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EXHIBIT 10.11
SOUTHWEST BANK OF ST. LOUIS
MASTER LEASE AGREEMENT
MASTER LEASE NO. 000000-0000000
THIS MASTER LEASE AGREEMENT dated as of March 30, 1995, by and between
SOUTHWEST BANK OF ST. LOUIS, (hereinafter called "Lessor"), 0000 Xxxxx
Xxxxxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and Xxxxxxxx Equipment Co.
(hereinafter called "Lessee") having its chief executive office and principal
place of business at 0000 Xx-Xxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000-0000.
In consideration of the mutual agreements hereinafter set forth, and the
payment of rent as herein provided for, the parties hereto agree as follows:
1. LEASE AGREEMENT.
Lease hereby leases to Lessee and Lessee hereby leases from Lessor all
of the equipment and other tangible personal property described in each of the
Equipment Schedule(s) which are executed from time to time by Lessor and
Lessee pursuant to this Master Lease Agreement. Each Equipment Schedule shall
constitute a separate lease on the terms and conditions stated therein and, to
the extent not inconsistent with the Equipment Schedule, on the terms and
conditions stated in this Master Lease Agreement which shall be incorporated by
this reference into each Equipment Schedule. The term "Equipment" as used
herein shall mean, with respect to any Equipment Schedule, the Equipment
described therein. Lessee shall cause the Equipment to be delivered and
installed at the location specified in the Equipment Schedule (the "Equipment
Location"). Once installed, the Equipment will not be moved from the Equipment
Location without Lessor's prior written consent.
2. TERM.
(a) This Master Lease Agreement shall be effective when signed by
both parties and shall continue in effect until all obligations of Lessee under
each Equipment Schedule are fully discharged.
(b) The "Interim Rental Term" for each Equipment Schedule shall
commence on the first day of the month following the month in which the
Installation Date occurs, or the Installation Date if such date is the first
day of the month ("Interim Rental Date") and shall continue thereon until the
Commencement Date. The "Installation Date" shall be the earlier of (i) the date
the Equipment is installed at the Equipment Location and declared acceptable by
Lessee, or if Lessee causes a delay in the installation and acceptance, seven
(7) days after delivery of the Equipment; or (ii) if the Equipment is already
in place under lease from another party and is being purchased by Lessor for
lease to Lessee hereunder, the date Lessor pays for the Equipment. Lessee shall
promptly sign and deliver to Lessor a Certificate of Acceptance as to the
Equipment.
(c) The "Commencement Date" shall be first day of the month
following complete funding by the Lessor under any applicable lease commitment
to Lessee. On said Commencement Date, all Equipment Schedules shall continue
for the number of months specified in the respective Equipment Schedules
("Initial Lease Term"). Lessee hereby authorizes Lessor to insert the
Commencement Date on the respective Equipment Schedules.
3. RENT.
As rent for the Equipment, Lessee shall pay to Lessor at its address
set forth above, or at such other places as Lessor may hereafter designate,
rent in the amount set forth in the Equipment Schedule payable in advance on
the Commencement Date and on the first day of each month thereafter during the
Initial Lease Term. Lessee shall pay Lessor "Interim Rent" in the amount set
forth in the Equipment Schedule, payable in advance on the Interim Rental
Date, and on the first day of each month thereafter during the Interim Rental
Term. If the Interim Rental Date is not the same date as the Installation Date,
Lessee shall pay Lessor Interim Rate on the Installation Date for that period
of time from the Installation Date up to, but not including, the Interim Rental
Date in an amount equal to 1/30th of the Interim Rent amount multiplied by the
number of days from (and including) the Installation Date.
4. TAXES.
(a) PAYMENT OF TAXES: Lessee covenants and agrees to pay to the
appropriate taxing authority and discharge before the same become delinquent,
all taxes, fees, or other charges of any nature whatsoever (together with any
related interest or penalties) now or hereafter imposed, assessed or payable
("Impositions") during the term of this Master Lease Agreement against Lessor,
Lessee or the Equipment by any federal, state, country or local government or
taxing authority upon or with respect to (i) the Equipment, (ii) the ordering,
purchase, sale, ownership, use, operation, return or other disposition thereof,
(iii) the interim rental, monthly rental or any other sums due hereunder with
respect to any Equipment Schedule, or (iv) the leasing of the Equipment
(excepting only federal, state and local taxes measured by the net income of
Lessor).
