1
EXHIBIT 10.30
CORPORATE GUARANTY
Dated 5/2/96
Master Lease Agreement Date: 5/2/96
Lessee Name: ISIS 2000, LIMITED PARTNERSHIP
Equipment Cost: $229,387.55
1. For valuable consideration, the receipt of which is hereby
acknowledged, the undersigned jointly and severally unconditionally guarantee
to BANC ONE LEASING CORPORATION (hereinafter called "Lessor") the full and
prompt performance by the lessee identified above (hereinafter called
"Lessee"), of all obligations which Lessee now has or may hereafter have to
Lessor, including but not limited to obligations under equipment leases and
promissory notes executed in connection with anticipated equipment leases
(including but not limited to all present and future lease schedules and
promissory notes under the Master Lease identified above, with a total original
equipment cost to the Lessor of no more than the amount of the Equipment Cost
set forth above), and unconditionally guarantee the prompt payment when due
(whether at scheduled maturity, upon acceleration or otherwise) of any and all
sums, indebtedness and liabilities of whatsoever nature, due or to become due,
direct or indirect, absolute or contingent, now or hereafter at any time owed
or contracted by Lessee to Lessor, and all costs and expenses of and incidental
to collection of any of the foregoing, including reasonable attorneys' fees
(all of the foregoing hereinafter called "Obligations"). It is the
undersigned's express intention that this guaranty in addition to covering all
present Obligations of Lessee to Lessor, shall extend to all future Obligations
of Lessee to Lessor, whether or not such Obligations are reduced or entirely
extinguished and thereafter increased or are reincurred, whether or not such
Obligations are related to the Master Lease identified above, whether or not
such Obligations exceed the Equipment Cost identified above, and whether or not
such Obligations are specifically contemplated by the undersigned, Lessee, and
Lessor as of the date hereof.
2. This is an absolute and unconditional guarantee of payment and
not of collection. Lessor shall not be required, as a condition of the
liability of the undersigned, to resort to, enforce or exhaust any of its
remedies against the Lessee or any other party who may be liable for payment on
any Obligation or to resort to, marshall, enforce or exhaust any of its
remedies against any leased property or any property given or held as security
for this Guaranty or any Obligation.
3. The undersigned hereby waive and grant to Lessor, without
notice to the undersigned and without in any way affecting the liability of the
undersigned, the right at any time and from time to time, to extend other and
additional credit, leases, loans or financial accommodations to Lessee apart
from the Obligations, to deal in any manner as it shall see fit with any
Obligation of Lessee to Lessor and with any leased property or security for
such Obligation, including, but not limited to, (i) accepting partial payments
on account of any Obligation, (ii) granting extensions or renewals of all or
any part of any Obligation, (iii) releasing, surrendering, exchanging, dealing
with, abstaining
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from taking, taking, attaining from perfecting, perfecting or accepting
substitutes for any or all leased property or security which it holds or may
hold for any Obligation, (iv) modifying, waiving, supplementing or otherwise
changing any of the terms, conditions or provisions contained in any Obligation
and (v) the addition or release of any other party or person liable hereon,
liable on the Obligations or liable an any other guaranty executed to guarantee
any of Lessee's Obligations. The undersigned jointly and severally hereby agree
that any and all settlements, compromises, compositions, accounts stated and
agreed balances made in good faith between Lessor and Lessee shall be binding
upon the undersigned.
4. Every right, power and discretion herein granted to Lessor
shall be for the benefit of the successors or assigns of Lessor and of any
transferee or assignee of any Obligation covered by this Guaranty, and in the
event any such Obligation shall be transferred or assigned, every reference
herein to Lessor shall be construed to mean, as to such Obligation, the
transferee or assignee thereof. This Guaranty shall be binding upon each of the
undersigned's executors, administrators, heirs, successors and assigns.
5. This Guaranty shall continue in force for so long as Lessee
shall be obligated to Lessor, and thereafter until Lessor shall have actually
received written notice of the termination hereof from the undersigned, it
being contemplated that Lessee may borrow, lease, repay and subsequently borrow
money from or lease property from, or become obligated to, Lessor from time to
time, and the undersigned, not having given notice of the termination hereof as
herein provided for, shall be deemed to have permitted this Guaranty to remain
in full force and effect for the purpose of inducing Lessor to make further
leases or loans to Lessee; provided, however, no notice of termination of this
Guaranty shall affect in any manner the rights of Lessor arising under this
Guaranty with respect to the following: (a) any Obligation incurred by Lessee
in connection with the Master Lease identified above with a total equipment
cost of no more than the amount of the Total Equipment Cost set forth above,
whether such Obligation is in the form of a lease or a promissory note; or (b)
any Obligation incurred by Lessee prior to receipt by Lessor of written notice
of termination or any Obligation incurred after receipt of such written notice
pursuant to a written agreement entered into by Lessor prior to receipt of such
notice. The undersigned expressly waive notice of the incurring by Lessee of
any Obligation to Lessor. The undersigned also waive presentment, demand of
payment, protest, notice of dishonor or nonpayment of or nonperformance of any
Obligation.
6. The undersigned hereby waive any claims or rights which they
might now have or hereafter acquire against Lessee or any other person
primarily or contingently liable on any Obligation of Lessee, which claims or
rights arise from the existence or performance of the undersigned's Obligations
under this Guaranty or any other guaranty or under any instrument or agreement
with respect to any leased property or any property constituting collateral or
security for this Guaranty or any other guaranty, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of Lessor
or any other creditor which the undersigned now has or hereafter acquires,
whether such claim or right arises in equity, under contract or statute, at
common law, or otherwise.
7. Lessor's rights hereunder shall be reinstated and revived, and
this Guaranty shall be fully enforceable, with respect to any amount at any
time paid on account of the Obligations which thereafter shall be required to
be restored or returned by Lessor upon the bankruptcy, insolvency or
reorganization of the Lessee, the undersigned, or any other person, or as a
result of any other fact or circumstance, all as though such amount had not
been paid.
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8. The undersigned jointly and severally agree to pay to Lessor
all costs and expenses, including reasonable attorneys' fees, incurred by
Lessor in the enforcement or attempted enforcement of this Guaranty, whether or
not suit is filed in connection therewith, or in the exercise by Lessor of any
right, privilege, power or remedy conferred by this Guaranty.
9. The undersigned represent and warrant that they have relied
exclusively on their own independent investigation of Lessee, the leased
property and the collateral for their decision to guarantee Lessee's
Obligations now existing or thereafter arising. The undersigned agree that they
have sufficient knowledge of the Lessee, the leased property, and the
collateral to make an informed decision about this Guaranty, and that Lessor
has no duty or obligation to disclose any information in its possession or
control about Lessee, the leased property, and the collateral to the
undersigned. The undersigned warrant to Lessor that they have adequate means to
obtain from the Lessee on a continuing basis information concerning the
financial condition of the Lessee and that they are not relying on Lessor to
provide such information either now or in the future.
10. As long as any indebtedness under any of the Obligations
remains unpaid or any credit is available to Lessee under any of the
Obligations, the undersigned agree to furnish to Lessor: (a) annual financial
statements setting forth the financial condition and results of operation of
the undersigned (financial statements shall include balance sheet, income
statement, changes in financial position and all notes thereto) within 120 days
of the end of each fiscal year of the undersigned; (b) quarterly financial
statements setting forth the financial condition and results of operation of
the undersigned within 60 days of the end of each of the first three fiscal
quarters of the undersigned; and (c) such other financial information as Lessor
may from time to time request including, without limitation, financial reports
filed by the undersigned with federal or state regulatory agencies.
11. No postponement or delay on the part of Lessor in the
enforcement of any right hereunder shall constitute a waiver of such right. The
failure of any person or entity to sign this Guaranty shall not discharge the
liability of any of the undersigned.
12. This Guaranty remains fully enforceable irrespective of any
claim, defense or counterclaim which the Lessee may or could assert on any of
the Obligations including but not limited to failure of consideration, breach
of warranty, payment, statute of frauds, statute of limitations, fraud,
bankruptcy, accord and satisfaction, and usury, same of which the undersigned
hereby waive along with any standing by the undersigned to assert any said
claim, defense or counterclaim.
