WAIVER AND RIDER NO. 5 TO EQUIPMENT LEASE
Exhibit 10.11
WAIVER AND RIDER NO. 5
TO
EQUIPMENT LEASE
AGREEMENT
THIS WAIVER AND RIDER NO. 5 TO EQUIPMENT LEASE AGREEMENT, dated as of January 10, 2003 (this Agreement), between APPLIED EXTRUSION TECHNOLOGIES, INC. (the Lessee) and PNC LEASING, LLC, successor in interest by assignment from LASALLE NATIONAL LEASING CORPORATION (the Lessor).
W I T N E S S E T H:
WHEREAS, the Lessee and the Lessor are parties to the Equipment Lease Agreement, dated as of December 29, 1997, as amended (the Lease Agreement); and
WHEREAS, certain of the Lessees financial statements that for the period ending on or prior to September 30, 2002 that were delivered to the Lessor were inaccurate in certain material respects and, as a result, a Default (such capitalized term and all other capitalized terms not defined herein shall have the meanings provided for in Article I) has or may have occurred under Section 15(3), (6) and (7) of the Lease Agreement (collectively, the Subject Events of Default); and
WHEREAS, the Lessee has delivered to the Lessor its restated financial statements for the period ending September 30, 2002 (collectively, the Restated Financial Statements); and
WHEREAS, the Lessee has requested that, as of the Effective Date, the Subject Events of Default be waived and the amendment set forth herein be made; and
WHEREAS, the Lessor is willing, subject to the terms and conditions hereinafter set forth, to grant such waiver;
NOW, THEREFORE, in consideration of the agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not underscored) when used in this Agreement shall have the following meanings:
Agreement is defined in the preamble.
Effective Date shall have the meaning provided in Section 5.1.
Lease Agreement is defined in the first recital.
Lessee is defined in the preamble.
Lessor is defined in the preamble.
Restated Financial Statements is defined in the third recital.
Subject Events of Default defined in the second recital.
SECTION 1.2. Other Definitions. Unless otherwise defined or the context otherwise requires, terms used herein have the meanings provided for in the Lease Agreement.
ARTICLE II
WAIVER
Effective on (and subject to the occurrence of) the Effective Date, the Lessor waives the Subject Events of Default that occurred as a result of the delivery of the Restated Financial Statements.
ARTICLE III
AMENDMENT
The Lessee agrees that for each period set forth below its EBIDTA shall not be less than the applicable amount set forth opposite each such relevant period:
Two fiscal quarters ended 3/31/03 | 16,433 | |
Three fiscal quarters ended 6/30/03 | 27,945 | |
Four fiscal quarters ended 9/30/03 | 39,419 | |
Four fiscal quarters ended 12/31/03 | 42,000 | |
Four fiscal quarters ended 3/30/04 | 42,000 | |
Four fiscal quarters ended 6/30/04 | 42,000 | |
Four fiscal quarters ended 9/30/04 | 48,000 | |
and the four fiscal quarters ended every fiscal quarter thereafter | 48,000 |
For purposes hereof, EBITDA means the consolidated net income of the Lessee plus the consolidated interest expense of the Lessee plus the amount deducted in determining net income in respect of income taxes and amortization and depreciation of assets, in each case of the Lessee and its subsidiaries and as calculated by the Lessee prior to the date hereof. This amendment shall form a part of the Agreement as if originally set forth therein.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lessor to make the waiver provided for in Article II and the amendment provided for in Article III, the Lessee hereby represents and warrants that (a) after giving effect to the waiver provided in Article II each of its representations and warranties contained in the Lease Agreement is true and correct in all material respects as of the date hereof as if made on the date hereof (except, if any such representation and warranty relates to an earlier date, such representation and warranty shall be true and correct in all material respects as of such earlier date) and (b) both immediately before and after giving effect to the provisions of this Agreement no Default (other than the Subject Events of Default) has occurred and is continuing.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Effective Date. This Agreement shall become effective as of January 10, 2003 (herein called the Effective Date) if each of the Lessor and Lessee have exchanged executed counterparts of the Agreement.
SECTION 5.2. Limitation of Waiver and Amendment. The waiver set forth in Article II and the amendment set forth in Article III shall be limited precisely as provided for herein and shall not be deemed to be a waiver of, amendment of, consent to or modification of any other term or provision of the Lease Agreement.
SECTION 5.3. Counterparts. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.
SECTION 5.4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 5.5. Costs and Expenses. The Lessee agrees to pay all reasonable costs and expenses of the Lessor incurred in connection with the execution and delivery of this Agreement.
SECTION 5.6. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE LESSOR AND THE LESSEE VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers hereunto duly authorized as of the day and year first above written.
LESSOR:
PNC LEASING, LLC | ||
By: | /s/ JAMES G. KLOCEK | |
Name: | James G. Klocek | |
Title: | Vice President |
LESSEE:
APPLIED EXTRUSION TECHNOLOGIES, INC. | ||
By: | /s/ BRIAN P. CRESCENZO | |
Name: | Brian P. Crescenzo | |
Title: | Vice President of Finance |
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