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Exhibit 10.3
FIRST SECURITY LEASING COMPANY
MASTER EQUIPMENT LEASE AGREEMENT
This MASTER EQUIPMENT LEASE AGREEMENT is between the First Security entity
specified below ("Lessor") and the lessee of lessees specified below (Lessee).
Section 1. Declaration of Intent to Lease; Delivery and Acceptance of
Equipment.
A. Subject to the terms hereof, Lessor agrees to make payment for and to
lease to Lessee the personal property described in Schedules, as defined
below, (hereinafter referred to collectively as "Equipment" and individually
as "Item" or "Item of Equipment"), and Lessee agrees to lease each such Item
of Equipment from Lessor for the Rental specified in the Lease Schedules to
Master Equipment Lease Agreement entered into pursuant to this Agreement and
making specific reference hereto (the "Schedules"), subject to the terms and
conditions set forth herein and in the Schedules.
B. There may be one or more Schedules under this Agreement executed
either simultaneously with or subsequent to the execution and delivery of this
Agreement. Each Schedule making specific reference to this Agreement and
incorporating the terms hereof shall constitute a separate lease which will be
identified by a Lease Number identified in such Schedule. The term "Agreement"
used herein shall refer to this Master Equipment Lease Agreement and the
Schedules. The lease created by a particular Schedule and a copy of the Master
Equipment Lease Agreement shall be referred to as "a Lease". The terms of this
Master Equipment Lease Agreement may be changed, modified or supplemented in
Section 1 of any Schedule.
Section 2. Term; Rental and Late Charges.
A. The term of each Lease with respect to any Item of Equipment (the
"Term") shall commence on the date of acceptance indicated in the Schedules
hereof relating thereto (the "Acceptance Date") and shall end, unless earlier
terminated in accordance with the provisions of this Agreement, at the
expiration of the Term specified in the Schedule.
B. Lessee shall pay to Lessor Basic Rental and Interim Rental for each
Item of Equipment in the amounts and on the dates specified in the Schedules
(each a "Rental Payment Date").
C. In the event any Rental or other amount payable hereunder shall not be
paid within tan (10) days when due, Lessee shall pay to Lessor, as
supplemental rental, an amount equal to five percent (6%) of such overdue
Rental, plus interest on such overdue payment until paid, at the rate of
eighteen percent (18%) per annum.
D. All payments to Lessor provided for in this Lease shall be paid to
Lessor at the address indicated herein or at such other place as Lessor shall
specify in writing.
E. All Leases created hereunder are net leases and Lessee shall not be
entitled to any abatement of Rental, Residual Value or other charges payable
hereunder by Lessee or withholding thereof from Lessor or any reduction
thereof, including, but not limited to, abatements or reductions due to any
present or future claims of Lessee against Lessor or any assigned under this
Agreement or otherwise, or against the manufacturer or vendor of the
Equipment, nor , except as otherwise expressly provided herein, shall this
Agreement terminate, or the obligations of Lessee be affected, by reason of
any defect in or damage to or loss or destruction of all or any of the
Equipment from whatever cause, the Interference with use by any private
person, corporation or governmental authority, the invalidity,
unenforceablility or lack of due authorization of this Agreement or lack of
right, power or authority of Lessor to enter into this Agreement, or for any
other cause whether similar or dissimilar to the foregoing.
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Section 3. Early Termination; Renewal; Purchase.
A. Provided no Event of Default shall have occurred and be continuing
hereunder, Lessee shall have the right during the Term, upon not less than
sixty (60) days' prior written notice to Lessor, to terminate a Lease with
respect to all, but not less than all, Items thereunder as of the next
succeeding Rental Payment Date following such notice, subject to Lessor's
receipt of the payments specified in the following sentence. On or before the
termination of a Lease. Lessee shall pay to Owner: (1) all Rental due and to
become due up to and including the next succeeding Rental Payment Date
following such notice; and (2) the Termination Value of the Equipment being
terminated as of such next succeeding Rental Payment Date. Upon payment of all
such amounts the obligation of Lessee to pay Rental on each succeeding Rental
Payment Date shall then terminate. The "Termination Value" of an Item shall
mean, as of any Rental Payment Date, the present value of the sum of ()) all
remaining installments of Rental excluding the installment due on such Rental
Payment Date) and (if) the Residual Value indicated in the Schedule relating
thereto, computed by discounting such amounts at such rate and applying such
penalties as shall then be consistent with Lessor's normal business practices.
