Exhibit 10(ii)27
EQUIPMENT AGREEMENT
EQUIPMENT AGREEMENT dated as of June 30, 1997 (herein, as amended and
supplemented from time to time, called this "Agreement"), between BTM Capital
Corporation, a Delaware corporation (herein called "Obligee"), having its
principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and OHM
Remediation Services Corp., an Ohio corporation (herein called "Obligor"),
having its principal place of business at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇.
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereto agree as follows:
1. Definitions. Unless the context otherwise requires, the following
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terms shall have the following meanings for all purposes of this Agreement and
shall be equally applicable to both the singular and the plural forms of the
terms herein defined:
"Acceptance Date" for each Item of Equipment means the date on which
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Obligor has unconditionally accepted such Item for financing hereunder, as
evidenced by Obligor's execution and delivery of an Agreement Supplement for
such Item dated such date.
"Acquisition Period" means the period specified as such on each
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consecutively numbered Exhibit A now or hereafter attached hereto and made a
part hereof.
"Assignee" shall have the meaning given to such term in Section 14(b)
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hereof.
"Basic Term" for each Item of Equipment means the period consisting
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of the number of months set forth for the type of Equipment to which such Item
relates on the Related Exhibit A for such Item.
"Basic Term Commencement Date" for each Item of Equipment means the
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date specified as such on the Related Exhibit A for such Item.
"Business Day" means any day other than a day on which banking
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institutions in the State of Ohio or the Commonwealth of Massachusetts are
authorized by law to close.
"Casualty Loss Value" of each Item of Equipment as of any Casualty
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Loss Value Payment Date means an amount determined by multiplying the Equipment
Cost of such Item of Equipment by the percentage set forth opposite such
Casualty Loss Value Payment Date on the Schedule of Casualty Loss Values
attached to the Related Exhibit A for such Item.
"Casualty Loss Value Payment Date" of each Item of Equipment shall
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mean the Basic Term Commencement Date for such Item and each monthly anniversary
of the Basic Term Commencement Date for such Item and shall be as set forth in
the Schedule of Casualty Loss Values attached to the Related Exhibit A for such
Item.
"Cross Receipt" for any Item of Equipment, means the Cross Receipt
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executed by the Obligor and the Obligee for the transfer of an interest in such
Item of Equipment to Obligee.
"End of Term Adjustment" shall have the meaning given to such term in
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Section 29(d) hereof.
"Environmental Laws" shall mean any judgement, decree, order, law,
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license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control
Act or any other federal, state or local statute, regulation, ordinance, order,
or decree, or common law, whether in existence now or hereafter enacted, and as
such may be amended from time to time, relating to health, safety or the
environment.
"EPA" means the United States Environmental Protection Agency.
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"Equipment" means the equipment of the type(s) described on each
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consecutively numbered Exhibit A now or hereafter attached hereto and made a
part hereof and financed by Obligee hereunder or ordered by Obligor for
financing hereunder, together with any and all accessions, additions,
improvements and replacements from time to time incorporated or installed
therein which are subject to the interest of Obligee pursuant to the terms of
this Agreement.
"Equipment Cost" of each Item of Equipment means the amount specified
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in the applicable Supplement with respect thereto as "Equipment Cost." Such
amount may, in the case of any Item acquired by the Obligee directly from the
Obligor, be the current fair market value thereof as set forth in an independent
appraisal report delivered to and satisfactory in form and substance to the
Obligee; otherwise such amount will be equal to the sum of (i) the total cost
paid by Obligee for its interest in such Item, plus (ii) all excise, sales and
use taxes paid by Obligor on or with respect to the acquisition of such Item,
plus (iii) all costs and expenses approved and paid by Obligor in connection
with the delivery and installation of such Item.
"Estimated Residual Value" for any Item of Equipment shall mean an
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amount obtained by multiplying (i) the percentage set forth in the Related
Exhibit A for such Item under the caption "Estimated Residual Value Percentage"
applicable to the Basic Term or Renewal Term then ending, by (ii) the Equipment
Cost for such Item.
"Event of Default" means any of the events referred to in Section
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22 hereof.
"Event of Loss" with respect to any Item of Equipment means (i) the
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loss of such Item of Equipment or any substantial part thereof, or (ii) the loss
of the use of such Item of Equipment due to theft or disappearance for a period
in excess of 45 days during the Term, or existing at the expiration or earlier
termination of the Term, or (iii) the destruction, damage beyond repair, or
rendition of such Item of Equipment or any substantial part thereof permanently
unfit for normal use for any reason whatsoever, or (iv) the condemnation,
confiscation, seizure, or requisition of use or title to such Item of Equipment
or any substantial part thereof by any governmental authority under the power of
eminent domain or otherwise.
"Guarantor" means OHM Corporation, an Ohio corporation, and any other
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guarantor of the payment and performance of the Obligations under or relating to
the Principal Documents.
"Guaranty" means the Guaranty of OHM Corporation dated as of June __,
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1997, and any other guaranty of the payment and performance of the Obligations
under or relating to the Obligor Documents, executed and delivered by any
Guarantor.
"Hazardous Material" means (i) petroleum or petroleum products
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(including crude oil and its fractions), radioactive materials, asbestos in any
form that is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing
polychlorinated biphenyls, and radon gas; (ii) any chemicals, materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "hazardous air pollutants",
"extremely hazardous substances", "restricted hazardous wastes", "toxic
substances", "pollutants", "contaminants", or words of similar import, under any
applicable Environmental Laws (including without limitation, hazardous waste, as
defined by 42 U.S.C. (S)6903 (S) , any hazardous substance as defined by 42
U.S.C. (S)9601(14), and any pollutant or contaminant as defined by 42 U. S. C.
(S)9601 (33) ) ; and (iii) any other chemical, material or substances, exposure
to which is prohibited, limited or regulated by an Environmental Law or by a
governmental authority.
"Interim Payments" means the payments due for each item of Equipment
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for the Interim Term thereof pursuant to Section 7(a) hereof.
"Interim Term" for each item of Equipment means the period commencing
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on the Acceptance Date for such Item (unless the Acceptance Date is the Basic
Term Commencement Date in which case there shall be no Interim Term for such
Item) and ending on the Date immediately prior to the Basic Term Commencement
Date.
"Item of Equipment" or "Item" means a single unitary item of the
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Equipment.
"Lien" means liens, mortgages, encumbrances, pledges, charges and
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security interests of any kind.
"Maximum Equipment Cost" means the amount specified as such on each
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consecutively numbered Exhibit A now or hereafter attached hereto and made a
part hereof.
"Maximum Obligor Risk Amount" for any Item of Equipment shall mean the
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percentage set forth in the Related Exhibit A for such Item under the caption
"Maximum Obligor Risk Percentage" applicable to the Basic Term or Renewal Term
then ending, multiplied by the Equipment Cost for such Item.
"Maximum Obligee Risk Amount" for any Item of Equipment shall mean the
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percentage set forth in the Related Exhibit A for such Item under the caption
"Maximum Obligee Risk Percentage" applicable to the Basic Term or Renewal Term
then ending, multiplied by the Equipment Cost for such Item.
"Maximum Term" for each Item of Equipment shall mean the maximum
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number of months, in aggregate, of the Basic Term and all Renewal Terms of such
Item of Equipment, as specified in the Related Exhibit A applicable to such Item
of Equipment.
"Net Proceeds of Sale" shall have the meaning given to such term
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in Section 29(d) hereof.
"Obligor Documents" shall mean this Equipment Agreement, each Related
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Exhibit A, each Supplement executed from time to time, each Cross Receipt, each
other related instrument, document and agreement, and all riders, amendments or
supplements thereto from time to time.
"Payment Date" for each Item of Equipment means (i) for the Basic Term
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thereof, each date on which a Payment is due and payable for such Item pursuant
to Section 7(b) hereof (ii) for the Interim Term thereof (if any) , the Basic
Term Commencement Date, and (iii) for each Renewal Term thereof, each date on
which a Payment is due and payable for such Item as provided in Section 28(a)
hereof.
"Payment Period" for each Item of Equipment means (i) for the Interim
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Term of such Item, the period from and inclusive of the Acceptance Date for such
Item to, but not inclusive of, the Basic Term Commencement Date for such Item,
(ii) for the Basic Term Commencement Date for such Item, each period for which a
Payment is to be made for such Item during the Basic Term thereof as set forth
on the Related Exhibit A for such Item (opposite the reference to Payment
Periods for Basic Term), and (iii) for each Renewal Term of such Item, each
period for which a Payment is to be made for such Item during such Renewal Term
as set forth on the Related Exhibit A for such Item (opposite the reference to
Payment Periods for Renewal Term).
"Payments" means the payments due for each Item of Equipment during
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(i) the Basic Term thereof pursuant to Section 7(b) hereof, and (ii) each
Renewal Term thereof pursuant to Section 28(a) hereof.
"Person" means any individual, corporation, partnership, joint
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venture, association, joint stock company, trust, trustee(s) of a trust,
unincorporated organization, or government or governmental authority, agency or
political subdivision thereof.
"Prime Rate" means the interest rate per annum announced from time to
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time by Bank of Tokyo Mitsubishi Trust Company, New York, New York, as its
"prime" or "base" lending rate."
"Purchase Option Amount" shall have the meaning given to such term in
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Section 28(b) hereof.
"Reinvestment Premium" for any Item of Equipment, as of any
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determination date, shall mean the excess, if any, of (a) the net present value
of the sum of (i) all Payments remaining to be paid after such determination
date through the expiration of the Maximum Term of such Item, that would have
been payable for such Item following such determination date if this Agreement
had been renewed through and inclusive of the expiration of the Maximum Term of
such Item, and (ii) the Estimated Residual Value applicable to such Item at
such expiration of the Maximum Term (together, the sum of (i) and (ii) being
referred to as the "Discounted Payments") , each discounted at a rate equal to
the sum of the then current yield for direct obligations of the United States
Treasury having a maturity equal to the average life of the Discounted Payments
plus fifty basis points (0.50%), over (b) the Estimated Residual Value
applicable to such Item at such time of determination.
"Related Exhibit " means, with respect to an Item of Equipment, the
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particular numbered Exhibit A now or hereafter attached hereto and made a part
hereof to which such Item relates as specified in Section 4 hereof.
"Release" shall have the meaning specified in the Comprehensive
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Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
(S)9601 et seq. (" CERCLA") and the term "Disposal" (or "Disposed") shall have
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the meaning specified in the Resource Conversation and Recovery Act of 1976, 42
U.S.C. (S)6901 et seq. ("RCRA") and regulations promulgated thereunder;
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provided, that in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply as of
the effective date of such amendment and provided further, to the extent that
applicable state law establishes a meaning for "Release" or "Disposal" which is
broader than specified in either CERCLA or RCRA, such broader meaning shall
apply.
"Remediation Contract" means any contract pursuant to which Obligor
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becomes a remedial response contractor at any Site at which Obligor uses the
Equipment to perform remedial response activities.
"Renewal Term" for each Item of Equipment means each period following
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the end of the Basic Term for such Item with respect to which Obligor has the
option to renew this Agreement pursuant to Section 28(a) hereof.
"Site" means any site at which Obligor uses the Equipment to
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perform remedial response activities.
"Supplement" means a Supplement substantially in the form attached
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hereto as Exhibit B, to be executed by Obligee and obligor with respect to an
Item or Items of Equipment as provided in Section 4 hereof, evidencing that such
Item or Items are financed hereunder.
"Supplemental Payments" means all amounts, liabilities and obligations
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which obligor assumes or agrees to pay hereunder to Obligee or others, including
payments of Casualty Loss Value, indemnities, and any Reinvestment Premium that
may become payable by Obligor hereunder, but excluding Payments and Interim
Payments.
"Term" means the full term of this Agreement with respect to each Item
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of Equipment, including the Interim Term (if any), the Basic Term and each
Renewal Term.
"Termination Date", for any Item of Equipment, means the last day of
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the Basic Term of such Item, or if the Term of such Item has been renewed
pursuant to Section 28(a), the last day of the Renewal Term of such Item.
"Termination Value" of each Item of Equipment as of any termination
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date (as defined in Section 33) means an amount determined by multiplying the
Cost of such Item of Equipment by the percentage set forth opposite such
termination date on the Schedule of Termination Values attached to the Related
Exhibit A for such Item.
The words "this Agreement", "herein", "hereunder", "hereof" or other
like words mean and include this Equipment Agreement, each Related Exhibit A,
each Supplement, and each amendment and supplement hereto and thereto.
2. Agreement for Financing of Equipment. Subject to, and upon all of the
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terms and conditions of this Agreement, Obligee hereby agrees to finance for
Obligor and Obligor hereby agrees to finance from Obligee, each Item of
Equipment. Provided that no Event of Default has occurred and is continuing
hereunder, Obligee agrees that it shall not interfere with Obligor's quiet
enjoyment and use of any Item of Equipment financed hereunder during the Term
thereof.
