MASTER LEASE AGREEMENT
(Quasi)
THIS MASTER LEASE AGREEMENT, dated as of 2/27/98 ("Agreement"), between
General Electric Capital Corporation, with an office at 00 Xxx Xxxxxxxxx Xxxx,
Xxxxxxx, XX, 00000-0000 (hereinafter called, together with its successors and
assigns, if any, "Lessor"), and Xxxxxx Xxxxxxxx Chemicals, Inc. & Phibro-Tech,
Inc. a corporation(s) organized and existing under the laws of the State of
New Jersey with their mailing address and chief place of business at Xxx
Xxxxxx Xxxxx, Xxxx Xxx, XX 00000 (each jointly and severally being a "Lessee"
and collectively 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) paid in
full invoice or other evidence of ownership of the Equipment, (iii) evidence
of insurance which complies with the requirements of Section IX 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. 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. If one or more Advance
Rentals are payable, such Advance Rental shall be (a) 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 five cents ($0.05) per dollar on, and in addition to, the
amount of such rent but not exceeding the lawful maximum, if any.
III. TAXES:
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), any Schedule, Lessor or
Lessee 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
request of Lessor, submit to Lessor written evidence of Lessee's payment of
Taxes, (iii) send a copy thereof to Lessor.
IV. 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 90 days of the close of each fiscal year of Lessee, deliver to
Lessor, Lessee's balance sheet and profit and loss statement, certified by a
recognized firm of certified public accountants. Upon request Lessee will
deliver to Lessor quarterly, within 90 days of the close of each fiscal
quarter of Lessee, in reasonable detail, copies of Lessee'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. If within 60 days after
any request by Lessor, Lessee will furnish a certificate of an authorized
officer of Lessee stating that he has reviewed the activities of Lessee and
that, to the best of his knowledge, there exists no default (as described in
Section XI) or event which with notice or lapse of time (or both) would become
such a default.
V. 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 are granted in
favor of or result from acts of Lessor.
VI. 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. Lessee shall,
if at any time requested by Lessor, affix in a prominent position on each unit
of Equipment plates, tags or other identifying labels showing ownership
thereof by Lessee and Lessor's security interest therein. (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, and shall become subject to the lien 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. (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.
VII. 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 payment date 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.
VIII. 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
from the time the Equipment is shipped to Lessee.
IX. 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. The insurance shall provide (i) liability coverage in an
amount equal to at least ONE MILLION U.S. DOLLARS ($1,000.000.00) total
liability per occurrence, and (ii) casualty/property damage coverage in an
amount equal to the higher of the Stipulated Loss value or the full
replacement cost of the Equipment, or at such other amounts as may be required
by Lessor All such policies shall be with companies, and on terms,
satisfactory to 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-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. 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 10% 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 canceled by the insurer until after thirty
(30) days written notice to Lessor. Lessor may, at its option, apply proceeds
of insurance, 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.
X. 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 reinstallation, disassembly or crating is required, cause such units
to be reinstalled, disassembled and crazed 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 the continental United States as
Lessor shall direct. (b) Until Lessee has fully complied with the requirements
of Section X(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) days notice to
Lessee.
XI. 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 ten (10) days; Lessee breaches any of its insurance obligations
under Section I; Lessee breaches any of its other obligations to Lessor
hereunder or under any instrument, document or agreement between Lessor and
Lessee 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 or
against Lessee under any bankruptcy or insolvency laws. 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 X(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 next
preceding the declaration of default), and (ii) all rentals and other sums
then due 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 Lessees, premises for any or all of the
foregoing without liability for rent, costs, damages or otherwise. The
proceeds of sale, lease or other disposition, if any, shall be applied 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 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 Lessor's actual
attorney's fees incurred in connection with the enforcement, assertion,
defense or preservation of Lessor's rights and remedies hereunder, 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. 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.
XII. ASSIGNMENT:
Lessor may, without the consent of Lessee, assign this Agreement or any
Schedule. Lessee agrees that if Lessee receives written notice of an
assignment from Lessor, Lessee will pay all rent and other amounts payable
under any assigned Equipment Schedule to such assignee or as instructed by
Lessor. Lessee further agrees to confirm in writing receipt of a notice of
assignment as may be reasonably requested by assignee. 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.
