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EXHIBIT 10.9
MASTER FINANCE LEASE ZIONS CREDIT CORPORATION Lease Xx. 0000
X. X. Xxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000 Dated May 8, 1995
ZIONS CREDIT CORPORATION (hereinafter "LESSOR"), a Utah corporation, with
offices at 00 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and National Applied
Computer Technologies (hereinafter "LESSEE") with offices at 000 Xxxxx 000
Xxxx, Xxxx, 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").
2. TERM, RENTAL. The lease term and rental payments are specified in said
Equipment Schedule or Schedules. Lessee's obligation to make rental
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 or Schedules. 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. ADDITIONAL LEASING. Lessee and Lessor, from time to time, and by
mutual consent, may lease other Equipment, subject to the terms and
conditions contained in this Lease for such term and rental payments
as may be agreed, by execution of a subsequent Equipment Schedule or
Schedules, each of which shall become an amendment hereto and a part
hereof.
4. OWNERSHIP. Title to the Equipment shall at all times remain in Lessor
except as set forth in this Lease or Equipment Schedule or Schedules
hereto. 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 in said Equipment Schedule(s), 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 by Lessor or anyone claiming solely through or
under Lessor. The warranty set forth in the preceding
sentence is in lieu of all other warranties of Lessor, whether
written, oral, or implied; and Lessor shall not, by virtue
Initial Here 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 hereby DISCLAIMS ANY
OTHER REPRESENTATION OR WARRANTY, EITHER EXPRESSED OR IMPLIED,
AS TO ANY MATTER WHATSOEVER, WITHOUT 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 OTHER THAN THIS DISCLAIMER AND
WARRANTY. LESSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL
DAMAGES 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.
(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, 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. It shall be conclusively presumed
upon execution of the delivery and acceptance notice 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 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, cause Lessee's
obligations under this Lease to be discharged or diminished to any
extent. Lessor may assign this Lease and all rights it has hereunder
without Lessee's consent. 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.
9. MAINTENANCE, USE, AND COMPLIANCE WITH LAWS. Lessee, at its own cost
and expense shall repair and maintain Equipment so as to keep the
Equipment in good operating condition, ordinary wear and tear
excepted. The Equipment shall not be moved from the location(s) stated
in the Equipment Schedule without the prior written consent of Lessor.
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
be the property of Lessor. 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
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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. The obligations of Lessee
arising under this section shall continue in full force and effect,
notwithstanding the expiration or termination of this Lease or
Equipment Schedules hereto.
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 stated purchase amount as indicated in the applicable
Equipment Schedule, 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 notify Lessor in writing
immediately. If any Item of Equipment is damaged, but not beyond
repair, Lessee, at its own cost and expense, shall 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 Equipment Schedule or Schedules hereto. 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. In the event Lessor shall pay any part or all of
the purchase price of any Item of Equipment prior to Lessee's
inspection and acceptance as described in Section 6 hereof, the risk
of loss for such Item of Equipment shall be with Lessee from the time
of any such payment by Lessor.
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 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 provide
immediately to Lessor evidence of all insurance coverage obtained
pursuant to this section. 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 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. 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, sales, return, or other disposition
hereunder of the Equipment. The scope of this indemnity includes, but
is not limited to, all claims based on negligence, whether of Lessor
or another, breach of contract, breach of warranty, or strict
liability.
14. SURRENDER. Upon the expiration or termination of this Lease, Lessee
shall, at its own cost and expense, return Equipment unencumbered to
Lessor at the address specified by Lessor, in the same condition as
received, reasonable wear and tear excepted except as otherwise
indicated in the Equipment Schedule or Schedules hereto. In the event
that Lessee retains possession of the Equipment and with the consent
of Lessor, after expiration of the Lease 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 payment shall continue at the regular Lease 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, claims, 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, 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 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 defined in section 10.
