MASTER EQUIPMENT LEASE AGREEMENT
Exhibit
10(ii)21
Master Equipment
Lease Agreement
THIS MASTER EQUIPMENT LEASE AGREEMENT
dated as of August 10, 1998 is made by and between KEYCORP LEASING, A
DIVISION OF KEY CORPORATE CAPITAL INC., having an address at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (“Lessor”), and IT CORPORATION, a
California corporation with its principal place of business at 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx, XX 00000 (“Lessee”).
TERMS AND
CONDITIONS OF LEASE
1.
Lease. Lessor hereby leases to
Lessee, and Lessee hereby leases from Lessor, the Equipment, subject to and
upon the terms set forth herein. Each Equipment Schedule shall constitute a
separate and enforceable lease incorporating all the terms of this Master
Equipment Lease Agreement as if such terms were set forth in full in such
Equipment Schedule. In the event that any term of any Equipment Schedule
conflicts with or is inconsistent with any term of this Master Equipment
Lease Agreement, the terms of the Equipment Schedule shall
govern.
2.
Disclaimer of Warranties. LESSOR
MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE
DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT
OR WORKMANSHIP IN, THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR OF ANY COMPONENT THEREOF,
THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND
LESSOR HEREBY DISCLAIMS THE SAME, IT BEING UNDERSTOOD THAT THE EQUIPMENT IS
LEASED TO LESSEE “AS IS” AND ALL SUCH RISKS, IF ANY, ARE TO BE
BORNE BY LESSEE. NO DEFECT IN, OR UNFITNESS OF, THE EQUIPMENT, OR ANY OF THE
OTHER FOREGOING MATTERS, SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT
OR OF ANY OTHER OBLIGATION HEREUNDER. LESSEE HAS MADE THE SELECTION OF THE
EQUIPMENT FROM THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY
DISCLAIMS ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY
LESSOR. LESSOR IS NOT RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR
DEFECT IN THE EQUIPMENT OR THE OPERATION THEREOF. IN NO EVENT SHALL LESSOR
BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (WHETHER UNDER
THE UCC OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY LOSS, COST OR
DAMAGE TO LESSEE OR OTHERS ARISING FROM ANY OF THE FOREGOING MATTERS,
INCLUDING, WITHOUT LIMITATION, DEFECTS, NEGLIGENCE, DELAYS, FAILURE OF
DELIVERY OR NON-PERFORMANCE OF THE EQUIPMENT. ANY WARRANTY BY THE SUPPLIER
IS HEREBY ASSIGNED TO LESSEE BY LESSOR FOR THE TERM OF THE LEASE WITHOUT
RECOURSE. SUCH WARRANTY SHALL NOT RELEASE LESSEE FROM ITS OBLIGATION TO
LESSOR TO PAY RENT, TO PERFORM ALL OTHER OBLIGATIONS HEREUNDER AND TO KEEP,
MAINTAIN AND SURRENDER THE EQUIPMENT IN THE CONDITION REQUIRED BY SECTIONS
12 AND 13 HEREOF. Lessee’s execution and delivery of a Certificate of
Acceptance shall be conclusive evidence as between Lessor and Lessee that
the Items of Equipment described therein are in all of the foregoing
respects satisfactory to Lessee, and Lessee shall not assert any claim of
any nature whatsoever against Lessor based on any of the foregoing matters;
provided, however, that nothing contained herein shall in any way
bar, reduce or defeat any claim that Lessee may have against the Supplier or
any other person (other than Lessor).
3.
Non-Cancelable Lease. THIS
LEASE IS A NET LEASE AND LESSEE’S OBLIGATION TO PAY RENT AND PERFORM
ITS OBLIGATIONS HEREUNDER ARE ABSOLUTE, IRREVOCABLE AND UNCONDITIONAL UNDER
ANY AND ALL CIRCUMSTANCES WHATSOEVER (INCLUDING WITHOUT LIMITATION THE
BANKRUPTCY OF LESSOR) AND SHALL NOT BE SUBJECT TO ANY RIGHT OF SET OFF,
COUNTERCLAIM, DEDUCTION, DEFENSE OR OTHER RIGHT WHICH LESSEE MAY HAVE
AGAINST THE SUPPLIER, LESSOR OR ANY OTHER PARTY. LESSEE SHALL HAVE NO RIGHT
TO TERMINATE (EXCEPT AS EXPRESSLY PROVIDED HEREIN) OR CANCEL THIS LEASE OR
TO BE RELEASED OR DISCHARGED FROM ITS OBLIGATION HEREUNDER FOR ANY REASON
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DEFECTS IN, DESTRUCTION OF,
DAMAGE TO OR INTERFERENCE WITH ANY USE OF THE EQUIPMENT (FOR ANY REASON
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WAR, ACT OF GOD, STRIKE OR
GOVERNMENTAL REGULATION), THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY (OR
ANY ALLEGATION THEREOF) OF THIS LEASE
OR ANY PROVISION HEREOF, OR ANY OTHER OCCURRENCE WHATSOEVER, WHETHER SIMILAR
OF DISSIMILAR TO THE FOREGOING, WHETHER FORESEEN OR UNFORESEEN.
4.
Definitions. Unless the context
otherwise requires, as used in this Lease, the following terms shall have
the respective meanings indicated below and shall be equally applicable to
both the singular and the plural forms thereof:
“Applicable Law” shall mean all applicable Federal, state,
local and foreign laws, ordinances, judgments, decrees, injunctions, writs,
rules, regulations, orders, licenses and permits of any Governmental
Authority.
“Appraisal
Procedure” shall mean the following procedure for obtaining an
appraisal of the Fair Market Sales Value or the Fair Market Rental Value.
Lessor shall provide Lessee with the names of three independent Appraisers.
Within ten (10) business days thereafter, Lessee shall select one of such
Appraisers to perform the appraisal. The selected Appraiser shall be
instructed to perform its appraisal based upon the assumptions specified in
the definition of Fair Market Sales Value or Fair Market Rental Value, as
applicable, and shall complete its appraisal within twenty (20) business
days after such selection. Any such appraisal shall be final, binding and
conclusive on Lessee and Lessor and shall have the legal effect of an
arbitration award. Lessee shall pay the fees and expenses of the selected
Appraiser.
“Appraiser
” shall mean a person engaged in the business of
appraising property who has at least ten (10) years’ experience in
appraising property similar to the Equipment.
