MASTER EQUIPMENT SUBLEASE
Exhibit 10.13
EXECUTION COPY
THIS MASTER EQUIPMENT SUBLEASE (this “Sublease”) is made as of October 22, 2007 by and
between PEC EQUIPMENT COMPANY, LLC, a Delaware limited liability company (“Sublessor”), and
PATRIOT LEASING COMPANY LLC, a Delaware corporation (“Sublessee”). Sublessor and Sublessee
are each sometimes referred to herein as a “Party” and together as the “Parties”.
WHEREAS, Sublessor has heretofore entered into, and is currently the lessee under, the
equipment leases and equipment schedules thereto identified on Exhibit A hereto (such
leases and schedules, the “Prime Leases” and “Applicable Equipment Schedules”,
respectively; with the equipment identified on the Applicable Equipment Schedules, the
“Equipment”; and with the lessors of the Equipment under the Prime Leases and Applicable
Equipment Schedules, the “Prime Lessors”);
WHEREAS, Sublessee and Peabody Energy Corporation (“Peabody Energy”), the ultimate
parent corporation of Sublessor and Sublessee, have entered into that certain Separation Agreement,
Plan of Reorganization and Distribution dated as of October 22, 2007 (the “Separation
Agreement”) pursuant to which Peabody Energy will (i) contribute, or cause its subsidiaries to
contribute, the Patriot Assets to Sublessee and (ii) distribute all of the capital stock of
Sublessee to Peabody Energy’s shareholders (such transactions collectively, the
“Reorganization”);
WHEREAS, the Parties intend for the Equipment to be used by Sublessee following the completion
of the Reorganization in connection with Sublessee’s operation of the Patriot Business and,
therefore, wish to enter into this Sublease, whereby Sublessee will sublease the Equipment from
Sublessor; and
WHEREAS, capitalized terms used but not defined in this Sublease will have the meanings given
to them in the Separation Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and promises contained
herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Assignment and Novation. In order to complete the transition of the Patriot
Business from Peabody Energy to Sublessee as contemplated by the Separation Agreement, and as it is
the Parties’ intent that Sublessee succeed to and assume all obligations and rights of Sublessor
under the Prime Leases and the Applicable Equipment Schedules with respect to the Equipment,
Sublessee and Sublessor will use their commercially reasonable efforts to obtain from each Prime
Lessor a full assignment and novation of each Prime Lease and Applicable Equipment Schedule insofar
as they relate to the Equipment. To the extent the Parties are unable to obtain such assignment
and novation, and in any event from the Effective Time until the obtaining of such assignment and
novation, Sublessor hereby subleases to Sublessee, and
1
Sublessee hereby subleases from Sublessor, the Equipment on and subject to the terms and
conditions of this Sublease.
2. Sublease General Provisions and Rules of Construction.
(a) Prime Lease Terms. The text of the Prime Leases and Applicable Equipment Schedules are
hereby incorporated by reference, with the same force and effect as if such text were fully set
forth herein, subject to Section 2(b). Sublessee hereby assumes toward Sublessor all obligations
and responsibilities that Sublessor assumes toward Prime Lessor under the Prime Leases and
Applicable Equipment Schedules, and Sublessor will have the benefit of all rights and remedies
against Sublessee that each Prime Lessor has against Sublessor under the Prime Leases and
Applicable Equipment Schedules, in each case subject to Section 2(b). Whenever necessary to make
the text of any Prime Lease or Applicable Equipment Schedule applicable to this Sublease, all
references in such Prime Lease or Applicable Equipment Schedule that are intended to refer to the
lessor of the Equipment (regardless of whether or not “lessor” or any other title or identifying
term is used) will mean Sublessor, and all references in such Prime Lease and Applicable Equipment
Schedule that are intended to refer to the lessee of the Equipment (regardless of whether or not
“lessee” or any other title or identifying term is used) will mean Sublessee. Sublessor will
provide Sublessee a true, complete and correct copy of each Prime Lease and Applicable Equipment
Schedule.
