EXHIBIT 10.21
MASTER EQUIPMENT LEASE AGREEMENT
THIS MASTER EQUIPMENT LEASE AGREEMENT dated as of September 25, 1996
is made by and between KEYCORP LEASING LTD., a Delaware corporation with
its principal place of business at 54 State Street, Albany, New York 12207
("Lessor"), and FIRST ALBANY COMPANIES INC., a New York corporation with
its principal place of business at 41 State Street, Albany, NY 12207
("Lessee").
TERMS AND CONDITIONS OF LEASE
1. Lease. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Equipment, subject to and upon the terms and conditions
set forth herein. Each Equipment Schedule shall constitute a separate and
enforceable lease Incorporating all the terms and conditions of this Master
Equipment Lease Agreement as if such terms and conditions were set forth in
full in such Equipment Schedule. In the event that any term or condition of
this Equipment Schedule conflicts with or is inconsistent with any term or
condition of this Master Equipment Lease Agreement, the terms and
conditions of the Equipment Schedule shall govern.
2. Disclaimer of Warranties. LESSOR MAKES NO (AND SHALL NOT BE
DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR
CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN,
THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THERETO, THE ABSENCE
OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY
DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE EQUIPMENT IS LEASED TO
LESSEE "AS IS" AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. NO
DEFECT IN, OR UNFITNESS OF, THE EQUIPMENT, OR ANY OF THE OTHER FOREGOING
MATTERS, SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR OF ANY OTHER
OBLIGATION HEREUNDER. LESSEE HAS MADE THE SELECTION OF THE EQUIPMENT FROM
THE SUPPLIER BASED ON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE
UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY LESSOR. LESSOR IS NOT
RESPONSIBLE FOR ANY REPAIRS, SERVICE, MAINTENANCE OR DEFECT IN THE
EQUIPMENT OR THE OPERATION THEREOF. IN NO EVENT SHALL LESSOR BE LIABLE FOR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (WHETHER UNDER THE UCC OR
OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY LOSS, COST OR DAMAGE TO
LESSEE OR OTHERS ARISING FROM ANY OF THE FOREGOING MATTERS, INCLUDING,
WITHOUT LIMITATION, DEFECTS, NEGLIGENCE, DELAYS, FAILURE OF DELIVERY OR NON-
PERFORMANCE OF THE EQUIPMENT. ANY WARRANTY BY THE SUPPLIER IS HEREBY
ASSIGNED TO LESSEE BY LESSOR WITHOUT RECOURSE. SUCH WARRANTY SHALL NOT
RELEASE LESSEE FROM ITS OBLIGATION TO LESSOR TO PAY RENT, TO PERFORM ALL
OTHER OBLIGATIONS HEREUNDER AND TO KEEP, MAINTAIN AND SURRENDER THE
EQUIPMENT IN THE CONDITION REQUIRED BY SECTIONS 12 AND 13 HEREOF. Lessee's
execution and delivery of a Certificate of Acceptance shall be conclusive
evidence as between Lessor and Lessee that the Items of Equipment described
therein are in all of the foregoing respects satisfactory to Lessee, and
Lessee shall not assert any claim of any nature whatsoever against Lessor
based on any of the foregoing matters; provided, however, that nothing
contained herein shall in any way bar, reduce or defeat any claim that
Lessee may have against the Supplier or any other person (other than
Lessor).
3. Non-Cancelable Lease. THIS LEASE IS A NET LEASE AND LESSEE'S
OBLIGATION TO PAY RENT AND PERFORM ITS OBLIGATIONS HEREUNDER ARE ABSOLUTE,
IRREVOCABLE AND
UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES WHATSOEVER AND SHALL NOT BE
SUBJECT TO ANY RIGHT OF SET OFF, COUNTERCLAIM, DEDUCTION, DEFENSE OR OTHER
RIGHT WHICH LESSEE MAY HAVE AGAINST THE SUPPLIER, LESSOR OR ANY OTHER
PARTY. LESSEE SHALL HAVE NO RIGHT TO TERMINATE (EXCEPT AS EXPRESSLY
PROVIDED HEREIN) OR CANCEL THIS LEASE OR TO BE RELEASED OR DISCHARGED FROM
ITS OBLIGATION HEREUNDER FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, DEFECTS IN, DESTRUCTION OF, DAMAGE TO OR INTERFERENCE WITH ANY
USE OF THE EQUIPMENT (FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, WAR, ACT OF GOD, STRIKE OR GOVERNMENTAL REGULATION), THE
INVALIDITY, ILLEGALITY OR UNENFORCEABILITY (OR ANY ALLEGATION THEREOF) OF
THIS LEASE OR ANY PROVISION HEREOF, OR ANY OTHER OCCURRENCE WHATSOEVER,
WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER FORESEEN OR
UNFORESEEN.
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4. Definitions. Unless the context otherwise requires, as used in
this Lease, the following terms shall have the respective meanings
indicated below and shall be equally applicable to both the singular and
the plural forms thereof:
(a) "Applicable Law" shall mean all applicable Federal, state,
local and foreign laws (including, without limitation, any Environmental
Law, industrial hygiene and occupational safety or similar laws),
ordinances, judgments, decrees, injunctions, writs and orders of any
Governmental Authority and rules, regulations, orders, licenses and permits
of any Governmental Authority.
(b) "Appraisal Procedure" shall mean the following procedure for
obtaining an appraisal of the Fair Market Sales Value or the Fair Market
Rental Value. Lessor shall provide Lessee with the names of three
independent Appraisers. Within ten (10) business days thereafter, Lessee
shall select one of such Appraisers to perform the appraisal. The selected
Appraiser shall be instructed to perform its appraisal based upon the
assumptions specified in the definition of Fair Market Sales Value or Fair
Market Rental Value, as applicable, and shall complete its appraisal within
twenty (20) business days after such selection. Any such appraisal shall be
final, binding and conclusive on Lessee and Lessor and shall have the legal
effect of an arbitration award. Lessee shall pay the fees and expenses of
the selected Appraiser.
(c) "Appraiser" shall mean a person engaged in the business of
appraising property who has at least ten years' experience in appraising
property similar to the Equipment.
(d) "Authorized Signer" shall mean those officers of Lessee, set
forth on an incumbency certificate (in form and substance satisfactory to
Lessor) delivered by Lessee to Lessor, who are authorized and empowered to
execute this Lease, the Equipment Schedules and all other documents the
execution of which is contemplated hereby.
