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EXHIBIT 10.88
This Equipment Lease Agreement (hereinafter called
"Agreement") is made as of the 1st day of June, 1998 by and
between Xxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx (hereinafter
collectively called "Lessor") and Toledo Pickling and Steel
Sales, Inc., an Ohio corporation (hereinafter called "Lessee").
1. Prior Leases and Agreements. It is mutually agreed
between Lessor and Lessee that all prior agreements, if any,
concerning the leasing of equipment to Lessee by Lessor shall be
cancelled and of no effect, and neither Lessor nor Lessee shall
have any obligations regarding the lease of any equipment except
as provided herein.
2. Equipment Leased. Lessor hereby leases to
Lessee, and Lessee agrees to hire from Lessor, an Xxxx-Xxxx .25
inch maximum Xxxxx Xxxx, Xxxxxx Xx. 00000-00 (hereinafter
referred to as the `Equipment") for the term and consideration,
and subject to the conditions and provisions hereinafter set
forth.
3. Term. This Agreement shall be effective as of the 1st
day of June, 1998, and shall continue in full force and effect
through the 31st day of May, 1999, unless earlier terminated as
provided herein. Thereafter, this Lease shall continue from year
to year unless terminated by either party upon written notice
provided at least thirty (30) days prior to the end of the then
current term
4. Rent. Lessee shall pay Lessor as rent for the Equipment,
by the 1st day of each month during the term hereof, the sum of
Twenty-six Thousand Eight Hundred Dollars ($26,800.00) per month,
commencing on the 1st day of June, 1998, in advance and without
demand. Rental payments not made within five (5) days after the
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due date shall be subject to a late charge of one and one-half
percent (1-1/2%) of the amount of the payment, or such other
lesser sum as mandated by applicable law, for each month or part
thereof for which said payment is delinquent.
5. Use. Lessee shall use the Equipment in a careful and
proper manner and shall comply with an conform to all national,
state, municipal and other laws, ordinances and regulations in
any way relating to the possession, use or maintenance of the
Equipment.
6. Lessee's Inspection; Conclusive Presumptions. Lessee
shall inspect the Equipment within forty-eight (48) hours after
receipt thereof or the signing of this Agreement whichever is
later. Unless Lessee within said period of time gives written
notice of Lessor, specifying any defect or other proper objection
to the Equipment, Lessee agrees that it shall be conclusively
presumed, as between Lessor and Lessee, that Lessee has fully
inspected and acknowledged that the Equipment is in good
condition and repair and that Lessee is satisfied with and has
accepted the Equipment in such good condition and repair.
7. Lessor's Inspection. Lessor shall at any an all times
during business hours have the right to enter into and upon the
premises where the Equipment may be located for the purpose of
inspecting the same or observing its use. Lessee shall give
Lessor immediate notice of any attachment or other judicial
process affecting any item of the Equipment and shall, whenever
requested advise Lessor of the exact location of the Equipment.
8. Alterations. Without the prior written consent of Lessor,
Lessee shall not make any alterations, additions or improvements
to the Equipment. Any alterations, additions or improvements
which are permitted by the Lessor may, at Lessee's option, be
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removed by Lessee upon the expiration or earlier termination of
this Lease, but only if such removal may be accomplished without
damage to the Equipment and only if they will not result in the
reduction of the value of the Equipment below that which it would
have had in the event no such alterations, additions or
improvements have been made.
9. Taxes. Lessee shall pay and bear all federal, state and
local sales, use, exercise, personal property and other taxes and
all governmental assessments, fees and charges imposed on or in
connection with the Equipment or on the lease, use, ownership or
possession thereof pursuant to this Agreement. Lessee shall file
any necessary returns connected therewith and shall furnish
adequate proof of payment or Lessor. Should it be necessary for
Lessor to pay any such taxes, assessments, fees or charges,
Lessee shall reimburse Lessor therefor plus any charges for
delinquency.
Lessee shall keep the Equipment free and clear of
all levies, liens and encumbrances other than those being
contested in good faith which as a result of such contest do not
adversely threaten Lessor's title to the Equipment and shall pay
when due all license fees, registration fees, assessments,
charges and taxes (municipal, state and federal) which may now or
hereafter be imposed upon the ownership, leasing, renting, sale,
possession or use of the Equipment, excluding, however, all taxes
on or measured by Lessor's income.
10. Equipment Maintenance. Lessee agrees to maintain the
Equipment hereby leased at all times in good and safe operating
condition agreeing to pay all costs incurred in so maintaining
the Equipment. Lessor and Lessee hereby agrees to cooperate
fully to unsure that the maximum permissible amount of repairs
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and adjustments to the Equipment are covered by any warranties
provided by the manufacturer of the Equipment.
11. Equipment Operation. Lessee agrees to pay all
costs incurred in the operation of the Equipment, including but
not limited to, painting and cleaning, and to pay all taxes,
assessments or other charges associated therewith.
