EXHIBIT 10.6
Lease Agreement Number GLO052501
Lease Agreement
This Lease Agreement, dated May 25, 2001, by and between [*], (the "Lessor")
with an office located at [*] and GLOBAL TECHNOVATIONS, INC. AND SUBSIDIARIES
(the "Lessee") with an office located at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000.
Lessor hereby leases or grants to the Lessee the right to use, and Lessee hereby
rents and accepts the right to use, the equipment listed by serial number and
related services, and software and related services, on the Lease Schedule(s)
attached hereto or incorporated herein by reference from time to time
(collectively, the equipment, software and services are the "Equipment"),
subject to the terms and conditions hereof, as supplemented with respect to each
item of Equipment by the terms and conditions set forth in the appropriate Lease
Schedule. The term "Lease Agreement" shall include this Lease Agreement and the
various Lease Schedule(s) identifying each item of Equipment or the appropriate
Lease Schedule(s) identifying one or more particular items of Equipment.
1. Term
This Lease Agreement is effective from the date it is executed by both
parties. The term of this Lease Agreement as to all Equipment designated on any
particular Lease Schedule shall commence on the Installation Date for all
Equipment on such Lease Schedule and shall continue for an initial period ending
that number of months from the Commencement Date as set forth in such Lease
Schedule (the "Initial Term") and shall automatically continue from year to year
thereafter, at the Monthly Charges last in effect, until terminated. The term of
this Lease Agreement as to all Equipment designated on any particular Lease
Schedule may be terminated without cause at the end of the Initial Term or the
end of any year thereafter by either party mailing written notice of its
termination to the other party not less than one-hundred twenty (120) days prior
to such termination date. All such terminations are effective only with respect
to not less than all Equipment under the applicable Lease Schedule. Notice of
termination by Lessee may not be revoked without Lessor's written consent.
2. Credit Review
For each Lease Schedule, Lessee agrees that Lessor may conduct a credit
investigation and review. In such event, Lessee shall provide, in a timely
manner, such financial information as Lessor may request. Lessee represents and
warrants that all such financial information accurately and completely presents
Lessee's financial condition as of the date of execution of each Lease Schedule.
3. Licensed Software
Any software listed in a Lease Schedule will be subject to Lessee's
separate software license agreement with the owner or distributor ("Licensor")
except as such agreement may conflict with the terms and conditions of the Lease
Schedule. Lessee shall comply with all non-conflicting terms and look solely to
the Licensor for satisfaction of all claims and warranties relating to the
software. Lessee's obligations under a Lease Schedule will not be affected by
any termination of a software license agreement or any defect in or loss of the
software. Lessee is responsible for arranging delivery and installation of the
software.
4. Commencement Date, Acceptance and Selection
The Installation Date for each item of Equipment shall be the day said
item of Equipment is installed at the Location of Installation, ready for use,
and accepted in writing by the Lessee. The Commencement Date for any Lease
Schedule is the first day of the first month following installation of all the
Equipment of the Lease Schedule, unless the latest Installation Date for any
Equipment on the Lease Schedule falls on the first day of the month, in which
case that is the Commencement Date. Lessee shall complete, execute and deliver a
Certificate of Acceptance to Lessor upon installation of the Equipment.
5. Lease Charge
The lease charges for the Equipment leased pursuant to this Lease
Agreement shall be the aggregate "Monthly Lease Charge(s)" as set forth on each
and every Lease Schedule executed pursuant hereto (the aggregate "Monthly Lease
Charge(s)" are the "Lease Charges"). Lessee agrees to pay to Lessor the Lease
Charges in accordance with the Lease Schedule(s), and the payments shall be made
at Lessor's address indicated thereon. The Lease Charges shall be paid by Lessee
monthly in advance with the first full month's payment due on the Commencement
Date. If the Installation Date does not fall on the first day of a month, then
the Lease Charge for the period from the Installation Date to the Commencement
Date (the "Interim Period") shall be an amount equal to the "Monthly Lease
Charge" divided by thirty (30) and multiplied by the number of days from and
including the Installation Date to the Commencement Date, and such amount shall
be due and payable upon receipt of an invoice from Lessor (the "Interim Lease
Charge"). Charges for taxes made in accordance with Section 6 below, and all
other charges made under any other provision of this Lease Agreement and payable
by Lessee, shall be paid to Lessor at Lessor's address specified on the Lease
Schedule(s) on the date specified in invoices delivered to Lessee. If payment as
specified above is not received by Lessor on the due date, Lessee agrees to and
shall, to the fullest extent permitted by law, pay on demand, as a late charge,
an amount equal to ten (10%), or the maximum percentage allowed by law if less,
of the amount past due ("Late Charges"). Late Charges shall be charged and added
to any past due amount on the date such payment is due. Late Charges and
attorneys' fees necessary to recover Lease Charges and Late Charges (if any) are
an integral part of this Lease Agreement. Lessee acknowledges and agrees that
its obligations to pay Lease Charges and Late Charges (if any) and all other
sums payable hereunder shall be absolute and unconditional in all events, and
shall not be subject to any abatement, reduction, set-off, defense, counterclaim
or recoupment due or alleged to be due by reason of any past, present or future
claims Lessee may have against Lessor, the manufacturer, vendor or maintainer of
the Equipment, Lessor's assigns, or any other person or entity for any reason
whatsoever. Without limiting the generality of the foregoing, no representation
by the manufacturer or vendor shall in any way affect Lessee's duty to pay Lease
Charges and Late Charges (if any) and perform its other obligations hereunder.
