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EXHIBIT 10.49
First Security Master Equipment Lease
THIS MASTER EQUIPMENT LEASE AGREEMENT ("MASTER LEASE") IS BETWEEN FIRST SECURITY
BANK, N.A. ("LESSOR") AND THE LESSEE OR LESSEES SPECIFIED BELOW ("LESSEE").
SECTION 1. INTENT TO LEASE.
Lessor agrees to pay for and lease to Lessee and Lessee agrees to lease
from Lessor the personal property (the "Equipment" or, individually, an "Item")
described in each Lease Schedule to Master Equipment Lease Agreement (a
"Schedule") pursuant hereto. Each Schedule and a copy of the Master Lease shall
be a separate lease (a "Lease"). "Agreement" shall mean this Master Lease and
all Schedules.
SECTION 2. TERM; RENTAL; UNCONDITIONAL OBLIGATIONS; SECURITY.
A. The lease of each Item shall begin on the date of the related
Schedule (the "Acceptance Date") and end on the Expiration Date specified in the
Schedule (the "Expiration") or on the date of any earlier or later termination
hereunder (the "Termination").
B. Lessee shall pay to Lessor Interim Rental, if applicable, and Basic
Rental ("Rental") for each Item in the amounts and on the dates ("Rental Payment
Dates") shown in the applicable Schedule. If any amount payable under the
Agreement is not paid within ten (10) days after it is due, Lessee shall
immediately pay to Lessor a late charge equal to five percent (5%) of such
amount. Lessee shall also pay to Lessor interest on all overdue amounts at the
rate of eighteen percent (18%) per annum or the maximum rate allowed by law,
whichever is less, compounded daily.
C. All Leases are net leases. Lessee's obligations under each Lease
shall all be performed at Lessee's expense and shall only terminate under the
provisions thereof. Lessee shall not be entitled to any reduction or withholding
of any amount payable under any Lease for any reason (including any present or
future claims of Lessee against Lessor, under the Lease or otherwise, or against
any manufacturer or vendor). Except as expressly provided, Lessee's obligations
shall not be affected by any defect in, damage to, loss of, or interference with
use of any Item from any cause or by any person, entity or government, by any
invalidity or unenforceability of the Lease or any lack of authority of Lessor
to enter into the Lease, or by any other cause, notwithstanding any present or
future law or regulation. Lessee waives any rights under Sections 221, 405 and
406 of the applicable version of Uniform Commercial Code Article 2A ("UCC 2A")
and any similar laws or rights, including rights to avoidance, allowance,
allocation, modification, and notice.
D. If a Schedule specifies that a security deposit is required, upon
its execution Lessee shall deposit the amount so specified with Lessor. Lessor
may commingle such deposit with its other funds. Lessee grants Lessor a security
interest in such deposit to secure all of Lessee's obligations under the
Agreement. Within fifteen (15) days after written notice to Lessee that all or
any part of a security deposit has been used to satisfy any such obligation,
Lessee shall deposit with Lessor an amount sufficient to restore the security
deposit to the required amount. Upon Expiration or Termination, if no Default
(as defined in Section 13) exists, any unused portion of the related security
deposit will be returned to Lessee without interest.
E. Any security for Lessee's existing or future obligations under this
or any other agreements with Lessor shall secure Lessee's existing or future
obligations under all such agreements.
SECTION 3. LESSEE OPTIONS AT EXPIRATION OF LEASE TERM.
