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EXHIBIT 10.58
EQUIPMENT LEASE
This Equipment Lease entered into as of July 15, 1995, by and between The Fifth
Third Leasing Company ("Lessor"), 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000, an Ohio corporation, and Prime Leasing Corporation ("Lessee"), XX Xxx
000000, Xxxxx, XX 00000, a Michigan Corporation.
TERMS AND CONDITIONS OF LEASE:
In consideration of the premises and of the rentals and the covenants
hereinafter mentioned to be kept and performed by Lessee, Lessor hereby leases
the equipment (including all replacement parts, repairs, additions and
accessories thereto) listed on Schedule A attached hereto on the date hereof or
as attached hereto at any time in the future or listed or described in any other
document which refers to and incorporates the terms of this Agreement
(collectively "Equipment"), upon the following terms and conditions:
Section 1. Acquisition and Lease of Equipment.
(a) Lessor will, subject to the terms of this Lease, purchase the
Equipment set forth in Schedule A and simultaneously lease such Equipment to
Lessee. The approximate purchase price for each unit of Equipment is as set
forth in Schedule A. Lessee shall provide a security deposit (the "Security
Deposit") in the amount, if any, specified in Schedule A to be paid to Lessor
prior to the commencement of the Lease. Lessee acknowledges either:
(i) that Lessee has approved any written Supply Contract (as defined
by the uniform version of the Uniform Commercial Code (UCC) Section 2A-103 (y)
as approved by the American Law Institute on the date of this Lease) covering
the Equipment purchased from the "Supplier" (as defined by UCC Section
2A-103(x)) thereof for lease to Lessee; or
(ii) that Lessor has informed or advised Lessee, in writing, either
previously or by this Lease of the following:
(1) the identity of the Supplier;
(2) that the Lessee may have rights under the Supply Contract;
and
(3) that the Lessee may contact the supplier for a description of
any such rights Lessee may have under the Supply Contract.
(b) Lessor hereby authorizes Lessee to accept delivery of the Equipment
from the manufacturer. Upon delivery and installation of each item of
Equipment, if such Equipment is in good working order, and complies with the
specifications of the purchase order, Lessee shall execute and deliver to Lessor
a Certificate of Acceptance in form acceptable to Lessor. Lessor shall be under
no obligation to purchase the Equipment until it has received the Acceptance
Certificate executed by Lessee.
(c) Lessor shall be under no obligation to purchase any item of Equipment
if there shall exist an Event of Default or any condition, event or act which
with notice or lapse of time or both would become an Event of Default, which has
not been remedied or waived.
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Section 2. Term and Rent.
(a) The term of this Lease shall begin on the Effective Date specified in
Schedule A and shall continue for the term specified in Schedule A unless
earlier terminated pursuant to the terms hereof. Notwithstanding the Effective
Date set forth above, the Effective Date will be extended until the date the
Equipment is delivered to Lessee's location specified above and accepted by
Lessee. The term of this Lease for all Equipment shall be automatically
extended for successive monthly periods until terminated by either party giving
to the other not less than ninety (90) days prior written notice of termination.
Any such termination shall be effective only on the last day of the term
specified in Schedule A or any successive period.
(b) As rent for the Equipment, Lessee agree to pay to Lessor the rent
specified in Schedule A. All payments provided for in this Lease shall be made
to the Lessor at the address of the Lessor set forth above, or at such other
place as the Lessor, or its assigns, shall specify in writing. The rent
specified in Schedule A shall be adjusted for any errors, increase or decrease
in the purchase price of the Equipment. The payment of the rent specified in
Schedule A also shall be secured by any presently existing or hereafter
acquired property pledged to Lessor or any affiliate of Fifth Third Bancorp for
any indebtedness of Lessee owed to Lessor and all affiliates of Fifth Third
Bancorp, whether direct or contingent, due or to become due; provided, however,
that this provision shall not apply to a "consumer credit transaction" as
defined in Title I, Consumer Credit Protection Act 15 U.S.C.A. Sections 1601
et. seq., as amended or any applicable state statute containing similar
provisions.