3. Conditions Precedent. Obligee shall have no obligation to purchase an
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interest in any Item of Equipment and to finance the same for Obligor unless
each of the following conditions are fulfilled to the satisfaction of Obligee:
(i) no event which is (or with notice or lapse of time or both would become) an
Event of Default has occurred and is continuing, nor has any information come to
Obligee's attention from which Obligee or obligor could reasonably and in good
faith infer that such event might occur; (ii) except as disclosed in the press
release by Guarantor on June 18, 1997 (the "Press Release"), there shall not
have occurred since the date specified as the Financial Condition Reference Date
on the Related Exhibit A for such Item, any event which, in the reasonable
judgment of the Obligee or Obligor, has had a material adverse effect on the
properties, executive management (taken as a whole), condition (financial or
otherwise), operations or business of the Obligor taken as a whole or the
Guarantor taken as a whole; (iii) such Item of Equipment is acceptable to
Obligee, and is free of all Liens, other than any Lien specifically excepted in
Section 15 hereof; (iv) the Acceptance Date for such Item of Equipment is a date
within the Acquisition Period specified on the Related Exhibit A for such Item
and Obligor has executed and delivered to Obligee the Related Exhibit A for such
Item; (v) the Equipment Cost of such Item of Equipment, when added to the total
Equipment Cost of all Equipment of the type to which such Item relates and which
has been financed hereunder, or ordered by Obligor for financing hereunder, will
not be such an amount so as to cause the Maximum Equipment Cost specified on the
Related Exhibit A for such Item to be exceeded; (vi) Obligee has received an
invoice for such Item of Equipment from the seller thereof, approved for payment
by Obligor, showing Obligor as the purchaser of an interest in such Item, or, if
Obligor is the seller of an interest in such Item, a receipt for the transfer of
such interest from Obligor to Obligee in form and substance satisfactory to
Obligee, together with an appraisal report delivered to and satisfactory in form
and substance to the Obligee, demonstrating that the Equipment Cost
of such Item is equal to the current fair market value thereof, and, if
requested by the Obligee, evidence, satisfactory to Obligee, that Obligee has
satisfied all payment obligations incurred in connection with its original
acquisition of such Item, (vii) Obligee has received a Supplement for such Item,
duly executed by Obligor, and dated the Acceptance Date for such Item; (viii)
all filings or recordings of such documents as shall be necessary or advisable
in order to establish and perfect Obligee's or any Assignee's interest in the
Equipment as against Obligor and/or third parties in any applicable jurisdiction
shall have been made, and Obligee or such Assignee shall have received lien
searches satisfactory to it, provided that for any Equipment subject to motor
vehicle titling laws, Obligor have until the Basic Term Commencement Date to
deliver to Obligee or any Assignee a copy of the certificate of title therefor,
as filed with, and bearing the filing stamp of, the appropriate department of
motor vehicles or other appropriate state authority, and a copy of the
manufacturer's statement or certificate of origin therefor, reflecting Obligee
or such Assignee as first lienholder; (ix) Obligee shall have received the Cross
Receipt and such other documents concerning the Obligor and the Guarantor,
appraisals, opinions, certificates and waivers, in form and substance
satisfactory to Obligee, as Obligee may require; and (x) Obligor shall have
procured all licenses, registrations, certificates, permits, approvals and
consents required by Federal, state or local laws or by any governmental body,
agency or authority, and otherwise complied with any Environmental Laws in
connection with the ownership, delivery, installation, use and operation of each
Item of Equipment at its current location.
4. Delivery, Acceptance and Financing of Equipment. Obligee shall not be
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liable to obligor for any failure or delay in obtaining any Item of Equipment or
making delivery thereof. Forthwith upon delivery of each Item of Equipment to
Obligor, Obligor will inspect such Item, and unless Obligor gives Obligee prompt
written notice of any defect in or other proper objection to such Item, Obligor
shall promptly upon completion of such inspection execute and deliver to Obligee
a Supplement for such Item, dated the Acceptance Date of such Item. The
execution by Obligee and Obligor of a Supplement for an Item of Equipment shall
(a) evidence that such Item is financed under, and is subject to all of the
terms, provisions and conditions of this agreement, and (b) constitute
Obligor's unconditional and irrevocable acceptance of such Item for all purposes
of this Agreement. An Item of Equipment shall be conclusively deemed to relate
to the particular numbered Exhibit A now or hereafter attached hereto and made a
part hereof on which is set forth (i) a description of such Item or the type of
Equipment to which such Item relates and (ii) the Acquisition Period within
which the Acceptance Date for such Item has occurred.
5. Term. The Interim Term (if any) for each Item of Equipment
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shall commence on the Acceptance Date thereof, and unless sooner terminated
pursuant to the provision hereof, shall end on the date immediately prior to the
Basic Term Commencement Date thereof. The Basic Term for each Item of Equipment
shall commence on the Basic Term Commencement Date thereof and, unless this
Agreement is sooner terminated with respect to such Item (or all Equipment)
pursuant to the provisions hereof, shall end on the date specified therefor in
the Supplement for such Item. If not sooner terminated pursuant to the
provisions hereof, the Term for each Item of Equipment shall end on the last day
of the Basic Term thereof, or if this Agreement is renewed pursuant to Section
28(a) hereof, on the last day of the last Renewal
Term thereof.
6. End of Term Delivery of Equipment.
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(a) Upon the expiration or earlier termination of the Term with
respect to each Item of Equipment (unless Obligor has exercised its
purchase option with respect to Obligee's interest therein pursuant to
Section 28(b) hereof), Obligor will, at its expense, surrender and deliver
possession of each Item of Equipment to Obligee at such location within the
continental United States as shall be designated by Obligee in writing, or,
in the absence of such designation, at the then location of each such Item.
At the time of such delivery to Obligee, each Item of Equipment (and each
part or component thereof) shall (i) be in good operating order, and in the
repair and condition as when originally delivered to Obligor, ordinary wear
and tear from proper use thereof excepted, (ii) be capable (including,
without limitation, in respect of its packaging and labeling) of being
immediately assembled and operated by a third party purchaser or third
party lessee without further inspection, repair, replacement, alterations
or improvements (excluding third party peculiar requirements for
compatibility with then existing third party products, equipment or
facilities, or compliance by such third party with any applicable
Environmental Laws), (iii) be in accordance and compliance with any and all
statutes, laws, ordinances, rules and regulations of any Federal, state or
local governmental body, agency or authority applicable to the use and
operation of such Item (including without limitation, Environmental Laws),
(iv) be capable of performing its originally intended functions within its
original manufacturer's specified tolerances, (v) be free of all Hazardous
Materials, contaminants, toxic chemicals and residue of any kind, (vi) be
free and clear of all Liens, other than any Lien granted or placed thereon
by Obligee or any Assignee. All de-installation of the Equipment shall be
performed by technical personnel acceptable to the Obligee. In addition to
the foregoing, Obligor shall be liable for and shall pay all costs and
expenses of removing the Equipment from the location thereof in accordance
with Environmental Laws. If any Item of Equipment is originally equipped
with tires or mounted on Equipment with tires, such Item or Equipment
shall, in addition to satisfying the requirements of the preceding
sentence, be returned with all tires installed thereon, with each tire
having at least fifty percent (50%) or more tread remaining thereon, and
with each brake having at least fifty percent (50%) or more remaining brake
life thereon.
(b) Until each such Item of Equipment has been delivered to Obligee in
the condition and as otherwise provided in this Section 6 (unless Obligor
has exercised its purchase option with respect to Obligee's interest
therein pursuant to Section 28(b) hereof), Obligor shall continue to pay
Obligee, on the same dates on which Payments for such Item were payable
during the Basic Term thereof (or, if the Term of such Item has been
renewed, the most recent Renewal Term thereof), the same Payments for such
Item that were payable on the last Payment Date of the Basic Term thereof,
or if the Term of such Item has been renewed pursuant to Section 28(a), the
same Payments that were payable on the last Payment Date during the most
recent Renewal Term.
(c) The provisions of this Section 6 are of the essence of this
Agreement and upon
application to any court of equity having jurisdiction in the premises,
Obligee shall be entitled to a decree against Obligor requiring specific
performance of the covenants of Obligor set forth in this Section 6.
7. Payments.
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(a) Interim Payments. Obligor hereby agrees to pay Obligee Interim
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Payments for each Item of Equipment as to which there is an Interim Term,
payable on the Payment Date of the Interim Term for such Item, in the
amount obtained by multiplying (i) the Equipment Cost of such Item by (ii)
one three hundred sixtieth (1/360th) of the sum of (A) the Prime Rate
determined on the first day of each calendar month during the Interim Term
plus (B) one percent (1.00%), by (iii) the number of days from and
including the Acceptance Date for such Item through the end of the Interim
Term for such Item.
(b) Payments. Obligor hereby agrees to pay Obligee Payments for each
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Item of Equipment during the Basic Term thereof at the times and on the
Payment Dates set forth on the Related Exhibit A for such Item and in an
amount obtained by multiplying (i) the Equipment Cost of such Item by (ii)
the percentage of Equipment Cost set forth (opposite the Payments
Percentage reference) on such Related Exhibit A, as the same may be
adjusted pursuant to Related Exhibit A.
(c) Supplemental Payments. Obligor also agrees to pay to Obligee, or
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to whomsoever shall be entitled thereto as expressly provided herein, all
Supplemental Payments, promptly as the same shall become due and owing, and
in the event of any failure on the part of Obligor so to pay any such
Supplemental Payment hereunder Obligee shall have all rights, powers and
remedies provided for herein or by law or equity or otherwise in the case
of nonpayment of Payments.
(d) Method of Payment. All Payments and Supplemental Payments required
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to be made by Obligor to Obligee shall be made in immediately available
funds not later than 12:00 noon Eastern time. In the event of any
assignment to an Assignee pursuant to Section 14(b) hereof, all payments
which are assigned to such Assignee, whether Payments, Supplemental
Payments or otherwise, shall be paid in such manner as shall be designated
by obligee or such Assignee. Time is of the essence in connection with the
payment of Payments and Supplemental Payments.
Whenever any payment hereunder shall be stated to be due on a day which is
not a day on which banks are required to be open for business in Boston,
Massachusetts (a "Banking Day"), such payment shall be made on the next
succeeding Banking Day.
8. Net Financing. This Agreement is a net financing agreement. Obligor
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acknowledges and agrees that Obligor's obligations hereunder, including, without
limitation, its obligations to make Payments for all Equipment financed
hereunder, to pay all Supplemental Payments payable hereunder and under each
other Obligor Document, shall be unconditional and irrevocable under any and all
circumstances, shall not be subject to cancellation, termination, modification
or repudiation by Obligor, and shall be paid and performed by Obligor without
notice or demand and without any abatement, reduction, diminution, setoff,
defense, counterclaim or recoupment
whatsoever, including, without limitation, any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment due or alleged to be due to, or by
reason of, any past, present or future claims which Obligor may have against
Obligee, any Assignee, any manufacturer or supplier of the Equipment or any part
or Item thereof, or any other Person for any reason whatsoever or any defect in
the Equipment or any part or Item thereof, or the condition, design, operation
or fitness for use thereof, or any damage to, or any loss or destruction of, the
Equipment or any part or Item thereof, any Liens or rights of others with
respect to the Equipment or any part or Item thereof, or any prohibition or
interruption of or other restriction against Obligor's use, operation or
possession of the Equipment or any part or Item thereof, for any reason
whatsoever, or any interference with such use, operation or possession by any
Person or entity, or any default by Obligee in the performance of its
obligations herein contained, or any other indebtedness or liability, howsoever
and whenever arising, of Obligee, or of any Assignee, or of Obligor to any other
Person, or by reason of insolvency, bankruptcy or similar proceedings by or
against Obligee, any Assignee or Obligor, or for any other reason whatsoever,
whether similar or dissimilar to any of the foregoing, any present or future law
to the contrary notwithstanding; it being the intention of the parties hereto
that all Payments and Supplemental Payments payable by Obligor hereunder shall
continue to be payable in all events and in the manner and at the times herein
provided, without notice or demand, unless the obligation to pay the same shall
be terminated pursuant to the express provisions of this Agreement.