At least one hundred twenty (120) days, but not more than one
hundred eighty (180) days, before Expiration (or, in the case of purchase or
return under clause (b) or (c) below, the renewal term, if any, of such item),
Lessee will give Lessor irrevocable written notice that it either (a) exercises
its option to renew this Lease as to all (but not less than all) Items at their
Fair Rental Value and for a single renewal term to be agreed upon by Lessor and
Lessee but in no case less than six (6) months (but this renewal option may not
be exercised if an Event of Default has occurred or if there has been a material
adverse change in Lessee's business or financial condition since the Acceptance
Date), (b) exercises its option to purchase all such Items at Expiration or at
the expiration of the renewal term, if any, for cash for their Fair Rental Value
or (c) will return all such Items to Lessor at Expiration or at the expiration
of the renewal term, if any, as described below. If such notice is not given,
Lessee shall be deemed to have elected to renew this Lease as to all such Items
at their current periodic rent and for a renewal term of six (6) months, unless
Lessor by written notice instructs Lessee to return such Items as described
below. "Fair Market Value" or "Fair Market Rental" is to be determined by
agreement between Lessor and Lessee, and if they cannot agree, by an independent
appraiser selected by Lessor but acceptable to Lessee. The cost of appraisal
shall be borne by Lessee. Lessee will at its sole expense return each Item to
Lessor where designated by Lessor, in the good operating order and condition as
when delivered to Lessee, free and clear of liens or rights of others and
properly packed and crated, with freight prepaid to Lessor at such locations as
Lessor may designate to Lessee. Upon Lessor's request, Lessee will store any
Item before its return without charge at its current location for up to one
hundred twenty (120) days, during which period Lessee will remain liable for all
of its obligations under this Lease except payment of rent. If Lessee fails to
return any Item in full compliance with this Section 3, or in full compliance
with any return provision in the Agreement including, any and all additional
return provisions attached to any Schedule as an exhibit, Lessor may treat this
Lease as continuing in full force and effect as to such Item and Lessee will
continue to pay the full current periodic rent for such Item, but Lessor may at
any time terminate this Lease without notice and repossess such Item. The Fair
Market Value of any Item shall be the value upon which an informed and willing
seller and informed and willing buyer (other than a used equipment or scrap
dealer) would agree, each under no compulsion to buy or sell. Fair Market Rental
value for any Item shall be the value upon which an informed and willing lessee
(other than a lessee currently in possession) and informed and willing lessor,
each under no compulsion to lease, would agree. For purposes of this Section 3
only, the value shall be determined on the assumption that such Item has been
maintained and operated in the manner required by Section 8(B) hereof. Costs of
removal from the location of current use shall not be a deduction from such
value.
SECTION 4. CONDITIONS PRECEDENT.
Lessor's obligation to pay for and lease an Item is subject to the
non-existence of any Default and to Lessee's supplying the following in form and
substance satisfactory to Lessor:
A. If Lessee is a corporation, if requested by Lessor, its articles of
incorporation, by-laws, board resolutions, and incumbency certificates, each
certified by its secretary or assistant secretary, evidencing the duly
authorized execution, delivery and performance of this Agreement and each Lease;
B. If Lessee is not a corporation, Lessee's partnership agreement,
trust indenture, assumed name filings or such other documents as Lessor may
require;
C. Evidence of compliance with the insurance provisions hereof;
D. If requested by Lessor, a favorable written opinion of Lessee's
counsel as to the matters in Section 5(B)(i)-(v) and any other matters Lessor
reasonably requests;
E. A completed and signed Schedule;
F. An invoice of the vendor of the Item; and
G. If requested by Lessor, bills of sale, financing statements, lien
waivers and any other documents reasonably necessary in Lessor's opinion. The
effectiveness of any Lease identified in the Schedule as a UCC 2A "finance
lease" is conditioned upon Lessee's approval of the contract for Lessor's
purchase of the Equipment.
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SECTION 5. REPRESENTATIONS AND WARRANTIES.
A. Lessor warrants that if no Default has occurred, Lessee's use of
each Item under a Lease shall not be interrupted by Lessor or anyone claiming
solely through Lessor. The foregoing is in lieu of all other written, oral or
implied warranties of Lessor, and Lessor shall not, due to this or any other
document or any other reason, be deemed to have made any other warranties.
LESSOR LEASES THE EQUIPMENT AS IS, WITHOUT WARRANTY OR REPRESENTATION, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, (i) ITS DESIGN,
PERFORMANCE, SPECIFICATIONS OR CONDITION, (ii) ITS MERCHANTABILITY, (iii) ITS
FITNESS FOR ANY PARTICULAR PURPOSE, (iv) LESSOR'S TITLE THERETO, (v)
INTERFERENCE BY ANY PARTY OTHER THAN LESSOR WITH THE QUIET ENJOYMENT THEREOF, OR
(vi) THE QUALITY OF ITS MATERIAL OR WORKMANSHIP OR ITS CONFORMITY TO THE
SPECIFICATIONS OF ANY RELATED PURCHASE DOCUMENT. AS BETWEEN LESSOR AND LESSEE,
ALL SUCH RISKS SHALL BE BORNE BY LESSEE. During the Lease, Lessee may, at its
expense, assert for Lessor's account Lessor's rights under any warranty on the
Equipment, and Lessor will cooperate with Lessee in doing so if Lessee
indemnifies and holds Lessor harmless from and against all related claims,
costs, losses and liabilities. Any warranty payment received shall be applied to
restore the Equipment to the condition it should have been in when delivered to
Lessee, ordinary wear and tear excepted, with any balance retained by Lessor.