(viii) Lessee is in default pursuant to the provisions of
any other agreement by and between Lessor and Lessee
or if Lessee or any Guarantor is in default, and any
applicable cure period has expired, under any
material agreement for the payment of money.
(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, to declare the
entire rental plus all other sums due provided for
under this Lease and each and every Equipment
Schedule hereto, plus the termination value of the
Equipment as defined in Section 11 herein 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 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;
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(iv) Lessor may lease the Equipment to any third party,
upon such 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 total unpaid rental plus all other sums
provided to be paid herein together with the
termination value of the Equipment as defined in
Section 11 herein, 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 breech thereof;
(vi) Pursue any other remedy available to Lessor at law or
in equity.
(c) In the Event of Default all amounts remaining unpaid shall
accrue interest at the rate of twenty-one percent (21%) 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 reserved 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
including reasonable attorney's fees in connection with any efforts by
Lessor to recover possession of any of the Equipment or to enforce any
of the terms and conditions or provisions hereof or to obtain damages
for any breach hereof. 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
hereto. In the event that this Lease or any Equipment Schedule or
Schedules hereto are assigned by Lessor, the Assignee 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 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 negotiating, preparing, enforcing, or protecting
Lessor's rights under this Lease or any Equipment schedules hereto,
including but not limited to, all attorney's fees whether or not legal
proceedings are instituted, all costs and expenses of obtaining
abstracts and title reports, title insurance, appraisals, foreclosure
reports, and all costs incurred in preserving, 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 hereto.
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 hereto, 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 twenty-one percent (21%)
per annum, shall be payable by Lessee upon demand as additional rent
for the leased Equipment.
19. NOTICES, REMEDIES, WAIVERS, SUCCESSORS. All notices relating hereto
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. The
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 Agreement 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
subparagraph (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 mortgagee
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.
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(f) Notwithstanding the applicability of other law to any other provision
of this Agreement, the Federal Arbitration Act, 9 U.S.C. s 1 et seq.,
shall apply to the construction and interpretation of this arbitration
paragraph.
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
right 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 is contrary
to, prohibited by, or deemed invalid under applicable laws or
regulations of any jurisdiction in which it is sought to be enforced,
than 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 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 said 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
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 leased
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 action, suit,
order, or proceeding pending or threatened against or
affecting Lessee 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 which
might materially impair the ability of Lessee to perform its
obligations under the Lease.
(v) Neither the execution and delivery by Lessee of the Lease, nor
the compliance by Lessee with the provisions hereof, conflicts
with or results in a breach of the provisions of the Articles
of Incorporation, or bylaws of Lessee, or any applicable law,
judgment, order, writ, injunction, decree, rule, or regulation
of any court, administrative agency or other governmental
authority, or of any agreement or other instrument to which
Lessee is bound, or constitutes or will constitute a default
under any thereof.
26. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties and may not be changed, modified, terminated, or
discharged except in writing. 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 verbal or written,
Initial Here between the parties hereto. This agreement is, and is intended
to be a lease, and Lessee does not 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.
By execution hereof, the signer hereby
certifies that he has read four
pages of this Agreement, and that he
is duly authorized to execute this
lease on behalf of the Lessee.
Executed this ______ day of ____________, 1995.
National Applied Computer Technologies
______________________________________________
Lessee
___________________________ By____________________________________________
Witness to Lessee Signature Authorized Signature Title
______________________________________________
Print Name of Signatory
State of )
)ss
County of )
Subscribed and sworn to before me this ______ day of ___________, 1995.
_____________________________
Notary Public
_____________________________
Residing at
Accepted this ______ day of ___________________, 1995.
