Exhibit 10.9
Steelcase Financial Services Inc.
a Steelcase Company
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MASTER LEASE AGREEMENT Number 14130
THIS MASTER LEASE AGREEMENT is dated and effective as of APRIL 19, 2000, (the
"Effective Date"), by and between Steelcase Financial Services Inc., a Michigan
corporation, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (together
with any successors or assigns, the "Lessor"), and the Lessee indicated below
(the "Lessee").
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LESSEE
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Full Legal Name Trade Name
C ME RUN CORP
Mailing ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-
Type of Legal Entity State of organization Date of Establishment
CORPORATION DE 1999
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
all of the tangible personal property listed on each Equipment Schedule executed
from time to time pursuant to this Agreement (each, an "Equipment Schedule").
Each Equipment Schedule shall be substantially in the form annexed hereto as
Annex A, shall incorporate by reference therein all of the terms and conditions
of this Agreement and shall include such other terms and conditions upon which
the parties have agreed (each Equipment Schedule, together with this Agreement
as it relates to such Schedule, is referred to herein as a "Lease"). With
respect to each Lease, capitalized terms not defined in this Agreement shall
have the meanings stated in the applicable Equipment Schedule.
2. NET LEASE. EACH LEASE IS A NET LEASE, AND LESSEE SHALL PAY ALL COSTS AND
EXPENSES OF EVERY CHARACTER, WHETHER FORESEEN OR UNFORESEEN, ORDINARY OR
EXTRAORDINARY, IN CONNECTION WITH THE USE, POSSESSION, STORAGE, MAINTENANCE AND
REPAIR OF THE EQUIPMENT. LESSEE IS UNCONDITIONALLY OBLIGATED TO PAY PERIODIC
RENT AND ALL OTHER AMOUNTS DUE UNDER EACH LEASE REGARDLESS OF ANY DEFECT IN OR
DAMAGE TO THE EQUIPMENT, LOSS OF POSSESSION OR USE OF THE EQUIPMENT OR
DESTRUCTION OF THE EQUIPMENT FROM ANY CAUSE WHATSOEVER. LESSEE'S OBLIGATIONS
UNDER EACH LEASE SHALL CONTINUE UNTIL SPECIFICALLY TERMINATED AS PROVIDED
THEREIN. LESSEE IS NOT ENTITLED TO ANY ABATEMENT, REDUCTION, RECOUPMENT,
DEFENSE, OR SET-OFF AGAINST PERIODIC RENT OR OTHER AMOUNTS DUE TO LESSOR UNDER
EACH LEASE, WHETHER ARISING OUT OF SUCH LEASE (INCLUDING ANY BREACH, DEFAULT OR
MISREPRESENTATION OF LESSOR) OR OUT OF LESSOR'S STRICT LIABILITY OR NEGLIGENCE,
OR OTHERWISE.
3. TERM. The term of this Agreement shall commence on the Effective Date and
shall continue in effect thereafter as long as any Lease remains in effect. The
term of each Lease shall commence on the Lease Commencement Date as set forth in
a Delivery and Acceptance Certificate signed by the Lessee in substantially the
form annexed hereto as Annex B (the "Lease Commencement Date") and shall
continue thereafter for the lease term set forth in the applicable Equipment
Schedule (the "Lease Term"). Unless Lessee shall have given due notice of the
exercise of one of the options available to Lessee under Section 13 hereof or
shall have given Lessor written notice of nonrenewal at least 30 days prior to
the expiration of any Lease Term, such Lease Term shall automatically renew for
successive monthly periods until terminated by Lessee or Lessor upon at least 30
days prior written notice.
4. RENT. Lessee agrees to pay Periodic Rent in the amount specified in each
Equipment Schedule (the "Periodic Rent"). The Initial Periodic Rent payment for
each Lease shall be due on the date the Equipment is accepted by Lessee and
subsequent Periodic Rent payments shall be due as specified on the applicable
Equipment Schedule. All Periodic Rent and other amounts payable under each Lease
(collectively referred to herein as "Rent") shall be paid to Lessor at the
address specified on the applicable Equipment Schedule or at such other address
as Lessor may specify thereafter in writing. If any Periodic Rent or other Rent
payment is not paid within 10 days of its due date, Lessee agrees to pay as
additional Rent a late charge equal to 5% of such unpaid Rent payment plus 1
1/2% per month of any amount due and unpaid for more than 30 days, or, if less,
the maximum amount permitted under applicable law. Periodic Rent payable during
any automatic renewal period described in Section 3 hereof shall be equal to the
highest Periodic Rent payable during the initial Lease Term.
Lessee hereby agrees that the amount of the Periodic Rent payments and
Purchase Option Price under each Lease shall be adjusted to reflect any change
in the Cost to Lessor set forth in the applicable Equipment Schedule as a result
of Equipment change orders or returns, invoicing errors or other similar events.
In the event of any such adjustment, Lessor will furnish to Lessee a written
notice stating the final Cost to Lessor, Periodic Rent and Purchase Option
Price.
5. DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES AND AGREES THAT: (a) EACH ITEM
OF EQUIPMENT IS OF A TYPE, DESIGN, QUALITY AND MANUFACTURE SELECTED BY LESSEE,
ACCEPTABLE TO LESSEE AND SUITABLE FOR LESSEE'S PURPOSES; (b) LESSOR IS NOT THE
MANUFACTURER OR SUPPLIER OF THE EQUIPMENT OR THE REPRESENTATIVE OF EITHER; (c)
LESSOR IS NOT REQUIRED TO ENFORCE ANY MANUFACTURER'S WARRANTIES ON BEHALF OF
ITSELF OR LESSEE; (d) LESSOR HAS NOT INSPECTED AND IS NOT OBLIGATED TO INSPECT
THE EQUIPMENT; (e) LESSOR LEASES THE EQUIPMENT TO LESSEE AS IS WITHOUT WARRANTY
OR REPRESENTATION EITHER EXPRESS OR IMPLIED, AND THE LESSOR EXPRESSLY DISCLAIMS
ANY WARRANTY, EXPRESS OR IMPLIED, AS TO (i) THE TITLE, CONDITION, FITNESS FOR
USE FOR A PARTICULAR PURPOSE, DESIGN, COMPLIANCE WITH SPECIFICATIONS, OPERATION,
OR MERCHANTABILITY THEREOF, (ii) THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER
OR NOT DISCERNABLE, (iii) THE ABSENCE OF INFRINGEMENT OF ANY PATENT, TRADEMARK
OR COPYRIGHT OR (iv) ANY OTHER MATTER WHATSOEVER, IT BEING AGREED THAT ALL SUCH
RISKS, AS BETWEEN THE LESSOR AND THE LESSEE, ARE TO BE BORNE BY THE LESSEE.
6. USE, OPERATION AND RETURN OF EQUIPMENT.
(a) Lessee agrees at its own expense to: (i) maintain the Equipment in
good appearance and condition, reasonable wear and tear excepted; and (ii) use
the Equipment in the manner for which it was intended and in compliance with all
applicable laws and manufacturer requirements and recommendations.
(b) Lessee agrees not to attach to the Equipment any accessory, equipment,
or device not leased from Lessor unless it is easily removable without damaging
the Equipment. Lessee agrees to pay all costs for parts, alterations, and
additions to the Equipment (including those required by law), all of which
immediately shall become the property of Lessor. Lessor and Lessee intend that
the Equipment shall remain personal property to Lessor.
(c) Provided that no Default, as defined herein, has occurred and is
continuing, Lessee is authorized on behalf of Lessor to enforce in its own name
(and at its own expense) any warranty, indemnity, or rights to damages relating
to the Equipment which Lessor has against the supplier of such Equipment.
Form: SC.ML1001
[ILLEGIBLE] Page 1 of 4
Steelcase Financial Services Inc.
a Steelcase Company
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C ME RUN CORP 14130
(d) Not later than the expiration date of each Lease Term, Lessee agrees,
at its own expense and risk, to: (i) effect any repairs necessary to place the
applicable Equipment in the same condition as when received by Lessee,
reasonable wear and tear excepted; (ii) cause such Equipment to be disassembled
and crated in a workmanlike manner in accordance with the manufacturer's
recommendations (if any); and (iii) deliver such Equipment, freight prepaid, to
a carrier selected by Lessor for shipment to a location in the continental U.S.
selected by Lessor. "Reasonable wear and tear" does not include (i) ▇▇▇▇▇, tears
in material or large scratches, gouges, dents, discolorations or stains, (ii)
damage to drawers, runners, or locks such that they are not in good working
order or (iii) the loss of all keys for any locks.
(e) If Lessee shall, for any reason whatsoever, fail to return any
Equipment at the time required by the applicable Lease, the obligations of
Lessee as provided in such Lease shall continue in effect with respect to such
Equipment until such Equipment is returned to the Lessor, and the amount of each
Periodic Rent payment shall be equal to the highest Periodic Rent payment during
the Lease Term of such Lease. However, this Section 6(e) shall not be construed
as permitting Lessee to fail to meet its obligation to return the Equipment in
accordance with the requirements of the applicable Lease or constitute waiver of
any Default.
