the enclosed
self-addressed envelope.
1. PHYSICAL DAMAGE: All risk equipment coverage for the replacement cost of
the equipment being leased, which is estimated to be $357,010.51.
Equipment Description: SEE SCHEDULE A-1 ATTACHED.
2. LOSS PAYEE: Banc One Leasing Corporation must be named as loss payee on the
Physical Damage coverage as owners of the equipment during the term of the
lease. "Mortgagee" will not be acceptable as this indicates a security
interest rather than ownership as described above.
3. LIABILITY: Liability coverages must be provided in the following amounts:
$500,000 for injury or death of one person
$100,000 for property damage liability as a result of one accident
$500,000 combined single limit of liability as a result of any one
accident
4. NOTICE OF CANCELLATION: This policy shall not be canceled nor any
restriction of coverage affected unless thirty (30) days prior written
notice has been given by certified mail to Banc One Leasing Corporation at
0000 Xxxxxxx Xxxxxxx, Xxxxx X0, Xxxxxxxx, Xxxx 00000, Attn: Insurance Dept.
PLEASE REFERENCE THE COMPLETE LEASE NUMBER AS LISTED BELOW FOR TRACKING
PURPOSES. THANK YOU.
Sincerely,
/s/ Xxxxxxxxx X. Xxxxxxxxx
-------------------------------------------------------
(By)
COMPUROUTE, INC.
-------------------------------------------------------
(Lessee Name)
0000000000
-------------------------------------------------------
(Lease Number)
================================================================================
Verified By: Date:
------------------------------------------- -----------------
(BOLC Employee)
14
CORPORATE GUARANTY
Master Lease Agreement Date: NOVEMBER 17, 1997
Lessee Name: COMPUROUTE, INC.
Equipment Cost: $357,010.51
1. For valuable consideration, the receipt of which is hereby
acknowledged, the undersigned jointly and severally unconditionally guarantee
to BANC ONE LEASING CORPORATION (hereinafter called "Lessor") the full and
prompt performance by the lessee identified above (hereinafter called
"Lessee"), of all obligations which Lessee now has or may hereafter have to
Lessor, including but not limited to obligations under equipment leases and
promissory notes executed in connection with anticipated equipment leases
(including but not limited to all present and future lease schedules and
promissory notes under the Master Lease identified above, with a total original
equipment cost to the Lessor of no more than the amount of the Equipment Cost
set forth above), and unconditionally guarantee the prompt payment when due
(whether at scheduled maturity, upon acceleration or otherwise) of any and all
sums, indebtedness and liabilities of whatsoever nature, due or to become due,
direct or indirect, absolute or contingent, now or hereafter at any time owed
or contracted by Lessee to Lessor, and all costs and expenses of and incidental
to collection of any of the foregoing, including reasonable attorneys' fees
(all of the foregoing hereinafter called "Obligations"). It is the
undersigned's express intention that this guaranty in addition to covering all
present Obligations of Lessee to Lessor, shall extend to all future Obligations
of Lessee to Lessor, whether or not such Obligations are reduced or entirely
extinguished and thereafter increased or are reincurred, whether or not such
Obligations are related to the Master Lease identified above, whether or not
such Obligations exceed the Equipment Cost identified above, and whether or not
such Obligations are specifically contemplated by the undersigned, Lessee, and
Lessor as of the date hereof.
2. This is an absolute and unconditional guarantee of payment and not of
collection. Lessor shall not be required, as a condition of the liability of
the undersigned, to resort to, enforce or exhaust any of its remedies against
the Lessee or any other party who may be liable for payment on any Obligation
or to resort to, xxxxxxxx, enforce or exhaust any of its remedies against any
leased property or any property given or held as security for this Guaranty or
any Obligation.
3. The undersigned hereby waive and grant to Lessor, without notice to
the undersigned and without in any way affecting the liability of the
undersigned, the right at any time and from time to time, to extend other and
additional credit, leases, loans or financial accommodations to Lessee apart
from the Obligations, to deal in any manner as it shall see fit with any
Obligation of Lessee to Lessor and with any leased property or security for
such Obligation, including, but not limited to, (i) accepting partial payments
on account of any Obligation, (ii) granting extensions or renewals of all or
any part of any Obligation, (iii) releasing, surrendering, exchanging, dealing
with, abstaining from taking, taking, abstaining from perfecting, perfecting,
or accepting substitutes for any or all leased property or security which it
holds or may hold
15
for any Obligation, (iv) modifying, waiving, supplementing or otherwise
changing any of the terms, conditions or provisions contained in any Obligation
and (v) the addition or release of any other party or person liable hereon,
liable on the Obligations or liable on any other guaranty executed to guarantee
any of Lessee's Obligations. The undersigned jointly and severally hereby agree
that any and all settlements, compromises, compositions, accounts stated and
agreed balances made in good faith between Lessor and Lessee shall be binding
upon the undersigned.
4. Every right, power and discretion herein granted to Lessor shall be for
the benefit of the successors or assigns of Lessor and of any transferee or
assignee of any Obligation covered by this Guaranty, and in the event any such
Obligation shall be transferred or assigned, every reference herein to Lessor
shall be construed to mean, as to such Obligation, the transferee or assignee
thereof. This Guaranty shall be binding upon each of the undersigned's
executors, administrators, heirs, successors and assigns.