Lessor shall not be responsible for special or consequential damages relating to
its obligations or performance under the Agreement.
B. Lessee represents and warrants that:
(i) Lessee, if a corporation, is duly organized and in
good standing and is qualified to do business wherever necessary for its
operations;
(ii) Lessee, if an entity other than a corporation, is
duly organized, registered and validly existing under applicable law and is
qualified to do business wherever necessary for its operations;
(iii) Lessee has duly authorized this Agreement, and its
execution, delivery and performance do not require any further approval or
notice and do not contravene Lessee's organizational documents or by-laws, any
other agreement, or any law or regulation;
(iv) The Agreement is Lessee's legal, valid and
enforceable obligation;
(v) There are no judgments or pending or threatened
proceedings which may materially adversely affect Lessee; (vi)Lessee's balance
sheet, income statement and statement of cash flows for its most recent fiscal
year have been given to Lessor and follow generally accepted accounting
principles consistently applied, and there has been no material adverse change
in Lessee's condition or operations since the date thereof;
(vii) Lessee shall keep the Equipment duly registered in
Lessor's name and file timely any required reports regarding the Equipment, or,
at Lessor's request, Lessee shall give Lessor all information necessary for
Lessor to do so; and
(viii) Lessee shall not dissolve, consolidate with, or merge
into any other entity or transfer or lease substantially all of its assets
without Lessor's prior written consent.
SECTION 6. MORTGAGES, LIENS, PERSONALTY, ETC.
Lessee will not directly or indirectly create, incur, assume or permit
the existence of any mortgage, security interest, pledge, lien, charge,
encumbrance or claim on or with respect to the Equipment, title thereto or any
interest therein except (a) the respective rights of Lessor and Lessee as herein
provided, (b) liens or encumbrances which result from claims against Lessor
except to the extent that such liens and encumbrances arise from failure of
Lessee to perform any of Lessee's obligations hereunder, and (c) liens for taxes
either not yet due or being contested in good faith and by appropriate
proceedings. Lessee will promptly, at its own expense, take such action as may
be necessary duly to discharge any such mortgage, security interest, pledge,
lien, charge encumbrance or claim not specifically excepted above. The Items
shall be personal property even if attached to the real property.
SECTION 7. TAXES.
Lessee agrees to pay promptly when due and to indemnify and hold Lessor
harmless from all sales, use, personal property, leasing, leasing use, stamp or
other taxes, levies, imposts, duties, charges, fees or withholding of any nature
(together with any penalties, fines or interest thereon) imposed against Lessor,
Lessee or the Equipment by any federal, state, local or foreign government or
taxing authority upon or with respect to the Equipment or upon the purchase,
ownership, delivery, leasing, possession, use operation, return or other
disposition thereof, or upon the rentals, receipts or earnings arising
therefrom, or upon or with respect to any Lease (excluding, however, federal,
state and local taxes on or measured solely by the net income of Lessor) unless,
and to the extent only, that any such tax, levy, impost, duty, charge or
withholding is being contested by Lessee in good faith and by appropriate
proceedings. In case any report or return is required to be made with respect to
any obligation of Lessee under this Section, Lessee will notify Lessor of such
requirement and make such report or return in such manner as shall be
satisfactory to Lessor. Lessor agrees to cooperate fully with lessee in the
preparation of any such reports or returns. Lessee agrees to remit all
applicable sales or use taxes to Lessor promptly upon receipt of an invoice
therefor.
SECTION 8. TITLE; USE, MAINTENANCE AND OPERATION, IDENTIFICATION MARKING.
A. Lessor shall retain full legal title to the Equipment
notwithstanding delivery to and possession and use thereof by Lessee. Upon
delivery of the Equipment Lessee shall cause said Equipment to be duly
registered, and at all times thereafter to remain duly registered, in the name
of Lessor, or at Lessor's request shall furnish to Lessor such information as
may be required to enable Lessor to make application for such registration and
shall promptly furnish to Lessor such information as may be required to enable
Lessor to file timely any reports required to be filed by it as Lessor under the
Lease or as the owner of the Equipment with any governmental authority.
B. Lessee agrees that the Equipment will be used solely in the conduct
of its business. Lessee further agrees to comply in all material respects with
all applicable governmental laws, regulations, requirements and rules with
respect to the use, maintenance and operation of each Item of Equipment. Lessee
agrees that each Item of Equipment (except Items which prior to the execution of
this Lease Lessee shall have advised Lessor in writing are normally used or to
be used in more than one location) will be kept at the address shown in the
Schedules with respect to such Item unless Lessor shall first otherwise consent
in writing. Lessee will immediately give written notice to Lessor of any change
in its principal place of business.