(c) This Lease is a net lease and Lessee acknowledges and agrees that
Lessee's obligation to make all payments hereunder, and the rights of Lessor in
and to all such payments, shall be absolute and unconditional and shall not be
subject to any abatement of rent or reduction thereof, including but not
limited to, abatements or reductions due to any present or future claims of
Lessee against Lessor, the manufacturer of the Equipment, or any party under
common ownership or affiliated with Lessor, by reason of any defect in the
Equipment, the condition, design, operation or fitness for use thereof, or by
reason of any failure of Lessor to perform any of its obligations hereunder,
or by reason of any other cause. It is the intention of the parties hereto
that the rent payable by Lessee hereunder shall continue to be payable in all
events and in the manner and at the times herein provided unless the obligation
to pay shall be terminated pursuant to the provisions of this Lease.
Section 3. Tax Indemnification.
(a) The terms of this Lease, including payment amounts, have been made in
reliance on the fact that Lessor, its successors and assigns, shall be entitled
to such deductions, credits and other benefits (the "Tax Benefits") as are
provided to an owner of property, to the extent permitted under applicable law
and provisions of the Internal Revenue Code of 1986 (the "Code"), including but
not limited to depreciation and amortization deductions allowable under
Sections 167, 168 and 169 of the Code and any amendments or additions thereto
relating to the leased property (the "Deductions").
(b) If the Lessor or its successor or assigns shall lose, during the term
of this Lease, its right to claim all or any part of such Tax Benefits or
Deductions or any part of such Tax Benefits or Deduction is disallowed, the
rental set forth in Schedule A shall be increased by an amount which, in the
reasonable opinion of Lessor, will cause Lessor's total net return (after all
taxes) to be equal to the net return which Lessor would have received had such
Tax Benefits or Deductions not been disallowed.
(c) In the event Lessor's claim of all or any part of such Tax Benefits or
Deductions with respect to the Equipment is disallowed or lost after the term
of the Lease, Lessee shall pay Lessor a lump sum which, in the reasonable
opinion of Lessor will cause Lessor's total net return (after all taxes) to be
equal to the net return Lessor would have received had such Tax Benefits or
Deductions not been disallowed.
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(d) In the event that this Lease is, for any reason, canceled or prepaid
prior to the expiration of its term the Lessee agrees to pay to Lessor, in
addition to all other amounts payable under this Lease, a lump sum amount which,
in the reasonable opinion of Lessor, will cause Lessor's net return (when
combined with all other payments, hereunder but excluding any prepayment
penalties and after all taxes) to be equal to the net return Lessor would have
received had this Lease not been terminated prior to the expiration of its term.
(e) The rent shall not be so increased (or the lump sum payment shall not
be due) if and to the extent that the Lessor shall have lost the right to claim
such a Tax Benefit or Deduction as a direct result of any one of the following
events:
(i) a casualty occurrence with respect to the Equipment if Lessee
shall have paid the Lessor pursuant to the provisions of Section 13 hereof;
(ii) the failure of Lessor to claim the Tax Benefit or Deduction on
its income tax return for the appropriate year; or
(iii) the failure of Lessor to have sufficient tax liability to fully
use such Tax Benefits or Deductions.
(f) Lessee agrees that neither it nor any corporation controlled by it, in
control of it, or under common control with it, directly or indirectly, will at
any time take any action or file any returns or other documents inconsistent
with the foregoing and that each of such corporations will file such returns,
take such action and execute such documents as may be reasonable and necessary
to facilitate accomplishment of the intent thereof. Lessee agrees to copy and
make available for inspection and copying by Lessor such records as will enable
Lessor to determine whether it is entitled to the benefit of any amortization or
depreciation deduction or tax credit which may be available from time to time
with respect to this Equipment.
