EXHIBIT 10.3
MASTER LEASE AGREEMENT
dated as of September 10, 1998 ("AGREEMENT")
THIS AGREEMENT, is between GENERAL ELECTRIC CAPITAL CORPORATION its
successors and assigns, if any ("LESSOR") and STILLWATER MINING COMPANY
("LESSEE"). Lessor has an office at 0 XXXXX XXXX XXXXX XXXXX 000, XXXX
XXXXXX, XX 00000. Lessee is a corporation organized and existing under the laws
of the State of Delaware. Lessee's mailing address and chief place of business
is 000 00/XX/ XXXXXX, XXXXX 0000, XXXXXX, XX 00000. This Agreement contains the
general terms that apply to the leasing of Equipment from Lessor to Lessee.
Additional terms that apply to the Equipment (term, rent, options, etc.) shall
be contained on a schedule ("SCHEDULE"). A form of the Schedule is attached.
1. LEASING
(a) Lessor agrees to lease to Lessee, and Lessee agrees to lease from
Lessor, the equipment ("EQUIPMENT") described in any Schedule signed by both
parties.
(b) Lessor shall purchase Equipment from the manufacturer or supplier
("SUPPLIER") and lease it to Lessee when Lessor receives (i) a Schedule for the
Equipment, (ii) evidence of insurance which complies with the requirements of
Section 9, and (iii) such other documents as Lessor may reasonably request.
Each of the documents required above must be in form and substance satisfactory
to Lessor. Lessor hereby appoints Lessee its agent for inspection and acceptance
of the Equipment from the Supplier. Once the Schedule is signed, the Lessee may
not cancel the Schedule.
2. TERM, RENT AND PAYMENT
(a) The rent payable for the Equipment and Lessee's right to use the
Equipment shall begin on the earlier of (i) the date when the Lessee signs the
Schedule and accepts the Equipment or (ii) when Lessee has accepted the
Equipment under a Certificate of Acceptance ("LEASE COMMENCEMENT DATE"). The
term of this Agreement shall be the period specified in the applicable Schedule.
The word "term" shall include all basic and any renewal terms.
(b) Lessee shall pay rent to Lessor at its address stated above, except
as otherwise directed by Lessor. Rent payments shall be in the amount set forth
in, and due as stated in the applicable Schedule. If any Advance Rent (as
stated in the Schedule) is payable, it shall be due when the Lessee signs the
Schedule. Advance Rent shall be applied to the first rent payment and the
balance, if any, to the final rent payment(s) under such Schedule. In no event
shall any Advance Rent or any other rent payments be refunded to Lessee. If
rent is not paid within ten (10) days of its due date, Lessee agrees to pay a
late charge of five cents ($.05) per dollar on, and in addition to, the amount
of such rent but not exceeding the lawful maximum, if any.
(c) Lessor shall not disturb Lessee's quiet enjoyment of the Equipment
during the term of the Agreement unless a default has occurred and is continuing
under this Agreement.
3. RENT ADJUSTMENT
[ This section has been deleted in its entirety]
4. TAXES. If permitted by law, Lessee shall report and pay promptly all
taxes, fees and assessments due, imposed, assessed or levied against any
Equipment (or purchase, ownership, delivery, leasing, possession, use or
operation thereof), this Agreement (or any rents or receipts hereunder), any
Schedule, Lessor or Lessee by any governmental entity or taxing authority during
or related to the term of this Agreement, including, without limitation, all
license and registration fees, and all sales, use, personal property, excise,
gross receipts, franchise, stamp or other taxes, imposts, duties and charges,
together with any penalties, fines or interest thereon (collectively "TAXES").
Lessee shall have no liability for Taxes imposed by the United States of America
or any state or political subdivision thereof which are on or measured by the
net income of Lessor except as provided in Sections 3 and 14(c). Lessee shall
promptly
reimburse Lessor (on an after tax basis) for any Taxes charged to or assessed
against Lessor. Lessee shall show Lessor as the owner of the Equipment on all
tax reports or returns, and send Lessor a copy of each report or return and
evidence of Lessee's payment of Taxes upon request.
5. REPORTS
(a) If any tax or other lien shall attach to any Equipment, Lessee will
notify Lessor in writing, within ten (10) days after Lessee becomes aware of the
tax or lien. The notice shall include the full particulars of the tax or lien
and the location of such Equipment on the date of the notice.
(b) Lessee will deliver to Lessor, Lessee's complete financial
statements, certified by a recognized firm of certified public accountants
within ninety (90) days of the close of each fiscal year of Lessee. Lessee will
deliver to Lessor copies of Lessee's quarterly financial report certified by the
chief financial officer of Lessee, within ninety (90) days of the close of each
fiscal quarter of Lessee. Lessee will deliver to Lessor all Forms 10-K and 10-
Q, if any, filed with the Securities and Exchange Commission within thirty (30)
days after the date on which they are filed.
(c) Lessor may inspect any Equipment during normal business hours after
giving Lessee reasonable prior notice.
(d) Lessee will keep the Equipment at the Equipment Location (specified
in the applicable Schedule) and will give Lessor prior written notice of any
relocation of Equipment. If Lessor asks, Lessee will promptly notify Lessor in
writing of the location of any Equipment.
(e) If any Equipment is lost or damaged (where the estimated repair costs
would exceed the greater of ten percent (10%) of the original Equipment cost or
ten thousand and 00/100 dollars ($10,000)), or is otherwise involved in an
accident causing personal injury or property damage, Lessee will promptly and
fully report the event to Lessor in writing.
(f) Lessee will furnish a certificate of an authorized officer of Lessee
stating that he has reviewed the activities of Lessee and that, to the best of
his knowledge, there exists no default or event which with notice or lapse of
time (or both) would become such a default within thirty (30) days after any
request by Lessor.
6. DELIVERY, USE AND OPERATION
(a) All Equipment shall be shipped directly from the Supplier to Lessee.
(b) Lessee agrees that the Equipment will be used by Lessee solely in the
conduct of its business and in a manner complying with all applicable laws,
regulations and insurance policies and Lessee shall not discontinue use of the
Equipment.
(c) Lessee will not move any equipment from the location specified on the
Schedule, without the prior written consent of Lessor.
(d) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor.
7. MAINTENANCE
(a) Lessee will, at its sole expense, maintain each unit of Equipment in
good operating order and repair, normal wear and tear excepted. The Lessee
shall also maintain the Equipment in accordance with manufacturer's
recommendations. Lessee shall make all alterations or modifications required to
comply with any applicable law, rule or regulation during the term of this
Agreement. If Lessor requests, Lessee shall affix plates, tags or other
identifying labels showing ownership thereof by Lessor. The tags or labels
shall be placed in a prominent position on each unit of Equipment.
