MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of 8-31-95 ("Agreement"), between
General Electric Capital Corporation, with an office at 000 Xxxxxxxxxxxxx Xxxxxx
Xxxxx 000, Xxxx Xxxxxx, XX 00000 (hereinafter called, together with its
successors and assigns, if any, "Lessor"), and OMI Acquisition Corp., a
corporation organized and existing under the laws of the State of Delaware with
its mailing address and chief place of business at 000 Xxxxx Xxxxx, Xxxxxxxxx,
XX 00000 (hereinafter called "Lessee").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor agrees to
lease to Lessee, and Lessee agrees to lease from Lessor, the equipment
("Equipment") described in Annex A to any schedule hereto ("Schedule"). Terms
defined in a Schedule and not otherwise defined herein shall have the meanings
ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase from the manufacturer or supplier
thereof ("Supplier") and to lease the same to Lessee under any Schedule shall
be subject to receipt by Lessor, prior to the Lease Commencement Date (with
respect to such Equipment), of each of the following documents in form and
substance satisfactory to Lessor: (i) a Schedule relating to the Equipment then
to be leased hereunder, (ii) a Purchase Order Assignment and Consent in the form
of Annex B to the applicable Schedule, unless Lessor shall have delivered its
purchase order for such Equipment, (iii) evidence of insurance which complies
with the requirements of Section X, and (iv) such other documents as Lessor may
reasonably request. As a further condition to such obligations of Lessor, Lessee
shall, upon delivery of such Equipment (but not later than the Last Delivery
Date specified in the applicable Schedule) execute and deliver to Lessor a
Certificate of Acceptance (in the form of Annex C to the applicable Schedule)
covering such Equipment, and deliver to Lessor a xxxx of sale therefor (in form
and substance satisfactory to Lessor). Lessor hereby appoints Lessee its agent
for inspection and acceptance of the Equipment from the Supplier. Upon execution
by Lessee of any Certificate of Acceptance, the Equipment described thereon
shall be deemed to have been delivered to, and irrevocably accepted by, Lessee
for lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the Equipment
shall commence on the date of execution by Lessee of the Certificate of
Acceptance for such Equipment ("Lease Commencement Date"). The term of this
Agreement shall be the period specified in the applicable Schedule. If any term
is extended, the word "term" shall be deemed to refer to all extended terms, and
all provisions of this Agreement shall apply during any extended terms, except
as may be otherwise specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated above, except as
otherwise directed by Lessor. Payments of rent shall be in the amount set forth
in, and due in accordance with, the provisions of the applicable Schedule. If
one or more Advance Rentals are payable, such Advance Rental shall be (i) set
forth on the applicable Schedule, (ii) due upon acceptance by Lessor of such
Schedule, and (iii) when received by Lessor, applied to the first rent payment
and the balance, if any, to the final rental payment(s) under such Schedule. In
no event shall any Advance Rental or any other rent payments be refunded to
Lessee. If rent is not paid within ten days of its due date, Lessee agrees to
pay a late charge of five cents ($.05) per dollar on, and in addition to, the
amount of such rent but not exceeding the lawful maximum, if any.
III. RENT ADJUSTMENT:
(a) The periodic rent payments in each Schedule have been calculated on the
assumption (which, as between Lessor and Lessee, is mutual) that the maximum
effective corporate income tax rate (exclusive of any minimum tax rate) for
calendar-year taxpayers ("Effective Rate") will be thirty-five percent (35%)
each year during the lease term.
(b) If, solely as a result of Congressional enactment of any law
(including, without limitation, any modification of, or amendment or addition
to, the Internal Revenue Code of 1986, as amended, (the "Code")), the Effective
Rate is higher than thirty-five percent (35%) for any year during the lease
term, then Lessor shall have the right to increase such rent payments by
requiring payment of a single additional sum equal to the product of (i) the
Effective Rate (expressed as a decimal) for such year less .35 (or, in the event
that any adjustment has been made hereunder for any previous year, the Effective
Rate (expressed as a decimal) used in calculating the next previous adjustment)
times (ii) the adjusted Termination Value divided by the difference between the
new Effective Tax Rate (expressed as a decimal) and one (1). The adjusted
Termination Value shall be the Termination Value (calculated as of the first
rental due in the year for which such adjustment is being made) less the Tax
Benefits that would be allowable under Section 168 of the Code (as of the first
day of the year for which such adjustment is being made and all subsequent years
of the lease term). Lessee shall pay to Lessor the full amount of the additional
rent payment on the later of (i) receipt of notice or (ii) the first day of the
year for which such adjustment is being made.
(c) Lessee's obligations under this Section III shall survive any
expiration or termination of this Agreement.