(b) Order of Precedence. Notwithstanding Section 2(a) to the contrary, the terms and
conditions of the Prime Leases and Applicable Equipment Schedules as incorporated into this
Sublease are subject to the modifications thereto set forth herein. Furthermore, in the event of a
conflict or inconsistency between the terms and conditions of this Sublease and those of any Prime
Lease or Applicable Equipment Schedule, the terms and conditions of this Sublease will control.
(c) Relationship between Sublessee and Prime Lessors. This Sublease does not constitute an
assignment of any Prime Lease or Applicable Equipment Schedule, and there will be no privity of
contract between Sublessee and any Prime Lessor regarding this Sublease or any Prime Lease or
Applicable Equipment Schedule.
(d) Limitation of Sublessor’s Obligations. Except as otherwise specifically provided in this
Sublease, Sublessor will have no duty to perform any obligations of any Prime Lessor under any
Prime Lease or Applicable Equipment Schedule. Any and all representations, warranties, covenants,
obligations and responsibilities of a Prime Lessor under a Prime Lease or Applicable Equipment
Schedule are to be kept, provided and performed by such Prime Lessor and are not the responsibility
or obligation of Sublessor under this Sublease. In addition, no default, failure or delay by any
Prime Lessor under a Prime Lease or Applicable Equipment Schedule will affect this Sublease or
waive or defer the performance of any of Sublessee’s obligations hereunder, except to the extent
that such default, failure or delay excuses performance by Sublessor under the relevant Prime Lease
or Applicable Equipment Schedule. Sublessor’s sole and exclusive obligation in such case will be
to use commercially reasonable efforts to assist Sublessee in the enforcement of the relevant Prime
Lease or Applicable Equipment Schedule, provided that Sublessee pays or reimburses Sublessor upon
demand for all out of pocket expenses incurred by Sublessor in providing such assistance.
2
(e) Title to Equipment. Except as provided in Section 3(i), under no circumstances will
Sublessor hold or acquire title to the Equipment.
(f) Amendments and Termination. Without first obtaining Sublessee’s prior written consent,
Sublessor will not: (i) in any way amend, modify, supplement or terminate any Prime Lease or
Applicable Equipment Schedule; or (ii) take any action that would reasonably be expected to have a
material adverse effect on Sublessee and/or Sublessee’s right to use the Equipment for its intended
purpose in accordance with the terms and conditions of this Sublease.
(g) Notices and Information. To the extent certain provisions of a Prime Lease or Applicable
Equipment Schedule require that the Prime Lessor or Sublessor provide the other with notice within
a period of two (2) business days or less, for purposes of incorporating such requirement into this
Sublease, each party hereto will use commercially reasonable efforts to promptly relay such notice
to the other party, taking into consideration the notice requirement under such Prime Lease. In
all other situations under a Prime Lease or Applicable Equipment Schedule requiring the Prime
Lessor to provide notice or information to Sublessor within a period of time greater than two (2)
business days, for purposes of incorporating such requirement into this Sublease, such period of
time shall be extended by two (2) business days to account for the possibility that the Prime
Lessor may not provide such notice or information to Sublessor until the end of the specified
period, provided, however, that upon receipt of any notice given by the Prime Lessor, Sublessor
will use commercially reasonable efforts to promptly forward such notice to Sublessee. Likewise,
except for any provisions under a Prime Lease or Applicable Equipment Schedule requiring two (2)
business days’ or less notice, whenever a Prime Lease or Applicable Equipment Schedule requires
Sublessor to provide notice or information to the Prime Lessor within a specified period of time,
for purposes of incorporating such requirement into this Sublease, such period of time will be
shortened by two (2) business days to provide Sublessor sufficient time to provide the same notice
or information to the Prime Lessor under the Prime Lease or Applicable Equipment Schedule .
(h) Other Equipment Subject to Prime Leases. In addition to the Equipment, Sublessor may also
lease other equipment under the Prime Leases. Such other equipment will not be subleased to
Sublessee under, and is not otherwise subject to, this Sublease.