(b) Lessee will not attach or install anything on any Equipment that will
impair the originally intended function or use of such Equipment without the
prior consent of Lessor. All additions, parts, supplies, accessories, and
equipment ("ADDITIONS") furnished or attached to any Equipment that are not
readily removable shall become the property of Lessor. All Additions shall be
made only in compliance with applicable law. Lessee will not attach or install
any Equipment to or in any other personal or real property without the prior
written consent of Lessor.
8. STIPULATED LOSS VALUE
If for any reason any unit of Equipment becomes worn out, lost, stolen,
destroyed, irreparably damaged or unusable ("CASUALTY OCCURRENCES") Lessee shall
promptly and fully notify Lessor in writing. Lessee shall pay Lessor the sum of
(x) the Stipulated Loss Value (see Schedule) of the affected unit determined as
of the rent payment date prior to the Casualty Occurrence; and (y) all rent and
other amounts which are then due under this Agreement on the Payment Date
(defined below) for the affected unit. The Payment Date shall be the next rent
payment date after the Casualty Occurrence. Upon Payment of all sums due
hereunder, the term of this lease as to such unit shall terminate.
9. INSURANCE
(a) Lessee shall bear the entire risk of any loss, theft, damage to, or
destruction of, any unit of Equipment from any cause whatsoever from the time
the Equipment is shipped to Lessee.
(b) Lessee agrees, at its own expense, to keep all Equipment insured for
such amounts and against such hazards as Lessor may reasonably require. All such
policies shall be with companies, and on terms, reasonably satisfactory to
Lessor. The insurance shall include coverage for damage to or loss of the
Equipment, liability for personal injuries, death or property damage. Lessor
shall be named as additional insured with a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or
other act or omission of Lessee. The insurance shall provide for liability
coverage in an amount equal to at least ONE MILLION U.S. DOLLARS ($1,000,000.00)
total liability per occurrence, unless otherwise stated in any Schedule. The
casualty/property damage coverage shall be in an amount equal to the higher of
the Stipulated Loss Value or the full replacement cost of the Equipment. No
insurance shall be subject to any co-insurance clause. The insurance policies
may not be altered or canceled by the insurer until after thirty (30) days
written notice to Lessor. Lessee agrees to deliver to Lessor evidence of
insurance reasonably satisfactory to Lessor.
(c) Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make
proof of loss and claim for insurance, and to make adjustments with insurers and
to receive payment of and execute or endorse all documents, checks or drafts in
connection with insurance payments. Lessor shall not act as Lessee's attorney-
in-fact unless Lessee is in default. Lessee shall pay any reasonable expenses
of Lessor in adjusting or collecting insurance. Lessee will not make
adjustments with insurers except with respect to claims for damage to any unit
of Equipment where the repair costs are less than the lesser of ten percent
(10%) of the original Equipment cost or two hundred thousand and 00/100
dollars$200,000). Lessor may, at its option, apply proceeds of insurance, in
whole or in part, to (i) repair or replace Equipment or any portion thereof, or
(ii) satisfy any obligation of Lessee to Lessor under this Agreement.
10. RETURN OF EQUIPMENT
(a) At the expiration or termination of this Agreement or any Schedule,
Lessee shall perform any testing and repairs required to place the units of
Equipment in the same condition and appearance as when received by Lessee
(reasonable wear and tear excepted) and in good working order for the original
intended purpose of the Equipment. If required the units of Equipment shall be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is reasonably satisfactory to
Lessor. Lessee shall remove installed markings that are not necessary for the
operation, maintenance or repair of the Equipment. All Equipment will be
cleaned, cosmetically acceptable, and in such condition as to be immediately
installed into use in a similar environment for which the Equipment was
originally intended to be used. All waste material and fluid must be removed
from the Equipment and disposed of in accordance with then current waste
disposal laws. Lessee shall return the units of Equipment to a location within
the continental United States as Lessor shall direct. Lessee shall obtain and
pay for a policy of transit insurance for the redelivery period in an amount
equal to the replacement value of the Equipment. The transit insurance must
name Lessor as the loss payee. The Lessee shall pay for all costs to comply
with this section (a).
(b) Until Lessee has fully complied with the requirements of Section
10(a) above, Lessee's rent payment obligation and all other obligations under
this Agreement shall continue from month to month notwithstanding any expiration
or termination of the lease term. Lessor may terminate the Lessee's right to
use the Equipment upon ten (10) days notice to Lessee.
(c) Lessee shall provide to Lessor a detailed inventory of all components
of the Equipment including model and serial numbers. Lessee shall also provide
an up-to-date copy of all other documentation pertaining to the Equipment. All
service manuals, blue prints, process flow diagrams, operating manuals,
inventory and maintenance records shall be given to Lessor at least ninety (90)
days and not more than one hundred twenty (120) days prior to lease termination.
(d) Lessee shall make the Equipment available for on-site operational
inspections by potential purchasers at least one hundred twenty (120) days prior
to and continuing up to lease termination. Lessor shall provide Lessee with
reasonable notice prior to any inspection. Lessee shall provide personnel,
power and other requirements necessary to demonstrate electrical, hydraulic and
mechanical systems for each item of Equipment.
11. DEFAULT AND REMEDIES
(a) Lessor may in writing declare this Agreement in default if: (1) (A)
Lessee breaches its obligation to pay rent when due and fails to cure the breach
within ten (10) days;( B) or if Lessee breaches its obligations to pay any other
sums due ( other than rent) hereunder and fails to cure the breach within thirty
(30) days after written notice from Lessor 2) Lessee breaches any of its
insurance obligations under Section 9; (3) Lessee breaches any of its other
obligations and fails to cure that breach within thirty (30) days after written
notice from Lessor; (4) any representation or warranty made by Lessee in
connection with this Agreement shall be false or misleading in any material
respect; (5) Lessee becomes insolvent or ceases to do business as a going
concern; (6) any Equipment is illegally used; or (7) a petition is filed by or
against Lessee or any Guarantor of Lessee's obligations to Lessor under any
bankruptcy or insolvency laws and in the event of an involuntary petition, the
petition is not dismissed within forty-five (45) days of the filing date. The
default declaration shall apply to all Schedules unless specifically excepted by
Lessor.