Lessee, at its own cost and expense, will repair and maintain the
Equipment so as to keep it in a good condition as when delivered to Lessee
hereunder, ordinary wear and tear excepted. Lessee may from time to time add
further parts or accessories to any Item of Equipment provided that such
addition does not impair the value, utility or warranties of such Item of
Equipment and is readily removable without causing material damage to such Item.
C. Lessee agrees at its own cost and expense to place such markings,
plates or other identification on the Equipment showing Lessor's title thereto
as Lessor may from time to time request, provided such identification markings
are placed so as not to interfere with the usefulness of such Equipment. Except
as above provided, Lessee will not allow the name of any person, association or
corporation to be placed on the Equipment as a designation that might be
interpreted as a claim of ownership.
D. Upon request, Lessee shall inform Lessor of each Item's location and
make each Item and Lessee's related records available for inspection at any
reasonable time.
SECTION 9. LOSS OR DESTRUCTION.
If any Item is lost or stolen or becomes permanently unfit for use for
any reason (an "Event of Loss"), Lessee shall, within ten (10) days, notify
Lessor in writing and shall, at Lessor's option, either (i) replace it with
property acceptable to Lessor within thirty (30) days after the Event of Loss or
(ii) on the first Rental Payment Date at least twenty (20) days after the Event
of Loss, pay to Lessor the value of its interest in the Item and the remainder
of the Lease thereof (plus compensation for the loss of Tax Benefits, if
applicable), as such value is established by Lessor from time to time, (the
"Casualty Value") and all unpaid amounts due with respect to such Item through
that date. Lessor may apply the Casualty Value payment to Lessee's obligations,
whether or not matured, in any order, at Lessor's option. Upon request, Lessor
will furnish Lessee a schedule of the Casualty Values for any Item.
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If Lessee replaces such Item, the replacement shall be of like kind, be
free of all liens, encumbrances and rights of others, and have a fair market
value substantially equal to the value the replaced Item would have if it were
in the condition required by the Lease. The replacement shall immediately become
Lessor's property and part of the Equipment for all purposes, and Lessee's
Rental obligation shall not change. Lessee shall execute any documents Lessor
deems necessary to ensure Lessor's full title thereto. The replaced Item shall
no longer be part of the Equipment, and Lessor will transfer its interest
therein to Lessee without recourse or warranty.
If Lessee does not replace such Item, upon payment of all amounts due
with respect thereto, Lessee's Rental obligation with respect to the Item shall
cease, and Lessor will transfer its interest in the Item to Lessee, without
recourse or warranty, "as is and where is."
SECTION 10. INSURANCE
At its own expense, Lessee shall maintain comprehensive general
liability, products liability and property damage insurance acceptable to Lessor
with respect to each Item in an amount not less than the amount specified in the
Schedules relating thereto and, in any event, in an amount sufficient to provide
full coverage against all loss and liability. Each such insurance policy shall
name Lessor as an insured and as loss payee and shall provide that it may be
altered or canceled by the insurer only after thirty (30) days prior written
notice to Lessor. Lessee agrees to cause certificates or other evidence
satisfactory to Lessor showing the existence of such insurance, the terms and
conditions of each policy and payment of the premium therefor to be delivered to
Lessor upon demand thirty (30) days prior to expiration or cancellation showing
renewal or replacement of such policy. In the event Lessee shall fail to obtain
and/or maintain insurance in accordance with the provisions of this paragraph,
Lessor shall have the right to obtain such insurance as Lessor deems necessary,
and Lessee shall reimburse Lessor for the payment by Lessor of all premiums
therefor together with interest computed from the date of Lessor's payment at
the rate of eighteen percent (18%) per annum. If (a) any insurance proceeds are
received with respect to a loss with respect to Equipment which does not
constitute an Event of Loss under Section 9, or (b) if Lessee elects to replace
an Item or Items suffering an Event of Loss under the provisions of Section 9
hereof, proceeds will be applied in payment for repairs and replacement required
pursuant to Section 8 hereof, or to reimburse Lessee having made such payments.
SECTION 11. INDEMNIFICATION.