(e) "Certificate of Acceptance" shall mean a certificate of
acceptance, in form and substance satisfactory to Lessor, executed and
delivered by Lessee in accordance with Section 7 hereof indicating, among
other things, that the Equipment described therein has been accepted by
Lessee for all purposes of this Lease.
(f) "Default" shall mean any event or condition which, with the
passage of time or the giving of notice, or both, would constitute an Event
of Default.
(g) "Environmental Law" shall mean any federal, state, or local
statute, law, ordinance, code, rule, regulation, or order or decree
regulating, relating to. or imposing liability upon a person in connection
with the use, release or disposal of any hazardous, toxic or dangerous
substance, waste, or material as same may relate to the Equipment or its
operation.
(h) "Equipment" shall mean an item or items of personal property
designated from time to time by Lessee which are described on an Equipment
Schedule and which are being or will be leased by Lessee pursuant to this
Lease, together with all replacement parts, additions and accessories
incorporated therein or affixed thereto.
(i) "Equipment Group" shall consist of all Items of Equipment
listed on a particular Equipment Schedule.
(j) "Equipment Location" shall mean the location of the
Equipment, as set forth on an Equipment Schedule, or such other location
(approved by Lessor) as Lessee shall from time to time specify in writing.
(k) "Equipment Schedule" shall mean each equipment lease
schedule from time to time executed by Lessor and Lessee with respect to an
Equipment Group, pursuant to and incorporating by reference all of the
terms and conditions of this Master Equipment Lease Agreement.
(l) "Event of Default" shall have the meaning specified in
Section 22 hereof.
(m) "Fair Market Rental Value" or "Fair Market Sale Value" shall
mean the value of each Item of Equipment for lease or sale, unless
otherwise specified herein as determined between Lessor and Lessee, or, if
Lessor and Lessee are unable to agree, pursuant to the Appraisal Procedure,
which would be obtained in an arms-length transaction between an informed
and willing lessor or seller (under no compulsion to lease or sell) and an
informed and willing lessee or buyer (under no compulsion to lease or
purchase). in determining the Fair Market Rental Value or Fair Market Sale
Value of the Equipment, (a) such Fair Market Rental Value or Fair Market
Sale Value shall be calculated on the assumption that the Equipment is in
the condition and repair required by Sections 12 and 13 hereof, and (b)
there shall be excluded from the calculation thereof the value of any
upgrades and attachments made pursuant to Section 14 hereof in which the
Lessor does not own an interest; provided, however, that, unless otherwise
provided in such Section 22, for purposes of Section 22 of the Lease, Fair
Market Sale Value of the Equipment shall be determined based upon the
actual facts and circumstances then prevailing without regard to the
assumptions in clause (a) above.
(n) "Governmental Action" shall mean all authorizations,
consents, approvals, waivers, filings and declarations of any Governmental
Authority, including, without limitation, those environmental and operating
permits required for the ownership, lease, use and operation of the
Equipment.
(o) "Governmental Authority" shall mean any foreign, Federal,
state, county, municipal or other governmental authority, agency, board or
court.
(p) "Guarantor" shall mean any guarantor of Lessee's obligations
hereunder.
(q) "Item of Equipment" shall mean each item of the Equipment.
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(r) "Late Payment Rate" shall mean an annual interest rate equal
to the lesser of 18% or the maximum interest rate permitted by Applicable
Law.
(s) "Lease", "hereof", "herein" and "hereunder" shall mean, with
respect to an Equipment Group, this Master Equipment Lease Agreement and
the Equipment Schedule on which such Equipment Group is described,
including all addenda attached thereto and made a part thereof.
(t) "Lien" shall mean all mortgages, pledges, security
interests, liens, encumbrances, claims or other charges of any kind
whatsoever.
(u) "Purchase Agreement" shall mean any purchase agreement or
other contract entered into between the Supplier and Lessee for the
acquisition of the Equipment to be leased hereunder.
(v) "Related Equipment Schedule" shall have the meaning set
forth in Section 27 hereof.
(w) "Renewal Notice" shall have the meaning set forth in Section
32 hereof.
(x) "Return Notice" shall have the meaning set forth In Section
13 hereof.
(y) "Rent" shall mean the periodic rental payments due hereunder
for the leasing of the Equipment, as set forth on the Equipment Schedules,
and, where the context hereof requires, all such additional amounts as may
from time to time be payable under any provision of this Lease.
(z) "Rent Commencement Date" shall mean, with respect to an
Equipment Group, the date on which Lessor disburses funds for the purchase
of such Equipment Group, as determined by Lessor in its sole discretion.
(aa) "Rent Payment Date" with respect to an Equipment Group,
shall have the meaning set forth in the Equipment Schedule associated
therewith.
(ab) "Stipulated Loss Value" shall mean, as of any Rent Payment
Date and with respect to an Item of Equipment, the amount determined by
multiplying the Total Cost for such Item of Equipment by the percentage
specified in the applicable Stipulated Loss Value Supplement opposite such
Rent Payment Date.
(ac) "Stipulated Loss Value Supplement" with respect to an
Equipment Group, shall have the meaning set forth in the Equipment Schedule
associated therewith.
(ad) "Supplier" shall mean the manufacturer or the vendor of the
Equipment, as set forth on each Equipment Schedule.
(ae) "Term" shall mean the Initial Term, as defined in Section 8
hereof, and any Renewal Term, as defined. in Section 8 hereof.
(af) "Total Cost" shall mean, with respect to an Item of
Equipment, (1) the acquisition cost of such item of Equipment (including
Lessors capitalized costs), as set forth on the Equipment Schedule on which
such item of Equipment is described, or (2) if no such acquisition cost is
specified, the Suppliers invoice price for such Item of Equipment plus
Lessors capitalized costs, or (3) if no such acquisition cost is specified
and no such invoice price is obtainable, an allocated price for such Item
of Equipment based on the Total Cost of all Items of Equipment set forth on
the Equipment Schedule on which such Item of Equipment is described, as
determined by Lessor in its sole discretion.
