EXHIBIT 10.23
MASTER RENTAL AGREEMENT
FOR BARE RENTAL EQUIPMENT
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THIS MASTER RENTAL AGREEMENT FOR BARE RENTAL EQUIPMENT (this
"Agreement") is made as of August 1, 1996, by and between XXXXXXX XXXXX SALES &
LEASING, L.P. ("Xxxxxxx") and XXXX OIL VIRGIN ISLANDS CORP. ("Lessee") for the
lease by Xxxxxxx to Lessee of certain machinery, equipment and other items on a
bare rental basis.
Section 1. RENTAL OF EQUIPMENT Xxxxxxx hereby leases to Lessee, and
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Lessee hereby leases and hires from Xxxxxxx, on a bare rental basis, the
machinery, equipment and other items (the "Core Equipment") described in the
attached Exhibit "A." Lessee stipulates that the "Insured Values" designated on
the attached Exhibit "A" shall constitute the fair and reasonable market value
and replacement value of the Core Equipment. Additionally, Lessee anticipates
that from time to time Lessee will lease and hire from Xxxxxxx certain
additional machinery, equipment and other items (the "Additional Equipment") on
a bare rental basis. Further, Lessee from time to time will lease certain spare
and/or replacement parts from Xxxxxxx. The Additional Equipment and the spare
and/or replacement parts will be described in Purchase Orders to be issued by
Lessee to Xxxxxxx after the effective date hereof, effective for such Additional
Equipment and the spare and/or replacement parts as of the date the Lessee's
Purchase Orders are accepted and executed in writing by Xxxxxxx. Lessee
stipulates that the "Insured Value" designated on any Purchase Order accepted
and executed in writing by Xxxxxxx shall constitute the fair and reasonable
market value and replacement value of the Additional Equipment. (A sample of a
Purchase Order form is attached hereto as Exhibit "B.") The Core Equipment,
Additional Equipment and the spare and/or replacement parts may be referred to
herein collectively as "the Equipment". LESSEE ACKNOWLEDGES THAT THE EQUIPMENT
IS PROVIDED BY XXXXXXX ON A BARE RENTAL BASIS ONLY. LESSEE IS RESPONSIBLE FOR
ENSURING COMPLIANCE BY IT AND ITS EMPLOYEES, AND OF THE EQUIPMENT ITSELF, WITH
ALL APPLICABLE LAWS, REGULATIONS AND ORDINANCES, INCLUDING, WITHOUT LIMITATION,
THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 ("OSHA") AND REGULATIONS
(PARTICULARLY 29 C.F.R. PART 1926, SUBPART N). Lessee agrees that Xxxxxxx shall
have no responsibility of any kind for Lessee's (or the Equipment's) compliance
with any such laws, regulations or ordinances during the periods when the
Equipment is in Lessee's possession. Lessee stipulates and agrees that during
the term of this Agreement that Lessee shall neither lease and/or rent any
cranes, as defined herein, from any third-party without first providing Xxxxxxx
reasonable opportunity to supply or provide the requested equipment.
Section 2. TERM OF AGREEMENT; TERM OF LEASES OF INDIVIDUAL PIECES OF
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EQUIPMENT The term of this Agreement for the Core Equipment shall be (5) years
commencing on August 1, 1996. The term(s) of the lease(s) of the Additional
Equipment to be leased by Xxxxxxx to Lessee hereunder shall commence on the
date(s) specified in the Lessee Purchase Orders for those pieces of Equipment.
Upon expiration of the term of a lease, the applicable Equipment shall be
returned to a location in the United States agreed to by Xxxxxxx and Lessee, in
the same condition as when delivered to Lessee, ordinary wear and tear from use
thereof excepted.
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Section 3. RENT The rental amount of the Core Equipment shall be as
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specified in Exhibit "A." The rental amount of any Additional Equipment shall be
as specified in Exhibit "A" for those types of machinery and equipment described
in Exhibit "A," otherwise, the rental amount of any Additional Equipment shall
be as stated on Lessee's Purchase Orders. Unless otherwise agreed by the
parties, rent shall begin at the time the Equipment is delivered by Xxxxxxx to
the F.O.B. Shipment Point referenced in Section 4 and shall continue until such
time as the Equipment is returned by Lessee in accordance with the provisions of
Section 4. Rental amounts are not subject to any deductions on account of any
non-working time of the Equipment. Lessee shall not be entitled to any abatement
of rent, reduction thereof or set-off, counterclaim, recoupment or defense
against rent for whatever reason. All rental invoice terms shall be net 30 days
from date of invoice.
