Master Lease Agreement - CIT Group/Equipment Financing Inc. and National Fiberstok Corp.
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT dated as of 12 - 21, 1995, between THE CIT
GROUP/EQUIPMENT FINANCING, INC., a New York corporation ("LESSOR"), having a
place of business at 1211 Avenue of the Americas, New York, New York 10036 and
NATIONAL FIBERSTOK CORPORATION, a Delaware corporation ("LESSEE"), having a
place of business at 5775 Peachtree Dunwoody Road, Suite C-150, Atlanta (Fulton
County), Georgia 30342. All capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in Section 7 of Exhibit A
hereto.
1. EQUIPMENT LEASED AND TERM. Lessor agrees to lease to Lessee and Lessee
agrees to lease from Lessor, subject to the terms and conditions set forth
herein, in EXHIBIT A attached hereto and made a part hereof, and in each
Supplement executed pursuant hereto (collectively, as any of them may be amended
or modified the "LEASE"), the Equipment described in any Supplement executed by
the parties pursuant to this Lease. Each item of Equipment shall be subjected
to this Lease by the execution by the parties hereto of a Supplement, which
shall constitute Lessee's irrevocable acceptance of such item of Equipment for
all purposes of this Lease. Each Supplement shall incorporate therein all of
the terms and conditions of this Lease and shall constitute a part of this
Lease. The term of the lease of each item of Equipment hereunder shall commence
on the Commencement Date specified in the Supplement pertaining thereto (the
"COMMENCEMENT DATE") and shall continue for the term specified in EXHIBIT A.
Lessee shall arrange for delivery and installation of each item of Equipment and
Lessor shall have no responsibility or obligation whatsoever with respect to
such arrangement.
2. RENT; NET LEASE. The aggregate rent payable during the Lease Term with
respect any Equipment shall be in the amount shown with respect to such
Equipment on the Supplement pertaining thereto and shall be determined in the
manner set forth in EXHIBIT A. Such rent shall be payable at the times set
forth in Section 5 of EXHIBIT A and in the amounts shown in the applicable
Supplement, and any payment not made when due shall bear late charges thereon
calculated at the Late Charge Rate. All rent shall be paid at Lessor's place of
business shown above, or such other place as Lessor may designate by written
notice to the Lessee. ALL RENT SHALL BE PAID WITHOUT NOTICE OR DEMAND AND
WITHOUT ABATEMENT, DEDUCTION OR SETOFF OF ANY AMOUNT WHATSOEVER. THE OPERATION
AND USE OF THE EQUIPMENT SHALL BE AT THE RISK OF LESSEE AND NOT OF LESSOR AND
THE OBLIGATION OF LESSEE TO PAY RENT HEREUNDER SHALL BE ABSOLUTE AND
UNCONDITIONAL UNDER ALL CIRCUMSTANCES. This Lease is a net lease and all
operational expenses with respect to the Equipment are to be paid by the Lessee.
This Lease is irrevocable for the full term hereof and for the aggregate rents
therein reserved and the rent shall not abate by reason of termination of
Lessee's right of possession and/or the taking of possession by the Lessor or
for any other reason.
3. CONDITIONS PRECEDENT. (a) Lessor shall not be obligated to accept and
execute the first Supplement or to lease any Equipment to Lessee unless on
the Commencement Date all legal matters with respect to, and all legal
documents executed in connection with, the contemplated transactions are
satisfactory to Lessor and all of the following conditions are met to the
satisfaction of Lessor (except that the terms of clauses (i)(A), (B) and (E)
are required in connection with the initial Supplement only): (i)Lessor shall
have received (A) a satisfactory Secretary's Certificate certified by
Lessee's Secretary or Assistant Secretary and an opinion of counsel in
substance satisfactory to Lessor, (B) a duly executed Supplement covering the
items of Equipment to be leased hereunder; (C) evidence satisfactory to it as
to the proper calculation of the amount of the Advance Amount of such items
of Equipment; (D) such Uniform Commercial Code, tax and judgment lien
searches as Lessor shall deem necessary and desirable, and such releases and
terminations of such Liens as Lessor in its sole discretion shall require;
(E)(1) the duly executed Guaranty from each Guarantor; and (2) a satisfactory
Secretary's Certificate from each Guarantor's Secretary or Assistant
Secretary; and (F) in form and substance satisfactory to it, such other
Documents and information as Lessor shall reasonably request; (ii) all
representations and warranties of Lessee contained herein or in any document
or certificate furnished Lessor in connection herewith shall be true and
correct on and as of the date of such Supplement with the same force and
effect as if made on and as of such date; Lessor shall have a perfected first
and only Lien on such Equipment, and the Equipment shall be satisfactory to
Lessor; (iv) no Event of Default or Default shall be in existence on such
date or shall occur as a result of the lease by Lessee of the Equipment
specified in such Supplement; (v) in the sole judgment of Lessor, there shall
have been no material adverse change in the financial condition or business
of Lessee or DEC International, Inc., from August 31, 1995 and McCown DeLeeuw
and Co., II, L.P. and McCown DeLeeuw Associates, L.P. from June 30, 1995; and
(vi) all legal matters and all proceedings to be taken in connection with
the transactions contemplated by the Lease, such Supplement and all other
Documents shall be satisfactory, or satisfactory in form and substance, as
case may be, to Lessor and its counsel; (vii) the Escrow Account shall have
been established and funded pursuant to the Escrow Agreement, and (viii)
Lessor shall be satisfied that all amounts included in the Advance Amount
have been, or concurrently with Lessor's acceptance of such Supplement will
be, paid in full.
4. REPRESENTATIONS AND WARRANTIES. In order to induce Lessor to enter into
this Lease and to execute each Supplement, Lessee represents and warrants to
Lessor that: (a) Lessee is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction under which it is organized,
and is duly qualified to do business and in good standing in each jurisdiction
in which the Equipment is located or the conduct of its business or the
ownership of its assets requires such qualification; (b) this Lease, each
Supplement, the Escrow Agreement, the Progress Payment Agreement and all other
Documents have been (or will have been, when executed and delivered) duly
authorized, executed and delivered by Lessee and constitute a legal, valid and
binding obligation of Lessee enforceable in accordance with their respective
terms except as such rights may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally; (c) the
execution, delivery and performance of this Lease does not require any
stockholder approval or approval or consent of any trustee or holders of any
indebtedness or obligations of Lessee except for those consents which have been
previously obtained, and does not contravene any law, regulation, judgment, or
order applicable to Lessee, or the certificate of incorporation or bylaws of
Lessee, or contravene
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the provisions of, or constitute a default under, or result in the creation
of any Lien upon any property of Lessee under, any instrument or other
agreement to which Lessee is a party or by which Lessee or its assets may be
bound or affected, and no authorization, approval, license, filing or
registration with any court or governmental agency or instrumentality is
necessary in connection with the execution, delivery, performance, validity
and enforceability of this Lease, the Escrow Agreement, the Progress Payment
Agreement and the other Documents except for those authorizations which have
previously been obtained; (d) Lessee is not in default under any material
mortgage, indenture, contract, agreement, judgement or other undertaking to
which Lessee is a party; (e) on each Commencement Date, Lessor shall have
good and marketable title to the items of Equipment being subjected to this
Lease on such date, free and clear of all Liens, (f) except as disclosed in
writing to Lessor prior to the date of this Lease, there is no material
action, suit, investigation or proceeding by or before any court, arbitrator,
administrative agency or other governmental authority pending or threatened
against or affecting Lessee or any of its assets; (g) the financial
statements of Lessee and each Guarantor heretofore furnished to Lessor are
complete and correct fairly present the financial condition of Lessee and
each Guarantor, respectively, and the results of the operations of Lessee and
each Guarantor, respectively, for the respective periods covered thereby and
have been prepared in accordance with generally accepted accounting
principles, and there has been no material adverse change in any such
financial condition or operations; (h) Lessee's principal place of business
is located at the address set forth in the introductory paragraph of this
Lease; (i) Lessee has not changed its name and has not done business in any
name other than that set forth in the introductory paragraph to this Lease;
(j) Lessee has filed all Federal, state and local income tax returns that are
required to be filed, has paid all taxes as shown on said returns and all
assessments received by it to the extent that such taxes and assessments have
become due, and does not have any knowledge of any actual or proposed
deficiency or additional assessment in connection therewith, and the charges,
accruals and reserves on the books of Lessee in respect of Federal, state and
local taxes for all open years, and for the current fiscal year, make
adequate provision for all unpaid tax liabilities for such periods; and (k)
(i) the operations of Lessee comply in all material respects with all
applicable Environmental Laws; (ii) none of the operations of Lessee is
subject to any judicial or administrative proceeding alleging the violation
of any Environmental Laws; (iii) none of the operations of Lessee is the
subject of federal or state investigation to determine whether any remedial
action is needed to respond to a release of any Hazardous Material into the
environment, and (iv) Lessee has no known material contingent liability in
connection with any release of any Hazardous Material into the environment.
