[LOGO]
CONTAINER LEASE PURCHASE AGREEMENT
BETWEEN
NPR, INC. dba NAVIERAS ("LESSEE")
AND
INTERPOOL LIMITED ("LESSOR")
This Agreement, dated June 5, 1996 between NPR, Inc. dba Navieras (Lessee),
whose principal place of business is located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000, and Interpool Limited, (Lessor), a corporation duly organized and
incorporated under the laws of Barbados, with an office located at 000 Xxxxxxx
Xxxx Xxxx, Xxxxxxxxx, XX 00000, shall be an addendum to the Interpool Membership
and Equipment Leasing Agreement between Lessor and Lessee dated April 1, 1996
("MELA"), the terms and conditions of which are incorporated by reference herein
and made a part hereof (said Membership Agreement, together with this Agreement,
hereinafter are referred to as the "Lease").
In the event of a conflict between the terms and conditions of this Agreement,
and those of the MELA, the terms and conditions of this Agreement shall prevail.
a/c 1160
1. QUANTITY AND TYPE:
Six hundred (600) new 45' steel hi cube dry van
containers, built in accordance with Lessee's
specifications. The equipment will be manufactured in
Lessee's colors, and will bear Lessee's prefixes and
numbers: XXXX 000000 - XXXX 000000. Lessee's logos may
be dispatched to the factory by Lessee, and, at Lessee's
costs, they will be affixed by the factory free of
charge. Domestication of the containers is included in
the rates quoted in Section 3 hereof.
2. TERM AND DURATION OF LEASE:
Each container leased hereunder shall remain on hire for
a minimum period of seven (7) years, which shall commence
on the date of delivery of the container to Lessee.
3. PER DIEM: $3.00 per container per day.
4. DELIVERY:
Production will commence approximately six weeks from the
date of signature of this agreement: 300 units in June
1996, and 300 units in July 1996. Delivery will be made
"free on truck" to Lessee's designated terminal in Hong
Kong.
5. PURCHASE OPTON:
Provided that Lessee is not in default hereunder, at the
conclusion of the seven (7) year minimum lease period,
Lessee shall have the option to purchase the containers
at a purchase price of $1.00 per container.
6. TRANSFER OF TITLE:
In the event that such option is exercised, it is
understood that
a) the Lessor shall pass a good and marketable title to
the Lessee for the containers so purchased, including
title to any containers that have suffered a loss or a
total constructive loss;
b) the Lessor warrants and represents that it has and
shall have the authority to transfer such title to the
Lessee free and clear of liens and encumbrances
arising through the Lessor;
c) all costs associated with the transfer of titles
(including U.C.C. releases) shall be for the account
of the Lessor.
7. PAYMENT:
During the build up period, payment will be due 30 days
from the date of Lessor's invoice. Following the
completion of the quantity per Section 1, Lessee shall
pay all rental charges monthly in advance against
Lessor's invoice.
In the event of late payment, an interest charge of 1.5%
per month will be applied to the amount of such late
payment, until such payment is made. In addition, a late
payment charge equal to 5% of the amount of such late
payment, or the legal maximum amount, whichever is less,
will be due.
8. TOTAL LOSS:
In the event that any container is damaged beyond repair, destroyed, or
lost, during the term of this Agreement, and notwithstanding any terms to
the contrary in the MELA, the Lessee shall have the option of either:
a} Continuing to pay rental charges on the container for the remaining
term of the lease, or
b) Payment at the time of the loss, the present value of the remaining
lease payments, plus the $1.00 purchase option price, discounted on an
annual basis, using an interest factor of ten percent.
In recognition of any losses covered by Section 8 (b), the minimum quantity
of containers that the Lessee is required to maintain on hire as per Section
1 shall be reduced accordingly.
9. FORCE MAJEURE:
Lessor shall not be liable to Lessee or any other person for any failure or
delay in the performance of any obligation due to events beyond its
reasonable control, including, but not limited to, fire, storm, flood,
earthquake, explosion, accidents, acts of the public enemy, sabotage, riots,
civil disorder, strikes, lockouts, labor disputes, labor shortage, work
stoppages, transportation embargoes or delays, failure or shortage of
materials, supplies, or shipment, failure of suppliers to deliver as
requested, failure of repair facilities to finish repairs, Acts of God, and
acts of regulations or priorities of any government or its branches or
agencies.
10. SECURITY INTEREST:
It is further acknowledged and agreed that this Container Lease Purchase
Agreement is a true lease, and that the relationship of the parties
hereunder is that of Lessor and Lessee. Accordingly, the Lessor shall at all
times remain the sole owner of the containers, and Lessee shall have no
ownership interest therein.
Notwithstanding the foregoing, Lessee hereby grants
Lessor, and Lessor hereby reserves to itself a security
interest in and to the containers leased hereunder (the
"Collateral") as security for the full and complete
performance of all of Lessee's obligations hereunder.
Lessor is hereby authorized to file a "precautionary"
UCC financing statement in New Jersey, and in such other
jurisdictions as it may deem advisable.
11. WARRANTY:
During the period of this Lease, so long as Lessee is not in default of its
obligations hereunder, Lessor hereby authorizes Lessee to exercise and
enforce all manufacturer and dealer warranties, whether express or implied,
on the Units for the Lessor's account. All claims or actions on any such
warranty shall be made or prosecuted by Lessee, at its sole expense, and
Lessor shall have no obligation whatsoever to make any claims or actions on
any such warranty. Provided that no event of default shall then exist
hereunder, any recovery under any such warranty shall be paid to Lessee to
the extent of the cost of any repairs effected and if such proceeds are not
applied to repairs by Lessee, then to Lessor less Lessee's expenses incurred
in obtaining such recovery.
