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EXHIBIT 10(ii)d4
GATX Technology Services Corporation
MASTER LEASE AGREEMENT
NO. 1976
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[GATX CAPITAL LOGO]
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This Master Lease Agreement ("Lease Agreement") is made as of the 15th day of
March 2000, between GATX TECHNOLOGY SERVICES CORPORATION of ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Lessor") and ▇▇▇▇.▇▇▇, INC. having its
principal offices at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Lessee").
TERMS AND CONDITIONS
1. DEFINITIONS.
"Lease Order" shall refer to that document wherein Lessor agrees to lease
to Lessee and Lessee agrees to lease from Lessor certain Equipment. Each Lease
Order shall be signed and submitted by Lessee to Lessor and, when so submitted,
shall constitute a firm irrevocable offer by Lessee to lease the Equipment
identified on the Lease Order subject to the terms of the Lease Order and this
Lease Agreement which, if accepted by Lessor by signing and returning to Lessee
one copy of the same within thirty (30) days of the date of the Lease Order
shall be deemed a duly executed and in force Lease Order.
"Initial Term" shall mean the period beginning on the Commencement Date
and continuing for the number of months set forth in each Lease Order.
"Equipment" shall mean the equipment identified in a duly executed and in
force Lease Order and all related replacements, parts, additions, software,
accessories, alterations and repairs incorporated therein or affixed thereto,
together with any items included on the related Lease Order including, but not
limited to, training, maintenance, license agreements, etc.
"Software" shall mean a computer program in any data, program description,
media or supporting documentation provided by a licensor as part of the
transaction.
"Delivery and Acceptance Date" shall mean the date that the Equipment
listed on the related Lease Order is accepted at Lessee's premises, such date
being specified in the related Delivery and Acceptance Receipt. Unless expressly
agreed otherwise by the parties or Lessee notifies Lessor in writing that the
Equipment has been rejected, the Equipment must be accepted within seven (7)
days after the delivery date, and if not accepted by such time the Delivery and
Acceptance Date shall be deemed to be seven (7) days after the delivery date.
"Commencement Date" means, as to the Equipment designated on any Lease
Order, where the Delivery and Acceptance Date for such Equipment falls on the
first day of the month, that date, or, in any other case, the first day of the
month or calendar quarter if so provided in the Lease Order, following the
Delivery and Acceptance Date, unless otherwise agreed by the parties.
"Progress Payment Rider" shall refer to that document wherein the seller
of the Equipment requires payment prior to the commencement of a Lease Order and
Lessee agrees to make payments prior to the commencement of a Lease Order.
2. NET LEASE
THIS LEASE AGREEMENT TOGETHER WITH EACH LEASE ORDER CONSTITUTES A NET
LEASE AND LESSEE'S AGREEMENT TO PAY RENT AND ANY OTHER OBLIGATIONS HEREUNDER AND
UNDER ANY APPLICABLE LEASE ORDERS SHALL BE ABSOLUTE AND UNCONDITIONAL AND SHALL
NOT BE SUBJECT TO ANY ABATEMENT, DEDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM,
INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER. Lessor and
Lessee will enter into one or more Lease Orders pursuant to this Lease
Agreement. Subject to the terms and conditions of this Lease Agreement and a
duly executed and in force Lease Order. Lessor agrees to lease to Lessee and
Lessee agrees to lease from Lessor the Equipment described in each Lease Order.
This Lease Agreement is a master lease and each Lease Order is subject to the
terms of this Lease Agreement. Each Lease Order shall be treated as a separate
lease with respect to the Equipment covered by such Lease Order. In the event of
any conflict between the language of this Lease Agreement and any Lease Order
entered into pursuant hereto, the language of the Lease Order shall prevail with
respect to that Lease Order and the Equipment covered thereby. NO EQUIPMENT
SHALL BE DEEMED LEASED HEREUNDER UNLESS IT IS THE SUBJECT OF A DULY EXECUTED AND
IN FORCE LEASE ORDER.
3. TERM.
The Term of this Lease Agreement shall commence on the date set forth
above and shall continue in effect for the initial Term of any Lease Order and
any extended term as provided herein. The term of each lease as to any items of
Equipment designated on any Lease Order shall commence on the Delivery and
Acceptance Date for such Equipment, and shall continue for the initial Term and
any extended term provided herein.
RENTAL. Rental shall begin to accrue on the Delivery and Acceptance Date and
Lessee shall pay to Lessor, as rental for the Equipment during the Initial
Term, the rent set forth in the respective Lease Order, which shall be due and
payable in advance on the first day of each calendar month or quarter as
specified in the Lease Order during such Initial Term plus any extended term
(each date being hereinafter called a "Rent Payment Date"), unless modified by
a Progress Payment Rider. If the Delivery and Acceptance Date of any Equipment
shall be other than the first day of the month, Lessee shall make an initial
payment based on the Delivery and Acceptance Date in an amount equal to the
fraction of the rent as specified in the dated Lease Order for each day from
the Delivery and Acceptance Date to (but not including) the Commencement Date.
