Exhibit 10(u) C#: 136825
L#: 136826
(KEY GRAPHIC) MASTER EQUIPMENT LEASE AGREEMENT
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THIS MASTER EQUIPMENT LEASE AGREEMENT dated as of June 23, 2003 ("Master
Lease") is made by and between KEY EQUIPMENT FINANCE, A DIVISION OF KEY
CORPORATE CAPITAL INC., having an address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX
00000 ("Lessor"), and XXXXXXXX, INC. with its chief executive offices located at
0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Lessee").
1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, Equipment, subject to and upon the terms set forth herein and in any
Equipment Schedule executed in connection herewith (each, a "Schedule"). Each
Schedule shall constitute a separate and enforceable lease incorporating all the
terms of this Master Lease (each Schedule, together with this Master Lease as it
relates to such Schedule, is referred to herein as a "Lease"). If any term of a
Schedule conflicts or is inconsistent with any term of this Master Lease, the
terms of such Schedule shall govern.
2. DEFINITIONS. Unless the context otherwise requires, as used in the Lease,
the following terms shall have the respective meanings indicated below and shall
be equally applicable to both the singular and the plural forms thereof:
"Drawdown Request" shall mean Exhibit A.
"Equipment" means each item of property designated on a Schedule that will be
leased by Lessee pursuant to the Lease, together with all replacement parts,
additions and accessories incorporated therein or affixed thereto. Where Lessor
finances under the Lease payment of fees for Software Licenses and Services,
references to leasing, purchases, ownership and administration of "Equipment"
under the Lease shall be deemed to include such Financed Fees.
"Equipment Group" shall consist of all items of Equipment listed on a particular
Equipment Schedule.
"Fair Market Rental Value" or "Fair Market Sale Value" means the value of
Equipment for lease or sale, in place and in continued use, which would be
obtained in an arm's length transaction between an informed and willing retail
lessor or seller (under no compulsion to lease or sell) and an informed and
willing retail lessee or buyer (under no compulsion to lease or purchase),
assuming that Equipment is in the condition specified by Sections 10 and 11
hereof, as determined by the parties; provided that, if the parties cannot agree
on the Fair Market Rental Value or Fair Market Sale Value, such value shall be
determined as follows: (a) each party shall appoint an appraiser and the two
appraisers so appointed shall together pick a third appraiser whom shall be paid
for by Lessee, (b) such three appraisers shall appraise the specified items of
Equipment using their best efforts to determine such value as soon as possible,
and (c) if such three appraisers cannot agree on the fair market sale or rental
value, then the average of the individual appraisals given by such three
appraisers shall constitute the fair market sale or rental value.
"Guarantor" means any guarantor of Lessee's obligations hereunder.
"Financed Fees" means the Software license, usage, or other fees and the charges
for Services, if any, specified on a Schedule.
"Guarantor" means any guarantor of Lessee's obligations hereunder.
"Interim Rent" shall have the meaning given in Section 5.
"Interim Term Commencement Date" shall mean the date on which Lessor makes the
first Progress Payment.
"Interim Term " shall have the meaning given in Section 6.
"Item of Equipment" shall mean each item of the Equipment.
"Initial Lessor" means Key Equipment Finance, a Division of Key Corporate
Capital Inc.
"Initial Term Expiration Date" shall have the meaning specified in the
applicable Schedule.
"Lease Documents" means this Master Lease, a Schedule and all other documents
relating to or provided in connection with a Lease, prepared by Lessor, and now
or hereafter executed in connection herewith or therewith, as the same may be
modified, amended, extended or replaced.
"License Agreement" means the software license agreement(s) between Lessee and
Licensor relating to Software.
"Licensor" means the Supplier(s) of Software, solely in its (their) capacity as
licensor of such Software.
"Outside Closing Date" shall mean February 28, 2004.
"Progress Payments" shall have the meaning given in Section 3.2.
"Purchase Agreement" means any purchase agreement or other contract between a
Supplier and Lessee for the acquisition of Equipment to be leased or financed
under a Lease.
"Rent" means the periodic payments due for the leasing of Equipment as set forth
on the related Schedule and, where the context hereof requires, all such
additional amounts as may, from time to time, be payable under a Lease. The term
"Rent" shall include interim rent, if any, as described in Section 5 hereof.
"Rent Commencement Date" means, with respect to Equipment, the date on which (a)
Lessor receives an executed Certificate of Acceptance (as defined in Section 4
hereof) for Equipment from Lessee or (b) Lessor disburses funds for the purchase
of Equipment, as determined by Lessor in its sole discretion.
"Rent Payment Date" shall have the meaning specified in the applicable Schedule.
"Services" means all training, installation, transportation, handling,
maintenance, custom programming, integration, technical consulting and support
services relating to Equipment and specified on a Schedule.
"Software" means the software and all related documentation, corrections,
updates and revisions used in connection with Equipment financed under a
Schedule.
"Stipulated Loss Value" shall have the meaning specified in the applicable
Schedule.
"Supplier" means the manufacturer or the vendor of the Equipment.
"Term" means the Interim Term, Initial Term or any Renewal Term, each as defined
in Section 6 hereof, and any Extended Lease Term or Interim Term, as defined in
the applicable Schedule.
3. ORDERING EQUIPMENT. Lessee hereby assigns to Lessor all of Lessee's
rights, but none of its obligations, under any Purchase Agreement related to a
Lease. Lessor may (a) accept such assignment from Lessee of Lessee's rights, but
none of Lessee's obligations, under any such Purchase Agreement and/or (b) issue
a purchase order for the Equipment to the Supplier. Lessee shall arrange for
delivery of Equipment. If Equipment is subject to an existing Purchase Agreement
between Lessee and the Supplier, and Equipment has been delivered to Lessee as
of the date of the Schedule applicable thereto, Lessee warrants that it has
advised Lessor of the delivery date(s) of such Equipment. Lessee hereby
authorizes Lessor to add to each Schedule the serial numbers and other
identification data of Equipment associated therewith as such data is received
by Lessor.
3.1 ASSIGNMENT OF PURCHASE AGREEMENT. (a) With respect to certain Equipment
Groups for which Lessee has requested Lessor to make certain Progress Payments
(as defined below). Lessee has entered into Purchase Agreements with Suppliers,
pursuant to which Lessee has acquired rights to purchase certain Equipment from
such Suppliers. (B) Lessor shall accept an assignment from lessee of Lessee's
rights, but none of Lessee's obligations, under any such Purchase Agreement as
specified in this section 3.1.