3. Sublease Terms and Conditions.
(a) Effective Time and Term. This Sublease will be effective as of the Effective Time and
will continue in effect, with respect to each piece of Equipment, until the expiration or
termination of the Applicable Equipment Schedule associated with such piece of Equipment.
(b) Rent. At least three (3) business days prior to the due date set forth in each Prime
Lease or Applicable Equipment Schedule, Sublessee will pay to Sublessor (A) all rental payments
relating to the Equipment (whether denominated “rent,” “additional rent” or otherwise) under such
Prime Lease or Applicable Equipment Schedule, and (B) all other amounts relating to the Equipment
that become due under such Prime Lease or Applicable Equipment Schedule (whether for taxes,
interest on past-due amounts, late fees or otherwise, but excluding interest, late fees and other
amounts imposed as a result of Sublessor’s breach of the Prime Lease or Applicable Equipment
Schedule that does not relate to Sublessee’s breach of this Sublease).
3
Once received from Sublessee, Sublessor will be responsible to pay such amounts to the Prime
Lessors.
(c) Possession and Use of Equipment.
(i) Sublessee will not, without Sublessor’s prior written consent or except as otherwise
permitted under Section 3(c)(ii), the relevant Prime Lease or the relevant Applicable Equipment
Schedule, part with possession or control of the Equipment or any part thereof or attempt to sell,
assign, pledge, or otherwise encumber or transfer any interest under this Sublease, any Prime Lease
or any Applicable Equipment Schedule. Sublessee will use, and will cause each Affiliate User (as
defined in Section 3(c)(ii)) to use, the Equipment in a reasonably careful and proper manner
consistent with industry practice and any applicable terms of each Prime Lease and Applicable
Equipment Schedule, in the conduct of the lawful business of Sublessee or such Affiliate User.
Notwithstanding the foregoing, Sublessee will assume all maintenance obligations set forth in each
Prime Lease and Applicable Equipment Schedule. Sublessee will comply, and will cause each
Affiliate User to comply, with all applicable laws, rules and regulations in its maintenance, use
and operation of the Equipment.
(ii) Sublessee’s Affiliates will be entitled to use the Equipment on the following conditions:
(A) such use is not prohibited by the relevant Prime Lease or Applicable Equipment Schedule; (B)
Sublessee notifies Sublessor of such use at least five (5) business days in advance, which notice
must also provide the name of the Affiliate and the location(s) at which the Equipment will be
stored and/or used; (C) Sublessee provides such additional information as Sublessor may reasonably
request; and (D) such use must be in a manner permitted by this Sublease. Each Affiliate of
Sublessee that uses Equipment in accordance with this Section 3(c)(ii) will be referred to herein
as an “Affiliate User”. With respect to each Affiliate User, the foregoing right of use
will terminate automatically when such entity is no longer an Affiliate of Sublessee.
(d) Inspection, Delivery and Acceptance of Equipment; Disclaimer of Warranties and Liability.
Sublessee acknowledges that (i) it has taken possession of the Equipment from Sublessor prior to
the date of this Sublease, (ii) it has inspected the Equipment prior to the date of this Sublease,
and (iii) it is satisfied with the condition of the Equipment. SUBLESSEE ACKNOWLEDGES AND AGREES
THAT THE SUBLESSOR HAS NOT MADE ANY (AND MAKES NO) REPRESENTATIONS OR WARRANTIES OF ANY NATURE
WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESSED OR IMPLIED, AS TO THE SUITABILITY, DURABILITY,
FITNESS FOR USE, MERCHANTABILITY, CONDITION, QUALITY OR OTHERWISE OF THE EQUIPMENT. If the
Equipment does not operate as represented or warranted by the manufacturer thereof, or is
unsatisfactory for any reason, Sublessee may make any claim on account thereof against the
manufacturer but will not make any such claim against Sublessor or the Prime Lessor. Sublessor’s
sole and exclusive obligation in such case will be to use commercially reasonable efforts to assist
Sublessee in making its claim against the manufacturer, provided that Sublessee pays or reimburses
Sublessor upon demand for all out of pocket expenses incurred by Sublessor in providing such
assistance.