The Units shall be covered by the following manufacturer and dealer
warranties:
a) The Units will be sound, free from defects in design, material and
workmanship and will be as described in and comply with all applicable
specifications. The manufacturer and/or dealer will replace or repair
any part or any workmanship of any Unit which shall be found to not be
in compliance with the above representation and warranty stated herein
during a one (1) year period after the date of acceptance of Lessee
under this Lease.
b) The paint or other coating materials and finish on the Units and on the
components thereof will be free from coating failures or other defects
which result in corrosion and paint failure or other coating materials
to the surface of the Units in accordance with all applicable
specifications (collectively called "Coating Failure"). The
manufacturer and/or dealer will replace or repair any Coating Failure
of any Unit during the five (5) year period after the date of
acceptance of Lessee under this Lease.
12. DOCUMENTATION:
This lease agreement may be executed in two counterparts, each of which so
executed shall be deemed to be an original, and such counterparts together
shall constitute but one and the same instrument. Notwithstanding the
foregoing, only the counterpart copy retained by the Lessor shall be deemed
to be "chattel paper" within the meaning of the Uniform Commercial Code.
The parties hereto agree that to the extent this agreement constitutes
"chattel paper" under the laws of the State of New York, then only that
counterpart of the agreement designated as "First Original" or that is
otherwise in the possession of the Lessor can transfer the Lessor's rights
in the agreement. All other counterparts of this agreement shall be
designated as "Second Original."
NPR, INC.
dba NAVIERAS INTERPOOL LIMITED
SIGNED /s/ E. G. Xxxxxxx SIGNED /s/ Xxxxx Xxxxxxx
--------------------------- ---------------------------
NAME E. G. Xxxxxxx NAME Xxxxx Xxxxxxx
--------------------------- ---------------------------
TITLE Exec. VP Operations TITLE Managing Director
--------------------------- ---------------------------
DATE June 14, 1996 DATE June 25, 1996
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[LOGO]
MEMBERSHIP
AND
EQUIPMENT
LEASING AGREEMENT
INTERPOOL
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
MELA
R-3/94 Phone (000) 000-0000 Fax (000) 000-0000
MEMBERSHIP AND EQUIPMENT
LEASE AGREEMENT
This lease agreement entered into April 1, 1996, between INTERPOOL
LIMITED ("Lessor"), a Barbados corporation whose principal place of business is
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 U.S.A., and NPR, Inc.
(hereinafter referred to as "Lessee"), a corporation organized under the laws of
Delaware whose principal place of business is at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000
WHEREAS, Lessor has established an international pool of containers,
chassis and other equipment for the carriage of cargo; and
WHEREAS, Lessee desires to lease equipment in said pool, and also
desires equipment to be available for such use:
W I T N E S S E T H
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, Lessor and Lessee agree as follows:
ARTICLE 1
Leasing
Subject to the terms and conditions hereinafter set forth, Lessor agrees
to lease to Lessee, and Lessee agrees to lease from Lessor such containers,
chassis or other equipment as may be listed or described in one or more addenda
hereto executed from time to time by Lessor or any division of Lessor and Lessee
(the "Units"). Such addenda may set forth any additional terms to which the
parties may agree including, without limitation, lease terms, rental rates,
pick-up and drop-off points and special conditions. This lease, together with
all such addenda and all extensions, renewals, amendments and modifications
hereinafter entered into between Lessor and Lessee are referred to collectively
hereinafter as the "Lease". All containers, chassis or other equipment of Lessor
that is picked up by or coming under the control of Lessee including all such
equipment listed in all communications of Lessor to Lessee or its agents shall
be subject to the terms and conditions of the Lease.
ARTICLE 2
Term, Rental
The term of lease for each Unit leased hereunder shall commence upon
date of delivery of such Unit to Lessee or its representative and shall continue
until the date set out in the applicable addendum. If the term is extended or
renewed, all provisions of this Lease shall apply during any extension or
renewal period.
Lessee shall pay all rental charges due under the Lease monthly in
advance unless otherwise agreed in writing and all other charges as same shall
become due hereunder. All payments hereunder shall be in currency of the United
States. The obligation to make rental or any other payments to Lessor shall not
be deemed waived, delayed, abated or eliminated for any reason, except for any
failure of Lessor to perform any obligation of Lessor to Lessee under this
Lease. No payment to be made by Lessee hereunder shall be subject to reduction,
limitation, impairment, set-off or counterclaim whether arising out of an
alleged breach by Lessor or any third party or otherwise, provided, however,
that this paragraph shall not be deemed a bar to Lessee's right to assert any
claims to which it may be entitled against Lessor, in a separate proceeding.
The rental period for each Unit shall commence on the date of delivery
of such Unit to Lessee or its representative, and shall end, at the expiration
of the day that the Unit is taken off hire pursuant to Article 9 hereof. If
redelivery of any Unit is impossible because of total loss or constructive total
loss, then the rental period for such Unit shall end Lessee tenders the
replacement cost of such Unit to Interpool pursuant to Lessee's obligation under
Article 9 hereof. Unless otherwise agreed, the minimum rental period for each
Unit shall be thirty (30) days.
