Exhibit 10.22
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MASTER LEASE
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MASTER LEASE NUMBER: __________
THIS MASTER LEASE is made as of August 27, 2001, by and between
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EDJ LEASING CO., L.P., a Missouri limited partnership, 00000 Xxxxxxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Lessor") and XXXXXX X. XXXXX & CO., L.P.,
a Missouri limited partnership, 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
00000 ("Lessee").
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease
from Lessor, certain equipment pursuant to the provisions hereof and
applicable lease schedules ("Lease Schedules") which shall be executed by
the parties from time to time in the form attached hereto as Exhibit A, and
which shall be made a part hereof.
NOW, THEREFORE, in consideration of the premises, the parties,
intending to be legally bound, agree as follows:
1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby
agrees to lease from Lessor, the equipment ("Equipment") described in Lease
Schedules which shall be executed between the parties from time to time, and
which shall be attached to and become a part of this Master Lease. The
provisions of this Master Lease and the Lease Schedules shall constitute the
entire agreement between the parties with regard to the subject matter
hereof and shall supersede all prior negotiations, agreements, and
understandings, whether oral or written, unless specifically incorporated by
reference. The lease of Equipment described in each particular Lease
Schedule shall be considered a separate Lease pursuant to the terms of the
Master Lease and each Lease Schedule the same as if a single lease
containing such terms had been executed covering such items; except that,
any provision of any Lease Schedule shall supersede any conflicting
provision of this Master Lease.
2. TERM. The term of the lease with respect to the Equipment listed
on a Lease Schedule shall begin on the date such Equipment is accepted by
Lessee and shall continue for the number of consecutive months from the
"Rent Commencement Date" shown in the related Lease Schedule (the "Initial
Term") unless earlier terminated as provided herein. Any advance rentals
shall not be refundable if this Master Lease with respect to any or all
Lease Schedules is duly terminated by Lessor.
3. RENT. Lessee shall pay as rent for the initial term of this Master
Lease as to each Lease Schedule, the amount reflected in each Lease Schedule
as Base Rent. Base Rent installments shall be payable monthly in arrears,
the first such payment being due on the Rent Commencement Date, or such
later date as Lessor designates in writing, and subsequent payments due on
the same day of each successive month thereafter during the term hereof.
(a) TAXES. As additional rent, Lessee shall pay all sales, use,
excise, personal property, stamp, documentary and ad valorem taxes, license
and registration fees, assessments, fines, penalties and similar charges
imposed on the ownership, possession or use of the Equipment during the term
of this Master Lease as to any Lease Schedule as and when due, and
shall pay all taxes (except Lessor's Federal or State net income taxes)
imposed on Lessor or Lessee with respect to the rental payments hereunder.
Lessee shall reimburse Lessor upon demand for all taxes paid by or advanced
by Lessor. Lessee shall file all returns required therefor and furnish
copies to Lessor.
(b) ADJUSTMENTS IN RENT. Base Rent reflected in all Lease
Schedules shall increase or decrease with changes in the Initial Index Rate
in the manner described in the applicable Lease Schedule.
(c) NET LEASE. This Master Lease is a net lease and all payments
of Base Rent and additional rent hereunder are net to Lessor.
4. DISCLAIMER OF WARRANTIES AND WAIVER OF DEFENSES.
(a) NO WARRANTIES BY LESSOR. LESSOR, BEING NEITHER THE
MANUFACTURER, NOR SUPPLIER, NOR A DEALER IN THE EQUIPMENT, MAKES NO WARRANTY
AND HEREBY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, TO ANYONE, AS TO THE
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, CONDITION,
CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT OR ITS MATERIAL
OR WORKMANSHIP. Lessor further disclaims any liability for loss, damages, or
injury to Lessee or third parties as a result of any defects, latent or
otherwise, in the Equipment whether arising from Lessor's negligence or
application of the laws of strict liability. As to Lessor, Lessee leases the
Equipment "as is." Lessee has selected the supplier of the Equipment and
acknowledges that Lessor has not recommended the supplier. Lessor shall have
no obligation to install, maintain, erect, test, adjust, or service the
Equipment. Lessee agrees to install, maintain, and service the Equipment or
cause the same to be performed by qualified third parties. If the Equipment
is unsatisfactory for any reason, Lessee shall make claim on account thereof
solely against the supplier, and any of the supplier's vendors, and shall
nevertheless pay Lessor all rent payable under the Lease.
(b) ASSIGNMENT FOR BREACH OF WARRANTY. Lessor hereby assigns to
Lessee, solely for the purpose of prosecuting such a claim, all of the
rights which Lessor may have against any supplier and any of the suppliers'
vendors for breach of warranty or other representations respecting the
Equipment.