5. COVENANTS. (a) COMPLIANCE WITH LAWS. Lessee shall : (i) use the Equipment in
the conduct of the lawful business of Lessee and in a careful and proper manner,
will comply with and conform with and conform to all governmental laws, rules
and regulations relating thereto, all environmental laws, and will cause the
Equipment to be operated in accordance with the manufacturer's or supplier's
instructions or manuals and only by competent and duly qualified personnel; (ii)
maintain its existence as a legal entity and obtain and keep in full force and
effect all rights, franchises, licenses and permits which are necessary to the
proper conduct of its business, (iii) obtain or cause to be obtained as promptly
as possible any governmental, administrative or agency approval and make any
filing or registration therewith which at the time shall be required with
respect to the performance of its obligations under this Lease and the proper
conduct of its business; (iv) pay all fees, taxes, assessments and governmental
charges or levies imposed upon any item of Equipment; (v) not change its name or
its chief place of business; (vi) qualify to do business, and remain qualified
in good standing, in each jurisdiction in which the Equipment is from time to
time located; and (vii) comply strictly and in all respect with the
requirements of all Environmental Laws and related regulations and with all
similar applicable laws and regulations.
(b) OPERATION AND MAINTENANCE. Lessee shall, at its own expense, keep
and maintain the Equipment in good repair, condition and working order and
furnish all parts, replacements, mechanisms, devices and servicing required
therefor so that the value, condition and operating efficiency thereof will
at all times be maintained and preserved, reasonable wear and tear excepted.
All such repairs, parts, mechanisms, devices and replacements shall
immediately, without further act, become the property of Lessor and part of
the Equipment. The Equipment must be covered by a service/maintenance
agreement with the manufacturer or a person approved by Lessor and a copy
thereof available for inspection by Lessor. All replacement parts must be
purchased from sources approved by the manufacturer and copies of all
purchase orders with respect to replacement parts delivered to Lessor.
(c) NO IMPROVEMENTS. Lessee shall not make or authorize any improvement,
change, addition or alteration to the Equipment without the prior written
approval of Lessor (i) if such improvement, change, addition or alteration would
impair the originally intended function or use of the Equipment or impair the
value of the Equipment as it existed immediately prior to such improvement,
change, addition or alteration, or (ii) if any parts installed in or attached to
or otherwise becoming a part of the Equipment as a result of any such
improvement, change, addition or alteration would not be readily removable
without damage to the Equipment. Any part which is added to the Equipment
without violating the provisions of the immediately preceding sentence and which
is not a replacement or substitution for any property which was a part of the
Equipment, shall remain the property of Lessee and may be removed by Lessee at
any time prior to the expiration or earlier termination of the Lease Term. All
such parts shall be and remain free and clear of any Liens. Any such part which
is not so removed prior to the expiration or earlier termination of the Lease
Term shall, without further act, become the property of Lessor.
(d) FINANCIAL STATEMENTS. (i) Lessee shall, in accordance with generally
accepted accounting principles, keep proper books of record and account in which
entries will be made of all dealings or transactions in relation to its business
and activities; (ii) furnish to Lessor the following financial statements, all
in reasonable detail, prepared in accordance with generally accepted accounting
principles applied on a basis consistently maintained throughout the period
involved, (A) as soon as available, but not later than 120 days after the end of
each fiscal year, a consolidated balance sheet of Lessee and Lessee's Parent
Company as at the end of such fiscal year, and consolidated statements of income
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and consolidated statements of cash flow of Lessee and Lessee's Parent
Company, and all footnotes, of such fiscal year together with comparative
information for the prior fiscal year, audited by certified public
accountants acceptable to Lessor, and (B) as soon as available, but not later
than 90 days after the end of each of the first three quarterly periods of
each fiscal year, a consolidated balance sheet of Lessee and Lessee's Parent
Company as at the end of such quarterly period and consolidated statements of
income and consolidated statements of cash flow of Lessee and Lessee's Parent
Company for such quarterly period and for the portion of the fiscal year then
ended together with comparative information for the prior comparable period,
certified as to their accuracy by the chief financial officer of Lessee or
Lessee's Parent Company; (iii)(A) furnish to Lessor, together with the
financial statements described in clauses 5(d)(i)(A) and 5(d)(i)(B) above, a
statement signed by the chief financial officer of Lessee or Lessee's Parent
Company certifying that Lessee and Lessee's Parent Company are in compliance
with all financial covenants contained in any documents evidencing a
financial obligation to which Lessee or Lessee's Parent Company is a party,
or if Lessee or Lessee's Parent Company is not in compliance, the nature of
such noncompliance or default, and the status thereof (such statement shall
set forth the actual calculations of any financial covenants and the details
of any amendments or modifications of any financial covenants), and (B)
promptly, such additional financial and other information as lessor may from
time to time reasonably request.
(e) INSURANCE. Lessee shall obtain and maintain at all times on the
Equipment, at its expense, all-risk physical damage insurance and comprehensive
general and/or automobile (as appropriate) liability insurance (covering bodily
injury and property damage exposures including, but not limited to, contractual
liability and products liability) in such amounts, against such risks, in such
form and with such insurers as shall be satisfactory to Lessor; PROVIDED, that
the amount of all-risk physical damage insurance shall not on any date by less
than the greater of the full replacement value or a sum equal to all the rent
due thereon, plus all rent to become due. Each physical damage insurance policy
shall name Lessor as loss payee. Each liability insurance policy shall name
Lessor as additional insured. Each insurance policy shall also require that the
insurer give Lessor at least thirty (30) days prior written notice of any
alteration in or cancellation of the terms of such policy and require that
Lessor's interests be continued insured regardless of any breach or violation by
Lessee or others of any warranties, declarations or conditions contained in such
insurance policy. In no event shall Lessor be responsible for premiums,
warranties or representations to any insurer or any agent thereof. Lessee shall
furnish to Lessor a certificate or other evidence satisfactory to Lessor that
such insurance coverage is in effect, but Lessor shall be under no duty to
ascertain the existence or adequacy of such insurance. The insurance maintained
by Lessee shall be primary without any right of contribution from insurance
which may be maintained by Lessor. Lessee shall be liable for all deductible
portions of all required insurance. Lessor may, at its own expense, for its own
benefit, purchase insurance in excess of that required under this Lease.
Physical damage insurance proceeds shall be applied as set forth in Subsection
6(b) hereof.
(f) TITLE; IDENTIFICATION; PERSONAL PROPERTY; INSPECTION. Title to the
equipment shall at all times remain in Lessor. Upon the request of Lessor in
writing, Lessee shall, at its expense, attach to each item of Equipment a notice
satisfactory to Lessor disclosing Lessor's ownership of such item of Equipment.
The Equipment is and shall remain personal property. Lessor shall have the right
from time to time during reasonable business hours to enter upon Lessee's
premises or elsewhere for the purpose of confirming the existence, condition and
proper maintenance of the Equipment and in the event Lessee does not exercise
its purchase option in accordance with the provisions of Subsection 9(b) hereof,
during the last twelve months of the Lease Term of the Equipment, upon prior
written notice to Lessee, Lessor shall also have the right to demonstrate and
show the Equipment to others and to inspect the books and records of Lessee
pertaining to the Equipment. Lessee shall permit Lessor or its authorized
representative, at any reasonable time or times, to inspect the Equipment and,
following the occurrence and during the continuation of an Event of Default, to
inspect the books and record of Lessee. The foregoing rights of entry are
subject to any applicable governmental laws, regulations and rules concerning
industrial security.
(g) LOCATION; ASSIGNMENT OR SUBLEASE; NO LIENS. NO ITEM OF EQUIPMENT SHALL
BE REMOVED FROM ITS LOCATION SHOWN ON THE SUPPLEMENT WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR. LESSEE SHALL NOT WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, PART
WITH POSSESSION OR CONTROL OF THE EQUIPMENT OR ATTEMPT OR PURPORT TO SUBLEASE,
SELL, PLEDGE, MORTGAGE OR OTHERWISE ENCUMBER OR SUFFER A LIEN AGAINST ANY
INTEREST IN THIS LEASE OR ANY OF THE EQUIPMENT NOR ASSIGN ITS RIGHTS UNDER THIS
LEASE. LESSEE AGREES THAT IT SHALL PROMPTLY, AT ITS EXPENSE, SATISFY, DISCHARGE
AND OTHERWISE TAKE SUCH ACTION AS MAY BE NECESSARY TO KEEP THE EQUIPMENT FREE
AND CLEAR OF, AND TO DULY DISCHARGE, ANY LIEN.