ZIONS CREDIT CORPORATION
___________________________________________
Lessor
By_________________________________________
Xxxxxx Xxxxxx
Title: Vice President
_____________________________________
THIS LEASE CANNOT BE CANCELLED
Rev: 10/13/94 Page 4 of 4
5
ZIONS CREDIT CORPORATION
May 8, 1995
---------------------------------- --------------------------------------
(Insurance Agent) Schedule # 1
National Applied Computer Technologies
---------------------------------- --------------------------------------
(Address)
000 Xxxxx 000 Xxxx
---------------------------------- --------------------------------------
Xxxx, XX 00000
---------------------------------- --------------------------------------
(Xxxx) (Telephone)
Dear Agent:
Effective: May 8, 1995, we entered into a lease agreement with Zions
Credit Corporation for equipment incidental to our operations. Their insurable
interest is shown on the attached form which must be completed in full, signed,
and returned to them within thirty days. Any premium charged is our
responsibility.
If you are not able to use this form, Zions Credit Corporation will
require a memorandum copy of the policy, with the endorsements for their
interests attached. The Xxxxx 25, or other "certificate" form, which contains
the wording: "will endeavor to", "but failure to mail such notice shall impose
no obligation or liability of any kind upon the company, its agents or
representatives, is not acceptable.
If you have questions, please call the insurance coordinator at Zions
Credit Corporation (000) 000-0000.
Thank you for providing this service as agent of record.
National Applied Computer Technologies
______________________________________
Lessee
By:____________________________________
Title:_________________________________
(Please fill in complete insurance information above.)
===============================================================================
To Lessee:
This letter will be sent directly to your insurance company for immediate
coverage. If Zions Credit Corporation does not receive the evidence of
coverage or a copy of the policy in thirty days, insurance may be taken out
with Zions Insurance Agency to protect our interest, and if so, the premium
amount will be added on to your lease agreement.
6
Lease No: 6942
EQUIPMENT SCHEDULE Lease Date: May 8, 1995
(Option) Schedule No: 1
Schedule Date: May 8, 1995
ZIONS CREDIT CORPORATION (hereinafter "Lessor"), a Utah corporation, with
offices at 00 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and National Applied
Computer Technologies (hereinafter "Lessee") with offices at 000 Xxxxx 000
Xxxx, Xxxx, XX 00000 have entered into a Master Finance Lease No. 6942, dated
May 8, 1995 (herein incorporated by reference and called the "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. 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.
2. 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
, 1995, and subsequently on the same day of each month thereafter for
a period of 48 months. The total advance rental of $1,086.55
(representing the first months payment(s)) is due at the time of
signing this Equipment Schedule. The rental amount is as follows:
Rent: $1,023.84
Use Tax (6.125%): 62.71 (or applicable rate at time rental is due)
TOTAL RENT: $1,086.55
3. LEASE TERM. The term of this Lease with respect to the Equipment
described herein commences on , 1995, and unless earlier terminated in
accordance with the provisions of the Lease, expires on
, 1999.
4. OPTION TO PURCHASE. Provided this Lease has not been earlier
terminated, and Lessee has faithfully performed all terms and
conditions hereunder, including payment of all rents and other sums
when due, and Lessee is not then in default, Lessee shall have the
option to purchase, immediately upon expiration of the Lease Term, all
but not less than all property covered by this Lease for the amount of
$1.00 plus all applicable taxes.
5. PROPERTY TAXES. Zions Credit Corporation ("Lessor") is the owner of
the leased 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 leased 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".
Executed this day of ,19 .
National Applied Computer Technologies
______________________________________________
Lessee
______________________________ By:___________________________________________
Witness
Title:________________________________________
Accepted this_______day of _____________, 19____.
ZIONS CREDIT CORPORATION
__________________________________________
Lessor
By:_______________________________________
Xxxxxx Xxxxxx
Title: Vice President
------------------------------------
Rev: 2-17-95
7
SCHEDULE "A"
Page 1 of 1
This schedule is attached to and forms a part of the Master Finance Lease No.
6942 Schedule No. 1 dated May 8, 1995 between National Applied Computer
Technologies, as Lessee and Zions Credit Corporation, as Lessor.