EXCEPT TO THE EXTENT PROVIDED IN SECTION 7(a), SUBLESSOR WILL NOT BE LIABLE TO SUBLESSEE FOR
ANY LOSS, DAMAGE OR EXPENSE OF
4
ANY KIND OR NATURE RELATED TO OR CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT, THE USE OR
MAINTENANCE THEREOF, THE FAILURE OF OPERATION THEREOF, THE REPAIRS, SERVICE OR ADJUSTMENT THERETO
OR ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, ANY INTERRUPTION OF SERVICE OR LOSS OF USE OF THE
EQUIPMENT, OR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED.
(e) Repairs. To the extent required of Sublessor under any Prime Lease or Applicable
Equipment Schedule, Sublessee, at its own cost and expense, will keep the Equipment in good repair,
condition and working order (consistent with the condition of the Equipment at the Effective Time),
reasonable wear and tear excepted, and will furnish any and all parts (replacement or otherwise),
mechanisms and devices required to keep the Equipment in such condition. If Sublessee fails to make
any repairs required in this Section 3(e) then, in addition to any other remedies available to
Sublessor hereunder (including termination of this Sublease for Sublessee’s default), Sublessor may
pay for any such repairs, in which event the amount so paid by Sublessor will be immediately
payable by the Sublessee to Sublessor as additional rent hereunder.
(f) Loss and Damage. Sublessee hereby assumes and will bear the risk of loss, damage, theft
and destruction of the Equipment or any part thereof from and after the Effective Time (“Loss
or Damage”) from any cause whatsoever and whether or not insured against; provided that
Sublessee will not be responsible for any Loss or Damage for which Sublessor is not responsible as
lessee under any Prime Lease or Applicable Equipment Schedule. Sublessee will promptly notify
Sublessor of any Loss or Damage. In the event of Loss or Damage for which Sublessee is responsible
under this Section 3(f), Sublessee will comply with applicable requirements of the relevant Prime
Leases and Applicable Equipment Schedules.
(g) Insurance. During the term of each Applicable Equipment Schedule, Sublessee will at all
times, and at Sublessee’s sole cost and expense, keep the Equipment thereunder insured in
accordance with the requirements of the Prime Lease and such Applicable Equipment Schedule. This
obligation applies not only to policy types and limits, but also to related requirements (if any)
with respect to the provision of certificates of insurance, waivers of subrogation, insurer
qualifications and otherwise. Furthermore, if so required by a Prime Lease or Applicable Equipment
Schedule, Sublessee will cause the relevant Prime Lessor to be named as additional insured or loss
payee on the required insurance policies. Sublessee will pay the premiums therefor and deliver
certificates of such insurance to Sublessor upon request. Sublessee will use commercially
reasonable efforts to cause each insurer to agree, by endorsement upon the policy or policies
issued by it or by independent instrument furnished to Sublessor, that it will give Sublessor
thirty (30) days written notice of the effective date of any alteration, change, cancellation or
modification of such policy, or of the failure by Sublessee to pay all required premiums when due.
In the case of Sublessee’s failure to procure and maintain such insurance, Sublessor will have the
right, but not the obligation, to obtain such insurance. The amount so paid will be immediately due
and payable by Sublessee to Sublessor as additional rent hereunder. The proceeds of such insurance,
at the option of Sublessor, will be applied (i) toward the replacement, restoration or repair of
the Equipment, or (ii) toward payment of the obligations of Sublessee hereunder.