XIII. 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.
XIV. 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, and including, but
not limited to, Lessor's strict liability in tort, 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,
copyright infringement or environmental damage) or (ii) the condition of
Equipment sold or disposed of after use by Lessee, any sublease 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 XIV 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 assign.
XV. 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.
XVI. 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
Balance Sheet and Statement of Income delivered to Lessor has been prepared in
accordance with generally accepted accounting principles, and since the date
of the most recent such Balance Sheet and 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). (i) The Equipment will at
all times be used for commercial or business purposes.
XVII. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST; USURY SAVINGS:
(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 forgoing sentence to the extent such a 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 any of the tax
benefits available to the owner of the Equipment. (b) Lessee hereby grants to
Lessor a first security interest in the Equipment, together with all
additions, attachments, accessions, accessories and accessions thereto whether
or not furnished by the Supplier of the Equipment and any and all
substitutions, replacements or exchanges therefor, and any and all insurance
and/or other proceeds of the property in and against which a security interest
is granted hereunder. Notwithstanding anything to the contrary contained
elsewhere in this Agreement, to the extent that Lessor asserts a purchase
money security interest in any items of Equipment ("PMSI Equipment"): (i) the
PMSI Equipment shall secure only those sums which have been advanced by Lessor
for the purchase of the PMSI Equipment, or the acquisition of rights therein,
or the use thereof (the "PMSI Indebtedness"), and (ii) no other Equipment
shall secure the PMSI Indebtedness. (c) 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 the
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 the 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 the 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 the Lease which are made for the
purpose of determining whether such rate exceeds 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 indebtedness evidenced hereby, all interest at any
time contracted for, charged or received from Lessee or otherwise by Lessor in
connection with such indebtedness; 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.
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 days 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 as of the rental due on
the Termination Date) for the Equipment, and (B) all rent and other sums due
and unpaid as of the Termination Date. (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 X) 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. EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier terminated and provided
further that Lessee is not in default under the Lease or any other agreement
between Lessor and Lessee. Lessee may, UPON AT LEAST 30 DAYS BUT NO MORE THAN
270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE'S IRREVOCABLE ELECTION TO
EXERCISE SUCH OPTION, purchase all (but not less than all) of the Equipment
listed and described in this schedule on any Rent Payment Date following the
First Termination Date as set forth in this Schedule, and prior to the date
which is the scheduled expiration of this Lease, (the "Early Purchase Date")
for a price equal to (i) the Termination Value (calculated as of the Early
Purchase Date) for the Equipment, and (ii) all rent and other sums due and
unpaid as of the Purchase Date (the "Early Option Price"), plus all applicable
sales taxes on an AS IS BASIS. (The purchase option granted by this subsection
shall be referred to herein as the "Early Purchase Option"). (b) If Lessee
exercises its Early Purchase Option with respect to the Equipment leased
hereunder, then on the Early Purchase Date, Lessee shall pay to Lessor any
rent and other sums due and unpaid on the Early Purchase Date and Lessee shall
pay the Early Option Price, plus all applicable sales taxes, to Lessor in
cash.
XX. PURCHASE OPTION:
a. So long as no default exists hereunder and the lease has not been earlier
terminated, Lessee may at lease expiration purchase all (but not less than
all) of the Equipment in any Schedule on an AS IS, WHERE IS BASIS for cash
equal to the amount indicated in such Schedule (the "Option Payment"). The
Option Payment shall be due and payable in immediately available funds on the
Expiration Date. (b) Lessee shall be deemed to have waived this option unless
it provides Lessor with written notice of its irrevocable election to exercise
the same not less than 90 days prior to the Expiration Date.