5. This Guaranty shall continue in force for so long as Lessee shall be
obligated to Lessor, and thereafter until Lessor shall have actually received
written notice of the termination hereof from the undersigned, it being
contemplated that Lessee may borrow, lease, repay and subsequently borrow money
from or lease property from, or become obligated to, Lessor from time to time,
and the undersigned, not having given notice of the termination hereof as herein
provided for, shall be deemed to have permitted this Guaranty to remain in full
force and effect for the purpose of inducing Lessor to make further leases or
loans to Lessee; provided, however, no notice of termination of this Guaranty
shall affect in any manner the rights of Lessor arising under this Guaranty with
respect to the following: (a) any Obligation incurred by Lessee in connection
with the Master Lease identified above with a total equipment cost of no more
than the amount of the Total Equipment Cost set forth above, whether such
obligation is in the form of a lease or a promissory notice; or (b) any
Obligation incurred by Lessee prior to receipt by Lessor of written notice of
termination or any Obligation incurred after receipt of such written notice
pursuant to a written agreement entered into by Lessor prior to receipt of such
notice. The undersigned expressly waive notice of the incurring by Lessee of any
Obligation to Lessor. The undersigned also waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of or nonperformance of any
Obligation.
6. The undersigned hereby waive any claims or rights which they might now
have or hereafter acquire against Lessee or any other person primarily or
contingently liable on any Obligation of Lessee, which claims or rights arise
from the existence or performance of the undersigned's obligations under this
Guaranty or any other guaranty or under any instrument or agreement with
respect to any leased property or any property constituting collateral or
security for this Guaranty or any other guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of Lessor
or any other creditor which the undersigned now has or hereafter acquires,
whether such claim or right arises in equity, under contract or statute, at
common law, or otherwise.
7. Lessor's rights hereunder shall be reinstated and revived, and this
Guaranty shall be fully enforceable, with respect to any amount at any time
paid on account of the Obligations which thereafter shall be required to be
restored or returned by Lessor upon the bankruptcy, insolvency or
reorganization of the Lessee, the undersigned, or any other person, or as a
result of any other fact
16
or circumstance, all as though such amount had not been paid.
8. The undersigned jointly and severally agree to pay to Lessor all costs
and expenses, including reasonable attorneys' fees, incurred by Lessor in the
enforcement or attempted enforcement of this Guaranty, whether or not suit is
filed in connection therewith, or in the exercise by Lessor of any right,
privilege, power or remedy conferred by this Guaranty.
9. The undersigned represent and warrant that they have relied exclusively
on their own independent investigation of Lessee, the leased property and the
collateral for their decision to guarantee Lessee's Obligations now existing or
thereafter arising. The undersigned agree that they have sufficient knowledge
of the Lessee, the leased property, and the collateral to make an informed
decision about this Guaranty, and that Lessor has no duty or obligation to
disclose any information in its possession or control about Lessee, the leased
property, and the collateral to the undersigned. The undersigned warrant to
Lessor that they have adequate means to obtain from the Lessee on a continuing
basis information concerning the financial condition of the Lessee and that
they are not relying on Lessor to provide such information either now or in the
future.
10. As long as any indebtedness under any of the Obligations remains
unpaid or any credit is available to Lessee under any of the Obligations, the
undersigned agree to furnish to Lessor: (a) annual financial statements setting
forth the financial condition and results of operation of the undersigned
(financial statements shall include balance sheet, income statement, changes in
financial position and all notes thereto) within 120 days of the end of each
fiscal year of the undersigned; (b) quarterly financial statements setting
forth the financial condition and results of operation of the undersigned
within 60 days of the end of each of the first three fiscal quarters of the
undersigned; and (c) such other financial information as Lessor may from time
to time request including, without limitation, financial reports filed by the
undersigned with federal or state regulatory agencies.
11. No postponement or delay on the part of Lessor in the enforcement of
any right hereunder shall constitute a waiver of such right. The failure of
any person or entity to sign this Guaranty shall not discharge the liability of
any of the undersigned.
12. This Guaranty remains fully enforceable irrespective of any claim,
defense or counterclaim which the Lessee may or could assert on any of the
Obligations including but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations, fraud,
bankruptcy, accord and satisfaction, and usury, same of which the undersigned
hereby waive along with any standing by the undersigned to assert any said
claim, defense or counterclaim.
13. This Guaranty contains the entire agreement of the parties and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Guaranty is not intended to replace
or supersede any other guaranty which the undersigned have entered into or may
enter into in the future. The undersigned may enter into additional guaranties
in the future which may or may not refer to the Master Lease identified above
and such guaranties are not intended to replace or supersede this Guaranty
unless
17
specifically provided in that additional guaranty. The interpretation,
construction and validity of this guaranty shall be governed by the laws of the
State of Ohio. With respect to any action brought by Lessor against Guarantor
to enforce any term of this guaranty, Guarantor hereby irrevocably consents to
the jurisdiction and venue of any state or federal court in Franklin County,
Ohio, where Lessor has its principal place of business and where payments are
to be made by Lessee and Guarantor.
ALL PARTIES TO THIS GUARANTY, INCLUDING GUARANTOR AND LESSOR, WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY RELATED TO THIS GUARANTY.
Guarantor:
CERPROBE CORPORATION
--------------------
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------------
Title: V.P. & CFO
------------------------------------------------
Witness: /s/ Xxxxx X. Back
----------------------------------------------
Date: 11/17/97
-----------------
