[NATIONAL CITY LOGO] EXHIBIT 10.17
Leasing Corporation
MASTER EQUIPMENT LEASE AGREEMENT
No.12313
This is a MASTER EQUIPMENT LEASE AGREEMENT between NATIONAL CITY LEASING
CORPORATION, a Kentucky corporation, whose principal office is located at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("NATIONAL CITY") and SAFE AUTO
INSURANCE COMPANY, a(n) Ohio corporation whose principal office is located at
0000 X Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000 ("LESSEE").
1. LEASE. National City agrees to lease to Lessee and Lessee agrees to lease
from National City, subject to the terms and conditions set forth herein, the
items of personal property (the "EQUIPMENT") described in each Equipment
Schedule (a "SCHEDULE") executed and delivered by the parties hereto from time
to time and incorporating the terms of this Master Equipment Lease Agreement by
reference therein (the "LEASE"). The terms "AGREEMENT", "HEREOF", "HEREIN", and
"HEREUNDER", when used in this Lease, shall mean this Lease, each Schedule and
any schedule thereto. This Agreement constitutes an agreement of lease and
nothing herein contained shall be construed as conveying to Lessee any right,
title, or interest in the Equipment except as lessee only. The parties agree
that this Lease is a "FINANCE LEASE" as defined in Section 2A-103(g) of the
Uniform Commercial Code ("UCC"). Lessee acknowledges either (a) that Lessee has
reviewed and approved any written Supply Contract (as defined in UCC Section
2/4-103(y)) covering the Equipment purchased from the Supplier (as defined in
UCC Section 2A-103(x)) thereof for lease to Lessee or (b) that National City has
informed or advised Lessee, in writing, either previously or by this Lease of
the following: (i) the identity of the Supplier; (ii) that Lessee may have
rights under the Supply Contract; and (iii) that Lessee may contact the Supplier
for a description of any such rights Lessee may have under the Supply Contract.
2. TERM; ACCEPTANCE; RENT; RETURN. The term of lease of each item of Equipment
shall commence on the date the Lessee accepts the Equipment (the "COMMENCEMENT
DATE") as evidenced by the Certificate of Delivery and Acceptance pertaining to
such Equipment and, unless earlier terminated pursuant to the provisions hereof,
shall continue for the term specified in each Schedule. Lessee's execution and
delivery of a Certificate of Delivery and Acceptance shall constitute Lessee's
irrevocable acceptance of the Equipment covered thereby for all purposes of this
Agreement. Lessee shall pay to National City (at National City's office
specified above, or as National City may otherwise designate), rent as specified
in each Schedule. Each date on which an installment of rent is payable is
hereinafter called a "RENT PAYMENT DATE". As to each Schedule, the first Rent
Payment Date shall be the Rent Payment Date set forth therein, with the
succeeding Rent Payment Dates as set forth therein. In addition, if applicable,
Lessee shall pay interim rent for the period between the Commencement Date and
the first Rent Payment Date, based on a 30-day month and the number of days
between the Commencement Date and the first Rent Payment Date. Lessee shall also
pay to National City, on demand, a late payment charge of 5% of each installment
of rent and any other amount owing hereunder which is not paid when due. Upon
180 days prior written notice, at the expiration or earlier termination of the
term of lease of each item of Equipment leased hereunder, Lessee shall at its
expense return such item to National City at such location as National City may
designate, in the condition required to be maintained by Section 7 hereof or as
required by Rider(s) attached to the applicable Schedule, if any, provided that
Lessee may elect an alternative disposition of the Equipment pursuant to Section
20 hereof.
3. NO WARRANTIES. Lessee acknowledges that: National City is not the
manufacturer of the Equipment nor the manufacturer's agent nor a dealer therein;
and NATIONAL CITY HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY
WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS,
CONDITION, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR A PARTICULAR
PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT OR
WORKMANSHIP IN THE EQUIPMENT, NOR ANY OTHER REPRESENTATION OR WARRANTY OF ANY
KIND WHATSOEVER. Lessee confirms that it has made (or will make) the selection
of each item of Equipment on the basis of its own judgment and expressly
disclaims reliance upon any statements, representations or warranties made by
National City. National City shall not be liable to Lessee for any matter
relating to the ordering, manufacture, purchase, delivery, assembly,
installation, testing, operation or expense of any kind caused by the Equipment.
National City shall not be liable for any consequential damages as that term is
used in UCC Section 2-719(3). National City hereby assigns to Lessee all rights
which National City has or may acquire against any manufacturer, supplier, or
contractor with respect to any warranty and representation relating to the
Equipment leased hereunder. Lessee acknowledges that Lessee has reviewed and
approved the Purchase Order, Supply Contract or Purchase Agreement covering the
Equipment purchased from the vendor or Supplier thereof for lease to Lessee.