A. Lessee shall indemnify and hold harmless Lessor and its assignees
and their agents and employees from and against all claims, liability (including
strict tort and strict products liability), or expenses (including attorneys'
fees) relating to (i) the Equipment or any part thereof, or its construction,
purchase, delivery, installation, ownership, leasing, use, maintenance, repair,
replacement, operation, return or condition (whether defects are latent or
discoverable), (ii) Lessee's failure to accept the Equipment "as is," (iii) any
actual or alleged patent or trademark infringement or act or omission of Lessee
or its agents or employees, or (iv) Lessee's financial or tax accounting. This
Section shall be effective from the date the first Item is ordered even though
not accepted by Lessee. Lessee shall give Lessor prompt notice of any claim or
liability indemnified against.
B. (OPTIONAL. This Section 11 (B) shall apply if so indicated in the
applicable Schedule.) Lessor shall be entitled to the following
benefits (the "Tax Benefits"):(i) Lessor will be the owner and
lessor of each Item for all purposes; (ii) Lessor will have a basis
in each Item under Section 1012 of the Internal Revenue Code of
1986, as amended, (the "Code") equal to the invoice purchase price
indicated in the Schedule therefor; (iii) Each Item will be
"3-year," "5-year," "7-year," "10-year," "15-year," or "20-year"
property (as defined in Section 168(e) of the Code) as indicated in
the Schedule, and Lessor will be allowed 100% of the deduction with
respect to each Item in each recovery year as provided in Sections
168(b) and (c) of the Code. Neither Lessee nor any of its affiliates
will at any time, take or fail to take any action inconsistent with
the Tax Benefits or which would increase the amount Lessor is
required to take into income with respect to any Item. Lessee shall
keep and make available for Lessor's inspection and copying all
records necessary to facilitate the foregoing. Lessee represents and
warrants that Lessor will be the owner of each Item on or before its
Acceptance Date and that each Item will be "placed in service"
(within the meaning of the Code and related regulations) no later
than the end of the calendar year in which the Acceptance Date
occurs. If Lessor shall lose or shall not have the right to any of
the Tax Benefits for any reason other than (i) Lessor's sale of an
Item before any Event of Default, (ii) Lessor's failure to claim the
Tax Benefits, (iii) a change in the Lessor's business, or (iv)
Lessor's failure to have sufficient income to use the Tax Benefits,
then Lessee shall pay Lessor, on demand, an amount which, in
Lessor's reasonable opinion and after deduction of all related
taxes, will provide Lessor with the same net after-tax return Lessor
would have had through Expiration if there had been no such loss.
C. Lessor's rights under Section 11 shall survive Expiration or
Termination with respect to any Item. For purposes of Section 11, "Lessor" shall
include any group of which Lessor is a member which files a consolidated income
tax return.
SECTION 12. ASSIGNMENTS AND SUBLEASES.
Lessor may at any time, without notice, grant a security interest in,
transfer or assign any or all Leases, Items, or rights and remedies as Lessor to
any party, with such party assuming all, part or none of Lessor's obligations.
Lessee shall not assert against such party any defense, counterclaim, or offset
Lessee may have against Lessor. Lessee acknowledges that any such grant,
transfer or assignment would not materially change Lessee's duties, risks or
interests under the Agreement.
LESSEE SHALL NOT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUBLEASE OR
RELINQUISH POSSESSION OF ANY ITEM OR ASSIGN ANY OF ITS RIGHTS OR DELEGATE ANY OF
ITS OBLIGATIONS HEREUNDER. Lessee grants Lessor a security interest in any
existing or future sublease of an Item and the proceeds thereof, whether or not
such sublease is prohibited.
SECTION 13. DEFAULT; REMEDIES.
A. The following shall be Events of Default: (i) Lessee's failure to
pay any Rental when due which continues unremedied for ten (10) days; (ii)
Lessee's failure to maintain required insurance; (iii) Lessee's failure to pay
any amount other than Rental or perform any obligation under the Agreement for
ten (10) days after notice of non-performance from Lessor; (iv) The failure of
any of Lessee's representations or warranties herein or in any related document
to be correct in any respect at any time; (v) Lessee's insolvency, bankruptcy,
or assignment for the benefit of creditors, or the appointment of or Lessee's
consent to the appointment of a trustee or receiver for Lessee or a substantial
part of its property; (vi) Any event of default or default as described in the
documentation executed in connection with any other credit or lease facility
extended by Lessor, or any affiliated company of Lessor, to Lessee.(vii)
Lessee's failure to perform any obligation under any agreement with Lessor or
any other creditor; (viii) The existence of any judgments or any pending or
threatened proceedings which may adversely affect Lessee; (ix) An adverse change
in Lessee's financial condition as a result of which Lessor, in good faith,
deems itself or any Item to be insecure; or (x) The occurrence of any of the
above Events of Default with regard to any guarantor of any of Lessee's
obligations under the Agreement.
