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EXHIBIT 10(p)(3)
EQUIPMENT SCHEDULE NO. 05 dated as of May 21, 1999 (this "Schedule")
between KEYCORP LEASING, A DIVISION OF KEY CORPORATE CAPITAL INC. ("Lessor"),
and AUTOCAM CORPORATION, a Michigan corporation ("Lessee").
INTRODUCTION:
Lessor and Lessee have heretofore entered into that certain Master
Equipment Lease Agreement dated as of July 10, 1995 (the "Master Lease"; the
Master Lease and this Schedule are hereinafter collectively referred to as, this
"Lease"). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings specified in the Master Lease. The Master Lease provides for
the execution and delivery of a Schedule substantially in the form hereof for
the purpose of confirming the acceptance and lease of the Equipment under this
Lease as and when delivered by Lessor to Lessee in accordance with the terms
thereof and hereof.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
EQUIPMENT & INVOICING TERMS
1 EQUIPMENT. Pursuant to the terms and conditions of this Lease, Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, the
equipment listed on Exhibit A attached hereto (the "Equipment"). The
aggregate Total Cost of such Equipment is $586,647.51.
2 TERM. The Initial Term of this Lease with respect to the Equipment
described on this Schedule shall commence on the date on which such
Equipment is delivered to Lessee, and, unless earlier terminated as
provided herein, shall expire on a date which is ninety six (96) months
after the Rent Commencement Date (the "Initial Term Expiration Date").
3 RENT PAYMENT DATES; RENT. Lessee hereby agrees to pay Rent for the
Equipment throughout the Initial Term in ninety six (96) consecutive
monthly installments payable in arrears on the date which is one (1) month
after the Rent Commencement Date and on the same day of each month
thereafter (each, a "Rent Payment Date"). Each such installment of Rent
shall be in an amount equal to $7,063.14. In addition, Lessee hereby agrees
to pay Rent for the period commencing on the Interim Rent Commencement Date
(as defined below) and ending on the day before the Rent Commencement Date
in an amount equal to $235.44 per day, and agrees that, with respect to the
Equipment described on this Schedule, the following modifications are
hereby made to the Master Lease: (a) "Rent Commencement Date- shall mean,
with respect to an Equipment Group, the first (1st) day of the first month
following the date of the Certificate of Acceptance for such Equipment
Group, (b) "Interim Rent Commencement Date" shall mean, with respect to an
Equipment Group, the date of the Certificate of Acceptance for such
Equipment Group, or such later date (prior to the Rent Commencement Date)
as determined by Lessor in its sole discretion, (c) Section 6 of the Master
Lease ("Ordering Equipment") is hereby amended to delete the term "Rent
Commencement Date" and to substitute the term "Interim Rent Commencement
Date" in its place and (d) Section 22(a)(9) of the Master Lease ("Events of
Default; Remedies") is hereby amended to delete the term "Rent Commencement
Date" and to substitute the phrase "Rent Commencement Date or Interim Rent
Commencement Date, as the case may be," in its place.
4 EQUIPMENT LOCATION; BILLING ADDRESS. The Equipment described on this
Schedule shall be located at, and except as otherwise provided in this
Lease, shall not be removed from, the following address: 0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxx, XX 00000. The billing address of Lessee is as follows:
AUTOCAM CORPORATION, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
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TRANSACTION TYPE TERMS
5 PURCHASE, RENEWAL AND OPTION TERMS.
(a) FMV. With respect to the Equipment described on this Schedule, Section 32 of
the Master Lease ("Renewal and Purchase Options") is hereby deleted in its
entirety and the following is substituted in its place:
So long as no Default or Event of Default shall have occurred and be
continuing and Lessee shall have given Lessor at least one hundred eighty
(180) but not more than two hundred seventy (270) days prior written notice
(the "Option Notice"), Lessee shall have the following purchase and renewal
options at the expiration of the Initial Term, or any Renewal Term, to:
(i) purchase all, but not less than all, Items of Equipment for a purchase
price (the "Purchase Option Price") equal to the then Fair Market Sale Value
thereof; (ii) renew this Lease on a month to month basis at the same Rent
payable at the expiration of such Initial Term or Renewal Term, as the case
may be; (iii) renew this Lease for a minimum period of not less than twelve
(12) consecutive months at the then current Fair Market Rental Value; or
(iv) return such Equipment to Lessor pursuant to, and in the condition
required by, the Lease. If Lessee fails to give Lessor the Option Notice,
Lessee shall be deemed to have chosen option (ii) above.
Payment of the Purchase Option Price, applicable sales taxes, together with
all other amounts due and owing by Lessee under the Lease (including, without
limitation, Rent) during such Initial Term and Renewal Term shall be made on the
last day of the Initial Term or Renewal Term, as the case may be, in immediately
available funds against delivery of a xxxx of sale transferring to Lessee all
right, title and interest of Lessor in and to the Equipment ON AN "AS IS" "WHERE
IS" BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. LESSOR MAY
SPECIFICALLY DISCLAIM ANY SUCH REPRESENTATIONS AND WARRANTIES.
(b) EARLY BUYOUT OPTION. So long as no Default or Event of Default shall have
occurred and be continuing, Lessee shall have the option to purchase all, but
not less than all, Items of Equipment on the date which is eighty four (84)
months after the Rent Commencement Date (the "EBO Date") at a price (the "EBO
Price") equal to thirty one and twenty five hundredths percent (31.25%) of the
Total Cost of the Equipment, plus any applicable sales taxes. For Lessee to
exercise its option hereunder, Lessee shall notify Lessor in writing of its
desire to effect such option at least ninety (90) days (but not more than one
hundred eighty (180) days) prior to the EBO Date. Such notice shall be
irrevocable. The EBO Price represents the parties present best estimate of the
fair market value of the Equipment on the EBO Date determined by using
commercially reasonable methods which are standard in the industry. Payment of
the EBO Price, applicable sales taxes, together with all other amounts due and
owing by Lessee under the Lease (including, without limitation, Rent) on or
before the EBO Date, shall be made on the EBO Date in immediately available
funds. Thereafter, upon Lessee's written request, Lessor shall deliver to Lessee
a xxxx of sale transferring to Lessee all right, title and interest of Lessor in
and to the Equipment ON AN "AS IS" "WHERE IS" BASIS, WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER. If Lessee shall fail to pay all
amounts required to be paid under the Lease on the EBO Date, the Lease shall
continue in full force and effect and Lessee agrees to reimburse Lessor for all
reasonable costs, expenses and liabilities incurred in connection therewith.
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6. NATURE OF TRANSACTION; TRUE LEASE. (a) It is the express intent of the
parties that this Lease constitute a true lease and not a sale of the
Equipment Title to the Equipment shall at all times remain in Lessor,
and Lessee shall acquire no ownership, title, property, right, equity,
or interest in the Equipment other than its leasehold interest solely
as Lessee subject to all the terms and conditions hereof. To the
extent that Article 2A ("Article 2A") of the Uniform Commercial Code
("UCC") applies to the characterization of this Lease, the parties
hereby agree that this Lease is a "Finance Lease" as defined therein.
Lessee acknowledges: (i) that Lessee has selected the "Supplier" (as
defined in the UCC) and has directed Lessor to purchase the Equipment
from the Supplier in connection with this Lease, and (ii) that Lessee
has been informed in writing in this Lease, before Lessee's execution
of this Lease, that Lessee is entitled under Article 2A to the
promises and warranties, including those of any third party, provided
to Lessor by the Supplier in connection with or as part of the
Purchase Agreement, and that Lessee may communicate with the Supplier
and receive an accurate and complete statement of those promises and
warranties, including any disclaimers and limitations of them or of
remedies. The filing of UCC financing statements pursuant to Section
34 of the Master Lease is precautionary and shall not be deemed to
have any effect on the characterization of this Lease. NOTWITHSTANDING
THE FOREGOING, LESSOR HAS NOT MADE, AND HEREBY DISCLAIMS ANY ADVICE,
REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESSED OR
IMPLIED, WITH RESPECT TO ANY LEGAL, ECONOMIC, ACCOUNTING, TAX OR OTHER
EFFECTS OF THE LEASE AND THE TRANSACTION(S) CONTEMPLATED THEREBY, AND
LESSEE HEREBY DISCLAIMS ANY RELIANCE ON ANY SUCH WARRANTIES,
STATEMENTS OR REPRESENTATIONS MADE BY LESSOR WITH RESPECT THERETO.
(b) Notwithstanding the express intent of Lessor and Lessee that this
agreement constitute a true leage and not a sale of the Equipment, should a
court of competent jurisdiction determine that this agreement is not a true
lease, but rather one intended as security, then solely in that event and for
the expressly limited purposes thereof, Lessee shall be deemed to have hereby
granted Lessor a security interest in the Equipment and all accessions,
substitutions and replacements thereto and therefor, and proceeds (cash and
non-cash), including, without limitation, insurance proceeds thereof (but
without power of sale), to secure the prompt payment and performance as and when
due of all obligations and indebtedness of Lessee, now existing or hereafter
created, to Lessee pursuant to this Lease or otherwise. In furtherance of the
foregoing, Lessee shall execute and deliver to Lessor, to be filed at Lessee's
expense, Uniform Commercial Code financing statements, statements of amendment
and statements of continuation as reasonably may be required by Lessor to
perfect and maintain perfected such security interest.
(c) In the event that the Supplier erroneously invoices Lessee for the
Equipment, Lessee agrees to forward said invoice to Lessor immediately. Lessee
acknowledges that the Equipment is, and shall at all times remain, the property
of Lessor, and that Lessee has no right, title or interest therein or thereto
except as expressly set forth in this Lease.
7. TAX INDEMNIFICATION. (a) Lessee acknowledges that Lessor has executed
this Lease, and that the Rent payable by Lessee under this Lease has been
computed, upon the assumptions that Lessor will (i) be entitled to depreciation
or cost recovery deductions ("MACRS Deductions") for Federal income tax purposes
under the Modified Accelerated Cost Recovery System provided for in Section 168
of the Internal Revenue Code of 1986, as amended (the "Code"), and depreciation
or cost recovery deductions ("State Depreciation Deductions") for state income
tax purposes for the Equipment Location, in each case on the basis that (1) each
Item of Equipment constitutes 7-year property" within the meaning of Section
168(e) of the Code, (2) the initial tax basis for each Item of Equipment will be
equal to the Total Cost, (3) deductions for each Item of Equipment will be
computed by using the method specified in Section 168(b)(1) of the Code over the
7-year recovery period described in Section 168(c) of the Code, and (4) the
applicable convention for each Item of Equipment under Section 168(d) of the
Code is the half-year convention; (ii) be entitled to deductions for Federal
income tax purposes (available in the manner and as provided by Section 163 of
the Code) for interest payable with respect to any indebtedness incurred by
Lessor in connection with any financing by Lessor of any portion of the Total
Cost of each Item of Equipment ("Interest Deductions"); and (iii) be subject to
tax for each year at a composite Federal and New York corporate income tax rate
equal to the then highest marginal rate for corporations provided for under the
Code and the laws of New York (the "Highest Marginal Tax Rate"). The MACRS
Deductions, State Depreciation Deductions and Interest Deductions are
hereinafter collectively referred to as the "Tax Benefits".
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(b) Lessee represents and warrants to Lessor that (i) each Item of
Equipment constitutes 7-year property" within the meaning of Section 168(e) of
the Code, (ii) Lessee shall not attempt to claim such Tax Benefits, (ift) at and
after the time of delivery of the Equipment to Lessee pursuant to this Lease the
Lessee shall not claim any ownership or title in and to the Equipment, and (iv)
Lessee has not, and will not, at any time after such delivery throughout the
Term of this Lease, take any action or omit to take any action (whether or not
the same is permitted or required hereunder) which will result in the loss by
Lessor of all or any part of such Tax Benefits.