(b) BILLING: Lessee shall, to the extent permitted by law, cause
all impositions to be billed to Lessee. Lessee shall, at its expense, timely
file all forms and returns and timely do all things required to be done in
connection with the levy, assessment and payment of any impositions. Lessee
shall submit written
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evidence to Lessor of the payment of all Impositions required to be paid by
Lessee hereunder promptly after such payment. Notwithstanding the foregoing,
Lessor, in its sole discretions, may pay any Imposition itself or file any forms
or returns with respect thereto. If Lessor pays any Imposition, Lessee shall
promptly reimburse Lessor for such payment.
(c) CONTEST: Lessee may contest any Imposition by appropriate legal
proceedings, provided the nonpayment of such Imposition thereof or such
proceedings will not, in the opinion of Lessor, adversely affect the title,
property interest or rights of Lessor in the Equipment and provided further
that, if requested by Lessor, Lessee shall give to Lessor security, sufficient
in form and amount, in Lessor's reasonable judgment, to fully satisfy the
amount of the contested Imposition, together with any interest or penalties
thereon.
5. DELIVERY AND RETURN.
Lessee shall arrange for delivery and Lessee shall pay all delivery
expenses (including, without limitation, transportation costs and the cost of
in-transit insurance) associated with the delivery of Equipment from its
previous location to the Equipment Location. Lessee shall inspect the Equipment
upon delivery, identify any damage prior to accepting delivery, and note any
such damage on the xxxx of lading or any other such delivery document. Costs of
repair which are not recovered from the carrier shall be borne and promptly paid
by Lessee. Lessee shall provide a suitable place for installation of the
Equipment and all appropriate facilities as specified by the manufacturer.
Lessee shall pay for the installation of the Equipment. Upon the termination of
Lessee's right to possession of the Equipment (by expiration of the term of the
relevant Equipment Schedule or otherwise) Lessee shall, in accordance with
Lessor's instructions and at Lessee's expense (including, without limitation,
transportation costs and the costs of in-transit insurance) return the Equipment
to such location within the Continental United States as shall be designated by
Lessor. Lessee shall reimburse Lessor for all expenses paid by Lessor associated
with the return of the Equipment when billed. Lessee shall return the Equipment
in the same operating order, repair, condition and appearance as when received,
excepting only normal wear and tear, and with all engineering changes
(prescribed by the manufacturer prior to the termination of Lessee's right of
possession) incorporated in the Equipment. Lessee, at its expense, shall make
any repairs necessary in order to certify that the Equipment is eligible for a
manufacturer's maintenance contract acceptable to Lessor upon its return and
shall have the Equipment certified as eligible for the same. In additional,
Lessee further agrees that such Equipment may remain on its premises for up to
thirty (30) days at no charge to Lessor for the purpose of storage, pending
return shipment.
6. EQUIPMENT CARE.
(a) USE AND MAINTENANCE: Lessee shall, at its expense, maintain the
Equipment in good operating order, repair, and condition. Lessee shall not use
the Equipment for any purpose other than that for which it was designed, and
shall use the Equipment in a careful and proper manner in conformance with the
manufacturer's specifications. Lessee shall, at its expense, enter into and
maintain in force for the Equipment, a maintenance contract with the
manufacturer of the Equipment acceptable to the Lessor and shall provide Lessor
with a copy of such contract, provided, however, Lessee shall not be required to
enter into such a contract for any Equipment so long as the Equipment is under
a manufacturer's warranty.
