Exhibit 10(ii)26
MASTER EQUIPMENT LEASE AGREEMENT
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No.
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This is a Master Equipment Lease Agreement between National City Leasing
Corporation, a Kentucky corporation, whose principal office is located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("National City") and OHM
Remediation Services Corp., an Ohio corporation, whose principal office is
located ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Lessee").
1. LEASE. National City agrees to lease to Lessee and Lessee agrees to lease
from National City, subject to the terms and conditions set forth herein,
the items of personal property (the "Equipment") described in each
Equipment Schedule (a "Schedule") executed and delivered by the parties
hereto and incorporating the terms of this Master Equipment Lease
Agreement by reference therein (the "Lease"). The terms "Agreement",
"hereof", "herein", and "hereunder", when used in this Lease, shall mean
this Lease, each Schedule and any schedule thereto. This Agreement
constitutes an agreement of lease and nothing herein contained shall be
construed as conveying to Lessee any right, title, or interest in the
Equipment except as lessee only. The parties agree that this Lease is a
"Finance Lease" as defined in (S)2A-103(q) of the Uniform Commercial Code
("UCC"). Lessee acknowledges either
(a) that Lessee has reviewed and approved any written Supply Contract (as
defined in UCC (S)2A-103(y)) covering the Equipment purchased from the
Supplier (as defined in UCC (S)2A-103(x))thereof for lease to Lessee or
(b) that National City has informed or advised Lessee, in writing, either
previously or by this Lease of the following:
(i) the identity of the Supplier;
(ii) that the Lessee may have rights under the Supply Contract; and
(iii) that the Lessee may contract the Supplier for a description of
any such rights Lessee may have under the Supply Contract
2. TERM; ACCEPTANCE; RENT; RETURN. The term of lease of each item of
Equipment shall commence date the Lessee accepts the Equipment (the
"Commencement Date") as evidenced by the acceptance of the Equipment
covered thereby for all purposes of this Agreement. Lessee shall pay to
National City (at National City's office specified above, or as National
City may otherwise designate), rent as specified in each Schedule. Each
date on which an installment of rent is payable is hereinafter
called a "Rent Payment Date". As to each Schedule the first Rent Payment
Date shall be the Rent Payment Date set forth therein, with the succeeding
Rent Payment Dates on the corresponding day of each month thereafter. In
addition, if applicable, Lessee shall pay interim rent for the period
between the Commencement Date and the first Rent Payment Date, based on a
30-day month and the number of days between the Commencement Date and the
first Rent Payment Date. Lessee shall also pay to National City, on
demand, a late payment charge of 1 % of each installment of rent and any
other amount owing hereunder which is not paid when due. Unless the Lessee
elects otherwise pursuant to Section 20, upon the expiration or earlier
termination of the term of lease of each item of Equipment leased
hereunder, Lessee shall at its expense return such item to National City
at such location as National City may designate, in the condition required
to be maintained by Section 7 hereof.
3. NO WARRANTIES. Lessee acknowledges that: National City is the manufacturer
of the Equipment nor the manufacturer's agent nor a dealer therein; and
NATIONAL CITY HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR
WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY,
FITNESS, CONDITION, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR
A PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE
EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT NOR ANY OTHER REPRESENTATION OR
WARRANTY OF ANY KIND WHATSOEVER. Lessee confirms that it has made (or will
make) the selection of each item of Equipment on the basis of its own
judgment and expressly disclaims reliance upon any statements,
representations or warranties made by National City. National City shall
not be liable to Lessee for any matter relating to the ordering,
manufacture, purchase, delivery, assembly, installation, testing,
operation or expense of any kind caused by the Equipment. National City
shall not be liable for any consequential damages as that term is used in
UCC (S)2-719(3). National City hereby assigns to Lessee all rights which
National City has or may acquire against any manufacturer, supplier, or
contractor with respect to any warranty and representation relating to the
Equipment leased hereunder. Lessee acknowledges that Lessee has reviewed
and approved the Purchase Order, Supply Contract or Purchase Agreement
covering the Equipment purchase from the vendor or Supplier thereof for
lease to Lessee.
4. EQUIPMENT TO REMAIN PERSONAL PROPERTY; LOCATION; IDENTIFICATION:
INSPECTION. Lessee represents that the Equipment shall be and at all times
remain separately identifiable personal property. Lessee shall, at its
expense, take such action as may be necessary to prevent any third party
from acquiring any right to or interest in the Equipment by virtue of the
Equipment being deemed to be real property or a part of other personal
property and shall indemnify National City against any loss which it may
sustain by reason of Lessee's failure to do so, unless such person is
claiming the right or interest by, through or under National City. Upon
the request of National City, which shall not be more frequently than once
each calendar quarter, Lessee shall provide National City with a periodic
list of the location of the Equipment. If requested by National City,
Lessee shall attach to and maintain on the Equipment a conspicuous plate
or marking disclosing ownership therein. National City or its
representatives may, at reasonable times, inspect the Equipment.