(c) If, as a result of any act, omission or misrepresentation of Lessee,
(x) the Tax Benefits are lost, disallowed, deferred, eliminated, reduced,
recaptured, compromised or otherwise unavailable to Lessor, (y) for Federal,
foreign, state or local income tax purposes, any item of income, loss or
deduction with respect to any Item of Equipment is treated as derived from, or
allocable to, sources outside the United States, or (z) there shall be included
in the gross income of Lessor for Federal, state or local income tax purposes
any amount on account of any addition, modification, substitution or improvement
to or in respect of any Item of Equipment made or paid for by Lessee (any of the
foregoing being hereinafter a "Tax Loss"), then, within thirty (30) days of
Lessee's receipt of written notice from Lessor that such a Tax Loss has
occurred, Lessee shall pay to Lessor an amount which, after deduction therefrom
of all taxes to be paid in respect of the receipt thereof, will enable Lessor to
receive the same Net Economic Return (as hereinafter defined) that Lessor would
have realized on this Lease had such Tax Loss (together with any interest,
penalties or additions to tax) not occurred. Any event which, by the terms of
this Lease, requires payment by Lessee to Lessor of the Stipulated Loss Value of
the Equipment shall not constitute the act of Lessee for purpose of the
foregoing sentence.
(d) As used in this Section, the term "Net Economic Return" shall mean
Lessor's net after-tax yield, aggregate after-tax cash flow and return on
assets, based on (i) the assumptions used by Lessor in originally calculating
Rent and Stipulated Loss Value percentages, including the assumptions set forth
above (as such assumptions may have been revised pursuant to the last sentence
of this subsection) and (ii) the Highest Marginal Tax Rate actually in effect
during each year from the date of such original calculations to the date of such
Tax Loss, both dates inclusive. In the event Lessor shall suffer a Tax Loss with
respect to which Lessee is required to pay an indemnity hereunder, and the full
amount of such indemnity has been paid or provided for hereunder, the aforesaid
assumptions, without further act of the parties hereto, shall thereupon be and
be deemed to be amended, if and to the extent appropriate, to reflect such Tax
Loss.
(e) For purposes of this Section, the term "Lessor" shall include the
entity or entities, if any, with which Lessor consolidates any tax return.
Lessee acknowledges that it has neither sought nor received tax advice from
Lessor as to the availability to Lessee of any tax benefits with respect to the
Equipment. All of Lessor's rights and privileges arising from the indemnities
contained in this Lease will survive the expiration or other termination or
cancellation of this Lease. Such indemnities are expressly made for the benefit
of, and are enforceable by, Lessor and its successors and assigns.
8. STIPULATED LOSS VALUE, DISCOUNT RATE. (a) The Stipulated Loss Values
applicable to the Equipment and this Lease are as set forth on a supplement (the
"Stipulated Loss Value Supplement") prepared by Lessor.
(b) Any provision of this Lease to the contrary notwithstanding, all
present value calculations to be made with respect to the Equipment described on
this Schedule shall be made using a discount rate equal to three percent (3%).
9. PERSONAL PROPERTY TAX. Unless otherwise directed in writing by Lessor or
required by Applicable Law, Lessee will not list itself as owner of any Item of
Equipment for property tax purposes. Upon receipt by Lessee of any property tax
xxxx pertaining to such Item of Equipment from the appropriate taxing authority,
Lessee will promptly forward such property tax xxxx to Lessor. Upon receipt by
Lessor of any such property tax xxxx (whether from Lessee or directly from the
taxing authority), Lessor will pay such tax and will invoice Lessee for the
expense. Upon receipt of such invoice, Lessee will promptly reimburse Lessor for
such expense.
10. MODIFICATIONS TO MASTER LEASE. With respect to the Equipment described
on this Schedule, the Master Lease shall be modified as follows:
(a) Section 31 of the Master Lease ("Representations and Warranties of
Lessee"), is hereby amended by adding the following additional representation:
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Lessee has conducted a comprehensive review and assessment of the Lessee's
computer applications and made inquiry of the Lessee's key suppliers,
vendors and customers with respect to the "year 2000 problem" (that is, the
risk that computer applications may not be able to properly perform
date-sensitive functions after December 31, 1999) and based on that review
and inquiry, the Lessee does not believe the year 2000 problem will result
in a material adverse change in the Lessee's business condition (financial
or otherwise), operations, properties or prospects, or ability to perform
the obligations of Lessee under this Lease.
Conforming Modifications. With respect to the Equipment described on this
Schedule, the Master Lease shall be modified as follows:
(b) (1) The definitions of "Equipment" and "Term" in Section 4 of the
Master Lease ("Definitions") are hereby deleted in their entirety and the
following definitions are substituted in their place:
"Equipment " shall mean an item or items of personal property designated
from time to time by Lessee which are described on an Equipment Schedule
and which are being or will be leased by Lessee pursuant to a Lease,
together with all replacement parts, additions and accessories incorporated
therein or affixed thereto including, without limitation, any software that
is a component or integral part of, or is included or used in connection
with, any Item of Equipment, but with respect to such software, only to the
extent of Lessor's interest therein, if any. "Term" shall mean the Initial
Term or any Renewal Term, each as defined in Section 8 hereof, and any
Extended Lease Term or Interim Term as defined in an Equipment Schedule.
(c) The following shall be inserted as the penultimate sentence of Section
11 of the Master Lease ("Use; Alterations"):
All such alterations, additions, modifications or improvements shall
immediately, and without further act, be deemed to constitute Items of
Equipment and be fully subject to this Lease as if originally leased
hereunder.
(d) The following shall be inserted as the penultimate sentence of Section
12 of the Master Lease ("Repairs and Maintenance"):
Upon installation, attachment or incorporation in, on or into such Item of
Equipment, such replacement part shall immediately, and without further
act, be deemed to constitute an Item of Equipment and be fully subject to
this Lease as if originally leased hereunder.
(e) Section 22 of the Master Lease ("Events of Default") is hereby amended
as follows:
(i) with respect to Section 22(a), the term "Event of Default" shall also
mean any of the following which are hereby added as new subparts: (10)
Lessee 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; (11) a change in control occurs in
Lessee or any Guarantor; or (12) the death or dissolution of Lessee or any
Guarantor;
(ii) with respect to Section 22(b)(4), the word "terminate" is hereby
deleted and the words "cancel or terminate" are hereby substituted in its
place;
(iii) with respect to Section 22(b)(5), the existing section is hereby
deleted in its entirety and the following is substituted in its place:
(5) demand that Lessee, and Lessee shall, upon written demand of Lessor
and at Lessee's expense forthwith return all Items of Equipment to
Lessor in the manner and condition required by Section 13 hereof,
provided, however, that Lessee shall remain and be liable to Lessor for
any amounts provided for herein or other damages resulting from the
Equipment not being in the condition required by Section 12 hereof, and
otherwise in accordance with all of the provisions of this Lease,
except those provisions relating to periods of notice;
(iv) with respect to Section 22(b)(6), the word "termination" is hereby
deleted and the words "cancellation or termination" are hereby substituted
in its place; and
(v) Beginning with Section 22(b)(7) inclusive, the remainder of Section
22(b) is hereby deleted in its entirety and the
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following is substituted in its place:
(7) by written notice to Lessee specifying a payment date (the "Remedy
Date") demand that Lessee forthwith return all Items of Equipment to Lessor in
the manner and condition required by Section 22(b)(5) hereof and, in addition,
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, any
unpaid Rent due prior to the Remedy Date plus whichever of the following amounts
Lessor, in its sole discretion, shall specify in such notice (together with
interest on such amount at the Default Rate from the Remedy Date to the date of
actual payment): (i) an amount, with respect to an Item of Equipment, equal to
the Rent payable for such Item of Equipment for the remainder of the then
current Term thereof, after discounting such Rent to present worth as of the
Remedy Date on the basis of a per annum rate of discount equal to three percent
(3%) from the respective dates upon which such Rent would have been paid had
this Lease not been canceled or terminated; or (ii) the Stipulated Loss Value,
computed as of the Remedy Date or, if the Remedy Date is not a Rent Payment
Date, the Rent Payment Date next following the Remedy Date (provided, however,
that, with respect to any proceeds actually received by Lessor for any Item of
Equipment returned to or repossessed by Lessor, Lessor agrees that it shall
first apply such proceeds to satisfy Lessee's obligation to pay the Stipulated
Loss Value or, if Lessor has received payment in full of the Stipulated Loss
Value from Lessee, Lessor shall remit such proceeds to Lessee (after first
deducting any Lessor Expense) up to the amount of the Stipulated Loss Value; (8)
cause Lessee, at its expense, to promptly assemble any and all Items of
Equipment and return the same to Lessor at such place as Lessor may designate in
writing; and (9) exercise any other right or remedy available to Lessor under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof or to rescind this Lease. In
addition, Lessee shall be liable, except as otherwise provided above, for any
and all unpaid Rent due hereunder before or during the exercise of any of the
foregoing remedies, and for reasonable legal fees and other costs and expenses
incurred by reason of the occurrence of any Event of Default or the exercise of
Lessor's remedies with respect thereto. If an Event of Default occurs, Lessee
hereby agrees that ten (10) days prior notice to Lessee of (A) any public sale
or (B) the time after which a private sale may be negotiated shall be
conclusively deemed reasonable and, to the extent permitted by Applicable Law,
Lessee waives all rights and defenses with respect to such disposition of the
Equipment. None of Lessor's rights or remedies hereunder are intended to be
exclusive of, but each shall be cumulative and in addition to any other right or
remedy referred to hereunder or otherwise available to Lessor at laiv or in
equity, and no express or implied waiver by Lessor of any Event of Default shall
constitute a waiver of any other Event of Default or a waiver of any of Lessor's
rights.
MISCELLANEOUS TERMS & CONDITIONS
11. ADDITIONAL MAINTENANCE REQUIREMENTS. Section 13 of the Lease ("Return
of Equipment") shall be deleted in its entirety and the following substituted in
its place:
13. Return of Equipment. (a) Upon the expiration of the Term of any Lease
or upon demand by Lessor pursuant to Section 22 hereof, Lessee, at its sole
expense, shall return all of the Equipment leased under the Lease by delivering
it in a manner consistent with the manufacturer's recommendations and practices
to such place or on board such carrier (packed properly and in accordance with
the manufacturer's instructions) as Lessor shall specify. Lessee agrees that the
Equipment, when returned, shall be free and clear of all Liens, and in the same
condition as when delivered to Lessee, reasonable wear and tear excepted.
Reasonable wear and tear shall mean that each item of the Equipment has been
maintained by Lessee in "Average Saleable Condition" (as hereinafter defined)
and that all components of the Equipment have been properly serviced, following
the manufacturer's written operating and servicing procedures, such that the
Equipment is eligible for a manufacturer's standard, full service maintenance
contract without Lessor's incurring any expense to repair or rehabilitate the
Equipment. If, in the opinion of Lessor, any item of the Equipment fails to meet
the standards set forth in this Section 13, Lessee agrees to pay on demand all
costs and expenses incurred in connection with repairing the Equipment,
restoring it to such condition so as to meet such standards and assembling and
delivering such Item of Equipment pursuant to Lessor's instructions. If Lessee
fails to return any Item of Equipment as required hereunder, then, all of
Lessee's obligations under this Lease (including, without limitation, Lessee's
obligation to pay Rent for such Item of Equipment at the rental then applicable
under this Lease) shall continue in full force and effect until such Item of
Equipment shall have been returned in the condition required hereunder.