5. Supplier Not an Agent. LESSEE UNDERSTANDS AND AGREES THAT (i)
NEITHER THE SUPPLIER, NOR ANY SALES REPRESENTATIVE OR OTHER AGENT OF THE
SUPPLIER, IS (1) AN AGENT OF LESSOR OR (2) AUTHORIZED TO MAKE OR ALTER ANY
TERM OR CONDITION OF THIS LEASE, AND (ii) NO SUCH WAIVER OR ALTERATION
SHALL VARY THE TERMS OF THIS LEASE UNLESS EXPRESSLY SET FORTH HEREIN.
6. Ordering Equipment. Lessee has selected and ordered the Equipment
from the Supplier and, if appropriate, has entered into a Purchase
Agreement with respect thereto. Lessor shall accept an assignment from
Lessee of Lessee's rights, but none of Lessee's obligations, under any such
Purchase Agreement. Lessee shall arrange for delivery of the Equipment so
that it can be accepted in accordance with Section 7 hereof. If an Item of
Equipment is subject to an existing Purchase Agreement between Lessee and
the Supplier, Lessee warrants that such Item of Equipment has not been
delivered to Lessee as of the date of the Equipment Schedule applicable
thereto. If Lessee causes the Equipment to be modified or altered, or
requests any additions thereto prior to the Rent Commencement Date, Lessee
(i) acknowledges that any such modification, alteration or addition to an
Item of Equipment may affect the Total Cost, taxes, purchase and renewal
options, if any, Stipulated Loss Value and Rent with respect to such Item
of Equipment, and (ii) hereby authorizes Lessor to adjust such Total Cost,
taxes, purchase and renewal options, if any, Stipulated Loss Value and Rent
as appropriate. Lessee hereby authorizes Lessor to complete each Equipment
Schedule with the serial numbers and other identification data of the
Equipment Group associated therewith, as such data is received by Lessor.
7. Delivery and Acceptance. Upon acceptance for lease by Lessee of
any Equipment delivered to Lessee and described in any Equipment Schedule,
Lessee shall execute and deliver to Lessor a Certificate of
Acceptance. LESSOR SHALL HAVE NO OBLIGATION TO ADVANCE FUNDS FOR THE
PURCHASE OF THE EQUIPMENT UNLESS AND UNTIL LESSOR SHALL HAVE RECEIVED A
CERTIFICATE OF ACCEPTANCE
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RELATING THERETO EXECUTED BY LESSEE. Such Certificate of Acceptance shall
constitute Lessee's acknowledgment that Such Equipment (a) was received by
Lessee, (b) is satisfactory to Lessee in all respects and is acceptable to
Lessee for lease hereunder, (c) is suitable for Lessee's purposes, (d) is
in good order, repair and condition, (e) has been installed and operates
properly, in accordance with and to the extent required under the terms of
applicable Supplier agreements, and (f) is subject to all of the terms and
conditions of this Lease (including, without limitation, Section 2 hereof).
8. Term; Survival. With respect to any Item of Equipment, unless
otherwise specified thereon, the initial term of this Lease (the "Initial
Term") shall commence on the date on which such Item of Equipment is
delivered to Lessee, and, unless earlier terminated as provided herein,
shall expire on the final Rent Payment Date for such Item of Equipment.
With respect to an Item of Equipment, any renewal term of this Lease
(individually, a "Renewal Term"), as contemplated hereby shall commence
immediately upon the expiration of the Initial Term or any prior Renewal
Term, as the case may be, and, unless earlier terminated as provided
herein, shall expire on the date on which the final payment of Rent is due
and paid hereunder. All obligations of Lessee hereunder shall survive the
expiration, cancellation or other termination of the Term hereof.
9. Rent. With respect to Each Item of Equipment, Lessee shall pay
the Rent set forth on the Equipment Schedule applicable to such Item of
Equipment, commencing on the Rent Commencement Date, and, unless otherwise
set forth on such Equipment Schedule, on the same day of each payment
period thereafter for the balance of the Term. Rent shall be due whether or
not Lessee has received any notice that such payments are due. All Rent
shall be paid to Lessor at its address set forth on the Equipment Schedule,
or as otherwise directed by Lessor in writing.
10. Location; Inspection; Labels. The Equipment shall be delivered
to the Equipment Location and, except as used in the Lessee's ordinary
course of business, shall not be removed therefrom, (a) without Lessors
prior written consent, which consent shall not be unreasonably withheld,
and (b) unless Lessor shall be able to adequately protect its interests in
the Equipment, including any necessary Uniform Commercial Code filings.
Lessor shall have the right to enter upon the Equipment Location and
inspect the Equipment at any reasonable time. Lessor may, without notice to
Lessee, remove the Equipment if the Equipment is, in the opinion of Lessor,
being used beyond its capacity or is in any manner improperly cared for,
abused or misused. At Lessors request, Lessee shall affix labels stating
that the Equipment is owned by Lessor permanently in a prominent place on
the Equipment and shall keep such labels in good repair and condition.
11. Use; Alterations. Lessee shall use the Equipment lawfully and
only in the manner for which it was designed and intended and so as to
subject it only to ordinary wear and tear. Lessee shall comply with all
Applicable Law. Lessee shall immediately notify Lessor in writing of any
existing, pending or threatened investigation, inquiry, claim or action by
any Governmental Authority in connection with any Applicable Law or
Governmental Action which could adversely affect the Equipment or this
Lease. Lessee, at its own expense, shall make such alterations, additions
or modifications or Improvements to the Equipment as may be required from
time to time to meet the requirements of Applicable Law or Governmental
Action. Except as otherwise permitted herein, Lessee shall not make any
alterations, additions, modifications or improvements to the Equipment
without Lessors prior written consent.
12. Repairs and Maintenance. Lessee, at Lessee's own cost and
expense, shall (a) keep the Equipment in good repair, good operating
condition and working order and in compliance with the manufacturers
specifications, and (b) enter into and keep in full force and effect during
the Term hereof a maintenance agreement with the manufacturer of the
Equipment, or a manufacturer-approved maintenance organization, to
maintain, service and repair the Equipment so as to keep the Equipment in
as good operating condition and working order as it was when it first
became subject to this Lease and in compliance with the manufacturers
specifications. Upon Lessors request, Lessee shall furnish Lessor with an
executed copy of any such maintenance agreement. An alternate source of
maintenance may be used by Lessee with Lessors prior written consent.
