EXHIBIT 10.26
MASTER LEASE AGREEMENT
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LESSEE LESSOR
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DW LEASING COMPANY, LLC OLD NATIONAL BANK
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000 Xxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxxxx
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Xxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxx 00000
This Master Lease Agreement, made this 17th day of May, 2000 by and between OLD
NATIONAL BANK (the "Lessor") and DW LEASING COMPANY, LLC (the "Lessee").
1. LEASE AGREEMENT. Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, all the machinery, equipment and other personal property (individually
"Item of Equipment" and collectively "Equipment") described in Equipment Lease
Schedules which are or may from time to time hereafter be executed by Lessor and
Lessee and attached hereto or incorporated herein by reference ("Schedules")
upon the terms and conditions set forth in this Master Lease Agreement, as
supplemented, as regards each Item of Equipment, by the terms and conditions set
forth in the Schedule identifying that Item of Equipment. The invalidation,
fulfillment, waiver, termination, or other disposition of any rights or
obligations of either the Lessee or Lessor, or both of them, arising from the
execution of this Master Lease Agreement in conjunction with any one Schedule
shall not affect the status of the rights and/or obligations with either or both
of those parties arising from the execution of this Lease in conjunction with
any other Schedule, provided that the Lessee has not defaulted under the terms
and conditions of this Master Lease Agreement or any Schedule. In the event of
such default by Lessee, Lessor may declare this Master Lease Agreement and any
Schedule to be in default hereunder and the Lessor may proceed with its remedies
against the Lessee in accordance with Paragraph 28 herein, with respect to any
one Schedule or any of the Schedules or all Schedules. An executed counterpart
of this Master Lease Agreement (including any insurance Schedules, supplements,
amendments, addenda or riders thereto) or a photocopy thereof together with an
executed original of any numbered Schedule marked "Lessor," shall constitute a
separate and enforceable lease (herein, the "Lease"). All other executed
counterparts of such numbered Schedule shall be marked and considered a
"Duplicate." To the extent this Lease constitutes chattel paper, as that term is
defined in the Uniform Commercial Code under applicable law no security interest
in the Lease may be created through the transfer of possession of any
counterpart other than the Lessor copy of each numbered Schedule.
2. TERM. The obligations under this Lease commence upon the written acceptance
hereof by Lessor and shall end upon full performance and observance of each and
every term, condition, and covenant set forth in this Lease and any extensions
hereof. The rental term for Equipment listed in each Schedule shall commence on
the date indicated on such Schedule and shall terminate on the last day of the
term stated in such Schedule. Any interim rental shall also be set forth in any
such Schedule as appropriate. This Lease shall be effective and in full force
and effect for such period of time as any Schedule shall remain outstanding and
effective according to the terms forth in each Schedule. In the event of a lapse
of time when no Schedules are applicable or outstanding, this Lease shall again
become effective upon the execution of a new and effective Schedule without any
further execution of this instrument. The term of this Lease as set forth in
this paragraph and in the applicable Schedule(s) shall hereinafter be referred
to as the "Lease Term".
3. RENT. The rent including interim rental payments, for the Items of Equipment
described in each Schedule shall be the amount stated in such Schedule. Rent is
an absolute obligation of Lessee due upon the inception of each rental or
interim rental term and payable as specified in each particular Schedule
irrespective of any claims, demands, set-offs, actions, suits, or proceedings
that Lessee may have or asset against Lessor or any supplier of Equipment. Rent
and interim rent (collectively the "Rent" herein) shall be payable to Lessor at
its office, as set forth above, or at such other place as Lessor or its assigns
may designate in writing to Lessee from time to time. The term "Rent" shall
include any and all references to Rent, rental, rents, interim rent, and interim
rental in the Lease, any Schedules and attachments.
4. DELINQUENT RENT PENALTY. Each Rent installment or other amount due hereunder
not paid within ten (10) days of when due shall be payable with a service charge
and penalty equal to five percent (5%) of the Rent installment due but shall at
all times be no less than $25.00 per Schedule for each delinquent Rent
installment. Such delinquent Rent service charge and penalty shall be payable
upon demand and shall accrue at said rate whether or not judgment hereon has
been entered.
5. ADDITIONAL SCHEDULE FEE. For every additional Schedule of Leased Equipment
used in connection with this Lease, Lessee may be charged a Forty Dollar
($40.00) Additional Schedule Fee in addition to any other Rent, service charges
or other penalties.
6. DELIVERY AND INSTALLATION. Lessee will select the type, quantity, and
supplier of each Item of Equipment, and in reliance thereon, such Equipment will
then be ordered by Lessor from such supplier, or Lessor may at its option elect
to accept from Lessee an assignment of any existing purchase order. Lessor shall
not be liable for loss or damage occasioned by any cause, circumstance or event
of whatsoever nature, including but not limited to, failure of or delay in
delivery, delivery to wrong location, delivery of improper equipment or property
other am the Equipment, damage to the Equipment, governmental regulations,
strikes, embargoes or other causes, circumstances or events whether of a like or
unlike nature. Lessee, at its expense, will pay all transportation, packing,
installation, testing, and other incidental charges in connection with the
delivery, installation, and use of each Item of Equipment. In the event that the
cost of any Item of Equipment differs from the price set forth in the applicable
purchase order, the Rent shall be changed accordingly to fully reflect any such
difference.
7. WARRANTY OF LESSOR'S TITLE AND LESSEE'S QUIET POSSESSION. Lessor warrants and
covenants that so long as Lessee faithfully performs this Lease, Lessee, subject
to the disclaimer of warranties set forth immediately below, may quietly possess
and use the Equipment without interference by the Lessor, or by any other party
claiming by or through the Lessor.
8. DISCLAIMER OF WARRANTIES. THE LESSEE ACKNOWLEDGES AND AGREES THAT THE
EQUIPMENT WAS SELECTED BY AND IS ACCEPTABLE TO THE LESSEE, AND THAT THE
EQUIPMENT, AND EACH PART THEREOF, IS MERCHANTABLE AND FIT FOR ITS ORDINARY
PURPOSE AS WELL AS SUITABLE AND FIT FOR ITS PARTICULAR PURPOSE, INCLUDING BUT
NOT LIMITED TO SIZE, DESIGN, CAPACITY, KIND, QUALITY, TYPE, CAPACITY AND
MANUFACTURE.
LESSOR, NOT BEING THE MANUFACTURER, OR THE AGENT OF THE MANUFACTURER, MAKES NO
WARRANTY, REPRESENTATION OR COVENANT, EXPRESS OR IMPLIED AS TO ANY MATTER
WHATEVER4 INCLUDING BUT NOT LIMITED TO: THE MERCHANTABILITY OF THE EQUIPMENT OR
ITS FITNESS FOR ANY PARTICULAR PURPOSE THE DESIGN OR CONDITION OF THE EQUIPMENT,
THE QUALITY OR CAPACITY OF THE EQUIPMENT, THE WORKMANSHIP IN THE EQUIPMENT,
COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENT OF ANY LAW, RULE, SPECIFICATION
OR CONTRACT PERTAINING THERETO, PATENT INFRINGEMENT, OR LATENT DEFECTS OR
SUITABILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR
FOR THE PURPOSES AND USES OF LESSEE OR ANY OTHER REPRESENTATION, WARRANTY OR
COVENANT OF ANY KIND OR CHARACTER AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE
FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ORTO LESSEE OR ANY
OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR
PERFORMANCE OF THE EQUIPMENT OR THE MAINTENANCE THEREOF. Lessee accordingly
agrees not to assert any claim whatsoever against Lessor based upon warranty.
Lessee further agrees, regardless of cause, not to assert any claim whatsoever
against Lessor for any direct, indirect, consequential, incidental or special
damages or loss of any classification, including, without limitation, any lost
profits. Lessee shall look solely to the manufacturer, seller, and/or supplier
for any and all claims related to the Equipment. Lessor shall have no obligation
to install, erect, test, inspect, adjust, service, or maintain the Equipment.
LESSEE LEASES THE EQUIPMENT "AS IS", "WITH ALL FAULTS". NOTWITHSTANDING THE
FOREGOING, LESSEE'S OBLIGATIONS TO PAY THE RENT UNDER THIS LEASE SHALL BE AND
ARE ABSOLUTE AND UNCONDITIONAL. Lessor hereby acknowledges that the warranties
of the manufacturer of the Equipment, if any, are for the benefit of both Lessor
and Lessee, but that Lessee shall be subrogated to Lessor's claims, if any,
against the manufacturer or supplier of the Equipment for breach of any warranty
or representation, if any, and, upon written request from Lessee, Lessor shall
take all reasonable action requested by Lessee to enforce any such warranty
issued on or applicable to any of the Equipment which is or may be enforceable
by Lessor in its own name, provided, however, that (a) Lessee is not in default
under this Lease and (b) Lessor shall not be obligated to resort to litigation,
mediation, arbitration or any other form of alternative dispute resolution to
enforce any such warranty unless Lessee shall pay all expenses, reasonable
attorneys' and paralegal fees and costs in connection therewith. All proceeds of
any such warranty recovery from the manufacturer or supplier of the Equipment
shall first be used to reimburse Lessor for any fees, costs and expenses
incurred as aforesaid, if any, and then, to repair the affected Equipment.
9. TITLE OF EQUIPMENT. Title to each Item of Equipment leased hereunder shall
remain with the Lessor at all times. Lessee shall have no right, title, or
interest in or to the Equipment except as expressly set forth herein. Each Item
of Equipment shall remain personal property, notwithstanding the manner in which
it may be fixed to any real property. Lessee shall obtain and cause to be
recorded, where appropriate, at its own expense, from each landlord, owner,
mortgagee, or any person having an encumbrance or lien upon the real property
where any Item of Equipment is located, a waiver of any lien, encumbrance, or
interest which such person might have or hereafter obtain or claim with respect
to any Item of Equipment. Lessee, at its expense, will protect and defend
Lessor's title to the Equipment and will otherwise take all action required to
keep the Equipment free and clear of all claims, levies, liens, and
encumbrances. Lessor assumes no liability and makes no representation as to the
treatment by Lessee of this Lease, the Equipment or the Rent for financial
statement or tax purposes.
10. MARKING OF EQUIPMENT. Lessor shall have the right to xxxx each Item of
Equipment in a distinct and conspicuous manner with the name of the Lessor
followed by the words "Owner and Lessor" or other appropriate words designated
by Lessor. Lessee shall not alter, deface, or remove any of Lessor's ownership
identification plates or markings on any Item of Equipment and, upon Lessor's
request, Lessee shall affix or re-affix such identification.
11. LESSOR'S RIGHT OF INSPECTION. Lessor, or its authorized agents, shall have
the right during normal business hours to enter upon the premises where any Item
of Equipment is located (to the extent Lessee can permit) for the purpose of
inspection.
12. USE AND LOCATION OF EQUIPMENT. Each Item of Equipment shall be delivered to
the location specified in the Schedule relating thereto. Lessee must use the
Equipment in a careful and proper manner in conformity with (i) all statutes and
regulations of each governmental authority having jurisdiction over the Lessee
and/or the Equipment and its use, (ii) all policies of insurance relating to the
Equipment and/or its use and, (iii) all manufacturer's guidelines, suggested
operating procedures and maintenance schedules. In addition, Lessee shall not
(i) use any Item of Equipment in any manner that would impair the applicability
of manufacturer's warranties or render any Item of Equipment unfit for its
originally intended use; nor (ii) permit anyone other than authorized and
competent personnel to operate any Item of Equipment. Lessee will use or permit
the use of the Equipment only for lawful purposes and only within the
continental limits of the United States, and in no event shall the Equipment be
used in violation of any federal, state, or municipal statutes, laws,
ordinances, rules or regulations applicable to the operation of the Equipment
and Lessee will indemnify and hold Lessor harmless from any and all fines,
forfeitures or penalties for traffic violations, for the violation of any
statute, law, ordinance, rule or regulation of any duly constituted public
authority. Lessee shall be liable to Lessor for the loss of the Equipment caused
by the confiscation thereof by any public authority, by reason of illegal use
thereof by the Lessee, its agents, servants or employees or any other person.
Lessee shall also be liable to Lessor for loss of the Equipment resulting from
conversion or larceny.
13. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall not
make any alterations, modifications, or attachments to the Equipment. All
alterations, modifications, and attachments of whatsoever kind or nature made to
any Item of Equipment must be removed without damaging the functional
capabilities or economic value of the affected Item of Equipment upon the
termination of the Lease. Under no circumstances shall any such alteration,
modification, or attachment be encumbered by Lessee or result in the creation of
a mechanic's or materialman's lien, excepting as may arise by operation of law
pending payment with ordinary business terms.
14. MAINTENANCE AND REPAIRS. Lessee, at its own expense, shall maintain,
operate, repair, and make all modifications to each Item of Equipment in a
manner consistent with Lessee's general practice and in accordance with good
practice, manufacturer's warranty requirements and specifications, and Lessee's
established operation, maintenance, and repair programs so as to keep each Item
of Equipment in good working order, and so as to comply with all applicable laws
or applicable governmental actions and so as not to incur liability (whether or
not there is a lack of compliance) under any environmental law or otherwise
account for any release of, or exposure to, any hazardous material. Lessor shall
not be required to maintain, repair, or replace any Item of Equipment or part
thereto and Lessee hereby waives the right, however arising, to (i) require
Lessor to maintain, repair, or replace any Item of Equipment or part thereto, or
(ii) make repairs at the expense of the Lessor pursuant to any applicable law at
any time in effect. During any inspection under Paragraph 11 or for any purpose,
Lessor has the right to review Lessee's established operating procedures to
assure compliance with this section. Immediately upon installation, title to
replacements parts shall pass to Lessor, and be deemed part of the Equipment.
15. STANDARDS FOR MAINTENANCE. The Lessee shall be responsible for the
maintenance, servicing and repair of the Equipment in accordance with the
manufacturer's recommendations and it is necessary to maintain the Equipment in
conformity with the standards of wear and use as set forth herein. Lessor is not
responsible for any maintenance or servicing of any kind whatsoever of the
Equipment. Lessee shall pay for gasoline, oil, storage, washing and polishing.