(g) If, under any circumstances or for any reason whatsoever, except for
acts of the Lessor,
(i) Lessor shall become liable for additional tax as a result of
Lessee having added an attachment or made an alteration to the Equipment which
would increase the productivity or capability of the Equipment so as to violate
the provisions of Rev. Proc. 75-21, 1975-1 C.B. 715, as modified by Rev. Proc.
79-48, 1979-2 C.B. 529 (and as either or both may hereafter be modified or
superseded);
(ii) the statutory full-year marginal Federal tax rate for
corporations with a December 31 tax year-end is different than the statutory
tax rate in effect on the date of this Lease; or
(iii) Lessor shall not have or shall lose the right to claim, or
there shall be disallowed or recaptured all or any portion of the Federal tax
depreciation deductions with respect to any item of Equipment based on
depreciation of the Lessor's full cost of such item of Equipment and computed on
the basis of a method of depreciation provided by the Code as Lessor in its
complete discretion may select; then Lessee agrees to pay Lessor upon demand an
amount which, after deduction of all taxes required to be paid by Lessor in
respect of the receipt thereof under the laws of any federal, state or local
government or taxing authority of the United States or of any taxing authority
or government subsidiary of any foreign country, shall be equal to the sum of
(1) an amount equal to the additional income taxes which would
be paid or payable by Lessor in consequence of the failure to obtain the benefit
of a depreciation deduction calculated under the assumption that Lessor's income
is taxed at the highest applicable rate (without regard to the actual taxes paid
by Lessor), and
(2) any interest and/or penalty which may be assessed in
connection with any of the foregoing.
(h) The provisions of this Section 3 shall survive the expiration or
earlier termination of this Lease.
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Section 4. Acceptance, Use and Maintenance of Equipment.
(a) Lessor hereby authorizes Lessee to accept delivery of the Equipment
from the manufacturer. Upon delivery and installation of each item of
Equipment, if such Equipment is in good working order, Lessee shall execute and
deliver to Lessor a Certificate of Acceptance in a form acceptable to Lessor.
(b) Lessor shall have no obligation and assumes no liability for any
matter relating to the ordering, manufacture, shipment, installation, erection,
testing, adjusting or servicing of any item of Equipment, or for any failure or
delay in obtaining or delivering any item of Equipment. Lessee shall provide
and maintain a suitable installation environment for each item of Equipment with
all appropriate utilities, wiring and other facilities prescribed or recommended
by the appropriate manufacturer's installation and operating manuals.
(c) Lessee shall cause the Equipment to be operated by competent employees
and in accordance with the manufacturer's operating manuals and shall pay all
expenses of operating the Equipment. The Equipment shall be maintained at the
location(s) specified in Schedule A and shall not be removed from such
location(s) without the written consent of the Lessor. Lessor will have the
right, from time to time during reasonable business hours, to enter upon the
Lessee's premises or any other premises where the Equipment may be located, for
the purpose of confirming the existence, location, condition or proper
maintenance of the Equipment.
(d) Lessee, at its own cost and expense, shall keep all Equipment in good
repair, condition and working order and shall furnish all parts, mechanisms,
devices and servicing required therefor. All such parts, mechanisms, and
devices shall immediately become the property of Lessor and part of the
Equipment for all purposes.
(e) Lessee shall comply with and confirm to all laws, ordinances and
regulations, present or future, in any way relating to the possession, use or
maintenance of the Equipment throughout the term of this Lease.
(f) Lessee shall pay or satisfy and discharge any and all claims against,
through or under Lessee and its successors and assigns, which, if unpaid, might
constitute or become a lien or a charge upon any of the Equipment, and any
liens or charges which may be levied against or imposed upon the Equipment as a
result of the failure of Lessee to perform or observe any of its covenants or
agreements under this Lease and any other liens or charges which arise by
virtue of claims against, through or under any other party other than Lessor,
but Lessee shall not be required to pay or discharge any such claims so long as
it shall, in good faith and by appropriate legal proceedings contest the
validity thereof in any reasonable manner which will not, in the reasonable
opinion of Lessor, affect or endanger the interest of Lessor or other rights of
any assignee under this Lease hereof in and to the Equipment or diminish the
value thereof. Lessee's obligations under this Section shall survive the
termination of this Lease.