Lessee, at its own cost and expense and within a reasonable period of time,
shall replace any part of any Item of Equipment that becomes worn out,
lost, stolen, destroyed, or otherwise rendered permanently unfit or
unavailable for use (whether or not such replacement is covered by the
aforesaid maintenance agreement), with a replacement part of the same
manufacture, value, remaining useful life and utility as the replaced part
immediately preceding the replacement (assuming that such replaced part is
in the condition required by this Lease). Such replacement part shall be
free and clear of all Liens. Notwithstanding the foregoing, this paragraph
shall not apply to any Loss or Damage (as defined in Section 16 hereof) of
any item of Equipment.
13. Return of Equipment. Upon the expiration (subject to Section 32
hereof and except as otherwise provided in an Equipment Schedule) or
earlier termination of this Lease, Lessee, at its sole expense, shall
return the
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Equipment to Lessor by delivering such Equipment F.A.S. or F.O.B. to such
location or such carrier (packed for shipping) as Lessor shall specify.
Lessee agrees that the Equipment, when returned, shall be in the condition
required by Section 12 hereof. All components of the Equipment shall have
been properly serviced, following the manufacturers written operating and
servicing procedures. such that the Equipment is eligible for a
manufacturer's standard, full service maintenance contract without Lessors
incurring any expense to repair or rehabilitate the Equipment. If, in the
opinion of Lessor, any Item of Equipment fails to meet the standards set
forth above, Lessee agrees to pay on demand all costs and expenses incurred
in connection with repairing such Item of Equipment and restoring it so as
to meet such standards, assembling and delivering such item of Equipment.
Lessee shall give Lessor ninety (90) days written notice (the "Return
Notice") that Lessee is returning the Equipment as provided for above. If
Lessee fails to return any Item of Equipment as required hereunder, then,
all of Lessee's obligations under this Lease (including, without
limitation, Lessee's obligation to pay Rent for such Item of Equipment at
the rental then applicable under this Lease) shall continue in full force
and effect until such Item of Equipment shall have been returned in the
condition required hereunder.
14. Equipment Upgrades/Attachments. In addition to the requirements
of Section 11 hereof, Lessee, at its own expense, may from time to time add
or install upgrades or attachments to the Equipment during the Term;
provided, that such upgrades or attachments (a) are readily removable
without causing material damage to the Equipment, (b) do not materially
adversely affect the Fair Market Sale Value, the Fair Market Rental Value,
residual value, productive capacity, utility or remaining useful life of
the Equipment, and (C) do not cause such Equipment to become "limited use
property" within the meaning of Revenue Procedure 76-30, 1976-2 C.B. 647
(or such other successor tax provision), as of the applicable delivery date
or the time of such upgrade or attachment. Any such upgrades or attachments
which are not required by Section 11 hereof and which can be removed
without causing damage to or adversely affecting the condition of the
Equipment, or reducing the Fair Market Sale Value, the Fair Market Rental
Value, residual value, productive capacity, utility or remaining useful
life of the Equipment shall remain the property of Lessee; and upon the
expiration or earlier termination of this Lease and provided that no Event
of Default exists, Lessee may, at its option, remove any such upgrades or
attachments and, upon such removal, shall restore the Equipment to the
condition required hereunder.
15. Sublease and Assignment (a) WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT, LESSEE SHALL NOT (i) ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE OR
OTHERWISE DISPOSE OF THIS LEASE. THE EQUIPMENT OR ANY INTEREST THEREIN, OR
(ii) SUBLET OR LEND THE EQUIPMENT TO, OR PERMIT THE EQUIPMENT TO BE USED
BY, ANYONE OTHER THAN LESSEE OR LESSEE'S QUALIFIED EMPLOYEES OR LESSEE'S
WHOLLY OWNED SUBSIDIARIES.
(b) Lessor, at any time with or without notice to Lessee, may
sell, transfer, assign and/or grant a security interest in this Lease, any
Equipment Schedule or any Item of Equipment. In any such event, any such
purchaser, transferee, assignee or secured party shall have and may
exercise all of Lessor's rights hereunder with respect to the items to
which any such sale, transfer, assignment and/or security interest relates,
and LESSEE SHALL NOT ASSERT AGAINST ANY SUCH PURCHASER, TRANSFEREE,
ASSIGNEE OR SECURED PARTY ANY DEFENSE, COUNTERCLAIM OR OFFSET THAT LESSEE
MAY HAVE AGAINST LESSOR. Lessee acknowledges that no such sale, transfer,
assignment and/or security interest will materially change Lessee's duties
hereunder or materially increase its burdens or risks hereunder. Lessee
agrees that upon written notice to Lessee of any such sale, transfer,
assignment and/or security Interest, Lessee shall acknowledge receipt
thereof in writing and shall comply with the directions and demands of
Lessor's successor or assign.
16. Loss of or Damage to Equipment. (a) Lessee shall bear the
entire risk of loss, theft, destruction, disappearance of or damage to any
and all Items of Equipment ("Loss or Damage") from any cause whatsoever
during the Term hereof until the Equipment is returned to Lessor in
accordance with Section 13 hereof. No Loss or Damage shall relieve Lessee
of the obligation to pay Rent or of any other obligation under this Lease.
(b) In the event of Loss or Damage to any Item of Equipment,
Lessee, at the option of Lessor, shall within thirty (30) days following
such Loss or Damage: (1) place such Item of Equipment in good condition and
repair, in accordance with the terms hereof; (2) replace such Item of
Equipment with replacement equipment (acceptable to Lessor) in as good
condition and repair, and with the same value, remaining useful economic
life and utility, as such replaced Item of Equipment immediately preceding
the Loss or Damage (assuming that such replaced Item of Equipment is the
condition required by this Lease), which replacement equipment shall be
free and dear of all Liens; or (3) pay to Lessor the sum of (i) all Rent
due and owing hereunder with respect to such Item of Equipment (at the time
of such payment) plus (ii) the Stipulated Loss Value as of the Rent Payment
Date next following the date of such Loss or Damage with respect to such
Item of Equipment, as set forth on the Schedule applicable thereto. Upon
Lessors receipt of the payment required under subsection (3) above, Lessee
shall be entitled to Lessors interest in such Item of Equipment, in its
then condition and location, "as is" and "where is", without any
warranties, express or implied. If Lessee replaces the Item of Equipment
pursuant to subsection (b) above, title to such replacement equipment shall
immediately (and without further act) vest in Lessor and thereupon shall be
deemed to constitute
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Items of Equipment and be fully subject to this Lease as if originally
leased hereunder. If Lessee fails to either restore or replace the Item of
Equipment pursuant to subsection (1) or (2) above, respectively, Lessee
shall make the payment under subsection (3) above.
