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EXHIBIT 10.59
MASTER LEASE
(MOTOR VEHICLE)
This Master Lease Agreement ("Master Lease") is dated 5-17-96, between NBD Bank
("Lessor"), and XxXxxxx Group Leasing, Inc. ("Lessee").
Lessee wants from time to time to lease from Lessor personal property to be
described in one or more schedules ("Schedule") of leased equipment. Lessor is
willing to lease such personal property to Lessee at the rent, for the term and
upon the conditions stated. Any Schedules executed by Lessor and Lessee which
are identified as being a part of this Master Lease, shall be deemed to
incorporate by reference all the terms of this Master Lease except as provided
in the Schedule. In the event of a conflict between this Master Lease and any
Schedule, the provisions of such Schedule shall control.
1. EQUIPMENT LEASED AND TERM. This Master Lease shall cover such personal
property as is described in any Schedule (the "Equipment") executed by the
parties. Lessor leases to Lessee and Lessee hires and takes from Lessor, subject
to the conditions of this Master Lease, the Equipment described in any
Schedule. The term for any item of Equipment shall be for the period as set
forth in the Schedule ("Initial Lease Term").
2. RENT. The rent for each item of Equipment shall be payable as, and in the
amount, shown on the Schedule.
3. PURCHASE AND ACCEPTANCE. Lessee requests Lessor to acquire all scheduled
Equipment pursuant to an assignment of Lessee's purchase order(s) for the
Equipment. Delivery of each item of Equipment shall be deemed complete upon the
acceptance date ("Acceptance Date") stated in the Schedule. Lessor shall not be
liable for loss or damage or for the delay or failure of any supplier of the
Equipment ("Seller") to deliver any item of Equipment. THE LESSEE REPRESENTS
THAT LESSEE HAS SELECTED BOTH THE EQUIPMENT LISTED IN ANY SCHEDULE AND THE
SELLER BEFORE HAVING REQUESTED LESSOR TO ACQUIRE THE EQUIPMENT FOR LEASING TO
LESSEE.
4. NON-CANCELABLE LEASE. THIS MASTER LEASE IS NON-CANCELABLE. When Lessee
signs and delivers a Certificate of Acceptance for the Equipment, its
obligations to pay all rent and other amounts for the Initial Lease Term and to
perform as required under this Master Lease are unconditional, irrevocable and
independent except as provided in a certain credit agreement dated 5-17-96
between the Lessor, as Bank, and the Lessee, as Borrower. These obligations
are not subject to cancellation, termination, modification, repudiation, excuse
or substitution by Lessee. Lessee is not entitled to any abatement, reduction,
offset, defense or counterclaim with respect to these obligations for any
reason whatsoever, whether arising out of default or other claims against
Lessor, the Seller or the manufacturer of the Equipment, defects in or damage
to the Equipment, its loss or destruction.
5. DISCLAIMER OF WARRANTIES BY LESSOR; RIGHTS OF LESSEE. LESSOR MAKES NO
WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING THE
CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS-IS".
UNDER NO CIRCUMSTANCES SHALL LESSOR BE RESPONSIBLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS MASTER LEASE AND/OR THE
EQUIPMENT. LESSEE IS ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE
OF ANY THIRD PARTY, PROVIDED TO LESSOR BY THE SELLER IN CONNECTION WITH OR AS
PART OF THE CONTRACT BY WHICH LESSOR ACQUIRED THE EQUIPMENT. LESSEE MAY
COMMUNICATE WITH THE SELLER AND RECEIVE AN ACCURATE AND COMPLETE STATEMENT OF
THOSE RIGHTS, PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND
LIMITATIONS OF THEM OR OF REMEDIES.
6. CLAIMS AGAINST SELLER; SELLER NOT AN AGENT OF LESSOR. If the Equipment is
not properly installed, does not operate as represented or warranted by the
Seller or is unsatisfactory for any reason, Lessee shall make any claim for same
solely against the Seller and shall nevertheless pay Lessor all rent payable
under this Master Lease. Lessor agrees to assign to Lessee, solely for the
purpose of making and prosecuting any such claim, any rights it may have against
the Seller for breach of warranty or representation regarding the Equipment.
Notwithstanding any fees that must be paid to Seller or any agent of Seller,
Lessee understands and agrees that neither the Seller nor any agent or employee
of the Seller is an agent or employee of the Lessor and that neither the Seller
nor its agent or employee is authorized to waive or alter any term or condition
of this Master Lease.