5. TAXES; INDEMNITY. Lessee agrees to pay, and to indemnify and hold National
City harmless from, all license fees, assessments, and sales, use,
property, excise and other taxes and charges(other than federal income
taxes and taxes imposed by any other jurisdiction which are based on, or
measured by,
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the net income of National City for reasons other than the ownership or
leasing of the Equipment in that jurisdiction) imposed upon or with
respect to
(a) the Equipment or any part thereof arising out of or in connection
with the shipment of Equipment or the possession, ownership, use or
operation thereof, or
(b) this Agreement or the consummation of the transactions herein
contemplated.
National City shall prepare and file any and all returns required in
connection with the obligations which Lessee has assumed under this
section, except such filings as National City may, at its option, direct
Lessee to make. Each party shall upon request furnish the other a copy of
any such filing made or governmental invoice received covering such
obligations. Lessee further agrees to assume liability for, and to
indemnify and hold National City harmless against, all claims, costs,
expenses, damages and liabilities arising from or pertaining to the
manufacture, assembly, installation, ownership, use, possession and
operation of the Equipment, including, without limitation, latent and
other defects, whether or not discoverable by Lessee or any other person,
any expense, liability or loss directly or indirectly related to or
arising out of any injury to any person or tangible or intangible
property, whether arising from negligence or under any theory of strict or
absolute liability or any other cause, or any claim for patent or
copyright infringement, together with all legal fees and expenses
reasonably incurred by National City in connection with any liability
asserted against it, whether groundless or otherwise. Lessee shall, and
shall cause all other persons, if any, operating or in possession of the
Equipment to, comply at all times and in all respects with all laws
(whether federal, state, or local and whether statutory, administrative,
judicial, or other) and with every lawful governmental order (whether
administrative or judicial) pertaining to the operation, and use of the
Equipment and, without limiting the generality of the foregoing, will, and
will cause each such person to,
(i) operate, and use the Equipment in compliance with all Environmental
Laws and handle all Hazardous Materials in compliance therewith, and
(ii) comply with and keep in full effect each approval, certification,
license, permit, or other authorization required by any Environmental
Law for the conduct of any activity upon or within the Equipment,
and will indemnify National City from and against any and all
liabilities and any and all fees, costs and expenses arising out of
use of the Equipment for the purposes of cleaning, treatment, storage
or transportation of hazardous materials.
"Environmental Law" means the Clean Air Act (42 USC (S)7401 et seq.),
Comprehensive Environmental Response, Compensation, and Liability Act (42
USC (S)9601 et seq.), the Hazardous Material Transportation Act (49 USC
(S)1801 et seq.), the Resource Conservation and Recovery Act (42 USC
(S)6901 et seq.), the Federal Water Pollution Control Act (33 USC (S)1251
et seq.), the Toxic Substances Control Act (15 USC (S)2601 et seq.) and
the Occupational Safety and Health Act (29 USC (S)651 et seq.), as such
laws have been or hereafter may be amended, and the regulations
promulgated pursuant thereto, and any and all similar present or future
federal, state, or local laws and the regulations promulgated pursuant
thereto and "Hazardous Material" means any chemical, material, or
substance which could be
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detrimental to animal health, human health, vegetation, the environment,
or the Equipment which is, or the disposal, manufacture, release, storage,
or transport of which is, or exposure to which is, prohibited, restricted,
or otherwise regulated under any Environmental Law;
The agreements and indemnities contained in this section shall survive the
expiration or earlier termination of this Agreement.
6. ASSIGNMENTS; SUBLETTING; ENCUMBRANCES.
(a) LESSEE WILL NOT WITHOUT NATIONAL CITY'S PRIOR WRITTEN CONSENT, ASSIGN
OR TRANSFER THIS LEASE OR ANY INTEREST HEREIN, OR SUBLEASE OR
RELINQUISH POSSESSION OF, OR CREATE OR SUFFER TO EXIST ANY LIEN,
MORTGAGE, SECURITY INTEREST OR ENCUMBRANCE UPON THE EQUIPMENT,
PROVIDED, HOWEVER, LESSEE MAY SUBLEASE AND TRANSFER POSSESSION OF ANY
EQUIPMENT TO ANY SUBSIDIARY, THE MAJORITY OF THE VOTING STOCK OF
WHICH IS OWNED BY THE GUARANTOR.
(b) National City may assign or transfer this Lease or National City's
interest in the Equipment without notice to Lessee. Any assignee of
National City shall have all of the rights, but none of the
obligations, of National City under this Lease and Lessee agrees that
it will not assert against any assignee of National City any defense,
counterclaim, or offset that Lessee may have against National City.