3.2 PROGRESS PAYMENTS. With respect to the Equipment Groups, and as an
accommodation during the period of time in which the Equipment within such
Equipment Group is being purchased, assembled, installed and/or tested, Lessee
has requested Lessor to make certain payments (each, a "Progress Payment,"
collectively, the "Progress Payments") to the Suppliers, as required by the
terms of the Purchase Agreements, in each case subsequent to the effectiveness
and enforceability of the Master Lease with respect to such Equipment, but prior
to the Rent Commencement Date with respect to the Equipment. Lessor is willing
to make such Progress Payments, subject to and upon the terms and conditions set
forth herein.
Subject to the terms and conditions set forth herein and in Lease Documents,
Lessor hereby agrees to make the Progress Payments upon Lessee's request at the
times and in the amounts set forth in the Purchase Agreement or the purchase
orders with the Suppliers. Progress Payments shall be made to the address set
forth in each Drawdown Request (as defined below).
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Notwithstanding anything to the contrary contained in the Lease Documents,
Lessor shall have no obligation to make any Progress Payment hereunder unless:
(a) no Event of Default (as defined in Section 18) shall have occurred
and be continuing.
(b) Lessor shall have received the following documents duly executed and
delivered to the parties thereto;
(1) this Master Lease;
(2) UCC Financing Statements, as reasonably requested by Lessor;
(3) a Drawdown Request;
(4) an original invoice, acceptable to Lessor, from the vendor to whom payment
is requested, countersigned by Lessee, which countersignature shall be
conclusively deemed to be Lessee's certification and agreement that the Progress
Payment involved is then due and owing and properly payable, and that all
conditions precedent to the payment of such invoice have been performed and
competed to the satisfaction of Lessee;
(5) a certificate evidencing the insurance that is required hereunder;
(6) with respect to payments to Lessee to reimburse it for payments previously
made to third party vendors, (i) either copies of checks (front and back) or, if
funds were wired, a copy of a wire confirmation receipt, (ii) copies of invoices
marked "paid in full", and (iii) for confirmation purposes, the name and
telephone number of such vendor; and
(7) any other instruments or documents as may be reasonably requested by
Lessor.
(c) Lessor shall have received from Lessee a drawdown fee of $50.00 per
drawdown;
3.3 MASTER LEASE IN FULL FORCE AND EFFECT AS TO PROGRESS PAYMENTS. Lessee
hereby acknowledges that, with respect to the Progress Payments hereunder (and
the Equipment Group to which such Progress Payments relate) this Master Lease
shall be deemed to be in full force and effect against Lessee with respect to
such Equipment with the same force and effect as if an Equipment Schedule was
executed with respect to each item of such Equipment and Lessee had acknowledged
its unqualified acceptance of each item of such Equipment, on the date of the
Progress Payment relating thereto.
4. DELIVERY AND ACCEPTANCE. Upon delivery to and acceptance by Lessee of any
Equipment, Lessee shall execute and deliver to Lessor a Certificate of
Acceptance in form acceptable to Lessor ("Certificate of Acceptance"). EXCEPT AS
OTHERWISE PROVIDED HEREIN, LESSOR SHALL HAVE NO OBLIGATION TO ADVANCE ANY FUNDS
HEREUNDER UNLESS AND UNTIL LESSOR RECEIVES A CERTIFICATE OF ACCEPTANCE FOR SUCH
EQUIPMENT EXECUTED BY LESSEE.
5. RENT; DELINQUENT PAYMENTS. (a) The rental amount payable by the Lessee to
the Lessor during the Interim Term for the Equipment (the "Interim Term") shall
be equal to the total of each progress payment on such Equipment by Lessor from
the date of such advance multiplied by a floating rate per annum (the "Interest
Rate") equal to the Prime Rate (as hereinafter defined) in effect from time to
time plus fifty hundredths percent (.50%). The Interim Rent shall be immediately
and correspondingly adjusted with each change in the Prime Rate, be calculated
on the basis of a 360-day year consisting of twelve 30-day months, and accrue
until the date of receipt of payment. The Interim Rent shall be made to KEF at
X.X. Xxx 0000, Xxxxxx, Xxx Xxxx 00000-0000, or at such other place as KEF may
designate from time to time in writing. As used herein, "Prime Rate" means the
prime rate announced from time to time in The Wall Street Journal, published on
the business day on, or immediately prior to the 28th day of the month
immediately preceding such calendar month. If the Prime Rate is no longer
available, KEF will choose a new index that is based upon comparable information
and will give Borrower notice of such new "Prime Rate." Interim Rent at the
rates aforesaid shall be due and payable monthly in advance on the Rent
Commencement Date and on the same day each month thereafter.
(b) Lessee shall pay Rent commencing on the Rent Commencement Date, and,
unless otherwise set forth on the applicable Schedule, on the same day of each
payment period thereafter for the balance of the Term. Rent shall be due whether
or not Lessee has received any notice that it is due, and all Rent shall be paid
to Lessor at its address set forth on the Schedule, or as otherwise directed by
Lessor in writing.
(c) If Lessee fails to pay any Rent or other sums under the Lease on or
before the date when the same becomes due, Lessee shall pay to Lessor (in
addition to and not in lieu of other rights of Lessor) a late charge equal to
the lesser of five percent of such delinquent amount or the maximum permitted by
law. Such late charge shall be payable by Lessee upon demand by Lessor and shall
be deemed Rent hereunder. Lessee acknowledges and agrees that the late charge
(i) does not constitute interest, (ii) is an estimate of the costs Lessor will
incur as a result of the late payment and (iii) is reasonable in amount.
6. TERM; SURVIVAL. such The term of each Lease shall be comprised of an
Interim Term and an Initial Term, followed by any Renewal or Extended Terms.
With respect to each Item of Equipment and/or Progress Payments covered thereby,
the Interim Term shall commence upon the earlier of the first Progress payment
or the date such Item of Equipment is delivered to Lessee and shall terminate on
the Rent Commencement Date, as specified in the next sentence, after Lessee has
delivered to Lessor the Certificate of Acceptance, in accordance with Sections 4
and 6 hereof (the "Interim Term). The initial term ("Initial Term") of this
Lease with respect to an Equipment Schedule shall commence on the Rent
Commencement Date and shall terminate at the end of the period specified in the
Equipment Schedule. The Rent Commencement Date shall fall on the first day of
the month the immediately following the date on which the last acceptance of
Equipment subject to such Equipment Schedule has occurred. With respect to
Equipment Schedule, any renewal term of this Lease (individually,a "Renewal
Term), as contemplated hereby, shall commence immediately upon the expiration of
the Initial Term or any prior Renewal Term, as the case may be, and unless
earlier terminated as provided herein, shall expire on the date on which the
final payment of Rent is due and paid hereunder. All indemnification obligations
of Lessee hereunder shall survive the expiration, cancellation or other
termination of the Term thereof. With respect to an Item of Equipment, an
renewal term of this Lease (individually, a Renewal Term"), as contemplated
hereby, shall commence immediately upon the expiration of the Initial Term or
any prior Renewal Term, as the case may be, and unless earlier terminated as
provided herein, shall expire on the date on which the final payment of Rent is
due and paid hereunder. All obligations of Lessee hereunder shall survive the
expiration, cancellation or other termination of the Term hereof.