(b) Lessee shall give Lessor at least one hundred eighty (180) but not more than
two hundred seventy (270) days written notice that Lessee is returning the
Equipment as provided for above (the "Return Notice") and shall include with
such notice, all of the following:
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(i) a detailed inventory of all components of the Equipment including
without limitation all of the model and serial numbers of any components;
(ii) a complete set of current and up to date service and operating
manuals for each Item of Equipment;
(iii) a complete set of current and up to date maintenance logs and
other appropriate documentation detailing the Equipment's then current
configuration (including a description of all replacements and additions
thereto made during the Term of the Lease) and all operating requirements
and technical data regarding the setup, use and operation of the Equipment;
(iv) an in-depth field service report (the "Report") detailing the
results of an inspection conducted by a representative of the manufacturer
or a qualified equipment maintenance provider acceptable to Lessor
certifying that the Equipment has been properly inspected, examined, tested
and is operating within the manufacturer's specification and addressing, at
a minimum the following areas:
(A) comprehensive physical inspection;
(B) testing of all material and workmanship of the Equipment; and
(C) conformation of all Equipment operations to Applicable Law and
confirming that the Equipment is otherwise in Average Saleable
Condition (as hereinafter defined).
If the Report discloses that any of the material, workmanship or Equipment
does not meet or, does not operate within, the manufacturer's
specifications or any Applicable Law, Lessee shall, at its sole expense,
take all necessary corrective measures and submit a second Report from the
same inspector evidencing that the Equipment has been brought into
conformity with the manufacturer's specifications and Applicable Law.
(c) "Average Saleable Condition" shall mean that all of the following minimum
standards have been met:
Machine Tool Equipment
(i) The Equipment has been or will be disassembled according to
manufacturer's recommendations and by a licensed rigger/erector
specializing in the Equipment, with any transportation devices, such as
metal skids, lifting slings, and brackets which were with the machine when
it originally arrived, included, and, in addition, all proper blueprinting,
mapping, tagging and labeling of each individual part including cables,
electrical apparatus and wires have been included, all process fluids
and/or any hazardous materials have been removed from the Equipment and
disposed of in accordance with Applicable Law.
(ii) All manuals, maintenance records, log books, plans, drawings and
schematics, inspection and overhaul records, operating requirements or
other materials pertinent to the Equipment's operation, maintenance,
assembly and disassembly have been assembled and are ready to be returned
to Lessor.
(iii) There is no structural or mechanical damage, and all frames,
structural members, accessories and attachments are structurally sound
without breaks or cracks and in compliance with all federal, state, local
and other regulatory requirements.
(iv) The Equipment is able to perform its required tasks effectively
without repair including but not limited to electronic, electrical and
mechanical controls, pumps, motors, belts, hoses, pins, bushings, measuring
devices, screws, barrels, ways, rams, and clamps, and is operational and in
compliance with all Applicable Law and is within manufacturer's design
performance characteristics and tolerances.
(v) The Equipment is clean and rust free, and sumps and tanks are
clean and dry.
(vi) Equipment with predictable or scheduled replacements or overhaul
fives has not less than 50% useful life remaining before the next such
replacement, overhaul, recalibration or rebuild.
(vii) All major components and all wear points, including, but not
limited to electronic and mechanical controls and pumps, motors, belts,
hoses, pins, bushings, measuring devices, screws, barrels, ways, cams,
clamps and supports, are within manufacturer's design performance
characteristics and tolerances and are capable of performing as originally
intended by the manufacturer and in a safe manner.
(viii) The Equipment is complete, with no missing components or
attachments.
(ix) The Equipment has been lubricated according to the maintenance
manual and/or lubrication schedule recommended by the manufacturer, and
written records of the lubrication service have been kept, dated, and
signed by the appropriate authority.
(x) All internal fluids, such as lube oil and hydraulic oil, have been
filled to operating levels, all filler caps have been secured and all
disconnected hoses have been sealed to avoid accidental spillage.
(d) In addition to all other rights of Lessor under the Lease, Lessor shall have
the right to attempt to resell or auction the
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Equipment from Lessee's facility with the Lessee's full cooperation and
assistance, for a period commencing with Lessor's receipt of the Return Notice
and ending one hundred eighty (180) days after the Initial Term Expiration Date.
Lessee agrees to pay the reasonable costs and expenses of such sale or auction
(and all storage prior thereto), and agrees that the Equipment shall remain
capable of operation during this period. Lessee shall provide adequate
electrical power, lighting, heat, water and all other requirements sufficient to
allow for normal maintenance and for demonstrations of the Equipment to any
potential buyer.
12. GOVERNING LAW. This Schedule 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 without giving effect to any choice of law or conflict of laws
provision or rule (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of New York.
13. COUNTERPARTS. This Schedule may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together one and the same instrument.
14. MORE THAN ONE LESSEE. If more than one person or entity executes this
Schedule, or any other Lease Documents executed in connection herewith, as
"Lessee," the obligations of "Lessee" contained herein and therein shall be
deemed joint and several and all references to "Lessee" shall apply both
individually and jointly.
15. RELATIONSHIP TO MASTER LEASE; FURTHER ASSURANCES. This Schedule shall
be construed in connection with and as part of this Lease, and all terms
contained in the Master Lease are hereby incorporated herein by reference with
the same force and effect as if such terms were fully stated herein. By
execution of this Schedule, Lessee and Lessor reaffirm all terms of the Master
Lease except as they may be modified hereby. To the extent that any of the terms
of this Schedule are contrary to or inconsistent with any terms of the Master
Lease, the terms of this Schedule shall govern. LESSEE HEREBY CERTIFIES TO
LESSOR THAT THE REPRESENTATIONS AND WARRANTIES MADE BY LESSEE IN THE MASTER
LEASE (INCLUDING, WITHOUT LIMITATION, SECTION 31 THEREOF) ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS SCHEDULE WITH THE SAME EFFECT AS
THOUGH MADE ON AND AS OF SUCH DATE. Lessee shall take such additional actions
and execute and deliver such additional documents as Lessor shall deem necessary
from time to time to effectuate the terms of this Lease.
16. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE AS ITS
TRUE AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST, TO
EXECUTE AND FILE ON BEHALF OF LESSEE ALL UCC FINANCING STATEMENTS WHICH IN
LESSOR'S SOLE DISCRETION ARE NECESSARY OR PROPER TO SECURE LESSOR'S INTEREST IN
THE 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 paragraph.
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9
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed and delivered on the day and year first above written.
LESSOR: LESSEE:
KEYCORP LEASING, AUTOCAM CORPORATION
A DIVISION OF KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President Title: Chief Financial Officer
COUNTERPART NO. 1 OF 1 SERIALLY NUMBERED MANUALLY EXECUTED COUNTERPARTS. TO THE
EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM COMMERCIAL
CODE, NO SECURITY INTEREST MAY BE CREATED THROUGH THE TRANSFER AND POSSESSION OF
ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
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Exhibit A
EQUIPMENT DESCRIPTION
LESSOR: KEYCORP LEASING,
A DIVISION OF KEY CORPORATE CAPITAL INC.
LESSEE: AUTOCAM CORPORATION
LEASE: Equipment Schedule No. 05 dated as of May 21, 1999 to
Master Equipment Lease Agreement Dated as of July 10, 1995
VENDOR: SUGINO CORP.
0000 XXXXX XXXX
XXXXXXXXXX, XX 00000
QUANTITY: DESCRIPTION: SERIAL NO. INVOICE NO.
--------- ------------ ---------- -----------
2 JFC-V622 GMTE JET FLEX CENTER 963678
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11
EQUIPMENT SCHEDULE NO. 06 dated as of August 23, 1999 (this "Schedule")
between KEYCORP LEASING, A DIVISION OF KEY CORPORATE CAPITAL INC. ("Lessor"),
and AUTOCAM CORPORATION, a Michigan corporation ("Lessee").
INTRODUCTION:
Lessor and Lessee have heretofore entered into that certain Master
Equipment Lease Agreement dated as of July 10, 1995 (the "Master Lease"; the
Master Lease and this Schedule are hereinafter collectively referred to as, this
"Lease"). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings specified in the Master Lease. The Master Lease provides for
the execution and delivery of a Schedule substantially in the form hereof for
the purpose of confirming the acceptance and lease of the Equipment under this
Lease as and when delivered by Lessor to Lessee in accordance with the terms
thereof and hereof.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
EQUIPMENT & INVOICING TERMS
1 EQUIPMENT. Pursuant to the terms and conditions of this Lease, Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, the
equipment listed on Exhibit A attached hereto (the "Equipment"). The
aggregate Total Cost of such Equipment is $1,599,227.48.
2 TERM. The Initial Term of this Lease with respect to the Equipment
described on this Schedule shall commence on the date on which such
Equipment is delivered to Lessee, and, unless earlier terminated as
provided herein, shall expire on a date which is ninety six (96) months
after the Rent Commencement Date (the "Initial Term Expiration Date").
3 RENT PAYMENT DATES; RENT. Lessee hereby agrees to pay Rent for the
Equipment throughout the Initial Term in ninety six (96) consecutive
monthly installments payable in arrears on the date which is one (1) month
after the Rent Commencement Date and on the same day of each month
thereafter (each, a "Rent Payment Date"). Each such installment of Rent
shall be in an amount equal to $19,941.05. In addition, Lessee hereby
agrees to pay Rent for the period commencing on the Interim Rent
Commencement Date (as defined below) and ending on the day before the Rent
Commencement Date in an amount equal to $664.71 per day, and agrees that,
with respect to the Equipment described on this Schedule, the following
modifications are hereby made to the Master Lease: (a) "Rent Commencement
Date- shall mean, with respect to an Equipment Group, the first (1st) day
of the first month following the date of the Certificate of Acceptance for
such Equipment Group, (b) "Interim Rent Commencement Date" shall mean, with
respect to an Equipment Group, the date of the Certificate of Acceptance
for such Equipment Group, or such later date (prior to the Rent
Commencement Date) as determined by Lessor in its sole discretion, (c)
Section 6 of the Master Lease ("Ordering Equipment") is hereby amended to
delete the term "Rent Commencement Date" and to substitute the term
"Interim Rent Commencement Date" in its place and (d) Section 22(a)(9) of
the Master Lease ("Events of Default; Remedies") is hereby amended to
delete the term "Rent Commencement Date" and to substitute the phrase "Rent
Commencement Date or Interim Rent Commencement Date, as the case may be,"
in its place.
4 EQUIPMENT LOCATION; BILLING ADDRESS. The Equipment described on this
Schedule shall be located at, and except as otherwise provided in this
Lease, shall not be removed from, the following address: 0000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, XX 00000. The billing address of Lessee is as follows:
AUTOCAM CORPORATION, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
TRANSACTION TYPE TERMS
5 PURCHASE, RENEWAL AND OPTION TERMS.
(a) FMV. With respect to the Equipment described on this Schedule, Section 32
of the Master Lease ("Renewal and Purchase
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Options") is hereby deleted in its entirety and the following is substituted in
its place:
So long as no Default or Event of Default shall have occurred and be
continuing and Lessee shall have given Lessor at least one hundred eighty
(180) but not more than two hundred seventy (270) days prior written notice
(the "Option Notice"), Lessee shall have the following purchase and renewal
options at the expiration of the Initial Term, or any Renewal Term, to:
(i) purchase all, but not less than all, Items of Equipment for a purchase
price (the "Purchase Option Price") equal to the then Fair Market Sale
Value thereof; (ii) renew this Lease on a month to month basis at the same
Rent payable at the expiration of such Initial Term or Renewal Term, as the
case may be; (iii) renew this Lease for a minimum period of not less than
twelve (12) consecutive months at the then current Fair Market Rental
Value; or (iv) return such Equipment to Lessor pursuant to, and in the
condition required by, the Lease. If Lessee fails to give Lessor the Option
Notice, Lessee shall be deemed to have chosen option (ii) above.
