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EXHIBIT 10.35
Xxxxx 00, 0000
Xxxxx Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Att: Xx. Xxxx Xxxxxxxxx
LETTER OF COMMITMENT
Dear Xx. Xxxxxxxxx:
General Electric Capital Corporation and its Nominee's Copelco
Capital, Inc. and The CIT Group/Equipment Financing, Inc., (the "Lessors") are
pleased to submit the following commitment to Xetel Corporation (the "Lessee")
to enter into a lease (the "Lease") of the equipment acceptable to the Lessor
based on the Lessor's sole discretion (the "Equipment"). This letter of
Commitment replaces the letter of even date previously provided to you.
The economics of the commitment are summarized in this letter which
include the relevant assumptions on which the lease rates for this transaction
are based. These assumptions and the following general conditions, are,
therefore, an essential part of our commitment and the lease rates quoted
herein are specifically based on these assumptions and the terms of this
commitment.
FINANCIAL TERMS
Transaction: Single Investor Guideline Tax Lease
Lessee: XeTel Corporation
Lessor A: GE Capital or one of its wholly owned
subsidiaries or assignees
Lessor B: Copelco Capital, Inc.
Lessor C: The CIT Group/Equipment Financing, Inc.
Capitalized Lessor A's Cost: $2,640,000.00
Capitalized Lessor B's Cost: $2,250,000.00
Capitalized Lessor C's Cost: $2,300,000.00
Basic Lease Term: Sixty (60) months
Lease Rate Factor(s): (1)April-June 1.6947%
(2)July-Sept 1.6849%
(3)Oct-Dec 1.6760
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Note: The Lease Rate Factor(s) are based on
an assumption that, at the time of the
funding, the then most recent weekly average
of 5 year Treasury Note rates will be 5.47%.
If this is not the case, then the Lease Rate
Factors will be adjusted accordingly.
Lease Commencement Date: The date of execution by Lessee of the
Certificate of Acceptance for the Equipment.
Basic Term Commencement Date: The first day of the month following the
Lease Commencement Date, unless the Lease
Commencement Date is the first day of a
calendar month; in which case the Basic Term
Commencement Date shall be the Lease
Commencement.
Basic Term Rentals: Each such payment would be equal to the
Original Acquisition Cost multiplied by the
Lease Rate Factor with applicable taxes paid
monthly in advance.
Interim Period: The period from and including the Lease
Commencement Date to the Basic Term
Commencement Date.
Interim Rentals: The product of the Daily Lease Rate Factor
times the Original Acquisition Cost of the
Equipment times the number of days in the
Interim Period. Interim Rent, plus
applicable taxes, would be payable on the
Basic Term Commencement Date.
Last Delivery Date: December 31, 1998
End of Lease Purchase Option: So long as no default exists hereunder and
the lease has not been earlier terminated,
Lessee may at lease expiration, upon at least
180 days prior written notice to Lessor,
purchase all (but not less than all) of the
Equipment in any Schedule for cash equal to
its then Fair Market Value (plus all
applicable taxes).
Tax Benefits: It is assumed that the Equipment is eligible
for and that Lessor will be entitled to the
following tax benefits of ownership:
(1) Depreciation Method: 200% declining
balance method over the recovery
Period, switching to straight line
method for the first taxable year
for which using the straight line
method with respect to the adjusted
basis as of the beginning of such
year will yield a larger allowance.
(2) Recovery Period: 5 Years
(3) Basis: 100% of Equipment Cost
Covenants: Covenants identical to those on the Master
Lease Agreement between GE Capital and Xetel
Corporation dated April 30, 1996.
GENERAL PROVISIONS
1. Net Lease: The Lease will be a "net lease" with the Lessee
responsible for paying rent under all circumstances. Lessee is specifically
responsible for all expenses, maintenance, insurance and taxes relating to the
purchase, lease, possession and use of the Equipment excluding, however, taxes
based solely on the net income of Lessor.
2. Tax Benefits and Indemnification: It is assumed, and Lessee
will represent to Lessor in the Lease, that Lessor will be considered the owner
of the Equipment for state law and federal income tax purposes and that the
most accelerated depreciation or cost recovery deductions on the full amount of
the Equipment Cost will be available to Lessor. Lessee shall indemnify Lessor
for loss of Tax Benefits due to Lessee's acts or omissions or breach of
representation, as well as for any reduction in Lessor's economic return
resulting from changes in Federal income tax rates after the date of this
proposal.
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3. Maintenance and Insurance: All maintenance and insurance
(fire and theft, extended coverage and liability) are the responsible for
maintaining in force property and liability insurance with companies and in
amounts and coverage's satisfactory to Lessor.
4. Warranties: All warranties, guaranties, services,
instruction, etc. made available by the manufacturer or vendor of the Equipment
will be passed on to Lessee for Lessee to enforce so long as Lessee is not in
default.
