MDFC Equipment Leasing Corporation
Equipment Lease Agreement
Equipment Lease No. 3567-1
THIS EQUIPMENT LEASE AGREEMENT ("Lease") is dated as of the 20 day of December
1999, and is by and between -- MDFC Equipment Leasing Corporation, a Delaware
corporation ("Lessor") and Radiant Aviation Services, Inc., a New York
corporation ("Lessee").
W i t n e s s e t h:
1. Lease. Lessor hereby agrees, subject to satisfaction of the conditions
herein, to lease to Lessee and Lessee hereby agrees to lease from Lessor each
item of equipment (individually called an "Item of Equipment" and collectively
the "Equipment") described in each Individual Equipment Record ("IER") executed
and delivered by Lessor and Lessee pursuant to the terms of this Lease. Each IER
is hereby incorporated herein by this reference.
2. Term. The term ("Term") of this Lease shall commence, with respect to
an Item of Equipment, on the acceptance date ("Acceptance Date") for such Item
of Equipment as set forth in the applicable IER, and, subject to the terms
hereof, shall continue until the end of the base term ("Base Term") set forth in
such IER as measured from the base term commencement date ("Base Term
Commencement Date") set forth in such IER, plus any extensions or renewals of
the Base Term. This Lease shall be noncancellable for the Term except as
provided herein.
3. Rent; Overdue Rate. Lessee shall pay Lessor rent for an Item of
Equipment throughout the Term as set forth in the applicable IER, without
deduction or offset, in the amounts and at the times set forth in such IER. Any
rent or other amount not paid to Lessor when due hereunder shall bear interest,
both before and after any judgment or termination hereof, at the lesser of the
Prime Rate (as defined below) plus 3% per annum or the maximum rate allowed by
law (the "Overdue Rate"). Prime Rate shall mean the rate of interest equal to
the prime rate announced publicly from time to time by Chase Manhattan Bank in
New York (or any successor thereto). Acceptance of interest on overdue payments
by Lessor shall in no event constitute a waiver of Lessee's default with respect
to such overdue amount or prevent Lessor from exercising any of the other rights
and remedies granted hereunder or by applicable law. Rent and all other amounts
payable to Lessor hereunder shall be payable by federal funds wire transfer or
by Automated Clearing House (ACH) payment format Cash Concentration and
Disbursement Plus Addendum (CCD+) for the account of the Lessor to a bank to be
designated by Lessor, together with notice so as to provide Lessor with the use
of the funds on or before 11 a.m., California time, on the due date.
4. Taxes Against Lessor or Equipment. Lessee agrees to pay and to
indemnify against and hold Lessor harmless from, all license and registration
fees and sale, use, transfer, personal property, stamp or other taxes, levies,
imposts, duties, charges or withholdings of any nature whatsoever together with
any penalties, fines or interest thereon (collectively, "Taxes") imposed against
Lessor, Lessee or the Equipment or any part thereof by any foreign, Federal,
state, or local government or taxing authority, during the Term or in connection
with the termination of this Lease, upon or with respect to the Equipment or any
part thereof or upon the purchase, ownership, delivery, lease, possession, use,
operation, return or other disposition thereof, or upon the rentals, receipts or
earnings arising therefrom, or upon or with respect to this Lease (excluding,
however, (i) any taxes imposed by the Federal government on, based on, or
measured by, the net income of Lessor and (ii) any income or franchise taxes
imposed by any taxing authority other than the Federal government on, based on,
or measured by, the net income of Lessor which in the aggregate do not exceed
the amount of any such taxes which would be payable to the taxing authorities of
the jurisdictions, other than the United States of America, in which Lessor has
its principal place of business assuming no allocation or apportionment to any
other taxing authority). In case any report or return is required to be made
with respect to any obligation of Lessee under this Section or arising out of
this Section, Lessee will notify Lessor of such requirement and Lessee will
prepare such report or return for filing by Lessor in such manner as shall be
satisfactory to Lessor. If claim is made against Lessor for any Taxes, Lessor
shall promptly notify Lessee. If reasonably requested by Lessee in writing,
Lessor shall, at Lessee's expense, take such action as Lessee may reasonably
request with respect to such asserted liability, provided that Lessee furnishes
an opinion of independent counsel, which opinion and counsel shall both be
satisfactory to Lessor, to the effect that such action is prudent, reasonable
and proper, and if reasonably so requested by Lessee, any payment by Lessor of
such Taxes shall be made under protest, if protest is necessary and proper.
Notwithstanding the above, Lessor shall have the sole control over the contest
of such asserted liability. In addition, Lessor shall have the right to pay such
asserted liability at any time in its sole discretion in which case Lessor
shall, at Lessee's expense, take such action as Lessee may reasonably request to
recover such payment and shall, if requested, permit Lessee in Lessor's name to
file a claim or prosecute an action to recover such payment. All of the
Equipment Lease Agreement Page 1 of 11
obligations of Lessee under this Section with respect to any Taxes imposed or
accrued before the expiration or other termination of this Lease shall continue
in full force and effect notwithstanding such expiration or other termination
and are expressly made for the benefit of, and shall be enforceable by, Lessor
and its successors and assigns.
5. Lessor's Right to Pay or Perform for Lessee. Should Lessee fail to make
any payment or do any act as herein required, then Lessor shall have the right,
but not the obligation, without releasing Lessee from any obligation hereunder,
to make or do the same, and to pay, purchase, contest or compromise any Lien (as
defined in Section 20 hereof) not permitted hereunder which in Lessor's judgment
may affect the Equipment or Lessor's rights with respect thereto, and in
exercising any such rights, incur any liability and expend whatever amounts in
its discretion it may deem necessary therefor. All sums so incurred or expended
by Lessor shall be payable by Lessee and shall bear interest at the Overdue Rate
from a date ten days after Lessee has been invoiced by Lessor to the date Lessor
is reimbursed therefor by Lessee.
6. Use and Ownership. Lessee shall use, operate, maintain and store the
Equipment in a careful and proper manner and shall comply with all laws,
ordinances, rules, regulations and insurance requirements in any way relating to
the possession, use, operation or maintenance of the Equipment. Lessee shall use
the Equipment only in the manner contemplated by the manufacturer thereof.
Lessee agrees to pay all costs incurred in connection with the use and operation
of the Equipment, during the Term thereof, including but not limited to repairs,
maintenance, storage and servicing.
Lessee acknowledges and agrees that it does not have and will not
acquire legal title to the Equipment, it being expressly understood that this
Lease is an agreement of lease only. If requested by Lessor, Lessee shall
promptly affix, keep and maintain upon each Item of Equipment labels provided by
Lessor indicating Lessor's ownership of the Equipment.
Lessee shall keep the Equipment free from any markings or labeling
which might be interpreted as a claim of ownership thereof by Lessee or any
party other than Lessor and its successors or assigns. Lessee shall not remove
an Item of Equipment from the location set forth in the IER applicable to such
Item of Equipment or transfer possession of the Equipment in any manner without
Lessor's prior written consent. Upon request by Lessor, Lessee promptly shall
give Lessor written notice of the exact location of the Equipment.
7. Alterations. Lessee shall not make any alterations, additions or
improvements to the Equipment without the prior written consent of Lessor except
such alterations, additions, or improvements that are required in order to
comply with the terms of this Lease or are required by law. All such
alterations, additions or improvements shall automatically become the property
of Lessor and shall be free of all Liens and Lessee shall provide a xxxx of sale
to Lessor for all such alterations, additions or improvements.
8. Maintenance and Repair. Lessee, at its sole cost and expense, shall
keep the Equipment in good operating order, repair, condition and appearance and
shall furnish any and all parts, mechanisms or devices required to keep the
Equipment in good mechanical and working order. In performing maintenance and
repair, Lessee shall comply with all of the manufacturer's specifications and
recommendations.
9. Delivery and Acceptance. Prior to execution of each IER, Lessee shall
have made at its expense all necessary inspections and tests of the applicable
Equipment, to determine whether such Equipment conforms to Lessee's
specifications. Upon execution of each IER by Lessee, the applicable Equipment
shall be deemed (as between Lessor and Lessee) to conform to Lessee's
specifications, to be in good condition and without defects and to be Equipment
accepted for all purposes of, and subject to the terms of, this Lease.
10. Inspection and Lessee Reports. Upon reasonable notice to the Lessee,
Lessor shall during normal business hours have the right to enter the premises
where the Equipment may be located for the purpose of inspecting and examining
the Equipment, its condition, use, and operation to ensure compliance by Lessee
with its obligations hereunder; provided, however, that Lessor shall have no
duty to inspect and shall not incur any liability or obligation by reason of not
making any such inspection.
Lessee shall immediately notify Lessor of any accident involving the
Equipment of which Lessee is aware and which may give rise to any claim by a
third party for personal injury or property damage including in such report the
time, place and nature of the accident, the damage caused to property, the names
and addresses of persons injured and of witnesses, and such other information as
may be relevant to such accident.