“Authorized Signer” shall mean any officer of Lessee, set
forth on an incumbency certificate (in form and substance satisfactory to
Lessor) delivered by Lessee to Lessor, who is authorized and empowered to
execute the Lease Documents.
“Certificate of Acceptance” shall mean a certificate of
acceptance, in form and substance satisfactory to Lessor, executed and
delivered by Lessee in accordance with Section 7 hereof.
“Default
” shall mean any event or condition which, with the passage of
time or the giving of notice, or both, would constitute an Event of Default.
“Default Rate” shall mean an annual interest rate equal to the
lesser of 18% or the maximum interest rate permitted by Applicable
Law.
“Default
Rate” shall mean an annual interest rate equal to the lesser of
18% or the maximum interest rate permitted by Applicable Law.
“Equipment
” shall mean an item or items of property designated from time
to time by Lessee which are described on an Equipment Schedule and which are
being or will be leased by Lessee pursuant to this Lease, together with all
replacement parts, additions and accessories incorporated therein or affixed
thereto including, without limitation, any software that is a component or
integral part of, or is included or used in connection with, any Item of
Equipment, but with respect to such software, only to the extent of Lessor
’s interest therein, if any.
“Equipment
Group” shall consist of all Items of Equipment listed on a
particular Equipment Schedule.
“Equipment
Location” shall mean the location of the Equipment, as set
forth on an Equipment Schedule, or such other location (approved in writing
by Lessor) as Lessee shall from time to time specify in writing.
“Equipment
Schedule” shall mean each equipment lease schedule from time to
time executed by Lessor and Lessee with respect to an Equipment Group,
pursuant to and incorporating by reference all of the terms of this Master
Equipment Lease Agreement.
“Event of
Default” shall have the meaning specified in Section 22
hereof.
“Fair
Market Rental Value” or “Fair Market Sale Value
” shall mean the value of each Item of Equipment for lease or
sale, unless otherwise specified herein as determined between Lessor and
Lessee, or, if Lessor and Lessee are unable to agree, pursuant to the
Appraisal Procedure, which would be obtained in an arms-length transaction
between an informed and willing lessor or seller (under no compulsion to
lease or sell) and an informed and willing lessee or buyer (under no
compulsion to lease or purchase). In determining the Fair Market Rental
Value or Fair Market Sale Value of the Equipment, (i) such Fair Market
Rental Value or Fair Market Sale Value shall be calculated on the assumption
that the Equipment is in the condition and repair required by Sections 12
and 13 hereof, and (ii) there shall be excluded from the calculation thereof
the value of any Upgrade made pursuant to Section 14 hereof in which the
Lessor does not hold an interest.
“GAAP
” shall have the meaning specified in Section 31
hereof.
“Governmental Action” shall mean all authorizations,
consents, approvals, waivers, filings and declarations of any Governmental
Authority, including, without limitation, those environmental and operating
permits required for the ownership, lease, use and operation of the
Equipment.
“Governmental Authority” shall mean any foreign, Federal,
state, county, municipal or other governmental authority, agency, board or
court.
“Guarantor
” shall mean any guarantor of Lessee’s obligations
hereunder.
“Item of
Equipment”shall mean each Item of the Equipment.
“Lease
”, “hereof”, “herein
” and “hereunder” shall mean, with
respect to an Equipment Group, this Master Equipment Lease Agreement and the
Equipment Schedule on which such Equipment Group is described, including all
addenda attached thereto and made a part thereof.
“Lease
Documents” shall mean this Lease and all other documents
prepared by Lessor and now or hereafter executed in connection
therewith.
“Lessor
Assignee” shall have the meaning specified in Section 15
hereof.
“Lessor
Expense” shall have the meaning specified in Section 26
hereof.
“Lessor
Transfer” shall have the meaning specified in Section 15
hereof.
“Liability
” shall have the meaning specified in Section 24
hereof.
“Lien
” shall mean all mortgages, pledges, security interests, liens,
encumbrances, claims or other charges of any kind whatsoever.
“Loss
” shall have the meaning specified in Section 16
hereof.
“Purchase
Agreement” shall mean any purchase agreement or other contract
entered into between the Supplier and Lessee for the acquisition of the
Equipment to be leased hereunder.
“Related
Equipment Schedule” shall have the meaning specified in Section
27 hereof.
“Remedy
Date” shall have the meaning specified in Section 22
hereof.
“Rent
” shall mean the periodic rental payments due hereunder for the
leasing of the Equipment, as set forth on the Equipment Schedules, and,
where the context hereof requires, all such additional amounts as may from
time to time be payable under any provision of this Lease.
“Rent
Commencement Date” shall mean, with respect to an Equipment
Group, (i) the date on which Lessor receives an executed Certificate of
Acceptance for such Equipment from Lessee or (ii) the date on which Lessor
disburses funds for the purchase of such Equipment Group, as determined by
Lessor in its sole discretion.
“Rent
Payment Date” with respect to an Equipment Group, shall have
the meaning set forth in the Equipment Schedule associated
therewith.
“Required
Alteration” shall have the meaning specified in Section 11
hereof.
“Stipulated Loss Value” shall mean, as of any Rent Payment
Date and with respect to an Item of Equipment, the amount determined by
multiplying the Total Cost for such Item of Equipment by the percentage
specified in the applicable Stipulated Loss Value Supplement opposite such
Rent Payment Date.
“Stipulated Loss Value Supplement” with respect to an
Equipment Group, shall have the meaning set forth in the Equipment Schedule
associated therewith.
“Supplier
” shall mean the manufacturer or the vendor of the Equipment,
as set forth on each Equipment Schedule.
“Term
” shall mean the Initial Term or any Renewal Term, each as
defined in Section 8 hereof, and any Extended Lease Term or Interim Term as
defined in an Equipment Schedule.
“Total Cost
” shall mean, with respect to an Item of Equipment, (1) the
acquisition cost of such Item of Equipment (including Lessor’s
capitalized costs), as set forth on the Equipment Schedule on which such
Item of Equipment is described, or (2) if no such acquisition cost is
specified, the Supplier’s invoice price for such Item of Equipment plus
Lessor’s capitalized costs, or (3) if no such acquisition cost is
specified and no such invoice price is obtainable, an allocated price for
such Item of Equipment based on the Total Cost of all Items of Equipment set
forth on the Equipment Schedule on which such Item of Equipment is
described, as determined by Lessor in its sole discretion.