Rent shall be paid to Lessor at the address set forth above or at each other
place as Lessor shall designate in writing, or if to an Assignee of Lessor, at
such place as such Assignee shall designate in writing, and shall be paid free
and clear of all claims, demands or setoffs against Lessor or such Assignee.
Whenever any payment by Lessee (of rent or otherwise) is past due hereunder for
more than seven (7) days, Lessee shall pay to Lessor, as additional rent,
interest on such amount until and including the date of payment, at the lesser
of 1.5% per month or the maximum allowable rate of interest permitted by law.
TAXES. Lessee covenants to promptly report, file, pay and indemnify and hold
Lessor harmless with respect to any and all Taxes, as hereinafter defined. The
term "Taxes" as used herein shall mean all taxes (including sales, use, excise,
personal property, ad valorem, stamp, documentary and other taxes), and all
other governmental fees, charges and assessments general or special) due,
assessed or levied by any foreign, federal, state, county or local government
or taxing authority, and any penalties, fines or interest thereon, which are
imposed against, upon or relating to the Equipment or the use, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, shipment, transportation, delivery, ownership or operation thereof, and
on or relating to the lease thereof including the rentals or receipts due under
this Lease Agreement, but shall not include any taxes solely based upon or
measured by the income of Lessor. Lessee will, upon request by Lessor, submit
Lessor written evidence of Lessee's payment of all Taxes due hereunder. Any tax
returns filed by Lessee shall show Lessor as the owner of the Equipment.
INSTALLATION, USE, MAINTENANCE AND INSPECTION OF EQUIPMENT.
(a) Lessee shall pay all installation, transportation, rigging, unpacking
and repacking, drayage, handling and insurance charges on the Equipment upon
delivery to Lessee and upon delivery to Lessor upon the expiration or earlier
termination of the Initial Term or any extension thereof, to such destination as
is specified by Lessor within the continental United States of America ("Return
Location"). Lessee shall furnish appropriate installation facilities for the
Equipment. Lessee represents and warrants that (i) it has selected all Equipment
based on its own judgment and expressly disclaims any reliance upon statements
made by Lessor; and (ii) as of the Delivery and Acceptance Date, as between
Lessee and Lessor, Lessee shall have unconditionally accepted such Equipment,
Lessee shall execute and deliver to Lessor a Delivery and Acceptance Receipt
which shall be conclusive evidence that, without limitation, Lessee sends the
Equipment complete, in good working order and condition and satisfactory for its
requirements.
(b) Lessee shall comply with all laws, regulations and orders of any
governmental branch or agency which relates to the installation, use, possession
or operation of the Equipment, and shall use the Equipment in the regular course
of its business only, within its normal capacity, without abuse.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Tel: 813/▇▇▇-▇▇▇▇ Fax: 813/▇▇▇-▇▇▇▇
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(c) Lessee, at its own expense, shall maintain the Equipment in good operating
condition, repair and appearance, and protect the same from deterioration other
than normal wear and tear, and shall enter into, and keep in force a
maintenance agreement with the manufacturer of the Equipment. Lessee shall
cause the manufacturer to keep the Equipment in good and efficient working
order, less normal wear and tear in full compliance and in accordance with the
provisions of such maintenance agreement and shall furnish evidence of such
agreement to Lessor upon request. During Lessee's normal business hours, Lessee
shall provide the manufacturer's field engineering representatives with access
to the equipment to install engineering changes necessary to keep the Equipment
at currently announced engineering change levels. Upon deinstallation of any
Equipment, Lessee shall provide Lessor evidence from the manufacturer stating
the Equipment is at currently announced engineering change levels and is
qualified for the manufacturer's maintenance agreement. The Equipment shall be
returned in the same operating order, repair, condition and appearance as on
the Delivery and Acceptance Date, reasonable wear and tear excepted.
(d) During Lessee's normal business hours, upon prior written notice to
Lessee and subject to Lessee's reasonable security procedures, Lessee shall
permit Lessor or its designee to inspect the Equipment, Lessee's equipment log
and maintenance records.
(e) Prior to delivery of any Equipment, the obligations of Lessor may be
suspended to the extent that Lessor is hindered or prevented from complying
therewith because of labor disturbances, acts of God, fire, storms, accidents,
failure of the manufacturer to deliver any Equipment, governmental regulations
or any cause whatsoever not within the control of Lessor.