Lessee shall pay for all costs and damages in excess of the above standards.
16. OCCURRENCE OF AN ACCIDENT. If an accident occurs involving the Equipment,
written notice must be given to the Lessor within twenty-four (24) hours of the
occurrence of the accident. The notice shall contain particulars of the time,
place and circumstances of the accident, names and addresses of the operators of
involved vehicles, the injured parties and the witnesses. Every demand, notice,
summons or other process received by the Lessee or Lessee's servants or agents
shall be forwarded immediately to the Lessor. The Lessee and Lessee's agents and
servants also agree to fully cooperate with the Lessor and its insurers in the
handling, defense and investigation of all claims and suits and in enforcing any
claim, right of contribution, indemnification or subrogation by Lessor or its
insurers against any person.
17. DRIVERS The Equipment leased hereunder shall be operated by safe, careful
and licensed drivers over the age of twenty-one (2 1) years, said drivers being
conclusively presumed to be the Lessee's agents or servants only, and not the
agents or servants of Lessor, and Lessee shall require said drivers to operate
the Equipment with reasonable care and diligence and to use every reasonable
precaution to prevent any loss of or damage to property of third persons or
injury to third persons.
18. RISK OF LOSS. DAMAGE, AND THEFT.
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(a) All risk of loss, damage, theft or destruction, partial or complete, to
any Item of Equipment incurred or occasioned by any cause, circumstance, or
event of whatever nature will be home by Lessee from and after delivery of each
Item of Equipment to a carrier FOB point of origin. Lessee shall promptly notify
Lessor of any theft of or loss or damage to the Equipment.
(b) Neither total nor partial loss of use or possession of any Item of
Equipment shall xxxxx the Rent.
(c) An Item of Equipment shall be deemed subjected to total loss (i) if it
has disappeared regardless of the reason for disappearance or (ii) if it has
sustained physical damage and the estimated cost of repair exceeds Seventy-Five
Percent (75%) of the fair market value on the date of damage. Lessee's duty to
pay Rent for any Item of Equipment subjected to total loss shall be discharged
by paying to Lessor, on demand, the applicable stipulated loss value as set
forth in the Schedule. The amount of applicable insurance proceeds, if any,
actually received by Lessor shall be subtracted from the amount for which Lessee
is liable under this Paragraph 18.
(d) Lessee shall cause any Item of Equipment subjected to partial loss to
be restored to original capability. Lessor shall, upon receiving satisfactory
evidence of restoration, promptly pay to Lessee the proceeds of any insurance or
compensation received by Lessor, by reason of such partial loss.
(e) Lessor shall not be obligated to undertake the collection of any claim
against any person for either total or partial loss of any Item of Equipment.
After Lessee discharges its obligations to Lessor under either Paragraph 18(c)
or 18(d) above, Lessee may, for Lessee's own account, proceed to recover from
third parties and shall be entitled to retain any amount recovered. Lessor shall
supply Lessee with any necessary assignment of claim.
19. INDEMNIFICATION.
(a) Non-Tax Liability. Lessee assumes liability for, and in addition to all
other Rent payable hereunder, hereby agrees to indemnify, protect, and hold
harmless, Lessor and its successors and assigns and their respective agents,
servants, employees, officers, directors, parents, subsidiaries and stockholders
from and against any and all liabilities, obligations, losses, damages,
injuries, claims, (including claims for negligence or comparative fault)
demands, penalties, actions, costs and expenses, including reasonable attorney's
fees, paralegal fees, court costs and related expenses of whatsoever kind and
nature, arising out of (i) the manufacture, installation, use, condition
(including, but not limited to, latent and other defects and whether or not
discoverable by Lessee or Lessor), operation, ownership, selection, delivery,
leasing, removal or return of any Item of Equipment, regardless of where, how,
and by whom operated, or (ii) any failure on the part of Lessee to perform or
comply with any covenant or condition of this Lease.
(b) Direct Tax Costs. In addition to all other Rent payable hereunder, the
Lessee agrees to indemnify, protect, and hold harmless Lessor, its agents,
servants, employees, officers, successors, and assigns from and against any and
all taxes, interest, license fees, assessments, and other governmental charges,
fees, fines, or penalties of whatsoever kind or character and by whomsoever
payable, which are levied, assessed, imposed, or incurred during the lease term,
(i) relating to each Item of Equipment, including any tax on the sale,
ownership, use, leasing, shipment, transportation, delivery or operation
thereof, (ii) on the exercise of any option, election, or performance of any
obligation by the Lessee hereunder, (iii) of the kind generally referred to in
items (i) and (ii) above which may remain unpaid as of the date of delivery of
any Item of Equipment to the Lessee irrespective of when the same may have been
levied, assessed, imposed, or incurred, and (iv) by reason of all gross receipts
and like taxes on or measured by Rent payable hereunder levied by any state or
local taxing authority having jurisdiction where any Item of Equipment is
located. The Lessee agrees to comply with all state and local laws requiring the
filing of ad valorem tax returns relating to each Item of Equipment. Any
statements for such taxes received by the Lessor shall be promptly forwarded to
the Lessee. This subparagraph shall not be deemed to obligate the Lessee to pay
(i) any taxes, fees, assessments, and charges which may have been included in
the Lessor's cost of each Item of Equipment as set forth in Schedule(s) hereto,
or (ii) any income or like taxes against the Lessor on or measured by the net
income from the Rent payable hereunder. The Lessee shall not be obligated to pay
any amount under this subparagraph so long as it shall, at its expense and in
good faith and by appropriate proceedings, contest the validity or the amount
thereof unless such contest would subject any Item of Equipment to forfeiture or
sale. The Lessee agrees to indemnify the Lessor against any loss, claim, demand,
and expense including reasonable attorneys' fees, paralegal fees, court costs
and related expense resulting from such nonpayment or contest.
(c) Indemnity Payment. The amount payable pursuant to subparagraphs 19(a)
and 19(b) shall be payable upon demand of the Lessor accompanied by a statement
describing in reasonable detail such loss, liability, injury, claim, expense, or
tax and setting forth the computation of the amount so payable.
(d) Survival. The indemnities and assumptions of liabilities and
obligations provided for in this Paragraph 19 shall continue in full force and
effect notwithstanding the expiration or other termination of this Lease.
20. LESSEE'S ASSIGNMENT. Without the prior written consent of the Lessor, Lessee
shall not bail, sublease, hypothecate, transfer, or dispose of any Item of
Equipment or any interest in this Lease nor impair the Lessor's title to the
Equipment. Lessee shall not assign this Lease, nor shall this Lease or any
rights under this Lease or in any Item of Equipment inure to the benefit of any
trustee in bankruptcy, receiver creditor, or other successor of Lessee whether
by operation of law or otherwise, without prior written consent of the Lessor.
21. LESSOR'S ASSIGNMENT. All rights of Lessor hereunder and in any Item of
Equipment may be assigned, pledged, mortgaged, transferred, or otherwise
disposed of, either in whole or in part, without notice to Lessee. No such
assignee shall be obligated to perform any duty, covenant, or condition required
to be performed by Lessor under the terms of this Lease unless such assignee
expressly assumes such obligations. Lessor shall remain liable to Lessee to
perform such duty, covenant, and condition unless such assignee expressly
assumes such obligations at which time Lessee hereby releases Lessor from such
obligations. Such assignee shall have rights, powers, and remedies given to
Lessor by this Lease, and shall be named as lender loss payee or co-insured
under all policies of insurance maintained pursuant to Paragraph 22 hereof. If
Lessor assigns this Lease or the monies due or to become due hereunder or any
other interest therein, Lessee agrees not to assert against Lessor's assignee
any defense, set off, recoupment, claim, or counterclaim which Lessee may have
against Lessor, whether arising under this Lease or any other transaction
between Lessor and Lessee. Subject to Paragraph 20 hereof and this Paragraph 21,
this Lease inures to the benefit of, and is binding upon, the heirs, legatees,
personal representatives, successors, and assigns of the parties hereto.
22. INSURANCE Lessee will, at its own expense, insure each Item of Equipment in
compliance with the terms and conditions of this Paragraph 22. The proceeds of
any insurance policy due by reason of theft or loss of or damage to any Item of
Equipment shall be applied as provided in Paragraph 18 hereof. Lessee shall
comply with the following conditions:
(a) Lessee, prior to the inception of the Lease Term or any rental term,
shall deliver to Lessor all required policies of insurance or, in the
alternative, properly completed certificates of insurance;
(b) Lessee shall cause each insurer to agree by endorsement on the policies
or certificates of insurance or by an independent instrument furnished to Lessor
that each such insurer will give at least thirty (30) days' written notice to
Lessor before any such policy or policies of insurance will be altered or
canceled for any reason, including, without limitation, failure of the Lessee to
pay premiums;
(c) All coverage required by the Schedule(s) must be in effect when Lessor
takes delivery or causes delivery to be made FOB point of origin;
(d) All insurance policies must indicate that the Lessor is an additional
insured for all aspects of liability insurance coverage and is lender loss payee
for all aspects of insurance coverage relating to the theft or loss of or damage
to any Item of Equipment, and the proceeds of any public liability or property
damage insurance shall be payable first to the extent of Lessor's liability; and
(e) Lessee will furnish renewal policies or renewal certificates of
insurance listing Lessor as an additional insured and/or lender loss payee, as
required by this Lease, no later than thirty (30) days prior to the expiration
of any insurance coverage required hereby.
23. ADDITIONAL DOCUMENTS. If Lessor shall so request, Lessee shall execute and
deliver to Lessor such documents, including, without limitation, UCC financing
and continuation statements, as Lessor shall deem necessary or desirable for
purposes of continuing this Lease or recording or filing to protect the interest
of Lessor in each Item of Equipment. Notwithstanding any contrary terms or
provisions contained in this Lease, Lessee, for good and valuable consideration,
hereby grants to Lessor a continuing first priority security interest in the
Equipment, together with all proceeds, replacements and substitutions thereof,
now owned or hereafter acquired. Lessee authorizes Lessor to execute, without
the Lessee's signature, such financing statements and other instruments
necessary or desirable by the Lessor, in the Lessor's discretion, to perfect any
security interest hereby created and to provide such appropriate notice as the
Lessor shall deem necessary or desirable to protect the interest of the Lessor
in each Item of Equipment. The Lessee shall give prompt written notice to Lessor
of each accident likely to result in material damages or claims for material
damages against any of the Equipment or any such person or likely to result in a
material adverse change to the financial or business condition of Lessee
occurring in whole or in part (whenever asserted) during the respective rental
term regarding any Item of Equipment, and on request Lessee shall furnish to
Lessor information as to the time, place and nature thereof, the names and
addresses of the parties involved, any persons injured, witnesses and owners of
any property damaged, and such other information as may be known to it and
promptly upon request Lessee shall furnish Lessor with copies of all material
correspondence, papers, notices and documents whatsoever received by Lessee from
third parties in connection therewith.
24. FURNISHING FINANCIAL INFORMATION. During the Lease Term, Lessee will furnish
or cause to be furnished to Lessor the following:
(a) within Fifteen (15) days after the end of each of the first three
quarterly fiscal periods of each year, a balance statement of
Lessee as of the close of such period, together with the related
statements of consolidated income and changes in retained
earnings for such period and for the portion of Lessee's fiscal
year then ended (setting forth in each case in comparative form
the figures for the corresponding portion of Lessee's previous
fiscal year), all in reasonable detail prepared by independent
certified public accountants of recognized standing selected by
Lessee and satisfactory to Lessor;
(b) within Forty-Five (45) days following the close of each fiscal
year of Lessee, a balance sheet and statement of income, expenses
and retained earnings, and a statement of changes in the
financial position of Lessee, together with supporting schedules
reflecting the financial condition of Lessee at the close of such
year and the results of its operations during such year, all such
statements which shall be prepared in accordance with generally
accepted accounting principles consistently applied and shall be
prepared by independent certified public accountants of
recognized standing selected by Lessee and satisfactory to
Lessor.
(c) within Forty-Five (45) days after the close of each of Lessee's
fiscal years, a certificate of Lessee, signed by an authorized
officer or representative of Lessee, to the effect that the
signer has reviewed, or caused to be reviewed by persons under
the supervision of such officer or representative, this Lease and
such of the other Lease Documents as shall be necessary to make
the determination required hereunder, and has made, or caused to
be made under supervision of such person, a review of the
transactions (including filings required under this Lease) and
condition of Lessee during the preceding fiscal year, and that
such review has not disclosed the existence during such period,
nor does the signer have knowledge of the existence as at the
date of such certificate, of any condition or event that
constituted a Default or Event of Default or, if any such
condition or event exists, specifying the nature and period of
existence thereof and what action Lessee has taken or is taking
or proposes to take with respect thereto;
(d) within Fifteen (15) days after the end of each of the first three
(3) quarterly fiscal periods of each year, a balance statement of
Pyramid Coach, Inc. ("Pyramid") as of the close of such period,
together with the related statements of consolidated income and
changes in retained earnings and stockholder's equity for such
period and for the portion of Pyramid's fiscal year then ended
(setting forth in each case in comparative form the figures for
the corresponding portion of Pyramid's previous fiscal year), all
in reasonable detail and prepared by independent certified public
accountants of recognized standing selected by Lessee and
satisfactory to Lessor;
(e) within Forty-Five (45) days following the close of each fiscal
year of Pyramid, a balance sheet and statement of income,
expenses and retained earnings, and a statement of changes in the
financial position of Pyramid, together with supporting schedules
reflecting the financial condition of Pyramid at the close of
such year and the results of its operations during such year, all
such statements which shall be prepared in accordance with
generally accepted accounting principles consistently applied and
shall be prepared by independent certified public accountants of
recognized standing selected by Pyramid and satisfactory to
Lessor;
(f) within Fifteen (15) days of filing, the federal income tax
returns of Lessee, Pyramid and each of the individual guarantors
of this Lease;
(g) within Forty-Five (45) days after the end of the calendar year, a
personal financial statement of each individual guarantor of this
Lease (including only assets which are personally and not jointly
owned by the respective guarantors).