6.1 INTERIM TERM CLOSING DATE. (a) For each Equipment Schedule, the Interim
Term shall terminate and the Initial Term shall commence on the Rent
Commencement Date. On or before the Rent commence Date, the following documents
shall be duly executed and delivered by the parties thereto and shall each be in
full force and effect;
(1) an Equipment Schedule, together with all addenda thereto;
(2) a Certificate of Acceptance, delivered by Lessee to Lessor on the Rent
Commencement Date, with respect to the Equipment specified in the applicable
equipment schedule;
(3) all other documents reasonably contemplated hereby; and
(4) all other documents as may be reasonably requested by Lessor.
(b) Subject to the terms and conditions hereof, on the Rent
Commencement Date, Lessee shall pay Interim Rent to Lessor.
(c) On the Rent Commencement Date, the Rent (other than the
Interim Rent which is paid as required above) due and owing by Lessee under the
Lease shall commence and be payable as set forth in the Equipment Schedule.
6.2 TITLE. On the Rent Commencement Date, after giving effect to the
transactions contemplated hereby, Lessor shall have good and marketable title to
the Equipment, free and clear of all Liens.
6.3 FAILURE TO CLOSE. If the Interim Term has not been completed by the
Outside Closing Date, then and in such case, on the Outside Closing Date:
(a) Lessee promptly shall purchase from Lessor all of the
Equipment at a purchase price (to be paid by cash, certified check or wire
transfer of funds) in an amount equal to the aggregate amount of all
costs, disbursements and expenses incurred or committed to be incurred by
Lessor with respect thereto; and
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(b) In addition to such purchase price, Lessee shall pay to lessor
all amounts due Lessor under Section 5 (a) of this Master Equipment Lease
Agreement, accrued up to and including the date the Equipment is purchased
by Lessee. Upon receipt of the foregoing purchase price by Lessor from
Lessee in consideration thereof, Lessor shall convey, by quitclaim
instrument of transfer, without recourse of any nature or kind whatsoever,
Lessor's entire right, title and interest in and to such Equipment.
7. LOCATION; INSPECTION; LABELS. Equipment shall be delivered to the location
specified in the Schedule and shall not be removed therefrom without Lessor's
prior written consent. Lessor shall have the right to enter upon the premises
where the Equipment is located and inspect the Equipment at any reasonable time.
At Lessor's request, Lessee shall (a) affix permanent labels in a prominent
place on Equipment stating Lessor's interest in the Equipment, (b) keep such
labels in good repair and condition and (c) provide Lessor with an inventory
listing of all labeled Equipment within thirty days of such request.
8. NON-CANCELABLE LEASE. THE LEASE IS A NET LEASE. LESSEE'S OBLIGATION TO PAY
RENT AND PERFORM ITS OBLIGATIONS HEREUNDER ARE ABSOLUTE, IRREVOCABLE AND
UNCONDITIONAL AND SHALL NOT BE SUBJECT TO ANY RIGHT OF SET OFF, COUNTERCLAIM,
DEDUCTION, DEFENSE OR OTHER RIGHT LESSEE MAY HAVE AGAINST THE SUPPLIER, LESSOR
OR ANY OTHER PARTY; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL PRECLUDE LESSEE
FROM ASSERTING ANY SUCH CLAIMS IN A SEPARATE CAUSE OF ACTION. LESSEE UNDERSTANDS
AND AGREES THAT NEITHER THE SUPPLIER NOR ANY SALES REPRESENTATIVE OR OTHER AGENT
OF THE SUPPLIER IS AN AGENT OF LESSOR OR IS AUTHORIZED TO WAIVE OR ALTER ANY
TERM OR CONDITION OF THE LEASE, AND NO SUCH WAIVER OR ALTERATION SHALL VARY THE
TERMS OF THE LEASE. LESSOR IS NEITHER A SUPPLIER NOR A LICENSOR, AND LESSOR IS
NOT RESPONSIBLE FOR REPAIRS, SERVICE OR DEFECTS IN EQUIPMENT. LESSEE AGREES NOT
TO ASSERT AGAINST LESSOR ANY CLAIMS OR DEFENSES LESSEE MAY HAVE WITH RESPECT TO
EQUIPMENT, AND UNDERSTANDS THAT IT MAY ASSERT SUCH CLAIMS AGAINST SUPPLIER OR
LICENSOR.
9. USE; ALTERATIONS. (a) Lessee shall use Equipment lawfully and only in the
manner for which it was designed and intended and so as to subject it only to
ordinary wear and tear. Lessee shall comply with all applicable laws. Lessee
shall immediately notify Lessor, in writing, upon becoming aware of any existing
or threatened investigation, claim or action by any governmental authority that
could adversely affect Equipment, Lessor or the Lease. Lessee, at its own
expense, shall make such alterations, additions or modifications (each, a
"Required Alteration") to Equipment as may be required from time to time to meet
the requirements of applicable law or a governmental body. All such Required
Alterations shall immediately, and without further act, be deemed to constitute
"Equipment" and be fully subject to the Lease as if originally leased hereunder.
Except as otherwise permitted herein, Lessee shall not make any alterations to
Equipment without Lessor's prior written consent.
(b) Lessee, at its own expense, may from time to time add or install
upgrades or attachments (each an "Upgrade") to Equipment during the Term;
provided, that such Upgrades (i) are readily removable without causing material
damage to Equipment, (ii) do not materially adversely affect the Fair Market
Sale Value, the Fair Market Rental Value, residual value, productive capacity,
utility or remaining useful life of Equipment and (iii) do not cause Equipment
to become "limited use property" within the meaning of Revenue Procedure
2001-28, 2001-19 I.R.B. 1156 (or such other successor tax provision), as of the
date of installation of such Upgrade. Any such Upgrades shall remain the
property of Lessee. Upon the expiration or earlier cancellation of the Lease,
Lessee may, at its option, remove any such Upgrades and, upon such removal,
shall restore Equipment to the condition required hereunder.