6. Taxes
In addition to the Lease Charges and Late Charges (if any) set forth in
Section 5 above, Lessee shall reimburse Lessor for all license or registration
fees, assessments, charges, sales and use taxes, rental taxes, gross receipts
taxes, personal property taxes and other taxes now or hereafter imposed by any
government, agency, province or otherwise upon the Equipment, the Lease Charges
or upon the ownership, leasing, renting, purchase, possession or use of the
Equipment, whether the same be assessed to Lessor or Lessee (the "Taxes").
Lessor shall file all property tax returns and pay all Taxes when due. Lessee,
upon written notice to Lessor, may, in Lessee's own name, contest or protest any
Taxes, and Lessor shall honor any such notice except when in Lessor's sole
opinion such contest is futile or will cause a levy or lien to arise on the
Equipment or cloud Lessor's title thereto. In addition, Lessee shall (i) be
responsible to Lessor for the payment and discharge of any penalties or interest
as a result of Lessee's actions or inactions; and (ii) indemnify Lessor and hold
it harmless from any damages, claims or charges which may result from contesting
or protesting any Taxes. Lessee is hereby appointed attorney-in-fact of Lessor
solely to declare, file and pay all of the Taxes when due and owing for any
period assessed while Lessee is in possession of the Equipment. Nothing herein
shall be construed to require Lessee to be responsible for any federal or state
taxes or payments in lieu thereof, imposed upon or measured by the net income of
Lessor, or state franchise taxes of Lessor, or except as provided hereinabove,
any penalties or interest resulting from Lessor's failure to timely remit such
tax payments.
7. Delivery and Freight Costs
All transportation charges upon the Equipment for delivery to Lessee's
designated Location of Installation shall be paid by Lessee. In addition, all
rigging, drayage charges, structural alterations, rents of heavy equipment
and/or other expense necessary to place the Equipment at the Location of
Installation shall be promptly paid by Lessee. Lessee shall accept delivery of
the Equipment and allow the Equipment to be installed within five (5) days of
delivery.
8. Installation
Lessee agrees to pay for the actual installation of the Equipment at
the Location of Installation or any other location authorized under this
Agreement. Lessee shall make available and agrees to pay for all costs
associated with providing a suitable place of installation and necessary
electrical power, outlets and air conditions required for operating the
Equipment as defined in the Equipment manufacturer's installation manual or
instructions, or as otherwise required by the manufacturer. All supplies
consumed or required by the Equipment shall be furnished and paid for by Lessee.
9. Return to Lessor
On the day following the last day Lessee is entitled or obligated to
possess and use the Equipment as set forth on the applicable Lease Schedule (the
"Return Date"), Lessee shall cause and pay for the Equipment on that Lease
Schedule to be deinstalled, packed (using the manufacturer's standard packing
materials), insured for transportation at the Casualty Loss Value, and shipped
to a location designated in writing by Lessor (the "Return Location") in good
repair, condition and working order, ordinary wear and tear alone excepted. In
addition, Lessee shall, at its expense, (i) cause each returned piece of
Equipment to be repaired as necessary to qualify for maintenance by the
manufacturer and to contain all current manufacturer-prescribed engineering
changes; and (ii) erase all software resident in Lessee's computer memory. If
the Equipment on the applicable Lease Schedule is not at the Return Location
within ten (10) days of the Return Date, or Lessee fails to deinstall the
Equipment on the Return Date, then any written notice of termination delivered
by Lessee shall become void and Lessee shall be treated as a holdover tenant for
all of the Equipment in the Lease Schedule for an additional term of twelve (12)
months and shall continue to pay the Monthly Lease Charges last in effect and
continue to perform all of its other obligations in accordance with this Lease
Agreement. In no event may Lessee avoid the effect of the preceding sentence by
returning less than all of the Equipment listed on the applicable Lease Schedule
or by returning substituted Equipment unless Lessor, in its sole discretion,
shall expressly agree in writing. The above provisions shall not derogate from
Lessor's right, to be exercised in its sole discretion, to obtain return of all
Equipment on the Return Date, or to declare an Event of Default for any failure
of Lessee to so return the Equipment. Irrespective of any other provision
hereof, Lessee will bear the risk of damage from fire, the elements or
otherwise, and the risk of loss or theft, until delivery of the Equipment to the
Return Location. At such time as the Equipment is delivered to the Lessor at the
Return Location, the Equipment will be at the risk of Lessor.
10. Maintenance
Lessee, at its sole expense, shall maintain the Equipment in good
repair, condition and working order. Lessee shall enter into, pay for and
maintain in force during the entire term of any Lease Schedule, a maintenance
agreement with the manufacturer of the Equipment providing for continuous
uninterrupted maintenance of the Equipment (the "Maintenance Agreement"). Lessee
will cause the manufacturer to keep the Equipment in good repair, condition and
working order in accordance with the provisions of the Maintenance Agreement and
make all necessary adjustments and repairs to the Equipment. The manufacturer is
hereby authorized to accept the directions of Lessee with respect thereto.
Lessee agrees to allow the manufacturer full and free access to the Equipment.
All maintenance and service charges, whether under the Maintenance Agreement or
otherwise, and all expenses, if any, of the manufacturer's customer engineers
incurred in connection with maintenance and repair services, shall be promptly
paid by Lessee. Upon the termination of any Lease Schedule or this Lease
Agreement, Lessee warrants that the Equipment shall be eligible for the
manufacturer's standard maintenance agreement. Lessee agrees to reimburse Lessor
for any costs it incurs in making the Equipment eligible for such standard
maintenance.