7. RELOCATION. Lessee shall not move or permit to be moved any Equipment from
the location set forth in the applicable Lease Order without the prior written
consent of Lessor, which shall not be unreasonably withheld; provided, however,
in no event shall any Equipment be moved to a location outside the United
States of America. Risk of loss and all costs and expenses incurred in
connection with any movement of Equipment shall be the responsibility of Lessee.
8. ALTERATIONS AND MODIFICATIONS. Lessee shall not make modifications,
alterations or additions to Equipment (other than normal operating accessories
or controls) without the prior written consent of Lessor, which consent shall
not be unreasonably withheld. Notwithstanding the foregoing, Lessee shall be
entitled to acquire and install, at Lessee's expense, such additional features
or options ("Modifications") which (i) will not impair the originally intended
function or use of the Equipment in which the Modifications are installed, (ii)
will not require removal of any part of the Equipment, (iii) will not interfere
with Lessee's ability to obtain and maintain the maintenance contract required
by Paragraph 6(c), and (iv) the addition of which will not have an adverse
impact upon the value of the underlying Equipment or Lessor's rights therein.
Such Modifications shall be of the type which are readily installed and removed
without damage to the Equipment so as to restore the Equipment to the condition
in which it existed prior to the installation of such Modifications provided,
however, that if Lessor so agrees in writing, Lessee shall not be required to
remove such Modifications. Any Modifications not so removed shall become the
property of Lessor. All Modifications must qualify for the manufacturer's
maintenance agreement and be maintained in accordance with Paragraph 6(c)
hereof. Lessee hereby grants to Lessor the right and opportunity to first
submit or match the last proposal for the lease, financing or supply of any
Modification.
9. SOFTWARE. Lessee and Lessor acknowledge that the Equipment may contain or
include a description of certain Software in which Lessor and Lessee may have
no ownership or other proprietary rights. Where required by the Software owner,
manufacturer or distributor, Lessee shall enter into a license or other
agreement for the use of such Software. Any Software agreement shall be
separate and distinct from this Master Lease and any Lease Order, and Lessor
and Assignee shall not have any obligations thereunder, but shall have the
right to require Lessee to terminate Lessee's use of the Software if an Event
of Default shall occur and shall be continuing hereunder. In the event rent
specified in a Lease Order includes an amount attributable to the financing by
Lessor of Lessee's fee for use of Software, Lessee agrees that such amount
shall be deemed rent and subject to all the provisions of this Lease Agreement.
Upon termination of this Lease Agreement for reasons other than default, Lessee
hereby assigns to Lessor, to the extent assignable, any and all rights and
obligations relating to software and applicable software licenses.
10. OWNERSHIP, SECURITY INTEREST. If is expressly understood that the Equipment
is, and shall at all times remain, personal property of Lessor. Lessee shall
have no right, title or interest in the Equipment except as expressly provided
herein. If requested by Lessor, Lessee will obtain, prior to delivery of any
Equipment, a certificate satisfactory to Lessor from all parties with a real
property interest in the premises where the Equipment shall be located, waiving
any claim with respect to the Equipment. If Lessor supplies Lessee with labels,
plates or other markings stating that the Equipment is owned by Lessor, Lessee
shall attach same in a prominent place on the Equipment. Lessee agrees to
execute Uniform Commercial Code financing statements and any and all additional
instruments requested by Lessor to perfect the interest of Lessor, its
successors or assigns in this Master Lease, any Lease Order, the payments due
hereunder or the Equipment. Lessee authorizes Lessor to file a copy of the
Master Lease or any Lease Order or invoice as a financing statement. Lessee
agrees to reimburse Lessor for all recording and filing fees.
11. ASSIGNMENT OR SUBLETTING BY LESSEE. LESSEE SHALL NOT ASSIGN, TRANSFER,
PLEDGE OR OTHERWISE DISPOSE OF THIS LEASE AGREEMENT, ANY LEASE ORDER OR ANY OF
ITS RIGHTS THEREUNDER NOR SUBLEASE OR LEND ANY OF THE EQUIPMENT TO ANY OTHER
PERSON WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. ANY PURPORTED ASSIGNMENT,
TRANSFER, PLEDGE OR OTHER DISPOSITION OF THIS LEASE AGREEMENT, ANY LEASE ORDER
OR ANY OF LESSEE'S RIGHTS THEREUNDER, OR ANY PURPORTED SUBLEASE OR LENDING OF
THE EQUIPMENT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, AT LESSOR'S OPTION,
SHALL BE VOID AND OF NO EFFECT. FOR THE PURPOSES OF THIS PARAGRAPH 11, ANY
PURPORTED SALE OR OTHER TRANSFER OF A CONTROLLING OWNERSHIP INTEREST OF LESSEE
(WHETHER IN ONE TRANSACTION OR SERIES OF RELATED TRANSACTIONS) SHALL BE DEEMED
AN ASSIGNMENT OF THE LESSEE'S RIGHTS HEREUNDER REQUIRING THE PRIOR WRITTEN
CONSENT OF THE LESSOR. As to any permitted assignment or sublease, the
following conditions shall apply:
(a) Lessee shall remain fully liable for all payments due under each
Lease Order and remain the primary obligor for all remaining obligations under
this Lease Agreement and any Lease Orders hereunder.