(c) If any Equipment covered under any Lease becomes attached or affixed
to, or used in connection with, Equipment covered under another Lease hereunder
(a "Related Lease"), Lessee agrees that, if Lessee elects to exercise a purchase
or renewal option under any such Lease, or if Lessee elects to return Equipment
under any such Lease, then Lessor, in its sole discretion, may require that all
Equipment leased under all Related Leases be similarly disposed of.
10. REPAIRS AND MAINTENANCE. Lessee, at Lessee's cost and expense, shall (a)
keep Equipment in good repair, good operating condition, appearance and working
order in compliance with the manufacturer's recommendations and Lessee's
standard practices (but in no event less than industry practices), (b) take all
actions necessary to ensure that the Equipment will be eligible, at the
expiration of the Initial Term and any Renewal Term, for a standard, full
service maintenance contract with the manufacturer, (c) properly service all
components of Equipment following the manufacturer's written operating and
servicing procedures, (d) enter into and keep in full force and effect during
the Term a maintenance agreement covering the Equipment with the manufacturer,
or a manufacturer-approved maintenance organization, to maintain, service and
repair such Equipment, as otherwise required herein (but an alternate source of
maintenance may be used by Lessee with Lessor's prior written consent), (e) upon
Lessor's request furnish Lessor with an executed copy of any such maintenance
agreement, and (f) replace any part of the Equipment that becomes unfit or
unavailable for use from any cause (whether or not such replacement is covered
by a maintenance agreement) with a replacement part that, in Lessor's sole
opinion, is of the same manufacture, value, remaining useful life and utility as
the replaced part immediately preceding the replacement, assuming that such
replaced part was in the condition required by this Lease. Replacement parts
shall be free and clear of all liens, constitute Equipment and be fully subject
to this Lease as if originally leased hereunder.
11. RETURN OF EQUIPMENT. Except as otherwise provided in a Schedule, upon the
expiration or earlier termination or cancellation of each Lease, Lessee, at its
sole expense, shall de-install, assemble, pack properly and in accordance with
the manufacturer's instructions (under the supervision of persons acceptable to
Lessor), including labeling of all components and hardware, and return to Lessor
all, but not less than all, Equipment by delivering the Equipment to and
unloading it at such location or with such carrier as Lessor shall specify.
Lessee agrees that (a) Equipment, when returned, shall be in the condition
required by the Lease, and (b) upon Lessor's request, Lessee will obtain from
the manufacturer (or other maintenance service provider previously approved by
Lessor or manufacturer) a certificate stating that such Equipment qualifies for
full maintenance service at the standard rates and terms then in effect. If, in
the opinion of Lessor, any Equipment fails to meet the standards set forth
above, Lessee agrees to pay, on demand, all costs and expenses incurred in
connection with the repairing and restoring of such Equipment so as to meet such
standards. If Lessee fails to return any Equipment as required hereunder, then
all of Lessee's obligations under the Lease (including, without limitation,
Lessee's obligation to pay Rent for the Equipment at the rental then applicable
under the Lease) shall continue in full force and effect until such Equipment
shall have been returned in the condition required under the Lease.
12. SUBLEASE AND ASSIGNMENT. (a) LESSEE SHALL NOT, WITHOUT LESSOR'S PRIOR
WRITTEN CONSENT, (I) SELL, ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE
DISPOSE OF THE LEASE, EQUIPMENT OR ANY INTEREST THEREIN, (II) RENT, SUBLET OR
LEND EQUIPMENT TO ANYONE OTHER THAN LESSEE OR LESSEE'S AFFILIATES OR (III)
PERMIT EQUIPMENT TO BE USED BY ANYONE OTHER THAN THEIR RESPECTIVE QUALIFIED
EMPLOYEES.
(b) Lessor, at any time with or without notice to Lessee, may sell,
transfer, assign and/or grant a security interest in all or any part of Lessor's
interest in each Lease or any Equipment (each, a "Lessor Transfer"). Any
purchaser, transferee, assignee or secured party of Lessor (each a "Lessor
Assignee") shall have and may exercise all of Lessor's rights hereunder with
respect to the items to which any such Lessor Transfer relates, and Lessee shall
not assert against any Lessor Assignee any claim that Lessee may have against
Lessor provided, Lessee may assert any such claim in a separate action against
Lessor. Upon written notice of a Lessor Transfer, Lessee shall promptly
acknowledge in writing its obligations under the applicable Lease, shall comply
with the written directions or demands of any Lessor Assignee and shall make all
payments due under the applicable Schedule as directed in writing by the Lessor
Assignee. Following such Lessor Transfer, the term "Lessor" shall be deemed to
include or refer to each Lessor Assignee. Lessee will provide reasonable
assistance to Lessor to complete any transaction contemplated by this subsection
(b).
(c) Subject to the restriction on assignment contained in subsection
(a), the Lease Documents shall inure to the benefit of, and are binding upon,
the successors and assigns of the parties thereto including, without limitation,
each person who becomes bound thereto as a "new debtor" as set forth in the
Uniform Commercial Code ("UCC").
13. RISK OF LOSS; DAMAGE TO EQUIPMENT. (a) Lessee shall bear the entire risk
of loss (including without limitation, theft, destruction, disappearance of or
damage to Equipment from any cause whatsoever), whether or not insured against,
during the Term of each Lease and until Equipment is returned to Lessor in
accordance with Section 11 hereof. No such loss shall relieve Lessee of the
obligation to pay Rent or of any other obligation under the related Lease.
(b) If any Equipment is lost, stolen or damaged beyond repair, or
confiscated, seized or the use and/or title thereof requisitioned to someone
other than Lessee (any such event being a "Total Loss"), Lessee shall
immediately notify Lessor of such event. On the next Rent Payment Date following
the occurrence of the Total Loss, at Lessor's option, Lessee shall either (i)
replace Equipment with equipment that, in Lessor's sole opinion, is of the same
manufacture, value, remaining useful life and utility as the replaced Equipment
immediately preceding the replacement, assuming such replaced Equipment was in
the condition required by the Lease or (ii) pay to Lessor the sum of (A) all
Rent due and owing under the Lease with respect to such Equipment (at the time
of such payment)
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plus (B) the Stipulated Loss Value for the Equipment as of that Rent Payment
Date. If Lessor elects to allow replacement of Equipment as set forth in
subsection (i) above, Lessee shall cause the Supplier of such replacement
equipment to deliver to Lessor a xxxx of sale for such equipment free and clear
of all liens and encumbrances, and such replacement equipment shall become
Equipment subject to the applicable Lease. Upon Lessor's receipt of the xxxx of
sale or the amounts specified in subsection (ii) above, Lessee shall be entitled
to Lessor's interest in the replaced Equipment, in its then condition and
location, "as is" and "where is," without any warranties, express or implied.