At the beginning of each month, Xxxxxxx will provide an invoice to
Lessee of the Monthly Minimum Charges set forth in Section 3. By the 5th day
after the close of a month, Xxxxxxx will submit an invoice of the actual charges
for the month and will separately designate any additional charges owed to
Xxxxxxx above the Monthly Minimum Charges. The parties agree that Monthly
Minimum Charges are not in question and will be paid within fifteen (15)
calendar days after Lessee's receipt of the invoice notwithstanding any review
process or Lessee audit. Lessee will pay approved amounts of Anthony's invoice
for additional charges within fifteen (15) calendar days after Lessee's receipt.
If invoices are paid in full by Lessee by the 10th calendar day after receipt, a
1% discount will apply. If any portion of the additional charges is questioned
by Lessee, Lessee will pay the remaining portion.
Section 4. TRANSPORTATION CHARGES. The Equipment will be shipped or
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transported F.O.B. (Eastern Seaboard United States Shipment Point to be mutually
agreed by the parties). Xxxxxxx, at its own expense, shall load and transport
the Equipment to the designated F.O.B. (Eastern Seaboard United States Shipment
Point as noted herein) for delivery to Lessee. If Equipment is leased for less
than two years, return of the Equipment by the Lessee to the location in the
United States as agreed to by the parties is the responsibility of the Lessee.
Xxxxxxx will upon return of the Equipment, unload it and pay all demurrage
accruing at the receiving point. Lessee, at its own expense, shall do all other
loading, unloading, installation, dismantling and transportation of the
Equipment and shall pay all other freight, demurrage, storage, switching,
drayage, trucking or other transportation charges against the Equipment from the
time of shipment by Xxxxxxx to and including the time of the Equipment's return
to Xxxxxxx. If Equipment is leased for a period exceeding two years, all costs
associated with the return of Equipment is for Anthony's account.
Section 5. COMPLIANCE WITH LAWS AND TAXES. Lessee shall comply with
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and conform to all laws and regulations relating to the possession and use or
maintenance of the Equipment, including all OSHA laws and regulations, and shall
save Xxxxxxx harmless against actual or asserted violations thereof, and pay all
costs and expenses of every character, including reasonable attorneys' fees,
occasioned by or arising out of any use or loss of use of any of the Equipment.
Xxxxxxx shall include on its invoices as a separate line item, and Lessee shall
pay to Xxxxxxx, any xxxxx receipts tax occasioned by or arising out of any use
of the Equipment.
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Xxxxxxx shall comply with and conform to all laws and regulations
relating to the conduct of its business including without limitation, laws and
regulations of the Virgin Islands and the United States to the reporting of
income and the payment of taxes thereon.
Section 6. TITLE All Core Equipment and Additional Equipment shall
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remain personal property, and title thereto shall remain in Xxxxxxx or its
assignee exclusively, and nothing in this Agreement shall be deemed to have the
effect of conferring any right or title whatsoever in or to the Core Equipment
and Additional Equipment upon or to Lessee, other than as a lessee thereof.
Lessee shall keep the Core Equipment and Additional Equipment free from any and
all liens and claims, and shall do or permit no act or thing whereby Anthony's
title or rights in the Core Equipment and Additional Equipment may be encumbered
or impaired.
Section 7. EQUIPMENT CONDITION, INSPECTION, MAINTENANCE AND REPAIRS.
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Xxxxxxx shall indicate the general condition of the Equipment on Anthony's
delivery slip(s). (A sample of such slip is attached hereto as "Exhibit C". This
slip will also be used by Xxxxxxx to verify the general condition of the
equipment upon its return to Xxxxxxx at the expiration of the lease.) Lessee
shall inspect the Equipment and certify that it is in good working condition.
Arrival of the Equipment at point of destination and failure of Lessee to object
to the condition thereof prior to shipment shall constitute an acknowledgment by
Lessee that the Equipment has been inspected, accepted and determined to be in
good, safe and servicele condition and fit for intended use. If the Equipment
thereafter proves defective or unfit for use because of accident or otherwise,
Lessee's only remedy shall be to return the Equipment to Xxxxxxx and terminate
the lease for the Equipment. However, Lessee shall allow a reasonable time, not
to exceed seven (7) days, for the Equipment to be repaired by Xxxxxxx
International, L.P. and redelivered to Lessee. Should damage to the Equipment
not be repairable within the time specified, and the damage to the Equipment was
occasioned by the fault or neglect of Lessee, Lessee shall bear the cost of
transportation of the Equipment to a facility or location where proper repair
can be accomplished. Otherwise, Xxxxxxx shall be responsible for such costs.