IV. TAXES: Except as provided in Section III and XV(c), Lessee shall have no
liability for taxes imposed by the United States of America or any State or
political subdivision thereof which are on or measured by the net income of
Lessor. Lessee shall report (to the extent that it is legally permissible) and
pay promptly all other taxes, fees and assessments due, imposed, assessed or
levied against any Equipment (or the purchase, ownership, delivery, leasing,
possession, use or operation thereof), this Agreement (or any rentals or
receipts hereunder), any Schedule, Lessor or Lessee by any foreign, federal,
state or local government or taxing authority during or related to the term of
this Agreement, including, without limitation, all license and registration
fees, and all sales, use, personal property, excise, gross receipts, franchise,
stamp or other taxes, imposts, duties and charges, together with any penalties,
fines or interest thereon (all hereinafter called "Taxes"). Lessee shall (i)
reimburse Lessor upon receipt of written request for reimbursement for any Taxes
charged to or assessed against Lessor, (ii) on request of Lessor, submit to
Lessor written evidence of Lessee's payment of Taxes, (iii) on all reports or
returns show the ownership of the Equipment by Lessor, and (iv) send a copy
thereof to Lessor.
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days after any
tax or other lien shall attach to any Equipment, of the full particulars thereof
and of the location of such Equipment on the date of such notification.
(b) Lessee will within ninety (90) days of the close of each fiscal year of
Lessee, deliver to Lessor, Lessee's balance sheet and profit and loss statement,
certified by a recognized firm of certified public accountants. Upon request
Lessee will deliver to Lessor quarterly, within ninety (90) days of the close of
each fiscal quarter of Lessee, in reasonable detail, copies of Lessee's
quarterly financial report certified by the chief financial officer of Lessee.
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(a) Lessor may in writing this Agreement in default if: Lessee breaches its
obligation to pay rent or any other sum when due and fails to cure the breach
within ten (10) days; Lessee breaches any of its insurance obligations under
Section X; Lessee breaches any of its other obligations and fails to cure that
breach within thirty (30) days after written notice thereof; any representation
or warranty made by lessee in connection with this Agreement shall be false or
misleading in any material respect; Lessee becomes insolvent or ceases to do
business as a going concern; any Equipment is illegally used; or a petition is
filed by or against Lessee or any guarantor of Lessee's obligations to Lessor
under any bankruptcy or insolvency laws. Such declaration shall apply to all
Schedules except as specifically excepted by Lessor.
(b) After default, at the request of Lessor, Lessee shall comply with the
provisions of Section XI(a). Lessee hereby authorizes Lessor to enter, with or
without legal process, any premises where any Equipment is believed to be and
take possession thereof. Lessee shall, without further demand, forthwith pay to
Lessor (i) as liquidated damages for loss of a bargain and not as a penalty, the
Stipulated Loss Value of the Equipment (calculated as of the rental next
preceding the declaration of default), and (ii) all rentals and other sums then
due hereunder. Lessor may, but shall not be required to, sell Equipment at
private or public sale, in bulk or in parcels, with or without notice and
without having the Equipment present at the place of sale; or Lessor may, but
shall not be required to, lease, otherwise dispose of or keep idle all or part
of the Equipment; and Lessor may use Lessee's premises for any or all of the
foregoing without liability for rent, costs, damages or otherwise. The proceeds
of sale, lease or other disposition, if any, shall be applied in the following
order of priorities: (1) to pay all of Lessor's costs, charges and expenses
incurred in taking, removing, holding, repairing and selling, leasing or
otherwise disposing of Equipment; then, (2) to the extent not previously paid by
Lessee, to pay Lessor all sums due from Lessee hereunder; then (3) to reimburse
to Lessee any sums previously paid by Lessee as liquidated damages; and (4) any
surplus shall be retained by Lessor. Lessee shall pay any deficiency in (1) and
(2) forthwith.
(c) The foregoing remedies are cumulative, and any or all thereof may be
exercises in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition (and
the time and place thereof), and the manner and place of any advertising. Lessee
shall pay Lessor's actual attorney's fees incurred in connection with the
enforcement, assertion, defense or preservation of Lessor's rights and remedies
hereunder, or if prohibited by law, such lesser sum as may be permitted. Waiver
of any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement between
Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
XIII. ASSIGNMENT: Lessor may, without the consent of Lessee, assign this
Agreement or any Schedule. Lessee agrees that if Lessee receives written notice
of an assignment from Lessor, Lessee will pay all rent and all other amounts
payable under any assigned Equipment Schedule to such assignee or as instructed
by Lessor. Lessee further agrees to confirm in writing receipt of the notice of
assignment as may be reasonably requested by assignee. Lessee hereby waives and
agrees not to assert against any such assignee any defense, set-off, recoupment
claim or counterclaim which Lessee has or may at any time have against Lessor
for any reason whatsoever.