(b) Lessee shall give Lessor at least thirty (30) days written notice of
the location of the Equipment and the identity of the assignee or sublessee
prior to the installation at assignee's or sublessee's premises. Lessee shall be
responsible for obtaining any and all financing statements and other
documentation reasonably requested by Lessor.
(c) Any sublessee's interest in any permitted sublease hereunder shall be
subordinate to the interests of Lessor or any Assignee of Lessor.
12. DISCLAIMER OF WARRANTIES.
(a) LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE
EQUIPMENT, NOR THE AGENT OF THE MANUFACTURER AND THAT LESSOR HAS MADE NO
REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, EXPRESS OR IMPLIED, AS TO
ANY MATTER WHATEVER, INCLUDING BUT NOT LIMITED TO THE DESIGN, CONDITION OR
PERFORMANCE OF THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE EQUIPMENT.
FURTHER, LESSOR MAKES NO WARRANTIES WITH RESPECT TO THE CONFORMITY OF THE
EQUIPMENT TO THE PROVISIONS AND SPECIFICATIONS OF ANY LAW, RULE, REGULATION,
CONTRACT OR PURCHASE ORDER, OR WITH RESPECT TO PATENT, TRADEMARK OR COPYRIGHT
INFRINGEMENT MATTERS OR "YEAR 2000" COMPLIANCE. LESSOR EXPRESSLY DISCLAIMS ANY
AND ALL EXPRESS OR IMPLIED WARRANTIES. AS TO LESSOR, LESSEE LEASES THE
EQUIPMENT "AS IS, WHERE IS".
(b) LESSEE AGREES THAT LESSOR SHALL NOT BE LIABLE TO THE LESSEE FOR ANY
CLAIM, LOSS OR DAMAGE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, LOSS OF BUSINESS, OR OTHER
FINANCIAL LOSS, WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY THE EQUIPMENT,
THE INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE OR ANY USE THEREOF, BY ANY
DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION
THEREWITH, ARISING IN STRICT LIABILITY, NEGLIGENCE, CONTRACT, TORT OR
OTHERWISE, OR IN ANY WAY RELATING TO OR ARISING OUT OF THE EQUIPMENT, THIS
LEASE AGREEMENT OR ANY LEASE ORDER. THE LESSEE AGREES THAT IT WILL,
IRRESPECTIVE OF ANY SUCH CLAIM, LOSS, DAMAGE OR EXPENSE, CONTINUE TO PAY SUCH
MONTHLY RENTAL CHARGES AND OTHER SUMS AS MAY COME DUE UNDER ANY LEASE ORDER
HEREUNDER.
13. ASSIGNMENT OF MANUFACTURER'S WARRANTIES. Lessor hereby assigns to Lessee, to
the extent assignable, all manufacturer's warranties, service agreements and
patent indemnities with respect to the Equipment, if any, for the purpose of
making appropriate claims against the manufacturer, provided that the Lessor
shall retain at all times the right to be protected by these warranties,
agreements and indemnities as the owner of the Equipment. The Lessee's sole
remedy for the breach of any such warranty, Indemnification or service
agreement shall be against the manufacturer, and not against Lessor or any
Assignee of Lessor, nor shall any such breach have any effect whatsoever on the
rights and obligations of either party with respect to this Lease Agreement.
Lessor will, upon request by Lessee and at Lessee's sole expense, cooperate
with Lessee in the enforcement of any benefit provided in any such warranties,
service agreements and patent indemnities.
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14. INDEMNIFICATION. Lessee agrees that it will defend, indemnify and hold
Lessor harmless against any and all claims, demands, liabilities, obligations,
losses, damages, injuries, penalties, actions, costs and expenses, including
reasonable attorney's fees, of whatever kind and nature arising out of or in
connection with the possession, use, condition (including, but not limited to,
latent and other defects, whether or not discoverable by Lessor or Lessee),
operation, ownership by Lessor, selection, delivery, leasing or return of any
item of Equipment leased hereunder, regardless of where, how and by whom
operated, or any failure on the part of Lessee to accept the Equipment or
otherwise to perform or comply with the provisions of this Lease Agreement or
any Lease Order, except for Lessor's gross negligence or willful misconduct.