(h) NOTIFICATION REQUIREMENTS. Lessee will promptly give written notice to
Lessor of: (i) the occurrence of any Default or Event of Default; (ii) the
occurrence of any Event of Loss; (iii) the commencement or threat of any
material litigation or proceedings affecting Lessee or the Equipment; and (iv)
any dispute between Lessee and any governmental regulatory body or other party
that involves any of the Equipment or that might materially interfere with the
normal business operations of Lessee; (v) any Release of Hazardous Materials or
contaminants from any of Lessee's property or the Equipment; and (vi) Lessee's
receipt of any notice that (A) the operations of Lessee are not in material
compliance with the requirements of applicable Environmental Laws, (B) Lessee is
subject to a federal or state investigation to determine whether any remedial
action is needed to respond to the Release of any Hazardous Material into the
environment, or (C) the filing of any Environmental Lien against any properties
or assets of Lessee.
(i) FURTHER ASSURANCES. Lessee shall promptly, at Lessee's expense, execute
and deliver to Lessor such instruments and documents, and take such action, as
Lessor may from time to time reasonably request in order to carry out the intent
and purpose of this Lease and to
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establish and protect the rights, interest and remedies created, or intended to
be created, in favor of Lessor hereby. Lessee hereby authorized Lessor to file
the Lease or any financing statements with respect to the Lease and the
Equipment. Lessee agrees to execute and deliver any statements requested by
Lessor for such purpose.
(j) NEGATIVE COVENANTS. Lessee will not, except as may otherwise be
expressly permitted under Subsection 9(c) hereof, (i) liquidate or dissolve;
(ii) change the form of organization of its business; (iii) without thirty (30)
days prior written notice to Lessor, change its name or its chief place of
business; or (iv) change, in any material manner, the nature of its business as
conducted on the date hereof.
6. LOSS OR DAMAGE. (a) Lessee agrees to bear the entire risk of any partial or
complete loss with respect to the Equipment from any and every cause
whatsoever, whether or not such loss is covered by insurance or caused by any
default or neglect of Lessee. Lessee agrees to give Lessor prompt notice of any
damage to or loss of any Equipment, and Lessee shall promptly cause the affected
part or parts of the Equipment to be replaced or restored to the condition and
repair required to be maintained by Section (b) hereof. Upon the occurrence of
an Event of Loss with respect to any item of Equipment, Lessee (i) may, so long
as no Default or Event of Default has occurred and is continuing hereunder,
replace such Equipment with equipment (which shall thereupon become Equipment)
of a value and utility, as determined by CIT in its reasonable business
judgement, equal to or greater than that of the Equipment suffering the Event of
Loss (the value and utility of the Equipment suffering the Event of Loss being
determined as of immediately prior to the Event of Loss) or (ii) shall pay to
Lessor withing thirty (30) days after said Event of Loss (the "LOSS PAYMENT
DATE") an amount equal to the sum of (i) the Stipulated Loss Value of such item
of Equipment computed as of the Rent Payment Date with respect to such item of
Equipment on or immediately preceding the date of the occurrence of such Event
of Loss, and (ii) all rent and other amounts which would be payable under the
Lease hereunder for such item of Equipment but for such Event of Loss up to and
including the Loss Payment Date. Upon payment of such amount to Lessor, the
lease of such item of Equipment hereunder shall terminate, and Lessor will
transfer to Lessee, Lessor's right, title and interest in and to such item of
Equipment, on an "AS-IS, WHERE-IS" BASIS, WITHOUT RECOURSE AND WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS OF
THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OF TITLE OTHER THAN A
WARRANTY THAT THE EQUIPMENT IS FREE AND CLEAR OF ANY LESSOR'S LIEN.
(b) Any payments received at any time by Lessor or Lessee from any insurer
with respect to loss or damage to the Equipment shall be applied as follows:
(i) if such payments are received with respect to an Event of Loss they shall be
paid to Lessor, but to the extent received by Lessor, they shall reduce or
discharge, as the case may be, Lessee's obligation to pay the amounts due to
Lessor under Subsection 6(a) hereof with respect to such Event of Loss; or (ii)
if such payments are received with respect to any loss of or damage to the
Equipment other than an Event of Loss, such payments shall, unless a Default or
Event of Default shall have occurred and be continuing, be paid over to Lessee
to reimburse Lessee for its payment of the costs and expenses incurred by Lessee
in replacing or resorting pursuant to Subsection 6(a) hereof the part or parts
of the Equipment which suffered such loss or damage. Lessor shall not be
obligated to undertake by litigation or otherwise the collection of any claim
against any person for loss or damage to the Equipment.
7. NO WARRANTIES BY LESSOR. (a) LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE
MADE AND LESSEE HEREBY EXPRESSLY WAIVES ANY WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OR REPRESENTATION AS TO THE DESIGN, QUALITY OR CONDITION OF THE
EQUIPMENT OR ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY
PARTICULAR PURPOSE OR AS TO THE TITLE TO OR LESSOR'S OR LESSEE'S INTEREST IN THE
EQUIPMENT OR AS TO ANY OTHER MATTER RELATING TO THE EQUIPMENT OR ANY PART
THEREOF, IT BEING AGREED THAT THE EQUIPMENT IS LEASED BY LESSOR "AS-IS" TO
LESSEE AND THAT ALL SUCH RISKS, AS BETWEEN LESSEE AND LESSOR ARE TO BE BORNE BY
LESSEE AT ITS SOLE RISK AND EXPENSE. LESSEE, ACCORDINGLY, AGREES NOT TO ASSERT
ANY CLAIM WHATSOEVER AGAINST LESSOR BASED THEREON. Lessee further agrees,
regardless of cause, not to assert any claim whatsoever against Lessor for loss
of anticipatory profits or consequential damages. Lessor shall have no
obligation to install, erect, test, adjust or service the Equipment.
LESSEE CONFIRMS THAT IT HAS SELECTED THE EQUIPMENT AND EACH PART THEREOF ON
THE BASIS OF ITS OWN JUDGEMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY
STATEMENTS, REPRESENTATIONS OR WARRANTIES MADE BY LESSOR, AND LESSEE
ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER OR VENDOR OF ANY PART OF THE
EQUIPMENT.
LESSOR NEITHER MAKES NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR
WARRANTY AS TO THE ACCOUNTING TREATMENT TO BE ACCORDED TO THE TRANSACTIONS
CONTEMPLATED BY THIS LEASE OR AS TO ANY TAX CONSEQUENCES AND/OR TAX TREATMENT
THEREOF.
(b) Lessee is aware of the identity of all manufacturers and/or suppliers
of the Equipment and the terms of the agreements (including any warranties) made
by such entities. Lessor hereby assigns to Lessee such rights as Lessor may have
(to the extent lessor may validly assign such rights) under all manufacturers'
and suppliers' warranties with respect to the Equipment; PROVIDED, HOWEVER, that
the foregoing rights shall
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automatically revert to Lessor upon the occurrence and during the continuance of
any Event of Default hereunder, or upon the return of the Equipment to Lessor.
Lessee agrees to settle all claims with respect to the Equipment directly with
the manufacturers or suppliers thereof, and to give Lessor prompt notice of any
such settlement and the details of such settlement.
8. TAX INDEMNITY. Lessee hereby agrees to pay and to indemnify and hold Lessor
harmless from and against, all fees, taxes (whether sales, use, excise, personal
property or other taxes), imposts, duties, withholdings, assessments and other
governmental charges of whatever kind or character, however designated (together
with any penalties, fines or interest thereon), all of the foregoing being
herein collectively called "IMPOSITIONS", which are at any time levied or
imposed against Lessor, Lessee, this Lease, the Equipment or any part thereof by
any Federal, state or local government or taxing authority in the United States
or by any foreign government or any subdivision or taxing authority thereof
upon, with respect to, as a result of or measured by (a) the Equipment (or any
part thereof), or this Lease or the interest of the Lessor therein; or (b) the
purchase, ownership, delivery, leasing, possession, maintenance, use, operation,
return, sale or other disposition of the Equipment or any part thereof; or (c)
the rentals, receipts or earnings payable under this Lease or otherwise arising
from the Equipment or any part thereof, EXCLUDING, HOWEVER, taxes based on or
measured by the net income of Lessor that are imposed by (i) the United States
of America, or (ii) any State of the United States of America or any political
subdivision of any such State. Lessor shall pay, and, promptly upon receipt of
Lessor's invoice therefor, Lessee shall reimburse Lessor for paying, the
Impositions, UNLESS Lessor and Lessee shall agree in writing that Lessee shall
pay any Impositions directly. Any payments made by Lessee under this Section 8
shall be made on an After-Tax Basis. The obligations of Lessee under this
Section 8 shall survive the expiration or earlier termination of this Lease.