4. EQUIPMENT TO REMAIN PERSONAL PROPERTY; LOCATION; IDENTIFICATION;
INSPECTION. Lessee represents that the Equipment shall be and at all times
remain separately identifiable personal property. Lessee shall, at its
expense, take such action as may be necessary to prevent any third party from
acquiring any right to or interest in the Equipment by virtue of the Equipment
being deemed to be real property or a part of other personal property and shall
indemnify National City against any loss which it may sustain by reason of
Lessee's failure to do so. Except for use of titled transportation equipment in
Lessee's normal course of business or maintenance or repairs permitted or
required in Section 7 hereof, the Equipment may not be removed from the location
specified in the Schedule pertaining thereto without National City's prior
written consent and Lessee's provision of reasonable documentation as requested
by National City. If requested by National City, Lessee shall attach to and
maintain on the Equipment a conspicuous plate or marking disclosing ownership
therein. National City or its representatives may, at reasonable times, inspect
the Equipment.
5. TAXES; INDEMNITY. Lessee agrees to pay, and to indemnify and hold National
City harmless from, all license fees, assessments, and sales, use, property,
excise and other taxes and charges (other than federal income taxes and taxes
imposed by any other jurisdiction which are based on, or measured by, the net
income of National City) imposed upon or with respect to (a) the Equipment or
any part thereof arising out of or in connection with the shipment of Equipment
or the possession, ownership, use or operation thereof, or (b) this Agreement or
the consummation of the transactions herein contemplated. National City shall
prepare and file any and all returns required in connection with the obligations
which Lessee has assumed under this section, except such filings as National
City may, at its option, direct Lessee to make. Each party shall upon request
furnish the other a copy of any such filing made or governmental invoice
received covering such obligations. Lessee further agrees to assume liability
[NATIONAL CITY(R) LOGO]
Leasing Corporation
for, and to indemnify and hold National City harmless against, all claims,
costs, expenses, damages and liabilities arising from or pertaining to the
manufacture, assembly, installation, ownership, use, possession and operation of
the Equipment, including, without limitation, latent and other defects, whether
or not discoverable by Lessee or any other person, any expense, liability or
loss directly or indirectly related to or arising out of any injury to any
person or tangible or intangible property, whether arising from negligence or
under any theory of strict or absolute liability or any other cause, or any
claim for patent or copyright infringement, together with all legal fees and
expenses reasonably incurred by National City in connection with any liability
asserted against it, whether groundless or otherwise. Lessee shall, and shall
cause all other persons, if any, operating or in possession of the Equipment, to
comply at all times and in all respects with all laws and regulations (whether
federal, state, or local and whether statutory, administrative, judicial, or
other) and with every lawful governmental order (whether administrative or
judicial) pertaining to the operation and use of the Equipment and, without
limiting the generality of the foregoing, will, and will cause each such person
to, (i) operate, and use the Equipment in compliance with all Environmental Laws
and handle all Hazardous Materials in compliance therewith, and (ii) comply with
and keep in full effect each approval, certification, license, permit, or other
authorization required by any Environmental Law for the conduct of any activity
upon or within the Equipment, and will indemnify National City from and against
any and all liabilities and any and all fees, costs and expenses arising out of
use of the Equipment.
"ENVIRONMENTAL LAW" means the Clean Air Act (42 USC Section 7401 et seq.),
Comprehensive Environmental Response, Compensation, and Liability Act (42 USC
Section 9601 et seq.), the Hazardous Material Transportation Act (49 USC Section
1801 et seq.), the Resource Conservation and Recovery Act (42 USC Section 6901
et seq.), the Federal Water Pollution Control Act (33 USC Section 1251 et seq.),
the Toxic Substances Control Act (15 USC Section 2601 et seq.) and the
Occupational Safety and Health Act (29 USC Section 651 et seq.), as such laws
have been or hereafter may be amended, and the regulations promulgated pursuant
thereto, and any and all similar present or future federal, state, or local laws
and the regulations promulgated pursuant thereto and "HAZARDOUS MATERIAL" means
any chemical, material, or substance which could be detrimental to animal
health, human health, vegetation, the environment or the Equipment which is, or
the disposal, manufacture, release, storage or transport of which is, or
exposure to which is, prohibited, restricted, or otherwise regulated under any
Environmental Law;
The agreements and indemnities contained in this section shall survive the
expiration or earlier termination of this Agreement.
6. ASSIGNMENTS; SUBLETTING; ENCUMBRANCES.
(a) LESSEE WILL NOT WITHOUT NATIONAL CITY'S PRIOR WRITTEN CONSENT, ASSIGN OR
TRANSFER THIS LEASE OR ANY INTEREST HEREIN, OR SUBLEASE OR RELINQUISH POSSESSION
OF, OR CREATE OR SUFFER TO EXIST ANY LIEN, MORTGAGE, SECURITY INTEREST OR
ENCUMBRANCE UPON THE EQUIPMENT.
(b) NATIONAL CITY MAY ASSIGN OR TRANSFER ANY OR ALL OF THIS AGREEMENT, THE
SCHEDULES OR NATIONAL CITY'S INTEREST IN THE EQUIPMENT WITHOUT NOTICE TO LESSEE.
