MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of September 23, 1998
("Agreement"), between General Electric Capital Corporation with an office at
00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 (hereinafter called, together with
its successors and assigns, if any, "Lessor"), and Courier Kendallville,
Inc., a corporation organized and existing under the laws of the State of
Indiana with its mailing address and chief place of business at 0000 Xxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter called "Lessee").
WITNESSETH:
I. LEASING:
(a) Subject to the terms and conditions set forth below, Lessor
agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment
("Equipment") described in Annex A to any schedule hereto ("Schedule"). Terms
defined in a Schedule and not otherwise defined herein shall have the meanings
ascribed to them in such Schedule.
(b) The obligation of Lessor to purchase Equipment from the
manufacturer or supplier thereof ("Supplier") and to lease the same to Lessee
under any Schedule shall be subject to receipt by Lessor, prior to the Lease
Commencement Date (with respect to such Equipment), of each of the following
documents in form and substance satisfactory to Lessor: (i) a Schedule relating
to the Equipment then to be leased hereunder, (ii) a Purchase Order Assignment
and Consent in the form of Annex B to the applicable Schedule, unless Lessor
shall have delivered its purchase order for such Equipment, (iii) evidence of
insurance which complies with the requirements of Section X, and (iv) such other
documents as Lessor may reasonably request. As a further condition to such
obligations of Lessor, Lessee shall, upon delivery of such Equipment (but not
later than the Last Delivery Date specified in the applicable Schedule) execute
and deliver to Lessor a Certificate of Acceptance (in the form of Annex C to the
applicable Schedule) covering such Equipment, and deliver to Lessor a xxxx of
sale therefor (in form and substance satisfactory to Lessor). Lessor hereby
appoints Lessee its agent for inspection and acceptance of the Equipment from
the Supplier. Upon execution by Lessee of any Certificate of Acceptance, the
Equipment described thereon shall be deemed to have been delivered to, and
irrevocably accepted by, Lessee for lease hereunder.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder and Lessee's right to use the
Equipment shall commence on the date of execution by Lessee of the Certificate
of Acceptance for such Equipment ("Lease Commencement Date"). The term of this
Agreement shall be the period specified in the applicable Schedule. If any term
is extended, the word "term" shall be deemed to refer to all extended terms, and
all provisions of this Agreement shall apply during any extended terms, except
as may be otherwise specifically provided in writing.
(b) Rent shall be paid to Lessor at its address stated above, except
as otherwise directed by Lessor. Payments of rent shall be in the amount set
forth in, and due in accordance with, the provisions of the applicable Schedule.
Rent shall consist of principal and interest components as provided in the
principal and interest amortization table attached to each schedule. If one or
more Advance Rentals are payable, such Advance Rental shall be (i) set forth on
the applicable Schedule, (ii) due upon acceptance by Lessor of such Schedule,
and (iii) when received by Lessor, applied to the first rent payment and the
balance, if any, to the final rental payment(s) under such Schedule. In no event
shall any Advance Rental or any other rent payments be refunded to Lessee. If
rent is not paid within ten days of its due date, Lessee agrees to pay a late
charge of three cents (3(cent)) per dollar on, and in addition to, the amount of
such rent but not exceeding the lawful maximum, if any.
III. Intentionally Deleted.
IV. TAXES: , Except as provided in Section XIV, Lessee shall have no
liability for taxes imposed by the United States of America or any State or
political subdivision thereof which are on or measured by the net income of
Lessor. Lessee shall report (to the extent that it is legally permissible) and
pay promptly all other taxes, fees and assessments due, imposed, assessed or
levied against any Equipment (or the purchase, ownership, delivery, leasing,
possession, use or operation thereof), this Agreement (or any rentals or
receipts hereunder), or any Schedule, by any foreign, federal, state or local
government or taxing authority during or related to the term of this Agreement,
including, without limitation, all license and registration fees, and all sales,
use, personal property, excise, gross receipts, franchise, stamp or other taxes,
imposts, duties and charges, together with any penalties, fines or interest
thereon (all hereinafter called "Taxes"). Lessee shall (i) reimburse Lessor upon
receipt of written request for reimbursement for any Taxes charged to or
assessed against Lessor, (ii) on written request of Lessor, submit to Lessor
written evidence of Lessee's payment of Taxes, and (iii ) upon written request
of Lessor send a copy thereof to Lessor.
V. REPORTS:
(a) Lessee will notify Lessor in writing, within ten days after any
tax or other lien shall attach to any Equipment, of the full particulars thereof
and of the location of such Equipment on the date of such notification.
(b) Lessee will within 120 days of the close of each fiscal year of
Lessee, deliver to Lessor, Courier Corporation's consolidated balance sheet and
consolidated profit and loss statement, certified by a recognized firm of
certified public accountants. Upon request Lessee will deliver to Lessor
quarterly, within
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90 days of the close of each fiscal quarter of Lessee, in reasonable detail,
copies of Courier Corporation's quarterly financial report certified by the
chief financial officer of Lessee.
(c) Lessee will permit Lessor to inspect any Equipment during normal
business hours.
(d) Lessee will keep the Equipment at the Equipment Location
(specified in the applicable Schedule) and will promptly notify Lessor of any
relocation of Equipment. Upon the written request of Lessor, Lessee will notify
Lessor forthwith in writing of the location of any Equipment as of the date of
such notification.