The Core Equipment and Additional Equipment shall be operated only by
competent persons. In this regard, Lessee stipulates and agrees that all cranes
leased to Lessee shall be operated exclusively by operators employed by Xxxxxxx
International, L.P. "Cranes", as defined herein, includes carrier-mounted
lattice boom cranes, crawler-mounted lattice boom cranes, carrier-mounted
telescopic boom cranes, crawler-mounted telescopic boom cranes, rough terrain
cranes, heavy lift mobile cranes and industrial (cherrypicker, carry deck)
cranes. All other equipment and machinery not constituting cranes will be
operated by competent persons in the employ or under the control of Lessee.
Lessee, at its own expense, shall inspect, maintain, operate, use and
repair the Equipment. Therefore, Lessee must perform the following items at its
expense: 1) Inspect the Equipment prior to use and on a daily, monthly and
annual basis (where available), 2) Perform preventative maintenance on the
Equipment in accordance with the manufacture's recommendations; and 3) adjust
and/or repair the Equipment to ensure that the Equipment is in a safe working
condition and to comply with OSHA regulations. In an effort to facilitate
Lessee's compliance with certain of the
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foregoing duties and responsibilities, Lessee stipulates and agrees that, at
Lessee's expense, all machinery and equipment leased by Xxxxxxx to Lessee shall
be maintained, repaired, serviced, and inspected on a monthly (or other
periodic) and annual basis by Xxxxxxx International, L.P. who shall be engaged
by Lessee to perform such services. Lessee shall remain responsible for
conducting or performing daily inspections and preventative maintenance on all
machinery and equipment operated by its employees or individuals under Lessee's
control.
In this regard, Lessee should note the following matters:
OSHA OSHA regulations pertaining to Equipment require daily, monthly
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(or other periodic) and annual inspections. Except as otherwise provided herein,
Lessee is responsible for conducting these inspections and for otherwise
ensuring that the Equipment leased to it meets, and is operated in accordance
with, OSHA requirements. To assist Lessee in conforming with these requirements,
Xxxxxxx directs Lessee's attention to the following:
MAINTENANCE Maintenance must be conducted by Lessee as per the
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manufacturer's specifications found in the Operator's Manual.
RECORDKEEPING REQUIREMENTS Xxxxxxx has provided a log with certain of
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the Equipment to assist Lessee in complying with the following inspection
requirements. If Lessee does not locate a Log Book, it should contact and
request a replacement Log Book from the designated supervisory personnel of
Xxxxxxx located at Lessee's refinery site at St. Croix, Virgin Islands.
Instructions for completing the following reports are located on the back flap
on the Log Book.
DAILY INSPECTION REPORTS Bare rental customers are required to
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designate a competent person to inspect the Equipment on daily basis. It is
Lessee's responsibility to forward the white original report to Anthony's
office. The yellow copy should remain in the Log Book.
MONTHLY INSPECTION REPORTS Bare rental customers are required to
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designate a competent person to inspect the Equipment on a monthly basis. This
inspection should be performed on the first working day of each month. It is
Lessee's responsibility to forward the white original report to Anthony's office
along with the completed Daily Inspection Reports. The pink copy should remain
in the Log Book.
The yellow and pink copies of the foregoing inspection reports should
be available upon the request of an OSHA Compliance Officer; therefore,
following completion, the reports shall immediately be delivered to the Xxxxxxx
International, L.P. Dispatch Office located at Lessee's refinery site at St.
Croix, Virgin Islands.
ANNUAL INSPECTIONS Each crane's hoisting machinery must be thoroughly
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inspected by a competent person annually.
The following items are being furnished to Lessee to assist it with
OSHA compliance. If they
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are not returned, Lessee will be charged the amounts listed.
EQUIPMENT RETURNED WITHOUT LOG: $500.00 FEE
EQUIPMENT RETURNED WITHOUT OPERATOR'S
MANUAL: $500.00 FEE
EQUIPMENT RETURNED WITHOUT FIRE
EXTINGUISHER: $500.00 FEE
EQUIPMENT RETURNED WITHOUT LOAD CHART: $500.00 FEE
Lessee hereby agrees to conduct the required inspections and maintain
records to comply with all OSHA regulations.