Lessee acknowledges that any assignment or transfer by National City
shall not adversely change Lessee's duties or obligations under this
Lease nor materially increase the burdens or risks imposed on Lessee.
7. USE; REPAIRS; ETC. Lessee will cause the Equipment to be operated in
accordance with the manufacturer's or supplier's instructions or manuals
by competent and duly qualified personnel only and in compliance with all
laws and regulations and the insurance policies required to be maintained
hereunder. Lessee shall, it its own cost and expense, maintain the
Equipment in operating condition. Replacement parts shall be free and
clear of any mortgage, lien, charge, or encumbrance (and title thereto
shall vest in National City immediately upon installation, attachment or
incorporation of the same in, on or into such Unit). Upon termination of
this Lease, at the expiration of the Lease Term or otherwise, the
Equipment shall be returned to National City in as good operating
condition as when it became subject to this Lease, ordinary wear and tear
excepted, and in such condition as to be acceptable to the manufacturer
for regular maintenance without any remedial maintenance. Lessee will not
alter or add to the Equipment without National City's prior written
consent. Lessee will remove any attachments, alterations or accessories
and return the Equipment to its original condition, normal wear and tear
excepted, at the termination of this Lease if National City shall so
demand. In the absence of such demand, all attachments, alterations or
accessories shall become part of the Equipment at the time of their
attachment thereto.
8. LOSS; DAMAGE. If National City reasonably determines that any Equipment is
lost, stolen, destroyed, damaged beyond repair or rendered permanently
unfit for normal use for any reason, or in the event of any condemnation,
confiscation, seizure, or requisition of title to or use of such Equipment
(a "Casualty Occurrence"), Lessee will, at the option of National City,
either
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(a) replace the same with Equipment in good repair or
(b) promptly pay to National City an amount equal to the Rent in respect
of the Equipment suffering a Casualty Occurrence due and payable on
the Rent payment date next following the date of the Casualty
Occurrence, plus a sum equal to the Stipulated Loss Value of such
Equipment determined as of the Rent payment date next following the
date of the Casualty Occurrence as set out in the appropriate
Schedule, less any physical damage insurance proceeds paid to
National City as a result of said Casualty Occurrence.
As of the date on which the Stipulated Loss Value is due, the Rent for
such Equipment shall cease to accrue and the term of this Lease as to such
Equipment shall terminate and (except in the case of loss, theft or
complete destruction of the Equipment) National City shall be entitled to
recover possession of the Equipment. National City hereby appoints Lessee
its agent to dispose of any Equipment suffering a Casualty Occurrence at
the best price obtainable on an "as is, where is" basis without recourse
or warranties of any kind. Provided that National City has been paid the
Stipulated Loss Value and all Rent and other sums due and owing as to such
Equipment, Lessee shall be entitled to the net proceeds of such sale to
the extent such proceeds do not exceed the Stipulated Loss Value of such
Equipment. Any excess shall be paid to National City.
9. INSURANCE. Lessee shall maintain at all times on the Equipment, at
Lessee's expense, property damage, direct damage and public liability
insurance in such amounts, against such risks and in such form and with
such insurers as shall be satisfactory to National City. The required
insurance shall be specified in the applicable Schedule; provided, that
the amount of direct damage insurance shall not on any date be less than
the full replacement value of the Equipment as of such date. Each public
liability insurance policy will name National City as additional named
insured as its interests may appear and each damage insurance policy will
name National City as loss payee, and each insurance policy shall contain
a clause requiring the insurer to give to National City at least 30-days
prior written notice of any alteration of the terms or cancellation of
such policy. Lessee shall furnish to National City a certificate or other
evidence satisfactory to National City that such insurance coverage is in
effect, provided, however, that National City shall be under no duty to
ascertain as to the existence or adequacy of such insurance. National City
makes no representation that the minimum insurance coverage requirements
in a Schedule will be adequate at all times to satisfy Lessee's
obligations hereunder. Lessee has the responsibility to provide additional
insurance coverage to maintain coverage hereunder in an amount adequate to
fulfill its obligation hereunder and is consistent with insurance coverage
for similar risks in Lessee's industry or line of business.
10. NONCANCELLABLE AGREEMENT; LESSEE'S OBLIGATIONS UNCONDITIONAL. This
Agreement cannot be canceled or terminated except as expressly provide
herein. Lessee agrees that its obligation to pay all rent and other
amounts payable hereunder and to perform its duties with respect hereto
shall be absolute and unconditional under any and all circumstances,
including, without limitation, the following:
(a) any setoff, counterclaim, recoupment, defense or other right which
Lessee may have against National City, the manufacturer, or supplier
of any Equipment or anyone else for any reason whatsoever;
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(b) any defect in the condition, design, title, operation or fitness for
use, or any damage to or loss of any Equipment;
(c) any insolvency, reorganization or similar proceedings by or against
Lessee; or
(d) any other event or circumstances whatsoever, whether or not similar to
the foregoing.