B. Provided no Event of Default shall have occurred and be continuing
hereunder, Lessee shall have the right, upon not less than sixty (60) days'
prior written notice to Lessor, to renew a Lease upon the expiration of the
term thereof with respect to all, but not less than all, Items thereunder for
such term as Lessor and Lessee agree and with Rental payments which will fully
amortize the Residual Value at then current market rates.
C. Upon the expiration of the Term of a Lease, unless renewed or
terminated earlier in accordance herewith, Lessee shall pay to Lessor on the
final day of the Term an amount in cash equal to the Residual Value of all,
but not less than all, Items thereunder.
D. If Lessee shall determine upon the expiration of the Term of a Lease
or the termination thereof pursuant to this Section 3, to sell the Equipment
thereunder to a third party rather than to retain such Equipment, Lessee shall
notify Lessor in writing of such determination at least sixty 160) days prior
to such expiration or termination. Upon receipt of such notice, Lessor shall
act as the exclusive agent of Lessee to sell such Equipment. Lessor shall use
its best efforts to arrange a sale for cash of the Equipment at then current
market values. Lessee agrees to reimburse Lessor for all expenses Incurred by
Lessor In connection with such sale including the costs of repair or
preparation of the Equipment and to pay a reasonable fee for such services.
Lessor shall be entitled to retain from the proceeds of any such sale or lease
any amounts then still due and owing to Lessor. Any excess shall be paid to
Lessee. Nothing in this paragraph shall be construed to relieve Lessee of its
obligation to pay the applicable Termination Value and Residual Value on the
date such payments are due under Sections 3(A) and 3(C) hereof.
E. All sales pursuant to this Section 3 shall be made without any
representation, recourse or warranty on the part of Lessor except that Lessor
shall warrant that the Equipment is free and clear of all liens, charges and
encumbrances arising as a result of claims against Lessor not related to its
ownership of the Equipment. Lessor shall deliver to Lessee or other buyer any
and all documents reasonably requested to transfer title to such Equipment on
an as-is where-is basis.
Section 4. Conditions Precedent.
The obligation of Lessor to lease an Item of Equipment and to make
payment to the vendor therefor is subject to Lessee's supplying the following,
if requested by Lessor, at Lessee's expense, in form and substance
satisfactory to Lessor.
A. Articles of Incorporation and By-laws of Lessee, and resolutions of
the Board of Directors, each certified by the Secretary or an Assistant
Secretary duly authorizing each Lease of Equipment hereunder and the
execution, delivery and performance of this Agreement and each Schedule if
Lessee Is a corporation;
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B. Partnership Agreement, trust indenture, assumed name filings or such
other documents as Lessor may demand if lessee is not a corporation;
C. Evidence satisfactory to Lessor as to due compliance with the
insurance provisions of Section 11 hereof and Section G of the Schedules;
D. A favorable written opinion of counsel for Lessee satisfactory to
Lessor as to each of the matters set forth in Section 5(8)(i) - (vi) hereof
and as to such other matters as Lessor may reasonably request;
E. A completed and signed Schedule including a description of such Item;
and
F. Vendor's invoice of the Item. Section 5. Representations and
Warranties.
Section 5. Representations and Warranties.
A. Lessor's Representations and Warranties. Lessor warrants that during
the Term of any Lease, if no Event of Default has occurred, Lessee's use of
the Equipment shall not be interrupted by Lessor or anyone claiming solely
through or under Lessor.