The Indemnities and assumptions of liabilities and obligations herein provided
for shall continue in full force and effect notwithstanding the expiration or
termination of the Initial Term, any renewal or extension thereof, or of any
Lease Order or this Lease Agreement.
15. ASSIGNMENT BY LESSOR. LESSOR MAY ASSIGN OR TRANSFER THIS MASTER LEASE OR ANY
LEASE ORDER HEREUNDER OR LESSOR'S INTEREST IN THE EQUIPMENT OR GRANT A SECURITY
INTEREST THEREIN TO ONE OR MORE ASSIGNEES WITHOUT NOTICE TO LESSEE. Any Assignee
of Lessor shall have all of the rights but none of the obligations of Lessor
hereunder unless expressly agreed in writing, and Lessee agrees that it will not
assert against any Assignee any defense or counterclaim that Lessee may have
against Lessor. Lessee shall have no greater obligations to any Assignee than it
had to Lessor at the time of assignment, and such assignment shall not limit or
otherwise restrict the rights afforded Lessee hereunder. Lessee hereby (i)
consents to such assignments and/or grants, (ii) agrees to promptly execute and
deliver UCC financing statements, an Acknowledgement and Consent of Assignment
and such further acknowledgements, agreements, certificates and other
instruments as may be reasonably requested by Lessor or Assignee to affect such
assignments and/or grants. Lessee acknowledges that any assignment or transfer
by Lessor made in accordance with the provisions of this paragraph shall not
materially change Lessee's duties or obligations under this Lease nor materially
increase the burdens or risks imposed on Lessee. In the event of an assignment,
all references herein to Lessor shall be deemed to include Assignee.
Notwithstanding any such assignment: (i) Lessor shall not be relieved of any of
its obligations hereunder, and (ii) the rights of Lessee to quiet enjoyment and
possession of the Equipment shall not be impaired so long as Lessee is not in
default under this Lease.
16. QUIET POSSESSION AND ENJOYMENT. Lessor covenants that so long as Lessee is
not in default hereunder, neither Lessor nor any Assignee will disturb Lessee's
quiet possession and enjoyment of the Equipment subject to and in accordance
with the provisions of this Lease Agreement and the applicable Lease Order.
17. DAMAGE, DESTRUCTION OR LOSS.
(a) Upon delivery of the Equipment to Lessee until the Equipment is
redelivered to Lessor, Lessee shall bear the entire risk of loss, damage, or
destruction with respect to the Equipment resulting from any cause whatsoever.
(b) If any Equipment becomes damaged beyond repair, lost, stolen,
destroyed or permanently rendered unfit, or in the event of any condemnation or
taking by any governmental authority (any such occurrence being hereinafter
referred to as an "Event of Loss"), then Lessee shall promptly notify Lessor
and shall do either of the following within thirty (30) days after the
occurrence of an Event of Loss:
(i) At its expense, promptly replace the affected Equipment, with
like or better replacement equipment of identical make, model, configuration,
capacity and condition, in good repair, free and clear of all liens, in which
case any such replacement equipment shall become the property of Lessor and for
all purposes of this Master Lease shall be deemed to be the Equipment which it
replaced; or
(ii) Terminate the Lease Order with respect to the affected
Equipment and pay to Lessor on the next payment date, an amount equal to the
present value of the remaining rental payments discounted by five percent (5%),
plus the fair market value in continued use of the Equipment.
18. INSURANCE. Lessee shall, at its expense, insure the Equipment against all
risks and in such amounts as Lessor shall reasonably require (but not less than
the full replacement value) with carriers reasonably acceptable to Lessor, shall
maintain a less payable endorsement in favor of Lessor and its assigns affording
to Lessor and its assigns such additional protection as Lessor and its assigns
shall reasonably require, and Lessee shall maintain liability insurance
reasonably satisfactory to Lessor and its assigns. All such insurance policies
shall name Lessee, Lessor and its assigns as additional insureds and shall name
Lessor and its assigns as loss payee(s), and shall provide that insurance
coverage shall not be cancelled or altered without at least thirty (30) days
prior written notice to Lessor and Assignee, and that no breach of warranty by
Lessor shall invalidate such insurance with respect to any additional insured.
Lessee shall promptly furnish appropriate evidence of such Insurance to Lessor
and any Assignee.
19. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants to
Lessor and any Assignees on the date hereof and on the date of each Lease Order
that (i) the execution and performance of this Lease Agreement and all Lease
Orders are duly authorized and this Lease Agreement and the Lease Orders
constitute legal, valid and binding obligations of Lessee enforceable in
accordance with their terms; (ii) the performance under the Lease Agreement and
all Lease Orders by Lessee will not result in any breach, default or violation
of Lessee's articles of incorporation or by-laws, if applicable, or partnership
agreement, if applicable, or any agreement to which Lessee is a party; (iii)
Lessee is in good standing duly organized, and validly existing in its
jurisdiction of incorporation or organization and in any jurisdiction(s) in
which any of the Equipment is to be located; (iv) there are no actions, suits,
or proceedings pending or threatened, before any court, agency, or arbitrator
which will, if determined adversely to Lessee, materially adversely affect its
ability to perform its obligations under its Lease Agreement or any Lease Order;
and (v) any and all information with respect to Lessee heretofore furnished to
Lessor was, when furnished, true and complete.
20. FINANCIAL STATEMENTS, ETC. During the term of this Lease Agreement, Lessee
shall furnish to Lessor and any Assignee Lessee's audited balance sheet, income
statement and statement of cash flows for its most recent fiscal year, within
ninety days and quarterly statements within forty-five days, all prepared in
accordance with generally accepted accounting principles consistently applied,
and, from time to time, such other information concerning the Equipment as
Lessor or any Assignee may reasonably request.
21. DEFAULT. The occurrence of any of the following events shall constitute an
"Event of Default" hereunder and under each Lease Order entered into pursuant
hereto.
(a) Lessee shall fail to pay any installment of rent or other change due
under this Lease Agreement or any Lease Order thereunder within ten (10) days
after the same is due and payable;
(b) Lessee attempts to move, sell, assign, transfer, encumber, dispose
of, sublet or lend any of the Equipment without the prior written consent of
Lessor;
(c) Except for defaults covered by Paragraph (a) above, Lessee shall fail
to perform or observe any covenant, condition, or agreement to be performed or
observed by it hereunder or under any Lease Order and such failure continues
unremedied for fifteen (15) days after notice thereof to Lessee by Lessor;
(d) Any representation or warranty made by Lessee in this Lease
Agreement, any Lease Order, or in any document or certificate made or furnished
to Lessor in connection herewith pursuant hereto shall prove to be false at any
time in any material respect;
(e) Lessee ceases doing business as a going concern; makes an assignment
for the benefit of creditors; admits in writing its inability to pay its debts
as they become due; files a voluntary petition in bankruptcy; is adjudicated to
be bankrupt or insolvent; files a petition seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation, solution 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
it 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 it or its shareholders shall take action to effect a
dissolution or liquidation and, in the case of any such proceeding not being
instituted by Lessee, such proceeding is not dismissed or vacated within thirty
(30) days.
REMEDIES. Upon the occurrence of any Event of Default and at any time
thereafter, Lessor may, with or without terminating this Lease Agreement, do
any one or more of the following:
(a) Proceed by appropriate court action to enforce performance by Lessee
of the applicable terms of this Lease Agreement or any Lease Order.
(b) Declare immediately payable all sums due and to become due hereunder
for the full of any and all Lease Orders under this Master Lease;
(c) If the Lease Order provides for a Stipulated Loss Value or other
fixed value of the Equipment, recover (i) any then accrued and unpaid rent plus
interest thereon at the late Equipment rate, (ii) the Stipulated Loss Value or
other fixed value, at Lessor's option, of the Equipment as of the rent payment
date immediately preceding Lessee's date of default, and (iii) all commercially
reasonable costs and expenses incurred by Lessor in any repossession, recovery,
storage, repair, sale, release or other disposition of the Equipment, including
reasonable attorney's fees and costs incurred in connection therewith or
otherwise resulting from Lessee's default;
(d) If the Lease Order does not provide for a Stipulated Loss Value or
other fixed value for the Equipment, recover from Lessee damages, not as a
penalty, but herein liquidated for all poses and in an amount equal to the sum
of (i) any then accrued and unpaid Rent plus interest thereon at the late
Payment Rate, (ii) the present value of all remaining Rent contracted to
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be paid over the unexpired portion of the Initial Term or any extended term,
discounted at an interest rate of five percent (5%) per annum plus prepayment
penalty fees, (iii) all commercially reasonable costs and expenses incurred by
Lessor in any repossession, recovery, storage, or repair, sale, re-lease or
other disposition of the Equipment, including reasonable attorney's fees and
costs incurred in connection therewith or otherwise resulting from Lessee's
default and (iv) the fair market residual value in continued use at the time of
default of the Equipment determined by Lessor.