(b) ALTERATIONS AND ATTACHMENTS: With the prior written consent of the
Lessor, Lessee may at its expense, make alterations or add attachments to the
Equipment which are removable and which do not diminish the value of the
Equipment, do not interfere with the normal and satisfactory operation or
maintenance of the Equipment or Lessee's ability to obtain the maintenance
contract required in subparagraph (a) above. Upon the termination of Lessee's
right to possession of the Equipment, any alterations or attachments to such
Equipment shall become the property of Lessor unless removed at Lessee's expense
prior to such termination. Lessor shall have the right, following termination of
Lessee's right to possession of the Equipment, to remove any attachments or
alterations made by Lessee to such Equipment and dispose of the same without any
liability therefor to Lessee and Lessee shall pay the costs of such removal
when billed.
(c) INSPECTION: Lessee shall make the Equipment available to Lessor and
Assignee (hereinafter defined) or the designees of any of them during normal
working hours for inspection or for any other reasonable purpose.
7. INSURANCE.
During the term of this Master Lease Agreement, Lessee, at its expense,
shall insure the Equipment against theft and all risks of loss or damage in an
amount not less than the "Stipulated Loss Value" (hereinafter defined in the
Equipment Schedule or Amendments thereto) and shall maintain a loss payable
endorsement in favor of Lessor and its assigns. Lessee shall also maintain
comprehensive general liability insurance, both personal injury and property
damage, naming Lessor and its assigns as additional insured. All insurance shall
be in form and amount and with a company satisfactory to Lessor and shall
contain the insurer's agreement to give thirty (30) days written notice to
Lessor and its assigns before cancellation of or material change to any policy
of insurance. Upon the request of Lessor, Lessee shall deliver to Lessor
certificates of insurance in compliance with the above, Lessee shall be liable
for all deductible portions of all required insurance. Insurance proceeds shall
be applied as set forth in Paragraph 8 hereof.
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8. RISK OF LOSS OR DAMAGE.
Lessee hereby assumes the entire risk of damage to or loss of the Equipment
or any item thereof from any cause whatsoever, whether or not insured against,
from and after the date the Equipment is delivered to the Equipment Location
until return to Lessor. No damage to or loss of the Equipment shall alter or
relieve Lessee of any obligation under this Master Lease Agreement, which shall
continue in full force and effect. Lessee agrees to give Lessor prompt notice of
any damage to or loss of the Equipment. In the event of damage to or loss of the
Equipment or any item thereof, and irrespective of any payment from any
insurance coverage maintained by Lessee, but applying full credit therefor,
Lessee shall, at the option of Lessor (i) place the Equipment in good repair,
condition and working order, or (ii) replace the Equipment with identical
Equipment in good repair, condition and working order and transfer clear title
to such replacement Equipment to Lessor whereupon such replacement Equipment
shall be deemed the Equipment for all purposes hereof; or (iii) pay to Lessor,
on the next rent payment date an amount equal to all rent and other amounts, if
any, due at the time of such payment plus an amount equal to the remaining
rental payments payable hereunder for the remainder of the initial Lease Term,
or any renewal term then in effect, plus the amount due Lessor pursuant to
Paragraph 14 hereof. Upon Lessor's receipt of such payment, this Master Lease
Agreement shall terminate only with respect to such Equipment so paid for, and
Lessee shall become entitled thereto AS IS, WHERE IS without any warranty
whatsoever, express or implied.
9. ASSIGNMENT.
(a) ASSIGNMENT, SUBLEASE OR RELOCATION BY LESSEE: Upon at least thirty
(30) days prior written notice to Lessor, Lessee may assign or sublease
Equipment to any party, or relocate Equipment to any location, within any state
of the Continental United States, provided that Lessor or Assignee (hereinafter
defined) in such party's sole discretion, shall have approved such assignee,
sublease, or location and provided further that (i) all costs of any nature
whatsoever (including any additional impositions and any additional expenses of
insurance coverage) resulting from any relocation, assignment or sublease shall
be borne by Lessee; (ii) any assignment or sublease shall be made expressly
subject and subordinate to the terms of this Master Lease Agreement; and (iii)
Lessee shall assign its rights under such assignment or sublease to Lessor or
Assignee (hereinafter defined) as additional collateral and security for
Lessee's obligations hereunder. In the event of a relocation, assignment, or
sublease, Lessee and its assignee or its sublessee, shall cooperate with Lessor
in taking all reasonable measures to protect the title of Lessor or Assignee
(hereinafter defined) to and in the Equipment. No relocation, assignment, or
sublease shall relive Lessee of its primary obligations under the relevant
Equipment Schedule and this Master Lease Agreement.
