U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 1998, or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ____________
Commission file number 000-25866
PHOENIX GOLD INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
OREGON 93-1066325
State or other jurisdiction I.R.S. Employer
of incorporation or organization) Identification Number)
9300 NORTH DECATUR STREET, PORTLAND, OREGON 97203
(Address of principal executive offices)(Zip code)
(503) 288-2008
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [ X ] No [ ]
There were 3,464,745 shares of the issuer's common stock outstanding as of
July 31, 1998.
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PHOENIX GOLD INTERNATIONAL, INC.
Form 10-Q for the Quarter Ended June 30, 1998
INDEX
Part I. FINANCIAL INFORMATION Page
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Item 1. Financial Statements
Balance Sheets at June 30, 1998(unaudited) 3
and September 30, 1997 (audited)
Statements of Earnings for the Three and 4
Nine Months Ended June 30, 1998 and 1997
(unaudited)
Statements of Cash Flows for the Nine Months 5
Ended June 30, 1998 and 1997(unaudited)
Notes to Financial Statements 6
Item 2. Management's Discussion and Analysis of 8
Financial Condition and Results of Operations
Part II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 10
SIGNATURES 11
INDEX TO EXHIBITS 12
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PHOENIX GOLD INTERNATIONAL, INC.
BALANCE SHEETS
June 30, September 30,
1998 1997
--------- --------------
(Unaudited) (Audited)
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ASSETS
Current assets:
Cash and cash equivalents.......... $ 2,597 $ 2,603
Accounts receivable, net .......... 5,218,836 5,186,630
Inventories ....................... 6,653,651 7,178,820
Prepaid expenses .................. 342,517 247,523
Deferred taxes .................... 368,000 380,000
----------- -----------
Total current assets .......... 12,585,601 12,995,576
Property and equipment, net ............ 3,048,933 3,478,827
Goodwill, net .......................... 227,608 257,324
Deferred taxes ......................... 235,000 231,000
Other assets ........................... 482,419 492,422
----------- ----------
Total assets ................... $16,579,561 $17,455,149
=========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable ....................... $ 1,450,223 $ 1,558,749
Note payable ........................... 2,087,456 3,147,936
Accrued payroll and benefits ........... 249,787 373,512
Other accrued expenses ................. 587,338 241,337
Current portion of long-term obligations 345,131 395,669
---------- ----------
Total current liabilities .......... 4,719,935 5,717,203
Long-term obligations .................. 249,118 494,927
Shareholders' equity:
Preferred stock;
Authorized - 5,000,000 shares; none outstanding
Common stock, no par value;
Authorized - 20,000,000 shares
Issued and outstanding - 3,464,745
and 3,458,985 shares 7,548,822 7,521,865
Retained earnings .................. 4,061,686 3,721,154
----------- ----------
Total shareholders' equity ...... 11,610,508 11,243,019
---------- -----------
Total liabilities and
shareholders' equity ...........$16,579,561 $ 17,455,149
========== ==========
See Notes to Financial Statements
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PHOENIX GOLD INTERNATIONAL, INC.
STATEMENTS OF EARNINGS
(Unaudited)
Three Months Ended Nine Months Ended
June 30 June 30
--------------- --------------------
1998 1997 1998 1997
--------------- --------------------
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Net sales ...........$ 7,687,304 $ 8,263,509 $ 20,358,800 $ 20,099,215
Cost of sales ....... .5,390,185 5,781,313 14,859,007 15,141,842
----------- ----------- ------------ ------------
Gross profit .... 2,297,119 2,482,196 5,499,793 4,957,373
Operating expenses:
Selling ........ 1,141,146 871,457 2,863,557 2,383,211
General and
administrative 619,999 522,082 1,805,450 1,781,004
----------- ------------ ------------ ------------
Total operating
expenses ...... 1,761,145 1,393,539 4,669,007 4,164,215
----------- ----------- ------------ ------------
Income from
operations ......... 535,974 1,088,657 830,786 793,158
Other income (expense):
Interest expense (86,400) (131,616) (271,190) (383,951)
Other income, net 961 3,892 8,936 5,169
----------- ----------- ------------ ------------
Total other income
(expense) (85,439) (127,724) (262,254) (378,782)
----------- ----------- ------------ ------------
Earnings before
income taxes 450,535 960,933 568,532 414,376
Income tax expense (181,000) (375,000) (228,000) (166,000)
----------- ----------- ------------ ------------
Net earnings .... $ 269,535 $ 585,933 $ 340,532 $ 248,376
=========== =========== ============ ============
Net earnings per share
- basic and
diluted $ 0.08 $ 0.17 $ 0.10 $ 0.07
=========== =========== ============ ============
See Notes to Financial Statements
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PHOENIX GOLD INTERNATIONAL, INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
Nine Months Ended
1998 1997
---------- -----------
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Cash flows from operating activities:
Net earnings ................................................................ $ 340,532 $ 248,376
Adjustments to reconcile net earnings to
net cash provided by (used in) operating activities:
Depreciation and amortization ........................................... 770,734 728,698
Deferred Taxes 8,000 132,761
Changes in operating assets and liabilities:
Accounts receivable ................................................ (32,206) (37,789)
Inventories ......................................................... 525,169 1,106,600
Prepaid expenses .................................................... (94,994) (11,954)
Other Assets........................................................ (13,955) (39,128)
Accounts payable ................................................... (108,526) (1,554,592)
Accrued expenses ................................................... 222,276 (367,401)
--------- -----------
Net cash provided by operating activities .................................... 1,617,030 205,571
Cash flows from investing activities:
Capital expenditures, net ...................................................... (287,166) (288,463)
--------- ----------
Net cash used in investing activities ........................................ (287,166) (288,463)
Cash flows from financing activities:
Notes payable, net ........................................................ (1,060,480) (606,364)
Proceeds from long-term obligations ......................................... - 800,000
Repayment of long-term obligations ......................................... (296,347) (154,668)
Proceeds from exercise of stock options ................................... 26,957 --
---------- -----------
Net cash provided by (used in) financing activities ....................... (1,329,870) 82,894
----------- ----------
Increase (decrease) in cash and cash equivalents (6) 2
Cash and cash equivalents, beginning of period ................................. 2,603 2,599
--------- ---------
Cash and cash equivalents, end of period .......................................$ 2,597 $ 2,601
======== ==========
Supplemental disclosures:
Cash paid for interest ......................................................... 285,406 $ 386,497
Cash paid for income taxes .................................................... 43,796 61,483
Equipment financed by long-term obligation .................................... -- 36,168
See Notes to Financial Statements
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PHOENIX GOLD INTERNATIONAL, INC.