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease. Lessee's
obligation to pay rent and other amounts due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reductions of,
or set-offs against, said rent or other amounts, including, without limitation,
those arising or allegedly arising out of claims (present or future, alleged or
actual, and including claims arising out of strict tort or negligence of Lessor)
of Lessee against Lessor under this Agreement or otherwise. Nor shall this
Agreement terminate or the obligations of Lessee be affected by reason of any
defect in or damage to, or loss of possession, use or destruction of, any
Equipment from whatsoever cause. It is the intention of the parties that rents
and other amounts due hereunder shall continue to be payable in all events in
the manner and at the times set forth herein unless the obligation to do so
shall have been terminated pursuant to the express terms hereof.
XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless Lessor, its
agents, employees, successors and assigns from and against any and all losses,
damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature, in contract or tort, whether caused by
the active or passive negligence of Lessor or otherwise, and including, but not
limited to, Lessor's strict liability in tort, arising out of (i) the selection,
manufacture, purchase, acceptance or rejection of Equipment, the ownership of
Equipment during the term of this Agreement, and the delivery, lease,
possession, maintenance, uses, condition, return or operation of Equipment
(including, without limitation, latent and other defects, whether or not
discoverable by Lessor or Lessee and any claim for patent, trademark or
copyright infringement or environmental damage) or (ii) the condition of
Equipment sold or disposed of after use by Lessee, any sublessee or employees of
Lessee. Lessee shall, upon request, defend any actions based on, or arising out
of, any of the foregoing.
(b) Lessee hereby represents, warrants and covenants that (i) on the Lease
Commencement Date for any unit of Equipment, such unit will qualify for all of
the items of deduction and credit specified in Section C of the applicable
Schedule ("Tax Benefits") in the hands of Lessor (all references to Lessor in
this Section XV include Lessor and the consolidated taxpayer group of which
Lessor is a member), and (ii) at no time during the term of this Agreement will
Lessee take or omit to take, nor will it permit any subleasee or assignee to
take or omit to take, any action (whether or not such act or omission is
otherwise permitted by Lessor or the terms of this Agreement), which will result
in the disqualification of any Equipment for, or recapture of, all or any
portion of such Tax Benefits.
(c) If as a result of a breach of any representation, warrant or covenant
of the Lessee contained in this Agreement or any Schedule (x) tax counsel of
Lessor shall determine that Lessor is not entitled to claim on its Federal
income tax return all or any portion of the Tax Benefits with respect to any
Equipment, or (y) any such Tax Benefit claimed on the Federal income tax return
of Lessor is disallowed or adjusted by the Internal Revenue Service, or (z) any
such Tax Benefit is recomputed or recaptured (any such determination,
disallowance, adjustment, recomputation or recapture being hereinafter called a
"Loss"), then Lessee shall pay to Lessor, as an indemnity and as additional
rent, such amount as shall, in the reasonable opinion of Lessor, cause Lessor's
after-tax economic yields and cash flows, computed on the same assumptions,
including tax rates (unless any adjustment has been made under Section III
hereof, in which case the Effective Rate used in the next preceding adjustment
shall be substituted), as were utilized by Lessor in originally evaluating the
transaction (such yields and flows being hereinafter called the "Net Economic
Return") to equal the Net Economic Return that would have been realized by
Lessor if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount.
(d) All of Lessor's rights, privileges and indemnities contained in this
Section XV shall survive the expiration or other termination of this Agreement
and the rights, privileges and indemnities contained herein are expressly made
for the benefit of, and shall be enforceable by Lessor, its successors and
assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY
OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All
such risks, as between Lessor and Lessee, are to be borne by Lessee.
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LESSEE AND LESSOR RELATING TO THE SUBJECT-MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS LEASE,
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS LEASE
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) Unless and until Lessee exercises its rights under Section XIX above,
nothing herein contained shall give or convey to Lessee any right, title or
interest in and to any Equipment except as a lessee. Any cancellation or
termination by Lessor, pursuant to the provision of this Agreement, any
Schedule, supplement or amendment hereto, or the lease of any Equipment
hereunder, shall not release Lessee from any then outstanding obligations to
Lessor hereunder. All Equipment shall at all times remain personal property of
Lessor regardless of the degree of its annexation to any real property and shall
not by reason of any installation in, or affixation to, real or personal
property become a part thereof.