9. RETURN; PURCHASE OPTION; TERMINATION. (a) RETURN PROVISIONS. Unless
Lessee shall elect to purchase the Equipment in accordance with the
provisions of Subsection 9(b) of the Lease, Lessee shall, upon the expiration
or earlier termination in accordance with the provisions hereof of the Lease
Term of each item of Equipment, Lessee, at Lessee's sole expense, shall
return such item of Equipment to Lessor at such places within the continental
United States of America as Lessor shall designate in writing to Lessee free
and clear of all Liens. Until such item of Equipment is returned to Lessor
pursuant to the provisions of this Subsection 9(a), all of the provisions of
the Lease with respect thereto shall continue in full force and effect.
Lessee shall pay all the costs and expenses in connection with or incidental
to the return of the Equipment, including, without limitation, the cost of
removing, dismantling, assembling, packing, insuring and transporting the
Equipment. All dismantling and handling of each item of Equipment is to be
in accordance with the original manufacturer's specifications or normal
industry practices for new machines, and if requested by Lessor, conducted by
a representative of the original manufacturer. Any special transportation
devices such as metal skids, lifting slings, brackets, etc. which were with
the item of Equipment when it was originally shipped by the original
manufacturer or vendor must be used in returning the Equipment. Each item of
Equipment shall be certified by the manufacturer as being in compliance with
its specifications pertaining to such item of Equipment. In addition, at the
time of such return, (i) the Equipment shall be capable of passing
performance tests according to manufacturer's specifications, (ii) all
peripherals and additional systems on all pieces of Equipment must be intact
and correctly operational, (iii) all pneumatic, electrical, hydraulic and
mechanical systems on the Equipment must be operational according to
manufacturer's specifications, and (iv) the Equipment otherwise shall be in
the condition and repair required to be maintained under Subsection 5(b) of
the Lease.
(b) PURCHASE OPTION. So long as no Event of Default shall have occurred
and be continuing, Lessee may, by written notice given to Lessor at least
twenty (20) months but not more than twenty-four (24) months prior to the
expiration date of the Lease Term of the Equipment covered by the initial
Supplement (which notice shall be irrevocable), elect to purchase all, but
not less than all, of the items of Equipment leased hereunder on the
applicable expiration date of each item of Equipment for a cash purchase
price equal to 20.00% of the Advance Amount, plus an amount equal to all
taxes (other than income taxes on any gain on such sale), costs and expenses
(including legal fees and expenses) incurred or paid by Lessor in connection
with such sale. Notwithstanding anything to the contrary contained herein,
Lessee shall at all times have the right, subject to the conditions herein
set forth, to purchase all or any part of the Equipment on the expiration
date of the Lease for the cash purchase price stated in this Subsection 9(b)
prior to any sale of Equipment to any third party. Upon payment by Lessee of
such purchase price, and of all other amounts then due and payable by Lessee
hereunder, Lessor shall transfer title to such Equipment to Lessee on an
"AS-IS, WHERE-IS" BASIS, WITHOUT RECOURSE AND WITHOUT REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS OF THE EQUIPMENT
FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OF TITLE OTHER THAN A
REPRESENTATION AND WARRANTY THAT SUCH EQUIPMENT IS FREE AND CLEAR OF ANY
LESSOR'S LIENS.
(c) TERMINATION FOR CHANGE EVENT. (i) Not less than twenty (20) Business
Days prior to the date a proposed Change Event is expected to be consummated,
Lessee shall give Lessor written notice of the proposed Change Event. In the
event the Change Event is consummated over Lessor's objection, Lessor may, at
its sole option, terminate the Lease and require that Lessee elect to either (i)
purchase all items of Equipment on or prior to the later of the date the Change
Event is to be consummated or the Notice Date (as defined below)(the "MANDATORY
TERMINATION DATE") for the Stipulated Loss Value thereof as of the Rent Payment
Date immediately preceding the date Lessor gave Lessee written notice of
Lessor's election to terminate the Lease (the "NOTICE DATE"), or (ii) prior to
the Mandatory Termination Date, find a third party purchaser to purchase all
items of Equipment on or prior to the Mandatory Termination Date and return the
Equipment, at Lessee's expense, to such place within the continental United
States of America as such third party purchaser shall specify in accordance with
the provisions of Subsection 9(a). In the event Lessee fails to elect the
provisions in clause (i) or (ii) of the preceding sentence, Lessor shall make
such election.
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On or prior to the Mandatory Termination Date, Lessee shall pay to Lessor, in
the case of (i), the Stipulated Loss Value or in the case of (2), the
difference, if any, between the purchase price paid by the third party purchaser
and the Stipulated Loss Value of the Equipment as of the Rent Payment Date
immediately preceding the Notice Date, together, in the case of both (i) and
(ii), with all other amounts then due and owing under the Lease, including all
rent and late charges, if any, due on or prior to the Mandatory Termination
Date, and all taxes (other than income taxes on any gain on such sale), and
reasonable costs and expenses (including legal fees and expenses) incurred or
paid by Lessor in connection with such sale. On receipt of the foregoing
amounts, Lessor shall transfer title to the Equipment to Lessee or third party
purchaser, as the case may be, or an "AS-IS, WHERE-IS" BASIS , WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS OF
THE EQUIPMENT FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OF TITLE EXCEPT FOR A
WARRANTY THAT THE EQUIPMENT IS FREE AND CLEAR OF ANY LESSOR'S LIEN.
(ii) A "CHANGE EVENT" shall be one in which: (A) Lessee enters into
any transaction of merger or consolidation where (1) it shall not be the
surviving corporation or (2) if it is the surviving corporation, its tangible
net worth, after giving effect to such merger or consolidation, does not equal
or exceed that which existed prior to such merger or consolidation; or (B)
Lessee sells, transfer, or otherwise disposes of all or any substantial part of
its assets, or (C) with respect to the voting stock of Lessee or any Parent
Company, any Person, or group of Persons acting together, becomes or agrees to
become the beneficial owner (directly or indirectly) or 25% or more of Lessee
or any Parent Company's shares of voting stock (excluding current
shareholders as of the date of the Lease owning 25% or more of Lessee's or
any Parent Company's shares of voting stock).
(d) VOLUNTARY TERMINATION. So long as no Default or Event of
Default shall have occurred and be continuing, Lessee may, by written notice
given to Lessor at least 30 days (but not more than 90 days) prior to any
Rent Payment Date occurring after the 30th Rent Payment Date with respect to
the Equipment covered by the last Supplement executed hereunder (which notice
shall be irrevocable), elect to purchase all, but not less than all, items of
Equipment leased hereunder on such Rent Payment Date for a cash purchase
price equal to the Termination Value of such Equipment plus in each case an
amount equal to all taxes (other than income taxes on any gain on such sale),
costs and expenses (including legal fees and expenses) incurred or paid by
Lessor in connection with such sale and any amounts then due and owing
hereunder. Upon payment by Lessee of such purchase price and of all other
amounts then due and payable by Lessee hereunder (including, without
limitation, the monthly installment of rent due on the Rent Payment Date on
which the termination occurs), Lessor shall transfer title to the Equipment
to Lessee on an "AS-IS, WHERE IS" BASIS, WITHOUT REPRESENTATION OR WARRANTY
(OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
REPRESENTATION OR WARRANTY) AS TO MERCHANTABILITY OR FITNESS OF THE EQUIPMENT
FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY OF TITLE OTHER THAN A WARRANTY
THE EQUIPMENT IS FREE AND CLEAR OF ANY LESSOR'S LIEN. Notwithstanding the
foregoing, Lessor agrees that Lessee may make voluntary prepayments in an
aggregate amount up to $400,000 at any time during the term of the Lease.