Lessee shall pay interest for late payment of any sum due Lessor under
this Lease at the lesser of the highest legal rate or one-and-one-half percent
(1 1/2%) per month commencing on the tenth (10th) day after the day on which
Lessee receives Lessor's invoice for such sum.
-1-
ARTICLE 3
Disclaimer of Warranties
Each Unit subject to this Lease is leased AS IS, and Lessor warrants
only that Lessee so long as it is not in default hereunder shall have quiet
possession against any person claiming through Lessor. LESSOR EXPRESSLY
DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, OF QUALITY, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO ANY UNIT AND HAS
NOT MADE, AND SHALL NOT BE BOUND BY, ANY STATEMENT, AGREEMENT OR REPRESENTATION
NOT SPECIFICALLY SET OUT IN WRITING AND SIGNED BY LESSOR. LESSOR SHALL NOT BE
LIABLE FOR LOSS OF USE OF THE EQUIPMENT, LOSS OF TIME, INCONVENIENCE OR ANY
OTHER CONSEQUENTIAL DAMAGES.
ARTICLE 4
Ownership; Subleasing; Substitution; Encumbrances
This Lease shall not be deemed a sale or anything other than a true
lease for any purpose. Each Unit shall at all times remain the property of
Lessor, and Lessee shall acquire no ownership rights of any nature by virtue of
this Lease. Some of the Units leased to Lessee may be owned by a third party and
leased by it to Lessor. This Lease shall be subject and subordinate to any such
leases. In the event that such third party becomes entitled to possession of any
Unit, Lessee agrees, if requested by Lessor, to attorn to or enter into a new
lease with such third party, the terms and conditions of which will be
consistent with this agreement. The Units may be owned by a third party and
managed by Lessor under a management agreement that limits the term for which
the Units can be leased. In the event such third party becomes entitled to
possession of such Units, Lessee will return them to such third party upon
written request by Lessor and Lessor, at Lessee's request, will replace at
Lessor's expense, the Units returned with comparable Units. Lessor can
substitute other Units for some or all of the Units leased at any time providing
the substitute Units are of a similar type and in as good condition as the Units
leased. All costs connected with such substitution shall be borne by Lessor.
Lessee shall not sublet any Unit or assign this Lease or any rights
hereunder without the prior written consent of Lessor except as required through
the normal course of business. Lessee agrees to execute such documents as Lessor
shall deem necessary in order to perfect its security interest in such
assignment. Lessee shall not pledge, hypothecate, mortgage, create any security
interest in or otherwise encumber or permit the encumbrance of any Unit other
than any encumbrances that result from acts of lessor and any persons claiming
against or through Lessor. Lessee shall promptly at its own expense take all
actions necessary to discharge any lien, charge or other encumbrance asserted by
any party against any Unit arising after delivery of such Unit to Lessee.
Notwithstanding the foregoing, Lessee shall have the right to contest in good
faith by appropriate proceedings diligently pursued and available to Lessee, any
lien, charge or other encumbrances asserted by any party against any Unit. Each
Unit shall have Lessor's serial numbers and other identifying marks affixed
thereto, which shall not be obliterated, altered, concealed or otherwise changed
or hidden from view by Lessee so as to prevent or block access to such number or
marks.
ARTICLE 5
Delivery of Equipment and Interchange of Units
Lessor will use its best efforts to make the Units available for
delivery to Lessee on the dates specified in the Lease at the locations agreed
upon by Lessor and Lessee, but Lessor shall not be liable for any delays in
delivery beyond its reasonable control. The signature of Lessee or its
representative on an equipment interchange receipt shall constitute conclusive
evidence that the Unit to which same relates has been delivered to Lessee and
that Lessee has examined the Unit and found it to be free of all damage (except
as described otherwise in said receipt) and in good operating condition.
Notwithstanding any entry in such receipt, nothing shall affect Lessee's
obligation to pay the full rental charge or any other obligations under this
Lease.
If the manufacturer fails to make any Unit available for Lessee's
inspection in accordance with the terms and conditions of this Lease and any
addenda hereto, then Lessee may at its option reject such Unit, in which event
(a) the number of Units required to be leased shall be reduced by the number of
Units so rejected by Lessee, and the rent due shall be reduced accordingly, and
(b) Lessor shall refund to Lessee the Lease rental payments made hereunder with
respect to all such rejected Units, if any.
Subject to any provision in the Lease requiring Lessee to maintain
certain minimum numbers of Units or specific Units on lease for designated
periods of time, Lessee may interchange Units leased with no fixed term to
another ocean carrier provided that such interchange and carrier are approved in
advance by Lessor and Lessee obtains an interchange receipt signed by the new
carrier or its authorized agent acknowledging receipt of the Unit, noting any
damages to the Unit and acknowledging its responsibility for damages upon
redelivery to Lessor. An interchanged Unit shall not be deemed off-hired by
lessor unless such receipt is received by Interpool or its agent.
-2-
ARTICLE 6
Operation, Maintenance and Repairs
Lessee shall at all times maintain the Units, at its own cost and expense
in good and safe repair and operating condition in accordance with
manufacturer's specifications and the International Convention for Safe
Containers ("CSC"), International Institute of Container Lessors {"IICL")
guidelines and U.S. FHWA inspection standards, as applicable. Lessee shall be
responsible for all damages and changes in the condition of the Units, subject
to the provisions of Article 9 hereof relating to such normal wear and tear on
all Units and damage prior to delivery to Lessee noted on the on-hire equipment
interchange receipt. Lessee's maintenance and repair obligations shall include,
without limitation, washing and cleaning each Unit regularly inside and outside
to prevent corrosion and spot painting and replacement of parts as may be
necessary. Lessee shall comply with all loading limitations, handling procedures
and operating instructions to prevent excessive impact or unbalanced loading.