14. INSURANCE. (a) Lessee shall, at all times during the Term of each Lease
and at Lessee's own cost and expense, maintain (i) insurance against all risks
of physical loss or damage to Equipment for the greater of the full replacement
value or the Stipulated Loss Value thereof, and (ii) commercial general
liability insurance (including blanket contractual liability coverage and
products liability coverage) for personal and bodily injury and property damage
per occurrence as stated in each Schedule.
(b) All insurance policies required hereunder shall include terms, and
be with insurance carriers, reasonably satisfactory to Lessor. Without limiting
the generality of the foregoing, each policy shall include the following terms:
(i) all physical damage insurance shall name Lessor and its assigns as loss
payee, (ii) all liability insurance shall name Lessor and its assigns as
additional insureds, (iii) the policy shall not be canceled or altered without
at least thirty days advance notice to Lessor and its assigns and (iv) coverage
shall not be invalidated against Lessor or its assigns because of any violation
of any condition or warranty contained in any policy or application therefor by
Lessee or by reason of any action or inaction of Lessee. On each anniversary of
the Rent Commencement Date during the term hereof, Lessee shall deliver to
Lessor certificates or other proof of insurance satisfactory to Lessor
evidencing the coverage required by this section.
15. TAXES. Lessee shall pay when due and shall indemnify and hold harmless
Lessor (on an after-tax basis) from and against any and all taxes, fees,
withholdings, levies, imposts, duties, assessments and charges of every kind and
nature whatsoever (including any related penalties and interest) imposed upon or
against Lessor, any Lessor Assignee, Lessee or any Equipment by any governmental
authority in connection with, arising out of or otherwise related to Equipment,
the Lease Documents or the Rent and receipts or earnings arising therefrom and
excepting only all Federal, state and local taxes on or measured by Lessor's net
income. Whenever each Lease expires, terminates or is canceled as to any
Equipment, Lessee, upon written request by Lessor, shall advance to Lessor the
amount estimated by Lessor to be the taxes on said Equipment that are not yet
payable, but for which Lessee is responsible. At Lessee's request, Lessor shall
provide Lessee with Lessor's method of computation of any such estimated taxes.
16. LESSOR'S RIGHT TO PERFORM FOR LESSEE. If Lessee fails to perform any of
its obligations contained herein, Lessor may (but shall not be obligated to)
itself perform such obligations, and the amount of the reasonable costs and
expenses of Lessor incurred in connection with such performance, together with
interest on such amount at the lesser of eighteen percent per annum or the
maximum permitted by law, shall be payable by Lessee to Lessor upon demand. No
such performance by Lessor shall be deemed a waiver of any rights or remedies of
Lessor or be deemed to cure the default of Lessee hereunder.
17. PERSONAL PROPERTY; LIENS. Lessee represents and warrants that the
Equipment is, and shall at all times remain, fully removable personal property
notwithstanding any affixation or attachment to real property or improvements.
Except as relates to the security interest in favor of Bank of America, N.A., as
administrative agent arising pursuant to that certain Security Agreement dated
April 24, 2003 between Bank of America, N.A., as administrative agent and
Xxxxxxxx, Inc. Lessee shall at all times keep Equipment free and clear from all
liens and encumbrances of any kind or nature other than those created by,
through or under Lessor. If, in violation of the foregoing covenant, any
prohibited lien or encumbrance shall attach to Equipment, Lessee shall (a) give
Lessor immediate written notice thereof and (b) promptly, at Lessee's sole cost
and expense, take such action as may be necessary to discharge such lien.
18. DEFAULT; REMEDIES. (a) As used herein, the term "Default" means any of the
following events: (i) Lessee fails to pay any Rent or other amount due under a
Lease within ten days after the same shall have become due; (ii) Lessee or any
Guarantor becomes insolvent or makes an assignment for the benefit of its
creditors; (iii) a receiver, trustee, conservator or liquidator of Lessee or any
Guarantor of all or a substantial part of Lessee's or such Guarantor's assets is
appointed with or without the application or consent of Lessee or such
Guarantor, respectively; (iv) a petition is filed by or against Lessee or any
Guarantor under any bankruptcy, insolvency or similar law; (v) Lessee or any
Guarantor violates or fails to perform any provision of either this Lease or any
other loan, lease or credit agreement or any acquisition or purchase agreement
with Lessor or any other party; (vi) any warranty or representation made by
Lessee herein proves to have been false or misleading when made; (vii) there is
a material adverse change in Lessee's or any Guarantor's financial condition
since the related Rent Commencement Date; (viii) Lessee or any Guarantor merges
or consolidates with any other corporation or entity, or sells, leases or
disposes of all or substantially all of its assets without the prior written
consent of Lessor; (ix) Lessee or any Guarantor, if an individual, dies or, if
not an individual, is dissolved; or (x) any filing by Lessee of a termination
statement for any financing statement filed by Lessor while any obligations are
owed by Lessee under a Lease. A Default with respect to any Lease shall, at
Lessor's option, constitute a Default for all Leases and any other agreements
between Lessor and Lessee.
(b) Upon the occurrence of a Default, Lessor may do one or more of the
following as Lessor in its sole discretion shall elect: (i) proceed by
appropriate court action to enforce performance by Lessee of the related Lease
or to recover damages, including incidental and consequential damages, for the
breach thereof; (ii) cause Lessee, at its expense, promptly to assemble
Equipment and return the same to Lessor at such place as Lessor may designate in
writing; (iii) by notice in writing to Lessee, cancel or terminate the related
Lease, without prejudice to any other remedies hereunder; (iv) enter upon the
premises of Lessee or other premises where any Equipment may be located and,
without notice to Lessee and with or without legal process, take possession of
and remove all or any such Equipment without liability to Lessee by reason of
such entry or taking possession, and without such action constituting a
cancellation or termination of the Lease unless Lessor notifies Lessee in
writing to such effect; (v) by written notice to Lessee specifying a payment
date (the "Remedy Date"), demand that Lessee pay to Lessor, and Lessee shall pay
to Lessor, on the Remedy Date, as liquidated damages for loss of a bargain and
not as a penalty, a sum equal to (A) any unpaid Rent due prior to the Remedy
Date (together with interest on such amount at the lesser of eighteen percent
per annum or the maximum permitted by law from the Remedy Date to the date of
actual payment), plus (B) the Stipulated Loss Value; (vi) sell Equipment at
public or private sale or hold, keep idle or lease to others any Equipment; and
(vii) exercise any other right or remedy available to Lessor under applicable
law. In addition, Lessee shall be liable for all reasonable costs, expenses, and
legal fees incurred in enforcing Lessor's rights under the Lease, before or in
connection with litigation or arbitration and for any deficiency in the
disposition of the Equipment. Lessor's recovery hereunder shall in no event
exceed the maximum recovery permitted by law.