10. EVENTS OF DEFAULT. An Event of Default shall occur if: (a) Lessee fails to
pay when due any installment of rent or other amount when due and such failure
continues for a period of 10 days; (b) Lessee shall fail to maintain the
insurance required by Subsection 5(c) hereof or Lessee violates the covenants
contained in Subsection 5(g) or 5(j) hereof; (c) Lessee shall fail to observe
any other covenant, condition or agreement to be performed or observed by it
hereunder and such failure shall continue unremedied for 30 days after the
earlier of the date on which Lessee obtains knowledge of such failure or the
date on which notice thereof shall be given by Lessor to Lessee; (d) any
representation or warranty made by Lessee herein, or made by Lessee or any
Guarantor in any Document or financial or other statement now or hereafter
furnished Lessor in connection with the Lease, or made by any Guarantor in any
Guaranty, shall prove at any time to have been untrue or misleading in any
material respect as of the time when made; (e) Lessee, any Guarantor or any
Affiliate thereof shall (i) default in the payment or performance of any
obligation for payment of lease (whether or not capitalized) or any guarantee to
Lessor any Affiliate thereof and such default shall have been continuing for a
period of 10 days, or (ii) default in the payment of any obligation for payment
or lease (whether or not capitalized) or amount guaranteed in the original
principal balance, aggregate rental amount or amount guaranteed greater than
$1,000,000.00 to any other Person for a period of ninety (90) days after the
same becomes due and owing and no cure has been effected which is satisfactory
to the holder or beneficiary of such obligation, (f) Lessee or any Guarantor
ceases doing business as a going concern, makes an assignment for the benefit of
creditors, admits in writing its inability to pay it respective obligations as
they become due, files a voluntary petition in bankruptcy, is adjudicated a
bankrupt or an insolvent, files a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar arrangement under any present or future statute, law or regulation or
files an answer admitting the material allegations of a petition filed against
either of them in any such proceeding, consents to or acquiesces in the
appointment of a trustee, receiver, or liquidator of it or of all or any
substantial part of its assets or properties, or if Lessee or its shareholders
or any Guarantor or the shareholders or partners thereof shall take any action
looking to its dissolution or liquidation; (g) within 60 days after the
commencement of any proceeding against Lessee or any Guarantor seeking
reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, such proceedings
shall not have been dismissed, or if, within 60 days after the appointment
without Lessee's or a Guarantor's consent or acquiescence of any trustee,
receiver or liquidator of it or of all or any substantial part of its assets and
properties, such appointment shall not be vacated; (h) any Guarantor shall fail
to observe or perform any of the terms or conditions of its respective Guaranty
or any guaranty shall be full force and effect or shall be declared null and
void, or the validity or enforceability thereof shall be contested by any
Guarantor, or any Guarantor shall deny that such Guarantor has any further
liability to CIT with respect thereto; (i) a default or breach shall occur with
respect to the Escrow Agreement or the Escrow Account; or (j) Lessee or Lessee's
Parent Company shall, in material
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manner, change the nature of its business as conducted on the date hereof.
11. REMEDIES. (a) If an Event of Default specified in Subsections 10(f) or
10(g) above shall occur, then, and in any such event, this Lease shall, without
any declaration or any other action by Lessor, be in default, and without any
notice or declaration from Lessor and without any action or demand by Lessor,
the Stipulated Loss Value of the Equipment as of the Rent Payment Date
immediately succeeding the date the last installment of rent was received by
Lessor from Lessee plus all unpaid rent and other amounts owing under or with
respect to this Lease shall be immediately due and payable by Lessee to Lessor.
If an Event of Default, other than Event of Default specified in Subsections
10(f) or 10(g) above, shall occur and be continuing Lessor may, by notice of
default given to Lessee, declare this Lease to be in default, whereupon the
Stipulated Loss Value of the Equipment as of the Rent Payment Date immediately
succeeding the date the last installment of rent was received by Lessor from
Lessee together with all unpaid rent and all other amounts payable under or with
respect to this Lease shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived. During the continuance of any Event of Default
hereunder, Lessor shall have the right to pursue and enforce any of its rights
and remedies under this Section 11.
(b) If an Event of Default shall occur and be continuing, Lessor may
exercise, in addition to all other rights and remedies granted to it in this
Lease and in any other instrument or agreement securing, evidencing or
relating to the obligations of Lessee hereunder, all rights and remedies of
secured parties under the Code or under any other applicable law. Without
limiting the generality of the foregoing, Lessee agrees that in any such
event, Lessor, without demand or performance or other demand, advertisement
or notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon Lessee or any other person (all and each
of which demands, advertisements and/or notices are hereby expressly waived),
may forthwith collect, receive, appropriate and realize upon the Collateral,
or any part thereof, and/or may forthwith sell, lease, assign, give option or
options to purchase or otherwise dispose of and deliver the Equipment (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange or broker's board or at any of
Lessor's offices or elsewhere at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit risk.
Lessee further agrees, at Lessor's request, to make the Equipment available
to Lessor at places which Lessor shall reasonably select, whether at Lessee's
premises or elsewhere. Lessor shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale (after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care, safekeeping or otherwise of any or all of the
Equipment or in any way relating to the rights or Lessor hereunder, including
attorneys' fees and legal expenses incurred by Lessor in the collection or
enforcement of its rights hereunder or in connection with any bankruptcy
proceeding involving Lessee and/or the Equipment, including relief from stay
motions, cash collateral disputes, assumption/rejection motions and disputes
concerning any proposed disclosure statement and plan proposed during any
such case) to the payment in whole or in part of the obligations of Lessee
hereunder, in such order as Lessor may elect and only after so applying such
net proceeds and after the payment by Lessor of any other amount required by
any provision of law (including Section 9-504(1)(c) of the Code), need Lessor
account for and pay the amount of surplus, if any, to Lessee. To the extent
permitted by applicable law, Lessee waives all claims, damages, and demands
against Lessor arising out of the repossession, retention or sale of the
Equipment. Lessee agrees that Lessor need not give more than 10 days' notice
(which notification shall be deemed given when mailed postage prepaid,
addressed to Lessee at its address set forth in above) of the time and place
of any public sale or of the time after which a private sale may take place
and that such notice is reasonable notification of such matters. In addition,
Lessee shall be liable for any and all unpaid rent and other amounts due
hereunder before or during the exercise of any of the foregoing remedies and
for all legal fees and other costs and expenses incurred by reason of the
occurrence of any Event of Default or the exercise of Lessor's remedies with
respect thereto, including all costs and expenses incurred in connection with
the placing of the Equipment in the condition required by this Section 11, an
Lessee shall be liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all amounts to which
Lessor is entitled.
(c) No remedy referred to in this Section 11 is intended to be exclusive
but each shall be cumulative and in addition to any other remedy referred to
herein or otherwise available to Lessor at law or in equity, and the exercise
or beginning of exercise by Lessor of any one or more of such remedies shall
not preclude the simultaneous or later exercise by Lessor of any or all such
other remedies. Lessor may exercise any other right or remedy which may be
available to it under applicable law or proceed by appropriate court action
to enforce the terms hereof or to recover damages for the breach hereof or to
rescind this Lease. No express or implied waiver by Lessor of an Event of
Default shall in any way be, or be construed to be, a waiver of any future or
subsequent Event of Default.
(d) To the extent permitted by applicable law, Lessee hereby waives
presentment, demand, protest or any notice, except as hereinabove provided in
this Section 11 (to the extent permitted by applicable law) of any kind in
connection with this Lease or any Collateral. No delay or failure on the part of
Lessor to exercise any power or right hereunder shall operate as a waiver
thereof, nor as an acquiescence in any default, nor shall any single or partial
exercise of any power or right preclude any other or further exercise thereof,
or the exercise of any other power or right. After the occurrence of any Default
or Event of Default, the acceptance by Lessor of any payment of rent or other
sum owed by Lessee pursuant hereto shall not constitute a waiver by Lessor of
such Default or Event of Default, regardless of Lessor's knowledge or lack of
knowledge thereof at the time of acceptance of any such payment, and shall not
constitute a reinstatement of this Lease if this Lease shall have been declared
in default by Lessor pursuant to this Section 11 hereof or otherwise, unless
Lessor shall have agreed in writing to reinstate the Lease and to waive the
Default or Event of Default any rights now or hereafter conferred by statute or
otherwise which may require Lessor to sell, or lease or otherwise use the
Equipment in mitigation of Lessor's damages or losses or which may otherwise
limit or modify any of Lessor's rights or remedies under this Lease.
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12. INDEMNITY. (a) Whether or not any time of Equipment has been subject to
this Lease, Lessee assumes liability for, and shall indemnify, protect, save
and keep harmless Lessor and its agents, servants, successors and assigns
(each, an "INDEMNITEE") from and against any and all liabilities,
obligations, losses, damages, disbursements, penalties, claims, judgments,
actions, suits, costs and expenses, including legal expenses, of whatsoever
kind and nature (each a "CLAIM"), imposed on, incurred by or asserted against
any Indemnitee, in any way relating to or arising out of the execution,
delivery, enforcement, performance or administration of this Lease. Lessor's
interest in the Equipment or the manufacture, purchase, acceptance,
rejection, ownership, possession, use, selection, delivery, lease, operation,
condition, sale, return or other disposition of the Equipment or any part
thereof (including, without limitation, latent or other defects, whether or
not discoverable by Lessee or any other person, any claim in tort for strict
liability and any claim for patent, trademark or copyright infringement)
including, without limitation, as a direct or indirect result of the
violation or alleged violation by Lessee of any Environmental Law or any law
or regulation relating to Hazardous Material treatment, storage, disposal,
generation and transportation, air, water and noise pollution, soil or ground
water contamination, the handling, storage or Release into the environment of
Hazardous Materials, or with respect to, or as a direct or indirect result of
the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission or Release from, properties utilized by Lessee in the
conduct of its business into or upon any land, the atmosphere, or any
watercourse, body of water or wetland, of any Hazardous Materials; PROVIDED,
HOWEVER, that Lessee shall not be required to indemnify any Indemnitee for
lessor liability arising from acts or events which occur after the Equipment
has been returned to Lessor in accordance with this Lease, or for loss or
liability or for loss or liability resulting solely from the willful
misconduct or gross negligence of such Indemnitee. Any payments made by
Lessee under this Section 12 shall be made on an After-Tax Basis. The
provisions of this Section 12 shall survive the expiration or earlier
termination of this Lease.