ANY ASSIGNEE OF NATIONAL CITY SHALL HAVE ALL OF THE RIGHTS, BUT NONE OF THE
OBLIGATIONS, OF NATIONAL CITY UNDER THIS LEASE AND LESSEE AGREES THAT IT WILL
NOT ASSERT AGAINST ANY ASSIGNEE OF NATIONAL CITY ANY DEFENSE, COUNTERCLAIM, OR
OFFSET THAT LESSEE MAY HAVE AGAINST NATIONAL CITY(LESSEE RESERVES ITS RIGHTS TO
HAVE RECOURSE DIRECTLY AGAINST NATIONAL CITY ON ACCOUNT OF SUCH DEFENSE,
COUNTERCLAIM OR OFFSET). No assignment shall relieve National City of its
obligations, and no assignee shall be required to perform National City's
obligations under this Agreement or under any Schedule except as set forth
herein, it being the intent of National City to assign the benefits but not the
obligations hereunder, Lessee acknowledges that any assignment or transfer by
National City shall not materially change Lessee's duties or obligations under
this Lease nor materially increase the burdens or risks imposed on Lessee.
7. USE: REPAIRS; ETC. Lessee will cause the Equipment to be operated in
accordance with the manufacturer's or supplier's instructions or manuals by
competent and duly qualified personnel only and in compliance with all laws and
regulations and the insurance policies required to be maintained hereunder.
Lessee shall, at its own cost and expense, enter into and keep in force during
the term hereof a maintenance agreement with the manufacturer of the Equipment
or such other maintenance vendor as may be approved in writing by National City,
to maintain, service and repair the Equipment so as to keep it in as good
operating condition as it was when it first became subject to this Lease,
ordinary wear and tear excepted. National City shall have the right to approve
such maintenance agreement (which approval shall not be unreasonably withheld)
and shall be furnished with an executed copy thereof. Lessee shall, at its own
cost and expense, to the extent not covered by the aforesaid maintenance
agreement, maintain the Equipment in good operating condition and in compliance
with any applicable Rider(s) attached to the Schedule. Replacement parts shall
be free and clear of any mortgage, lien, charge, or encumbrance (and title
thereto shall vest in National City immediately upon installation, attachment or
incorporation of the same in, on or into such Unit). Upon termination of this
Lease, at the expiration of the Lease Term or otherwise, the Equipment shall be
returned to National City in as good operating condition as when it became
subject to this Lease, ordinary wear and tear excepted, and in such condition as
to be acceptable to the manufacturer for regular maintenance without any
remedial maintenance. Lessee will not alter or add to the Equipment without
National City's prior written consent. Lessee will remove any attachments,
alterations or accessories and return the Equipment to its original condition,
normal wear and tear excepted, at the termination of this Lease if National City
shall so demand. In the absence of such demand, all attachments, alterations or
accessories shall become part of the Equipment at the time of their attachment
thereto.
8. LOSS: DAMAGE. If National City determines that any Equipment is lost,
stolen, destroyed, damaged beyond repair or rendered permanently unfit for
normal use for any reason, or in the event of any condemnation, confiscation,
seizure, or requisition of title to or use of such Equipment (a "CASUALTY
OCCURRENCE"), Lessee will, at the option of National City, either (a) replace
the same with Equipment in good repair or (b) promptly pay to National City an
amount equal to the Rent in respect of the Equipment suffering a Casualty
Occurrence due and payable on the first Rent Payment Date following the date of
the Casualty Occurrence, plus a sum equal to the Stipulated Loss Value of such
Equipment determined as of the Rent Payment Date next following the date of the
Casualty Occurrence as set out in the appropriate Schedule, less any physical
damage insurance proceeds paid to National City as a result of said Casualty
Occurrence.
As of the Rent Payment Date next following the Casualty Occurrence, the Rent for
such Equipment shall cease to accrue and the term of this Lease as to such
Equipment shall terminate and (except in the case of loss, theft or complete
destruction of the Equipment) National City shall be entitled to recover
possession of the Equipment. National City hereby appoints Lessee its agent to
dispose of any Equipment suffering a Casualty Occurrence at the best price
obtainable on an "AS IS, WHERE IS" basis without recourse or warranties of any
kind. Provided that National City has been paid the Stipulated Loss Value and
ail Rent and other sums due and owing as to such Equipment, Lessee shall be
entitled to the net proceeds of such sale to the extent such proceeds do not
exceed the Stipulated Loss Value of such Equipment. Any excess shall be paid to
National City .
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[NATIONAL CITY(R) LOGO]
LEASING CORPORATION
9. INSURANCE. Lessee shall maintain at all times, at Lessee's expense,
insurance as specified in the applicable Schedule, including, but not limited
to: (a) "all risk" or broad form property insurance, as well as flood,
earthquake and boiler and machinery coverage, where applicable, as specified in
the applicable Schedule or full replacement value, whichever is greater, naming
National City as the loss payee; (b) comprehensive general liability insurance
as specified in the applicable Schedule, including coverage for
products/completed operations, broad contractor liability, broad contractual
liability, fire legal liability and personal injury, naming National City as an
additional insured as respects its interests under this Agreement; and (c)
umbrella liability coverage as provided in the applicable Schedule.