Section 8. DAMAGE TO EQUIPMENT Lessee shall notify Xxxxxxx of any
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damage to the Equipment within two (2) working days from the date of the damage.
All repairs to the Equipment occasioned by damage only if caused by Lessee or
Lessee's Contractors (other than Xxxxxxx International, L.P.) during the term
hereof shall be at the expense of Lessee, except for damage resulting from any
latent defects in the Equipment, which shall be at the expense of Xxxxxxx. If,
upon Lessee's return of the Equipment, Xxxxxxx determines that the Equipment has
been subject to damage or excess wear and tear, Lessee agrees to pay Xxxxxxx
upon demand the amount necessary to restore the Equipment to the same condition
as when initially leased, ordinary wear and tear excepted. Should damage to the
Equipment not be repairable at the HOVIC facility, and the damage to the
Equipment was occasioned by the fault or neglect of Lessee, Lessee shall bear
the cost of transportation of the Equipment to a facility or location where
proper repair can be accomplished. Furthermore, all risk of loss or damage to
the Equipment during such transport, accidental or otherwise, shall be borne
exclusively by Lessee. Xxxxxxx and Lessee acknowledge and agree that the
replacement value of the Equipment set forth on "Exhibit C" shall be deemed the
value of the Equipment in order to establish the amount of the loss, damage or
injury thereto. In making such determination, however, it is understood that no
rental payments, paid or due, shall apply to the payment of such loss. The
rental period shall continue to run until all major repairs to the Equipment are
completed. Lessee, at its sole discretion, will have the option to pay Xxxxxxx
the fair market value of any Equipment in which the cost to repair the damaged
equipment exceeds the fair market value.
Section 9. LIABILITY; INDEMNIFICATION LESSEE SHALL INDEMNIFY, HOLD
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HARMLESS AND DEFEND XXXXXXX, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
PARTNERS, SUCCESSORS, ASSIGNS, EMPLOYEES, REPRESENTATIVES AND AGENTS FROM AND
AGAINST ANY AND ALL LIABILITY FOR ANY CLAIM, SUIT, JUDGMENT, DAMAGE, INJURY,
LOSS, COST, EXPENSE OR PENALTY OF ANY KIND OR NATURE WHATSOEVER, INCLUDING
ATTORNEYS' FEES (TOGETHER, "CLAIMS"), ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE EQUIPMENT INCLUDING WITHOUT LIMITATION, CLAIMS CONNECTED WITH
OR RESULTING FROM THE SELECTION, ACCEPTANCE, DELIVERY, MAINTENANCE, USE,
OPERATION AND/OR CONTROL OF THE EQUIPMENT BY LESSEE AND ITS EMPLOYEES, AGENTS
AND REPRESENTATIVES INCLUDING, BUT NOT
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LIMITED TO, ANY SUCH LIABILITY ARISING OUT OF LESSEE'S FAILURE TO COMPLY WITH
APPLICABLE LAWS, REGULATIONS AND ORDINANCES, TO THE EXTENT OF ANY NEGLIGENCE OF
LESSEE AS DETERMINED BY A COURT OF COMPETENT JURISDICTION, PROVIDED, HOWEVER,
THAT LESSEE SHALL HAVE NO OBLIGATION TO INDEMNIFY XXXXXXX FROM CLAIMS WHICH
RESULT SOLELY FROM LATENT DEFECTS IN THE EQUIPMENT OR ANY NEGLIGENCE OF XXXXXXX.