(b) Whether or not any of the transactions contemplated hereby shall be
consummated, Lessee agrees to pay (i) all reasonable out-of-pocket expenses
of Lessor in connection with the negotiation, preparation, execution and
delivery of this Lease and related documents, including, without limitation,
the reasonable fees and disbursements of counsel for Lessor, (ii) all fees
and taxes in connection with the recording of this Lease or any other
document or instrument required hereby; and (iii) all costs and expenses of
Lessor in connection with the enforcement of this Lease, including all legal
fees and disbursements arising in connection therewith and (iv) all license,
filing and registration fees and assessments and other charges, if any which
may be payable or determined to be payable in connection with the execution,
delivery and performance of the Lease or any modification hereof.
13. GRANT OF SECURITY INTEREST. As collateral security for the prompt and
complete payment and performance when due of all the obligations of Lessee
hereunder and under the Supplements and any other indebtedness and obligations
of any kind whatsoever of Lessee to Lessor, whether now existing or hereafter
incurred or from time to time reduced and thereafter increased ("OBLIGATIONS"),
and in order to induce Lessor to enter into this Lease, Lessee hereby grants to
Lessor a continuing first priority security interest in and to all of its
present and future right, title and interest in, to and under the Equipment and
all Proceeds thereof. In the event that this Lease is deemed to create a
security interest under the Code, any transfer from Lessor to Lessee of title to
any Equipment deemed to result therefrom shall obligate Lessee to pay to Lessor
the purchase price of such Equipment which shall be computed as follows: (a) at
any time prior to the end of the Lease Term, such purchase price shall equal the
sum of (i) all accrued and unpaid rent for such Equipment, (ii) the Stipulated
Loss Value of such Equipment computed as of the Rent Payment Date on or
immediately preceding the date of such payment and (iii) all other amounts then
due under this Lease; or (b) at the end of the Lease Term, such purchase price
shall equal the sum of (i) all unpaid rent for such Equipment, (ii) the purchase
option price and all other amounts provided for by the applicable Exhibit A and
(iii) all other amounts then due under this Lease. Until Lessee has paid to
Lessor the purchase price of such Equipment as described above, the obligations
of Lessee which are collateralized in this Section 19 shall include, without
limitation, the obligation of Lessee to pay to Lessor the purchase price of such
Equipment as described in this Section 13.
14. MISCELLANEOUS. (a) The Lease shall be binding upon and inure to the
benefit of Lessor and to the extent permitted by Subsection 9(c) hereof,
Lessee's permitted assigns and successors. The captions set forth herein are
for convenience only and shall not define or limit any of the terms hereof.
This Lease may be executed by the parties hereto on any number of separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument. All representations and warranties made in this Lease and
any certificates delivered pursuant hereto or thereto shall survive the
execution and delivery of this Lease and the lease of the equipment
hereunder, and the agreements contained in Sections 8 and 12 hereof shall
survive the expiration or earlier termination of this Lease.
(b) Lessee hereby irrevocably authorizes Lessor to correct typographical
and patent errors and to fill in such blanks as serial numbers and dates herein
and in the Supplements and any other Documents, and Lessee agrees that Lessor
may relay upon and act pursuant to this authorization until Lessor receives
written notice to the contrary.
(c) In the event that the Lessee shall fail to make any payment hereunder
or fails to promptly perform any of its obligations hereunder, Lessor may, at
its option, make such payment or perform or comply with such obligation for the
account of Lessee without thereby waiving such Default or Event of Default, and
any amount paid or expense (including reasonable attorneys' fees), penalty or
other liability incurred by Lessor in such payment or performance, together with
interest at the Late Charge Rate (but in no event greater than the higher
rate permitted by applicable law) until paid by Lessee to Lessor, shall be
payable by Lessee upon demand as additional rent for the Equipment. Lessee may
not terminate any Supplement without the written consent of Lessor.
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(d) Any provision of this Lease which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Lessee hereby
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect, and Lessee further waives any rights now or
hereafter conferred by statute or otherwise which limit or modify any of
Lessor's rights under this Lease.
(e) No delay or failure on the part of Lessor to exercise any power or
right hereunder shall operate as a waiver hereof, nor as an acquiescence in any
default, nor shall any single or partial exercise of any power or right preclude
any other or further exercise thereof, or the exercise of any other power or
right. After the occurrence of any Default or Event of Default, the acceptance
by Lessor of any payment of rent or other sum owed by Lessee pursuant hereto
shall not constitute a waiver by lessor of such Default or Event of Default,
regardless of Lessor's knowledge or lack of knowledge thereof at the time of
acceptance of any such payment, and shall not constitute a reinstatement of this
Lease if this Lease shall have been declared in default by Lessor pursuant to
Section 11 hereof or otherwise, unless Lessor shall have agreed in writing to
reinstate the Lease and to waive the Default or Event of Default.
(f) THIS LEASE TOGETHER WITH EXHIBIT A, ANY SUPPLEMENTS EXECUTED PURSUANT
HERETO CONTAIN THE COMPLETE, FINAL AND EXCLUSIVE STATEMENT OF THE TERMS OF THE
AGREEMENT BETWEEN LESSEE AND LESSOR AND NEITHER THIS LEASE, NOR ANY TERMS
HEREOF, MAY BE CHANGED, WAIVED, DISCHARGED OR TERMINATED ORALLY, BUT ONLY BY AN
INSTRUMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT OF A CHANGE,
WAIVER, DISCHARGE OR TERMINATION IS SOUGHT.
(g) THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. LESSEE HEREBY
IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION IN CONNECTION WITH THIS
LEASE MAY BE INSTITUTED IN THE COURTS OF THE STATE OF NEW YORK, IN THE COUNTY OF
NEW YORK OR THE UNITED STATES COURTS FOR THE SOUTHERN DISTRICT OF NEW YORK, AS
LESSOR MAY ELECT, AND BY EXECUTION AND DELIVERY OF THIS LEASE, LESSEE HEREBY
IRREVOCABLY ACCEPTS AND SUBMITS TO, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
THE NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT, AND TO ALL PROCEEDINGS IN SUCH
COURTS. LESSEE AND LESSOR ACKNOWLEDGE THAT JURY TRIALS OFTEN ENTAIL ADDITIONAL
EXPENSES AND DELAYS NOT OCCASIONED BY NONJURY TRIALS. LESSEE AND LESSOR AGREE
AND STIPULATE THAT A FAIR TRIAL MAY BE HAD BEFORE A STATE OR FEDERAL JUDGE BY
MEANS OF A BENCH TRIAL WITHOUT A JURY. IN VIEW OF THE FOREGOING, AND AS A
SPECIFICALLY NEGOTIATED PROVISION OF THIS LEASE, LESSEE AND LESSOR HEREBY
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION ARISING UNDER THIS LEASE, OR THE TRANSACTIONS RELATED HERETO, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND LESSEE AND LESSOR HEREBY AGREE AND CONSENT THAT LESSEE OR LESSOR
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Lease to be
duly executed as of the day and year first above written.
THE CIT GROUP/EQUIPMENT NATIONAL FIBERSTOK CORPORATION
FINANCING, INC., a New York corporation a Delaware corporation
By: /s/ By: /s/ RM Miklas
---------------------------------- -----------------------------
Title: VP Title: PRESIDENT & CEO
-------------------------------- --------------------------
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EXHIBIT A TO
MASTER LEASE AGREEMENT
dated as of 12-21, 1995
between THE CIT GROUP/EQUIPMENT FINANCING, INC., as Lessor
and NATIONAL FIBERSTOK CORPORATION, as Lessee
1. MAXIMUM COST OF EQUIPMENT TO BE LEASED HEREUNDER AND PAID FOR BY LESSOR: the
lesser of (a) $2,563,000.00 and (b) the sum of an amount which is equal to
86.95652% of the Orderly Liquidation Value of the Equipment plus the Escrow
Amount (as defined in Schedule B to Escrow Agreement) (such Escrow Amount not to
exceed $400,000.00), such Orderly Liquidation Value to be determined by
agreement of Lessor and Lessee, or, failing such agreement, pursuant to an
appraisal, at Lessee's expense, done by an independent appraiser satisfactory to
Lessor and Lessee as of the Commencement Date of the Lease with respect to such
Equipment.
2. EXPIRATION OF LESSOR'S COMMITMENT TO LEASE HEREUNDER: March 29, 1996
3. MAXIMUM NUMBER OF SUPPLEMENTS LESSOR WILL ACCEPT: ________
4. DETERMINATION OF RENT: (i) Lessee shall pay to Lessor rent for each item of
Equipment in sixty (60) consecutive monthly installments, with the first
installment of rent with respect to such item of Equipment being due thirty (30)
days after the Commencement Date with respect to such item of Equipment and
succeeding installments being due on the same date of each month thereafter.