11. Location, Ownership and Use
The Equipment shall, at all times, be the sole and exclusive property
of Lessor, subject to the parties' rights under any applicable software license
agreement. Lessee shall have no right, title or interest in the Equipment
outside of the leasehold interest created by the Lease Schedule. Lessee shall
have no right or property interest therein, except for the right to use the
Equipment in the normal operation of its business at the Location of
Installation or as otherwise authorized herein; provided, however, that software
use shall be in accordance with the terms and conditions of the applicable
software license agreement. Notwithstanding anything to the contrary above,
Lessee shall (i) not use or permit the use of the Equipment for any purpose
which, according to the specifications of the manufacturer, the Equipment is not
designed or reasonably suited; and (ii) use the Equipment in a careful and
proper manner, and comply with all of the manufacturer's instructions,
governmental rules, regulations, requirements and laws, and all insurance
requirements (if any), with regard to the use, operation and maintenance of the
Equipment.
The Equipment is and shall remain personal property of the Lessor even if
installed in or attached to real property. Lessor shall be permitted to display
notice of its ownership on the Equipment by means of a suitable stencil, label
or plaque affixed thereto.
Lessee shall keep the Equipment at all times free and clear from all liens,
claims, levies, encumbrances, security interests and processes, of any nature
whatsoever. Lessee shall give Lessor immediate notice of any such attachment or
other judicial process affecting any of the Equipment. Without Lessor's written
permission, Lessee shall not attempt to or actually: (i) pledge, lend, create a
security interest in, sublet, exchange, trade, assign, swap, use for an
allowance or credit or otherwise; (ii) allow another to use; (iii) part with
possession; (iv) dispose of; or (v) remove from the Location of Installation,
any item of Equipment. If any item of Equipment is exchanged, assigned, traded,
swapped, used for an allowance or credit or otherwise to acquire new or
different equipment (the "New Equipment") without Lessor's prior written
consent, then all of the New Equipment shall become Equipment owned by Lessor
subject to this Lease Agreement and the applicable Lease Schedule.
Any feature(s) installed on the Equipment at the time of delivery which are not
specified on the Lease Schedule(s) are and shall remain the sole property of the
Lessor.
Lessee shall cause the Equipment to be operated in accordance with the
applicable vendor's or manufacturer's manual of instructions by competent and
qualified personnel.
12. Financing Statement
Lessee hereby authorizes Lessor to execute and file financing
statements and/or continuation statements under the Uniform Commercial Code on
Lessee's behalf and to file such documents in all places where necessary to
perfect Lessor's interest in the Equipment. Lessee agrees to execute any such
instruments as Lessor may request from time to time.
13. Alterations and Attachments
Upon prior written notice to Lessor, Lessee may, at its own expense,
make minor alterations in or add attachments to the Equipment, provided such
alterations and attachments shall not interfere with the normal operation of the
Equipment and do not otherwise involve the pledge, assignment, exchange, trade
or substitution of the Equipment or any component or part thereof. All such
alterations and attachments to the Equipment shall become part of the Equipment
leased to Lessee and owned by Lessor. If, in Lessor's sole determination, the
alteration or attachment reduces the value of the Equipment or interferes with
the normal and satisfactory operation or maintenance of any of the Equipment, or
creates a safety hazard, Lessee shall, upon notice from Lessor to that effect,
promptly remove the alteration or attachment at Lessee's expense and restore the
Equipment to the condition the Equipment was in just prior to the alteration or
attachment.
14. Loss and Damage
Lessee shall assume and bear the risk of loss, theft and damage
(including any government requisition, condemnation or confiscation) to the
Equipment and all component parts hereof from any and every cause whatsoever,
whether or not covered by insurance. No loss or damage to the Equipment or any
component part thereof shall impair any obligation of Lessee under this Lease
Agreement, which shall continue in full force and effect except as hereinafter
expressly provided. Lessee shall repair or cause to be repaired all damage to
the Equipment. In the event that all or part of the Equipment shall, as a result
of any cause whatsoever, become lost, stolen, destroyed or otherwise rendered
irreparably unusable or damaged (collectively, the "Loss") then Lessee shall,
within five (5) days after the Loss, fully inform Lessor in regard thereto and
shall pay to Lessor the following amounts: (i) the Monthly Lease Charges (and
other amounts) due and owing under this Lease Agreement at the time of the Loss,
plus (ii) one-hundred twelve (112%) percent of the original cost of the
Equipment subject to the Loss amortized by the Monthly Lease Charges received by
Lessor during the Initial Term using an amortization rate of 350 basis points
over the interest rate of the three (3) year United States Treasury Note as
reported by The Wall Street Journal on the Commencement Date (collectively, the
sum of (i) plus (ii) shall be the "Casualty Loss Value"). Upon receipt by Lessor
of the Casualty Loss Value: (i) the applicable Equipment shall be removed from
the Lease Schedule; and (ii) Lessee's obligation to pay Lease Charges associated
with the applicable Equipment shall cease. Lessor may request, and Lessee shall
complete, an affidavit(s), which swears out the facts supporting the Loss of any
item of Equipment.
15. Insurance
Until the Equipment is returned to Lessor or as otherwise herein
provided, whether or not this Lease Agreement has terminated as to the
Equipment, Lessee at its expense, shall maintain: (i) fire and extended coverage
insurance against loss, theft, damage or destruction of the Equipment in an
amount not less than the Casualty Loss Value, which insurance shall name Lessor
or its assigns as sole loss payee; and (ii) comprehensive public liability and
third-party property insurance against claims for bodily injury, death and/or
property damage arising out of the use, ownership, possession, operation or
condition of the Equipment, together with such other insurance as may be
required by law, which names Lessor and its assigns as additional loss payees.
The insurance shall cover the interest of both the Lessor and Lessee in the
Equipment, or as the case may be, shall protect both the Lessor and Lessee in
respect to all risks arising out of the condition, delivery, installation
maintenance, use or operation of the Equipment.
All such insurance shall (i) provide for thirty (30) days prior written notice
to Lessor of cancellation, restriction, or reduction of coverage; and (ii) be
maintained with an insurance company which is at least "A" rated by A.M. Best.
