UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
[X] Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended September 30, 1998
[ ] Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _____ to _____.
COMMISSION FILE NUMBER: 001-23407
SURREY, INC.
(Exact name of registrant as specified in its charter)
Texas 74-2138564
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13110 Trails End Road
Leander, Texas 78641
(Address of principal executive offices)
(512) 267-7172
(Registrant's telephone number, including area code)
Check whether the registrant: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for the past
90 days.
Yes _X_ No ___
On November 9, 1998, the registrant had 2,472,727 outstanding shares of
common stock, no par value.
Transitional Small Business Disclosure Format (check one);
Yes ___ No _X_
<PAGE>
SURREY, INC.
INDEX
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Statements of Operations for the Three Months and Nine Months
Ended September 30, 1998 and 1997
Balance Sheets as of September 30, 1998 and December 31, 1997
Statements of Cash Flows for the Nine Months
Ended September 30, 1998 and 1997
Notes to Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
PART II - OTHER INFORMATION
SIGNATURES
EXHIBITS
<PAGE>
PART I: FINANCIAL INFORMATION
ITEM 1 FINANCIAL STATEMENTS
<PAGE>
Surrey, Inc.
STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------------------------------
1998 1997 1998 1997
---------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 2,877 $ 2,639 $ 6,696 $ 6,363
Cost of sales 2,389 1,882 5,153 4,702
---------------------------------------------------
Gross profit 488 757 1,543 1,661
Operating expenses:
Sales and marketing 221 132 565 288
General and administrative 324 330 1,221 870
---------------------------------------------------
Total operating expenses 545 462 1,786 1,158
Income (loss) from operations (57) 295 (243) 503
Other:
Interest expense (49) (57) (133) (159)
Other income 5 4 43 4
---------------------------------------------------
Income (loss) before income taxes (101) 242 (333) 348
Income tax (benefit) provision (34) 93 (113) 135
---------------------------------------------------
Net income (loss) $ (67) $ 149 $ (220) $ 213
===================================================
Basic and diluted earnings (loss) per share $ (0.03) $ 0.09 $ (0.09) $ 0.10
===================================================
Shares used in computing basic and diluted
earnings (loss) per share: 2,473 1,678 2,473 2,056
===================================================
</TABLE>
SEE ACCOMPANYING NOTES.
<PAGE>
Surrey, Inc.
BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
---------------------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 172 $ 3,066
Accounts receivable, net 1,225 1,427
Inventories, net 2,109 1,252
Prepaid expenses and other current assets 201 39
Deferred income taxes 38 38
Income taxes receivable 156 42
---------------------------
Total current assets 3,901 5,864
Property and equipment, net 2,911 1,510
===========================
Total assets $ 6,812 $ 7,374
===========================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Trade accounts payable $ 639 $ 561
Accrued expenses 96 308
Notes payable -- 895
Current maturities of long-term debt 125 96
Current maturities of capital lease obligations 71 66
---------------------------
Total current liabilities 931 1,926
Long-term debt, less current maturities 1,845 1,153
Capital lease obligations, less current maturities 68 85
Deferred income taxes 49 49
Commitments and contingencies
Shareholders' equity:
Common stock; no par value 4,098 4,120
Common stock warrants 65 65
Accumulated deficit (244) (24)
---------------------------
Total shareholders' equity 3,919 4,161
===========================
Total liabilities and shareholders' equity $ 6,812 $ 7,374
===========================
</TABLE>
SEE ACCOMPANYING NOTES.
<PAGE>
Surrey, Inc.
STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
September 30, September 30,
1998 1997
----------------------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income (loss) $ (220) $ 213
Adjustments to reconcile net income (loss) to net
cash provided by (used in) operating
activities:
Depreciation 208 172
Changes in operating assets and liabilities:
Accounts receivable 202 (665)
Inventories (857) (203)
Prepaid expenses and other current assets (162) 3
Deferred income taxes -- (11)
Trade accounts payable 78 648
Accrued expenses (212) 142
Income taxes receivable/payable (114) 145
----------------------------
Net cash provided by (used in) operating activities (1,077) 444
INVESTING ACTIVITIES
Acquisition of property and equipment (1,553) (122)
----------------------------
Net cash used in investing activities (1,553) (122)
FINANCING ACTIVITIES
Proceeds from issuance of notes payable -- 513
Payment of notes payable (895) (554)
Payment of notes payable to shareholders -- (7)
Proceeds from issuance of long-term debt 1,939 --
Payment of long-term debt (1,229) (63)
Principal payments on capital lease obligations (57) (105)
Payment of deferred financing costs (22) (196)
----------------------------
Net cash used in financing activities (264) (412)
Net change in cash (2,894) (90)
Cash and cash equivalents, beginning of period 3,066 159
----------------------------
Cash and cash equivalents, end of period $ 172 $ 69
============================
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid during the period for:
Interest $ 158 $ 159
Income taxes $ -- $ 5
Acquisition of property and equipment via issuance
of capital leases $ 56 $ 54
</TABLE>
SEE ACCOMPANYING NOTES.