Section 5. No Agency. Lessee acknowledges and agrees that neither the
manufacturer, the supplier, nor any salesman, representative, or other agent of
the manufacturer or supplier, is an agent of Lessor. No salesman,
representative or agent of the manufacturer or supplier is authorized to waive
or alter any term or condition of this Lease and no representation as to the
Equipment or any other matter by the manufacturer or supplier shall in any way
affect Lessee's duty to pay rent and perform its obligations as set forth in
this Lease.
Section 6. Disclaimer of Warranties. LESSEE ACKNOWLEDGES THAT: LESSOR IS NOT
THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT NOR A DEALER
THEREIN; THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, DESCRIPTION AND
MANUFACTURE SELECTED BY LESSEE; LESSEE IS SATISFIED THAT THE EQUIPMENT IS
SUITABLE AND FIT FOR ITS PURPOSES; AND LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED AS TO THE DESIGN, OPERATION OR
CONDITION, OR AS TO THE QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN THE
EQUIPMENT LEASED HEREUNDER, AND LESSOR MAKES NO WARRANTY OF
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MERCHANTABILITY OR FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE OR ANY
OTHER REPRESENTATION OR WARRANTY WHATSOEVER, IT BEING AGREED THAT ALL SUCH RISKS
AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE AND THE BENEFITS OF ANY
AND ALL IMPLIED WARRANTIES OF LESSOR ARE HEREBY WAIVED BY LESSEE. LESSOR SHALL
NOT BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. Lessor agrees
that Lessee shall be entitled to the benefit of any manufacturer's warranties
on the Equipment to the extent permitted by applicable law.
Section 7. Identification; Personal Property. No right, title or interest in
the Equipment shall pass to Lessee other than the right to maintain possession
and use of the Equipment for the full Lease Term. Lessor may require plates or
markings to be conspicuously affixed to or placed on the Equipment indicating
Lessor is the owner. However, if any item of Equipment leased hereunder is to be
operated by the public, such plates or markings need not be placed in a
conspicuous part of the Equipment. The Equipment is, and shall at all times be
and remain, personal property even though the Equipment or any part thereof may
hereafter become affixed or attached to real property.
Section 8. Quiet Enjoyment. So long as Lessee is in compliance with the terms
of this Lease:
(a) Lessee's right of quiet enjoyment of the Equipment shall not be
impaired by the Lessor or anyone claiming through the Lessor; and
(b) Lessor shall not create any liens or encumbrances upon the
Equipment other than liens arising out of claims contested in good faith by
Lessor which will not in the reasonable opinion of Lessor affect or endanger
the interest of Lessee under this Lease.
Section 9. Assignment.
(a) LESSEE AGREES NOT TO SELL, ASSIGN, SUBLET, PLEDGE, HYPOTHECATE, OR
OTHERWISE ENCUMBER, SUFFER A LIEN UPON OR AGAINST ANY INTEREST IN THIS
AGREEMENT OR THE EQUIPMENT LEASED HEREUNDER.
(b) Lessor may assign, pledge, or in any other way transfer this Lease
either in whole or in part, without notice to Lessee. Should this Lease or any
interest therein be assigned or should the rentals hereunder be assigned, no
breach or default of this Lease by Lessor to its assignee shall excuse
performance by Lessee of any provision hereof. Upon receipt of notice of
assignment of this Lease or the rentals due hereunder, if so directed by
Lessor, Lessee shall pay the rentals hereunder as they become due to any
assignee without any set-offs, counterclaims or defense thereto.