Lessee agrees that the insurance coverage required hereunder shall be placed
with insurers with at least an "A/IX" rating from A. M. Best or with such
insurers as shall be satisfactory to National City.
Each insurance policy shall contain a clause requiring the insurer to give to
National City at least 30-days prior written notice of any cancellation or
non-renewal of any policy, with 10 days prior written notice if cancellation is
due to non-payment of premiums and shall provide that no act, omission or breach
of warranty by Lessee under the terms of the policy shall give rise to any
defense against payment of the insurance proceeds to National City. Lessee shall
furnish to National City a certificate or other evidence satisfactory to
National City that such insurance coverage is in effect on the Commencement Date
of each Schedule (or, if progress payments and/or interim funding is provided
hereunder, on the date the applicable Progress Payment and Interim Funding Rider
is signed by Lessee), on an annual basis thereafter, provided, however, that
National City shall be under no duty to ascertain as to the existence or
adequacy of such insurance. National City makes no representation that the
minimum insurance coverage requirements in a Schedule will be adequate at all
times to satisfy Lessee's obligations hereunder. Lessee is fully responsible for
payment of all deductibles under such insurance polices and shall indemnify and
hold National City harmless from any deductible related to such insurance
polices. Lessee has the responsibility to provide additional insurance coverage
to maintain coverage hereunder in an amount adequate to fulfill its obligation
hereunder and is consistent with insurance coverage for similar risks in
Lessee's industry or line of business.
10. NONCANCELLABLE AGREEMENT; LESSEE'S OBLIGATIONS UNCONDITIONAL. This
Agreement cannot be canceled or terminated except as expressly provided herein.
Lessee agrees that its obligation to pay all rent and other amounts payable
hereunder and to perform its duties with respect hereto shall be absolute and
unconditional under any and all circumstances, including, without limitation,
the following: (a) any setoff, counterclaim, recoupment, defense or other right
which Lessee may have against National City, the manufacturer, or supplier of
any Equipment or anyone else for any reason whatsoever; (b) any defect in the
condition, design, title, operation or fitness for use, or any damage to or loss
of any Equipment; (c) any insolvency, reorganization or similar proceedings by
or against Lessee; or (d) any other event or circumstances whatsoever, whether
or not similar to the foregoing.
Each rent or other payment made by Lessee hereunder shall be final and Lessee
will not seek to recover all or any part of such payment from National City for
any reason whatsoever (except in case of overpayment).
11. EVENTS OF DEFAULT AND REMEDIES.
(a) An Event of Default shall occur hereunder if: (i) Lessee shall fail to make
any payment of rent or other amount owing hereunder when due and such failure
shall continue for a period of 10 days; (ii) Lessee shall fail to perform or
observe any other covenant, agreement or condition hereunder within 30 days of
the date Lessee becomes aware of such failure, or if more than 30 days are
reasonably required to cure such default, Lessee fails to commence to diligently
perform such obligations within such 30 days or discontinues such performance at
any time; (iii) Lessee shall fail to maintain insurance as required by Section 9
of this Agreement, (iv) Lessee shall make any representation or warranty to
National City herein or in any document or certificate furnished National City
in connection herewith which shall prove to be incorrect at the time made and on
the date of any Schedule entered into hereunder; (v) Lessee or any guarantor of
Lessee's obligations hereunder (a "GUARANTOR") shall become insolvent or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver, (vi) a trustee or receiver shall be appointed for Lessee or
a Guarantor or for a substantial part of its property or for the Equipment, or
reorganization, arrangement, insolvency, dissolution or liquidation proceedings
shall be instituted by or against Lessee or a Guarantor and such appointment or
proceedings are not terminated after 60 days; (vii) Lessee or a Guarantor
liquidates, dissolves, or enters into any consolidation, merger, or other
combination (unless Lessee is the surviving entity after such consolidation or
merger), or sells, leases or disposes of a substantial portion of its business
or assets, unless (x) the entity formed by the consolidation, or into which
Lessee or a Guarantor is merged or the person or entity that acquires all or
substantially all of Lessee's or a Guarantor's assets shall be organized under
the laws of the United States or any state thereof and (y) National City is
reasonably satisfied as to the creditworthiness of such person or entity and (z)
on or before the effective date thereof such person or entity assumes all the
obligations of Lessee or a Guarantor hereunder pursuant to an assignment and
assumption agreement in form and substance satisfactory to National City; (viii)
the current holders of 51% of the outstanding capital stock of a Lessee or a
Guarantor that is not a publicly traded corporation shall cease to be the
shareholders of Lessee or a Guarantor or cease to have the unconditional right
to elect a majority of Lessee's or a Guarantor's board of directors (unless
Lessee or a Guarantor shall have provided 30-days' prior written notice to
National City of the proposed disposition of stock and National City shall have
consented thereto in writing); (ix) an individual Guarantor shall become legally
incapacitated or die; (x) Lessee and/or a Guarantor shall suffer an adverse
material change in its financial condition from the date hereof, and as a result
thereof National City deems itself or any of its Equipment to be insecure; or
(xi) Lessee and/or a Guarantor shall be in default under any other agreement at
any time executed with National City or any affiliate or subsidiary of National
City Corporation.