Notes to Financial Statements
(Unaudited)
Note 1 - UNAUDITED FINANCIAL STATEMENTS
Certain information and note disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been omitted from these unaudited financial statements. These unaudited
financial statements should be read in conjunction with the financial statements
and notes included in the Company's Annual Report on Form 10-KSB for the year
ended September 30, 1997 filed with the Securities and Exchange Commission. The
results of operations for the three- and nine-month periods ended June 30, 1998
are not necessarily indicative of the operating results for the full year. In
the opinion of management, all adjustments, consisting only of normal recurring
accruals, have been made to present fairly the Company's financial position at
June 30, 1998 and the results of its operations for the three- and nine-month
periods ended June 30, 1998 and 1997 and its cash flows for the nine-months
ended June 30, 1998 and 1997.
Note 2 - REPORTING PERIODS
The Company's fiscal year is the 52-week or 53-week period ending the last
Sunday in September. Fiscal 1998 and fiscal 1997 are 52-week years and all
quarters are 13-week periods. For presentation convenience, the Company has
indicated in these financial statements that its fiscal year ended on September
30 and that the three and nine months presented ended on June 30.
Note 3 - PROSPECTIVE ACCOUNTING CHANGES
In June 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 130, Reporting
Comprehensive Income. SFAS No. 130 establishes requirements for disclosure of
comprehensive income and becomes effective for the year ending September 30,
1999. Reclassification of earlier financial statements for comparative purposes
is required.
In June 1997, the FASB issued SFAS No. 131, Disclosures about Segments of
an Enterprise and Related Information. SFAS No. 131 establishes standards for
disclosure about operating segments in annual financial statements and selected
information in interim financial reports. It also establishes standards for
related disclosures about products and services, geographic areas and major
customers. This statement supersedes SFAS No. 14, Financial Reporting for
Segments of a Business Enterprise. SFAS No. 131 will be effective for the year
ending September 30, 1999 and requires that comparative information from earlier
years be restated to conform to the requirements of this standard.
Note 4 - INVENTORIES
Inventories are stated at the lower of cost or market and consist of the
following:
June 30, September 30,
1998 1997
---------- ----------
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Raw materials ............................ $2,745,885 $2,818,409
Work-in-process 6,490 11,867
Finished goods ........................... 3,793,744 4,204,428
Supplies ................................. 107,532 144,116
========= ==========
Total inventories .................... $6,653,651 $7,178,820
========= ==========
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Note 5 - PROPERTY AND EQUIPMENT
Property and equipment consist of the following:
June 30, September 30,
1998 1997
-------------- -----------------
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Machinery, equipment, and vehicles $ 4,776,742 $ 4,434,003
Leasehold improvements 1,637,225 1,590,012
Construction in progress 44,291 155,052
-------------- --------------
6,458,258 6,179,067
Less accumulated depreciation
and amortization (3,409,325) (2,700,240)
============== ==============
Total property and equipment, net $ 3,048,933 $ 3,478,827
============== ==============
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Note 6 - NOTE PAYABLE
During December 1997, the Company renewed the $5.5 million bank operating
line of credit through December 1998. Borrowings under the renewed line of
credit are limited to eligible accounts receivable and inventories and are
subject to certain additional limits. Interest on borrowings is equal to the
bank's prime lending rate (8.5% at June 30, 1998) plus an additional percentage
based on debt service coverage. Beginning January 1, 1998, the additional
percentage was 1.00% which decreased to 0.50% effective April 1, 1998 and
decreased to 0.00% effective July 1, 1998. Borrowings under the line of credit
are secured only by accounts receivable, inventories and certain equipment. The
line of credit contains covenants which require a minimum level of tangible net
worth and minimum ratios of current assets to current liabilities and debt
service coverage. As of June 30, 1998, the Company was in compliance with the
covenants.
Note 7 - EARNINGS PER SHARE
Effective beginning in fiscal 1998, the Company adopted SFAS No. 128,
Earnings Per Share. SFAS No. 128 established new standards for computing and
presenting earnings per share. The earnings per share calculation is as follows:
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Three Months Ended Nine Months Ended
June 30 June 30
1998 1997 1998 1997
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Net earnings $ 269,535 $ 585,933 $ 340,532 $ 248,376
==================== ===================
Shares used in per share calculation:
Weighted average
shares outstanding 3,464,745 3,464,682 3,456,915 3,455,375
Effect of dilutive options
and warrants -- 38,382 -- 72,628
---------- ---------- ---------- ----------
Weighted average shares
outstanding - diluted .... 3,464,745 3,495,297 3,464,682 3,528,003
==================== ======================
Net earnings per share -
basic and diluted .......$ 0.08 $ 0.17 $ 0.10 $ 0.07
===================== ======================
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Note 8 - SUBSEQUENT EVENT
During July 1998, the Company completed a $1,125,000 five-year lease
financing at an interest rate of 8.25%. The proceeds were used to repay
approximately $500,000 of long-term financing which had interest rates of 10.3%
and 11.1%. The remaining proceeds of approximately $625,000 were used to pay
down the bank operating line of credit. Additionally, the financing agreement
provides up to $200,000 for future equipment term financing. The agreement also
contains covenants which require a minimum level of net worth and a minimum
ratio of debt service coverage.
<PAGE>
Item 2: Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations
Net sales decreased $576,000, or 7.0%, to $7.7 million for the three months
ended June 30, 1998, compared to $8.3 million for the three months ended June
30, 1997. Sales of electronics products in the quarter ended June 30, 1998
decreased 5.9% from the quarter ended June 30, 1997. Decreased sales of
professional sound electronics was partially offset by increased sales of car
audio electronics. Sales of professional sound electronics decreased due to
softness in international markets and weaker distribution and dealer demand. Car
audio electronic sales increased due to the continuing success of the XS and QX
series of car audio amplifiers that are designed to address lower price points.
Sales of speakers decreased 14.7% due to weak international markets. Sales of
accessories decreased 3.8% in the third quarter of fiscal 1998 compared to the
corresponding quarter in fiscal 1997 due to increased competition and softness
in international markets.
Net sales for the nine months ended June 30, 1998 increased $260,000, or
1.3%, to $20.4 million from $20.1 million for the nine months ended June 30,
1997. Although sales of electronic products decreased for the three months ended
June 30, 1998, sales of such products increased 6.3% in the first nine months of
fiscal 1998 compared to the first nine months of fiscal 1997. Sales of speakers
decreased 1.9% and sales of accessories declined 3.7% between the respective
periods.
For the three months ended June 30, 1998, international sales decreased
26.8% to $2.5 million from $3.4 million in the comparable 1997 period. The
decrease resulted primarily from a 52.7% decrease in sales to Asia, a 44.6%
decrease in sales to Europe offset in part by an 14.4% increase in sales to
other international markets. International sales represented 32.3% and 41.1% of
net sales for the three months ended June 30, 1998 and 1997, respectively. The
Company also expects decreased sales to customers located in Asia during the
fourth quarter of fiscal 1998 as compared to the fourth quarter of fiscal 1997.
For the nine months ended June 30, 1998, international sales decreased
10.0% to $7.1 million from $7.9 million in the comparable 1997 period. The
decrease resulted primarily from decreased sales to Asia offset in part by
increased sales to other international markets. International sales represented
34.8% and 39.2% of net sales for the nine months ended June 30, 1998 and 1997,
respectively.