No such insurance shall be subject to any co-insurance clause. Lessee hereby
irrevocably appoints Lessor as Lessee's attorney-in-fact to make claim for,
receive payment of and execute and endorse all documents, checks or drafts for
loss or damage or return premium under any insurance policy issued on the
Equipment. Prior to installation of the Equipment, all policies or certificates
of insurance shall be delivered to Lessor by Lessee. The proceeds of any loss or
damage insurance shall be payable to Lessor, but Lessor shall remit all such
insurance proceeds to Lessee at such time as Lessee either (i) provides Lessor
satisfactory proof that the damage has been repaired and the Equipment has been
restored to good working order and condition; or (ii) pays to lessor the
Casualty Loss Value. It is understood and agreed that any payments by the Lessee
or its insurance carrier for loss or damage of any kind whatsoever to the
Equipment are not made as accelerated rental payments or adjustments of rental,
but are made solely as indemnity to Lessor for loss or damage of its Equipment.
Lessee shall not make adjustments with insurers except with Lessor's prior
written consent.
16. Enforcement of Warranties
Upon receipt of a written request from Lessee, Lessor shall, so long as
this Lease Agreement is in force, take all reasonable action requested by Lessee
to enforce the Equipment manufacturer's warranties, expressed or implied, issued
on or applicable to the Equipment, which are enforceable by Lessor in its own
name. Lessor shall obtain for Lessee all service furnished by manufacturer in
connection therewith; provided, however, that Lessor shall not be required to
commence any suit or action or resort to litigation to enforce any such warranty
unless Lessee shall first pay to Lessor in advance all expenses in connection
therewith, including attorneys' fees.
If any such warranty shall be enforceable by Lessee in its own name, Lessee
shall, upon receipt of written request from Lessor, so long as this Lease
Agreement is in force, take all reasonable action requested by Lessor to enforce
any such warranty which is enforceable by Lessee in its own name; provided,
however, that Lessee shall not be obligated to commence any suit or action or
resort to litigation to enforce any such warranty unless Lessor shall pay for
all expenses in connection therewith.
17. Warranties, Disclaimers and Indemnity
Lessor warrants that at the time the Equipment is delivered to Lessee,
Lessor will have full right, power and authority to lease the Equipment to
Lessee. EXCEPT FOR THE WARRANTY IN THE IMMEDIATELY PRECEDING SECTION, LESSOR
DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION: THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
USE, OF CONDITION, PERFORMANCE, SUITABILITY OR DESIGN, OR CONFORMITY TO ANY LAW,
RULE, REGULATION, AGREEMENT OR SPECIFICATION, OR OF INFRINGEMENT OR ANY PATENT,
TRADE SECRET, TRADEMARK, COPYRIGHT OR OTHER INTANGIBLE PROPERTY RIGHT. LESSEE
ACKNOWLEDGES THAT IT IS NOT RELYING ON LESSOR'S SKILL OR JUDGMENT TO SELECT OR
FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO
WARRANTIES CONTAINED IN THIS LEASE AGREEMENT. LESSOR SHALL HAVE NO LIABILITY TO
LESSEE (OR ANY OTHER PERSON OR ENTITY), NOR SHALL LESSEE XXXXX PAYMENTS, FOR ANY
LOSS, CLAIM OR DAMAGE OF ANY NATURE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY,
INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, ANY INADEQUACY
THEREOF, DEFICIENCY OR DEFECT THEREIN WHETHER KNOWN OR KNOWABLE BY LESSOR), BY
ANY INCIDENT WHATSOEVER ARISING IN CONNECTION THEREWITH, WHETHER IN STICT
LIABILITY OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING OUT OF THIS LEASE
AGREEMENT OR ANY LEASE SCHEDULE. NO RIGHTS OR REMEDIES REFERRED TO IN DIVISION
10 OF THE UNIFORM COMMERCIAL CODE WILL BE CONFERRED ON LESSEE.
LESSEE ACKNOWLEDGES AND AGREES: (A) LESSOR HAS NOT MADE ANY REPRESENTATION,
WARRANTY OR PROMISE MADE BY ANY SUPPLIER; NEITHER SUPPLIER NOR LESSOR IS AN
AGENT FOR THE OTHER AND LESSOR WILL NOT BE BOUND BY OR LIABLE FOR ANY
REPRESENTATION, WARRANTY OR PROMISE MADE BY SUPPLIER; (B) LESSOR WILL NOT BE
LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY DELAY IN ITS DELIVERY OR
INSTALLATION; AND (C) LESSEE HAS SELECTED ALL EQUIPMENT WITHOUT LESSOR'S
ASSISTANCE. NO DEFECT, UNMERCHANTABILITY OR UNFITNESS OF THE EQUIPMENT SHALL
RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR PERFORM OTHER OBLIGATIONS UNDER
THIS LEASE.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify, defend and hold Lessor harmless with respect to, any claim from a
third party for any liability, claim, loss, damage, cost or expense of any kind
or nature, whether based upon a theory of strict liability or otherwise, caused,
directly or indirectly, by: (i) the inadequacy of any item of Equipment,
including software, for any purpose; (ii) any deficiency or any latent or other
defects in any Equipment, including software, whether or not detectable by
Lessee; (iii) the selection, manufacture, purchase, acceptance, rejection,
ownership, delivery, installation, lease, possession, maintenance, operation,
use or performance of any item of Equipment, including software; (iv) any
interruption or loss of service, use or performance of any item of Equipment,
including software; (v) patent, trademark, copyright or other intellectual
property infringement; or (vi) any loss of business or other special, incidental
or consequential damages whether or not resulting from any of the foregoing.