9. Grant of Security Interest; Equipment to be and Remain Personal
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Property. This Agreement is a financing intended as security. Obligor hereby
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grants to Obligee a security interest in the Equipment, the Required
Alterations, the Optional Alterations and all proceeds thereof as collateral
security for the payment and performance by Obligor of obligor's obligations as
Obligor hereunder. It is the intention and understanding of both Obligee and
Obligor, and Obligor shall take all such actions as may be required to assure,
that the Equipment shall be and at all times remain personal property,
notwithstanding the manner in which the Equipment may be attached or affixed to
realty. Obligor shall obtain and record such instruments and take such steps as
may be necessary to prevent any Person from acquiring any rights in the
Equipment by reason of the Equipment being claimed or deemed to be real
property. Upon request by Obligee, Obligor shall obtain and deliver to Obligee
valid and effective waivers, in recordable form, by the owners, landlords and
mortgagees of the real property upon which the Equipment or any Item of
Equipment is located or certificates of Obligor that it is the owner of such
real property or that such real property is not leased and/or mortgaged;
provided, that if an Item is located on a Site designated as a National Priority
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Fund Site (or any similar designation) pursuant to applicable Environmental
Laws, the Obligee may in lieu of delivering waivers from owners, landlords or
mortgagees, deliver to the Obligee evidence, reasonably satisfactory to the
Obligee, of the Obligor's currently effective contractual arrangements with
respect to such Site, so long as such contractual arrangements do not provide
for any lien or security interest in such Item. Obligor shall cause each Item of
Equipment subject to motor vehicle titling and registration laws to be titled in
the name of Obligor, as owner, with Obligee or Assignee, as applicable to be
shown as sole lienholder, and shall cause all certificates of title to be
promptly furnished to Obligee.
10. Use of Equipment; Compliance with Laws. Obligor agrees that the
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Equipment will be
used and operated solely in the conduct of its business and in compliance with
any and all Remediation Contracts, insurance policy terms, conditions and
provisions and with all statutes, laws, ordinances, rules and regulations of any
Federal, state or local governmental body, agency or authority applicable to the
use, management and operation of the Equipment, including, without limitation,
all applicable Environmental Laws (including without limitation, those
pertaining to the operation of dewatering equipment and the disposal of any
solid wastes resulting therefrom) and with the terms of all Remediation
Contracts, and will promptly rectify any noncompliance therewith, and including,
in the case of any Item subject to motor vehicle titling and registration laws,
all titles, registrations, registration plates, permits, licenses, and all
renewals thereof. Obligor shall procure and maintain in effect all licenses,
registrations, certificates, permits, approvals and consents required by
Federal, state or local laws or by any governmental body, agency or authority in
connection with the ownership, delivery, installation, use and operation of each
Item of Equipment, including without limitation, those required by Environmental
Laws. Obligor will use and maintain the Equipment in a careful and proper
manner, in accordance with all Remediation Contracts and the manufacturer's or
supplier's instructions or manuals, and only by competent and duly qualified
personnel authorized by Obligor. The Equipment will at all times be and remain
in the possession and control of Obligor; provided, that the Obligor may for
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temporary periods not exceeding 30 days in length relinquish possession and
control of any Item to the manufacturer or to an independent contractor, for
purposes of repair or alteration required or permitted hereunder. The Equipment
shall in no event be located outside of the continental limits of the United
States. Obligor shall use every reasonable precaution to prevent loss or damage
to each Item of Equipment from fire and other hazards.
10A. Certain Covenants. All storage and use of Hazardous Substances in
-------------------
connection with the Equipment, and the installation and de-installation of the
Equipment, shall be in strict compliance with Environmental Laws applicable
thereto. Obligor will promptly give written notice to Obligee of the occurrence
of any Event of Loss or Event of Default, of the commencement of any litigation
or proceedings affecting Obligor from time to time which, if adversely
determined, could have a material adverse effect on Obligor's business,
operations or financial condition taken as a whole or which could otherwise
affect the Equipment, or of any dispute between Obligor and any governmental
regulatory body or other party that involves any of the Equipment.
In addition to the foregoing,
(1) Obligor will promptly provide the Obligee with written notice:
(a) upon the Obligor's obtaining knowledge of any cancellation or
threatened cancellation or material adverse change in any insurance
affecting the Equipment or the Obligee or Assignee as additional insured
(whether formal or informal);
(b) (intentionally omitted);
(c) upon the Obligor's obtaining knowledge of any violation or alleged
violation of any
Environmental Law regarding the operations of the Equipment at a Site;
(d) upon the Obligor's obtaining knowledge of any potential or known
Release, or threat of Release, of any Hazardous Material at or from the
Equipment which it reports in writing or which is required to report in
writing to any governmental authority or which could materially adversely
affect the Obligor or the Equipment;
(e) upon the Obligor's receipt of any notice of violation or alleged
violation of any Environmental Laws or of any Release or threatened Release
of Hazardous Materials, including a notice or claim of liability or
potential responsibility from any third party (including without limitation
any federal, state or local governmental officials) and including notice of
any formal inquiry, proceeding, demand, investigation or other action, with
regard to (i) the Obligor's or any person's operation of the Equipment,
(ii) contamination at or from the Equipment or (iii) investigation or
remediation of offsite locations at which the Obligor or its predecessors
are alleged to have directly or indirectly disposed of Hazardous Materials
from a Site; or
(f) upon the Obligor's obtaining knowledge that any expense or loss
has been incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any Hazardous materials
at or from a Site, with respect to which the Obligor may be liable or for
which a Lien may be imposed on the Equipment; or
(g) that Obligor is or shall be named party to any claim, action,
cause of action, complaint, legal or administrative proceeding arising out
of any third party's incurrence of costs, expenses, losses or damages of
any kind whatsoever in connection with the Release of Hazardous Materials
at or from a Site, or in excess of such costs and expenses payable or
reimbursable under any Remediation Contract.
In addition to the foregoing, obligor will provide to obligee:
(h) as soon as practicable after request by the Obligee from time to
time, a written report of an investigation, conducted to the satisfaction
of the Obligee, by a consultant to be selected or approved by the Obligee,
as to any significant environmental, health or safety violations, hazards
or liabilities to which Obligor or Guarantor may be subject in respect of
the Equipment or a Site;
(i) promptly and in any event within five Business Days after receipt
thereof by Obligor or Guarantor, a copy of each notice, citation or other
communication from the United States Environmental Protection Agency, any
state environmental protection agency, any court or other governmental
Person, and of each consent agreement, consent decree, judgment or other
document with any such Person, in each case asserting an actual or
potential violation, fine, penalty, enforcement action or liability of
obligor or Guarantor under any Environmental Laws in respect of the
Equipment or a Site, or otherwise if the effect or adverse determination
thereof would reasonably have a materially adverse effect on the
properties, condition (financial or otherwise), operations or business of
obligor and of Guarantor taken as a whole.
(2) except in accordance with Environmental Laws and as set forth in
any Remediation Contract:
(i) no portion of the Equipment has been or will be used for the
handling, processing, storage or disposal of Hazardous Materials;
(ii) neither Obligor nor any of its subcontractors have released
or will release any Hazardous Materials at or from a Site; and
(iii) there have been and will be no unpermitted Releases or
threatened Releases which would result in a lien upon such Equipment;
and there have been and will be no unpermitted Releases or threatened
Releases by Obligor or any of its subcontractors which would
reasonably have a material adverse effect on the environment or the
value of the property at or in the vicinity of a Site;
(3) if any unpermitted Release or Disposal of Hazardous Materials shall
occur or shall have occurred as a result of the operation of the Equipment not
in accordance with Environmental Laws, Obligor shall cause the prompt
containment and removal of such Hazardous Materials and remediation of a Site as
necessary to comply with all Environmental Laws or to preserve the value of the
Equipment;
(4) Obligor will at all times maintain in effect any indemnification of
Obligee contained in any Remediation Contract, and will maintain such insurance,
performance bonds, or other financial assurance as is required by applicable law
or reasonably required by the Obligee or by any Remediation Contract; and
(5) any Hazardous Materials that will be handled by the Equipment or that
will be generated by the Equipment, to the best knowledge of Obligor, will be
transported offsite only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities will be to the best knowledge of the Obligor,
operating in compliance with such permits and applicable Environmental Laws.
11. Maintenance and Repair of Equipment. Obligor agrees, at its own cost
------------------------------------
and expense, to keep, repair, maintain and preserve the Equipment in good order
and operating condition, and in compliance with such maintenance and repair
standards and procedures as are set forth in the manufacturer's manuals
pertaining to the Equipment, and as otherwise may be required to enforce
warranty claims against each vendor and manufacturer of each item of Equipment,
and in compliance with all Remediation Contracts and requirements of law
applicable to the maintenance and condition of the Equipment, including, without
limitation, environmental, noise and pollution laws and regulations (including
notifications and reports). Obligor shall, at its own cost and expense, supply
the necessary power and other items required in the operation of the Equipment.
Obligor hereby waives any right now or hereafter conferred by law to make
repairs on the Equipment at the expense of Obligee.
12. Replacements: Alterations: Modifications; Substitutions.
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(a) In case any Item of Equipment (or any equipment, part or appliance
therein) is required to be altered, added to, replaced or modified in order
to comply with any laws, regulations, requirements or rules ("Required
Alteration") pursuant to Sections 10 or 11 hereof, Obligor agrees to make
such Required Alteration at its own expense and an interest in the same
shall immediately vest in Obligee and the same shall be subject to the
terms of this Agreement. Obligor may make any optional alteration to any
Item of Equipment ("Optional Alteration") provided such Optional Alteration
does not impair the value, use or remaining useful life of such Item of
Equipment. An interest in such optional Alteration shall be immediately
vested in Obligee and the same shall be subject to this Agreement. Obligor
agrees that, within 30 days after the close of any calendar quarter in
which Obligor has made any Required Alterations that could have an adverse
effect upon the value, utility or useful life of any Item of Equipment,
Obligor will give written notice thereof to Obligee describing, in
reasonable detail, the Required Alterations and specifying the cost thereof
with respect to such Item of Equipment and the date or dates when made. Any
parts installed or replacements made by Obligor upon any Item of Equipment
pursuant to its obligation to maintain and keep the Equipment in good
order, operating condition and repair under Section 11 hereof shall be
considered accessions to such Item of Equipment and an interest therein
shall be immediately vested in Obligee and the same shall be subject to
this Agreement. Except as required or permitted by the provisions of this
Section 12, Obligor shall not modify an Item of Equipment without the prior
written authority and approval of Obligee.
(b) With the prior written consent of Obligee, not to be unreasonably
withheld, Obligor shall be permitted to substitute for any Item of
Equipment then subject to this Agreement (provided that, in Obligor's good
faith opinion, as evidenced by a certificate of its President, treasurer or
chief financial officer, such Item shall have become no longer useful, or
surplus, to Obligor in its business), like kind, equipment having a fair
market value and utility equal to or greater than such Item. Such fair
market value and utility shall be determined by the Obligee in its
reasonable discretion. If such substitution is permitted by the Obligee,
the item of equipment so substituted shall be considered an "Item of
Equipment" subject to this Agreement and the interest of the Obligee
hereunder, and Obligor shall execute such documents as may be reasonably
requested by Obligee to evidence its interest therein, and Obligee's rights
and interests in, to and under the item of equipment having been so
substituted shall be terminated and Obligee shall execute and deliver to
Obligor a transfer and release of its interest in such item to Obligor, "as
is where is" without representation or warranty of any kind.
13. Identification Marks; Inspection. Obligor agrees, upon the request of
---------------------------------
Obligee, at Obligor's sole cost and expense, to place markings on the Equipment
by stencil or by a metal tag or plate affixed thereto showing plainly,
distinctly and conspicuously Obligee's security interest therein; provided,
however, that such identification markings are to be placed so as not to
interfere with the usefulness of such Item of Equipment. If during the Term any
such identification marking shall at any time be defaced or
destroyed, Obligor shall immediately cause such defaced or destroyed
identification marking to be restored or replaced. Obligor shall not allow the
name of any Person to be placed upon any Item of Equipment as a designation
which might be interpreted as indicating a claim of a security interest therein
by any Person other than Obligee or any Assignee. Upon the request of Obligee,
Obligor shall make the Equipment available to Obligee for inspection and shall
also make Obligor's records pertaining to the Equipment available to Obligee for
inspection.
14. Assignments and Subleasing.
----------------------------
(a) By Obligor. EXCEPT IN CONNECTION WITH A TRANSACTION PERMITTED BY
-----------
SECTIONS 12(b) or 14(c) AND TEMPORARY RELINQUISHMENTS OF POSSESSION
PERMITTED BY SECTION 10, OBLIGOR SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF OBLIGEE, SUBLEASE OR OTHERWISE RELINQUISH POSSESSION OF ANY ITEM
OF EQUIPMENT, OR ASSIGN, TRANSFER OR ENCUMBER ITS RIGHTS, INTERESTS OR
OBLIGATIONS HEREUNDER AND ANY ATTEMPTED SUBLEASE, RELINQUISHMENT,
ASSIGNMENT, TRANSFER OR ENCUMBERING BY OBLIGOR SHALL BE NULL AND VOID.