Lessee shall, as soon as practicable but no later than 90 days after
the close of each quarter and fiscal year of Lessee during the Term, furnish to
Lessor copies of Lessee's financial reports prepared by it in accordance with
generally accepted accounting principles as of the close of the period ended,
including Lessee's balance sheet and profit and loss statement,
Equipment Lease Agreement Page 2 of 11
with said fiscal year reports audited by a recognized firm of independent
certified public accountants reasonably satisfactory to Lessor. If Lessee is a
corporation with publicly held debt or equity, Lessee also agrees to furnish
Lessor during the Term, promptly upon their availability, copies of all
financial statements, reports, notices and proxy statements, if any, sent by
Lessee to its public security holders, and of all regular and periodic reports
filed by Lessee with the principal securities exchange on which the securities
of Lessee are listed, if any, or with the Securities and Exchange Commission,
including but not limited to 10-K and 10-Q reports. Further, Lessee agrees to
furnish Lessor from time to time such other information as Lessor may reasonably
request.
11. Warranties. LESSOR IS NOT A MANUFACTURER OF THE EQUIPMENT OR A DEALER
IN SIMILAR EQUIPMENT AND HAS NOT INSPECTED THE EQUIPMENT PRIOR TO DELIVERY TO
AND ACCEPTANCE BY LESSEE. LESSOR HAS NOT MADE AND DOES NOT MAKE, BY VIRTUE OF
HAVING LEASED THE EQUIPMENT UNDER THIS LEASE OR BY VIRTUE OF ANY NEGOTIATIONS IN
RESPECT OF THIS LEASE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO
TITLE, CONDITION, COMPLIANCE WITH SPECIFICATIONS OR REGULATIONS, QUALITY, VALUE,
DURABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR USE OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE EQUIPMENT. THE EQUIPMENT IS LEASED HEREUNDER BY LESSOR "AS-IS".
Lessor hereby covenants that, conditioned upon Lessee performing all
of the terms, covenants and conditions hereof, Lessor, its successors and
assigns, will not disturb Lessee's quiet possession and use of the Equipment
during the Term of this Lease.
So long as no Event of Default (as hereafter defined) has occurred
and is continuing, Lessor hereby authorizes Lessee during the Term of this Lease
to assert for Lessor's account all of its right, title and interest in, under
and to any warranty in respect of the Equipment issued by the manufacturer
thereof, and agrees to execute and deliver such further instruments as may be
reasonably necessary to enable Lessee to enforce such warranty. All claims or
actions on any warranty shall be made or prosecuted by Lessee, at its sole cost
and expense, and Lessor shall have no obligation whatsoever to make any claim on
such warranty. The parties agree that this Lease is intended to qualify as a
"finance lease" under Article 2A of the Uniform Commercial Code. Lessee
acknowledges that prior to execution of any IER Lessor has informed Lessee in
writing that Lessee may have rights under the purchase contract(s) under which
Lessor acquired the Equipment and that Lessee should contact the supplier(s) for
a description of any such rights.
12. Insurance. Throughout the Term of this Lease, Lessee at its own
expense shall maintain with respect to each Item of Equipment, as provided in
the applicable IER, (a) all risk physical loss insurance on such Item of
Equipment for an amount at least equal to the greater of the Stipulated Loss
Value set out in the applicable IER from time to time, or the then fair market
value with respect to such Item of Equipment and (b) public liability and
property damage insurance with respect to such Item of Equipment as set forth in
the IER. Such liability insurance shall be on an occurrence basis rather than a
claims made basis and it will operate with respect to the Lessor as a separate
policy, except as to the limits of liability. Such insurance shall be primary
insurance up to and including the stated policy limits and not excess over other
coverage. Such insurance shall (i) with respect to liability insurance, name
Lessor as an additional insured, (ii) with respect to all risk physical loss
insurance, name Lessor as loss payee and additional insured, (iii) waive any and
all rights of subrogation which the insurers may have or may acquire against the
Lessor, and (iv) be with companies satisfactory to Lessor. The Lessor has the
right to carry additional insurance at its own expense, provided that such
additional insurance does not increase the cost to the Lessee of carrying the
required insurance. There shall be no right of contribution with respect to any
insurance maintained by Lessor, Lessee or any other person.. All insurance
required hereunder shall provide that coverage may not be altered or canceled by
the insurer without thirty (30) days' prior written notice to Lessor. Losses
shall be adjusted only with and paid to, Lessor and its assignee, if any. Such
insurance shall not be invalidated, as against Lessor, by any action or inaction
of Lessee or any other person and shall insure Lessor regardless of any breach
or violation by Lessee or any other person of any warranties, declarations or
conditions contained in the policies evidencing such insurance or in
applications for such insurance. All such insurance required hereunder shall be
satisfactory to Lessor and shall contain such other endorsements as may be
requested by Lessor. Lessee hereby 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 damages or return premium under any insurance
policy issued on the Equipment; provided however, Lessor shall not exercise this
power of attorney unless an Event of Default has occurred and is continuing.
Lessee's obligations to keep the Equipment insured as provided herein shall
continue until the Equipment is returned to Lessor pursuant to the provisions
hereof.
Equipment Lease Agreement Page 3 of 11
The insurance policy shall be endorsed to provide that the Lessor
will have no liability for premiums or other costs of the insurance required
hereby. The insurance carried by Lessee with respect to the Equipment shall be
no less favorable in scope or amount than that carried by Lessee with respect to
other comparable equipment. Such insurance shall not include any self-insured
retentions. Such insurance shall not include any deductibles except for any
deductibles which are consistent with Lessee's industry standard and are
acceptable to Lessor.
Lessee shall furnish Lessor with insurance certificates evidencing
such insurance prior to the Acceptance Date of the applicable IER and prior to
the earlier of the expiration of such certificates or each anniversary date of
the Acceptance Date. Each certificate of insurance shall be attached to a letter
from an insurance broker acceptable to Lessor confirming that the underlying
insurance policy summarized by the certificate of insurance complies with the
requirements of this Section 12. At Lessor's request, Lessee shall provide to
Lessor a copy of the entire insurance policy covering the Equipment.
For purposes of this Lease the term "Stipulated Loss Value" for an
Item of Equipment as of any date of computation shall be the product of (x) the
cost paid by Lessor for such Item of Equipment as set forth in the applicable
IER and (y) that Stipulated Loss Value percentage set forth in such IER opposite
the applicable rental payment with respect to such Item of Equipment.
13. Risk, Event of Loss and Condemnation.
(a) Risk: Commencing on the Acceptance Date and continuing until the
expiration of the Term of this Lease and the return by Lessee of the Equipment
to Lessor pursuant to the provisions hereof, Lessee assumes the entire risk of
any Event of Loss (as defined below) and no such Event of Loss shall relieve
Lessee of any of its obligations hereunder.
(b) Definition - Event of Loss: For purposes of this Section an
Event of Loss with respect to an Item of Equipment shall mean any of the
following events: (i) the actual or constructive total loss of such Item of
Equipment; (ii) such Item of Equipment shall become lost, stolen, destroyed,
damaged beyond repair or permanently rendered unfit for its intended use for any
reason whatsoever; (iii) the condemnation, confiscation or seizure of, or
requisition of title to or use of, such Item of Equipment; or (iv) the
termination, for any reason whatsoever, of this Lease by operation of law.
(c) Deprivation Constituting an Event of Loss: Upon the occurrence
of an Event of Loss, Lessee shall promptly give notice thereof to Lessor and
shall pay or cause to be paid to Lessor, on the earlier of the next rental
payment date or thirty (30) days after the occurrence of an Event of Loss, in
immediately available funds: (i) accrued rentals on a daily basis, if any, with
respect to such Item of Equipment to the payment date, (ii) the greater of the
Stipulated Loss Value for such Item of Equipment computed as of such payment
date or the then fair market value with respect to such Item of Equipment, (iii)
interest on the unpaid balance of the amount set forth in (i) and (ii) above at
the Overdue Rate from the date such payment is due to the date of receipt and
(iv) all other unpaid amounts due hereunder. At such time as Lessor has received
the sum of (i), (ii), (iii) and (iv) above, the obligation of Lessee to pay rent
hereunder with respect to such Item of Equipment shall terminate and Lessor will
transfer to Lessee, without recourse or warranty, "AS IS, WHERE IS", all of
Lessor's right, title and interest, if any, in and to the Item of Equipment with
respect to which such Event of Loss occurred.
(d) Deprivation Not Constituting an Event of Loss: In the event of
damage to any Item of Equipment not constituting an Event of Loss, Lessee shall
promptly notify Lessor in writing of such damage and shall remain obligated to
make all payments of rent and other amounts due with respect to such Item of
Equipment which may become due hereunder in the same manner as if such damage
had not occurred. Lessee shall repair and restore such Item of Equipment with
new and unused components to the condition it was in immediately prior to the
occurrence of such damage (assuming such Item of Equipment was maintained in
accordance with the terms of this Lease). So long as no Event of Default shall
have occurred and be continuing, all payments from insurance proceeds or
otherwise with respect to any such damage shall be used to reimburse Lessee for
its out-of-pocket expenses upon receipt by Lessor of satisfactory evidence that
Lessee has repaired such Item of Equipment.