XXI. MISCELLANEOUS:
(a) 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). THIS WAIVER IS IRREVOCABLE MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE 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 the court (b) Unless and until Lessee exercises
its rights under Section XIX above, nothing herein contained shall give or
convey to Lessee any right, title or interest in and to any Equipment except
as a lessee. Any cancellation or termination by Lessor, pursuant to the
provision 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. All Equipment shall as 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. (c) 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
sent by registered or certified mail 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 master 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 THE PARTIES HERETO.
/s/ /s/
-----------------------
initials
(d) 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 notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default. (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 eighteen
percent 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.
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: LESSEE:
General Electric Capital Corporation Xxxxxx Xxxxxxxx Chemicals, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X Xxxxxxxxxxx
-------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: X. Xxxxxxxxxxx
----------------------------- ---------------------------
Title: Risk Analyst Title: Treas
---------------------------
LESSEE:
Phibro-Tech, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: X. Xxxxxxxxxxx
---------------------------
Title: Treas
--------------------------
VEHICLE SCHEDULE
SCHEDULE NO. 1
DATED THIS 2/27/98
TO MASTER LEASE AGREEMENT
DATED AS OF 2/27/98
Lessor & Mailing Address:
General Electric Capital Corporation
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Lessee & Mailing Address:
Xxxxxx Xxxxxxxx Chemicals, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
&
Phibro-Tech,Inc.44
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX00000
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: $339,039.18.
3. Basic Terms, Lease Rate Factor: 2.063844%.
4. Daily Lease Rate Factor: 068795%.
5. Basic Term (No. of Months): 60.
6. Basic Term Commencement Date: 2/27/98.
7. Equipment Location: Various locations.
8. Lessee Federal Tax ID No: 131840-497.
9. Supplier: Acro Trailer, Comptank Corp., Freuhauf
Trailer Service, Inc., Poly- Coat Systems, Inc.,
Sterling Fluid Systems, Inc.
10. Last Delivery Date: 2/27/98
11. First Termination Date: Thirty-six (36) months after the Basic
Term Commencement Date.
12. Option Payment $1.00
13. Interest Rate: 8.77% per annum.
14. 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.
C. Term and Rent
1 Interim Rent. For the period from and including the Lease
Commencement Date to the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on Not Applicable
2 Basic Term Rent. Commencing on 4/1/98 and on the same day of each
month thereafter (each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the product of the Basic
Term, Lease Rate Factor times the Capitalized Lessor's Cost of all
Equipment on this Schedule.
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 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.
D. Insurance
I. Public Liability: $1,000,000 total liability per occurrence.
2 Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
E. Modifications and Additions to Agreement
For purposes of this Schedule only, the Agreement is amended as
follows:
1. The first sentence of Section IV(d) shall be deleted in its
entirety and the following substituted in its stead:
(d) Lessee will promptly notify Lessor in writing of a change in the
Equipment Location in the event that any unit of Equipment fails
to return to such location for a period of ninety consecutive
days.
2. Section V(b) shall be amended to add the following sentence at the
end thereof:
Lessee will allow only qualified, properly licensed personnel
selected, employed and controlled by Lessee to operate the
Equipment.
3. Section X(a) shall be amended by adding the following at the end
thereof:
Without limiting the foregoing, upon return, each unit of
Equipment must meet (i) all of manufactures specifications for
performance under full, rated loads and (ii) all of the following
conditions:
(A) Tires: All tires shall be of the same type (original size)
and manufacturer (i.e., matched) and have a minimum of fifty
percent (50%) remaining tread on original or recapped
casings (except that only original casings shall be allowed
on the front tires of any power unity.
(B) Mileage: In the case of GVW Class 1 through 5 vehicles,
average annual mileage shall not exceed 15,000 miles, and in
the ease of GVW Class 6 through 8 vehicles, average annual
mileage shall not exceed 100,000 miles. Should mileage
exceed these limits, the Lessee agrees to pay a mileage
surcharge of five cents ($.05) per mile on GVW class 1-5
vehicles and four cents ($.04) per mile on GVW class 6-8
vehicles, for additional mileage exceeding such limits. All
mileage determinations shall be based upon hubodometer
readings or, in the absence thereof, by odometer readings.
Lessee shall promptly notify Lessor of any malfunction of
the hubodometer or odometer.