(b) By Obligee. Obligee may, at any time, without notice to, or the
-----------
consent of, obligor sell, assign or transfer or grant a security interest
in all or any part of Obligee's rights, obligations, title or interest in,
to and under the Equipment or any Item(s) thereof, this Agreement, any
supplement and/or any Payments and Supplemental Payments payable under this
Agreement or any Supplement to any leasing or finance company, bank,
insurance company or other financial institution. Any entity to whom any
such sale, assignment, transfer or grant of security interest is made is
herein called an "Assignee" and any such sale, assignment, transfer or
grant of security interest is herein called an "assignment". An Assignee
may re-assign and/or grant a security interest in any of such rights,
obligations, title or interest assigned to such Assignee. Obligor agrees to
execute such related amendments to this Agreement, such acknowledgments and
other documents that may be reasonably requested by Obligee or an Assignee
and that do not, taken as a whole, materially and adversely affect the
interest of Obligor in the transactions contemplated by this Agreement.
Each Assignee shall have and may enforce all of the rights and benefits of
Obligee hereunder with respect to the Item(s) of Equipment and related
Supplement(s) covered by the assignment, including, without limitation, the
provisions of Section 8 hereof and Obligor's representations and warranties
under Section 21 hereof. Each such assignment shall be subject to obligor's
rights hereunder so long as no Event of Default has occurred and is
occurring hereunder. Obligor shall be under no obligation to any Assignee
except upon written notice of such assignment from Obligee or, in the case
of a reassignment, from the Assignee. Upon written notice to Obligor of any
such assignment, Obligor agrees to pay the Payments and Supplemental
Payments with respect to the Item(s) of Equipment covered by such
assignment to such Assignee in accordance with the instructions specified
in such notice without any abatement, defense, setoff, counterclaim or
recoupment whatsoever, and to otherwise comply with all notices, directions
and demands which may be given by Obligee or such Assignee with respect to
such Item(s), in accordance with the provisions of this Agreement.
Notwithstanding any such assignment, all obligations of Obligee to Obligor
under
this Agreement shall be and remain enforceable by Obligor against
Obligee and any Assignee to whom an assignment hereunder has been made.
(c) CONSOLIDATIONS AND MERGERS BY OBLIGOR. OBLIGOR SHALL NOT
---------------------------------------
CONSOLIDATE WITH OR MERGE INTO ANY OTHER CORPORATION OR CONVEY, TRANSFER OR
LEASE SUBSTANTIALLY ALL OF ITS ASSETS AS AN ENTIRETY TO ANY PERSON UNLESS:
(I) THE CORPORATION FORMED BY SUCH CONSOLIDATION OR INTO WHICH
OBLIGOR IS MERGED, OR THE PERSON WHICH ACQUIRES BY CONVEYANCE,
TRANSFER OR LEASE SUBSTANTIALLY ALL OF THE ASSETS OF OBLIGOR AS AN
ENTIRETY, SHALL BE A SOLVENT CORPORATION ORGANIZED AND EXISTING UNDER
THE LAWS OF THE UNITED STATES OF AMERICA OR ANY STATE OR THE DISTRICT
OF COLUMBIA AND SHALL EXECUTE AND DELIVER TO OBLIGEE AND EACH ASSIGNEE
AN AGREEMENT CONTAINING AN EFFECTIVE ASSUMPTION BY SUCH SUCCESSOR,
TRANSFEREE OR LESSEE CORPORATION OF THE DUE AND PUNCTUAL PERFORMANCE
AND OBSERVANCE OF EACH COVENANT AND CONDITION OF THIS EQUIPMENT
AGREEMENT; PROVIDED ANY LEASE OF SUBSTANTIALLY ALL OF ITS ASSETS SHALL
NOT RELEASE OBLIGOR FROM ITS OBLIGATIONS UNDER THIS EQUIPMENT
AGREEMENT, WHICH OBLIGATIONS SHALL AT ALL TIMES REMAIN PRIMARY AND
DIRECT;
(II) IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION, NO
EVENT OF DEFAULT, AND NO EVENT WHICH, AFTER NOTICE OR LAPSE OF TIME,
OR BOTH, WOULD BECOME AN EVENT OF DEFAULT, SHALL HAVE OCCURRED AND BE
CONTINUING;
(III) IMMEDIATELY AFTER GIVING EFFECT TO SUCH TRANSACTION, THE
TANGIBLE NET WORTH (HEREINAFTER DEFINED) OF THE CORPORATION FORMED BY
SUCH CONSOLIDATION OR INTO WHICH OBLIGOR IS MERGED OR THE PERSON WHICH
ACQUIRED BY CONVEYANCE, TRANSFER OR LEASE SUBSTANTIALLY ALL THE ASSETS
OF OBLIGOR AS AN ENTIRETY, AS THE CASE MAY BE, SHALL NOT BE LESS THAN
THE TANGIBLE NET WORTH OF OBLIGOR AS REFLECTED IN THE THEN MOST RECENT
OF OBLIGOR'S LATEST CERTIFIED FINANCIAL STATEMENTS FURNISHED BY
OBLIGOR PURSUANT TO SECTION 30 HEREOF PRIOR TO SUCH CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE; AND (IV) OBLIGOR SHALL HAVE
DELIVERED TO OBLIGEE, AND ASSIGNEE A CERTIFICATE SIGNED BY TWO
OFFICERS, ONE OF WHOM SHALL BE THE PRESIDENT OR A VICE PRESIDENT, AND
ONE OF WHOM SHALL BE THE TREASURER OR THE SECRETARY OR AN ASSISTANT
SECRETARY OF OBLIGOR, AND AN OPINION SATISFACTORY IN FORM AND
SUBSTANCE TO THE ADDRESSEES THEREOF OF OBLIGOR'S COUNSEL, EACH STATING
THAT SUCH CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE AND THE
ASSUMPTION AGREEMENT MENTIONED IN CLAUSE (I) ABOVE COMPLIES WITH
THIS SECTION 14(c) AND THAT ALL CONDITIONS PRECEDENT HEREIN PROVIDED
FOR RELATING TO SUCH TRANSACTION HAVE BEEN COMPLIED WITH.
UPON ANY CONSOLIDATION OR MERGER, OR ANY CONVEYANCE, TRANSFER OR
LEASE OF SUBSTANTIALLY ALL THE ASSETS OF OBLIGOR AS AN ENTIRETY IN
ACCORDANCE WITH THIS SECTION 14(c), THE SUCCESSOR CORPORATION FORMED
BY SUCH CONSOLIDATION OR INTO WHICH OBLIGOR IS MERGED OR TO WHICH SUCH
CONVEYANCE, TRANSFER OR LEASE IS MADE SHALL SUCCEED TO, AND BE
SUBSTITUTED FOR (BUT WITHOUT RELEASE OF OBLIGOR TO THE EXTENT THE
PROVISION TO CLAUSE (I) ABOVE IS APPLICABLE), AND MAY EXERCISE EVERY
RIGHT AND POWER OF, OBLIGOR UNDER THIS EQUIPMENT AGREEMENT WITH THE
SAME EFFECT AS IF SUCH SUCCESSOR CORPORATION HAD BEEN NAMED AS A
OBLIGOR HEREIN. FOR PURPOSES OF THIS SECTION 14(c) "TANGIBLE NET
-------------
WORTH" MEANS THE TOTAL OF THE PAR VALUE OF COMMON STOCK AND ANY CLASS
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OR SERIES OF PREFERRED STOCK (AFTER DEDUCTION FOR TREASURY STOCK),
ADDITIONAL PAID-IN CAPITAL, GENERAL CONTINGENCY RESERVES AND RETAINED
EARNINGS OR DEFICIT, DETERMINED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES, MINUS THE FOLLOWING ITEMS (WITHOUT DUPLICATION
OF DEDUCTIONS), IF ANY, APPEARING ON THE BALANCE SHEET: (I) THE BOOK
VALUE OF ALL ASSETS (INCLUDING, WITHOUT LIMITATION, GOODWILL) WHICH
WOULD BE TREATED AS INTANGIBLES UNDER GENERALLY'. ACCEPTED ACCOUNTING
PRINCIPLES; AND (II) ANY WRITE-UP IN THE BOOK AMOUNT OF ANY EXISTING
ASSET RESULTING FROM A RE-EVALUATION THEREOF FROM THE BOOK AMOUNT
ENTERED UPON ACQUISITION IN EXCESS OF THAT PERMITTED UNDER GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES.
15. Liens. Obligor will not directly or indirectly create, incur, assume
------
or suffer to exist any Lien on or with respect to (i) the Equipment or any part
or Item thereof, Obligee's interest therein, or (ii) any of Obligee's interests
in, to or under this Agreement, except any Lien granted or placed thereon by
Obligee or any Assignee. Obligor, at its own expense, will promptly pay, satisfy
and otherwise take such actions as may be necessary to keep this Agreement and
the Equipment free and clear of, and to duly discharge or eliminate or bond in a
manner satisfactory to Obligee and each Assignee, any such Lien not excepted
above if the same shall arise at any time. Obligor will notify Obligee and each
Assignee in writing promptly upon becoming aware of any tax or other Lien (other
than any lien excepted above) that shall attach to the Equipment or any Item of
Equipment, and of the full particulars thereof.
16. Loss, Damage or Destruction.
----------------------------
(a) Risk of Loss, Damage or Destruction. Obligor hereby assumes all
------------------------------------
risk of loss, damage, theft, taking, destruction, confiscation, requisition
or commandeering, partial or complete, of or to each Item of Equipment,
however caused or occasioned, such risk to be borne by Obligor with respect
to each Item of Equipment from the date of this Agreement, and continuing
until
such Item of Equipment has been delivered to Obligee in accordance
with the provisions of Section 6 hereof or Obligee's interest therein has
been purchased by Obligor in accordance with the provisions of Section 28
hereof. Obligor agrees that no occurrence specified in the preceding
sentence shall impair, in whole or in part, any obligation of Obligor under
this Agreement, including, without limitation, the obligation to pay
Payments.
(b) Payment of Casualty Loss Value Upon an Event of Loss. If an Event
-----------------------------------------------------
of Loss occurs with respect to an Item of Equipment during the Term
thereof, Obligor shall give Obligee prompt written notice thereof and shall
pay to Obligee on the Casualty Loss Value Payment Date next following the
date of such Event of Loss (or on the last day of the Term if there is no
succeeding Casualty Loss Value Payment Date) the sum of (i) all unpaid
Payments payable for such Item of Equipment for any Payment Period prior to
the Payment Period in which the Event of Loss has occurred, plus (x) if
Payments for such Item of Equipment are payable in advance, the Casualty
Loss Value of such Item of Equipment determined as of the Casualty Loss
Value Payment Date next preceding or coincident with the date of such
Event of Loss, plus the Payments payable for such Item for the Payment
Period in which such Event of Loss has occurred if such Payment was not
paid on the Payment Date therefor, or (y) if Payments for such Item are
payable in arrears, the Casualty Loss Value of such Item of Equipment
determined as of the Casualty Loss Value Payment Date next following the
date of such Event of Loss, plus the Payment payable for such Item of
Equipment for the Payment Period in which such Event of Loss has occurred
if such Casualty Loss Value Payment Date for such Item is a Payment Date,
plus (iii) all other Supplemental Payments due for such Item of Equipment
as of the date of payment of the amounts specified in the foregoing clauses
(i) and (ii) , for such Item determined as of the Casualty Loss Value
Payment Date. Any payments received at any time by Obligee or by Obligor
from any insurer or other party (except Obligor) as a result of the
occurrence of such Event of Loss will be applied in reduction of Obligor's
obligation to pay the foregoing amounts, if not already paid by Obligor,
or, if already paid by Obligor, will be applied to reimburse Obligor for
its payment of such amount, unless an Event of Default shall have occurred
and be continuing. Upon payment in full of such Casualty Loss Value,
Payments and Supplemental Payments, (A) the obligation of Obligor to make
Payments hereunder with respect to such Item of Equipment shall terminate
and the Term of such Item shall terminate, and (B) Obligor shall, as agent
for Obligee, as soon as practicable, dispose of such Item or Items of
Equipment in a manner reasonably acceptable to Obligee.
(c) Application of Payments Not Relating to an Event of Loss. Any
--------------------------------------------------------
payments (including, without limitation, insurance proceeds) received at
any time by Obligee or Obligor from any governmental authority or other
party with respect to any loss or damage to any Item or Items of Equipment
not constituting an Event of Loss, will be applied directly in payment of
repairs or for replacement of property in accordance with the provisions of
Section 11 and 12 hereof, if not already paid by Obligor, or if already
paid by Obligor and no Event of Default shall have occurred and be
continuing, shall be applied to reimburse Obligor for such payment, and any
balance remaining after compliance with the provisions of said Sections
with respect to such loss or damage shall be retained by Obligor.