7. LOSS OR DAMAGE. Lessee shall bear the risk of any disappearance of, damage to
or loss of any item of Equipment from any cause whatsoever (a "Casualty
Occurrence"). Lessee shall promptly notify Lessor in writing of any Casualty
Occurrence. Upon a Casualty Occurrence: (a) if the affected equipment is
repairable, Lessee shall, at Lessee's expense, promptly restore the Equipment to
good repair, condition and working order in accordance with the manufacturer's
recommendations and to the reasonable satisfaction of Lessor; or (b) if the
affected Equipment is an actual or constructive total loss or otherwise is not
repairable, Lessee shall pay to Lessor on or before the next Periodic Rent
Payment Date (such payment date, the "Casualty Payment Date") an amount equal to
the sum of (i) all amounts due and unpaid under the applicable Lease as of the
Casualty Payment Date (including all Periodic Rent payments in respect of such
Equipment, which shall be pro rated to the Casualty Payment Date, and any
indemnity obligations), plus (ii) the present value of all future Periodic Rent
payments for such Equipment, discounted on an annual basis at a discount rate
equal to the ask yield to maturity of the U.S. Treasury ▇▇▇▇ issue maturing in
180 days (or the issue maturing closest thereto), as published in the Wall
Street Journal for the immediately preceding Rent Payment Date (or the next
preceding business day if such date is not a business day), which Lessee agrees
is a commercially reasonable rate (the "Discount Rate") from the scheduled
payment dates to the Casualty Payment Date, plus (iii) the present value of the
greater of (x) the anticipated residual value of the affected Equipment at the
end of the relevant Lease Term, as determined by the Lessor for purposes of
calculating the relevant Periodic Rent and Purchase Option Price or (y) the then
expected fair market value of the affected Equipment at the end of the relevant
Lease Term, in each case discounted on an annual basis at the Discount Rate from
the expiration of the Lease Term to the Casualty Payment Date; provided, that if
the Purchase Option Price is a fixed amount, the value calculated pursuant to
the foregoing clause (iii) shall not exceed the present value of such fixed
Purchase Option Price, discounted on an annual basis at the Discount Rate from
the expiration date of the relevant Lease term to the Casualty Payment Date, if
Lessee is required to repair the affected Equipment pursuant to clause (a) of
the foregoing sentence, the insurance proceeds actually received by Lessor, if
any, pursuant to Section 8 hereof shall be applied first to pay any amounts then
due under this Agreement or any Lease and then shall be paid to Lessee upon
proof satisfactory to Lessor that such repair has been completed as required
herein. In the event Lessee is obligated to pay to Lessor the amounts set forth
in clause (b) of the foregoing sentence, Lessee shall be entitled to a credit
against such amounts equal to the amount of insurance proceeds actually received
by Lessor, if any, pursuant to Section 8 hereof on account of such Equipment and
upon payment in full of all amounts set forth in such clause (b), Lessor shall
assign to Lessee and Lessee's insurers, as their interests may appear, all of
Lessor's interest in such Equipment on an as is, where is basis, without
representation or warranty, express or implied, and the Lease in respect of such
Equipment shall terminate.
8. INSURANCE. Lessee agrees, at its own expense, to keep the Equipment insured
with companies acceptable to Lessor and to maintain primary coverage consisting
of (a) actual cash value all risk insurance on the Equipment, naming Lessor and
Lessee as sole loss payees, as their interests may appear, and (b) combined
limit public liability and property damage insurance of not less than $1,000,000
per occurrence (or such other amounts as Lessor reasonably may require by notice
to Lessee) naming Lessee as insured and Lessor as an additional insured. The
insurance shall provide for not less than 30 days prior written notice to Lessor
of any material change, cancellation or non-renewal of the policy. Premiums for
all such insurance shall be prepaid. Lessee shall deliver evidence of such
insurance to Lessor upon request, and shall promptly provide to Lessor all
information pertinent to any occurrence which may become the basis of a claim.
Lessee will not make claims adjustments with insurers except with Lessor's prior
written consent.
9. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants to
Lessor that as of the date hereof:
(a) Lessee has adequate power and capacity to enter into this Agreement
and each Lease, any documents relating to the purchase of Equipment and any
other documents required to be delivered in connection herewith or therewith
(collectively, the "Documents"); the Documents have been duly authorized,
executed, and delivered by Lessee and constitute valid, legal, and binding
agreements, enforceable in accordance with their terms; there are no legal or
other proceedings presently pending or threatened against Lessee which may
impair its ability to perform under the Documents or affect the validity
thereof; and all information which has been supplied to Lessor is accurate and
complete.
(b) Lessee's execution of the Documents and its leasing of the Equipment
does not and will not (i) violate Lessee's organizational documents or any
judgment, order or law applicable to this Agreement or any Lease or Lessee; (ii)
violate or require consent under any agreement to which Lessee is a party or to
which Lessee's property is subject; or (iii) result in the creation of any lien,
security interest, or other encumbrance upon the Equipment except in favor of
the Lessor.
(c) All financial data of Lessee or of any consolidated group of companies
of which it is a member ("Lessee Group") delivered to Lessor have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis with prior periods and fairly present the financial position
and results of operations of Lessee, or of the Lessee Group, as of the stated
date and for the indicated periods. Since the date of the most recently
delivered financial data, there has been no material adverse change in the
financial or operating condition of the Lessee or of the Lessee Group.
(d) If Lessee is a corporation, partnership or limited liability company,
it is and will be validly existing and in good standing under the laws of the
state of its organization; the persons signing the Lease are acting with the
full authority of the board of directors, partners, members or managers, as the
case may be, and such persons hold the offices indicated below their signatures,
which are genuine.