Payment of the Purchase Option Price, applicable sales taxes, together with
all other amounts due and owing by Lessee under the Lease (including, without
limitation, Rent) during such Initial Term and Renewal Term shall be made on the
last day of the Initial Term or Renewal Term, as the case may be, in immediately
available funds against delivery of a xxxx of sale transferring to Lessee all
right, title and interest of Lessor in and to the Equipment ON AN "AS IS" "WHERE
IS" BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. LESSOR MAY
SPECIFICALLY DISCLAIM ANY SUCH REPRESENTATIONS AND WARRANTIES.
(b) Early Buyout Option. So long as no Default or Event of Default shall have
occurred and be continuing, Lessee shall have the option to purchase all, but
not less than all, Items of Equipment on the date which is eighty four (84)
months after the Rent Commencement Date (the "EBO Date") at a price (the "EBO
Price") equal to thirty one and fifty one hundredths percent (31.51%) of the
Total Cost of the Equipment, plus any applicable sales taxes. For Lessee to
exercise its option hereunder, Lessee shall notify Lessor in writing of its
desire to effect such option at least ninety (90) days (but not more than one
hundred eighty (180) days) prior to the EBO Date. Such notice shall be
irrevocable. The EBO Price represents the parties present best estimate of the
fair market value of the Equipment on the EBO Date determined by using
commercially reasonable methods which are standard in the industry. Payment of
the EBO Price, applicable sales taxes, together with all other amounts due and
owing by Lessee under the Lease (including, without limitation, Rent) on or
before the EBO Date, shall be made on the EBO Date in immediately available
funds. Thereafter, upon Lessee's written request, Lessor shall deliver to Lessee
a xxxx of sale transferring to Lessee all right, title and interest of Lessor in
and to the Equipment ON AN "AS IS" "WHERE IS" BASIS, WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER. If Lessee shall fail to pay all
amounts required to be paid under the Lease on the EBO Date, the Lease shall
continue in full force and effect and Lessee agrees to reimburse Lessor for all
reasonable costs, expenses and liabilities incurred in connection therewith.
6. NATURE OF TRANSACTION; TRUE LEASE. (a) It is the express intent of the
parties that this Lease constitute a true lease and not a sale of the Equipment
Title to the Equipment shall at all times remain in Lessor, and Lessee shall
acquire no ownership, title, property, right, equity, or interest in the
Equipment other than its leasehold interest solely as Lessee subject to all the
terms and conditions hereof. To the extent that Article 2A ("Article 2A") of the
Uniform Commercial Code ("UCC") applies to the characterization of this Lease,
the parties hereby agree that this Lease is a "Finance Lease" as defined
therein. Lessee acknowledges: (i) that Lessee has selected the "Supplier" (as
defined in the UCC) and has directed Lessor to purchase the Equipment from the
Supplier in connection with this Lease, and (ii) that Lessee has been informed
in writing in this Lease, before Lessee's execution of this Lease, that Lessee
is entitled under Article 2A to the promises and warranties, including those of
any third party, provided to Lessor by the Supplier in connection with or as
part of the Purchase Agreement, and that Lessee may communicate with the
Supplier and receive an accurate and complete statement of those promises and
warranties, including any disclaimers and limitations of them or of remedies.
The filing of UCC financing statements pursuant to Section 34 of the Master
Lease is precautionary and shall not be deemed to have any effect on the
characterization of this Lease. NOTWITHSTANDING THE FOREGOING, LESSOR HAS NOT
MADE, AND HEREBY DISCLAIMS ANY ADVICE, REPRESENTATIONS, WARRANTIES AND
COVENANTS, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO ANY LEGAL, ECONOMIC,
ACCOUNTING, TAX OR OTHER EFFECTS OF THE LEASE AND THE TRANSACTION(S)
CONTEMPLATED THEREBY, AND LESSEE HEREBY DISCLAIMS ANY RELIANCE ON ANY SUCH
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WARRANTIES, STATEMENTS OR REPRESENTATIONS MADE BY LESSOR WITH RESPECT
THERETO.
(b) Notwithstanding the express intent of Lessor and Lessee that this
agreement constitute a true leage and not a sale of the Equipment, should a
court of competent jurisdiction determine that this agreement is not a true
lease, but rather one intended as security, then solely in that event and for
the expressly limited purposes thereof, Lessee shall be deemed to have hereby
granted Lessor a security interest in the Equipment and all accessions,
substitutions and replacements thereto and therefor, and proceeds (cash and
non-cash), including, without limitation, insurance proceeds thereof (but
without power of sale), to secure the prompt payment and performance as and when
due of all obligations and indebtedness of Lessee, now existing or hereafter
created, to Lessee pursuant to this Lease or otherwise. In furtherance of the
foregoing, Lessee shall execute and deliver to Lessor, to be filed at Lessee's
expense, Uniform Commercial Code financing statements, statements of amendment
and statements of continuation as reasonably may be required by Lessor to
perfect and maintain perfected such security interest.
(c) In the event that the Supplier erroneously invoices Lessee for the
Equipment, Lessee agrees to forward said invoice to Lessor immediately. Lessee
acknowledges that the Equipment is, and shall at all times remain, the property
of Lessor, and that Lessee has no right, title or interest therein or thereto
except as expressly set forth in this Lease.
7. TAX INDEMNIFICATION. (a) Lessee acknowledges that Lessor has executed
this Lease, and that the Rent payable by Lessee under this Lease has been
computed, upon the assumptions that Lessor will (i) be entitled to depreciation
or cost recovery deductions ("MACRS Deductions") for Federal income tax purposes
under the Modified Accelerated Cost Recovery System provided for in Section 168
of the Internal Revenue Code of 1986, as amended (the "Code"), and depreciation
or cost recovery deductions ("State Depreciation Deductions") for state income
tax purposes for the Equipment Location, in each case on the basis that (1) each
Item of Equipment constitutes 7-year property" within the meaning of Section
168(e) of the Code, (2) the initial tax basis for each Item of Equipment will be
equal to the Total Cost, (3) deductions for each Item of Equipment will be
computed by using the method specified in Section 168(b)(1) of the Code over the
7-year recovery period described in Section 168(c) of the Code, and (4) the
applicable convention for each Item of Equipment under Section 168(d) of the
Code is the half-year convention; (ii) be entitled to deductions for Federal
income tax purposes (available in the manner and as provided by Section 163 of
the Code) for interest payable with respect to any indebtedness incurred by
Lessor in connection with any financing by Lessor of any portion of the Total
Cost of each Item of Equipment ("Interest Deductions"); and (iii) be subject to
tax for each year at a composite Federal and New York corporate income tax rate
equal to the then highest marginal rate for corporations provided for under the
Code and the laws of New York (the "Highest Marginal Tax Rate"). The MACRS
Deductions, State Depreciation Deductions and Interest Deductions are
hereinafter collectively referred to as the "Tax Benefits".
(b) Lessee represents and warrants to Lessor that (i) each Item of
Equipment constitutes 7-year property" within the meaning of Section 168(e) of
the Code, (ii) Lessee shall not attempt to claim such Tax Benefits, (ift) at and
after the time of delivery of the Equipment to Lessee pursuant to this Lease the
Lessee shall not claim any ownership or title in and to the Equipment, and (iv)
Lessee has not, and will not, at any time after such delivery throughout the
Term of this Lease, take any action or omit to take any action (whether or not
the same is permitted or required hereunder) which will result in the loss by
Lessor of all or any part of such Tax Benefits.
(c) If, as a result of any act, omission or misrepresentation of Lessee,
(x) the Tax Benefits are lost, disallowed, deferred, eliminated, reduced,
recaptured, compromised or otherwise unavailable to Lessor, (y) for Federal,
foreign, state or local income tax purposes, any item of income, loss or
deduction with respect to any Item of Equipment is treated as derived from, or
allocable to, sources outside the United States, or (z) there shall be included
in the gross income of Lessor for Federal, state or local income tax purposes
any amount on account of any addition, modification, substitution or improvement
to or in respect of any Item of Equipment made or paid for by Lessee (any of the
foregoing being hereinafter a "Tax Loss"), then, within thirty (30) days of
Lessee's receipt of written notice from Lessor that such a Tax Loss has
occurred, Lessee shall pay to Lessor an amount which, after deduction therefrom
of all taxes to be paid in respect of the receipt thereof, will enable Lessor to
receive the same Net Economic Return (as hereinafter defined) that Lessor would
have realized on this Lease had such Tax Loss (together with any interest,
penalties or additions to tax) not occurred. Any event which, by the terms of
this Lease, requires payment by Lessee to Lessor of the Stipulated Loss Value of
the Equipment shall not constitute the act of Lessee for purpose of the
foregoing sentence.
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(d) As used in this Section, the term "Net Economic Return" shall mean
Lessor's net after-tax yield, aggregate after-tax cash flow and return on
assets, based on (i) the assumptions used by Lessor in originally calculating
Rent and Stipulated Loss Value percentages, including the assumptions set forth
above (as such assumptions may have been revised pursuant to the last sentence
of this subsection) and (ii) the Highest Marginal Tax Rate actually in effect
during each year from the date of such original calculations to the date of such
Tax Loss, both dates inclusive. In the event Lessor shall suffer a Tax Loss with
respect to which Lessee is required to pay an indemnity hereunder, and the full
amount of such indemnity has been paid or provided for hereunder, the aforesaid
assumptions, without further act of the parties hereto, shall thereupon be and
be deemed to be amended, if and to the extent appropriate, to reflect such Tax
Loss.
(e) For purposes of this Section, the term "Lessor" shall include the
entity or entities, if any, with which Lessor consolidates any tax return.
Lessee acknowledges that it has neither sought nor received tax advice from
Lessor as to the availability to Lessee of any tax benefits with respect to the
Equipment. All of Lessor's rights and privileges arising from the indemnities
contained in this Lease will survive the expiration or other termination or
cancellation of this Lease. Such indemnities are expressly made for the benefit
of, and are enforceable by, Lessor and its successors and assigns.
8. STIPULATED LOSS VALUE, DISCOUNT RATE. (a) The Stipulated Loss Values
applicable to the Equipment and this Lease are as set forth on a supplement (the
"Stipulated Loss Value Supplement") prepared by Lessor.
(b) Any provision of this Lease to the contrary notwithstanding, all
present value calculations to be made with respect to the Equipment described on
this Schedule shall be made using a discount rate equal to three percent (3%).
9. PERSONAL PROPERTY TAX. Unless otherwise directed in writing by Lessor or
required by Applicable Law, Lessee will not list itself as owner of any Item of
Equipment for property tax purposes. Upon receipt by Lessee of any property tax
xxxx pertaining to such Item of Equipment from the appropriate taxing authority,
Lessee will promptly forward such property tax xxxx to Lessor. Upon receipt by
Lessor of any such property tax xxxx (whether from Lessee or directly from the
taxing authority), Lessor will pay such tax and will invoice Lessee for the
expense. Upon receipt of such invoice, Lessee will promptly reimburse Lessor for
such expense.
10. MODIFICATIONS TO MASTER LEASE. With respect to the Equipment described
on this Schedule, the Master Lease shall be modified as follows:
(a) Section 31 of the Master Lease ("Representations and Warranties of
Lessee"), is hereby amended by adding the following additional representation:
Lessee has conducted a comprehensive review and assessment of the Lessee's
computer applications and made inquiry of the Lessee's key suppliers,
vendors and customers with respect to the "year 2000 problem" (that is, the
risk that computer applications may not be able to properly perform
date-sensitive functions after December 31, 1999) and based on that review
and inquiry, the Lessee does not believe the year 2000 problem wffl result
in a material adverse change in the Lessee's business condition (financial
or otherwise), operations, properties or prospects, or ability to perform
the obligations of Lessee under this Lease.