“Upgrade
” shall have the meaning specified in Section 14
hereof.
5.
Supplier Not an Agent. LESSEE
UNDERSTANDS AND AGREES THAT (i) NEITHER THE SUPPLIER, NOR ANY SALES
REPRESENTATIVE OR OTHER AGENT OF THE SUPPLIER, IS (1) AN AGENT OF LESSOR OR
(2) AUTHORIZED TO MAKE OR ALTER ANY TERM OR CONDITION OF THIS LEASE, AND
(ii) NO SUCH WAIVER OR ALTERATION SHALL VARY THE TERMS OF THIS LEASE UNLESS
EXPRESSLY SET FORTH HEREIN.
6.
Ordering Equipment. Lessee has
selected and ordered the Equipment from the Supplier and, if appropriate,
has entered into a Purchase Agreement with respect thereto. Lessor may
accept an assignment from Lessee of Lessee’s rights, but none of Lessee
’s obligations, under any such Purchase Agreement. Lessee shall arrange
for delivery of the Equipment so that it can be accepted in accordance with
Section 7 hereof. If an Item of Equipment is subject to an existing Purchase
Agreement between Lessee and the Supplier, Lessee warrants that such Item of
Equipment has not been delivered to Lessee as of the date of the Equipment
Schedule applicable thereto. If Lessee causes the Equipment to be modified
or altered, or requests any additions thereto prior to the Rent Commencement
Date, Lessee (i) acknowledges that any such modification, alteration or
addition to an Item of Equipment may affect the Total Cost, taxes, purchase
and renewal
options (if any), Stipulated Loss Value and Rent with respect to such Item of
Equipment, and (ii) hereby authorizes Lessor to adjust such Total Cost,
taxes, purchase and renewal options (if any), Stipulated Loss Value and Rent
as appropriate. Lessee hereby authorizes Lessor to complete each Equipment
Schedule with the serial numbers and other identification data of the
Equipment Group associated therewith, as such data is received by
Lessor.
7.
Delivery and Acceptance. Upon
Lessee’s acceptance for lease of any Equipment delivered to Lessee and
described in any Equipment Schedule, Lessee shall execute and deliver to
Lessor a Certificate of Acceptance. LESSOR SHALL HAVE NO OBLIGATION TO
ADVANCE FUNDS FOR THE PURCHASE OF THE EQUIPMENT UNLESS AND UNTIL LESSOR
SHALL HAVE RECEIVED A CERTIFICATE OF ACCEPTANCE RELATING THERETO EXECUTED BY
LESSEE. Such Certificate of Acceptance shall constitute Lessee’s
acknowledgment that such Equipment (a) was received by Lessee, (b) is
satisfactory to Lessee in all respects and is acceptable to Lessee for lease
hereunder, (c) is suitable for Lessee’s purposes, (d) is in good order,
repair and condition, (e) has been installed and operates properly, and (f)
is subject to all of the terms of this Lease (including, without limitation,
Section 2 hereof).
8.
Term; Survival. With respect to
any Item of Equipment, unless otherwise specified on an Equipment Schedule,
the initial term of this Lease (the “Initial Term”) shall commence
on the date on which such Item of Equipment is delivered to Lessee, and,
unless earlier terminated as provided herein, shall expire on the final Rent
Payment Date for such Item of Equipment. With respect to an Item of
Equipment, any renewal term of this Lease (individually, a “Renewal Term
”), as contemplated hereby, shall commence immediately upon the
expiration of the Initial Term or any prior Renewal Term, as the case may
be, and, unless earlier terminated as provided herein, shall expire on the
date on which the final payment of Rent is due and paid hereunder. All
obligations of Lessee hereunder shall survive the expiration, cancellation
or other termination of the Term hereof.
9.
Rent. Lessee shall pay the Rent
set forth on the Equipment Schedule commencing on the Rent Commencement
Date, and, unless otherwise set forth on such Equipment Schedule, on the
same day of each payment period thereafter for the balance of the Term. Rent
shall be due whether or not Lessee has received any notice that such
payments are due. All Rent shall be paid to Lessor at its address set forth
on the Equipment Schedule, or as otherwise directed by Lessor in
writing.
10.
Location; Inspection; Labels. The
Equipment shall be delivered to the Equipment Location and shall not be
removed therefrom without Lessor’s prior written consent. Lessor shall
have the right to enter upon the Equipment Location and inspect the
Equipment at any reasonable time. Lessor may, without notice to Lessee,
remove the Equipment if the Equipment is, in the opinion of Lessor, being
used beyond its capacity or is in any manner improperly cared for, abused or
misused. At Lessor’s request, Lessee shall affix permanent labels
stating that the Equipment is owned by Lessor in a prominent place on the
Equipment and shall keep such labels in good repair and
condition.
11.
Use; Alterations. Lessee shall
use the Equipment lawfully and only in the manner for which it was designed
and intended and so as to subject it only to ordinary wear and tear. Lessee
shall comply with all Applicable Law. Lessee shall immediately notify Lessor
in writing of any existing or threatened investigation, claim or action by
any Governmental Authority in connection with any Applicable Law or
Governmental Action which could adversely affect the Equipment or this
Lease. Lessee, at its own expense, shall make such alterations, additions or
modifications or improvements (each, a “Required Alteration”) to
the Equipment as may be required from time to time to meet the requirements
of Applicable Law or Governmental Action. All such Required Alterations
shall immediately, and without further act, be deemed to constitute Items of
Equipment and be fully subject to this Lease as if originally leased
hereunder. Except as otherwise permitted herein, Lessee shall not make any
alterations to the Equipment without Lessor’s prior written
consent.
12.
Repairs and Maintenance. Lessee,
at Lessee’s own cost and expense, shall (a) keep the Equipment in good
repair, good operating condition and working order and in compliance with
the manufacturer’s specifications and Lessee’s standard practices
(but with respect to the latter, in no event less than industry practices),
and (b) enter into and keep in full force and effect during the Term hereof
a maintenance agreement with the manufacturer of the Equipment, or a
manufacturer-approved maintenance organization, to maintain, service and
repair the Equipment as otherwise required herein. Upon Lessor’s
request, Lessee shall furnish Lessor with an executed copy of any such
maintenance agreement. An alternate source of maintenance may be used by
Lessee with Lessor’s prior written consent. Lessee, at its own cost and
expense and within a reasonable period of time, shall replace any part of
any Item of Equipment that becomes unfit or
unavailable for use from any cause (whether or not such replacement is covered
by the aforesaid maintenance agreement), with a replacement part of the same
manufacture, value, remaining useful life and utility as the replaced part
immediately preceding the replacement (assuming that such replaced part was
in the condition required by this Lease). Such replacement part shall
immediately, and without further act, be deemed to constitute an Item of
Equipment and be fully subject to this Lease as if originally leased
hereunder, and shall be free and clear of all Liens.