(b) After a default, at the request of Lessor, Lessee shall comply with
the provisions of Section 10(a). Lessee hereby authorizes Lessor to peacefully
enter any premises where any Equipment may be and take possession of the
Equipment. Lessee shall immediately pay to Lessor without further demand as
liquidated damages for loss of a bargain and not as a penalty, the Stipulated
Loss Value of the Equipment (calculated as of the rent date next preceding the
declaration of default), and all rents and other sums then due under this
Agreement and all Schedules. Lessor may terminate this Agreement as to any or
all of the Equipment. A termination shall occur only upon written notice by
Lessor to Lessee and only as to the units of Equipment specified in any such
notice. Lessor may, but shall not be required to, sell Equipment at private or
public sale, in bulk or in parcels, with or without notice, and without having
the Equipment present at the place of sale. Lessor may also, but shall not be
required to, lease, otherwise dispose of or keep idle all or part of the
Equipment. Lessor may use Lessee's premises for a reasonable period of time for
any or all of the purposes stated above without liability for rent, costs,
damages or otherwise. The proceeds of sale, lease or other disposition, if any,
shall be applied in the following order of priorities: (1) to pay all of
Lessor's costs, charges and expenses incurred in taking, removing, holding,
repairing and selling, leasing or otherwise disposing of Equipment; then, (2) to
the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee
under this Agreement; then (3) to reimburse to Lessee any sums previously paid
by Lessee as liquidated damages; and (4) any surplus shall be retained by
Lessor. Lessee shall immediately pay any deficiency in (1) and (2) above .
(c) The foregoing remedies are cumulative, and any or all thereof may be
exercised instead of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition
(and the time and place thereof), and the manner and place of any advertising.
Lessee shall pay Lessor's actual attorney's fees incurred in connection with the
enforcement, assertion, defense or preservation of Lessor's rights and remedies
under this Agreement, or if prohibited by law, such lesser sum as may be
permitted. Waiver of any default shall not be a waiver of any other or
subsequent default.
(d) Any default under the terms of this or any other agreement between
Lessor and Lessee may be declared by Lessor a default under this and any such
other agreement.
12. ASSIGNMENT: LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, ENCUMBER OR SUBLET
ANY EQUIPMENT OR THE INTEREST OF LESSEE IN THE EQUIPMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR. Lessor may, without the consent of Lessee, assign
this Agreement, any Schedule or the right to enter into a Schedule. Lessee
agrees that if Lessee receives written notice of an assignment from Lessor,
Lessee will pay all rent and all other amounts payable under any assigned
Schedule to such assignee or as instructed by Lessor. Lessee also agrees to
confirm in writing receipt of the notice of assignment as may be reasonably
requested by assignee. Lessee hereby waives and agrees not to assert against
any such assignee any defense, set-off, recoupment claim or counterclaim which
Lessee has or may at any time have against Lessor for any reason whatsoever.
13. NET LEASE Lessee is unconditionally obligated to pay all rent and other
amounts due for the entire lease term no matter what happens, even if the
Equipment is damaged or destroyed, if it is defective or if Lessee no longer can
use it; provided, however, in the event of a Casualty Occurrence and Lessee's
payment of the Stipulated Loss Value of the affected item of Equipment and all
other amounts due under Section 8 hereof, Lessee's obligation to make future
payments with respect to such affected item shall terminate.. Lessee is not
entitled to reduce or set-off against rent or other amounts due to Lessor or to
anyone to whom Lessor assigns this Agreement or any Schedule whether Lessee's
claim arises out of this Agreement, any Schedule, any statement by Lessor,
Lessor's liability or any manufacturer's liability, strict liability, negligence
or otherwise.
14. INDEMNIFICATION
(a) Lessee hereby agrees to indemnify Lessor, its agents, employees,
successors and assigns (on an after tax basis) from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including legal
expenses, of whatsoever kind and nature arising out of or relating to the
Equipment or this Agreement, except to the extent the losses, damages,
penalties, injuries, claims, actions, suits or expenses result from Lessor's
gross negligence or willful misconduct ("CLAIMS"). This indemnity shall
include, but is not limited to, Lessor's strict liability in tort and Claims,
arising out of (i) the selection, manufacture, purchase, acceptance or rejection
of Equipment, the ownership of Equipment during the term of this Agreement, and
the delivery, lease, possession, maintenance, uses, condition, return or
operation of Equipment (including, without limitation, latent and other defects,
whether or not discoverable by Lessor or Lessee and any claim for patent,
trademark or copyright infringement or environmental damage) or (ii) the
condition of Equipment sold or disposed of after use by Lessee, any sublessee or
employees of Lessee. Lessee shall, upon request, defend any actions based on,
or arising out of, any of the foregoing.
(b) Lessee hereby represents, warrants and covenants that (i) on the
Lease Commencement Date for any unit of Equipment, such unit will qualify for
all of the items of deduction and credit specified in Section C of the
applicable Schedule ("TAX BENEFITS") in the hands of Lessor, and (ii) at no time
during the term of this Agreement will Lessee take or omit to take, nor will it
permit any sublessee or assignee to take or omit to take, any action (whether or
not such act or omission is otherwise permitted by Lessor or by this Agreement),
which will result in the disqualification of any Equipment for, or recapture of,
all or any portion of such Tax Benefits.
(c) If as a result of a breach of any representation, warranty or
covenant of the Lessee contained in this Agreement or any Schedule (1) tax
counsel of Lessor shall determine that Lessor is not entitled to claim on its
Federal income tax return all or any portion of the Tax Benefits with respect to
any Equipment, or (2) any Tax Benefit claimed on the Federal income tax return
of Lessor is disallowed or adjusted by the Internal Revenue Service, or (3) any
Tax Benefit is recalculated or recaptured (any determination, disallowance,
adjustment, recalculation or recapture being a "LOSS"), then Lessee shall pay
to Lessor, as an indemnity and as additional rent, an amount that shall, in the
reasonable opinion of Lessor, cause Lessor's after-tax economic yields and cash
flows to equal the Net Economic Return that would have been realized by Lessor
if such Loss had not occurred. Such amount shall be payable upon demand
accompanied by a statement describing in reasonable detail such Loss and the
computation of such amount. The economic yields and cash flows shall be
computed on the same assumptions, including tax rates as were used by Lessor in
originally evaluating the transaction ("NET ECONOMIC RETURN"). If an adjustment
has been made under Section 3 then the Effective Rate used in the next preceding
adjustment shall be substituted.