5
(h) Return of Equipment. Upon the expiration or termination of this Sublease with respect to
any piece of Equipment, Sublessee will, at its sole cost and expense, immediately surrender
possession of the Equipment to the Prime Lessor by delivering the Equipment to the Prime Lessor at
such place as is designated in the relevant Prime Lease or Applicable Equipment Schedule, or if no
such place is designated in the Prime Lease or Applicable Equipment Schedule, at the place
designated by the Prime Lessor. The Equipment so surrendered will be in the condition required by
the relevant Prime Lease and Applicable Equipment Schedule. Until the delivery of possession to
the Prime Lessor and acceptance by the Prime Lessor, Sublessee will continue to be liable for and
will pay rental at the rate being paid immediately prior to termination or expiration, and
Sublessee will in addition make all payments and keep all obligations and undertakings required of
Sublessee under any and all provisions of this Sublease as though such termination or expiration
had not occurred. Sublessee will be responsible for all costs associated with the return of the
Equipment to the Prime Lessor, as well as the cost of any repairs necessary to return the Equipment
to the Prime Lessor in the required condition, in each case in accordance with the Prime Lease and
Applicable Equipment Schedule.
(i) Purchase Option. If a Prime Lease or Applicable Equipment Schedule gives Sublessor the
option to purchase Equipment from the Prime Lessor, then the following provisions will apply:
(1) Sublessee will have the right to purchase such Equipment from Sublessor in accordance with
the following: (A) Sublessee must notify Sublessor in writing of its desire to purchase the
Equipment no later than two (2) business days prior to the end of the period, if any (as set forth
in the Prime Lease or Applicable Equipment Schedule), during which Sublessor must notify the Prime
Lessor of its intent to exercise such purchase option; (B) Sublessee (pursuant to authority granted
to Sublessee under Section 3(k)) will then have the right to negotiate directly with the Prime
Lessor to reach a tentative agreement on terms of purchase; (C) once terms of purchase have been
tentatively agreed upon between Sublessee and the Prime Lessor, Sublessee will then notify
Sublessor in writing of such purchase terms for Sublessor’s approval; and (D) if such purchase
terms are approved by Sublessor (which approval Sublessor will not unreasonably withhold), then (i)
Sublessor will purchase the Equipment from the Prime Lessor in accordance with such purchase terms
and (ii) Sublessor will immediately sell the Equipment to Sublessee, and Sublessee will purchase
such Equipment from Sublessor, on the same terms. Sublessee will pay, or reimburse Sublessor for,
all taxes, fees and other costs associated with Sublessor’s purchase of the Equipment from the
Prime Lessor, and Sublessee’s subsequent purchase of the same Equipment from Sublessor, pursuant to
this Section 3(i). In connection with any purchase of Equipment by Sublessee pursuant to this
Section 3(i), Sublessor will not be required to make any representations or warranties to Sublessee
concerning such Equipment other than a representation or warranty that Sublessor has not sold,
transferred or granted a security interest in the Equipment.
(2) If Sublessee elects not to purchase Equipment, then Sublessor will have the right to
purchase such Equipment from the Prime Lessor for Sublessor’s own account, without any obligation
to resell it to Sublessee.
(j) Audit and Inspection Rights. If a Prime Lease or Applicable Equipment Schedule gives the
Prime Lessor the right to conduct an inspection of the Equipment or an audit
6
or inspection of Sublessor’s facilities, processes, books, records or otherwise, for purposes
of incorporating such right into this Sublease, both Sublessor and Prime Lessor will be entitled to
enforce or exercise such audit and/or inspection rights against Sublessee.
(k) Agency. During the term of this Sublease, Sublessee will have authority to act as agent
of Sublessor for the following purposes (and for no other purposes): (1) to exercise Sublessor’s
right to purchase Equipment pursuant to a Prime Lease or Applicable Equipment Schedule, subject to
Section 3(i); (2) to discuss with a Prime Lessor issues regarding condition or quality of
Equipment; (3) to discuss with a Prime Lessor rent or other charges imposed by such Prime Lessor
and passed-through to Sublessee under Section 3(b); (4) to discuss with a Prime Lessor any default,
failure or delay on the part of such Prime Lessor under the relevant Prime Lease (insofar as such
default, failure or delay relates to the Equipment) or Applicable Equipment Schedule; and (5) such
other purposes as Sublessor may specify from time to time in a writing signed by Sublessor.