17. Insurance. Obligor will cause to be carried and maintained, at its
----------
sole expense, with respect to the Equipment at all times during the Term thereof
and until the Equipment has been delivered to Obligee (a) physical damage
insurance insuring against all risks of physical loss or damage to the
Equipment, in an amount not less than the greater of the Casualty Loss Value of
the Equipment or the replacement value of the Equipment, and (b) comprehensive
insurance against general liability for bodily injury, death and property damage
resulting from the use and operation of the Equipment in an amount not less than
$10,000,000 per occurrence, in each case with exclusions and deductibles
acceptable to Obligee and no greater than those applicable to insurance on
similar equipment owned or operated by Obligor, and (c) contractor's pollution
liability insurance in an amount not less than $7,500,000 per occurrence or such
higher amount as Obligee may, at any time reasonably request, in each case with
exclusions and deductibles acceptable to Obligee and no greater than those
applicable to insurance on similar equipment owned or operated by Obligor. Such
insurance policy or policies will name Obligee and each Assignee as the loss
payees, as their interests may appear, on all policies referred to in clause (a)
of the preceding sentence, and will name Obligee and each Assignee as additional
insureds on all policies referred to in clause (b) of the preceding sentence.
Such policies will provide that the same may not be invalidated against Obligee
or any Assignee by reason of any violation of a condition or breach of warranty
of the policies or the application therefor by Obligor, that the policies may be
cancelled or materially altered or reduced in coverage (except as otherwise
permitted under the terms of this Agreement) by the insurer only after thirty
(30) days, prior written notice to Obligee and each Assignee, and that the
insurer will give written notice to Obligee and each Assignee in the event of
nonpayment of premium by Obligor when due. The policies of insurance required
under this Section shall be valid and enforceable policies issued by insurers of
recognized responsibility acceptable to Obligee and each Assignee and authorized
to do an insurance business in the state in which each Item of Equipment is
located. In the event that any of such policies referred to in clause (b) of the
first sentence of this Section shall now or hereafter provide coverage on a
"claims-made" basis, Obligor shall continue to maintain such policies in effect
for a period of not less than three (3) years after the expiration of the Term
of the last Item of Equipment under this Agreement. Upon the execution of this
Agreement and thereafter not less than thirty (30) days prior to the expiration
dates of any expiring policies theretofore furnished under this Section,
certificates of the insurance coverage required by this Section and, if
requested by Obligee or any Assignee, copies of the policies evidencing such
insurance coverage, shall be delivered by Obligor to Obligee and each other
named loss payee and/or additional insured. Any certificate of insurance issued
with respect to a blanket policy covering other equipment not subject to this
Agreement shall specifically describe the Equipment as being included therein
and covered thereby to the full extent of the coverage's and amounts required
hereunder. If Obligor shall fail to cause the insurance required under this
Section to be carried and maintained, Obligee or any Assignee may provide such
insurance and Obligor shall reimburse Obligee or any such Assignee, as the case
may be, upon demand for the cost thereof as a Supplemental Payment hereunder.
18. General Tax Indemnity. Obligor agrees to pay, defend and indemnify and
-----------------------
hold Obligee, each Assignee and their respective successors and assigns harmless
on an after-tax basis from any and all Federal, state, local and foreign taxes,
fees, withholdings, levies, imposts, duties, assessments
and charges of any kind and nature whatsoever, together with any penalties,
fines or interest thereon (herein called "taxes or other impositions") howsoever
imposed, whether levied or imposed upon or asserted against Obligee, any
Assignee, Obligor, the Equipment, any Item of Equipment, or any part thereof, by
any Federal, state or local government or taxing authority in the United States,
or by any taxing authority or governmental subdivision of a foreign country,
upon or with respect to (a) the Equipment, or any Item of Equipment or any part
thereof, (b) the manufacture, construction, ordering, purchase, ownership,
delivery, financing, leasing, subleasing, re-leasing, possession, use,
maintenance, registration, re-registration, titling, re-titling, licensing,
documentation, delivery, repossession, sale or other application or disposition
of the Equipment, or any Item of Equipment or any part thereof, (c) the rentals,
receipts or earnings arising from the Equipment or any Item of Equipment or any
part thereof, or (d) this Agreement, each other Obligor Document, the Payments
and/or Supplemental Payments payable by Obligor hereunder and any amounts
payable by Obligor under any other Obligor Document; provided, however, that the
foregoing indemnity shall not apply to any taxes or other impositions based upon
or measured solely by Obligee's or any Assignee's net income, and which are
imposed or levied by any Federal, state or local taxing authority in the United
States. Obligor will promptly notify Obligee of all reports or returns required
to be made with respect to any tax or other imposition with respect to which
Obligor is required to indemnify hereunder, and will promptly provide Obligee
with all information necessary for the making and timely filing of such reports
or returns by Obligee. Obligor will prepare and file the same if permitted by
applicable law to file the same, or if not so permitted, Obligor shall prepare
such reports or returns for signature by Obligee, and shall forward the same,
together with immediately available funds for payment of any tax or other
imposition due, to Obligee, at least ten (10) days in advance of the date such
payment is to be made. Upon written request, Obligor shall furnish Obligee with
copies of all paid receipts or other appropriate evidence of payment for all
taxes or other impositions paid by Obligor pursuant to this Section 18. All of
the indemnities contained in this Section 18 shall continue in full force and
effect notwithstanding the expiration or earlier termination of this Agreement
in whole or in part, including the expiration or termination of the Term with
respect to any Item (or all) of the Equipment, and are expressly made for the
benefit of, and shall be enforceable by, Obligee and each Assignee.
19. Indemnification.
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(a) Obligor hereby assumes liability for, and does hereby agree to
indemnify, protect, save, defend, and hold harmless Obligee, each Assignee,
and their respective officers, directors, stockholders, successors,
assigns, agents and servants (each such party being herein, for purposes of
this Section 19, called an "indemnified party") on an after-tax basis from
and against any and all obligations, fees, liabilities, losses, damages,
penalties, claims, demands, actions, suits, judgments, costs and expenses,
including legal expenses, of every kind and nature whatsoever, imposed on,
incurred by, or asserted against any indemnified party, in any way relating
to or arising out of (i) the manufacture, construction, ordering, purchase,
acceptance or rejection, ownership, titling or retitling, registration or
re-registration, delivery, financing, leasing, subleasing, re-leasing,
possession (other than by Obligee or any Assignee), use (other than by
Obligee or any Assignee), operation (other than by Obligee or any
Assignee), storage,
removal, delivery, return, repossession, sale or other disposition of the
Equipment or any Item of Equipment, or any part thereof, including, without
limitation, any of such as may arise from (A) loss or damage to any
property or death or injury to any persons, (B) patent or latent defects in
the Equipment (whether or not discoverable by Obligor or any indemnified
party), (C) any claims based on absolute or strict liability in tort, (D)
any claims based on patent, trademark, tradename or copyright infringement;
or (ii) any failure on the part of Obligor to perform or comply with any of
the terms of this Agreement or any other Obligor Document, and (E) any
towing charges, parking tolls, fines, parking and speeding tickets,
odometer certifications and other civil and criminal motor vehicle
violations with respect to any such Item; and all penalties and interest
applicable to any of the foregoing, except as set forth in the exception to
Section 23(a) hereof in the case of any repossession of the Equipment.
Obligor shall give each indemnified party prompt notice of any occurrence,
event or condition known to Obligor as a consequence of which any
indemnified party may be entitled to indemnification hereunder. Obligor
shall forthwith upon demand of any such indemnified party reimburse such
indemnified party for amounts expended by it in connection with any of the
foregoing or pay such amounts directly. Obligor shall be subrogated to an
indemnified party's rights in any matter with respect to which Obligor has
actually reimbursed such indemnified party for amounts expended by it or
has actually paid such amounts directly pursuant to this Section 19. In
case any action, suit or proceeding is brought against any indemnified
party in connection with any claim indemnified against hereunder, such
indemnified party will, promptly after receipt of notice of the
commencement of such action, suit or proceeding, notify Obligor thereof,
enclosing a copy of all papers served upon such indemnified party, but
failure to give such notice or to enclose such papers shall not relieve
Obligor from any liability hereunder. Obligor may, and upon such
indemnified party's request will, at Obligor's expense, resist and defend
such action, suit or proceeding, or cause the same to be resisted or
defended by counsel selected by Obligor and reasonably satisfactory to such
indemnified party and in the event of any failure by Obligor to do so,
Obligor shall pay all costs and expenses (including, without limitation,
attorney's fees and expenses) incurred by such indemnified party in
connection with such action, suit or proceeding.
(b) To the full extent permitted by applicable law, the Obligor hereby
agrees to defend, indemnify and hold harmless the Obligee, any Assignee and
each of their respective affiliates and directors, officers, employees and
agents from and against any and all loss, cost, expense or liability
(including all costs of legal representation and all fines or penalties)
incurred in connection with any and all claims or proceedings (whether
brought by private party or governmental agencies) for bodily injury,
property damage, abatement or remediation, environmental damage or
impairment or any other injury or damage resulting from or relating to any
Hazardous Material located upon or migrating into, from or through the
property of the Obligor (including without limitation, the Equipment)
(whether or not the release of such Hazardous Materials was caused by any
of such Persons, a tenant or subtenant or a prior owner or tenant on any
such property and whether or not the alleged liability is attributable to
the handling, storage, generation, remediation, transportation or disposal
of such substance or the mere presence of the substance on any such
property), which any such indemnified party may incur due to acquisition of
its interest in the Equipment, the financing of the Equipment for Obligor,
the exercise of any of its rights under this Agreement (except, in the
event of any
foreclosure upon and repossession of the Equipment, to the extent caused by
the gross negligence or willful misconduct of Obligee or its agents), or
otherwise, including without limitation, any loss, cost, expense or
liability relating to (i) any Release or threatened Release of any
Hazardous Material at a Site (other than a release which is permitted
pursuant to applicable Environmental Laws), (ii) any violation of any
Environmental Laws with respect to conditions at a Site or the operations
conducted thereon, or (iii) the investigation or remediation of offsite
locations at which Obligor or its predecessors are alleged to have directly
or indirectly Disposed of Hazardous Materials from a Site.
(c) The provisions of this Section 19, and the obligations of Obligor
under this Section 19, shall apply from the date of the execution of this
Agreement notwithstanding that the Term may not have commenced with respect
to any Item of Equipment, and shall survive and continue in full force and
effect notwithstanding the expiration or earlier termination of this
Agreement in whole or in part, including the expiration of termination of
the Term with respect to any Item (or all) of the Equipment and any
foreclosure or any modification, release or discharge or any or all of the
obligations of Obligor under this Agreement, and are expressly made for the
benefit of, and shall be enforceable by, each indemnified Person.
20. NO WARRANTIES. OBLIGEE HEREBY FINANCES THE EQUIPMENT FOR OBLIGOR AS-
---------------
IS AND OBLIGEE EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY,
EITHER EXPRESSED OR IMPLIED, AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY,
MERCHANTABILITY, DURABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
OF, OR ANY OTHER MATTER CONCERNING, THE EQUIPMENT. OBLIGOR HEREBY WAIVES ANY
CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT OR
INFRINGEMENT) IT MIGHT HAVE AGAINST OBLIGEE FOR ANY LOSS, DAMAGE (INCLUDING
INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE EQUIPMENT OR BY
OBLIGOR'S LOSS OF USE THEREOF FOR ANY REASON WHATSOEVER, INCLUDING COMPLIANCE
WITH ENVIRONMENTAL LAWS. So long and only so long as an Event of Default shall
not have occurred and be continuing, and so long and only so long as the
Equipment shall be subject to this Agreement and Obligor shall be entitled to
possession of the Equipment hereunder, Obligee authorizes Obligor, at Obligor's
expense, to assert for Obligee's account, all rights and powers of Obligee under
any manufacturer's, vendor's or dealer's warranty on the Equipment or any part
thereof; provided, however, that Obligor shall indemnify, protect, save, defend
and hold harmless Obligee from and against any and all claims, and all costs,
expenses, damages, losses and liabilities incurred or suffered by Obligee in
connection therewith, as a result of, or incident to, any action by Obligor
pursuant to the foregoing authorization.