B. "Default" shall mean an Event of Default or an event which would be
an Event of Default with only the passage of time or the giving of notice or
both.
C. At any time after an Event of Default, Lessor may, at its option,
exercise any one or more of the following remedies and any other remedies under
applicable law: (i) By written notice, terminate any or all Leases, whereupon
Lessee's rights to possess and use the Equipment shall cease; (ii) By court
action, enforce Lessee's performance of the Agreement and/or recover damages for
its breach; (iii) Whether or not a Lease is terminated, cause Lessee to promptly
return such Equipment in accordance with Section 3; (iv) At any hour, without
notice, and without liability except for malicious acts, enter Lessee's or any
other premises and take possession of or render unusable any Item and
attachments thereon, whether or not the property of Lessor; (v) Retain, use,
re-lease or sell at public or private sale the Item and attachments thereon;
(vi) Recover (a) all accrued and unpaid Rental and other amounts payable under
the Agreement (including all of Lessor's costs and any decrease in the value of
any Item resulting from Lessee's failure to maintain, operate, remove, or
deliver the Item as required by the Lease) and (b) as liquidated damages and not
as a penalty, (1) the amount of each remaining Rental payment (which otherwise
would have accrued thereafter) and the Fair Market Value of each Item (assuming
its sale at Expiration) all discounted at the rate of six percent (6%) per annum
to the date the Item is returned to or recovered by Lessor (or if it is not
returned or recovered, to the
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date of judgment against Lessee) minus (2) the Fair Market Value of such Item on
the date of such return, recovery or judgment; (vii) Recover (a) all of its
related expenses, collection costs and costs of remarketing the Equipment,
including employees' salaries and reasonable attorneys' fees (including fees on
appeal), (b) interest on all amounts payable under any Lease at the rate of
eighteen percent (18%) per annum or the maximum rate allowed by law, whichever
is less, compounded daily, both before and after judgment, and (c) if
applicable, an amount sufficient in Lessor's opinion to compensate Lessor for
the related loss of Tax Benefits.
D. Lessor's remedies shall be cumulative and in addition to all other
legal or equitable remedies. No express or implied waiver of any Default shall
waive any later Default. Lessor's complete or partial failure to exercise or
delay in exercising any right shall not waive or exhaust such right or any other
right.
E. To the extent allowed, Lessee waives (i) all rights under UCC 2A
Sections 508-522 or any similar laws, including rights to cancel or repudiate;
reject or revoke acceptance; claim a security interest; deduct claimed damages;
accept partial delivery; cover; recover general, special, incidental or
consequential damages; and seek specific performance, replevin, or the like and
(ii) any rights now or hereafter conferred by law requiring Lessor to sell,
lease or use any Item to mitigate damages or which might otherwise modify
Lessor's rights or remedies.
F. Any action by Lessee against Lessor relating to the Agreement must
be commenced within one (1) year after any such cause of action accrues.
SECTION 14. LESSOR'S PERFORMANCE FOR LESSEE.
Lessee authorizes Lessor or Lessor's agent to sign and/or file, on
Lessee's behalf, financing statements, reports and similar documents with
respect to any Item and all related replacements, modifications, attachments and
additions and the proceeds thereof. If Lessee fails to perform any obligation
under the Agreement, Lessor may do so, but shall not be required to, make
payment or perform or comply with any covenant or agreement contained herein,
and all reasonable expenses of Lessor incurred in connection therewith shall be
payable by Lessee upon demand together with interest as set out in Section 2(B)
herein.
SECTION 15. FURTHER ASSURANCES; FINANCIAL INFORMATION.
Lessee will promptly execute and deliver to Lessor such documents and
take such action as Lessor may request in order to carry out the intent of the
Agreement and protect Lessor's rights. Lessee, at its sole expense, shall
deliver to Lessor a balance sheet, income statement and statement of cash flows
prepared by accountants acceptable to Lessor within one hundred twenty (120)
days after the close of each fiscal year of Lessee and within forty-five (45)
days after the close of each fiscal quarter and shall authorize the filing of
financing statements with respect to the Equipment in accordance with the laws
of such jurisdictions as Lessor may from time to time deem advisable.
SECTION 16. NOTICES AND PAYMENTS.