(d) All references to Lessor in this Section 14 include Lessor and the
consolidated taxpayer group of which Lessor is a member. All of Lessor's rights,
privileges and indemnities contained in this Section 14 shall survive the
expiration or other termination of this Agreement. The rights, privileges and
indemnities contained herein are expressly made for the benefit of, and shall be
enforceable by Lessor, its successors and assigns.
15. DISCLAIMER: LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT
WITHOUT ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT
MAKE, HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED UNDER THIS AGREEMENT OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks, as between Lessor and Lessee, are to be borne by Lessee.
Without limiting the foregoing, Lessor shall have no responsibility or liability
to Lessee or any other person with respect to any of the following (1) any
liability, loss or damage caused or alleged to be caused directly or indirectly
by any Equipment, any inadequacy thereof, any deficiency or defect (latent or
otherwise) of the Equipment, or any other circumstance in connection with the
Equipment; (2) the use, operation or performance of any Equipment or any risks
relating to it; (3) any interruption of service, loss of business or anticipated
profits or consequential damages; or (4) the delivery, operation, servicing,
maintenance, repair, improvement or replacement of any Equipment. If, and so
long as, no default exists under this Lease, Lessee shall be, and hereby is,
authorized during the term of this Lease to assert and enforce whatever claims
and rights Lessor may have against any Supplier of the Equipment at Lessee's
sole cost and expense, in the name of and for the account of Lessor and/or
Lessee, as their interests may appear.
16. REPRESENTATIONS AND WARRANTIES OF LESSEE Lessee makes each of the
following representations and warranties to Lessor on the date hereof and on the
date of execution of each Schedule.
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Agreement and all related documents (together, the "DOCUMENTS").
Lessee is duly qualified to do business wherever necessary to carry on its
present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies may be limited under applicable bankruptcy and insolvency laws.
(c) No approval, consent or withholding of objections is required from
any governmental authority or entity with respect to the entry into or
performance by Lessee of the Documents except such as have already been
obtained.
(d) The entry into and performance by Lessee of the Documents will not:
(i) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's Certificate of Incorporation or bylaws; or (ii) result in
any breach of, constitute a default under or result in the creation of any lien,
charge, security interest or other encumbrance upon any Equipment pursuant to
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
instrument (other than this Agreement) to which Lessee is a party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Lessee, which if decided against Lessee will have a material adverse effect on
the ability of Lessee to fulfill its obligations under this Agreement.
(f) The Equipment accepted under any Certificate of Acceptance is and
will remain tangible personal property.
(g) Each financial statement delivered to Lessor has been prepared in
accordance with generally accepted accounting principles consistently applied.
Since the date of the most recent financial statement, there has been no
material adverse change.
(h) Lessee is and will be at all times validly existing and in good
standing under the laws of the State of its incorporation (specified in the
first sentence of this Agreement).
(i) The Equipment will at all times be used for commercial or business
purposes.
17. EARLY TERMINATION
[ This section has been deleted in its entirety]
18. PURCHASE OPTION
(a) Lessee may at lease expiration purchase all (but not less than all)
of the Equipment in any Schedule on an AS IS BASIS for cash equal to its then
Fair Market Value (plus all applicable sales taxes). Lessee must notify Lessor
of its intent to purchase the Equipment in writing at least one hundred eighty
(180) days in advance. If Lessee is in default or if the Lease has already been
terminated Lessee may not purchase the Equipment.
(b) "Fair Market Value" shall mean the price that a willing buyer (who is
neither a lessee in possession nor a used equipment dealer) would pay for the
Equipment in an arm's-length transaction to a willing seller under no compulsion
to sell. In determining the Fair Market Value the Equipment shall be assumed to
be in the condition in which it is required to be maintained and returned under
this Agreement. If the Equipment is installed it shall be valued on an
installed basis. The costs of removal from current location shall not be a
deduction from the value of the Equipment. If Lessor and Lessee are unable to
agree on the Fair Market Value at least one hundred thirty-five (135) days
before lease expiration, Lessor shall appoint an independent appraiser
(reasonably acceptable to Lessee) to determine Fair Market Value. The
independent appraiser's determination shall be final, binding and conclusive.
Lessee shall bear all costs associated with any such appraisal.
(c) Lessee shall be deemed to have waived this option unless it provides
Lessor with written notice of its irrevocable election to exercise the same
within fifteen (15) days after Fair Market Value is told to Lessee.
19. MISCELLANEOUS
(a) LESSEE AND LESSOR UNCONDITIONALLY WAIVE THEIR RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY
OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN LESSEE AND LESSOR
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS WAIVER MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT,
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS
TRANSACTION OR ANY RELATED TRANSACTION. THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
(b) The Equipment shall remain Lessor's property unless Lessee purchases
the Equipment from Lessor and until such time Lessee shall only have the right
to use the Equipment as a lessee. Any cancellation or termination by Lessor of
this Agreement, any Schedule, supplement or amendment hereto, or the lease of
any Equipment hereunder shall not release Lessee from any then outstanding
obligations to Lessor hereunder. All Equipment shall at all times remain
personal property of Lessor even though it may be attached to real property.
The Equipment shall not become part of any other property by reason of any
installation in, or attachment to, other real or personal property .
(c) Time is of the essence of this Agreement. Lessor's failure at any
time to require strict performance by Lessee of any of the provisions hereof
shall not waive or diminish Lessor's right at any other time to demand strict
compliance with this Agreement. Lessee agrees, upon Lessor's request, to
execute any instrument necessary or expedient for filing, recording or
perfecting the interest of Lessor. All notices required to be given hereunder
shall be deemed adequately given if sent by registered or certified mail to the
addressee at its address stated herein, or at such other place as such addressee
may have specified in writing. This Agreement and any Schedule and Annexes
thereto constitute the entire agreement of the parties with respect to the
subject matter hereof. NO VARIATION OR MODIFICATION OF THIS AGREEMENT OR ANY
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO.
(d) If Lessee does not comply with any provision of this Agreement,
Lessor shall have the right, but shall not be obligated, to effect such
compliance, in whole or in part. All reasonable amounts spent and obligations
incurred or assumed by Lessor in effecting such compliance shall constitute
additional rent due to Lessor. Lessee shall pay the additional rent within five
days after the date Lessor sends notice to Lessee requesting payment. Lessor's
effecting such compliance shall not be a waiver of Lessee's default.
(e) Any rent or other amount not paid to Lessor when due shall bear
interest, from the due date until paid, at the lesser of eighteen percent (18%)
per annum or the maximum rate allowed by law. Any provisions in this Agreement
and any Schedule that are in conflict with any statute, law or applicable rule
shall be deemed omitted, modified or altered to conform thereto.