13.
Return of Equipment. Upon the
expiration (subject to Section 32 hereof and except as otherwise provided in
an Equipment Schedule) or earlier termination of this Lease, Lessee, at its
sole expense, shall assemble and return the Equipment to Lessor by
delivering such Equipment F.A.S. or F.O.B. to such location or such carrier
(packed for shipping) as Lessor shall specify. Lessee agrees that the
Equipment, when returned, shall be in the condition required by Section 12
hereof. All components of the Equipment shall have been properly serviced,
following the manufacturer’s written operating and servicing
procedures, such that the Equipment is eligible for a manufacturer’s
standard, full service maintenance contract without Lessor’s incurring
any expense to repair or rehabilitate the Equipment. If, in the opinion of
Lessor, any Item of Equipment fails to meet the standards set forth above,
Lessee agrees to pay on demand all costs and expenses incurred in connection
with repairing such Item of Equipment and restoring it so as to meet such
standards. If Lessee fails to return any Item of Equipment as required
hereunder, then, all of Lessee’s obligations under this Lease
(including, without limitation, Lessee’s obligation to pay Rent for
such Item of Equipment at the rental then applicable under this Lease) shall
continue in full force and effect until such Item of Equipment shall have
been returned in the condition required hereunder.
14.
Equipment Upgrades/Attachments.
In addition to the requirements of Section 11 hereof, Lessee, at its
own expense, may from time to time add or install upgrades or attachments
(each an “Upgrade”) to the Equipment during the Term;
provided that such Upgrades (a) are readily removable without causing
material damage to the Equipment, (b) do not materially adversely affect the
Fair Market Sale Value, the Fair Market Rental Value, residual value,
productive capacity, utility or remaining useful life of the Equipment, and
(c) do not cause such Equipment to become “limited use property”
within the meaning of Revenue Procedure 76-30, 1976-2 C.B. 647 (or such
other successor tax provision), as of the date of installation of such
Upgrade. Any such Upgrades which can be removed without causing damage to or
adversely affecting the condition of the Equipment, or reducing the Fair
Market Sale Value, the Fair Market Rental Value, residual value, productive
capacity, utility or remaining useful life of the Equipment shall remain the
property of Lessee; and upon the expiration or earlier termination of this
Lease and provided that no Event of Default exists, Lessee may, at its
option, remove any such Upgrades and, upon such removal, shall restore the
Equipment to the condition required hereunder.
15.
Sublease and Assignment. (a)
WITHOUT LESSOR’S PRIOR WRITTEN CONSENT, LESSEE SHALL
NOT (i) ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS
LEASE, THE EQUIPMENT OR ANY INTEREST THEREIN, OR (ii) SUBLET OR LEND THE
EQUIPMENT TO, OR PERMIT THE EQUIPMENT TO BE USED BY, ANYONE OTHER THAN
LESSEE.
(b) Lessor, at any time
with or without notice to Lessee, may sell, transfer, assign and/or grant a
security interest, in all or any part of Lessor’s interest in this
Lease, any Equipment Schedule or any Item of Equipment (each, a “Lessor
Transfer”), provided that no such Lessor Transfer will materially
increase Lessee’s burdens or risks hereunder. In the event of a Lessor
Transfer, any purchaser, transferee, assignee or secured party (each a
“Lessor Assignee”) shall have and may exercise all of Lessor
’s rights hereunder with respect to the items to which any such Lessor
Transfer relates, and LESSEE SHALL NOT ASSERT AGAINST ANY SUCH LESSOR
ASSIGNEE ANY DEFENSE, COUNTERCLAIM OR OFFSET THAT LESSEE MAY HAVE AGAINST
LESSOR. Lessee acknowledges that no such sale, transfer, assignment and/or
security interest will materially change Lessee’s duties hereunder or
materially increase its burdens or risks hereunder. Lessee agrees that upon
written notice to Lessee of any such sale, transfer, assignment and/or
security interest, Lessee shall acknowledge receipt thereof in writing and
shall comply with the directions and demands of any such Lessor
Assignee.
16.
Risk of Loss; Damage to Equipment.
(a) Lessee shall bear the entire risk of loss
(including without limitation, theft, destruction, disappearance of or
damage to any and all Items of Equipment (“Loss”) from any cause
whatsoever), whether or not insured against, during the Term hereof until
the Equipment is returned to Lessor in accordance with Section 13 hereof. No
Loss shall relieve Lessee of the obligation to pay Rent or of any other
obligation under this Lease.
(b) In the event of
Loss to any Item of Equipment, Lessee shall immediately notify Lessor of
same, and at the option of Lessor, Lessee shall within thirty (30) days
following such Loss: (1) place such Item of Equipment in good condition and
repair, in accordance with the terms hereof; (2) replace such Item of
Equipment with replacement equipment (acceptable to Lessor) in as good
condition and repair, and with the same value, remaining useful economic
life and utility, as such replaced Item of Equipment immediately preceding
the Loss (assuming that such replaced Item of Equipment was in the condition
required by this Lease), which replacement equipment shall immediately, and
without further act, be deemed to constitute Items of Equipment and be fully
subject to this Lease as if originally leased hereunder and shall be free
and clear of all Liens; or (3) pay to Lessor the sum of (i) all Rent due and
owing hereunder with respect to such Item of Equipment (at the time of such
payment) plus (ii) the Stipulated Loss Value as of the Rent Payment Date
next following the date of such Loss with respect to such Item of Equipment.
Upon Lessor’s receipt of the payment required under subsection (3)
above, Lessee shall be entitled to Lessor’s interest in such Item of
Equipment, in its then condition and location, “as is” and
“where is”, without any warranties, express or implied. In the
event Lessee elects to replace the Item of Equipment, Lessor’s interest
in such replacement equipment shall be free and clear of all Liens of every
kind or nature whatsoever, and this Lease shall continue in full force and
effect as though such Loss had not occurred, except that the replacement
equipment shall become Equipment for all purposes of this Lease in lieu of
the replaced Equipment.