(e) Application of Payments: Upon the occurrence of any Event of
Loss, Lessor shall be entitled to and shall receive the entire award, judgment,
settlement, insurance proceeds or payments and all installments thereof to the
extent of Lessee's obligations under 13(c) hereof. Lessee hereby assigns to
Lessor, to the extent provided in the immediately preceding sentence any right
or interest Lessee may have or may hereafter acquire in any such award or
payment.
14. Indemnity; Exemption of Lessor from Liability. Lessee agrees to defend
at its own cost and to indemnify and hold harmless Lessor, its successors and
assigns, and their respective agents and employees, from and against any and all
losses, claims, patent infringements, costs, expenses (including attorneys'
fees), damages and liabilities (including those for strict liability in tort),
however caused, resulting directly or indirectly in any manner from the issuance
of Lessor's purchase order, assignment of
Equipment Lease Agreement Page 4 of 11
Lessee's purchase order or agreement to purchase, Lessee's failure, delay or
refusal to accept delivery, the ownership, purchase, lease, maintenance,
possession, return or disposition of the Equipment, or directly or indirectly
from or pertaining to the use, condition, design (including without limitation
latent or other defects whether or not discoverable) or operation of the
Equipment or the performance of this Lease (including without limitation such
losses, claims, costs, expenses, damages and liabilities arising from the death
or injury to agents or employees of Lessee or Lessor or any third person, or
damage to the property of Lessee or Lessor, their agents or employees, or any
third person) except for such damages, losses, expenses or liabilities arising
out of the gross negligence or willful misconduct of Lessor, its agents or
employees. This indemnification shall survive the expiration, cancellation or
other termination of this Lease and is for the benefit of and enforceable by
Lessor and its successors and assigns.
Lessee hereby agrees that Lessor shall not be liable for any damage
to Lessee's business or any loss of income therefrom or for damage to the goods,
wares, merchandise or other property of Lessee, or for injury to the Lessee or
any of its officers, directors, agents or invitees, resulting from this Lease or
caused in any way by an Item of Equipment.
15. Return of Equipment. Upon the expiration or earlier termination of the
Term of this Lease with respect to an Item of Equipment, or upon request of
Lessor pursuant to Section 16(b)(1), Lessee shall return such Item of Equipment
to Lessor, free of all advertising or insignia placed thereon by Lessee, free
and clear of all mortgages, liens, security interests, charges, encumbrances and
claims, and in the same operating order, repair, condition and appearance as
when received, and shall pay for any repairs and refurbishing necessary to
restore such Item of Equipment to its original condition, ordinary wear and tear
excepted. Lessee shall return such Item of Equipment to Lessor and shall load
and ship same, freight and insurance prepaid, to a destination directed by
Lessor.
In addition, Lessee shall permit Lessor to store any such Item of
Equipment for a period not to exceed ninety (90) days after the expiration of
the Term. Until such Item of Equipment shall have been delivered to Lessor,
Lessee shall bear any costs of storage and risk of loss. Notwithstanding
anything to the contrary contained herein, commencing on the expiration of the
Term, Lessee shall provide Lessor, or any person designated by Lessor, access to
such Equipment and will allow Lessor to demonstrate the Equipment to authorized
representative(s) or agent(s) of prospective purchasers or lessees of such
Equipment or Lessor's representative(s) or agent(s), and will permit said
representative(s) or agent(s) to examine the maintenance, operating performance
or other records relating to such Equipment. The delivery, storage and
transporting of the Equipment as hereinbefore provided are of the essence of the
Lease, and upon application to any court of equity having jurisdiction Lessor
shall be entitled to a decree against Lessee requiring specific performance of
the covenants of Lessee to assemble, deliver, store and transport the Equipment.
In the event Lessee fails to complete any necessary repairs or
replacements or return any Item of Equipment as provided in this Section or
otherwise fails to comply with any provision of this Section, Lessor may, at its
option and in addition to any other remedy or remedies afforded Lessor herein or
by law, charge Lessee, and Lessee agrees to pay, interim rent equal to the daily
rent equivalent of the rental installments set forth in the applicable IER for
each day until (i) such repairs and replacements are completed, (ii) such Item
of Equipment is returned to Lessor, and (iii) Lessee takes such other action as
is necessary to comply with the provisions of this Section. During such
continuation period Lessee shall, in addition to the payment of interim rent,
continue to perform all obligations under the Lease. Lessor may terminate such
continued leasehold interest upon ten (10) days notice to Lessee.
Notwithstanding the foregoing, if Lessor and Lessee have agreed to
specific return conditions for an Item of Equipment (which shall be included
either as an addendum to this Lease, or contained within the applicable IER),
then such return conditions shall be controlling to the extent that the
conditions are inconsistent with those contained in this Section.
16. Default, Remedies and Damages.
(a) Defaults: For purposes of this Lease, the following events shall
each constitute an "Event of Default":
(1) Lessee shall fail to make any payment to Lessor or to
third parties when due under this Lease and such failure to pay shall continue
for a period of ten (10) or more days after the due date thereof.
(2) There shall occur any termination of, material alteration
in the scope of the coverage of, or reduction in the maximum amounts payable
under any insurance required to be maintained by Lessee pursuant to this Lease.
Equipment Lease Agreement Page 5 of 11
(3) Any representation or warranty made by Lessee herein or by
Lessee or any guarantor of Lessee's obligations to Lessor hereunder
("Guarantor") in any document or certificate furnished Lessor in connection
herewith shall prove to be incorrect when made in any material respect.
(4) Lessee or Guarantor shall fail to perform or observe any
other covenant, condition, or agreement to be performed or observed hereunder or
under any guaranty of this Lease and such failure shall continue unremedied for
a period of thirty (30) days.
(5) Lessee or any affiliate shall default in the payment of,
or other performance under, any obligation for payment or lease. Guarantor shall
fail to pay and obligation for borrowed money, for the deferred purchase price
of property or for the payment of rent or hire (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise).
(6) There shall be entered any judgment, against Lessee or any
Guarantor for the payment of money, which is final and not discharged, appealed
or bonded within thirty (30) days.
(7) There shall be (i) entered a decree or order for relief by
a court having jurisdiction in respect of Lessee or any Guarantor in an
involuntary case under any applicable federal, state or foreign bankruptcy,
insolvency or other similar law as now or hereafter constituted (collectively,
"Bankruptcy Laws"), or the appointing of a receiver, liquidator, or similar
official ("Receiver") of Lessee or any Guarantor for a material portion of its
assets, or ordering the winding-up or liquidation of its affairs and the
continuance of any such decree or order remains unstayed and in effect for a
period of sixty (60) consecutive days, or (ii) commenced by Lessee or any
Guarantor a voluntary case under the Bankruptcy Laws, or the consent by it to
the appointment of or taking possession by a Receiver for Lessee or any
Guarantor or for a material portion of its assets or the making by it of any
assignment for the benefit of creditors, or the admission by it of its
insolvency or inability to pay its debts as they come due, or (iii) any seizure
or attachment of a material portion of the assets of Lessee or of any Guarantor
which is not vacated or bonded within sixty (60) days.
(b) Remedies: Upon the occurrence and at any time during the
continuance of any Event of Default, Lessor may in its sole discretion do any
one or more of the following with respect to the Equipment or any Item of
Equipment:
(1) Instruct Lessee to immediately comply with the provisions
of Section 15 (and Lessee hereby agrees to then so comply).
(2) Terminate this Lease.
(3) Enter, with or without legal process, any premises where
any Item(s) of Equipment is believed to be and take possession thereof (and
Lessee hereby authorizes Lessor to do so).
(4) Instruct Lessee to pay Lessor the Stipulated Loss Value of
the Equipment. Lessee shall, no more than five (5) business days following its
receipt of such instruction pay to Lessor (i) the Stipulated Loss Value of the
Item(s) of Equipment (calculated as of the rental date immediately preceding the
declaration of default), and (ii) all rentals and other sums then due and
payable hereunder.
(5) Lessor may, but shall not be required to, sell any Item(s)
of Equipment at private or public sale, in bulk or in parcels, with or without
notice, and without having the Item(s) of Equipment present at the place of
sale; or Lessor may, but shall not be required to, lease, otherwise dispose of
or keep idle all or part of the Equipment; and Lessor may use Lessee's premises
for any or all of the foregoing without liability for rent, costs, damages or
otherwise. The proceeds of sale, lease or other disposition, if any, shall be
applied upon receipt by Lessor in the following order of priorities: (i) to pay
all of Lessor's costs, charges and expenses incurred in repossessing,
recovering, storing, repairing, selling, leasing or otherwise disposing of
Equipment including without limitation attorneys' fees and costs; then, (ii) to
the extent not previously paid by Lessee, to pay Lessor all sums then due and
payable from Lessee; then (iii) to reimburse Lessee any sums previously paid by
Lessee under (4) above; and (iv) any surplus shall be retained by Lessor. Lessee
shall pay the sums described in (i) above within five (5) days of billing
therefor.
The foregoing remedies are cumulative, and any or all thereof may be
exercised in lieu of or in addition to each other or any remedies at law, in
equity or under statute. Waiver of any default shall not be waiver of any other
or subsequent default.
