FIRST SECURITY BANK OF NEVADA
MASTER EQUIPMENT LEASE AGREEMENT
This MASTER EQUIPMENT LEASE AGREEMENT is between the FIRST SECURITY
BANK OF NEVADA ("Lessor") and the lessee or lessees specified below
("Lessee").
SECTION 1. DECLARATION OF INTENT TO LEASE; DELIVERY AND ACCEPTANCE OF
EQUIPMENT.
A. Subject to the terms hereof, Lessor agrees to make payment for
and to lease to Lessee the personal property described in Schedules, as
defined below, (hereinafter referred to collectively as "Equipment" and
individually as "Item" or "Item of Equipment"), and Lessee agrees to lease
each such Item of Equipment from Lessor for the Rental specified in the
Lease Schedules to Master Equipment Lease Agreement entered into pursuant
to this Agreement and making specific reference hereto (the "Schedules"),
subject to the terms and conditions set forth herein and in the Schedules.
B. There may be one or more Schedules under this Agreement executed
either simultaneously with or subsequent to the execution and delivery of
this Agreement. Each Schedule making specific reference to this Agreement
and incorporating the terms hereof shall constitute a separate lease which
will be identified by a Lease Number identified in such Schedule. The term
"Agreement" used herein shall refer to this Master Equipment Lease
Agreement and the Schedules. The lease created by a particular Schedule
and a copy of the Master Equipment Lease Agreement shall be referred to as
"a Lease." The terms of this Master Equipment Lease Agreement may be
changed, modified or supplemented in Section I of any Schedule.
SECTION 2. TERM; RENTAL AND LATE CHARGES.
A. The term of each Lease with respect to any Item of Equipment (the
"Term") shall commence on the date of acceptance indicated in the Schedules
hereof relating thereto (the "Acceptance Date") and shall end, unless
earlier terminated in accordance with the provisions of this Agreement, at the
expiration of the Term specified in the Schedule.
B. Lessee shall pay to Lessor Basic Rental and Interim Rental for each
Item of Equipment in the amounts and on the dates specified in the Schedules
(each a "Rental Payment Date").
C. In the event any Rental or other amount payable hereunder shall not
be paid within 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.
D. All payments to Lessor provided for in this Lease shall be paid
to Lessor at the address indicated herein or at such other place as Lessor
shall specify in writing.
E. All Leases created hereunder are net leases and Lessee shall not
be entitled to any abatement of Rental, Residual Value or other charges
payable hereunder by Lessee or withholding thereof from Lessor or any
reduction thereof, including, but not limited to, abatements or reductions
due to any present or future claims of Lessee against Lessor or any
assigned under this Agreement or otherwise, or against the manufacturer or
vendor of the Equipment, nor, except as otherwise expressly provided
herein, shall this Agreement terminate, or the obligations of Lessee be
affected, by reason of any defect in or damage to or loss or destruction of
all or any of the Equipment from whatever cause, the interference with use
by any private person, corporation or governmental authority, the
invalidity, 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.
A. Provided no Event of Default shall have occurred and be
continuing hereunder, Lessee shall have the right during the Term, upon not
less than sixty (60) days' prior written notice to Lessor, to terminate a
Lease with respect to all, but not less than all, Items thereunder as of
the next succeeding Rental Payment Date following such notice, subject to
Lessor's receipt of the payments specified in the following sentence. On
or before the termination of a Lease, Lessee shall pay to Owner: (1) all
Rental due and to become due up to and including the next succeeding Rental
Payment Date following such notice; and (2) the Termination Value of the
Equipment being terminated as of such next succeeding Rental Payment Date.
Upon payment of all such amounts the obligation of Lessee to pay Rental on
each succeeding Rental Payment Date shall then terminate. The "Termination
Value" of an Item shall mean, as of any Rental Payment Date, the present
value of the sum of (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.
B. Provided no Event of Default shall have occurred and be
continuing hereunder, Lessee shall have the right, upon not less than sixty
(60) days' prior written notice to Lessor, to renew a Lease upon the
expiration of the term thereof with respect to all, but not less than all,
Items thereunder for such term as Lessor and Lessee agree and with Rental
payments which will fully amortize the Residual Value at then current
market rates.
C. Upon the expiration of the Term of a Lease, unless renewed or
terminated earlier in accordance herewith, Lessee shall pay to Lessor on
the final day of the Term an amount in cash equal to the Residual Value of
all, but not less than all, Items thereunder.
D. If Lessee shall determine upon the expiration of the Term of a
Lease or the termination thereof pursuant to this Section 3, to sell the
Equipment thereunder to a third party rather than to retain such Equipment,
Lessee shall notify Lessor in writing of such determination at least sixty
(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.