(b) ASSIGNMENT BY LESSOR: Lessor shall have the right to sell or
otherwise dispose of any or all of the Equipment described on any Equipment
Schedule, subject to the prior right of Lessee in such Equipment, and to assign
its interest as Lessor under such Equipment Schedule or the Master Lease
Agreement to any assignee ("Assignee"). Lessee hereby consents to and shall
acknowledge such assignment or assignments as shall be designated by written
notice to Lessee by Lessor. Lessee further covenants and agrees that:
(1) Any such Assignee shall have and be entitled to exercise any and all
discretions, rights and powers of Lessor under the Equipment
Schedule in which it has an interest, provided that an Assignee
shall not be obligated to perform any of the obligations of Lessor;
(2) Lessee shall pay directly to the Assignee all rental payments and all
other sums due upon receipt of notice of any assignment and of
instructions to do so; and
(3) After an assignment to an Assignee, Lessee's obligations hereunder
including its obligation to pay the rental payments and any and all
other amounts payable under the Equipment Schedule by Lessee shall
remain absolute and unconditional and shall not be subject to any
abatement, reduction, recoupment, defense, off-set, or counterclaim
available to Lessee against Lessor for any reason whatsoever.
10. FINANCIAL INFORMATION.
Lessee covenants for the benefit of Lessor and any Assignee that when
requested from time to time by Lessor, Lessee will promptly deliver to Lessor
and any Assignee current financial statements and other reasonable business
information and cause to be delivered current financial information or statement
on any guarantor of Lessee's obligations hereunder.
11. EVENTS OF DEFAULT.
The occurrence of any of the following shall constitute an "Event of
Default" hereunder:
(a) Lessee fails to pay when due any installment of rent or other
payment required hereunder and such failure continues for fifteen
(15) days;
(b) Lessee fails to pay when due any other sums owing by Lessee to
Lessor, or to any other party, under any other agreement for
indebtedness or borrowed money.
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(c) Lessee fails to observe or perform any of the provisions required
to be observed or performed by Lessee hereunder or breaches any
representation or warranty contained herein or any other document
furnished Lessor in connection herewith, and such failure or breach
shall continue unremedied for a period of fifteen (15) days;
(d) Lessee ceases doing business as a going concern, makes an assignment
for the benefit of creditors, admits in writing its inability to pay
its debts as they come due, or consents to the appointment of a
trustee or receiver, or if either shall be appointed for it or for
all or a substantial part of its property; or
(e) Any petition or proceeding is filed by or against Lessee under any
federal or state bankruptcy or insolvency law or similar law
providing for the relief of debtors.
12. REMEDIES UPON DEFAULT.
(a) Upon the occurrence of an Event of Default and at any time
thereafter, Lessor may, in its sole discretion, do any one or more of the
following:
(1) By notice to Lessee terminate this Master Lease Agreement;
(2) Proceed by appropriate court action to enforce performance of the
items of this Master Lease Agreement and/or recover damages for the
breach thereof;
(3) Whether or not this Lease is terminated, take possession of the
Equipment wherever located, without demand, notice, liability, court
order or other process of law and for purposes thereof, Lessee
hereby authorizes Lessor or its agents to enter upon the premises
where such Equipment is located; or cause Lessee, and Lessee hereby
agrees, to return such Equipment to Lessor in accordance with
Paragraph 5 hereof; or
(4) By notice to Lessee declare as immediately due and payable and
recover from Lessee, as liquidated damages and not as a penalty; the
remaining rental payments payable hereunder for the remainder of the
Initial Lease Term, or any renewal term then in effect, together
with all sums then due and unpaid or recoverable hereunder.