Equipment Lease Agreement Page 6 of 11
Any default under the terms of this or any other agreement between
Lessor and Lessee which is not waived by Lessor may be declared by Lessor a
default under this and any such other agreement.
17. Assignment, Merger or Asset Sale By Lessee. WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR (WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD), LESSEE
SHALL NOT TRANSFER, SUBLEASE, ASSIGN, PLEDGE OR HYPOTHECATE THIS LEASE, THE
EQUIPMENT OR ANY PART THEREOF OR ANY INTEREST THEREIN, MERGE INTO OR CONSOLIDATE
WITH ANY OTHER CORPORATION OR ENTITY, OR SELL, LEASE OR OTHERWISE DISPOSE OF A
MAJORITY OF ITS ASSETS. IN THE EVENT LESSOR CONSENTS TO ANY OF THE FOREGOING
ACTS, LESSEE AGREES THAT LESSOR MAY CHARGE LESSEE A REASONABLE DOCUMENTATION AND
ADMINISTRATION FEE. CONSENT TO ANY OF THE FOREGOING ACTS SHALL NOT BE DEEMED TO
BE CONSENT TO ANY SUBSEQUENT SIMILAR ACT.
18. Assignment by Lessor. Lessor may assign, pledge or in any other way
transfer this Lease and the Equipment in whole or in part, or any interest
therein, without notice to Lessee, and Lessee shall execute such consents
thereto as may be required by Lessor. Should this Lease or any interest therein
be assigned or should the rentals hereunder be assigned, no breach or default by
Lessor of this Lease or any other agreement between Lessee and Lessor shall
excuse performance by Lessee of any provision hereof, and no assignee shall be
obligated to perform any covenant, condition or obligation required to be
performed by Lessor hereunder. The right of such assignee shall be free of all
defenses, setoffs and counterclaims which Lessee might now or hereafter be
entitled to assert against Lessor. In the event any assignee agrees to assume
the obligations of Lessor, Lessee shall look solely to such assignee, and Lessor
shall be released from all further liability hereunder.
19. Personal Property. The Equipment shall remain personal property
regardless of whether it becomes affixed or attached to real property or
permanently rests upon any real property or any improvement thereon, and Lessee
shall do all acts and enter into all agreements necessary to ensure that the
Equipment remains personal property.
Lessee shall keep the Equipment free and clear of any liens,
charges, encumbrances or claims of the owner(s) of any interest in the real
estate on which it is located and any purchaser of or present or future creditor
obtaining a lien on such real estate, and shall promptly obtain and deliver to
Lessor a waiver of any such liens or claims as to the Equipment in recordable
form satisfactory to Lessor.
20. Liens. Lessee shall not directly or indirectly create, incur, assume
or suffer to exist any mortgage, pledge, lien, charge, encumbrance, security
interest, right or claim of any kind ("Lien") on, or with respect to, any Item
of Equipment, title thereto or any interest therein.
Lessee will promptly notify Lessor in writing of the existence of
any Lien and will, at Lessee's expense, cause any such Lien to be duly
discharged, dismissed and removed or fully bonded within thirty (30) days after
the existence of the same shall have first become known to Lessee or sooner if
necessary to prevent the loss of possession of any Item of Equipment.
21. Prohibition Against Setoff, Counterclaim, Etc. Lessee's obligation to
pay all amounts due hereunder shall be absolute and unconditional and shall not
be affected by any circumstance whatever, including, without limitation (i) any
setoff, counterclaim, defense, or other right which Lessee may have against
Lessor, (ii) any defect in the title, condition, design, operation, or fitness
for use of, or any damage to or loss or destruction of, or breach of warranty
with respect to the Equipment, or any interruption or cessation in the use or
possession thereof by Lessee for any reason whatsoever, or (iii) any insolvency,
bankruptcy, reorganization or similar proceedings by or against Lessee or
Lessor.
22. Representations, Warranties and Covenants of Lessee. Lessee
represents, warrants and covenants: (i) that it is duly organized and existing
in good standing under the laws of the state in which it is organized, with the
necessary power and qualifications to perform this Lease, (ii) that this Lease
has been duly authorized by all necessary action on the part of Lessee and will
not contravene or breach any legal, organizational or contractual provision
binding upon Lessee, (iii) that this Lease constitutes valid, binding and
enforceable obligations of Lessee and is enforceable in accordance with its
terms, (iv) that as of the date of each IER there are no suits or proceedings
pending or threatened against Lessee which may have a material adverse effect on
Lessee's financial condition or business, (v) that as of the date of each IER no
material adverse change in Lessee's financial condition as represented in its
most recent financial statements submitted to Lessor has occurred and (vi) the
Lessee has reviewed the effect of the Year 2000 Issue on the computer software,
hardware and firmware systems and equipment containing embedded microchips owned
or operated by or for the Lessee or used or relied upon in the conduct of its
business (including systems and equipment supplied by others or with which such
computer systems of the Lessee interface) and that the costs to the
Equipment Lease Agreement Page 7 of 11
Lessee of any reprogramming required as a result of the Year 2000 Issue to
permit the proper functioning of such systems and equipment and the proper
processing of data, and the testing of such reprogramming, and of the reasonably
foreseeable consequences of the Year 2000 Issue to the Lessee (including
reprogramming errors and the failure of systems or equipment supplied by others)
will not have a material adverse effect on the Lessee's earnings, cash flow or
financial condition. "Year 2000 Issue" shall mean the failure of the computer
software, hardware and firmware systems and equipment containing embedded
computer chips to properly receive, transmit, process, manipulate, store,
retrieve, re-transmit or in any other way utilize date and information due to
the occurrence of the year 2000 or the inclusion of dates on or after January 1,
2000.
23. Attorneys' Fees. Lessee shall pay all costs and reasonable attorneys'
fees incurred by Lessor in collecting or attempting to collect any sums owed
under this Lease or in enforcing any of Lessor's rights or remedies under this
Lease including without limitation obtaining possession of the Equipment or
seeking relief from stay or other remedies in bankruptcy court.
24. Notices. All notices, requests and demands to or upon any party hereto
shall be deemed duly given or made when sent if given by telecopier, when
delivered if given by personal delivery or overnight commercial carrier, on the
third calendar day after deposit in the United States mail, certified mail,
return receipt requested, addressed to such party at its address set forth
below. All notices required under the terms and provisions hereof shall be in
writing and addressed (i) if to Lessee:
Radiant Aviation Services, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Colin X. X. Xxxxxx
or at such other address as Lessee shall from time to time designate in writing
to Lessor, or (ii) if to Lessor:
MDFC Equipment Leasing Corporation
0000 Xxxxxxxx, Xxxx., 0xx Xxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President -
Commercial Equipment Leasing
or at such other address as Lessor shall from time to time designate in writing
to Lessee.
25. Conditions Precedent. As conditions precedent to Lessor's duties under
this Lease, Lessee shall furnish to Lessor on or before the Acceptance Date for
each IER under this Lease the following, all of which shall be satisfactory to
Lessor: (a) an opinion of counsel for Lessee with respect to those
representations set forth in Section 22(i) through (iv) inclusive hereof and
with respect to such other matters as Lessor may require, (b) board of
directors' resolutions or partnership authorizations, as the case may be,
authorizing this Lease and Lessee's performance hereunder, (c) certificates of
insurance, (d) real property waivers, if applicable, and (e) such other
documents and evidence of authority for Lessee as Lessor may require.
26. Miscellaneous. No delay or omission to exercise any right, power or
remedy accruing to Lessor upon any breach or default by Lessee under this Lease
shall impair any such right, power or remedy; nor shall any such delay or
omission be construed as a waiver of any breach or default, or of any similar
breach or default thereafter occurring; nor shall any waiver of a single breach
or default be deemed a waiver of any subsequent breach or default; nor shall
consent by Lessor to any act of Lessee be deemed to be consent to any subsequent
similar act.
Any provision of this Lease which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
To the extent permitted by applicable law, Lessee hereby waives any
provision of law which renders any provision of this Lease prohibited or
unenforceable in any respect. Any action by Lessee against Lessor for any
default by Lessor under this Lease shall be barred unless commenced within one
(1) year after any such default occurs.
Equipment Lease Agreement Page 8 of 11
This Lease shall be binding upon, and inure to the benefit of,
Lessee and Lessor and their respective successors and permitted assigns. If
there is more than one Lessee, the obligations of Lessee hereunder are joint and
several. Time is of the essence of each and every obligation under this Lease.
Lessee hereby authorizes Lessor to correct patent errors and to fill
in such blanks as serial numbers and dates herein and in the Individual
Equipment Records and in any document executed in connection herewith.
27. Recording, Registration and Filing. All searches, recordings,
registrations, and filings of this Lease, required by law or requested by Lessor
to protect Lessor's title and interest in the Equipment, shall be accomplished
at Lessee's expense in a manner satisfactory to Lessor. Lessee agrees to execute
all documents deemed necessary by Lessor to protect Lessor's interest in the
Equipment. Provided an Event of Default has occurred and is continuing, Lessee
hereby appoints Lessor as Lessee's irrevocable agent and attorney-in-fact to
execute all such documents.