12. Risk of Loss; Damage: Personal Injury. Lessee
covenants that the Equipment will not be used or operated in
violation of any law, rule, regulation, statue or ordinance
promulgated by any public body, or in such a manner as would tend
to void any insurance covering the Equipment, and Lessee hereby
agrees to indemnify and hold Lessor harmless from and against any
and all fines, forfeitures, seizures or penalties arising out of
or relating to any of the foregoing. Lessee hereby assumes and
shall bear the entire risk of loss and damage to the Equipment
from any and every cause whatsoever. 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 of loss or damage of any kind whatsoever
to the Equipment, Lessee shall place the same in good repair,
condition and working order, or replace the same with like
equipment in good repair, condition and working order unless
otherwise agreed by Lessor and Lessee.
Lessor further agrees to indemnify and hold harmless
Lessor from and against any and all claims, damages and
liabilities for and/or resulting from any an all injuries to
persons, including death, and any damage to property of any third
person, arising out of the operation, maintenance or storage of
the Equipment.
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13. Insurance. Lessee shall insure the Equipment for
theft, casualty, property damage and public liability in the
amounts stated on Exhibit A attached hereto. All such policies
shall list Lessor as loss payee and shall provide for thirty (30)
days prior notice of cancellation or modification to Lessor.
Lessee shall pay any deductibles and any amounts not
covered by insurance payments.
Lessor, Lessee, their employees and/or their agents
shall comply with all terms and conditions of said insurance
policies. All claims are to be reported immediately to both the
Lessor and the insurance company under this provision and any
other provision of this Agreement.
14. Warranties. LESSOR MAKES NO WARRANTIES, EITHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
15. Return of Leases Equipment. Upon the expiration or
earlier termination of this Agreement, with respect to the
Equipment, Lessee shall return the same to Lessor in good repair,
condition and working order, ordinary wear and tear resulting
from proper use thereof alone expected, by delivering the
Equipment to such place as Lessor shall specify within the city
and county in which the same was delivered to Lessee or to which
the same was moved with the written consent of Lessor. This
paragraph shall not apply if Lessee has exercised his option to
purchase the Equipment, as described below.
16. Operator of Equipment. Lessee agrees that only
qualified personnel shall operate the Equipment.
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17. Payment by Lessor; Reimbursement. Lessee hereby
authorizes Lessor to take any action or pay any expenses and/or
charges which are the responsibility of the Lessee under this
Agreement. In the event Lessor takes any such actions or pays
any such charges and/or expenses the same shall be charged to
Lessee, and Lessee hereby agrees to reimburse Lessor for all of
its costs and expenses associated therewith, within seven (7)
days of the date lessor notifies Lessee of the amount due.
18. General Provisions.
(A) This Agreement is the entire Agreement between the
parties and nothing herein is to be construed as conveying to
Lessee any right, title or interest in or to the Equipment other
than a leasehold interest.
(B) This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and
assign of the parties hereto.
(C) Lessee shall promptly notify Lessor in writing prior to
any substantial changes in the Lessee's financial responsibility
or any change of address.
(D) Lessor may at any time without consent of Lessee assign
this Agreement and Lessee acknowledges his consent to such
assignment by execution hereof.
19. Concurrent Remedies. No right or remedy herein
conferred upon or reserved by Lessor is exclusive of any other
right or remedy herein or by law or equity provided or permitted;
but each shall be cumulative of every other right or remedy given
hereunder or now or hereafter existing at law or in equity or by
statue or otherwise, and may be enforced concurrently therewith
or from time to time.
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20. Lessor's Expenses. Lessee shall pay Lessor all
costs and expenses, including reasonable attorneys' fees,
incurred by Lessor in exercising any of its rights or remedies
hereunder to enforcing any of the terms, conditions or provisions
hereof.
21. Quiet Possession. Lessor covenants that it is
the lawful owner of the Equipment leased hereunder and that
conditioned upon the Lessee performing the conditions hereof,
Lessee shall peaceably and quietly hold, possess and use such
Equipment during the term of this Lease.
22. Interpretation of the Agreement. This Agreement
shall be interpreted under and governed by the laws of the State
of Ohio. Any provision hereof where the application of any
provision to any person or circumstances is held invalid or
unenforceable, the remainder hereof and the application of such
provision to other persons or circumstances shall remain valid
and enforceable.
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IN WITNESS WHEREOF, the parties have hereunto executed
this Agreement as of the day and year first above written.
WITNESS:
LESSOR:
/s/ Xxxxx XxxXxxxxxx By /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ X.X. Xxxxxx /s/ Xxxxx Xxxxxxxx
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LESSEE: Toledo Pickling and
Steel Sales, Inc.
/s/ Xxxxx XxxXxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Chairman
/s/ X.X. Xxxxxx
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