17.
Insurance. (a)
Lessee shall, at all times during the Term hereof (until the Equipment
shall have been returned to Lessor) and at Lessee’s own cost and
expense, maintain (1) insurance against all risks of physical loss or damage
to the Equipment (which shall include theft and collision for Equipment
consisting of motor vehicles, but shall not exclude loss resulting from
flood or earthquake) in an amount not less than the greater of the full
replacement value thereof or the Stipulated Loss Value thereof if
applicable, and (2) commercial general liability insurance (including
blanket contractual liability coverage and products liability coverage) for
personal and bodily injury and property damage in an amount satisfactory to
Lessor.
(b) All insurance
policies required hereunder shall (1) require thirty (30) days’ prior
written notice of cancellation or material change in coverage to Lessor (any
such cancellation or change, as applicable, not being effective until the
thirtieth (30th) day after the giving of such notice); (2) name
“KeyCorp and its subsidiaries and affiliated companies, including Key
Corporate Capital Inc.” as an additional insured under the public
liability policies and name Lessor as sole loss payee under the property
insurance policies; (3) not require contributions from other policies held
by Lessor; (4) waive any right of subrogation against Lessor; (5) in respect
of any liability of Lessor, except for the insurers’ salvage rights in
the event of a loss, waive the right of such insurers to set-off, to
counterclaim or to any other deduction, whether by attachment or otherwise,
to the extent of any monies due Lessor under such policies; (6) not require
that Lessor pay or be liable for any premiums with respect to such insurance
covered thereby; (7) be in full force and effect throughout any geographical
areas at any time traversed by any Item of Equipment; and (8) contain breach
of warranty provisions providing that, in respect of the interests of Lessor
in such policies, the insurance shall not be invalidated by any action or
inaction of Lessee or any other person (other than Lessor) and shall insure
Lessor regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by Lessee or by any other person (other
than Lessor). Prior to the first date of delivery of any Item of Equipment
hereunder, and thereafter not less than 15 days prior to the expiration
dates of the expiring policies theretofore delivered pursuant to this
Section, Lessee shall deliver to Lessor a duplicate original of all policies
(or in the case of blanket policies, certificates thereof issued by the
insurers thereunder) for the insurance maintained pursuant to this
Section.
18.
General Tax Indemnification.
Lessee shall pay when due and shall indemnify and hold Lessor harmless
from and against (on an after-tax basis) any and all taxes, fees,
withholdings, levies, imposts, duties, assessments and charges of any kind
and nature arising out of or related to this Lease (together with interest
and penalties thereon and including, without limitation, sales, use, gross
receipts, personal property, real property, real estate excise, ad
valorem, business and occupational, franchise, value added, leasing,
leasing use, documentary, stamp or other taxes) imposed upon or against
Lessor, any Lessor Assignee, Lessee or any Item of Equipment by any
Governmental Authority with respect to any Item of Equipment or the
manufacturing, ordering, sale, purchase, shipment, delivery, acceptance or
rejection, ownership, titling, registration, leasing, subleasing,
possession, use, operation, removal, return or other dispossession thereof
or upon the rents, receipts or earnings arising therefrom or upon or with
respect to this Lease, excepting only all Federal, state and local taxes on
or measured by Lessor’s net income (other than income tax resulting
from making any alterations, improvements, modifications, additions,
upgrades, attachments, replacements or substitutions by Lessee). Whenever
this Lease terminates as to any Item of Equipment, Lessee shall, upon
written request by Lessor, advance to Lessor the amount estimated by Lessor
to be the personal property or other taxes on said item which are not yet
payable, but for which
Lessee is responsible. Lessor shall, at Lessee’s request, provide Lessee
with Lessor’s method of computation of any estimated taxes.
19.
Lessor’s Right to Perform for Lessee.
If Lessee fails to perform any of its obligations contained
herein, Lessor may (but shall not be obligated to) itself perform such
obligations, and the amount of the reasonable costs and expenses of Lessor
incurred in connection with such performance, together with interest on such
amount at the Default Rate, shall be payable by Lessee to Lessor upon
demand. No such performance by Lessor shall be deemed a waiver of any rights
or remedies of Lessor, or be deemed to cure the default of Lessee
hereunder.
20.
Delinquent Payments. If Lessee
fails to pay any Rent or other sums under this Lease on or before the date
when the same becomes due, Lessee shall pay to Lessor a late charge equal to
five percent (5%) of such delinquent amount. Such late charge shall be
payable by Lessee upon demand by Lessor and shall be deemed Rent hereunder.
In no event shall such late charge exceed the maximum amount permitted under
Applicable Law.
21.
Personal Property; Liens. Lessor
and Lessee hereby agree that the Equipment is, and shall at all times
remain, personal property notwithstanding the fact that any Item of
Equipment may now be, or hereafter become, in any manner affixed or attached
to real property or any improvements thereon. Lessee shall at all times keep
the Equipment free and clear from all Liens. Lessee shall (i) give Lessor
immediate written notice of any such Lien, (ii) promptly, at Lessee’s
sole cost and expense, take such action as may be necessary to discharge any
such Lien, and (iii) indemnify and hold Lessor, on an after-tax basis,
harmless from and against any loss or damage caused by any such
Lien.
22.
Events of Default; Remedies. (a)
As used herein, the term “Event of Default
” shall mean any of the following events: (1) Lessee fails to pay any
Rent within ten (10) days after the same shall have become due; (2) Lessee
or any Guarantor becomes insolvent or makes an assignment for the benefit of
its creditors; (3) a receiver, trustee, conservator or liquidator of Lessee
or any Guarantor or of all or a substantial part of Lessee’s or such
Guarantor’s assets is appointed with or without the application or
consent of Lessee or such Guarantor, respectively; (4) a petition is filed
by or against Lessee or any Guarantor under any bankruptcy, insolvency or
similar legislation; (5) Lessee or any Guarantor violates or fails to
perform any provision of either this Lease or any other loan, lease or
credit agreement or any acquisition or purchase agreement with Lessor or any
other party; (6) Lessee violates or fails to perform any covenant or
representation made by Lessee herein; (7) any representation or warranty
made herein or in any certificate, financial statement or other statement
furnished to Lessor (or Lessor’s parent, subsidiaries or affiliates)
shall prove to be false or misleading in any material respect as of the date
on which the same was made; (8) Lessee makes a bulk transfer of furniture,
furnishings, fixtures or other equipment or inventory; (9) there is a
material adverse change in Lessee’s or any Guarantor’s financial
condition since the first Rent Commencement Date of any Equipment Schedule
executed in connection herewith; (10) Lessee merges or consolidates with any
other corporation or entity, or sells, leases or disposes of all or
substantially all of its assets without the prior written consent of Lessor;
(11) a change in control occurs in Lessee or any Guarantor; or (12) the
death or dissolution of Lessee or any Guarantor. An Event of Default with
respect to any Equipment Schedule hereunder shall, at Lessor’s option,
constitute an Event of Default for all Equipment Schedules hereunder and any
other agreements between Lessor and Lessee.