17. Insurance. (a) Lessee, at all times during the Term hereof
(until the Equipment shall have been returned to Lessor) and at Lessee's
own cost and expense, shall maintain (1) insurance against all risks of
physical loss or damage to the Equipment (including theft and collision for
Equipment consisting of motor vehicles) in an amount not less than the full
replacement value thereof or the Stipulated Loss Value thereof, whichever
is greater, and (2) comprehensive public liability insurance including
blanket contractual liability for personal and bodily injury and property
damage in an amount satisfactory to Lessor.
(b) All insurance policies required hereunder shall (1) require
30 days' prior written notice of cancellation or material change in
coverage to Lessor (any such cancellation or change, as applicable, not
being effective until the thirtieth (3Oth) day after the giving of such
notice); (2) name "KeyCorp and its subsidiaries and affiliated companies,
including KeyCorp Leasing Ltd." as an additional insured under the public
liability policies and name Lessor as sole loss payee under the property
insurance policies; (3) not require contributions from other policies held
by Lessor; (4) waive any right of subrogation against Lessor; (5) in
respect of any liability of any of Lessor, except for the insurers' salvage
rights in the event of a Loss or Damage, waive the right of such insurers
to set-off, to counterclaim or to any other deduction, whether by
attachment or otherwise, to the extent of any monies due Lessor under such
policies; (6) not require that Lessor pay or be liable for any premiums
with respect to such Insurance covered thereby; a) be in full force and
effect throughout any geographical areas at any time traversed by any Item
of Equipment; and (8) contain breach of warranty provisions providing that,
in respect of the interests of Lessor in such policies, the insurance shall
not be invalidated by any action or inaction of Lessee or any other person
(other than Lessor) and shall insure Lessor regardless of any breach or
violation of any warranty, declaration or condition contained in such
policies by Lessee or by any other person (other than Lessor). Prior to the
first date of delivery of any Item of Equipment hereunder, and thereafter
not less than is days prior to the expiration dates of the expiring
policies theretofore delivered pursuant to this Section, Lessee shall
deliver to Lessor a duplicate original of all policies (or in the case of
blanket policies, certificates thereof issued by the insurers thereunder)
for the insurance maintained pursuant to this Section.
18. General Tax Indemnification. Lessee shall pay when due and shall
indemnify and hold Lessor harmless from and against (on an after-tax basis)
any and all taxes, fees, withholdings, levies, imposts, duties, assessments
and charges of any kind and nature (together with interest and penalties
thereon)(including, without limitation, sales, use, gross receipts,
personal property, ad valorem, business and occupational, franchise, value
added, leasing, leasing use, documentary, stamp or other taxes) imposed
upon or against Lessor, Lessor's assigns, Lessee or any Item of Equipment
by any Governmental Authority with respect to any Item of Equipment or the
manufacturing, ordering, sale, purchase, shipment, delivery, acceptance or
rejection, ownership, titling, registration, leasing, subleasing,
possession, use, operation, removal, return or other dispossession thereof
or upon the rents, receipts or earnings arising therefrom or upon or with
respect to this Lease, excepting only all Federal, state and local taxes on
or measured by Lessors net income (other than income tax resulting from
making any alterations, improvements, modifications, additions, upgrades,
attachments, replacements or substitutions by Lessee). Whenever this Lease
terminates as to any Item of Equipment, Lessee shall, upon written request
by Lessor, advance to Lessor the amount determined by Lessor to be the
personal property or other taxes on said item which are not yet payable,
but for which Lessee is responsible, provided Lessor provides Lessee with
copies of tax bills supporting Lessor's request.
19. Lessors Right to Perform for Lessee. If Lessee fails to perform
or comply with any of its obligations contained herein, Lessor may (but
shall not be obligated to do so) itself perform or comply with such
obligations, and the amount of the reasonable costs and expenses of Lessor
incurred in connection with such performance or compliance, together with
interest on such amount at the Late Payment Rate, shall be payable by
Lessee to Lessor upon demand. No such performance or compliance by Lessor
shall be deemed a waiver of the rights and remedies of Lessor or any
assignee of Lessor against Lessee hereunder or be deemed to cure the
default of Lessee hereunder.
20. Delinquent Payments; Interest. If Lessee fails to pay any Rent
or other sums under this Lease when the same becomes due, Lessee shall pay
to Lessor a late charge equal to five percent (5%) of such delinquent
amount. Such late charge shall be payable by Lessee upon demand by Lessor
and shall be deemed Rent hereunder. In no event shall such late charge
exceed the maximum amounts permitted under Applicable Law.
21. Personal Property; Liens. Lessor and Lessee hereby agree that
the Equipment is and shall at all times remain, personal property
notwithstanding the fact that any Item of Equipment may now be, or
hereafter become, in any manner affixed or attached to real property or any
improvements thereon. Lessee shall at all times
MASTER EQUIPMENT LEASE AGREEMENT
R94-100.996
6
keep the Equipment free and clear from all Liens. Lessee shall (i) give
Lessor immediate written notice of any such Lien, (ii) promptly, at
Lessee's sole cost and expense, take such action as may be necessary to
discharge any such Lien, and (iii) indemnify and hold Lessor, on an after-
tax basis, harmless from and against any loss or damage caused by any such
Lien.
22. Events of Default; Remedies. (a) As used herein, the term
"Event of Default" shall mean any of the following events: (1) Lessee fails
to pay any Rent within fifteen (15) days after the same shall have become
due; (2) Lessee or any Guarantor becomes insolvent or makes an assignment
for the benefit of its creditors, which is not dismissed within sixty (60)
days; (3) a receiver, trustee, conservator or liquidator of Lessee or any
Guarantor or of all or a substantial part of Lessee's or such Guarantors
assets is appointed with or without the application or consent of Lessee or
such Guarantor, respectively; (4) a petition is filed by or against Lessee
or any Guarantor under any bankruptcy, insolvency or similar legislation;
(5) Lessee or any Guarantor violates or fails to perform any provision of
either this Lease or any other loan, lease or credit agreement or any
acquisition or purchase agreement with Lessor or any other party; (6)
Lessee violates or fails to perform any covenant or representation made by
Lessee herein; (7) any representation or warranty made herein or In any
Lease, certificate, financial statement or other statement furnished to
Lessor shall prove to be false or misleading in any material respect as of
the date on which the same was made; (8) Lessee makes a bulk transfer of
all, or substantially all, of its assets; or (9) there is a material
adverse change in Lessee's or any Guarantors financial condition since the
first Rent Commencement Date of any Equipment Schedule executed in
connection herewith. An Event of Default with respect to any Equipment
Schedule hereunder shall, at Lessors option, constitute an Event of Default
for all Equipment Schedules hereunder and any other agreements between
Lessor and Lessee.