(c) LESSOR'S ASSIGNMENT, WAIVER OF DEFENSES. Lessee acknowledges
Lessor's intent to assign or pledge this Master Lease and/or the rentals due
hereunder and Lessee agrees that no assignee or pledgee of Lessor shall be
bound to perform any duty, covenant or condition, or warranty (express or
implied) attributable to Lessor and Lessee further agrees not to raise any
claim or defense arising out of this Master Lease or otherwise against
Lessor as a defense, counterclaim, or offset to any action by any assignee
or pledgee for the unpaid balance of rentals due under the Master Lease or
for possession of the Equipment.
(d) WAIVER OF INDIRECT DAMAGES. Regardless of cause, Lessee shall
not assert and Lessor shall not be responsible for any claim whatsoever
against Lessor for loss of anticipatory profits or any other indirect,
special, punitive or consequential damages, nor shall
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Lessor be responsible for any damages or costs which may be assessed against
Lessee in any action for infringement of any intellectual property rights of
third parties. Lessor makes no warranty as to the treatment of this Master
Lease, for tax or accounting purposes.
(e) AGENCY DISCLAIMER. Notwithstanding any fees that may be paid
by Lessor to a supplier or any agent of a supplier, Lessee acknowledges that
no supplier or any agent of a supplier is or shall be deemed an agent of
Lessor or is authorized to waive or alter any term or condition of this
Master Lease.
5. NONCANCELLABLE LEASE. NEITHER THIS MASTER LEASE NOR ANY LEASE
SCHEDULE CAN BE CANCELLED BY LESSEE DURING THE TERM PROVIDED IN THIS MASTER
LEASE. LESSEE'S OBLIGATION TO PAY BASE RENT AND ADDITIONAL RENT ARE
ABSOLUTE.
6. TITLE, PERSONAL PROPERTY. The Equipment is, and shall at all times
remain, Lessor's property, and Lessee shall have no right, title, or
interest therein, except as herein set forth. If Lessor supplies Lessee with
labels indicating that the Equipment is owned by Lessor, Lessee shall affix
such labels to and keep them in a prominent place on the Equipment. Lessee
shall at its expense protect and defend Lessor's title against all persons
claiming against or through Lessee, at all times keeping the Equipment free
from any legal process or encumbrance whatsoever including but not limited
to liens, attachments, levies and executions, and shall give Lessor
immediate written notice thereof and shall indemnify Lessor from any loss
caused thereby. Lessee shall execute and deliver to Lessor, upon Lessor's
request, such further instruments and assurances as Lessor deems necessary
or advisable for the confirmation or perfection of Lessor's rights
hereunder.
The Equipment is, and shall at all times be and remain, personal
property notwithstanding that the Equipment or any part thereof may now be,
or hereafter become, in any manner affixed or attached to real property or
any improvements thereon.
7. CARE, USE AND LOCATION. Lessee, at its own cost and expense, shall
maintain and keep the Equipment in good repair, condition and working order,
and shall use the Equipment lawfully. At all times during the term of any
Lease Schedule or extensions thereof, the Equipment shall be located at any
one or more of the locations listed on Exhibit B attached hereto; provided,
however, Lessee shall have the right, at any time and from time to time,
upon at least forty (40) days advance written notice, to move any item of
Equipment to any of Lessee's various locations. Lessor shall have the right
to inspect the Equipment where it is located at any reasonable time.
8. REDELIVERY. Upon expiration or earlier termination of this Master
Lease as to any Lease Schedule, Lessee shall return the Equipment listed in
that Lease Schedule, freight prepaid, to Lessor in good repair, condition,
and working order, ordinary wear and tear resulting from proper use thereof
only excepted, in a manner and to a location reasonably designated by
Lessor. If, upon expiration or termination of this Master Lease as to any
Lease Schedule the Lessee does not immediately return the Equipment listed
in that Lease Schedule to the Lessor, it shall continue to be held and
leased hereunder, and this Master Lease shall thereupon be extended
indefinitely as to term at the same monthly rental provided in that Lease
Schedule, subject to the
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right of either party to terminate the Master Lease as to that Lease
Schedule upon 90 days' written notice, whereupon the Lessee shall forthwith
deliver the Equipment to the Lessor as set forth in this paragraph.