(b) If an Event of Default occurs hereunder then National City may declare this
Agreement to be in default and may do one or more of the following with respect
to any or all of the Equipment as National City in its sole discretion may
elect, to the extent permitted by, and subject to compliance with any mandatory
requirements of applicable law then in effect: (i) terminate this Lease
effective immediately; or (ii) demand that Lessee, and Lessee shall at its
expense upon such demand, return the Equipment promptly to National City in the
manner and condition required by and otherwise in accordance with the provisions
of Section 2 hereof, as if the Equipment were being returned at the expiration
of its term of lease hereunder, or National City, at its option, may enter upon
the premises where the Equipment is located and take possession of and remove
the same by summary proceedings or otherwise, all without liability to Lessee
for damage to property or otherwise; or (iii) take possession of any or all
Equipment and remove the same without liability for injuries suffered through or
loss caused by such repossession; TO THE EXTENT PERMITTED BY LAW, LESSEE WAIVES
ANY AND ALL RIGHTS TO NOTICE AND JUDICIAL HEARING WITH RESPECT TO THE
REPOSSESSION OR ATTACHMENT OF THE EQUIPMENT BY NATIONAL CITY IN THE EVENT OF
DEFAULT HEREUNDER BY LESSEE; in the event National City proceeds pursuant to
this subsection (iii), National City may sell any or all Equipment at public or
private sale as is commercially reasonable given the existing conditions on an
"AS IS, WHERE IS" basis without recourse or warranties of any kind, or
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[NATIONAL CITY(R) LOGO]
Leasing Corporation
otherwise hold, use, operate, or keep idle such Equipment, as National City in
its sole discretion determines is commercially reasonable free and clear of all
rights of Lessee; or (iv) whether or not National City has exercised any other
right hereunder, by written notice to Lessee, cause Lessee to pay National City
(as liquidated damages for loss of a bargain and not as a penalty) on the date
specified in such notice an amount equal to the Rent due and payable on the
first Rent Payment Date following the date of the notice of Lease termination
plus a sum equal to the appropriate Stipulated Loss Value determined as of the
Rent Payment Date next following the date of the notice of Lease termination as
set out in the applicable Schedule; or (v) National City may exercise any other
right or remedy which may be available to it under applicable law or proceed by
appropriate court action to enforce the terms hereof or to recover damages for
the breach hereof.
In addition, Lessee shall pay National City all costs and expenses incurred by
National City as a result of Lessee's default hereunder or the termination
hereof, including, without limitation, reasonable attorney's fees and costs
arising out of repossession and disposal of the Equipment. Provided Lessee has
previously paid to National City the sum of the Stipulated Loss Value, Rent due
and owing and other costs and expenses incurred pursuant hereto, Lessee shall be
entitled to the net proceeds of any such sale, disposition or re-lease of the
Equipment to the extent they do not exceed the Stipulated Loss Value. Any excess
shall be retained by National City. To the extent the Equipment is re-leased by
National City, Lessee shall be credited the present value of the lease rental
stream at the discount rate of National City Prime as of the date the re-lease
is agreed to between the parties. Furthermore, to the extent the parties to this
Lease need to determine the present value of any moneys due under the Lease, the
parties agree that the discount rate shall be National City Prime. "NATIONAL
CITY PRIME" means the fluctuating rate of interest which is publicly announced
from time to time by National City Bank, Cleveland, Ohio, at its principal place
of business as being its "prime rate" or "base rate" thereafter in effect, with
each change in the Prime Rate automatically, immediately and without notice
changing the fluctuating interest rate thereafter applicable hereunder. The
Prime Rate is not necessarily the lowest rate of interest then available from
National City Bank on fluctuating rate loans.
In addition, Lessee shall continue to be liable for all indemnities under this
Lease and for all reasonable attorney fees and other costs and expenses
resulting from the termination hereof and/or the exercise of National City's
remedies, including placing any Equipment in the condition required by Section 7
hereof. Except as expressly provided above, no remedy referred to in this
section is exclusive, but each shall be cumulative and in addition to any other
remedy referred to herein or otherwise available to National City at law or
equity; and the exercise or beginning of exercise by National City of any one or
more of such remedies shall not preclude the simultaneous or later exercise by
National City of any other remedies. No express or implied waiver by National
City of an Event of Default shall constitute waiver of any other or subsequent
Event of Default. To the extent permitted by law, Lessee waives any rights now
or hereafter conferred by statute or otherwise which may require National City
to sell, re-lease or otherwise use the Equipment in mitigation of National
City's damages or which may otherwise limit or modify any of National City's
rights or remedies.
12. INDEMNIFICATION FOR TAX BENEFITS.
(a) National City, as the owner of the Equipment, shall be entitled to such
deductions, credits and other benefits as are provided by the Internal Revenue
Code of 1986, as amended, (hereinafter called the "CODE") to an owner of
property.