(e) Lessee will promptly and fully report to Lessor in writing if any
Equipment is lost or damaged (where the estimated repair costs would exceed 10%
of its then fair market value), or is otherwise involved in an accident causing
personal injury or property damage.
(f) Within 60 days after any request by Lessor, Lessee will furnish a
certificate of an authorized officer of Lessee stating that he or she has
reviewed the activities of Lessee and that, to the best of his or her knowledge,
there exists no default (as described in Section XII) or event which with notice
or lapse of time (or both) would become such a default.
VI. DELIVERY, USE AND OPERATION:
(a) All Equipment shall be shipped directly from the Supplier to
Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in
the conduct of its business and in a manner complying with all applicable
federal, state, and local laws and regulations.
(c) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT, OR THE INTEREST OF LESSEE HEREUNDER , NOR SHALL LESSEE REMOVE ANY
EQUIPMENT FROM THE CONTINENTAL UNITED STATES, WITHOUT THE PRIOR WRITTEN CONSENT
OF THE LESSOR.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
VII. SERVICE:
(a) Lessee will, at its sole expense, maintain each unit of Equipment
in good operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear excepted.
(b) Lessee will not, without the prior consent of Lessor, affix or
install any accessory, equipment or device on any Equipment if such addition
will impair the originally intended function or use of such Equipment. All
additions, repairs, parts, supplies, accessories, equipment, and devices
furnished, attached or affixed to any Equipment which are not readily removable
shall be made only in compliance with applicable law, including Internal Revenue
Service guidelines, and shall become the property of Lessor. Lessee will not,
without the prior written consent of Lessor and subject to such conditions as
Lessor may impose for its protection, affix or install any Equipment to or in
any other personal or real property (such consent will be implied for on
equipment for which a Landlord Mortgagee waiver (in form acceptable to Lessor)
has been obtained.
(c) Any alterations or modifications to the Equipment that may, at
any time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessee.
VIII. STIPULATED LOSS VALUE: Lessee shall promptly and fully notify
Lessor in writing if any unit of Equipment shall be or become worn out, lost,
stolen, destroyed, irreparably damaged in the reasonable determination of
Lessee, or permanently rendered unfit for use from any cause whatsoever (such
occurrences being hereinafter called "Casualty Occurrences"). On the rental
payment date next succeeding a Casualty Occurrence (the "Payment Date"), Lessee
shall pay Lessor the sum of (x) the Stipulated Loss Value of such unit
calculated as of the rental next preceding such Casualty Occurrence
("Calculation Date"); and (y) all rental and other amounts which are due
hereunder as of the Payment Date. Upon payment of all sums due hereunder, the
term of this lease as to such unit shall terminate and (except in the case of
the loss, theft or complete destruction of such unit) Lessor shall be entitled
to recover possession of such unit.
IX. LOSS OR DAMAGE: Lessee hereby assumes and shall bear the entire
risk of any loss, theft, damage to, or destruction of, any unit of Equipment
from any cause whatsoever.
X. INSURANCE: Lessee agrees, at its own expense, to keep all
Equipment insured for such amounts and against such hazards as Lessor may
require, including, but not limited to, insurance for damage to or loss of such
Equipment and liability coverage for personal injuries, death or property
damage, with Lessor named as additional insured and with a loss payable clause
in favor of Lessor, as its interest may appear, irrespective of any breach of
warranty or other act or omission of Lessee. All such policies shall be with
companies, and on term reasonably satisfactory to Lessor. Upon written request
by Lessor Lessee agrees to deliver to Lessor evidence of insurance satisfactory
to Lessor . No insurance shall be subject to any co-insurance clause. Lessee
hereby appoints Lessor as Lessee's attorney in
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fact to make proof of loss and claim for insurance, and to make adjustments with
insurers and to receive payment of and execute or endorse all documents, checks
or drafts in connection with payments made as a result of such insurance
policies, provided however, that Lessor agrees not to exercise its powers
pursuant to such appointment unless and until Lessee is in default under this
Agreement. Any expense of Lessor in adjusting or collecting insurance shall be
borne by Lessee. Lessee will not make adjustments with insurers except (i) with
respect to claims for damage to any unit of Equipment where the repair costs do
not exceed 40% of such unit's fair market value, or (ii) with Lessor's written
consent. Said policies shall provide that the insurance may not be altered or
cancelled by the insurer until after thirty (30) days written notice to Lessor.
Lessor may, at its option, apply proceeds of insurance to which it is entitled,
in whole or in part, to (i) repair or replace Equipment or any portion thereof,
or (ii) satisfy any obligation of Lessee to Lessor hereunder.
XI. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, Lessee shall promptly, at its own cost and expense: (i) perform any
testing and repairs required to place the affected units of Equipment in the
same condition and appearance as when received by Lessee (reasonable wear and
tear excepted) and in good working order for their originally intended purpose;
(ii) if deinstallation, disassembly or crating is required, cause such units to
be deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such units to a location within a 750 mile radius of the Equipmejnt
location as Lessor shall direct.