Section 10. Fees - Taxes. Lessee agrees to pay and to indemnify and hold
Lessor harmless from all license and registration fee and all assessments, taxes
and impositions of whatever nature including income, franchise, sales, use,
property, excise and other taxes now or hereinafter imposed by any governmental
body or agency upon the Equipment, or the use thereof, including all interest
and penalties, but excluding any income taxes payable by Lessor on the receipt
of income under this Lease.
Section 11. Limitation of Liability; Indemnification.
(a) Lessee agrees that Lessor shall not be responsible for any loss or
damage to Lessee, its customers or anyone else, caused by any failure or defect
of the Equipment, or otherwise.
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(b) Lessee hereby assumes liability for, and hereby agrees to indemnify,
protect, save and keep harmless Lessor, its successors and assigns, from and
against any and all claims, liabilities, judgments, suits, obligations, losses,
damages, expenses, penalties, and disbursements (including reasonable attorneys'
fees and expenses) of any kind and nature arising from or pertaining to the use,
possession, operation, manufacture, purchase, financing, ownership, delivery,
rejection, nondelivery, transportation, storage maintenance, repair return or
other disposition of the Equipment including but not limited to liabilities
resulting from strict liability in tort or a breach of any law, regulation or
ordinance of any Federal, State or Local Government Agency.
Section 12. Return of Equipment. Upon the expiration of the term of this Lease,
unless the Equipment is sold to the Lessee, Lessee will at its own cost and
expense deliver possession of the Equipment to Lessor at a location designated
by the Lessor free and clear of all liens, charges, encumbrances, and rights of
others, in good working order and repair (except for ordinary wear and tear
resulting from proper use) and in the condition required hereby.
Section 13. Casualty Loss. Lessee hereby assumes and shall bear the risk of
loss, damage to or theft of the Equipment from any and every cause whatsoever,
whether or not insured. No loss or damage to the Equipment or any part thereof
shall impair any obligation of Lessee under this Lease which shall continue in
full force and effect. In the event that any item of Equipment shall become
damaged, worn out, destroyed, lost or stolen, or if any item of the Equipment is
requisitioned or taken by any governmental authority under the power of eminent
domain or otherwise, Lessee shall promptly notify Lessor thereof and at the
option of Lessor, Lessee shall:
(a) Place the same in good repair, condition and working order; or
(b) Replace the same with like property in good repair, condition and
working order which property shall be thereupon conveyed to Lessor free, clear
and unencumbered and thereupon be subject to this Lease; or
(c) On the Rental Payment date next following the date the Equipment
becomes damaged, worn out, destroyed, lost or stolen, pay Lessor in cash all of
the following:
(i) all amounts then owed by Lessee to Lessor under this Lease;
(ii) an amount equal to Two percent (2%) of the actual costs of said
Equipment; and
(iii) the unpaid balance of the total rent for the initial term of
this Lease attributable to such Equipment.
Upon Lessor's receipt of such payment, Lessee shall be entitled to whatever
interest Lessor may have in such Equipment, in its then condition and location
"AS IS" and "WHERE IS", without warranty express or implied.
Section 14. Insurance.
(a) Lessee at its expense will provide and maintain fire and extended
coverage insurance against loss, theft, damage or destruction of the Equipment
in an amount not less than 100% of the insurable value of the Equipment on a
replacement cost basis as determined by Lessor. Each policy will provide
expressly that such insurance, as to Lessor and its assigns, will not be
invalidated by any act, omission or neglect of Lessee and will provide expressly
for at least thirty (30) days prior written notice to Lessor of alteration or
cancellation. The proceeds of such insurance will be applied first to any unpaid
obligations of Lessee under this Lease arising prior to the receipt of the
proceeds and then toward the restoration or repair of the Equipment or if Lessor
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determines that any item of Equipment is lost, stolen, destroyed, or damaged
beyond repair toward payment of the amounts required by Section 13 above. Any
excess proceeds remaining thereafter will be paid to Lessee, provided Lessee is
not then in default under this Lease.