Gross profit decreased to 29.9% of net sales for the three months ended
June 30, 1998 from 30.0% of net sales for the three months ended June 30, 1997.
Gross profit increased to 27.0% of net sales for the nine months ended June 30,
1998 from 24.7% for the comparable prior period. The increase for the nine
months ended June 30, 1998 was primarily due to an increased percentage of
domestic versus international sales and changes in product mix.
Operating expenses consist of selling, general and administrative expenses.
Total operating expenses increased $368,000, or 26.4%, to $1,761,000 for the
three months ended June 30, 1998 compared to $1,394,000 for the three months
ended June 30, 1997. Operating expenses were 22.9% and 16.9% of net sales in the
respective three-month periods. Operating expenses increased $505,000, or 12.1%,
to $4,669,000 for the nine months ended June 30, 1998 compared to $4,164,000 in
the comparable period in fiscal 1997. Operating expenses were 22.9% and 20.7% of
net sales in the respective nine month periods.
Selling expenses increased $270,000, or 30.9%, to $1,141,000 for the three
months ended June 30, 1998, compared to $871,000 for the comparable 1997 period.
Selling expenses were 14.8% and 10.5% of net sales in the respective three-month
periods. Selling expenses increased 20.2% in the first nine months of fiscal
1998, to $2.9 million, compared to $2.4 million for the first nine months of
fiscal 1997. Selling expenses were 14.1% and 11.9% of net sales in the
respective nine month periods. The increased selling expenses were due to
promotion of new products and domestic sales incentive programs.
General and administrative expenses increased $98,000, or 18.8%, to
$620,000 for the three months ended June 30, 1998, compared to $522,000 for the
comparable fiscal 1997 period. General and administrative expenses were 8.1% and
6.3% of net sales in the respective three-month periods. The increase in general
and administrative expenses were due to engineering expenses for new product
development. General and administrative expenses increased $24,000, or 1.4% in
the first nine months of fiscal 1998, to $1,805,000, compared to $1,781,000 for
the first nine months of fiscal 1997. General and administrative expenses were
8.9% of net sales in each of the respective nine month periods
Interest expense decreased by $45,000 to $86,000 for the three months ended
June 30, 1998, compared to $132,000 for the three months ended June 30, 1997.
Interest expense decreased by $113,000 to $271,000 for the first nine months of
fiscal 1998 compared to $384,000 for the first nine months of fiscal 1997. The
decrease was due to decreased borrowings and decreased interest rates on the
outstanding borrowings.
Net earnings were $270,000, or $0.08 per share (basic and diluted) for the
three months ended June 30, 1998, compared to net earnings of $586,000, or $0.17
per share (basic and diluted) for the three months ended June 30, 1997. The
decrease in net earnings was due to decreased sales and increased operating
expenses. Net earnings were $341,000, or $0.10 per share (basic and diluted) for
the nine months ended June 30, 1998, compared to net earnings of $248,000, or
$0.07 per share (basic and diluted) for the comparable 1997 period. The increase
in net earnings in the most recent nine-month period was due to slightly
increased sales and improved gross profit.
Liquidity and Capital Resources
The Company's primary needs for funds are for working capital and, to a
lesser extent, capital expenditures. The Company financed its operations during
the nine months ended June 30, 1998 from cash generated from operating
activities. Net cash provided by operating activities was $1,617,000 for the
nine months ended June 30, 1998, which allowed the Company to repay
approximately $1,357,000 in current and long-term financing. When cash flow from
operations exceeds current needs, the Company pays down in part the balance
owing on its operating line of credit rather than accumulating and investing
excess cash, resulting in low reported cash balances.
During the nine months ended June 30, 1998, inventories decreased $525,000,
prepaid expenses increased $95,000, accounts payable decreased $109,000 and
accrued expenses increased $222,000, leading to an increase in working capital
of $587,000. The decrease in inventories is a result of management efforts to
reduce inventories in order to increase cash flows from operations.
The Company made capital expenditures of $287,000 for the nine months ended
June 30, 1998. Management anticipates that discretionary capital expenditures
for the remainder of fiscal 1998 will be approximately $100,000. These
anticipated expenditures will be financed from proceeds of short-term debt and
lease financing, and cash provided from operations.
During December 1997, the Company renewed the $5.5 million bank operating
line of credit through December 1998. Borrowings under the renewed line of
credit are limited to eligible accounts receivable and inventories and are
subject to certain additional limits. Interest on borrowings is equal to the
bank's prime lending rate (8.5% at June 30, 1998) plus an additional percentage
based on debt service coverage. Beginning January 1, 1998, the additional
percentage was 1.00% which decreased to 0.50% effective April 1, 1998 and
decreased to 0.00% effective July 1, 1998. Borrowings under the line of credit
are secured only by accounts receivable, inventories and certain equipment. The
line of credit contains covenants which require a minimum level of tangible net
worth and minimum ratios of current assets to current liabilities and debt
service coverage. As of June 30, 1998, the Company was eligible to borrow $5.2
million under the line of credit. Borrowings under the line of credit were $2.1
million as of that date.
Subsequent to June 30, 1998, the Company completed a $1,125,000 five-year
lease financing at an interest rate of 8.25%. The proceeds were used to repay
approximately $500,000 of long-term financing which had interest rates of 10.3%
and 11.1%. The remaining proceeds of approximately $625,000 were used to pay
down the bank operating line of credit. Additionally, the financing agreement
provides up to $200,000 for future equipment term financing. The agreement also
contains covenants which require a minimum level of net worth and a minimum
ratio of debt service coverage.
Forward-Looking Statements
This Report contains "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995, including, without limitation,
statements as to expectations, beliefs and future financial performance, that
are based on current expectations and are subject to certain risks, trends and
uncertainties that could cause actual results to vary from those projected,
which variances may have a material adverse effect on the Company. Among the
factors that could cause actual results to differ materially are the following:
business conditions and growth in the car audio, professional sound and custom
audio/video and home theater markets and the general economy; business
conditions in international markets; the timing and size of orders by
distributors and OEM customers; competitive factors such as rival products and
price pressures; the failure of new products to compete successfully in existing
or new markets; the failure to achieve timely improvement in the manufacturing
ramp with respect to new products; changes in product mix; availability and
price of components, subassemblies and products supplied by third party vendors;
and cost and yield issues associated with production at the Company's factory.
<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.18 Master Equipment Lease Agreement dated
July 15, 1998 between the Company and
First Security Leasing Company
10.19 Lease Schedule to Master Equipment Lease
Agreement dated July 15, 1998 between
the Company and First Security Leasing
Company
27 Financial Data Schedule
(b) Reports on Form 8-K
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
PHOENIX GOLD INTERNATIONAL, INC.