(f) Adjustment to Capitalized Lessor's Cost. Lessee hereby irrevocably
authorizes Lessor to adjust the Capitalized Lessor's Cost up or down by no more
than ten percent (10%) within each Schedule to account for equipment change
orders, equipment returns, invoicing errors, and similar matters. Lessee
acknowledges and agrees that the rent shall be adjusted as a result of the
change in the Capitalized Lessor's Cost. Lessor shall send Lessee a written
notice stating the final Capitalized Lessor's Cost, if it has changed.
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT.
(h) Any cancellation or termination by Lessor, pursuant to the provision
of this Agreement, any Schedule, supplement or amendment hereto, of the lease of
any Equipment hereunder, shall not release Lessee from any then outstanding
obligations to Lessor hereunder.
(i) To the extent that any Schedule would constitute chattel paper, as
such term is defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction, no security interest therein may be created through the
transfer or possession of this Agreement in and of itself without the transfer
or possession of the original of a Schedule executed pursuant to this Agreement
and incorporating this Agreement by reference; and no security interest in this
Agreement and a Schedule may be created by the transfer or possession of any
counterpart of the Schedule other than the original thereof, which shall be
identified as the document marked "Original" and all other counterparts shall be
marked "Duplicate".
IN WITNESS WHEREOF, Lessee and Lessor have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION STILLWATER MINING CO.
By: /S/ XXX XXX By: /s/ XXXXX X. XXXXXX
------------------------------ -----------------------------
Name: Xxx Xxx Name: Xxxxx X. Xxxxxx
---------------------------- ---------------------------
Title: Credit Analyst Title: Vice President and CFO
--------------------------- --------------------------
ADDENDUM NO. 1
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 10, 1998
THIS ADDENDUM (this "ADDENDUM") amends and supplements the above referenced
lease (the "LEASE"), between GENERAL ELECTRIC CAPITAL CORPORATION ("LESSOR") and
STILLWATER MINING COMPANY ("LESSEE") and is hereby incorporated into the Lease
as though fully set forth therein. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Lease.
The Lease is hereby amended as follows:
1. XXI. ADDITIONAL COVENANTS.
(a) At all times during the term of the Lease, Lessee shall
maintain: (i) a ratio of Total Liabilities to Tangible Net Worth of equal
to or less than 1.5 TO 1.0; (ii) A Fixed Charge Coverage Ratio of equal to
or greater than 2.0 to 1.0, (iii) effective March 31, 1999, Lessee must
have entered into supply contracts to supply a minimum of 80% of Lessee's
total annual expected palladium production for a minimum of five (5) years.
If Lessee ceases to satisfy any of such requirements, Lessee shall cause to
be delivered to Lessor an irrevocable standby letter of credit as described
in Section XXI(c) below or Lessee shall pay to Lessor a Termination Fee
equal to 100% of the Acquisition Cost on or before April 30, 1999. Tangible
Net Worth shall be defined as Total Stockholder's Equity minus Intangible
Assets plus all Debt which is contractually subordinate to this Lease
Agreement. The Fixed Charge Coverage Ratio, for purposes of this
calculation, will be Earnings before Interest, Taxes, Depreciation, and
Amortization divided by the sum of Current Portion of Long Term Debt,
Interest Expense and Preferred Dividends. Except as defined herein,
accounting terms used herein shall be as defined, and all calculations
hereunder shall be made, in accordance with GAAP.
(b) Lessee's chief financial officer or any other officer of
Lessee shall notify Lessor of the total supply contracts entered into by
Lessee by March 31, 1999 and shall certify that such amounts are in
compliance with the requirements of Section XXI(a) above, such notification
and certification shall be providedany time prior to March 31, 1999.
Lessee's chief financial officer or an officer of Lessee shall notify
Lessor the amount of Lessee's ratio of Total Liabilities to Tangible Net
Worth and Fixed Charge Coverage Ratio and shall certify that such amounts
are in compliance with the requirements of Section XXI(a) above such
notification and certification shall be provided within ninety (90) days of
the close of each fiscal quarter.
(c) The irrevocable standby letter of credit provided pursuant to
this addendum shall be (i) in the amount of the then Stipulated Loss Value
of all of the Equipment, (ii) issued by a bank which is acceptable to
Lessor in its sole discretion, (iii) in the form attached as Exhibit A or
as may be acceptable to Lessor in its sole discretion, and (iv) for an
initial term of six months with automatic semi-annual renewals thereafter
(without amendment except for extension of the then current expiration date
by an additional six months) until Lessee has received written notice from
Lessor to the effect that the Letter of Credit is being released in its
entirety. Lessee shall also execute a Letter of Credit Agreement in the
form attached as Exhibit B.
(d) If Lessee has provided the Letter of Credit as required
herein Lessor shall release the Letter of Credit if, (X)for twoquarters,
Lessee (i) is not in default under the Lease, and (ii) is in compliance
with the covenants stated herein and (Y) Lessee has entered into supply
contracts to supply a minimum of 80% of Lessee's total annual expected
palladium production for a minimum term of five (5) years. Lessee shall
also provide Lessor with a compliance certificate indicating that the
Lessee is in compliance with the required covenants. Upon the release of
the Letter of Credit the terms of this Section XXI are reinstated.
Except as expressly modified hereby, all terms and provisions of the Lease shall
remain in full force and effect. This Addendum is not binding nor effective
with respect to the Lease or the Equipment until executed on behalf of Lessor
and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be executed
by their duly authorized representatives as of the date first above written.
LESSEE: LESSOR:
STILLWATER MINING COMPANY GENERAL ELECTRIC CAPITAL CORPORATION
BY: /s/ XXXXX X. XXXXXX BY: /s/ XXX XXX
------------------------------------ --------------------------------
ITS: Vice President and CFO ITS: Credit Analyst
----------------------------------- -------------------------------
DATED: September 11, 1998 DATED: September 14, 1998
--------------------------------- -----------------------------
ATTEST:
BY: /s/ XXXX XXXXXXX
--------------------------------
NAME: Xxxx Xxxxxxx
------------------------------
SLB/CS
MINING AND QUARRY EQUIPMENT SCHEDULE
SCHEDULE NO. 001
DATED THIS SEPTEMBER 10, 1998
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 10, 1998
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
-----------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION STILLWATER MINING COMPANY
0 XXXXX XXXX XXXXX XXXXX 000 000 00/XX/ XXXXXX XXXXX 0000
XXXX VALLEY, MD 21030 XXXXXX, XX 00000
Capitalized terms not defined herein shall have the meanings assigned to them in
the Master Lease Agreement identified above ("AGREEMENT"; the Agreement as it
relates to this Schedule, together with this Schedule being collectively
referred to as "LEASE").