(b) Lessee at its expense will carry public liability, property damage and,
if required by Lessor, collision insurance with respect to the Equipment and the
use thereof in amounts satisfactory to Lessor. Each such policy of insurance
will name Lessor as an additional insured thereon.
(c) All policies relating to the insurance referred to in Subsections 14(a)
and (b) above, will be in such form and with such companies as are satisfactory
to Lessor and will name Lessor as an additional insured and as an additional
loss payee. Lessee will furnish Lessor proof of such insurance. Lessee hereby
appoints Lessor as Lessee's attorney-in-fact to make claim for, adjust, settle,
receive payment of and execute and endorse all documents, checks or drafts for
loss or damage under any such insurance policy.
(d) If Lessee fails to procure, maintain and pay for such fire and
extended coverage insurance or any such public liability, property damage or
collision insurance required by Lessor, Lessor will have the right, but not the
duty, to obtain such insurance on behalf of and at the expense of Lessee. In
the event Lessor does obtain and pay for such insurance, Lessee will reimburse
Lessor for the costs thereof no later than the date of the next scheduled
rental payment under this Lease.
Section 15. Right of Lessor to Perform. If the Lessee shall fail to comply with
any of its covenants herein contained, the Lessor (or, in the case of an
assignment by the Lessor pursuant to Section 9(b) hereof, as assignee), may,
but shall not be obligated to, make advances to perform the same and to take all
such action as may be necessary to obtain such performance. Any payment so made
by any such party and all costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred in connection therewith shall
be immediately due and payable by the Lessee to the party making the same, as
additional rent hereunder.
Section 16. Events of Default. Any of the following events shall constitute an
Event of Default:
(a) The nonpayment by Lessee for ten (10) days of any rent or other amount
provided for herein after the same is due and payable;
(b) The failure of Lessee to observe, keep or perform any other provisions
of this Lease required to be observed, kept or performed by Lessee, which
failure is not cured ten (10) days after notice thereof by Lessor;
(c) The failure of Lessee to make any payment when due, or to observe or
perform any covenant or agreement contained in, or the occurrence of a default
or Event of Default under any agreement evidencing, guarantying or securing any
other indebtedness or obligation of Lessee to Lessor, The Fifth Third Bank, or
any affiliate of Fifth Third Bancorp of any kind or nature;
(d) The making of any representation or warranty by Lessee herein or in
any agreement, document or certificate delivered to Lessor in connection
herewith, or any financial statement furnished by Lessee to Lessor which, at any
time, proves to be incorrect in any material respect;
(e) Lessee's making an assignment for the benefit of creditors or
committing any other affirmative act of insolvency or bankruptcy, filing a
petition in bankruptcy or for arrangement or reorganization or having such a
petition filed against it if such petition is not dismissed or withdrawn within
thirty (30) days;
(f) The attachment of a substantial part of the property of Lessee or
appointment of a receiver for Lessee or any substantial part of Lessee's
property;
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(g) Lessee ceases to do business as a going concern, or if there is a
change in the ownership of Lessee which changes the identity of any person or
persons having, directly or indirectly, more than 10% of either the legal or
beneficial ownership of Lessee;
(h) There shall occur, in Lessor's reasonable opinion, a deterioration in
the financial strength of the Lessee or any event occurs which might, in
Lessor's opinion, have an adverse effect on the Equipment or on Lessee's
financial condition, operations or prospects;
(i) Any guarantor of Lessee's obligations hereunder denies his or its
obligations to guarantee any obligations then existing or attempts to limit or
terminate his or its obligations to guaranty the Lessee's obligations hereunder.