/s/Joseph K. O'Brien
------------------------
Joseph K. O'Brien
Chief Financial Officer
(Principal Financial and Accounting Officer)
Dated: August 7, 1998
<PAGE>
INDEX TO EXHIBITS
Exhibit Page
------- ----
10.18 Master Equipment Lease Agreement dated July 15, 1998 13
between the Company and First Security Leasing Company
10.19 Lease Schedule to Master Equipment Lease Agreement 21
dated July 15, 1998 between the Company and First
Security Leasing Company
27 Financial Data Schedule 23
FIRST SECURITY LEASING COMPANY
MASTER EQUIPMENT LEASE AGREEMENT
This MASTER EQUIPMENT LEASE AGREEMENT is between the First Security entity
specified below ("Lessor") and the lessee or lessees specified below ("Lessee").
Section 1. Declaration of Intent to Lease; Delivery and Acceptance of Equipment.
Subject to the terms hereof, Lessor agrees to make payment for and to lease
to Lessee the personal property described in Schedules, as defined below,
(hereinafter referred to collectively as "Equipment" and individually as "Item"
or "Item of Equipment"), and Lessee agrees to lease each such Item of Equipment
from Lessor for the Rental specified in the Lease Schedules to Master Equipment
Lease Agreement entered into pursuant to this Agreement and making specific
reference hereto (the "Schedules"), subject to the terms and conditions set
forth herein and in the Schedules.
There may be one or more Schedules under this Agreement executed either
simultaneously with or subsequent to the execution and delivery of this
Agreement. Each Schedule making specific reference to this Agreement and
incorporating the terms hereof shall constitute a separate lease which will be
identified by a Lease Number identified in such Schedule. The term "Agreement"
used herein shall refer to this Master Equipment Lease Agreement and the
Schedules. The lease created by a particular Schedule and a copy of the Master
Equipment Lease Agreement shall be referred to as "a Lease". The terms of this
Master Equipment Lease Agreement may be changed, modified or supplemented in
Section 1 of any Schedule.
Section 2. Term; Rental and Late Charges.
The term of each Lease with respect to any Item of Equipment (the "Term")
shall commence upon the date of acceptance indicated in the Schedules hereof
relating thereto (the "Acceptance Date") and shall end, unless earlier
terminated in accordance with the provisions of this Agreement, at the
expiration of the Term specified in the Schedule.
Lessee shall pay to Lessor Basic Rental and Interim Rental for each Item of
Equipment in the amounts and on the dates specified in the Schedules (each a
"Rental Payment Date").
In the event any Rental or other amount payable hereunder shall not be paid
within ten (10) days when due, Lessee shall pay to Lessor, as supplemental
rental, an amount equal to five percent (5%) of such overdue Rental, plus
interest on such overdue payment until paid, at the rate of eighteen percent
(18%) per annum.
All payments to Lessor provided for in this Lease shall be paid to Lessor
at the address indicated herein or at such other place as Lessor shall specify
in writing.
All Leases created hereunder are net leases and Lessee shall not be
entitled to any abatement of Rental, Residual Value or other charges payable
hereunder by Lessee or withholding thereof from Lessor or any reduction thereof,
including, but not limited to, abatements or reductions due to any present or
future claims of Lessee against Lessor or any assigned under this Agreement or
otherwise, or against the manufacturer or vendor of the Equipment, nor, except
as otherwise expressly provided herein, shall this Agreement terminate, or the
obligations of Lessee be affected, by reason of any defect in or damage to or
loss or destruction of all or any of the Equipment from whatever cause, the
interference with use by any private person, corporation or governmental
authority, the invalidity, unenforceability or lack of due authorization of this
Agreement or lack of right, power or authority of Lessor to enter into this
Agreement, or for any other cause whether similar or dissimilar to the
foregoing.
Section 3. Early Termination; Renewal; Purchase.
Provided no Event of Default shall have occurred and be continuing
hereunder, Lessee shall have the right during the Term, upon not less than sixty
(60) days' prior written notice to Lessor, to terminate a Lease with respect to
all, but not less than all, Items thereunder as of the next succeeding Rental
Payment Date following such notice, subject to Lessor's receipt of the payments
specified in the following sentence. On or before the termination of Lease,
Lessee shall pay to Owner: (1)- all Rental due and to become due up to and
including the next succeeding Rental Payment Date following such notice; and
(2)- the Termination Value of the Equipment being terminated as of such next
succeeding Rental Payment Date. Upon payment of all such amounts the obligation
of Lessee to pay Rental on each succeeding Rental Payment Date shall then
terminate. The "Termination Value" of an Item shall mean, as of any Rental
Payment Date, the present value of the sum of (i)- all remaining installments of
Rental (excluding the installment due on such Rental Payment Date) and (ii) -
the Residual Value indicated in the Schedule relating thereto, computed by
discounting such amounts at such rate and applying such penalties as shall then
be consistent with Lessor's normal business practices. See Section I of Lease
Schedule.
Provided no Event of Default shall have occurred and be continuing
hereunder, Lessee shall have the right, upon not less than sixty (60) days'
prior written notice to Lessor, to renew a Lease upon the expiration of the term
thereof with respect to all, but not less than all, Items thereunder for such
term as Lessor and Lessee agree and with Rental payments which will fully
amortize the Residual Value at then current market rates.
Upon the expiration of the Term of a Lease, unless renewed or terminated
earlier in accordance herewith, Lessee shall pay to Lessor on the final day of
the Term an amount in cash equal to the Residual Value of all, but not less than
all, Items thereunder.
If Lessee shall determine upon the expiration of the Term of a Lease or the
termination thereof pursuant to this Section 3, to sell the Equipment thereunder
to a third party rather than to retain such Equipment, Lessee shall notify
Lessor in writing of such determination at least sixty (60) days prior to such
expiration or termination. Upon receipt of such notice, Lessor shall act as the
exclusive agent of Lessee to sell such Equipment. Lessor shall use its best
efforts to arrange a sale for cash of the Equipment at then current market
values. Lessee agrees to reimburse Lessor for all expenses incurred by Lessor in
connection with such sale including the costs of repair or preparation of the
Equipment and to pay a reasonable fee for such services. Lessor shall be
entitled to retain from the proceeds of any such sale or lease any amounts then
still due and owing to Lessor. Any excess shall be paid to Lessee. Nothing in
this paragraph shall be construed to relieve Lessee of its obligation to pay the
applicable Termination Value and Residual Value on the date such payments are
due under Sections 3(A) and 3(C) hereof. See Section I of Lease Schedule.
All sales pursuant to this Section 3 shall be made without any
representation, recourse or warranty on the part of Lessor except that Lessor
shall warrant that the Equipment is free and clear of all liens, charges and
encumbrances arising as a result of claims against Lessor not related to its
ownership of the Equipment. Lessor shall deliver to Lessee or other buyer any
and all documents reasonably requested to transfer title to such Equipment on an
as-is where-is basis.
Section 4. Conditions Precedent.