5. Documentation: It is anticipated that the Lessor's current
standard lease documentation for this type of Equipment and transaction will be
used. Any changes to this document must be approved by Lessor.
6. Transaction Costs: Lessor will be responsible for all of its
closing and transaction costs. Lessee will be responsible for all its closing
and transaction costs.
7. Commitment Fee: By signing below, Lessee acknowledges the
terms and conditions of this commitment and agrees to pay a commitment fee of
$0.00 (the "Commitment Fee"). The Commitment Fee will be applied to the
initial payment(s) of rent, except for a documentation charge of $0.00. The
Commitment Fee is not refundable and deemed earned. It shall be retained by
Lessor whether or not the Lease transaction is closed.
8. Tax Law Change: Since the commitment and its economics are
based on the provisions of the Internal Revenue Code (the "Code"), and the
regulations adopted thereunder (the "Regulations") in effect on the date of
this commitment letter, Lessor reserves the right to modify or revoke this
commitment in the event its economics are, in Lessor's judgment, adversely
affected by any amendment to the Code or the Regulations occurring after the
date of this commitment letter, but prior to the commencement date of any
Schedule to a Lease. In the event Lessor revokes this commitment, Lessee shall
repay to Lessor any progress payments, taxes and any other sums which Lessor
has paid in connection with assignment, purchase agreement or any other
document relating to the Equipment.
9. Tax Base Unavailability: Lessor reserves the right to
terminate this commitment it Lessor determines, in its sole discretion, that it
has insufficient tax base available to permit it to lease the Equipment
hereunder while preserving the net yields and cash flows on which this
commitment is premised.
If Lessor elects to terminate the commitment as provided in this
paragraph, it may offer to provide Lessee with secured loan or non-tax-oriented
lease financing up to the amount of Capitalized Lessor's Cost of the Equipment,
at Lessor's discretion.
10. Representations and Warranties: Lessee warrants and
represents that all information submitted to Lessor prior to or concurrent with
this commitment letter is true and correct.
11. Approval of Documents: All documents required hereby or
relating to Lessee's capacity and authority to enter into the Lease and to
execute the documents relating thereto, and such other documents, instruments,
certificates opinions and assurances as Lessor may request and all procedures
in connection herewith, will be subject to the approval of Lessor and its
counsel as to form and substance.
12. No Assignment: This commitment letter shall not be assigned
by Lessee by operation of law or otherwise without the prior written consent of
Lessor.
13. Commencement of Commitment: This commitment and all of its
terms shall not commence unless and until Lessor has received your
acknowledgment hereof and the above Commitment Fee no later than April 10,
1998.
14. Termination: Lessor may terminate this commitment by written
or telegraphic notice to Lessee if:
a) There has been a material adverse change in or damage to the
business or financial condition of Lessee, any guarantor or other primary
or secondary obligor in the sole judgment of Lessor; or
b) Lessee shall fail to comply with any term or condition hereof;
or
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c) Lessee, any guarantor or other primary or secondary obligor shall
(I) apply for or consent to the appointment of a receiver, trustee or
liquidator for it or for any of its property, (ii) make a general
assignment for the benefit of creditors, (iii) be adjudicated a bankrupt or
insolvent or (iv) file or to take advantage of any bankruptcy,
reorganization, insolvency, or liquidation law or statute, or an answer
admitting the material allegations of a petition filed against it in any
proceeding under any such law, or, it applicable, if corporate action shall
be taken by Lessee, any guarantor or other primary or secondary obligor for
the purpose of effecting any of the foregoing;
d) A default or breach of any other agreement between Lessee and
Lessor shall have occurred.
15. Miscellaneous: This commitment letter sets forth the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes all prior written or oral understandings with respect thereto,
provided, however, that all written and oral representations made by Lessee to
Lessor with respect to the subject matter hereof shall survive the issuance of
this commitment letter. No modification or waiver of any provision of this
commitment letter shall be effective unless the same shall be in writing signed
by the parties hereto.
16. No Reliance: Unless specifically agreed in writing by Lessor,
no third party can rely upon thus commitment letter.
17. Lessee Commitment to Enter into Transaction: If the foregoing
terms and conditions are acceptable to you, please sign and return a copy of
this commitment letter along with the Commitment Fee whereupon this letter
shall constitute our commitment to provide and your commitment to accept the
financing substantially on the terms and conditions set forth herein.
We would appreciate the opportunity to discuss this commitment in more
detail at your earliest convenience. We look forward to your early review and
response. If there are any questions, please do not hesitate to contact us at
(000)000-0000.
Very truly yours,
GE CAPITAL CORP.
By:
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Xxxx X. XxXxxxx
Title: Senior Risk Manager
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COMMITMENT ACCEPTED:
Xetel Corporation
By:
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Name:
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Title:
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