(c) Time is of the essence of this Agreement. Lessor's failure at any time
to require strict performance by Lessee of any of the provisions hereof shall
not waive or diminish Lessor's right thereafter to demand strict compliance
therewith. Lessee agrees, upon Lessor's request, to execute any instrument
necessary or expedient for filing, recording or perfecting the interest of
Lessor. All notices required to be given hereunder shall be deemed adequately
given if sent by registered or certified mail to the addressee at its address
stated herein, or at such other place as such addressee may have designated in
writing. This Agreement and any Schedule and Annexes thereto constitute the
entire agreement of the parties with respect to the subject matter hereof. NO
VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS
PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
(d) In case of a failure of Lessee to comply with any provision of this
Agreement, Lessor shall have the right, but shall not be obligated, to effect
such compliance, in whole or in part; and all moneys spent and expenses and
obligations incurred or assumed by Lessor in effecting such compliance shall
constitute additional rent due to Lessor within five days after the date Lessor
sends notice to Lessee requesting payment. Lessor's effecting such compliance
shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due hereunder shall
bear interest, both before and after any judgment or termination hereof, at the
lesser of eighteen percent (18%) per annum or the maximum rate allowed by law.
Any provision in this Agreement and any Schedule which are in conflict with any
statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to be
executed by their duly authorized representative as of the date first above
written.
LESSOR: LESSEE:
General Electric Capital Corporation OMI Acquisition Corp.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXXX XXXX
-------------------------------- --------------------------------
Title: Sr. Credit Analyst Title: President
----------------------------- -----------------------------
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AMENDMENT NO. 1
TO
MASTER LEASE AGREEMENT
DATED AS OF AUGUST 31, 1995
THIS AMENDMENT amends and supplements the above lease (the "Lease"),
between GENERAL ELECTRIC CAPITAL CORPORATION ("Lessor") and OMI ACQUISITION
CORP. ("Lessee") and is hereby incorporated into the Lease as though fully set
forth therein. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Lease.
The Lease is hereby amended as follows:
1. Section III(c). After "Lessee's" add "and Lessor's"
2. The following is added as paragraph two to Section III(b):
If, solely as a result of congressional enactment of any law (including,
without limitation, an modification of, or amendment or addition to, the
Internal Revenue code of 1986, as amended, (the "Code")), the Effective Rate is
lower than thirty-five percent (35%) for any year during the lease term, then
Lessee shall have the right to request a decrease in the rent payments by
requiring the Lessor to make a payment of a single sum equal to the product of
(i) the Effective Rate (expressed as a decimal) for such year less .35 (or, in
the event that any adjustment has been made hereunder for any previous year, the
Effective Rate (expressed as a decimal) used in calculating the next previous
adjustment) times (ii) the adjusted Termination Value divided by the difference
between the new Effective Tax Rate (expressed as a decimal) and one (1). The
adjusted Termination Value shall be the Termination Value (calculated as of the
first rental due in the year for which such adjustment is being made) less the
Tax Benefits that would be allowable under Section 168 of the code (as of the
first day of the year for which such adjustment is being made and all subsequent
years of the lease term). Lessor shall pay to Lessee the full amount of the
reduction rent payment on the later of (i) receipt of notice or (ii) the first
day of the year for which such adjustment is being made.
Except as expressly modified hereby, all terms and provisions of the Lease
shall remain in full force and effect.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL OMI ACQUISITION CORP.
CORPORATION
(Sig.) (Sig.)
By:______________________________ By: _______________________________
Name: ___________________________ Name: _____________________________
Title: __________________________ Title: ____________________________
Attest:
(Sig.)
By: ________________________________
Name: ______________________________
AMENDMENT NO. 2
TO
MASTER LEASE AGREEMENT
DATED AS OF AUGUST 31, 1995
THIS AMENDMENT amends and supplements the above lease (the "Lease"),
between GENERAL ELECTRIC CAPITAL CORPORATION ("Lessor") and OMI ACQUISITION
CORP. ("Lessee") and is hereby incorporated into the Lease as though fully set
forth therein. Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Lease.
The Lease is hereby amended as follows:
1. Section IV, line 2. After "measured by" delete the remainder of the
sentence and substitute the following: "the Lessor's net income, profits,
receipts, franchise, or conduct of business, and taxes on capital, equity
or net worth relating to any payment to Lessor under this Agreement."
2. Section X, line 5. The sentence that begins with "Lessee hereby
appoints Lessor..." is deleted in its entirety and replaced by the
following: "Lessee shall cause all insurers to issue checks for payments
covering casualty losses to the Equipment payable to the order of Lessor
only, and no other payee. If Lessee fails to do so, or if notwithstanding
Lessee's instructions the insurer issues any check payable jointly to
Lessee and Lessor, then Lessee shall upon Lessor's request promptly endorse
any and every such check as directed by Lessor. Lessee and Lessor agree
that the foregoing provision may be specifically enforced by a court of
competent jurisdiction."
3. Section XV(a), line 8. After "foregoing." Add "Anything in the
foregoing to the contrary notwithstanding, Lessee shall have no obligation
to indemnify, defend or hold harmless Lessor from and against any claims
which are the direct and proximate result of any gross negligence or
willful misconduct of Lessor, its employees or agent (excluding Lessee and
its employees and agents)."