(C) General Condition: With respect to each unit, the cost of
necessary repairs for damages to exterior and interior
material, may not exceed $250, provided any glass shall not
be broken, chipped or cracked. All mechanical and electrical
equipment, including radios, heaters, air conditioners and
refrigeration units must be in proper operating condition.
(D) Documents and Records: Upon return of a unit or units of
Equipment, all maintenance records, maintenance record
jackets, repair orders, license plates, registration
certificates and all other similar documents, in their
entirety, will be returned to Lessor.
F. Interest Rate: interest shall accrue from the Lease Commencement Date
through and including the date of termination of the Lease.
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.
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 Xxxxxx Xxxxxxxx Chemicals, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------- -----------------------------
Name: Xxxxx X. Giaqiunto Name: X. Xxxxxxxxxxx
Title: Risk Analyst Title: Treasurer
Attest:
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
LESSEE:
Phibro-Tech, Inc.
By: Xxxxxx X. Xxxxxxxxxxx
---------------------
Name: X. Xxxxxxxxxxx
Title: Treas
ANNEX A
TO
SCHEDULE NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF 2/27/98
DESCRIPTION OF EQUIPMENT
Capitalized
Number Cost
of Units Per Unit Manufacturer Serial Numbers Type and Model of
Equipment
One (1) $783 63.22 Acro Trailer Co. 1A91l422V1005036 1997 Semi-Tank
Trailer 1 Model Tanker
Above equipment location: 00 Xxxxxxxx Xxx., Xxxxxx, XX 00000
One (1) $73,290.82 Comptank Corp. 2C9LTA2B3VB075 115 1997 Vac Trailer
Model DOT-E-l 1903-NVRP
Above equipment location: 0000 X. Xxxxx Xxxxxx, Xxxxxxx, XX 00000
One (1) $75,627.00 Comptank Corp. 2C9LTA2B2VB17S090 1997 Vac Trailer 1
Model DOT-S-I 1903-NVRP
One (1) $27,229.00 Fruehauf 1JJF281FXWS44I306 1998 Trailer
Model Platform Trailer
One (1) $73,900.80 Polar 0XXX00000X0000000 1998 Trailer
Model Tank
Above equipment location: 0000 Xxxx Xxxx, Xxxxx Xx Xxxxxxx, XX 00000
One (1) $l0,628.34 Xx Xxxx N/A Pump/Model LVAY.17
Above equipment location: Industrial Park, Xxxxxxx 00 Xxxxx, Xxxxxx, XX 00000
INCLUDING ALL PROCEEDS, ATTACHMENTS, ACCESSORIES, ADDITIONS OR SUBSTITUTIONS
NOW OWNED OR HEREAFTER ATTACHED THERETO OR MADE A PART HEREOF.
The above is a complete list of the equipment and all attachments related to
the equipment.
Initials /s/ /s/ X. Xxxxxxxxxxx
Lessor ------------------
Lessee
/s/ X. Xxxxxxxxxxx
------------------
Lessee
ANNEX C
TO
SCHEDULE NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF 2/27/98
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation ("Lessor")
Pursuant to the provisions of the above schedule and lease
(collectively, the "Lease"), Lessee hereby certifies and warrants that (a) all
Equipment listed in the related invoice is in good condition and appearance,
installed (if applicable), and in working order, and (b) Lessee accepts the
Equipment for all purposes of the Lease and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is
not in default under the Lease; and (ii) the representations and warranties
made by Lessee pursuant to or under the Lease are true and correct on the date
hereof.