21. Obligor's Representations and Warranties. Obligor hereby represents
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and warrants that (a) Obligor is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation set forth
above, and is qualified to do business in, and is in good standing in, each
state or other jurisdiction in which the nature of its business makes such
qualification necessary (including each state or other jurisdiction in which the
Equipment or any
part thereof will be located); (b) Obligor has the corporate power and authority
to execute and perform this Agreement and each other Obligor Document and to
finance the Equipment hereunder and thereunder, and has duly authorized the
execution, delivery and performance of this Agreement and each other Obligor
Document; (c) the financing of the Equipment by Obligee for Obligor, the
execution and delivery of this Agreement and each other Obligor Document and the
compliance by the Obligor with the terms hereof and thereof, and the payments
and performance by Obligor of all of its obligations hereunder and thereunder
(i) have been duly and legally authorized by appropriate corporate action taken
by Obligor, (ii) are not in contravention of, and will not result in a violation
or breach of, any of the terms of Obligor's Certificate of Incorporation (or
equivalent document), its By-Laws, or of any provisions relating to shares of
the capital stock of Obligor, and (iii) will not violate or constitute a breach
of any provision of law, any order of any court or other agency of government,
or any indenture, agreement or other instrument to which Obligor is a party, or
by or under which Obligor or any of Obligor's property is bound, or be in
conflict with, result in a breach of, or constitute (with due notice and/or
lapse of time) a default under any such indenture, agreement or instrument, or
result in the creation or imposition of any Lien upon any of Obligor's property
or assets; (d) this Agreement and each other Obligor Document have each been
executed by the duly authorized officer or officers of Obligor and delivered to
Obligee and constitutes, and when executed by the duly authorized officer or
officers of Obligor and delivered to Obligee each Supplement and related
instruments, documents and agreements with respect to each Item of Equipment
will constitute, the legal, valid and binding obligations of Obligor,
enforceable in accordance with their terms; (e) neither the execution and
delivery of this Agreement or any other Obligor Document by Obligor, nor the
payment and performance by Obligor of all of its obligations hereunder and
thereunder, requires the consent or approval of, the giving of notice to, or the
registration, filing or recording with, or the taking of any other action in
respect of, any Federal, state, local or foreign government or governmental
authority or agency or any other Person, other than the filings referred to in
Section 26 of this Agreement, or if required, such consent has been obtained and
forwarded to Obligee; (f) no mortgage, deed of trust, or other Lien which now
covers or affects, or which may hereafter cover or affect, any property or
interest therein of obligor, now attaches or hereafter will attach to the
Equipment or any Item of the Equipment, the proceeds thereof or this Agreement,
or in any manner affects or will1 affect adversely Obligee's rights and security
interest therein; (g) obligor holds all licenses, certificates and permits from
governmental authorities necessary to use and operate the Equipment in
accordance with the provisions of this Agreement; (h) except as disclosed in
Guarantor's report on Form 10Q for the quarter ended March 31, 1997, there is no
litigation or other proceeding now pending or, to the best of Obligor's
knowledge, threatened, against or affecting the Obligor, in any court or before
any regulatory commission, board or other administrative governmental agency
which would directly or indirectly adversely affect or impair obligee's rights
and security interest in and to the Equipment, or which, if decided adversely to
Obligor, would have a material adverse effect on the financial condition or
operations of Obligor taken as a whole; W all balance sheets, statements of
profit and loss and other financial data that have been delivered to obligee
with respect to obligor (x) are complete and correct in all material respects,
(y) accurately present the financial condition of Obligor on the dates for
which, and the results of its operations for the periods for which, the same
have been furnished, and (z) have been prepared in accordance with generally
accepted accounting
principles consistently followed throughout the periods covered thereby; and
except as disclosed in the Press Release, there has been no material adverse
change in the condition of Obligor, financial or otherwise, since the date of
the most recent financial statements delivered to Obligee with respect to
Obligor, (j) Obligor holds all licenses, certificates and permits (including any
applicable environmental permits) from governmental authorities necessary to use
and operate the Equipment in accordance with the provisions of this Agreement;
(k) Obligor is in compliance in all material respects with all applicable laws,
rules, regulations and orders, including, without limitation, paying before the
same become delinquent all taxes, assessments and governmental charges and liens
imposed upon it or upon its property except to the extent contested in good
faith and by appropriate proceedings; (1) (i) without limiting the generality of
the foregoing, the retention of possession by Obligor of any Item of Equipment
to be subject to this Equipment Agreement, following the transfer of an interest
therein to Obligee, shall not be deemed fraudulent or void as against any
present or future creditor of the Obligor under the laws of the states where
such Item will, at the time of such transfer of an interest, be located, nor
would any subsequent bona fide purchaser from the Obligor of such Item, in the
event of any attempted subsequent sale thereof by the obligor, acquire any title
to or rights therein superior to Obligee's interest and rights therein, and (ii)
payment in full has been made by Obligor for each Item of Equipment to the
original seller thereof; (m) Obligor is in compliance in all material respects
with all Environmental Laws and health and safety statutes and regulations; (n)
there are no material governmental investigations of the environmental matters
of obligor; (o) there are no contingent liabilities which could reasonably be
expected to have a material adverse effect on the financial condition or
operations of obligor taken as a whole; and (p) the transactions set forth
herein and contemplated hereby shall not subject the Obligee or any of its
affiliates or properties to any Environmental Law (including without limitation,
any cleanup responsibility law or restrictive transfer law or regulation).
22. Events of Default. Any of the following events shall constitute an
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Event of Default:
(a) Obligor shall fail to make any Payments or any Supplemental
Payment, or any payment under any other Obligor Document, within five (5)
days after the same is due and payable; or
(b) Obligor shall fail to observe or perform any of the covenants,
agreements or obligations of Obligor set forth in any other obligor
Document or Section 6, the first, third and fifth sentences of Section 10,
Section 10A, the last sentence of Section 12(a), or Sections 14(a), 14(c),
15, 17, 28 or 29 hereof; or
(c) Obligor or Guarantor shall fail to perform or observe any other
covenant, condition, or agreement to be performed or observed by it under
this Agreement or the Guaranty, and such failure shall continue unremedied
for thirty (30) days after written notice to Obligor specifying such
failure and demanding the same to be remedied; or
(d) Obligor (or Guarantor) shall be in default (i) under any lease,
loan agreement or other agreement, instrument or document heretofore, now
or hereafter entered into between Obligor or Guarantor and Obligee, or in
any material respect, under any lease, loan agreement or other
agreement, instrument or document heretofore, now or hereafter entered into
between Obligor or Guarantor and any parent, subsidiary or affiliate of
Obligee, and such default shall have been declared by the party entitled to
declare the same, or (ii) under any promissory note heretofore, now or
hereafter executed by Obligor or Guarantor and delivered to any party
referred to in clause (i) above evidencing a loan made by any such party to
Obligor or Guarantor; or any obligation of Obligor or Guarantor to any
Person (other than Obligee, or any parent, subsidiary or affiliate of
Obligee, and other than Guarantor) in excess of $1,000,000 relating to the
payment of borrowed money or the payment of rent or hire under any lease
agreement, shall be declared to be due and payable or otherwise accelerated
prior to the maturity thereof by reason of a default in payment or
performance by Obligor; or an attachment or other Lien shall be filed or
levied against a substantial part of the property of Obligor or Guarantor,
and such judgment shall continue unstayed and in effect, or such attachment
or Lien shall continue undischarged or unbonded, for a period of 30 days;
or
(e) Obligor or Guarantor shall become insolvent 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 Obligor or for
Guarantor or for a substantial part of its property without its consent and
shall not be dismissed for a period of 60 days; or any petition for the
relief, reorganization or arrangement of Obligor or Guarantor, or any other
petition in bankruptcy or for the liquidation, insolvency or dissolution of
Obligor or Guarantor, shall be filed by or against Obligor or Guarantor
and, if filed against Obligor or Guarantor, shall be consented to or be
pending and not dismissed for a period of 60 days, or an order for relief
under any bankruptcy or insolvency law shall be entered by any court or
governmental authority of competent jurisdiction with respect to Obligor or
Guarantor; or any execution or writ or process shall be issued under any
action or proceeding against Obligor whereby any of the Equipment may be
taken or restrained; or Obligor's or Guarantor's corporate existence shall
cease; or Obligor or Guarantor shall (whether in one transaction or a
series of transactions), sell, transfer, dispose of, pledge or otherwise
encumber, all or substantially all of its assets or property, or
consolidate or merge with any other entity, or become the subject of, or
engage in, a leveraged buy-out or any other form of corporate
reorganization, except in accordance with Section 14(c) and the Guaranty;
or
(f) any representation, warranty, statement or certification made by
Obligor under this Agreement or in any Supplement or in any document or
certificate furnished Obligee or any Assignee in connection herewith or
pursuant hereto (or made by any Guarantor under any Guaranty or other
document or certificate furnished to obligee or any Assignee by any
Guarantor), shall prove to be untrue or incorrect in any material respect
when made, or shall be breached in any material respect; or
(g) any Lien purported to be created hereunder or by the Supplement
shall cease to be a valid and perfected first priority lien in the
Equipment (except, in the case of Equipment subject to motor vehicle
titling laws and only before the Basic Term Commencement Date, in respect
of any failure to provide a certificate of title showing Obligee as
lienholder); or
(h) the Guarantor shall cease to own a majority of the issued and
outstanding shares
of capital stock of Obligor;
(i) there shall have occurred any event which, in the reasonable
judgment of the obligee, has had a material adverse effect on the
properties, executive management (taken as a whole), condition (financial
or otherwise), operations or business of the Obligor taken as a whole or of
Guarantor taken as a whole, or in Obligee's reasonable opinion, Obligee's
interest in the Equipment is materially impaired; or
(j) the Guarantor shall repudiate or contest the enforceability of the
Guaranty, or the Guaranty shall be unenforceable in whole or in part, or
the Guarantor shall fail to perform its obligations under the Guaranty.
23. Remedies Upon Default. Upon the occurrence of any Event of Default and
----------------------
at any time thereafter so long as the same shall be continuing, Obligee may
exercise one or more of the following remedies as Obligee in its sole discretion
shall elect:
(a) Obligee may terminate or cancel this Agreement, without prejudice
to any other remedies of Obligee hereunder, with respect to all or any Item
of Equipment, and whether or not this Agreement has been so terminated or
cancelled, may enter the premises of Obligor or any other party to take
immediate possession of the Equipment and remove all or any Item of
Equipment by summary proceedings or otherwise, or may cause Obligor, at
Obligor's expense, to store, maintain, surrender and deliver possession of
the Equipment or such Item in the same manner as provided in Section 6
hereof, all without liability to Obligee for or by reason of such entry or
taking of possession, whether for the restoration of damage to property
caused by such taking or otherwise, except to the extent caused by the
gross negligence or willful misconduct of Obligee or its agents;
(b) Obligee may hold, keep idle or lease to others the Equipment or
any Item of Equipment, as Obligee in its sole discretion may determine,
free and clear of any rights of Obligor and without any duty to account to
Obligor with respect to such action or inaction or for any proceeds with
respect thereto, except that Obligor's obligation to make Payments for any
Payment Periods commencing after Obligor shall have been deprived of
possession pursuant to this Section 23 shall be reduced by the net
proceeds, if any, received by Obligee from leasing the Equipment or such
Item to any Person other than Obligor for the same Payment Periods or any
portion thereof;
(c) Obligee may sell the Equipment or any Item of Equipment at public
or private sale as Obligee may determine, free and clear of any rights of
Obligor, and Obligor shall pay to Obligee, as liquidated damages for loss
of a bargain and not as a penalty (in lieu of the Payments due for the
Equipment or Item(s) so sold for any Payment Period commencing after the
date on which such sale occurs), the sum of (i) all unpaid Payments payable
for each Item of Equipment for all Payment Periods through the date on
which such sale occurs, plus (ii) an amount equal to the excess, if any, of
(x) the Casualty Loss Value of the Equipment or Item(s) so sold, computed
as of the Payment Date coincident with or next preceding the date of such
sale, over (y) the net
proceeds of such sale, plus interest at the rate specified in Section 25
hereof on the amount of such excess from the Payment Date as of which such
Casualty Loss Value is computed until the date of actual payment, plus
(iii) all unpaid Supplemental Payments due with respect to each Item of
Equipment so sold, including a Reinvestment Premium, computed as of the
Payment Date coincident with or next preceding the date of such sale; and
(d) whether or not Obligee shall have exercised, or shall
thereafter at any time exercise, any of its rights under subsection (a) or
(b) above with respect to any Item(s) of Equipment, Obligee, by written
notice to Obligor specifying a payment date, may demand that Obligor pay to
Obligee, and Obligor shall pay to Obligee, on the payment date specified in
such notice, as liquidated damages for loss of a bargain and not as a
penalty (in lieu of the Payments due for any Item(s) of Equipment for any
Payment Period commencing after the payment date specified in such notice
and in lieu of the exercise by Obligee of its remedies under subsection (b)
above in the case of a release of such Item(s) or under subsection (c)
above with respect to a sale of such Item (s), the sum of (i) all unpaid
Payments payable for such Item (s) for all Payment Periods through the
payment date specified in such notice, plus (ii) all unpaid Supplemental
Payments due with respect to such Item(s) as of the payment date specified
in such notice, including a Reinvestment Premium computed as of the payment
date specified in such notice, plus (iii) an amount, with respect to each
such Item, equal to the Casualty Loss Value of such Item(s) computed as of
the Payment Date coincident with or next preceding the payment date
specified in such notice; provided, however, that in the event of a sale of
any such Item(s) delivered to or repossessed by Obligee, if Obligor has
paid in full the amounts described in this paragraph Obligee shall refund
to Obligor the aggregate Net Proceeds of Sale of such Item(s) of Equipment
as defined in Section 29 (d)(ii) ; and
(e) Obligee may exercise any other right or remedy which may be
available to it under applicable law or proceed by appropriate court action
to enforce the terms hereof or to recover damages for the breach hereof or
to rescind this Agreement.