The obligation of Lessor to lease an Item of Equipment and to make payment
to the vendor therefor is subject to Lessee's supplying the following, if
requested by Lessor, at Lessee's expense, in form and substances satisfactory to
Lessor.
A. Articles of Incorporation and By-laws of Lessee, and resolutions of the
Board of Directors, each certified by the Secretary or an Assistant
Secretary duly authorizing each Lease of Equipment hereunder and the
execution, delivery and performance of this Agreement and each Schedule if
Lessee is a corporation;
B. Partnership Agreement, trust indenture, assumed name filings or such other
documents as Lessor may demand if lessee is not a corporation;
C. Evidence satisfactory to Lessor as to due compliance with the insurance
provisions of Section 11 hereof and Section G of the Schedules;
D. A favorable written opinion of counsel for Lessee satisfactory to Lessor as
to each of the matters set forth in Section 5(B)(i) - (vi) hereof and as to
such other matters as Lessor may reasonably request;
E. A completed and signed Schedule including a description of such Item; and
F. Vendor's invoice of the Item.
Section 5. Representations and Warranties.
Lessor's Representations and Warranties. Lessor warrants that during the
Term of any Lease, if no Event of Default has occurred, Lessee's use of the
Equipment shall not be interrupted by Lessor or anyone claiming solely through
or under Lessor.
The warranties set forth in the preceding paragraph are in lieu of all
other warranties of Lessor, whether written, oral or implied, and Lessor shall
not by virtue of having executed this Agreement or any other document pursuant
to this Agreement, or for any other reason, be deemed to have made any other
warranties. LESSOR LEASES THE EQUIPMENT AS IS WITHOUT WARRANTY OR
REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION (A) THE DESIGN, PERFORMANCE, SPECIFICATIONS OR
CONDITION OF ANY ITEM OR ITEMS OF EQUIPMENT, (B) THE MERCHANTABILITY THEREOF,
(C) THE FITNESS FOR ANY PARTICULAR PURPOSE THEREOF, (D) THE LESSOR'S TITLE
THERETO, (E) INTERFERENCE BY ANY PARTY OTHER THAN LESSOR WITH LESSEE'S RIGHT TO
THE QUIET ENJOYMENT THEREOF, OR (F) THE QUALITY OF THE MATERIAL OR WORKMANSHIP
OF THE EQUIPMENT OR CONFORMITY THEREOF TO THE PROVISIONS AND SPECIFICATIONS OF
ANY PURCHASE ORDER RELATING THERETO, IT BEING AGREED THAT ALL SUCH RISKS AS
BETWEEN LESSOR AND LESSEE ARE TO BE BORNE BY LESSEE. LESSEE FURTHER UNDERSTANDS
AND AGREES THAT NEITHER THE EQUIPMENT SUPPLIER NOR ANY SALESPERSON OR OTHER
AGENT OR EMPLOYER OF SUCH SUPPLIER IS AN AGENT FOR OR HAS ANY AUTHORITY TO SPEAK
FOR OR TO BIND LESSOR IN ANY WAY. LESSOR IS NOT AN AGENT OR REPRESENTATIVE OF
SUCH SUPPLIER. Lessor hereby authorizes Lessee, at Lessee's expense, to assert
for Lessor's account during the Term of a Lease, all of Lessor's rights under
any manufacturer's vendor's or dealer's warranty on the Equipment to the extent
permitted by law and agreement, and Lessor agrees to cooperate with Lessee in
asserting such rights; provided, however, Lessee shall indemnify and hold
harmless Lessor from and against any and all claims, and all costs, expenses,
damages, losses and liabilities incurred or suffered by Lessor in connection
therewith, as a result of, or incident to, any action by Lessee pursuant to the
above authorization. Lessor shall not be responsible for special or
consequential damages relating to its obligations or performance under their
Agreement.
B. Lessee's Representations and Warranties. Lessee represents and warrants
that:
(i) Lessee, if a corporation, is duly organized and existing in
good standing under the laws of the state of its
incorporation, and is duly qualified to do business in those
jurisdictions (including those where the Equipment will be
located) where such qualification is necessary to carry on
its present business operations;
(ii) Lessee, if a partnership, trust or other entity, is duly
organized, registered and validly existing under the laws of
the jurisdiction of its organization or residence and is
duly qualified to do business in those jurisdictions
(including those where the Equipment will be located) where
such qualification is necessary to carry on its present
business operations;
(iii)Lessee has full power, authority and legal right to execute,
deliver and perform the terms of this Agreement. This
Agreement has been duly authorized by all necessary
corporate action on the part of Lessee and the execution,
delivery and performance thereof do not require any
stockholder approval, do not require the approval of or the
giving of notice to any federal, state, local or foreign
governmental authority, do not contravene any law binding on
Lessee or Lessee's certificate or articles of incorporation
or by-laws and do not contravene or constitute a default
under any indenture, credit agreement or other agreement to
which Lessee is a party or by which it is bound;
(vi) This Agreement constitutes a legal, valid and binding
obligation of Lessee, enforceable in accordance with its
terms;
(v) There are no pending or threatened actions or proceedings
before any court, administrative agency or other tribunal or
body or judgments which may materially adversely affect
Lessee's financial condition or operations;
(vi) No approval, consent or withholding of objection is required
from any governmental authority with respect to the entering
into or performance by Lessee of this Agreement;
(vii)The balance sheet of Lessee for its most recent fiscal year
and the related earnings statement of Lessee for such fiscal
year have been furnished to Lessor and fairly present
Lessee's financial condition as of such date and the results
of its operations for such year in accordance with generally
accepted accounting principles consistently applied, and
since such date there has been no material adverse change in
such conditions or operations; and
(viii) Lessee shall not consolidate with or merge into any other
business entity or convey, transfer or lease substantially
all of its assets as an entirety to any third party without
the prior written consent of Lessor.
Section 6. Mortgages, Liens, Etc.
Lessee will not directly or indirectly create, incur, assume or permit the
existence of any mortgage, security interest, pledge, lien, charge, encumbrance
or claim on or with respect to the Equipment, title thereto or any interest
therein except (a) the respective rights of Lessor and Lessee as herein
provided, (b) 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.
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.
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.
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 given 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.
Lessee agrees at its own cost and expense to place such markings, plates or
other identification on the Equipment showing Lessor's title thereto as Lessor
may from time to time request, provided such identification markings are placed
so as not to interfere with the usefulness of such Equipment. Except as above
provided, Lessee will not allow the name of any person, association or
corporation to be placed on the Equipment as a designation that might be
interpreted as a claim of ownership.
Section 9. Inspection.
Upon the request of Lessor, Lessee shall advise Lessor as to the location
of each Item of Equipment and shall, at any reasonable time, make the Equipment
available to Lessor or Lessor's agent for inspection at the place where it is
ordinarily located and shall make Lessee's records pertaining to the Equipment
available for Lessee's inspection.
Section 10. Loss or Destruction.
