MASTER FINANCE LEASE ZIONS CREDIT CORPORATION Lease No. 7403
(T) P. O. Xxx 0000 Date: June 26, 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
ZIONS CREDIT CORPORATION (hereinafter "LESSOR"), a Utah corporation, with
offices at 00 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and DNR USA, Inc. and Marker
International as Co-Lessees (hereinafter "LESSEE"), with offices at 0000 Xxxxx
0000 Xxxx Xxxx Xxxxxx, XX 00000 in consideration of the mutual covenants and
promises hereinafter set forth agree as follows:
1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
(for commercial and business purposes only) the property described and
referred to in any Equipment Schedule or Schedules now or hereafter
executed by the parties hereto (hereinafter "Equipment" or "Item of
Equipment"). The terms and conditions hereof shall be deemed to form a part
of each Equipment Schedule. Each Equipment Schedule shall constitute a
separate lease agreement incorporating all of the terms and conditions
hereof.
2. TERM, RENTAL. The lease term and rental payments are specified in said
Equipment Schedule. Lessee's obligation to make rental and other payments
is unconditional and rental payments shall be paid without defense, offset,
or counterclaim. The term shall commence on the date indicated on each
Equipment Schedule. All rents shall be paid at the office of Lessor in Salt
Lake City or at such other place as Lessor may hereafter designate.
3. EQUIPMENT SCHEDULES. Lessor, in its sole discretion, from time to time, and
by mutual consent with Lessee, may lease other Equipment to Lessee, subject
to the terms and conditions contained in this Lease for such term and
rental payments as may be agreed, by execution of subsequent Equipment
Schedules. Lessor retains the right for any reason to decline any Equipment
transaction proposed by Lessee.
4. OWNERSHIP. Title to the Equipment shall at all times remain in Lessor
except as set forth in this Lease or the Equipment Schedule. The Equipment
is and shall remain personal property, notwithstanding that the Equipment
or any part thereof may be or hereafter become in any manner affixed to or
attached to any real property or any building thereon. Lessor may require
Lessee, at Lessee's expense, to affix and keep affixed in a prominent place
on Equipment labels, plates, or other markings stating that the Equipment
is owned by Lessor. Lessee agrees to keep the Equipment at the location set
forth above or at such other location as specified in the applicable
Equipment Schedule, and will notify Lessor promptly in writing of and prior
to any change in the location of the Equipment within such State, but will
not remove the Equipment from such State without the prior written consent
of Lessor. Lessee shall pay to Lessor an amount equal to all taxes paid,
payable or required to be collected by Lessor, however designated, which
are levied or based on the monthly rental or on the possession, use,
operation, control, or value of the Equipment, including, without
limitation, state and local privilege or excise taxes, sales and use taxes,
property taxes, and taxes or charges based on gross revenue, excluding
taxes based on Lessor's net income. Lessor shall invoice Lessee for all
such taxes and Lessee shall promptly remit to Lessor all such taxes and
charges upon receipt of such invoice from Lessor. Lessee agrees to pay all
penalties and interest resulting from its failure to timely remit such
taxes to Lessor. Charges for penalties and interest shall be promptly paid
by Lessee when invoiced by Lessor.
5. DISCLAIMER, WARRANTIES, DEFECTS, SHIPPING CHARGES. Lessor warrants that
during the term of this Lease, if no Event of Default has
occurred, Lessee's use of the Equipment shall not be interrupted
Initial Here by Lessor or anyone claiming solely through or under Lessor.
The warranty set forth in the preceding sentence is in lieu of
/s/TJT all other warranties of Lessor, whether written, oral, or
------- implied; and Lessor shall not, by virtue of having leased the
Equipment or delivered any xxxx or bills of sale pursuant to this
Lease, or for any other reason be deemed to have made, and Lessor
Initial Here hereby DISCLAIMS, ANY OTHER REPRESENTATION OR WARRANTY, EITHER
EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, WITHOUT
/s/BF LIMITATION. The seller, method of shipment, make, model,
------- specifications, performance capacities, and all other matters
relating to the ordering, delivery, operation, and performance
of each Item of Equipment have been selected and determined by
Lessee and Lessee agrees:
(i) ALL EQUIPMENT IS LEASED IN AN "AS IS" CONDITION. THE ENTIRE RISK AS
TO THE QUALITY AND PERFORMANCE OF THE EQUIPMENT IS WITH LESSEE. THIS
DISCLAIMER AND WARRANTY AGREEMENT IS EXPRESSLY IN LIEU OF ANY AND ALL
REPRESENTATIONS AND WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR CONCERNING THE DESIGN OR CONDITION OF THE EQUIPMENT,
WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM, OR OTHERWISE. NO
PERSON SHALL HAVE ANY AUTHORITY TO BIND LESSOR TO ANY REPRESENTATION
OR WARRANTY, INCLUDING THOSE REGARDING ANY TAX BENEFITS TO WHICH
LESSEE MAY OR MAY NOT BE ENTITLED, OTHER THAN THIS DISCLAIMER AND
WARRANTY. LESSOR SHALL NOT BE LIABLE FOR ANY INDIRECT OR
CONSEQUENTIAL DAMAGES INCLUDING LOSS OF BUSINESS, RESULTING FROM THE
USE OF THE EQUIPMENT OR CAUSED BY ANY DEFECT, FAILURE, OR MALFUNCTION
OF THE EQUIPMENT WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON
WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE.