28. Tax Indemnity.
(a) Lessee hereby represents and warrants to Lessor (such term for
the purpose of this Section 28 meaning Lessor and the corporations with which
Lessor consolidates its United States Federal income tax returns) that:
(1) the Term for each Item of Equipment (including extensions
thereof) does not exceed 80% of the useful life of such Item of Equipment;
(2) A reasonable estimate of the fair market value of each
Item of Equipment to Lessor, at the end of the Term, without including in such
value any increase or decrease for inflation or deflation during the Term and
after subtracting any costs of delivery of possession to Lessor, will not be
less than 20% of Lessor's cost for such Item of Equipment, as set forth in the
IER ("Equipment Cost");
(3) all of the Equipment has the Class Life, and is
depreciable under the method and over the recovery period, set forth in the IER
to the full extent of Equipment Cost pursuant to Section 168 of the Internal
Revenue Code of 1986, as amended from time to time, and any Regulations that are
or may be promulgated thereunder ("Code");
(4) the Equipment Cost does not exceed the fair market value
of the Equipment;
(5) each Item of Equipment will be placed in service on the
Acceptance Date; and
(6) this Lease is a true lease for all purposes, including but
not limited to Federal, state and local tax purposes;
(b) Lessee covenants to Lessor and agrees that:
(1) it will characterize the relationship herein established
as a lease and will treat it as such for all purposes;
(2) it shall not utilize or claim or attempt to utilize or
claim for any purposes whatsoever the accelerated cost recovery deductions equal
to 100% of Equipment Cost provided by Section 168 of the Code and computed under
the method and over the recovery period set forth in the IER ("MACRS
Deductions") and depreciation deductions equal to 100% of Equipment Cost based
on those allowable for property with a Class Life as set forth in the IER using
the most accelerated method available under applicable state or local law or
Federal alternative minimum tax law ("Depreciation Deductions");
(3) no Item of Equipment will be used predominantly outside
the United States within the meaning of Section 168(g) of the Code;
(4) during the Term, Lessor will not have to recognize any
item of income with respect to this Lease, except amounts received by Lessor as
they become due and which are characterized as rent or additional rent by this
Lease ("Other Income"); and
(5) it will neither take any action, nor fail to take any
action (including without limitation actions or failures to act otherwise
permitted hereunder), which will have the result of causing Lessor to recognize
Other Income or to lose
Equipment Lease Agreement Page 9 of 11
or to recapture all or any part of the MACRS Deductions or Depreciation
Deductions attributable to the Equipment, or its ownership thereof.
In the event any of Lessee's representations, warranties or
covenants set forth in this Section 28 prove incorrect for any reason whatsoever
at any time, and as a result thereof Lessor recognizes Other Income or loses all
or any part of the benefit of the MACRS Deductions or Depreciation Deductions
attributable to the Equipment or is required to recapture all or any part of the
MACRS Deductions or Depreciation Deductions attributable to the Equipment
("Loss"), Lessee shall indemnify and shall pay to Lessor, with respect to each
Loss, a sum, which, after deduction of all taxes required to be paid by Lessor
in respect of the receipt of such sum under the laws of any Federal, state or
local government or taxing authority in the United States (or which would have
been required to be paid by Lessor upon such receipt had Lessor had sufficient
gross income within the meaning of Section 61 of the Code, or the applicable
state or local law, to actually pay such tax) shall be equal to (a) the amount
of additional Federal, state, or local income taxes required to be paid with
respect to such Loss (or which would have been required to be paid by Lessor for
such Loss had Lessor had sufficient gross income within the meaning of Section
61 of the Code, or the applicable state or local law, to actually pay such tax
or derive the benefit of such deduction), plus (b) the amount of any penalties,
interest, and other additions to tax (including, but not limited to, any
additions to tax because of underpayment of estimated tax) which may be payable
by Lessor in connection with the Loss. To the extent not taken into account in
computing the amount payable by Lessee with respect to the Loss, Lessor shall
pay Lessee the amount of any savings in Federal income taxes when and to the
extent realized by Lessor as a result of the Loss (such payments not to exceed
in the aggregate the amount of any indemnity previously paid by Lessee pursuant
to this Section 28); provided, however, that if Lessor loses such tax savings
subsequent to any payment to the Lessee with respect thereto, Lessee shall
indemnify Lessor with respect to such loss pursuant to the provisions of this
Section 28.
The liability of Lessee to make any indemnity payments hereunder
shall become fixed at the time Lessor makes payment of the tax attributable to
the Loss, or if Lessor is not required to make payment of tax with respect to
the Loss, the date on which Lessor files its tax return for the taxable year in
which such Loss occurs, and shall be due and payable within 15 days after
receipt by Lessee of written notice from Lessor as to the fixing of such
liability. Lessee shall pay interest on any indemnity payment not made when due
at the Overdue Rate.
In the event a written claim shall be made by the Internal Revenue
Service, Lessor agrees to notify the Lessee promptly in writing of such claim,
and agrees to cooperate with the Lessee in good faith in order that such claim
may be contested effectively; provided that Lessor shall control such contest.
In the event that Lessor waives its right to indemnification under this Section
28 with respect to such claim, Lessee shall have no further rights with respect
to the contest of such claim.
(c) The indemnification provided herein shall survive the expiration
or other termination of the Lease.
29. Counterparts. This Lease may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute the same
instrument.
30. Governing Law, Jurisdiction and Waiver of Jury Trial. THIS LEASE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF CALIFORNIA. LESSEE HEREBY IRREVOCABLY CONSENTS AND AGREES
THAT ANY LEGAL ACTION RELATING TO ANY LEASE DOCUMENT MAY BE INSTITUTED IN THE
COURTS OF THE STATE OF CALIFORNIA, IN THE COUNTY OF LOS ANGELES OR THE UNITED
STATES COURTS FOR THE SOUTHERN DISTRICT OF CALIFORNIA, AS LESSOR MAY ELECT, AND
BY EXECUTION AND DELIVERY OF THIS LEASE, LESSEE HEREBY IRREVOCABLY ACCEPTS AND
SUBMITS TO, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, THE NON-EXCLUSIVE
JURISDICTION OF ANY SUCH COURT, AND TO ALL PROCEEDINGS IN SUCH COURTS. LESSEE
AND LESSOR ACKNOWLEDGE THAT JURY TRIALS OFTEN ENTAIL ADDITIONAL EXPENSES AND
DELAYS NOT OCCASIONED BY NONJURY TRIALS. LESSEE AND LESSOR AGREE AND STIPULATE
THAT A FAIR TRIAL MAY BE HAD BEFORE A STATE OR FEDERAL JUDGE BY MEANS OF A BENCH
TRIAL WITHOUT A JURY. IN VIEW OF THE FOREGOING, AND AS A SPECIALLY NEGOTIATED
PROVISION OF THIS LEASE, LESSEE AND LESSOR HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
LEASE OR THE TRANSACTIONS RELATED HERETO, WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND LESSEE AND
LESSOR HEREBY AGREE AND CONSENT THAT LESSEE AND LESSOR MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS PROVISION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
31. Written Amendments to Lease. This Lease, together with each IER and
any exhibits, amendments, riders, addenda or other documents or instruments
executed by Lessee and/or Lessor in connection herewith, constitutes the entire
agreement between Lessor and Lessee and shall supersede all prior or
contemporaneous discussions, negotiations and agreements, whether written or
oral, between Lessor and Lessee with respect to the lease of the Equipment
including, without limitation, any term sheet, proposal or commitment letter
prepared in connection with this Lease. This Lease may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which the enforcement of the change, waiver, discharge
Equipment Lease Agreement Page 10 of 11
or termination is sought. By executing this provision below, Lessee agrees that
the provision concerning a separately signed document pursuant to California
Commercial Code Section 10208(b) (UCC Section 2A-208) has been complied with.
----------------------------------------
Lessee's signature
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed by their duly authorized officers on the date and year first written
above.
LESSOR: LESSEE:
MDFC Equipment Leasing Corporation Radiant Aviation Services, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Colin X.X. Xxxxxx
------------------------------- ------------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxxx Printed Name: Colin X.X. Xxxxxx
--------------------- --------------------------
Title: Senior Documentation Officer Title: Chief Operations Officer
---------------------------- ---------------------------------
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Printed Name: Xxxxxxx X. Xxxx
--------------------------
Title: Vice President, Engineering
---------------------------------
Equipment Lease Agreement Page 11 of 11
MDFC Equipment Leasing Corporation
Individual Equipment Record ("IER")
IER No. 0000-0-000
To that Equipment Lease Agreement ("Lease") dated as of December 20, 1999
between:
Lessor: MDFC Equipment Leasing Corporation Lessee: Radiant Aviation
Services, Inc.