At any sale pursuant to this Section 23, the purchaser shall take the
Equipment free and clear of all rights and interest of Obligor in the Equipment.
In addition, Obligor shall be liable for all costs and expenses, including
attorney's fees, incurred by Obligee or any Assignee by reason of the occurrence
of any Event of Default or the exercise of obligee's remedies with respect
thereto, including all costs and expenses incurred in connection with the
delivery of the Equipment in accordance with Section 6 hereof or in placing the
Equipment in the condition required by said Section including, without
limitation, decontamination expenses. Except as otherwise expressly provided
above, no remedy referred to in this Section 23 is intended to be exclusive, but
each shall be cumulative and in addition to any other remedy referred to above
or otherwise available to Obligee at law or in equity; and the exercise or
beginning of exercise by Obligee of any one or more of such remedies shall not
constitute the exclusive election of such remedies and shall not preclude the
simultaneous or later exercise by Obligee of any or all of such other remedies.
No express or implied waiver by obligee of any Event of Default shall in any way
be, or be construed to be, a waiver of any future
or subsequent Event of Default. To the extent permitted by applicable law,
Obligor hereby waives any rights now or hereafter conferred by statute or
otherwise which may require obligee to sell, lease or otherwise use the
Equipment in mitigation of Obligee's damages as set forth in this Section or
which may otherwise limit or modify any of Obligee's rights and remedies in this
Section 23.
24. Obligee's Right to Perform for Obligor. If Obligor fails to make any
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Supplemental Payment required to be made by it hereunder or fails to perform
or comply with any of its agreements contained herein, Obligee may itself, after
notice to obligor, make such payment or perform or comply with such agreement,
and the amount of such payment and the amount of the reasonable expenses of
Obligee incurred in connection with such payment or the performance of or
compliance with such agreement, as the case may be, together with interest
thereon at the rate specified in Section 25 hereof, shall, if not paid by
Obligor to Obligee on demand, be deemed a Supplemental Payment hereunder;
provided, however, that no such payment, performance or compliance by Obligee
-------------------
shall be deemed to cure any Event of Default hereunder.
25. Late Charges. Obligor shall pay to Obligee, upon demand interest on
-------------
any Payment not paid when due, and on any Supplemental Payment or other amount
payable under this Agreement which is not paid when due, for any period for
which any of the same is overdue (without regard to any grace period) at a rate
equal to the lesser of (a) nine and 76/100 percent (9.76%) per annum, or (b) the
maximum rate of interest permitted by law.
26. Further Assurances. Obligor will promptly and duly execute and
-------------------
deliver to Obligee and any Assignee such other documents and assurances,
including, without limitation, such amendments to this Agreement as may be
reasonably required by Obligee and by any Assignee, and Uniform Commercial Code
financing statements and continuation statements (it being understood and agreed
that such financing statements and continuation statements will not be requested
for a jurisdiction other than those in which the chief executive office of the
Obligor is located or a jurisdiction in which a mobile filter press is located),
and will take such further action as Obligee or any Assignee may from time to
time reasonably request in order to carry out more effectively the intent and
purposes of this Agreement and to establish and protect the rights and remedies
created or intended to be created in favor of Obligee and of any Assignee and
their respective rights and interests in and to the Equipment.
27. Notices. All notices provided for or required under the terms and
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provisions hereof shall be in writing, and any such notice shall be deemed given
when personally delivered or when deposited in the United States mails, with
proper postage prepaid, for first class certified mail, return receipt
requested, addressed (i) if to Obligee or Obligor, at their respective addresses
as set forth herein or at such other address as either of them shall, from time
to time, designate in writing to the other, and (ii) if to any Assignee, to the
address of such Assignee as such Assignee shall designate in writing to Obligee
and Obligor.
28. Obligor's Renewal and Purchase Options; Third Party Sale.
---------------------------------------------------------
(a) Obligor's Renewal Option. If (i) no Event of Default shall have
--------------------------
occurred and be continuing and (ii) this Agreement shall not have been
earlier terminated, Obligor shall be entitled, at its option, to renew this
Agreement with respect to all, but not less than all, Items of Equipment
then subject to this Agreement for the Renewal Term(s) specified on the
Related Exhibit A for such Item. The first Renewal Term with respect to
each such Item of Equipment will commence at the expiration of the Basic
Term of such Item, and each succeeding Renewal Term will commence at the
expiration of the next preceding Renewal Term. All of the provisions of
this Agreement shall be applicable during each Renewal Term for each such
Item of Equipment, except that Payments during each Renewal Term shall be
payable at the times and on the Payment Dates set forth on said Related
Exhibit A. If Obligor intends not to exercise said renewal option with
respect to any of said Renewal Terms, Obligor shall give written notice to
Obligee to such effect at least one hundred eighty (180) days prior to the
expiration of the Basic Term of the Item(s) of Equipment whose Basic Term
first expires hereunder, in the case of the first Renewal Term, and at
least one hundred eighty (180) days prior to the expiration of the then
current Renewal Term of the Item(s) of Equipment whose Basic Term first
expires hereunder, in the case of the then next succeeding Renewal Term. If
Obligor fails to give such written notice to Obligee with respect to any of
said Renewal Terms, it shall be conclusively presumed that Obligor has
elected to exercise said renewal option with respect to said Renewal Term.
In the event Obligor elects not to exercise said renewal option (unless
Obligee has otherwise agreed in writing or Obligor has exercised its
purchase option under Section 28(b) hereof) each such Item of Equipment
shall be delivered to Obligee in accordance with the provisions of Section
6(a) hereof (unless delivered to a bidder in accordance with Section 28(c)
hereof) and until each such Item has been so delivered Obligor shall
continue to pay Obligee the Payments for each such Item as specified in
Section 6(b) hereof.
(b) Obligor's Purchase Option. If (i) no Event of Default shall have
---------------------------
occurred and be continuing, and (ii) this Agreement shall not have been
earlier terminated, Obligor shall be entitled, at its option, upon written
notice to Obligee, as hereinafter provided, to purchase Obligee's interest
in all, but not less than all, Items of Equipment then subject to this
Agreement, on the Termination Date for each such Item of Equipment, for an
amount (the "Purchase Option Amount"), with respect to each Item of
Equipment, payable in immediately available funds, equal to the sum of (w)
the Estimated Residual Value of such Item of Equipment applicable to the
Basic Term or Renewal Term thereof then ending, plus W the Payments due and
payable for such Item of Equipment on the Termination Date, if Payments for
such Item are payable in arrears, plus (y) any applicable sales, excise or
other taxes imposed as a result of such sale (other than gross or net
income taxes attributable to such sale), plus (2) any Supplemental Payments
then due and owing to Obligee hereunder including, in the event that
Obligor exercises its purchase option hereunder prior to the end of the
Maximum Term, the Reinvestment Premium. Obligee's sale of its interest in
each Item of Equipment shall be on an as-is, where-is basis, without any
representation or warranty by, or recourse to, Obligee. If Obligor intends
to exercise said purchase option, Obligor shall give written notice to
obligee to such effect at least one hundred eighty (180) days prior to the
expiration of the Basic Term of the Item(s) of Equipment whose Basic Term
first expires hereunder, or, if Obligor has renewed this Agreement pursuant
to Section 28(a) hereof, then at least one hundred
eighty (180) days prior to the expiration of the then current Renewal Term
of the Item(s) of Equipment whose Basic Term first expires hereunder. If
Obligor gives such written notice to Obligee same shall constitute a
binding obligation of Obligor to purchase Obligee's interest in all of such
Items of Equipment and to pay Obligee the Purchase Option Amount on the
Termination Date thereof.
(c) Third Party Sale of Equipment.
------------------------------
(i) Remarketing Obligations. In the event Obligor does not
-------------------------
exercise either its option to renew this Agreement or to purchase
Obligee's interest in the Equipment pursuant to this Section, then
Obligor shall have the obligation during the last one hundred eighty
(180) days of the Basic Term, or the then current Renewal Term, if
applicable (the "Remarketing Period"), to obtain bona fide bids for
Obligee's interest in not less than all Items of Equipment then
subject to this Agreement from prospective purchasers who are
financially capable of purchasing such interest for cash on an as-is,
where-is basis, without recourse or warranty. All bids received by
Obligor prior to the end of the Basic Term, or Renewal Term if
applicable, of such Item(s) of Equipment shall be immediately
certified to Obligee in writing, setting forth the amount of such bid
and the name and address of the person or entity submitting such bid.
Notwithstanding the foregoing, Obligee shall have the right, but not
the obligation, to seek bids for its interest in the Equipment during
the Remarketing Period.
(ii) Sale of Obligee's Interest in the Equipment to Third Party
----------------------------------------------------------
Buyer. on the Termination Date, provided that all the conditions
------
hereof have been met, Obligee shall sell (or cause to be sold) its
interest in all Items of Equipment then subject to this Agreement, for
cash to the bidder, if any, who shall have submitted the highest bid
during the Remarketing Period on an as-is, where-is basis and without
recourse or warranty, and upon receipt by Obligee of the sales price
Obligee shall instruct Obligor to deliver and Obligor shall deliver
such Item(s) of Equipment to such bidder; provided, that (x) any such
sale to a third party shall be consummated, and the sales price for
Obligee's interest in such Item shall be paid to Obligee in
immediately available funds, on or before the Termination Date; and
(y) Obligee shall not be obligated to sell its interest in such
Equipment (I) if the Net Proceeds of Sale of its interest in such
Item(s) is less than the aggregate Maximum Obligee Risk Amount
applicable to such Item(s) as of the Termination Date or (II) if
Obligee has not received the amounts, if any, payable by Obligor
pursuant to Section 29(a) and, if applicable, Section 29(c). Such
third party purchaser shall take the Equipment free and clear of all
rights and interest of Obligor in the Equipment.
29. End of Term Adjustment.
-----------------------
(a) Third Party Sale of Equipment. This Section 29(a) shall apply
------------------------------
only if, with respect to any Item(s) of Equipment, a sale of Obligee's
interest in such Item(s) to a third party pursuant to
Section 28(c) hereof has been consummated on the Termination Date. If the
Net Proceeds of Sale of Obligee's interest in such Item(s) is less than the
aggregate Estimated Residual Value of such Item(s) as of such Termination
Date, Obligor shall, on the Termination Date, pay to Obligee as an End of
Term Adjustment, in immediately available funds, an amount equal to such
deficiency (a "Deficiency") as an adjustment to the Payments payable under
this Agreement for such Item, plus the Payments due and payable for such
Item(s) of Equipment on the Termination Date, if Payments for such Item(s)
are payable in arrears, plus any Supplemental Payments then due and owing
to Obligee hereunder; provided, however, that if no Event of Default or
-----------------
event which, with notice or passage of time or both would constitute an
Event of Default, shall have occurred and be continuing hereunder, the
amount of the Deficiency payable by Obligor with respect to such Item(s)
shall not exceed the aggregate Maximum Obligor Risk Amount then applicable
to such Item(s). If the Net Proceeds of Sale of such Item(s) of Equipment
exceeds the aggregate Estimated Residual Value of such Item(s) and if no
Event of Default or event which, with notice or passage of time or both
would constitute an Event of Default, shall have occurred and be continuing
hereunder and Obligor shall have paid Obligee on or before the Termination
Date the Payments due and payable for such Item(s) of Equipment on the
Termination Date, if Payments for such Item(s) are payable in arrears, plus
all Supplemental Payments then due and owing with respect to such Item(s),
plus any amounts due pursuant to Section 29(c) hereof, Obligee shall pay to
Obligor an amount equal to such excess as an adjustment to the Payments
payable under this Agreement for such Item(s).
(b) Obligor Payment. If a sale of Obligee's interest in all Items
----------------
of Equipment then subject to this Agreement either to the Obligor pursuant
to Section 28(b) hereof or to a third party pursuant to Section 28(c)
hereof has not been consummated on the Termination Date with respect
thereto for any reason, then the Obligor shall, on the Termination Date of
such Items, pay to Obligee as an End of Term Adjustment, in immediately
available funds, as an adjustment to the Payments payable under this
Agreement for such Items, an amount equal to (i) the Maximum Obligor Risk
Amount of all of such Items, if on the Termination Date no Event of Default
or event which, with notice or passage of time or both would constitute an
Event of Default, shall have occurred and be continuing hereunder, or (ii)
the Estimated Residual Value of all of such Items, if on the Termination
Date an Event of Default or event which, with notice or passage of time or
both would constitute an Event of Default, shall have occurred and be
continuing hereunder, plus, in either case, the Payments due and payable
for such Item(s) of Equipment on the Termination Date, if Payments for such
Item(s) are payable in arrears, plus all Supplemental Payments then due and
owing with respect to such Item(s). Obligor shall remain liable for the
payment of, and upon the consummation by obligee of the sale of Obligee's
interest in any Item(s) of Equipment after the Termination Date thereof,
Obligor shall pay, or reimburse Obligee for the payment of, any applicable
sales, excise or other taxes imposed as a result of such sale, other than
gross or net income taxes attributable to such sale, and such obligation
shall survive the termination of this Agreement.