(b) Upon the occurrence
of an Event of Default, Lessor may do one or more of the following as Lessor
in its sole discretion shall elect: (1) proceed by appropriate court action
or actions, either at law or in equity, to enforce performance by Lessee of
the applicable covenants of this Lease or to recover damages for the breach
thereof; (2) sell any Item of Equipment at public or private sale; (3) hold,
keep idle or lease to others any Item of Equipment as Lessor in its sole
discretion may determine; (4) by notice in writing to Lessee, cancel or
terminate this Lease, without prejudice to any other remedies hereunder; (5)
demand that Lessee, and Lessee shall, upon written demand of Lessor and at
Lessee’s expense forthwith return all Items of Equipment to Lessor in
the manner and condition required by Section 13 hereof, provided, however,
that Lessee shall remain and be liable to Lessor for any amounts provided
for herein or other damages resulting from the Equipment not being in the
condition required by Section 12 hereof, and otherwise in accordance with
all of the provisions of this Lease, except those provisions relating to
periods of notice; (6) enter upon the premises of Lessee or other premises
where any Item of Equipment may be located and, without notice to Lessee and
with or without legal process, take possession of and remove all or any such
Items of Equipment without liability to Lessor by reason of such entry or
taking possession, and without such action constituting a cancellation or
termination of this Lease unless Lessor notifies Lessee in writing to such
effect; (7) by written notice to Lessee specifying a payment date (the
“Remedy Date”), demand that Lessee pay to Lessor, and Lessee shall
pay to Lessor, on the Remedy Date, as liquidated damages for loss of a
bargain and not as a penalty, any unpaid Rent due prior to the Remedy Date
plus whichever of the following amounts Lessor, in its sole discretion,
shall specify in such notice (together with interest on such amount at the
Default Rate from the Remedy Date to the date of actual payment): (i) an
amount, with respect to an Item of Equipment, equal to the Rent payable for
such Item of Equipment for the remainder of the then current Term thereof,
after discounting such Rent to present worth as of the Remedy Date on the
basis of a per annum rate of discount equal to five percent (5%) from the
respective dates upon which such Rent would have been paid had this Lease
not been canceled or terminated; or (ii) the Stipulated Loss Value, computed
as of the Remedy Date or, if the Remedy Date is not a Rent Payment Date, the
Rent Payment Date next following the Remedy Date (provided, however, that,
with respect to any proceeds actually received by Lessor for any Item of
Equipment returned to or repossessed by Lessor, Lessor agrees that it shall
first apply such proceeds to satisfy Lessee’s obligation to pay the
Stipulated Loss Value or, if Lessor has received payment in full of the
Stipulated Loss Value from Lessee, Lessor shall remit such proceeds to
Lessee (after first deducting any Lessor Expense) up to the amount of the
Stipulated Loss Value; (8) cause Lessee, at its expense, to promptly
assemble any and all Items of Equipment and return the same to Lessor at
such place as Lessor may designate in writing; and (9) exercise any other
right or remedy available to Lessor under applicable law or proceed by
appropriate court action to enforce the terms hereof or to recover damages
for the breach hereof or to rescind this Lease. In addition, Lessee shall be
liable, except as otherwise provided above, for any and all unpaid Rent due
hereunder before or during the exercise of any of the foregoing remedies,
and for reasonable legal fees and other costs and expenses incurred by
reason of the occurrence of any Event of Default or the exercise of Lessor
’s remedies with respect thereto. If an Event of Default occurs, Lessee
hereby agrees that ten (10) days prior notice to Lessee of (A) any public
sale or (B) the time after which a private sale may be negotiated shall be
conclusively deemed, reasonable and, to the extent permitted by Applicable
Law, Lessee waives all rights and defenses with respect to such disposition
of the Equipment. None of Lessor’s rights or remedies hereunder are
intended to be exclusive of, but each shall be cumulative and in addition to
any other right or remedy referred to hereunder or otherwise available to
Lessor at law or in equity, and no express or implied waiver by Lessor of
any Event of Default shall constitute a waiver of any other Event of Default
or a waiver of any of Lessor’s rights.
23.
Notices. All notices and other
communications hereunder shall be in writing and shall be transmitted by
hand, overnight courier or certified mail (return receipt requested),
postage prepaid. Such notices and other communications shall be addressed to
the respective party at the address set forth above or at such other address
as any party may from time to time designate by notice duly given in
accordance with this Section. Such notices and other communications shall be
effective upon the earlier of receipt or three (3) days after mailing if
mailed in accordance with the terms of this section.
24.
General Indemnification. Lessee
shall pay, and shall indemnify and hold Lessor harmless on an after-tax
basis from and against, any and all liabilities, causes of action, claims,
suits, penalties, damages, losses, costs or expenses (including attorneys
’ fees), obligations, liabilities, demands and judgments, and Liens, of
any nature whatsoever (collectively, a “Liability”) arising out of
or in any way related to: (a) the Lease Documents, (b) the manufacture,
purchase, ownership, selection, acceptance, rejection, possession, lease,
sublease, operation, use, maintenance, documenting, inspection, control,
loss, damage, destruction, removal, storage, surrender, sale, use,
condition, delivery, nondelivery, return or other disposition of or any
other matter relating to any Item of Equipment or any part or portion
thereof (including, in each case and without limitation, latent or other
defects, whether or not discoverable, any claim for patent, trademark or
copyright infringement) and any and all Liabilities in any way relating to
or arising out of injury to persons, properties or the environment or any
and all Liabilities based on strict liability in tort, negligence, breach of
warranties or violations of any regulatory law or requirement, (c) a failure
to comply fully with Applicable Law and (d) Lessee’s failure to perform
any covenant, or Lessee’s breach of any representation or warranty,
hereunder; provided that the foregoing indemnity shall not extend to
the Liabilities to the extent resulting solely from the gross negligence or
willful misconduct of Lessor. Lessee shall promptly deliver to Lessor (i)
copies of any documents received from the United States Environmental
Protection Agency or any state, county or municipal environmental or health
agency and (ii) copies of any documents submitted by Lessee or any of its
subsidiaries to the United States Environmental Protection Agency or to any
state, county or municipal environmental or health agency concerning the
Equipment or its operation.