00 Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx., 0xx Xxxxx Xxxxxxx Xxxx, XX 00000
Xxxx Xxxxx, XX 00000
Contact: Xxxxx X. F, Digout
Phone: (000) 000-0000
Location of Equipment: /x/ New Equipment // Used Equipment
Address at which the Equipment described below will be located during the
Term:
Newark Airport, Newark, NJ
Delivery location if different than the above address:
--------------------------------------------------------------------------------
Sales and Use Tax: Insurance Requirements:
// Sales tax included in cost Liability:
// Use tax to be added to rentals Bodily Injury Liability: $5,000,000.00
// Exempt per ___________________ per person/per accident: $5,000,000.00
Property Damage Liability: $5,000,000.00
per accident: $5,000,000.00
All Risk: $2,600,000.00
--------------------------------------------------------------------------------
Base Term: 84 Months
Acceptance Date: December 24, 1999
Base Term Commencement Date: December 24, 1999
Payment of 84 Base Term rental installments, each such installment to be in the
amount of $49,093.65, shall be payable on the 24th day of each month commencing
January 24, 2000. The Base Term rent shall be allocated to the rental period
immediately preceding the date such rent is due. In addition, contingent rent
equal to 10% of the monthly deicing revenue shall be due 90 days after the end
of each calendar month.
--------------------------------------------------------------------------------
Equipment Description Serial Number Equipment Cost
================================ ============================ ==================
InfraTek Aircraft Deicing System $3,383,700.00
--------------------------------------------------------------------------------
Page 1 of 7
Stipulated Loss Values
AFTER S.L.V. AFTER S.L.V. AFTER S.L.V.
PAYMENT AS A PERCENT PAYMENT AS A PERCENT PAYMENT AS A PERCENT
NUMBER OF ORIGINAL COST NUMBER OF ORIGINAL COST NUMBER OF ORIGINAL COST
------- ---------------- ------- ---------------- ------- ----------------
0 100.7 28 83.7 56 61.9
1 100.2 29 83.0 57 61.1
2 99.7 30 82.3 58 60.2
3 99.2 31 81.6 59 59.4
4 98.6 32 80.9 60 58.5
5 98.1 33 80.1 61 57.6
6 97.6 34 79.4 62 56.8
7 97.0 35 78.7 63 55.9
8 96.5 36 77.9 64 55.0
9 95.9 37 77.2 65 54.1
10 95.3 38 76.4 66 53.2
11 94.8 39 75.6 67 52.4
12 94.2 40 74.9 68 51.5
13 93.6 41 74.1 69 50.6
14 93.0 42 73.3 70 49.7
15 92.3 43 72.6 71 48.8
16 91.7 44 71.8 72 47.9
17 91.1 45 71.0 73 47.1
18 90.4 46 70.2 74 46.2
19 89.8 47 69.4 75 45.3
20 89.2 48 68.6 76 44.4
21 88.5 49 67.7 77 43.5
22 87.8 50 66.9 78 42.6
23 87.2 51 66.1 79 41.7
24 86.5 52 65.3 80 40.9
25 85.8 53 64.4 81 40.0
26 85.1 54 63.6 82 39.1
27 84.4 55 62.8 83 38.3
84 37.5
THEREAFTER 37.5
CI LBW20008521
Page 2 of 7
RETURN CONDITIONS
Infratek Deicing System
Upon the expiration or earlier termination of this Lease with respect to the
Item(s) of Equipment, the Lessee, at its own risk and expense, will return such
Item(s) of Equipment then subject to this Lease to the Lessor pursuant to the
Lessor's instructions to a location designated by Lessor. Such Equipment upon
redelivery shall be free and clear of all mortgages, liens, security interest
charges, encumbrances and claims. If Lessor shall so require, the Lessee shall
provide free storage and insurance for such Item(s) of Equipment for a period
not exceeding ninety (90) days. The storage of the Equipment will be at the
expense and risk of Lessee. Notwithstanding anything to the contrary contained
herein, commencing one hundred and fifty (150) days prior to the expiration of
the Lease Term and continuing throughout Lessor's ninety (90) day storage
period, Lessee shall provide Lessor or any person designated by it, access to
such Equipment and will allow Lessor to display the Equipment in operation to
any authorized representative or representatives of prospective purchasers or
lessees of such Equipment or Lessor's agent, and will permit said representative
or representatives or agent to examine the books and records of Lessee relating
to the Equipment. Lessor acknowledges that Lessee is entitled to use the
Equipment up to the expiration of the Lease Term, and as such, will exercise
reasonable care not to significantly interfere with Lessee's operation of the
Equipment during the one hundred and fifty (150) day period preceding the
expiration of the Lease Term. Lessee will provide personnel, power and other
operational requirements necessary to demonstrate the Equipment.
At least 150 (but not more than (220) days prior to expiration or earlier
termination of this Lease, Lessee shall provide or cause the Equipment
manufacturers or suppliers to provide Lessor, a detailed inventory of all
components of the Equipment. The inventory will include, but not be limited to,
a listing of model and serial numbers for all components.
Not more than 60 days prior to expiration or earlier termination of this Lease,
Lessee shall cause the manufacturer, or a qualified equipment maintenance
provider acceptable to Lessor, to perform a comprehensive physical inspection of
the Equipment and to provide an in-depth field report to Lessor. If during the
inspection, the authorized inspector finds that any of the Equipment is
defective or does not operate within the supplier's or manufacturer's
specifications, Lessee will make all necessary repairs and replace all defective
parts, with supplier or manufacturer approved parts, required to cause the
Equipment to satisfy the aforementioned conditions. After corrective measures
are completed, Lessee will arrange for a follow-up inspection of the Equipment
by the same inspector, with a copy of the follow-up inspection report provided
to Lessor. The report will certify that the Equipment has been properly
inspected, examined, and tested and that it operates within manufacturer's and
supplier's specifications.
Unless Lessor has requested that Lessee store the Equipment as provided herein,
upon expiration or earlier termination of this Lease, Lessee shall deinstall and
pack the Equipment according to the supplier's and manufacturer's specifications
and recommendation, including but not limited to: (1) removing all process
fluids from the Equipment, and (2) fill all internal fluids (excepting materials
that are considered hazardous waste by any regulatory authority) to operating
levels and secure all filler caps and seal all disconnect hoses to avoid
spillage. All maintenance records, plans, specifications, diagrams, maintenance
manuals and operating instructions necessary to properly install, operate and
maintain the Equipment shall be properly cataloged packaged and returned with
the Equipment.
At the time of return, the Item(s) of Equipment shall:
1. Be free of all advertising or insignia placed there on by Lessee.
2. Be in compliance with all applicable federal, state and local laws.
3. Be in good operating order, repair and condition, reasonable wear
and tear resulting solely from proper use excepted; free of any
hazardous waste material; free from rust and/or corrosion with no
missing parts or damaged parts.
4. Be mechanically and structurally sound, able to maintain such
precision tolerances and capable of performing such functions as the
manufacturer's recommended specifications would dictate.
5. With respect to all components including but not limited to drive
motors, hydraulic systems, electrical systems, fluid pumps,
pneumatic systems be able to operate normally with no loss of power
or fluid.
Page 3 of 7
Upon return of such Item(s) of Equipment, Lessor or its agent shall inspect the
Equipment, and if in the Lessor's opinion the Equipment is not in compliance
with the conditions hereinafter described, a mutually acceptable independent
appraiser (or if no such appraiser has been selected within 15 days prior to the
expiration or earlier termination of the Lease, an inspector chosen by the
American Arbitration Association) shall be appointed by the Lessor to inspect
the equipment for the purpose of determining the repairs, additions or
replacements, if any, which are necessary to place the Equipment in the
condition hereinafter described.
Lessee agrees to pay all fees, charges, costs and expenses related to such
inspection and Lessee shall pay for all repairs and replacements. In the event
any necessary repairs or replacements are not completed within seven days from
the expiration or early termination date, Lessee shall pay to Lessor, interim
rent equal to the daily rent equivalent of the periodic rent set forth in the
IER covering the Equipment, for each day in excess of the Lease term, until such
repairs and replacements are completed and the units of Equipment involved are
returned to Lessor. Said payment shall be made on the date said units of
Equipment are returned to Lessor, (but not less frequently than monthly).
7/99
Page 4 of 7
Early Termination Option:
Subject to compliance with all conditions of this provision, and provided no
Event of Default (or event which, with notice or passage of time, or both, would
constitute and Event of Default) shall have occurred and be continuing, Lessee
shall have the right to early terminate the Lease with respect to the Equipment
and purchase the Equipment after May 1, 2000 or before the later of (i) May 1,
2002 or (ii) 30 days after the date the Equipment is installed, on no less than
30 days' prior written notice to Lessor specifying a proposed date of
termination (which date shall be a date on which an installment of rent is due
and payable) and upon payment of: (1) the regular monthly rental payment due and
payable on the Termination Date, (2) an early termination amount equal to the
amount shown below, (3) any sales tax or similar charge related to the sale, (4)
break-funding, if any, calculated as set forth below and (5) any other amounts
then due and owing by Lessee to Lessor. The term Fair Market Value shall have
the meaning set forth in the third paragraph of Lease Addendum No. 1 on an
AS-IS-WHERE-IS basis.
For purposes of this option a breakfunding charge will apply if the three year
Treasury is less than 6.03% at that time. This charge will be equal to the
excess of the present value of all remaining rental payments discounted at
3-year Treasury yield as of the early termination, less the present value of all
remaining rental payments discounted at 3-year Treasury yield as of the date the
transaction was funded.