(b) Until Lessee has fully complied with the requirements of Section
XI(a) above, Lessee's rent payment obligation and all other obligations under
this Agreement shall continue from month to month notwithstanding any expiration
or termination of the lease term. Lessor may terminate such continued leasehold
interest upon ten (10) day's notice to Lessee.
XII. DEFAULT:
(a) Lessor may in writing declare this Agreement in default if:
Lessee breaches its obligation to pay rent or any other sum when due and fails
to cure the breach within fifteen (15) days; Lessee breaches any of its
insurance obligations under Section X; Lessee breaches any of its other
obligations and fails to cure that breach within thirty (30) days after written
notice thereof; any representation or warranty made by Lessee in connection with
this Agreement shall be false or misleading in any material respect; Lessee
becomes insolvent or ceases to do business as a going concern; any Equipment is
illegally used; or a petition is filed by Lessee under any bankruptcy or
insolvency laws, or a petition is filed against Lessee or any guarantor of
Lessee's obligations to Lessor under any bankruptcy or insolvency laws and such
petition is not dismissed within 45 days thereafter. Such declaration shall
apply to all Schedules except as specifically excepted by Lessor.
(b) After default, at the request of Lessor, Lessee shall comply with
the provisions of Section XI(a). Lessee hereby authorizes Lessor to enter, with
or without legal process, any premises where any Equipment is believed to be and
take possession thereof. Lessee shall, without further demand, forthwith pay to
Lessor (i) as liquidated damages for loss of a bargain and not as a penalty, the
Stipulated Loss Value of the Equipment (calculated as of the rental payment date
next preceding the declaration of default), and (ii) all rentals and other sums
then due and payable hereunder. Lessor may, but shall not be required to, sell
Equipment at private or public sale, in bulk or in parcels, with or without
notice, and without having the 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 for 360
days after the date of the written defualt notice. The proceeds of sale, lease
or other disposition, if any, shall be applied in the following order of
priorities: (1) to pay all of Lessor's costs, charges and expenses incurred in
taking, removing, holding, repairing and selling, leasing or otherwise disposing
of Equipment; then, (2) to the extent not previously paid by Lessee, to pay
Lessor all sums due and payable from Lessee hereunder; then (3) to reimburse to
Lessee any sums previously paid by Lessee as liquidated damages; and (4) any
surplus shall be retained by Lessor. Lessee shall pay any deficiency in (1) and
(2) forthwith.
(c) 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. Lessee waives notice of sale or other disposition (and
the time and place thereof), and the manner and place of any advertising. Lessee
shall pay reasonable attorney's fees and the Stipulated Loss Value due upon
default, or if prohibited by law, such lesser sum as may be permitted. Waiver of
any default shall not be a waiver of any other or subsequent default.
(d) Any default under the terms of this or any other agreement
between Lessor and Lessee may be declared by Lessor a default under this and any
such other agreement.
XIII. ASSIGNMENT: Lessor may assign this Agreement or any Schedule.
Lessee hereby waives and agrees not to assert against any such assignee any
defense, set-off, recoupment claim or counterclaim which Lessee has or may at
any time have against Lessor for any reason whatsoever.
XIV. NET LEASE; NO SET-OFF, ETC: This Agreement is a net lease.
Lessee's obligation to pay rent and other amounts due hereunder shall be
absolute and unconditional. Lessee shall not be entitled to any abatement or
reductions of, or set-offs against, said rent or other amounts, including,
without limitation, those arising or allegedly arising out of claims (present or
future, alleged or actual, and including claims arising out of strict tort or
negligence of Lessor) of Lessee against Lessor under this Agreement or
otherwise. Nor shall this Agreement terminate or the obligations of Lessee be
affected by reason of any defect in or damage to, or loss of possession, use or
destruction of, any Equipment from whatsoever cause. It is the intention of the
parties that rents and other amounts due hereunder shall continue to be payable
in all events in the manner and at the times set forth herein unless the
obligation to do so shall have been terminated pursuant to the express terms
hereof.
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XV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless Lessor,
its agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature, in contract or tort, whether caused by
the active or passive negligence of Lessor or otherwise, (including, but not
limited to, Lessor's strict liability in tort),to the extent but only to the
extent arising out of (i) the selection, manufacture, purchase, acceptance or
rejection of Equipment, the ownership of Equipment during the term of this
Agreement, and the delivery, lease, possession, maintenance, uses, condition,
return or operation of Equipment (including, without limitation, latent and
other defects, whether or not discoverable by Lessor or Lessee and any claim for
patent, trademark or copyright infringement) or (ii) the condition of Equipment
sold or disposed of after use by Lessee, any sublessee or employees of Lessee.
Lessee shall, upon request, defend any actions based on, or arising out of, any
of the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in
this Section XV shall survive the expiration or other termination of this
Agreement and the rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by Lessor, its
successors and assigns.