(b) Upon return or repossession of the Equipment, Lessor shall use
reasonable efforts to sell, release or otherwise dispose of such Equipment, in
such manner and upon such terms as Lessor may determine in its sole discretion,
with or without notice to Lessee which Lessee hereby waives. Lessor shall be
entitled to the benefit of any available manufacturer warranties. Upon
disposition of the Equipment, Lessor shall credit the Net Proceeds (hereinafter
defined) to the liquidated damages paid or payable by Lessee. Proceeds upon the
sale of the Equipment shall be the sales price less an amount equal to the
remaining rental payments payable hereunder for the remainder of the Initial
Lease Term, or any renewal term then in effect. Proceeds upon a release of the
Equipment shall be all rents to be received for a term not to exceed the
remaining Initial Lease Term, or any renewal term then in effect, less an amount
equal to the remaining rental payments payable hereunder for the remainder of
the Initial Lease Term, or any renewal term then in effect. "Net Proceeds" shall
be the Proceeds of sale or re-lease less all costs and expenses incurred by
Lessor in recovery, storage and repair of the Equipment, and the disposition
thereof, or otherwise as a result of Lessee's default, including any court costs
and reasonable attorneys' fees. Lessee shall remain liable for the amount by
which all sums, including liquidated damages, due from Lessee exceed the Net
Proceeds. Net Proceeds in excess of all sums, including liquidated damages, due
from Lessee, shall be deemed the property of and shall be reclaimed by Lessor.
(c) No termination, repossession or other act by Lessor in the exercise
of its rights and remedies upon an Event of Default shall relieve Lessee from
any of its obligations hereunder. No remedy referred to in this paragraph is
intended to be exclusive, but each shall be cumulative and in addition to any
other remedy referred to above or otherwise available to Lessor at law or in
equity. Lessee shall in any event be liable to Lessor for all costs and
expenses, including court costs and reasonable attorneys' fees, incurred as a
result of Lessee's default or in the enforcement of Lessor's rights and remedies
hereunder. No express or implied waiver by Lessor of any default shall
constitute a waiver of any other default by Lessee, or waiver of any of Lessor's
rights.
13. INDEMNIFICATION.
Lessee shall and does hereby indemnify and hold Lessor and any Assignee,
harmless from and against any and all claims, costs, attorneys' fees, expenses,
damages and liabilities arising out of the manufacture, ownership, purchase,
selection, possession, leasing, operation, control, use, maintenance, delivery,
or return or other disposition of the Equipment, any claim for patent, trademark
or copyright infringement or any claim arising out of strict liability in tort.
This indemnity shall survive the expiration or other termination of this Master
Lease Agreement and any Equipment Schedules executed in connection herewith.
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14. TAX INDEMNIFICATION.
(a) This Master Lease Agreement is entered into on the basis that
Lessor shall be the owner of the Equipment for federal, state and local tax
purposes and entitled to such deductions, credits and other benefits
(hereinafter collectively referred to as "Tax Benefits") as are provided an
owner of property, including but not limited to:
(1) The maximum cost recovery deductions for the Equipment as
determined under Section 168 of the Internal Revenue Code of
1986, as amended (the "Code"); and
(2) Interest deductions in the full amount of any interest paid or
accrued with respect to any loan made to Lessor to finance the
purchase of the Equipment.
If, with respect to any item of Equipment, Lessor shall not have or shall lose
the right to claim all or any portion of the Tax Benefits or if all or any
portion of the Tax Benefits shall be disallowed or recaptured (hereinafter
referred to as "Tax Benefit Loss"), then subject to the exceptions set forth
below in Paragraph 14(c), Lessee shall, within thirty (30) days after written
notice from Lessor that a Tax Benefit Loss has occurred, pay to Lessor at
Lessor's option, either a lump-sum payment or an increase to the remaining
monthly payments due under this Master Lease Agreement in an amount which,
after taking into account the effects of interest, penalties and additional
taxes payable by Lessor as a result of the Tax Benefit Loss and the receipt of
payment hereunder will cause Lessor's net effective after-tax return over the
term of this Master Lease Agreement to equal the net effective after-tax return
which would have been available if Lessor had been entitled to the utilization
of all the Tax Benefits.