In the event any Item of Equipment shall be lost, stolen, destroyed,
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever ("Event of Loss"). Lessee shall promptly, but in any event within ten
(10) days of the Event of Loss, give written notification to Lessor of said loss
and the facts pertaining thereto. In addition, within ten (10) days of the Event
of Loss Lessee shall elect either: (a) to replace such Item of Equipment at
Lessee's own cost and expense of; or (b) to pay to Lessor the Termination Value
of the Item and shall notify Lessor in writing of such election.
Should Lessee elect to replace such Item, any replacement Item shall be
free and clear of all liens, encumbrances and rights of others and shall be of
like kind and have substantially equal fair market value as the replaced Item,
as if such replaced Item were in the condition and repair required to be
maintained by the terms hereof. All such replacement Items shall become the
property of Lessor and shall immediately become subject to this Agreement, and
shall be deemed part of the Equipment for all purposes hereof, to the same
extent as the property originally comprising the Equipment. Such replaced Item
of Equipment shall no longer be deemed part of the Equipment leased hereunder,
and Lessor will transfer to Lessee, without recourse or warranty all of Lessor's
right, title and interest therein. In the event Lessee elects to replace such
Item of Equipment, Lessee's obligation to pay Rental as set forth in this Lease
Agreement shall remain unchanged. Lessee further agrees to execute such
documents in connection with such replacement as deemed necessary by Lessor to
insure Lessor's full title thereto.
Should Lessee elect not to replace such Item of Equipment, Lessee shall pay
to Lessor, on the next Rental Payment Date for such Item following such Event of
Loss, the Termination Value of such lost or destroyed Item. The obligation of
Lessee to pay Rental with respect to such Item (including the Rental due on such
Rental Payment Date) shall continue undiminished until the payment of such
Termination Value. After the payment of such Termination Value, Lessee's
obligation to pay Rental for such Item shall cease, but Lessee's obligation to
pay Rental for all other Items of Equipment shall remain unchanged. After the
payment of such Termination Value, Lessor will transfer to Lessee, without
recourse or warranty, all of Lessor's right, title and interest in and to such
Item of Equipment suffering the Event of Loss.
Section 11. Insurance.
At its own expense, Lessee shall maintain comprehensive general liability,
products liability and property damage insurance acceptable to Lessor with
respect to each Item in an amount not less than the amount specified in the
Schedules relating thereto and, in any event, in an amount sufficient to provide
full coverage against all loss and liability. Each such insurance policy shall
name Lessor as an insured and as loss payee and shall provide that it may be
altered or canceled by the insurer only after thirty (30) days prior written
notice to Lessor. Lessee agrees to cause certificates or other evidence
satisfactory to Lessor showing the existence of such insurance, the terms and
conditions of each policy and payment of the premium therefor to be delivered to
Lessor upon demand thirty (30) days prior to expiration or cancellation showing
renewal or replacement of such policy. In the event Lessee shall fail to obtain
and/or maintain insurance in accordance with the provisions of this paragraph,
Lessor shall have the right to obtain such insurance as Lessor deems necessary,
and Lessee shall reimburse Lessor for the payment by Lessor of all premiums
therefor together with interest computed from the date of Lessor's payment at
the rate of eighteen percent (18%) per annum. If (a) any insurance proceeds are
received with respect to a loss with respect to Equipment which does not
constitute an Event of Loss under Section 10, or (b) if Lessee elects to replace
an Item or Items suffering an Event of Loss under the provisions of Section 10
hereof, proceeds will be applied in payment for repairs and replacement required
pursuant to Section 8 and 9 hereof, or to reimburse Lessee having made such
payments.
Section 12. Indemnification and Expenses.
Lessee shall indemnify, protect and keep harmless Lessor or any assignee or
transferee of Lessor and their respective agents and servants from and against
all claims, causes of action, damages, liability (including strict liability in
tort), costs, fees or expenses (including attorney's fees) incurred in any
manner by or for the account of any of them relating to the Equipment or any
part thereof including without limitation the construction, purchase, delivery,
installation, ownership, leasing or return of the Equipment or as a result of
the use, maintenance, repair, replacement, operation or condition thereof,
(whether defects are latent or discoverable by Lessor or by Lessee). This
Section shall be effective from the date the first Item of Equipment is ordered
and shall remain in effect notwithstanding the expiration or other termination
of a Lease with respect to any one or more Items of Equipment. Lessee agrees to
give Lessor prompt notice of any claim or liability hereby indemnified against.
Lessor agrees to cooperate with Lessee in any defense or other action which
Lessee is by this Section obligated to undertake.
Section 13. Assignments and Subleases.
Lessor may at any time, without notice, grant a security interest in,
transfer or assign any or all Leases, Items or rights and remedies as Lessor to
any party, with such party assuming all, part or none of Lessor's obligations.
Lessee shall not assert against such party any defense, counterclaim, or offset
Lessee may have against Lessor. Lessee acknowledges that any such grant,
transfer or assignment would not materially change Lessee's duties, risks or
interests under the Agreement.
LESSEE SHALL NOT, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, SUBLEASE OR
RELINQUISH POSSESSION OF ANY ITEM OR ASSIGN ANY OF ITS RIGHTS OR DELEGATE ANY OF
ITS OBLIGATIONS HEREUNDER. Lessee grants Lessor a security interest in any
existing or future sublease of an Item and the proceeds thereof, whether or not
such sublease is prohibited.
Section 14. Events of Default; Remedies.
A. The following shall constitute Events of Default hereunder:
(i) Lessee shall fail to make any Interim or Basic Rental
payment or the Residual Value payment when due and such
failure shall continue unremedied for ten (10) days;
(ii) Lessee shall fail to make any payment other than Rental
required hereunder or shall fail to perform or observe any
covenant, condition or agreement to be performed or observed
by it under this Agreement, and such failure shall continue
unremedied for ten (10) days after notice from Lessor
requiring performance;
iii) Any representation or warranty made by Lessee herein, in any
Schedule or any supplement or addition hereto, or in any
document or certificate furnished Lessor in connection
herewith shall prove to be incorrect at any time in any
material respect;
(vi) Lessee shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the
appointment of a trustee or receiver, or a trustee or a
receiver shall be appointed for Lessee or for a substantial
part of its property without its consent and shall not be
dismissed within a period of sixty (60) days, or bankruptcy,
reorganization or insolvency proceedings shall be instituted
by or against Lessee and, if instituted against Lessee,
shall not be dismissed for a period of sixty (60) days.