The warranties set forth In the preceding paragraph are in lieu of all
other warranties of Lessor, whether written, oral or implied, and Lessor shall
not, by virtue of having executed this Agreement or any other document
pursuant to this Agreement, or for any other reason, be deemed to have made
any other warranties. LESSOR LEASES THE EQUIPMENT AS IS WITHOUT WARRANTY OR
REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION (A) THE DESIGN, PERFORMANCE, SPECIFICATIONS OR
CONDITION OF ANY ITEM OR ITEMS OF EQUIPMENT, (B) THE MERCHANTABILITY THEREOF,
(C) THE FITNESS FOR ANY PARTICULAR PURPOSE THEREOF, (D) THE LESSOR'S TITLE
THERETO, (E) INTERFERENCE BY ANY PARTY OTHER THAN LESSOR WITH LESSEE'S RIGHT
TO THE QUIET ENJOYMENT THEREOF, OR (F) THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF THE EQUIPMENT OR CONFORMITY THEREOF TO THE PROVISIONS AND
SPECIFICATIONS OF ANY PURCHASE ORDER RELATING THERETO, IT BEING AGREED THAT
ALL SUCH RISKS AS BETWEEN LESSOR AND LESSEE ARE TO BE BORNE BY LESSEE. LESSEE
FURTHER UNDERSTANDS AND AGREES THAT NEITHER THE EQUIPMENT SUPPLIER NOR ANY
SALESPERSON OR OTHER AGENT OR EMPLOYER OF SUCH SUPPLIER IS AN AGENT FOR OR HAS
ANY AUTHORITY TO SPEAK FOR OR TO BIND LESSOR IN ANY WAY. LESSOR IS NOT AN
AGENT OR REPRESENTATIVE OF SUCH SUPPLIER. Lessor hereby authorizes Lessee, at
Lessee's expense, to assert for Lessor's account during the Term of a Lease,
all of Lessor's rights under any manufacturer's vendor's or dealer's warranty
on the Equipment to the extent permitted by law and agreement, and Lessor
agrees to cooperate with Lessee in asserting such rights; provided, however,
Lessee shall Indemnify and hold harmless Lessor from and against any and all
claims, and all costs, expenses, damages, losses and liabilities incurred or
suffered by Lessor in connection therewith, as a result of, or incident to,
any action by Lessee pursuant to the above authorization. Lessor shall not be
responsible for special or consequential damages relating to Its obligations
or performance under their Agreement.
B. Lessee's Representations and Warranties. Lessee represents and
warrants that:
(i) Lessee, if a corporation, Is duly organized and existing In good
standing under the laws of the state of its incorporation, and is duly
qualified to do business in those jurisdictions(including those where the
Equipment will be located) where such qualification is necessary to carry on
Its present business operations;
(ii) Lessee, If a partnership, trust or other entity, is duly organized,
registered and validly existing under the laws of the jurisdiction of its
organization or residence and is duly qualified to do business in those
jurisdictions (Including those where the Equipment will be located) where such
qualification is necessary to carry on its present business operations;
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(iii) Lessee has full power, authority and legal right to execute, deliver
and perform the terms of this Agreement. This Agreement has been duly
authorized by all necessary corporate action on the part of Lessee and the
execution, delivery and performance thereof do not require any stockholder
approval, do not require the approval of or the giving of notice to any
federal, state, local or foreign governmental authority, do not contravene any
law binding on Lessee or Lessee's certificate or articles of incorporation or
by-laws and do not contravene or constitute a default under any Indenture,
credit agreement or other agreement to which Lessee Is a party or by which it
Is bound;
(iv) This Agreement constitutes a legal, valid and binding obligation of
Lessee, enforceable in accordance with Its terms;
(v) There are no pending or threatened actions or proceedings before any
court, administrative agency or other tribunal or body or judgments which may
materially adversely affect Lessee's financial condition or operations;
(vi) No approval, consent or withholding of objection is required from
any governmental authority with respect to the entering into or performance by
Lessee of this Agreement;
(vii) The balance sheet of Lessee for Its most recent fiscal year and the
related earnings statement of Lessee for such fiscal year have been furnished
to Lessor and fairly present Lessee's financial condition as of such date and
the results of its operations for such year in accordance with generally
accepted accounting principles consistently applied, and since such date there
has been no material adverse change in such conditions or operations: and
(viii) Lessee shall not consolidate with or merge into any other
business entity or convey, transfer or lease substantially all of its assets
as an entirely to any third party without the prior written consent of Lessor.
Section 6. Mortgages, Liens, Etc.
Lessee will not directly or indirectly create, incur, assume or permit
the existence of any mortgage, security Interest, pledge, lien, charge,
encumbrance or claim on or with respect to the Equipment, title thereto or any
interest therein except (a) the respective rights of Lessor and Lessee as
herein provided, (b) lions or encumbrances which result from claims against
Lessor except to the extent that such liens and encumbrances arise from
failure of Lessee to perform any of Lessee's obligations hereunder, and (c)
liens for taxes either not yet due or being contested in good faith and by
appropriate proceedings. Lessee will promptly, at its own expense, take such
action as may be necessary duly to discharge any such mortgage, security
interest, pledge, lien, charge encumbrance or claim not specifically excepted
above.