Each rent or other payment made by Lessee hereunder shall be final and
Lessee will not seek to recover all or any part of such payment from
National City for any reason whatsoever.
11. EVENTS OF DEFAULT AND REMEDIES. An Event of Default shall occur hereunder
if Lessee:
(a) shall fail to make any payment of rent or other amount owing
hereunder when due and such failure shall continue for a period of 10
days;
(b) shall fail to perform or observe any other covenant, agreement or
condition hereunder within 30 days of written notice thereof being
given by National City to Lessee, or if more than 30 days are
reasonably required, Lessee fails to commence to diligently perform
such obligations within such 30 days;
(c) shall make any representation or warranty to National City herein or
in any document or certificate furnished National City in connection
herewith which shall prove to be materially incorrect at the time
made;
(d) shall become insolvent or make an assignment for the benefit of
creditors or consent to the appointment of a trustee or receiver;
(e) after 60 days if a trustee or receiver shall be appointed for Lessee
or for a substantial part of its property or for the Equipment, or
reorganization, arrangement, insolvency, dissolution or liquidation
proceedings shall be instituted by or against Lessee and such
appointment or proceedings are not terminated within such time;
(f) shall suffer an adverse material change in its financial condition
from the date hereof, and as a result thereof National City deems
itself or any of its Equipment to be insecure; or
(g) shall be in default under any other agreement at any time executed
with National City or any affiliate or subsidiary of National City
Corporation
then National City may, after National City notifies Lessee of such
default and Lessee has failed to cure such default in the applicable
period set forth above, declare this Agreement to be in default and may do
one or more of the following with respect to any or all of the Equipment
as National City in its sole discretion may elect, to the extent permitted
by, and subject to compliance with any mandatory requirements of
applicable law then in effect:
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(i) terminate this Lease effective immediately; or
(ii) demand that Lessee, and Lessee shall at its expense upon such
demand, return the Equipment promptly to National City in the
manner and condition required by and otherwise in accordance
with the provisions of Section 2 hereof, as if the Equipment
were being returned at the expiration of its term of lease
hereunder, or National City, at its option, may enter upon the
premises where the Equipment is located and take possession of
and remove the same by summary proceedings or otherwise, all
without liability to Lessee for damage to property or
otherwise, provided that there occurs no breach of the peace
and further provided that if the Equipment is located on an
Environmental Protection Agency permit site or is being used
for the cleaning, treatment, storage or transportation of
hazardous materials, National City's actions shall be governed
by all applicable Environmental Laws, all without liability to
Lessee for damage to property or otherwise; or
(iii) take possession of any or all Equipment and remove the same
without liability for injuries suffered through or loss caused
by such repossession provided that there occurs no breach of
the peace and further provided that if the Equipment is located
on an Environmental Protection Agency permit site or is being
used for the cleaning, treatment, storage or transportation of
hazardous materials, National City's actions shall be governed
by all applicable Environmental Laws, all without liability to
Lessee for damage to property or otherwise. In the event
National City proceeds pursuant to this subsection (iii),
National City may sell any or all Equipment at public or
private sale as is commercially reasonable given the existing
conditions on an "as is, where is" basis without recourse or
warranties of any kind, or otherwise hold, use, operate, or
keep idle such Equipment, as National City in its sole
discretion determines is commercially reasonable free and clear
of all rights of Lessee; or
(iv) whether or not National City has exercised any other right
hereunder, by written notice to Lessee, cause Lessee to pay
National City (as liquidated damages for loss of a bargain and
not as a penalty) on the date specified in such notice an
amount equal to the Rent due and payable on the first day of
the month following the date of the notice of Lease termination
plus a sum equal to the appropriate Stipulated Loss Value
determined as of the first of the month following the date of
the notice of Lease termination as set out in the applicable
Schedule; or
(v) National City may exercise any other right or remedy which may
be available to it under applicable law or proceed by
appropriate court action to enforce the terms hereof or to
recover damages for the breach hereof.
In addition, Lessee shall pay National City all costs and expenses
incurred by National City as a result of Lessee's default hereunder
or the termination hereof, including, without limitation, reasonable
attorney's fees and costs arising out of repossession and disposal of
the Equipment.
Provided Lessee has previously paid to National City the sum of the
Stipulated Loss Value, Rent due and owing and other costs and
expenses incurred pursuant hereto, Lessee shall be entitled to the
net proceeds of any such sale, disposition or re-lease of the
Equipment to the extent they do not exceed the Stipulated Loss Value.
Any excess shall be retained by National City. To the extent the
Equipment is re-
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leased by National City, Lessee shall be credited the present value
of the lease rental stream at the discount rate of National City Bank
Prime as of the date the release is agreed to between the parties.