XVI. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT
WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT
MAKE, HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY
OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All
such risks, as between Lessor and Lessee, are to be borne by Lessee. Without
limiting the foregoing, Lessor shall have no responsibility or liability to
Lessee or any other person with respect to any of the following, regardless of
any negligence of Lessor (i) any liability, loss or damage caused or alleged to
be caused directly or indirectly by any Equipment, any inadequacy thereof, any
deficiency or defect (latent or otherwise) therein, or any other circumstance in
connection therewith; (ii) the use, operation or performance of any Equipment or
any risks relating thereto; (iii) any interruption of service, loss of business
or anticipated profits or consequential damages; or (iv) the delivery,
operation, servicing, maintenance, repair, improvement or replacement of any
Equipment. If, and so long as, no default exists under this Lease, Lessee shall
be, and hereby is, authorized during the term of this Lease to assert and
enforce, at Lessee's sole cost and expense, from time to time, in the name of
and for the account of Lessor and/or Lessee, as their interests may appear,
whatever claims and rights Lessor may have against any Supplier of the
Equipment.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby
represents and warrants to Lessor that on the date hereof and on the date of
execution of each Schedule:
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "Documents") and
is duly qualified to do business wherever necessary to carry on its present
business and operations, including the jurisdiction(s) where the Equipment is or
is to be located.
(b) The Documents have been duly authorized, executed and delivered
by Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws.
(c) No approval, consent or withholding of objections is required
from any governmental authority or instrumentality with respect to the entry
into or performance by Lessee of the Documents except such as have already been
obtained.
(d) The entry into and performance by Lessee of the Documents will
not: (i) violate any judgment, order, law or regulation applicable to Lessee or
any provision of Lessee's Certificate of Incorporation or By-Laws; or (ii)
result in any breach of, constitute a default under or result in the creation of
any lien, charge, security interest or other encumbrance upon any Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or proceedings pending or threatened in court
or before any commission, board or other administrative agency against or
affecting Lessee, which will have a material adverse effect on the ability of
Lessee to fulfill its obligations under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and
will remain tangible personal property.
(g) Each consolidated Balance Sheet and consolidated Statement of
Income of Courier Corporation delivered to Lessor has been prepared in
accordance with generally accepted accounting principles, and since the date of
the most recent such consolidated Balance Sheet and consolidated Statement of
Income, there has been no material adverse change.
(h) Lessee is and will be at all times validly existing and in good
standing under the laws of the State of its incorporation (specified in the
first sentence of this Agreement).
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(i) The Equipment will at all times be used for commercial or
business purposes.
XVIII. EARLY TERMINATION
(a) On or after the First Termination Date (specified in the
applicable Schedule), Lessee may, so long as no default exists hereunder,
terminate this Agreement as to all (but not less than all) of the Equipment on
such Schedule as of a rent payment date ("Termination Date") upon at least 90
day's prior written notice to Lessor.
(b) Lessee shall, and Lessor may, solicit cash bids for the Equipment
on an AS IS, WHERE IS BASIS without recourse to or warranty from Lessor, express
or implied ("AS IS BASIS"). Prior to the Termination Date, Lessee shall(i)
certify to Lessor any bids received by Lessee and (ii) pay to Lessor (A) the
Termination Value (calculated asof the Termination Date) for the Equipment, and
(B) all rent and other sums due and unpaid as of the TerminationDate.
(c) Provided that all amounts due hereunder have been paid on the
Termination Date, Lessor shall (i) sell the Equipment on an AS IS BASIS for cash
to the highest bidder and (ii) refund the proceeds of such sale (net of any
related expenses) to Lessee up to the amount of the Termination Value. If such
sale is not consummated, no termination shall occur and Lessor shall refund the
Termination Value (less any expenses incurred by Lessor) to Lessee.
(d) Notwithstanding the foregoing, Lessor may elect by written
notice, at any time prior to the Termination Date, not to sell the Equipment. In
that event, on the Termination Date Lessee shall (i) return the Equipment (in
accordance with Section XI) and (ii) pay to Lessor all amounts required under
Section XVIII(b) less the amount of the highest bid certified by Lessee to
Lessor.
XIX. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST:
(a) For income tax purposes, the parties hereto agree that it is their
mutual intention that Lessee shall be considered the owner of the Equipment.
Accordingly, Lessor agrees (i) to treat Lessee as the owner of the Equipment on
its federal income tax return, (ii) not to take actions or positions
inconsistent with such treatment on or with respect to its federal income tax
return, and (iii) not to claim any tax benefits available to an owner of the
Equipment on or with respect to its federal income tax return. The foregoing
undertakings by Lessor shall not be violated by Lessor's taking a tax position
inconsistent with the foregoing sentence to the extent such position is required
by law or is taken through inadvertence so long as such inadvertent tax position
is reversed by Lessor promptly upon its discovery. Lessor shall in no event be
liable to Lessee if Lessee fails to secure anyof the tax benefits available to
the owner of the Equipment.
(b) Lessor and Lessee hereby agree that the transaction contemplated
herein is intended as a lease; PROVIDED HOWEVER that, if it is determined for
other reasons that the lease so intended creates a security interest, Lessee
shall have been deemed to grant, effective as of each Lease Commencement Date,
and hereby grants, to Lessor the following:
(i)To secure the prompt payment and performance, as and when due, of
all obligations and indebtedness of Lessee, now existing or hereafter
created, to Lessor pursuant to this Agreement or otherwise, Lessee
hereby grants to Lessor a first priority security interest in the
Equipment and all accessions, substitutions and replacements thereto
and therefor, and proceeds (cash and non-cash, including without
limitation insurance proceeds) thereof. In furtherance of the
foregoing, Lessee shall (A) execute and deliver to Lessor, to be
recorded at Lessee's expense, Uniform Commercial Code financing
statements, statements of amendment and statements of continuation as
reasonably may be required by Lessor to perfect and maintain perfected
the first priority security interest granted by Lessee herein and (B)
execute and deliver, to be recorded at Lessee's expense, any such
forms and documents as reasonably may be required by Lessor to
evidence Lessor's title to and security interest in any item of
Equipment which is covered by a certificate of title issued under a
statute of any applicable jurisdiction.