Lessee shall not use any Unit for storage or transportation of unsuitable
contents which may damage the Unit, including, without limitation, unprotected
corrosive substances, poorly secured materials or bulk commodities which may
corrode, oxidize, severely dent, puncture, contaminate, stain or damage the
Unit.
Lessee shall make no modifications, improvements, repairs or replacements,
nor attach accessories or additions to any Unit, without the prior written
consent of Lessor, (which shall not be reasonably refused) except as may be
necessary to comply with the provisions of this Lease. All improvements,
repairs, accessories and replacements made or attached to any Unit by Lessee
shall become part of the Unit and the Property of Lessor without Lessor
incurring any liability therefor, or at Lessor's option shall be removed and the
Unit shall be restored to its original condition at Lessee's expense. Lessee
shall not change or supplement any identification marks on any Unit except as
agreed upon in writing between Lessor and Lessee.
Lessee shall at all times comply with all conventions, laws, regulations or
orders of federal, state, foreign and local governments and agencies which in
any way affect any Unit or its use, operation or storage or which in any way
affect this Lease and shall be liable for all fines, penalties, fees and
interest thereon for failure to comply. Lessee shall comply in all respects with
the CSC and shall have and exercise such responsibility as would otherwise be
Lessor's as owner for maintenance, examination and repair. Lessee shall also
comply in all respects with all applicable customs conventions that provide
requirements relating to temporary admission, transport of goods under customs
seal, maintenance of records or otherwise. Lessee shall at its own expense
comply with all rules and practices of ports, depots, storage areas and
transportation companies consistent with the other requirements herein.
ARTICLE 7
Taxes and Other Expenses
Lessee shall be responsible for all applicable sales, use, excise,
property, stamp or other taxes, levies, import duties, charges or withholdings
of any nature (together with penalties, fines or interest thereon) imposed
against Lessor, Lessee or any Unit by any governmental or taxing authority if
such taxes or charges are based upon the possession or use of the units by
Lessee upon or with respect to any Unit, or upon the leasing, delivery,
possession, use, operation, redelivery or other disposition thereof, or upon the
rentals, receipts or earnings arising therefrom, excluding, however, (i) all
such taxes, levies, import duties, charges and withholdings that are imposed and
accrued with respect to a Unit prior to its delivery to Lessee and (ii) any
taxes levied on Lessor's revenue, income, capital or business franchise. Lessee
shall pay all other expenses relating to Units arising during the rental period
including but not limited to expenses incurred in ports, depots or storage
areas.
The above is subject to: (a) Lessor giving prompt notice to Lessee; and (b)
Lessee having the right to contest in good faith by Appropriate proceedings
diligently pursued and available to Lessee, any such tax or charge.
ARTICLE 8
Risk of Loss
Subject to the provisions of Section 9 of the Lease, Lessee shall be liable
for all loss and damage to each Unit subsequent to delivery to Lessee and prior
to return to Lessor, regardless of when such damage may be discovered. In the
event any Unit is damaged beyond repair, requisitioned by any governmental
entity, lost or destroyed (a "Casualty Occurrence"), the Lessee shall pay to the
Lessor the Depreciated Value for such Unit. The Depreciated Value shall be
calculated based on an attached schedule when equipment is leased out.
Depreciated Value shall be defined as the greater of the original cost of the
unit to the Lessor or the current cost of a new unit of equipment. Lessee shall
notify Lessor in writing immediately upon discovery of a Casualty Occurrence.
Lessee shall pay rental charges pursuant hereto until the date that full
settlement is made therefor. In the event that full settlement is not made
within 30 days after the return date specified in the Lease, Lessee shall be
liable for Lessor's standard daily rental charge for such Unit at the rate
prevailing on each day after expiration of the aforesaid 30 days. Full
settlement shall consist of proof of such loss satisfactory to Lessor and full
payment of the depreciated value of the Unit. In the event of a Casualty
Occurrence, Lessor may elect, but shall not be obligated to deliver another Unit
of like kind and condition as the Unit suffering the Casualty Occurrence to
Lessee in substitution therefor which shall become in all respects subject to
the terms hereof.
-3-
After compliance with the foregoing to Lessor's satisfaction, and
provided Lessee is not in default under this Lease, Lessee shall be subrogated
to Lessor's rights with respect to any insurance policies or claims for
reimbursement by others with respect to such loss, damage, theft or destruction.
ARTICLE 9
Redelivery of Units
Lessee shall redeliver each Unit, at Lessee's sole expense, to
redelivery locations specified in the applicable addendum, or in the absence
thereof to Interpool's authorized depot at any pool point listed in Lessor's
most recent "Bulletin" or at any other location agreed to in advance in writing
by Lessor. All redelivery points and dates specified in an addendum are subject
to drop-off charges set forth therein, or in the absence thereof, as listed in
the "Bulletin" in effect at the time of redelivery, or in the case of
redeliveries to other locations, as specified by Lessor.
Upon return of a Unit, the Lessor and Lessee may execute a joint
condition inspection report identifying and acknowledging any changes in the
condition of the Unit subsequent to delivery. Lessee at its expense will have
completed a cleanliness certificate issued by a recognized classification
society, if requested by Lessor. Lessee shall return all Units to Lessor free of
damage and in a condition evidencing the standard of maintenance, required in
paragraph 6 hereof, including, without limitation, compliance with all
applicable laws and regulations applicable to the use and operation of the Unit.