(h) promptly upon an officer of Lessee becoming aware of the
existence thereof, a certificate of such officer stating that a
Default or Event of Default has occurred and specifying the
nature and period of existence thereof and what action Lessee has
taken or is taking or proposes to take with respect thereto; and
(i) from time to time such other information as Lessor may reasonably
request.
25. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR. If Lessee fails to promptly
perform any of its obligations under this Lease, Lessor may perform the same for
the account of Lessee without waiving Lessee's failure as a default. All sums
paid or expense or liability incurred by Lessor in such performance (including
reasonable legal fees) together with interest thereon at the highest contract
rate enforceable against Lessee, but never at a higher rate than twentyone
percent (21%) per annum, shall be payable by the Lessee upon demand as
additional Rent. In the event the Lessor elects to pay or perform any of the
obligations of the Lessee, such payment or performance shall not constitute a
waiver of the rights and remedies hereunder and shall not be construed in any
way as limiting the Lessor's rights and remedies in any manner nor shall such
action create any new obligations for the Lessor.
26. VEHICLE DISPOSITION, PURCHASE OPTION.
(a) Purchase Option If any Schedule has a purchase option price set
forth therein with respect to the Items of Equipment listed on such Schedule,
then at the expiration of the original Lease Term in such Schedule with respect
to such Items of Equipment, if Lessee has paid in full all Rent owing under such
Schedule, and be not then in Default under this Lease (including all obligations
under any Schedule), Lessee shall have the option to purchase all, but not less
than all, the Items of Equipment in the applicable Schedule upon giving written
notice not less than Thirty (30) days prior to expiration of the original term
thereof. The purchase price shall be as set forth in the applicable Schedule and
shall be payable upon expiration of the original Lease Term. If any Schedule
does not contain a purchase option price, then Lessee shall not have an option
to purchase any Equipment on such Schedule.
Any purchase option price stated as "fair market value" ("FMV") for any Item of
Equipment on a Schedule shall be determined on the basis of, and shall be equal
in amount to, the value which would be obtained in an arm's length transaction
between an informed and willing buyer-user (other than a Lessee currently in
possession and a used Equipment dealer) and an informed and willing seller under
no compulsion to sell and, in such determination, costs of removal of the Items
of Equipment from their location of current use shall not be a deduction from
such value. The purchase of the Equipment shall occur AS IS. WHERE IT, WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, INCLUDING SPECIFICALLY, BUT
NOT LIMITED TO, WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FORA
PARTICULAR PURPOSE, except only that Lessor shall deliver title to the Equipment
purchased free of any lien or encumbrance created by any act of the Lessor.
(b) Failure to Exercise Option If Lessee elects not to purchase the
Equipment, Lessee shall, unless otherwise directed by Lessor, sell the Equipment
as agent for Lessor, in a commercially reasonable manner on or before the day
following the last day of the Lease Term, and shall pay to Lessor, on the day of
such sale, in immediately available funds, an amount equal to the proceeds from
the sale of the Equipment, together with all sales and other taxes applicable to
the transfer of the Equipment. Upon Lessee's payment to Lessor of such amount,
Lessor shall transfer all of Lessor's interest in and to the Equipment to Lessee
or to Lessee's purchaser as Lessee may direct, without any recourse to or
warranty by Lessor.
(c) Sale Proceeds If the sale proceeds received by Lessor pursuant to
subparagraphs (a) or (b) of this Paragraph 26 with respect to the Equipment
exceed the Estimated Fair Market Value of the Equipment (as defined in the
Schedule), then as soon as Lessor receives such sale proceeds, Lessor will pay
to Lessee, as an adjustment to the Rent an amount equal to such excess.
Conversely, if such sale proceeds are less than the Estimated Fair Market Value
(as defined in the Schedule) of the Equipment, then, simultaneously with the
payment of such sale proceeds, Lessee shall pay Lessor, in immediately available
funds, as an adjustment to the Rent, the difference between the sale proceeds
and the Estimated Fair Market Value an amount equal to such shortfall.
(d) Return of Equipment. If Lessee does not purchase and Lessor directs
Lessee not to sell the Equipment, then upon the expiration or termination of the
Lease Term, Lessee, at its expense, shall promptly return the Equipment to
Lessor or its designee, and shall pay to Lessor, in immediately available funds,
on or before the last day of the Lease Term, as a preliminary adjustment to the
Rent, an amount equal to the Estimated Fair Market Value of the Equipment as set
forth in the Schedule. As soon as practicable after receipt of the Equipment
from Lessee, Lessor shall sell the Equipment and shall pay the sale proceeds
(net of all taxes and all expenses of holding and preparing the Equipment for
sale and selling the Equipment) to Lessee. The amount by which such net sale
proceeds received from the sale of the Equipment is greater or less than the
Estimated Fair Market Value of the Equipment as set forth in the Schedule shall
be deemed a Xxxxxx adjustment to the Rent.
(e) Further Requirements. In the event Lessee is required to return the
Equipment to Lessor pursuant to subparagraph (d) of this Paragraph 26, Lessee
shall return each Item of Equipment, freight and insurance prepaid, to Lessor
(or Lessor's nominee) at a location designated by Lessor. The Items of Equipment
and all parts thereto shall be free and clear of all liens (other the Lessor
liens), and shall be free of all residual materials, cleaned, painted, complete
with no missing components or attachments, and fully operational and able to
perform its required task effectively, without repair or overhaul, within the
original tolerances and specifications set by the manufacturer. Any and all
costs of dismantling, packing, and removal of the Equipment shall also be paid
by Lessee. If any Item of Equipment is returned in a condition other than that
stated, Lessee shall promptly advance payment for all necessary repairs.
Lessee's obligations to pay for repairs shall be reduced by proceeds of
insurance Lessor has received. If Lessee fails to return any Item of Equipment
at the end of the Lease Term or any renewal thereof to the designated location,
and does not exercise the renewal or purchase options provided for herein (if
any), then this Lease, at Lessor's option, shall be deemed extended on a
month-to-month basis with Rent payable on the first of each month at the rate
applicable during the Lease Term or renewal term just ended.
27. EVENTS OF DEFAULT. Any of the following events or conditions shall
constitute an Event of Default hereunder and entitle the Lessor, at its option,
to avail itself of the remedies more fully set forth in Paragraph 28 hereof:
(a) Non-payment by Lessee of any Rent or other amount provided for in this
Lease within five (5) days of becoming due;
(b) Failure of the Lessee to perform any of the non-monetary obligations,
terms, or conditions of this Lease;
(c) Death or judicial declaration of incompetency of Lessee or any
guarantor of the Lease, if an individual, or death or judicial declaration of
incompetency of an individual partner, if Lessee is a partnership or death or
judicial declaration of incompetency of an individual member, if Lessee is a
limited liability company;
(d) The Lessee shall commence a voluntary case or other proceeding seeking
liquidation, reorganization, or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or the
taking possession by any official in an involuntary case or other proceeding
commenced against it or shall make a general assignment for the benefit of its
creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(e) An involuntary case or other proceeding should be commenced
against Lessee seeking liquidation, reorganization, or other relief with respect
to it or its debts under any bankruptcy, insolvency, or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of thirty (30) days;
(f) If final judgment for the payment of money in excess of Fifty Thousand
and No/100 Dollars ($50,000.00) shall be rendered against the Lessee or, the
institution of any attachment proceedings with respect to any significant
portion of the Lessee's assets or property and the same shall remain
undischarged for a period of thirty (30) days during which execution shall not
be effectively stayed;
(g) The Lessee, or any guarantor of the Lease, or any affiliate of the
Lessee, shall default in the payment of principal and/or interest when due
(whether by acceleration or otherwise) of any obligation or indebtedness owed to
Lessor, or to any subsidiary or affiliate of Lessor, which shall remain unpaid
and unsatisfied following the conclusion of any applicable grace period in
respect to such obligation or indebtedness;
(h) The occurrence of any event described in this Paragraph 27(c) through
(f) hereof with respect to any guarantor or any other party liable for payment
or performance of this Lease;
(i) Any certificate, statement, representation, warranty, or financial
statement heretofore or hereafter furnished pursuant to or in connection with
this Lease by or on behalf of Lessee or any guarantor or other party liable for
payment or performance of this Lease is false in any material respect at the
time as of which the facts therein set forth were stated or certified, or omits
any substantial contingent or unliquidated liability or claim against Lessee or
any such guarantor or other party, or, upon the date of execution of this
document or any Schedule, there shall have been any materially adverse changes
in any of the facts disclosed by any such certificate, statement,
representation, or warranty, which shall not have been disclosed in writing to
Lessor at or prior to the time of execution of this document or such Schedule;
(j) The Lessee removes, sells, transfers, encumbers, parts with possession
or sublets or attempts to do any of the foregoing with regard to the Equipment
or any item thereof;
(k) An event of default shall have occurred under any other lease agreement
wherein Lessor or any affiliated entity is, at the time of such default the
"lessor" and Lessee is the "lessee;"
(l) The conveyance of assets of the Lessee other than in the ordinary
course of business;
(m) The conveyance or transfer or issuance of greater than Twenty-Five
percent (25%) of the outstanding capital stock of the Lessee to any person,
firm, or entity (if Lessee is a corporation); or the conveyance or transfer or
issuance of greater than Twenty-Five percent (25%) of the outstanding units to
any person, firm or entity, (if Lessee is a limited liability company), or the
conveyance or transfer or issuance of greater than Twenty-Five percent (25%) of
the outstanding interests to any person, firm or entity, (if Lessee is a
partnership);
(n) The dissolution or liquidation of the Lessee, if a corporation, or the
occurrence of an event of dissociation if the Lessee is a limited liability
company; or
(o) If the Lessor deems itself insecure.
28. REMEDIES Upon the happening of any Event of Default hereunder, Lessor shall
have the rights and duties provided by applicable law and by this Lease.
Notwithstanding that this agreement is a lease and title to the Equipment is at
all times in the Lessor, Lessor may nevertheless at its option choose those
rights and remedies of a secured party under the Uniform Commercial Code as
enacted in the State of Indiana or any other jurisdiction in which enforcement
of this Lease is sought. In addition, the rights of the Lessor shall be as set
forth herein in this paragraph and Lessor at its option, may:
(a) Upon Lessor's demand, the Equipment shall be promptly delivered to
Lessor, at that place or those places designated by Lessor. If Lessee does not
so deliver the Equipment, Lessee shall make the Equipment available for retaking
and authorizes Lessor, its employees, and agents to enter the premises of the
Lessee and any other premises (insofar as Lessee can permit) for the purpose of
retaking. In the event of retaking, Lessee expressly waives all rights to
possession and all claims for injuries suffered through or loss caused by
breaking. Any repossession accomplished under this Paragraph 28(a) shall not
release Lessee from liability for damages of Lessor sustained by reason of
Lessee's default hereunder.
(b) Lessor may revoke Lessee's privilege of paying Rent in
installments causing acceleration of all remaining Rent through the Lease Term
and, upon Lessor's demand, the Lessee shall promptly pay to the Lessor the
portion of the Rent then remaining unpaid plus all other sums due and unpaid.
(c) Lessor may sell or release the Equipment or any part thereof, at
public auction or by private sale or lease at such time or times and upon such
terms as Lessor may determine, free and clear of any rights of Lessee and, if
notice thereof is required by law, any notice in writing of such sale or lease
by Lessor to Lessee not less than ten (10) days prior to the date thereof shall
constitute reasonable notice thereof to Lessee. All proceeds of the sale or
releasing, or both, (less (i) all expenses incurred in retaking the Equipment,
making necessary repairs to the Equipment and enforcing this Lease, (ii) all
damages that Lessor shall have sustained by reason of Lessee's default, and
(iii) reasonable attorney's fees) credited against Lessee's liability hereunder
as and when received by Lessor. Sums in excess of Lessee's liability shall
belong to Lessor. The Lessee shall be liable for any deficiency.
The waiver by Lessor of any breach of any obligation of Lessee shall not be
deemed a waiver of any future breach of the same or any other obligation. No
remedy of Lessor hereunder shall be exclusive of any remedy herein provided or
by law, but each shall be cumulative and in addition to every other remedy. The
provisions of this Paragraph 28 shall not prejudice Lessor's right to recover or
prove damages for unpaid Rent accrued prior to default, or bar an action for a
deficiency as herein provided, and the bringing of an action with an entry of
judgment against Lessee shall not bar the Lessor's right to repossess any or all
Items of Equipment. Lessor's remedies shall be available to Lessor's successors
and assigns, shall be in addition to all other remedies provided by law, and may
be exercised concurrently or consecutively. LESSEE WAIVES ANY AND ALL RIGHTS TO
NOTICE AND TO JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT
BY LESSOR IN THE EVENT OF A DEFAULT HEREUNDER BY LESSEE. LESSEE HEREBY WAIVES
ANY RIGHT TO DEMAND A JURY TRIAL WITH RESPECT TO ANY ACTION OR PROCEEDING
INSTITUTED BY THE LESSOR OR THE LESSEE IN CONNECTION WITH THIS LEASE.
29. PERSONAL PROPERTY TAXES. Lessor shall file all applicable state personal
property tax returns relating to the Equipment and Lessee shall timely pay all
of such property taxes and shall provide evidence of timely payment to Lessor.
At the election of Lessor, Lessor may pay such personal property taxes and
Lessee hereby agrees to promptly reimburse Lessor for all of such personal
property taxes paid by Lessor within five (5) days of request. At the election
of the Lessor, Lessee agrees to file any state property tax return that Lessor
requests Lessee to file.