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees
---------
to Lease to Lessee the Equipment described below (the "EQUIPMENT").
NUMBER CAPITALIZED
OF UNITS LESSORS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------ ------------ ------------- ---------------------------
See Annex A attached hereto and forming a part hereof
Equipment immediately listed above is located at: 12 Miles Xxxxx XX 000,
XxXxxx, Xxxxx Xxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advance Rent (if any): $95,283.83 5. Basic Term Commencement Date: September 11, 1998
2. Capitalized Lessor's Cost: $ 6,960,104.54 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 84 Months. 7. Last Delivery Date: AUGUST 17, 1998
4. Basic Term Lease Rate Factor: 1.369% 8. Daily Lease Rate Factor: .0456
9. First Termination Date: SEVENTY-TWO (72) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on _N/A.
11. Basic Term Rent. Commencing on SEPTEMBER 11, 1998 and on the same day of
each month thereafter (each, a "Rent Payment Date") during the Basic
Term, Lessee shall pay as rent ("Basic Term Rent") the product of the
Basic Term Lease Rate Factor times the Capitalized Lessor's Cost of all
Equipment on this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching to
straight line method for the 1st taxable year for which using the
straight line method with respect to the adjusted basis as of the
beginning of such year will yield a larger allowance
2. Recovery Period: SEVEN (7) YEARS.
3. Basis: 100% of Capitalized Lessors Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN 00 XXXXX XX 000, XXXXXX, XX 00000:
Lessee agrees that it will (a) list all such Equipment, (b) report all
property taxes assessed against such Equipment and (c) pay all such
taxes when due directly to the appropriate taxing authority until Lessor
shall otherwise direct in writing. Upon request of Lessor, Lessee shall
promptly provide proof of filing and proof of payment to Lessor.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM
COMMERCIAL CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES
THE FOLLOWING DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A)
THE PERSON(S) SUPPLYING THE EQUIPMENT IS SEE ANNEX A ATTACHED HERETO AND
FORMING A PART HEREOF (THE "SUPPLIER(S)"), (B) LESSEE IS ENTITLED TO THE
PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY THIRD PARTY, PROVIDED TO
THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE EQUIPMENT IN
CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH LESSOR ACQUIRED THE
EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY COMMUNICATE
WITH SUPPLIER(S) AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF SUCH
PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND LIMITATIONS OF
THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE
HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE IN
ARTICLE 2A AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR
OTHERWISE WHICH MAY LIMIT OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES
UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
See Annex B attached hereto and forming a part hereof
*The Stipulated Loss Value or Termination Value for any unit of
Equipment shall be the Capitalized Lessor's Cost of such unit multiplied
by the appropriate percentage derived from the above table. In the event
that the Lease is for any reason extended, then the last percentage
figure shown above shall control throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY
For purposes of this Schedule only, the Agreement is amended as follows:
1. The LEASING Section subsection (b) of the Lease is hereby
deleted in its entirety and the following substituted in its stead:
b) The obligation of Lessor to purchase the Equipment from
Lessee and to lease the same to Lessee shall be subject to receipt by
Lessor, on or prior to the earlier of the Lease Commencement Date or
Last Delivery Date therefor, of each of the following documents in form
and substance satisfactory to Lessor: (i) evidence of insurance which
complies with the requirements of the INSURANCE Section of the Lease,
and (ii) such other documents as Lessor may reasonably request.
2. The DELIVERY, USE AND OPERATION Section subsection (a) of the
Lease shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and
the Equipment is in Lessee's possession as of the Lease Commencement
Date.
3. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount
set forth in B 2. above, which includes any applicable sales taxes
(which payment Lessee acknowledges), hereby grants, sells, assigns,
transfers and delivers to Lessor the Equipment along with whatever
claims and rights Seller may have against the manufacturer and/or
Supplier of the Equipment, including but not limited to all warranties
and representations. At Lessors request Lessee will
cause Supplier to deliver to Lessor a written statement wherein the Supplier (i)
consents to the assignment to Lessor of whatever claims and rights Lessee may
have against the Supplier, (ii) agrees not to retain any security interest, lien
or other encumbrance in or upon the Equipment at any time, and to execute such
documents as Lessor may request to evidence the release of any such encumbrance,
and (iii) represents and warrants to Lessor (x) that Supplier has previously
conveyed full title to the Equipment to Lessee, (y) that the Equipment was
delivered to Lessee and installation completed, and (z) that the final purchase
price of the Equipment (or a specified portion of such purchase price) has been
paid by Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant
to the Lease. Lessee represents and warrants to Lessor that (i) Lessor will
acquire by the terms of this Xxxx of Sale good title to the Equipment free from
all liens and encumbrances whatsoever; (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and all
excise, personal property, use and sales taxes, and from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions and suits
resulting therefrom and imposed upon, incurred by or asserted against Lessor as
a consequence of the sale of the Equipment to Lessor.
4. ACCEPTANCE
Pursuant to the provisions of the Lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable); (ii) Lessee has inspected the
Equipment, and all such testing as it deems necessary has been performed by
Lessee, Supplier or the manufacturer; and (iii) Lessee accepts the Equipment for
all purposes of the Lease, the purchase documents and all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
5. EQUIPMENT SPECIFIC PROVISIONS
The first sentence of the REPORTS Section subsection (d) of the Lease
shall be deleted in its entirety and the following substituted in its stead:
(d) Lessee will promptly notify Lessor in writing of a change in the
Equipment Location in the event that any unit of Equipment fails to return to
such location for a period of ninety (90) consecutive days.
The REPORTS Section of the Lease shall be amended by adding the
following as subsection (g) thereof:
(g) Lessee shall promptly notify Lessor of any malfunction of the xxxxx
or hour meter.
The DELIVERY, USE AND OPERATION Section subsection (b) of the Lease
shall be amended to add the following sentence at the end thereof:
Lessee will allow only qualified, properly-licensed personnel selected,
employed and controlled by Lessee to operate the Equipment.