13. This Guaranty contains the entire agreement of the parties and
supersedes all prior agreements and understandings, oral or written, with
respect to the subject matter hereof. This Guaranty is not intended to replace
or supersede any other guaranty which the undersigned have entered into or may
enter into in the future. The undersigned may enter into additional guaranties
in the future which may or may not refer to the Master Lease identified above
and such guaranties are not intended to replace or supersede this Guaranty
unless specifically provided in that additional guaranty. The interpretation,
construction and validity of this guaranty shall be governed by the laws of the
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State of Ohio. With respect to any action brought by Lesser against Guarantor
to enforce any term of this guaranty, Guarantor hereby irrevocably consents to
the jurisdiction and venue of any state or federal court in Franklin County,
Ohio, where Lessor has its principal place of business and where payments are
to be made by Lessee and Guarantor.
ALL PARTIES TO THIS GUARANTY, INCLUDING GUARANTOR AND LESSOR, WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY RELATED TO THIS GUARANTY.
Guarantor:
WYNDHAM HOTEL COMPANY, LTD. 2001 BRYAN STR
- --------------------------------------------------
By: Wyndham Hotel Management Corporation
By: /s/ JOHN P. KLUMPH
-----------------------------------------------
Title: Treasurer
------------------------------------------
Witness: /s/ Dawn Polce
------------------------------------------
(Notary)
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PARTNERSHIP LEASE ACKNOWLEDGMENT
(For Corporate Partners)
State of TEXAS )
) SS
County of DALLAS )
The above mentioned foregoing instrument, was acknowledged before me this May
2, 1996, by (Corporate officer's Name) John P. Klumph (Officer's Title)
Treasurer of (Name of Corporate Partner) ISIS CRO, Inc. partner, on behalf of
(Name of Partnership) ISIS 2000, L.P.
DAWN POLCE /s/ DAWN POLCE
Notary Public, State of Texas Notary Public
My Commission Expires 3-18-98 Commission Expires 3/18/96
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GUARANTY ACKNOWLEDGEMENT
CORPORATE
State of TEXAS )
) SS
County of DALLAS )
Before a Notary Public in and for said County and State, personally
appeared me, John P. Klumph, Treasurer
(Name) (Title)
who acknowledged that it did sign the foregoing guaranty and that the same is
its free and voluntary act and deed.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
seal this 2nd day of May, 1996.
DAWN POLCE /s/ DAWN POLCE
---------------------------------
Notary Public, State of Texas Notary Public
My Commission Expires 3-18-98
7
ISIS 2000 ORACLE SOFTWARE LEASE FINANCING LEASE
[BANK1ONE LOGO] LEASE SCHEDULE NO. 100005057
-------------------
LESSOR: BANC ONE LEASING CORPORATION
LESSEE: ISIS 2000, LIMITED PARTNERSHIP
-----------------------------------------------------------------------
1. GENERAL. Reference is made to the Master Lease Agreement dated as of
5/2/96 , as amended from time to time ("Master Lease"), between the above
- -----------
Lessee and Lessor. This Lease Schedule is signed and delivered under the Master
Lease. Unless otherwise defined herein, capitalized terms defined in the Master
Lease will have the same meaning when used in this Schedule.
2. FINANCING. Lessor finances for Lessee, and Lessee finances with
Lessor, all of the property ("Equipment") described below:
Quantity Description (New Unless Specified as Used) Amount Financed
-------- ------------------------------------------ ---------------
SEE ATTACHED SCHEDULE A-1 EQUIPMENT COST 229,387.55
DOCUMENTATION FEE 0.00
SALES TAX 0.00
TOTAL $ ________________________
3. FINANCING TERM AND INSTALLMENT PAYMENTS. The Lease Term for the
Equipment begins on the earlier of the Acceptance Date or the Commencement Date
and continues for the number of months after the Commencement Date as stated in
the Lease Term box below. The Acceptance Date is the date that Lessor accepts
this Schedule as stated below Lessor's signature. The Commencement Date is the
[ ] 1st [ ] 15th day of the month in which the Acceptance Date occurs.
- --------------- -------------------- ----------------------------------------
Lease Term Number of Payments Installment Payments (excluding Taxes)
1 ADVANCE MONTHLY $7,105.90
36 Months 36 35 MONTHLY $7,105.90
- --------------- -------------------- ----------------------------------------
PAYMENT DUE DATES: On the Commencement Date and on the same day of each MONTH
_______
thereafter until paid in full. Total Advance Payment of $ 7,105.90 to be
________________
applied as follows:
$ 0.00 Security Deposit $ 7,105.90 First and Last Payment(s)
____________ ____________ ______
$ 0.00 Set-up/Filing/Search Fees $ 0.00 Other (Specify)
____________ __________
Lessee shall pay to Lessor all amounts stated above on the due dates stated
above, except that the Total Advance Payment is due on the Commencement Date.
There shall be added to each installment payment all applicable Taxes as in
effect from time to time.
4. SECURITY INTEREST. This Schedule is not intended to be a true lease,
but is intended to be a secured debt financing transaction. As collateral
security for payment and performance of all Secured Obligations (as defined in
Paragraph A on the reverse side of this Schedule) and to induce Lessor to
extend credit from time to time to Lessee (under the Lease or otherwise),
Lessee hereby grants to Lessor a first priority security interest in all of
Lessee's right, title and interest in the Equipment, whether now existing or
hereafter acquired, and in all Proceeds (as defined in Paragraph A on the
reverse side of this Schedule). Lessee represents, warrants and agrees that
Lessee currently is the lawful owner of the Equipment and that good and
marketable title to the Equipment shall remain with Lessee at all times. Lessee
represents, warrants and agrees: that Lessee has granted to Lessor a first
priority security interest in the Equipment and all Proceeds; and that the
Equipment and all Proceeds are, and at all times shall be, free and clear of
any Liens other than Lessor's security interest therein. Lessee at its sole
expense will protect and defend Lessor's first priority security interest in
the Equipment against all claims and demands whatsoever.
5. LESSEE'S ASSURANCES. Lessee irrevocably and unconditionally: (a)
reaffirms all of the terms and conditions of the Master Lease and agrees that
the Master Lease remains in full force and effect; (b) agrees that the
Equipment is and will be used at all times solely for commercial purposes, and
not for personal, family or household purposes; and (c) incorporates all of the
terms and conditions of the Master Lease as if fully set forth in this Schedule.
6. PURCHASE ORDERS AND ACCEPTANCE OF EQUIPMENT. Lessee agrees that (i)
Lessor has not selected, manufactured, sole or supplied any of the Equipment,
(ii) Lessee has selected all of the Equipment and its suppliers, and (iii)
Lessee has received a copy of, and approved, the purchase orders or purchase
contracts for the Equipment. AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT:
(A) LESSEE HAS RECEIVED, INSPECTED AND APPROVED ALL OF THE EQUIPMENT; (B) ALL
EQUIPMENT IS IN GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS OR
CONTRACTS AND ALL APPLICABLE SPECIFICATIONS; (C) LESSEE IRREVOCABLY ACCEPTS ALL
EQUIPMENT FOR PURPOSES OF THE LEASE "AS-IS, WHERE IS" WITH ALL FAULTS; AND (D)
LESSEE UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO REVOKE ITS
ACCEPTANCE OF THE EQUIPMENT.
7. MISCELLANEOUS: PRINCIPAL AMOUNT: $229,387.55 INTEREST RATE PER ANNUM:
7.65% LESSEE PROMISES TO PAY SAID PRINCIPAL AMOUNT WITH INTEREST AT
SAID RATE, IN THE AMOUNT AND AT THE TIMES STATED IN THIS SCHEDULE.
INTEREST WILL BE CALCULATED ON THE BASIS OF A 360-DAY YEAR WITH 12
30-DAY MONTHS. AT LEASE END, LESSEE SHALL MAKE A FINAL PAYMENT OF
$1.00.
LESSEE HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. LESSEE AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE. THIS SCHEDULE IS EXPRESSLY SUBJECT TO THE TERMS AND
CONDITIONS ON THE REVERSE SIDE OF THIS SCHEDULE.
Accepted By: ISIS 2000, LIMITED PARTNERSHIP
--------------------------------------
(Name of Lessee)
BANC ONE LEASING CORPORATION By: ISIS CRO, Inc., its general partner
------------------------------------
By: /s/ BRIAN BRADSHAW By: /s/ JOHN KLUMPH
------------------------------- -----------------------------------
Title: Funding Authority Title: Treasurer
---------------------------- ---------------------------------
Acceptance Date: 5-9-96 Witness Signature:
------------------ ---------------------
White: Lessor's Original Yellow: Duplicate Pink: Duplicate
8
FINANCING LEASE
[BANK1ONE LOGO] LEASE SCHEDULE NO. 10000505
-------------------
LESSOR: BANC ONE LEASING CORPORATION
LESSEE: ISIS 2000, LIMITED PARTNERSHIP
-----------------------------------------------------------------------
1. GENERAL. Reference is made to the Master Lease Agreement dated as of
5/2/96 , as amended from time to time ("Master Lease"), between the above
- -----------
Lessee and Lessor. This Lease Schedule is signed and delivered under the Master
Lease. Unless otherwise defined herein, capitalized terms defined in the Master
Lease will have the same meaning when used in this Schedule.