E. All sales pursuant to this Section 3 shall be made without any
representation, recourse or warranty on the part of Lessor except that
Lessor shall warrant that the Equipment is free and clear of all liens,
charges and encumbrances arising as a result of claims against Lessor not
related to its ownership of the Equipment. Lessor shall deliver to Lessee
or other buyer any and all documents reasonably requested to transfer title
to such Equipment on an as-is where-is basis.
SECTION 4. CONDITIONS PRECEDENT.
The obligation of Lessor to lease an Item of Equipment and to make
payment to the vendor therefor is subject to Lessee's supplying the
following, if requested by Lessor, at Lessee's expense, in form and
substance satisfactory to Lessor.
A. Articles of Incorporation and By-laws of Lessee, and resolutions
of the Board of Directors, each certified by the Secretary or an Assistant
Secretary duly authorizing each Lease of Equipment hereunder and the
execution, delivery and performance of this Agreement and each Schedule if
Lessee is a corporation;
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.
A. Lessor's Representations and Warranties. Lessor warrants that
during the Term of any Lease, if no Event of Default has occurred, Lessee's
use of the Equipment shall not be interrupted by Lessor or anyone claiming
solely through or under Lessor.
The warranties set forth in the preceding paragraph are in lieu of all
other warranties of Lessor, whether written, oral or implied, and Lessor
shall not, by virtue of having executed this Agreement or any other
document pursuant to this Agreement, or for any other reason, be deemed to
have made any other warranties. LESSOR LEASES THE EQUIPMENT AS IS WITHOUT
WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING WITHOUT LIMITATION (A) THE DESIGN, PERFORMANCE,
SPECIFICATIONS OR CONDITION OF ANY ITEM OR ITEMS OF EQUIPMENT, (B) THE
MERCHANTABILITY THEREOF, (C) THE FITNESS FOR ANY PARTICULAR PURPOSE
THEREOF, (D) THE LESSOR'S TITLE THERETO, (E) INTERFERENCE BY ANY PARTY
OTHER THAN LESSOR WITH LESSEE'S RIGHT TO THE QUIET ENJOYMENT THEREOF, OR
(F) THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE EQUIPMENT OR
CONFORMITY THEREOF TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE
ORDER RELATING THERETO, IT BEING AGREED THAT ALL SUCH RISKS AS BETWEEN
LESSOR AND LESSEE ARE TO BE BORNE BY LESSEE. LESSEE FURTHER UNDERSTANDS
AND AGREES THAT NEITHER THE EQUIPMENT SUPPLIER NOR ANY SALESPERSON OR OTHER
AGENT OR EMPLOYER OF SUCH SUPPLIER IS AN AGENT FOR OR HAS ANY AUTHORITY TO
SPEAK FOR OR TO BIND LESSOR IN ANY WAY. LESSOR IS NOT AN AGENT OR
REPRESENTATIVE OF SUCH SUPPLIER. Lessor hereby authorizes Lessee, at
Lessee's expense, to assert for Lessor's account during the Term of a
Lease, all of Lessor's rights under any manufacturer's vendor's or dealer's
warranty on the Equipment to the extent permitted by law and
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FIRST SECURITY BANK OF NEVADA
MASTER EQUIPMENT LEASE AGREEMENT
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;
(iv) This Agreement constitutes a legal, valid and binding
obligation of Lessee, enforceable in accordance with its terms;
(v) There are no pending or threatened actions or proceedings before
any court, administrative agency or other tribunal or body or judgments
which may materially adversely affect Lessee's financial condition or
operations;
(vi) No approval, consent or withholding of objection is required
from any governmental authority with respect to the entering into or
performance by Lessee of this Agreement;
(VII) The balance sheet of Lessee for its most recent fiscal
year and the related earnings statement of Lessee for such fiscal year have
been furnished to Lessor and fairly present Lessee's financial condition as
of such date and the results of its operations for such year in accordance
with generally accepted accounting principles consistently applied, and
since such date there has been no material adverse change in such
conditions or operations; and
(VIII)Lessee shall not consolidate with or merge into any
other business entity or convey, transfer or lease substantially all of its
assets as an entirety to any third party without the prior written consent
of Lessor.