<PAGE>
Surrey, Inc.
Notes to Financial Statements
September 30, 1998
1. ACCOUNTING POLICIES
BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three- and nine-month periods ended
September 30, 1998 are not necessarily indicative of the results that may be
expected for the year ended December 31, 1998. For further information, refer to
the financial statements and footnotes thereto included in the Surrey, Inc.
annual report on Form 10-KSB for the year ended December 31, 1997.
2. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted earnings per
share (in thousands, except per share data):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-----------------------------------------------------
1998 1997 1998 1997
-----------------------------------------------------
<S> <C> <C> <C> <C>
Numerator:
Net income (loss) $ (67) $ 149 $ (220) $ 213
-----------------------------------------------------
Numerator for basic and diluted earnings
(loss) per share - income (loss)
available to common
stockholders $ (67) $ 149 $ (220) $ 213
=====================================================
Denominator:
Denominator for basic and diluted earnings
per share - weighted average shares 2,473 1,678 2,473 2,056
-----------------------------------------------------
Basic and diluted earnings per share $ (0.03) $ 0.09 $ (0.09) $ 0.10
=====================================================
</TABLE>
<PAGE>
Surrey, Inc.
Notes to Financial Statements (continued)
September 30, 1998
2. EARNINGS PER SHARE (continued)
Options to purchase 335,000 shares of common stock at $4.00 to $4.40 per share,
warrants to purchase 675,000 shares of common stock at $4.80 per share, and a
warrant to purchase 62,500 Units (consisting of two shares of common stock and
one redeemable common stock purchase warrant) at $9.75 per Unit were outstanding
during 1998 but were not included in the computation of diluted earnings per
share because the exercise prices were greater than the average market price of
the common shares; therefore, the effect would be antidilutive.
3. CONTINGENCIES
The Company is involved in certain claims arising in the normal course of
business. An estimate of the possible loss resulting from these matters cannot
be made; however, the Company believes that the ultimate resolution of these
matters will not have a material adverse effect on its financial position or
results of operations.
4. LONG-TERM DEBT
As of September 30, 1998, the Company was not in compliance with a certain
financial covenant specified in their term loan and line of credit agreements.
The Company has received a waiver from the lender for such violation.
<PAGE>
PART I: FINANCIAL INFORMATION
ITEM 2 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion and analysis provides information that
management believes is relevant to an assessment and understanding of the
Company's level of operation and financial condition. This discussion should be
read with the financial statements appearing in Part I, Item 1 of this report.
RESULTS OF OPERATIONS
NET SALES. Net sales increased to $2,877,000 for the three months
ended September 30, 1998 from $2,639,000 for the three months ended September
30, 1997, an increase of 9.0%. Net sales increased to $6,696,000 for the nine
months ended September 30, 1998 from $6,363,000 for the nine months ended
September 30, 1997, an increase of 5.2%. Such increases are attributed primarily
to the increase in the Company's sales force to five full-time sales personnel
in the second half of 1997. A significant sales volume increase is not expected
to occur until the Company's expansion is complete and operational, which is
currently expected to be fully operational during the first quarter of 1999.
GROSS PROFIT. Gross profit decreased for the three months ended
September 30, 1998 to $488,000 from $757,000 for the comparable three month
period in 1997. Gross profit margin for the three month period decreased from
28.7% in 1997 to 17.0% in 1998. Gross profit decreased for the nine months ended
September 30, 1998 to $1,543,000 from $1,661,000 for the comparable nine month
period in 1997. Gross profit margin also decreased for the nine month period
from 26.1% in 1997 to 23.0% in 1998. This decrease in profit margin is primarily
due to higher than anticipated labor costs for the quarter and for the first
nine months of 1998. Management believes that the higher labor costs for the
quarter and the first nine months of 1998 are due to training costs associated
with the Company's expanded facilities and equipment as well as inefficiencies
of operating in the Company's existing smaller facilities. However, there can be
no assurance that once the Company's expanded facilities are fully operational,
labor costs as a percentage of net sales will decrease. Profit margins should
begin to increase in 1999 as the Company continues to implement its strategy of
selling higher margin products. This strategy is expected to continue as the new
high-end candle line begins production and the Company continues to focus on
high-end contract manufacturing products. There can be no assurance that the
Company will be able to efficiently utilize its expanded facilities which is
necessary for the Company to realize higher gross margins.