RETURN CONDITIONS: In addition to the provisions provided for in the
RETURN OF EQUIPMENT Section of the Lease, and provided that Lessee has elected
not to exercise its option to purchase the Equipment, Lessee shall, at its
expense, return the Equipment as specified below:
(a) General Condition: With respect to each unit, no glass shall be
broken, chipped or cracked, no upholstery shall have any cut, tear or burn,
there shall be no unrepaired damage to exterior or interior materials that
exceeds $250 and all decals, numbers, customer identification, glue and
adhesives shall have been removed from Equipment without damage to paint or
Equipment. Frame and structural members including but not limited to loader
arms, stick, booms, buckets, frame rails, all ground engaging tools and all
attachments will be structurally sound, without breaks, bends, cracks or missing
teeth. Cooling, heating and lubrication systems shall not be contaminated and
there shall be no leaking between systems. No battery shall have any dead cells,
cracked case or be inoperative. All units returned will be cleaned and
cosmetically acceptable, with all rust and corrosion properly removed and/or
treated. All material (i.e., dirt, refuse, asphalt, gravel, etc.) must be
properly removed from the Equipment and disposed of in accordance with all
applicable federal, state and local laws and regulations. All internal fluids
such as lube oil and hydraulic fluids are to be filled at operating levels and
all filler caps are to be secured.
(b) Tires: All tires shall be of the same original size, type and
manufacturer (or similar quality manufacturer if the original manufacturer no
longer produces tires of that type) as upon delivery to Lessee. On each unit,
the tires shall have no missing or damaged parts or gouges. Also, all tires
shall have a minimum of fifty percent (50%) remaining wear.
(c) Mechanical Drive Train: If so equipped, the transmission/hydrostatic
drive systems including but not limited to differentials, final drives, will be
in good condition and operate quietly without vibrations or leaks.
(d) Electric Drive Train: If so equipped, the electric drive system
including, but not limited to alternators, generators, control systems,
motorized wheels, shall have at least fifty (50%) time/wear remaining before
next overhaul or replacement as recommended by the manufacturer and published in
standard maintenance manuals.
(e) Undercarriage: If so equipped, the undercarriage (including
sprockets, links, idlers, bogies, carrier and track rollers, pins and bushings,
track shoes/pads) shall have at least fifty percent (50%) time/wear remaining
before the next overhaul or replacement as recommended by the manufacturer and
published in standard maintenance manuals.
(f) Engine: The engine must have been maintained in accordance with
manufacturers recommendations, including overhauling the engine as required. At
the time of redelivery, the engine must have at least fifty percent (50%) time
remaining before the next overhaul or replacement as recommended by the
manufacturer and/or published in standard maintenance manuals. Determination of
satisfaction of these specifications shall be made by subjecting the Engine to
standard industry testing to include (but not limited to) testing of the
crankcase, manifold pressure, oil analysis and blowby tests. All tests shall be
performed by a manufacturer authorized service center.
(g) Brakes: The brakes shall have at least fifty percent (50%) time
remaining before the next overhaul or replacement as recommended by the
manufacturer and/or published in standard maintenance manuals. No drums or other
braking components shall be damaged or cracked.
(h) Booms: If so equipped, all booms shall be straight and true within
original manufacturers specifications and tolerances. All standard rigging
including sheaves, pendants, fairleads necessary for industry standard lift
crane and boom trucks shall be returned with each machine.
(i) Hydraulic Equipment: All hydraulic pumps, cylinders and hoses must
be fully operational at rated capacity with no leaks.
(j) Documents and Records: Each such unit shall meet and conform to all
applicable federal, state, and local health and safety laws and requirements,
and, if applicable, have appropriate ANSI inspection certificates, permits and
other certification necessary to operate the Equipment. Without limiting the
foregoing, Lessee shall maintain and provide to Lessor written records of
preventative maintenance and repairs, indicting date, and (xxxxx) hourmeter
readings to show when such maintenance or repair work was performed.
(k) Redelivery: Provide for transportation of the Equipment in a manner
consistent with the manufacturer's recommendations and practices to any
locations within Continental North America as Lessor shall direct; and shall
have the Equipment unloaded at such locations.
(l) Storage: Provide safe, secure, storage for the Equipment for a
period of up to three hundred sixty-five (365) days after expiration or early
termination of the Lease at a locationsatisfactory to Lessor.
INSPECTIONS:
(a) At Lessors expense, at least three hundred sixty-five (365) days
prior to, and not more than four hundred fifty-five (455) days prior to
expiration of the Term, each item of Equipment must be inspected by a
manufacturers authorized maintenance representative or other qualified
maintenance provider (acceptable to Lessor) to ensure the Equipment conforms to
the return provisions outlined herein
(b) From three hundred sixty-five (365) days prior to the return of the
Equipment, Lessee must make the Equipment available to Lessors agent during
regular working hours so walk-around appraisals/inspections can be conducted.
(c) The results of the testing and appraisal with necessary
reconditioning documenting that the Equipment meets the return conditions
required herein are to be provided to Lessor three hundred sixty-five (365) days
prior to the return of the Equipment.
During the term of this Lease, the Equipment shall not be used more than
six thousand (6,000) hours per year. The Lessee shall pay to Lessor upon return
of the Equipment the sum of $__twenty-seven ($27.00) dollars per hour or
fraction thereof for the excess hourly usage.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
----------------------------------------------------------------------------------------------------------------
Stillwater Mining Company 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 $6,960,104.54
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
I. Section 19 (f) of the Agreement is not applicable to this Schedule
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding or
effective with respect to the Agreement or Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION STILLWATER MINING COMPANY
By: /S/ XXX XXX By: /S/ XXXXX X. XXXXXX
------------------------------------ -----------------------------------
Name: Xxx Xxx Name: Xxxxx X. Xxxxxx
------------------------------------ -----------------------------------
Title: Credit Analyst Title: VP & CFO
------------------------------------ -----------------------------------
ATTEST
By: /S/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
ADDENDUM
TO SCHEDULE NO. 001
TO MASTER LEASE AGREEMENT
DATED AS OF SEPTEMBER 10, 1998
THIS ADDENDUM (this "ADDENDUM") amends and supplements the above
referenced schedule (the "SCHEDULE") to the above referenced lease (the
"LEASE"), between GENERAL ELECTRIC CAPITAL CORPORATION ("LESSOR") and STILLWATER
MINING COMPANY ("LESSEE") and is hereby incorporated into the Schedule as though
fully set forth therein. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Lease.
For purposes of this Schedule only, the Lease is amended as follows:
(A) The following is substituted in place of Section 18 of the Lease:
18. END OF BASIC TERM OPTIONS:
At the expiration of the Basic Term (the "BASIC TERM EXPIRATION
DATE"), so long as no default has occurred and is continuing hereunder and this
Agreement has not been earlier terminated, Lessee shall exercise one of the
following options:
a. Renewal Option.