(ii) TO INDEMNIFY AND SAVE LESSOR HARMLESS FROM ANY AND ALL LIABILITY
ATTRIBUTABLE TO THE SELLER OF ANY ITEM OF EQUIPMENT.
(iii)TO PAY ALL SHIPPING CHARGES AND OTHER EXPENSES INCURRED IN
CONNECTION WITH THE SHIPMENT OF THE EQUIPMENT BY THE SELLER TO
LESSEE AND TO BEAR ALL RISK OF LOSS THEREOF FROM AND AFTER THE DATE
OF THIS LEASE.
(iv) LESSOR SHALL NOT BE LIABLE FOR AND LESSEE WILL BE LIABLE FOR LOSS OR
DAMAGE OCCASIONED BY ANY CAUSE, CIRCUMSTANCE, OR EVENT OF WHATSOEVER
NATURE, ARISING OUT OF THE ORDERING, MANUFACTURING, DELIVERY,
OPERATION, MAINTENANCE, OR PERFORMANCE OF THE EQUIPMENT, INCLUDING
BUT NOT LIMITED TO THE FACT THAT LESSOR HAS NOT INSPECTED THE
EQUIPMENT. Nothing herein contained shall be construed to deprive
the Lessee of whatever rights Lessee may have against parties other
than the Lessor such as the supplier and the manufacturer of any
Equipment and Lessee agrees to look solely to such third parties
with respect to any and all claims concerning the Equipment. So long
as Lessee is not in breach or default of this Lease, Lessee may
pursue such claims for the mutual benefit of Lessor and Lessee.
6. LESSEE'S INSPECTION AND ACCEPTANCE. Execution of the delivery and
acceptance notice by Lessee shall conclusively establish that Lessee has
irrevocably accepted Equipment, that it is in full compliance with the
terms of this Lease, and that it is in good condition and repair.
7. LESSOR'S 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 for inspection at the place
where it is ordinarily located, and shall make Lessee's records pertaining
to the Equipment available to Lessor for inspection.
8. SUBLEASE AND ASSIGNMENT. Lessee will NOT SUBLET, LEND, OR OTHERWISE
RELINQUISH POSSESSION OF THE EQUIPMENT (directly or indirectly through
change in ownership of Lessee by Lessee's owners) OR ASSIGN this Lease or
any of its rights hereunder without the prior written consent of Lessor. In
no event shall any sublease, lending arrangement, or other relinquishment
of possession of the Equipment, or any assignment by Lessee of this Lease
or any of its rights hereunder, whether or not done with the knowledge or
approval of Lessor, cause Lessee's obligations under this Lease to be
discharged or diminished to any extent. Lessor may assign this Lease and
any or all rights it has hereunder without Lessee's consent. Lessee hereby
waives and agrees not assert against assignee of Lessor any defense,
set-off, recoupment claim or counterclaim which Lessee has or may at any
time have against Lessor for any reason whatsoever. Any such assignment by
Lessor shall not materially change the Lessor's duty nor materially
increase the burden or risk imposed on the Lessee under this Lease. For
purposes of the Lease, the term "Lessor" shall include any assignee of
Lessor of this Lease or Lessor's rights in the Equipment, and such assignee
shall have all of the rights but none of the obligations under this Lease.
9. MAINTENANCE, USE, AND COMPLIANCE WITH LAWS. Lessee, at its own cost and
expense, shall repair and maintain the Equipment and comply with the
Equipment manufacturer's operating procedures and warranty requirements so
as to keep the Equipment in good operating condition, ordinary wear and
tear excepted. Lessee shall arrange and pay for any repairs necessary in
order to the manufacture or qualified maintenance organization to accept
the Equipment under contract maintenance at the applicable standard rates.
Lessee may from time to time add parts or accessories to any Item of
Equipment provided that such addition does not impair the value or utility
of such Item of Equipment. Any parts or accessories added will become part
of the Equipment and will be the property of Lessor. Any parts or
accessories removed by or on behalf of Lessee from the Equipment shall be
replaced with compatible parts or accessories in better condition than the
part or accessory so removed. Lessee shall use the Equipment solely in the
conduct of its business and shall use and maintain the Equipment in
conformity with all governmental laws, ordinances, regulations,
requirements, and rules and in accordance with general industry standards
for the maintenance of the equipment.