OPERATING EXPENSES. Operating expenses increased significantly for
the three months ended September 30, 1998 by 18.0% over the three months ended
September 30, 1997, and also increased as a percentage of net sales; $545,000
(or 18.9% of net sales) in 1998, as compared to $462,000 (or 17.5% of net sales)
in 1997. Operating expenses also increased significantly in the nine months
ended September 30, 1998 by 54.2% over the nine months ended September 30, 1997,
and also increased as a percentage of net sales; $1,786,000 (or 26.7% of net
sales) in 1998, as compared to $1,158,000 (or 18.2% of net sales) in 1997.
Operating expenses increased due to a number of factors during the last nine
months, including: (i) the Company's increased obligations as a publicly
reporting company, (ii) retaining an investor relations
<PAGE>
consultant, and (iii) costs related to its first annual meeting of public
shareholders. The Company's legal and professional expenses increased by
$125,000 and salaries and related payroll tax increased by $265,000, due to the
hiring of four additional full-time sales personnel, a graphic designer, a
Quality Control Manager and staff, and an administrative assistant. In addition,
operating expenses, such as insurance expenses and bad debt expenses have
increased as the Company has grown. These fixed expenses are expected to decline
as a percentage of sales after the expansion is complete and fully operational.
INTEREST EXPENSE. Interest expense of $49,000 (1.7% of net sales) in
the three months ended September 30, 1998 was slightly lower as compared to
$57,000 in the three months ended September 30, 1997 (2.2% of net sales).
Interest expense of $133,000 (2.0% of net sales) for the nine months ended
September 30, 1998 fell moderately as compared to $159,000 (2.5% of net sales)
for the nine months ended September 30, 1997. This decrease was primarily due to
the payoff of all of the Company's short term borrowings for working capital
purposes in January 1998. For the comparable periods in 1997, these short term
loans were outstanding.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary sources of liquidity, other than proceeds of
the Company's 1997 initial public offering ("IPO"), are cash flows from
operations, bank borrowings, and capital lease financing. In April 1998, the
Company entered into a loan agreement with Chase Bank of Texas, National
Association ("Lender") to provide (a) a construction/term loan in the principal
amount of $2,300,000 ("Term Loan") with a final maturity in April 2005, and (b)
a revolving line of credit to be used for working capital purposes in the amount
of the lesser of 80% of eligible accounts receivable or $1,000,000 ("Revolving
Note") which allows the Company to borrow, repay, and reborrow until its final
maturity in April 2000. As of September 30, 1998, approximately $1.7 million had
been drawn under the Term Loan and no draws had been made under the Revolving
Note.
The interest on each of the Term Loan and the Revolving Note will,
at the Company's option, float at either the lender's Prime Rate or the LIBOR
Rate (London Interbank Offered Rate) plus the LIBOR margin, which will range
from 1.75% to 2.25% depending on the Company's debt to tangible net worth ratio.
Currently, the Company has elected to pay interest at the LIBOR Rate. The
current rate of interest on the loans is equal to 7.5%. The Company and Lender
have also entered into an interest rate risk management program for the Term
Loan, pursuant to which the Company and Lender entered into an ISDA Agreement
(International Swap Dealers Association) intended to hedge the interest rate
fluctuations on the Term Loan. Overdue amounts on the loans are payable at a
past due rate of interest. The loans are secured by a lien on the Company's
plant, equipment, inventory, and accounts receivable.
Interest on each of the Revolving Note and Term Loan is payable
monthly. The Company is required to prepay the Revolving Note and maintain a
zero balance for thirty consecutive days during each year the Revolving Note is
outstanding. Principal on the Term Loan is payable in monthly installments
beginning January 8, 1999 of approximately $9,500 per month, increasing to
approximately $12,700 per month after April 2001.
