Interim Funding Schedule - No. 01 Dated March 6, 2007 To Master Equipment Lease Agreement Dated as of March 6, 2007
Interim
Funding Schedule - No. 01
Dated
March
6,
2007
To
Master
Equipment Lease Agreement
Dated
as
of Xxxxx
0,
0000
| Xxxxxx: |
THE
FIFTH THIRD LEASING COMPANY,
|
an
Ohio corporation
| Lessee: |
ADVANCED
PHOTONIX, INC.
|
All
of
the terms of the Master Equipment Lease Agreement dated as of March
6,
2007
(as
amended, supplemented or modified from time to time, the “Master Lease”) between
Lessee and Lessor are incorporated by reference herein. Capitalized terms used,
and not otherwise defined, herein shall have the meanings ascribed thereto
in
the Master Lease. This Interim Funding Schedule as it incorporates the terms
of
the Master Lease and each schedule, exhibit and rider attached hereto is
referred to as this “Lease”. If any term of any schedule, exhibit or rider
hereto conflicts with or is inconsistent with any term of this Interim Funding
Schedule or the Master Lease, the terms of such schedule, exhibit or rider
shall
govern. This Interim Funding Schedule shall constitute an “Equipment Schedule”
for all purposes of the Master Lease.
1. Equipment.
This
Interim Funding Schedule relates to equipment to be purchased by Lessor as
described on Schedule 1 hereto (such equipment, to the extent a Final Equipment
Schedule (as defined herein) has not been executed with respect thereto,
collectively the “Equipment”).
2. Lease
of Equipment and Funding.
(a) Subject
to the terms and conditions set forth herein, on or before June
30,
2007
(the
“Commitment Termination Date”), at the request of Lessee, Lessor shall fund the
purchase of Equipment by making payments in respect of the purchase price of
such Equipment as
designated by Lessee on Schedule A attached hereto or one or more draw requests
provided by Lessee to Lessor from time to time
(the
“Progress Payments”). The aggregate amount of Progress Payments paid by Lessor
hereunder shall not exceed a total of Two
Million Three Hundred Thousand
Dollars
and zero Cents ($2,300,000.00)
(the
“Commitment”).
(b) Lessee
shall request that Lessor make a Progress Payment by delivering a notice (a
“Funding Request”) to Lessor which such notice shall (i) identify the
amount of such Progress Payment, which, together with all other Progress
Payments previously made by lessor shall not exceed the Commitment, (ii)
identify the date on which such Progress Payment is to be made which date shall
be a Business Day not earlier than three (3) Business Days after the date of
such Funding Request and not later than the Commitment Termination Date and
(iii) attach an invoice from the Supplier of the Equipment in an amount equal
to
the requested amount of the Progress Payment. Delivery of such Funding Request
shall constitute an acknowledgement by Lessee that such invoice is approved
and
accepted by Lessee.
(c) The
obligation of Lessor to make Progress Payments shall be subject to satisfaction
(or waiver by Lessor) of each of the following conditions, prior to the date
on
which such Progress Payment is to be made:
(i) Lessor
shall have received each of the following documents, in form and substance
satisfactory to Lessor: (A) a Master Lease duly executed by Lessee; (B) a
Funding Request; (C)
each
of
the documents required by Section 7(a) of the Master Lease (other than the
conditions referred to in Section 7(a)(ii) and (iv) with respect to any
Equipment which will not be delivered to Lessee at the time such Progress
Payment is made); and
(ii) Each
of
the other conditions set forth in Section 7 of the Master Lease shall have
been
satisfied.
3. Final
Equipment Schedule; Termination.
(a) Lessor
and Lessee intend to execute an Equipment Schedule which expressly supercedes
and replaces this Interim Funding Schedule (a “Final Equipment Schedule”). Such
Final Equipment Schedule shall be effective on the date (the “Lease Closing
Date”) on which each of the following conditions have been satisfied (or waived
by Lessor):
(i) Lessor
shall have received each of the following documents, in form and substance
satisfactory to Lessor: (A) a Final Equipment Schedule duly executed by Lessee;
(B) an Acceptance Certificate for each “Item of Equipment” (as defined in such
Final Equipment Schedule) (which shall include all Equipment for which Progress
Payments have been made hereunder) duly executed by Lessee; (C) each of the
other documents required by Section 7(a) of the Master Lease;
(ii) Not
less
than ten (10) days prior to the Lease Closing Date, Lessee shall have delivered
a notice to Lessor requesting that a Final Equipment Schedule be executed and
specifying a date intended to be the Lease Closing Date;
(iii) Each
of
the other conditions set forth in Section 7 of the Master Lease and each of
the
conditions (if any) set forth in the Final Equipment Schedule shall have been
satisfied.
(b) The
obligation of Lessor to make Progress Payments shall terminate on the earlier
to
occur of (A) the Lease Closing Date and (B) the Commitment Termination Date
(such date, the “Termination Date”).