10. MORTGAGE, LIENS, ETC. Lessee will not directly or indirectly create, incur,
assume, or suffer to exist any mortgage, security interest, pledge, lien,
charge, encumbrance, or claim on or with respect to the Equipment, title
thereto, or any interest therein (and Lessee will promptly, at its own
expense, take such action as may be necessary to duly discharge any such
mortgage, security interest, pledge, lien, charge, encumbrance, or claim)
except (a) the respective rights of Lessor and Lessee as herein provided,
(b) liens or encumbrances which result from claims against Lessor (other
than liens and encumbrances arising from failure of Lessee to perform any
of Lessee's obligations hereunder), (c) liens for taxes either not yet due
or being contested in good faith and by appropriate proceedings, (d)
inchoate materialmen's, mechanics', workmen's, repairmen's, employee's, or
other like liens arising in the ordinary course of business and not
delinquent.
11. LOSS, DAMAGE, OR REPLACEMENT. In the event any Item of Equipment shall be
lost, stolen, destroyed, damaged beyond repair, or rendered permanently
unfit for use, Lessee shall remain obligated under this Lease, and this
Lease will continue in full force and effect. In such an event, Lessee may
discharge its covenant to pay rent by paying to Lessor within 30 days of
loss, all rent plus all other sums due under this Lease, together with the
termination value of such Equipment, which is the anticipated fair market
value at the end of the lease term, less the amount of recovery, if any,
actually received by Lessor from any insurance or otherwise resulting from
such Equipment being lost, stolen, destroyed, damaged beyond repair, or
rendered permanently unfit for use. If any one or more of the events
enumerated in the first sentence of this section occur, or if any Item of
Equipment is replaced, Lessee shall immediately notify Lessor in writing.
If any Item of Equipment is damaged, but not beyond repair, Lessee,
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at its own cost and expense, shall promptly repair such Item of Equipment
so that it will be in the same or better condition as it was before the
damage occurred. In the event that any Item of Equipment is replaced for
any reason it must be with the prior written approval of Lessor and with
comparable equipment in quality and workmanship to the original Equipment.
All new Equipment replacing any original Item of Equipment shall become the
property of Lessor and subject to this Lease and the applicable Equipment
Schedule. Lessee agrees to execute any documentation required by Lessor to
protect Lessor's ownership in the new Equipment. All costs of the new
Equipment will be borne by Lessee and Lessee warrants to Lessor free and
clear title to the new Equipment.
12. INSURANCE. Lessee shall, at its own expense, maintain at all times from the
time Lessee has an insurable interest, public liability, property damage,
and physical damage insurance in amounts satisfactory to Lessor and with
insurance companies protecting Lessor as an additional insured and loss
payee thereunder, and providing for 30 day's written notice to Lessor
before any policy shall be altered or canceled. Lessee shall immediately
deliver to Lessor evidence of such insurance coverage satisfactory to
Lessor. Lessee covenants, warrants, and represents that Lessee will not do
any act or voluntarily suffer any act to be done whereby any insurance
required hereunder shall or may be suspended, impaired, or defeated and
that Lessee in no circumstances will suffer or permit any Item of Equipment
to be used or operated during any period under this Lease when Lessor may
be at risk for the risks protected against by the above-described insurance
without all said insurance being fully in effect. Lessee shall make and
file timely all claims, and Lessee may, unless Lessee is then in default,
settle and adjust all such claims. In the event of default by Lessee,
Lessee hereby irrevocably authorizes Lessor to make, settle, and adjust
claims under such policy or policies and to endorse the name of Lessee on
any check or another item of payment for the proceeds thereof.
13. INDEMNITY.
(a) Lessee agrees and covenants to indemnify, protect, save harmless, and
defend Lessor and its employees, officers, directors, agents, and
servants from any and all claims, actions, suits, liabilities,
damages, losses, costs, and expenses, including reasonable attorney's
fees, incurred or asserted against Lessor in any way relating to,
arising out of, or as the result of the manufacture, purchase,
acceptance or rejection, ownership, delivery, lease, possession, use,
condition, maintenance, sale, return, or other disposition hereunder
of the Equipment. The scope of this indemnity includes, but is not
limited to, all claims based on negligence, excluding lessors acts or
ommissions, breach of contract, breach of warranty, or strict
liability. Specifically, without limiting the foregoing, Lessee shall
indemnify and hold Lessor harmless against all claims of trademark,
patent and copyright infringement, and of the wrongful use of trade
secrets or proprietary information in any form, against all claims for
property damage, personal injury or wrongful death, and against all
claims that the Equipment or any part thereof is or has become a
fixture with respect to any real property. Lessee's obligations
hereunder will survive the expiration of the Lease with respect to
events occurring or alleged to have occurred prior to the return of
the Equipment to Lessor at the end of the term of the applicable
Equipment Schedules.