CONVERSELY, XXXXXXX SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND LESSEE, AND ITS
OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUCCESSORS, ASSIGNS, EMPLOYEES,
REPRESENTATIVES AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITY FOR ANY CLAIM,
SUIT, JUDGMENT, DAMAGE, INJURY, LOSS, COST, EXPENSE OR PENALTY OF ANY KIND OR
NATURE WHATSOEVER, INCLUDING ATTORNEYS' FEES (TOGETHER, "CLAIMS"), ARISING OUT
OF OR IN CONNECTION WITH ANY LATENT DEFECTS IN THE EQUIPMENT, TO THE EXTENT OF
ANY NEGLIGENCE OF XXXXXXX AS DETERMINED BY A COURT OF COMPETENT JURISDICTION,
PROVIDED, HOWEVER THAT XXXXXXX SHALL HAVE NO OBLIGATION TO INDEMNIFY LESSEE FROM
CLAIMS WHICH RESULT FROM ANY NEGLIGENCE OF LESSEE. IF XXXXXXX AND LESSEE ARE
ADJUDICATED NEGLIGENT WITH RESPECT TO ANY DAMAGE OR INJURIES SUSTAINED, THIS
CONTRACTUAL OBLIGATION OF INDEMNITY WILL CONTINUE BUT EACH OF XXXXXXX AND LESSEE
SHALL INDEMNIFY THE OTHER (THE INDEMNITEE) ONLY FOR AN AMOUNT EQUAL TO THE
AMOUNT OF THE JUDGMENT AWARDED AND/OR PAID BY THE INDEMNITEE TO THE CLAIMANT,
MULTIPLIED BY THE PERCENTAGE OF RESPONSIBILITY FOR CLAIMANT'S DAMAGES
ADJUDICATED TO BE CAUSED BY THE INDEMNITOR. XXXXXXX AND LESSEE WILL DO THIS
NOTWITHSTANDING THE VIRGIN ISLANDS COMPARATIVE NEGLIGENCE STATUTE, TITLE 5
V.I.C. SECTION 1451. IT IS EXPRESSLY AGREED THAT THE CONTRACTUAL OBLIGATIONS OF
INDEMNITY REFERRED TO HEREIN DO NOT EXTEND TO THE CONSEQUENCES OF EITHER PARTY'S
INTENTIONAL TORTS, OR TO PUNITIVE OR EXEMPLARY DAMAGES. EACH PARTY'S OBLIGATION
FOR CONTRACTUAL COMPARATIVE INDEMNITY AS PROVIDED FOR HEREIN SHALL SURVIVE
EXPIRATION OR TERMINATION OF THIS AGREEMENT.
Section 10. INSURANCE Lessee, at its expense, shall take out, carry
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and maintain the following insurance during the term of this Agreement:
(a) Commercial General Liability - Lessee shall self-insure
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the first $1,000,000/$2,000,000 annual aggregate, including contractual
liability, protecting the interests of both Xxxxxxx and Lessee against liability
for property damage and personal injury or death arising out of the maintenance,
repair, use and operation of the Equipment;
(b) Inland Marine All Risk Coverage - (Physical damage
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insurance), Lessee shall self-insure Anthony's Equipment for physical loss or
damage to that which would be recoverable under an ocean marine cargo policy
written as follows:
Subject to American Institute Cargo clauses (September 1,
1995) 32B-16
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clause No. 3 deleted and the following wording substituted: "Against all risks
of physical loss or damage from any external cause." "Including war, etc. risks,
and strikes, riots and civil commotion, risks all as per current American
Institute clauses".
Regarding the risk of physical loss or damage while cranes
and equipment are situated at the refinery; Lessee shall self-insure this risk
under the terms and conditions of a standard inland marine policy at full
replacement value providing the deletion of the overload or boom exclusion.
(c) Umbrella Liability - Lessee will provide limits of
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liability of $4,000,000 with a $4,000,000 annual aggregate.
All insurance required hereunder, except that which is self-insured by Lessee,
shall be maintained with responsible insurance companies of recognized standing
and shall provide a thirty (30) day prior written notice of cancellation to
Xxxxxxx. Lessee shall be responsible for payment of any deductibles. Lessee
shall furnish Certificate(s) of Insurance to Xxxxxxx evidencing such coverage
stated above and designating Xxxxxxx as an "Additional Assured" and provide for
a waiver of Underwriters' right of subrogation in favor of Xxxxxxx.