(b) Lessee agrees that neither it nor any entity controlled by it, in control of
it, or under common control with it, directly or indirectly, will at any time
take any action or file any returns or other documents inconsistent with the
foregoing and that each of such corporations will file such returns, take such
action and execute such documents as may be reasonable and necessary to
facilitate accomplishment of the intent thereof. Lessee agrees to copy or make
available for inspection and copying by National City such records as will
enable National City to determine whether it is entitled to the benefit of any
amortization or depreciation deduction which may be available from time to time
with respect to the Equipment.
(c) If National City, under any circumstances or for any reason whatsoever,
except for acts of National City or future changes in the Code, shall lose,
shall not have or shall lose the right to claim, or there shall be disallowed or
recaptured all or any portion of the federal tax depreciation deductions with
respect to any item of Equipment based on depreciation or National City's full
cost of such item of Equipment and computed on the basis of a method of
depreciation provided by the Code as National City in its complete discretion
may select, then Lessee agrees to pay National City upon demand an amount which,
after deduction of all taxes required to be paid by National City in respect to
the receipt thereof under the laws of any federal, state or local government or
taxing authority of the United States or of any taxing authority or governmental
authority of any foreign country, shall be equal to the sum of (i) an amount
equal to the additional income taxes paid or payable by National City in
consequence of the failure to obtain the benefit of a depreciation deduction,
and (ii) any interest and/or penalty which may be assessed in connection with
any of the foregoing.
(d) The provisions of this Section 12 shall survive the expiration or earlier
termination of this Agreement.
13. NATIONAL CITY'S RIGHTS TO PERFORM. If Lessee fails to make any payment
required to be made hereunder or fails to comply with any other agreements
contained herein, National City may make such payment or comply with such
agreement, and the amount of such payment and the reasonable expenses of
National City incurred in connection with such payment or compliance, shall be
payable by Lessee on demand.
14. FURTHER ASSURANCES. Lessee will, at its expense, promptly and duly execute
and deliver to National City such further documents and assurances and take such
further action as National City may from time to time request in order to more
effectively carry out the intent and purpose of this Agreement so as to
establish and protect the rights, interest and remedies intended to be created
in favor of National City hereunder, including, without limitation, the
execution and filing of financing statements and continuation statements with
respect to the Equipment and this Agreement. Lessee authorizes National City or
its agents or assigns to effect any such filing (including signing any financing
statements in the name of Lessee with the same force and effect as if signed by
Lessee or the filing of any financing statements without the signature of
Lessee, if permitted in the relevant jurisdiction) and National City's expenses
with respect thereto shall be payable by Lessee on demand. To the extent
National City deems it necessary to protect its interest or to the extent this
Lease may be construed as transferring ownership of the Equipment, Lessee grants
to National City a security interest in the Equipment.
15. NOTICES. All notices and other communications required to be given to any
party hereunder shall be by (i) writing and delivered by a recognized overnight
courier service, (ii) mailed by regular mail to such party at the address set
forth above or at such other address as it may designate to other parties or
(iii) by facsimile to a phone number provided by such party. All communications
mailed by regular mail shall be assumed to arrive within 3 business days after
the postmarked date.
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[NATIONAL CITY(R) LOGO]
Leasing Corporation
16. MISCELLANEOUS. Any provision of this Agreement which is unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability without invalidating the remaining provisions hereof, and
any such unenforceability in any jurisdiction shall not render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable
law, Lessee waives (a) any provision of law which renders any provision hereof
unenforceable in any respect; (b) any and all rights and remedies conferred upon
a Lessee by Article 2A of the UCC to revoke, reject or return the Equipment as
non-conforming, unsatisfactory, in breach of any warranty or otherwise, or to
cancel or repudiate the Lease or any related documents (provided, Lessee retains
all rights against the Equipment manufacturer or supplier).
Provided the Lessee is not in default under any provision of this Lease,
National City shall not interfere with Lessee's quiet enjoyment of the use of
the Equipment pursuant to the terms of this Agreement and National City shall
defend and protect such quiet enjoyment against all persons claiming by, through
or under National City. This Agreement and the provisions hereof shall inure to
the benefit of National City and its successors and assigns, and shall be
binding on and inure to the benefit of Lessee and its successors and assigns.
17. CONDITIONS PRECEDENT. The obligation of National City contained in Section
1 hereof shall be subject to the following conditions precedent: (a) there shall
have occurred no material adverse change in the business or the financial
condition of Lessee from the date hereof until the Commencement Date of any
Schedule; (b) Lessee shall have furnished National City with a certificate or
other evidence satisfactory to National City that insurance coverage as required
by Section 9 hereof is in effect as to the item of Equipment desired to be
leased; (c) upon the request of National City, Lessee shall furnish National
City opinions of counsel in form and substance acceptable to National City; (d)
unless specifically waived by National City, Lessee shall have furnished
National City waivers, in form and substance acceptable to National City, of all
rights in or to Equipment of any landlord or mortgagee of any real property upon
which the Equipment is or is to be situated; and (e) all other instruments and
legal and corporate proceedings in connection with the transactions contemplated
herein shall be satisfactory in form and substance to National City, and counsel
to National City shall have received copies of all documents which it may have
requested in connection therewith.