9. OPTION TO PURCHASE. At the expiration of the term set forth in
each applicable Lease Schedule, notwithstanding the Redelivery provision set
forth in paragraph 8 hereof, Lessor hereby grants to Lessee the option to
purchase all, but not less than all, Equipment listed on such Lease
Schedule. To exercise such option as to Equipment listed in an applicable
Lease Schedule, Lessee, at least thirty (30) days prior to the expiration of
this Master Lease in respect of such Lease Schedule, shall advise Lessor in
writing of its intent to purchase all, but not less than all, of the
Equipment listed therein. Lessee shall pay, as the purchase price for such
Equipment ("Purchase Price"), cash in an amount equal to the then fair
market value of the Equipment, which value Lessor and Lessee agree will not
be less than the Minimum Option Percentage times the Acquisition Value, nor
more than the Maximum Option Percentage time the Acquisition Value, as such
terms are defined in the applicable Lease Schedule and the products of which
are reflected as the Minimum Option Value and Maximum Value on the
applicable Lease Schedule. Fair market value shall be determined by Lessor
in good faith. In the event Lessee does not agree with the Lessor's
calculation of fair market value, Lessee may, within five (5) days of
Lessor's determination, request, in writing, that the fair market value be
determined as Lessee's cost by a qualified independent appraiser who is not
the manufacturer of the Equipment and is chosen by Lessee. The decision of
the appraiser shall be binding on both parties; provided, however, Lessee
shall not be required to pay greater than the Maximum Option Value nor
permitted to pay less than the Minimum Option Value.
Such purchase shall be closed within thirty (30) days of the date of
final determination of the Equipment's fair market value at Lessor's office
or as otherwise agreed by the parties. At closing, Lessee shall pay, in
cash, the Purchase Price, any sales, use or other taxes payable in respect
of such purchase and all accrued and unpaid Base Rent or additional rent.
Upon such payment, the Equipment listed in the applied Lease Schedule shall
be deemed transferred to Lessee at its then location.
10. RISK OF LOSS. Lessee shall bear all risks of loss of and damage to
the Equipment from any cause; occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of loss or damage,
Lessee, at Lessor's option, shall: (a) place the damaged Equipment in good
repair, condition and working order; or (b) replace lost or damaged
Equipment with like Equipment in good repair, condition and working order
with documentation creating clear title thereto in Lessor; or (c) pay to
Lessor the then unpaid balances of the aggregate rent reserved under the
Master Lease and applicable Lease Schedule plus the value of Lessor's
residual interest in the Equipment (based on the Minimum Option Value). Upon
Lessor's receipt of such payment, Lessee and/or Lessee's insurer shall be
entitled to Lessor's interest in said item for salvage purposes, in its then
condition and location, as is, without warranty, express or implied.
11. INSURANCE. Lessee shall keep the Equipment insured against all
risks of loss or damage from every cause whatsoever for not less than the
full replacement value thereof, and shall carry public liability and
property damage insurance covering the Equipment and its use. All such
insurance shall be in form and amount reasonably acceptable to Lessor and
consistent
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with any requirements imposed on Lessor to by its lenders. The foregoing
notwithstanding, Lessee may elect to self-insure in accordance with its
customary business practices in lieu of obtaining the insurance required
hereunder. If Lessee self-insures, Lessee shall so notify Lessor, and, in
any event, Lessor shall be deemed an additional insured. Insurance or
self-insurance proceeds shall be applied toward the replacement, restoration
or repair of the Equipment.
12. INDEMNITY. Lessee shall indemnify and hold Lessor harmless
against, any and all claims, actions, suits, proceedings costs, expenses,
damages, and liabilities, including attorney's fees, arising out of,
connected with, or resulting from the Equipment or the Master Lease,
including without limitation, the manufacture, selection, delivery,
possession, use, operation, or return of the Equipment.
13. DEFAULT AND REMEDIES. If Lessee ceases doing business as a going
concern, of if a petition in bankruptcy, arrangement, insolvency, or
reorganization is filed by or against Lessee and is not dismissed within
sixty (60) days, or if Lessee makes an assignment for the benefit of
creditors, or if on or prior to the expiration of thirty (30) days after
written notice to Lessee from Lessor of any other breach of this Master
Lease (whether monetary or non-monetary) Lessee fails to cure said breach,
Lessor may exercise any one or more of the following remedies:
(a) To declare the entire balance of rent hereunder discounted to
present value at the Index Rate then in effect immediately due and payable
as to any or all Lease Schedules of Equipment covered hereby.
(b) To xxx for and recover all rents, and other movies due, with
respect to any or all items of Equipment listed on any or all Lease
Schedules to the extent permitted by law.
(c) To require Lessee to assemble all Equipment at Lessee's
expense, at a place reasonably designated by Lessor.
(d) Pursuant to applicable law and after demand, to remove any
physical obstructions for removal of the Equipment from the place where the
Equipment is located and take possession of any or all items of Equipment
wherever same may be located, disconnecting, and separating all such
Equipment from any other property. Lessor may, at its option, use, ship,
store, repair, or lease all Equipment so removed and sell or otherwise
dispose of any such Equipment at a private or public sale.