Date Amount Date Amount
---- ------ ---- ------
May 1, 2000 $3,322,793 May 1, 2001 3,089,318
June 1, 2000 3,305,875 June 1, 2001 3,065,632
July 1, 2000 3,285,573 July 1, 2001 3,041,946
August 1, 2000 3,268,654 August 1, 2001 3,021,644
September 1, 2000 3,248,352 September 1, 2001 2,997,958
October 1, 2000 3,228,050 October 1, 2001 2,977,656
November 1, 2000 3,211,131 November 1, 2001 2,953,970
December 1, 2000 3,190,829 December 1, 2001 2,930,284
January 1, 2001 3,170,527 January 1, 2002 2,906,598
February 1, 2001 3,150,225 February 1, 2002 2,886,296
March 1, 2001 3,126,539 March 1, 2002 2,862,610
April 1, 2001 3,106,237 April 1, 2002 2,838,924
May 1, 2002 2,815,238
Page 5 of 7
Special Conditions
================================================================================
By execution of this IER Lessee hereby agrees that, as between Lessee and
Lessor, the Equipment described herein is accepted for all purposes of and
subject to all terms and conditions of the Lease ("Acceptance"), except to the
extent that the terms of this IER conflict with the terms of the Lease in which
case the terms of this IER shall prevail. The Lessee hereby acknowledges and
agrees, with respect to the Equipment described herein:
(1) That Lessee has inspected and accepted the Equipment fully and
completely as to size, model, function and conformity to Lessee's requirements.
(2) That the Equipment is of a size, design, function and manufacturer
selected by Lessee.
(3) That Lessee is satisfied that the Equipment is suitable for its
intended purposes and any special purposes of Lessee.
(4) THAT THE EQUIPMENT IS NEW AND UNUSED AND HAS BEEN DELIVERED TO, IS OW
IN THE POSSESSION OF, AND IS ACCEPTABLE TO LESSEE, AND THAT ALL OF THE EQUIPMENT
HAS A CLASS LIFE OF 7 YEARS AND IS DEPRECIABLE OVER A RECOVERY PERIOD OF 5 YEARS
USING THE 200% DECLINING BALANCE METHOD SWITCHING TO THE STRAIGHT LINE METHOD AT
SUCH TIME AS WILL MAXIMIZE THE PRESENT VALUE OF THE DEDUCTIONS.
Lessee hereby represents and warrants that:
(1) The representations and warranties of the Lessee contained in the
Lease are true and correct on and as of the date hereof as though made on and as
of this date.
(2) No event has occurred and is continuing or will result from the lease
of Equipment described herein which constitutes an Event of Default or with
notice or lapse of time, or both would constitute an Event of Default.
Dated as of the Acceptance Date.
Lessor: Lessee:
MDFC Equipment Leasing Corporation Radiant Aviation Services Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Colin X.X. Xxxxxx
--------------------------------- ----------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxxx Printed Name: Colin X.X. Xxxxxx
----------------------- ------------------------
Title: Senior Documentation Officer Title: Chief Operations Officer
------------------------------ -------------------------------
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxxx X. Xxxx
------------------------
Title: Vice President, Engineeing
-------------------------------
Page 6 of 7
Page7 of 7
MDFC Equipment Leasing Corporation
Lease Addendum No. 1
to
Equipment Lease Agreement No. 3567-1
In connection with that certain Equipment Lease Agreement dated as of
December 20, 1999 ("Lease") between MDFC Equipment Leasing Corporation
("Lessor") and Radiant Aviation Services, Inc. ("Lessee") covering the items of
equipment ("Equipment") described in any and all existing or future Individual
Equipment Records ("IERs") thereto, it is agreed that upon execution hereof by
the parties hereto, this Lease Addendum No. 1 shall constitute a part of the
Lease. Capitalized terms used and not defined herein shall have the meanings
assigned to them in the Lease.
Lessee is hereby granted an option, which option shall not be assignable,
to purchase "AS-IS, WHERE-IS" all, but not less than all, of the Equipment
covered by all of the IERs, at the expiration of the Base Term of each IER, for
its then fair market value ("FMV") as hereinafter defined not to exceed 37.5% of
the original Equipment Cost.
FMV shall mean the selling price that would be obtained in an arms-length
transaction between an informed and willing buyer and an informed and willing
seller each under no compulsion to buy or sell. FMV shall be determined on the
basis that the Equipment is in complete compliance with all conditions specified
in the Lease and IER and that the Equipment is installed and/or in service and
any cost of removal, preparation for shipment or transportation, or diminution
in value caused by removal or transportation shall not be deducted in
determining the FMV of the Equipment.
Lessee's right to exercise this option is subject to the following
conditions precedent: (a) Lessee shall have performed all of the terms and
conditions of the Lease and of all other agreements between Lessor and Lessee at
the time and in the manner required therein and neither an Event of Default nor
an event which with notice and/or lapse of time would constitute an Event of
Default under the Lease or default under any other such agreement shall have
occurred and be continuing; (b) Lessor shall have received written notice of the
election to exercise said option at least 120 days prior to the expiration of
the Base Term of the first expiring IER; and (c) Lessee shall have paid to
Lessor the FMV of the Equipment covered by any expired IER together with all
Taxes due under the Lease or arising from or related to the sale of the
Equipment.
The FMV for each IER shall be determined as follows:
(1) Between 150 and 120 days prior to the expiration of the Base Term,
Lessee shall send its reasonable estimate of the FMV of the applicable Equipment
to the Lessor;
(2) At least 60 days prior to expiration of the Base Term, Lessor shall
either (i) accept such estimate, (ii) negotiate a mutually acceptable FMV with
Lessee or (iii) employ a recognized independent appraiser consented to by
Lessee, which consent shall not be unreasonably withheld, to determine the FMV;
(3) At least 30 days prior to the expiration of the Base Term, if an
appraiser has not been so selected and consented to, the Lessor and Lessee shall
each appoint a recognized independent appraiser to determine the FMV;
FMV Purchase Option Page 1 of 2
(4) At least 15 days prior to the expiration of the Base Term, if the
appraisers appointed under (3) above have not agreed upon the FMV, the two
appraisers shall by mutual consent choose a third party independent appraiser
who shall determine the FMV. If the appraisers cannot agree on a mutually
acceptable third party appraiser at least 10 days prior to the expiration of the
Base Term, Lessor shall submit the determination of FMV to the American
Arbitration Association (or any successor thereto) which shall appoint an
appraiser whose determination shall be final and binding. Lessee shall pay to
Lessor the FMV of the Equipment covered by any expired IER on the date of such
expiration, together with all Taxes due under the Lease or arising from or
related to the sale of the Equipment. The FMV, as finally determined, and any
other amounts due under this Lease Addendum No. 1, shall bear interest at the
Overdue Rate for the period, if any, from the date of expiration of the IER to
the date of payment, and the cost of all appraisals shall be borne by Lessee.
By Lessee's purchase of the Equipment covered by the first expiring IER
entered into pursuant to the Lease, Lessee agrees that it shall thereafter
purchase, upon the terms and conditions set forth herein, the remainder of the
Equipment covered by the Lease.
Lessor: Lessee:
MDFC Equipment Leasing Corporation Radiant Aviation Services, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Colin X.X. Xxxxxx
------------------------------ ----------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxxx Printed Name: Colin X.X. Xxxxxx
-------------------- ------------------------
Title: Senior Documentation Officer Title: Chief Operations Officer
---------------------------- -------------------------------
By: Xxxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxxx X. Xxxx
------------------------
Title: Vice President, Engineering
-------------------------------
FMV Purchase Option Page 2 of 2
MDFC Equipment Leasing Corporation
Lease Addendum No. 2
to
Equipment Lease Agreement No. 3567-1
In connection with that certain Equipment Lease Agreement dated as of
December 20, 1999, (the "Lease") between MDFC Equipment Leasing Corporation
("Lessor") and Radiant Aviation Services, Inc. ("Lessee") covering the items of
equipment ("Equipment") described in any and all existing or future Individual
Equipment Records ("IERs") thereto, it is agreed that upon execution hereof by
the parties hereto, this Lease Addendum No. 2 shall constitute a part of the
Lease. Capitalized terms used and not defined herein shall have the meanings
assigned to them in the Lease.
Lessee is hereby granted an option, which option shall not be assignable,
to renew the Base Term with respect to all, but not less than all, of the
Equipment covered by all of the IERs, commencing for each Item of Equipment at
the expiration of the Base Term of each IER and ending one year thereafter for
the Equipment's then "Fair Rental Value" (as hereinafter defined).
The Fair Rental Value shall mean the monthly rental that would be obtained
in an arms-length lease transaction for the Equipment for the renewal term
between an informed and willing lessor and an informed and willing lessee each
under no compulsion to lease. Fair Rental Value shall be determined on the basis
that the Equipment is in complete compliance with all conditions specified in
the Lease and IER and that the Equipment is installed and/or in service and any
cost of removal, preparation for shipment or transportation or diminution in
value caused by removal or transportation shall not be deducted in determining
the Fair Rental Value of the Equipment.