Furthermore, to the extent the parties to this Lease need to
determine the present value of any moneys due under the Lease, the
parties agree that the discount rate shall be National City Bank
Prime.
In addition, Lessee shall continue to be liable for all indemnities under this
Lease and for all reasonable attorney fees and other costs and expenses
resulting form the termination hereof and/or the exercise of National City's
remedies, including placing any Equipment in the condition required by Section
7 hereof. Except as expressly provided above, no remedy referred to in this
section is exclusive, but each shall be cumulative and in addition to any
other remedy referred to herein or otherwise available to National City at law
or equity; and the exercise or beginning of exercise by National City of any
one or more of such remedies shall not preclude the simultaneous or later
exercise by National City of any other remedies. No express or implied waiver
by National City of an Event of Default shall constitute a waiver of any other
or subsequent Event of Default.
12. INDEMNIFICATION FOR TAX BENEFITS.
(a) National City, as the owner of the Equipment, shall be entitled to
such deductions, credits and other benefits as are provided by the
Internal Revenue Code of 1986, as amended, (hereinafter called the
"Code") to an owner of property.
(b) Lessee agrees that neither it nor any corporation controlled by it,
in control of it, or under common control with it, directly or
indirectly, will at any time take any action or file any returns or
other documents inconsistent with the foregoing and that each of
such corporations will file such returns, take such action and
execute such documents as may be reasonable and necessary to
facilitate accomplishment of the intent thereof. Lessee agrees to
copy or make available for inspection and copying by National City
such records as will enable National City to determine whether it is
entitled to the benefit of any amortization or depreciation
deduction which may be available from time to time with respect to
the Equipment.
(c) If National City, under any circumstances or for any reason
whatsoever, except for acts of National City or future changes in
the Code, shall lose, shall not have or shall lose the right to
claim, or there shall be disallowed or recaptured all or any portion
of the federal tax depreciation deductions with respect to any item
of Equipment based on depreciation or National City's full cost of
such item of Equipment and computed on the basis of a method of
depreciation provided by the Code as National City in its complete
discretion may select, then Lessee agrees to pay National City upon
demand an amount which, after deduction of all taxes required to be
paid by National City in respect to the receipt thereof under the
laws of any federal, state or local government or taxing authority
of the United States or of any taxing authority or governmental
authority of any foreign country, shall be equal to the sum of
(i) an amount equal to the additional income taxes paid or payable
by National City in consequence of the failure to obtain the
benefit of a depreciation deduction, and
(ii) any interest and/or penalty which may be assessed in connection
with any of the foregoing.
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(d) The provisions of this Section 12 shall survive the expiration or
earlier termination of this Agreement.
13. NATIONAL CITY'S RIGHTS TO PERFORM. If Lessee fails to make any payment
required to be made hereunder or fails to comply with any other agreements
contained herein, National City may make such payment or comply with such
agreement, and the amount of such payment and the reasonable expenses of
National City incurred in connection with such payment or compliance, shall
be payable by Lessee on demand.
14. FURTHER ASSURANCES. Lessee will, at its expense, promptly and duly execute
and deliver to National City such further documents and assurances and take
such further action as National City may from time to time request in order
to more effectively carry out the intent and purpose of this Agreement so
as to establish and protect the rights, interest and remedies intended to
be created in favor of National City hereunder, including, without
limitation, the execution and filing of financing statements and
continuation statements with respect to the Equipment and this Agreement.
Lessee authorizes National City to effect any such filing (including the
filing of any financing statements without the signature of Lessee) and
National City's expenses with respect thereto shall be payable by Lessee on
demand.
15. NOTICES. All notices and other communications required to be given to
any party hereunder shall be in writing and delivered or mailed by
regular mail to such party at the address set forth above or at such
other address as it may designate to other parties.
16. MISCELLANEOUS. Any provision of this Agreement which is unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such unenforceability without invalidating the remaining
provisions hereof, and any such unenforceability in any jurisdiction shall
not render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, Lessee waives any provision of law
which renders any provision hereof unenforceable in any respect. Provided
the Lessee is not in default under any provision of this Lease, National
City shall not interfere with Lessee's quiet enjoyment of the use of the
Equipment pursuant to the terms of this Agreement and National City shall
defend and protect such quiet enjoyment against all persons claiming by,
through or under National City. This Agreement and the provisions hereof
shall inure to the benefit of National City and its successors and assigns,
and shall be binding on and inure to the benefit of Lessee and its
successors and assigns.