Each installment of rent with respect to the items of Equipment specified in a
Supplement shall be an amount equal to the product of (i) 1.835806%, adjusted
upward or downward (as the case may be), in order to maintain the Lessor's
economics, for each basis point movement in the Current Treasury Rate from the
Base Treasury Rate and (ii) the Advance Amount applicable to such items of
Equipment, as set forth in the Supplement covering such Equipment. The rent
shall be fixed on the third Business Day prior to the Commencement Date and
shall be fixed throughout the Lease Term as of such date. Each installment of
rent shall be payable at such address as Lessor may designate.
5. LEASE TERM: The term of the lease of each ratable portion of the aggregate
value of Equipment leased hereunder shall commence on the Commencement Date
specified in the Supplement pertaining thereto (the "COMMENCEMENT DATE"), and
unless earlier terminated pursuant to the provisions hereof, shall continue for
a term of sixty (60) months from such Commencement Date.
6. DEFINITIONS. As used in the Master Lease Agreement, the following terms shall
have the following defined meanings (applicable to both singular and plural
forms), unless the context otherwise requires:
"ADVANCE AMOUNT": with respect to any item of Equipment, the amount paid for
such item of Equipment by Lessor pursuant to Section 1 above.
"AFFILIATE": with respect to any Person, any Person which, directly or
indirectly, controls, is controlled by, or is under common control with such
Person. For purposes of this definition, "control" of a Person means the power,
direct or indirectly, to vote 10% or more of the securities having voting power
for the election of directors of such Person, or otherwise to direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"AFTER-TAX BASIS": with respect to any payment received or deemed to have
been received by any Person, the amount of such payment supplemented by a
further payment to that Person so that the sum of the two payments, after
deduction of all Taxes and other charges resulting from the receipt (actual or
constructive) of such two payments imposed under any Federal, state or local law
or of any taxing authority or government subsidiary of any foreign country or by
any governmental authority or any taxing authority of any thereof, shall be
equal to such payment received or deemed to have been received; PROVIDED, that
for purposes of determining the amount of Taxes required to be paid by the
recipient of any payment in respect of the receipt thereof, it shall be assumed
that Federal, state and local taxes are payable by the recipient at the highest
marginal statutory rates in effect for the relevant period.
"BASE TREASURY RATE": 5.70%.
"BUSINESS DAY": a day other than a Saturday, Sunday or legal holiday under
the laws of the State of New York.
<PAGE>
"CODE": the Uniform Commercial Code as from time to time in effect in any
applicable jurisdiction.
"COLLATERAL": the Equipment and the Proceeds thereof.
"CURRENT TREASURY RATE": with respect to each item of Equipment shall mean
the yield to maturity for the U.S. Treasury security having a remaining term to
maturity closest to 3 years as at the close of business three (3) Business Days
prior to the Commencement Date of each item of Equipment as reported on page 5
("U.S. Treasury and Money Markets") of the information ordinarily provided by
Telerate Systems Incorporated as of the close of business on the third Business
Day prior to the Commencement Date.
"DEFAULT": any event which with notice, lapse of time, or both would
constitute an Event of Default.
"DOCUMENTS": the Lease, any Supplement, and any and all documents,
instruments, certificates and agreements executed by Lessee or any other Person
from time to time in connection with the Lease.
"ENVIRONMENTAL LAWS": the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, any so-
called "Superfund" or "Superlien" law, the Toxic Substances Control Act, or any
other federal, state or local statute, law ordinance, code rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of
conduct concerning any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect.
"EQUIPMENT": any and all items of property which are listed on EXHIBIT A to
any Supplement, together with all now owned or hereafter acquired accessories,
parts, repairs, replacements, substitutions, attachments, modifications,
additions, improvements, upgrades and accessions of, to or upon such items of
property.
"ESCROW ACCOUNT": that certain Escrow Account as such term is defined in
the Escrow Agreement.
"ESCROW AGREEMENT": that certain Escrow Agreement by and among McCown
DeLeeuw and Co., II, L.P., McCown Deleeuw Associates, L.P., Lessor and Norwest
Bank Colorado, National Association.
"EVENT OF LOSS": with respect to any item of Equipment, (i) the actual or
constructive loss or loss of use thereof, due to theft, destruction, damage
beyond repair or to an extent which makes repair uneconomical or rendition
hereof permanently unfit for normal use from any reason who, or (ii) the
condemnation, confiscation or seizure thereof, or requisition of title thereto,
or use thereof, by any Person.
"GUARANTOR": DEC International, Inc., McCown Deleeuw and Co., II, L.P. and
McCown, DeLeeuw Associates, L.P., and any other guarantor of Lessee's
Obligations hereunder.
"GUARANTY": each Guaranty Agreement, in form and substance satisfactory to
Lessor, executed and delivered to Lessor by any Guarantor.
"HAZARDOUS MATERIALS": any pollutant or contaminant defined as such in (or
for the purposes of) any Environmental Laws including, but not limited to,
petroleum, any radioactive material, and asbestos in any form or condition.
"LATE CHARGE RATE": a rate per annum equal to the greater of (i) 2% above
the Prime Rate or (ii) 18%, but in no event to exceed the highest rate permitted
by applicable law.
"LEASE": "hereof", "hereto", "hereunder" and words of similar meaning:
the Master Lease Agreement of even date herewith between Lessee and Lessor,
including this Exhibit A, any Supplement and any other rider, schedule and
exhibit executed by Lessee and Lessor in connection herewith, as from time to
time amended, modified or supplemented.
"LEASE TERM": with respect to any item of Equipment, the term of the lease
of such item of Equipment hereunder specified in Section 6 of the EXHIBIT A.
"LESSOR'S LIEN": any mortgage, pledge, lien, security interest, charge,
encumbrance, financing statement, title retention or any other right or claim of
any Person claiming through or under Lessor, not based upon or relating to
ownership of the Equipment of the lease thereof hereunder.
"LIEN": any mortgage, pledge, lien, security interest charge,
encumbrance, financing statement, title retention or any other right or claim
of any Person, including, without limitation, any Environmental Lien, but
excluding any Lessor's Lien.
"LOSS PAYMENT DATE": with respect to any item of Equipment, the date on
which payment, as described in Subsection 3(a) of the Lease, is made to Lessor
by Lessee as the result of an Event of Loss with respect to such item.
"ORDERLY LIQUIDATION VALUE": the value of an item of Equipment, in terms of
money, when sufficient time is available properly to advertise and sell
piecemeal lots thereof to a buyer who is under no compulsion to buy by a seller
who is compelled to sell over a reasonable period of time.
"PARENT COMPANY": any Person having beneficial ownership of 25% or more of
Lessee's shares of voting stock.
"PERSON": an individual, partnership, corporation, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
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<PAGE>
"PRIME RATE": the rate publicly announced from time to time as the prime
rate of Chemical Bank and all successors or assigns thereof ("CB"), the Prime
Rate shall be determined by Lessor at the close of business on the 15th day of
each calendar month (if the 15th day is not a Business Day then on the first
preceding Business Day), and shall become effective as of the first day of the
calendar month succeeding such determination and shall continue in effect to,
and including the last day of said calendar month. The Prime Rate is not
intended to be the lowest rate of interest charged by CB in connection with
extensions of credit to debtors.
"PROGRESS PAYMENT AGREEMENT": the agreement between Lessor and Lessee
pursuant to which Lessor agrees to make progress payments to vendors in respect
of Equipment not yet subject to the Lease but intended to be subject thereto.
"RELEASE": shall mean, as to any Person, any intentional or unintentional
release, abandonment, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, dumping, burning, thermal destruction, leaching
or migration in or into the indoor or outdoor environment or on, onto, into or
out of any property owned or operated by such Person, including the movement of
any Hazardous Materials or any waste, pollutant or other substance regulated or
forming the basis of liability under any Environmental Law, including asbestos-
containing materials, any special waste, pesticides, polychlorinated biphenyls
("PCBs"), petroleum or petroleum-derived substance or waste, or any constituent
of such substance or waste through or in the air, soil, surface water, ground
water or property. "Release" shall in any event include any "release" as
defined in Section 101(22) of CERCLA, as amended from time to time, and the
rules and regulations promulgated thereunder from time to time.
"RENT PAYMENT DATE": each date on which an installment of rent is due and
payable pursuant to Section 5 of this EXHIBIT A.
"STIPULATED LOSS VALUE": with respect to any item of Equipment, the amount
determined by multiplying the aggregated Advance Amounts with respect to such
item of Equipment by the percentage set forth in SCHEDULE 2 to the Supplement
pertaining thereto opposite the applicable Rent Payment Date: PROVIDED that any
determination of Stipulated Loss Value as of the date occurring after the final
Rent Payment Date with respect to such item of Equipment, shall be made as of
such final Rent Payment Date.