10. COVENANTS OF LESSEE.
(a) Lessee agrees that title to each item of Equipment shall remain with
the Lessor at all times and the Lessee shall have no right, title or interest
therein except as expressly set forth in each Lease. Lessee agrees that it will
keep the Equipment free and clear from all claims, liens, and encumbrances
(except in favor of the Lessor) and will not assign, sublet, or grant a security
interest in the Equipment or in any Lease without Lessor's prior written
consent. As additional security for the performance of Lessee's obligations
hereunder and under each Lease, Lessee hereby grants to Lessor a first priority
security interest in its interest in the Equipment and any proceeds thereof.
Lessee irrevocably appoints Lessor (acting directly or through any agent) its
attorney-in-fact to execute such UCC financing Statements as Lessor shall deem
necessary or expedient to perfect or protect such security interest, and Lessee
agrees to execute and deliver, at Lessee's expense, such other or additional
documents or instruments as Lessor shall reasonably deem necessary or expedient
to perfect or protect such security interest. Lessee shall notify Lessor in
writing, with full particulars, within 10 days after it learns of the attachment
of any lien to any Equipment and of the Equipment's location.
Form: SC.ML1001
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Steelcase Financial Services Inc.
a Steelcase Company
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▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) LESSEE COVENANTS AND AGREES THAT THE EQUIPMENT WILL NOT BE USED FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, AND WILL BE USED SOLELY FOR COMMERCIAL
OR BUSINESS PURPOSES.
(c) Lessee shall not relocate any unit of Equipment from the Equipment
Location set forth in the applicable Equipment Schedule without the prior
written approval of Lessor (which shall not be unreasonably withheld). Lessee
agrees to notify Lessor immediately in writing of any change in Lessee's
corporate or business name or in the location of its chief executive office.
(d) Upon reasonable written notice to Lessee, Lessor may inspect the
Equipment during normal business hours. At Lessor's request, Lessee will attach
identifying labels to each unit of Equipment in a location reasonably suitable
for such labels and in a form approved by Lessor showing Lessor's ownership
interest therein.
(e) Lessor may assign this Agreement and/or any Lease. Lessee waives and
agrees not to assert against any assignee any defense, set off, recoupment,
claim or counterclaim which Lessee has or may at any time have against Lessor
for any reason whatsoever; provided that no such assignment shall extinguish or
impair any rights Lessee may have against Lessor.
(f) Upon Lessor's request, Lessee shall within 90 days of the close of
each fiscal year of Lessee, deliver to Lessor duplicate copies of Lessee's
balance sheet and profit and loss statement, certified by a recognized firm of
certified public accountants. Upon request, Lessee will deliver to Lessor
duplicate copies of Lessee's most recent quarterly financial report.
(g) At the request of Lessor, upon execution of this Agreement and each
Equipment Schedule pursuant hereto, Lessee shall provide Lessor with copies of
the resolutions or other actions or documents authorizing such execution,
certified by an appropriate officer of Lessee and such other documents as Lessor
may reasonably request.
(h) If more than one Lessee is named in this Lease, the liability of each
Lessee shall be joint and several.
(i) Lessee hereby agrees that any action by Lessee against Lessor for any
default under this Agreement or any Lease shall be commenced within one year
after the cause of action accrues.
(j) Lessee acknowledges that Lessee has selected the manufacturer and
supplier of the Equipment to be leased under each Lease and that (i) Lessor has
not selected, manufactured or supplied any Equipment and will acquire Equipment
only in connection with the applicable Lease thereof; and (ii) Lessee is
entitled under Article 2A of the Uniform Commercial Code (the "UCC") to the
promises and warranties, including those of any third party, provided to Lessor
by the supplier of the Equipment in connection with or as part of the contract
by which Lessor acquires the Equipment, and Lessee is entitled to communicate
with the supplier of the Equipment and to receive an accurate and complete
statement of those promises and warranties, including any disclaimers and
limitations thereof or of any remedies.
(k) To the extent permitted by applicable law, Lessee hereby waives all
rights and remedies conferred upon a lessee in respect of each Lease under
Article 2A of the UCC.
(l) Lessee acknowledges and agrees that to the extent that the Periodic
Rent under any Lease is deemed to include finance charges ("Interest"), Lessee
agrees to pay all such interest. The rate of any such deemed interest is not
intended to exceed the maximum amount of interest permitted to be charged or
collected by applicable law, if such interest exceeds such maximum, then the
interest payable will be reduced to the legally permitted maximum amount of
interest, and any excessive interest will be used to reduce the deemed principal
amount of Lessee's obligation or refunded.
11. INDEMNIFICATION.
(a) Taxes. Lessee agrees to indemnify and hold Lessor harmless on an after
tax basis from all fees, taxes (excluding taxes on Lessor's net income), levies,
assessments or withholdings of any nature together with penalties and interest
(collectively, "Taxes") assessed against Lessor, Lessee, this Agreement, any
Lease or the Equipment, arising out of the purchase (including purchase by
Lessee), sale, ownership, delivery, leasing, possession, use, operation, or
return of the Equipment or any proceeds thereof. Lessee shall pay Lessor on
demand as additional Rent any Taxes paid by Lessor.
