BB&T EQUIPMENT FINANCE CORPORATION
Exhibit 10.5
BB&T EQUIPMENT FINANCE CORPORATION
RIDER NO. 2 TO EQUIPMENT SCHEDULE SERIES A NO. 1
To and
part of Equipment Schedule Series A No. 1 dated as of
the 27th day of
November, 2009
(the “Schedule”), executed pursuant to that certain Master Lease Agreement dated as of the
25th day
of November, 2009 (the “Lease”), each between BB&T EQUIPMENT FINANCE CORPORATION, its
successors and assigns (“Lessor”), and POWERSECURE, INC., its successors and permitted assigns
(“Lessee”).
RETURN PROVISIONS: In addition to the provisions of Section 13 of the Lease (provided that
any inconsistency between the provisions of Section 13 and this Rider shall be resolved in favor of
the provisions of this Rider), and provided that Xxxxxx has not elected to exercise its option to
purchase the Equipment, Lessee shall, at its expense:
(A) At least one hundred eighty (180) days prior to expiration or earlier termination of the
Lease, provide to Lessor the location and a detailed inventory of all major components of the
Equipment. The inventory should include, but not be limited to, a listing of model and serial
numbers for all major components comprising the Equipment.
(B) At least one hundred eighty (180) days prior to expiration or earlier termination of the
Lease, upon receiving reasonable, notice from Lessor, use Lessee’s best efforts to provide or cause
the vendor(s) or manufacturer(s) to provide to Lessor the following documents: (1) one set of
service manuals and operating manuals including replacements and/or additions thereto, such that
all documentation is as up-to-date as possible; (2) one set of documents, detailing equipment
configuration, operating requirements, available maintenance records, and other available technical
data concerning the set-up and operation of the Equipment, including major replacements and/or
additions thereto, such that all documentation is as completely up-to-date as possible.
(C) At least one hundred twenty (120) days prior to expiration or earlier termination of the
Lease: (1) cause the manufacturer(s), or other persons expressly and reasonably authorized by the
manufacturer and/or Lessor, to inspect, examine and test all material and workmanship to ensure the
Equipment is operating within the manufacturer’s specifications, allowing for ordinary wear and
tear; (2) provide to Lessor a written report from the authorized inspector detailing said
inspection and condition that the Equipment and all its components will operate properly in order
to handle fully rated loads within the manufacturer’s specifications. The Equipment’s electrical
system will be in good operating conditions with all wiring free of cuts, breaks or cracks; (3) if
during such inspection, examination and test, the authorized inspector finds any of the
components, material or workmanship to be defective or the equipment not operating within the
manufacturer’s specifications, then Lessee shall repair or replace such defective material with OEM
approved materials as per the manufacturer’s recommendations and, after corrective measures are
completed Lessee will provide for another inspection of the equipment by the authorized inspector
as outlined above.
(D) At least ninety (90) days prior to expiration or earlier termination of the Lease and
ninety (90) days after expiration or earlier termination of the lease, at Lessor’s sole discretion
and upon receiving reasonable notice from Lessor, make the Equipment available for on-site
operational inspections by potential purchasers, above ground and under power, and provide
personnel, power and other requirements necessary to demonstrate electrical and mechanical systems
for each item of the Equipment. Lessee shall permit Lessor, or Lessor’s authorized representative,
to video tape the Equipment “under power” at Lessee’s site during normal working hours, mutually
agreeable to Lessee for the purposes of assisting in the re-marketing of the Equipment.
(E) At Lessor’s option, allow Lessor, at Lessor’s expense, between sixty (60) days prior to
expiration or earlier termination of the Lease and ninety (90) days after expiration or earlier
termination of the Lease, and provided (1) Lessor has provided reasonable notice to Lessee, and (2)
if the Equipment is on the site of Lessee’s Customer, Lessee’s Customer has consented in writing,
to arrange for an on-site auction of the Equipment in an assembled and functional state. Any such
auction may also be conducted following Lease termination or expiration and will be conducted in
such a manner which will not interfere with Xxxxxx’s other operations. Lessee shall provide
personnel, power and all other operational requirements necessary to demonstrate the equipment and
its electrical, mechanical and hydraulic systems for each item of the Equipment.