30. ADDITIONAL COVENANTS OF LESSEE. In addition to any and all other covenants
contained in this Lease and any Schedules, the Lessee, during the Lease Term,
agrees and covenants with Lessor as follows: Lessee shall maintain a (i) minimum
debt to worth ratio of not less than 2.0 to 1.0 and (ii) current ratio of not
less than 1.10 to 1.0, each measured based upon Lessee's quarterly financial
statements to be delivered by Lessee to Lessor beginning with the quarterly
period ending June 30, 2000. All computations made to determine compliance with
the requirements contained in this Paragraph shall be made in accordance with
generally accepted accounting principles, applied on a consistent basis, and
certified by Lessee as being true and correct. For purposes of this Paragraph,
the debt to worth ratio shall mean the ratio of Lessee's Total Liabilities to
Tangible Net Worth and the current ratio shall mean the Lessee's current assets
to current liabilities. Additionally, "Tangible Net Worth" means Lessee's total
assets excluding all intangible assets (i.e., goodwill, trade marks, patents,
copyrights, organizational expenses, and similar intangible items, but including
leaseholds and leasehold improvements) less total Debt; "Debt" means all of
Lessee's liabilities excluding Subordinated Debt; "Subordinated Debt" means
indebtedness and liabilities of Lessee which have been subordinated by written
agreement to indebtedness owed by Lessee to Lessor in form and substance
acceptable to Lessor. Any other financial or accounting terms used herein but
not otherwise defined shall have the meanings ascribed to such terms under
generally accepted accounting principles.
31. GOVERNING LAW AND JURSDICTION. This Lease shall be governed by the laws of
the state of Indiana. The parties hereby stipulate that venue of any action
brought in respect of the interpretation hereof of the rights of the parties
hereunder, both during the Lease Term or subsequent to any termination hereof,
shall be exclusively placed in the county and state set forth on page 1 of this
Lease in the section labeled "Venue", or the United States District Court for
the Southern District of Indiana, Evansville Division. Lessee hereby agrees to
submit to personal jurisdiction in such County and State.
32. LEASE IRREVOCABILITY. This Lease is irrevocable for the full term hereof as
set forth in each Schedule and for all Rent. Notwithstanding the foregoing, the
Lessor shall have no duty to enter into any Schedule and Lessor may cancel any
Schedule without liability if, in Lessor's sole discretion, an adverse change
shall have occurred with respect to the business, financial condition or
prospects of Lessee at any time prior to the commencement date specified in the
respective Schedule.
33. CONFLICT OF PROVISIONS. In the event of any conflict of provisions between
any Schedule and this document or between any Schedule and any other document
the provisions of the Schedule shall control.
34. AMENDMENTS AND WAIVERS. This document, the Schedule(s) and any other
attachments to the Lease executed by Lessor and Lessee constitute the entire
agreement between Lessor and Lessee with respect to the Equipment and the
subject matter of this Lease. No term or provision of this Lease may be changed,
waived, amended, or terminated except by a written agreement signed by both
Lessor and Lessee, except that Lessor may insert on the appropriate Schedule the
serial number of any Item of Equipment after delivery thereof. No express or
implied waiver by Lessor of any Event of Default hereunder shall in any way be,
or be construed to be a waiver of any future or subsequent Event of Default
whether similar in kind or otherwise. No waiver by any party of, or consent by
such party to, a variation from, or breach of, or default under, any provision
of this Lease, any Schedule or any attachment shall be effective unless made in
a written instrument duly executed on behalf of such party by duly authorized
officer or such individual (as the case may be), and any such waiver or consent
shall be limited solely to those rights or conditions expressly so waived or
consented to. No failure or delay on the part of any party in exercising any
power, right or privilege, under this Lease, any Schedule or any attachment
shall operate as a waiver thereof, nor shall any single or partial exercise of
such right or power preclude any other or further exercise thereof, or the
exercise of any other right or power under this Lease, any Schedule or any
attachment. No other actions taken by any party, including, without limitation
by, or on behalf of such party, and no failure to take action, shall be deemed
to constitute a waiver or an extension to such party of compliance with any
representation, warranty, condition, agreement or indemnification set forth in
this Lease, any Schedule or any attachment.
35. NOTICES Except as otherwise specifically provided for herein, service of all
notices under this Lease shall be sufficient if given personally or mailed to
the party involved at its respective address set forth in the most recent
Schedule relating hereto, or at such address as such party may otherwise provide
in writing from time to time. Any such notice mailed to such address shall be
effective when deposited in the United States mail, duly addressed with
first-class postage prepaid.
36. GENDER;NUMBER Whenever the context of this Lease requires, the neuter gender
includes the masculine and feminine, and the singular number includes the
plural. Whenever the word Lessor is used herein, it shall include all assignees
of Lessor. If there is more than one Lessee named in this Lease, the liability
of each shall be joint and several.
37. TITLES The titles to the paragraphs of this Lease are solely for the
convenience of the parties, shall not be deemed to constitute a part hereof, and
are not an aid in the interpretation of the document.
38. TIME. Time is of the essence in the performance of this Lease and each and
all of its provisions.
39. SEVERABILITY OF PROVISIONS If any provision of this Lease is held invalid or
unenforceable, the remaining provisions will not be affected, and to this end
the provisions of this Lease are declared severable.
40. JOINT AND SEVERAL LIABILITY. As used herein, the term "Lessee," if there is
more than one, shall mean all Lessees, or each of them, and in such case they
are jointly and severally bound.
41. LESSEE REPRESENTATION. Lessee hereby represents and warrants to the Lessor
that on the date of the Lease and on the date of
execution of each Schedule:
(a) Lessee is duly authorized to and qualified to do business wherever
necessary to carry on its present business and operations, including
jurisdiction(s) where the Equipment is or is to be located.
(b) The Lease, the Schedule(s) and any attachments constitute valid, legal
and binding agreements enforceable with their terms, except as may be limited by
applicable bankruptcy or insolvency laws.
(c) No approval, consent or withholding of objections is required from any
governmental authority or instrumentality with respect to the entry into or
performance by Lessee of the Lease, any Schedule or any attachment.
(d) The entry into or performance by Lessee of the Lease, any Schedule or
any attachment will not: (i) violate any judgment, order, law or regulation
applicable to Lessee or any provision of Lessee's Articles of Organization or
Operating Agreement; or (ii) result in any breach of, constitute a default under
or result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument (other than this Lease)
to which Lessee is party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Lessee, which shall have a material adverse effect on the ability of Lessee to
fulfill its obligations under this Lease.
(f) The articles of organization and operating agreement are in the form
provided to Lessor and shall remain in the current form throughout the term of
this Lease and extensions thereof.
(g) The Equipment will at all times be used for commercial or business
purposes.
(h) The Equipment will at all times remain tangible personal property.
42. ACCURACY OF REPRESENTATIONS. None of the Lessee's representations or
warranties set forth in this Lease or in any document furnished pursuant to this
Lease or in connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make any statement of fact contained herein or therein, in
light of the circumstances under which it was made, not misleading.
43. INTERPRETATION. The language in all parts of this Lease, any Schedule and
any attachment shall, in all cases, be construed as a whole according to its
fair meaning, strictly for nor against any party, and without implying a
presumption that the terms hereof shall be more strictly construed against one
party by reason of any rule of construction to the effect that a document is to
be construed more strictly against the party who personally or through such
party's agents, prepared the same, it being agreed that the representatives of
both parties have participated in the preparation hereof.
44. AUTHORITY TO EXECUTE. The undersigned persons executing this Lease, for and
on behalf of the entities (if applicable) that are parties hereto, hereby
represent and certify that each such person occupies the position stated below
with respect to such entity, and that this Lease has been signed by such person
for and on behalf of such entity pursuant to proper authority confirmed by such
entity, and that all necessary action for the execution and delivery and
performance of this Lease and the Schedule has been taken and done.
45. EXECUTION BY FACSIMILE. The parties agree that this agreement maybe
transmitted between them by facsimile machine. The parties intend that faxed
signatures constitute original signatures and that a faxed agreement containing
the signatures (original or faxed) of all the parties is binding on the parties.
46. BUSINESS LEASE ONLY. The Lessee represents that the Equipment is being
leased for business purposes only and agrees that under no circumstances shall
the equipment be used for any other purposes. Further, under no circumstances
shall the Lease or any Schedule be construed as a consumer credit sale nor shall
the Lessee take any action that may cause such a consumer credit sale
transaction.
Lessee acknowledges that it has received a copy of this Lease, all Schedules and
attachments thereto, as fully executed by the parties thereto. Lessee
acknowledges that it (a) has READ THIS LEASE, THE SCHEDULES AND ATTACHMENTS
THERETO OR HAS CAUSED SUCH DOCUMENTS TO BE EXAMINED BY LESSEE'S REPRESENTATIVES
OR ADVISORS; (b) is thoroughly familiar with the transactions contemplated in
this Lease, the Schedules and attachments thereto; and (c) together with
Lessee's representatives or advisors, if any, has had the opportunity to ask
such questions to representatives of Lessor, and receive answers thereto,
concerning the terms and conditions of the transactions contemplated in this
Lease, the Schedules and attachments thereto as Lessee deems necessary in
connection with Lessee's decision to enter into this Lease, any Schedules and
attachments.
WITNESS the due execution hereof with the intent to be legally bound.
DW LEASING COMPANY, LLC
By:
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Printed:
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Title:
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Accepted at , Indiana:
--------------------------
OLD NATIONAL BANK
By:
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Printed:
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Title:
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OLD NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
SCHEDULE
Schedule No. 1
-----------
This schedule is hereby made a part of the Master Lease Agreement (the "Lease")
between the undersigned Lessor and the undersigned Lessee. All terms used herein
which are defined in the Lease shall have the same meaning as in the Lease.
A: EQUIPMENT: SEE ATTACHED SCHEDULE "A"
B: TERM: The term of this Lease for the items described in this Schedule shall
be eighty-five (85) months.
C: RENT: As Rent for such Equipment, Lessee agrees to pay Lessor the sum of
$5,799,657.28.Unless otherwise provided in the Lease or in this Schedule,
Rent payments shall commence on June 17, 2000, and shall be payable in
eighty-five (85) installments. No payments are to be paid in advance and
the balance of the rentals, $5,799,657.28, are payable in successive
monthly rental payments as follows:
Payments one through eighty-four @ $49,745.92
Payment eighty-five @ $1,621,000.00
The first Rent payment is due on June 17, 2000, and the others on the
seventeenth (17th) day of each month thereafter until fully paid.
D: LOCATION: When not in use, the Equipment shall be located at 0000 Xxx Xxxx
Xxxx, Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx. However, based upon the fact
that the Equipment consists of rolling stock, the Equipment will be located
from time to time at various locations within the Continental United
States. All records and information regarding the Equipment shall be
located at the address as set forth above.
E: LESSEE'S PURCHASE OPTION: Lessee may elect, by giving not less than thirty
(30) days prior written notice to Lessor, to purchase at the end of the
Lease Term, or any renewal or extension thereof, all but not less than all
of the Equipment from Lessor by paying to Lessor on the last day of the
Lease, or any renewal or extension thereof, an amount equal to One Dollar
($1.00). All obligations of Lessee under any provision of the Lease with
respect to the return of the Equipment shall terminate upon its sale to
Lessee pursuant to the foregoing provision. In the event Lessee fails to
exercise its purchase option as set forth above, then upon the expiration
of the Lease Term or any renewal thereof, Lessee shall return the Equipment
to Lessor as provided in Paragraph 26 of the Lease.
Approved and agreed to this 17th day of May, 2000, as a Schedule to a Master
Lease Agreement dated May 17th, 2000, by and between Lessor and Lessee.
LESSOR: OLD NATIONAL BANK LESSEE: DW LEASING COMPANY,
LLC
By: By:
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Printed: Printed:
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Title: Title:
-------------------------------- -------------------------
SCHEDULE "A"
Collateral Description - including make, kind
of unit, model and serial numbers of
Quantity and any other pertinent information
------------------------- ----------------------------------------------
------------------------- ----------------------------------------------
1 1999 Prevost LeMirage luxury coach including all new
interior modifications, componentry and accouterments
now owned and as currently configures or hereafter
acquire or modified VIN: 0XXX00000X0000000
4 1998 Prevost LeMirage luxury motor coaches including
all interior modifications, componentry and
accouterments now owned and as currently configured or
hereafter acquired or modified VIN: 0XXX00000X0000000,
0XXX00000X0000000, 0XXX00000X0000000 &
0XXX0000XX0000000
2 1997 Prevost LeMirage luxury motor coaches including
all interior modifications, componentry and
accouterments now owned and as currently configured or
hereafter acquired or modified VIN: 0XXX0000XX0000000 &
0XXX0000XX0000000
1 1994 Eagle model 15-45 luxury motor coach including all
interior modifications, componentry and accouterments
now owned and as currently configured or hereafter
acquired or modified VIN: 1EUBM8A11RBOO4O49
1 1995 Eagle model 15-45 luxury motor coach including all
interior modifications, componentry and accouterments
now owned and as currently configured or hereafter
acquired or modified VIN: 1EUBM6A12SBOO4O68
OLD NATIONAL BANK
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
CROSS-COLLATERAL SECURITY AGREEEMENT
The undersigned debtor ("Debtor"), to secure the payment and performance of
Debtor's obligations to Old National Bank ("Secured Party") under the agreements
described in a Security Agreement attached hereto, as well as the payment and
performance of all other indebtedness and obligations of Debtor to Secured Party
of every kind or description and howsoever arising, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
including, without limitation, obligations to the Secured Party under any
guaranty or any indebtedness of Debtor to others which Secured Party has
obtained or may in the future obtain by purchase, assignment or otherwise (all
of which are collectively referred to herein as the "Obligations"), hereby
grants to Secured Party a security interest in the property described in
Schedule B attached hereto together with all present and future attachments and
accessories to such property and replacements and proceeds thereof, including
amounts payable under any insurance policy.
The security interest granted hereby is in consideration of Secured Party's
entering into a Lease Agreement dated May 17, 2000, described in Schedule A
and/or for other good and valuable consideration, the receipt of which is hereby
acknowledged. The security interest granted hereby is a separate, independent
security interest that is in addition to, and not in substitution of, any and
all security interests heretofore or hereafter granted by Debtor to Secured
Party, including, but not limited to, those granted by any agreements set forth
in Schedule A hereof. This Security Agreement is not an amendment to or
modification of, or a waiver or release by Secured Party of any term, provision
or condition of any agreement or note described in Schedule A or any other
agreement between Debtor and Secured Party.