B. Upon the occurrence of an Event of Default Lessor may at its
option exercise one or more of the following remedies:
(i) Declare all unpaid Rentals under any Lease or all Leases to
be immediately due and payable;
(ii) Proceed by appropriate court action to enforce performance
by Lessee of the applicable covenants, of this Agreement
and/or to recover damages for the breach thereof; or
(iii)By notice in writing terminate any Lease or all Leases
whereupon all rights of Lessee to the use of the Equipment
shall absolutely cease and terminate, but Lessee shall
remain liable as hereinafter provided. Thereafter, Lessee,
if requested by Lessor, shall, at its own cost promptly
deliver possession of the Equipment to Lessor in such manner
and to such place as Lessor shall direct or Lessor may at
any hour and without liability, except for malicious acts by
its agents, and without notice to Lessee enter upon the
premises of Lessee or other premises where any of the
Equipment may be located and take possession of or render
unusable all or any of such Equipment and attachments
thereon whether or not the property of Lessor and
thenceforth hold, sell or re-lease such Equipment at its
option. Lessor shall thereupon have a right to recover from
Lessee an amount equal to any unpaid Rental due and payable
up to and including the Rental Payment Date following the
date on which Lessor has given the termination notice
referred to above, any and all other amounts due and payable
hereunder and in addition thereto (a) as damages for loss of
the bargain and not as penalty an amount equal to the
Termination Value as of such Rental Payment Date, and
(b) all expenses, including but not limited to reasonable
attorney's fees, which Lessor shall have sustained by reason
of the breach of any covenant of this Agreement, expenses
for obtaining and storing the Equipment and expenses in
connection with locating another lessee or buyer.
C. The remedies in this Agreement in favor of Lessor shall not
be deemed exclusive, but shall be cumulative and shall be in
addition to all other remedies in its favor existing at law
or in equity. Lessee hereby waives any mandatory
requirements of law, now or hereafter in effect, which might
limit or modify any of the remedies herein provided, to the
extent that such waiver is permitted by law. No express or
implied waiver by Lessor of any Event of Default hereunder
shall in any way be, or be construed to be, a waiver of any
future or subsequent Event of Default. The failure or delay
of Lessor in exercising any rights granted it hereunder upon
any occurrence of any of the contingencies set forth in
Section 14(A) shall not constitute a waiver of any such
right upon the continuation or recurrence of any such
contingencies or similar contingencies and any single or
partial exercise of any particular right by Lessor shall not
exhaust the same or constitute a waiver of any other right
provided herein.
Section 15. Lessor's Rights to Perform for Lessee.
If Lessee fails to perform or comply with any of its agreements contained
herein, Lessor may, but shall not be required to, make any payment or perform or
comply with any covenant or agreement contained herein, and all reasonable
expenses of Lessor incurred in connection therewith shall be payable by Lessee
upon demand together with interest at the rate of eighteen percent (18%) per
annum from the date of payment to the date of reimbursement.
Section 16. Further Assurance; Financial Information.
Lessee will promptly and duly execute and deliver to Lessor such further
documents or instruments of further assurance and take such further action as
Lessor may from time to time, reasonably request in order to carry out the
intent and purpose of this Agreement and to establish and protect the rights and
remedies created or intended to be created in favor of Lessor hereunder,
including, without limitation, if requested by Lessor, at the expense of Lessee:
A. The execution and delivery of financing statements with
respect hereto, in accordance with the laws of such
jurisdictions as Lessor may from time to time deem
advisable;
B. An audit report containing a balance sheet, income statement
and statement of sources and uses of funds prepared by
independent certified public accountants, or other
accountant acceptable to Lessor within one hundred twenty
(120) days after the close of each fiscal year of Lessee;
and
C. A report containing balance sheets as of the end of each
quarterly period of Lessee's fiscal year, income statement
and statement of sources and uses of funds certified as
accurate by an officer of Lessee within forty-five (45) days
after the close of each such quarterly period.
Section 17. Notices.
All notices required by the terms hereof shall be in writing, and shall
become effective when deposited in the United States mail, with proper postage
for certified mail prepaid, addressed to the address shown herein or to such
other address as such party shall from time to time designate for itself in
writing to the other party. Notice to Lessor is sufficient if mailed to: First
Security Leasing Company, P.O. Box 30006, Salt Lake City, Utah, 84130. Notice to
Lessee is sufficient if mailed to the address set forth on the signature page of
this Agreement.
Section 18. Multiple Lessees.
If there is more than one Lessee named in this Agreement, the liability of
each shall be joint and several, and each Lessee has the authority to enter into
agreements with Lessor modifying or extending the terms of the Agreement on
behalf of each other Lessee. If used herein or in any related document, the term
"Co-Lessee" or "Co-Lessees" shall be synonymous with "Lessee" as defined herein.
Section 19. Effect of Invalid Provision.
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, Lessee hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any respect.
Section 20. Miscellaneous.
This Agreement and other written documents executed by the parties hereto
contain the entire agreement between the parties and there are no verbal
representations, warranties, or agreements of any kind whatsoever.
No term or provision of this Agreement may be changed, waived, discharged,
or terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. No third-party manufacturer, supplier, salesperson, or broker, or any
agent thereof, is Lessor's agent or is authorized to waive or modify any
provision of the Agreement.
This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of Utah. Any judicial proceeding brought
against Lessee with respect to this agreement may be brought in any court of
competent jurisdiction in the State of Utah. By its execution of this Agreement
and the Schedules, Lessee unconditionally accepts the jurisdiction of the courts
of the State of Utah and agrees to be bound by any judgment rendered thereby
with respect to this Agreement. If Lessee is not a resident of the State of
Utah, service of process upon Lessee by mail shall constitute sufficient notice
of any such proceeding. Lessee waives any right to a jury trial in any
proceeding concerning the Agreement.
The word "including" as used in the Agreement shall mean "including, but
not limited to". Nothing herein shall affect the right to serve process in any
other manner permitted by law or limit the right of Lessor to bring proceedings
against Lessee in the courts of any jurisdiction.
This Agreement shall inure to the benefit of and be binding upon the heirs,
successors, assigns and personal representatives of the parties hereto.
LESSEE: LESSOR:
PHOENIX GOLD INTERNATIONAL, INC.,
a(n) Oregon corporation FIRST SECURITY BANK, N.A.
BY: Joseph K. O'Brien BY: /s/ Jeff Aden
ITS: Chief Financial Officer ITS:_______________________________
Address: 9300 N. Decatur Street Address:c/o First Security Leasing
Portland OR 97203 Company
381 East Broadway, 2nd Floor
Salt Lake City, Utah 84111
Federal ID or
Social Security Number: 93-1066325
Lease No. 008-3003538
FIRST SECURITY LEASING COMPANY
LEASE SCHEDULE TO
MASTER EQUIPMENT LEASE AGREEMENT
This Lease Schedule to Master Equipment Lease Agreement (the 'Lease
Schedule') is entered into pursuant to the terms of the Master Equipment Lease
Agreement (the 'Agreement') between the signatories hereof dated July 15, 1998
and constitutes a separate lease (the 'Lease') thereunder.