4. Section XVIII(a), line 1. After "hereunder," delete the remainder
of the sentence and substitute the following: "(i) terminate this Agreement
as to any item of Equipment (provided, however, that the aggregate original
Capitalized Lessor's Cost of all items of the Equipment so terminated
pursuant to this Section XVIII shall not exceed twenty-five (25) percent of
the aggregate original Capitalized Lessor's Cost of all Equipment described
on all Schedules executed hereunder) which have not previously been
terminated, or (ii) terminate this Agreement as to all items of the
Equipment then leased pursuant to an individual Schedule, as of a rent
payment date ("Termination Date") upon at least 90 days prior written
notice to Lessor.
Except as expressly modified hereby, all terms and provisions of the Lease
shall remain in full force and effect.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL OMI ACQUISITION CORP.
CORPORATION
(Sig.) (Sig.)
By:______________________________ By: _______________________________
Name: ___________________________ Name: _____________________________
Title: __________________________ Title: ____________________________
AMENDMENT NO. 3
TO
MASTER LEASE AGREEMENT
DATED AUGUST 31, 1995 (the "Lease")
BY AND BETWEEN
OMI ACQUISITION CORP. ("Lessee")
AND
GENERAL ELECTRIC CAPITAL CORPORATION ("Lessor")
DATED AUGUST 31, 1995
WHEREAS, Lessor and Lessee desire to amend certain provisions of the Lease
as hereinafter provided;
NOW THEREFORE, for good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, Lessor and Lessee hereby agree to amend the
Lease by adding the following language:
Section XII of the Lease is amended in the following manner:
(e) Lessee shall be deemed to be in default hereunder if Lessee
shall be in default under any material obligation for the payment
of borrowed money, for the deferred purchase price of property or
for the payment of any rent under any material lease agreement, and
the applicable grace period with respect thereto shall have expired.
This Amendment shall be deemed to have been entered into contemporaneously with
and integrated into the terms and conditions of the Lease.
Except as set out herein, the terms and conditions of the Lease shall
remain in full force and effect as entered into by the parties on or prior to
the date hereof.
Dated: August 31, 1995
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL OMI ACQUISITION CORP.
CORPORATION
By:______________________________ By: _______________________________
Name: ___________________________ Name: _____________________________
Title: __________________________ Title: ____________________________
CORPORATE GUARANTY
Date: August 31, 1995
General Electric Capital Corporation
000 Xxxxxxxxxxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxxx, XX 00000
To induce you to enter into, purchase or otherwise acquire, now or at any
time hereafter, any promissory notes, security agreements, chattel mortgages,
pledge agreements, conditional sale contracts, lease agreements, and/or any
other documents or instruments evidencing, or relating to, any lease, loan,
extension of credit or other financial accommodation (collectively "Account
Documents" and each an "Account Document") to OMI Acquisition Corp., a
corporation organized and existing under the laws of the State of Delaware
("Customer"), but without in any way binding you to do so, the undersigned, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby guarantee to you, your successors and assigns, the due
regular and punctual payment of any sum or sums of money which the Customer may
owe to you now or at any time hereafter, whether evidenced by an Account
Document, on open account or otherwise, and whether it represents principal,
interest, rent, late charges, indemnities, an original balance, an accelerated
balance, liquidated damages, a balance reduced by partial payment, a deficiency
after sale or other disposition of any leased equipment, collateral or security,
or any other type of sum of any kind whatsoever that the Customer may owe to you
now or at any time hereafter, and does hereby further guarantee to you, your
successors and assigns, the due, regular and punctual performance of any other
duty or obligation of any kind or character whatsoever that the Customer may owe
to you now or at any time hereafter (all such payment and performance
obligations being collectively referred to as "Obligations"). Undersigned does
hereby further guarantee to pay upon demand all losses, costs, attorneys' fees
and expenses which may be suffered by you by reason of Customer's default or
default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first seek
or exhaust any remedy against the Customer, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first foreclose,
exhaust or otherwise proceed against any leased equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that you may, upon any breach of default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of the Obligations, with or without notice or demand for payment of performance
by the Customer, its successors or assigns, or any other person. Suit may be
brought and maintained against the undersigned, at your election, without
joinder of the Customer or any other person as parties thereto. The obligations
of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) the genuineness, validity, regularity and
enforceability of the Account Documents or any other document; (b) any
extension, renewal, amendment, change, waiver or other modification of the
Account Documents or any other document; (c) the absence of, or delay in, any
action to enforce the Account Documents, this Guaranty or any other document;
(d) your failure or delay in obtaining any other guaranty of the Obligations
(including, without limitation, your failure to obtain the signature of any
other guarantor hereunder); (e) the release of, extension of time for payment
or performance by, or any other indulgence granted to the Customer or any other
person with respect to the Obligations by operation of law or otherwise; (f) the
existence, value, condition, loss, subordination or release (with or without
substitution) of, or failure to have title to or perfect and maintain a security
interest in, or the time, place and manner of any sale or other disposition of
any leased equipment, collateral or security given in connection with the
Obligations, or any other impairment (whether intentional or negligent, by
operation of law or otherwise) of the rights of the undersigned; (g) the
Customer's voluntary or involuntary bankruptcy, assignment for the benefit of
creditors, reorganization, or similar proceedings affecting the Customer or any
of its assets; or (h) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or grantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned of
all amounts and other sums that would be due to you upon a default with respect
to the Obligations.