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(iii)Lessee also grants to Lessor a security interest in all accounts,
as such term is defined in the Uniform Commercial Code of any
applicable jurisdiction, now owned by Lessee or hereafter acquired or
owned by Lessee that might arise or result from any lease or other
disposition of any of the Equipment, including, but not limited to,
any right of Lessee to payment for Equipment sold or leased or for
services rendered whether or not evidenced by an instrument or chattel
paper, and whether or not such right has been earned by performance.
(iv)To the extent that this Lease and/or any Equipment Schedule would
constitute chattel paper, as such term is defined in the Uniform
Commercial Code as in effect in any applicable jurisdiction, no
security interest herein or therein may be created through the
transfer or possession of this Lease in and of itself without the
transfer or possession of the original of an Equipment Schedule
executed pursuant to this Lease and incorporating this Lease by
reference; and no security interest in this Lease and an Equipment
Schedule may be created by the transfer or possession of any
counterpart of the Equipment Schedule other than the original thereof,
which shall be identified as the document marked "Original" and all
other counterparts shall be marked "Duplicate" or "Copy".
(v)It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that any Schedule is determined to
be subject to such laws; accordingly, it is agreed that,
notwithstanding any provision to the contrary in any Schedule or this
Lease, in no event shall any Schedule require the payment or permit
the collection of interest in excess of the maximum amount permitted
by applicable law. If any such excess interest is contracted for,
charged or received under any Schedule or this Lease, or in the event
that all of the principal balance shall be prepaid, so that under any
of such circumstances the amount of interest contracted for, charged
or received under any Schedule or this Lease shall exceed the maximum
amount of interest permitted by applicable law, then in such event (A)
the provisions of this paragraph shall govern and control, (B) neither
Lessee nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest
to the extent that it is in excess of the maximum amount of interest
permitted by applicable law, (C) any such excess which may have been
collected shall be either applied as a credit against the then unpaid
principal balance or refunded to Lessee, at the option of the Lessor,
and (D) the effective rate of interest shall be automatically reduced
to the maximum lawful contract rate allowed under applicable law as
now or hereafter construed by the courts having jurisdiction thereof.
It is further agreed that , without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or
received under any Schedule or this Lease which are made for the
purpose of determining whether such rate exceed the maximum lawful
contract rate, shall be made, to the extent permitted by applicable
law, by amortizing, prorating, allocating and spreading in equal parts
during the period of the full stated term of the Lease, all interest
at any time contracted for, charged or received from Lessee or
otherwise by Lessor during such term; provided, however, that if any
applicable state law is amended or the law of the United States of
America preempts any applicable state law, so that it becomes lawful
for Lessor to receive a greater interest per annum rate than is
presently allowed, the Lessee agrees that, on the effective date of
such amendment or preemption, as the case may be, the lawful maximum
hereunder shall be increased to the maximum interest per annum rate
allowed by the amended state law or the law of the United States of
America.
XX. END OF LEASE OPTIONS. Lessee shall have the end of Lease term
options specifically set forth in each applicable Schedule.
XXI. MISCELLANEOUS:
(a) Any cancellation or termination by Lessor, pursuant to the
provisions of this Agreement, any Schedule, supplement or amendment hereto, or
the lease of any Equipment hereunder, shall not release Lessee from any then
outstanding obligations to Lessor hereunder. Except as provided in Section XIX,
all Equipment shall at all times remain personal property of Lessor regardless
of the degree of its annexation to any real property and shall not by reason of
any installation in, or affixation to, real or personal property become a part
thereof.
(b) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith. Lessee agrees, upon Lessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Lessor. All notices required to be given hereunder shall be deemed
adequately given if in writing and sent by overnight mail, registered or
certified mail, postage prepaid, to the addressee at its address stated herein,
or at such other place as such addressee may have designated in writing. This
Agreement and any Schedule and Annexes thereto constitute the entire agreement
of the parties with respect to the subject matter hereof. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
(c) In case of a failure of Lessee to comply with any provision of
this Agreement, Lessor shall have the right, but shall not be obligated to,
effect such compliance, in whole or in part; and all moneys spent and expenses
and obligations incurred or assumed by Lessor in effecting such compliance shall
constitute additional rent due to Lessor within five days after the date Lessor
sends written notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default.
(d) Lessor agrees that Lessee shall quietly possess and use the
Equipment subject to and in accordance with the provisions of this Agreement. As
long as there has been no default hereunder, neither Lessor, nor any party
claiming under or through Lessor, shall interfere with Lessee's right of quiet
possession and use of the Equipment.
6
(e) 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 fifteen percent (15% ) per annum or the maximum rate allowed by
law. Any provisions in this Agreement and any Schedule which are in conflict
with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
(f) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
LESSEE AND LESSOR RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
LESSEE AND LESSOR. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS WITH RESPECT TO THE FOREGOING MATTERS). THIS
WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS LEASE, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS LEASE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY COURT.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
LESSOR: General Electric Capital LESSEE: Courier Kendallville, Inc.
Corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxxx
----------------------------- -----------------------------------
Title: Senior Risk Analyst Title: Asst. Treasurer
-------------------------- --------------------------------
7
EQUIPMENT SCHEDULE
SCHEDULE NO. 1
DATED THIS September 23, 1998
TO MASTER LEASE AGREEMENT
DATED AS OF September 23, 1998
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital Corporation Courier Kendallville, Inc.
00 Xxx Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Capitalized terms not defined herein shall have the meanings assigned to them
in the Master Lease Agreement identified above ("Agreement"; said Agreement and
this Schedule being collectively referred to as "Lease").
A. Equipment
Pursuant to the terms of the Lease, Lessor agrees to acquire and lease to
Lessee the Equipment listed on Annex A attached hereto and made a part hereof.
B. Financial Terms
1. Advance Rent (if any): Not Applicable.
2. Capitalized Lessor's Cost: $ 4,378,156.92.
3. Interest Rate: 6.21% during the Basic Term and any Renewal Term.
4. [Omitted].
5. Basic Term (No. of Months): Eighty-Four (84) months.
6. Basic Term Commencement Date: 9-23-98.
7. Equipment Location: 0000 Xxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
8. Lessee Federal Tax ID No.: 00-0000000.
9. Supplier: See Annex A.
10. Last Delivery Date: 9-23-98.
11 Lessee agrees and acknowledges that the Capitalized Lessor's Cost
of the Equipment as stated on the Schedule is equal to the fair
market value of the Equipment on the date hereof.
12 Renewal Terms: One (1) consecutive Thirty Six (36) month term.
13 Maximum Lease Term: ten (10) years.
14 Stipulated Loss Values: See Annex D.
15 First Termination Date: Any time after the Basic Term Commencement
Date
C. [Omitted]
D. Term and Rent
1. Interim Rent. For the period from and including the Lease Commencement
Date to the Basic Term Commencement Date ("Interim Period"), interest shall
accrue at the Interest Rate set forth above on the Capitalized Lessor's Cost of
the Equipment, which amount shall be capitalized and added to the Capitalized
Lessor's Cost on the Basic Term Commencement Date.
2. Basic Term Rent and Renewal Term Rent. Commencing on October 23,
1998 and on the same day of each month thereafter (each, a "Rent Payment
Date") (a) during the Basic Term, Lessee shall pay as rent ("Basic Term
Rent"), and (b) during any Renewal Term, Lessee shall pay as rent ("Renewal
Term Rent"), monthly installments in arrears, calculated to amortize the
Capitalized Lessor's Cost of the Equipment over the Term, together with
lessor's return on its investment, each installment in the principal amount
specified on the attached Amortization Schedule together with Interest on the
Unamortized Principal Balance specified on the attached Amortization Schedule
as of the preceding Rent Payment Date at the Interest Rate for the Interest
Period following such immediately preceding Rent Payment Date. Interest shall
be calculated on the basis of a 360 day year for the actual
8
number of days elapsed. As used herein "Interest period" shall mean the period
beginning on the Lease Commencement date and ending on the next Rent Payment
date , and each subsequent monthly period..
3. Adjustment to Capitalized Lessor's Cost. Lessee hereby irrevocably
authorizes Lessor to adjust the Capitalized Lessor's Cost up or down by no more
than ten percent (10%) to account for equipment change orders, equipment
returns, invoicing errors, and similar matters. Lessee acknowledges and agrees
that the Rent shall be adjusted as a result of such change in the Capitalized
Lessor's Cost (pursuant to paragraphs 1 and 2 above). Lessor shall send Lessee a
written notice stating the final Capitalized Lessor's Cost, if different from
that disclosed on this Schedule.
E. Insurance
1. Public Liability: $1,000,000 total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
Except as expressly modified hereby, all terms and provisions of the Agreement
shall remain in full force and effect. This Schedule is not binding or effective
with respect to the Agreement or Equipment until executed on behalf of Lessor
and Lessee by authorized representatives of Lessor and Lessee, respectively.
F. Fixed Purchase Price and Residual Risk Amount
End of Month Fixed Purchase Price Residual Risk Amount
------------ -------------------- --------------------
84 41.735% 16.35%
The above amounts are expressed as a percent of the Capitalized Lessor's Cost
of the Equipment.
For the purposes of this Schedule only, the following section is incorporated
by reference into the Lease.