2. FINANCING. Lessor finances for Lessee, and Lessee finances with
Lessor, all of the property ("Equipment") described below:
Quantity Description (New Unless Specified as Used) Amount Financed
-------- ------------------------------------------ ---------------
SEE ATTACHED SCHEDULE A-1 EQUIPMENT COST 229,387.55
DOCUMENTATION FEE 0.00
SALES TAX 0.00
TOTAL $ ________________________
3. FINANCING TERM AND INSTALLMENT PAYMENTS. The Lease Term for the
Equipment begins on the earlier of the Acceptance Date or the Commencement Date
and continues for the number of months after the Commencement Date as stated in
the Lease Term box below. The Acceptance Date is the date that Lessor accepts
this Schedule as stated below Lessor's signature. The Commencement Date is the
[ ] 1st [ ] 15th day of the month in which the Acceptance Date occurs.
- --------------- -------------------- ----------------------------------------
Lease Term Number of Payments Installment Payments (excluding Taxes)
1 ADVANCE MONTHLY $7,105.90
36 Months 36 35 MONTHLY $7,105.90
- --------------- -------------------- ----------------------------------------
PAYMENT DUE DATES: On the Commencement Date and on the same day of each MONTH
_______
thereafter until paid in full. Total Advance Payment of $ 7,105.90 to be
________________
applied as follows:
$ 0.00 Security Deposit $ 7,105.90 First and Last Payment(s)
____________ ____________ ______
$ 0.00 Set-up/Filing/Search Fees $ 0.00 Other (Specify)
____________ __________
Lessee shall pay to Lessor all amounts stated above on the due dates stated
above, except that the Total Advance Payment is due on the Commencement Date.
There shall be added to each installment payment all applicable Taxes as in
effect from time to time.
4. SECURITY INTEREST. This Schedule is not intended to be a true lease,
but is intended to be a secured debt financing transaction. As collateral
security for payment and performance of all Secured Obligations (as defined in
Paragraph A on the reverse side of this Schedule) and to induce Lessor to
extend credit from time to time to Lessee (under the Lease or otherwise),
Lessee hereby grants to Lessor a first priority security interest in all of
Lessee's right, title and interest in the Equipment, whether now existing or
hereafter acquired, and in all Proceeds (as defined in Paragraph A on the
reverse side of this Schedule). Lessee represents, warrants and agrees that
Lessee currently is the lawful owner of the Equipment and that good and
marketable title to the Equipment shall remain with Lessee at all times. Lessee
represents, warrants and agrees: that Lessee has granted to Lessor a first
priority security interest in the Equipment and all Proceeds; and that the
Equipment and all Proceeds are, and at all times shall be, free and clear of
any Liens other than Lessor's security interest therein. Lessee at its sole
expense will protect and defend Lessor's first priority security interest in
the Equipment against all claims and demands whatsoever.
5. LESSEE'S ASSURANCES. Lessee irrevocably and unconditionally: (a)
reaffirms all of the terms and conditions of the Master Lease and agrees that
the Master Lease remains in full force and effect; (b) agrees that the
Equipment is and will be used at all times solely for commercial purposes, and
not for personal, family or household purposes; and (c) incorporates all of the
terms and conditions of the Master Lease as if fully set forth in this Schedule.
6. PURCHASE ORDERS AND ACCEPTANCE OF EQUIPMENT. Lessee agrees that (i)
Lessor has not selected, manufactured, sole or supplied any of the Equipment,
(ii) Lessee has selected all of the Equipment and its suppliers, and (iii)
Lessee has received a copy of, and approved, the purchase orders or purchase
contracts for the Equipment. AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT:
(A) LESSEE HAS RECEIVED, INSPECTED AND APPROVED ALL OF THE EQUIPMENT; (B) ALL
EQUIPMENT IS IN GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS OR
CONTRACTS AND ALL APPLICABLE SPECIFICATIONS; (C) LESSEE IRREVOCABLY ACCEPTS ALL
EQUIPMENT FOR PURPOSES OF THE LEASE "AS-IS, WHERE IS" WITH ALL FAULTS; AND (D)
LESSEE UNCONDITIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO REVOKE ITS
ACCEPTANCE OF THE EQUIPMENT.
7. MISCELLANEOUS: PRINCIPAL AMOUNT: $229,387.55 INTEREST RATE PER ANNUM:
7.65% LESSEE PROMISES TO PAY SAID PRINCIPAL AMOUNT WITH INTEREST AT
SAID RATE, IN THE AMOUNT AND AT THE TIMES STATED IN THIS SCHEDULE.
INTEREST WILL BE CALCULATED ON THE BASIS OF A 360-DAY YEAR WITH 12
30-DAY MONTHS. AT LEASE END, LESSEE SHALL MAKE A FINAL PAYMENT OF
$1.00.
LESSEE HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS SCHEDULE. LESSEE AGREES
THAT THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS WITH LESSOR REGARDING THE
EQUIPMENT OR THIS SCHEDULE. THIS SCHEDULE IS EXPRESSLY SUBJECT TO THE TERMS AND
CONDITIONS ON THE REVERSE SIDE OF THIS SCHEDULE.
Accepted By: ISIS 2000, LIMITED PARTNERSHIP
--------------------------------------
(Name of Lessee)
BANC ONE LEASING CORPORATION By: ISIS CRO, Inc., its general partner
------------------------------------
By: By: /s/ JOHN KLUMPH
------------------------------- -----------------------------------
Title: Title: Treasurer
---------------------------- ---------------------------------
Acceptance Date: Witness Signature:
------------------ ---------------------
White: Lessor's Original Yellow: Duplicate Pink: Duplicate
9
BANC ONE LEASING CORPORATION
SCHEDULE A-1 EQUIPMENT LEASED HEREUNDER
QUANTITY DESCRIPTION PAGE 1
================================================================================
LOCATION:
2001 Bryan St
STE 2300
Dallas COUNTY
Dallas, TX 75201
COST $229,387.55
"ALL PROPERTY DESCRIBED IN THE INVOICE IDENTIFIED BELOW, WHICH PROPERTY
MAY BE GENERALLY DESCRIBED AS COMPUTER SOFTWARE EQUIPMENT."
VENDOR NAME INVOICE #/DATE INVOICE AMOUNT
----------- -------------- --------------
CPI 228121 $229,387.55
TOGETHER WITH ALL ATTACHMENTS, ADDITIONS, ACCESSIONS, PARTS,
REPAIRS, IMPROVEMENTS, REPLACEMENTS AND SUBSTITUTIONS THERETO.
This Schedule A-1 is attached to and made a part of Lease Number 1000050571
and constitutes a true and accurate description of the equipment.
Lessee:
ISIS 2000, Limited Partnership
By: ISIS CRO, INC.
By: /s/ JOHN KLUMPH
--------------------------
Date: May 2, 1996
-------------------------
scheda-1.057
10
MASTER LEASE AGREEMENT
[BANK1ONE LOGO]
This MASTER LEASE AGREEMENT is made, entered and dated as of ______, by and
between:
LESSOR: LESSEE:
BANC ONE LEASING CORPORATION ISIS 2000, LIMITED PARTNERSHIP
--------------------------------
2400 Corporate Exchange Drive 2001 BRYAN STREET
--------------------------------
Columbus, Ohio 43231 DALLAS, TX 75201
--------------------------------
1. LEASE OF EQUIPMENT: Lessor leases to Lessee, and Lessee leases from Lessor,
all the property described in the Lease Schedules which are signed from time to
time by Lessor and Lessee.
2. CERTAIN DEFINITIONS: "Schedule" means each Lease Schedule signed by Lessee
and Lessor which incorporates the terms of this Master Lease Agreement,
together with all exhibits, riders, attachments and addenda thereto.