(e) Re-lease or sell any or all of the Equipment at a public or private
sale, with the privilege of becoming the purchaser or Lessee thereof, on such
terms and notice as Lessor shall deem reasonable, and thereafter Lessor shall
apply the proceeds derived therefrom as follows, Lessee remaining liable for
any deficiency: First, to reimburse Lessor for all costs and expenses incurred
by Lessor in any repossession, recovery, storage, repair, sale, re-lease or
other disposition of the Equipment, including reasonable attorney's fees,
commissions and broker's fees and costs incurred in connection therewith or
otherwise resulting from Lessee's default; second, to pay Lessor any amounts
owing hereunder, third, to reimburse Lessee for any amount paid hereunder as a
result of Lessee's default; and fourth, any surplus remaining thereafter to
Lessor;
(f) Take immediate possession of any or all of such Equipment wherever
situated, and for such purpose, enter upon any premises (by summary proceedings
or otherwise) where the Equipment is located without prejudice to any other
remedy or claim referred to herein; and
(g) Exercise any other right or remedy which may be available to it
under the Uniform Commercial Code or any other applicable law.
A termination hereunder shall occur only upon notice by Lessor and only
as to such Equipment as Lessor specifically elects to terminate and this Master
Lease and all Lease Orders hereunder shall continue in full force and effect as
to the remaining Equipment, if any. No remedy referred to in this Paragraph 22
is intended to be exclusive, but each shall be cumulative and in addition to
any other remedy referred to above or otherwise available to Lessor at law or
in equity. No express or implied waiver by Lessor of any default shall
constitute a waiver of any other default by Lessee or a waiver of any of
Lessor's rights.
23. LOSS OF ANTICIPATED TAX BENEFITS. Lessee acknowledges that unless otherwise
agreed to in writing by Lessor, Lessor intends to claim all available tax
benefits of ownership with respect to the Equipment (the "Tax Benefits"),
including, but not limited to, cost recovery deductions as provided in Section
168 of the Internal Revenue Code of 1986, as amended (the "Code"), with respect
to each item of Equipment for each of Lessor's taxable years during the Initial
Term and any extended or renewal term. Notwithstanding anything herein to the
contrary, Lessor shall not be entitled to, or shall be subject to recapture of
the Tax Benefits as a result of any act, omission or misrepresentation of
Lessee, Lessee shall pay to Lessor upon demand an amount sufficient to
reimburse Lessor for such loss, together with any related interest and
penalties, based on the highest marginal corporate income tax rate prevailing
at the time of such loss, regardless of whether Lessor or any member of a
consolidated group of which Lessor is also a member is then subject to any
increase in tax as a result of such loss of Tax Benefits.
24. TERMINATION. Each Lease Order, with respect to all but not less than all of
the Equipment covered thereby, may be terminated by either party at the end of
the Initial Term or any renewal or extended term thereof provided written
notice of termination of a Lease Order is given between one hundred eighty
days and ninety days prior to the termination of the Lease Order. If proper
notice of termination is not given, or if the Equipment is not returned to
Lessor as notified, the term of the Lease Order shall be extended on the same
terms and conditions for six months. Thereafter, the Lease Order as so extended
may be terminated by either party at the end of any calendar month by giving
the other party ninety days prior written notice.
25. FAIR MARKET VALUE PURCHASE OPTION. Provided the Lessee is not in default
under this Lease Agreement or any Lease Order executed hereunder, and further
provided the Lessee has given Ninety (90) days prior written notice to Lessor
of this election, Lessee may elect to purchase all but not less than all of the
Equipment subject to an applicable Lease Order. The purchase price for such
Equipment shall be its Fair Market Value. Fair Market Value is defined as the
estimated amount, as of a certain date, which could be obtained for such
Equipment in an arms length transaction between an informed and willing buyer
and seller each under no compulsion to buy or sell with the assumption that the
Equipment is being sold "In place and in use".
26. GENERAL
(a) This Lease Agreement and any Lease Order hereunder shall be governed
in all respects by the laws of the State of Florida. Lessor and Lessee agree
that any dispute between them arising under this Lease Agreement or any Lease
Order shall be resolved in the state or federal courts in the State of Florida
having within its jurisdiction the City of Tampa, Florida. Lessee hereby
knowingly and irrevocably waives any objections to an action in such courts in
the State of Florida on the grounds of lack of personal jurisdiction or improper
venue and agrees that effective service of process may be made upon Lessee by
mail under the notice provisions of subparagraph 26(c) hereof. NO RIGHTS OR
REMEDIES REFERRED TO IN ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE SHALL BE
INCORPORATED INTO THIS LEASE AGREEMENT UNLESS EXPRESSLY GRANTED IN THIS LEASE
AGREEMENT OR A LEASE ORDER HEREUNDER.
(b) This Lease Agreement and all Lease Orders constitute the entire
agreement between Lessee and Lessor with respect to the Equipment covered
thereby and supersede any prior contemporaneous agreements or understandings
relating thereto. No covenant, condition or other term or provision hereof or
of any Lease Order may be waived, changed, amended or modified except by a
written agreement signed by both Lessor and Lessee.