Notwithstanding the foregoing, Lessee shall not be responsible for (i) such
normal wear and tear defined below as may reasonably be expected between
delivery of the Unit and the date of its return or for (ii) such damage to the
Unit that occurred prior to delivery to or on behalf of Lessee provided that in
the event of a dispute, Lessee provides Lessor with a copy of the interchange
receipt executed at the time of delivery to Lessee evidencing such damage.
Normal wear and tear shall be determined in accordance with the current
guidelines published by the International Institute of Container Lessors,
International Convention for Safe Containers and U.S. FHWA (incorporated by
reference herein) and may include light oxidation or light rust, random small
dents and scratches on any side of a Unit caused by normal handling, ground
storage, ship storage and securing, transport and loading and discharge
consistent with good practice and in accordance with any specifications,
handling procedures and operating instructions as may have been given by Lessor
to Lessee. Notwithstanding the two preceding sentences, changes which could have
been prevented by routine washing, routine lubrication, spot painting, or other
normal repair or maintenance changes affecting security, water tightness,
weather proof qualities, mechanical and/or electrical function of integral
components, the integrity of design or structure, or by adherence to applicable
regulatory or classification society requirements, or changes affecting the
inside or outside dimensions or cubic content of a Unit, whether or not such
changes add thereto or subtract therefrom, or changes which may threaten the
safety of person or property, shall in no event constitute normal wear and tear,
and Lessee shall be liable therefor. Lessor shall have the right to inspect all
Units leased under this Lease at any reasonable time and at Lessor's sole cost,
and upon Lessor's request, Lessee shall furnish Lessor with a list of all
locations of Units, as of the most recent date possible and take all reasonable
steps to make the Units available for inspection. With regard to chassis and
trailer equipment, Lessee shall return such Units with a complete set of tires
with a minimum tread of 4/32", with air to 85 p.s.i. for 24 hours. There will be
no cuts to tire cord or flat spots with 4/32" from the surface. Minor oxidation
only shall be acceptable, notwithstanding the provisions of this Lease otherwise
exempting Lessee from liability for "normal wear and tear."
Units will be inspected at the expense of Lessee upon their return to
the agreed-upon depot. If a Unit is in the required condition, the Unit shall be
taken off-hire and the rental charge shall cease. If a Unit is returned to a
depot location authorized by Lessor in damaged condition, Lessor or such depot
will so advise Lessee upon discovery thereof. Lessor shall, in its sole
discretion, have the right to require Lessee to repair the Unit, to authorize
the repair of the Unit at Lessee's expense or to refrain from repairing the Unit
and invoice Lessee for the amount of damages for which it is liable hereunder.
In the event Lessor elects to authorize repairs, Lessee hereby authorizes
Lessor to proceed with the repairs for which Lessee is liable hereunder at
Lessee's expense at any repair facility of Lessor's choice. Lessee will execute
any further documents required to authorize the repair facility to proceed and
Lessee shall have the right to inspect any repairs so made. The Unit shall
remain on-hire and Lessee shall continue to pay the rental charge until the date
upon which Lessor and Lessee shall agree in writing upon the amount of the cost
of the repairs for which Lessee is liable, and, in the event Lessor in its
discretion elects to have such repairs performed, thereafter until the date (not
greater than 10 business days thereafter) specified in such writing for
completion of such repairs; provided, however, that in the event Lessee fails to
authorize repairs for which Lessor claims it is responsible within 10 days of
return of any Unit, Lessor, at its option, may either (i) promptly authorize
repairs to the Unit whereupon the Unit shall be off-hired and rental charges
shall cease upon approval of repair (not greater than 10 business days
thereafter) or (ii) continue to make the Unit available for joint inspection
with Lessee and to attempt to resolve damage disputes for a reasonable period of
time at the expiration of which the Unit shall be off-hired and rental charges
shall terminate. All handling expenses for the inspection and reinspection of
Units and storage charges from the date of redelivery to the date of off-hire
pursuant to the terms hereof shall be for the account of Lessee.
Lessee shall be liable to Lessor for the cost of repairing all damages
for which Lessee is liable under this Lease whether or not Lessor elects to have
such repairs made but in no event shall Lessee's liability for such damages
exceed the depreciated value for a new Unit.
-4-
In the event that without obtaining the prior written consent of
Lessor, Lessee shall fail to return any Unit for more than 120 days after the
return date specified in the Lease, Lessor, without prejudice to any other
rights hereunder may, in its sole discretion, elect to treat such Unit as lost,
and Lessee shall pay to Lessor the depreciated value of such Unit in accordance
with the provisions of the Lease. Lessee shall pay Lessor's standard rental
charge for such Unit at the rate prevailing on each day after expiration of the
aforesaid 120 days, until the date that payment of such depreciated value is
made. In the event that after payment of such depreciated value, Lessor shall
elect and obtain repossession, Lessor shall, after deducting Lessor's expenses,
return to Lessee such portion of such depreciated value as Lessor, in its sole
discretion, shall deem to be the depreciated value that remains of such Unit on
the date of repossession.
Should any Unit be redelivered to Lessor, or should Lessor repossess
any Unit, and there shall at the time of such redelivery or repossession be in,
upon or attached to such Unit any other things of value belonging to Lessee or
in the custody or control of Lessee, Lessor is hereby authorized to take
possession of such things of value and hold the same for Lessee either in
Lessor's possession, or, in the exercise of Lessor's sole discretion, in public
storage for the account of, and at the expense of, Lessee.