Lessee also agrees, upon any responsible officer of Lessee becoming aware of
any condition which constituted or constitutes an Event of Default under this
Lease or which, after notice or lapse of time, or both, would constitute such an
Event of Default, to promptly furnish to Lessor written notice specifying such
condition and the nature and status thereof. For purposes of this Section, a
"responsible officer" shall mean, with respect to the subject matter of any
covenant, agreement or obligation of Lessee contained in this Lease, any
corporate officer of Lessee who, in the normal performance of his operational
responsibilities, would or should have knowledge of such matter and the
requirements of this Lease with respect thereto.
Section 17. Remedies. Upon the occurrence of any Event of Default, and so long
as the same shall be continuing, Lessor shall have the right to declare this
Lease in default without notice to Lessee. Such declaration shall apply to all
schedules then in effect hereunder. Upon the making of any such declaration,
Lessor shall have the right to exercise any one or more of the following
remedies:
(a) To take possession of any and all items of Equipment without further
demand or notice wherever they may be located without any court order or process
of law (but if Lessor applies for a court order or the issuance of legal
process, Lessee waives any prior notice of the making of this application or the
issuance of such order of legal process) and Lessee hereby waives any and all
damages occasioned by such taking of possession; any such taking of possession
shall not constitute termination of this Lease as to any or all of Equipment
unless Lessor expressly so notified Lessee in writing;
(b) To terminate this Lease as to any or all items of Equipment without
prejudice to Lessor's rights in respect to obligations then accrued and
remaining unsatisfied;
(c) To recover from Lessee (and Lessee agrees to pay in cash the
following):
(i) all amounts then owed by Lessee to Lessor under this Lease;
(ii) the unpaid balance of the total rent for the initial term of
this Lease attributable to said Equipment.
(iii) an amount equal to N/A (N/A%) of the actual cost of said
Equipment; and
(iv) an amount equal to 10% of the original cost of the Equipment as
liquidated damages and not as a penalty.
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(d) To sell any or all of the Equipment in public or private sale, in bulk
or in parcels, for cash or on credit without having the Equipment present at
the place of sale and to recover from Lessee all costs of taking possession,
storing, repairing, and selling the Equipment (and Lessor may use Lessee's
premises for any or all of the foregoing without liability for rent, costs, or
damages or otherwise) or to otherwise dispose, hold, use, operate, lease to
others or keep idle such Equipment all as Lessor in its sole discretion may
determine and to apply the proceeds of any such action:
(i) to all costs, charges and expenses incurred in taking, removing,
holding, operating, repairing, and selling, leasing or otherwise disposing of
the Equipment; then
(ii) to the amounts set forth in Section (c) (i), (ii), and (iii) and
(iv) above provided that Lessee shall pay any deficiency due Lessor; and
(iii) any surplus shall be retained by Lessor;
(e) To pursue any other remedy provided for by status or otherwise
available at law or in equity.
Notwithstanding any repossession, or other action which Lessor may take, the
Lessee shall be and remain liable for the full performance of all obligations on
the part of Lessee to be performed under this Lease to the extent not paid or
performed by Lessee. All such remedies are cumulative and may be exercised
concurrently or separately.
In addition to the foregoing, Lessee shall pay Lessor all costs and expenses,
including reasonable attorneys' fees and fees of collection agencies incurred
by Lessor in exercising any of its rights and remedies hereunder.
Section 18. Repayment of Other Amounts. In addition to any other right
granted to Lessor hereunder to terminate this Lease, Lessor shall have the
right to terminate this Lease and collect all amounts due hereunder (including
any lump sum or other tax payments provided in Section 3 hereof) if Lessee,
whether at the direction or request of the Lessor or any affiliate of Lessor,
The Fifth Third Bank, or The Fifth Third Bancorp, repays all or substantially
all other amounts and obligations owed by Lessee to the Lessor or any affiliate
of the Lessor, The Fifth Third Bank or The Fifth Third Bancorp.
Section 19. Further Assurances. Lessee will, upon request of Lessor, at
Lessee's sole cost and expense, do and perform any other act and will execute,
acknowledge, deliver, file, record and deposit (and will re-file, re-register,
re-record, and re-deposit whenever required) any and all further instruments
required by law or Lessor including, without limitation, financing statements
or other documents needed for the protection of Lessor's interest.