Notice of acceptance of this Guaranty and of any default by the Customer or
any other person is hereby waived. Presentment, protest demand, and notice of
protest, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned warrants that it has adequate means to obtain from the Customer
on a continuing basis financial data and other information regarding the
Customer and is not relying upon you to provide any such data or other
information. Without limiting the foregoing, notice of adverse change in the
Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and you shall be binding upon and shall not
effect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to you of all
Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral therefor,
or any other assets of the Customer or any such other obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect of sums paid or payable to you by the undersigned hereunder,
and
the undersigned hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which it might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by,
or collected or due from, it, the Customer or any other obligor for any of the
Obligations, or realized from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, OR ANY
RELATED DOCUMENTS. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
As used in this Guaranty, the word "person" include any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure by
you to exercise your rights hereunder shall give rise to any estoppel against
you, or excuse the undersigned from performing hereunder. Your waiver of any
right to demand performance hereunder shall not be a waiver of any subsequent or
other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and the
benefits thereof shall extend to and include your successors and assigns. In the
event of default hereunder, you may at any time inspect undersigned's records,
or at your option, undersigned shall furnish you with a current independent
audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
Photronics Corp.
By: _____________________________
(Signature)
Title: __________________________
(Officer's Title)
ATTEST: _____________________________
Secretary/Assistant Secretary
Stockholders Certification
We, the undersigned, being all of the stockholders of ____________________
("Guarantor"), the corporation which is about to execute a guaranty of the
obligations of OMI Acquisition Corp. ("Customer") in favor of General Electric
Capital Corporation (the "GECC Corporation"), do hereby certify to such GECC
Corporation that it is to the benefit of the Guarantor to execute such guaranty,
that the benefit to be received by the Guarantor from such guaranty is
reasonably worth the obligations thereby guaranteed, that the Guarantor is
authorized to execute said guaranty, and that the persons executing the same on
behalf of the Guarantor are duly authorized to do so in their named capacity
and to thereby bind the Guarantor to the terms of said instrument as therein set
forth.
Dated: __________________________, 19___ _____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
Certified Resolution
The undersigned hereby certifies that he is Secretary of ________________,
that the following resolution was passed at a meeting of the Board of Directors
of said corporation held on __________________________, 19___ duly called, a
quorum being present, that said resolution has not since been revoked or
amended, and that the form of guaranty referred to therein is the form
attached hereto:
"RESOLVED that it is to the benefit of this corporation that it execute a
guaranty of the obligations of OMI Acquisition Corp. ("Customer") to General
Electric Capital Corporation (the "GECC Corporation") and that the benefit to
be received by this corporation from such guaranty is reasonably worth the
obligations thereby guaranteed, and further that such guaranty shall be
substantially in the form annexed to these minutes, and further that the
______________________ and ______________________ (Title of Officers) of this
corporation are authorized to execute such guaranty on the behalf of this
corporation."
WITNESS my hand and the seal of this corporation on this _______________
day of _______________________, 19___.
_____________________________
[Seal] Secretary
Certification and Representation by Signing Officers
We, the undersigned, ______________________ and ____________________ being
the ____________________ and ____________________ of ___________________, the
corporation which executed the guaranty hereto, hereby jointly and severally
certify and represent to General Electric Capital Corporation that each of the
undersigned executed the guaranty for and on behalf of said corporation and
that in so executing said instrument the undersigned were duly authorized to do
so in their named capacity as officers and by so executing to hereby bind said
guarantor corporation to the terms of said instrument as therein set forth.
_____________________________ (L.S.) _____________________________ (L.S.)
Date: ______________________________ Date: ______________________________
Stockholders Certification
We, the undersigned, being all of the stockholders of ____________________
("Guarantor"), the corporation which is about to execute a guaranty of the
obligations of OMI Acquisition Corp. ("Customer") in favor of General Electric
Capital Corporation (the "GECC Corporation"), do hereby certify to such GECC
Corporation that it is to the benefit of the Guarantor to execute such
guaranty, that the benefit to be received by the Guarantor from such guaranty
is reasonably worth the obligations thereby guaranteed, that the Guarantor is
authorized to execute said guaranty, and that the persons executing the same on
behalf of the Guarantor are duly authorized to do so in their named capacity
and to thereby bind the Guarantor to the terms of said instrument as therein
set forth.