(b) Deleted
/s/TJT
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/s/BF
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(c) Notwithstanding anything to the contrary set forth in paragraph (b) of
this Section, Lessee shall have no liability to Lessor under paragraph
(b) of this Section for any loss which results from:
(i) an act or failure to act by Lessor, which act or failure to act
causes Lessor to lose the depreciation;
(ii) Lessor having insufficient income to benefit from the
depreciation.
(d) Lessor agrees to notify Lessee promptly of any claim made by the
Internal Revenue Service against Lessor in respect to the disallowance
of such depreciation deductions or the recapture of depreciation which
relates to information which may be particularly within the knowledge
of Lessor. Lessor further agrees that, should all or any portion of
the said depreciation deductions be disallowed or such depreciation be
recaptured as aforesaid, Lessor will contest (including appeals of
administrative determinations and adverse court decisions and
defending appeals of favorable decisions) the disallowance or
recapture if so requested by Lessee, provided that Lessee agrees to
indemnify and provide adequate security to Lessor for such
indemnification obligation for all Lessor's costs and expenses,
including reasonable attorney's fees, in connection with such contest.
14. SURRENDER. Upon the expiration or termination of this Lease, Lessee shall,
at its own cost and expense (not to exceed $100,000.00), deinstall,
package, load, insure, and return Equipment unencumbered to Lessor at the
address specified by Lessor within Salt Lake County, in the same condition
as received, reasonable wear and tear excepted, except as otherwise
indicated in the applicable Equipment Schedule. If requested by Lessor,
Lessee agrees (a) that Lessor may use, without cost to Lessor, Lessee's
place of business for the purpose of owning, displaying, selling, leasing
or otherwise disposing of all or any of the Equipment for up to 90 days
after termination or expiration of the applicable Equipment Schedule, and
(b) to act as Lessor's agent to lease or sell the Equipment pursuant to
written instruction of Lessor. In the event that Lessee retains possession
of the Equipment and with the consent of Lessor, after expiration of the
applicable Equipment Schedule term, this Lease shall be deemed to be in
effect on a month to month basis. Except as provided in this paragraph all
terms and conditions of this Lease shall continue. Rent payments shall
continue at the rate set forth in the Equipment Schedule or Schedules
pertaining to the Equipment retained by Lessee. Rent paid on a month to
month basis shall not create any ownership rights in the Lessee in the
Equipment. Lessee shall arrange and pay for any repairs necessary in order
for the manufacturer or qualified maintenance organization to accept the
Equipment under contract maintenance at the applicable standard rates.
15. DEFAULT AND REMEDIES.
(a) Time is of the essence and the following events shall constitute
Events of Default:
(i) Lessee shall fail to make any rent or other payment hereunder
including payment of insurance, personal property taxes, other
taxes, fees, or assessments within 10 days after the same shall
become due; or
(ii) Lessee shall fail to perform or observe any other covenant,
condition, or agreement to be performed or observed by it under
this Lease or any Equipment Schedules or amendments thereto; or
(iii) Lessee shall make any representation or warranty to Lessor under
this Lease or any Equipment Schedules or amendments thereto, or
furnish any document or certificate to Lessor in connection
therewith that shall prove to be incorrect in any material
respect at the time made; or
(iv) Lessee does not generally pay its debts as they become due,
ceases to do business as a going concern, or shall admit in
writing its inability to pay its debts; or shall make an
assignment for benefit of creditors; or shall commence, or have
commenced against it, any case, proceeding, or action seeking to
have an order for relief entered on its behalf or against it as a
debtor or to adjudicate it as bankrupt or insolvent or seeking
reorganization, arrangement, adjustment, liquidation,
dissolution, or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of
debtors, or seeking appointment of a receiver, trustee,
custodian, or other similar official for it or for all or any
part of its property; or to take any action in contemplation of
or to authorize any of the above actions; or
(v) The occurrence of any event described in (i), (ii), (iii), or
(iv) with respect to any guarantor or with respect to any other
party liable to Lessor in the event of Lessee's nonpayment or
nonperformance of this Lease, or any Equipment Schedules or
amendments thereto; or
(vi) The breach, termination, or adverse modification of any
instrument, agreement, or document by which such guarantor or
other party is liable to Lessor; or
(vii) Lessee shall fail to discharge any mortgage, security interest,
pledge, lien, charge, encumbrance, or claim as described in
section 10; or
(viii)Lessee is in default pursuant to the provisions of any other
agreement by and between Lessor and Lessee; or
(ix) Lessee or any such guarantor is in default, and any applicable
cure period has expired, under any material agreement for the
payment of money; or