Conforming Modifications. With respect to the Equipment described on this
Schedule, the Master Lease shall be modified as follows:
(b) (1) The definitions of "Equipment" and "Term" in Section 4 of the
Master Lease ("Definitions") are hereby deleted in their entirety and the
following definitions are substituted in their place:
"Equipment " shall mean an item or items of personal property designated
from time to time by Lessee which are described on an Equipment Schedule
and which are being or will be leased by Lessee pursuant to a Lease,
together with all replacement parts, additions and accessories incorporated
therein or affixed thereto including, without limitation, any software that
is a component or integral part of, or is included or used in connection
with, any Item of Equipment, but with respect to such software, only to the
extent of Lessor's interest therein, if any.
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"Term" shall mean the Initial Term or any Renewal Term, each as defined in
Section 8 hereof, and any Extended Lease Term or Interim Term as defined in an
Equipment Schedule.
(2) All references to the defined term "Late Payment Rate" shall be
deemed to be references to the term "Default Rate", and the term "Default Rate"
shall mean an annual interest rate equal to the lesser of 18% or the maximum
interest rate permitted by Applicable Law.
(c) The following shall be inserted as the penultimate sentence of Section
11 of the Master Lease ("Use; Alterations"):
All such alterations, additions, modifications or improvements shall
immediately, and without further act, be deemed to constitute Items of
Equipment and be fully subject to this Lease as if originally leased
hereunder.
(d) The following shall be inserted as the penultimate sentence of Section
12 of the Master Lease ("Repairs and Maintenance"):
Upon installation, attachment or incorporation in, on or into such Item of
Equipment, such replacement part shall immediately, and without further
act, be deemed to constitute an Item of Equipment and be fully subject to
this Lease as if originally leased hereunder.
(e) Section 22 of the Master Lease ("Events of Default") is hereby amended
as follows:
(i) with respect to Section 22(a), the term "Event of Default" shall also
mean any of the following which are hereby added as new subparts: (10)
Lessee 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; (11) a change in control occurs in
Lessee or any Guarantor; or (12) the death or dissolution of Lessee or any
Guarantor;
(ii) with respect to Section 22(b)(4), the word "terminate" is hereby
deleted and the words "cancel or terminate" are hereby substituted in its
place;
(iii) with respect to Section 22(b)(5), the existing section is hereby
deleted in its entirety and the following is substituted in its place:
(5) demand that Lessee, and Lessee shall, upon written demand of Lessor
and at Lessee's expense forthwith return all Items of Equipment to
Lessor in the manner and condition required by Section 13 hereof,
provided, however, that Lessee shall remain and be liable to Lessor for
any amounts provided for herein or other damages resulting from the
Equipment not being in the condition required by Section 12 hereof, and
otherwise in accordance with all of the provisions of this Lease,
except those provisions relating to periods of notice;
(iv) with respect to Section 22(b)(6), the word "termination" is hereby
deleted and the words "cancellation or termination" are hereby substituted
in its place; and
(v) Beginning with Section 22(b)(7) inclusive, the remainder of Section
22(b) is hereby deleted in its entirety and the following is substituted in
its place:
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(7) by written notice to Lessee specifying a payment date (the "Remedy
Date") demand that Lessee forthwith return all Items of Equipment to Lessor in
the manner and condition required by Section 22(b)(5) hereof and, in addition,
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, any
unpaid Rent due prior to the Remedy Date plus whichever of the following amounts
Lessor, in its sole discretion, shall specify in such notice (together with
interest on such amount at the Default Rate from the Remedy Date to the date of
actual payment): (i) an amount, with respect to an Item of Equipment, equal to
the Rent payable for such Item of Equipment for the remainder of the then
current Term thereof, after discounting such Rent to present worth as of the
Remedy Date on the basis of a per annum rate of discount equal to three percent
(3%) from the respective dates upon which such Rent would have been paid had
this Lease not been canceled or terminated; or (ii) the Stipulated Loss Value,
computed as of the Remedy Date or, if the Remedy Date is not a Rent Payment
Date, the Rent Payment Date next following the Remedy Date (provided, however,
that, with respect to any proceeds actually received by Lessor for any Item of
Equipment returned to or repossessed by Lessor, Lessor agrees that it shall
first apply such proceeds to satisfy Lessee's obligation to pay the Stipulated
Loss Value or, if Lessor has received payment in full of the Stipulated Loss
Value from Lessee, Lessor shall remit such proceeds to Lessee (after first
deducting any Lessor Expense) up to the amount of the Stipulated Loss Value; (8)
cause Lessee, at its expense, to promptly assemble any and all Items of
Equipment and return the same to Lessor at such place as Lessor may designate in
writing; and (9) exercise any other right or remedy available to Lessor under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof or to rescind this Lease. In
addition, Lessee shall be liable, except as otherwise provided above, for any
and all unpaid Rent due hereunder before or during the exercise of any of the
foregoing remedies, and for reasonable legal fees and other costs and expenses
incurred by reason of the occurrence of any Event of Default or the exercise of
Lessor's remedies with respect thereto. If an Event of Default occurs, Lessee
hereby agrees that ten (10) days prior notice to Lessee of (A) any public sale
or (B) the time after which a private sale may be negotiated shall be
conclusively deemed reasonable and, to the extent permitted by Applicable Law,
Lessee waives all rights and defenses with respect to such disposition of the
Equipment. None of Lessor's rights or remedies hereunder are intended to be
exclusive of, but each shall be cumulative and in addition to any other right or
remedy referred to hereunder or otherwise available to Lessor at laiv or in
equity, and no express or implied waiver by Lessor of any Event of Default shall
constitute a waiver of any other Event of Default or a waiver of any of Lessor's
rights.
MISCELLANEOUS TERMS & CONDITIONS
11. ADDITIONAL MAINTENANCE REQUIREMENTS. Section 13 of the Lease ("Return
of Equipment") shall be deleted in its entirety and the following substituted in
its place:
13. RETURN OF EQUIPMENT. (a) Upon the expiration of the Term of any Lease
or upon demand by Lessor pursuant to Section 22 hereof, Lessee, at its sole
expense, shall return all of the Equipment leased under the Lease by
delivering it in a manner consistent with the manufacturer's
recommendations and practices to such place or on board such carrier
(packed properly and in accordance with the manufacturer's instructions) as
Lessor shall specify. Lessee agrees that the Equipment, when returned,
shall be free and clear of all Liens, and in the same condition as when
delivered to Lessee, reasonable wear and tear excepted. Reasonable wear and
tear shall mean that each item of the Equipment has been maintained by
Lessee in "Average Saleable Condition" (as hereinafter defined) and that
all components of the Equipment have been properly serviced, following the
manufacturer's written operating and servicing procedures, such that the
Equipment is eligible for a manufacturer's standard, full service
maintenance contract without Lessor's incurring any expense to repair or
rehabilitate the Equipment. If, in the opinion of Lessor, any item of the
Equipment fails to meet the standards set forth in this Section 13, Lessee
agrees to pay on demand all costs and expenses incurred in connection with
repairing the Equipment, restoring it to such condition so as to meet such
standards and assembling and delivering such Item of Equipment pursuant to
Lessor's instructions. If Lessee fails to return any Item of Equipment as
required hereunder, then, all of Lessee's obligations under this Lease
(including, without limitation, Lessee's obligation to pay Rent for such
Item of Equipment at the rental then applicable under this Lease) shall
continue in full force and effect until such Item of Equipment shall have
been returned in the condition required hereunder.
(b) Lessee shall give Lessor at least one hundred eighty (180) but not more
than two hundred seventy (270) days written notice that Lessee is returning
the Equipment as provided for above (the "Return Notice") and shall include
with such notice, all of the following:
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(i) a detailed inventory of all components of the Equipment including
without limitation all of the model and serial numbers of any components;
(ii) a complete set of current and up to date service and operating
manuals for each Item of Equipment;
(iii) a complete set of current and up to date maintenance logs and
other appropriate documentation detailing the Equipment's then current
configuration (including a description of all replacements and additions
thereto made during the Term of the Lease) and all operating requirements
and technical data regarding the setup, use and operation of the Equipment;
(iv) an in-depth field service report (the "Report") detailing the
results of an inspection conducted by a representative of the manufacturer
or a qualified equipment maintenance provider acceptable to Lessor
certifying that the Equipment has been properly inspected, examined, tested
and is operating within the manufacturer's specification and addressing, at
a minimum the following areas:
(A) comprehensive physical inspection;
(B) testing of all material and workmanship of the Equipment; and
(C) conformation of all Equipment operations to Applicable Law and
confirming that the Equipment is otherwise in Average Saleable Condition
(as hereinafter defined).
If the Report discloses that any of the material, workmanship or Equipment
does not meet or, does not operate within, the manufacturer's
specifications or any Applicable Law, Lessee shall, at its sole expense,
take all necessary corrective measures and submit a second Report from the
same inspector evidencing that the Equipment has been brought into
conformity with the manufacturer's specifications and Applicable Law.
(c) "Average Saleable Condition" shall mean that all of the following minimum
standards have been met:
Machine Tool Equipment
(i) The Equipment has been or will be disassembled according to
manufacturer's recommendations and by a licensed rigger/erector
specializing in the Equipment, with any transportation devices, such as
metal skids, lifting slings, and brackets which were with the machine when
it originally arrived, included, and, in addition, all proper blueprinting,
mapping, tagging and labeling of each individual part including cables,
electrical apparatus and wires have been included, all process fluids
and/or any hazardous materials have been removed from the Equipment and
disposed of in accordance with Applicable Law.
(ii) All manuals, maintenance records, log books, plans, drawings and
schematics, inspection and overhaul records, operating requirements or
other materials pertinent to the Equipment's operation, maintenance,
assembly and disassembly have been assembled and are ready to be returned
to Lessor.
(iii) There is no structural or mechanical damage, and all frames,
structural members, accessories and attachments are structurally sound
without breaks or cracks and in compliance with all federal, state, local
and other regulatory requirements.
(iv) The Equipment is able to perform its required tasks effectively
without repair including but not limited to electronic, electrical and
mechanical controls, pumps, motors, belts, hoses, pins, bushings, measuring
devices, screws, barrels, ways, rams, and clamps, and is operational and in
compliance with all Applicable Law and is within manufacturer's design
performance characteristics and tolerances.
(v) The Equipment is clean and rust free, and sumps and tanks are clean and
dry.
(vi) Equipment with predictable or scheduled replacements or overhaul fives
has not less than 50% useful life remaining before the next such
replacement, overhaul, recalibration or rebuild.
(vii) All major components and all wear points, including, but not limited
to electronic and mechanical controls and pumps, motors, belts, hoses,
pins, bushings, measuring devices, screws, barrels, ways, cams, clamps and
supports, are within manufacturer's design performance characteristics and
tolerances and are capable of performing as originally intended by the
manufacturer and in a safe manner.
(viii) The Equipment is complete, with no missing components or
attachments.
(ix) The Equipment has been lubricated according to the maintenance manual
and/or lubrication schedule recommended by the manufacturer, and written
records of the lubrication service have been kept, dated, and signed by the
appropriate authority.
(x) All internal fluids, such as lube oil and hydraulic oil, have been
filled to operating levels, all filler caps have been secured and all
disconnected hoses have been sealed to avoid accidental spillage.
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(d) In addition to all other rights of Lessor under the Lease, Lessor shall have
the right to attempt to resell or auction the Equipment from Lessee's facility
with the Lessee's full cooperation and assistance, for a period commencing with
Lessor's receipt of the Return Notice and ending one hundred eighty (180) days
after the Initial Term Expiration Date. Lessee agrees to pay the reasonable
costs and expenses of such sale or auction (and all storage prior thereto), and
agrees that the Equipment shall remain capable of operation during this period.