Dated: __________________________, 19___ _____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
Certified Resolution
The undersigned hereby certifies that he is Secretary of ________________,
that the following resolution was passed at a meeting of the Board of Directors
of said corporation held on __________________________, 19___ duly called, a
quorum being present, that said resolution has not since been revoked or
amended, and that the form of guaranty referred to therein is the form
attached hereto:
"RESOLVED that it is to the benefit of this corporation that it execute a
guaranty of the obligations of OMI Acquisition Corp. ("Customer") to General
Electric Capital Corporation (the "GECC Corporation") and that the benefit to
be received by this corporation from such guaranty is reasonably worth the
obligations thereby guaranteed, and further that such guaranty shall be
substantially in the form annexed to these minutes, and further that the
______________________ and ______________________ (Title of Officers) of this
corporation are authorized to execute such guaranty on the behalf of this
corporation."
WITNESS my hand and the seal of this corporation on this _________________
day of _______________________, 19___.
_____________________________
[Seal] Secretary
Certification and Representation by Signing Officers
We, the undersigned, ____________________ and _____________________ being
the ____________________ and _____________________ of __________________, the
corporation which executed the guaranty hereto, hereby jointly and severally
certify and represent to General Electric Capital Corporation that each of the
undersigned executed the guaranty for and on behalf of said corporation and
that in so executing said instrument the undersigned were duly authorized to
do so in their named capacity as officers and by so executing to hereby bind
said guarantor corporation to the terms of said instrument as therein set
forth.
____________________________ (L.S.) _____________________________ (L.S.)
Date: _____________________________ Date: ______________________________
CORPORATE GUARANTY
Date: August 31, 1995
General Electric Capital Corporation
000 Xxxxxxxxxxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxxx, XX 00000
To induce you to enter into, purchase or otherwise acquire, now or at any
time hereafter, any promissory notes, security agreements, chattel mortgages,
pledge agreements, conditional sale contracts, lease agreements, and/or any
other documents or instruments evidencing, or relating to, any lease, loan,
extension of credit or other financial accommodation (collectively "Account
Documents" and each an "Account Document") to OMI Acquisition Corp., a
corporation organized and existing under the laws of the State of Delaware
("Customer"), but without in any way binding you to do so, the undersigned, for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby guarantee to you, your successors and assigns, the due
regular and punctual payment of any sum or sums of money which the Customer may
owe to you now or at any time hereafter, whether evidenced by an Account
Document, on open account or otherwise, and whether it represents principal,
interest, rent, late charges, indemnities, an original balance, an accelerated
balance, liquidated damages, a balance reduced by partial payment, a deficiency
after sale or other disposition of any leased equipment, collateral or security,
or any other type of sum of any kind whatsoever that the Customer may owe to you
now or at any time hereafter, and does hereby further guarantee to you, your
successors and assigns, the due, regular and punctual performance of any other
duty or obligation of any kind or character whatsoever that the Customer may owe
to you now or at any time hereafter (all such payment and performance
obligations being collectively referred to as "Obligations"). Undersigned does
hereby further guarantee to pay upon demand all losses, costs, attorneys' fees
and expenses which may be suffered by you by reason of Customer's default or
default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first seek
or exhaust any remedy against the Customer, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first foreclose,
exhaust or otherwise proceed against any leased equipment, collateral or
security which may be given in connection with the Obligations. It is agreed
that you may, upon any breach of default of the Customer, or at any time
thereafter, make demand upon the undersigned and receive payment and performance
of the Obligations, with or without notice or demand for payment of performance
by the Customer, its successors or assigns, or any other person. Suit may be
brought and maintained against the undersigned, at your election, without
joinder of the Customer or any other person as parties thereto. The obligations
of each signatory to this Guaranty shall be joint and several.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and unaffected
by any of the following actions or circumstances (regardless of any notice to or
consent of the undersigned): (a) the genuineness, validity, regularity and
enforceability of the Account Documents or any other document; (b) any
extension, renewal, amendment, change, waiver or other modification of the
Account Documents or any other document; (c) the absence of, or delay in, any
action to enforce the Account Documents, this Guaranty or any other document;
(d) your failure or delay in obtaining any other guaranty of the Obligations
(including, without limitation, your failure to obtain the signature of any
other guarantor hereunder); (e) the release of, extension of time for payment
or performance by, or any other indulgence granted to the Customer or any other
person with respect to the Obligations by operation of law or otherwise; (f) the
existence, value, condition, loss, subordination or release (with or without
substitution) of, or failure to have title to or perfect and maintain a security
interest in, or the time, place and manner of any sale or other disposition of
any leased equipment, collateral or security given in connection with the
Obligations, or any other impairment (whether intentional or negligent, by
operation of law or otherwise) of the rights of the undersigned; (g) the
Customer's voluntary or involuntary bankruptcy, assignment for the benefit of
creditors, reorganization, or similar proceedings affecting the Customer or any
of its assets; or (h) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or grantor.