(c) If a Default occurs, Lessee hereby agrees that ten days' prior
notice to Lessee of any public sale or of the time after which a private sale
may be negotiated shall be conclusively deemed reasonable notice. None of
Lessor's rights or remedies hereunder are intended to be exclusive, but each
shall be cumulative and in addition to any other right or remedy referred to
hereunder or otherwise available to Lessor at law or in equity, and no express
or implied waiver by Lessor of any Default shall constitute a waiver of any
other Default or a waiver of any of Lessor's rights.
(d) With respect to any exercise by Lessor of its right to recover
and/or dispose of any Equipment or any other collateral securing Lessee's
obligations under any Lease, Lessee acknowledges and agrees that Lessor may
dispose of Equipment on an "AS-IS, WHERE-IS" basis, in compliance with
applicable law and with such preparation (if any) as Lessor determines to be
commercially reasonable. Lessee shall remain liable for any deficiency in the
disposition of the Equipment, and any purchase by Lessor of the Equipment may be
through a credit to some or all of Lessee's obligations under any Lease.
19. NOTICES. All notices and other communications hereunder shall be in
writing and shall be transmitted by hand, overnight courier or certified mail
(return receipt requested), US postage prepaid. Such notices and other
communications shall be addressed to the respective party at the address set
forth above or at such other address as any party may, from time to time,
designate by notice duly given in accordance with this section. Such notices and
other communications shall be effective upon the earlier of receipt or three
days after mailing if mailed in accordance with the terms of this section.
20. INDEMNITY. Lessee shall indemnify and hold harmless Lessor and each Lessor
Assignee, on an after tax basis, from and against any and all liabilities,
causes of action, claims, suits, penalties, damages, losses, costs or expenses
(including attorneys' fees), obligations, liabilities, demands and judgments
(collectively, a "Liability") arising out of or in any way related to: (a)
Lessee's failure to perform any covenant under the Lease Documents, (b) the
untruth of any representation or warranty made by Lessee under the Lease
Documents, (c) the order, manufacture, purchase, ownership, selection,
acceptance, rejection, possession, rental, sublease, operation, use,
maintenance, control, loss, damage, destruction, removal, storage, surrender,
sale, condition, delivery, return or other disposition of or any other matter
relating to any Equipment or (d) injury to persons, property or the environment
including any Liability based on strict liability in tort, negligence, breach of
warranties or Lessee's failure to comply fully with applicable law or regulatory
requirements; provided, that the foregoing indemnity shall not extend to any
Liability to the extent resulting solely from the gross negligence or willful
misconduct of Lessor.
21. FEES AND EXPENSES. Lessee shall pay all reasonable costs and expenses of
Lessor, including, without limitation, attorneys' and other professional fees,
returned check or non-sufficient funds charges, the fees of any collection
agencies and appraisers and all other costs and expenses related to any sale or
Page 4 of 9
re-lease of Equipment (including storage costs) incurred by Lessor in enforcing
any of the terms, conditions or provisions hereof or in protecting Lessor's
rights hereunder.
22. FINANCIAL AND OTHER DATA. During the Term hereof, Lessee shall furnish
Lessor (a) as soon as available, and in any event within one hundred twenty days
after the last day of each fiscal year, financial statements of Lessee and each
Guarantor and (b) from time to time as Lessor may reasonably request, other
financial reports, information or data (including federal and state income tax
returns) and quarterly or interim financial statements of Lessee and each
Guarantor. All such information shall be audited (or if audited information is
not available, compiled or reviewed) by an independent certified public
accountant.
23. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
that (a) the address stated above is the chief place of business and chief
executive office of Lessee, Lessee's full and accurate legal name is as stated
above and the information describing Lessee set forth under Lessee's signature
below is accurate in all respects; (b) Lessee is either (i) an individual and
the sole proprietor of its business which is located at the address set forth
above and doing business only under the names disclosed herein, or (ii) a
limited liability company or corporation duly organized and validly existing in
good standing under the laws of the state of its organization or incorporation,
or (iii) a general or limited partnership organized under the laws of the state
of its principal place of business set forth in the Lease or the Lease Documents
and the individual general partner executing this Master Lease has the full
authority to represent, sign for and bind Lessee in all respects; (c) the
execution, delivery and performance of this Master Lease and all related
instruments and documents (i) have been duly authorized by all necessary action
on the part of Lessee, (ii) do not require the approval of any stockholder,
partner, manager, trustee, or holder of any obligations of Lessee except such as
have been duly obtained, and (iii) do not and will not contravene any law,
governmental rule, regulation or order now binding on Lessee, or contravene the
operating agreement, charter or by-laws of Lessee, or constitute a default
under, or result in the creation of any lien or encumbrance upon the property of
Lessee under, any indenture, mortgage, contract or other agreement to which
Lessee is a party or by which it or its property is bound; (d) the Lease
Documents when entered into will constitute legal, valid and binding obligations
of Lessee enforceable against Lessee in accordance with their terms; (e) there
are no actions or proceedings to which Lessee is a party, and there are no other
threatened actions or proceedings of which Lessee has knowledge, before any
governmental authority which, either individually or in the aggregate, would
adversely affect the financial condition of Lessee or the ability of Lessee to
perform its obligations hereunder; (f) Lessee is not in default under any
obligation for the payment of borrowed money, for the deferred purchase price of
property or for the payment of any rent under any lease agreement which, either
individually or in the aggregate, would adversely affect the financial condition
of Lessee or the ability of Lessee to perform its obligations hereunder and (g)
the financial statements of Lessee (copies of which have been furnished to
Lessor) have been prepared in accordance with generally accepted accounting
principles consistently applied and fairly present Lessee's financial condition
and the results of its operations as of the date of and for the period covered
by such statements, and since the date of such statements there has been no
material adverse change in such conditions or operations.
24. LESSEE'S WAIVERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES
(A) ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE
UCC AND (B) ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE TO
RECOVER INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM LESSOR FOR ANY BREACH OF
WARRANTY OR FOR ANY OTHER REASON OR TO SET OFF OR DEDUCT ALL OR ANY PART OF ANY
CLAIMED DAMAGES RESULTING FROM LESSOR'S DEFAULT, IF ANY, UNDER THE RELATED
LEASE.