17. CONDITIONS PRECEDENT. The obligation of National City contained in
Section 1 hereof shall be subject to the following conditions precedent:
(a) there shall have occurred no material adverse change in the business
or the financial condition of Lessee from the date hereof until the
Commencement Date of any Schedule;
(b) Lessee shall have furnished National City with a certificate or
other evidence satisfactory to National City that insurance coverage
as required by Section 9 thereof is in effect as to the item of
Equipment desired to be leased;
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(c) unless specifically waived by National City, Lessee shall have
furnished National City opinions of counsel as this Agreement, in
form and substance acceptable to National City; and
(d) all other instruments and legal and corporate proceedings in
connection with the transactions contemplated herein shall be
satisfactory in form and substance to National City, and counsel to
National City shall have received copies of all documents which it
may have requested in connection therewith.
If any of the above conditions is not satisfied at the time Lessee
submits any Schedule, National City shall have no obligation under this
Agreement to lease the items of personal property covered thereby to
Lessee.
18. FINANCIALS. Lessee agrees that for so long as any item of Equipment shall
be leased under this Agreement, Lessee will deliver or cause to be
delivered to National City
(a) as soon as practicable, and in any event within sixty (60) days
after the end of each quarterly period (other than the fourth
quarterly period) for each fiscal year of OHM Corporation (the
'Guarantor'), the balance sheet of Guarantor as of the end of such
quarterly period together with the related statements of income and
expenses for such quarterly period all in reasonable detail prepared
in accordance with generally accepted accounting principles
consistently applied throughout the period involved and certified by
Guarantor's chief financial officer or principal accounting officer;
and
(b) as soon as practicable, and in any event within one hundred twenty
(120) days after the close of each fiscal year of Guarantor, the
audited balance sheet of Guarantor as of the end of such fiscal year
together with related statements of income and surplus for such
fiscal year all in reasonable detail, prepared in accordance with
generally accepted accounting principles consistently applied
throughout the period involved and certified by Ernst & Young, or if
Ernst & Young is not the Guarantor's auditor, then by an independent
public accountant reasonably acceptable to National City.
19. REPRESENTATION, WARRANTIES AND COVENANTS. Lessee represents, warrants and
covenants that
(a) Lessee is duly organized and validly existing in good standing under
the laws of the state of its incorporation and is duly qualified and
licensed to do business as a foreign corporation in good standing in
those jurisdictions where such qualifications are necessary to
authorize Lessee to carry an its present business and operations and
to own its properties or to perform its obligations hereunder;
(b) Lessee has full power, authority and legal right to execute, deliver
and carry out as Lessee the terms and provisions of this Agreement
and any other documents in connection with this lease transaction;
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(c) Lessee's execution, delivery and performance of this Agreement and
the other documents and agreements referred to herein, and the
performance of its obligations under this Agreement have all been
authorized by all necessary corporate action, do not require the
approval or consent of stockholders, or of any trustee or holders of
any indebtedness or obligation of Lessee and will not violate any
law, governmental rule, regulation or order binding upon Lessee or
any provision of any indenture, mortgage, contract or other
agreement to which Lessee is a party or by which it is bound or to
which it is subject, and will not violate any provision of the
Certificate of Incorporation, By-laws or any preferred stock
agreement of Lessee;
(d) except as set forth in Guarantor's Form 10-K filed with the
Securities and Exchange Commission for the year ended December 31,
1995, there are no pending or threatened investigations, actions or
proceedings before any court or administrative agency or other
tribunal body, which seek to question or set aside any of the
transactions contemplated by this Agreement, or which, if adversely
determined, would materially affect the condition, business or
operation of Lessee;
(e) Lessee is not in default in any material manner in the payment or
performance of any of its obligations or in the performance of any
contract, agreement or other instrument to which it is a party or by
which it or any of its assets may be bound;
(f) the balance sheet of Guarantor as of the end of its most recent
fiscal year and the related profit and loss statement of the
Guarantor for the fiscal year ended on said date, including the
related schedules and notes, together with the report of an
independent certified public accountant, heretofore delivered to
National City, are all true and correct and present fairly
(x) the financial position of Lessee as at the date of said balance
sheet and
(y) the results of the operations of Guarantor for said fiscal
year;
(g) all proceedings required to be taken to authorize the lease of the
Equipment from National City and to protect National City's interest
in such Equipment, free and clear of all liens and encumbrances
whatsoever, have been taken;
(h) Guarantor has no significant liabilities (contingent or otherwise)
which are not disclosed by or reserved against the financial
statements referred to in (f) above;
(i) all the financial statements referred to in (f) above have been
prepared in accordance with generally accepted accounting principles
and practices applied on a basis consistently maintained throughout
the period involved;
(j) there has been no change which would have a material adverse effect
on the business or financial condition of Lessee from that set forth
in the balance sheet referred to in (h) above;
(k) no authorization, consent, approval, license, exemption of or filing
or registration with court, governmental unit or department,
commission, board, bureau, agency, instrumentality or the like
11
is required or necessary for the valid execution and delivery of the
Agreement, any ▇▇▇▇ of sale and the other documents and agreements
referred to herein;
(l) this Master Lease Agreement, the Schedules and any accompanying
documents, having been duly authorized, executed and delivered to
National City, constitute legal, valid and binding obligations of
Lessee, enforceable against Lessee in accordance with the terms
thereof except as such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditor's
rights generally;
(m) the Equipment is personal property and neither real property nor a
fixture;
(n) as of the Commencement Date of each item of Equipment, a reasonable
estimate of the estimated fair market value of such item of
Equipment at the end of the lease term thereof will be at least 20%
of National City's cost thereof (without including in such value any
increase or decrease for inflation or deflation, and after
subtracting from such value any cost for removal and delivery of
possession of Equipment to National City at the end of the lease
term thereof); and
(o) as of the Commencement Date of each item of Equipment, a reasonable
estimate of the estimated useful life of such item of Equipment at
the end of the original lease term will be at least two years beyond
the lease term thereof.