--------------
(i) Lessee may, upon at least ninety (90) days, but not more than one
hundred eighty (180) days, prior written notice to Lessor, extend the term of
the applicable Schedule with respect to all (but not less than all) of the
Equipment in such Schedule for a period to be mutually agreed upon by both
Lessor and Lessee (the "RENEWAL PERIOD") for a scheduled monthly rental equal to
the monthly Fair Market Rental Value thereof determined as of the end of the
Basic Term.
(ii) The term "Fair Market Rental Value" shall mean the price which a
willing lessee would pay for the rental of the Equipment in an arms-length
transaction to a willing lessor under no compulsion to lease for a time period
similar to the Renewal Period; provided, however, that in such determination:
(i) the Equipment shall be assumed to be in the condition in which it is
required to be maintained and returned under this Agreement; (ii) in the case of
any installed additions to the Equipment, same shall be valued on an installed
basis; and (iii) costs of removal of the Equipment from the current location
shall not be a deduction from such valuation. If Lessor and Lessee are unable
to agree on the Fair Market Rental Value at least sixty (60) days prior to the
Basic Term Expiration Date, Lessor shall appoint an independent appraiser
(reasonably acceptable to Lessee) to determine Fair Market Rental Value, and
that determination shall be final, binding and conclusive. Lessee shall bear
all costs associated with any such appraisal.
(iii) Lessee shall be deemed to have waived this option unless it
provides Lessor with written notice of its irrevocable election to exercise the
same within fifteen (15) days after the Fair Market Rental Value is determined
(by agreement or appraisal).
b. Purchase Option.
---------------
(i) Lessee may, upon at least ninety (90) days, but no more than one
hundred eighty (180) days, prior written notice to Lessor, purchase all (but not
less than all) of the Equipment in any Schedule on an AS IS BASIS, without
recourse to, or warranty from, Lessor for the then Fair Market Value of the
Equipment (plus all applicable sales taxes). On the Basic Term Expiration Date,
Lessor shall receive, in cash, the full purchase price (plus all applicable
sales taxes) together with any Rent or other sums then due under the applicable
Schedule on such date.
(ii) The term "FAIR MARKET VALUE" shall mean the price which a willing
buyer (who is neither a lessee in possession nor a used equipment dealer) would
pay for the Equipment in an arm's-length transaction to a willing seller under
no compulsion to sell; provided , however , that in such determination: (i) the
--------- --------
Equipment shall be assumed to be in the condition in which it is required to be
maintained and returned under this Agreement; (ii) in the case of any installed
Equipment, that Equipment shall be valued on an installed basis; and (iii) costs
of removal of the Equipment from the current location shall not be a deduction
from such valuation. Lessee shall appoint an independent appraiser (with at
least one current professional designation and reasonably acceptable to Lessor)
to determine Fair Market Value, and that determination shall be final, binding
and conclusive. Lessee shall bear all costs associated with any such appraisal.
Notwithstanding any provision to the contrary herein, in no event shall the Fair
Market Value be less than thirteen percent (13%) of the applicable Capitalized
Lessor's Cost for the Equipment ( plus any applicable sales taxes or charges).
(iii)Lessee shall be deemed to have waived this option if it fails to
timely provide Lessor with the required written notice of its election to
exercise the same or unless it provides Lessor with written notice of its
irrevocable election to exercise the same within fifteen (15) days after the
Fair Market Value is determined (by appraisal).
c. Return Option. In the event Lessee fails to exercise the renewal
or purchase option referred to above, Lessee shall return all
(but not less than all) of the Equipment pursuant to the terms of
Agreement and the applicable Schedule, including, without
limitation, any and all return conditions. Lessee agrees that if
it elects to return the equipment for the first Schedule, Lessee
shall be deemed to have
elected to return all other Schedules under this Agreement in
which General Electric Capital Corporation is the "Lessor".
Lessee shall be charged a 5% restocking fee upon return of the
equipment.
The following is substituted in place of Section 17 of the Lease:
17. EARLY PURCHASE OPTION.
(a) Provided that the Lease has not been earlier terminated and
provided further that Lessee is not in default under the Lease or any other
agreement between Lessor and Lessee, Lessee may, UPON AT LEAST 60 DAYS BUT NO
MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE'S IRREVOCABLE
ELECTION TO EXERCISE SUCH OPTION, purchase all (but not less than all) of the
Equipment listed and described in this Schedule on the rent payment date (the
"EARLY PURCHASE DATE") which is 72 months from the Basic Term Commencement Date
of the Schedule for a price equal to $2,053,230.84( the "FMV EARLY OPTION
PRICE"), plus all applicable sales taxes on an AS IS BASIS. Lessor and Lessee
agree that the FMV Early Option Price is a reasonable prediction of the Fair
Market Value (as such term is defined in Section 18(b) hereof) of the Equipment
at the time the option is exercisable. Lessor and Lessee agree that if Lessee
makes any non-severable improvement to the Equipment which increases the value
of the Equipment and is not required or permitted by Sections 7 or 9 of the
Lease prior to lease expiration, then at the time of such option being
exercised, Lessor and Lessee shall adjust the purchase price to reflect any
addition to the price anticipated to result from such improvement. (The
purchase option granted by this subsection shall be referred to herein as the
"EARLY PURCHASE OPTION".)
(b) If Lessee exercises its Early Purchase Option with respect to the
Equipment leased hereunder, then on the Early Purchase Option Date, Lessee shall
pay to Lessor any Rent and other sums due and unpaid on the Early Purchase
Option Date and Lessee shall pay the FMV Early Option Price, plus all applicable
sales taxes, to Lessor in cash.
Except as expressly modified hereby, all terms and provisions of the
Lease shall remain in full force and effect. This Addendum is not binding nor
effective with respect to the Lease or the Equipment until executed on behalf of
Lessor and Lessee by authorized representatives of Lessor and Lessee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION STILLWATER MINING COMPANY
By: /S/ XXX XXX By: /s/ XXXXX X. XXXXXX
-------------------------------- --------------------------------
Name: Xxx Xxx Name: Xxxxx X. Xxxxxx
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Title: Credit Analyst Title: Vice President and CFO
----------------------------- -----------------------------
Attest:
By: /s/ XXXX XXXXXXX
--------------------------------
Name: Xxxx Xxxxxxx
------------------------------