Philipp Brothers Chemicals, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Treas
Dated: 2/27/98
Phibro-Tech, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Title: Treas
Dated: 2/27/98
ANNEX D
TO
SCHEDULE NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF 2/27/98
STIPULATED LOSS AND TERMINATION VALUE TABLE
stipulated
termination loss
payment value value
number % of cost % of cost
1 101.666 105.572
2 100.321 104.179
3 98.967 102.776
4 97.603 101.362
5 96.230 99.939
6 94.846 98.506
7 93.452 97.063
8 92.048 95.610
9 90.633 94.146
10 89.209 92.673
11 87.774 91.188
12 86.328 89.694
13 84.872 88.188
14 83.405 86.673
15 81.928 85.146
16 80.440 83.609
17 78.941 82.060
18 77.431 80.501
19 75.910 78.931
20 74.378 77.350
21 72.835 75.758
22 71.280 74.154
23 69.714 72.539
24 68.137 70.912
25 66.548 69.274
26 64.948 67.625
27 63.336 65.964
28 61.712 64.291
29 60.077 62.606
30 58.429 60.909
Initials: /s/ /s/ Xxxxxx X. Xxxxxxxxxxx
--------- -------------------------
Lessor Lessee
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Lessee
The Stipulated Loss Value or Termination Value for any unit of
Equipment shall be equal to the Capitalized Lessor's Cost of such unit
multiplied by the appropriate percentage derived from the above table.
In the event that the Lease is for any reason extended, then the last
percentage figure shown above shall control throughout any such extended
term.
ANNEX D
TO
SCHEDULE NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF 2/27/98
STIPULATED LOSS AND TERMINATION VALUE TABLE
stipulated
termination loss
payment value value
number % of cost % of cost
31 56.769 59.201
32 55.098 57.480
33 53.414 55.747
34 51.718 54.001
35 50.009 52.244
36 48.288 50.474
37 46.555 48.691
38 44.809 46.895
39 43.050 45.087
40 41.278 43.266
41 39.493 41.433
42 37.696 39.586
43 35.885 37.726
44 34.061 35.853
45 32.224 33.966
46 30.373 32.066
47 28.509 30.153
48 26.631 28.226
49 24.739 26.285
50 22.834 24.331
51 20.915 22.362
52 18.982 20.380
53 17.034 18.384
54 15.073 16.373
55 13.097 14.348
56 11.107 12.309
57 9.102 10.255
58 7.083 8.186
59 5.049 6.103
60 3.000 4.005
Initials: /s/ /s/ Xxxxxx X. Xxxxxxxxxxx
---------- -------------------------
Lessor Lessee
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Lessee
The Stipulated Loss Value or Termination Value for any unit of
Equipment shall be equal to the Capitalized Lessor's Cost or such
unit multiplied by the appropriate percentage derived from the above
table. In the event that the Lease is for any reason extended, then
the last percentage figure shown above shall control throughout any
such extended term.
ADDENDUM
TO SCHEDULE NO. I
TO MASTER LEASE AGREEMENT
(GPO)
DATED AS OF 2/27/98
THIS ADDENDUM ("Addendum") amends and supplements the above referenced
Schedule ("Schedule") between General Electric Capital Corporation ("Lessor"),
and Xxxxxx Xxxxxxxx Chemicals, Inc. & Phibro-Tech, Inc. ("Lessee"), and is
hereby incorporated into the Schedule as though fully set forth therein.
Capitalized terms not otherwise defined herein shall have the meaning set
forth in the Lease.
1. Lessee hereby irrevocably agrees to purchase the Equipment upon the
expiration of the Basic Term. Lessee shall pay the Lessor the purchase price
of $1.00 in cash for the Equipment, on or before 3/1/03.
2. The Equipment shall be sold to Lessee and possession made available
to Lessee "As-Is" and Where-Is; Lessor will not make any representation or
warranty, express or implied, including, but not limited to any warranty as to
fitness for any particular or other purpose, merchantability or patent
infringement, except that Lessor shall have the right to sell the Equipment
and shall transfer to Lessee good title free and clear of any superior lien or
encumbrance created by Lessor. Lessee is liable for any taxes payable as a
result of this sale.
Except as expressly modified hereby all terms and provisions of the
Lease shall remain in full force and effect. This Addendum is not binding nor
effective with respect to the Lease or the Equipment until executed on behalf
of Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
General Electric Capital Corporation Xxxxxx Xxxxxxxx Chemicals, Inc.