7. TITLE; LOCATION OF THE EQUIPMENT; EQUIPMENT IS PERSONAL PROPERTY;
TERMINATION. Title to the Equipment is in the Lessor and under no
circumstances shall pass to Lessee. Lessor agrees that the Equipment is motor
vehicles, primarily operating in the United States. Lessee shall provide
Lessor, immediately upon request during the term of the Master Lease, a written
report of Equipment locations. LESSEE FURTHER COVENANTS AND AGREES THAT THE
EQUIPMENT IS, AND WILL AT ALL TIMES BE AND REMAIN, PERSONAL PROPERTY.
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Upon Termination of the Initial Lease Term of any Schedule, the Equipment shall
be disposed of in accordance with the terms of Rider A of this Master Lease.
8. NO ASSIGNMENT BY LESSEE; ASSIGNMENT BY LESSOR. THIS MASTER LEASE SHALL NOT
BE ASSIGNED BY LESSEE, NOR SHALL ANY OF THE EQUIPMENT BE SUBLEASED BY LESSEE
WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Lessor may sell or assign all or
part of its right, title and interest in this Master Lease, any item of
Equipment and/or any Schedule and in any monies to become due to the Lessor.
The assignee shall not be liable for or be required to perform any of Lessor's
obligations to Lessee. All assigned rental payments shall be paid directly to
assignee, upon written notice to Lessee of such assignment. Lessee's
performance of all its obligations shall not be subject to any defense,
counterclaim or setoff which the Lessee may have against Lessor. Lessee agrees
that it will not assert any such defenses, setoffs, counterclaims or
claims against the assignee.
9. CASUALTY AND LIABILITY INSURANCE; RISK OF LOSS; DAMAGE OR DESTRUCTION.
Lessee shall keep all Equipment insured against loss by fire, theft and all
other hazards (comprehensive coverage) in such amounts as Lessor reasonably
requires but not less than the casualty value ("Casualty Value") for such item
indicated in the Casualty Value Table attached to the applicable Schedule.
Lessee appoints Lessor Lessee's attorney in fact to endorse any loss payment or
returned premium check and to make any claim under such insurance. Lessee shall
also insure the Lessor and Lessee with respect to liability for personal
injuries in amounts of at least $1,000,000 per individual, $3,000,000 per
occurrence; and $1,000,000 per occurrence for damage to or loss of use of
property resulting from the ownership, use and operations of the Equipment and
against risks customarily insured against by the Lessee for equipment owned by
it. All policies shall be endorsed with Lessor as a loss payee and additional
insured and shall provide that the interest of Lessor shall not be invalidated
by any act of Lessee. Evidence of insurance must be delivered to Lessor within
30 days after any Acceptance Date. In the event of loss, destruction or theft
of, or damage to, any of the Equipment, Lessee will immediately notify Lessor.
If Lessee defaults in obtaining any insurance, Lessor may but is not required
to, place such insurance. Any premiums paid by Lessor shall be additional rent
payable on demand with interest at the highest legal rate from the date of
payment. At Lessor's sole option, such amounts together with interest may be
added to the lease balance to be paid by Lessee as additional monthly rent.
Lessee assumes and shall bear all risks of loss of, damage to or destruction of
each item of Equipment, whether partial or complete. Except as provided in
this Section 9, no such event shall relieve the Lessee of its obligation to pay
the full rental payable for such item.
If any item of Equipment is destroyed, damaged beyond economical repair, lost
or stolen, or taken by governmental action for a stated period extending beyond
the Initial Lease Term for such item (an "Event of Loss"), Lessee must promptly
notify Lessor and any assignee and pay to Lessor or the assignee, as the case
may be, on the next rent payment date following the Event of Loss the Casualty
Value of the item of Equipment. Upon such payment and provided no Event of
Default as defined in Section 12 has occurred, Lessee's obligation to pay rent
for such item of Equipment will cease and Lessee will be entitled to receive
any insurance proceeds or other recovery received by the Lessor or assignee in
connection with the Event of Loss.
10. REPAIRS; USE; ALTERATIONS; ATTACHMENTS. Lessee, at its own expense, shall
keep the Equipment maintained in good repair, condition, working order, and in
accordance with the manufacturer's recommended maintenance procedures and
specifications, shall use the Equipment lawfully; and shall not alter the
Equipment without the Lessor's prior written consent. Lessee shall take no
action which would void the manufacturer's warranty on the Equipment. All
items which become attached to or a part of the Equipment become the property
of Lessor.