This Guaranty may be terminated upon delivery to you (at your address
shown above) of a written termination notice from the undersigned. However, as
to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned
of all amounts and other sums that would be due to you upon a default with
respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the Customer or
any other person is hereby waived. Presentment, protest demand, and notice of
protest, demand and dishonor of any of the Obligations, and the exercise of
possessory, collection or other remedies for the Obligations, are hereby waived.
The undersigned warrants that it has adequate means to obtain from the Customer
on a continuing basis financial data and other information regarding the
Customer and is not relying upon you to provide any such data or other
information. Without limiting the foregoing, notice of adverse change in the
Customer's financial condition or of any other fact which might materially
increase the risk of the undersigned is also waived. All settlements,
compromises, accounts stated and agreed balances made in good faith between the
Customer, its successors or assigns, and you shall be binding upon and shall
not effect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby subordinated
in right of payment to the indefeasible payment in full to you of all
Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Customer, any other obligor for any of the Obligations, any collateral therefor,
or any other assets of the Customer or any such other obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect of sums paid or payable to you by the undersigned
hereunder, and
the undersigned hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which it might otherwise directly or
indirectly receive or be entitled to receive by reason of any amounts paid by,
or collected or due from, it, the Customer or any other obligor for any of the
Obligations, or realized from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER HEREOF OR
THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN US. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS).
THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, OR ANY
RELATED DOCUMENTS. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
As used in this Guaranty, the word "person" include any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement or
modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in whole
or in part, by a duly authorized written instrument signed by you. No failure by
you to exercise your rights hereunder shall give rise to any estoppel against
you, or excuse the undersigned from performing hereunder. Your waiver of any
right to demand performance hereunder shall not be a waiver of any subsequent or
other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and the
benefits thereof shall extend to and include your successors and assigns. In the
event of default hereunder, you may at any time inspect undersigned's records,
or at your option, undersigned shall furnish you with a current independent
audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to the
extent that they may conflict therewith, but without invalidating any other
provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing, to bind said
guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
Diagnostic/Retrieval Systems, Inc.
By: _____________________________
(Signature)
Title: __________________________
(Officer's Title)
ATTEST: _____________________________
Secretary/Assistant Secretary
Stockholders Certification
We, the undersigned, being all of the stockholders of ____________________
("Guarantor"), the corporation which is about to execute a guaranty of the
obligations of OMI Acquisition Corp. ("Customer") in favor of General Electric
Capital Corporation (the "GECC Corporation"), do hereby certify to such GECC
Corporation that it is to the benefit of the Guarantor to execute such guaranty,
that the benefit to be received by the Guarantor from such guaranty is
reasonably worth the obligations thereby guaranteed, that the Guarantor is
authorized to execute said guaranty, and that the persons executing the same on
behalf of the Guarantor are duly authorized to do so in their named capacity
and to thereby bind the Guarantor to the terms of said instrument as therein set
forth.
Dated: __________________________, 19___ _____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
_____________________________ (L.S.)
Certified Resolution
The undersigned hereby certifies that he is Secretary of _________________,
that the following resolution was passed by unanimous written consent of the
Board of Directors of said corporation on __________________________, 19___
duly called, a quorum being present, that said resolution has not since been
revoked or amended, and that the form of guaranty referred to therein is the
form attached hereto:
"RESOLVED that it is to the benefit of this corporation that it execute a
guaranty of the obligations of OMI Acquisition Corp. ("Customer") to General
Electric Capital Corporation (the "GECC Corporation") and that the benefit to be
received by this corporation from such guaranty is reasonably worth the
obligations thereby guaranteed, and further that such guaranty shall be
substantially in the form annexed to these minutes, and further that the
______________________ and ______________________ (Title of Officers) of this
corporation are authorized to execute such guaranty on the behalf of this
corporation."
WITNESS my hand and the seal of this corporation on this __________________
day of _______________________, 19___.
_____________________________
[Seal] Secretary
Certification and Representation by Signing Officers
We, the undersigned, ______________________ and _____________________ being
the _____________________ and _______________________ of ______________________,
the corporation which executed the guaranty hereto, hereby jointly and severally
certify and represent to General Electric Capital Corporation that each of the
undersigned executed the guaranty for and on behalf of said corporation and that
in so executing said instrument the undersigned were duly authorized to do so in
their named capacity as officers and by so executing to hereby bind said
guarantor corporation to the terms of said instrument as therein set forth.
_____________________________ (L.S.) _____________________________ (L.S.)
Date: ______________________________ Date: ______________________________