ARTICLE 10
Indemnity
Lessee shall defend, indemnify and hold Lessor, its agents and
employees harmless from all claims, causes of action, liability, damage or loss
(including, without limitation, expenses in connection with any claim or suit,
such as reasonable attorney's fees, court cost and other expenses) arising
directly or indirectly in any manner out of (a) any failure by Lessee to comply
with its obligations under this Lease or any attempt by any third party, whether
private or governmental, to impose upon Lessor liability for Lessee's acts or
omissions, (b) any claim, whether private or governmental, for personal injury
or death or for loss or damage to person, property, cargo or vessels or
otherwise arising out of or incident to the selection, possession, leasing,
operation, control, use, storage, loading, unloading, moving, maintenance,
delivery, or return of any Unit except if caused by the gross negligence or
willful misconduct of Lessor, and (c) any forfeiture, seizure or impounding of,
or charge or lien imposed or asserted against any Unit.
ARTICLE 11
Insurance
Lessee shall secure and maintain, at its own expense and with insurance
companies acceptable to Lessor, amounts of insurance and types of coverage as
shall be reasonably required from time to time by Lessor. Simultaneously with
the execution of this Lease, Lessee shall furnish Lessor with certificates of
insurance evidencing (a) all risk, loss and damage insurance (including
mysterious disappearance/unexplained loss and war risks and strikes, riots and
civil commotions risks) while on land, afloat or airborne, in transit or at rest
anywhere in the world, in an amount equal to the depreciated value of all Units
on lease to the Lessee, (b) comprehensive general liability insurance including
contractual liability and broad form property damage for limits of not less than
one million dollars ($1,000,000), combined single limit, and (c) automobile
liability and property damage for limits of not less than one million dollars
($1,000,000) combined single limit. All insurance coverages shall (a) name
Lessor as a joint assured, as its interest may appear, (b) include a loss
payable clause in favor of Lessor providing that upon Lessor's giving notice to
the insurer that Lessee is in default under the Lease, all claims are to be paid
to Lessor, and (c) include an undertaking from the insurer that, notwithstanding
the expiry or cancellation of such insurance, it shall, insofar as the interest
of Lessor is concerned, remain in full force and effect until after the expiry
of 30 days written notice of such expiry or cancellation from the insurer to
Lessor. If the Lessee shall default in the payment of any premium in respect of
any such insurance policies, the Lessor may, but shall not be obliged to, pay
such premium, and in such event, Lessee shall repay the amount thereof to the
Lessor on demand.
ARTICLE 12
Default
If any of the following events shall occur:
(a) Lessee shall fail to pay any sum to be paid hereunder within
fifteen days after the same shall become due; (b) Lessee shall fail to observe
or perform any other term or condition of this Lease or in any other lease or
other agreement between Lessor (or any division or subsidiary thereof) and
Lessee in the manner and at the time or times required herein and therein, and
any such failure remains unremedied for thirty days after written notice thereof
to Lessee by Lessor; (c) Lessee shall become unable to pay its debts generally
as they become due, or shall make a general assignment for the benefit of
creditors; or any proceedings shall be instituted by or against Lessee seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization or relief to
debtors, or seeking appointment of a receiver, trustee or equivalent official
for it or for any substantial part of its property or any involuntary
proceedings that remain undismissed after 90 days, or Lessee shall take any
corporate action authorizing any of the actions set forth above; (d) any
distress, execution or other legal process shall be levied upon any of the
Units; (e) following a material adverse
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change in Lessee's financial condition subsequent to the date hereof, either an
obligation of the Lessee in excess of $1,000,000 for the payment of borrowed
money, for the deferred purchase price of property or for the payment of rent
shall not be paid when due, the effect of which is to cause such obligation to
become due prior to its stated maturity or Lessee shall permit any judgment
against it in excess of $1,000,000 to remain unsatisfied for more than thirty
days, unless covered by insurance; (f) the seizure or nationalization of Lessee
or a material part of Lessee's assets by a government instrumentality; or (g) a
default by a guarantor shall occur under the terms of any guarantee agreement
between Lessor and any third party guaranteeing the obligations of Lessee
hereunder.
Then, in any such case, Lessor, at its option may:
(a) proceed by appropriate court action or actions either at law,
admiralty or in equity to enforce performance by Lessee of the terms of this
Lease and/or to recover from Lessee any and all damages or expenses, including
reasonable attorney's fees, and all costs which Lessor shall have sustained by
reason of Lessee's default or on account of Lessor's enforcement of its remedies
hereunder and/or
(b) by notice in writing to Lessee terminate Lessee's right to
possession of some or all of the Units under this Lease (the "date of
termination"), whereupon all rights of Lessee to or in the use of such Units
shall absolutely cease, but Lessee shall remain liable as herein provided.