Lessee shall provide adequate electrical power, lighting, heat, water and all
other requirements sufficient to allow for normal maintenance and for
demonstrations of the Equipment to any potential buyer.
12. GOVERNING LAW. This Schedule 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 without giving effect to any choice of law or conflict of laws
provision or rule (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of New York.
13. COUNTERPARTS. This Schedule may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together one and the same instrument.
14. MORE THAN ONE LESSEE. If more than one person or entity executes this
Schedule, or any other Lease Documents executed in connection herewith, as
"Lessee," the obligations of "Lessee" contained herein and therein shall be
deemed joint and several and all references to "Lessee" shall apply both
individually and jointly.
15. RELATIONSHIP TO MASTER LEASE; FURTHER ASSURANCES. This Schedule shall
be construed in connection with and as part of this Lease, and all terms
contained in the Master Lease are hereby incorporated herein by reference with
the same force and effect as if such terms were fully stated herein. By
execution of this Schedule, Lessee and Lessor reaffirm all terms of the Master
Lease except as they may be modified hereby. To the extent that any of the terms
of this Schedule are contrary to or inconsistent with any terms of the Master
Lease, the terms of this Schedule shall govern. LESSEE HEREBY CERTIFIES TO
LESSOR THAT THE REPRESENTATIONS AND WARRANTIES MADE BY LESSEE IN THE MASTER
LEASE (INCLUDING, WITHOUT LIMITATION, SECTION 31 THEREOF) ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS SCHEDULE WITH THE SAME EFFECT AS
THOUGH MADE ON AND AS OF SUCH DATE. Lessee shall take such additional actions
and execute and deliver such additional documents as Lessor shall deem necessary
from time to time to effectuate the terms of this Lease.
16. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE AS ITS
TRUE AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST, TO
EXECUTE AND FILE ON BEHALF OF LESSEE ALL UCC FINANCING STATEMENTS WHICH IN
LESSOR'S SOLE DISCRETION ARE NECESSARY OR PROPER TO SECURE LESSOR'S INTEREST IN
THE 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 paragraph.
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19
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed and delivered on the day and year first above written.
Lessor: Lessee:
KEYCORP LEASING, AUTOCAM CORPORATION
A DIVISION OF KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxx Name: Xxxxxx X. Xxxxxxx
Title: Vice President Title: Chief Financial Officer
COUNTERPART NO. 1 OF 1 SERIALLY NUMBERED MANUALLY EXECUTED COUNTERPARTS. TO THE
EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM COMMERCIAL
CODE, NO SECURITY INTEREST MAY BE CREATED THROUGH THE TRANSFER AND POSSESSION OF
ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.
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Exhibit A
EQUIPMENT DESCRIPTION
LESSOR: KEYCORP LEASING,
A DIVISION OF KEY CORPORATE CAPITAL INC.
LESSEE: AUTOCAM CORPORATION
LEASE: Equipment Schedule No. 06 dated as of June 28, 1999 to
Master Equipment Lease Agreement Dated as of July 10, 1995
VENDOR: TORNOS TECHNOLOGIES
00 XXXXXX XXXX
XXXXXXXXXX, XX 00000
QUANTITY: DESCRIPTION: SERIAL NO. INVOICE NO.
--------- ------------ ---------- -----------
4 TORNOS-XXXXXXX 8-SPINDLE AUTOMATIC T.62342 D-218571
TYPE BS-20.8 WITH STANDARD VOLTAGE T.62909 D-220702
440V, 8 SPINDLES. CAPACITY 21MM ROUND T.61696 D-220701
BAR, 18MM HEX, 15MM SQUARE W/ ALL T.61842 D-223655
STANDARD ACCESSORIES
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EQUIPMENT SCHEDULE NO. 07 dated as of August 23, 1999 (this "Schedule")
between KEYCORP LEASING, A DIVISION OF KEY CORPORATE CAPITAL INC. ("Lessor"),
and AUTOCAM CORPORATION, a Michigan corporation ("Lessee").
INTRODUCTION:
Lessor and Lessee have heretofore entered into that certain Master
Equipment Lease Agreement dated as of July 10, 1995 (the "Master Lease"; the
Master Lease and this Schedule are hereinafter collectively referred to as, this
"Lease"). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings specified in the Master Lease. The Master Lease provides for
the execution and delivery of a Schedule substantially in the form hereof for
the purpose of confirming the acceptance and lease of the Equipment under this
Lease as and when delivered by Lessor to Lessee in accordance with the terms
thereof and hereof.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
EQUIPMENT & INVOICING TERMS
1 EQUIPMENT. Pursuant to the terms and conditions of this Lease, Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, the
equipment listed on Exhibit A attached hereto (the "Equipment"). The
aggregate Total Cost of such Equipment is $626,915.94.
2 TERM. The Initial Term of this Lease with respect to the Equipment
described on this Schedule shall commence on the date on which such
Equipment is delivered to Lessee, and, unless earlier terminated as
provided herein, shall expire on a date which is ninety six (96) months
after the Rent Commencement Date (the "Initial Term Expiration Date").
3 RENT PAYMENT DATES; RENT. Lessee hereby agrees to pay Rent for the
Equipment throughout the Initial Term in ninety six (96) consecutive
monthly installments payable in arrears on the date which is one (1) month
after the Rent Commencement Date and on the same day of each month
thereafter (each, a "Rent Payment Date"). Each such installment of Rent
shall be in an amount equal to $7,790.45. In addition, Lessee hereby agrees
to pay Rent for the period commencing on the Interim Rent Commencement Date
(as defined below) and ending on the day before the Rent Commencement Date
in an amount equal to $259.68 per day, and agrees that, with respect to the
Equipment described on this Schedule, the following modifications are
hereby made to the Master Lease: (a) "Rent Commencement Date- shall mean,
with respect to an Equipment Group, the first (1st) day of the first month
following the date of the Certificate of Acceptance for such Equipment
Group, (b) "Interim Rent Commencement Date" shall mean, with respect to an
Equipment Group, the date of the Certificate of Acceptance for such
Equipment Group, or such later date (prior to the Rent Commencement Date)
as determined by Lessor in its sole discretion, (c) Section 6 of the Master
Lease ("Ordering Equipment") is hereby amended to delete the term "Rent
Commencement Date" and to substitute the term "Interim Rent Commencement
Date" in its place and (d) Section 22(a)(9) of the Master Lease ("Events of
Default; Remedies") is hereby amended to delete the term "Rent Commencement
Date" and to substitute the phrase "Rent Commencement Date or Interim Rent
Commencement Date, as the case may be," in its place.
4 EQUIPMENT LOCATION; BILLING ADDRESS. The Equipment described on this
Schedule shall be located at, and except as otherwise provided in this
Lease, shall not be removed from, the following address: 0000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, XX 00000. The billing address of Lessee is as follows:
AUTOCAM CORPORATION, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000.
TRANSACTION TYPE TERMS
5 PURCHASE, RENEWAL AND OPTION TERMS.
(a) FMV. With respect to the Equipment described on this Schedule, Section 32
of the Master Lease ("Renewal and Purchase
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Options") is hereby deleted in its entirety and the following is substituted in
its place:
So long as no Default or Event of Default shall have occurred and be
continuing and Lessee shall have given Lessor at least one hundred eighty
(180) but not more than two hundred seventy (270) days prior written notice
(the "Option Notice"), Lessee shall have the following purchase and renewal
options at the expiration of the Initial Term, or any Renewal Term, to:
(i) purchase all, but not less than all, Items of Equipment for a purchase
price (the "Purchase Option Price") equal to the then Fair Market Sale
Value thereof; (ii) renew this Lease on a month to month basis at the same
Rent payable at the expiration of such Initial Term or Renewal Term, as the
case may be; (iii) renew this Lease for a minimum period of not less than
twelve (12) consecutive months at the then current Fair Market Rental
Value; or (iv) return such Equipment to Lessor pursuant to, and in the
condition required by, the Lease. If Lessee fails to give Lessor the Option
Notice, Lessee shall be deemed to have chosen option (ii) above.
Payment of the Purchase Option Price, applicable sales taxes, together with
all other amounts due and owing by Lessee under the Lease (including, without
limitation, Rent) during such Initial Term and Renewal Term shall be made on the
last day of the Initial Term or Renewal Term, as the case may be, in immediately
available funds against delivery of a xxxx of sale transferring to Lessee all
right, title and interest of Lessor in and to the Equipment ON AN "AS IS" "WHERE
IS" BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. LESSOR MAY
SPECIFICALLY DISCLAIM ANY SUCH REPRESENTATIONS AND WARRANTIES.
(b) EARLY BUYOUT OPTION. So long as no Default or Event of Default shall have
occurred and be continuing, Lessee shall have the option to purchase all, but
not less than all, Items of Equipment on the date which is eighty four (84)
months after the Rent Commencement Date (the "EBO Date") at a price (the "EBO
Price") equal to thirty one and forty six hundredths percent (31.46%) of the
Total Cost of the Equipment, plus any applicable sales taxes. For Lessee to
exercise its option hereunder, Lessee shall notify Lessor in writing of its
desire to effect such option at least ninety (90) days (but not more than one
hundred eighty (180) days) prior to the EBO Date. Such notice shall be
irrevocable. The EBO Price represents the parties present best estimate of the
fair market value of the Equipment on the EBO Date determined by using
commercially reasonable methods which are standard in the industry. Payment of
the EBO Price, applicable sales taxes, together with all other amounts due and
owing by Lessee under the Lease (including, without limitation, Rent) on or
before the EBO Date, shall be made on the EBO Date in immediately available
funds. Thereafter, upon Lessee's written request, Lessor shall deliver to Lessee
a xxxx of sale transferring to Lessee all right, title and interest of Lessor in
and to the Equipment ON AN "AS IS" "WHERE IS" BASIS, WITHOUT ANY WARRANTIES,
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER. If Lessee shall fail to pay all
amounts required to be paid under the Lease on the EBO Date, the Lease shall
continue in full force and effect and Lessee agrees to reimburse Lessor for all
reasonable costs, expenses and liabilities incurred in connection therewith.
6. NATURE OF TRANSACTION; TRUE LEASE. (a) It is the express intent of the
parties that this Lease constitute a true lease and not a sale of the Equipment
Title to the Equipment shall at all times remain in Lessor, and Lessee shall
acquire no ownership, title, property, right, equity, or interest in the
Equipment other than its leasehold interest solely as Lessee subject to all the
terms and conditions hereof. To the extent that Article 2A ("Article 2A") of the
Uniform Commercial Code ("UCC") applies to the characterization of this Lease,
the parties hereby agree that this Lease is a "Finance Lease" as defined
therein. Lessee acknowledges: (i) that Lessee has selected the "Supplier" (as
defined in the UCC) and has directed Lessor to purchase the Equipment from the
Supplier in connection with this Lease, and (ii) that Lessee has been informed
in writing in this Lease, before Lessee's execution of this Lease, that Lessee
is entitled under Article 2A to the promises and warranties, including those of
any third party, provided to Lessor by the Supplier in connection with or as
part of the Purchase Agreement, and that Lessee may communicate with the
Supplier and receive an accurate and complete statement of those promises and
warranties, including any disclaimers and limitations of them or of remedies.