Lessee's right to exercise this option is subject to the following
conditions precedent: (a) Lessee shall have performed all of the terms and
conditions of the Lease and of all other agreements between Lessor and Lessee at
the time and in the manner required therein and neither an Event of Default nor
an event which with notice and/or lapse of time would constitute an Event of
Default under the Lease or default under any other such agreement shall have
occurred and be continuing; and (b) Lessor shall have received written notice of
the election to exercise said option at least one hundred twenty (120) days
prior to the date upon which the Base Term of the first expiring IER under the
Lease expires.
The Fair Rental Value for each IER shall be determined as follows:
(1) Between 150 and 120 days prior to the expiration of the Base Term,
Lessee shall send its reasonable estimate of the Fair Rental Value of the
applicable Equipment to the Lessor;
(2) At least 60 days prior to the expiration of the Base Term, Lessor
shall either (i) accept such estimate, (ii) negotiate a mutually acceptable Fair
Rental Value with Lessee or (iii) employ a recognized independent appraiser
consented to by Lessee, which consent shall not be unreasonably withheld, to
determine the Fair Rental Value;
(3) At least 30 days prior to the expiration of the Base Term, if the
appraiser has not been so selected and consented to, Lessor and Lessee shall
each appoint a recognized independent appraiser to determine the Fair Rental
Value;
(4) At lease 15 days prior to the expiration of the Base Term, if the
appraisers appointed under (3) above have not agreed upon the Fair Rental Value,
the two appraisers shall by mutual consent choose a third party independent
appraiser who shall determine the Fair Rental Value. If the appraisers cannot
agree
FMV Renewal Option Page 1 of 2
on a mutually acceptable third party appraiser at least 10 days prior to the
expiration of the Base Term, Lessor shall submit the determination of the Fair
Rental Value to the American Arbitration Association (or any successor thereto)
which shall appoint an appraiser whose determination shall be final and binding.
Lessee shall pay to Lessor applicable rental, based on the Fair Rental Value of
the Equipment covered by any expired IER on the due date(s) of such rent,
together with all Taxes due under the Lease or arising from or related to the
rental of the Equipment. The Fair Rental Value, as finally determined, and any
other amounts due under this Lease Addendum No. 2, shall bear interest at the
Overdue Rate for the period, if any, from the date of expiration of the IER to
the date of payment, and the cost of all appraisals shall be borne by Lessee.
By Lessee's renewal of the Lease Term for the Equipment covered by the
first expiring IER entered into pursuant to the Lease, Lessee agrees that it
shall thereafter renew the Lease Term, upon the terms and conditions set forth
herein, for the remainder of the Equipment covered by the Lease. If the Lease is
renewed, all terms of the Lease shall remain in full force and effect unamended,
except that the rental shall be as set forth herein.
Lessor: Lessee:
MDFC Equipment Leasing Corporation Radiant Aviation Services, Inc.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Colin X.X. Xxxxxx
------------------------------ ----------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxxx Printed Name: Colin X.X. Xxxxxx
-------------------- ------------------------
Title: Senior Documentation Officer Title: Chief Operations Officer
---------------------------- -------------------------------
By: Xxxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxxx X. Xxxx
------------------------
Title: Vice President, Engineering
-------------------------------
FMV Renewal Option Page 2 of 2
MDFC LEASING CORPORATION
Equipment Lease Agreement No. 3567-1
Unconditional Guaranty
For value received and in order to induce MDFC, a Deleware corporation
("Lessor"), to enter into, accept or acquire a certain Equipment Lease Agreement
dated as of the December 20, 1999 (hereinafter with all present and future
Individual Equipment Records, amendments, addenda and riders thereto referred to
as the "Lease") with Radient Energy Corporation, a Canadian corporation
("Lessee"), and/or to advance monies or extend or continue to extend credit to
or for the benefit of Lessee, under the Lease or otherwise, the undersigned
hereby absolutely, irrevocably and unconditionally guarantees to Lessor (i) the
prompt and full payment when due, by acceleration or otherwise, of all sums now
or at any time hereafter due from Lessee to Lessor, under the Lease or otherwise
and agrees to pay any and all expenses (including counsel fees and expenses)
incurred by Lessor in enforcing any rights under this Guaranty, and (ii) the
prompt, full and faithful performance and discharge by Lessee of each and every
obligation and warranty of Lessee set forth in the Lease (collectively "Lessee's
Obligations").
This Guaranty is absolute, unconditional and continuing and shall remain in
effect until all of Lessee's Obligations have been paid, performed and
discharged regardless of the enforceability of Lessee's Obligations and
regardless of any law, regulation or decree now or hereafter in effect which
might in any manner affect Lessee's Obligations. The death or bankruptcy of the
undersigned or of Lessee shall not terminate this Guaranty or any obligations
hereunder. The liability of the undersigned hereunder shall in no event be
affected or impaired by any renewals, amendments, modifications or supplements
of or to the Lease, or by any extensions, forebearances, compromises or releases
of any of Lessee's Obligations, any of Lessor's rights under the Lease or any
lack of validity or enforceability of Lessee's Obligations or any agreement or
instrument relating thereto or any other circumstance which might otherwise
constitute a defense available to, or a discharge of, Lessee or the undersigned
and the undersigned hereby consents to and waives notice of any of the
foregoing. The undersigned further expressly waives (i) all diligence in
collection and any failure or delay by Lessor in protection or perfection of
Lessor's rights under the Lease or in or to any collateral securing any of
Lessee's Obligations, (ii) notice of acceptance by Lessor of this Guaranty or of
the Lease, (iii) notice of leasing of any additional property to Lessee under
the Lease, (iv) notice of advancement of any funds to or for the benefit of
Lessee, (v) presentment, demand for payment, protest and notice of protest,
default, non-payment or partial payment by Lessee, (vi) all other notices and
formalities to which Lessee and/or the undersigned might be entitled, by statute
or otherwise, (vii) any right of subrogation, reimbursement, exoneration,
contribution, indemnity or any other right that would result in Guarantor being
deemed a creditor of Lessee under the United States Bankruptcy Code or any other
law or any right to enforce any remedy which Lessor now has or may hereafter
have against Lessee and any benefit of, and any right to participate in, any
security now or hereafter held by Lessor, whether any of the foregoing arise in
equity, at law or by contract and (viii) any other action or any other
circumstance whatsoever which might constitute a defense to enforcement of this
Guaranty. This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Lessee's Obligations is
rescinded or must otherwise be returned by Lessor upon the insolvency,
bankruptcy or reorganization of Lessee or otherwise, all as though such payment
had not been made.
The undersigned further waives any right of setoff, recoupment or counterclaim
against Lessor with respect to any claim or demand the undersigned may at any
time have against Lessee, or against any other person or concern liable for
Lessee's Obligations, and as further security to Lessor, any and all debts or
liabilities now
Unconditional Guaranty Page 1 of 2
or hereafter owing to the undersigned by Lessee, and/or such other person or
concern, and any lien, security or collateral given to the undersigned in
connection therewith, are hereby subordinated to the claims and liens of, and
assigned to, Lessor.
The obligations of the undersigned hereunder are and shall at all times be the
original, direct and primary obligations of the undersigned, as if the
undersigned were the lessee under the Lease. Lessor shall not in any event be
obligated to pursue or exhaust any rights or remedies against Lessee or others,
or resort to any security, prepayments or collateral, as a prerequisite to
enforcing this Guaranty against the undersigned. This Guaranty shall be binding
upon the undersigned and its, his or her respective heirs, personal
representatives, successors and assigns, and shall inure to the benefit of
Lessor and its successors and assigns. All of the obligations and agreements of
the undersigned in this Guaranty are joint and several.
If the undersigned is a corporation, each signatory on behalf of such
corporation warrants that he or she has the authority to sign on behalf of such
corporation and by so signing, to bind said corporation hereunder. If the
undersigned is married, it is the intent of such undersigned to bind to the
performance of this Guaranty any separate estate of such person together with
all joint and/or community property of such undersigned. No modification or
waiver of any of the provisions of this Guaranty shall be effective unless in
writing and signed by the undersigned and an officer of Lessor. The undersigned
agrees to furnish to Lessor such financial information concerning the
undersigned as Lessor may reasonably request from time to time, including,
without limitation, a certified audit report of any business operation owned in
part or in whole by the undersigned. If any provision of this Guaranty or the
application thereof is hereafter held invalid or unenforceable, the remainder of
this Guaranty shall not be affected thereby, and to this end the provisions of
this Guaranty are declared severable.
This Guaranty shall be governed in all respects by the laws of the State of
California and the undersigned hereby irrevocably consent to the jurisdiction of
the California State Courts and the United States Courts located in Los Angeles
County.
Dated this 20 day of December, 1999.
Witness: Guarantor(s):
__________________________________ Radiant Energy
By: _____________________________ By: /s/ Colin X.X. Xxxxxx
----------------------------------
Printed Name: ___________________ Printed Name: Colin X.X. Xxxxxx
------------------------
Title: __________________________ Title: Chief Operations Officer
-------------------------------
By: Xxxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxxx X. Xxxx
------------------------
Title: Vice President, Engineering
-------------------------------
Unconditional Guaranty Page2 of 2
