ALLY CAPITAL CORPORATION
EQUIPMENT LEASE AGREEMENT
THIS EQUIPMENT LEASE AGREEMENT is made as of the 12th day of
October, 1994 by and between ALLY CAPITAL CORPORATION ( Lessor ) and
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation, and
AMERICAN RESOURCE RECOVERY CORPORATION, a Tennessee corporation, and
INTEGRATED RESOURCE RECOVERY, INC., a Florida corporation, and XXXXX
PROCESSING, INC., an Ohio corporation, AS CO-LESSEES ( Lessee ). All
of the defined terms and rules of construction pertaining to this
Lease are set forth in Section 17 hereof.
1. TERM AND RENT. (a) Lessor agrees to lease to Lessee, and
Lessee agrees to lease from Lessor, the Equipment described in each
Equipment Schedule to be executed pursuant hereto. This Lease shall
be effective from and after the date of execution hereof, whether
or not any Equipment Schedule has been entered into, and as an
Inducement to Lessor to enter into this Lease, Lessee agrees that.
it shall, pursuant to the terms hereof, be liable for, subject to,
undertake or comply with, as the case may be, all of the
representations, warranties, agreements, disclaimers, waivers and
indemnifications made herein that pertain to Lessee and Lessor
generally, or to events that arise or occur in connection with
transactions that the parties intend to document under an Equipment
Schedule, whether or not such Equipment Schedule is ever effectively
entered into, and any other provisions of any of the Lease Documents
that may be necessary or appropriate for the interpretation or
enforcement of the foregoing. The Term of this Lease with respect
to any item of the Equipment shall consist of the Term set forth in
the Equipment Schedule relating thereto; and, except as otherwise
expressly provided herein, Lessor's and Lessee's respective rights
and obligations .hereunder (including Lessee's obligation to pay
Basic Rent for the items of Equipment described therein) shall
commence and continue at all times from and after the effective date
thereof, and terminate upon the expiration of the Term thereof and
Lessee's complete performance of all of its obligations thereunder.
(b) Lessee shall pay Lessor Basic Rent for the Equipment,
without any deduction or setoff and without prior notice or demand,
in the aggregate amounts specified in each Equipment Schedule, and
Supplemental Rent, promptly as such Rent shall become due and owing.
In addition to each such payment of Rent, on the due date therefor,
Lessee shall be liable for and shall pay to Lessor an Administrative
Fee; provided, however, to the extent such payment of Rent shall be
received by Lessor in good collected indefeasible funds on the due
date therefor, Lessee shall be relieved of its obligation to pay the
Administrative Fee attributable to such Rent payment. Lessee agrees
that it shall have no right to, and it shall not, pay any Rent prior
to the due date thereof. Each Equipment Schedule shall be and
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THE ONE AND ONLY ORIGINAL OF THIS LEASE IS MARKED "ORIGINAL" AT THE
TOP OF THIS PAGE AND SHALL CONSTITUTE THE ONLY CHATTEL PAPER
ORIGINAL FOR PURPOSES OF ARTICLE NINE OF THE UNIFORM COMMERCIAL
CODE; EACH OTHER SIGNED VERSION IS MARKED "DUPLICATE".
remain a non-cancellable net lease, and Lessee shall not be entitled
to any abatement or reduction of Rent due thereunder for any reason.
Without limiting the foregoing, Lessee's obligation to pay Rent, and
to otherwise perform its obligations under the Lease Documents, are
and shall be absolute and unconditional until, with respect to each
Equipment Schedule, such Equipment Schedule terminates in accordance
with its terms and shall not be affected by any circumstances,
happenings or events whatsoever and whenever and howsoever
occurring, including, any right of setoff, counterclaim, recoupment,
deduction, defame or other fight which Lessee may have against
Lessor, the manufacturer or vendor of the Equipment, or anyone else
for any reason whatsoever. If for any reason whatsoever, any
Equipment Schedule shall be terminated in whole or in part by
operation of law or otherwise (other than pursuant to the expiration
of the Term of the applicable Equipment Schedule), Lessee
nonetheless agrees to pay to Lessor an amount equal to each payment
of Rent at the time such payment would have become due and payable
in accordance with the terms hereof had such equipment Schedule not
been terminated in whole or in part. Rent is payable as and when
specified in the Equipment Schedule, or as otherwise provided
herein, by mailing the same to Lessor at its address specified
pursuant to this Lease; and shall be effective upon receipt.