By: /s/ Xxxxx X. Giaqiunto By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------- -------------------------
Name: Xxxxx X. Xxxxxxxxx Name: X. Xxxxxxxxxxx
Title: Risk Analyst Title: Treas
Attest:
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
LESSEE:
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------
Name: X. Xxxxxxxxxxx
Title: Treasurer
Attest:
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
CROSS-COLLATERAL AND CROSS-DEFAULT AGREEMENT
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Gentlemen:
You have entered into or purchased one or more conditional sale
contracts, lease agreements, chattel mortgages, security agreements, notes and
other chooses in action (herein designated "Accounts") arising from the bona
fide sale or lease to us, by various vendors or lessors, of equipment and
inventory (herein designated "Collateral") and/or you have made direct loans
to or otherwise extended credit to us evidenced by Accounts creating security
interests in Collateral.
In order to induce you to extend our time of payment on one or more
Accounts and/or to make additional loans to us and/or to purchase additional
Accounts and/or to lease us additional equipment, and in consideration of you
so doing, and for other good and valuable consideration, the receipt of which
we hereby acknowledge, we agree as follows:
All presently existing and hereafter acquired Collateral in which you
have or shall have a security interest shall secure the payment and
performance of all of our liabilities and obligations to you of every kind and
character, whether joint or several, direct or indirect, absolute or
contingent, due or to become due, and whether under presently existing or
hereafter created Accounts or agreements, or otherwise.
We further agree that your security interest in the property covered
by any Account now held or hereafter acquired by you shall not be terminated
in whole or in part until and unless all indebtedness of every kind, due or to
become due, owed by us to you is fully paid and satisfied and the terms of
every Account have been fully performed by us. It is further agreed that you
are to retain your security interest in all property covered by all Accounts
held or acquired by you, as security for payment and performance under each
such Account, notwithstanding the fact that one or more of such Accounts may
become fully paid.
This instrument is intended to create cross-default and cross-security
between and among all the within described Accounts now owned or hereafter
acquired by you.
A default under any Account or agreement shall be deemed to be a
default under all other Accounts and agreements. A default shall result if we
fail to pay any sum when due on any Account or agreement, or if we breach any
of the other terms and conditions thereof, or if we become insolvent, cease to
do business as a going concern, make an assignment for the benefit of
creditors, or if a petition for a receiver or in bankruptcy is filed by or
against us, or if any of our property is seized, attached or levied upon. Upon
our default any or all Accounts and agreements shall, at your option, become
immediately due and payable without notice or demand to us or any other party
obligated thereon, and you shall have and may exercise any and all rights and
remedies of a secured party under the Uniform Commercial Code as enacted in
the applicable jurisdiction and as otherwise granted to you under any Account
or other agreement. We hereby waive, to the maximum extent permitted by law,
notices of default, notices of repossession and sale or other disposition of
collateral, and all other notices, and in the event any such notice cannot be
waived, we agree that if such notice is mailed to us postage prepaid at the
address shown below at least five (5) days prior to the exercise by you of any
of your rights or remedies, such notice shall be deemed to be reasonable and
shall fully satisfy any requirement for giving notice.
All rights granted to you hereunder shall be cumulative and not
alternative, shall be in addition to and shall in no manner impair or affect
your rights and remedies under
any existing Account, agreement, statute or rule of law.
This agreement may not be varied or altered nor its provisions waived
except by your duly executed written agreement. This agreement shall inure to
the benefit of your successors and assigns and shall be binding upon our
heirs, administrators, executors, legal representatives, successors and
assigns.
IN WITNESS WHEREOF, this agreement is executed this 27th day of
February, 1998.
LESSEE: LESSEE:
Xxxxxx Xxxxxxxx Chemicals, Inc. Phibro-Tech, Inc.
(Name of Proprietorship, (Name of Proprietorship,
Partnership or Corporation, as applicable) Partnership or Corporation, as
applicable)
By: /s/ Xxxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------- -------------------------
(Signature) (Signature)
Title: Treas Title: Treas
(Owner, Partner, or (Owner, Partner, or
Officer, as applicable) Officer, as applicable)
Address: One Xxxxxx Plaza Address: Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000 Xxxx Xxx, XX 00000