(c) All notices, consents or requests desired or required to be given
hereunder shall be in writing and shall be mailed, via certified mail, return
receipt requested, to the address of the other party set forth on the first
page hereof or to such other address as such party shall have designated by a
proper notice.
(d) This Lease Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective permitted successors and assigns.
(e) Paragraph headings are for convenience of reference only and shall
not be construed as part of this Lease Agreement.
(f) It is expressly understood that all of the Equipment shall be and
remain personal property of the Lessor notwithstanding the manner in which the
same may be attached or affixed really, and Lessee shall do all acts and
execute all documents necessary to insure that the Equipment remains personal
property.
(g) All agreements, representations and warranties contained in this
Lease Agreement any Lease Order, and in any document delivered pursuant hereto
or in connection herewith will be for the benefit of Lessor and any Assignee
and shall survive the execution and delivery, and the expiration or other
termination, of this Lease Agreement and any Lease Order.
(h) Time is of the essence of this Lease Agreement and each Lease Order.
(i) Lessee shall, upon request of Lessor, perform all such other acts
and execute and deliver to Lessor all such other documents which Lessor deems
reasonably necessary to settlement the provisions of this Lease Agreement or
any Lease Order.
(j) Each Lease Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but there shall be only one executed
original of each Lease Order which shall be marked "Original" (the "Original")
and all other counterparts shall be marked "Duplicate". To the extent, if any,
that a Lease Order constitutes chattel paper (as such is defined in the Uniform
Commercial Code) no security interest in the Lease Order may be created through
the transfer or possession of any counterpart other than the Original of the
Lease Order accompanied by an Original or certified copy of the Lease
Agreement.
================================================================================
WITNESS WHEREOF, the parties have executed this Lease Agreement effective as of
the date first above written.
LESSOR: GATX TECHNOLOGY SERVICES CORPORATION LESSEE: ▇▇▇▇.▇▇▇, INC.
Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------- --------------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------- ---------------------------------------------
(Print Name) (Print Name)
Title: Vice President Title: EVP & CFO
------------------------------------------ ------------------------------------------
Date: March 31, 2000 Date: 3/30/2000
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5
GATX Technology Services Corporation
ADDENDUM NO. 1
TO
MASTER LEASE AGREEMENT
BETWEEN
GATX TECHNOLOGY SERVICES CORPORATION, AS LESSOR
AND
▇▇▇▇.▇▇▇, INC., AS LESSEE
The Master Lease Agreement referenced above is hereby modified as follows:
1. DEFINITIONS.
For the definition of "Equipment" After the word "thereto" add the words
"which are acquired under the Lease Order."
For the definition of "Delivery and Acceptance Date": In the second
sentence replace "seven (7)" with "fifteen (15)" in both parts of the
sentence.
4. RENTAL.
In the fourth sentence replace "seven (7)" with "fifteen (15)".
11. ASSIGNMENT OR SUBLETTING BY LESSEE.
After the second sentence add the following sentence: "Notwithstanding
the foregoing, no consent of the Lessor shall be required for a
purported sale or other transfer of a controlling ownership interest in
the Lessee where the acquiring entity has a Standard & Poor's rating of
BB+ or an equivalent ▇▇▇▇▇'▇ rating."
21. DEFAULT.
Subsection (a): After the word payable add the words "; and such failure
shall not be cured within ten (10) days after notice thereof to Lessee
by Lessor."
Subsection (b): Replace the words "without prior written consent of
Lessor." With "except as expressly permitted herein."
Subsection (c): Replace "fifteen (15)" with "thirty (30)"
23. LOSS OF ANTICIPATED TAX BENEFITS.
Delete the second sentence.
24. TERMINATION.
In the second sentence replace "six months" with "three months".
25. FAIR MARKET VALUE PURCHASE OPTION.
At the end of the section add the following: "If Lessor and Lessee are
unable to agree on a fair market value by the sixtieth (60th) day
following a notice of Termination, they shall, at their equally-shared
expense, retain an independent appraisal company that is mutually
acceptable to Lessor and Lessee, to appraise the Equipment and to
determine and report to Lessor and Lessee the fair market value rental
rate therefor and the fair market value purchase price thereof. Such
determination shall be final and binding on Lessor and Lessee."
IN WITNESS WHEREOF, the parties hereto have executed this addendum, as
indicated by the signature of their authorized representative below.
Lessor: GATX TECHNOLOGY SERVICES CORPORATION Lessee: ▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------- ---------------------------------------------
Title: Vice President Title: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------ ------------------------------------------
Date: March 31, 2000 Date: 3/30/2000
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