Section 7. Taxes.
Lessee agrees to pay promptly when due and to Indemnify and hold Lessor
harmless from all sales, use, personal property, leasing, leasing use, stamp
or other taxes, levies, imposts, duties, charges, fees or withholding of any
nature (together with any penalties, fines or interest thereon) imposed
against Lessor, Lessee or the Equipment by any federal, state, local or
foreign government or taxing authority upon or with respect to the Equipment
or upon the purchase, ownership, delivery, leasing, possession, use operation,
return or other disposition thereof, or upon the rentals, receipts or earnings
arising therefrom, or upon or with respect to any Lease (excluding, however,
federal, state and local taxes on or measured solely by the net income of
Lessor) unless, and to the extent only, that any such tax, levy, impost, duty,
charge or withholding is being contested by Lessee in good faith and by
appropriate proceedings. In case any report or return is required to be made
with respect to any obligation of Lessee under this Section Lessee will notify
Lessor of such requirement and make such report or return in such manner as
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shall be satisfactory to Lessor. Lessor agrees to cooperate fully with lessee
in the preparation of any such reports or returns. Lessee agrees to remit all
applicable sales or use taxes to Lessor promptly upon receipt of an invoice
therefor.
Section 8. Title; Use, Maintenance and Operation, Identification Marking.
A. Lessor shall retain full legal title to the Equipment notwithstanding
delivery to and possession and use thereof by Lessee. Upon delivery of the
Equipment Lessee shall cause said Equipment to be duly registered, and at all
times thereafter to remain duly registered, in the name of Lessor, or at
Lessor's request shall furnish to Lessor such information as may be required
to enable Lessor to make application for such registration and shall promptly
furnish to Lessor such information as may be required to enable Lessor to file
timely any reports required to be filed by it as Lessor under the Lease or as
the owner of the Equipment with any governmental authority.
B. Lessee agrees that the Equipment will be used solely in the conduct of
its business. Lessee further agrees to comply in all material respects with
all applicable governmental laws, regulations, requirements and rules with
respect to the use, maintenance and operation of each Item of Equipment.
Lessee agrees that each Item of Equipment (except Items which prior to the
execution of this Lease Lessee shall have advised Lessor in writing are
normally used or to be used in more than one location) will be kept at the
address shown in the Schedules with respect to such Item unless Lessor shall
first otherwise consent in writing. Lessee swill immediately give written
notice to Lessor of any change in Its principal place of business.
Lessee, at its own cost and expense, will repair and maintain the
Equipment so as to keep it in a good condition as when delivered to Lessee
hereunder, ordinary wear and tear excepted. Lessee may from time to time add
further parts or accessories to any Item of Equipment provided that such
addition does not impair the value, utility or warranties of such Item of
Equipment and is readily removable without causing material damage to such
Item.
C. Lessee agrees at its own cost and expense to place such markings,
plates or other identification on the Equipment showing Lessor's title thereto
as Lessor may from time to time request, provided such identification markings
are placed so as not to interfere with the usefulness of such Equipment.
Except as above provided, Lessee will not allow the name of any person,
association or corporation to be placed on the Equipment as a designation that
might be interpreted as a claim of ownership.
Section 9. Inspection.
Upon the request of Lessor, Lessee shall advise Lessor as to the location
of each Item of Equipment and shall, at any reasonable time, make the
Equipment available to Lessor or Lessor's agent for inspection at the place
where it is ordinarily located and shall make Lessee's records pertaining to
the Equipment available for Lessor's inspection.
Section 10. Loss or Destruction.
In the event any Item of Equipment shall be lost, stolen, destroyed,
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever ("Event of Loss"). Lessee shall promptly, but in any event within
ten (10) days of the Event of Loss, give written notification to Lessor of
said loss and the facts pertaining thereto. In addition, within ten (10) days
of the Event of Loss Lessee shall elect either: (a) to replace such Item of
Equipment at Lessee's own cost and expense of; or (b) to pay to Lessor the
Termination Value of the Item and shall notify Lessor in writing of such
election.