(b) Upon the occurrence of an Event of Default, Lessor may do
one or more of the following as Lessor in ifs sole discretion shall elect:
(1) proceed by appropriate court action or actions, either at law or in
equity, to enforce performance by Lessee of the applicable covenants of
this Lease or to recover damages for the breach thereof; (2) sell any item
of Equipment at public or private sale; (3) hold, keep idle or lease to
others any Item of Equipment as Lessor in its sole discretion may
determine; (4) by notice in writing to Lessee, terminate this Lease,
without prejudice to any other remedies hereunder; (5) demand that Lessee,
and Lessee shall, upon written demand of Lessor and at Lessee's expense
forthwith return all Items of Equipment to Lessor or its order in the
manner and condition required by, and otherwise in accordance with all of
the provisions of this Lease, except those provisions relating to periods
of notice; (6) enter upon the premises of Lessee or other premises where
any Item of Equipment may be located and, without notice to Lessee and with
or without legal process, take possession of and remove all or any such
Items of Equipment without liability to Lessor by reason of such entry or
taking possession, and without such action constituting a termination of
this Lease unless Lessor notifies Lessee in writing to such effect; (7) by
written notice to Lessee specifying a payment date, demand that Lessee pay
to Lessor, and Lessee shall pay to Lessor, on the payment date specified in
such notice, as liquidated damages for loss of a bargain and not as a
penalty, any unpaid Rent due prior to the payment date specified in such
notice plus whichever of the following amounts Lessor, in its sole
discretion, shall specify in such notice (together with interest on such
amount at the Late Payment Rate from the payment date specified in such
notice to the date of actual payment): (i) an amount, with respect to an
Item of Equipment, equal to the Rent payable for such Item of Equipment for
the remainder of the then current Term thereof, after discounting such Rent
to present worth as of the payment date specified in such notice on the
basis of a per annum rate of discount equal to five percent (5%) from the
respective dates upon which such Rent would have been paid had this Lease
not been terminated; or (ii) the Stipulated Loss Value, computed as of the
payment date specified in such notice or, if such payment date is not a
Rent Payment Date, the Rent Payment Date next following the payment date
specified in such notice (provided. however, that, with respect to any item
of Equipment returned to or repossessed by Lessor, the amount recoverable
under this clause (ii) shall be reduced (but not below zero) by an amount
equal to the Fair Market Sales Value (taking into account its actual
condition) of such Item of Equipment; (8) cause Lessee, at its expense, to
promptly assemble any and all Items of Equipment and return the same to
Lessor at such place as Lessor may designate in writing; and (9) exercise
any other right or remedy available to Lessor 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. In
addition, Lessee shall be liable, except as otherwise provided above, for
any and all unpaid Rent due hereunder before or during the exercise of any
of the foregoing remedies, and for legal fees and other costs and expenses
incurred by mason of the occurrence of any Event of Default or the exercise
of Lessors remedies with respect thereto, including without limitation the
repayment in full of any costs and expenses necessary to be expended in
repairing any Item of Equipment in order to cause it to be in compliance
with all maintenance and regulatory standards imposed by this Lease. If an
Event of Default occurs, to the fullest extent permitted by law, Lessee
hereby waives any right to notice of sale and further waives any defenses,
rights, offsets or claims against Lessor because of the manner or method of
sale or disposition of any items of Equipment. None of Lessors rights or
remedies hereunder are intended to be exclusive of, but each shall be
cumulative and in addition to any other right or remedy referred to
hereunder or otherwise available to Lessor or its assigns at law or in
equity. No express or implied waiver by Lessor of any Event of Default
shall constitute a waiver of any other Event of Default or a waiver of any
of Lessors rights.
MASTER EQUIPMENT LEASE AGREEMENT
R94-100.996
7
23. Notices. All notices and other communications hereunder shall be
in writing and shall be transmitted by hand, overnight courier or certified
mail (return receipt requested), postage prepaid. Such notices and other
communications shall be addressed to the respective party at the address
set forth above or at such other address as any party may from time to time
designate by notice duly given in accordance with this Section. Such
notices and other communications shall be effective upon receipt.
24. General Indemnification. Lessee shall pay, and shall indemnify
and hold Lessor harmless on an aftertax basis from and against, any and all
liabilities, causes of action, claims, suits, penalties, damages, losses,
costs or expenses (including attorneys' fees), obligations, liabilities,
demands and judgments, and Liens, of any nature whatsoever (collectively, a
"Liability") arising out of or in any way related to: (a) this Lease or any
other written agreement entered into in connection with the transaction
contemplated hereby and thereby (including, without limitation, a Purchase
Agreement, if any) or any amendment, waiver or modification of any of the
foregoing or the enforcement of any of the terms hereof or any of the
foregoing, (b) the manufacture, purchase, ownership, selection, acceptance,
rejection, possession, lease, sublease, operation, use, maintenance,
documenting, inspection, control, loss, damage, destruction, removal,
storage, surrender, sale, use, condition, delivery, nondelivery, return or
other disposition of or any other matter relating to any Item of Equipment
or any part or portion thereof (including, in each case and without
limitation, latent or other defects, whether or not discoverable, any claim
for patent, trademark or copyright Infringement and any and all Liabilities
in any way relating to or arising out of injury to persons, properties or
the environment or any and all Liabilities based on strict liability in
tort, negligence, breach of warranties or violations of any regulatory law
or requirement, (c) a failure to comply fully with any Environmental Law
with respect to the Equipment or its operation or use, and (d) Lessee's
failure to perform any covenant, or breach of any representation or
warranty, hereunder; provided, that the foregoing indemnity shall not
extend to the Liabilities to the extent resulting solely from the gross
negligence or willful misconduct of Lessor. Lessee shall deliver promptly
to Lessor (i) copies of any documents received from the United States
Environmental Protection Agency or any state, county or municipal
environmental or health agency and (ii) copies of any documents submitted
by Lessee or any of its subsidiaries to the United States Environmental
Protection Agency or any state, county or municipal environmental or health
agency concerning the Equipment or its operation.