Lessor may exhibit and resell the Equipment at Lessee's premises at
reasonable business hours without being required to remove the Equipment. If
Lessor takes possession of the Equipment, Lessor shall give Lessee credit
for any sums received by Lessor from the sale or rental of the Equipment
after deduction of the expenses of sale or rental and Lessor's residual
interest in the Equipment. Lessee shall also be liable for and shall pay to
Lessor all expenses incurred by Lessor in connection with the enforcement of
any of Lessor's remedies, including all expenses of repossessing, storing,
shipping, repairing, and selling the Equipment. Lessor and Lessee
acknowledge the difficulty in establishing a value for the unexpired Lease
term and owing to such difficulty agree that the provisions of this
paragraph represent an agreed measure of damages and are not to be deemed a
forfeiture or penalty.
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If any payment is not made by Lessee within fifteen (15) days of the
date due provided in any Lease Schedule, Lessee shall pay to Lessor, not
later than one month thereafter, an amount calculated at the rate of five
cents per one dollar of each such delayed payment, but only to the extent
allowed by law. Such amount shall be payable in addition to all amounts
payable by Lessee as a result of exercise of any of the remedies herein
provided.
All of Lessor's remedies hereunder are cumulative, are in addition to
any other remedies provided for by law, and may, to the extent permitted by
law, be exercised concurrently or separately. The exercise of any one remedy
shall not be deemed to be an election of such remedy or to preclude the
exercise of any other remedy. No failure on the part of the Lessor to
exercise and no delay in exercising any right or remedy shall operate as a
waiver thereof or modify the terms of this Lease.
14. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. If Lessee fails to
comply with any provision of this Master Lease with respect to any Lease
Schedule, Lessor may effect such compliance on behalf of Lessee upon fifteen
(15) days' prior written notice to Lessee. In such event, all movies
expended by, and all expenses of Lessor in effecting such compliance shall
be deemed to be additional rental, and shall be paid by Lessee to Lessor at
the time of the next monthly payment of rent set forth in such Schedule.
15. LESSEE'S ASSIGNMENT; QUIET ENJOYMENT. Without Lessor's prior
written consent which consent shall not be unreasonably withheld or delayed,
Lessee shall not assign, transfer, pledge, hypothecate, or otherwise dispose
of the Equipment or any interest therein. Notwithstanding any assignment by
Lessor, providing Lessee is not in default hereunder, Lessee shall quietly
enjoy use of the Equipment, subject to the terms and conditions of this
Master Lease and all Lease Schedules.
16. NOTICES. Service of all notices under this Master Lease shall be
sufficient if given personally or mailed by first class U.S. mail postage
prepaid to the party involved, Attention: General Counsel, at its respective
address set forth herein, or at such other address as said party may provide
in writing from time to time. Any such notice mailed to said address shall
be effective when deposited in the United States mail, duly addressed and
with postage prepaid, or personally delivered.
17. CAPTIONS. Captions are used in this Master Lease for convenience
only, and are not intended to be used in construction or interpretation of
this Master Lease.
18. TIME OF ESSENCE. Time is of the essence in this Master Lease.
19. ENTIRE AGREEMENT; MODIFICATION. This Master Lease, together with
any Lease Schedules executed by the parties and Exhibits A and B, contains
the entire agreement between the Lessor and Lessee. No modification of this
Master Lease, or any Lease Schedule, shall be effective unless in writing
and executed by an executive officer of the Lessor.
20. NON-WAIVER. No delay or failure by the Lessor or Lessee to
exercise any right under this Master Lease, and no partial or single
exercise of that right, shall constitute a waiver
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of that or any other right, unless otherwise expressly provided herein. A
waiver of default shall not be a waiver of any other or subsequent default.
21. GOVERNING LAW. This Master Lease shall be construed in accordance
with and governed by the laws of the State of Missouri.
22. COUNTERPARTS. This Master Lease may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
23. BINDING EFFECT. The provisions of this Master Lease shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, legatees, personal representatives, successors, and
assigns.
IN WITNESS WHEREOF, this Master Lease has been executed as of the day
and year first above written.
LESSOR: LESSEE:
EDJ LEASING CO., L.P. XXXXXX X. XXXXX & CO., L.P.
BY: LHC, INC., BY: EDJ HOLDING COMPANY, INC.
GENERAL PARTNER GENERAL PARTNER
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxx Xxxxx Name: Xxxxxxxx X. Xxxxx
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Title: Treasurer Title: General Counsel
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