Should Lessee elect to replace such Item, any replacement Item shall be
free and clear of all liens, encumbrances and rights of others and shall be of
like kind and have substantially equal fair market value as the replaced Item,
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as if such replaced Item were in the condition and repair required to be
maintained by the terms hereof. All such replacement Items shall become the
property of Lessor and shall immediately become subject to this Agreement, and
shall be deemed part of the Equipment for all purposes hereof, to the same
extent as the property originally comprising the Equipment. Such replaced Item
of Equipment shall no longer be deemed part of the Equipment leased hereunder,
and Lessor will transfer to Lessee, without recourse or warranty all of
Lessor's right, title and interest therein. In the event Lessee elects to
replace such Item of Equipment, Lessee's obligation to pay Rental as set forth
in this Lease Agreement shall remain unchanged. Lessee further agrees to
execute such documents in connection with such replacement as deemed necessary
by Lessor to insure Lessor's full title thereto.
Should Lessee elect not to replace such Item of Equipment, Lessee shall
pay to Lessor, on the next Rental Payment Date for such Item following such
Event of Loss, the Termination Value of such lost or destroyed Item. The
obligation of Lessee to pay Rental with respect to such Item (including the
Rental due on such Rental Payment Date) shall continue undiminished until the
payment of such Termination Value. After the payment of such Termination
Value, Lessee's obligation to pay Rental for such Item shall cease, but
Lessee's obligation to pay Rental for all other Items of Equipment shall
remain unchanged. After the payment of such Termination Value, Lessor will
transfer to Lessee, without recourse or warranty, all of Lessor's right, title
and interest in and to such Item of Equipment suffering the Event of Loss.
Section 11. Insurance
At its own expense, Lessee shall maintain comprehensive general
liability, products liability and property damage insurance acceptable to
Lessor with respect to each Item in an amount not less than the amount
specified in the Schedules relating thereto and , in any event, in an amount
sufficient to provide full coverage against all loss and liability. Each such
insurance policy shall name Lessor as an insured and as loss payee and shall
provide that it may be altered or canceled by the insurer only after thirty
(30) days prior written notice to Lessor. Lessee agrees to cause certificates
or other evidence satisfactory to Lessor showing the existence of such
insurance, the terms and conditions of each policy and payment of the premium
therefor to be delivered to Lessor upon demand thirty (30) days prior to
expiration or cancellation showing renewal or replacement of such policy. In
the event Lessee shall fail to obtain and/or maintain insurance in accordance
with the provisions of this paragraph, Lessor shall have the right to obtain
such insurance as Lessor deems necessary, and Lessee shall reimburse Lessor
for the payment by Lessor of all premiums therefor together with interest
computed from the date of Lessor's payment at the rate of eighteen percent
(18%) per annum. If (a) any insurance proceeds are received with respect to a
loss with respect to Equipment which does not constitute an Event of Loss
under Section 10, or (b) if Lessee elects to replace an Item or Items
suffering an Event of Loss under the provisions of Section 10 hereof, proceeds
will be applied in payment for repairs and replacement required pursuant to
Section 8 and 9 hereof, or to reimburse Lessee having made such payments.
Section 12. Indemnification and Expenses.
Lessee shall indemnify, protect and keep harmless Lessor or any assignee
or transferee of Lessor and their respective agents and servants from and
against all claims, causes of action, damages, liability (including strict
liability in tort), costs, fees or expenses (including attorney's fees)
incurred in any manner by or for the account of any of them relating to the
Equipment or any part thereof including without limitation the construction,
purchase, delivery, installation, ownership, leasing or return of the
Equipment or as a result of the use, maintenance, repair, replacement,
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operation or condition thereof, (whether defects are latent or discoverable by
Lessor or by Lessee). This Section shall be effective from the date the first
Item of Equipment is ordered and shall remain in effect notwithstanding the
expiration or other termination of a Lease with respect to any one or more
Items of Equipment. Lessee agrees to give Lessor prompt notice of any claim or
liability hereby indemnified against. Lessor agrees to cooperate with Lessee
in any defense or other action which Lessee is by this Section obligated to
undertake.
Section 13. Assignments and Subleases.