(x) The death or incapacity of Lessee or any guarantor, if an
individual, or the merger, consolidation, acquisition,
liquidation, termination or dissolution of Lessee or any such
guarantor, if a corporation, partnership or other business
association, or if Lessee or any such guarantor shall sell or
turn over the management or operation of all or any substantial
portion of this property, assets or business to any other person,
corporation, partnership, or other business associations; or
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(b) In the Event of Default, Lessor at its sole option shall have the
right to exercise concurrently or separately any one or more of the
following remedies, and without any election of remedies being deemed
to have been made:
(i) With or without notice or demand, declare the present value of
the remaining payments plus the present value of the purchase
option along with applicable taxes and late fees to be
immediately due and payable;
(ii) With or without notice or demand and with or without legal
process, enter into the premises where any or all Items of
Equipment may be located and take possession of and remove the
same. Any such taking of possession shall not constitute
termination of this Lease as to any or all Items of Equipment
unless Lessor expressly notifies Lessee in writing to that
effect. In the event of entry and repossession, Lessee hereby
expressly waives all rights to possession and all claims for
damages or loss by reason of such entry and repossession;
(iii)Terminate this Lease and any Equipment Schedules or amendments
thereto and retain as damages all rents or other amounts paid by
Lessee;
(iv) Lessor may lease the Equipment to any third party, upon such
commercially reasonable terms and conditions as Lessor shall
determine, or may sell the Equipment at private or public sale,
at which sale Lessor may be the purchaser. In either of such
events, there shall be due from Lessee and Lessee shall
immediately pay to Lessor the present value of the rentals plus
all other sums provided to be paid herein together with the
present value of the Purchase Option less the net proceeds of the
sale or re-lease, net proceeds being defined as follows: the cost
basis of the new lease to any third person or the purchase price
at said sale, as the case may be, less all costs and expenses of
Lessor in repossessing, holding, re-leasing, transporting,
repairing, selling, or otherwise handling the Equipment;
(v) Proceed by appropriate action either at law or in equity or
bankruptcy to enforce performance by Lessee of the applicable
covenants of this Lease or to recover damages for breach thereof;
(vi) Use, without cost to Lessor, Lessee's place of business for the
purpose of storing, displaying, selling, leasing, or otherwise
disposing of all or any portion of the Equipment; and
(vii)Pursue any other remedy available to Lessor at law or in equity.
(c) Upon the occurrence of an Event of Default all amounts remaining
unpaid shall accrue interest at the rate of fourteen percent (14%) per
annum both before and after judgment.
16. COLLECTION CHARGES, RIGHT OF SET-OFF. Should Lessee fail to pay when due
any part of the rent herein provided or any other sum required to be paid
to Lessor by Lessee, Lessee shall pay to Lessor a reasonable late charge
of five percent (5%) of all payments due, together with all other
expenses necessarily incurred by reason of Lessee's default. Upon the
occurrence of any Event of Default, Lessor is hereby authorized at any
time and from time to time, without notice to Lessee (any such notice
being expressly waived by Lessee), to set off and apply any and all
deposits at any time held to any obligation of Lessee under this Lease
and any Equipment Schedules. In the event that this Lease or any
Equipment Schedule is assigned by Lessor, the assignee thereof shall be
entitled to the same rights of set off as Lessor for any and all deposits
(general or special, time or demand, provisional of final) at any time
held by such assignee against any obligations of Lessee.
17. ADDITIONAL FEES. In addition to the rent provided herein, Lessee agrees
to pay to Lessor reasonable fees for preparation of documents, filing
and/or recording fees, plus all other costs and expenses incurred by
Lessor in recovering possession of the Equipment of in negotiating,
preparing, enforcing, or protecting Lessor's rights under this Lease or
any Equipment Schedules, including but not limited to, all attorney's
fees, all costs and expenses of obtaining abstracts and title reports,
title insurance, appraisals, foreclosure reports, and all costs incurred
in preserving, recovering, storing, or selling any Item of Equipment.
Further, Lessor may charge a Lease origination fee which shall be
disclosed to Lessee prior to the execution of this Lease, or any
Equipment Schedules.
18. PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR. In the event that Lessee
shall fail duly and promptly to perform any of its obligations under this
Lease or any Equipment Schedule, Lessor may, at its option, immediately
or at any time thereafter perform the same for the account of Lessee
without thereby waiving such default, and any amount paid for expenses or
liability incurred by Lessor in such performance, together with interest
thereon at a rate of fourteen percent (14%) per annum, shall be payable
by Lessee upon demand as additional rent for the Equipment.