All the terms and conditions of the Agreement are hereby incorporated
herein and made a part hereof as if such terms and conditions were set forth in
this Lease Schedule at length and all capitalized terms not otherwise defined in
this Lease Schedule shall have the meaning set out in the Agreement. By their
execution and delivery of this Lease Schedule Lessor and Lessee hereby reaffirm
on and as of the date hereof all the terms, conditions, agreements,
representations and warranties contained in the Agreement. A copy of the signed
Agreement attached to the Lease Schedule, which attachment shall adopt the
copied signatures on the Agreement as of the date of the Lease Schedule, shall
constitute an original lease. A copy of the Agreement and the Lease Schedule
shall alone constitute the chattel paper for purposes of perfecting a security
interest.
<TABLE>
<CAPTION>
A) Description of Equipment
<S> <C> <C> <C> <C> <C>
Invoice
Quantity Vendor Description ID or Serial # New or Used Purchase Price
1 U.S. Bank See attached Exhibit "A" Used $ 32,382.45
for a complete description
of equipment
1 Transamerica Please see attached Used 488,020.93
Business Credit Exhibit 'A' for a complete
description of equipment
1 Phoenix Gold Please see attached Used $ 604,596.62
International, Inc. Exhibit 'A' for a complete
description of equipment
Total Invoice Purchase Price $1,125,000.00
</TABLE>
<TABLE>
<CAPTION>
B) Term. 60 months.
<S> <C> <C>
C) Rental.
1. Monthly /x / 2. Advance / /
Quarterly / / Arrears /x /
Semiannually / /
Annually / /
</TABLE>
2. Rental Payment Dates: September 1, 1998, and on the same day of each
month with the final payment on August 1, 2003. Basic Rental in an
amount equal to 0.020396 of the total invoice purchase price of all
Items is payable on each Rental Payment Date.
3. Interim Rental in an amount equal to N/A of the invoice purchase price
for each Item for each day from and including the date of acceptance
for such Item to but excluding the first Rental Payment Date will be
payable on the first Rental Payment Date.
D) Residual Value. -0- of the invoice purchase price of each item.
E) Location. The Equipment shall be located :
Address: 9300 N. Decatur St - Portland, OR 907203
County: Multnomah
If required, the Equipment will be registered in OR.
F) Security Deposit. Concurrently with the execution hereof Lessee
shall deposit with Lessor the sum of N/A as a security deposit
which Lessor may use to satisfy any unpaid late charges,
recording fees or other amounts due and unpaid. Any unused
portion of the deposit will be returned to Lessee without
interest upon expiration or earlier termination of the Lease and
upon payment of all sums then due and owing to Lessor, or Lessee
may, at its option, apply the unused balance of the security
deposit toward the last Rental payment.
G) Insurance. The minimum amount of insurance to be provided by
Lessee as required under the terms of the Agreement shall be as
follows:
1. Liability: $1,000,000.00 each individual
$1,000,000.00 each accident
$1,000,000.00 property damage liability
2. Physical Damage and Loss: $1,125,000.00
3. Additional riders, exclusions or special terms
required by Lessor: N/A .
H) Certificate of Acceptance.
Lessee, having entered into the Agreement and the Lease Schedule
does hereby certify to Lessor that as to the Equipment
listed in Section A of the Lease Schedule or any Exhibit
attached and incorporated to the Lease Schedule:
1. The Equipment is of a size, design, capacity and manufacture
selected by Lessee, is in good condition and has been
satisfactorily delivered and installed. Lessee hereby
expressly assumes all responsibilities in connection with
the delivery and installation thereof;
2. Lessee is satisfied that the Equipment is suitable for
Lessee's purposes;
3. Unless otherwise indicated, the Equipment is new and unused
on the date hereof except for routine testing and
inspection;
4. Upon payment of the Invoice Purchase Price(s) to the
Vendor(s) indicated there will be no liens, security
interests or encumbrances against the Equipment except the
interest of Lessee under the Agreement;
5. There exists no Event of Default or condition which, but for
the passing of time or giving of notice or both, would
constitute an Event of Default under the Agreement; and
6. The Equipment is personal property and will not become
either real property, fixtures or inventory.
I) Other Terms.
Notwithstanding any language in this Lease Schedule to the contrary,
Lessor and Lessee agree that should Lessee, for any reason, decide to pay
the Lease off prior to the maturity date of the Lease, that Lessee agrees
to pay Lessor the following prepayment penalties, except additional
principal payments from Lessee cash flow is permitted without prepayment
penalty:
<TABLE>
<S> <C> <C>
Date of Early Pay-off of Lease Prepayment Penalty Amount
--------------------------------------- -------------------------------
September 1, 1998 to August 31, 1999 3% of the Pay-off Amount
---------------------------------------- ------------------------------
September 1, 1999 to August 31, 2000 2% of the Pay-off Amount
--------------------------------------- -------------------------------
September 1, 2000 to August 31, 2002 1% of the Pay-off Amount
---------------------------------------- ------------------------------
September 1, 2002 to August 31, 2003 0% of the Pay-off Amount
---------------------------------------- ------------------------------
</TABLE>
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Schedule to be
duly executed on behalf of each of them on July 15, 1998 and the signatories
warrant their authority to bind principals.
LESSEE: LESSOR:
PHOENIX GOLD INTERNATIONAL, INC.,
a(n) Oregon Corporation FIRST SECURITY BANK, N.A.
BY: /s/ Joseph K. O'Brien BY: /s/ Jeff Aden
ITS: Chief Financial Officer ITS:_______________________________
Address: 9300 N. Decatur Street Address:c/o First Security Leasing
Portland, OR 97203 Company
Portland, OR 97203 381 East Broadway, 2nd Floor
Salt Lake City, Utah 84111
Federal ID or
Social Security Number: 93-1066325
<TABLE> <S> <C>
<ARTICLE>5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM PHOENIX
GOLD INTERNATIONAL, INC.'S FINANCIAL STATEMENTS CONTAINED IN ITS
QUARTERLY REPORT ON FORM 10-Q FOR THE PERIOD ENDING JUNE 30, 1998 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-27-1998
<PERIOD-END> JUN-28-1998
<CASH> 2,597
<SECURITIES> 0
<RECEIVABLES> 5,218,836
<ALLOWANCES> 0
<INVENTORY> 6,653,651
<CURRENT-ASSETS> 12,585,601
<PP&E> 6,458,258
<DEPRECIATION> 3,409,325
<TOTAL-ASSETS> 16,579,561
<CURRENT-LIABILITIES> 4,719,935
<BONDS> 249,118
0
0
<COMMON> 7,548,822
<OTHER-SE> 4,061,686
<TOTAL-LIABILITY-AND-EQUITY> 16,579,561
<SALES> 20,358,800
<TOTAL-REVENUES> 20,358,800
<CGS> 14,859,007
<TOTAL-COSTS> 14,859,007
<OTHER-EXPENSES> 4,669,007
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 271,190
<INCOME-PRETAX> 568,532
<INCOME-TAX> 228,000
<INCOME-CONTINUING> 340,532
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 340,532
<EPS-PRIMARY> .10
<EPS-DILUTED> .10
</TABLE>