25.
Severability; Captions. Any
provision of this Lease or any Equipment Schedule 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 shall not invalidate or render unenforceable such provision
in any other jurisdiction. Captions are intended for convenience or
reference only, and shall not be construed to define, limit or describe the
scope or intent of any provisions hereof.
26.
Lessor’s Expense. Lessee
shall pay all costs and expenses of Lessor, including, without limitation,
reasonable attorneys’ and other professional fees, the fees of any
collection agencies and appraisers and all other costs and expenses related
to any sale or re-lease of the Equipment (including storage costs), incurred
by Lessor in enforcing any of the terms, conditions or provisions hereof or
in protecting Lessor’s rights hereunder (each a “Lessor Expense
”).
27.
Related Equipment Schedules. In
the event that any Item of Equipment covered under any Equipment Schedule
hereunder may become attached or affixed to, or used in connection with,
Equipment covered under another Equipment Schedule hereunder (a
“Related Equipment Schedule”), Lessee agrees that, if Lessee
elects to exercise a purchase or renewal option under any such Equipment
Schedule, or if Lessee elects to return the Equipment under any such
Equipment Schedule pursuant to Section 13 hereof, then Lessor, in its sole
discretion, may require that all Equipment leased under all Related
Equipment Schedules be similarly disposed of.
28.
Financial and Other Data. During
the Term hereof, Lessee shall furnish Lessor, as soon as available and in
any event within 120 days after the last day of each fiscal year, financial
statements of Lessee and each Guarantor, in each case compiled, reviewed or
audited by an independent certified public accountant as required by Lessor.
Lessee shall also furnish such other financial reports, information or data
(including federal and state income tax returns and quarterly or interim
financial statements compiled, reviewed or audited by an independent
certified public accountant if required by Lessor) as Lessor may reasonably
request from time to time.
29.
[RESERVED]
30.
[RESERVED]
31.
Representations and Warranties of Lessee.
Lessee represents and warrants that: (a) Lessee is a corporation
duly organized and validly existing in good standing under the laws of the
state of its incorporation; (b) the execution, delivery and performance of
this Lease and all related instruments and documents: (1) have been duly
authorized by all necessary corporate action on the part of Lessee, (2) do
not require the approval of any stockholder, partner, trustee, or holder of
any obligations of Lessee except such as have been duly obtained, and (3) do
not and will not contravene any law, governmental rule, regulation or order
now binding on Lessee, or the charter or by-laws of Lessee, or contravene
the provisions of, or constitute a default under, or result in the creation
of any lien or encumbrance upon the property of Lessee under, any indenture,
mortgage, contract or other agreement to which Lessee is a party or by which
it or its property is bound; (c) the Lease Documents, when entered into,
will constitute legal, valid and binding obligations of Lessee enforceable
against Lessee in accordance with the terms thereof; (d) there are no
actions or proceedings to which Lessee is a party, and there are no other
threatened actions or proceedings of which Lessee has knowledge, before any
Governmental Authority, which, either individually or in the aggregate,
would adversely affect the financial condition of Lessee, or the ability of
Lessee to perform its obligations hereunder; (e) Lessee is not in default
under any obligation for the payment of borrowed money, for the deferred
purchase price of property or for the payment of any rent under any lease
agreement which, either individually or in the aggregate, would have the
same such effect; (f) under the laws of the state(s) in which the Equipment
is to be located, the Equipment consists solely of personal property and not
fixtures; (g) the financial statements of Lessee (copies of which have been
furnished to Lessor) have been prepared in accordance with generally
acceptable accounting principles consistently applied (“GAAP”),
and fairly present Lessee’s financial condition and the results of its
operations as of the date of and for the period covered by such statements,
and since the date of such statements there has been no material adverse
change in such conditions or operations; (h) the address stated above is the
chief place of business and chief executive office, or in the case of
individuals, the primary residence, of Lessee; (i) Lessee does not conduct
business under a trade, assumed or fictitious name; (j) the Equipment is
being leased hereunder solely for business purposes and that no item of
Equipment will be used for personal, family or household purposes; and (k)
except as previously disclosed in writing to Lessor, neither Lessee nor any
of its officers or directors (if a corporation), partners (if a partnership)
or members (if a limited liability corporation) has, directly or indirectly,
any financial interest in the Supplier.
32.
Renewal And Purchase Options.
With respect to an Equipment Schedule and the Equipment Group set
forth thereon, Lessee shall have the purchase and renewal options set forth
in such Equipment Schedule.
33.
Lessee’s Waivers. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, LESSEE (A) WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE BY SECTIONS 2A-508 THROUGH 2A-522 OF THE
UNIFORM COMMERCIAL CODE AND (B) ANY RIGHTS NOW OR HEREAFTER CONFERRED BY
STATUTE OR OTHERWISE TO RECOVER INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM
LESSOR FOR ANY BREACH OF WARRANTY OR FOR ANY OTHER REASON OR TO SETOFF OR
DEDUCT ALL OR ANY PART OF ANY CLAIMED DAMAGES RESULTING FROM LESSOR’S
DEFAULT, IF ANY, UNDER THIS LEASE PROVIDED, HOWEVER, THAT NO SUCH
WAIVER SHALL PRECLUDE LESSEE FROM ASSERTING ANY SUCH CLAIM AGAINST LESSOR IN
A SEPARATE CAUSE OF ACTION INCLUDING, WITHOUT LIMITATION, ANY CLAIM ARISING
AS A RESULT OF LESSOR’S BREACH OF SECTION 38 HEREOF.
34.