(b) For purposes hereof a Tax Benefit Loss shall occur upon the
earliest of (i) the happening of an event which causes such Tax Benefit Loss,
(ii) the payment by Lessor to the Internal Revenue Service or the applicable
revenue office of the tax increase (including any penalties and interest
thereon) resulting from such Tax Benefit Loss, or (iii) the adjustment of the
tax return of Lessor to reflect such Tax Benefit Loss.
(c) The foregoing notwithstanding, Lessor shall not be entitled to
a payment hereunder on account of any Tax Benefit Loss directly attributable to
any of the following: (i) any act on the part of Lessor which is the sole
cause of a Tax Benefit Loss; or (ii) the failure of Lessor to have sufficient
taxable income or tax liability to utilize such Tax Benefits.
(d) This section is expressly made for the benefit of, and shall be
enforceable by Lessor, any person, firm, corporation or other entity to which
Lessor transfers title to, or a portion of, the Equipment, and their successors
and assigns ("Owner"). For purposes hereof, the term "Owner" shall include an
affiliated group (within the meaning of the Code) of which it is a member for
any year in which a consolidated income tax return is filed for such affiliated
group. Lessee agrees to indemnify and hold any such Owner harmless from any Tax
Benefit Loss on the same terms and to the same extent as it would have
indemnified and held Lessor harmless as if said Owner were the Lessor hereunder.
All of Lessor's rights and privileges arising from the indemnities contained
herein shall survive the expiration or other termination of this Master Lease
Agreement.
15. WARRANTIES
(a) AFFIRMATIVE WARRANTY: Lessor represents and warrants that it
will have legal title to the Equipment leased hereunder and that during the
term of this Master Lease Agreement, if no Event of Default has occurred,
Lessee's quiet enjoyment and peaceable possession of the Equipment shall not be
interrupted by Lessor or anyone claiming through or under Lessor.
(b) DISCLAIMER OF WARRANTIES: LESSEE ACKNOWLEDGES THAT LESSEE MADE
THE SELECTION OF THE EQUIPMENT BASED ON ITS OWN JUDGMENT AND IS NOT RELYING ON
LESSOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY
PARTICULAR PURPOSE, LESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE AND DOES NOT
MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, DIRECTLY OR INDIRECTLY, INCLUDING,
WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND OF FITNESS, CAPACITY OR
DURABILITY FOR ANY PARTICULAR PURPOSE AND/OR WARRANTIES AS TO THE DESIGN OR
CONDITION OF THE EQUIPMENT AND THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF
THE EQUIPMENT. LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR
DAMAGE OF ANY KIND OR NATURE WHATSOEVER, INCLUDING ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, TO ANY EXTENT WHATSOEVER, RELATING TO OR ARISING OUT OF
THE SELECTION, QUALITY, CONDITION, MERCHANTABILITY, SUITABILITY, FITNESS,
OPERATION OR PERFORMANCE OF THE EQUIPMENT. NO DEFECT IN OR UNFITNESS OF THE
EQUIPMENT SHALL RELIEVE LESSEE OF ITS OBLIGATIONS UNDER THIS MASTER LEASE
AGREEMENT. Lessee agrees that Lessor assumes no liability for and makes no
representation as to the treatment by Lessee of this Master Lease Agreement,
the Equipment or the rent payments or other sums due hereunder for financial
statement or tax purposes.
(c) MANUFACTURER WARRANTIES: For the term of this Master Lease
Agreement, Lessor hereby assigns to Lessee and Lessee may have the benefit of
any and all manufacturer's warranties, service agreements and patent
indemnities, if any, with respect to the Equipment to the extent assignable by
Lessor, provided, however, that Lessee's sole remedy for the breach of any such
warranty, indemnification or service agreement shall be against the
manufacturer and not against Lessor or any Assignee, nor shall any such breach
have any effect whatsoever on the rights and obligations of either party with
respect to this Master Lease Agreement.
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16. NET LEASE.