Dated: May 17, 2000
Debtor:
Secured
Party: Old National Bank DW Leasing Company, LLC
By Title By Title
------------------- ------------- ------------- -------------
Schedule "B"
Attached to and a part of the Cross-Collateral Security Agreement of even date
between the undersigned Secured Party and Debtor.
Collateral Description - including make, kind
of unit, model and serial numbers of
Quantity and any other pertinent information
------------------------------ ---------------------------------------------
------------------------------ ---------------------------------------------
2 2000 Prevost model XL2 luxury
motor coaches including all
interior modifications,
componentry and accountrements
now owned and as currently
configured or hereafter acquired
or modified VIN:
0XXX00000X0000000 &
0XXX00000X0000000
Dated: May 17, 2000
Debtor:
Secured
Party: Old National Bank DW Leasing Company, LLC
By Title By Title
------------------- ------------- ------------- -------------
COMMERCIAL GUARANTY
Borrower: DW Leasing Company, LLC Lender: Old National Bank
000 Xxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxx 00000
Guarantor: Xxxxxxx X. Xxxxxx
-------------------------------------------------------------------------------
CONTINUING GUARANTY. For good and valuable consideration, XXXXXXX X. XXXXXX
("Guarantor") absolutely and unconditionally guarantees and promises to pay to
OLD NATIONAL BANK, a national banking association ("Lender") or its order, on
demand, in legal tender of the United States of America, the indebtedness (as
that term is defined below) of DW LEASING COMPANY, LLC ("Borrower") to Lender on
the terms and conditions set forth in this Guaranty. The obligations of
Guarantor under this guaranty are continuing.
DEFINITIONS. The following words shall have the following meanings when used in
this Guaranty:
Borrower. The word "Borrower" means DW Leasing Company, LLC
Guarantor. The word "Guarantor" means Xxxxxxx X. Xxxxxx.
Guaranty. The word "Guaranty" means this Guaranty made by Guarantor
for the benefit of Lender dated May 17th 2000.
Indebtedness. The word "Indebtedness" is used in its most
comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations, leases, and indebtedness to Lender, now
existing or hereinafter incurred or created, including, without
limitation, all loans, advances, interest, costs, debts, overdraft
indebtedness, credit card indebtedness, lease obligations, including
Master Lease dated May ___, 2000, other obligations, and liabilities
of Borrower, or any of them, and any present or future judgments
against Borrower, or any of them; and whether any such Indebtedness is
voluntarily or involuntarily incurred, due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined;
whether Borrower may be liable individually or jointly with others, or
primarily or secondarily, or as guarantor or surety; whether recovery
on the Indebtedness may be or may become barred or unenforceable
against Borrower for any reason whatsoever; and whether the
Indebtedness arises from transactions which may be voidable on account
of infancy, insanity, ultra xxxxx, or otherwise.
Lender. The word "Lender" means Old National Bank, a national banking
association, its successors and assigns.
Related Documents. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan
agreements, lease agreements and schedules and exhibits thereto,
environmental agreements, guaranties, security agreements, mortgages,
deeds of trust, and all other instruments, agreement and documents,
whether now or hereafter existing, executed in connection with any of
the Indebtedness.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of all Indebtedness
within the limits set forth in the preceding section of this Guaranty.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation of this Guaranty
shall have been fully and finally paid and satisfied and all other obligations
of Guarantor under this Guaranty shall have been performed in full. If Guarantor
elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be delivered to Lender at the address of
Lender listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to advances or new
Indebtedness created after actual receipt by Lender of Guarantor's written
revocation. For this purpose and without limitation, the term "new Indebtedness"
does not include Indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes
absolute, liquidated, undetermined or due. This Guaranty will continue to bind
Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior
to receipt of Guarantor's written notice of revocation, including any
extensions, renewals, substitutions or modifications of the Indebtedness. All
renewals, extensions, substitutions, and modifications of the Indebtedness
granted after Guarantor's revocation, are contemplated under this Guaranty and,
specifically will not. be considered to be new Indebtedness. If the Guarantor is
an individual, this Guaranty shall bind the estate of the Guarantor as to
Indebtedness created both before and after the death or incapacity of Guarantor,
regardless of Lender's actual notice of Guarantor's death. Subject to the
foregoing, Guarantor's executor or administrator or other legal representative
may terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Release of any other Guarantor or
termination of any other guaranty of the Indebtedness shall not affect the
liability of Guarantor under this Guaranty. A revocation received by Lender from
any one or more Guarantors shall not affect the liability of any remaining
Guarantors under this Guaranty. It is anticipated that fluctuations may occur in
the aggregate amount of Indebtedness covered by this Guaranty, and it is
specifically acknowledged and agreed by Guarantor that reductions in the amount
of Indebtedness, even to zero dollars ($0.00), prior to written revocation of
this Guaranty by Guarantor shall not constitute a termination of this Guaranty.
This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and
assigns so long as any of the guaranteed Indebtedness remains unpaid and until
appropriate revocation of this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (a) prior to
revocation as set forth above, to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower, or
otherwise to extend additional credit to Borrower; (b) to alter, compromise,
renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the Indebtedness or any part of the Indebtedness,
including increases and decreases of the rate of interest on the Indebtedness;
extensions may be repeated and may be for longer than the original loan term;
(c) to take and hold security for the payment of this guaranty or the
Indebtedness and exchange, enforce, waive, fail or decide not to perfect, and
release any such security, with or without the substitution of new collateral;
(d) to release, substitute, agree not to xxx, or deal with any one or more of
Borrower's sureties, endorsers, or other Guarantors on any terms or in any
manner Lender may choose; (e) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (f) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may determine;
(g) to sell, transfer, assign, or grant participations in all or any part of the
Indebtedness; and (h) to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that: (a) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(b) this Guaranty is executed at Borrower's request and not at the request of
Lender; (c) Guarantor has not and will not, without the prior written consent of
Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of Guarantor's assets, or any interest
therein; (d) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; (e) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all
such financial information provided to Lender, shall be true and correct in all
material respects and fairly presents the financial condition of Guarantor as of
the dates thereof, and no material adverse change shall have occurred in the
financial condition of Guarantor since the date of the financial statements; and
(f) Guarantor has established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition. Guarantor
agrees to keep adequately informed from such means of any facts, events, or
circumstances which might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that, absent a request for information,
Lender shall have no obligation to disclose to Guarantor any information or
documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (a) to continue lending money or to extend other
credit to Borrower; (b) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (c) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (d) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (e) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower to comply with any other
applicable provisions of the Uniform Commercial Code; (f) to pursue any other
remedy within Lender's power; or (g) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (b) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (e) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (f) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
hereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty. In addition
to the waivers set forth above, Guarantor expressly waives, to the extent
permitted by Indiana law, all relief under any Indiana or other valuation and
appraisement laws.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff
against the monies, securities or other property of Guarantor given to Lender by
law, Lender shall have, with respect to Guarantor's obligations to Lender under
this Guaranty and to the extent permitted by law, a contractual possessory
security interest in and a right of setoff against, and Guarantor hereby
assigns, conveys, delivers, pledges and transfers to Lender all of Guarantor's
right, title and interest in and to, all deposits, moneys, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with
Lender, whether held in a general or special account or deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding however all XXX, Xxxxx, and trust accounts. Every such security
interest and right of setoff may be exercised without demand upon or notice to
Guarantor. No security interest or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender or by any neglect to exercise
such right of setoff or to enforce such security interest or by any delay in so
doing. Every right of setoff and security interest shall continue in fall force
and effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be prior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now/or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may now or hereafter
have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring to Lender fall payment in legal
tender of the Indebtedness. If Lender so requests any notes or credit agreements
now or hereafter evidencing any debts or obligations of Borrower to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and
shall be delivered to Lender. Guarantor agrees, and Lender hereby is authorized,
in the name of Guarantor, from time to time to execute and file financing
statements and continuation statements and to execute such other documents and
to take such other actions as Lender deems necessary or appropriate to perfect,
preserve and enforce its rights under this Guaranty.
NO OBLIGATION TO LENDER. The Guarantor agrees that no security now or later held
by the Lender for the payment of any Indebtedness, whether from the Borrower,
any guarantor, or otherwise, and whether in the nature of a security interest,
pledge, lien, assignment, setoff, suretyship, guaranty, indemnity, insurance or
otherwise, shall affect in any manner the unconditional obligation of the
Guarantor under this Guaranty, and the Lender, in its sole discretion, without
notice to the Guarantor under this Guaranty, and the Lender, in its sole
discretion, without notice to the Guarantor, may release, exchange, enforce and
otherwise deal with any security without affecting in any manner the
unconditional obligation of the Guarantor under this Guaranty. The undersigned
acknowledges and agrees that the Lender has no obligation to acquire or perfect
any lien or security interest in any assets, whether realty or personalty, to
secure payment of the Indebtedness, and the undersigned is not relying upon any
assets in which the Lender has or may have a lien or security interest for
payment of the Indebtedness.
SPECIFIC WAIVER OF SUBROGATION. Until the Indebtedness is irrevocably paid in
fall, the Guarantor waives any and all rights to be subrogated to the position
of the Lender or to have the benefit of any lien, security interest or other
guaranty now or later held by the Lender for the Indebtedness or to enforce any
remedy which the Lender now or later has against the Borrower or any other
person. Until the Indebtedness is irrevocably paid in full, the Guarantor shall
have no right or reimbursement, indemnity, contribution or other right of
recourse to or with respect to the Borrower or any other person. The Guarantor
agrees to indemnify and hold harmless the Lender from and against any and all
class actions, damages, costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred by the Lender in connection with the
Guarantor's exercise of any right of subrogation, contribution, indemnification
or recourse with respect to this Guaranty. The Lender has no duty to enforce or
protect any rights which the Guarantor may have against the Borrower or any
other person and the undersigned assumes full responsibility for enforcing and
protecting these rights.
Notwithstanding any provision of the preceding paragraph or anything else in
this Guaranty to the contrary, if the undersigned is or becomes an "insider" or
"affiliate" (as defined in Section 101 of the Federal Bankruptcy Code, as it may
be amended) with respect to the Borrower, then that the Guarantor irrevocably
and absolutely waives any and all rights of subrogation, contribution,
indemnification, recourse, reimbursement and any similar rights against the
Borrower (or any other guarantor) with respect to this Guaranty, whether such
rights arise under an express or implied contract or by operation of law. It is
the intention of the parties that the Guarantor shall not be (or be deemed to
be) a "creditor" (as defined in Section 101 of the Federal Bankruptcy Code, as
it may be amended) of the Borrower (or any other guarantor) by reason of the
existence of this Guaranty in the event that the Borrower becomes a debtor in
any proceeding under the Federal Bankruptcy Code. This waiver is given to induce
the Lender to enter into certain written contracts with the Borrower included in
the Indebtedness. The Guarantor warrant(s) and agree(s) that none of Lender's
rights, remedies or interests shall be directly or indirectly impaired because
of any of the Guarantor's status as an "insider" or "affiliate" of the Borrower,
and the Guarantor shall take any action, and shall execute any document, which
the Lender may request in order to effectuate this warranty to the Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendments. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Guaranty. No alteration of or amendment
to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted
by Lender in the State of Indiana. If there is a lawsuit, Guarantor
agrees upon Lender's request to submit to the jurisdiction of the
courts of Xxxxxx County, State of Indiana. This GUARANTY shall be
governed by the and construed in accordance with the laws of the State
of Indiana.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with enforcement of this
Guaranty. Lender may pay someone else to help enforce this Guaranty,
and Guarantor shall pay the costs and expenses of such enforcement.
Costs and expenses include Lender's attorneys' fees, paralegal fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees, paralegal fees and legal expenses for bankruptcy proceedings (and
including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional
fees as may be directed by the court. Any reference in this Guaranty to
attorney fees shall be deemed a reference to fees, charges, costs and
expenses of both in-house and outside counsel and paralegals, whether
or not a suit or action is instituted, and to court costs if a suit or
action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy,
administrative or probate proceeding or otherwise.
Notices. Except for revocation notices by Guarantor, all notices
required to be given by either party to the other under this Guaranty
shall be in writing and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier, or when
deposited in the United States mail, first class postage prepaid,
addressed to the party to whom the notice is to be given at the address
shown above or to such other addresses as either party may designate to
the other in writing. If there is more than one Guarantor, notice to
any Guarantor will constitute notice to all Guarantors. All revocation
notices by Guarantor shall be in writing and shall be effective only
upon delivery to Lender as provided above in the section titled
"DURATION OF GUARANTY". For notice purposes, Guarantor agrees to keep
Lender informed at all times of Guarantor's current address. The Lender
has no duty to give notice of revocation by any guarantor(s) to any
remaining guarantors.
Interpretation. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than
one Guarantor, the words "Borrower" and "Guarantor" respectively shall
mean all and any one or more of them. The words "Guarantor," Borrower,"
and "Lender" include the heirs, successors, assigns, and transferees of
each of them. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Guaranty. If a court of competent jurisdiction finds
any provisions of this Guaranty to be invalid or unenforceable as to
any person or circumstance, such finding shall not render the provision
invalid or unenforceable as to any other persons or circumstances, and
all provisions of this Guaranty in all other respects shall remain
valid and enforceable. If any one or more of Borrower or Guarantor are
corporations or partnerships, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, or agents acting or purporting to act on their behalf, and
any Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty. The
language in all parts of this Guaranty shall in all cases be construed
as a whole according to its fair meaning, strictly neither for nor
against either Lender or Guarantor and without implying a presumption
that the terms hereof shall be more strictly construed against one
party by reason of any rule of construction to the effect that a
document is to be construed more strictly against the party who
personally or through such party's agent, prepared the same, it being
agreed that representatives of both the Lender and the Guarantor have
participated in the preparation hereof
Waiver. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of any of the provisions of this Guaranty shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provisions of this
Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's
rights or of any of Guarantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender. The Guarantor
unconditionally and irrevocably waive(s) each and every defense and
setoff of any nature which, under principles of guaranty or otherwise,
would operate to impair or diminish in any way the obligation of the
Guarantor under this Guaranty, and acknowledges that each such waiver
is by this reference incorporated into each security agreement,
collateral assignment, pledge, lease agreement and/or other document
from the Guarantor now or later securing this Guaranty and/or the
Indebtedness, and acknowledge that as of the date of this Guaranty no
such defense or setoff exists. The Guarantor acknowledges that the
effectiveness of this guaranty is subject to no conditions of any kind.