19. NOTICES, REMEDIES, WAIVERS, SUCCESSORS. All notices relating to this
Lease or to any Equipment Schedule shall be delivered in person to an
office of Lessor or Lessee or shall be mailed by United States mail
postage prepaid to Lessor or Lessee at its respective address shown above
or at any later address last known to the sender. All remedies of Lessor
hereunder are cumulative and not alternative. A waiver of a default shall
not be a waiver of any other subsequent default. This Lease shall be
binding upon Lessor and Lessee and Lessee's heirs, executors,
administrators, successors, and assigns and shall inure to the benefit of
the successor and assigns of Lessor.
20. ARBITRATION DISCLOSURES.
(i) Arbitration is usually final and binding on the parties and
subject to only very limited review by a court.
(ii) The parties are waiving their right to litigate in court,
including their right to a jury trial.
(iii)Pre-arbitration discovery is generally more limited and different
from court proceedings.
(iv) Arbitrators' awards are not required to include factual findings
or legal reasoning and any party's right to appeal or to seek
modification of rulings by arbitrators is strictly limited.
(v) A panel of arbitrators might include an arbitrator who is or was
affiliated with the banking industry.
ARBITRATION PROCEDURES:
(a) Any controversy or claim between or among the parties, including but
not limited to those arising out of or relating to this Agreement or
any agreements or instruments relating hereto or delivered in
connection herewith, AND including but not limited to a claim based
on or arising from an alleged tort, shall at the request of any party
be determined by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association.
Arbitration proceedings shall be conducted in Salt Lake City, Utah.
The arbitrator(s) shall have the qualifications set forth in
subparagraph (c) hereto. All statutes of limitations which would
otherwise be applicable in a judicial action brought by a party shall
apply to any arbitration or reference proceeding hereunder.
(b) In any judicial action or proceeding arising out of or relating to
this Lease or any agreements or instruments relating hereto or
delivered in connection herewith, including but not limited to a
claim based on or arising from an alleged tort, if the controversy or
claim is not submitted to arbitration as provided and limited in
subparagraph (a) hereto, all decisions of fact and law shall be
determined by a reference in accordance with Rule 53 of the Federal
Rules of Civil Procedure or Rule 53 of the Utah Rules of Civil
Procedure or other comparable, applicable reference procedure. The
parties shall designate to the court the referee(s) selected under
the auspices of the American Arbitration Association in the same
manner as arbitrators are selected in Association-sponsored
arbitration proceedings. The referee(s) shall have the qualifications
set forth in subsection (c) hereto.
(c) The arbitrator(s) or referee(s) shall be selected in accordance with
the rules of the American Arbitration Association from panels
maintained by the Association. A single arbitrator or referee shall
be knowledgeable in the subject matter of the dispute. Where three
arbitrators or referees conduct an arbitration or reference
proceeding, the claim shall be decided by a majority vote of the
three arbitrators or referees, at least one of whom must be
knowledgeable in the subject matter of the dispute and at least one
of whom must be a practicing attorney. The arbitrator(s) or
referee(s) shall award recovery of all costs and fees (including
attorneys' fees, administrative fees, arbitrators' fees, and court
costs). The arbitrator(s) or referee(s) also may grant provisional or
ancillary remedies such as, for example, injunctive relief,
attachment, or the appointment of a receiver, either during the
pendency of the arbitration or reference proceeding or as part of the
arbitration or reference award.
(d) Judgment upon an arbitration or reference award may be entered in any
court having jurisdiction, subject to the following limitation: the
arbitration or reference award is binding upon the parties only if
the amount does not exceed Four Million Dollars ($4,000,000.00); if
the award exceeds that limit, either party may commence legal action
for a court trial de novo; such legal action must be filed within
thirty (30) days following the date of the arbitration or reference
award; if such legal action is not filed within that time period, the
amount of the arbitration or reference award shall be binding. The
computation of the total amount of an arbitration or reference award
shall include amounts awarded for arbitration fees, attorneys' fees,
and all other related costs.
(e) At the Bank's option, foreclosure under a deed of trust or mortgage
may be accomplished either by exercise of a power of sale under the
deed of trust or mortgage or by judicial foreclosure. The institution
and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the
right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such
action for judicial relief.
(f) Notwithstanding the applicability of other law to any other provision
of this Lease or any Equipment Schedule, the Federal Arbitration Act,
9 U.S.C. section 1 et seg., shall apply to the construction and
interpretation of this arbitration section.
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21. GOVERNING LAWS. This agreement shall be deemed to have been made and
executed in UTAH regardless of the order in which the signatures of the
parties shall be affixed hereto and shall be interpreted and the rights
and liabilities of the parties hereto determined in accordance with the
laws of the State of UTAH except as may be provided in Section 20.