20. OPTIONS. National City and Lessee hereby agree that so long as no Event
of Default shall have occurred and be continuing, Lessee shall have such
options as set forth in the Schedule.
21. CHOICE OF LAW. The rights and liabilities of the parties under this
Agreement and each Schedule shall be interpreted, enforced and governed
in all respects by the laws of the Commonwealth of Kentucky. Lessee
hereby consents and subjects itself to the jurisdiction of every local,
state and federal court within the Commonwealth of Kentucky, agrees that
except as otherwise required by law, Lessee shall never file or maintain
any action or proceeding in connection with this Agreement or any
Schedule in any court outside the Commonwealth of Kentucky.
22. ATTORNEY'S FEES. If National City or Lessee commences any action to
enforce or define any right or obligation of Lessee under this Agreement
or any Schedule, the unsuccessful party shall pay to the other party all
reasonable attorney's fees and all other legal expenses (including for
expert and other witnesses) for preparation, negotiation, filing,
maintenance, defense, settlement and appeal of litigation paid or
incurred by that party.
23. HEADINGS. The headings for the various sections of this Agreement are
intended solely for convenience of reference and are not intended nor
shall they be used to construe, explain, modify or place any meaning upon
any provision hereof.
24. MODIFICATION. Neither this Agreement nor any Schedule can be modified or
amended except by written agreement signed and currently dated by both
signatories hereto. Lessee's initials: /s/ PKB
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25. COUNTERPARTS; ORIGINALS. The parties may execute this Agreement and any
Schedule in any number of counterparts. All such counterparts of this
Agreement shall constitute one Agreement. One copy of the Agreement and
each Schedule shall be designated as the "Original' and all other copies
shall be "Duplicates". Only the "Original" shall constitute chattel
paper.
26. LESSEE'S ACKNOWLEDGMENT OF NO EXTRINSIC PROMISES. LESSEE AGREES THAT
THERE HAVE BEEN NO REPRESENTATIONS, AGREEMENTS, STATEMENTS, PROMISE,
UNDERSTANDINGS OR INDUCEMENTS (COLLECTIVELY IN THIS SECTION "PROMISES")
MADE TO LESSEE BY OR ON BEHALF OF NATIONAL CITY OR ANY THIRD PERSON IN
CONNECTION WITH THIS AGREEMENT, ANY SCHEDULE, ANY EQUIPMENT LEASED
HEREUNDER, OR ANY PRESENT OR FUTURE TRANSACTION OF WHICH THIS AGREEMENT
AND/OR ANY SCHEDULE IS OR BECOMES A PART OTHER THAN THOSE PROMISES, IF
ANY, EXPRESSLY IN WORDS MADE IN THIS AGREEMENT AND EACH SCHEDULE.
27. ENTIRE AGREEMENT. THIS AGREEMENT IS AN INTEGRATION AND EACH SCHEDULE IS
AN INTEGRATION AND RESPECTIVELY THE ENTIRE AGREEMENT BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF EACH TRANSACTION EMBRACED THEREBY. ALL
AGREEMENTS, REPRESENTATIONS, PROMISES, INDUCEMENTS, STATEMENTS AND
UNDERSTANDINGS, PRIOR TO AND CONTEMPORANEOUS WITH THIS AGREEMENT AND
PRIOR TO AND CONTEMPORANEOUS WITH EACH SCHEDULE, WRITTEN OR ORAL, BETWEEN
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF EACH SUCH TRANSACTION,
IF ANY, ARE AND EACH IS SUPERSEDED BY THIS AGREEMENT AND BY EACH SCHEDULE
AS IT IS EXECUTED.
Executed as of 7th day of June, 1996.
By execution hereof, the signer hereby certifies that he has read this
Agreement and that he is duly authorized to execute this Master Equipment
Lease Agreement on behalf of the Lessee.