"Equipment" means the property described in each Schedule, together with all
attachments, additions, accessions, parts, repairs, improvements, replacements
and substitutions thereto. "Lease", "herein", "hereunder", "hereof" and similar
words mean this Master Lease Agreement and all Schedules, together with all
exhibits, riders, attachments and addenda to any of the foregoing, as the same
may from time to time be amended, modified or supplemented. "Prime Rate" means
the prime rate of interest announced from time to time as the prime rate by
Bank One, Columbus, NA; provided, that the parties acknowledge that the Prime
Rate is not intended to be the lowest rate of interest charged by said bank in
connection with extensions of credit. "Lien" means any security interest, lien,
mortgage, pledge, encumbrance, judgment, execution, attachment, warrant, writ,
levy, other judicial process or claim of any nature whatsoever by or of any
person. "Fair Market Value" means the amount which would be paid for an item of
Equipment by an informed and willing buyer (other than a used equipment or
scrap dealer) and an informed and willing seller neither under a compulsion to
buy or sell. "Lessor's Cost" means the invoiced price of any item of Equipment
plus any other cost to Lessor of acquiring an item of Equipment. All terms
defined in the Lease are equally applicable to both the singular and plural
form of such terms.
3. LEASE TERM AND RENT: The term of the lease of the Equipment described in
each Schedule ("Lease Term") commences on the date stated in the Schedule and
continues for the term stated therein. As rent for the Equipment described in
each Schedule, Lessee shall pay Lessor the rent payments and all other amounts
stated in such Schedule, payable on the dates specified therein. All payments
due under the Lease shall be made in United States dollars at Lessor's office
stated in the opening paragraph or as otherwise directed by Lessor in writing.
4. ORDERING, DELIVERY, REMOVAL AND INSPECTION OF EQUIPMENT. If an event of
default occurs or if for any reason Lessee does not accept, or revokes its
acceptance of, equipment covered by a purchase order or purchase contract or if
any commitment or agreement of Lessor to lease equipment to Lessee expires,
terminates or is otherwise canceled, then automatically upon notice from
Lessor, any purchase order or purchase contract and all obligations thereunder
shall be assigned to Lessee and Lessee shall pay and perform all obligations
thereunder. Lessee agrees to pay, defend, indemnify and hold Lessor harmless
from any liabilities, obligations, claims, costs and expenses (including
reasonable attorney fees and expenses) of whatever kind imposed on or asserted
against Lessor in any way related to any purchase orders to purchase contracts.
Lessee shall make all arrangements for, and Lessee shall pay all costs of,
transportation, delivery, installation and testing of Equipment. The Equipment
shall be delivered to Lessee's premises stated in the applicable Schedule and
shall not be removed without Lessor's prior written consent. Lessor has the
right upon reasonable notice to Lessee to inspect the Equipment wherever
located. Lessor may enter upon any premises where Equipment is located and
remove it immediately, without notice or liability to Lessee, upon the
expiration or other termination of the Lease Term.
5. MAINTENANCE AND USE: Lessee agrees it will, at its sole expense: (a)
repair and maintain the Equipment in good condition and working order and
supply and install all replacement parts or other devices when required to so
maintain the Equipment or when required by applicable law or regulation, which
parts or devices shall automatically become part of the Equipment; (b) use and
operate the Equipment in a careful manner in the normal course of its business
and only for the purposes for which it was designed in accordance with the
manufacturer's warranty requirements, and comply with all laws and regulations
relating to the Equipment, and obtain all permits or licenses necessary to
install, use or operate the Equipment; and (c) make no alterations, additions,
subtractions, upgrades or improvements to the Equipment without Lessor's prior
written consent, but any such alterations, additions, upgrades or improvements
shall automatically become part of the Equipment. The Equipment will not be
used or located outside of the United States.
6. NET LEASE; NO EARLY TERMINATION: The Lease is a net lease. Lessee's
obligation to pay all rent and all other amounts payable under the Lease is
absolute and unconditional under any and all circumstances and shall not be
affected by any circumstances of any character including, without limitation,
(a) any setoff, claim, counterclaim, defense or reduction which Lessee may have
at any time against Lessor or any other party for any reason, or (b) any defect
in the condition, design or operation of, any lack of fitness for use of, any
damage to or loss of, or any lack of maintenance or service for any of the
Equipment. Each Schedule is a noncancelable lease of the Equipment described
therein and Lessee's obligation to pay rent and perform all other obligations
thereunder and under the Lease are not subject to cancellation or termination
by Lessee for any reason.
7. NO WARRANTIES BY LESSOR: LESSOR LEASES THE EQUIPMENT AS-IS, WHERE-IS, AND
WITH ALL FAULTS. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, OF ANY KIND AS TO THE EQUIPMENT INCLUDING, WITHOUT LIMITATION: ITS
MERCHANTABILITY; ITS FITNESS FOR ANY PARTICULAR PURPOSE; DESIGN, CONDITION,
QUALITY, CAPACITY, DURABILITY, CAPABILITY, SUITABILITY OR WORKMANSHIP; ITS
NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT
OR OTHER INTELLECTUAL PROPERTY RIGHT; OR ITS COMPLIANCE WITH ANY LAW, RULE,
SPECIFICATION, PURCHASE ORDER OR CONTRACT PERTAINING THERETO. Lessor hereby
assigns to Lessee the benefit of any assignable manufacturer's or supplier's
warranties, but Lessor, at Lessee's written request, will cooperate with Lessee
in pursuing any remedies Lessee may have under such warranties. Any action
taken with regard to warranty claims against any manufacturer or supplier by
Lessee will be at Lessee's sole expense. LESSOR MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND AS TO THE FINANCIAL CONDITION OR
FINANCIAL STATEMENTS OF ANY PARTY OR AS TO THE TAX OR ACCOUNTING TREATMENT OR
CONSEQUENCES OF THE LEASE, THE EQUIPMENT OR THE RENTAL PAYMENTS.
8. INSURANCE: Lessee at its sole expense shall at all times keep each item of
Equipment insured against all risks of loss or damage from every cause whatever
for an amount not less than the greater of the full replacement value or the
Lessor's Cost of such item of Equipment. Lessee at its sole expense shall at
all times carry public liability and property damage insurance in amounts
satisfactory to Lessor protecting Lessee and Lessor from liabilities for
injuries to persons and damage to property of others relating in any way to the
Equipment. All insurers shall be reasonably satisfactory to Lessor. Lessee
shall deliver to Lessor satisfactory evidence of such coverage. Proceeds of any
insurance covering damage or loss of the Equipment shall be payable to Lessor
as loss payee and shall, at Lessor's option, be applied toward (a) the
replacement, restoration or repair of the Equipment, or (b) payment of the
obligations of Lessee under the Lease. Proceeds of any public liability or
property insurance shall be payable first to Lessor as additional insured to
the extent of its liability, then to Lessee. If an event of default occurs and
is continuing, or if Lessee fails to make timely payments due under Section 9
hereof, then Lessee automatically appoints Lessor as Lessee's attorney-in-fact
with full power and authority in the place of Lessee and in the name of Lessee
or Lessor to make claim for, receive payment of, and sign and endorse all
documents, checks or drafts for loss or damage under any such policy. Each
insurance policy will require that the insurer give Lessor at least 30 days
prior written notice of any cancellation of such policy and will require that
Lessor's interests remain insured regardless of any act, error, omission,
neglect or misrepresentation of Lessee. The insurance maintained by Lessee
shall be primary without any right of contribution from insurance which may be
maintained by Lessor.
9. LOSS AND DAMAGE: (a) Lessee bears the entire risk of loss, theft, damage
or destruction of Equipment in whole or in part from any reason whatsoever
("Casualty Loss"). No Casualty Loss to Equipment shall relieve Lessee from the
obligation to pay rent or from any other obligation under the Lease.
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9. LOSS AND DAMAGE (continued): In the event of Casualty Loss to any item of
Equipment, Lessee shall immediately notify Lessor of the same and Lessee shall,
if so directed by Lessor, immediately repair the same. If Lessor determines
that any item of Equipment has suffered a Casualty Loss beyond repair ("Lost
Equipment"), then Lessee, at the option of Lessor ????? all: (1) Immediately
replace the Lost Equipment with similar equipment in good repair, condition and
working order free and clear of any Liens and deliver to Lessor a bill of sale
covering the replacement equipment, in which event such replacement equipment
shall automatically be Equipment under the Lease; or (2) On the rent payment
date which is at least 30 but no more than 60 days after the date of the
Casualty Loss, pay to Lessor all amounts then due and payable by Lessee under
the Lease for the Lost Equipment plus the Stipulated Loss Value for such Lost
Equipment as of the date of the Casualty Loss. Upon payment by Lessee of all
amounts due under the above clause (2), the lease of the Lost Equipment will
terminate and Lessor shall transfer to Lessee all of Lessor's right, title
and interest in such Equipment on an "as-is, where-is" basis with all faults,
without recourse and without representation or warranty of any kind, express
or implied.