11. LIENS AND TAXES. Lessee at its expense shall keep the Equipment free and
clear of all levies and liens. Lessee agrees to comply with all laws,
regulations and orders relating to this Lease and to pay when due, all license
fees, assessments and sales, use, property, excise, federal highway use, ad
valorem, ton mileage and other taxes now or later imposed by any governmental
body or agency upon any Equipment, or the use of the Equipment, exclusive,
however, of any taxes based on the net income of Lessor. Lessee shall pay all
such taxes directly to the respective taxing authorities except for the sales
tax on rental payments. Any fees, taxes or other charges paid by Lessor after
ten (10) days notice to and upon failure of Lessee to make such payments, shall
at Lessor's option, become immediately due if Lessee shall not have previously
notified Lessor in writing of its good faith contest of such taxes.
12. DEFAULT. Any of the following shall constitute an event of default ("Event
of Default") by Lessee: (a) Lessee fails to pay when due any scheduled rent or
other amount required by this Master Lease and such failure continues for a
period five (5) days; (b) Lessee breaches any covenant of this Master Lease or
fails to promptly perform any of its terms or conditions and such failure
continues for a period (30) days; (c) Lessee makes an assignment for the benefit
of creditors; (d) a petition is filed by or against Lessee in bankruptcy or for
the appointment of a receiver; (e) dissolution or suspension of Lessee's usual
business; (f) Lessee makes a bulk transfer or bulk sale of any assets; (g) any
material representation, warranty, or signature made by Lessee in this Master
Lease or related document is incorrect, fraudulent or breached; or (h) Lessee
defaults under the terms of any agreement or instrument relating to any lease or
debt for borrowed money such that the lessor accelerates the rent or the
creditor declares the debt due before its maturity. Lessee agrees to give
Lessor prompt notice upon the occurrence of an Event of Default.
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13. LESSOR'S REMEDIES UPON DEFAULT BY LESSEE. Upon the occurrence of an
Event of Default, Lessor, without further notice, and in addition to any remedy
provided by law, may (i) recover from Lessee the Casualty Value of the
Equipment together with any unpaid rent and (ii) regardless of whether such
amounts are paid, take possession of any items of Equipment and at Lessor's
option sell or lease at public auction or by private sale or otherwise dispose
of such items of Equipment.
If Lessee has paid the Casualty Value, all unpaid rent and all other amounts
owing under this Master Lease and any items of Equipment have been taken from
Lessee, the proceeds of any reletting or sale (less all costs and expenses
including reasonable attorneys' fee) shall be paid to the Lessee.
Regardless of any sale or lease of the Equipment or any payment of the Casualty
Value, Lessee will remain liable to Lessor for all damages as provided by law
and for all costs and expenses caused by Lessee's breach, including court costs
and reasonable attorneys' fees (whether attributable to Lessor's in-house
counsel or outside counsel). These costs and expenses shall include, without
limitation, any costs or expenses incurred by Lessor in any bankruptcy,
reorganization, insolvency or other similar proceeding.
14. LATE CHARGES. Without limiting Lessor's remedies above, if Lessee
fails to pay any amount of rental or other payment for a period of ten days
after its due date, Lessee agrees to pay Lessor a late charge of 5% of each
such payment or installment with a minimum late charge of $25.00. This late
charge shall be reassessed in each subsequent month that the rental or other
payment remains unpaid.
15. FINANCING STATEMENTS. The Lessor is authorized to file a financing
statement in accordance with the Uniform Commercial Code signed by Lessee or by
Lessor, as Lessee's attorney in fact.
16. JURISDICTION; VENUE; SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF MICHIGAN. LESSEE CONSENTS TO THE JURISDICTION OF THE
COURTS OF MICHIGAN AND TO VENUE IN THE COURTS OF THE COUNTY OF OAKLAND. No
provision which may be construed as unenforceable shall in any way invalidate
any other provision, all of which shall remain in full force and effect.
17. WARRANTIES BY LESSEE. Lessee warrants and represents that: (a) the
Equipment is being leased for business purposes; (b) all signatures are
genuine; and (c) the person signing the Master Lease is authorized to do so. If
Lessee is other than a natural person, it further represents that (a) it is
duly organized, existing and in good standing pursuant to the laws under which
it is organized; and (b) the execution and delivery of this Master Lease and
the performance of the obligations it imposes are within its powers and have
been duly authorized by all necessary action of its governing body and do not
contravene the terms of its articles of incorporation or organization, its
bylaws or any partnership, operating or other agreement governing its affairs:
18. INDEMNITY BY LESSEE. LESSEE AGREES TO INDEMNIFY AND HOLD LESSOR OR ANY
ASSIGNEE HARMLESS FROM ANY AND ALL CLAIMS, ACTIONS, PROCEEDINGS, EXPENSES,
DAMAGES AND LIABILITIES, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN ANY
MANNER PERTAINING TO THE EQUIPMENT OR THIS MASTER LEASE INCLUDING, WITHOUT
LIMITATION, THE OWNERSHIP, SELECTION, POSSESSION, PURCHASE, DELIVERY,
INSTALLATION, LEASING, OPERATION, USE, CONTROL, MAINTENANCE AND RETURN OF THE
EQUIPMENT AND THE RECOVERY OF CLAIMS UNDER INSURANCE POLICIES.