"SUPPLEMENT": each supplement executed and delivered by Lessee pursuant the
Lease, satisfactory in form and substance to Lessor.
"TAX" or "TAXES": any and all fees (including, without limitation,
documentation, recording, license and registration fees), taxes (including,
without limitation, income, gross receipts, sales, use, property (personal and
real, tangible and intangible), intangibles, excise and stamp taxes), levies,
imposts, duties, charges, assessments or withholdings of any nature whatsoever,
general or special, ordinary or extraordinary, together with any and all
penalties, fines, additions and interest thereon.
"TERMINATION VALUE": with respect to any item of Equipment the amount
determined by multiplying the Advance Amount of such item of Equipment by the
percentage set forth in Schedule 3 to the Supplement pertaining thereto opposite
the applicable Rent Payment Date.
7. NOTICES. All notices, demands and other communications hereunder shall be in
writing, and shall be deemed to have been given or made when sent by facsimile
transmission with telephonic confirmation of receipt, sent by hand or by a
nationally recognized overnight courier against receipt, or deposited in the
United States mail, first class postage prepaid, addressed as follows or to such
other address as any of the following persons may from time to time designate in
writing to the other persons listed below:
THE CIT GROUP/EQUIPMENT NATIONAL FIBERSTOCK CORPORATION
FINANCING, INC., 5775 Peachtree Dunwoody Road
1211 Avenue of the Americas Suite C-150
21st Floor Atlanta, Georgia 30342
New York, New York 10036
Telecopier No. (212) 536-1385 Telecopier No._________________
Attention: Senior Vice President Credit Attention: ____________________
8. COMMITMENT FEE. Lessor acknowledges receipt from Lessee of a commitment
fee in the amount of $28,920.00 (the "COMMITMENT FEE"). Lessee agrees that
$13,000 of the Commitment fee is in all events non-refundable. Lessor agrees
to refund to Lessee after the expiration of the commitment period hereunder
and completion by Lessor of all
3
<PAGE>
follow-up matters related to the transactions contemplated by the Lease, as the
refundable portion of the Commitment Fee, the amount determined in accordance
with the following formula and the following proviso:
Refund = $15,920.00 Aggregate Advance Amounts with respect to all
X Equipment leased hereunder - not to exceed
the amount of Lessor's commitment
---------------------------------------------
Total amount of Lessor's commitment
PROVIDED, however, that such refund shall be net of any out-of-pocket fees,
costs, disbursements and expenses incurred by Lessor in connection with the
transactions contemplated hereby. Lessee agrees that the difference, if any,
between the amount of the Commitment Fee and the amount determined in accordance
with the foregoing formula and proviso shall be retained by Lessor.
THE PROVISIONS SET FORTH IN THIS EXHIBIT A ARE INCORPORATED IN AND MADE A PART
OF THE MASTER LEASE AGREEMENT BETWEEN LESSOR AND LESSEE DATED AS OF 12-4, 1995.
THE CIT GROUP/EQUIPMENT FINANCING, NATIONAL FIBERSTOK CORPORATION
FINANCING, INC., a New York corporation a Delaware corporation
By: By: /s/RM Miklas
----------------------------------- ---------------------------
Title: VP Title: PRESIDENT & CEO
-------------------------------- ------------------------
4
<PAGE>
ASSIGNMENT OF PURCHASE ORDERS
-----------------------------
WHEREAS, NATIONAL FIBERSTOK CORPORATION (the "Company") has executed and
delivered the purchase orders listed in Exhibit I attached hereto, to the
vendors shown in such Exhibit I (the "Purchase Orders"), which Purchase Orders
cover the property described in such Exhibit I (the "Equipment:); and
WHEREAS, the Company desires to assign to THE CIT GROUP/EQUIPMENT
FINANCING, INC. ("CIT") certain of its rights and obligations under the Purchase
Orders so that CIT might purchase and take title to the Equipment in the
Company's stead.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. The Company (a) represents and warrants that the Purchase Orders
constitute the entire understanding of the parties thereto with respect to the
purchase and sale of the Equipment covered thereby; (b) hereby assigns to CIT
all of its rights under the Purchase Orders; (c) represents and warrants that
neither notice to nor consent from the respective vendor is required in
connection with the execution, delivery and performance of this Assignment or
for the validity or enforceability of this Assignment.
2. Pursuant to this Assignment, CIT shall, at such time as the Equipment is
subjected to a lease between the Company and CIT, become responsible for payment
of the purchase price for the Equipment; provided, however, that the Company
hereby agrees with CIT that the Company shall continue to be responsible for the
actual performance of all other obligations under the Purchase Orders and the
Company agrees to hold harmless and indemnify CIT from all liability, loss,
damage, and expense arising from or directly or indirectly attributable to such
obligations.
3. This Assignment is between the Company and CIT and shall not inure to
the benefit of or be enforceable by any other party.
IN WITNESS WHEREOF, the parties have duly executed this Assignment by their
authorized representatives as of the date opposite their respective signatures.
NATIONAL FIBERSTOK CORPORATION THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ RM Miklas By:
----------------------------- ------------------------------
Title: PRESIDENT & CEO Title: VP
-------------------------- ---------------------------
Date: 12-21-95
----------------------------
<PAGE>
EXHIBIT I
---------
Exhibit I to that certain Assignment of Purchase Orders between THE CIT
GROUP/EQUIPMENT FINANCING, INC. and NATIONAL FIBERSTOK CORPORATION.
Purchase
Vendor Qty. Order No. Model Description
------ ---- --------- ----- -----------
<PAGE>
SECRETARY'S CERTIFICATE OF GUARANTOR
I, Scott P. Ebert, DO HEREBY CERTIFY to THE CIT/GROUP/EQUIPMENT
FINANCING, INC. that I am the Secretary of Assistant Secretary of DEC
INTERNATIONAL, INC., a corporation duly organized and existing under the laws
of the State of Delaware (the "Corporation"); that I am the keeper of the
corporate records, including, without limitation, the Charter, By-laws and
the minutes of the meetings of the Board of Directors of the Corporation;
that the following is a true, accurate and compared transcript of the
resolutions contained in the Minute Book of the Corporation, duly adopted by
the Board of Directors on Aug. 1, 1995, by unanimous written consent thereof
or at a meeting of the Board of Directors duly held thereon, at which time a
quorum was present and acted throughout; that the Corporation was authorized
to transact the business hereinafter described, and that said resolutions
have not been amended or rescinded, and are in full force and effect:
"WHEREAS, the Corporation will benefit by one or more loans, now, or
hereafter made by The CIT/Group Equipment Financing, Inc. ("CIT") to National
Fiberstok Corporation (the "Debtor"); and
WHEREAS, the Board of Directors has determined that it is to the benefit
and in the direct interest of the Corporation to guarantee the obligations of
Debtor arising out of the aforesaid loan or loans.
NOW THEREFORE, be it
RESOLVED, that any of the officers of the Corporation or their duly elected
or appointed successors in the office be and they are hereby authorized and
empowered in the name of and on behalf of the Corporation to guarantee to CIT
the obligations of Debtor in connection with said loan or loans; and be it
further
RESOLVED, that any officer of this Corporation be and is hereby authorized
to execute on behalf of the Corporation a guaranty of Debtor's obligations to
CIT and any and all other documents required by CIT and containing such terms
and conditions as such officer deems advisable; and be it further
RESOLVED, that all that any such officer shall have done or may do in
connection with the matters set forth above is hereby ratified, confirmed and
approved; and be it further
RESOLVED, that the foregoing resolutions shall remain in full force and
effect until written notice of their amendment or rescission shall have been
received by CIT and that receipt of such further notice shall not affect any
action taken prior thereto; and be it further
RESOLVED, that the Secretary of Assistant Secretary be and is hereby
authorized and directed to certify to CIT the foregoing resolutions and that the
provisions thereof are in conformity with the Charter an By-laws of the
Corporation."
I DO FURTHER CERTIFY that there are no restrictions imposed by the Charter
or By-laws of the Corporation restricting the power or authority of the Board of
Directors of the Corporation to adopt the foregoing resolutions or upon the
Corporation or its officers to act in accordance therewith.
I DO FURTHER CERTIFY that the following are names and specimen signatures
of officers of the Corporation empowered and authorized by the above
resolutions, each of whom has been duly elected to hold and currently holds the
office of the Corporation set forth opposite such officer's name:
NAME OFFICE SIGNATURE
---- ------ ---------
R.M.Miklas President /s/ RM Miklas
-------------
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of Dec., 1995.
/s/ Scott P. Ebert
-------------------------------
SECRETARY OR ASSISTANT SECRETARY OF
DEC INTERNATIONAL, INC.
"SEAL"
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