Thereupon, Lessee shall notify Lessor immediately of the locations of all Units
and Lessor by itself or by its agents without further notice, may, but shall be
under no obligation to, retake the Units wherever found and irrespective of
whether Lessee, any sublessee or any other entity may be in possession of the
Units, all without prior demand and without legal process. For that purpose
Lessor or its agents may enter upon any premises where the Units may be and may
take possession thereof, without Lessor or its agents incurring any liability by
reason of such retaking absent Lessor's gross negligence or willful misconduct,
whether for the restoration of damage to property caused by such retaking or
otherwise and thenceforth hold, possess and enjoy the Units free from any right
of Lessee, or its successors or assigns, to hold, use or sell such Units for any
purpose whatsoever, as hereinafter provided. This paragraph shall serve as the
express authorization and instruction by Lessee to any depot or other custodian
of any Unit hereunder to release the Unit or Units to Lessor or any authorized
representative of Lessor, without further inquiry or liability to Lessee for
such release, upon delivery to such depot or custodian of a copy of this Lease
and a certification by Lessor (which may be made by telex) that Lessee is in
default under this Lease and that Lessor is entitled to possession of the
Unit(s). The rental charges specified in the Lease shall continue for a period
of ten days following notice of termination. Thereafter for each Unit that has
not been returned, the Lessee shall be liable for Lessor's then standard per
diem rental until the date each Unit is returned to Lessor in accordance with
the terms of this Lease. In addition to such rentals, Lessee shall also pay to
Lessor,
(1) any other actual damages which Lessor shall have sustained by
reason of the breach of any terms of this Lease, plus
(2) as damages for loss of a bargain and not as a penalty, an aggregate
sum, which on the date of termination represents either (i) the excess of (x)
the balance of total rental for such Unit for the entirety of the lease term, if
any, specified with respect thereto (discounted at a per annum discount rate of
8%) from the dates the rentals would have otherwise been paid to the date of
termination over (y) the present worth (discounted at 8%) on the date of
termination of the fair rental value of such Unit to Lessor for the same period,
or (ii) the amount of retroactive rental rate adjustment provided for in the
Lease, if any, with respect to an early termination, plus
(3) interest on the above sums at a rate equal to the maximum rate
enforceable in accordance with applicable law from the date of termination until
paid, plus
(4) reasonable provision for expenses (including reasonable attorney's
fees and costs) incurred by Lessor in taking possession of, relocating,
overhauling or repairing the Units after repossession thereof as determined by
Lessor to be required to place such Units in the location and in a condition
required under this Lease.
In addition to the above sums, Lessee shall also remain liable for the
depreciated value of each Unit not returned to Lessor within ten days from the
notice of termination. Lessee shall in turn be credited with the lesser of the
fair market value or the depreciated value of any Unit thereafter recovered,
less expenses, as determined by Lessor.
Lessor shall have the option, whether or not it shall then have
possession of a Unit, to conclusively establish the present worth of its fair
rental value for all purposes by (a) an appraisal by Lessor based upon then
current market conditions, costs of repair and relocation, (b) a bona fide lease
of the Units which may be made by Lessor free from any and all claims of Lessee,
or of any other party claiming by, through or under Lessee at law or in equity
or in admiralty, or (c) a written appraisal by an independent appraiser selected
by Lessor. Such appraisal shall also take into account current market conditions
and costs of repair and relocation.
Lessor or its agents may sell all or some of the Units at public or
private sale, with or without notice to Lessee, advertisement or publication, as
Lessor may determine, or otherwise may dispose of, hold, use, operate or lease
to others, all on such terms and conditions and at such place or places as
Lessor may determine and all free and clear of any rights of Lessee and of any
claim of Lessee in admiralty, in equity, at law or by statute, whether for loss
or damage or otherwise.
No right or remedy conferred upon or reserved to Lessor by this Lease
shall be exclusive of any other right or remedy available to Lessor. Lessee
hereby waives any mandatory requirement of law now or hereafter in effect, which
might limit or modify any of the remedies herein provided, to the extent that
such waiver is permitted by law. Lessor may, at its election, waive any default
and its consequences and rescind and annul any such notice of termination by
notice to
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Lessee in writing to that effect. Notwithstanding the provisions of this
Section, it is expressly understood and agreed by Lessee that time is of the
essence in this Lease and that no waiver, rescission or annulment shall extend
to or affect any other or subsequent default or impair any right or remedies of
Lessor consequent thereto.
In the event of the occurrence of a Lessee default hereunder, if Lessor
shall so elect by notice in writing to Lessee, Lessor may utilize such legal
and/or equitable remedies as may be available to it, including, without
limitation, replevin, injunction or any other provisional remedy designed to
obtain possession of or protect the Units or any items thereof. Lessee hereby
specifically waives, to the extent permitted by law, any hearing with respect to
any such provisional remedy.
ARTICLE 13
Jurisdiction
Institution of litigation by any party pursuant to any separate
arbitration agreement that may be entered into by the parties, shall not
prejudice or waive Lessor's right to any of Lessor's remedies otherwise
available, including, without limitation, termination, provisional remedies and
repossession without judicial process. This Lease shall be deemed to have been
made in New York regardless of the order in which the signature of the parties
be affixed hereto. Lessee hereby irrevocably submits itself to the personal
jurisdiction of the Supreme Court of the State of New York, New York County, of
the United States of America, and to the personal jurisdiction of the United
States District Courts for the Eastern and Southern Districts of New York (and
to the personal jurisdiction of the appropriate appeals courts therefrom), for
the purposes of any suit, action or other proceeding arising out of, or relating
to this Lease and agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court. Process against Lessee may be
served upon it by mailing a copy to Lessee (by registered or certified mail, if
practicable) postage prepaid, or by telex to Lessee at its principal place of
business indicated above or such other address as the Lessor shall have been
notified in writing by Lessee. Lessee also designates Corporation Service
Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, agent for the purpose
of accepting service of any process within the State of New York, USA with
respect to any claim or controversy arising out of relating to, directly or
indirectly, this Lease. After such agent has accepted such service or process
such agent shall send Lessee written notice of such service and a copy of such
process by certified or registered mail, return receipt requested. Service may
be effected at Lessor's option either by the mailing referred to above or by
service upon Corporation Service Company, as agent.