(b) General. Lessee agrees, whether or not any Equipment Schedules are
executed hereunder, to assume liability for, and does hereby agree to indemnify,
protect, save and keep harmless the Lessor from and against any and all
liabilities, obligations, losses, damages, penalties, claims (including claims
by any employee of the Lessee or any of its contractors), actions, suits and
related costs, expenses and disbursements, including reasonable legal fees and
expenses of whatsoever kind and nature ("Losses), imposed on, asserted against
or incurred by Lessor, in any way relating to or arising out of (i) this
Agreement or any Lease, including the enforcement thereof or (ii) the
construction, financing, purchase, acceptance, rejection, installation,
ownership, delivery, lease, sublease, possession, use, operation, maintenance,
repair, condition, sale (including pursuant to Section 12 hereof), abandonment
or return of the Equipment (including without limitation latent and other
defects, whether or not discoverable by the Lessor or the Lessee, and any claim
for patent, trademark or copyright infringement or arising under the strict
liability doctrine in tort); provided, that Lessee shall not be obligated to
indemnify Lessor for any Losses to the extent resulting from the Lessor's
willful misconduct, gross negligence or willful breach of this Agreement or any
Lease.
12. DEFAULT.
(a) Each of the following events shall constitute a default hereunder (a
"Default") whether voluntary or involuntary, by operation of law or otherwise:
(i) Lessor has not received a Periodic Rent payment or any other Rent within 10
days after its due date; or (ii) Lessee violates any other term of this
Agreement or any Lease and fails to correct such violation within 30 days after
written notice thereof from Lessor; or (iii) Lessee or an becomes insolvent, is
liquidated or dissolved, stops doing business, or assigns its rights or property
for the benefit of creditors; or (iv) a petition is filed by or against Lessee
or any guarantor under Title 11 of the United States Code or any successor or
similar law; or (v) (for individuals) Lessee or any guarantor dies or a guardian
is appointed for such person; or (vi) Lessee (or any affiliate) is in default
under or fails to fulfill the terms of any other agreement between Lessee and
Lessor or any affiliate of either; or (vii) the Equipment or any part thereof is
abused, illegally used or misused; or (viii) any representation or warranty made
by Lessee or any guarantor herein or in any Lease or in any statement,
certificate or agreement furnished in connection therewith shall prove to be
untrue in any material respect as of the date made.
(b) At any time after a Default hereunder and during the continuance
thereof, Lessor may declare this Agreement and each Lease to be in default and
at any time thereafter the Lessor may do any one or more of the following: (i)
cancel this Agreement and/or all or part of any Lease; (ii) proceed by
appropriate action to enforce performance at Lessee's expense of the applicable
covenants and terms of the applicable Lease or to recover damages (including
reasonable attorneys' fees) for the breach thereof; (iii) demand that the
Lessee, and in such case the Lessee shall, return all or any part of the
Equipment promptly in the manner required by and in accordance with Section 8
hereof as if such Equipment were being returned at the end of the Lease Term;
(iv) enter, with or without legal process, any premises and take possession of
all or any part of the Equipment without any liability to Lessee by reason of
such entry; (v) sell, lease or otherwise dispose of all or any part of the
Equipment at a public or private sale, which may be conducted where the
Equipment is then located, with or without display of the Equipment; (vi)
declare immediately due and payable all sums due and to become due under this
Agreement and each Lease; (vii) demand that the Lessee, and in such case the
Lessee shall, pay to Lessor as liquidated damages for loss of a
Form: SC.ML1001
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a Steelcase Company
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C ME RUN CORP 14130
bargain and not as a penalty (the "Liquidated Damages") an amount equal to the
sum of (A) all amounts due and unpaid under each Lease (including any indemnity
obligations) plus interest thereon from the due date thereof at a per annum
interest rate equal to the prime rate of interest then in effect as published
in The Wall Street Journal, plus 2 percentage points (the "Default Rate"); plus
(B) the present value of all future Periodic Rent payments for such Equipment,
discounted on an annual basis at the Discount Rate from the scheduled payment
dates; plus (C) the present value of the greater of (x) the anticipated residual
value of the affected Equipment at the end of the relevant Lease Term, as
determined by the Lessor for purposes of calculating the relevant Periodic Rent
and Purchase Option Price or (y) the then expected fair market value of the
affected Equipment at the end of the relevant Lease Term, in each case
discounted on an annual basis at the Discount Rate from the expiration date of
the relevant Lease Term, provided that, notwithstanding the foregoing, if the
Purchase Option Price is a fixed amount, the value calculated pursuant to this
clause (C) shall not exceed the present value of such fixed Purchase Option
Price, discounted on an annual basis at the Discount Rate from the expiration
date of the relevant Lease Term; plus (D) all commercially reasonable costs and
expenses incurred by Lessor in enforcing Lessor's rights hereunder or under any
Lease (including without limitation all costs of repossession, recovery,
storage, repair, sale, re-lease and reasonable attorneys' fees), together with
interest thereon at the Default Rate; or (viii) exercise any other right or
remedy which may be available to it under the UCC or any other applicable law.
