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EXHIBIT 10.29
MASTER EQUIPMENT LEASE AGREEMENT
No. 07008
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This is a MASTER EQUIPMENT LEASE AGREEMENT BETWEEN NATIONAL CITY LEASING
CORPORATION, a Kentucky corporation, whose principal office is located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("NATIONAL CITY") and WABASH
NATIONAL FINANCE CORPORATION, an Indiana corporation, whose principal office
is located at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("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 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 2A-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 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,
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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 purchase 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 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 for reasons
other than the ownership or leasing of the Equipment in that
jurisdiction) 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
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,
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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 this Lease 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 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.
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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. 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 of the month 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 all 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 .
9. INSURANCE. Lessee shall maintain at all times on the Equipment, at
Lessee's expense, property damage, direct damage and public liability
insurance in such amounts, against such risks and in such form and with
such insurers as shall be satisfactory to National City. The required
insurance shall be specified in the applicable Schedule; provided, that
the amount of direct damage insurance shall not on any date be less than
the full replacement value of the Equipment as of
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such date. Each public liability insurance policy will name National City
as additional named insured as its interests may appear and each damage
insurance policy will name National City as loss payee, and each insurance
policy shall contain a clause requiring the insurer to give to National
City at least 30-days prior written notice of any alteration of the terms
or cancellation of such policy. Lessee shall furnish to National City a
certificate or other evidence satisfactory to National City that such
insurance coverage is in effect, 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 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.
11. EVENTS OF DEFAULT AND REMEDIES. An Event of Default shall occur hereunder
if Lessee:
(a) 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;
(b) shall fail to perform or observe any other covenant, agreement
or condition hereunder within 30 days of written notice thereof being
given by National City to Lessee, or if more than 30 days are
reasonably required, Lessee fails to commence to diligently perform
such obligations within such 30 days;
(c) 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 any time;
(d) shall become insolvent or make an assignment for the benefit of
creditors or consent to the appointment of a trustee or receiver,
(e) after 60 days if a trustee or receiver shall be appointed for
Lessee 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 and
such appointment or proceedings are not terminated within such time;
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(f) 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
(g) shall be in default under any other agreement at any time executed with
National City or any affiliate or subsidiary of National City Corporation
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. 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 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 day of the calendar month 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
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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 fluctating rate of interest which is publicly
announced from time to time by National City Bank, Clevalnd 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 fluctating 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 or 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 a waiver of any
other 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
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(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 to effect any such filing
(including the filing of any financing statements without the signature of
Lessee) and National City's expenses with respect thereto shall be payable
by Lessee on demand.
15. NOTICES. All notices and other communications required to be given to any
party hereunder shall be in writing and delivered or 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.
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 conferred upon a Lessee by Article 2A of the
UCC, including but not limited to Lessee's rights to
(i) cancel this Agreement;
(ii) repudiate this Agreement;
(iii) revoke acceptance of the Equipment;
(iv) recover damages from National City for any breaches of warranty
or for any other reason;
(v) claim a security interest in the Equipment in Lessee's
possession or control for any reason;
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(vi) deduct all or any part of any claimed damages resulting
from National City's default, if any, under this Lease;
(Vii) accept partial delivery of this Equipment;
(viii) recover any general, special, incidental or
consequential damages, for any reason whatsoever;
(ix) specific performance, replevin, detinue, sequestration,
claim and delivery of the like for any Equipment
identified to the Lease, or any substitutions or
replacements thereof; and
(c) any rights now or hereafter conferred by statute or otherwise
which may require National City to sell, lease or otherwise use
any Equipment in mitigation of Lessee's damages.
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 sixty (60) days
after the end of each quarterly period (othe than the fourth
quarterly period) for each fiscal year of leesee, the
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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 one hundred
twenty (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 pubic
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 its 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;
(9) 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;
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(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 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 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 ▇▇▇▇ 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; and
(q) the Equipment is personal property and neither real property nor a
fixture;
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.
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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 the Commonwealth of Kentucky. Lessee hereby
consents and subjects itself to the jurisdiction of every local, state and
federal court within the Commonwealth of Kentucky, 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 the Commonwealth of Kentucky, 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 National City commences any action to enforce or
define any right or obligation of Lessee under this Agreement or any
Schedule, Lessee shall pay to National City 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 National City.
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:___________.
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.
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Executed as of the 30th day of December, 1996.
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.
WABASH NATIONAL FINANCE CORPORATION
(an Indiana corporation)
By: [signature]
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Title:
Vice President
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NATIONAL CITY LEASING CORPORATION
By: [signature]
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Title:
Vice President
-----------------------------
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