The filing of UCC financing statements pursuant to Section 34 of the Master
Lease is precautionary and shall not be deemed to have any effect on the
characterization of this Lease. NOTWITHSTANDING THE FOREGOING, LESSOR HAS NOT
MADE, AND HEREBY DISCLAIMS ANY ADVICE, REPRESENTATIONS, WARRANTIES AND
COVENANTS, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO ANY LEGAL, ECONOMIC,
ACCOUNTING, TAX OR OTHER EFFECTS OF THE LEASE AND THE TRANSACTION(S)
CONTEMPLATED THEREBY, AND LESSEE HEREBY DISCLAIMS ANY RELIANCE ON ANY SUCH
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WARRANTIES, STATEMENTS OR REPRESENTATIONS MADE BY LESSOR WITH RESPECT
THERETO.
(b) Notwithstanding the express intent of Lessor and Lessee that this
agreement constitute a true leage and not a sale of the Equipment, should a
court of competent jurisdiction determine that this agreement is not a true
lease, but rather one intended as security, then solely in that event and for
the expressly limited purposes thereof, Lessee shall be deemed to have hereby
granted Lessor a security interest in the Equipment and all accessions,
substitutions and replacements thereto and therefor, and proceeds (cash and
non-cash), including, without limitation, insurance proceeds thereof (but
without power of sale), to secure the prompt payment and performance as and when
due of all obligations and indebtedness of Lessee, now existing or hereafter
created, to Lessee pursuant to this Lease or otherwise. In furtherance of the
foregoing, Lessee shall execute and deliver to Lessor, to be filed at Lessee's
expense, Uniform Commercial Code financing statements, statements of amendment
and statements of continuation as reasonably may be required by Lessor to
perfect and maintain perfected such security interest.
(c) In the event that the Supplier erroneously invoices Lessee for the
Equipment, Lessee agrees to forward said invoice to Lessor immediately. Lessee
acknowledges that the Equipment is, and shall at all times remain, the property
of Lessor, and that Lessee has no right, title or interest therein or thereto
except as expressly set forth in this Lease.
7. TAX INDEMNIFICATION. (a) Lessee acknowledges that Lessor has executed
this Lease, and that the Rent payable by Lessee under this Lease has been
computed, upon the assumptions that Lessor will (i) be entitled to depreciation
or cost recovery deductions ("MACRS Deductions") for Federal income tax purposes
under the Modified Accelerated Cost Recovery System provided for in Section 168
of the Internal Revenue Code of 1986, as amended (the "Code"), and depreciation
or cost recovery deductions ("State Depreciation Deductions") for state income
tax purposes for the Equipment Location, in each case on the basis that (1) each
Item of Equipment constitutes 7-year property" within the meaning of Section
168(e) of the Code, (2) the initial tax basis for each Item of Equipment will be
equal to the Total Cost, (3) deductions for each Item of Equipment will be
computed by using the method specified in Section 168(b)(1) of the Code over the
7-year recovery period described in Section 168(c) of the Code, and (4) the
applicable convention for each Item of Equipment under Section 168(d) of the
Code is the half-year convention; (ii) be entitled to deductions for Federal
income tax purposes (available in the manner and as provided by Section 163 of
the Code) for interest payable with respect to any indebtedness incurred by
Lessor in connection with any financing by Lessor of any portion of the Total
Cost of each Item of Equipment ("Interest Deductions"); and (iii) be subject to
tax for each year at a composite Federal and New York corporate income tax rate
equal to the then highest marginal rate for corporations provided for under the
Code and the laws of New York (the "Highest Marginal Tax Rate"). The MACRS
Deductions, State Depreciation Deductions and Interest Deductions are
hereinafter collectively referred to as the "Tax Benefits".
(b) Lessee represents and warrants to Lessor that (i) each Item of
Equipment constitutes 7-year property" within the meaning of Section 168(e) of
the Code, (ii) Lessee shall not attempt to claim such Tax Benefits, (ift) at and
after the time of delivery of the Equipment to Lessee pursuant to this Lease the
Lessee shall not claim any ownership or title in and to the Equipment, and (iv)
Lessee has not, and will not, at any time after such delivery throughout the
Term of this Lease, take any action or omit to take any action (whether or not
the same is permitted or required hereunder) which will result in the loss by
Lessor of all or any part of such Tax Benefits.
(c) If, as a result of any act, omission or misrepresentation of Lessee,
(x) the Tax Benefits are lost, disallowed, deferred, eliminated, reduced,
recaptured, compromised or otherwise unavailable to Lessor, (y) for Federal,
foreign, state or local income tax purposes, any item of income, loss or
deduction with respect to any Item of Equipment is treated as derived from, or
allocable to, sources outside the United States, or (z) there shall be included
in the gross income of Lessor for Federal, state or local income tax purposes
any amount on account of any addition, modification, substitution or improvement
to or in respect of any Item of Equipment made or paid for by Lessee (any of the
foregoing being hereinafter a "Tax Loss"), then, within thirty (30) days of
Lessee's receipt of written notice from Lessor that such a Tax Loss has
occurred, Lessee shall pay to Lessor an amount which, after deduction therefrom
of all taxes to be paid in respect of the receipt thereof, will enable Lessor to
receive the same Net Economic Return (as hereinafter defined) that Lessor would
have realized on this Lease had such Tax Loss (together with any interest,
penalties or additions to tax) not occurred. Any event which, by the terms of
this Lease, requires payment by Lessee to Lessor of the Stipulated Loss Value of
the Equipment shall not constitute the act of Lessee for purpose of the
foregoing sentence.
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(d) As used in this Section, the term "Net Economic Return" shall mean
Lessor's net after-tax yield, aggregate after-tax cash flow and return on
assets, based on (i) the assumptions used by Lessor in originally calculating
Rent and Stipulated Loss Value percentages, including the assumptions set forth
above (as such assumptions may have been revised pursuant to the last sentence
of this subsection) and (ii) the Highest Marginal Tax Rate actually in effect
during each year from the date of such original calculations to the date of such
Tax Loss, both dates inclusive. In the event Lessor shall suffer a Tax Loss with
respect to which Lessee is required to pay an indemnity hereunder, and the full
amount of such indemnity has been paid or provided for hereunder, the aforesaid
assumptions, without further act of the parties hereto, shall thereupon be and
be deemed to be amended, if and to the extent appropriate, to reflect such Tax
Loss.
(e) For purposes of this Section, the term "Lessor" shall include the
entity or entities, if any, with which Lessor consolidates any tax return.
Lessee acknowledges that it has neither sought nor received tax advice from
Lessor as to the availability to Lessee of any tax benefits with respect to the
Equipment. All of Lessor's rights and privileges arising from the indemnities
contained in this Lease will survive the expiration or other termination or
cancellation of this Lease. Such indemnities are expressly made for the benefit
of, and are enforceable by, Lessor and its successors and assigns.
8. STIPULATED LOSS VALUE, DISCOUNT RATE. (a) The Stipulated Loss Values
applicable to the Equipment and this Lease are as set forth on a supplement (the
"Stipulated Loss Value Supplement") prepared by Lessor.
(b) Any provision of this Lease to the contrary notwithstanding, all
present value calculations to be made with respect to the Equipment described on
this Schedule shall be made using a discount rate equal to three percent (3%).
9. PERSONAL PROPERTY TAX. Unless otherwise directed in writing by Lessor or
required by Applicable Law, Lessee will not list itself as owner of any Item of
Equipment for property tax purposes. Upon receipt by Lessee of any property tax
xxxx pertaining to such Item of Equipment from the appropriate taxing authority,
Lessee will promptly forward such property tax xxxx to Lessor. Upon receipt by
Lessor of any such property tax xxxx (whether from Lessee or directly from the
taxing authority), Lessor will pay such tax and will invoice Lessee for the
expense. Upon receipt of such invoice, Lessee will promptly reimburse Lessor for
such expense.
10. MODIFICATIONS TO MASTER LEASE. With respect to the Equipment described
on this Schedule, the Master Lease shall be modified as follows:
(a) Section 31 of the Master Lease ("Representations and Warranties of
Lessee"), is hereby amended by adding the following additional representation:
Lessee has conducted a comprehensive review and assessment of the Lessee's
computer applications and made inquiry of the Lessee's key suppliers,
vendors and customers with respect to the "year 2000 problem" (that is, the
risk that computer applications may not be able to properly perform
date-sensitive functions after December 31, 1999) and based on that review
and inquiry, the Lessee does not believe the year 2000 problem wffl result
in a material adverse change in the Lessee's business condition (financial
or otherwise), operations, properties or prospects, or ability to perform
the obligations of Lessee under this Lease.
Conforming Modifications. With respect to the Equipment described on this
Schedule, the Master Lease shall be modified as follows:
(b) (1) The definitions of "Equipment" and "Term" in Section 4 of the
Master Lease ("Definitions") are hereby deleted in their entirety and the
following definitions are substituted in their place:
"Equipment " shall mean an item or items of personal property designated
from time to time by Lessee which are described on an Equipment Schedule
and which are being or will be leased by Lessee pursuant to a Lease,
together with all replacement parts, additions and accessories incorporated
therein or affixed thereto including, without limitation, any software that
is a component or integral part of, or is included or used in connection
with, any Item of Equipment, but with respect to such software, only to the
extent of Lessor's interest therein, if any.
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"Term" shall mean the Initial Term or any Renewal Term, each as defined in
Section 8 hereof, and any Extended Lease Term or Interim Term as defined in an
Equipment Schedule.
(2) All references to the defined term "Late Payment Rate" shall be
deemed to be references to the term "Default Rate", and the term "Default Rate"
shall mean an annual interest rate equal to the lesser of 18% or the maximum
interest rate permitted by Applicable Law.
(c) The following shall be inserted as the penultimate sentence of Section
11 of the Master Lease ("Use; Alterations"):
All such alterations, additions, modifications or improvements shall
immediately, and without further act, be deemed to constitute Items of
Equipment and be fully subject to this Lease as if originally leased
hereunder.
(d) The following shall be inserted as the penultimate sentence of Section
12 of the Master Lease ("Repairs and Maintenance"):
Upon installation, attachment or incorporation in, on or into such Item of
Equipment, such replacement part shall immediately, and without further
act, be deemed to constitute an Item of Equipment and be fully subject to
this Lease as if originally leased hereunder.
