Master Equipment Lease

MASTER EQUIPMENT LEASE





This Master Equipment Lease Agreement ("Agreement") is entered into as of the 19th day of November, 1991, by and between General Electric Capital Computer Leasing Corporation ("Lessor") and Covia Partnership ("Lessee").



Article I. Leasing, Term and Rent



1.1 This Agreement states the general terms and conditions upon which Lessor from time to time will acquire and lease certain equipment, additions or upgrades ("Equipment") to Lessee. At the time Lessor and Lessee mutually agree to lease particular Equipment, such items of Equipment ("Item") shall be described on an Equipment schedule ("Schedule") in the form of Exhibit A, which Schedule shall incorporate this Agreement by reference. Each Schedule shall constitute a separate lease ("Lease"). If specific provisions of a Schedule are inconsistent with this Agreement, the Schedule shall control.



1.2 A Lease shall commence with respect to an Item on the date ("Lease Commencement Date") which (a) for Equipment installed by the vendor, supplier or manufacturer (any such vendor, supplier or manufacturer being herein called a "Vendor"), is the date the Equipment is accepted by Lessee, and (b) for all other Equipment (e.g., not requiring installation, or used), is five days after the Equipment is delivered to Lessee. Lessee shall notify Lessor of the Lease Commencement Date by promptly delivering to Lessor a Certificate of Acceptance in the form of Exhibit B. If the Lease Commencement Date is the first day of a month, the "Term Commencement Date" shall be the same date. If not, the Term Commencement Date shall be the first day of the month immediately following the Lease Commencement Date.



1.3 Prior to any Lease Commencement Date, Lessee agrees to provide to Lessor an executed Schedule and the documents identified on the Schedule. If Lessee shall fail timely and properly to deliver such documents to Lessor, Lessor shall have no obligation to lease the Equipment in respect of which such documents are requested. Lessors' obligation to lease Equipment to Lessee is further subject to (a) no "Default" (as defined in Section 6.1), or event which with the giving of notice, passage of time or both, would constitute a Default, occurring and continuing under this Agreement or any Lease, and (b) the Lease Commencement Date being prior to the "Cut off Date" (as set forth in the applicable Schedule). In the event the conditions precedent stated in this Section 1.3 are not satisfied, and Lessor has delivered its purchase order for the Equipment to Vendor or entered into a purchase order assignment with Lessee, then Lessor shall be entitled to (x) assign (or re-assign, as applicable) the purchase order for the Equipment to Lessee without recourse or warranty, (y) collect from Lessee all sums theretofore paid by Lessor to Vendor (less any sums previously paid by Lessee to Lessor), and (z) collect from Lessee any out-of-pocket expenses incurred in connection with the Equipment or purchase order (less any sums previously paid by Lessee to Lessor).



1.4 The "Term" of the Lease shall consist of the "Interim Period" (the period of time from and including the Lease Commencement Date to the Term Commencement Date), if any, plus the number of full months specified in the Schedule as the "Initial Term." Thereafter, if no Default, or event which with the giving of notice, passage of time or both, would constitute a Default, has occurred and is continuing under a Lease, the Term shall be automatically extended on a month-to-month basis unless the Lease is terminated by either party by giving sixty days' notice of termination to the other party. Such termination shall be effective on a date not earlier than sixty days after said notice, and in no event prior to expiration of the Term. The last day of the Term (i.e., Initial Term or month-to-month extension period, as applicable) shall be the "Termination Date."



1.5 Lessee shall pay to Lessor as rent ("Rent") for the Equipment, "Interim Rent" equal to one-thirtieth of the "Basic Rent" specified in the Schedule for each day of the Interim Period, plus the Basic Rent for each full month of the Term. All Rent payments shall be due for such periods and at such times as indicated on the applicable Schedule. Lessee shall pay to Lessor one-thirtieth of the Basic Rent for each day beginning with the day after the Termination Date up to and including the date the Equipment is made available for shipment in accordance with Section 2.8.



ARTICLE II. USE OF EQUIPMENT BY LESSEE



2.1 Lessee shall be responsible for the preparation of a suitable site for the Equipment on or before its scheduled delivery date and for the installation of the Equipment. Equipment which requires installation shall be installed by the Equipment manufacturer or its designated representatives. All installation charges shall be borne by the Lessee.