AUTHORITY. The Guarantor person(s) executing and delivering this
Guaranty represent and certify that such person(s) are duly authorized
and fully empowered to execute and deliver this Guaranty on behalf of
Guarantor and that all necessary action for the execution of this
Guaranty has been taken and done and this Guaranty shall be fully
binding on the Guarantor.
THE GUARANTOR ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH GUARANTOR AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
ITS CHOICE, KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF,
OR IN ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS. EACH
UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF
THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION
AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL
CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED
"DURATION OF THE GUARANTY." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY
TO MAKE THIS GUARANTY EFFECTIVE.
THIS GUARANTY IS DATED MAY 17th 2000.
GUARANTOR:
Xxxxxxx X. Xxxxxx
COMMERCIAL GUARANTY
Borrower: DW Leasing Company, LLC Lender: Old National Bank
000 Xxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxx 00000
Guarantor: Xxxxx Xxxxxxxxx
-------------------------------------------------------------------------------
CONTINUING GUARANTY. For good and valuable consideration, XXXXX XXXXXXXXX
("Guarantor") absolutely and unconditionally guarantees and promises to pay to
OLD NATIONAL BANK, a national banking association ("Lender") or its order, on
demand, in legal tender of the United States of America, the indebtedness (as
that term is defined below) of DW LEASING COMPANY, LLC ("Borrower") to Lender on
the terms and conditions set forth in this Guaranty. The obligations of
Guarantor under this guaranty are continuing.
DEFINITIONS. The following words shall have the following meanings when used in
this Guaranty:
Borrower. The word "Borrower" means DW Leasing Company, LLC
Guarantor. The word "Guarantor" means Xxxxx Xxxxxxxxx.
Guaranty. The word "Guaranty" means this Guaranty made by Guarantor
for the benefit of Lender dated May 17th 2000.
Indebtedness. The word "Indebtedness" is used in its most comprehensive
sense and means and includes any and all of Borrower's liabilities,
obligations, leases, and indebtedness to Lender, now existing or
hereinafter incurred or created, including, without limitation, all
loans, advances, interest, costs, debts, overdraft indebtedness, credit
card indebtedness, lease obligations, including Master Lease dated
May____, 2000, other obligations, and liabilities of Borrower, or any
of them, and any present or future judgments against Borrower, or any,
of them; and whether any such Indebtedness is voluntarily or
involuntarily incurred, due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined; whether
Borrower may be liable individually or jointly with others, or
primarily or secondarily, or as guarantor or surety; whether recovery
on the Indebtedness may be or may become barred or unenforceable
against Borrower for any reason whatsoever; and whether the
Indebtedness arises from transactions which may be voidable on account
of infancy, insanity, ultra xxxxx, or otherwise.
Lender. The word "Lender" means Old National Bank, a national banking
association, its successors and assigns. Related Documents. The words
"Related Documents" mean and include without limitation all promissory
notes, credit agreements, loan agreements, lease agreements and
schedules and exhibits thereto, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, and all other
instruments, agreement and documents, whether now or hereafter
existing, executed in connection with any of the Indebtedness.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of all Indebtedness
within the limits set forth in the preceding section of this Guaranty.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation of this Guaranty
shall have been fully and finally paid and satisfied and all other obligations
of Guarantor under this Guaranty shall have been performed in full. If Guarantor
elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be delivered to Lender at the address of
Lender listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to advances or new
Indebtedness created after actual receipt by Lender of Guarantor's written
revocation. For this purpose and without limitation, the term "new Indebtedness"
does not include Indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes
absolute, liquidated, determined or due. This Guaranty will continue to bind
Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior
to receipt of Guarantor's written notice of revocation, including any
extensions, renewals, substitutions or modifications of the Indebtedness. All
renewals, extensions, substitutions, and modifications of the Indebtedness
granted after Guarantor's revocation, are contemplated under this Guaranty and,
specifically will not be considered to be new Indebtedness. If the Guarantor is
an individual, this Guaranty shall bind the estate of the Guarantor as to
Indebtedness created both before and after the death or incapacity of Guarantor,
regardless of Lender's actual notice of Guarantor's death. Subject to the
foregoing, Guarantor's executor or administrator or other legal representative
may terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Release of any other Guarantor or
termination of any other guaranty of the Indebtedness shall not affect the
liability of Guarantor under this Guaranty. A revocation received by Lender from
any one or more Guarantors shall not affect the liability of any remaining
Guarantors under this Guaranty. It is anticipated that fluctuations may occur in
the aggregate amount of Indebtedness covered by this Guaranty, and it is
specifically acknowledged and agreed by Guarantor that reductions in the amount
of Indebtedness, even to zero dollars ($0.00), prior to written revocation of
this Guaranty by Guarantor shall not constitute a termination of this Guaranty.
This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and
assigns so long as any of the guaranteed Indebtedness remains unpaid and until
appropriate revocation of this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (a) prior to
revocation as set forth above, to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower, or
otherwise to extend additional credit to Borrower; (b) to alter, compromise,
renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the Indebtedness or any part of the Indebtedness,
including increases and decreases of the rate of interest on the Indebtedness;
extensions may be repeated and may be for longer than the original loan term;
(c) to take and hold security for the payment of this guaranty or the
Indebtedness and exchange, enforce, waive, fail or decide not to perfect and
release any such security, with or without the substitution of new collateral;
(d) to release, substitute, agree not to xxx, or deal with any one or more of
Borrower's sureties, endorsers, or other Guarantors on any terms or in any
manner Lender may choose; (e) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (f) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trot as Lender in its discretion may determine;
(g) to sell, transfer, assign, or grant participations in all or any part of the
Indebtedness; and (h) to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that: (a) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(b) this Guaranty is executed at Borrower's request and not at the request of
Lender; (c) Guarantor has not and will not, without the prior written consent of
Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of Guarantor's assets, or any interest
therein; (d) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; (e) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all
such financial information provided to Lender, shall be true and correct in all
material respects and fairly presents the financial condition of Guarantor as of
the dates thereof, and no material adverse change shall have occurred in the
financial condition of Guarantor since the date of the financial statements; and
(1) Guarantor has established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition, Guarantor
agrees to keep adequately informed from such means of any facts, events, or
circumstances which might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that, absent a request for information,
Lender shall have no obligation to disclose to Guarantor any information or
documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (a) to continue lending money or to extend other
credit to Borrower; (b) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (c) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (d) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (e) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower to comply with any other
applicable provisions of the Uniform Commercial Code; (f) to pursue any other
remedy within Lender's power; or (g) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (b) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (e) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (f) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
hereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty. In addition
to the waivers set forth above, Guarantor expressly waives, to the extent
permitted by Indiana law, all relief under any Indiana or other valuation and
appraisement laws.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVER Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
LENDER"S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff
against the monies, securities or other property of Guarantor given to Lender by
law, Lender shall have, with respect to Guarantor's obligations to Lender under
this Guaranty and to the extent permitted by law, a contractual possessory
security interest in and a right of setoff against, and Guarantor hereby
assigns, conveys, delivers, pledges and transfers to Lender all of Guarantor's
right title and interest in and to, all deposits, moneys, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with
Lender, whether held in a general or special account or deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding however all XXX, Xxxxx, and trust accounts. Every such security
interest and right of setoff may be exercised without demand upon or notice to
Guarantor. No security interest or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender or by any neglect to exercise
such right of setoff or to enforce such security interest or by any delay in so
doing. Every right of setoff and security interest shall continue in full force
and effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be prior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now/or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may now or hereafter
have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring to Lender full payment in legal
tender of the Indebtedness. If Lender so requests any notes or credit agreements
now or hereafter evidencing any debts or obligations of Borrower to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and
shall be delivered to Lender. Guarantor agrees, and Lender hereby is authorized,
in the name of Guarantor, from time to time to execute and file financing
statements and continuation statements and to execute such other documents and
to take such other actions as Lender deems necessary or appropriate to perfect,
preserve and enforce its rights under this Guaranty.
NO OBLIGATION TO LENDER- The Guarantor agrees that no security now or later held
by the Lender for the payment of any Indebtedness, whether from the Borrower,
any guarantor, or otherwise, and whether in the nature of a security interest,
pledge, lien, assignment setoff, suretyship, guaranty, indemnity, insurance or
otherwise, shall affect in any manner the unconditional obligation of the
Guarantor under this Guaranty, and the Lender, in its sole discretion, without
notice to the Guarantor under this Guaranty, and the Lender, in its sole
discretion, without notice to the Guarantor, may release, exchange, enforce and
otherwise deal with any security without affecting in any manner the
unconditional obligation of the Guarantor under this Guaranty. The undersigned
acknowledges and agrees that the Lender has no obligation to acquire or perfect
any lion or security interest in any assets, whether realty or personalty, to
secure payment of the Indebtedness, and the undersigned is not relying upon any
assets in which the Lender has or may have a lien or security interest for
payment of the Indebtedness.
SPECIFIC WAIVER OF SUBROGATION. Until the Indebtedness is irrevocably paid in
full, the Guarantor waives any and all rights to be subrogated to the position
of the Lender or to have the benefit of any lien, security interest or other
guaranty now or later held by the Lender for the Indebtedness or to enforce any
remedy which the Lender now or later has against the Borrower or any other
person. Until the Indebtedness is irrevocably paid in full, the Guarantor shall
have no right or reimbursement, indemnity, contribution or other right of
recourse to or with respect to the Borrower or any other person. The Guarantor
agrees to indemnify and hold harmless the Lender from and against any and all
class actions, damages, costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred by the Lender in connection with the
Guarantor's exercise of any right of subrogation, contribution, indemnification
or recourse with respect to this Guaranty. The Lender has no duty to enforce or
protect any rights which the Guarantor may have against the Borrower or any
other person and the undersigned assumes full responsibility for enforcing and
protecting these rights.
Notwithstanding any provision of the preceding paragraph or anything else in
this Guaranty to the contrary, if the undersigned is or becomes an "insider" or
"affiliate" (as defined in Section 101 of the Federal Bankruptcy Code, as it may
be amended) with respect to the Borrower, then that the Guarantor irrevocably
and absolutely waives any and all rights of subrogation, contribution,
indemnification, recourse, reimbursement and any similar rights against the
Borrower (or any other guarantor) with respect to this Guaranty, whether such
rights arise under an express or implied contract or by operation of law. It is
the intention of the parties that the Guarantor shall not be (or be deemed to
be) a "creditor" (as defined in Section 101 of the Federal Bankruptcy Code, as
it may be amended) of the Borrower (or any other guarantor) by reason of the
existence of this Guaranty in the event that the Borrower becomes a debtor in
any proceeding under the Federal Bankruptcy Code. This waiver is given to induce
the Lender to enter into certain written contracts with the Borrower included in
the Indebtedness. The Guarantor warrant(s) and agree(s) that none of Lender's
rights, remedies or interests shall be directly or indirectly impaired because
of any of the Guarantor's status as an "insider" or "affiliate" of the Borrower,
and the Guarantor shall take any action, and shall execute any document, which
the Lender may request in order to effectuate this warranty to the Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendments. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Guaranty. No alteration of or amendment
to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted
by Lender in the State of Indiana. If there is a lawsuit, Guarantor
agrees upon Lender's request to submit to the jurisdiction of the
courts of Xxxxxx County, State of Indiana. This GUARANTY shall be
governed by the and construed in accordance with the laws of the State
of Indiana.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with enforcement of this
Guaranty. Lender may pay someone else to help enforce this Guaranty,
and Guarantor shall pay the costs and expenses of such enforcement.
Costs and expenses include Lender's attorneys' fees, paralegal fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees, paralegal fees and legal expenses for bankruptcy proceedings (and
including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional
fees as may be directed by the court. Any reference in this Guaranty to
attorney fees shall be deemed a reference to fees, charges, costs and
expenses of both in-house and outside counsel and paralegals, whether
or not a suit or action is instituted, and to court costs if a suit or
action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy,
administrative or probate proceeding or otherwise.
Notices. Except for revocation notices by Guarantor, all notices
required to be given by either party to the other under this Guaranty
shall be in writing and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier, or when
deposited in the United States mail, first class postage prepaid,
addressed to the party to whom the notice is to be given at the address
shown above or to such other addresses as either party may designate to
the other in writing. If there is more than one Guarantor, notice to
any Guarantor will constitute notice to all Guarantors. All revocation
notices by Guarantor shall be in writing and shall be effective only
upon delivery to Lender as provided above in the section titled
"DURATION OF GUARANTY". For notice purposes, Guarantor agrees to keep
Lender informed at all times of Guarantor's current address. The Leader
has no duty to give notice of revocation by any guarantor(s) to any
remaining guarantors.
Interpretation. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than
one Guarantor, the words "Borrower" and "Guarantor" respectively shall
mean all and any one or more of them. The words "Guarantor," Borrower,"
and "Lender" include the heirs, successors, assigns, and transferees of
each of them. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Guaranty. If a court of competent jurisdiction finds
any provisions of this Guaranty to be invalid or unenforceable as to
any person or circumstance, such finding shall not render the provision
invalid or unenforceable as to any other persons or circumstances, and
all provisions of this Guaranty in all other respects shall remain
valid and enforceable. If any one or more of Borrower or Guarantor are
corporations or partnerships, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, or agents acting or purporting to act on their behalf, and
any Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty. The
language in all parts of this Guaranty shall in all cases be construed
as a whole according to its fair meaning, strictly neither for nor
against either Lender or Guarantor and without implying a presumption
that the terms hereof shall be more strictly construed against one
party by reason of any rule of construction to the effect that a
document is to be construed more strictly against the party who
personally or through such party's agent, prepared the same, it being
agreed that representatives of both the Lender and the Guarantor have
participated in the preparation hereof
Waiver. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of any of the provisions of this Guaranty shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provisions of this
Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's
rights or of any of Guarantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender. The Guarantor
unconditionally and irrevocably waive(s) each and every defense and set
off of any nature which, under principles of guaranty or otherwise,
would operate to impair or diminish in any way the obligation of the
Guarantor under this Guaranty, and acknowledges that each such waiver
is by this reference incorporated into each security agreement,
collateral assignment, pledge, lease agreement and/or other document
from the Guarantor now or later securing this Guaranty and/or the
Indebtedness, and acknowledge that as of the date of this Guaranty no
such defense or setoff exists. The Guarantor acknowledges that the
effectiveness of this guaranty is subject to no conditions of any kind.