XX. END OF LEASE OPTIONS:
(a) Return. So long as Lessee has not exercised its option to
terminate a Schedule pursuant to Section XVIII hereof, Lessee shall have the
option, upon the scheduled expiration of the Basic Term of the Schedule, to
return all (but not less than all) of the Equipment described on such Schedule,
in accordance with the terms hereof, to Lessor upon the following terms and
conditions. If Lessee desires to exercise this option it shall (i) pay to Lessor
on the last day of the Basic Term of the Schedule, in addition to the scheduled
rent due on such date and all other sums due hereunder, a terminal rental
adjustment amount equal to the Fixed Purchase Price percentage multiplied by the
Capitalized Lessor's Cost for such Equipment (as stated in such Schedule) for
such Equipment and (ii) return the Equipment to Lessor in accordance with
Section XI hereof. Thereafter, Lessor and Lessee will arrange for the
commercially reasonable sale, scrap or other disposition of such Equipment. Upon
the sale, scrap or other disposition of the Equipment, the net sales proceeds
with respect to the Equipment sold will be paid to Lessor. Lessor shall promptly
thereafter pay to Lessee the Residual Risk Amount multiplied by the Capitalized
Lessor's Cost for such Equipment, less all costs, expenses and fees, including
remarketing fees incurred in connection with the sale, scrap or disposition of
such Equipment plus all net proceeds, if any, of such sale in excess of the
Residual Risk Amount of such Equipment. All calculations under this Section XX
hereof shall be made on an aggregate basis with respect of all of the Equipment
described on the applicable Schedule.
(b) Purchase. Provided that no default shall have occurred and be
continuing, unless Lessee has exercised its option to terminate this Agreement
pursuant to Section XVIII hereof or has exercised its option to return all the
Equipment in accordance with paragraph (a) above or renew the Lease as to such
Equipment in accordance with paragraph (c) below, upon the expiration of the
Basic Term of this Agreement with respect to any Schedule, upon at least 30
days' written notice to Lessor, Lessee may purchase all of the Equipment
described on such Equipment Schedule on an AS IS BASIS, upon the following terms
and conditions: At the expiration of the Basic Term of this Agreement with
respect to any such Schedule, Lessee shall pay to Lessor in cash the Fixed
Purchase Price for the Equipment so purchased, determined as hereinafter
provided. The Fixed Purchase Price of the Equipment shall be an amount specified
in the applicable Schedule, together with all rent and other sums due on such
date, plus all taxes and charges upon sale and all other reasonable expenses
incurred by Lessor in connection with such sale. Upon satisfaction of the
requirements specified in this Section, Lessor will sell the Equipment to Lessee
on an AS IS BASIS.
9
(c) Renewal. Provided that no default shall have occurred and be
continuing, unless Lessee shall have exercised its option to terminate this
Agreement pursuant to Section XVIII hereof or has exercised its option to either
purchase or return the Equipment in accordance with paragraphs (a) or (b) above,
Lessee automatically renew this Agreement with respect to all (but not less than
all) Equipment on any Schedule an additional thirty six (36) month term (the
"Renewal Term"), at a monthly rental amount as set forth in the applicable
Schedule. At the end of the Renewal Term, provided that Lessee is not then in
default hereunder, Lessee shall purchase all, but not less than all, of the
Equipment on the Schedule for $1.00 cash, together with all rent and other sums
due on such date, plus all taxes and charges upon transfer, and all other
reasonable expenses incurred by Lessor in connection with such sale. Upon
satisfaction of the conditions specified in this Subsection (c), Lessor will
transfer, on an AS IS basis all of Lessor's interest in and to the Equipment.
Lessor shall not be required to make, and may specifically disclaim, any
representation and warranty as to the condition of the Equipment and any other
matters.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
General Electric Capital Corporation Courier Kendallville, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxxx
----------------------------- -------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxx X. Xxxxxxxx
--------------------------- -----------------------
Title: Senior Risk Analyst Title: Asst. Treasurer
-------------------------- -----------------------
Attest
By: /s/ Xxxx Xxxx X. XxXxxxxx
--------------------------
Name: Xxxx Xxxx X. XxXxxxxx
-----------------------
Asst. Secretary
CORPORATE GUARANTY
Date: September 23, 1998
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
To induce you to enter into, purchase or otherwise acquire, now or at
any time hereafter, any promissory notes, security agreements, chattel
mortgages, pledge agreements, conditional sale contracts, lease agreements,
and/or any other documents or instruments evidencing, or relating to any
lease, loan, extension of credit or other financial accommodation
(collectively "Account Documents" and each an "Account Document") to Courier
Kendallville, Inc., a corporation organized and existing under the laws of
the State of Indiana ("Customer"), but without in my way binding you to do
so, the undersigned or for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby guarantee to you,
your successors and assigns, the due regular and punctual payment of any sum
or sums of money which the Customer may owe to you now or at any time
hereafter, whether evidenced by an Account Document, on open account or
otherwise, and whether it represents principal, interest, rent, late charges,
indemnities, an original balance, an accelerated balance, liquidated damages,
a balance reduced by partial payment, a deficiency after sale or other
disposition of any leased equipment, collateral or security, or any other
type of sum of any kind whatsoever that the Customer may owe to you now or at
any time hereafter, and does hereby further guarantee to you, your successors
and assigns, the due, regular and punctual performance of any other duty or
obligation of any kind or character whatsoever that the Customer may owe to
you now or at any time hereafter (all such payment and performance
obligations being collectively referred to as "Obligations"). Undersigned
does hereby further guarantee to pay upon demand all losses, costs,
attorneys' fees and expenses which may be suffered by you by reason of
Customer's default or default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and not
merely a guaranty of collection). Nothing herein shall require you to first
seek or exhaust any remedy against the Customer, its successors and assigns,
or any other person obligated with respect to the Obligations, or to first
foreclose, exhaust or otherwise proceed against any leased equipment,
collateral or security which may be given in connection with the Obligations.