Each Equipment Schedule constitutes a Net Lease. Lessee shall be solely
responsible for all costs and expenses of every nature arising out of
possession, use, and operation of the Equipment. Lessee's obligation to pay
rental and all other sums due hereunder shall be absolute and unconditional and
shall not be subject to any set-off, abatement, counterclaim, recoupment,
defense, or any other right that Lessee may have against Lessor. Except as
expressly provided for herein, neither this Master Lease Agreement, nor any
Equipment Schedule, shall terminate nor shall the obligations of Lessee be
affected by any reason of any defect in, damage to, or any loss or destruction
of the Equipment, from any cause whatsoever, or the interference with the use
thereof by any private person, corporation, or governmental authority or as a
result of any war, riot, insurrection or act of God. It is the express
intention of Lessor and Lessee that all rental payments by Lessee under each
Equipment Schedule shall be and continue to be payable in all events
throughout the terms thereof.
17. PERFORMANCE AND EXECUTION.
Lessee represents and warrants to Lessor both as of the date hereof and as
of the date of each Equipment Schedule (i) that the execution and performance
of this Master Lease Agreement and Equipment Schedule has been duly authorized
by Lessee and that upon execution by Lessee and Lessor this Master Lease
Agreement and each Equipment Schedule will constitute a valid obligation
binding upon, and enforceable against, Lessee in accordance with the terms of
the Master Lease Agreement and each Equipment Schedule; (ii) that neither the
execution of this Master Lease Agreement or any Equipment Schedule nor the due
performance thereof by Lessee, will result in any breach of, or constitute any
default under or violation of Lessee's articles of incorporation or similar
organizational documents, Lessee's by-laws or any agreement to which Lessee is
a party or by which any interest of Lessee may be affected; (iii) that Lessee
is in good standing in its state of incorporation or similar organization and
in the states where any of the Equipment is to be located; (iv) that the
persons executing this Master Lease Agreement and each Equipment Schedule on
behalf of Lessee have been duly authorized to do so; and (v) that any and all
financial statements and other information with respect to Lessee heretofore
furnished by Lessee to Lessor in connection with negotiations concerning one or
more Equipment Schedules were, when furnished, and remain at the time of
execution of any Equipment Schedule, true and without any misleading omissions,
excepting any changes which have been disclosed in a written notice to Lessor.
18. MISCELLANEOUS.
(a) TITLE: The Equipment is and at all times shall remain the
property of Lessor. Lessee shall have no right, title or interest in the
Equipment, except as set forth herein. This Master Lease Agreement is
intended to be a true lease and not a lease intended as security or lease in
the nature of a security interest. Lessee shall, at its expense, protect and
defend Lessor's title to the Equipment and the interest of any Assignee against
all persons claiming against or through Lessee. Lessee shall keep and maintain
the Equipment free and clear of all liens and encumbrances (other than those
placed on the same by Lessor and the liens for current taxes not yet payable).
At Lessor's request, Lessee shall xxxx, or affix plates to, each item of
Equipment to indicate Lessor's ownership thereof.
(b) FIXTURES: Lessee covenants and agrees that the Equipment is and
shall at all times remain personal property regardless of the manner in which it
may be installed. Lessee agrees that Lessee will not affix any of the
Equipment to any real property, if, as a result thereof, the Equipment will
become a fixture under applicable law.
(c) ENTIRE AGREEMENT: This Master Lease Agreement (together with all
schedules and attachments hereto) constitutes the entire agreement between
Lessor and Lessee and no provision hereof may be amended or modified except in
writing signed by Lessor and Lessee. No provision of this Master Lease
Agreement may be waived except in writing signed by the party from whom such
waiver is sought and any such waiver shall be effective only in the specific
instance and for the specific purpose given.
(d) NOTICES: All notices hereunder shall be in writing and shall be
delivered in person or sent by United States mail, to the address of the party
contained herein, and shall be deemed received five (5) days after deposit in
the United States Mail with postage prepaid. Either party may change its
address for notice purposes by notifying the other party in the manner
aforesaid of such change. Lessee shall also send copies of all notices sent to
Lessor and to Assignee (if any).