Lessee's duty to defend and indemnify Lessor shall survive the expiration,
termination, cancellation or assignment of this Lease Agreement or a Lease
Schedule and shall be binding upon Lessee's successors and permitted assigns.
18. Event of Default
The occurrence of any of the following events shall constitute an Event
of Default under this Lease Agreement and/or any Lease Schedule:
(1) The nonpayment by Lessee of any Lease Charges when due, or
the nonpayment by Lessee of any other sum required hereunder to be paid
by Lessee which non-payment continues for a period of ten (10) days
from the date when due;
(2) The failure of Lessee to perform any other term, covenant
or condition of this Lease Agreement, any Lease Schedule or any other
document, agreement or instrument executed pursuant hereto or in
connection herewith which is not cured within ten (10) days after
written notice thereof from Lessor;
(3) Lessee attempts to or does remove, transfer, sell, swap,
assign, sublease, trade, exchange, encumber, receive an allowance or
credit for, or part with possession of, any item of Equipment;
(4) Lessee ceases doing business as a going concern, is
insolvent, makes an assignment for the benefit of creditors, fails to
pay its debts as they become due, offers a settlement to creditors or
calls a meeting of creditors for any such purposes, files a voluntary
petition in bankruptcy, is subject to an involuntary petition in
bankruptcy, is adjudicated bankrupt or insolvent files or has filed
against it a petition seeking any reorganization, arrangement or
composition, under any present or future statute, law or regulation.
(5) Any of Lessee's representations or warranties made herein
or on any statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading
in any material respect;
(6) Lessee defaults under or otherwise has accelerated any
material obligation, credit agreement, loan agreement, conditional
sales contract, lease, indenture or debentures; or Lessee defaults
under any other agreement now existing or hereafter made with Lessor;
(7) The breach or repudiation by any person or entity of any
guaranty, subordination agreement or other agreement running in favor
of Lessor obtained in connection with this Lease Agreement; or
(8) A change of control of Lessee, whether by merger,
acquisition, asset sale or otherwise, provided that, in the event of a
change of control, Lessor's written consent shall constitute a waiver
of this restriction and if, but only if, Lessee provides Lessor with
such information as Lessor requests regarding the change of control,
Lessor shall not unreasonably withhold consent. In the event of any
sale of assets by Lessee as part of a change of control, all of
Lessee's assets sold shall remain available to satisfy a judgment for
Lessor arising from a default under this Lease Agreement of provisions
in the asset sale or other agreement effecting the change of control
absolving the purchaser or surviving entity of such liability.
19. Remedies
Should any Event of Default occur, Lessor may, in order to protect its
interest and reasonably expected profits, with or without notice or demand upon
Lessee, pursue and enforce, alternatively, successively and/or concurrently, any
one or more of the following remedies:
(1) Recover from Lessee all accrued and unpaid Lease
Charges and other amounts due and owing on the date of the default;
(2) Recover from Lessee from time to time all Lease Charges
and other amounts as and when becoming due hereunder.
(3) Accelerate, cause to become immediately due and recover
the present value of all Lease Charges and other amounts due and/or
likely to become due hereunder from the date of the default to the end
of the lease term using a discount rate of five percent (5%).
(4) Cause to become immediately due and payable and
recover from Lessee the Casualty Loss Value of the Equipment;
(5) Terminate any or all of the Lessee's rights, but not
its obligations, associated with the lease of the Equipment under this
Lease Agreement or any Lease Schedule;
(6) Retake (by Lessor, independent contractor, or by requiring
Lessee to assemble and surrender the Equipment in accordance with the
provisions of Section 9 above) possession of the Equipment without
terminating the Lease Schedule or the Lease Agreement free from claims
by Lessee which claims are hereby expressly waived by Lessee;
(7) Require Lessee to deliver the Equipment to a location
designated by Lessor;
(8) Proceed by court action to enforce performance by Lessee
of its obligations associated with any Lease Schedule and/or this Lease
Agreement; and/or
(9) Pursue any other remedy lessor may otherwise have under
this Agreement, at law, in equity or otherwise, and recover damages and
expenses (including attorney's fees) incurred by Lessor by reason of
the Event of Default.
Upon repossession of the Equipment, Lessor shall have the right to lease, sell
or otherwise dispose of such Equipment in a commercially reasonable manner, with
or without notice, at a public or private sale, and apply the net proceeds
thereof to the amounts owed by Lessee hereunder. For purposes of this paragraph,
net proceeds shall mean either: (i) the present value of the Monthly Lease
Charges to be received under the new lease using a term not to exceed the
remaining number of months in the Initial Term of the Lease Schedule in default
and a discount rate of twelve percent (12%); or (ii) the amount received in cash
upon the sale of the Equipment, less, in either event, all expenses incurred by
or for Lessor in connection with such lease or sale, including, but not limited
to, reconditioning and removal expenses, repair costs, commissions and
attorneys' fees. If the net proceeds are not enough to satisfy all of the
amounts owed by Lessee hereunder, Lessee shall remain liable to Lessor for any
deficiency. Lessor's pursuit and enforcement of any one or more remedies shall
not be deemed an election or waiver by Lessor of any other remedy. Lessor shall
not be obligated to sell or re-lease the Equipment. Any sale or re-lease may be
held at such place or places as are selected by Lessor, with or without having
the Equipment present. Any such sale or re-lease, may be at wholesale or retail,
in bulk or in parcels. Time and exactitude of each of the terms and conditions
of this Lease Agreement are hereby declared to be of the essence. Lessor may
accept past due payments without modifying the terms of this Lease Agreement and
without waiving any rights of Lessor hereunder.