(c) Reinvestment Premium. In the event a Termination Date of any Item
----------------------
of Equipment occurs prior to the last day of the Maximum Term hereof
relating to such Item, Obligor shall pay to
Obligee on the Termination Date of such Item in immediately available
funds, in addition to any other obligations hereunder, the Reinvestment
Premium relating to such Item.
(d) Certain Definitions.
--------------------
(i) "End of Term Adjustment" means the amounts payable as
------------------------
adjustments to Payments pursuant to Section 29(a) or, as applicable,
29(b).
(ii) "Net Proceeds of Sale" means with respect to each Item of
----------------------
Equipment for which Obligee's interest is sold to a third party
pursuant to Section 28(c), the net amount of the proceeds of sale of
such interest, after deducting from the gross proceeds of such sale
(i) any sales taxes and other taxes (excluding income taxes on or
measured by Obligee's income) as may be applicable to the sale or
transfer of such interest, (ii) all fees, costs and expenses of such
sale incurred by Obligee and (iii) any other amounts for which, if not
paid, Obligee would be liable or which, if not paid, would constitute
a Lien on such Item.
(e) Time of the Essence. The provisions of Sections 28 and 29 are of
--------------------
the essence of this Agreement, and time is of the essence for any payment
and performance of the obligations of the Obligor set forth therein.
30. Financial and Equipment Information. Obligor agrees to furnish
-------------------------------------
Obligee (a) as soon as available and in any event within 90 days after the last
day of each fiscal year of Guarantor, (i) a copy of the annual report for such
year of Guarantor, containing financial statements for such year certified in an
unqualified manner by Ernst & Young (or any successor to such firm) or any other
independent public accountants of recognized standing, and (ii) the
consolidating balance sheets of Guarantor and Obligor as of the end of such year
and the consolidating statement of income of Guarantor and Obligor (and a
consolidated statement of cash flow for Obligor) for such year, each certified
by the chief financial officer or chief accounting officer of Guarantor and as
applicable, Obligor and each on a comparative basis with corresponding
statements for the prior fiscal year, (ii)(A) as soon as available and in any
event within 45 days after the last day of each of the first three fiscal
quarters of Guarantor, the consolidated and consolidating balance sheets of
Guarantor and Obligor as of the end of each such quarter and a consolidated
statement of cash flow and consolidated and consolidating statements of income
of Guarantor and Obligor (and a consolidated statement of cash flow for Obligor)
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, and (B) as soon as available such other financial
statements as may be requested from time to time for any unconsolidated
subsidiary of Guarantor or Obligor, each certified by the chief financial
officer or chief accounting officer of the Guarantor and as applicable, Obligor,
and each on a comparative basis with the corresponding period of the prior year;
(c) contemporaneously with its transmittal to each stockholder of Obligor, any
such other financial statements and reports as Obligor shall send to its
stockholders; (d) as soon as available to Obligor, the notice of any material
adjustment resulting from any audit of the books and/or records of Obligor by
any taxing authority having jurisdiction over Obligor; and (e) such
additional financial information as Obligee may reasonably request concerning
Obligor.
Obligor agrees to furnish to Obligee: (x) within 45 days after the last day
of each fiscal quarter, a listing indicating the location of any Item of
Equipment that is a mobile filter press as specified in the Supplement; (y)
within 60 days after the end of each calendar year, (I) a good faith estimate as
to the then current market value of the Equipment certified by its treasurer or
chief financial officer, and (II) a listing of the location of each Item; and
(z) at any time, upon the written request of the Obligee, a listing of the then
current location of all Items of Equipment.
31. Expenses. Obligor agrees, whether or not the transactions
---------
contemplated by this Agreement are consummated, to pay (or reimburse Obligee or
any Assignee for the payment of) fees for lien searches, filing fees, fees and
expenses relating to the titling and registration of any Items of Equipment, and
all legal fees and expenses of Obligee (other than such legal fees and expenses
relating to the initial preparation of this Agreement) and all reasonable legal
fees and expenses of any Assignee, incurred by or on behalf of Obligee or any
Assignee in connection with the negotiation and documentation of this Agreement
and each other Obligor Document, the Guaranty, the further assurances described
herein, and the transactions contemplated hereby and thereby.
32. Owner for Income Tax Purposes. Obligee agrees that Obligor shall be
------------------------------
deemed the owner of the Equipment for federal, state and local income tax
purposes and that, so long as no Event of Default shall have occurred and be
continuing, Obligee shall take no action inconsistent with such ownership for
income tax purposes.
33. Voluntary Termination for Obsolescence. So long as no Event of
---------------------------------------
Default shall have occurred and be continuing hereunder, Obligor shall have the
right at its option on any Payment Date during the Basic Term or any Renewal
Term, on at least ninety (90) days, prior written notice to and with the prior
written consent of Obligee (not to be unreasonably withheld), to terminate this
Equipment Agreement with respect to any Item of Equipment then subject to this
Agreement if, in Obligor's good faith opinion, as evidenced by a certificate of
its President, treasurer or chief financial officer, such Item shall have become
no longer useful, or surplus, to Obligor in its business, with such termination
to be effective on the Payment Date specified in such notice (for purposes of
this Section 33, called the "termination date"). During the period from the
giving of such notice until the date thirty (30) days prior to the termination
date, Obligor, as agent for Obligee, shall use its reasonable efforts (but no
less effort than used to sell equipment Obligor owns itself) to secure the
highest obtainable bids for the purchase of Obligee's interest in such Item and
in the event it receives any bid during such period, Obligor shall promptly
certify to Obligee in writing the amount and terms of such bid and the name and
address of the party submitting such bid on the termination date (but in no
event prior to Obligee's receipt of the amounts specified in the next succeeding
sentence), Obligor shall deliver possession of such Item to the bidder, if any,
which shall have submitted the highest bid during such period, and Obligee
shall, without recourse or warranty, simultaneously therewith transfer its
interest in such Item on an "as-is", "where-is" basis for cash to such bidder.
The total transfer price realized at such sale shall be paid to and retained by
Obligee and, in addition, on the
termination date Obligor shall pay to Obligee the sum of the amounts specified
in sub-clauses (i) through (v): (i) the Payments due and payable for such Item
on the termination date, plus (ii) all accrued and unpaid Payments owing for
such Item for all Payment Periods prior to the Payment Period for which the
Payments specified in the preceding sub-clause (i) is payable, plus (iii) the
excess, if any, of the Termination Value of such Item as of the Payment Date
coincident with the termination date, over the aggregate proceeds of sale of
Obligee's interest in such Item, after deducting from such proceeds of sale the
expenses incurred by Obligee in connection with such sale, plus (iv) any sales
or excise taxes on or measured by such sale, plus (v) all accrued and unpaid
Supplemental Payments owing by Obligor as of the termination date, including a
Reinvestment Premium for such Item determined as of such termination date.
Neither Obligor nor any person, firm or corporation, affiliated with Obligor,
may purchase the Equipment, or after any such sale, lease or otherwise utilize
the Equipment. If no sale shall have occurred on or as of the termination date
this Equipment Agreement (including the provisions of this Section 33 shall
continue in full force and effect with respect to the Equipment. In the event of
any such sale and the receipt by Obligee of the amounts described above, and
upon compliance by Obligor with the provisions of this Section 33, the
obligations of Obligor to make Payments hereunder with respect to each item of
Equipment so sold shall cease for any Payment Period that commences on or after
the termination date and the Term with respect to each such Item of Equipment
shall end effective as of the termination date. Obligee may, but shall be under
no duty to, solicit bids, inquire into the efforts of Obligor to obtain bids or
otherwise take any action in connection with any such sale other than the duty
to transfer to the purchaser named in the highest bid certified by Obligor to
Obligee, without recourse or warranty, on an "as-is", "where-is" basis, all of
Obligee's interest in and to the Equipment so sold against receipt by Obligee of
the payments provided for herein. Anything herein to the contrary
notwithstanding, if Obligor shall exercise its said right to termination as
provided in this Section 33, Obligee may, in its sole discretion, elect to
receive delivery of all of the Equipment subject to said notice by giving
Obligor written notice to such effect within thirty (30) days following
Obligee's receipt of the written notice from Obligor hereinabove provided, in
which event (a) no sale shall occur pursuant to this Section 33, (b) Obligor
shall deliver the Equipment to Obligee in accordance with the provisions of
Section 6 hereof and shall continue to make Payments for the Equipment on each
Payment Date to and inclusive of (and the Term of the Equipment shall terminate
on) the Payment Date next following the date on which such delivery occurs.
34. No Reliance. Obligor hereby acknowledges that in negotiating the
-- ---------
terms of this Agreement and all other related agreements and documents, it has
sought, obtained and relied exclusively upon such accounting, actuarial, tax and
legal advice from its own or other independent sources as it has deemed
necessary, and further acknowledges that neither Obligee nor any of Obligee's
parent, subsidiaries, affiliates or personnel has represented or warranted the
legal, tax economic, accounting, or other consequences of the terms and
provisions hereof and of the other related agreements and documents.
35. Miscellaneous. Any provision of this Agreement or any other
--------------
Obligor Document 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 or
diminishing Obligee's rights under 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, Obligor hereby waives any provision of law which
renders any provision of this Agreement or any other Obligor Document prohibited
or unenforceable in any respect. No term or provision of this Agreement or any
other Obligor Document may be amended, altered, waived, discharged or terminated
orally, but may be amended, altered, waived, discharged or terminated only by an
instrument in writing signed by a duly authorized officer of the party against
which the enforcement of the
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
amendment, alteration, waiver, discharge or termination is sought. A waiver on
any one occasion shall not be construed as a waiver on a future occasion. All
of the covenants, conditions and obligations contained in this Agreement and
each other Obligor Document shall be binding upon and shall inure to the benefit
of the respective successors and assigns of Obligee and (subject to the
restrictions of Section 14(a) hereof) Obligor. This Agreement and the other
Obligor Documents collectively constitute the complete and exclusive statement
of the terms of the agreement between Obligee and Obligor with respect to the
financing of the Equipment, and cancel and supersede any and all prior oral or
written understandings with respect thereto.
Obligor's Initials ______________
36. Venue; Governing Law. Obligor agrees that at Obligee's sole election
---------------------
any suit action or proceeding brought by Obligee against Obligor in connection
with or arising out of this Agreement or any other Obligor Document may be
brought in any federal court in the Commonwealth of Massachusetts, and Obligor
waives personal service of all process upon it and consents that service of
process may be made by mail or messenger directed to it at its address set forth
above and that service so made shall be deemed to be completed upon the earlier
of actual receipt or three (3) days after the same shall have been posted to
Obligor's said address. Nothing herein contained shall affect Obligee's right to
serve legal process in any other manner permitted by law or to bring any suit,
action or proceeding against Obligor or its property in the courts of any other
jurisdiction. This Agreement and each other Obligor Document shall in all
respects be governed by, and constructed in accordance with, the laws of the
Commonwealth of Massachusetts, including all matters of construction, validity
and performance.
37. No Merger. There shall be no merger of this Equipment Agreement or of
----------
any leasehold or subleasehold estate created hereby or pursuant hereto, with the
fee or any other estate or ownership or security interest in any Item of
Equipment, by reason of the fact that the same Person may acquire or own or
hold, directly or indirectly, (i) this Equipment Agreement or any leasehold or
subleasehold estate or security interest created hereby or hereunder, or any
other interest in this Equipment Agreement or any such lease or sublease or in
any such leasehold or subleasehold estate, and/or (ii) the fee estate or any
other estate or ownership or security interest, or any other interest, in any
Item of Equipment; and this Equipment Agreement shall not be terminated for any
reason except as expressly provided herein or as may be expressly agreed in
writing by the holders of the Obligor's and Obligee's respective interests, and
any instrument of transfer shall so provide.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the date first
written above.
BTM CAPITAL CORPORATION
Attest: (Obligee)
______________________________ By: ____________________________
Assistant Clerk Title: Senior Vice President
(Corporate Seal)
OHM REMEDIATION SERVICES CORP.
Attest: (Obligor)
______________________________ By: ____________________________
Secretary Title: Treasurer
(Corporate Seal)
COUNTERPART NO. 2 OF SERIALLY NUMBERED MANUALLY EXECUTED COUNTERPARTS. TO THE
EXTENT, IF ANY, THAT THIS DOCUMENT CONSTITUTES CHATTEL PAPER UNDER THE UNIFORM
COMMERCIAL CODE, NO SECURITY INTEREST IN THIS DOCUMENT MAY BE CREATED THROUGH
THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN COUNTERPART NO. 1.