Timeliness of Lessee's payment and other performance of its
obligations under the Lease Documents is of the essence
Notwithstanding anything in this Section 1(b) to the contrary,
Lessee shall be entitled to a credit in an amount equal to the
Abatement Amount against its obligation to pay Basic Rent for any
item(s) of Equipment suffering an Impairment of Use conditioned upon
the following: (A) Lessee provides Lessor with written notice of
such Impairment of Use within two business days after having written
notice or actual knowledge thereof (whichever occurs first),with a
full and complete description of such Impairment of Use, including
the nature and extent thereof, and (B) Lessee provides to Lessor all
necessary and appropriate cooperation with respect to Lessor's or
its designee's investigation, replacement, curing action or other
action with respect to such Impairment of Use. In furtherance of the
foregoing, Lessee (i) agrees that in the event Lessor replaces any
item of Equipment with Replacement Equipment, Lessor shall be deemed
to have cured any Impairment of Use with respect to such replaced
items of Equipment, on and as of the date of Lessees's acceptance
of such Replacement Equipment; (ii) shall execute a supplement to
the appropriate Equipment Schedule thereby substituting the
Replacement Equipment for such replaced item of Equipment; (iii)
shall without further action be deemed to have conveyed to Lessor
good title, free and clear of all Liens, to any item of Equipment
replaced pursuant hereto or for which the Abatement Period
pertaining thereto extends to the expiration of the Term of the
Equipment Schedule, by making it available to Lessor, and (iv) shall
execute and deliver to Lessor a xxxx of sale pertaining thereto that
is acceptable to Lessor.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE. Lessee
represents, warrants and covenants that: (a) Perma-Fix
Environmental Services, Inc. is a corporation duly organized and
validly existing in good standing under the laws of the state of
Delaware, American Resource Recovery Corporation is a corporation
duly organized and validly existing in good standing under the laws
of the state of Tennessee, Integrated Resource Recovery, Inc. is a
corporation duly organized and validly existing, in good standing
under the laws the state of Florida, Xxxxx Processing, Inc. is a
corporation duly organized and validly existing in good standing
under the laws of the state of Ohio, is duly qualified to do
business in all jurisdictions where failure to be so qualified would
have a material adverse effect on the financial condition, business
or operations of Lessee, or impair the enforcement of its
obligations under the Lease Documents. (b) The execution, delivery
and performance of the Lease Documents and compliance with the terms
thereof: (i) have been duly authorized by all necessary corporate
action on the part of Lessee; (ii) do not require the approval of
any stockholder, trustee or ,holder of any obligations of Lessee
except such as have been duly obtained; and (iii) do not and will
not contravene any Law, now binding on Lessee, or the charter or by-
laws of Lessee, or contravene the provisions of, or constitute a
default under, or result in the creation of any Lien upon the
property of Lessees under any indenture, mortgage, contract or other
agreement to which Lessee is a party or by which it or its property
is bound. (c) The Lease Documents, when entered into, will
constitute legal, valid and binding obligations of Lessee,
enforceable against Lessee in accordance with the terms thereof.
(d) There are no pending actions or proceedings to which Lessee is
a party, and there are no other pending or threatened actions or
proceedings of which Lessee has knowledge, before any Government
Authority, which, either individually or in the aggregate, would
materially adversely affect the financial condition of Lessee, or
the ability of Lessee to perform obligations under, or comply with
the terms of, the Lease Documents. (e) Lessee is not in default
under any obligation for the payment of borrowed money, for the
deferred purchase price of property or for the payment of any rent
under any lease agreement which, either individually or in the
aggregate, would have the same such effect. (F) With respect to the
Equipment covered by each Equipment Schedule, under the Applicable
Laws of the state(s) in which such Equipment is to be located, such
Equipment consists solely of personal property and not fixtures. (g)
The financial statements of Lessee (copies of which have been
furnished to Lessor) have been prepared in accordance with GAAP, and
fairly present Lessee's financial condition and the results of its
operations as of the date of and for the period covered by such
statements, and since the date of such statements there has been no
material adverse change in such conditions or operations. (h) The
address stated below the signature of Lessee is the chief place of
business and chief executive office (which terms shall have the
meanings provided in Article 9 of the Code) of Lessee; and Lessee
does not conduct business under a trade, assumed or fictitious name.
(i) With respect to the Equipment covered by each Equipment
Schedule, Lessor will have a valid, perfected, first priority
security interest in such Equipment pursuant to the Code and other
Applicable Law upon its purchase of such Equipment and its filing
all of the UCCs executed by Lessee in connection therewith. (j)
With respect hereto and to each Equipment Schedule, Lessee has not
permitted, and will not permit, any person to engage in any activity
that could result in the imposition of liability under Applicable
Law on Lessee, Lessor or any owner or operator of the Equipment, or
would otherwise impair Lessor s rights or title pertaining thereto.