If any of the above conditions is not satisfied at the time Lessee submits any
Schedule, National City shall have no obligation under this Agreement to lease
the items of personal property covered thereby to Lessee.
18. FINANCIALS. Lessee agrees that for so long as any item of Equipment shall
be leased under this Agreement, Lessee will deliver or cause to be delivered to
National City (a) as soon as practicable, and in any event within 60 days after
the end of each quarterly period (other than the fourth quarterly period) for
each fiscal year of Lessee, the balance sheet of Lessee as of the end of such
quarterly period together with the related statements of income and expenses for
such quarterly period all in reasonable detail prepared in accordance with
generally accepted accounting principles consistently applied throughout the
period involved and certified by Lessee's chief financial officer; and (b) as
soon as practicable, and in any event within 120 days after the close of each
fiscal year of Lessee, the audited balance sheet of Lessee as of the end of such
fiscal year together with related statements of income and surplus for such
fiscal year all in reasonable detail, prepared in accordance with generally
accepted accounting principles consistently applied throughout the period
involved and certified by an independent public accountant acceptable to
National City.
19. REPRESENTATION, WARRANTIES AND COVENANTS. Lessee represents, warrants and
covenants that (a) if Lessee is a corporation, Lessee is duly organized and
validly existing in good standing under the laws of the state of its
incorporation and is duly qualified and licensed to do business as a foreign
corporation in good standing in those jurisdictions where such qualifications
are necessary to authorize Lessee to carry on its present business and
operations and to own its properties or to perform its obligations hereunder;
(b) if Lessee is a partnership, Lessee is duly organized and validly existing
under the partnership laws of its state of domicile and is duly authorized in
any foreign jurisdiction where such qualification is necessary to authorize
Lessee to carry on it present business and operations and to own its properties
and to perform its obligations hereunder; (c) if Lessee is a limited liability
company, Lessee is duly organized and validly existing under the laws of its
state of domicile and is duly authorized in any foreign jurisdiction where such
qualification is necessary to authorize Lessee to carry on it present business
and operations and to own its properties and to perform its obligations
hereunder; (d) Lessee has full power, authority and legal right to execute,
deliver and carry out as Lessee the terms and provisions of this Agreement and
any other documents in connection with this lease transaction; (e) if Lessee
is a corporation, Lessee's execution, delivery and performance of this
Agreement and the other documents and agreements referred to herein, and the
performance of its obligations under this Agreement have all been authorized by
all necessary corporate action, do not require the approval or consent of
stockholders, or of any trustee or holders of any indebtedness or obligation of
Lessee and will not violate any law, governmental rule, regulation or order
binding upon Lessee or any provision of any indenture, mortgage, contract or
other agreement to which Lessee is a party or by which it is bound or to which
it is subject, and will not violate any provision of the Certificate of
Incorporation, By-laws or any preferred stock agreement of Lessee; (f) if Lessee
is a partnership, Lessee's execution, delivery and performance of this Agreement
and the other documents and agreements referred to herein, and the performance
of its obligations under this Agreement have all been authorized by all
necessary partnership actions; (g) if Lessee is a limited liability company,
Lessee's execution, delivery and performance of this Agreement and the other
documents and agreements referred to herein, and the performance of its
obligations under this Agreement have all been authorized by all necessary
member action; (h) there are no pending or threatened investigations, actions or
proceedings before any court or administrative agency or other tribunal body,
which seek to question or set aside any of the transactions contemplated by this
Agreement, or which, if adversely determined, would materially affect the
condition, business or operation of Lessee; (i) Lessee is not in default in any
material manner in the payment or performance of any of its obligations or in
the performance of any contract, agreement or other instrument to which it is a
party or by which it or any of its assets may be bound; (j) the balance sheet of
Lessee as of the end of its most recent fiscal year and the related profit and
loss statement of Lessee for the fiscal year ended on said date, including the
related schedules and notes, together with the report of an independent
certified public accountant, heretofore delivered to National City, are all true
and correct and present fairly (x) the financial position of Lessee as at the
date of said balance sheet and (y) the results of the operations of Lessee for
said fiscal year; (k) all proceedings required to be taken by Lessee to
authorize the lease of the Equipment from National City and to protect National
City's interest in such Equipment, free and clear of all liens and encumbrances
whatsoever, have been taken; (l) Lessee has no significant liabilities
(contingent or otherwise) which are not disclosed by or reserved against the
financial statements referred to in (j) above; (m) all the financial statements
referred to in (j) above have been prepared in accordance with generally
accepted accounting principles and practices applied on a basis consistently
maintained throughout the period involved; (n) there has been no change which
would have a material adverse effect on the business or financial condition of
Lessee from that set forth in the balance sheet referred to
5
[NATIONAL CITY(R) LOGO]
Leasing Corporation
in (j) above; (o) no authorization, consent, approval, license, exemption of or
filing or registration with court, governmental unit or department, commission,
board, bureau, agency, instrumentality or the like is required or necessary for
the valid execution and delivery of the Agreement, any xxxx of sale and the
other documents and agreements referred to herein; (p) this Master Lease
Agreement, the Schedules and any accompanying documents, having been duly
authorized, executed and delivered to National City, constitute legal, valid and
binding obligations of Lessee, enforceable against Lessee in accordance with the
terms thereof except as such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditor's rights generally; (q) the
Equipment is personal property and neither real property nor a fixture and (r)
no item of Equipment is or will be used for the storage or transport of a
Hazardous Material.