Lessor may at any time, without notice, grant a security interest in,
transfer or assign any or all Leases, Items, or rights and remedies as Lessor
to any party, with such party assuming all, part or none of Lessor's
obligations. Lessee shall not assert against such party any defense,
counterclaim, or offset Lessee may have against Lessor. Lessee acknowledges
that any such grant, transfer or assignment would not materially change
Lessee's duties, risks or interests under the Agreement.
LESSEE SHALL NOT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUBLEASE OR
RELINQUISH POSSESSION OF ANY ITEM OR ASSIGN ANY OF ITS RIGHTS OR DELEGATE ANY
OF ITS OBLIGATIONS HEREUNDER. Lessee grants Lessor a security interest in any
existing or future sublease of an Item and the proceeds thereof, whether or
not such sublease is prohibited.
Section 14. Events of Default; Remedies
A. The following shall constitute Events of Default hereunder:
(i) Lessee shall fail to make any Interim or Basic Rental payment or the
Residual Value payment when due and such failure shall continue unremedied for
ten (10) days:
(ii) Lessee shall fail to make any payment other than Rental required
hereunder or shall fail to perform or observe any covenant, condition or
agreement to be performed or observed by it under this Agreement, and such
failure shall continue unremedied for ten (10) days after notice from Lessor
requiring performance;
(iii) Any representation or warranty made by Lessee herein, in any
Schedule or any supplement or addition hereto, or in any document or
certificate furnished Lessor in connection herewith shall prove to be
incorrect at any time in any material respect; or IN) Lessee shall become
insolvent or bankrupt or make an assignment for the benefit of creditors or
consent to the appointment of a trustee or receiver, or a trustee
or a receiver shall be appointed for Lessee or for a substantial part of its
property without its consent and shall not be dismissed within a period of
sixty (60) days, or bankruptcy, reorganization or insolvency proceedings shall
be instituted by or against Lessee and, if instituted against Lessee, shall
not be dismissed for a period of sixty (60) days.
B. Upon the occurrence of an Event of Default Lessor may at its option
exercise one or more of the following remedies:
(i) Declare all unpaid Rentals under any Lease or all Leases to be
Immediately due and payable;
(iii) Proceed by appropriate court action to enforce performance by
Lessee of the applicable covenants, of this Agreement and/or to recover
damages for the breach thereof; or
(iii) By notice in writing terminate any Lease or all Leases whereupon
all rights of Lessee to the use of the Equipment shall absolutely cease and
terminate, but Lessee shall remain liable as hereinafter provided. Thereafter,
Lessee, if requested by Lessor, shall, at its own cost promptly deliver
possession of the Equipment to Lessor in such manner and to such place as
Lessor shall direct or Lessor may at any hour and without liability, except
for malicious acts by its agents, and without notice to Lessee enter upon the
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premises of Lessee or other premises where any of the Equipment may be located
and take possession of or render unusable all or any of such Equipment and
attachments thereon whether or not the property of Lessor and thenceforth
hold, sell or re-lease such Equipment at its option. Lessor shall thereupon
have a right to recover from Lessee an amount equal to any unpaid
Rental due and payable up to and including the Rental Payment Date following
the date on which Lessor has given the termination notice referred to above,
any and all other amounts due and payable hereunder and in addition thereto
(a) as damages for loss of the bargain and not as penalty an amount equal to
the Termination Value as of such Rental Payment Date, and (b) all expenses,
including but not limited to reasonable attorney's fees, which Lessor shall
have sustained by reason of the breach of any covenant of this Agreement,
expenses obtaining and storing the Equipment and expenses in connection with
locating another lessee or buyer.
C. Lessee agrees at its own cost and expense to place such markings,
plates or other identification on the Equipment showing Lessor's title thereto
as Lessor may from time to time request, provided such identification markings
are placed so as not to interfere with the usefulness of such Equipment.
Except as above provided, Lessee will not allow the name of any person,
association or corporation to be placed on the Equipment as a designation that
might be interpreted as a claim of ownership.
Section 15. Lessor's Rights to Perform for Lessee.
If Lessee fails to perform or comply with any of its agreements
contained herein, Lessor may, but shall not be required to, make any payment
or perform or comply with any covenant or agreement contained herein, and all
reasonable expenses of Lessor incurred in connection therewith shall be
payable by Lessee upon demand together with interest at the rate of eighteen
percent (18%) per annum from the date of payment to the date of reimbursement.