20. Costs and Attorneys' Fees
In the event of any default, claim, proceeding, including a bankruptcy
proceeding, arbitration, mediation, counter-claim, action (whether legal or
equitable), appeal or otherwise, whether initiated by Lessor or Lessee (or a
debtor-in-possession or bankruptcy trustee), which arises out of, under, or is
related in any way to this Lease Agreement, any Lease Schedule, or any other
document, agreement or instrument executed pursuant thereto or in connection
therewith, or any governmental examination or investigation of Lessee which
requires Lessor's participation (individually and collectively, the "Claim"),
Lessee, in addition to all other sums which Lessee may be called upon to pay
under the provisions of this Lease Agreement, shall pay to Lessor, on demand,
all costs, expenses and fees paid or payable in connection with the Claim,
including, but not limited to, attorneys' fees and out-of-pocket costs,
including travel and related expenses incurred by Lessor or its attorneys.
21. Lessor's Performance Option
Should Lessee fail to make any payment or to do any act as provided by
this Lease Agreement, then Lessor shall have the right (but not the obligation),
without notice to Lessee of its intention to do so and without releasing Lessee
from any obligation hereunder to make or to do the same, to make advances to
preserve the Equipment or Lessor's title thereto, and to pay, purchase, contest
or compromise any insurance premium, encumbrance, charge, tax, lien or other sum
which in the judgment of Lessor appears to affect the Equipment, and in
exercising any such rights, Lessor may incur any liability and expend whatever
amounts in its absolute discretion it may deem necessary therefor. All sums so
incurred or expended by Lessor shall be due and payable by Lessee within ten
(10) days of notice thereof.
22. Quiet Possession and Inspection
Lessor hereby covenants with Lessee that Lessee shall quietly possess
the Equipment subject to and in accordance with the provisions hereof so long as
Lessee is not in default hereunder; provided, however, that Lessor or its
designated agent may, at any and all reasonable times during business hours,
enter Lessee's premises for the purposes of inspecting the Equipment and the
manner in which it is being used.
23. Assignments
This Lease Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Lessee, however,
shall not assign, transfer, pledge, mortgage, hypothecate or otherwise dispose
of this Lease Agreement, the Lease Schedule(s), the Equipment, or any interest
therein, or sublet any of the Equipment without first obtaining the prior
written consent of Lessor and its assigns, if any. Lessee acknowledges that the
terms and conditions of this Lease Agreement have been fixed in anticipation of
the possible assignment of Lessor's rights under this Lease Agreement and in and
to the Equipment as collateral security to a third party (an "Assignee") which
will rely upon and be entitled to the benefit of the provisions of this Lease
Agreement. Lessee agrees to provide Lessor or its assigns with Lessee's most
recent audited and its most current financial statements. Lessee agrees with
Lessor and such Assignee to recognize in writing any such assignment within
fifteen (15) days after receipt of written notice thereof and to pay thereafter
all sums due to Lessor hereunder directly to such Assignee if directed by
Lessor, notwithstanding any defense, set-off or counterclaim whatsoever (whether
arising from a breach of this Lease Agreement or not) that Lessee may from time
to time have against Lessor. Upon such assignment, the Lessor shall remain
obligated to perform any obligations it may have under this Lease Agreement and
the Assignee shall (unless otherwise expressly agreed to in writing by the
Assignee) have no obligation to perform such obligations. Any such assignment
shall be subject to Lessee's rights to use and possession of the Equipment so
long as Lessee is not in default hereunder.
24. Survival of Obligations
All covenants, agreements, representation, and warranties contained in
this Lease Agreement, any Lease Schedules, or in any document attached thereto,
shall be for the benefit of Lessor and Lessee and their respective successors,
any permitted assignee or secured party and shall survive the execution and
delivery of this Lease Agreement and the expiration or other termination of this
Lease Agreement.
25. Corporate Authority
The parties hereto covenant and warrant that the persons executing this
Lease Agreement and each Lease Schedule on their behalf have been duly
authorized to do so, and this Lease Agreement and any Lease Schedule constitute
a valid and binding obligation of the parties hereto. The Lessee will, if
requested by Lessor, provide to Lessor Certificates of Authority naming the
officers of the Lessee who have the authority to execute this Lease Agreement
and any Lease Schedules attached thereto.
26. Landlords' and Mortgagees' Waiver
If requested, Lessee shall furnish waivers, in form and substance
satisfactory to Lessor, from all landlords and mortgagees of any premises upon
which any Equipment is located.
27. Miscellaneous
This Lease Agreement, the Lease Schedule(s), attached riders and any
documents or instruments issued or executed pursuant hereto will have been made,
executed and delivered in and shall be governed by the internal laws (as opposed
to conflicts of law provisions) and decisions of the State of California. Lessee
and Lessor consent to jurisdiction of any local, state or federal court located
within California. Venue shall be in California and Lessee hereby waives local
venue and any objection relating to California being an improper venue to
conduct any proceeding relating to this Lease Agreement. At Lessor's sole
election and determination, Lessor may select an alternative forum, including
arbitration or mediation, to adjudicate any dispute arising out of this Lease
Agreement.
This Lease Agreement and associated Lease Schedule(s) constitute the entire
agreement between Lessor and Lessee with respect to the lease of the Equipment,
superseding all prior or contemporaneous understandings, agreements and
correspondence between the parties. No provision of this Lease Agreement or any
Lease Schedule shall be deemed waived, amended or modified by either party
unless such waiver, amendment or modification is in writing and signed by each
of the parties hereto. If any one or more of the provisions of this Lease
Agreement or any Lease Schedule is for any reason held invalid, illegal or
unenforceable, the remaining provisions of this Lease Agreement and any such
Lease Schedule will be unimpaired, and the invalid, illegal or unenforceable
provisions shall be replaced by a mutually acceptable valid, legal and
enforceable provision that is closest to the original intention of the parties.
Lessee agrees that neither the manufacturer, nor the supplier, nor any of their
salespersons, employees or agents are agents of Lessor.