25. Severability; Captions. Any provision of this Lease or any
Equipment Schedule 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 shall not
invalidate or render unenforceable such provision in any other
jurisdiction. Captions are intended for convenience or reference only, and
shall not be construed to define, limit or describe the scope or intent of
any provisions hereof.
26. Lessors Expense. Lessee shall pay all costs and expenses of
Lessor, including attorneys' fees and the fees of any collection agencies,
incurred by Lessor in enforcing any of the terms, conditions or provisions
hereof or in protecting Lessors rights hereunder.
27. Related Equipment Schedules. In the event that any Item of
Equipment covered under any Equipment Schedule hereunder may become
attached or affixed to, or used in connection with, Equipment covered under
another Equipment Schedule hereunder (a "Related Equipment Schedule"),
Lessee agrees that, if Lessee elects to exercise a purchase or renewal
option under any such Equipment Schedule, or if Lessee elects to return the
Equipment under any such Equipment Schedule pursuant to Section 13 hereof,
then Lessor, in its sole discretion, may require that all Equipment leased
under all Related Equipment Schedules be similarly disposed of.
28. Financial and Other Data. During the Term hereof, Lessee shall
furnish Lessor, as soon as available and in any event within 60 days after
the end of each quarterly period (except the last) of each fiscal year,
and, as soon as available and in any event within 120 days after the last
day of each fiscal year, financial statements of Lessee and each Guarantor,
in each case certified by an independent public accountant if customarily
available or requested. Lessee shall also furnish such other financial
reports, information or data as Lessor may reasonably request from time to
time.
29. Commitment Fee Requirement. An amount equal to the first.
periodic payment of Rent must accompany each Lessee proposal for an
Equipment Schedule hereunder. THIS COMMITMENT FEE IS NON-REFUNDABLE;
provided, however, that, upon Lessors acceptance of Lessee's proposal to
enter into such Equipment Schedule, such commitment fee shall be applied to
the first periodic payment of Rent thereunder.
MASTER EQUIPMENT LEASE AGREEMENT
R94-100.996
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30. No Affiliation with the Supplier. Lessee hereby represents and
warrants to Lessor that, except as previously disclosed in writing to
Lessor, neither Lessee nor any of its officers or directors (if a
corporation) or partners (if a partnership) has, directly or indirectly,
any financial interest in the Supplier.
31. Representation and Warranties of Lessee. Lessee represents and
warrants that: (a) Lessee is a corporation duly organized and validly
existing in good standing under the laws of the state of its incorporation;
(b) the execution, delivery and performance of this Lease and all related
Instruments and documents: (1) have been duly authorized by all necessary
corporate action on the part of Lessee, (2) do not require the approval of
any stockholder, partner, trustee, or holder of any obligations of Lessee
except such as have been duly obtained, and (3) do not and will not
contravene any law, governmental rule, regulation or order now binding on
Lessee, or the charter or by-laws of Lessee, or contravene the provisions
of, or constitute a default under, or result in the creation of any lien or
encumbrance upon the property of Lessee under, any indenture, mortgage,
contract or other agreement to which Lessee is a party or by which it or
its property is bound; (c) this Lease and all related instruments and
documents, when entered into, will constitute legal, valid and binding
obligations of Lessee enforceable against Lessee in accordance with the
terms thereof; (d) there are no pending actions or proceedings to which
Lessee is a party, and them are no other pending or threatened actions or
proceedings of which Lessee has knowledge, before any court, arbitrator or
administrative agency, which, either individually or in the aggregate,
would adversely affect the financial condition of Lessee, or the ability of
Lessee to perform its obligations hereunder; (e) Lessee is not in default
under any obligation for the payment of borrowed money, for the deferred
purchase price of property or for the payment of any rent under any lease
agreement which, either individually or in the aggregate, `would have the
same such effect; (f) under the laws of the state(s) in which the Equipment
is to be located, the Equipment consists solely of personal property and
not fixtures; (g) the financial statements of Lessee (copies of which have
been furnished to Lessor) have been prepared in accordance with generally
acceptable accounting principles consistently applied ("GAAP"), and fairly
present Lessee's financial condition and the results of its operations as
of the date of and for the period covered by such statements, and since the
date of such statements there has been no material adverse change in such
condiftions or operations; (h) the address stated above is the chief place
of business and chief executive office, or In the case of individuals, the
primary residence, of Lessee; (i) Lessee does not conduct business under a
trade, assumed or fictitious name; and (j) the Equipment is being leased
hereunder solely for business purposes and that no item of Equipment will
be used for personal, family or household purposes.
32. Renewal And Purchase Options. With respect to an Equipment
Schedule and the Equipment Group set forth thereon, so long as no Default
or Event of Default shall have occurred and is continuing, then, upon not
less than ninety (90) days prior written notice to Lessor, (the "Renewal
Notice") Lessee may (a) at the expiration of the initial Term, or any
Renewal Term, purchase all, but not less than all, of the Equipment Group
for the Fair Market Sale Value of such Equipment Group, payable in cash to
Lessor upon the expiration of the Initial Term or any Renewal Term, as the
case may be, (b) at the expiration of the Initial Term, renew this Lease on
a month to month basis at the same Rent payable at the expiration of the
Initial Term, or (c) at the expiration of the Initial Term, renew' this
Lease for a minimum period of not less than twelve (12) consecutive months
at the then current Fair Market Rental Value. If Lessee fails to give
Lessor the Return Notice or the Renewal Notice at least ninety (90) days
before the expiration of the Initial Term, Lessee shall be deemed to have
chosen option (b) above. If Lessee exercises option (a) above, Lessee shall
purchase the Equipment "as is" and "where is" and without any warranties,
express or implied, by Lessor.