_______________________________________________________________________________
DESCRIPTION OF EQUIPMENT
Equipment Location: 000 Xxxxx 000 Xxxx, Xxxx, XX 00000
1 - Digital Key-Bx S-400 Telephone System to include:
3- Executive Dap Base
3- Expanded Display
50- Display Speakerphone Station
6- Speakerphone Station
2- Telrad Link Data Card
7-4 Button Set
2- Add On Module
66- K Style Handsets for DKeyBX
1- Digital 400 Basic Pkg
1- Digital 400 Under Carriage
1- Digital 400 Power Supply
1-400 Memory Cartridge
1- Option Card
2- Option Module
4- Digital Station Card
2- Co Loop Start Card
1- T-1 Interface Card
1- I.V.M. 4 Port System
1- I.V.M. 2 Port Expansion Card
Together with all present and future accessories, attachments, or improvements
thereto and replacements or substitutions therefor and proceeds thereof.
National Applied Computer Technologies
__________________________________________
Lessee
By:_______________________________________
Title:____________________________________
8
Lease No: 6942
Lease Date: May 8, 1995
Schedule No: 1
Schedule Date: May 8, 1995
DELIVERY AND ACCEPTANCE
To: Zions Credit Corporation
The Items of Equipment described in the above referenced Master Finance Lease
and Equipment Schedule have been received by us on the date below. We certify
that all Items of Equipment have been fully completed, that the Items of
Equipment have been examined and/or tested and are in good order and operating
condition and are in all respects satisfactory and acceptable to us as
delivered.
You are hereby irrevocably authorized and directed to deliver the Lease funds
to the following in the amounts specified below:
Name: Tri-Tel Communications, Inc.
Address: 000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Amount: $40,516.00
National Applied Computer Technologies
__________________________________________
Lessee
By:_______________________________________
Title:____________________________________
Equipment Acceptance Date:_____________________________________________________
9
ZIONS CREDIT CORPORATION
_______________________________________________________________________________
X.X. Xxx 0000
Xxxx Xxxx Xxxx
Xxxx 00000-0000
(000) 000-0000
Fax (000) 000-0000
INVOICE
Due Date: Due upon signing lease documents
Lessee: National Applied Computer Technologies
Lease #: 6942, Sch. #2
Equipment: Port Advanced Hammer Package on Rackmount System
First Months Payment . . . . . . . . . . $1,451.91
Closing Fee . . . . . . . . . . . . . . . $ 914.54
Total Amount Due . . . . . . . . . . . . $2,366.45
=========
10
Lease No: 6942
EQUIPMENT SCHEDULE Lease Date: May 8, 1995
(Option) Schedule No: 2
Schedule Date: July 21, 1995
ZIONS CREDIT CORPORATION (hereinafter "Lessor"), a Utah corporation, with
offices at 00 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx and National Applied Computer
Technologies (hereinafter "Lessee") with offices at 000 Xxxxx 000 Xxxx, Xxxx, XX
00000 have entered into a Master Finance Lease No. 6942 dated May 8, 1995
(herein incorporated by reference and called the "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. 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.
2. 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
, 1995, and subsequently on the same day of each month
thereafter for period of 60 months. The total advance rental of
$1,451.91 (representing the first months payment(s)) is due at the
time of signing this Equipment Schedule. The rental amount is
as follows:
Rent: $1,368.11
Use Tax (6.125%): 83.80 (or applicable rate at time rental is due)
---------
TOTAL RENT: $1,451.91
=========
3. LEASE TERM. The term of this Lease with respect to the Equipment
described herein commences on , 1995, and unless earlier terminated in
accordance with the provisions of the Lease, expires on , 2000.
4. OPTION TO PURCHASE. Provided this Lease has not been earlier
terminated, and Lessee has faithfully performed all terms and
conditions hereunder, including payment of all rents and other sums
when due, and Lessee is not then in default, Lessee shall have the
option to purchase, immediately upon expiration of the Lease Term, all
but not less than all property covered by this Lease for the amount of
$1.00 plus all applicable taxes.