Notwithstanding the foregoing, Sublessee will not, without first obtaining Sublessor’s written
consent: (i) bind Sublessor to any obligation, (ii) make any representations on Sublessor’s
behalf, (iii) waive, release or compromise any of Sublessor’s rights or remedies, (iv) institute an
action or other proceeding on Sublessor’s behalf or threaten to do the same; or (v) sign any
contract, letter or other document on Sublessor’s behalf.
4. Termination of Existing Subleases. It is the intent of Sublessor and Sublessee
that all future use of the Equipment by Sublessee or its Affiliates be pursuant to either an
assignment of the relevant Prime Lease(s) (as described in Section 1) or this Sublease.
Accordingly, Sublessor and Sublessee hereby terminate each existing contract between them (other
than this Sublease) pursuant to which Sublessee has the right to use the Equipment. If Sublessor
and any other entity within the Patriot Group are currently parties to a contract pursuant to which
such entity has the right to use the Equipment, Sublessor will, and Sublessee will cause each such
Patriot Group entity to, terminate all such contracts. The contracts to be terminated pursuant to
this Section 4 may be subleases, consent to use agreements, or otherwise.
5. Default. The occurrence of any one or more of the following will constitute an
“Event of Default” hereunder:
(a) any breach by Sublessee of, or default by Sublessee under, any provision of this Sublease;
(b) any breach by Sublessee of, or default by Sublessee under, any provision of any Prime
Lease or Applicable Equipment Schedule required by this Sublease to be observed or performed by
Sublessee, or an “event of default” under any Prime Lease or Applicable Equipment Schedule
resulting from Sublessee’s acts or omissions;
(c) Sublessee (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors,
(iii) admits in writing its inability to pay its debts as they become due, (iv) files an
involuntary petition in bankruptcy, (v) is adjudicated as bankrupt or as insolvent, (vi) files a
petition seeking for itself any reorganization, arrangement, readjustment or similar relief under
any present or future statute, law, or regulation or files an answer admitting the material
allegations of a petition filed against it in any such proceeding or (vii) consents to or
acquiesces
7
in the appointment of a trustee, receiver or liquidator of it or all or any substantial part
of its assets or properties;
(d) within thirty (30) days after the commencement of any proceeding against Sublessee seeking
reorganization, arrangement, readjustment or similar relief under any present or future statute,
law or regulation, such proceedings will not have been dismissed; or
(e) within thirty (30) days after the appointment without Sublessee’s consent or acquiescence
of any trustee, receiver or liquidator of it or of all or any substantial part of its assets and
properties, such appointment will not be vacated.
6. Remedies. Upon the occurrence of any Event of Default, Sublessor may:
(a) proceed by appropriate court action or actions or other proceedings either at law or in
equity to enforce performance by Sublessee of any and all covenants of this Sublease and to recover
damages for the breach thereof;
(b) demand that Sublessee deliver the Equipment (or if the Event of Default relates only to a
particular piece(s) of Equipment, only such piece(s)) immediately to Sublessor at Sublessee’s
expense at such place as Sublessor may designate; or
(c) exercise such other remedies as would be available to the Prime Lessor against Sublessor,
as lessee, under the relevant Prime Lease and Applicable Equipment Schedule (including, without
limitation, any repossession or “self-help” remedies) if the act or omission by, or event
affecting, Sublessee that gave rise to the Event of Default under this Sublease were an act or
omission by, or an event affecting, Sublessor under the Prime Lease or Applicable Equipment
Schedule. For the avoidance of doubt, it is not a condition to Sublessor’s right to exercise the
remedies described in this paragraph (c) in respect of an Event of Default by Sublessee under this
Sublease that Sublessor also be in breach of, or in default under, the Prime Lease or Applicable
Equipment Schedule.
All remedies of Sublessor hereunder are cumulative, are in addition to any other remedies provided
for by law or in equity and may, to the extent permitted by law, be exercised concurrently or
separately, and the exercise of any one remedy will not be deemed to be an election of such remedy
or to preclude the exercise of any other remedy. No failure on the part of the Sublessor to
exercise, and no delay in exercising any right or remedy, will operate as a waiver thereof or
modify the terms of this Sublease; nor will any single or partial exercise by Sublessor of any
right or remedy preclude any other or further exercise of the same or any other right or remedy.