The proceeds of any sale or lease will be applied in the following order of
priorities: (1) to pay all of Lessor's expenses in taking, holding, preparing
for sale or lease and disposing of Equipment, including all reasonable
attorneys' fees and legal expenses; then (2) to pay any late charges and all
interest accrued at the Default Rate; then (3) to pay accrued but unpaid
Periodic Rent payments, then (4) to pay any unpaid Rent, Liquidated Damages and
all other due but unpaid sums. Any remaining proceeds shall be paid to Lessee.
If the proceeds of any sale or lease are not enough to pay the amounts owed to
Lessor under this Section, Lessee will pay the deficiency.
(c) In case of failure by the Lessee to procure or maintain insurance, or
to pay any fees, assessments, charges or taxes arising with respect to the
Equipment, Lessor shall have the right, but shall not be obligated, to effect
such insurance or pay such fees, assessments, charges or taxes, as the case may
be, and, in that event, the cost thereof shall be payable by Lessee to Lessor
upon demand, together with interest at the Default Rate from the date of
disbursement by Lessor.
(d) Lessor's remedies for Default may be exercised instead of or in
addition to each other or any other legal or equitable remedies. Lessor has the
right to set off any sums received from any source (including insurance
proceeds) against Lessee's obligations under each Lease. Lessee waives its right
to object to the notice of the time or place of sales or lease and to the manner
and place of any advertising. Lessee waives any defense based on statutes of
limitations or laches in actions for damages. Lessor's waiver of any Default is
not a waiver of its rights with respect to a different or later Default.
13. OPTIONS.
So long as no Default has occurred and is continuing, upon the expiration
of any Lease, Lessee shall have the option (i) to purchase all but not less than
all of the Equipment leased under such Lease on an AS IS, WHERE IS basis without
representation or warranty, for a cash purchase price equal to the lesser of the
Purchase Option Price (plus applicable sales tax) stated on the applicable
Equipment Schedule or the Equipment's Fair Market Value (plus any applicable
sales taxes) determined as of the end of the applicable Lease Term; or (ii) to
extend the Lease Term of such Lease at the then Fair Market Rental of the
Equipment for an additional 24 months, or such other term as may be approved by
Lessor in its sole discretion. Lessee may exercise the foregoing options only by
giving irrevocable written notice thereof to Lessor at least 90 days before the
end of the Lease Term or, if the Lease Term has been automatically renewed for
one or more monthly periods as provided in Section 3 hereof, at least 30 days
before the end of the Lease Term. If the Lease is renewed, the Lessee's
obligations (other than the amount of the Periodic Rent payments) shall remain
unchanged. "Fair Market Value" or "Fair Market Rental" means the price or rental
which a willing buyer or lessee (who is neither a lessee in possession nor a
used equipment dealer) would pay for the Equipment in an arm's length
transaction to a willing seller or lessor who is under no compulsion to sell or
lease. In determining "Fair Market Value," the Equipment shall be assumed to
have been maintained as required by the Lease and returned in full compliance
with Section 6(d) hereof. In determining "Fair Market Rental," the Equipment
shall be assumed to have been maintained as required by the Lease and, in the
case of Equipment which requires installation, to be installed in the facility
of the prospective lessee.
14. MISCELLANEOUS.
(a) Time is of the essence of this Lease. So long as there is no Default,
Lessor shall not interfere with Lessee's quiet enjoyment of the Equipment.
(b) All required notices will be considered to have been given if sent by
registered or certified mall or overnight courier service to the Lessor or
Lessee at the address stated on the applicable Equipment Schedule, or at such
other place as such addressee may have designated in writing.
(c) Each Lease constitutes the entire agreement of the parties with
respect to the lease of the Equipment and supersedes and incorporates all prior
oral or written agreements or statements. Neither this Agreement nor any Lease
may be changed except by written agreement signed by an authorized
representative of the party against whom it is to be enforced. If any provision
of this Agreement or any Lease is declared invalid under applicable law, the
affected provision will be considered omitted or modified to conform to
applicable law. All other provisions will remain in full force and effect.
(d) All of Lessor's rights (including indemnity rights) under this
Agreement and each Lease shall survive any expiration or termination of each
Lease and this Agreement and shall be enforceable by Lessor.
(e) This Agreement and each Lease shall be deemed to be made in Michigan
and shall be governed by and construed in accordance with internal Michigan law
applicable to contracts made and performed in Michigan without regard to
conflicts of laws principles. LESSEE WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY LEASE AND LESSEE
SUBMITS TO THE JURISDICTION OF THE FEDERAL DISTRICT COURT FOR THE WESTERN
DISTRICT OF MICHIGAN OR ANY STATE COURT OF COMPETENT JURISDICTION WITHIN KENT
COUNTY, MICHIGAN AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION INSTITUTED BY
LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD BE TRANSFERRED TO A
MORE CONVENIENT FORUM.