(e) SEVERABILITY: Any provision hereof prohibited by, or unlawful or
unenforceable under, any applicable law of any jurisdiction shall be
ineffective as to such jurisdiction without invalidating the remaining
provisions of this Master Lease Agreement; provided, however, that where the
provisions of any such applicable law may be waived, they are hereby waived by
Lessee and Lessor to the full extent permitted by law.
(f) GOVERNING LAW: This Master Lease Agreement and all Equipment
Schedules and any other instruments executed in connection herewith shall be
governed by, and construed and interpreted under, the laws of the state of
Missouri.
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(g) PERFORMANCE OF LESSEE'S OBLIGATIONS: If Lessee shall fail to make
any payment or perform any act required by this Master Lease Agreement or any
Equipment Schedule, Lessor may at Lessee's expense, but shall not be obligated
to, make such payment or perform such act without notice to or demand upon
Lessee without waiving or releasing any obligation or Event of Default. Lessee
shall, when billed, reimburse Lessor for any expense incurred hereunder by
Lessor in performing Lessee's obligations.
(h) OVERDUE PAYMENTS: Any rental due to Lessor under this Master Lease
Agreement, if not paid within fifteen (15) days of its due date, shall accrue
interest from the due date at the rate of eighteen percent (18%) per annum or
the maximum rate allowable by law, whichever is less. Any other amounts
payable to Lessor by Lessee under this Master Lease Agreement or any Equipment
Schedule are due and payable within fifteen (15) days after the billing date,
and if not paid on or before such due date, shall accrue interest from the due
date until paid at the rate of eighteen percent (18%) per annum or the maximum
rate allowable by law, whichever is less.
(i) SURVIVAL: All representations, warranties, indemnities, and
covenants contained in this Master Lease Agreement and in any Equipment
Schedule shall continue in full force and effect and shall survive
notwithstanding the full payment of all amounts due hereunder or the
termination of Lessee's right to possession of any Equipment.
(j) ADDITIONALLY REQUIRED DOCUMENTS: Lessee shall provide Lessor with
such documents as Lessor may reasonably request from time to time including,
but not limited to, resolutions, opinions of counsel, financial statements, UCC
Financing Statements or waiver or subordination documents.
(k) HEADINGS: Headings and captions are for convenience of reference
only and shall not be construed as part of this Master Lease Agreement.
(l) DELIVERY FOR EXAMINATION: Submission of the form of this Master
Lease Agreement for examination shall not bind Lessor in any manner and no
obligation shall arise until this instrument is signed by both Lessor and
Lessee.
(m) TERMS IN EQUIPMENT SCHEDULES: If the provisions of any Equipment
Schedule are inconsistent with the provisions of this Master Lease Agreement
then the provisions of such Equipment Schedule shall control.
(n) PURCHASE/LEASE BACK: In the event Lessor is purchasing any of the
Equipment from Lessee then Lessor's performance hereunder is conditioned on
Lessee's performance under any sales contract for such Equipment.
(o) AUTHORIZATION TO DATE, COMPLETE BLANKS, AND CORRECT ERRORS: Lessee
hereby irrevocably authorizes Lessor and Lessor's agents, representatives, and
employees to date, to complete any blank spaces contained in, and to correct
any errors appearing in, this Master Lease Agreement, any Equipment Schedule or
in any documents relating thereto.
(p) STATUTORY NOTICE: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(LESSEE) AND US (LESSOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
IN WITNESS WHEREOF, Lessor and Lessee have signed this Master Lease
Agreement as of the date set forth above.
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LESSOR: LESSEE:
SOUTHWEST BANK OF ST. XXXXX XXXXXXXX EQUIPMENT CO.
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BY:
/s/ Xxxxxxx XxXxxxxxxx, III /s/ Xxxxxxx Xxxxxxxxx
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PRINTED NAME AND TITLE: PRINTED NAME AND TITLE:
Xxxxxxx XxXxxxxxxx, III Xxxxxxx Xxxxxxxxx
Vice President Secretary
=============================================================================
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