(b) "Stipulated Loss Value" of any item of Equipment during its Lease Term
equals the present value discounted in arrears to the applicable date at the
applicable SLV Discount Rate of (1) the remaining rents and all other amounts
[including, without limitation, any balloon payment and, as to a terminal
rental adjustment clause ("TRAC") lease, the TRAC value stated in the
Schedule, and any other payments required to paid by Lessee at the end of the
applicable Lease Term] payable under the Lease for such item on and after such
date to the end of the applicable Lease Term and (2) an amount equal to the
Economic Value of the Equipment. For any item of Equipment,"Economic Value"
means the Fair Market Value of the Equipment at the end of the applicable Lease
Term as originally anticipated by Lessor at the Commencement Date of the
applicable Schedule; provided, that Lessee agrees that such value shall be
determined by the books of Lessor as of the Commencement Date of the applicable
Schedule. After the payment of all rent due under the applicable Schedule and
the expiration of the Lease Term of any item of Equipment, the Stipulated Loss
Value of such item equals the Economic Value of such item. Stipulated Loss
Value shall also include any Taxes payable by Lessor in connection with its
receipt thereof. For any item of Equipment, "SLV Discount Rate" means an
interest rate equals to the Prime Rate in effect on the Commencement Date of
the Schedule for such item minus two percentage points.
10. TAX BENEFITS INDEMNITY. (a) The Lease has been entered into on the basis
that Lessor shall be entitled to such deductions, credits and other tax
benefits as are provided by federal, state and local income tax law to an owner
of the Equipment (the "Tax Benefits") including, without limitation: (1)
modified accelerated cost recovery deductions on each item of Equipment under
Section 168 of the Code (as defined below) in an amount determined commencing
with the taxable year in which the Commencement Date of the applicable Schedule
occurs, using the maximum allowable depreciation method available under
Section 168 of the Code, using a recovery period (as defined in Section 168 of
the Code) reasonably determined by Lessor, and using an initial adjusted basis
which is equal to the Lessor's Cost of such item; (2) amortization of the
expenses paid by Lessor in connection with the Lease on a straight-line basis
over the term of the applicable Schedule; and (3) Lessor's federal taxable
income will be subject to the maximum rate on corporations in effect under the
Code as of the Commencement Date of the applicable Schedule.
(b) if on any one or more occasions (1) Lessor shall lose, shall not
have or shall lose the right to claim all or any part of the Tax Benefits, (2)
there shall be reduced, disallowed, recalculated or recaptured all or any part
of the Tax Benefits, or (3) all or any part of the Tax Benefits is reduced by a
change in law or regulation (each of the events described in subparagraphs 1,
2 or 3 of this paragraph (b) will be referred to as a "Tax Loss"), then, upon 30
days written notice by Lessor to Lessee that a Tax Loss has occurred, Lessee
shall pay Lessor an amount which, in the reasonable opinion of Lessor and
after the deduction of all taxes required to be paid by Lessor with respect to
the receipt of such amount, will provide Lessor with the same after-tax net
economic yield which was originally anticipated by Lessor as of the
Commencement Date of the applicable Schedule.
(c) A Tax Loss shall occur upon the earliest of: (1) the happening of
any event (such as disposition or change in use of an item of Equipment) which
may cause such Tax Loss; (2) Lessor's payment to the applicable taxing
authority of the tax increase resulting from such Tax Loss; or (3) the
adjustment of Lessor's tax return to reflect such Tax Loss.
(d) Lessor shall not be entitled to payment under this section for any
Tax Loss caused solely by one or more of the following events: (1) a
disqualifying sale or disposition of an item of Equipment by Lessor prior to
any default by Lessee; (2) Lessor's failure to timely or properly claim the Tax
Benefits in Lessor's tax return; (3) a disqualifying change in the nature of
Lessor's business or liquidation thereof; (4) a foreclosure by any person
holding through Lessor a security interest on an item of Equipment which
foreclosure results solely from an act of Lessor; or (5) Lessor's failure to
have sufficient taxable income or tax liability to utilize the Tax Benefits.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
For the purposes of this section 10, the term "Lessor" shall include any
affiliate group (within the meaning of section 1504 of the Code) of which
Lessor is a member for any year in which a consolidated income tax return is
filed for such affiliated group. Lessee's obligations under this section shall
survive the expiration, cancellation or termination of the Lease.
11. GENERAL TAX INDEMNITY: Lessee will pay, and will defend, indemnify and
hold Lessor harmless on an after-tax basis from, any and all Taxes (as defined
below) and related audit and contest expenses on or relating to (a) any of the
Equipment, (b) the Lease, (c) purchase, acceptance, ownership, lease,
possession, use, operation, transportation, return or other disposition of any
of the Equipment, and (d) rentals or earnings relating to any of the Lease.
"Taxes" means present and future taxes or other governmental charges that are
not based on the net income of Lessor, whether they are assessed to or payable
by Lessee or Lessor, including, without limitation (i) sales, use, excise,
licensing, registration, titling, franchise, business and occupation, gross
receipts, stamp and personal property taxes, (ii) levies, imposts, duties,
assessments, charges and withholding, (iii) penalties, fines, and additions to
tax and (iv) interest on any of the foregoing. Unless Lessor elects otherwise,
Lessor will prepare and file all reports and returns relating to any Taxes and
will pay all Taxes to the appropriate taxing authority. Lessee will reimburse
Lessor for all such payments promptly on request. On or after any applicable
assessment/levy/lien date for any personal property Taxes relating to any
Equipment, Lessee agrees that upon Lessor's request Lessee shall pay to Lessor
the personal property Taxes which Lessor reasonably anticipates will be due,
assessed, levied or otherwise imposed on any Equipment during its Lease Term.
If Lessor elects in writing, Lessee will itself prepare and file all such
reports and returns pay all such Taxes directly to the taxing authority, and
send Lessor evidence thereof. Lessee's obligations under this section shall
survive the expiration, cancellation or termination of the Lease.
12. GENERAL INDEMNITY: Lessee assumes all risk and liability for, and shall
defend, indemnify and keep Lessor harmless on an after-tax basis from, any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs and expenses, including reasonable attorney fees and expenses, of
whatsoever kind and nature imposed on, incurred by or asserted against Lessor,
in any way relating to or arising out of the manufacture, purchase, acceptance,
rejection, ownership, possession, use, selection, delivery, lease, operation,
condition, sale, return or other disposition of the Equipment or any part
thereof (including, without limitation, any claim for latent or other defects,
whether or not discoverable by Lessee or any other person, any claim for
negligence, tort or strict liability, any claim under any environmental
protection or hazardous waste law and any claim for patent, trademark or
copyright infringement). Lessee will not indemnify Lessor under this section
for loss or liability arising from events which occur after the Equipment has
been returned to Lessor or for loss or liability caused directly and solely by
the gross negligence or willful misconduct of Lessor. In this section, "Lessor"
also includes any director, officer, employee, agent, successor or assign of
Lessor. Lessee's obligations under this section shall survive the expiration,
cancellation or termination of the Lease.
13. PERSONAL PROPERTY: Lessee represents and agrees that the Equipment is, and
shall at all times remain, separately identifiable personal property. Upon
Lessor's request, Lessee shall furnish Lessor a landlord's and/or mortgagee's
waiver and consent to remove all Equipment. Lessor may display notice of its
interest in the Equipment by any reasonable identification. Lessee shall not
alter or deface any such indicia of Lessor's interest.
14. DEFAULT: Each of the following events shall constitute an event of
default under the Lease: (a) Lessee fails to pay any rent or other amount due
under the Lease within ten days of its due date; or (b) Lessee fails to perform
or observe any of its obligations in Sections 8, 18, or 22 hereof; or (c) Lessee
fails to perform or observe any of its other obligations in the Lease for more
than 30 days after Lessor notifies Lessee of such failure; or (d) Lessee or any
Lessee affiliate defaults in the payment, performance or observance of any
obligation under any loan, credit agreement or other lease in which Lessor or
any subsidiary (direct or indirect) of Banc One Corporation (which is Lessor's
ultimate parent corporation) is the creditor or lessor; or (e) any statement,
representation or warranty made by Lessee in the Lease, in any Schedule or in
any document, certificate or financial statement in connection with the Lease
proves at any time to have been untrue or misleading in any material respect as
of the time when made; or (f) Lessee becomes insolvent or bankrupt, or Lessee
admits its inability to pay its debts as they mature, or Lessee makes an
assignment for the benefit of creditors, or Lessee applies for, institutes or
consents to the appointment of a receiver, trustee or similar official for
lessee or any substantial part of its property or any such official is
appointed without Lessee's consent, or Lessee allies for, institutes or
consents to any bankruptcy, insolvency, reorganization, debt moratorium,
liquidation, or similar proceeding relating to Lessee without stay or dismissal
for more than 30 days, or enhancement or credit support Tarentum (whether now
existing of hereafter arising) signed or issued by any party in connection with
all or any part of Lessee's obligations under the Lease, the party signing or
issuing any such agreement defaults in its obligations thereunder or any such
agreement shall cease to be in full force and effect or shall be declared to be
null, void, invalid or unenforceable by the party signing or issuing it; or (h)
there shall occur in Lessor's reasonable opinion any material adverse change in
the financial condition, business or operations of Lessee.