Section 11. DEFAULT; TERMINATION If, during the term of this
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Agreement, one or more of the following shall occur; (a) Lessee shall default in
the payment when due of any rent or other payment provided for herein; (b)
Lessee shall attempt to sell, transfer, encumber or sublet the Equipment without
prior written consent of Xxxxxxx; (c) Lessee fails to operate, maintain, repair
or inspect the Equipment as provided for herein; (d) Lessee shall default in the
observance or performance of any other covenant, condition or agreement; (e) a
proceeding shall have been instituted in a court of competent jurisdiction
seeking a decree or order (i) for relief in respect of Lessee in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of Lessee or of
its property, or (iii) for the winding up or liquidation of the affairs of
Lessee; and either (I) any such proceeding shall remain undiminished or unstayed
and in effect for a period of thirty (30) consecutive days or (II) such court
shall enter a decree or order granting the relief sought in such proceeding; (f)
Lessee shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to the
entry of an order for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of Lessee
or for any substantial part of its property, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action in furtherance of any of the
foregoing; and/or (g) Lessee, as determined solely by Xxxxxxx, shall become
financially insecure, then, in any such case, Xxxxxxx may declare this Agreement
in default. At any time after such declaration, Lessee hereby authorizes Xxxxxxx
to enter, with or without legal process, any premises where the Equipment is
located and to take possession thereof. Lessee shall provide Xxxxxxx with
unobstructed ingress and egress for such purpose. Furthermore, Lessee shall
immediately pay to Xxxxxxx all amounts then due hereunder and for all costs of
removal of the Equipment from the possession of Lessee. Lessee
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shall also pay Xxxxxxx all costs incurred by Xxxxxxx, including court costs and
attorneys' fees, in connection with any efforts to collect any unpaid amounts
due from Lessee. The remedies provided for herein in favor of Xxxxxxx shall not
be deemed exclusive, but shall be cumulative and shall be in addition to all
other remedies existing at law or in equity.
Lessee reserves the right to terminate this Agreement at any
time, conditioned on Lessee providing Xxxxxxx ninety (90) days notice of the
effective date of termination. During the interval between the date Xxxxxxx
receives notice of Lessee's intent to terminate this Agreement and the effective
date of termination, Xxxxxxx shall be guaranteed the minimum monthly rental as
specified in Section 3 of this Agreement.
Lessee's right to terminate this Agreement is further conditioned
on Lessee's payment of the following to Xxxxxxx:
(1) Three (3) months minimum monthly rental as specified in
Section 3 herein for all Xxxxxxx Equipment located at Lessee's
refinery at St. Croix, Virgin Islands. The three (3) months
minimum monthly equipment rental specified herein shall be
exclusive of and in addition to the guaranteed minimum monthly
rental accruing between Lessee's notice of intent to terminate
this Agreement and the effective date of termination. The three
(3) months minimum monthly rental specified herein shall be the
maximum guaranteed rentals to which Xxxxxxx shall be entitled
under this section. The three (3) months minimum monthly rental
period as specified herein shall commence following return to
Xxxxxxx of all Xxxxxxx Equipment located at Lessee's refinery at
St. Croix, Virgin Islands. Should for any reason Lessee impair,
impede or otherwise prevent Xxxxxxx from acquiring or obtaining
return of the Equipment following the effective date of
termination, the three (3) months minimum monthly rental period
specified herein shall not commence to run and shall be extended
for each day that Lessee impairs, impedes, or otherwise prevents
the return of the Equipment to Xxxxxxx, during which time rentals
will continue to accrue for the account of Lessee in accordance
with Section 3 herein. Should Lessee or other third party
purchase the Equipment or Xxxxxxx re-lease the Equipment,
Lessee's responsibility for payment of the three (3) months
minimum monthly rental specified herein will terminate on a
prorated basis as of the date of purchase or re-lease. For
purposes of non-breach termination, as provided in this Section,
Lessee shall additionally pay all shipment and transportation
costs accrued or associated with return of all Xxxxxxx Equipment
to an Eastern Seaboard United States Destination Point designated
by Xxxxxxx. Termination of this Agreement shall not be effective
until the Equipment has been shipped and delivered by Lessee to
the designated Eastern Seaboard United States Destination Point,
or
(2) the fair market value of all Xxxxxxx Equipment located at
Lessee's refinery at St. Croix, Virgin Islands. Lessee shall be
guaranteed the opportunity to exercise first option to purchase
the Equipment at fair market value prior to Anthony's
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removal of the Equipment from Lessee's St. Croix refinery.
Xxxxxxx stipulates and agrees that should any third-party offer
to purchase the Equipment from Xxxxxxx at a price which Xxxxxxx
determines to be commercially reasonable, that Xxxxxxx will
provide Lessee a reasonable opportunity, not to exceed 10
calendar days, to match said offer and purchase the Equipment for
the amount stated, which will be deemed to be the fair market
value. Should Xxxxxxx and Lessee be unable to agree as to the
fair market value of the Equipment, Xxxxxxx and Lessee shall each
appoint one (1) qualified heavy equipment surveyor and the
surveyors so appointed shall select a third (3rd) surveyor, who
jointly will determine the fair market value of the Equipment
which Xxxxxxx and Lessee hereby stipulate will be binding for
purposes of this Section. Title to Equipment sold by Xxxxxxx to
Lessee hereunder shall be free and clear of any and all liens,
mortgages, security interests or other encumbrances, the release,
payment and/or satisfaction of which shall be the responsibility
of Xxxxxxx.