(F) If requested by Lessor, Xxxxxx shall actively assist Lessor with the re-marketing of the
Equipment for a period of up to two (2) months following the return of the Equipment, or until such
time that all of the Equipment has been disposed of in a manner acceptable to Lessor.
(G) With respect to maintenance, Lessee may not discriminate against the Equipment with
respect to scheduling of maintenance, parts, or service.
(H) Unless it is customary under normal operating conditions, the Equipment will not remain
idle or out of service for a period of more than 90 days, other than for specific scheduled
maintenance.
(I) Lessor at its sole discretion may, from time to time, inspect the Equipment at Lessor’s
sole expense. If any discrepancies are found that materially adversely affect the value, utility
or remaining useful life of the Equipment, Lessor will communicate these discrepancies to Lessee in
writing. Lessee shall have sixty (60) days to rectify these discrepancies at its sole expense, or
Lessee may determine that such item of the Equipment has suffered a Total Loss, in which case the
provisions of Section 12 of the Lease shall apply. Lessee shall pay all expenses for the
re-inspection by Xxxxxx appointed expert, if corrective measures were required.
(J) Provide for the de-installation, packing and transporting of the Equipment to include, but
not limited to the following: (1) the manufacturer’s representative or other qualified person
reasonably acceptable to Lessor shall de-install all Equipment (including all wire, cable and
mounting hardware) in a manner that does not damage the assets, equipment or property of Lessee or
its customers; (2) the Equipment shall be packed properly and in accordance to the manufacturer’s
recommendation (if applicable), given its destination and mode of transport; and (3) Lessee shall
transport the Equipment in a manner consistent with the manufacturer’s recommendations and industry
practices (if applicable).
(K) Obtain and pay for a policy of transit insurance for the delivery period in an amount
equal to the replacement value of the Equipment with Lessor named as loss payee on all such
policies of insurance.
(L) Provide safe, secure storage for the Equipment for a period of up to ninety (90) days
after expiration or early termination of the Lease at up to five (5) accessible locations
satisfactory to Lessor.
(M) Provide that all Equipment will be cleaned and cosmetically acceptable, and in such
condition so that it may be immediately installed and placed into use in a similar operating
environment.
(N) Ensure all Equipment and equipment operation, including emissions, conform to all
applicable local, state, Environmental Protection Agency (“EPA”), and federal laws, health and
safety guidelines. Said emissions should meet or exceed then current minimum standards as set by
the governmental agency(s) regulating the Equipment’s operation for each individual
state/county/municipality/province of North America.
(O) Ensure that at time of return of the Equipment, each item of Equipment will have at least
forty (40%) percent remaining time before next scheduled rebuild or overhaul as recommended by
manufacturer.
(P) Be responsible for the cost of all repairs, alterations, inspections, appraisals, storage
charges, insurance costs, demonstration costs, and other related costs necessary to place the
Equipment in such condition as to be in complete compliance with this Lease.
(Q) If any item of Equipment is not returned to Lessor, it shall deemed to be a casualty and
an Event of Loss during the Lease term.
As used herein, “Equipment” shall mean the Equipment described on all Schedules of this
series.
| BB&T EQUIPMENT FINANCE CORPORATION | POWERSECURE, INC. | |||||||||||||
| Lessor | Lessee | |||||||||||||
By:
|
/s/ Xxxxxxx XxXxxxx | By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||||||||||
| Name: | Xxxxxxx XxXxxxx | Name: | Xxxxxxxxxxx X. Xxxxxx | |||||||||||
| Title: | Vice President | Title: | Chief Financial Officer | |||||||||||
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