LESSOR: LESSEE:
------ ------
STEELCASE FINANCIAL SERVICES, INC. C ME RUN CORP
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Signature Signature
▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------- --------------------------------------
Print or Type Name Print or Type Name
President & Chief Operating Officer
-------------------------------------- --------------------------------------
Print or Type Title Print or Type Title
5/18/00
-------------------------------------- --------------------------------------
Date Date
Form: SC.ML1001
[ILLEGIBLE] Page 4 of 4
Steelcase Financial Services Inc.
a Steelcase Company
--------------------------------------------------------------------------------
PERSONAL LEASE GUARANTY
Master Lease Agreement 14130 dated APRIL 19, 2000.
1. FOR VALUE RECEIVED, and in consideration of, and in order to induce
Steelcase Financial Services Inc., a Michigan corporation ("Lessor"), to
enter into the Master Lease Agreement dated APRIL 19, 2000 and one or more
Equipment Schedules pursuant thereto (collectively referred to herein as
the "Lease") with C ME RUN CORP ("Lessee"), a DE corporation, with its
principal place of business at ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇- , providing
for the lease of certain equipment described in the Lease (herein called
the "Equipment"), the undersigned, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Guarantor"), hereby
unconditionally guarantees to Lessor the full and prompt performance by
Lessee of all obligations which Lessee presently or hereafter may have to
Lessor under the Lease and the payment when due of all rent and all other
sums presently or hereafter owing by Lessee to Lessor under the Lease,
including without limitation, any indemnity obligations (collectively, the
"Obligations"), if there is more than one Guarantor named above, then the
obligations of each shall be joint and several and they collectively
shall be referred to herein as the "Guarantor."
2. Guarantor hereby expressly waives all defenses which might constitute a
legal or equitable discharge of a surety or guarantor, and agrees that
this Guaranty shall be valid and unconditionally binding upon Guarantor
regardless of (a) the reorganization, merger, or consolidation of Lessee
into or with another entity, corporate or otherwise, or the dissolution of
Lessee, or the sale or other disposition of all or substantially all of
the capital stock, business or assets of Lessee to any other person or
party, or (b) the voluntary or involuntary bankruptcy (including a
reorganization in bankruptcy) of Lessee, or (c) any modification or
amendment of the Lease or the granting by Lessor of any delay in
performance to Lessee, or (d) the assertion by Lessor against Lessee of
any of Lessor's rights and remedies provided for under the Lease or
existing in its favor in law, equity or bankruptcy, or (e) the release of
Lessee from any of Lessee's obligations under the Lease by Lessor or by
operation of law or otherwise, or (f) any invalidity, irregularity, defect
or unenforceability of any provision of the Lease.
3. Guarantor hereby waives notice of and consents to the leasing of all
Equipment now or hereafter leased under the Lease and to any subleasing or
other use of any Equipment permitted by Lessor (regardless of whom any
such sublessee or user may be), to all of the provisions of the Lease, and
to any amendment thereof, and to any actions taken thereunder, and to the
execution by Lessee of the foregoing documents and of any other
agreements, documents and instruments executed by Lessee in connection
therewith.
4. Guarantor further waives notice of Lessor's acceptance of this Guaranty,
of any default and non-payment and/or non-performance by Lessee under the
Lease, or presentment, protest and demand, and of all other matters to
which Guarantor might otherwise be entitled. Guarantor further agrees that
this Guaranty shall remain and continue in full force and effect
notwithstanding any renewal, modification or extension of the Lease or the
Lease term of the Equipment, and Guarantor hereby expressly waives all
notice of and consent to any such renewal, modification or extension and
to the execution by Lessee of any documents pertaining to any such
renewal, modification or extension.
5. This Guaranty is a guaranty of payment and performance and not of
collection. Guarantor agrees that Guarantor's liability under this
Guaranty shall be absolute, primary and direct and that the Lessor shall
not be required to pursue any right or remedy it may have against Lessee
or any other guarantor of the Obligations or the Equipment under the Lease
or otherwise and shall not be required to first commence any action or
obtain any judgment against Lessee or any other guarantor of the
Obligations before enforcing this Guaranty against Guarantor.
6. Guarantor warrants to Lessor that Guarantor has adequate means to obtain
financial information from Lessee and that Guarantor is not relying on
Lessor to provide such information now or in the future.
7. Guarantor hereby expressly waives: (a) surrender, release, exchange,
substitution, dealing with or taking any additional collateral; (b)
abstaining from, taking advantage of or realizing upon any security
interest or other guaranty: and (c) any impairment of collateral,
including, but not limited to, failure to perfect a security interest in
collateral.