Section 20. Notices. Any notices and demands required to be given hereunder
shall be in writing and may be delivered personally or mailed by certified mail,
return receipt requested, to the respective addresses of the parties above set
forth, or to such other address as either party may hereinafter indicate by
written notice, as provided in this section.
Section 21. Financial Statements. Within sixty (60) days after the end of
each fiscal quarter and within ninety (90) days after the end of each fiscal
year of Lessee during the term of this Lease, Lessee shall deliver to Lessor
yearly Balance Sheets, Profit and Loss Statements and Source and Application of
Funds of Lessee certified by the independent public accountants of Lessee or if
unaudited, certified to be true and correct by the chief financial officer of
Lessee.
Section 22. Filings. Power of Attorney. Lessee will execute and deliver to
Lessor at Lessor's request all financing statements, continuation statements,
and other documents that Lessor may reasonably request, in form satisfactory to
Lessor, to perfect and maintain Lessor's interest in the Equipment and to fully
consummate all
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transactions contemplated under this Agreement. Lessee hereby irrevocably makes,
constitutes and appoints Lessor (or any of Lessor's officers, employees or
agents designated by Lessor) as Lessee's true and lawful attorney with power to
sign the name of Lessee on any such documents. This power, being coupled with
an interest, is irrevocable until all obligations of Lessee to Lessor have been
fully satisfied.
Section 23. Late Payments. Interest at the rate of 5% per month or the maximum
rate permitted by law, whichever is less, shall accrue on the amount of any
payment not made when due hereunder from the date thereof until payment is made,
and Lessee shall pay such interest to Lessor, on demand.
Section 24. Entire Agreement. THIS LEASE AND ASSOCIATED SCHEDULES CONSTITUTES
THE ENTIRE AGREEMENT BETWEEN LESSOR AND LESSEE AND EXCLUSIVELY AND COMPLETELY
STATES THE RIGHTS OF LESSOR AND LESSEE WITH RESPECT TO THE LEASING OF THE
EQUIPMENT AND SUPERSEDES ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, WITH RESPECT
THERETO AND ANY COURSE OF DEALING OF THE PARTIES HERETO.
Section 25. Finance Lease. The Lessor and Lessee hereby agree that this Lease is
a "finance lease" as that term is defined in Section 1310.01(A)(7) of the Ohio
Revised Code and that Lessor shall be treated as a finance lessor entitled to
the benefits and releases from liability accorded to a finance lessor under the
Uniform Commercial Code.
Section 26. Miscellaneous.
(a) This Lease shall inure to the benefit of and be binding upon the
successors and assigns of the respective parties hereto provided, however, that
nothing contained in this section shall impair any of the provisions prohibiting
assignment without the consent of Lessor;
(b) Any provision of this Lease which is unenforceable in any jurisdiction
shall not render unenforceable such provision in any other jurisdiction and
shall not invalidate the remaining provision of this Lease.
(c) This Lease shall be governed by and construed under the laws of Ohio
without regard to its conflicts of laws provisions.
(d) All covenants of Lessee herein shall survive the expiration or
termination of this Lease to the extent required for their full observance and
performance.
(e) No delay or omission to exercise any right, power or remedy accruing to
Lessor upon any breach or default of Lessee hereunder shall impair any such
right, power or remedy nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein or of any similar breach or
default thereafter occurring, nor shall any waiver of any single breach of
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of Lessor of any breach or default under this Lease must
be in writing specifically set forth.
(f) Lessee agrees that the state and federal courts in the county of
Lessor's principal place of business or any other court in which Lessor
initiates proceedings have exclusive jurisdiction over all matters arising out
of this Agreement and that service of process in any such proceeding shall be
effective if mailed to Lessee at its address described in the first paragraph of
this Lease. LESSOR AND LESSEE HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY
MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
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