Lessee acknowledges that the Equipment is owned by Lessor ("Owner"). It is the
intent of Owner/Lessor and Lessee that this Lease constitute a true lease for
Federal income tax purposes so that, for the purpose of determining its
liability for Federal income taxes, Owner shall be entitled to the tax benefits
as are provided by the Internal Revenue Code of 1986, as amended, (the "Code")
to an owner of personal property.
In addition notwithstanding any other provision of this Master Lease, if as to
any Equipment, the modified accelerated cost recovery system or depreciation
deductions allowed under the Code shall be lost, disallowed, eliminated,
reduced, recaptured or otherwise unavailable to Lessor for any reason, then
Lessee shall pay to Lessor as additional rent within 30 days after such a loss
an amount equal to the sum of (i) the additional federal, state, local and
foreign income or any other taxes payable as a result of such loss,
disallowance, elimination, reduction, recapture or unavailability of
accelerated cost recovery or depreciation deductions plus (ii) the amount of
any interest, penalties or additions to tax payable by the Lessor as a result
of such additional tax.
The indemnities given and liabilities assumed by the Lessee pursuant to this
Section 18 shall continue in full force and effect notwithstanding the
expiration or other termination of this Master Lease.
19. NOTICES. Notice from one party to another relating to this Master
Lease shall be deemed effective if made in writing (including
telecommunications) and delivered to the recipient's address, telex number or
telecopier number set forth under its name below.
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20. LABELS AFFIXED TO EQUIPMENT. Lessor shall have the right, but not the
obligation, to attach or require Lessee to attach ownership identification
labels to the Equipment. Lessee agrees not to remove any such labels.
21. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and expenses,
including reasonable attorneys' fees, incurred by Lessor in enforcing any terms
of, or in protecting Lessor's interests under, this Master Lease.
22. PERFORMANCE BY LESSOR. If the Lessee fails to promptly perform any of its
obligations under this Master Lease, Lessor may, at its option, perform such
act or make such payment which the Lessor deems necessary. All sums paid or
incurred by Lessor including reasonable attorneys fees shall be immediately due
and payable by Lessee, without demand, and shall bear interest at the lesser of
one and one-half percent (1-1/2%) per month or the highest rate permissible by
law.
23. ENTIRE AGREEMENT. This Master Lease and subsequent Schedules constitute
the entire agreement of the parties. Neither party relies on any other
statements, understandings, representations or assurances, the same, if any
having been merged into this agreement. This agreement cannot be modified
except by a writing signed by each party. This agreement inures to the benefit
of the heirs, executors, administrators, successors and assigns of the parties.
25. WAIVER. No delay on the part of Lessor in the exercise of any right or
remedy shall operate as a waiver. No single or partial exercise by Lessor of
any right or remedy shall preclude any other future exercise of it or the
exercise of any other right or remedy. No waiver by Lessor of any default shall
be effective unless in writing and signed by Lessor, nor shall a waiver on one
occasion be construed as a bar to or waiver of that right on any future
occasion.
25. FINANCIAL REPORTS. Upon request by Lessor, Lessee will promptly furnish
to Lessor all financial reports deemed necessary by Lessor.
26. WAIVER OF JURY TRIAL. Lessor and Lessee, after consulting or having had
the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in any
litigation based upon or arising out of this Master Lease, or any related
agreement, or any course of conduct, dealing or statements (whether oral or
written). These provisions shall not be deemed to have been modified in any
respect or relinquished by either Lessor or Lessee except by a written
instrument executed by both of them.
THIS MASTER LEASE AGREEMENT THE UNDERSIGNED (AND IF
SHALL NOT BE BINDING ON LESSOR MORE THAN ONE, JOINTLY
UNTIL IT HAS BEEN ACCEPTED AND AND SEVERALLY) AGREE TO
EXECUTED BY AN OFFICER OF LESSOR. TO ALL TERMS AND
CONDITIONS ABOVE WHICH
ARE PART OF THIS MASTER
LEASE AGREEMENT.