Form: SD1012
Rev: 09/10/96 Page 1 of 2
8. Guarantor hereby agrees that the failure of Lessor to insist in any one or
more instances upon the strict performance or observance of any of the
terms, provisions or covenants of the Lease, or to exercise any of its
rights thereunder, shall not be construed or deemed to be a waiver or
relinquishment for the future of any such terms, provisions, covenants or
rights, but such terms, provisions, covenants and rights shall continue
and remain in full force and effect. Receipt by Lessor of any rent or
other sums payable under the Lease with knowledge that Lessee has breached
any of the terms, provisions, or covenants of the Lease shall not be
deemed to be a waiver by Lessor of such breach.
9. No assignment or other transfer by Lessor or Lessee of any interest, right
or obligation under the Lease, or assumption by any third party of the
obligations of Lessee under the Lease, shall extinguish or diminish the
unconditional, absolute, primary and direct liability of Guarantor under
this Guaranty, and Guarantor hereby consents to and waives all notice of
any such assignment, transfer or assumption.
10. In the event of any action to enforce this Guaranty, the prevailing party
shall be entitled to recover all costs and expenses, including reasonable
attorneys' fees.
11. This Guaranty is assignable by Lessor without notice to Guarantor, but may
not be assigned by Guarantor. Any assignee of Lessor shall have all the
rights of Lessor hereunder and may enforce this Guaranty against Guarantor
with the same force and effect as if this Guaranty were given to such
assignee in the first instance. This Guaranty shall be construed liberally
in Lessor's favor, shall inure to the benefit of Lessor and its successors
and assigns, and shall be binding upon Guarantor and his successors and
assigns.
12. Guarantor shall have no right to subrogation, and waives any right to
enforce any remedy which Lessor now has or may hereafter have against
Lessee, and waives any benefit of, and any right to participate in, any
security now or hereafter held by Lessor.
13. This Guaranty shell be governed by the internal laws of the State of
Michigan applicable to contracts made and entered into in Michigan.
GUARANTOR WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING
FROM OR RELATED TO THIS GUARANTY AND GUARANTOR SUBMITS TO THE JURISDICTION
OF ANY FEDERAL DISTRICT OR STATE COURT OF COMPETENT JURISDICTION WITHIN
THE STATE OF MICHIGAN AND WAIVES ANY RIGHT TO ASSERT THAT ANY ACTION
INSTITUTED BY LESSOR IN ANY SUCH COURT IS IN THE IMPROPER VENUE OR SHOULD
BE TRANSFERRED TO A MORE CONVENIENT FORUM.
IN WITNESS WHEREOF, Guarantor (or, if applicable, each Guarantor) has executed
this Guaranty this __ day of _______________, 20__.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Guarantor Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Print or Type Name
--------------------------------------------
Print or Type Home Address
--------------------------------------------
Print or Type Home City, State, Zip
--------------------------------------------
Home Phone Number
Form: SD1012
Rev: 09/10/96 Page 2 of 2
ADDENDUM TO MASTER LEASE AGREEMENT
--------------------------------------------------------------------------------
Lessor: Lessee:
================================================================================
Steelcase Financial Service Inc. C ME RUN Corp.
▇▇▇▇ ▇▇▇▇ ▇▇., ▇.▇. ▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
This Addendum supplements and amends the Master Lease Agreement No. 14130 dated
as of April 19, 2000, between the undersigned Lessee and the undersigned Lessor
(the "Master Lease Agreement"). To the extent any term or provision of this
Addendum is inconsistent with the terms set forth in the Master Lease Agreement,
the terms of this Addendum shall control. All capitalized terms used and not
defined in this Addendum shall have the definitions set forth in the Master
Lease Agreement. All references herein to a Section or Sections shall refer to
the numbered paragraphs of the Master Lease Agreement.
================================================================================
Paragraph # 4: The fourth sentence of this paragraph is to read as
follows:
"If any Periodic Rent or other Rent payment is not paid
within 10 days of its due date, Lessee agrees to pay as
additional Rent a late charge equal to 5% of the unpaid
Rent payment."
Paragraph # 8(a): The last sentence is section shall read as follows:
"Lessee will not make claims adjustments with insurers
except with Lessor's prior written consent, which will
not be unreasonably withheld."
Paragraph # 10(f): This section shall read as follows
"Upon Lessor's request, Lessee shall within 120 days of
the close of each fiscal year of Lessee, deliver to
Lessor duplicate copies of Lessee's balance sheet and
profit and loss statement, certified by a recognized
firm of certified public accountants. Upon request,
Lessee will deliver to Lessor duplicate copies of
Lessee's most recent quarterly financial report."
Paragraph # 12(a)(i): This section shall read as follows:
"Lessor has not received a Periodic Rent payment or any
other Rent within 10 days after providing written notice
to Lessee of non-payment";
EXCEPT AS EXPRESSLY MODIFIED HEREIN, THE MASTER LEASE AGREEMENT SHALL BE AND
REMAIN IN FULL FORCE AND EFFECT. EFFECT.
LESSOR LESSEE
------ ------
Steelcase Financial Services Inc. C ME RUN Corp.
BY: BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
ITS: ITS: President
------------------------------ ------------------------------