7. Indemnification.
(a) Subject to the last sentence of this Section 7(a), Sublessor will indemnify and hold
Sublessee and its Affiliates, successors and permitted assigns harmless from and against any and
all liabilities, losses, damages, penalties, claims, actions, suits, costs, and expenses
(including, without limitation, attorneys’ fees and expenses and court costs) of any kind and
nature whatsoever (collectively, “Claims and Losses”) which may be imposed on, incurred by
or asserted against them to the extent relating to, arising out of, or resulting from: (i)
Sublessor’s
8
breach of, or default under, the terms and conditions of any of the Prime Leases or Applicable
Equipment Schedules occurring prior to the Effective Time; (ii) Sublessor’s breach of, or default
under, the terms and conditions of any of the Prime Leases occurring after the Effective Time and
not involving or relating to the Equipment or an Applicable Equipment Schedule; or (iii)
Sublessor’s possession or use of the Equipment prior to the Effective Time. Notwithstanding the
foregoing, to the extent that any Claims and Losses are covered by both Sublessor’s indemnity in
this Section 7(a) and Sublessee’s indemnity in Section 7(b), they will be covered by Sublessee’s
indemnity in Section 7(b) and will be excluded from Sublessor’s indemnity in this Section 7(a).
(b) Sublessee will indemnify and hold Sublessor and its Affiliates, successors and permitted
assigns harmless from and against any and Claims and Losses which may be imposed on, incurred by or
asserted against them to the extent relating to, arising out of, or resulting from one or more of
the following: (i) Sublessor’s breach of, or default under, the terms and conditions of any of the
Prime Leases or Applicable Equipment Schedules as a result of a breach of this Sublease by
Sublessee; (ii) Sublessee’s breach of, or default under, the terms and conditions of this Sublease
or any of the Prime Leases or Applicable Equipment Schedules (as incorporated into this Sublease)
occurring after the Effective Time; (iii) the possession or use of the Equipment before the
Effective Time by Sublessee or any entity within the Patriot Group; (iv) the possession or use of
the Equipment after the Effective Time by Sublessee or any of its Affiliates (including any entity
within the Patriot Group); (v) any loss or theft of, or damage to, the Equipment after the
Effective Time; (vi) Sublessee’s failure to maintain or repair the Equipment in accordance with
this Sublease, any Prime Lease or any Applicable Equipment Schedule; (vi) the loss or reduction of
any depreciation deductions to which any Prime Lessor is entitled in respect of any of the
Equipment, but only if and to the extent that Sublessor is liable for such loss or reduction under
a Prime Lease or Applicable Equipment Schedule; and (vii) claims by a Prime Lessor against
Sublessor that arise out of, relate to or result from Sublessee’s exercise of its agency authority
pursuant to Section 3(k), unless the act of Sublessee giving rise to the claim was approved in
writing by Sublessor.
(c) The foregoing indemnification obligations will survive the expiration or termination, in
whole or in part, of this Sublease.
8. General Provisions.
(a) Entire Agreement. This Sublease contains the Parties’ entire understanding and agreement
with respect to the subject matter hereof. Any and all additional, conflicting or inconsistent
discussions, agreements, promises, representations and statements, if any, between the Parties or
their representatives that are not incorporated herein will be null and void and are merged into
this Sublease.
(b) Modification, Amendment and Waiver. Neither this Sublease, nor any part hereof, may be
modified or amended orally, by trade usage or by course of conduct or dealing, but only by and
pursuant to an instrument in writing duly executed and delivered by the Party sought to be charged
therewith. No covenant or condition of this Sublease can be waived except by the written consent of
the Party entitled to receive the benefit of such covenant or condition.
9
(c) Assignment. This Sublease and the rights and obligations of the Parties hereunder may not
be assigned or delegated (except by operation of law) and will be binding upon and will inure to
the benefit of the Parties and their successors and permitted assigns.