25. UCC FILINGS. LESSEE HEREBY AUTHORIZES LESSOR TO AUTHENTICATE AND/OR FILE
ALL UCC FINANCING STATEMENTS AND AMENDMENTS THAT IN LESSOR'S SOLE DISCRETION ARE
DEEMED NECESSARY OR PROPER TO SECURE OR PROTECT LESSOR'S INTEREST IN EQUIPMENT
IN ALL APPLICABLE JURISDICTIONS. Lessee hereby ratifies, to the extent permitted
by law, all that Lessor shall lawfully and in good faith do or cause to be done
by reason of and in compliance with this section. Lessee shall provide written
notice to Lessor at least thirty days prior to any contemplated change in
Lessee's name, jurisdiction of organization or chief executive office address.
26. MISCELLANEOUS; GOVERNING LAW. Time is of the essence with respect to each
Lease. Any failure of Lessor to require strict performance by Lessee or any
waiver by Lessor of any provision of a Lease shall not be construed as a consent
or waiver of any provision of such Lease. The Lease will be binding upon Lessor
only if executed by a duly authorized officer or representative of Lessor at
Lessor's address set forth above. An authorized signer of Lessee shall execute
the Lease Documents on Lessee's behalf. Any provision of a Lease that is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
thereof. Captions are intended for convenience or reference only, and shall not
be construed to define, limit or describe the scope or intent of any provisions
hereof. Lessee will promptly execute or otherwise authenticate and deliver to
Lessor such further documents, instruments, assurances and other records and
take such further action as Lessor may reasonably request in order to carry out
the intent and purpose of this agreement and each Lease and to establish and
protect the rights and remedies created or intended to be created in favor of
Lessor hereunder and thereunder. EACH LEASE IS BEING DELIVERED IN, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAWS. LESSOR AND LESSEE HEREBY EACH
WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO EQUIPMENT OR EACH LEASE. THIS WAIVER
IS MADE KNOWINGLY, WILLINGLY AND VOLUNTARILY BY LESSOR AND LESSEE WHO EACH
ACKNOWLEDGE THAT NO REPRESENTATIONS HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO EACH LEASE AND THE LEASE DOCUMENTS.
27. QUIET ENJOYMENT. So long as no Default has occurred and is continuing,
Lessee shall peaceably hold and quietly enjoy Equipment without interruption by
Lessor or any person or entity claiming through Lessor.
28. ENTIRE AGREEMENT. Each Lease, together with all other Lease Documents,
constitutes the entire understanding or agreement between Lessor and Lessee with
respect to the leasing of Equipment covered thereby, and there is no
understanding or agreement, oral or written, which is not set forth herein or
therein. No Lease may be amended except by a writing signed by Lessor and
Lessee. Delivery of an executed Lease Document by facsimile or any other
reliable means shall be deemed as effective for all purposes as delivery of a
manually executed copy. Lessee shall provide to Lessor the manually executed
original of any Lease Document delivered by facsimile within five days.
29. MORE THAN ONE LESSEE. If more than one person or entity executes the Lease
Documents as "Lessee," the obligations of "Lessee" shall be deemed joint and
several and all references to "Lessee" shall apply both individually and
jointly.
30. DISCLAIMER OF WARRANTIES. LESSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, TITLE TO, DESIGN,
OPERATION, CONDITION, OR QUALITY OF THE MATERIAL OR WORKMANSHIP IN, EQUIPMENT,
ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE ABSENCE OF
LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), LACK OF INFRINGEMENT ON
ANY PATENT, TRADEMARK OR COPYRIGHT, AND LESSOR HEREBY DISCLAIMS ALL SUCH
WARRANTIES; IT BEING UNDERSTOOD THAT THE EQUIPMENT IS LEASED TO LESSEE "AS IS,
WHERE IS." LESSEE HAS MADE THE SELECTION OF THE EQUIPMENT FROM THE SUPPLIER
BASED ON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON ANY STATEMENTS
OR REPRESENTATIONS MADE BY LESSOR. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. LESSOR HEREBY ASSIGNS TO LESSEE FOR
THE TERM OF EACH LEASE WITHOUT RECOURSE AND FOR SO LONG AS LESSEE IS NOT IN
DEFAULT UNDER ANY LEASE, ANY WARRANTY PROVIDED BY THE SUPPLIER.
31. EXECUTION IN COUNTERPARTS. The Master Lease and all other Lease Documents
may be executed in several counterparts and by different parties hereto or
thereto on separate counterparts, each of which when so executed or otherwise
authenticated and delivered shall be an original, but all such counterparts
shall together consist of one and the same instrument; except, to the extent
that any Lease Documents constitute chattel paper under the UCC, no security
interest therein may be created other than through the transfer or possession of
the original counterpart, which shall be identified by Lessor.
32. SOFTWARE. To the extent that any Schedule relates to Software:
(a) Lessee acknowledges that (i) all Software is furnished to Lessee
under one or more separate License Agreements governing Lessee's rights thereto,
(ii) the Lease does not convey any explicit or implicit license for the use of
Software or other intellectual property relating to Equipment, and (iii) Lessor
does not hold title to any Software and Lessee is or shall be the licensee of
such Software directly from the Licensor.
Page 5 of 9
(b) Lessee shall not amend, modify or otherwise alter, any term or
condition of any License Agreement, including, without limitation, any such term
or condition related to (i) payment of any amounts due thereunder, (ii) any
liabilities or obligations of Lessee as licensee, (iii) the payment of late fees
on past due amounts, or (iv) the payment of applicable taxes; provided, however,
that this provision shall not apply to those terms or conditions relating solely
to amounts owing to Licensor which have not been financed under the Lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Master Lease as
of the day and year first above written.
LESSOR: LESSEE:
KEY EQUIPMENT FINANCE, A DIVISION OF XXXXXXXX, INC.
KEY CORPORATE CAPITAL INC.
X /s/ Xxxxx Xxxx
By: /s/ Xxxxxxx X. Xxxx --------------
-------------------- Name: Xxxxx Xxxx
NAME: Xxxxxxx X. Xxxx Title: VP of Finance
TITLE: Regional Business Unit Manager
Organization Type: Corporation
Jurisdiction of: Delaware
Page 6 of 9
AMENDMENT 01
TO MASTER EQUIPMENT LEASE AGREEMENT
--------------------------------------------------------------------------------
THIS AMENDMENT dated as of June 23, 2003 amends that certain Master
Equipment Lease Agreement dated as of June 23, 2003 between KEY EQUIPMENT
FINANCE, A DIVISION OF KEY CORPORATE CAPITAL INC., as Lessor, and XXXXXXXX,
INC., as Lessee (the "Master Lease"). Unless otherwise specified herein, all
capitalized terms shall have the meanings ascribed to them in the Master Lease.