Accepted by Lessor: NBD Bank Lessee: XxXxxxx Group Leasing, Inc.
By: Xxxxxx X. Xxxxxx By:
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Title: 2nd VP Title:
--------------------- ---------------------
Date: 5-17-96 By:
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Title:
---------------------
Date:
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Address For Notices: Address For Notices:
00000 Xxxxxxx Xxxx Xxxxx Xxxxx ___________________________
Suite #340 ___________________________
Xxxx, XX 00000 ___________________________
Fax No.: (000) 000-0000 Fax No.: __________________
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[NDB LETTERHEAD]
XXXXXX X. XXXXXX
Second Vice President
July 25, 1995
Xx. Xxx Xxxxxxxx
Treasurer
XxXxxxx Industries, Inc.
0000 Xxxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Dear Xx. Xxxxxxxx:
NBD Bank is pleased to provide the following lease facility for Prime Leasing,
Inc. The terms and conditions of the facility are outlined below.
Lessee... Prime Leasing Corporation
Lessor... NBD Bank (NBD)
Guarantor/Source... XxXxxxx Industries, Inc.
Equipment... E-Z Pack Hercules, E-Z Pack Goliath, Magna-Hoist
Tilt Frame and Aluminum Closed Top Walking Floor
Transfer Hauler
Equipment Cost... Up to a maximum of $5,000,000
Delivery and Lease
Commencement Date... On or before June 30, 1996
TRACTORS:
Payments... Monthly in advance
Base Lease Term... Sixty (60) months
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[NBD LOGO]
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Rental Rates... 1st Quarter (January 1 through March 31)
.01690 of actual equipment cost
2nd Quarter (April 1 through June 30)
.01679 of actual equipment cost
3rd Quarter (July 1 through September 30)
.01670 of actual equipment cost
4th Quarter (October 1 through December 31)
.01661 of actual equipment cost
Rental Adjustment: The rental rate quoted above will be adjusted by
.0000052 for each basis point increase or
decrease, or prorated portion thereof, in the
yield of the Treasury Note rate indicated below.
The rental rate will continue to be subject to
adjustment until the Lessor has been notified
that the Equipment has been delivered and
accepted by the Lessee. Upon such notification,
the Lessor will fix the rate and prepare the
necessary documentation for execution by the
Lessee.
The Treasury note rate will be the average yield
of 3 year U.S. Treasury Notes (as published in
federal Reserve Statistical Release H.15 [519]
from the complete one week period immediately
preceding the date of closing. At the time of
this proposal, the average yield for the prior
week is 5.73%.
Terminal Rental 20% Split/TRAC
Adjustment Clause... Lessee at risk for last 12%; Lessor at risk for
first 8%.
Depreciation... Five (5) year MACRS for the account of the
Lessor.
Interim Rents... It is assumed the acceptance date of the
equipment and commencement date of the Lease
will be the same therefore, no Interim Rents are
expected. If there are Interim Rents, the rate
will be the prime rate of NBD.
Net Lease... Prime Leasing Corporation will be responsible
for all expenses incurred in connection with the
Equipment and the Lease. NBD will make no
warranties of any kind with respect to the
Equipment. Prime Leasing Corporation shall have
all risks of loss.
Insurance... Prime Leasing Corporation will provide physical
damage insurance and liability insurance with
endorsements and in amounts acceptable to NBD
prior to the delivery of the equipment. NBD will
be named as additional insured under the
casualty coverage and under the Prime Leasing
Corporation comprehensive coverage.
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[NBD LOGO]
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Taxes... Prime Leasing Corporation will pay all taxes
associated with the possession, control and
operation of the Equipment, including but not
limited to sales and use tax on lease payments,
if required and personal property tax (excludes
any taxes based on NBD's net income).
Titling Fees... It is assumed that Prime Leasing
Corporation/XxXxxxx Industries, Inc. will title
the vehicles, therefore no fees will be
required.
Material Adverse Change... There will not have occurred, prior to the
initial Funding Date, in the opinion of Lessor,
any material adverse change in the financial
position or in the circumstances involving the
nature of Lessee's or Guarantor's business.
Xxx, we are pleased to provide this facility for your company. I hope the terms
and conditions are acceptable to you. As you requested, I am also sending you a
copy of our lease documents for your review. If you have any questions or
require further information, please feel free to call.
Sincerely,
NBD Bank
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
cc: X. Xxxxxxxx