UCC Filings. LESSEE HEREBY
APPOINTS LESSOR OR ITS ASSIGNEE AS ITS TRUE AND LAWFUL ATTORNEY IN FACT,
IRREVOCABLY AND COUPLED WITH AN INTEREST, TO EXECUTE AND FILE ON BEHALF OF
LESSEE ALL UCC FINANCING STATEMENTS WHICH IN LESSOR’S SOLE DISCRETION
ARE DEEMED NECESSARY OR PROPER TO SECURE LESSOR’S INTEREST IN THE
EQUIPMENT IN ALL APPLICABLE JURISDICTIONS. Lessee hereby ratifies, to the
extent permitted by law, all that Lessor shall lawfully and in good faith do
or cause to be done by reason of and in compliance with this
paragraph.
35.
Miscellaneous. Time is of the
essence with respect to this Lease. ANY FAILURE OF LESSOR TO REQUIRE STRICT
PERFORMANCE BY LESSEE OR ANY WAIVER BY LESSOR OF ANY PROVISION HEREIN SHALL
NOT BE CONSTRUED AS A CONSENT OR WAIVER OF ANY PROVISION OF THIS LEASE. This
Lease and each Equipment Schedule shall be binding upon, and inure to the
benefit of, the parties hereto, their permitted successors and assigns. This
Lease will be binding upon Lessor only if executed by a duly authorized
officer or representative of Lessor at Lessor’s address set forth
above. The Lease Documents shall be executed on Lessee’s behalf by an
Authorized Signer of Lessee. THIS LEASE IS BEING DELIVERED IN THE STATE OF
NEW YORK AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAWS PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
36.
Jury Trial Waiver. LESSOR AND
LESSEE HEREBY EACH WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THE
LEASE, THE LEASE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION OR PROCEEDING TO WHICH LESSOR OR LESSEE MAY BE
PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
LESSEE AND LESSOR AGREE THAT THEIR RESPECTIVE RIGHT TO JURY TRIAL IS WAIVED
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY, OF THIS AGREEMENT OR
THE OTHER LEASE DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER IS
MADE KNOWINGLY, WILLINGLY AND VOLUNTARILY BY LESSOR AND LESSEE WHO EACH
ACKNOWLEDGE THAT NO REPRESENTATIONS HAVE BEEN MADE BY ANY INDIVIDUAL TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THE LEASE AND THE LEASE
DOCUMENTS.
37.
More than One Lessee. If more
than one person or entity executes the Lease Documents as “Lessee,
” the obligations of “Lessee” contained herein and therein
shall be deemed joint and several and all references to “Lessee”
shall apply both individually and jointly.
38.
Quiet Enjoyment. So long as no
Default or Event of Default has occurred and is continuing, Lessee shall
peaceably hold and quietly enjoy the Equipment without interruption by
Lessor or any person or entity claiming through Lessor.
39.
Entire Agreement. This Lease,
together with all other Lease Documents constitute the entire understanding
or agreement between Lessor and Lessee with respect to the leasing of the
Equipment, and there is no understanding or
agreement, oral or written, which is not set forth herein or therein. Neither
this Lease nor any Equipment Schedule may be amended except by a writing
signed by Lessor and Lessee.
Lessee’s
Initials:
40.
Execution in Counterparts. This
Master Equipment Lease Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one
and the same instrument.
IN WITNESS WHEREOF,
Lessor and Lessee have executed this Lease as of the day and year first
above written.
| Lessor:
| Lessee:
|
| KEYCORP
LEASING,
| IT
CORPORATION
| A DIVISION OF KEY
CORPORATE
CAPITAL INC.
|
|
| By:
/s/ Xxxxx X. Xxxx
| By:
/s/ Xxxxxxx
X. Xxxxx
|
| Name:
Xxxxx X. Xxxx
| Name:
Xxxxxxx X. Xxxxx
| Title:
Vice President
| Title:
VP, Treasurer
1)
On page 1, the first sentence of the “Introduction”, has
been modified to read, “Lessor and Lessee have heretofore entered into
that certain Master Equipment Lease Agreement dated as of August 10, 1998,
as amended by Amendment No. 01 dated as of May 10, 1999. A copy of
Amendment No. 01 has been included in this package.
Amendment No.
01
to Master
Equipment Lease Agreement
THIS AMENDMENT dated as of May 10, 1999 amends
that certain Master Equipment Lease Agreement dated as of August 10, 1998
between KEYCORP LEASING, A DIVISION OF KEY CORPORATE CAPITAL INC., as
Lessor, and IT CORPORATION, as Lessee (the “Master Lease”). Unless
otherwise specified herein, all capitalized terms shall have the meanings
ascribed to them in the Master Lease.
Lessor and Lessee hereby agree that the Master
Lease will be amended, with respect to each Equipment Schedule executed in
connection therewith, by adding to Section 22, Events of Default,
Remedies, a new subsection (a)(13) to read as follows:
(13)
International Technology Corporation’s (the “Covenanting
Guarantor”) failure to maintain and comply with the following covenants
during the Term of this Lease shall be an additional Event of Default under
this Lease:
(i) for so long as the Credit Agreement dated as of February
25, 1998 (attached to this Amendment as Exhibit A and incorporated
where applicable) as the same may be amended from time to time (the
“Loan Agreement” and or the “Credit Agreement”), made
among International Technology Corporation, IT Corporation, OHM Corporation,
OHM Remediation Services Corp., Beneco Enterprises, Inc. and the Lenders,
Administrative Agent, Documentation Agent and Co-Agents (each as defined in
the Loan Agreement) shall be in effect, the Covenanting Guarantor shall
comply with all of the terms of such Loan Agreement, including without
limitation Article X thereof (the “Financial Covenants”) as in
effect from time to time;
(ii) in the event that the Loan Agreement (or
any part thereof) shall be canceled, terminated or otherwise cease to be
binding upon the Covenanting Guarantor (a “Terminating Event”),
Covenanting Guarantor, as evidenced by its signature below, hereby covenants
and agrees that notwithstanding such Terminating Event, as between
Covenanting Guarantor and Lessor, the Financial Covenants in effect from
time to time thereunder shall survive any such Terminating Event and shall
be effective as between Lessor and Covenanting Guarantor as if such
Terminating Event had not occurred. It is the express intention of
Covenanting Guarantor and Lessor that the Financial Covenants shall continue
to be effective as between Lessor and Covenanting Guarantor until the date
on which Lessee’s obligations under the Master Lease are fully paid and
performed. In the event Covenanting Guarantor fails to maintain and/or
comply with the Financial Covenants, Lessee shall have thirty (30) days to
cure such Event of Default and provide Lessor with evidence of the
same.
|