Any notice provided for herein shall be in writing and sent by certified or
registered mail to he parties at the addresses stated on page 1 of this Lease
Agreement.
This Lease Agreement shall not become effective until executed and delivered by
Lessee to Lessor at its offices at [*] and executed by Lessor. If this Lease
Agreement shall be executed by Lessor prior to being executed by Lessee, it
shall become void at Lessor's option five (5) days after the date of Lessor's
execution hereof, unless Lessor shall have received by such date a copy of this
Lease Agreement fully executed by a duly authorized representative of Lessee.
This Lease Agreement is made subject to the terms and conditions included herein
and Lessee's acceptance is effective only to the extent that such terms and
conditions are consistent with the terms and conditions herein. Any acceptance
that contains terms and conditions that are in addition to or inconsistent with
the terms and conditions herein will be a counter-offer and will not be binding
unless agreed to in writing by Lessor.
The terms used in this Lease Agreement, unless otherwise defined, shall have the
meanings ascribed to them in the Lease Schedule(s).
28. REPOSSESSION
LESSEE ACKNOWLEDGES THAT, PURSUANT TO SECTION 19 HEREOF, LESSOR HAS
BEEN GIVEN THE RIGHT TO REPOSSESS THE EQUIPMENT SHOULD LESSEE BECOME IN DEFAULT
OF ITS OBLIGATIONS HEREUNDER. LESSEE HEREBY WAIVES THE RIGHT, IF ANY, TO REQUIRE
LESSOR TO GIVE LESSEE NOTICE AND A JUDICIAL HEARING PRIOR TO EXERCISING SUCH
RIGHT OF REPOSSESSION.
29. Net Lease
This Lease Agreement is a net lease and Lessee's obligations to pay all
Lease Charges and other amounts payable hereunder shall be absolute and
unconditional and, except as expressly provided herein, shall not be subject to
any: (i) delay, abatement, reduction, defense, counterclaim, set-off or
recoupment; (ii) discontinuance or termination of any license; (iii) Equipment
failure, defect or deficiency; (iv) damage to or destruction of the Equipment;
or (v) dissatisfaction with the Equipment or otherwise, including any present or
future claim against Lessor or the manufacturer, supplier, reseller, vendor of
the Equipment. To the extent that the Equipment includes intangible (or
intellectual) property, Lessee understands and agrees that: (i) Lessor is not a
party to and does not have any responsibility under any software license and/or
other agreement with respect to any software; and (ii) Lessee will be
responsible to pay all of the Lease Charges and perform all its other
obligations under this Lease Agreement despite any defect, deficiency, failure,
termination, dissatisfaction, damage or destruction of any software or software
license. Except as expressly provided herein, this Lease Agreement shall not
terminate for any reason, including any defect in the Equipment or Lessor's
title thereto or any destruction or loss of use of any item of Equipment.
30. Headings
Section headings herein are used for convenience only and shall not
otherwise affect the provisions of this Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement to be
signed by their respective duly authorized representative.
Every Term Is Agreed to and Accepted: Every Term is Agreed to and Accepted:
[*] GLOBAL TECHNOVATIONS, INC. AND
SUBSIDIARIES
"LESSOR" "LESSEE"
By:_____________________________ By:______________________________
Print Print
Name:___________________________ Name:____________________________
Title:__________________________ Title:___________________________
Date:___________________________ Date:____________________________
REDACTED COPY
Global Technovations, Inc.
OSA FIXED ASSETS VISCOM SORTED
BY
ITEM Customer Date Unit
asset # Name Placed Serial # cost A/d net
1 1189 * 4/30/00 * * * *
2 1193 * 9/14/99 * * * *
3 1108 * 7/21/00 * * * *
4 1115 * 4/7/00 * * * *
5 1209 * 8/23/00 * * * *
6 1132 * 12/5/00 * * * *
7 1144 * 12/5/00 * * * *
8 1162 * 7/20/00 * * * *
9 1203 * 11/9/99 * * * *
10 1206 * 9/11/00 * * * *
11 1177 * 1/5/00 * * * *
12 1112 * 2/11/00 * * * *
13 1130 * 12/19/00 * * * *
14 1174 * 12/10/99 * * * *
15 1181 * 1/31/00 V * * * *
16 1201 * 6/2/00 * * * *
17 1154 * 9/10/99 * * * *
18 1211 * 8/21/00 * * * *
19 1190 * 4/17/00 * * * *
20 1129 * 9/21/00 * * * *
21 1195 * 4/27/00 V * * * *
22 1149 * 8/3/99 * * * *
23 1150 * 8/10/99 * * * *
24 1140 * 9/25/00 * * * *
25 1133 * 4/12/99 * * * *
26 1128 * 12/7/00 * * * *
27 1131 * 10/10/00 * * * *
28 1196 * 4/28/00 * * * *
29 1208 * 8/11/00 * * * *
30 1210 * 9/6/00 * * * *
31 1120 * 7/18/00 * * * *
32 1214 * 11/8/00 * * * *
33 1200 * 1/16/01 * * * *
34 1220 * 1/17/01 * * * *
35 1106 * 9/8/99 * * * *
36 1160 * 1/12/00 * * * *
37 1182 * 2/25/00 * * * *
38 1159 * 12/17/99 * * * *
39 1116 * 9/22/00 * * * *
40 1212 * 10/10/00 * * * *
41 1166 * 7/19/00 * * * *
42 1156 * 9/17/99 * * * *
43 1221 * 2/27/01 * * * *
44 1218 * 1/5/01 * * * *
45 1179 * 1/19/00 * * * *
46 1113 * 8/7/00 * * * *
47 1100 * 12/8/98 * * * *
48 1184 * N/A * * * *
49 1185 * N/A * * * *
50 1143 * N/A V * * * *
51 1172 * N/A * * * *
52 1204 * N/A * * * *
53 1000 * N/A * * * *
54 1001 * N/A * * * *
55 1002 * N/A * * * *
56 1003 * N/A * * * *
57 1102 * N/A * * * *
58 1222 * 2/6/01 * * * *
59 1147 * 6/30/99 * * * *
60 1187 * 3/24/00 * * * *
61 1167 * 9/27/00 * * * *
62 1176 * 1/4/00 * * * *
63 1146 * 6/22/99 * * * *
64 1102-2 * N/A * * * *
65 1142 * 6/9/99 * * * *
66 1152 * 12/5/00 V * * * *
67 1217 * 12/5/00 V * * * *
68 1219 * 1/25/01 V * * * *
69 1216 * 11/28/00 V * * * *
70 1141 * 10/10/00 V * * * *
71 1171 * 11/30/99 * * * *
72 1137 * 5/7/99 * * * *
73 1207 * 8/4/00 * * * *
74 SUB TOTAL
75 --OSA II'S * * * *
76 n/a
77 INVENTORY COMPONENTS
78 @COST 2/1/01 * * * *
* * * *
GRAND TOTAL * * * *
*Confidential portions omitted and filed separately with the Commission.