The foregoing representations, warranties and covenants shall be deemed to be
made on the date hereof and again on the date Lessee executes each Schedule.
20. OPTIONS. National City and Lessee hereby agree that so long as no Event of
Default shall have occurred and be continuing Lessee may have such options as
are set forth in the applicable Schedule.
21. CHOICE OF LAW. The rights and liabilities of the parties under this
Agreement and each Schedule shall be interpreted, enforced and governed in all
respects by the laws of State of Ohio. Lessee hereby consents and subjects
itself to the jurisdiction of every local, state and federal court within State
of Ohio, agrees that except as otherwise required by law, Lessee shall never
file or maintain any action or proceeding in connection with this Agreement or
any Schedule in any court outside State of Ohio, waives personal service of any
and all process in connection therewith and consents to the service of such
process upon Lessee in the manner provided in the Agreement for giving notice.
LESSEE HEREBY KNOWINGLY AND VOLUNTARILY WAIVES JURY TRIAL IN RESPECT OF ANY
ACTION OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY SCHEDULE.
22. ATTORNEY'S FEES. If either party commences any action to enforce or define
any right or obligation of Lessee under this Agreement or any Schedule, the
unsuccessful party shall pay to the successful party all reasonable attorney's
fees and all other legal expenses (including for expert and other witnesses) for
preparation, negotiation, filing, maintenance, defense, settlement and appeal of
litigation paid or incurred by such party.
23. HEADINGS. The headings for the various sections of this Agreement are
intended solely for convenience of reference and are not intended nor shall they
be used to construe, explain, modify or place any meaning upon any provision
hereof.
24. MODIFICATION. Neither this Agreement nor any Schedule can be modified or
amended except by written agreement signed and currently dated by both
signatories hereto.
Lessee's Initials: /s/ AD
---------------
25. COUNTERPARTS; ORIGINALS. The parties may execute this Agreement and any
Schedule in any number of counterparts. All such counterparts of this Agreement
shall constitute one Agreement. One Copy of the Agreement and each Schedule
shall be designated as the "ORIGINAL and all other copies shall be "DUPLICATES".
Only the "ORIGINAL shall constitute chattel paper.
26. LESSEE'S ACKNOWLEDGMENT OF NO EXTRINSIC PROMISES. LESSEE AGREES THAT THERE
HAVE BEEN NO REPRESENTATIONS, AGREEMENTS, STATEMENTS, PROMISE, UNDERSTANDINGS OR
INDUCEMENTS (COLLECTIVELY IN THIS SECTION "PROMISES") MADE TO LESSEE BY OR ON
BEHALF OF NATIONAL CITY OR ANY THIRD PERSON IN CONNECTION WITH THIS AGREEMENT,
ANY SCHEDULE, ANY EQUIPMENT LEASED HEREUNDER, OR ANY PRESENT OR FUTURE
TRANSACTION OF WHICH THIS AGREEMENT AND/OR ANY SCHEDULE IS OR BECOMES A PART
OTHER THAN THOSE PROMISES, IF ANY, EXPRESSLY IN WORDS MADE IN THIS AGREEMENT AND
EACH SCHEDULE.
27. ENTIRE AGREEMENT. THIS AGREEMENT IS AN INTEGRATION AND EACH SCHEDULE IS AN
INTEGRATION AND RESPECTIVELY THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER OF EACH TRANSACTION EMBRACED THEREBY. ALL AGREEMENTS,
REPRESENTATIONS, PROMISES, INDUCEMENTS, STATEMENTS AND UNDERSTANDINGS, PRIOR TO
AND CONTEMPORANEOUS WITH THIS AGREEMENT AND PRIOR TO AND CONTEMPORANEOUS WITH
EACH SCHEDULE, WRITTEN OR ORAL, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER OF EACH SUCH TRANSACTION, IF ANY, ARE AND EACH IS SUPERSEDED BY THIS
AGREEMENT AND BY EACH SCHEDULE AS IT IS EXECUTED.
[Remainder of page intentionally left blank.]
[Signature page follows]
6
[NATIONAL CITY(R) LOGO]
Leasing Corporation
Executed as of the 25 day of July, 2002.
By execution hereof, the signer hereby certifies that he/she has read this
Agreement and that he/she is duly authorized to execute this Master Equipment
Lease Agreement on behalf of the Lessee.
SAFE AUTO INSURANCE COMPANY
(a(n) Ohio corporation)
By: /s/ Xxx Xxxxx
-------------------------------
Title: CEO
NATIONAL CITY LEASING CORPORATION
(a Kentucky corporation)
By: /s/ Xxxx X. Xxxxx
------------------------------
Title: VP
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