Lessor and Lessee hereby agree that the Master Lease will be amended, with
respect to each Equipment Schedule executed in connection therewith, to add the
following section:
1. For so long as the Security Agreement dated as of April 24, 2003
between BANK OF AMERICA, N.A. AS ADMINISTRATIVE AGENT ("Bank") and Lessee (as
the same has been or may be amended, the "Loan Agreement", shall be in effect,
Lessee agrees that, within thirty (30) days of its submission to the Bank, it
shall provide Lessor with a copy of its quarterly compliance certificate issued
in connection with the Loan Agreement. To the extent such Loan Agreement is
terminated, cancelled or expires, but is replaced by a different loan agreement
or credit facility, Lessee shall provide copies of such compliance certificates
required to be delivered under such successor loan agreement or credit facility,
if any.
2. In the event that an Event of Default has occurred under the Loan
Agreement, Lessee hereby covenants and agrees that it shall provide notice to
Lessor of such Default within twenty (20) days of either its occurrence or after
the applicable cure periods, if any.
EXCEPT AS MODIFIED HEREBY, ALL OF THE TERMS, COVENANTS AND CONDITIONS OF
THE MASTER LEASE SHALL REMAIN IN FULL FORCE AND EFFECT AND ARE IN ALL RESPECTS
HEREBY RATIFIED AND AFFIRMED.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment as of
the date first above written.
LESSOR: LESSEE:
KEY EQUIPMENT FINANCE, XXXXXXXX, INC.
A DIVISION OF KEY CORPORATE CAPITAL INC.
X /s/ Xxxxx Xxxx
By: /s/ Xxxxxxx X. Xxxx -------------
-------------------- Name: Xxxxx Xxxx
Name: Xxxxxxx X. Xxxx Title: VP of Finance
Title: Regional Business Unit Manager
Page 7 of 9
C#: 136825
L#: 136826
(KEY GRAPHIC) ASSIGNMENT OF PURCHASE AGREEMENT
--------------------------------------------------------------------------------
XXXXXXXX, INC. ("Assignor"), for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, hereby grants,
conveys, transfers, pledges and assigns unto KEY EQUIPMENT FINANCE, A DIVISION
OF KEY CORPORATE CAPITAL INC., ("Assignee"), all of Assignor's right, title and
interest in and to the Purchase Agreement (the "Purchase Agreement") dated as of
April 10, 2003 between Assignor and GARTNER STORAGE & SORTER SYSTEMS (the
"Supplier"), pursuant to which Assignor has agreed to purchase goods and other
property (the "Equipment") from the Supplier (including, but not limited to, the
right to become direct purchaser of the Equipment thereunder), together with all
Assignor's right, title and interest in and to the Equipment, for the purpose of
securing the payment and performance of the Secured Obligations (as defined in
the Progress Payment Loan and Security Agreement dated as of June 23, 2003
between Assignee, as lessor, and Assignor, as lessee).
Assignor covenants and agrees that it shall not modify, amend, terminate
or release the Purchase Agreement without the prior written consent of Assignee.
Assignor and Assignee mutually agree that the acceptance by Assignee of
this Assignment of Purchase Agreement, with all of the rights, powers,
privileges and authority so created, shall not be deemed or construed to
obligate Assignee to assume any obligation or responsibility of Assignor under
the Purchase Agreement, nor shall Assignee be liable for the nonperformance of
any such obligation or responsibility.
THIS AGREEMENT IS BEING DELIVERED IN THE STATE OF NEW YORK AND SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
IN WITNESS WHEREOF, Assignor has caused this Assignment of Purchase
Agreement to be executed as of June 23, 2003.
ASSIGNOR:
XXXXXXXX, INC.
X /s/ Xxxxx Xxxx
-------------
Name: Xxxxx Xxxx
Title: VP of Finance
Page 8 of 9
C#: 136825
L#: 136826
(KEY GRAPHIC) CERTIFICATE OF AUTHORITY
--------------------------------------------------------------------------------
I, Xxxxxx Xxxxx do hereby certify as follows:
--------------------------------
1. I am the duly elected, qualified and serving Corporate Secretary of
--------------------------
XXXXXXXX, INC., a Delaware corporation (the "Company") and I [ ] am
[ X ] am not the Company's sole elected corporate officer and the sole
owner of the Company.
2. The execution, delivery and performance of all documents relating to the
financing of certain items of personal property described in a Master
Equipment Lease Agreement, any Security Agreement or Guaranty and various
equipment schedules, promissory notes and other documents (including
master security agreements, progress payment documents, assignment and
assumption agreements and bills of sale) from time to time entered into
with respect thereto between Key Equipment Finance, a Division of Key
Corporate Capital Inc. ("KEF") and Company (collectively, the "Transaction
Documents") have been duly authorized by the Company and have been or will
be duly and validly executed and delivered on behalf of Company if
executed by the persons whose names, titles and signatures appear below
(the "Authorized Signatories"); the Authorized Signatories have been duly
elected, qualified and are acting officers and/or authorized signatories
of the Company holding the offices indicated and that the signatures
appearing opposite their names are the genuine signatures of such
Authorized Signatories.
3. The Company's execution, delivery and performance of the Transaction
Documents (i) have been duly authorized by all necessary action on the
part of the Company, (ii) do not conflict with or result in the breach of
any provisions of, as applicable, the Certificate of Incorporation,
Articles of Incorporation or By-laws; Operating Agreement; Partnership
Agreement or Trust Agreement of the Company, or of any agreement or other
instrument to which the Company is a party or by which it is bound, or, to
its knowledge, any applicable law, judgment, order, writ, injunction
decree, rule or regulation of any court, administrative agency or other
governmental authority or constitute a default under any thereof and (iii)
do not require the consent, approval or other authorization of or by any
court, administrative agency or other authority or person.
4. KEF and its successors and assigns are authorized to rely on this
Certificate of Authority until 45 days after the receipt by KEF of written
notice from an Authorized Officer of Company expressly advising KEF that
this Certificate of Authority may no longer be relied upon. Any such
notice shall be mailed or hand delivered to Key Equipment Finance, 00
Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX 00000.
NAME OF SIGNATORY SIGNATURE TITLE OF SIGNATORY
Xxxxx Xxxx /s/ Xxxxx Xxxx VP of Finance
------------------------ ---------------- ------------------------
------------------------ ---------------- ------------------------
------------------------ ---------------- ------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
this corporation this 23 day of June , 2003.
----- --------------
By: /s/ Xxxxxx Xxxxx
-----------------------
[SEAL] Name: Xxxxxx Xxxxx
Title: Corporate Secretary
Page 9 of 9