Rider Number: 001
Lease Agreement Number: GLO052501
Lease Schedule Number: ALL
Lessee Name: Global Technovations, Inc. and Subsidiaries
Lease Dated: May 25, 2001
THIS RIDER TO LEASE AGREEMENT NO. GLO052501 (this "Rider") is entered into as of
May 25, 2001 by and between [*] ("Lessor") having its principal place of
business at [*], and GLOBAL TECHNOVATIONS, INC. AND SUBSIDIARIES ("Lessee"),
having a principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000 and is hereby incorporated into the Lease Agreement
as if the following terms were fully set forth therein. All terms used in this
Rider which are defined in the Lease Agreement will have the same meaning as in
the Lease Agreement.
Lessee hereby certifies that the following parties are authorized on behalf of
Lessee to execute and deliver on behalf of Lessee all Lease Schedules,
Certificates of Acceptance to said Lease Schedules, Rider's, and related
documents which may be required by Lessor from time to time in connection with
or related to the Lease Agreement and Lease Schedule entered into pursuant
thereto, and to authorize disbursement of funds for required rental payments
pursuant to said Lease Schedules. The following sets forth the names and
specimen signatures of such authorized parties.
Authorized Signer's Name: _______________________________________________
Title: __________________________________________________________________
Specimen Signature: _____________________________________________________
Authorized Signer's Name: _______________________________________________
Title: __________________________________________________________________
Specimen Signature: _____________________________________________________
Authorized Signer's Name: _______________________________________________
Title: __________________________________________________________________
Specimen Signature: _____________________________________________________
IN WITNESS WHEREOF, Lessor and Lessee have caused this Rider to be duly executed
by their authorized representatives as of the date first above written.
[*] GLOBAL TECHNOVATIONS, INC.
AND SUBSIDIARIES
"LESSOR" "LESSEE"
By: By:
---------------------------- -------------------------------
(Authorized Signature) (Authorized Signature)
Name/Title: ___________________ Name/Title: _____________________
Date: Date:
------------------- --------------------
Rider Number: 002
Lease Agreement Number:
Lease Schedule Number:
Lessee Name:
Lease Dated:
INTEREST RATE FLUCTUATION
This lease is intended to be a fixed rate lease from commencement date to the
end of the term. The three year treasury rate is an integral part of the lease
rate in this lease. The Lessee and Lessor agree that the lease rate shall be
fixed for the interim period and that should the three year treasury note
increase between the execution date of the Agreement and commencement date, the
lease rate will be adjusted accordingly and will then be fixed for the term of
the lease.
Agreed to and Accepted: Agreed to and Accepted:
[*] GLOBAL TECHNOVATIONS, INC.
AND SUBSIDIARIES
"LESSOR" "LESSEE"
By:____________________________ By:___________________________
Print Print
Name:__________________________ Name:________________________
Title:___________________________ Title:_________________________
Date:___________________________ Date:__________
LEASE SCHEDULE NO. 001
This Lease Schedule is issued pursuant to Lease Agreement Xx. XXX000000, dated
May 25, 2001. The terms and conditions of the Lease Agreement and serial numbers
contained on Certificates of Acceptance are a part hereof and incorporated by
reference herein.
LESSOR LESSEE
[*] Global Technovations, Inc. and
[*] Subsidiaries
[*] 0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
SUPPLIER OF EQUIPMENT LOCATION OF INSTALLATION
Various Various
Term of Lease from Commencement Date: 24 Months
Monthly Lease Charge: $92,040
Anticipated Delivery and Installation: June 2001
Security Deposit: Lessee shall deliver a security deposit in the amount of
$92,040. If no Event of Default has occurred, this security deposit will be
applied toward the total Lease Charges associated with the last month of this
Lease Schedule.
EQUIPMENT
Manufacturer Qty Machine/Model Equipment Description (Including Features)
Oil Analyzers
The Monthly Lease Charge will be prorated and charged as interim rent between
the date an item of equipment is accepted and the Commencement Date. This Lease
Schedule is contingent upon a letter of credit which is acceptable to Lessor.
Every Term Is Agreed to and Accepted: Every Term is Agreed to and Accepted:
[*] GLOBAL TECHNOVATIONS, INC.
AND SUBSIDIARIES
"LESSOR" "LESSEE"
By:______________________________ By:________________________________
Print Print
Name:____________________________ Name:______________________________
Title:___________________________ Title:_____________________________
Date:____________________________ Date:______________________________