Notices and payments to Lessor shall be sent to or made at the
following address: First Security Leasing Company, 381 East Broadway, 2nd Floor,
Salt Lake City, Utah 84111, or such other address as Lessor may designate in
writing. Notices to Lessee may be sent to the address on the signature page
hereof. All required notices shall be in writing and be effective when placed in
the United States mail, first class postage prepaid.
SECTION 17. EXECUTION OF FINANCING STATEMENTS AND TITLE DOCUMENTS.
Lessee authorizes Lessor to file financing statements describing the
Equipment. Additionally, Lessee agrees to execute and deliver to Lessor such
documents and/or title documents as reasonably requested by Lessor to protect
and identify Lessor's interest in the Equipment. Lessee appoints Lessor, or
Lessor's agents or assigns, its true and lawful attorney-in-fact to prepare, to
execute and to sign any instrument concerning the Equipment, to sign the name of
Lessee with the same force and effect as if signed by Lessee, and to file the
same at the locations reasonably determined by Lessor.
SECTION 18. MISCELLANEOUS.
A. If there is more than one Lessee, their liability shall be joint and
several, and each Lessee has the authority to enter into written agreements with
Lessor modifying or extending the terms of the Agreement on behalf of each other
Lessee. If used herein or in any related document, the term "Co-lessee" or
"Co-lessees" shall be synonymous with "Lessee" as defined herein.
B. Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, Lessee hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
C. The Agreement may only be changed by a writing signed by the party
against which enforcement of the change is sought. No third-party manufacturer,
supplier, salesperson, or broker, or any agent thereof, is Lessor's agent or is
authorized to waive or modify any provision of the Agreement.
D. Lessee shall have no interest in any Item except as specified in the
Agreement.
E. THE AGREEMENT SHALL BE GOVERNED BY UTAH LAW. In order to induce
Lessor to enter into the Agreement (and, if Lessee executes it outside of Utah,
in consideration for Lessor allowing Lessee to do so) Lessee agrees that ANY
PROCEEDING AGAINST LESSEE MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION
IN UTAH AND LESSEE UNCONDITIONALLY AGREES TO BE BOUND BY JUDGMENTS OF SUCH
COURTS. If Lessee is not a Utah resident, service of process upon Lessee by mail
shall be sufficient. Lessor may serve process in any other manner and bring
proceedings in any jurisdiction. LESSEE WAIVES ANY RIGHT TO A JURY TRIAL IN ANY
PROCEEDING CONCERNING THE AGREEMENT.
F. The word "including" as used in the Agreement shall mean "including,
but not limited to."
G. The Agreement and related documents executed by the parties contain
their entire agreement, and there are no related oral agreements,
representations or warranties. The Agreement shall benefit and be binding upon
the parties' heirs, personal representatives, successors and assigns.
LESSEE ACKNOWLEDGES THAT IT HAS READ THE ENTIRE MASTER LEASE.
IN WITNESS WHEREOF, the parties have caused this Master Lease to be
executed as of AUGUST 3, 2000, and Lessee's signatories warrant their authority
to sign on Lessee's behalf.
4
<PAGE> 5
Lease No. 001-5001733
FIRST SECURITY BANK, N.A.
LEASE SCHEDULE TO
MASTER EQUIPMENT LEASE AGREEMENT
Master Equipment Lease Schedule
This Lease Schedule to Master Equipment Lease Agreement ("Lease
Schedule") constitutes a separate Lease pursuant to the Master Equipment Lease
Agreement between FIRST SECURITY BANK, N.A. ("Lessor") and the lessee or lessees
designated below (Lessee") dated as of AUGUST 3, 2000 (the "Master Lease"), all
terms and conditions of which are incorporated herein. Lessor and Lessee
reaffirm as of the date hereof all terms, representations and warranties in the
Master Lease. A copy of the signed Master Lease attached to the Lease Schedule,
which attachment shall adopt the copied signatures on the Master Lease as of the
date of the Lease Schedule, shall constitute an original lease. This Lease shall
alone constitute the chattel paper for purposes of perfecting a security
interest.
DESCRIPTION OF EQUIPMENT
<TABLE>
<CAPTION>
ID NEW INVOICE
OR OR PURCHASE
QUANTITY VENDOR DESCRIPTION SERIAL # USED PRICE
-------- ------ ----------- -------- ---- --------
<S> <C> <C> <C> <C> <C>
1 SEE THE ATTACHED EXHIBIT A FOR A
COMPLETE DESCRIPTION OF EQUIPMENT. USED $2,000,000.00
TOTAL INVOICE PURCHASE PRICE: $2,000,000.00
</TABLE>
B. TAX:
Section 11(B) of Master Lease shall apply. Recovery Class: 5 -year property.