4. Payments.
(a) As
used
herein, “Interest Rate” shall mean the percentage per annum equal to the rate
(adjusted for the current maximum reserve rate required to be maintained by
Lender) reported in the Wall Street Journal (Eastern Edition) as Prime Rate
plus
1/8%. Interest shall be computed on the basis of a year of 360 days for the
actual number of days elapsed and shall accrue on the outstanding principal
amount hereunder from and including the date each Advance is made to but
excluding the date the entire principal amount hereunder is paid in full. The
Interest Rate applicable to each Advance shall initially be determined on the
second to last calendar day of the month immediately preceding the date such
Advance was made and the Interest Rate shall be adjusted automatically on the
second to last calendar day of the month which is one
month
after
the date such Interest Rate was last determined; provided
that,
in
each such case, if such day is not a Business Day, such adjustment shall be
made
on the Business Day immediately preceding such day.
(b) On
the
Termination Date, Lessee shall pay to Lessor an amount equal to the aggregate
amount of all Progress Payments made by Lessor hereunder together with all
amounts due and payable pursuant to Section 4(a)
hereof;
provided,
however, that
if
the Lease Closing Date occurs, the amount which Lessee is obligated to pay
pursuant to this Section 4(a)
shall be
reduced by an amount equal to the Lessor’s Capitalized Cost (as defined in such
Final Equipment Schedule).
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(c) If
(i) an
Event of Default has occurred and is continuing, or (ii) for any reason
whatsoever Supplier fails to deliver to Lessee an item of Equipment described
in
the Supply Contract in accordance with the terms thereof, or (iii) Lessee fails
to accept any Equipment, or (iv) Progress Payments shall exceed the maximum
amount provided in Section 2(a),
then,
in any such event, Lessee shall immediately upon demand, pay Lessor an amount
equal to the sum of (A) the total amount of all Progress Payments paid by Lessor
for all Equipment, plus (B) any other amounts due under the Lease including
any
accrued but unpaid payments referred to in Section 4(a).
Upon
Lessor’s receipt of such aggregate payment, Lessor will transfer all its right,
title and interest in and to the Equipment to Lessee on an “as-is, where-is”
basis without representation or warranty.
5. Insurance.
Lessee
shall maintain the insurance required pursuant to Section 10 of the Master
Lease. For purposes of this Interim Funding Schedule, the Stipulated Loss Value
for the Equipment at any time shall be an amount equal to 103%
of
the
amount of the Progress Payments made as of such time. The amount of public
liability and property damage insurance required to be maintained by the Lessee
pursuant to Section 10(a) of the Master Lease is $1,000,000.00.
6. Additional
Provisions.
(a) The
Equipment location shall be as specified on Schedule 1 hereto.
(b) To
the
extent any Equipment is delivered to Lessee, Lessor shall be considered to
be
the owner of such Equipment and title to such Equipment shall vest in Lessor
without further action by Lessor or Lessee.
Except
as
expressly modified hereby, all terms and provisions of the Master Lease shall
remain in full force and effect. This Interim Funding Schedule is not binding
or
effective with respect to the Master Lease or Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
Remainder
of page intentionally left blank. Signature page follows.
3
IN
WITNESS WHEREOF, Lessee and Lessor have caused this Interim Funding Schedule
to
be executed by their duly authorized representatives as of the date first above
written.
| LESSOR: | LESSEE: | |
| THE FIFTH THIRD LEASING COMPANY | ADVANCED PHOTONIX, INC. | |
| By: /s/ Xxxxx Xxxxx | By: /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx Xxxxx | Name: Xxxxx X. Xxxxxx | |
| Title: Vice President | Title: CFO |
THIS LEASE MAY BE EXECUTED IN SEVERAL COUNTERPARTS AND TO THE EXTENT, IF ANY, THAT THIS LEASE CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS LEASE MAY BE PERFECTED THROUGH THE TRANSFER OF POSSESSION OF ANY COUNTERPART OTHER THAT THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE CHATTEL PAPER ORIGINAL ON THE SIGNATURE PAGE THEREOF. THIS IS THE CHATTEL PAPER ORIGINAL.
CHATTEL
PAPER ORIGINAL
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IN
WITNESS WHEREOF, Lessee and Lessor have caused this Interim Funding Schedule
to
be executed by their duly authorized representatives as of the date first above
written.
| LESSOR: | LESSEE: | |
| THE FIFTH THIRD LEASING COMPANY | ADVANCED PHOTONIX, INC. | |
| By: /s/ Xxxxx Xxxxx | By: /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx Xxxxx | Name: Xxxxx X. Xxxxxx | |
| Title: Vice President | Title: CFO |
THIS
LEASE MAY BE EXECUTED IN SEVERAL COUNTERPARTS AND TO THE EXTENT, IF ANY, THAT
THIS LEASE CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM
COMMERCIAL CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY
INTEREST IN THIS LEASE MAY BE PERFECTED THROUGH THE TRANSFER OF POSSESSION
OF
ANY COUNTERPART OTHER THAT THE ORIGINAL COUNTERPART, WHICH SHALL BE IDENTIFIED
AS THE CHATTEL PAPER ORIGINAL ON THE SIGNATURE PAGE THEREOF. THIS IS
NOT
THE
CHATTEL PAPER ORIGINAL.
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