It is agreed that you may, upon any breach or default of the Customer, or at
any time thereafter, make demand upon the undersigned and receive payment and
performance of the Obligations, with or without notice or demand for payment
or performance by the Customer, its successors or assigns, or any other
person. Suit may be brought and maintained against the undersigned, at your
election, without joinder of the Customer or any other person as parties
thereto. The obligations of each signatory to this Guaranty shall be joint
and several.
The undersigned agrees that its obligations under this Guaranty shall be
primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of
any notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other modification
of the Account Documents or any other document; (c) the absence of, or delay
in, any action to enforce the Account Documents, this Guaranty or any other
document; (d) your failure or delay in obtaining any other guaranty of the
Obligations (including, without limitation, your failure to obtain the
signature or any other guarantor hereunder); (e) the release of, extension of
time for payment or performance by, or any other indulgence granted to the
Customer or any other person with respect to the Obligations by operation of
law or otherwise; (f) the existence, value, condition, loss, subordination or
release (with or without substitution) of, or failure to have title to or
perfect and maintain a security interest in, or the time, place and manner of
any sale or other disposition of any leased equipment, collateral or security
given in connection with the Obligations, or any other impairment (whether
intentional or negligent, by operation of law or otherwise) of the rights of
the undersigned; (g) the Customer's voluntary or involuntary bankruptcy,
assignment for the benefit of creditors, reorganization, or similar
proceedings affecting the Customer or any of its assets; or (h) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
This Guaranty may be terminated upon deliver to you (at your address
shown above) of a written termination notice from the undersigned. However,
as to all Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such written
termination notice (and regardless of any subsequent amendment, extension or
other modification which may be made with respect to such Obligations), this
Guaranty shall nevertheless continue and remain undischarged until all such
Obligations are indefeasibly paid and performed in full.
The undersigned agrees that this Guaranty shall remain in full force and
effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws effecting the rights of creditors, you shall be
prohibited from excising any of your rights or remedies against the Customer
or any other person or against any property, then, as between you and the
undersigned, such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the undersigned
of all amounts and other sums that would be due to you upon a default with
respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the Customer
or any other person is hereby waived. Presentment, protest demand, and notice
of protest, demand and dishonor of any of the Obligations, and the exercise
of possessory, collection or other remedies for the Obligations, are hereby
waived. The undersigned warrants that it has adequate means to obtain from
the Customer on a continuing basis financial data and other information
regarding the Customer and is not relying upon you to provide any such data
or other information. Without limiting the foregoing, notice of adverse
change in the Customer's financial condition or of any other fact which might
materially increase the risk of the undersigned is also waived. All
settlements, compromises, accounts stated and agreed balances made in good
faith between the Customer, its successors or assigns, and you shall be
binding upon and
shall not affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by the
Customer or any other obligor for any of the Obligations is hereby
subordinated in right of payment to the indefeasible payment in full to you
of all Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes
all statutory, contractual, common law, equitable and all other claims
against the Customer, any other obligor for any of the Obligations, any
collateral therefor, or any other assets of the Customer or any such other
obligor, for subrogation, reimbursement, exoneration, contribution,
indemnification, setoff or other recourse in respect of sums paid or payable
to you by the undersigned hereunder, and the undersigned hereby further
irrevocably and unconditionally waives and relinquishes any and all other
benefits which it might otherwise directly or indirectly receive or be
entitled to receive by reason of any amounts paid by, or collected or due
from it, the Customer or any other obligor for any of the Obligations, or
realized from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER
HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
US. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE
OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
As used in this Guaranty, the word "person" shall include any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or any government or any political
subdivision thereof.
This Guaranty is intended by the parties as a final expression of the
guaranty of the undersigned and is also intended as a complete and exclusive
statement of the terms thereof. No course of dealing, course of performance or
trade usage, nor any paid evidence of any kind, shall be used to supplement
or modify any of the terms hereof. Nor are there any conditions to the full
effectiveness of this Guaranty. This Guaranty and each of its provisions may
only be waived, modified, varied, released, terminated or surrendered, in
whole or in part, by a duly authorized written instrument signed by you. No
failure by you to exercise your rights hereunder shall give rise to any
estoppel against you, or excuse the undersigned from performing hereunder.
Your waiver of any right to demand performance hereunder shall not be a
waiver of any subsequent or other right to demand performance hereunder.
This Guaranty shall bind the undersigned's successors and assigns and
the benefits thereof shall extend to and include your successors and assigns.
In the event of default hereunder, you may at any time inspect undersigned's
records, or at your option, undersigned shall furnish you with a current
independent audit report.
If any provisions of this Guaranty are in conflict with any applicable
statute, rule or law, then such provisions shall be deemed null and void to
the extent that they may conflict therewith, but without invalidating any
other provisions hereof.
Each signatory on behalf of a corporate guarantor warrants that he had
authority to sign on behalf of such corporation and by so signing to bind
said guarantor corporation hereunder.
IN WITNESS WHEREOF, this Guaranty is executed the day and year above
written.
Courier Corporation
By: /s/ Xxx X. Xxxxxxxx
-----------------------------
(Signature)
Title: Treasurer
-----------------------------
(Officer's Title)
ATTEST: /s/ Xxxx Xxxx X. XxXxxxxx
-------------------------------
Assistant Secretary