Section 16. Further Assurance: Financial Information.
Lessee will promptly and duly execute and deliver to Lessor such further
documents or instruments of further assurance and take such further action as
Lessor may from time to time, reasonably request in order to carry out the
intent and purpose of this Agreement and to establish and protect the rights
and remedies created or intended to be created in favor of Lessor hereunder,
including, without limitation, if requested by Lessor, at the expense of
Lessee:
A. The execution and delivery of financing statements with respect
hereto, in accordance with the laws of such jurisdictions as Lessor may from
time to time deem advisable;
B. An audit report containing a balance sheet, income statement and
statement of sources and uses of funds prepared by independent certified
public accountants, or other accountant acceptable to Lessor within one
hundred twenty (120) days after the close of each fiscal year of Lessee; and
C. A report containing balance sheets as of the end of each quarterly
period of Lessee's fiscal year, income statement and statement of sources and
uses of funds certified as accurate by an officer of Lessee within fortyfive
(45) days after the close of each such quarterly period.
Section 17. Notices.
All notices required by the terms hereof shall be in writing, and shall
become effective when deposited in the United States mail, with proper postage
for certified mail prepaid, addressed to the address shown herein or to such
other address as such party shall from time to time designate for itself in
writing to the other party. Notice to Lessor is sufficient if mailed to: First
Security Leasing Company, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇. Notice
to Lessee is sufficient if mailed to the address set forth on the signature
page of this Agreement.
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Section 18. Multiple Lessees.
If there is more than one Lessee named in this Agreement, the liability of
each shall be joint and several, and each Lessee has the authority to enter
into agreements with Lessor modifying or extending the terms of the Agreement
on behalf of each other Lessee. If used herein or in any related document, the
term "Co-Lessee" or "Co-Lessees" shall be synonymous with "Lessee" as defined
herein.
Section 19. Effect of Invalid Provision.
Any provision of this Agreement which may be determined by competent
authority to be 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 in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, Lessee hereby waives any provision of law
which renders any provision hereof prohibited or unenforceable in any respect.
Section 20. Miscellaneous.
This Agreement and other written documents executed by the parties hereto
contain the entire agreement between the parties and there are no
verbal representations, warranties, or agreements of any kind whatsoever.
No term or provision of this Agreement may be changed, waived,
discharged, or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought. No third-party manufacturer, supplier, salesperson, or
broker, or any agent thereof, is Lessor's agent or is authorized to waive or
modify any provision of the Agreement.
This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of Utah. Any judicial proceeding
brought against Lessee with respect to this agreement may be brought in any
court of competent jurisdiction in the Sate of Utah. By its execution of this
Agreement and the Schedules, Lessee unconditionally accepts the jurisdiction
of the courts of the State of Utah and agrees to be bound by any judgement
rendered thereby with respect to this Agreement. If Lessee is not a resident
of the State of Utah, service of process upon Lessee by mail shall constitute
sufficient notice of any such proceeding. Lessee waives any right to a jury
trial in any proceeding concerning the Agreement.
The word "including" as used in the Agreement shall mean "including, but
not limited to". Nothing herein shall affect the right to serve process in any
other manner permitted by law or limit the right of Lessor to bring
proceedings against Lessee in the courts of any jurisdiction.
This Agreement shall inure to the benefit of and be binding upon the
heirs, successors, assigns and personal representatives of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on behalf of them as of this August 14, 1996 and signatories warrant
their authority to bind their principals.
LESSOR
LESSEE: FIRST SECURITY BANK N.A
▇. ▇. ▇▇▇▇▇▇ INCORPORATED
a(n) Utah Corporation By:/S/
By:/S/ ---------------------
----------------------- Its:
Its: ▇.▇. ▇▇▇▇▇▇, President
Address: c/o First Security Leasing Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
10
LESSEE:
▇.▇. ▇▇▇▇▇▇ INCORPORATION
-------------------------
a(n) Utah Corporation
----------------
BY: /S/
----------------
ITS: President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Federal ID or Social Security Number: ▇▇-▇▇▇▇▇▇▇
----------
a(n)
By:
ITS:
Address:
Federal ID or Social Security Number :
a(n)
By:
ITS:
Address:
Federal ID or Social Security Number :