AUTHORITY. The Guarantor person(s) executing and delivering this Guaranty
represent and certify that such person(s) are duly authorized and fully
empowered to execute and deliver this Guaranty on behalf of Guarantor and that
all necessary action for the execution of this Guaranty has been taken and done
and this Guaranty shall be fully binding on the Guarantor. THE GUARANTOR
ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT
IT MAY BE WAIVED. EACH GUARANTOR, AFTER CONSULTING (OR HAVING HAD THE
OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY,
WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE
PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO THIS GUARANTY OR THE
INDEBTEDNESS. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL
TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF THE
GUARANTY." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE.
THIS GUARANTY IS DATED MAY 17, 2000.
GUARANTOR:
Xxxxx Xxxxxxxxx
COMMERCIAL GUARANTY
Borrower: DW Leasing Company, LLC Lender: Old National Bank
000 Xxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxx 00000
Guarantor: Pyramid Coach, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
--------------------------------------------------------------------------------
CONTINUING GUARANTY. For good and valuable consideration, PYRAMID COACH, INC.
("Guarantor") absolutely and unconditionally guarantees and promises to pay to
OLD NATIONAL BANK, a national banking association ("Lender") or its order, on
demand, in legal tender of the United States of America, the indebtedness (as
that term is defined below) of DW LEASING COMPANY, LLC ("Borrower") to Lender on
the terms and conditions set forth in this Guaranty. The obligations of
Guarantor under this guaranty are continuing.
DEFINITIONS. The following words shall have the following meanings when used in
this Guaranty:
Borrower. The word "Borrower" means DW Leasing Company, LLC
Guarantor. The word "Guarantor" means Pyramid Coach, Inc.
Guaranty. The word "Guaranty" means this Guaranty made by Guarantor
for the benefit of Lender dated May 17, 2000.
Indebtedness. The word "Indebtedness" is used in its most comprehensive
sense and means and includes any and all of Borrower's liabilities,
obligations, leases, and indebtedness to Lender, now existing or
hereinafter incurred or created, including, without limitation, all
loans, advances, interest, costs, debts, overdraft indebtedness, credit
card indebtedness, lease obligations, including Master Lease dated
May____, 2000, other obligations, and liabilities of Borrower, or any
of them, and any present or future judgments against Borrower, or any
of them; and whether any such Indebtedness is voluntarily or
involuntarily incurred, due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined; whether
Borrower may be liable individually or jointly with others, or
primarily or secondarily, or as guarantor or surety; whether recovery
on the Indebtedness may be or may become barred or unenforceable
against Borrower for any reason whatsoever; and whether the
Indebtedness arises from transactions which may be voidable on account
of infancy, insanity, ultra xxxxx, or otherwise.
Lender. The word "Lender" means Old National Bank, a national banking
association, its successors and assigns, Related Documents. The words
"Related Documents" mean and include without limitation all promissory
notes, credit agreements, loan agreements, lease agreements and
schedules and exhibits thereto, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, and all other
instruments, agreement and documents, whether now or hereafter
existing, executed in connection with any of the Indebtedness.
NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of all Indebtedness
within the limits set forth in the preceding section of this Guaranty.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness which subsequently arises or is
thereafter incurred or contracted.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all Indebtedness incurred or
contracted before receipt by Lender of any notice of revocation of this Guaranty
shall have been fully and finally paid and satisfied and all other obligations
of Guarantor under this Guaranty shall have been performed in full. If Guarantor
elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's
written notice of revocation must be delivered to Lender at the address of
Lender listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to advances or new
Indebtedness created after actual receipt by Lender of Guarantor's written
revocation. For this purpose and without limitation, the term "new Indebtedness"
does not include Indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes
absolute, liquidated, determined or due. This Guaranty will continue to bind
Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior
to receipt of Guarantor's written notice of revocation, including any
extensions, renewals, substitutions or modifications of the Indebtedness. All
renewals, extensions, substitutions, and modifications of the Indebtedness
granted after Guarantor's revocation, are contemplated under this Guaranty and,
specifically will not be considered to be new Indebtedness. If the Guarantor is
an individual, this Guaranty shall bind the estate of the Guarantor as to
Indebtedness created both before and after the death or incapacity of Guarantor,
regardless of Lender's actual notice of Guarantor's death. Subject to the
foregoing, Guarantor's executor or administrator or other legal representative
may terminate this Guaranty in the same manner in which Guarantor might have
terminated it and with the same effect. Release of any other Guarantor or
termination of any other guaranty of die Indebtedness shall not affect the
liability of Guarantor under this Guaranty. A revocation received by Lender from
any one or more Guarantors shall not affect the liability of any remaining
Guarantors under this Guaranty. It is anticipated that fluctuations may occur in
the aggregate amount of Indebtedness covered by this Guaranty, and it is
specifically acknowledged and agreed by Guarantor that reductions in the amount
of Indebtedness, even to zero dollars ($0.00), prior to written revocation of
this Guaranty by Guarantor shall not constitute a termination of this Guaranty.
This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and
assigns so long as any of the guaranteed Indebtedness remains unpaid and until
appropriate revocation of this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (a) prior to
revocation as set forth above, to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower, or
otherwise to extend additional credit to Borrower; (b) to alter, compromise,
renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the Indebtedness or any part of the Indebtedness,
including increases and decreases of the rate of interest on the Indebtedness;
extensions may be repeated and may be for longer than the original loan term;
(c) to take and hold security for the payment of this guaranty or the
Indebtedness and exchange, enforce, waive, fail, or decide not to perfect, and
release any such security, with or without the substitution of new collateral;
(d) to release, substitute, agree not to xxx, or deal with any one or more of
Borrower's sureties, endorsers, or other Guarantors on any terms or in any
manner Lender may choose; (e) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (f) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may determine;
(g) to sell, transfer, assign, or grant participations in all or any part of the
Indebtedness; and (h) to assign or transfer this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that: (a) no representations or agreements of any kind have been made to
Guarantor which would limit or qualify in any way the terms of this Guaranty;
(b) this Guaranty is executed at Borrower's request and not at the request of
Lender; (c) Guarantor has not and will not, without the prior written consent of
Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise
dispose of all or substantially all of Guarantor's assets, or any interest
herein; (d) Lender has made no representation to Guarantor as to the
creditworthiness of Borrower; (e) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all
such financial information provided to Lender, shall be true and correct in all
material respects and fairly presents the financial condition of Guarantor as of
the dates thereof, and no material adverse change shall have occurred in the
financial condition of Guarantor since the date of the financial statements; and
(f) Guarantor has established adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition. Guarantor
agrees to keep adequately informed from such means of any facts, events, or
circumstances which might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that, absent a request for information,
Lender shall have no obligation to disclose to Guarantor any information or
documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (a) to continue lending money or to extend other
credit to Borrower; (b) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the Indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the Indebtedness or in connection with the creation of new or
additional loans or obligations; (c) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (d) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (e) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower to comply with any other
applicable provisions of the Uniform Commercial Code; (f) to pursue any other
remedy within Lender's power; or (g) to commit any act or omission of any kind,
or at any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses arising by reason of (a)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (b) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the
basis of unjustified impairment of any collateral for the Indebtedness; (e) any
statute of limitations, if at any time any action or suit brought by Lender
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Lender which is not barred by any applicable statute of limitations; or (1) any
defenses given to guarantors at law or in equity other than actual payment and
performance of the Indebtedness. If payment is made by Borrower, whether
voluntarily or otherwise, or by any third party, on the Indebtedness and
hereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state
bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty. In addition
to the waivers set forth above, Guarantor expressly waives, to the extent
permitted by Indiana law, all relief under any Indiana or other valuation and
appraisement laws.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF In addition to all liens upon and rights of setoff
against the monies, securities or other property of Guarantor given to Lender by
law, Lender shall have, with respect to Guarantor's obligations to Lender under
this Guaranty and to the extent permitted by law, a contractual possessory
security interest in and a right of setoff against, and Guarantor hereby
assigns, conveys, delivers, pledges and transfers to Lender all of Guarantor's
right, title and interest in and to, all deposits, moneys, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with
Lender, whether held in a general or. special account or deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding however all XXX, Xxxxx, and trust accounts. Every such security
interest and right of setoff may be exercised without demand upon or notice to
Guarantor. No security interest or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender or by any neglect to exercise
such right of setoff or to enforce such security interest or by any delay in so
doing. Every right of setoff and security interest shall continue in full force
and effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTQR. Guarantor agrees that the
Indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be prior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby
expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now/or hereafter have against
Borrower. In the event of insolvency and consequent liquidation of the assets of
Borrower, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and
shall be first applied by Lender to the Indebtedness of Borrower to Lender.
Guarantor does hereby assign to Lender all claims which it may now or hereafter
have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring to Lender full payment in legal
tender of the Indebtedness. If Lender so requests any notes or credit agreements
now or hereafter evidencing any debts or obligations of Borrower to Guarantor
shall be marked with a legend that the same are subject to this Guaranty and
shall be delivered to Lender. Guarantor agrees, and Lender hereby is authorized,
in the name of Guarantor, from time to time to execute and file financing
statements and continuation statements and to execute such other documents and
to take such other actions as Lender deems necessary or appropriate to perfect,
preserve and enforce its rights under this Guaranty.
NO OBLIGATION TO LENDER. The Guarantor agrees that no security now or later held
by the Lender for the payment of any Indebtedness, whether from the Borrower,
any guarantor, or otherwise, and whether in the nature of a security interest,
pledge, lien, assignment, setoff, suretyship, guaranty, indemnity, insurance or
otherwise, shall affect in any manner the unconditional obligation of the
Guarantor under this Guaranty, and the Lender, in its sole discretion, without
notice to the Guarantor under this Guaranty, and the Lender, in its sole
discretion, without notice to the Guarantor, may release, exchange, enforce and
otherwise deal with any security without affecting in any manner the
unconditional obligation of the Guarantor under this Guaranty. The undersigned
acknowledges and agrees that the Lender has no obligation to acquire or perfect
any lien or security interest in any assets, whether realty or personalty, to
secure payment of the Indebtedness, and the undersigned is not relying upon any
assets in which the Lender has or may have a lien or security interest for
payment of the Indebtedness.
SPECIFIC WAIVER OF SUBROGATION. Until the Indebtedness is irrevocably paid in
full, the Guarantor waives any and all rights to be subrogated to the position
of the Lender or to have the benefit of any lien, security interest or other
guaranty now or later held by the Lender for the Indebtedness or to enforce any
remedy which the Lender now or later has against the Borrower or any other
person. Until the Indebtedness is irrevocably paid in full, the Guarantor shall
have no right or reimbursement, indemnity, contribution or other right of
recourse to or with respect to the Borrower or any other person. The Guarantor
agrees to indemnify and hold harmless the Lender from and against any and all
class actions, damages, costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred by the Lender in connection with the
Guarantor's exercise of any right of subrogation, contribution, indemnification
or recourse with respect to this Guaranty. The Lender has no duty to enforce or
protect any rights which the Guarantor may have against the Borrower or any
other person and the undersigned assumes full responsibility for enforcing and
protecting these rights.
Notwithstanding any provision of the preceding paragraph or anything else in
this Guaranty to the contrary, if the undersigned is or becomes an "insider" or
"affiliate" (as defined in Section 1011 of the Federal Bankruptcy Code, as it
may be amended) with respect to the Borrower, then that the Guarantor
irrevocably and absolutely waives any and all rights of subrogation,
contribution, indemnification, recourse, reimbursement and any similar rights
against the Borrower (or any other guarantor) with respect to this Guaranty,
whether such rights arise under an express or implied contract or by operation
of law. It is the intention of the parties that the Guarantor shall not be (or
be deemed to be) a "creditor" (as defined in Section 101 of the Federal
Bankruptcy Code, as it may be amended) of the Borrower (or any other guarantor)
by reason of the existence of this Guaranty in the event that the Borrower
becomes a debtor in any proceeding under the Federal Bankruptcy Code. This
waiver is given to induce the Lender to enter into certain written contracts
with the Borrower included in the Indebtedness. The Guarantor warrant(s) and
agree(s) that none of Lender's rights, remedies or interests shall be directly
or indirectly impaired because of any of the Guarantor's status as an "insider"
or "affiliate" of the Borrower, and the Guarantor shall take any action, and
shall execute any document, which the Lender may request in order to effectuate
this warranty to the Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendments. This Guaranty, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Guaranty. No alteration of or amendment
to this Guaranty shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted
by Lender in the State of Indiana. If there is a lawsuit, Guarantor
agrees upon Lender's request to submit to the jurisdiction of the
courts of Xxxxxx County, State of Indiana. This GUARANTY shall be
governed by the and construed in accordance with the laws of the State
of Indiana.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with enforcement of this
Guaranty. Lender may pay someone else to help enforce this Guaranty,
and Guarantor shall pay the costs and expenses of such enforcement.
Costs and expenses include Lender's attorneys' fees, paralegal fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees, paralegal fees and legal expenses for bankruptcy proceedings (and
including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional
fees as may be directed by the court. Any reference in this Guaranty to
attorney fees shall be deemed a reference to fees, charges, costs and
expenses of both in-house and outside counsel and paralegals, whether
or not a suit or action is instituted, and to court costs ifa suit or
action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy,
administrative probate proceeding or otherwise.