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14. DEFAULT (CONTINUED):
As used in this section 14, the term "Lessee" also indemnifies any guarantor
(whether now existing or hereafter arising) of all or any part of Lessee's
obligations under the Lease and/or any issuer of a letter of credit (whether
now existing or hereafter arising) relating to all or any part of Lessee's
obligations under the Lease, and the term "Lease" also includes any guaranty or
letter of credit (whether now existing or hereafter arising) relating to all or
any part of Lessee's obligations under the Lease.
15. REMEDIES. If any event of default exists, Lessor may exercise in any order
one or more of the remedies described in the lettered subparagraphs of this
section, and Lessee shall perform its obligations imposed thereby:
(a) Lessor may require Lessee to return any or all Equipment as provided in
the Lease.
(b) Lessor or its agent may repossess any or all Equipment wherever found,
may enter the premises where the Equipment is located and disconnect, render
unusable and remove it, and may use such premises without charge to store or
show the Equipment for sale.
(c) Lessor may sell any or all Equipment at public or private sale, with or
without advertisement or publication, may re-lease or otherwise dispose of it
or may use, hold or keep it.
(d) Lessor may require Lessee to pay to Lessor on a date specified by
Lessor, with respect to any or all Equipment (i) all accrued and unpaid rent,
late charges and other amounts due under the Lease on or before such date, plus
(ii) as liquidated damages for loss of a bargain and not as a penalty, and in
lieu of any further payments of rent, the Stipulated Loss Value of the
Equipment on such date, plus (iii) interest at the Overdue Rate on the total of
the foregoing ("Overdue Rate" means an interest rate per annum equal to the
higher of 18% or 2% over the Prime Rate, but not to exceed the highest rate
permitted by applicable law). The parties acknowledge that the foregoing money
damage calculation reasonably reflects Lessor's anticipated loss with respect
to the Equipment and the related Lease resulting from the event of default. If
an event of default under section 14 (f) of this Master Lease Agreement exists,
then Lessee will be automatically liable to pay Lessor the foregoing amounts as
of the next rent payment date unless Lessor otherwise elects in writing.
(e) Lessee shall pay all costs, expenses and damages incurred by Lessor
because of the event of default or its actions under this section, including,
without limitation any collection agency and/or attorney fees and expenses, any
costs related to the repossession, safekeeping, storage, repair, reconditioning
or disposition of the Equipment and any incidental and consequential damages.
(f) Lessor may terminate the Lease and/or any or all Schedules, may sue to
enforce Lessee's performance of its obligations under the Lease and/or may
exercise any other right or remedy then available to Lessor at law or in
equity.
Lessor is not required to take any legal process or give Lessee any notice
before exercising any of the above remedies. None of the above remedies is
exclusive, but each is cumulative and in addition to any other remedy available
to Lessor. Lessor's exercise of one or more remedies shall not preclude its
exercise of any other remedy. No action taken by Lessor shall release Lessee
from any of its obligations to Lessor. No delay or failure on the part of
Lessor to exercise any right hereunder shall operate as a waiver thereof, nor
as an acquiescence in any default, nor shall any single or partial exercise of
any right preclude any other exercise thereof or the exercise of any other
right. After any default, Lessor's acceptance of any payment by Lessee under
the Lease shall not constitute a waiver by Lessor of such default, regardless
of Lessor's knowledge or lack of knowledge at the time of such payment, and
shall not constitute a reinstatement of the Lease if the Lease has been
declared in default by Lessor, unless Lessor has agreed in writing to reinstate
the Lease and to waive the default.
If Lessor actually repossesses any Equipment, then it will use commercially
reasonable efforts under the then current circumstances to attempt to mitigate
its damages; provided, that Lessor shall not be required to sell, re-lease or
otherwise dispose of any Equipment prior to Lessor enforcing any of the
remedies described above. Lessor may sell or re-lease the Equipment in any
manner it chooses, free and clear of any claims or rights of Lessee and without
any duty to account to Lessee with respect thereto except as provided below. If
Lessor actually sells or re-leases the Equipment, it will credit the net
proceeds of any sale of the Equipment, or the net present value (discounted at
the then current Prime Rate) of the rents payable under any new lease of the
Equipment, against and up exceeding) Lessee's payment thereof. The term "net"
as used above shall mean such amount after deducting the costs and expenses
described in clause (e) above of this section. If Lessor elects in writing not
to sell or re-lease any Equipment, it will similarly credit or reimburse Lessee
for Lessor's reasonable estimate of such Equipment's Fair Market Value.
16. LESSOR'S RIGHT TO PERFORM: If Lessee fails to make any payment under the
Lease or fails to perform any of its other agreements in the Lease (including,
without limitation, its agreement to provide insurance coverage as stated in
the Lease), Lessor may itself make such payment or perform such agreement, and
the amount of such payment and the amount of the expenses of Lessor incurred in
connection with such payment or performance shall be deemed to be additional
rent, payable by Lessee on demand.
17. FINANCIAL REPORTS: Lessee agrees to furnish to Lessor: (a) annual financial
statements setting forth the financial condition and results of operation of
Lessee (financial statements shall include the balance sheet, income statement
and changes in financial position and all notes thereto) within 120 days of the
end of each fiscal year of Lessee; (b) quarterly financial statements setting
forth the financial condition and results of operation of Lessee within 60 days
of the end of each of the first three fiscal quarters of Lessee; and (c) such
other financial information as Lessor may from time to time reasonably request
including, without limitation, financial reports filed by Lessee with federal
or state regulatory agencies. All such financial information shall be prepared
in accordance with generally accepted accounting principles. If Lessee fails to
furnish the annual financial statements to Lessor within 30 days of Lessor's
written request, then Lessor may, at its option, charge Lessee a
non-performance fee equal to all the rentals due under the Lease for the then
current month (unless otherwise prohibited by law) and such fees shall be
deemed to be additional rent, payable by Lessee on demand.
18. NO CHANGES IN LESSEE: Lessee shall not: (a) liquidate, dissolve or suspend
business; (b) sell, transfer or otherwise dispose of all or a majority of its
assets, except that Lessee may sell its inventory in the ordinary course of its
business; (c) enter into any merger, consolidation or similar reorganization
unless it is the surviving corporation; (d) transfer all or any substantial
part of its operations or assets outside of the United States of America; or
(e) without 30 days advance written notice to Lessor, change its name or chief
place of business. Lessee shall at all times maintain a tangible net worth
which is no less than the greater of 75% of its tangible net worth as of the
date of the Master Lease Agreement or 75% of its highest tangible net worth
thereafter.
19. LATE CHARGES: If any rent or other amount payable under the Lease is not
paid when due, then as compensation for the administration and enforcement of
Lessee's obligation to make timely payments, Lessee shall pay with respect to
each overdue payment on demand an amount equal to the greater of fifteen
dollars ($15.00) or five percent (5%) of the each overdue payment (but not to
exceed the highest late charge permitted by applicable law) plus any collection
agency fees and expenses.
20. NOTICES; POWER OF ATTORNEY: (a) Service of all notices under the Lease
shall be sufficient if given personally or couriered or mailed to the party
involved at its respective address as such party may provide in writing from
time to time. Any such notice mailed to such address shall be effective three
days after deposit in the United States mail with postage prepaid. (b) With
respect to any power of attorney covered by the Lease, the powers conferred on
Lessor thereby; are powers coupled with an interest; are irrevocable; are
solely to protect Lessor's interests under the Lease; and do not impose any
duty on Lessor to exercise such powers. Lessor shall be accountable solely for
amounts it actually receives as a result of its exercise of such powers.