Section 12. ASSIGNMENT OR SUBLEASE Lessee shall neither assign this
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Agreement nor sublease the Equipment without Anthony's prior written consent,
which consent shall not be unreasonably withheld.
Section 13. ANTHONY'S RIGHT TO EFFECT COMPLIANCE In case of failure
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of Lessee to comply with any provision of this Agreement including, but not
limited to, Lessee's failure to pay or satisfy any gross receipt taxes, liens,
insurance premiums or other charges, Xxxxxxx shall have the right, but shall not
be obligated, to effect such compliance in whole or in part, and all costs and
expenses shall be paid by Lessee upon demand by Xxxxxxx with interest thereon at
the highest lawful rate (unless otherwise mutually agreed in writing by the
parties) until all such amounts are paid in full. Anthony's effecting such
compliance shall not constitute a waiver of any default by Lessee hereunder.
Section 14. LIMITATION OF WARRANTIES AND REMEDIES Xxxxxxx will
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assign, transfer, or otherwise pass through to HOVIC any manufacturer's
warranties, which the manufacturer authorizes to be assigned and/or transferred,
while the Equipment is in the possession of HOVIC pursuant to the terms of this
Agreement. Otherwise, XXXXXXX HAS NOT MADE, AND DOES NOT HEREBY MAKE, NOR SHALL
IT BE DEEMED BY VIRTUE OF HAVING LEASED THE EQUIPMENT PURSUANT TO THIS AGREEMENT
TO HAVE MADE, ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO
THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN OR CONDITION OF,
OR AS TO THE QUALITY OF THE WORKMANSHIP IN, THE EQUIPMENT. LESSEE ACKNOWLEDGES
AND AGREES THAT XXXXXXX SHALL NOT BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT OR
CONSEQUENTIAL OR OTHER SIMILAR DAMAGES IN CONNECTION WITH ANTHONY'S PERFORMANCE
UNDER THIS AGREEMENT OR FROM THE SELECTION, USE OR OPERATION OF THE EQUIPMENT BY
LESSEE.
Section 15. TERMS AND CONDITIONS INAPPLICABLE Except as otherwise
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expressly stated herein, Lessee and Xxxxxxx acknowledge and agree that the terms
and conditions set forth on any (a) Lessee purchase order which is accepted and
executed by Xxxxxxx or (b) Xxxxxxx xxxxx form rental agreement or delivery slip
shall be of no force and effect with respect to the Equipment and the
transactions contemplated by this Agreement; provided, however, that Anthony's
short term rental agreements or delivery slips shall be used by the parties to
verify the amount of hours of use by Lessee of the Equipment.
Section 16. MISCELLANEOUS
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(a) Except as otherwise agreed herein, no obligation of
either party hereunder shall survive the term hereof. Any cancellation or
termination by the parties hereto pursuant to the provisions of this Agreement
shall not release the parties from any then outstanding obligations, of the
parties hereunder.
(b) This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
written and oral agreements.
(c) This Agreement may be modified, amended or mutually
rescinded only by a written instrument executed by each of the parties hereto.
(d) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and, subject to Section 12 hereof, their
respective successors and assigns.
(e) Either party's failure at any time to require strict
performance of any of the provisions of this Agreement shall not waive either
party's right to demand strict compliance therewith or with any other provision
hereof.
(f) Xxxxxxx and Lessee acknowledge that the transaction that
is the subject matter of this Contract bears a reasonable relation to the State
of Pennsylvania and agree that the law of Pennsylvania, without regard to any
conflict of law provisions, will govern their rights and duties.
WITNESS the due execution of this Master Rental Agreement for Bare
Rental Equipment, intending to be legally bound hereby, as of the date first set
forth above.
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Signed this 25th day of July, 1996
ATTEST: XXXXXXX XXXXX SALES & LEASING, L.P.
___________________________ By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: CEO
ATTEST: XXXX OIL VIRGIN ISLANDS, CORP.
___________________________ By: _______________________________
Name:
Title:
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