2.2 Lessee shall at its expense comply with and conform to all federal, state and local laws, ordinances, rules and regulations relating to the possession, use, maintenance or modification of the Equipment. Lessee shall not take any action which would impair or violate Vendor's patent rights or copyrights in and to the Equipment, or any software license for the Equipment. On reasonable prior notice to Lessee, Lessor and Lessor's agents shall have the right, during Lessee's business hours, to enter the premises where the Equipment is located for the purpose of inspecting the Equipment and observing its use. Lessor and Lessor's agents shall comply with any reasonable security measures established by Lessee.



2.3 Lessee shall at its expense affix and maintain in a prominent position on each item any plates, tags or identifying labels provided by Lessor to indicate its ownership of the Equipment.



2.4 Lessee may at its expense relocate the Equipment with the prior written consent of Lessor, which consent shall not be unreasonably withheld. In no event shall Lessee relocate the Equipment outside the continental United States.



2.5 Lessor hereby assigns to Lessee for the Term all warranties made with regard to the Equipment by Vendor. With respect to warranties which are not assignable, Lessor agrees to take such reasonable actions at Lessee's request and expense as are necessary to enforce such warranties for Lessee's benefit.



2.6 It is the intention of Lessor and Lessee that the Equipment shall at all times be and remain personal property and shall not become a fixture upon or a part of any real property where the Equipment is located. Lessee shall not affix the Equipment to the real property. Lessee shall obtain and provide to Lessor, upon request, waivers from each real property landlord, mortgagee or lienholder for the site at which the Equipment is located, waiving any interest that it may have in the Equipment arising from its interest in the real property.



2.7 Lessee shall at its expense and at all times during the Term operate and maintain the Equipment in good operating order, repair, condition and appearance, normal wear and tear excepted, and in accordance with Vendor's specifications and recommendations. Lessee covenants that it will, at its expense, enter into, maintain and enforce for the Term a maintenance agreement with a maintenance organization acceptable to Lessor, covering at least prime shift maintenance of the Equipment.



2.8 On or before the Termination Date, Lessee shall pack the Equipment in accordance with Vendor's guidelines and in Vendor's standard packaging materials, load the Equipment on board such carrier as Lessor shall specify, and deliver the same to Lessor at any destination within the continental United States designated by Lessor. Any dismantling, packaging, transportation and shipping charges shall be borne by Lessee, and at Lessee's option, arranged by Lessee. The Equipment returned to Lessor shall, at the time it is removed from Lessee's premises, be in the same condition and working order as when delivered to Lessee, reasonable wear and tear excepted, and certified for manufacturer's maintenance by its manufacturer.



ARTICLE III. UPGRADES



3.1 Lessee may from time to time install alterations, additions and upgrades to the Equipment (collectively "Upgrades") if they are readily removable, will not impair the originally intended function or purpose of the Equipment, and are not subject to any lien or security interest in favor of any other party. Upgrades which are owned by Lessee shall, upon Lessor's request, be removed from the Equipment prior to return of the Equipment pursuant to Section 2.8. Lessee at its own expense shall repair any damage caused by such removal and return the Equipment to its original state, normal wear and tear excepted. Any Upgrade which is not removed prior to return of the Equipment to Lessor shall become the property of Lessor upon return of the Equipment, and Lessee shall have no further right, title or interest in the upgrade or in the proceeds thereof. Alternatively, Lessee and Lessor may negotiate a sale of the Upgrade to Lessor, provided that Lessor may accept or reject a purchase price in its sole discretion.



3.2 Lessee shall not, without the prior written consent of Lessor, affix or install any Upgrade on the Equipment if it is not readily removable. If Lessor consents to a non-removable Upgrade, it shall be affixed or installed in accordance with applicable law, shall become the property of Lessor upon affixation or installation, and shall be considered an Item.



ARTICLE IV. RISK OF LOSS



4.1 From the date Equipment is delivered to Lessee until it is returned to Lessor, Lessee shall bear all risk of loss, damage, theft, destruction, wearing out and condemnation to or of the Equipment from any and every cause whatsoever. 4.2 Lessee shall at its expense maintain all risk, public liability, theft and property damage insurance on the Equipment in amounts as stated in the Schedule. Additionally, if Lessee shall relocate the Equipment in accordance with Section 2.4, Lessee shall maintain in-transit insurance on the Equipment. All policies for such insurance shall include Lessor as an additional insured, as its interest may appear, and shall name Lessor as loss payee. All insurance shall be primary and shall not be subject to any co-insurance clause. All policies of insurance required hereunder shall be issued by insurance companies acceptable to Lessor and shall provide that they may not be canceled or materially altered without at least thirty days' prior written notic ...