21. ASSIGNMENT BY LESSOR: Lessor and any assignee of Lessor, with or without
notice to or consent of Lessee, may sell, assign, transfer or grant a security
interest in all or any part of Lessor's rights, obligations, title or interest
in the Equipment, the Lease, any Schedule or the amounts payable under the
Lease or any Schedule to any entity ("transferee"). The transferee shall
succeed to all of Lessor's rights in respect to the Lease (including, without
limitation, all rights to insurance and indemnity protection described in the
Lease). Lessee agrees to sign any acknowledgement and other documents
reasonably requested by Lessor or the transferee in connection with any such
transfer transaction. Lessee, upon receiving notice of any such transfer
transaction, shall comply with the terms and conditions thereof. Lessee agrees
that it shall not assert against any transferee any claim, defense, setoff,
deduction or counterclaim which Lessee may now or hereafter be entitled to
assert against Lessor. Unless otherwise agreed in writing, the transfer
transaction shall not relieve Lessor of any of its obligations to Lessee under
the Lease and Lessee agrees that the transfer transaction shall not be
construed as being an assumption of such obligations by the transferee.
22. NO ASSIGNMENT, SUBLEASE OR LIEN BY LESSEE: LESSEE SHALL NOT, DIRECTLY OR
INDIRECTLY, (a) MORTGAGE, ASSIGN, SELL, TRANSFER OR OTHERWISE DISPOSE OF THE
LEASE OR ANY INTEREST THEREIN OR THE EQUIPMENT OR ANY PART THEREOF, OR (b)
SUBLEASE, RENT, LEND OR TRANSFER POSSESSION OR USE OF THE EQUIPMENT OR ANY PART
THEREFOR TO ANY PARTY, OR (c) CREATE, INCUR, GRANT, ASSUME OR ALLOW TO EXIST
ANY LIEN ON THE LEASE, ANY SCHEDULE, THE EQUIPMENT OR ANY PART THEREOF.
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23. EXPIRATION OF LEASE TERM: (a) At least 90 days (or earlier if otherwise
specified), but no more than 270 days prior to expiration of the Lease Term of
each Schedule, Lessee shall give written notice of its electing one of the
following options for all or not less than all) of the Equipment covered by
such Schedule: return the Equipment under clause (b) below; or purchase the
Equipment under clause (c) below. The election of an option shall be
irrevocable if Lessee fails to give timely notice of its election, it shall be
deemed to have elected to return the Equipment.
(b) If Lessee elects or is deemed to have elected to return the Equipment at
the expiration of the Lease Term of a Schedule or if Lessee is obligated at any
time to return the Equipment, then Lessee shall, at its sole expense and risk,
deinstall, disassemble, pack, crate, insure and return the Equipment to
Lessor (all in accordance with applicable industry standards) at any location
in the continental United States of America selected by Lessor. The Equipment
shall be in the same condition as when received by Lessee, reasonable wear,
tear and depreciation resulting from normal and proper use excepted (or, if
applicable, in the condition set forth in the Lease or the Schedule), shall be
in good operating order and maintenance as required by the Lease, shall be
certified as being eligible for any available manufacturer's maintenance
program, shall be free and clear of any Liens as required by the Lease, shall
comply with all applicable laws and regulations and shall include all manuals,
specifications, repair and maintenance records and similar documents. Until
Equipment is returned as required above, all terms of the Lease shall remain in
full force and effect including, without limitation, obligations to pay rent
and insure the Equipment; provided, that after the expiration of any Schedule
and before Lessee has completed its return of the Equipment or its purchase
option (if elected), the term of the lease of the Equipment covered by such
Schedule shall be month-to-month or such shorter period as may be specified by
Lessor.
(c) If Lessee gives Lessor timely notice of its election to purchase
Equipment, then on the expiration date of the applicable Schedule Lessee shall
purchase all (but not less than all) of the Equipment and shall pay to Lessor
the Fair Market Value of the Equipment plus all Taxes (other than income taxes
on Lessor's gains on such sale), costs and expenses incurred or paid by Lessor
in connection with such sale plus all accrued but unpaid amounts due with
respect to the Equipment and/or the Schedule. The Stipulated Loss Value of
Economic Value of any item of Equipment shall have no bearing or influence on
the determination of Fair Market Value under this clause (c). Upon payment in
full of the above amounts, and if no default has occurred and is continuing
under the Lease, Lessor shall transfer title to such Equipment to Lessee
"as-is, where-is" with all faults and without recourse to Lessor and without
any representation or warranty of any kind whatsoever by Lessor, express or
implied.
(d) For purposes of the purchase option of the Lease, the determination of
the Fair Market Value of any Equipment shall be determined (1) without
deducting any costs of dismantling or removal from the location of use, (2) on
the assumption that the Equipment is in the condition required by the
applicable return and maintenance provisions of the Lease and is free and clear
of any Liens as required by the Lease, and (3) shall be determined by mutual
agreement of Lessee and Lessor or, if Lessor and Lessee are not able to agree
on such value, by the Appraisal Procedure. "Appraisal Procedure" means the
determination of Fair Market Value by an independent appraiser acceptable to
Lessor and Lessee, or, if the parties are unable to agree on an acceptable
appraiser, by averaging the valuation (disregarding the one which differs the
most from the other two) of three independent appraisers, the first appointed
by Lessor, the second appointed by Lessee and the third appointed by the first
two appraisers. For purposes of the "Remedies" section of the Lease, the Fair
Market Value shall be determined by Lessor in good faith and any such valuation
shall be on an "as-is, where-is" basis without regard to the first sentence of
this clause (d). Lessee, at its sole expense, shall pay all fees, costs and
expenses of the above described appraisers.
24. GOVERNING LAW: THE INTERPRETATION, CONSTRUCTION AND VALIDITY OF THE LEASE
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF OHIO. WITH RESPECT TO ANY ACTION
BROUGHT BY LESSOR AGAINST LESSEE TO ENFORCE ANY TERM OF THE LEASE, LESSEE
HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF ANY STATE OR
FEDERAL COURT IN THE FRANKLIN COUNTY, OHIO, WHERE LESSOR HAS ITS PRINCIPAL
PLACE OF BUSINESS AND WHERE PAYMENTS ARE TO BE MADE BY LESSEE.
25. MISCELLANEOUS: (a) Subject to the limitations herein, the Lease shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, successors and assigns. (b) This Master Lease
Agreement and each Schedule may be executed in any number of counterparts,
which together shall constitute a single instrument. Only one counterpart of
each Schedule shall be marked "Lessor's Original" and all other counterparts
shall be marked "Duplicate". A security interest in any Schedule may be created
through transfer and possession only of the counterpart marked "Lessor's
Original". (c) Section and paragraph headings in this Master Lease Agreement
and the Schedules are for convenience only and have no independent meaning. (d)
The terms of the Lease shall be severable and if any term thereof is declared
unconscionable, invalid, illegal or void, in whole or in part, the decision so
holding shall not be construed as impairing the other terms of the Lease and
the Lease shall continue in full force and effect as if such invalid, illegal,
void or unconscionable term were not originally included herein. (e) All
indemnity obligations of Lessee under the Lease and all rights, benefits and
protections provided to Lessor by warranty disclaimers shall survive the
cancellation, expiration or termination of the Lease. (f) Lessor shall not be
liable to Lessee for any indirect, consequential or special damages for any
reason whatsoever. (g) Each payment made by Lessee shall be applied by Lessor
in such manner as Lessor determines in its discretion which may include,
without limitation, application as follows: first, to accrued late charges;
second, to accrued rent; and third, the balance to any other amounts then due
and payable by Lessee under the Lease. (h) If the Lease is signed by more than
one Lessee, each of such Lessees shall be jointly and severally liable for
payment and performance of all of Lessee's obligations under the Lease.
26. ENTIRE AGREEMENT. THE LEASE REPRESENTS THE FINAL, COMPLETE AND ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO. THERE ARE NO ORAL OR UNWRITTEN AGREEMENTS
OR UNDERSTANDINGS AFFECTING THE LEASE OR THE EQUIPMENT. Lessee agrees that
Lessor is not the agent of any manufacturer or supplier, that no manufacturer
or supplier is an agent of Lessor, and that any representation, warranty or
agreement made by a manufacturer, supplier or their employees, sales
representatives or agents shall not be binding on Lessor.
27. JURY WAIVER: ALL PARTIES TO THIS MASTER LEASE AGREEMENT WAIVE ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION
WITH OR IN ANY WAY BELATED TO THIS MASTER LEASE AGREEMENT.