<PAGE>
Among other requirements, the loan agreement currently contains the
following covenants, which are tested quarterly: the Company must maintain (a) a
current ratio of not less than 1.50 to 1.00; (b) a debt to tangible net worth
ratio not greater than 1.50 to 1.00; and (c) a fixed charge coverage ratio of
not less than 1.20 to 1.00. The Company was not in compliance with the fixed
charge coverage ratio covenant as of September 30, 1998. The Company has
received a waiver from the Lender. The Company is in compliance with the
applicable current ratio and the debt to tangible net worth ratio. The loan
agreement also limits indebtedness by the Company, restricts borrowing under
certain capital equipment leases to $1.5 million, restricts indebtedness in
connection with acquisition of equipment to $200,000, and limits sales of
certain assets. The loan agreement restricts the Company from making any
dividends or distributions on its capital stock unless net income equals or
exceeds $2 million, from repurchasing or redeeming any capital stock (other than
pursuant to the terms of the Company's Warrants, provided no default would occur
under the bank loans), from paying any bonus or other non-salary compensation,
from replacing its President or Chief Financial Officer, or from entering into
certain related party transactions, without prior written consent of Lender.
The Company used approximately $1,191,000 of the loan proceeds to
repay its outstanding loans to its previous lender and used approximately
$1,102,000 to finance the expansion of its plant and facility. Disbursement of
construction funds is subject to (a) compliance by the Company and its
contractor within the terms of the agreements with the Lender and (b) the Lender
receiving an appraisal of the property as improved, of approximately $2,700,000.
The Company currently anticipates that it will make periodic payments on such
loans out of future cash flows generated by the Company.
The Company leases certain pieces of its manufacturing equipment
pursuant to capital leases. Annual payments at September 30, 1998, aggregated
$71,000 under short term capital leases and $68,000 under long term capital
leases. The leases currently in effect have maturity dates ranging through 2002.
Such leases, some of which are personally guaranteed by the current and former
CEOs of the Company, provide that if no event of default exists thereunder the
Company may purchase the equipment subject to the lease at the expiration of the
lease or may renew the lease.
The Company and Keycorp Leasing, a division of Key Corporate
Capital, Inc. ("KCCI") have entered into an operating lease for equipment
financing dated June 16, 1998, which provides for a $1,500,000 leasing line of
credit. The equipment currently leased under this agreement includes two poured
soap lines, one high speed wrapping machine and one candle making line. The
Company began drawing on the lease line of credit in August 1998 and has
currently drawn $900,000 of the available credit. Annual payments under the
proposed lease are expected to be approximately $112,000 (approximately $168,000
if the entire line is drawn down). The Company currently anticipates that it
will pay such annual lease expense out of future cash flows generated by the
Company.
The Company believes that its current cash balances, cash expected
to be provided by future operations and its current bank loans and financing
leases will be sufficient to meet its working capital and anticipated capital
expenditure requirements at least over the next 12 months. However, the Company
may seek additional working capital financing if net sales increase more than
currently anticipated.
<PAGE>
The Company experiences seasonal fluctuations in operating results,
with sales and revenues generally higher during the third and fourth calendar
quarters, reflecting primarily orders for the holiday retail season. Orders
shipped in the third and fourth quarters generally account for approximately 60%
of the Company's total net sales for the year.
The Company has completed the construction of its expansion. Most
equipment necessary to make the expansion fully operational has been installed
and is ready for use. The Company has neither received nor installed its
traditional soap making line for its expanded facility. The Company currently
expects that its expanded facility will be fully operational during the first
quarter of 1999.
FORWARD LOOKING INFORMATION
Statements contained in this report regarding the Company's future
operations, growth strategy, future performance and results and the anticipated
liquidity are forward-looking and therefore are subject to certain risks and
uncertainties, including those discussed herein. In addition, any
forward-looking information regarding the operations of the Company will be
affected by the Company's ability to successfully complete its expansion in a
timely fashion, to efficiently manage and operate its facility as expanded, the
Company's ability to successfully increase its marketing and sales efforts in
order to take advantage of its increased production facilities, and continued
receipt of large orders from the Company's significant customers. Any forward
looking information regarding an increase of the Company's gross profit margin
will be affected by the Company's ability to implement its strategy of focusing
on the sales of higher margin products as well as the Company's ability to
efficiently utilize its expanded facilities. There can be no assurance that the
Company will be successful in completing its proposed expansion, or, if
completed, that it will be successful in efficiently managing its growth in
order to maximize potential production.