Notices. Except for revocation notices by Guarantor, all notices
required to be given by either party to the other under this Guaranty
shall be in writing and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier, or when
deposited in the United States mail, first class postage prepaid,
addressed to the party to whom the notice is to be given at the address
shown above or to such other addresses as either party may designate to
the other in writing. If there is more than one Guarantor, notice to
any Guarantor will constitute notice to all Guarantors. All revocation
notices by Guarantor shall be in writing and shall be effective only
upon delivery to Lender as provided above in the section titled
"DURATION OF GUARANTY". For notice purposes, Guarantor agrees to keep
Lender informed at all times of Guarantor's current address. The Lender
has no duty to give notice of revocation by any guarantor(s) to any
remaining guarantors.
Interpretation. In all cases where there is more than one Borrower or
Guarantor, then all words used in this Guaranty in the singular shall
be deemed to have been used in the plural where the context and
construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than
one Guarantor, the words "Borrower" and "Guarantor" respectively shall
mean all and any one or more of them. The words "Guarantor," Borrower,"
and "Lender" include the heirs, successors, assigns, and transferees of
each of them. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Guaranty. If a court of competent jurisdiction finds
any provisions of this Guaranty to be invalid or unenforceable as to
any person or circumstance, such finding shall not render the provision
invalid or unenforceable as to any other persons or circumstances, and
all provisions of this Guaranty in all other respects shall remain
valid and enforceable. If any one or more of Borrower or Guarantor are
corporations or partnerships, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors,
partners, or agents acting or purporting to act on their behalf, and
any Indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Guaranty. The
language in all parts of this Guaranty shall in all cases be construed
as a whole according to its fair meaning, strictly neither for nor
against either Lender or Guarantor and without implying a presumption
that the terms hereof shall be more strictly construed against one
party by reason of any rule of construction to the effect that a
document is to be construed more strictly against the party who
personally or through such party's agent, prepared the same, it being
agreed that representatives of both the Lender and the Guarantor have
participated in the preparation hereof.
Waiver. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of any of the provisions of this Guaranty shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict
compliance with that provision or any other provisions of this
Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's
rights or of any of Guarantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Guaranty, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender. The Guarantor
unconditionally and irrevocably waive(s) each and every defense and
setoff of any nature which, under principles of guaranty or otherwise,
would operate to impair or diminish in any way the obligation of the
Guarantor under this Guaranty, and acknowledges that each such waiver
is by this reference incorporated into each security agreement,
collateral assignment, pledge, lease agreement and/or other document
from the Guarantor now or later securing this Guaranty and/or the
Indebtedness, and acknowledge that as of the date of this Guaranty no
such defense or setoff exists. The Guarantor acknowledges that the
effectiveness of this guaranty is subject to no conditions of any kind.
AUTHORITY. The Guarantor person(s) executing and delivering this Guaranty
represent and certify that such person(s) are duly authorized and fully
empowered to execute and deliver this Guaranty on behalf of Guarantor and that
all necessary action for the execution of this Guaranty has been taken and done
and this Guaranty shall be fully binding on the Guarantor. THE GUARANTOR
ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT
IT MAY BE WAIVED. EACH GUARANTOR, AFTER CONSULTING (OR HAVING HAD THE
OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY,
WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE
PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO THIS GUARANTY OR THE
INDEBTEDNESS. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS. IN ADDITION, EACH GUARANTOR
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL
TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF THE
GUARANTY." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE.
THIS GUARANTY IS DATED MAY 17, 2000.
GUARANTOR:
Pyramid Coach, Inc.
By:
-----------------------------------------
(signature)
(printed name)
(Title)
COLLATERAL ASSIGNMENT
THIS COLLATERAL ASSIGNMENT, made this 17th day of May, 2000, by DW LEASING
COMIPANY, LLC, a Mississippi limited liability company (hereinafter referred to
as the "Borrower"), in favor of OLD NATIONAL BANK, a national banking
association ("Bank").
WITNESSETH THAT:
IN CONSIDERATION of certain financial accommodations (the "Leases") from
Bank to Borrower pursuant to the Master Lease Agreement by and between Bank and
Borrower ("Lease Agreement") of even date herewith and other documents executed
of even date herewith to secure said Loans (said Lease Agreement and all other
documents being hereinafter collectively referred to as the "Security
Documents"), each of which Security Documents is hereby incorporated herein,
Borrower hereby assigns, conveys and transfers unto Bank, its successors and
assigns, all of Borrower's right, title, and interest in, to, and under those
certain contracts, agreements and documents regarding the provision of
transportation services to third parties utilizing luxury motorcoaches Borrower
leases or owns from time to time, as more particularly described on Exhibit A
attached hereto and as such Exhibit A may be supplemented or amended from time
to time, and as disclosed from time to time to the Bank (collectively, the
"Agreements"). In furtherance of the foregoing, Borrower hereby agrees that this
Assignment is made upon the following terms, provisions, covenants, and
conditions:
1. Borrower represents and warrants that it has taken all necessary action
on its part to lawfully enter into the Agreements and to the best of its
knowledge, the Seller has no claim or other defense to the enforcement of the
Agreements. Borrower further represents and warrants that it is not aware of any
modifications of the Agreements or defaults either by the Borrower or the Seller
under the Agreements, and that no incident has occurred which with the giving of
notice or passage of time, or both, would constitute a default thereunder.
2. Borrower may continue to receive all of the benefits and exercise all of
the rights and privileges under the Agreements for so long as there shall not be
a continuing Event of Default under the Security Documents.
3. Neither this Assignment nor any action or actions on the part of Bank
shall constitute an assumption by Bank of any of the obligations of Borrower
under the Agreements and Borrower shall continue to be liable for all
obligations thereunder. Borrower does hereby. agree to protect, defend,
indemnify, and hold Bank harmless from and against any and all loss, costs,
liability, or expense (including, but not limited to, reasonable attorneys' fees
and expenses) which may result from any failure of Borrower to perform and
observe, at the time and in the manner therein provided, each of the covenants,
agreement and obligations of Borrower contained in the Agreements.
Notwithstanding anything to the contrary contained herein, this provision shall
survive termination of this Assignment.
4. Bank shall have the right at any time following the occurrence and
continuation past all applicable cure periods of an event of default under the
Agreements or the Lease Agreement to take in its name, or in the name of
Borrower or otherwise, such action as Bank may at any time and from time to time
reasonably determine to be necessary to cure any such event of default of
Borrower and to protect the rights of Bank as the assignee of the Agreements.
Bank shall incur no liability to Borrower on account of any commercially
reasonable action which may be taken by it or on its behalf in good faith
pursuant to the foregoing or otherwise hereunder, whether or not the same shall
prove to be improper, inadequate, or invalid, in whole or in part, and Borrower
agrees to protect, defend, indemnify, and hold Bank harmless from and against
any and all loss, cost, liability, or expense (including, but not limited to,
reasonable attorneys' fees and expenses) in connection with any such action or
actions, for so long as such action or actions shall not constitute gross
negligence or wanton or willful misconduct on the part of Bank.
5. Upon the occurrence and continuation of an Event of Default, as defined
in the Security Documents, Borrower hereby constitutes and appoints Bank as its
true and lawful attorney-in-fact in Borrower's name or in Bank's name, or
otherwise, to enforce all rights of Borrower under the Agreements and such power
of attorney shall be deemed to be coupled with an interest and irrevocable.
6. Borrower hereby covenants and agrees:
(a) To faithfully abide by, perform, and discharge each and every
obligation, covenant, and agreement of it contained in the Agreements,
unless the prior written consent of Bank shall first have been obtained; to
give prompt notice to Bank of any notice of default with respect to the
obligations, covenants, or agreements of Borrower or Seller contained in
the Agreements together with an accurate and complete copy of such notice;
and at the sole cost and expense of Borrower, to enforce and secure the
performance of each and every obligation, covenant, condition, and
agreement on the part of any third party to be kept or performed under the
Agreements.
(b) Without the prior written consent of Bank, Borrower shall not (i)
modify, amend, or in any way change the obligations of Borrower or any
third party under the Agreements or (ii) further assign or create any
further encumbrance or hypothecation of Borrower's interest under any of
the Agreements.
7. If at any time Borrower shall be in default in the due, prompt, or
complete observance or performance of any of the covenants, agreements or
obligations of Borrower contained in this Assignment and the Lease Agreement and
shall continue to be in default for Thirty (30) days after notice thereof from
Bank, the same shall, at the option of Bank, constitute an Event of Default
under the Security Documents and Bank shall have the right, at its option, to
declare all sums and obligations secured thereby to be immediately due and
payable. Upon the occurrence of an Event of Default under any of the Security
Documents, in addition to any other rights, powers, or remedies available to
Bank under the Security Documents or as provided or permitted by law, Bank may
exercise any and all of the rights, powers, and remedies under this Collateral
Assignment with respect to the Agreements or any part thereof to the fullest
extent permitted by law.
8. This Assignment and the agreements and undertakings of Borrower shall be
binding upon Borrower and its successors and assigns and shall inure to the
benefit of Bank and its successors and assigns.
9. The assignment and appointment of Bank as Borrower's attorney-in-fact
contained herein shall be terminated and of no force or effect upon payment in
full to Bank of all amounts due under the Agreement and Security Documents.
IN WITNESS WHEREOF, DW LEASING COMPANY, LLC, by its duly authorized
officers or managers, has caused this Collateral Assignment to be executed as of
the date and year first written above.
DW LEASING COMPANY, LLC
By: _____________________________
Printed: Xxxxxxx X. Xxxxxx
Title: Managing Member
Accepted at Indianapolis, Indiana:
OLD NATIONAL BANK
By: ________________________________
Printed: _____________________________
Title: ______________________________
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
Before me the undersigned, a Notary Public for Xxxxxx County, State of
Indiana, personally appeared Xxxxxxx X. Xxxxxx, the Managing Member, of DW
Leasing Company, LLC, a Mississippi limited liability company, who acknowledged
the execution of the foregoing instrument on behalf of said entity.
Signed and seated this 17th day of May, 2000.
------------------------------------
Signature
Xxxxx X. Xxxxx
Printed
My Commission Expires: My County of Residence is:
August 17, 2006 Xxxxxx
This Instrument Prepared By: Xxxxxxx X. Xxxxx, Attorney At Law
Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx, LLP
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000.
CONSENT AND CONFIRMATION OF GUARANTY
This Consent and Confirmation of Guaranty, effective as of the 6th day of
June, 2000 by Pyramid Coach, Inc., Xxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxx
(collectively referred to as "Guarantor"), the guarantors, jointly and
severally, of the indebtedness and obligations of DW Leasing Company, LLC
("Borrower").
W I T N E S S E T H:
WHEREAS, each Guarantor executed as of the 17th day of May, 2000, a
Commercial Guaranty ("Guaranty Agreement") to Old National Bank ("Bank")
guarantying the liabilities and obligations of the Borrower; and
WHEREAS, the Borrower seeks additional credit facilities from the Bank, as
contemplated by that certain Schedule 2 to the Master Lease Agreement of even
date herewith ("Amendment") between the Borrower and the Bank; and
WHEREAS, the term of the original Guaranty Agreement executed by the
Guarantor provides that the guaranty of the indebtedness and obligations of the
Borrower by the Guarantor shall be unconditional, unlimited and continuing in
nature.
NOW, THEREFORE, in consideration of the premises contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Consent and Acknowledgement. Guarantor consents to the execution, delivery
and performance by the Borrower of the Amendment and to the extension by
the Bank of additional credit facilities to the Borrower. Guarantor hereby
acknowledges that the Guaranty Agreement executed to guaranty the repayment
of the indebtedness incurred by the Borrower is of a continuing, unlimited
and unconditional nature; and, accordingly, will not be affected nor
limited by the additional incurrence of obligations by the Borrower
contemplated by the Amendment.
2. Confirmation. Guarantor hereby confirms that the Guaranty Agreement to
which it is a party remains a legal, valid and binding obligation upon it
and is enforceable in accordance with its terms. Guarantor has given no
notice to the Bank of its intention to discontinue the unconditional and
unlimited guaranty of the indebtedness and obligations of the Borrower to
the Bank pursuant to the terms of the Guaranty Agreement.
3. No Course of Dealing. The request for and the grant of the confirmations,
consents and waivers given herein shall not establish a course of conduct
or dealing between the Bank and the Guarantor and shall not impose any
obligation on the Bank to consult with, notify or obtain the consent of the
Guarantor in the future if the financial accommodations provided by the
Bank to the Borrower should be revised, amended or increased.
4. Wavier of Defenses and Claims. In consideration of the financial
accommodations provided to the Borrower by the Bank as contemplated by the
Amendment, Guarantor hereby waives, releases and forever discharges the
Bank from and against any and all rights, claims or causes of action
against the Bank arising out of the Bank's actions or inactions with
respect to the Master Lease Agreement, the Guaranty Agreement, or any
security interest, lien or collateral in connection therewith as well as
any and all rights of set off, defenses, claims, causes of action and any
other bar to the enforcement of the Master Lease Agreement and the Guaranty
Agreement which exist as of the date hereof.
IN WITNESS WHEREOF, the undersigned have hereunto executed this Consent and
Confirmation of Guaranty as of the date and year first written above.
PYRAMID COACH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Its: President
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
STATE OF INDIANA )
)
COUNTY OF XXXXXX )
Before me, the undersigned Notary Public in and for said County and State,
personally appeared Xxxxxxx X. Xxxxxx, the President of Pyramid Coach, Inc., who
acknowledged the execution of the above and foregoing Consent and Confirmation
of Guaranty on behalf of said corporation and who, having been first duly sworn
by me upon his oath, stated that all of the representations contained therein
are true to the best of his belief and knowledge.
Witness my hand and Notarial Seal this 6th date of June, 2000.
My County of Residence: /s/ Xxxxx X. Xxxxx
Xxxxxx Notary Public
My Commission Expires: Xxxxx X. Xxxxx
August 17, 2006 Printed