22. CONFLICT OF APPLICABLE LAW. If any provision of this Lease or any
Equipment Schedule is contrary to, prohibited by, or deemed invalid under
applicable laws or regulations of any jurisdiction in which it is sought
to be enforced, then such provision shall be deemed inapplicable and
deemed omitted but shall not invalidate the remaining provisions hereof.
23. STATEMENTS. Lessee will furnish Lessor within 90 days after the close of
each fiscal year of Lessee, a balance sheet and profit and loss statement
as of the end of such year and, within 60 days after the close of each
quarter, quarterly financial statements, all prepared in accordance with
generally accepted accounting principles, and such other information
respecting the financial condition and operations of Lessee as Lessor may
from time to time reasonably request.
24. UNIFORM COMMERCIAL CODE. At Lessor's request, Lessee shall execute and
deliver to Lessor any document Lessor believes will protect Lessor's
ownership interest in the Equipment under the Uniform Commercial Code as
adopted by the State of Utah or any other state where Equipment is to be
located. The execution and/or filing of any such document shall not alter
the parties' respective interest in and rights to the Equipment. Without
limiting the foregoing, Lessee hereby authorizes and irrevocably appoints
Lessor as Lessee's attorney in fact, with full power of substitution, to
execute and file any financing statement and other documents in all
places where necessary to protect Lessor's interest in the Equipment.
25. LESSEE REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants,
and shall be deemed to have made all of the representations and warranties
as of the date each respective Equipment Schedule is executed and
delivered by Lessee, as follows:
(i) Lessee is a corporation, duly organized, validly existing, and in
good standing under the laws of the state of its incorporation
and in all jurisdictions where the Equipment will be located or
operated under the Lease.
(ii) Lessee has all requisite power and authority to conduct its
business, to own and lease its properties and to enter into and
perform all of its obligations under the Lease.
(iii) This Lease has been duly authorized by Lessee and constitutes the
valid, legal, and binding obligation of Lessee and is enforceable
in accordance with its terms.
(iv) No event has occurred or is continuing which constitutes an event
of default under the Lease. There is no judicial or
administrative action, suit, order, or proceeding pending or
threatened against or affecting Lessee or any guarantor before or
by any court, administrative agency or other governmental
authority which brings into question the validity of the
transaction contemplated by the Lease (or any guarantee thereof)
or which might materially impair the ability of Lessee or any
such guarantor to perform its obligations under the Lease or
guarantee thereof.
(v) Lessee has no contingent or disputed liabilities or unrealized or
anticipated losses which in the aggregate are material or any
material commitments of an unusual or burdensome character;
(vi) In addition to notices required herein, Lessee shall immediately
give notice in writing to Lessor of (a) the occurrence of an
Event of Default, or any condition, event or act which with the
giving of notice, failure to cure or the passage of time or all
the foregoing would constitute such an Event of Default; and (b)
any change in the name of business of Lessee, any change in its
form, management or organizational structure and any change in
Lessee's address of principal location(s) of business.
26. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties and may not be changed, modified, terminated, or
Initial Here discharged except in writing and may not be contradicted by
evidence of any alleged prior on contemporaneous oral agreement.
/s/TJT There are no promises, terms, conditions, or obligations other
------- than those contained herein; and this Lease shall supersede all
previous communications, representations, or agreements, either
Initial Here verbal or written, between the parties hereto. This
agreement is, and is intended to be a lease, and Lessee does not
/s/BF acquire hereby any right, title, or interest whatsoever, legal or
------- equitable, in or to any of the Equipment or the proceeds of the
sale of any Equipment, except its interest as a lessee hereunder.
Each of Lessee's obligations hereunder shall survive the
expiration of this Lease or any Equipment Schedule thereto.
By execution hereof, the signer hereby certifies that he has
read four pages of this Agreement, and that he/she is duly
authorized to execute this Lease on behalf of the Lessee.
Executed this day of , 1997.
---- -----------------
DNR USA, Inc. and Marker International as Co-Lessees
----------------------------------------------------
Lessee
DNR USA, Inc.
/s/Xxxxxx Xxxxxxxxx By /s/Xxx Xxxx General Manager
--------------------------- ------------------------------------------------
Witness to Lessee Signature Authorized Signature Title
XXX XXXX
------------------------------------------------
Print Name of Signatory
State of Utah )
)ss
County of Salt Lake )
Subscribed and sworn to before me
this 7 day of July, 1997. /s/Xxxxx Xxxxxxxxx
--- ---- ----------------------------------------
Notary Public
Salt Lake
----------------------------------------
Residing at
Marker International
/s/Xxxxxx Xxxxxxxxx
--------------------------- By /s/Xxxxx Xxxxxx CFO
Witness to Lessee Signature ------------------------------------------------
Authorized Signature Title
XXXXX XXXXXX
------------------------------------------------
Print Name of Signatory
State of Utah )
)ss
County of Salt Lake )
Subscribed and sworn to before me
this 7 day of July, 1997. /s/Xxxxxx Xxxxxxxxx
--- ---- --------------------------------------
Notary Public
Salt Lake
--------------------------------------
Residing at
Accepted this day of , 1997.