BANC ONE LEASE CORPORATION ISIS 2000, LIMITED PARTNERSHIP
----------------------------------
(Name of Lessee)
By: ISIS CRO, its general partner
Lessor ------------------------------
By: /s/ BRIAN BRADSHAW By: /s/ JOHN KLUMPH
------------------------------------- -------------------------------
Title: Funding Authority Title: Treasurer
---------------------------------- ----------------------------
Lessee's Witness _________________
(Notary)
- -----------------------------------------------------------------------------
Regardless of any prior, present or future ISIS 2000, L.P.
oral agreement or course of dealing, ----------------------------------
no term or condition of the Lease may be (Name of Lessee)
amended, modified, waived, discharged,
cancelled or terminated except by a
written instrument signed by the party to
be bound; except Lessee authorizes Lessor By: [ILLEGIBLE]
to complete the Acceptance Date of each -------------------------------
Schedule and the serial numbers of any
Equipment. Title: Treasurer
-----------------------------
(Notary)
- ------------------------------------------------------------------------------
Page 4 of 4
14
ADDENDUM I TO MASTER LEASE AGREEMENT
Dated 5/2/96
Master Lease Agreement Dated 5/2/96
Lessee: Isis 2000, Limited Partnership
Reference is made to the Master Lease Agreement identified above ("Master
Lease") by and between Banc One Leasing Corporation ("Lessor") and the lessee
identified above ("Lessee"). This Addendum I modifies the terms and conditions
of the Master Lease. Unless otherwise defined herein, capitalized terms defined
in the Master Lease shall have the same meaning when used herein. As part of
the valuable consideration to induce the execution of the Master Lease, Lessor
and Lessee hereby agree as follows:
1. Clause (c) of the first sentence of Section 5 of the Master
Lease is amended to read in its entirety as follows:
"(c) make no alterations, additions, subtractions, upgrades or
improvements to the Equipment without Lessor's prior written consent
not unreasonably conditioned or withheld with respect to additions,
upgrades or improvements, but any such alterations, additions,
upgrades or improvements shall automatically become part of the
Equipment."
2. The first sentence of Section 8 of the Master Lease is amended
to read in its entirety as follows:
"Lessee at its sole expense shall at all times keep each item of
Equipment insured against all risks of loss or damage from every cause
whatsoever for an amount not less than the greater of the full
replacement value or the Stipulated Loss Value of the item of
Equipment."
3. The third and fourth sentences of Section 9 of the Master
Lease are amended to read in their entirety as follows:
"In the event of Casualty Loss to any item of Equipment, Lessee shall
immediately notify Lessor of the same and Lessee shall immediately
repair the same. If any item of Equipment has suffered a casualty Loss
beyond repair ("Lost Equipment"), then Lessee, at the option of Lessee
(or at the option of Lessor if an event of default exists), shall: (1)
immediately replace the Lost Equipment with similar equipment in good
repair, condition and working order free and clear of any Liens and
deliver to Lessor a bill of sale covering the replacement equipment,
in which event such replacement equipment shall automatically be
Equipment under the Lease; or (2) on the rent payment date which is at
least 30 but no more than 60 days after the date of the Casualty Loss,
pay to Lessor all amounts then due and payable by Lessee under the
15
Lease for the Lost Equipment plus the Stipulated Loss Value for such
Lost Equipment as of the date of the Casualty Loss."
4. If a Beneficial Change In Tax Law (as defined below) occurs,
then, within 90 days of a written request by Lessee to Lessor, there shall be a
Rent Adjustment (as defined below). "Beneficial Change In Tax Law" shall mean
any amendment of or addition to the Code which occurs or becomes effective
after the Commencement Date of the Lease and which both (a) increases the
depreciation deductions or creates new tax credits available to Lessor under
the Code as the owner of the Equipment and (b) was not reflected in the
calculation of the after-tax net economic yield originally anticipated by
Lessor as of the Commencement Date of the Lease. "Rent Adjustment" shall mean
(a) a reduction of the remaining rentals payable by Lessee under the Lease, (b)
a reduction of all of the rentals payable by Lessee under the Lease for the
entire Lease Term, or (c) a change in the one or more rentals payable by Lessee
under the Lease after the date of the Beneficial Change in Tax Law; provided,
that in any event described in clauses (a), (b) or (c) of this paragraph, the
modified rent payment structure shall, in the reasonable opinion of Lessor,
provide Lessor with the same after-tax net economic yield which was originally
anticipated by Lessor as of the Commencement Date of the Lease; provided
further, that Lessor shall have the option to determine the form of the Rent
Adjustment under clauses (a), (b) or (c) of this paragraph.
5. Clause (h) of the first sentence of Section 14 of the Master
Lease is deleted in its entirety.
6. The definition of "Overdue Rate" as set forth in Section 15 of
the Master Lease is modified to read in its entirety as follows:
"'Overdue Rate' means an interest rate per annum equal to 2% over the
Prime Rate, but not to exceed the highest rate permitted by applicable
law"
7. Clause (e) of the first paragraph of Section 15 of the Master
Lease is amended to read in its entirety as follows:
"(e) Lessee shall pay all reasonable costs, expenses and damages
incurred by Lessor because of the event of default or its actions
under this section, including, without limitation any collection
agency and/or attorney fees and expenses, any costs related to the
repossession, safekeeping, storage, repair, reconditioning or
disposition of the Equipment and any incidental and consequential
damages."
8. The first sentence of Section 16 of the Master Lease is amend
to read in its entirety as follows:
"If Lessee fails after any applicable notice and grace
16
period to make any payment under the Lease or fails to perform any of
its other agreements in the Lease (including, without limitation, its
agreement to provide insurance coverage as stated in the Lease),
Lessor may itself make such payment or perform such agreement, and the
amount of such payment and the amount of the expenses of Lessor
incurred in connection with such payment or performance shall be
deemed to be additional rent, payable by Lessee on demand."
9. The second sentence of Section 17 of the Master Lease is
amended to read in its entirety as follows:
"All such financial information shall be prepared in accordance with
generally accepted accounting principles or tax basis accounting
principles."
10. Section 19 of the Master Lease is deleted in its entirety.
11. The last sentence of Section 21 of the Master Lease is amended
to read in its entirety as follows:
"Unless otherwise agreed in writing by Lessee, the transfer
transaction shall not relieve Lessor of any of its obligations to
Lessee under the Lease and Lessee agrees that the transfer transaction
shall not be construed as being an assumption of such obligations by
the transferee."
12. Section 24 of the Master Lease is amended to read in its
entirety as follows:
"24. GOVERNING LAW: THE INTERPRETATION, CONSTRUCTION AND VALIDITY
OF THE LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS."
13. Subsection (f) of Section 25 of the Master Lease is amended to
read in its entirety as follows:
"(f) Unless specifically provided for herein, each party shall not be
liable to the other party for any indirect, consequential or special
damages for any reason whatsoever."
14. Section 27 of the Master Lease is amended to read in its
entirety as follows:
"27. ARBITRATION. Lessor and Lessee agree that all dispute claims
and controversies between them, whether individual, joint, or class in
nature, arising from this Lease or otherwise, including, without
limitation contract and tort disputes, shall be arbitrated pursuant to
the Rules Of the American Arbitration Association, upon request of
either party. Any arbitrator hereunder must be either a retired judge
or an attorney with at least 10 years experience in equipment leasing.
No act to take or dispose of the Equipment
17
or any collateral securing this Lease shall constitute a waiver of
this arbitration agreement or be prohibited by this arbitration
agreement. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; invoking a power of sale
under any deed of trust or mortgage; obtaining a writ or attachment or
imposition of a receiver; or exercising any rights relating to
personal property, including taking or disposing of such property with
or without judicial process pursuant to Article 2A or Article 9 of the
Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness of any act, or exercise of
any right, concerning any collateral securing this Lease, including
any claim to rescind, reform, or otherwise modify any agreement
relating to the Equipment or collateral securing this Lease, shall
also be arbitrated, provided however that no arbitrator shall have the
right or the power to enjoin or restrain any act of any party.
Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this Lease shall preclude
any party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches,
and similar doctrines which would otherwise be applicable in any
action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall be
deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision."
Except as expressly amended by this Addendum, the Master Lease remains
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum I
as of the date referenced above.
Isis 2000, Limited Partnership Banc One Leasing Corporation
(Lessee) (Lessor)
By: ISIS CRO, Inc., its general partner
By: /s/ JOHN KLUMPH By: /s/ BRIAN BRADSHAW
------------------------------------ ---------------------------------
Title: TREASURER Title: Funding Authority
--------------------------------- ------------------------------
Witness: /s/ DAWN POLCE
-------------------------------
(Notary)