PART II: OTHER INFORMATION
ITEM 1 LEGAL PROCEEDINGS
The Company and its client Bath & Body Works are defendants in a
lawsuit filed in Los Angeles Superior Court on April 2, 1997. The plaintiff,
Seretha F. Ebraham, claimed, among other things, that a liquid potpourri product
manufactured by the Company for Bath & Body Works failed to properly warn the
plaintiff of the potential dangers of the product and that she sustained burns
from the liquid potpourri as a result of such insufficient warning. The
plaintiff seeks total damages of $5,250,000. The Company's product liability
insurer at the time of the occurrence is defending the claim and the Company
currently believes that such insurance is adequate to cover damages, if any,
resulting from such lawsuit. The proceeding is set for trial on December 1,
1998.
Other than the above lawsuit, the Company is involved in legal
proceedings arising in the normal course of business, none of which is expected
to result in any material loss to the company.
<PAGE>
ITEM 2 CHANGES IN SECURITIES AND USE OF PROCEEDS
The Company undertook an initial public offering ("IPO") in December
1997 (Registration Number 333-35757). The Company issued an aggregate of 675,000
Units, each Unit being comprised of two shares of Common Stock and one Warrant.
Each Warrant is convertible into one share of Common Stock. The Units were sold
by Stuart, Coleman & Co., Inc. (the "Underwriter"). The Common Stock and
Warrants trade on the Nasdaq SmallCap Market under the symbols SOAP and SOAPW,
respectively. The aggregate offering price of the Units sold to the public by
the Underwriter was $5,484,375 or $8.125 per Unit. The total underwriting
discount was $548,437.50.
The Company spent approximately $288,000 of the net proceeds on
additional land; approximately $598,000 on construction costs; approximately
$800,000 to finance inventory needs for the Fall 1998 season; approximately
$1,340,000 to repay debt to a former shareholder; approximately $895,000 to
repay bank loans; approximately $100,000 as a down payment on capital equipment
leases; approximately $500,000 on the costs of issuance and approximately
$415,000 to pay sales, marketing and new product development fees.
ITEM 3 DEFAULTS UPON SENIOR SECURITIES
[None]
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
[None]
ITEM 5 OTHER INFORMATION
Pursuant to the rules of the Securities and Exchange Commission
("SEC"), any shareholder wishing to have a proposal considered for inclusion in
the Company's proxy solicitation material for the 1999 Annual Meeting of
Shareholders must set forth such proposal in writing and file it with the
Secretary of the Company no later than December 2, 1998. Pursuant to SEC Rule
14a-4(c )(1), any shareholder wishing to have a proposal considered at the 1999
Annual Meeting of Shareholders, but not submitted for inclusion in the Company's
proxy solicitation material, must set forth such proposal in writing and file it
with the Secretary of the Company no later than February 15, 1999 and failure to
notify the Company by such date would allow the Company's proxies to use their
discretionary voting authority when the proposal is raised at the Annual meeting
(to vote for or against the proposal) without any discussion of the matter in
the proxy materials.
<PAGE>
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit 10.1 - Master Equipment Lease Agreement between
Company and Key Corporate Capital, Inc.
(b) Exhibit 27.1 - Financial Data Schedule.
(c) Exhibit 27.2 - Restated Financial Data Schedule.
(d) The Company filed no Reports on Form 8-K during the reporting
period.
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the
registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
SURREY, INC.
(Registrant)
Date: November 13, 1998 By: /s/ Martin van der Hagen
------------------------------------
Martin van der Hagen
President
By: /s/ Mark van der Hagen
------------------------------------
Mark van der Hagen
Chief Financial Officer
Exhibit 10.1
MASTER EQUIPMENT LEASE AGREEMENT
THIS MASTER EQUIPMENT LEASE AGREEMENT dated as of June 16, 1998 is made
by and between KEYCORP LEASING, A DIVISION OF KEY CORPORATE CAPITAL INC., having
an address at 54 State Street, Albany, New York 12207 ("Lessor"), and SURREY,
INC., a Texas corporation with its principal place of business at 13110 Trails
End Road, Leander, TX 78641 ("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 any 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
- Page 1 of 13 -
<PAGE>
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.
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
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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 Retail 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 an 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.
(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) RESERVED.
(x) RESERVED.