C. Year 2000 Compliant" shall mean, with regard to any entity, that
all software, hardware, firmware, equipment, goods or systems used by or
material to the business operations or financial condition of such entity
will properly perform date-sensitive functions before, during and after
January 1, 20000. Such date-sensitive functions shall include, without
limitations, (a) interpretation of years greater than 1999, (b) process
date data from, into, and between dates before January 1, 2000, and dates
on or after January 1, 2000, (c) recognizing numbers such as "99" as an
actual date rather than indefinite or an unknown information,
(d) recognizing that the year 2000 is a leap year, and (e) transferring
data between systems that used different methods to make the system Year
2000 Compliant. Lessee represents and warrants to Lessor that Lessee has
developed a detailed plan to ensure that Lessee, its affiliates, and all
customers, suppliers and vendors that are material to the Lessee's
business, become Year 2000 Compliant on or before June 30, 1999. The plan
(a) effectively prioritizes mission-critical systems, (b) has the
involvement of executive management, (c) includes assessment of Year 2000
Compliance of the customer, supplier, and vendors, (d) includes contingency
planning to mitigate risk from Year 2000 business interruptions affecting
key vendors, suppliers, or customers, and (e) has been allocated with
adequate resources within Lessee's abilities.
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.
A. Lessor shall retain full legal title to the Equipment
notwithstanding delivery to and possession and use thereof by Lessee. Upon
delivery of the Equipment Lessee shall cause said Equipment to be duly
registered, and at all times thereafter to remain duly registered, in the
name of Lessor, or at Lessor's request shall furnish to Lessor such
information as may be required to enable Lessor to make application for
such registration and shall promptly furnish to Lessor such information as
may be required to enable Lessor to file timely any reports required to be
filed by it as Lessor under the Lease or as the owner of the Equipment with
any governmental authority.
B. Lessee agrees that the Equipment will be used solely in the
conduct of its business. Lessee further agrees to comply in all material
respects with all applicable governmental laws, regulations, requirements
and rules with respect to the use, maintenance and operation of each Item
of Equipment. Lessee agrees that each Item of Equipment (except Items
which prior to the execution of this Lease Lessee shall have advised Lessor
in writing are normally used or to be used in more than one location) will
be kept at the address shown in the Schedules with respect to such Item
unless Lessor shall first otherwise consent in writing. Lessee will
immediately give written notice to Lessor of any change in its principal
place of business.
C. 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.
D. Lessee agrees at its own cost and expense to place such markings,
plates or other identification on the Equipment showing Lessor's title
thereto as Lessor may from time to time request, provided such
identification markings are placed so as not to interfere with the
usefulness of such Equipment. Except as above provided, Lessee will not
allow the name of any person, association or corporation to be placed on
the Equipment as a designation that might be interpreted as a claim of
ownership.
SECTION 9. INSPECTION.
Upon the request of Lessor, Lessee shall advise Lessor as to the
location of each Item of Equipment and shall, at any reasonable time, make
the Equipment available to Lessor or Lessor's agent for inspection at the
place where it is ordinarily located and shall make Lessee's records
pertaining to the Equipment available for Lessor's inspection.
SECTION 10. LOSS OR DESTRUCTION.
In the event any Item of Equipment shall be lost, stolen, destroyed,
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever ("Event of Loss"). Lessee shall promptly, but in any event
within ten (10) days of the Event of Loss, give written notification to
Lessor of said loss and the facts pertaining thereto. In addition, within
ten (10) days of the Event of Loss Lessee shall elect either: (a) to
replace such Item of Equipment at Lessee's own cost and expense of; or
(b) to pay to Lessor the Termination Value of the Item and shall notify
Lessor in writing of such election.
Should Lessee elect to replace such Item, any replacement Item shall
be free and clear of all liens, encumbrances and rights of others and shall
be of like kind and have substantially equal fair market value as the
replaced Item, as if such replaced Item were in the condition and repair
required to be maintained by the terms hereof.
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FIRST SECURITY BANK OF NEVADA
MASTER EQUIPMENT LEASE AGREEMENT
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 to 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; or
(iv) 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.
(v) Any event of default or default as described in the
documentation executed in connection with any other credit or lease
facility extended by Lessor, or any affiliated company of Lessor, to
Lessee.
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.
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FIRST SECURITY BANK OF NEVADA
MASTER EQUIPMENT LEASE AGREEMENT
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, X.X. Xxx 00000,
Xxxx Xxxx Xxxx, Xxxx, 00000. 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.YEAR 2000.
The Lessee shall take all actions that may be necessary or desirable,
or that Lessor may reasonably request, in order to ensure that the Lessee,
its affiliates and all customers, suppliers and vendors that are material
to the Lessee's business, become Year 2000 Compliant on or before June 30,
1999. Such actions shall include, without limitation, (a) performing a
comprehensive inventory, review and assessment of all of the Lessee's
systems and adopting a detailed plan with, itemized budget and timetable,
for the remediation, monitoring and testing such systems, and (b) making a
detailed inquiry of all material customers, suppliers and vendors to
ascertain whether such entities are aware of the need to be Year 2000
Compliant and are taking all appropriate steps to become Year 2000
Compliant on a timely basis. Lessee shall, promptly, upon request, provide
to Lessor such certifications or other evidence of Lessee's compliance
within the terms of this section as Lessor may, from time to time,
reasonably require.