OHM Remediation Services Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________
Title: Treasurer
------------------------
National City Leasing Corporation
By: ___________________________
Title: Vice President
------------------------
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UNCONDITIONAL AND CONTINUING GUARANTEE
--------------------------------------
For One Dollar and other valuable consideration, receipt of which is
acknowledged, and to induce NATIONAL CITY LEASING CORPORATION ('Lessor), to
lease certain equipment to OHM REMEDIATION SERVICES CORPORATION ("Lessee'),
and in consideration thereof, the undersigned (the "Guarantor") absolutely and
unconditionally guarantees the prompt and punctual payment when due, by
acceleration or otherwise, of each obligation, direct, indirect or contingent,
now existing or hereafter created or acquired and howsoever the same may be
evidenced (the "Guaranteed Obligation"), of Lessee to Lessor, together with
all interest, charges and penalties accruing thereon, and the faithful,
punctual and complete performance by Lessee of all of the terms and conditions
contained in all leases, agreements or other instruments evidencing or
pertaining to any Guaranteed Obligation(s).
1. The undersigned agrees that Lessor may take the following actions without
affecting the liability of the undersigned even if the undersigned has not
expressly consented.
a. The amount, time or manner of payment of rent or other sums reserved
in any Guaranteed Obligation(s) may be changed from time to time as
agreed to in good faith between Lessee and Lessor.
b. Property now or hereafter leased to Lessee or pertaining to any
Guaranteed Obligation(s) may be sold, exchanged, surrendered or-
otherwise dealt with by Lessor.
c. Settlements, compromises, compositions, accounts stated and agreed
balances pertaining to any Guaranteed Obligation(s) may be effected in
good faith between Lessor and Lessee.
▇. ▇▇▇▇▇▇ may modify, waive, supplement or otherwise change the terms,
conditions, provisions, restrictions or liabilities contained in one
or more leases, agreements or other instruments evidencing, securing
or pertaining to any Guaranteed Obligation(s).
2. Before calling upon the undersigned for payment of any Guaranteed
Obligation(s), Lessor need not resort to or exhaust its remedies against
Lessee or against any other party or parties liable on a lease or to
resort to property pertaining to a lease.
3. The liability of the undersigned shall in no way be released, mitigated or
otherwise affected by
a. the release or discharge of Lessee in any creditors' proceeding,
receivership, bankruptcy or other proceedings; or the commencement or
pendency of any such proceedings;
b. the impairment, limitation or modification of the liability of Lessee
or the estate of Lessee in bankruptcy or of any remedy for the
enforcement of the Lessee's liability under any instrument evidencing
any Guaranteed Obligation, or under any other instrument executed and
delivered in connection therewith, resulting from the operation of any
present or future provision of the Bankruptcy Code or other statute or
from a decision in any court; or
c. any assignment or transfer of any instrument evidencing any
Guaranteed Obligation by operation of law or otherwise.
4. This Guarantee is effective immediately and shall continue indefinitely,
unaffected by the death or incompetency or insolvency of the undersigned,
subject to the fight of the undersigned or of undersigned's personal
representative to terminate liability hereunder as to each obligation of
Lessee arising after written notice of such termination has been received
by Lessor. If at any time any whole or partial payment of any Guaranteed
Obligation is rescinded or must otherwise be restored or returned by
Lessor upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Lessee or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer of
Lessee, this Guarantee shall continue to be effective, or be reinstated,
as the case may be, all as though such payment had not been made. This
Guarantee shag be construed in accordance with the laws of the State of
Ohio and Guarantor consents and subjects itself to the jurisdiction of
every local, state and federal court within Cuyahoga County, Ohio. This
guarantee shall inure to the benefit of Lessor, its successors and assigns
to any other holder(s) of any Guaranteed Obligation(s), shall be binding
upon the heirs, executors, administrators, successors and assigns of the
undersigned. If this guarantee is signed by more than one person, firm or
corporation, this guarantee shall constitute a joint and several
guarantee.
5. The undersigned will deliver to Lessor when requested, and in any event
not less frequently than once each year financial statements and cash flow
statements in form and substance prepared by the undersigned in the
ordinary course of business and consistent with post practice.
6. The undersigned represent and warrant to Lessor that all financial
statements furnished to Lessor will accurately reflect in all material
respects the financial conditions and operation of the undersigned at the
times and for the periods therein stated. The undersigned, H a
corporation, further represents and warrants that it is duly organized and
existing under the laws of the state of its incorporation, that the
execution, delivery and performance of this Guarantee are within its
corporate powers, have been duty authorized, are not in contravention of
law or the terms of its charter or by-laws, or of any indenture, agreement
or undertaking to which it is a party or by which it is bound, and that
the execution of this Guarantee is in furtherance of the business purposes
of the undersigned.
This Unconditional and Continuing Guarantee is on June 3, 1996.
OHM CORPORATION
By: /s/ ▇▇▇▇ ▇.
---------------
Title: Vice President and Secretary
----------------------------
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