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(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
Lessor's 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 Supplier's invoice price for such item of Equipment plus Lessor's
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
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A CERTIFICATE OF ACCEPTANCE 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, 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 shall not be removed therefrom without Lessor's prior
written consent. 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 Lessor's 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 Lessor's 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 manufacturer's 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 manufacturer's specifications. Upon Lessor's request, Lessee
shall furnish Lessor with an executed copy of any such maintenance agreement. An
alternate source of maintenance may be
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used by Lessee with Lessor's 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
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 manufacturer's written operating and servicing
procedures, such that the Equipment is eligible for a manufacturer's standard,
full service maintenance contract without Lessor's 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. If Lessee fails to return any Item of
Equipment as required hereunder, then, all of Lessees 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.
12. 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.
(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
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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 clear 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 Lessor's receipt of the payment required under
subsection (3) above, Lessee shall be entitled to Lessor's 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 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) commercial
general liability insurance (including blanket contractual liability coverage
and products liability coverage) 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 (30th) day after the giving of such notice); (2)
name "KeyCorp and its subsidiaries and affiliated companies, including Key
Corporate Capital Inc." 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
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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; (7) 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 15 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 Lessor's 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. LESSOR'S 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 of 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 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
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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 ten (10) 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; (3) a
receiver, trustee, conservator or liquidator of Lessee or any Guarantor or of
all or a substantial part of Lessee's or such Guarantor's 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 furniture, furnishings, fixtures or other equipment or
inventory; or (9) there is a material adverse change in Lessee's or any
Guarantor's 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 Lessor's 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 its 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 of 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
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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 low
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 reason of the
occurrence of any Event of Default or the exercise of Lessor's 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
Lessor's 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 Lessor's rights.
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 after-tax 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 transactions 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 low 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
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<PAGE>
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. LESSOR'S 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 Lessor's 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 rental 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
Lessor's 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.
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 there 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
- Page 11 of 13 -
<PAGE>
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 conditions
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, Lessee shall have the purchase and
renewal options set forth in such Equipment Schedule.
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 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 Lessor's address 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.
- Page 12 of 13 -
<PAGE>
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: LESSEE:
KEYCORP LEASING, SURREY, INC.
A DIVISION OF KEY CORPORATE CAPITAL INC.
By: /s/ Krista L. Spada By: /s/ Mark van der Hagen
------------------------------------ ---------------------------
Name: Krista L. Spada Name: Mark van der Hagen
Title: Assistant Team Leader Title: Vice President / CFO
- Page 13 of 13 -
<TABLE> <S> <C>
<ARTICLE> 5
<NAME> SURREY INC
<CIK> 0001044847
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 172
<SECURITIES> 0
<RECEIVABLES> 1,287
<ALLOWANCES> 62
<INVENTORY> 2,109
<CURRENT-ASSETS> 3,901
<PP&E> 4,585
<DEPRECIATION> 1,674
<TOTAL-ASSETS> 6,812
<CURRENT-LIABILITIES> 931
<BONDS> 0
0
0
<COMMON> 4,098
<OTHER-SE> (179)
<TOTAL-LIABILITY-AND-EQUITY> 6,812
<SALES> 6,696
<TOTAL-REVENUES> 6,696
<CGS> 5,153
<TOTAL-COSTS> 5,718
<OTHER-EXPENSES> (43)
<LOSS-PROVISION> 78
<INTEREST-EXPENSE> 133
<INCOME-PRETAX> (333)
<INCOME-TAX> (113)
<INCOME-CONTINUING> (220)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (220)
<EPS-PRIMARY> (0.09)
<EPS-DILUTED> (0.09)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<NAME> SURREY INC
<CIK> 0001044847
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 69
<SECURITIES> 0
<RECEIVABLES> 2,022
<ALLOWANCES> 45
<INVENTORY> 1,375
<CURRENT-ASSETS> 3,502
<PP&E> 2,985
<DEPRECIATION> 1,473
<TOTAL-ASSETS> 5,210
<CURRENT-LIABILITIES> 3,974
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> (39)
<TOTAL-LIABILITY-AND-EQUITY> 5,210
<SALES> 6,363
<TOTAL-REVENUES> 6,363
<CGS> 4,702
<TOTAL-COSTS> 4,990
<OTHER-EXPENSES> (4)
<LOSS-PROVISION> 13
<INTEREST-EXPENSE> 159
<INCOME-PRETAX> 348
<INCOME-TAX> 135
<INCOME-CONTINUING> 213
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 213
<EPS-PRIMARY> 0.10
<EPS-DILUTED> 0.10
</TABLE>