C. TERM EXPIRATION: 66 months (the "Expiration" or "Expiration Date").
D. RENTAL:
1. Frequency : MONTHLY
2. Advanced or Arrears: ADVANCE
3. Interim Rental equal to N/A of each Item's Invoice Purchase Price (as
shown in Section A of this Lease Schedule) for each day from (and
including) its Acceptance Date to (but excluding) N/A (the "Interim
Rental Payment Date") shall be due on the Interim Rental Payment Date.
4. Basic Rental equal to 0.017397 of the Total Invoice Purchase Price
shall be due on each of the following Basic Rental Payment Dates:
AUGUST 8, 2000 and the same day of each MONTH thereafter, with the
final payment JANUARY 8, 2006.
E. PURCHASE OPTION AMOUNT:
FAIR MARKET VALUE
F. LOCATION:
1. The Equipment shall be located at:
Address: VARIOUS
County: VARIOUS
G. SECURITY DEPOSIT:
NOT REQUIRED
H. INSURANCE.
The minimum amount of insurance to be provided by Lessee as
required under the terms of the Master Lease shall be as follows:
1. Liability:
$2,000,000.00 each individual
$2,000,000.00 each accident
$2,000,000.00 property damage liability
2. Physical Damage and Loss: $ 2,000,000.00
3. Additional riders, exclusions or special terms required by Lessor: N/A
I. OTHER TERMS.
PLEASE SEE THE ATTACHED EXHIBIT B FOR THE EARLY BUYOUT OPTION.
J. FINANCE LEASE.
As to an Item for which a vendor is shown, this is a UCC 2A "finance
lease." Lessee approves the purchase contract for such Item and
acknowledges that (a) it has received a copy of such contract if such
contract is in writing, (b) Lessor hereby informs it of the vendor's
identity and that it may have rights under such contract, and (c) Lessor
hereby advises it to contact the vendor for a description of such rights.
K. EXECUTION OF FINANCING STATEMENTS AND TITLE DOCUMENTS.
Lessee authorizes Lessor to file financing statements describing the
Equipment. Additionally, Lessee agrees to execute and deliver to Lessor
such other documents and/or title documents as reasonably requested by
Lessor to protect and identify Lessor's interest in the Equipment. Lessee
appoints and authorizes Lessor, or Lessor's agents or assigns, its true and
lawful attorney-in-fact to prepare, to execute and to sign any instrument
concerning the Equipment, to sign the name of Lessee with the same force
and effect as if signed by Lessee, and to file the same at the locations
reasonably determined by Lessor.
L. ADDITIONAL MAINTENANCE AND RETURN PROVISIONS.
In addition to the return and maintenance provisions of the Master
Lease, the provisions contained in the attached exhibit are hereby
incorporated into this Lease Schedule and Master Lease by reference.
IN WITNESS WHEREOF, the parties have executed this Lease Schedule as of
AUGUST 3, 2000 and Lessee's signatories warrant their authority to sign on
Lessee's behalf.
<TABLE>
<S> <C>
LESSEE: AMERICAN ECOLOGY CORPORATION LESSOR: FIRST SECURITY BANK, N.A.
a(n) DELAWARE CORPORATION BY:
----------------------------
BY: TITLE:
---------------------------- ----------------------------
TITLE:
---------------------------- Address: c/o First Security Leasing Company
Address: 805 W IDAHO ST, SUITE 200 381 East Broadway, 2nd Floor
BOISE, ID 83702 Salt Lake City, Utah 84111
Federal ID or
Social Security Number: 95-3889638
</TABLE>
5
<PAGE> 6
Lease No. 001-5001733
FIRST SECURITY BANK, N.A.
LEASE SCHEDULE TO
MASTER EQUIPMENT LEASE AGREEMENT
LESSEE: AMERICAN ECOLOGY CORPORATION
a(n) DELAWARE CORPORATION
BY:
----------------------------
TITLE:
----------------------------
Address: 805 W IDAHO ST, SUITE 200
BOISE, ID 83702
Federal ID or
Social Security Number: 95-3889638
6
<PAGE> 7
Lease No. 001-5001733
FIRST SECURITY BANK, N.A.
LEASE SCHEDULE TO
MASTER EQUIPMENT LEASE AGREEMENT
LESSOR: FIRST SECURITY BANK, N.A.
BY:
----------------------------
TITLE:
----------------------------
Address: c/o First Security Leasing Company
381 East Broadway, 2nd Floor
Salt Lake City, Utah 84111
7