--- -----
ZIONS CREDIT CORPORATION
------------------------------------
Lessor
By
----------------------------------
Xxxxxx Xxxxxx
Title: Vice President
------------------------------
Rev: 4-15-97 THIS LEASE CANNOT BE CANCELLED
Page 4 of 4
Lease No: 7403
EQUIPMENT SCHEDULE Lease Date: June 26, 1997
(T) Schedule No: 1
Schedule Date: June 26, 1997
ZIONS CREDIT CORPORATION (hereinafter "Lessor"), a Utah corporation, with
offices at 00 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and DNR USA, Inc. and Marker
International as Co-Lessees (hereinafter "Lessee") with offices at 0000 Xxxxx
0000 Xxxx Xxxx Xxxxxx, XX 00000 have entered into a Master Finance Lease No.
7403 dated June 26, 1997 (the "Master Lease") pursuant to which Lessor has
agreed to lease to Lessee, and Lessee has agreed to lease from Lessor, the
equipment described in one or more Equipment Schedules to the Lease.
NOW, THEREFORE, Lessee by executing this Equipment Schedule and Lessor by
accepting it hereby agree as follows:
1. Master Lease. The terms and conditions of the Master Lease are by this
reference incorporated herein as if fully set forth herein and together
with the terms and conditions hereof, and of all schedules, riders,
addenda and/or exhibits that are attached or refer to this Equipment
Schedule, constitute a single and severable agreement of lease (this
"Lease").
2. Equipment. The Lessor hereby leases to Lessee and Lessee hereby leases
from Lessor the property described in the Attached Schedule "A"
("Equipment") upon the terms and conditions of the Lease except as
expressly provided herein.
3. Lessee shall pay all rents to Lessor at the office of Lessor in Salt
Lake City, Utah or at such other place as Lessor may hereafter
designate. Rent payments are due monthly in advance commencing , 1997,
and subsequently on the same day of each month thereafter for a period
of 84 months. The total advance rental of $35,166.38 (representing the
first months payment(s)) is due at the time of signing this Equipment
Schedule. The rental amount is as follows:
Rent 42 @: $35,166.38
Use Tax (0.0%): 0.00 (or applicable rate at time rental is due)
----
TOTAL RENT: $35,166.38
==========
Rent 42 @: $42,981.13
Use Tax (0.0%): 0.00 (or applicable rate at time rental is due)
----
TOTAL RENT: $42,981.13
==========
4. Lease Term. The term of this Lease with respect to the Equipment
described herein commences on _____________ , 1997, and unless earlier
terminated in accordance with the provisions of the Lease, expires on
________________ , 2004.
5. Property Taxes. Lessor is the owner of the Equipment. With the
exception of titled vehicles, Lessor will declare the Equipment with
the taxing authorities, obtain and pay the tax xxxx, and then invoice
Lessee for the property taxes. If Lessee believes any of the Equipment
is property tax exempt, Lessee must inform Lessor prior to commencing
the Lease.
6. Lessee irrevocably authorizes Lessor to insert the commencement and
expiration date of the Lease term and the commencement date of the
Lease payments on this Equipment Schedule and the serial number(s) of
the Equipment on the attached Schedule "A".
7. Counterparts. The Equipment Schedule evidencing this Lease may be
executed in more than one original counterpart. However, only the
counterpart designated below as "Counterpart No. 1" shall evidence the
monetary obligation of Lessee with respect to this Lease. To the
extent, if any, that this Lease constitutes "chattel paper," as that
term is defined in Utah Uniform Commercial Code, no security interest
in this Lease may be created or perfected by the transfer or possession
of any counterpart hereof other than "Counterpart No. 1."
Executed this 1 day of July , 1997.
--- ---- --
DNR USA, Inc. and Marker International as Co-Lessees
----------------------------------------------------
Lessee
DNR USA, Inc.
By: /s/Xxx Xxxx
---------------------------------------------
Title: General Manager
---------------------------------------------
Marker International
By: /s/Xxxxx Xxxxxx
---------------------------------------------
Title: CFO
---------------------------------------------
Accepted this day of , 19 .
--- --------- --
ZIONS CREDIT CORPORATION
-----------------------------------------
Lessor
By:
------------------------------------
Xxxxxx Xxxxxx
Title: Vice President
------------------------------------
Rev: 11/18/96