33. Lessee's Waivers. To the extent permitted by Applicable Law,
Lessee hereby waives (a) any and all rights and remedies which it may now
have or which at any time hereafter may be conferred upon it by statute
(including, without limitation, Article 2A of the Uniform Commercial Code,
as applicable) or otherwise, (1) which may limit or modify Lessor's rights
or remedies hereunder, (2) to terminate, cancel, quit, repudiate or
surrender this Lease, except as expressly provided herein; (3) to reject,
revoke acceptance or accept partial delivery of the Equipment; (4) to
recover damages from Lessor for any breach of warranty or for any other
reason provided, however, that no such waiver shall preclude Lessee from
asserting any such claim against Lessor in a separate cause of action; or
(5) to setoff or deduct all or any part of any claimed damages resulting
from Lessor's default, if any, under this Lease.
34. UCC Filings. LESSEE HEREBY APPOINTS LESSOR OR ITS ASSIGNEE AS ITS
TRUE AND LAWFUL ATTORNEY IN FACT, IRREVOCABLY AND COUPLED WITH AN INTEREST,
TO EXECUTE AND FILE ON BEHALF OF LESSEE ALL UCC FINANCING STATEMENTS WHICH
IN LESSOR'S SOLE DISCRETION ARE NECESSARY OR PROPER TO SECURE LESSOR'S
INTEREST IN THE EQUIPMENT IN ALL APPLICABLE JURISDICTIONS.
35. Miscellaneous. Time is of the essence with respect to this
Lease. Any failure of Lessor to require strict performance by Lessee or any
waiver by Lessor of any provision herein shall not be construed as a
consent or waiver of any provision of this Lease. Neither this Lease nor
any Equipment Schedule may be
MASTER EQUIPMENT LEASE AGREEMENT
R94-110.996
9
amended except by a writing signed by Lessor and Lessee. This Lease and
each Equipment Schedule shall be binding upon, and inure to the benefit of,
the parties hereto, their permitted successors and assigns. This Lease will
be binding upon Lessor only if executed by a duly authorized officer or
representative of Lessor at Lessors principal place of business as set
forth above. This Lease, and all other documents (the execution and
delivery of which by Lessee is contemplated hereunder), shall be executed
on Lessee's behalf by Authorized Signers of Lessee. THIS LEASE IS BEING
DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
36. Jury Trial Waiver. LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO WHICH LESSOR OR LESSEE MAY BE PARTIES ARISING
OUT OF OR IN ANY WAY PERTAINING TO THIS LEASE. THIS WAIVER IS MADE
KNOWINGLY, WILLINGLY AND VOLUNTARILY BY THE LESSOR AND THE LESSEE WHO EACH
ACKNOWLEDGE THAT NO REPRESENTATIONS HAVE BEEN MADE BY ANY INDIVIDUAL TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT.
37. More than One Lessee. If more than one person or entity executes
this Lease, each Equipment Schedule, and all addenda or other documents
executed in connection herewith or therewith, as "Lessee," the obligations
of "Lessee" contained herein and therein shall be deemed joint and several
and all references to "Lessee" shall apply both individually and jointly.
38. Quiet Enjoyment. So long as no Event of Default has occurred and
is continuing, Lessee shall peaceably hold and quietly enjoy the Equipment
without interruption by Lessor or any person or entity claiming through
Lessor.
39. Entire Agreement. This Lease, together with all Equipment
Schedules, riders and addenda executed by Lessor and Lessee collectively
constitute the entire understanding or agreement between Lessor and Lessee
with respect to the leasing of the Equipment, and there is no understanding
or agreement, oral or written, which is not set forth herein or therein. By
initialing below, Lessee hereby further acknowledges the conditions of this
Section 39.
Lessee's
Initials:______________
40. Execution in Counterparts. This Master Equipment Lease Agreement
may be executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of
the day and year first above written.
Lessor:
KEYCORP LEASING LTD.
By:_______________________________
Name:
Title:
Lessee:
FIRST ALBANY COMPANIES INC.
By:_______________________________
Name:
Title:
MASTER EQUIPMENT LEASE AGREEMENT
R94-100.996
10
CERTIFICATE OF SECRETARY
OF
FIRST ALBANY COMPANIES INC.
I, ____________________, the duly elected and qualified Secretary of
FIRST ALBANY COMPANIES INC., (The "Corporation"), do hereby certify:
a. That attached hereto as exhibit A are complete and correct copies
of resolutions adopted by the Board of Directors of the Corporation,
authorizing the actions referred to therein; said resolutions constitute
all of the resolutions adopted by Such Board of Directors relating to such
matters: such resolutions have not been in any way modified, amended,
annulled, rescinded or revoked and am in full force and effect as of the
date hereof; and
b. The persons listed In Exhibit B attached hereto are duly
qualified and acting officers of the Corporation, holding on the date
hereof the offices set forth opposite their names and the signatures
appearing opposite their names are the genuine signatures of such officers.
IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of
_____________, 1996.
________________________
Secretary
Exhibit B
INCUMBENCY CERTlFICATE
Name: Office: Signature:
__________________________ ___________________________
___________________________
__________________________ ___________________________
___________________________
__________________________ ___________________________
___________________________
__________________________ ___________________________
___________________________
__________________________ ___________________________
___________________________
Exhibit A
RESOLUTION OF THE BOARD OF DIRECTORS OF
FIRST ALBANY COMPANIES INC.
DATED__________, 1996.
WHEREAS, the Board of Directors of FIRST ALBANY COMPANIES INC. (the
"Corporation") desire that the Corporation enter into an equipment leasing
transaction with KeyCorp Leasing Ltd., as lessor, for the purpose of
leasing the equipment (the "Equipment") described in a Master Equipment
Lease Agreement and various equipment schedules from time to time entered
into with respect thereto (collectively, the "Lease");
NOW, THEREFORE, BE IT RESOLVED, that (i) the execution and delivery of
the Lease by the Corporation and the financing of the acquisition of the
Equipment am hereby authorized, approved, ratified and confirmed in all
respects, and (ii) the Corporation hereby is, and the Authorized Officers
(as defined below) hereby are, authorized and empowered to negotiate and
enter into the Lean and such other documents as may be necessary,
advisable, or proper in connection with the above transaction, and be it;
FURTHER RESOLVED, that _________________________, ___________________
of the Corporation, and __________________________,
_________________________of the Corporation (herein the "Authorized
Officers') be, and hereby are, authorized to execute and deliver the Lease
and any and all certificates, documents, instruments or other papers as may
be necessary or desirable in order to consummate the transactions therein
contemplated, and that all actions heretofore taken or taken hereinafter by
the Authorized Officers in furtherance of the actions herein authorized am
ratified, confirmed, adopted and approved in all respects.