(d) Construction. This Sublease will not be construed more strictly against one Party than
against another merely by virtue of the fact that this Sublease may have been physically prepared
by one of the Parties, or such Party’s counsel, it being agreed that all Parties and their
respective counsel have mutually participated in the negotiation and preparation of this Sublease.
Unless the context of this Sublease clearly requires otherwise: (i) references to the plural
include the singular and vice versa; (ii) references to any person or entity include such person’s
or entity’s successors and assigns but, if applicable, only if such successors and assigns are
permitted by this Sublease; (iii) references to one gender include all genders; (iv) “including” is
not limiting; (v) “or” has the inclusive meaning represented by the phrase “and/or”; (vi) the words
“hereof’, “herein”, “hereby”, “hereunder” and similar terms in this Sublease refer to this Sublease
as a whole and not to any particular provision of this Sublease; (vii) article, Section,
subsection, clause, exhibit and schedule references are to this Sublease unless otherwise
specified; and (viii) reference to any agreement (including this Sublease), document or instrument
means such agreement, document or instrument as amended or modified and in effect from time in
accordance with the terms thereof and, if applicable, the terms hereof.
(e) Notices. All notices, consents, waivers and other communications under this Sublease must
be in writing and will be deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), or (c) when
received by the addressee, if sent by registered U.S. mail, return receipt requested, or a
nationally recognized overnight delivery service, in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and facsimile numbers as a Party may
designate by notice to the other Party(ies)):
To Sublessor:
PEC Equipment Company, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Treasurer
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Treasurer
To Sublessee:
Patriot Leasing Company LLC
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: General Counsel
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: General Counsel
(f) Governing Law. This Sublease will be governed by and construed under the laws of the
State of Missouri without regard to conflicts of laws principles.
10
(g) Choice of Forum and Jurisdiction; Costs. Any suit, action or proceeding against any Party
with respect to this Sublease, or any judgment entered by any court in respect thereof may be
brought in the United States District Court for the Eastern District of Missouri and the Parties
hereby submit to the exclusive jurisdiction of such court for the purpose of any such suit, action
or proceeding. Each Party hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Sublease brought in such court and hereby further irrevocably waives any claim that such suit,
action or proceeding brought in any such court has been brought in an inconvenient forum. If any
legal action or other proceeding is brought for the enforcement of this Sublease, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of the provisions of
this Sublease, the successful or prevailing Party will be entitled to recover reasonable attorneys’
fees and other costs incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled.
(h) Severability. If any provision of this Sublease is found by a court of competent
jurisdiction to be contrary to, prohibited by or invalid under any applicable law, such court may
modify such provision so, as modified, such provision will be enforceable and will to the maximum
extent possible comply with the apparent intent of the parties in drafting such provision. If no
such modification is possible, such provision will be deemed omitted, without invalidating the
remaining provisions hereof. No such modification or omission of a provision will in any way affect
or impair such provision in any other jurisdiction.
(i) Captions. The captions, headings or titles of the various Sections of this Sublease are
for convenience of reference only, and will not be deemed or construed to limit or expand the
substantive provisions of such Sections.
(j) Counterparts; Reproductions. This Sublease may be signed in any number of counterparts,
each of which is an original for all purposes, but all of which taken together constitute one and
the same contract, notwithstanding that all Parties are not signatories to the same counterpart.
Once signed, any reproduction of this Sublease made by reliable means (e.g., photocopy, facsimile,
PDF) will be considered an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK — SIGNATURES ON
FOLLOWING PAGE]
FOLLOWING PAGE]
11
IN WITNESS WHEREOF, the parties have executed this Sublease as of the day and year first above
written.
| SUBLESSOR: | SUBLESSEE: | |||||||||||||
| PEC EQUIPMENT COMPANY, LLC | PATRIOT LEASING COMPANY LLC | |||||||||||||
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |||||||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. | Name: | ▇▇▇▇▇▇ ▇▇▇▇ | |||||||||||
| Title: | Vice President and Treasurer | Title: | Vice President | |||||||||||