5. PROPERTY TAXES. Zions Credit Corporation ("Lessor") is the owner of the
leased 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 leased 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".
Executed this day of , 1995.
National Applied Computer Technologies
--------------------------------------------
Lessee
By:
-------------------------------- ----------------------------------------
Witness
Title:
-------------------------------------
Accepted this day of , 1995.
ZIONS CREDIT CORPORATION
---------------------------------------
Lessor
By:
-----------------------------------
Xxxxxx Xxxxxx
Title: Vice President
---------------------------------
Rev: 2-17-95
11
SCHEDULE "A"
Page 1 of 1
This schedule is attached to and forms a part of the Master Finance Lease
No. 6942 Schedule No. 2 dated July 21, 1995 between National Applied Computer
Technologies, as Lessee and Zions Credit Corporation, as Lessor.
_______________________________________________________________________________
DESCRIPTION OF EQUIPMENT
Equipment Location: 000 Xxxxx 000 Xxxx, Xxxx, XX 00000
1- T-48 R-48 Port Advanced Hammer Package on Rackmount Systems
1- TCP/IP
1- SR-8 Ports Speech Rec
1-4 Ports of Analog
Together with all present and future accessories, attachments, or improvements
thereto and replacements or substitutions therefor and proceeds thereof.
National Applied Computer Technologies
__________________________________________
Lessee
By:_______________________________________
Title:____________________________________
12
Lease No: 6942
Lease Date: May 8, 1995
Schedule No: 2
Schedule Date: July 21, 1995
DELIVERY AND ACCEPTANCE
To: Zions Credit Corporation
The Items of Equipment described in the above referenced Master Finance Lease
and Equipment Schedule have been received by us on the date below. We certify
that all Items of Equipment have been fully completed, that the Items of
Equipment have been examined and/or tested and are in good order and operating
condition and are in all respects satisfactory and acceptable to us as
delivered.
You are hereby irrevocably authorized and directed to deliver the Lease funds
to the following in the amounts specified below:
Name: Hammer Technologies, Inc.
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Amount: $66,175.00
National Applied Computer Technologies
__________________________________________
Lessee
By:_______________________________________
Title:____________________________________
Equipment Acceptance Date:_____________________________________________________
13
ZIONS CREDIT CORPORATION
July 21, 1995
______________________________________ ____________________________________
(Insurance Agent) Schedule # 2
National Applied Computer Technologies
______________________________________ ____________________________________
(Address)
000 Xxxxx 000 Xxxx
______________________________________ ____________________________________
Xxxx, XX 00000
______________________________________ ____________________________________
(Area) (Telephone)
Dear Agent:
Effective: July 21, 1995, we entered into a lease agreement with Zions
Credit Corporation for equipment incidental to our operations. Their insurable
interest is shown on the attached form which must be completed in full, signed,
and returned to them within thirty days. Any premium charged is our
responsibility.
If you are not able to use this form, Zions Credit Corporation will require
a memorandum copy of the policy, with the endorsements for their interests
attached. The Xxxxx 25, or other "certificate" form, which contains the
wording: "will endeavor to", "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents or
representatives," is not acceptable.
If you have questions, please call the insurance coordinator at Zions
Credit Corporation (000) 000-0000.
Thank you for providing this service as agent of record.
National Applied Computer Technologies
__________________________________________
Lessee
By:_______________________________________
Title:____________________________________
(Please fill in complete insurance
information above.)
===============================================================================
To Lessee:
This letter will be sent directly to your insurance company for immediate
coverage. If Zions Credit Corporation does not receive the evidence of
coverage or a copy of the policy in thirty days, insurance may be taken out
with Zions Insurance Agency to protect our interest, and if so, the premium
amount will be added on to your lease agreement.