Lessee agrees that its submission to jurisdiction set forth above is
made for the express benefit of Lessor. Lessee further agrees that final
judgment against Lessee in any such action or proceeding shall be conclusive,
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law, a certified or true copy of which judgment shall
be conclusive evidence of fact and the amount of any indebtedness or liability
of Lessee therein described; provided that nothing herein shall affect the right
of Lessee to serve legal process in any other manner permitted by law or affect
the right of the Lessor to bring any action or proceeding against Lessee or its
property in the courts of any other jurisdiction. Lessee shall pay all costs,
including reasonable attorney's fees, incurred by Lessor in enforcing this
Lease. No right or remedy herein granted shall be deemed in lieu of any legal or
equitable remedy otherwise available.
ARTICLE 14
Immunity from Jurisdiction
To the extent Lessee has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process, Lessee hereby waives such
immunity and agrees not to assert, by way of motion, as a defense, or otherwise,
in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of the above-named courts, that it is immune from any legal
process (whether through service or notice, attachment or arrest prior to
judgment, attachment in aid of execution, execution or otherwise) with respect
to itself or its property, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper, or that this Lease may not be enforced in or by such courts.
ARTICLE 15
Lessor's Liability
Lessor shall not be liable to Lessee or any other person for any
failure or delay in the performance of any obligation due to events beyond its
reasonable control, including, but not limited to, fire, storm, flood,
earthquake, explosion, accidents, acts of the public enemy, sabotage, riots,
civil disorder, strikes, lockouts, labor disputes, labor shortage, work
stoppages, transportation embargoes or delays, failure or shortage of materials,
supplies or equipment, failure of suppliers to deliver as requested, failure of
repair facilities to finish repairs, acts of God, and acts or regulations or
priorities of any government or its branches or agencies. Under no circumstances
shall Lessor be liable and Lessee hereby waives any claim against Lessor for any
lost profits or for special, consequential or exemplary damages, including,
without limitation, damages to cargo, even if Lessor has been advised of the
possibility of such damage.
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ARTICLE 16
Financial Statements
Within sixty (60) days after the close of each of the first three
quarters of Lessee's fiscal year, Lessee shall deliver to Lessor a copy of
Lessee's and any guarantor's balance sheet, statement of profit and loss and
statement of changes in financial position for such quarter. Within 90 days
after the close of Lessee's fiscal year, Lessee shall deliver to Lessor an
audited balance sheet, statement of income and retained earnings, and statement
of changes in financial position of Lessee and any guarantor as of the close of
such fiscal year.
ARTICLE 17
General
This Lease is binding upon the parties and their respective successors
and assigns. All matters relating to the construction, validity or
enforceability of this Lease shall in all respects be governed by and construed
in accordance with laws of the State of New York. This Lease contains the entire
agreement between the parties with respect to the subject matter hereof and may
not, subject to the provisions of Article 1 of this Lease, be amended, altered,
modified or added to except by a writing signed by the party to be bound
thereby. Lessor may assign all or any part of its obligations, rights, title or
interest in this Lease, including all rental charges due or to become due,
provided, however, such assignment shall not affect Lessor's obligation to
provide Lessee quiet possession and enjoyment of the units as provided in
Article 3 hereof. Lessee hereby expressly consents to the application by Lessor
of any payment credit to which it may be entitled hereunder (and any other funds
belonging to or payable to Lessee in the custody of Lessor) toward payment
obligations of Lessee hereunder or under any other agreement between Lessor and
Lessee. The paragraph headings in these conditions are for convenience only and
shall not be deemed to alter or affect any provision hereof.
Any notice required to be given under this Lease shall be effective upon
dispatch to the party to whom such notice is directed at the address first above
written, or at such other address as may have been communicated in writing
unless otherwise specified herein to the other party or parties to this Lease in
accordance with the provisions of this paragraph. All notices required to be
given in writing shall be given either by hand delivery, by mail or by telex.
Such mail shall in all cases be registered or certified mail. In the event that
any of the terms and conditions of this Lease are not completed by insertion of
the necessary words and/or figures, the parties agree to adopt Lessor's standard
terms and conditions for comparable equipment, prevailing on the date on which
Lessee executed the Lease, including, without limitation, rental charges,
penalties for improper return and replacement values. Where there are two or
more parties to the Lease as Lessee their liabilities under this Lease shall be
joint and several. The provisions of this Lease are separable and any provisions
found upon judicial interpretation or construction to be prohibited by law shall
be ineffective to the extent of such prohibition without invalidating the
remaining provisions hereof. No waiver of any remedy or other right under this
Lease shall operate as a waiver of any other remedy or right, nor shall any
single or partial exercise of any remedy or right preclude any other or further
exercise thereof or of any other remedy or right.
LESSEE: NPR, Inc. dba NAVIERAS LESSOR: INTERPOOL LTD.
(Type full name of Lessee)
BY: /s/ E. G. Xxxxxxx BY: /s/ Xxxxx Xxxxxxx
----------------------------- -----------------------------
E. G. Xxxxxxx Xxxxx Sellier
Exec. VP Operations Managing Director
----------------------------- -----------------------------
(Type name and title of (Type name and title of
signing officer) signing officer)
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