SECTION 20. EXECUTION OF FINANCING STATEMENTS AND TITLE DOCUMENTS.
Lessee agrees to execute and deliver to Lessor such financing
statements and/or title documents as reasonably requested by Lessor to
protect and identify Lessor's interest in the Equipment. Lessee appoints
Lessor, or Lessor's agents or assigns, its true and lawful attorney-in-fact
to prepare, to execute and to sign any instrument or financing statement
concerning the Equipment, to sign the name of Lessee with the same force
and effect as if signed by Lessee, and to file the same at the locations
reasonably determined by Lessor.
SECTION 21. 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 22. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on behalf of them as of this JULY 1999 and
signatories warrant their authority to bind their principals.
LESSEE: CASINOVATIONS INCORPORATED
a(n) NEVADA corporation
------------------
BY: /s/ Xxxxxx X. Xxxx
--------------------------------
TITLE: President/C.E.O.
-----------------------------
Address: 0000 X. XXXXXXX XX.
XXX XXXXX, XX 00000
Federal ID or Social Security Number: 00-0000000
----------
LESSOR: FIRST SECURITY BANK OF NEVADA
By:
----------------------------------------------
XXXXX X. XXXXXXX
TITLE: AVP AND AUTHORIZED REPRESENTATIVE
Address: c/o First Security Leasing Company
000 Xxxx Xxxxxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
4
Lease No. 012-3004113
FIRST SECURITY BANK OF NEVADA
LEASE SCHEDULE TO
MASTER EQUIPMENT LEASE AGREEMENT
This Lease Schedule to Master Equipment Lease Agreement (the "Lease
Schedule") is entered into pursuant to terms of the Master Equipment Lease
Agreement (the "Agreement") between the signatories hereof dated JULY
1999 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.
[CAPTION]
A. DESCRIPTION OF EQUIPMENT
ID NEW INVOICE
OR OR PURCHASE
QUANTITY VENDOR DESCRIPTION SERIAL # USED PRICE
-------- ------ ----------- -------- ---- -----
1 CHEVROLET TRACKER 2D
1 CASINOVATIONS INCORPORATED 0XXXX00X0X0000000 New $ 15,333.58
1 CHEVROLET TRACKER 2D
1 CASINOVATIONS INCORPORATED 0XXXX00X0X0000000 New $ 15,381.85
TOTAL INVOICE PURCHASE PRICE: $ 30,715.43
B. TERM. 48 months.
C. RENTAL.
1. Frequency: MONTHLY
2. Advanced or Arrears: ARREARS
3. Rental Payment Dates: ___________, ____, and on the same day of each
MONTH with the final payment on __________, ___.
4. Basic Rental in an amount equal to 0.025846 of the total invoice
purchase price of all Items is payable on each Rental Payment Date.
5. 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 at:
Address: 0000 X. XXXXXXX XX. XXX XXXXX, XX 00000
County: XXXXX
If required, the Equipment will be registered in NV.
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:
$ 500,000.00 each individual
$ 500,000.00 each accident
$ 500,000.00 property damage liability
2. Physical Damage and Loss: $ 30,715.00
3. Additional riders, exclusions or special terms required by Lessor: NA.
H. OTHER TERMS.
N/A
I. EXECUTION OF FINANCING STATEMENTS AND TITLE DOCUMENTS.
Lessee agrees to execute and deliver to Lessor such financing
statements and/or title documents as reasonably requested by Lessor to protect
and identify Lessor's interest in the Equipment. Lessee appoints Lessor,
or Lessor's agents or assigns, its true and lawful attorney-in-fact to prepare,
to execute and to sign the name of Lessee with the same force and effect as if
signed by Lessee, and to file the same at the locations reasonably determined by
Lessor.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Schedule
to be duly executed on behalf of each of them on JULY 1999 and the
signatories warrant their authority to bind principals.
LESSEE: CASINOVATIONS INCORPORATED LESSOR: FIRST SECURITY BANK OF NEVADA
a(n) NEVADA Corporation
By:_______________________________________
BY: /s/ Xxxxxx X. Xxxx XXXXX X. XXXXXXX
------------------------------ Title: AVP AND AUTHORIZED REPRESENTATIVE
TITLE: President/C.E.O.
---------------------------
Addres: 0000 X. XXXXXXX XX. Address: c/o First Security Leasing Company
XXX XXXXX, XX 00000 000 Xxxx Xxxxxxxx, 0xx Xxxxx
Xxxxxxx XX or Social Security Xxxx Xxxx Xxxx, Xxxx 00000
Number: 00-0000000
1