(e) Section 22 of the Master Lease ("Events of Default") is hereby amended
as follows:
(i) with respect to Section 22(a), the term "Event of Default" shall also
mean any of the following which are hereby added as new subparts: (10)
Lessee 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; (11) a change in control occurs in
Lessee or any Guarantor; or (12) the death or dissolution of Lessee or any
Guarantor;
(ii) with respect to Section 22(b)(4), the word "terminate" is hereby
deleted and the words "cancel or terminate" are hereby substituted in its
place;
(iii) with respect to Section 22(b)(5), the existing section is hereby
deleted in its entirety and the following is substituted in its place:
(5) demand that Lessee, and Lessee shall, upon written demand of Lessor
and at Lessee's expense forthwith return all Items of Equipment to
Lessor in the manner and condition required by Section 13 hereof,
provided, however, that Lessee shall remain and be liable to Lessor for
any amounts provided for herein or other damages resulting from the
Equipment not being in the condition required by Section 12 hereof, and
otherwise in accordance with all of the provisions of this Lease,
except those provisions relating to periods of notice;
(iv) with respect to Section 22(b)(6), the word "termination" is hereby
deleted and the words "cancellation or termination" are hereby substituted
in its place; and
(v) Beginning with Section 22(b)(7) inclusive, the remainder of Section
22(b) is hereby deleted in its entirety and the following is substituted in
its place:
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(7) by written notice to Lessee specifying a payment date (the "Remedy
Date") demand that Lessee forthwith return all Items of Equipment to Lessor in
the manner and condition required by Section 22(b)(5) hereof and, in addition,
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, any
unpaid Rent due prior to the Remedy Date plus whichever of the following amounts
Lessor, in its sole discretion, shall specify in such notice (together with
interest on such amount at the Default Rate from the Remedy Date to the date of
actual payment): (i) an amount, with respect to an Item of Equipment, equal to
the Rent payable for such Item of Equipment for the remainder of the then
current Term thereof, after discounting such Rent to present worth as of the
Remedy Date on the basis of a per annum rate of discount equal to three percent
(3%) from the respective dates upon which such Rent would have been paid had
this Lease not been canceled or terminated; or (ii) the Stipulated Loss Value,
computed as of the Remedy Date or, if the Remedy Date is not a Rent Payment
Date, the Rent Payment Date next following the Remedy Date (provided, however,
that, with respect to any proceeds actually received by Lessor for any Item of
Equipment returned to or repossessed by Lessor, Lessor agrees that it shall
first apply such proceeds to satisfy Lessee's obligation to pay the Stipulated
Loss Value or, if Lessor has received payment in full of the Stipulated Loss
Value from Lessee, Lessor shall remit such proceeds to Lessee (after first
deducting any Lessor Expense) up to the amount of the Stipulated Loss Value; (8)
cause Lessee, at its expense, to promptly assemble any and all Items of
Equipment and return the same to Lessor at such place as Lessor may designate in
writing; and (9) exercise any other right or remedy available to Lessor under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof or to rescind this Lease. In
addition, Lessee shall be liable, except as otherwise provided above, for any
and all unpaid Rent due hereunder before or during the exercise of any of the
foregoing remedies, and for reasonable legal fees and other costs and expenses
incurred by reason of the occurrence of any Event of Default or the exercise of
Lessor's remedies with respect thereto. If an Event of Default occurs, Lessee
hereby agrees that ten (10) days prior notice to Lessee of (A) any public sale
or (B) the time after which a private sale may be negotiated shall be
conclusively deemed reasonable and, to the extent permitted by Applicable Law,
Lessee waives all rights and defenses with respect to such disposition of the
Equipment. None of Lessor's rights or remedies hereunder are intended to be
exclusive of, but each shall be cumulative and in addition to any other right or
remedy referred to hereunder or otherwise available to Lessor at laiv or in
equity, and no express or implied waiver by Lessor of any Event of Default shall
constitute a waiver of any other Event of Default or a waiver of any of Lessor's
rights.
MISCELLANEOUS TERMS & CONDITIONS
11. ADDITIONAL MAINTENANCE REQUIREMENTS. Section 13 of the Lease ("Return
of Equipment") shall be deleted in its entirety and the following substituted in
its place:
13. RETURN OF EQUIPMENT. (a) Upon the expiration of the Term of any Lease
or upon demand by Lessor pursuant to Section 22 hereof, Lessee, at its sole
expense, shall return all of the Equipment leased under the Lease by delivering
it in a manner consistent with the manufacturer's recommendations and practices
to such place or on board such carrier (packed properly and in accordance with
the manufacturer's instructions) as Lessor shall specify. Lessee agrees that the
Equipment, when returned, shall be free and clear of all Liens, and in the same
condition as when delivered to Lessee, reasonable wear and tear excepted.
Reasonable wear and tear shall mean that each item of the Equipment has been
maintained by Lessee in "Average Saleable Condition" (as hereinafter defined)
and that all components of the Equipment have been properly serviced, following
the manufacturer's written operating and servicing procedures, such that the
Equipment is eligible for a manufacturer's standard, full service maintenance
contract without Lessor's incurring any expense to repair or rehabilitate the
Equipment. If, in the opinion of Lessor, any item of the Equipment fails to meet
the standards set forth in this Section 13, Lessee agrees to pay on demand all
costs and expenses incurred in connection with repairing the Equipment,
restoring it to such condition so as to meet such standards and assembling and
delivering such Item of Equipment pursuant to Lessor's instructions. If Lessee
fails to return any Item of Equipment as required hereunder, then, all of
Lessee's obligations under this Lease (including, without limitation, Lessee's
obligation to pay Rent for such Item of Equipment at the rental then applicable
under this Lease) shall continue in full force and effect until such Item of
Equipment shall have been returned in the condition required hereunder.
(b) Lessee shall give Lessor at least one hundred eighty (180) but not more than
two hundred seventy (270) days written notice that Lessee is returning the
Equipment as provided for above (the "Return Notice") and shall include with
such notice, all of the following:
(i) a detailed inventory of all components of the Equipment including
without limitation all of the model and serial
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numbers of any components;
(ii) a complete set of current and up to date service and operating
manuals for each Item of Equipment;
(iii) a complete set of current and up to date maintenance logs and
other appropriate documentation detailing the
Equipment's then current configuration (including a description of all
replacements and additions thereto made during the Term of the Lease) and
all operating requirements and technical data regarding the setup, use and
operation of the Equipment;
(iv) an in-depth field service report (the "Report") detailing the
results of an inspection conducted by a representative of the manufacturer
or a qualified equipment maintenance provider acceptable to Lessor
certifying that the Equipment has been properly inspected, examined, tested
and is operating within the manufacturer's specification and addressing, at
a minimum the following areas:
(D) comprehensive physical inspection;
(E) testing of all material and workmanship of the Equipment; and
(F) conformation of all Equipment operations to Applicable Law and
confirming that the Equipment is otherwise in Average Saleable Condition
(as hereinafter defined).
If the Report discloses that any of the material, workmanship or Equipment
does not meet or, does not operate within, the manufacturer's
specifications or any Applicable Law, Lessee shall, at its sole expense,
take all necessary corrective measures and submit a second Report from the
same inspector evidencing that the Equipment has been brought into
conformity with the manufacturer's specifications and Applicable Law.
(c) "Average Saleable Condition" shall mean that all of the following minimum
standards have been met:
Machine Tool Equipment
(xi) The Equipment has been or will be disassembled according to
manufacturer's recommendations and by a licensed rigger/erector
specializing in the Equipment, with any transportation devices, such as
metal skids, lifting slings, and brackets which were with the machine when
it originally arrived, included, and, in addition, all proper blueprinting,
mapping, tagging and labeling of each individual part including cables,
electrical apparatus and wires have been included, all process fluids
and/or any hazardous materials have been removed from the Equipment and
disposed of in accordance with Applicable Law.
(xii) All manuals, maintenance records, log books, plans, drawings and
schematics, inspection and overhaul records, operating requirements or
other materials pertinent to the Equipment's operation, maintenance,
assembly and disassembly have been assembled and are ready to be returned
to Lessor.
(xiii) There is no structural or mechanical damage, and all frames,
structural members, accessories and attachments are structurally sound
without breaks or cracks and in compliance with all federal, state, local
and other regulatory requirements.
(xiv) The Equipment is able to perform its required tasks effectively
without repair including but not limited to electronic, electrical and
mechanical controls, pumps, motors, belts, hoses, pins, bushings, measuring
devices, screws, barrels, ways, rams, and clamps, and is operational and in
compliance with all Applicable Law and is within manufacturer's design
performance characteristics and tolerances.
(xv) The Equipment is clean and rust free, and sumps and tanks are
clean and dry.
(xvi) Equipment with predictable or scheduled replacements or overhaul
fives has not less than 50% useful life remaining before the next such
replacement, overhaul, recalibration or rebuild.
(xvii) All major components and all wear points, including, but not
limited to electronic and mechanical controls and pumps, motors, belts,
hoses, pins, bushings, measuring devices, screws, barrels, ways, cams,
clamps and supports, are within manufacturer's design performance
characteristics and tolerances and are capable of performing as originally
intended by the manufacturer and in a safe manner.
(xviii) The Equipment is complete, with no missing components or
attachments.
(xix) The Equipment has been lubricated according to the maintenance
manual and/or lubrication schedule recommended by the manufacturer, and
written records of the lubrication service have been kept, dated, and
signed by the appropriate authority.
(xx) All internal fluids, such as lube oil and hydraulic oil, have been
filled to operating levels, all filler caps have been secured and all
disconnected hoses have been sealed to avoid accidental spillage.
(d) In addition to all other rights of Lessor under the Lease, Lessor shall have
the right to attempt to resell or auction the Equipment from Lessee's facility
with the Lessee's full cooperation and assistance, for a period commencing with
Lessor's receipt
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of the Return Notice and ending one hundred eighty (180) days after the Initial
Term Expiration Date. Lessee agrees to pay the reasonable costs and expenses of
such sale or auction (and all storage prior thereto), and agrees that the
Equipment shall remain capable of operation during this period. Lessee shall
provide adequate electrical power, lighting, heat, water and all other
requirements sufficient to allow for normal maintenance and for demonstrations
of the Equipment to any potential buyer.
12. GOVERNING LAW. This Schedule 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 without giving effect to any choice of law or conflict of laws
provision or rule (whether of the State of New York or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of New York.
13. COUNTERPARTS. This Schedule may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together one and the same instrument.
14. MORE THAN ONE LESSEE. If more than one person or entity executes this
Schedule, or any other Lease Documents executed in connection herewith, as
"Lessee," the obligations of "Lessee" contained herein and therein shall be
deemed joint and several and all references to "Lessee" shall apply both
individually and jointly.
15. RELATIONSHIP TO MASTER LEASE; FURTHER ASSURANCES. This Schedule shall
be construed in connection with and as part of this Lease, and all terms
contained in the Master Lease are hereby incorporated herein by reference with
the same force and effect as if such terms were fully stated herein. By
execution of this Schedule, Lessee and Lessor reaffirm all terms of the Master
Lease except as they may be modified hereby. To the extent that any of the terms
of this Schedule are contrary to or inconsistent with any terms of the Master
Lease, the terms of this Schedule shall govern. LESSEE HEREBY CERTIFIES TO
LESSOR THAT THE REPRESENTATIONS AND WARRANTIES MADE BY LESSEE IN THE MASTER
LEASE (INCLUDING, WITHOUT LIMITATION, SECTION 31 THEREOF) ARE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS SCHEDULE WITH THE SAME EFFECT AS
THOUGH MADE ON AND AS OF SUCH DATE. Lessee shall take such additional actions
and execute and deliver such additional documents as Lessor shall deem necessary
from time to time to effectuate the terms of this Lease.
16. POWER OF ATTORNEY. LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE AS ITS
TRUE AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST, TO
EXECUTE AND FILE ON BEHALF OF LESSEE ALL UCC FINANCING STATEMENTS WHICH IN
LESSOR'S SOLE DISCRETION ARE NECESSARY OR PROPER TO SECURE LESSOR'S INTEREST IN
THE 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 paragraph.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Schedule to be duly
executed and delivered on the day and year first above written.
Lessor: Lessee:
KEYCORP LEASING, AUTOCAM CORPORATION
A DIVISION OF KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
Title: Regional Business Unit Manager Title: Chief Financial Officer
COUNTERPART NO. 1 OF 1 SERIALLY NUMBERED MANUALLY EXECUTED COUNTERPARTS. TO THE
EXTENT THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM COMMERCIAL
CODE, NO SECURITY INTEREST MAY BE CREATED THROUGH THE TRANSFER AND POSSESSION OF
ANY
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COUNTERPART OTHER THAN COUNTERPART NO. 1.
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Exhibit A
EQUIPMENT DESCRIPTION
LESSOR: KEYCORP LEASING,
A DIVISION OF KEY CORPORATE CAPITAL INC.
LESSEE: AUTOCAM CORPORATION
LEASE: Equipment Schedule No. 07 dated as of August 23, 1999 to
Master Equipment Lease Agreement Dated as of July 10, 1995
VENDOR: MIKRON
X.X. XXX 000
XXXXXX, XX 00000
QUANTITY: DESCRIPTION: SERIAL NO. INVOICE NO.
--------- ------------ ---------- -----------
1 MIKRON CX-24 ROTARY TRANSFER KA0039M 171829
MACHINE
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