EXHIBIT 10.21
MASTER LEASE
AGREEMENT OF LEASE dated as of June 27 , 19 96 between Corporate Capital Services, Inc. (Lessor), having a place of business
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at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, and Brake Headquarters, U.S.A. Inc. ("Lessee"),
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Address City State Zip Code
having a place of business at ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇,
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Address City State Zip Code
Lessee wants from time to time to lease from Lessor personal property to be
described in one or more schedules of leased equipment ("Schedule"). Lessor is
willing to lease such personal property to Lessee at the rent, for the term and
upon the conditions provided hereinafter. Any present and future Schedule
executed by Lessor and Lessee which is identified as being part of this Lease,
shall be deemed to incorporate by reference all the terms and conditions of this
Lease except as provided in any such Schedule. Each Schedule shall constitute a
separate and independent lease and contractual obligation of Lessee. The term
"Lease" when used herein shall refer to an individual Schedule which
incorporates this Master Lease.
1. EQUIPMENT LEASED AND TERM.
This Lease shall cover such personal property as is described in any Schedule
executed by or pursuant to the authority of Lessee, accepted by Lessor in
writing and identified as a part of this Lease (which personal property with all
replacement parts, additions, repairs, accessions and accessories incorporated
therein and/or affixed thereto is hereinafter call the "Equipment"). Lessor
hereby leases to Lessee and Lessee hereby hires and takes from Lessor, upon and
subject to the covenants and conditions hereinafter contained, the Equipment
described in any Schedule. NOT WITHSTANDING THE COMMENCEMENT DATE OF THE TERM OF
THIS LEASE WITH RESPECT TO ANY ITEM OF EQUIPMENT, LESSEE AGREES THAT ALL RISK OF
LOSS OF THE EQUIPMENT SHALL BE ON THE LESSEE FROM AND AFTER SHIPMENT OF THE
EQUIPMENT TO LESSEE BY THE SELLER THEREOF, F.O.B. seller's point of shipment,
the date of such shipment being hereinafter called "date of shipment". The term
of this Lease with respect to any item of Equipment shall be for the period as
set forth in the Schedule. Lessee authority to insert the actual commencement
date and date of first monthly rental for any item of Equipment in any Schedule
as well as such items as serial numbers if such are not already inserted when
such Schedule is executed by Lessee. "Seller" as used in this Lease means the
supplier from which Lessor acquired any item of Equipment.
2. RENT.
The aggregate rent payable with respect to each item of Equipment shall be in
the amount shown with respect to such item on the Schedule. Lessee shall pay to
Lessor the aggregate rental for each item of Equipment for the full period and
term for which the Equipment is leased, such rental to be payable at such times
and in such amounts for each item of Equipment as shown in the applicable
Schedule.
All rent shall be paid at Lessor's place of business shown above, or such other
place as Lessor may designate by written notice to the Lessee. ALL RENTS SHALL
BE PAID WITHOUT NOTICE OR DEMAND AND WITHOUT ABATEMENT, DEDUCTION OR SET OFF OF
ANY AMOUNT WHATSOEVER. The operation and use of the Equipment shall be at the
risk of Lessee and not of Lessor and the obligation of Lessee to pay rent
hereunder shall be unconditional.
3. DESTRUCTION OF EQUIPMENT.
If any Equipment is lost, totally destroyed, damaged beyond repair or taken by
governmental action, the liability of the Lessee to pay rent therefor may be
discharged by paying to Lessor all the rent due thereon, plus all the rent to
become due thereon less the net amount of the recovery, if any, actually
received by Lessor from insurance or otherwise for such loss or damage.
In the event of partial destruction of any Equipment, the rent due and to become
due thereon shall not ▇▇▇▇▇ and Lessee shall, at its own expense, cause such
Equipment to be restored to usable condition, but Lessor shall, upon receiving
satisfactory evidence of such restoration, promptly pay Lessee the proceeds of
any insurance or compensation received by reason of such damage. If the
estimated cost for restoring such Equipment exceeds 50% of the unmatured rent
therefor, such Equipment shall, on notice by Lessee, be deemed, for all purposes
hereof, to be totally destroyed and the liability of the Lessee to pay rent
therefor shall be discharged if Lessee pays the rent described in the preceding
paragraph of this Section.
Lessor shall not be obligated to undertake by litigation or otherwise the
collection of any claim against any person for loss or damage to the Equipment.
Except as expressly provided above, the total or partial destruction of any
Equipment or the total or partial loss of use or possession thereof to Lessee
shall not release or relieve Lessee from the duty to pay the rent herein
provided.
4. NO WARRANTIES BY LESSOR; MAINTENANCE AND COMPLIANCE WITH LAWS.
Lessor, not being the manufacturer of the Equipment, nor manufacturer's agent,
MAKES NO WARRANTY OR REPRESENTATION, ETHER EXPRESS OR IMPLIED, AS TO THE
FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY OR
PERFORMANCE OF THE EQUIPMENT OR OF THE MATERIAL OR WORKMANSHIP THEREOF, IT BEING
AGREED THAT THE EQUIPMENT IS LEASED "AS IS" AND THAT ALL SUCH RISKS, AS BETWEEN
LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE RISK AND EXPENSE,
Lessee accordingly agrees not to assert any claim whatsoever against Lessor
based thereon. Lessee further agrees, regardless of cause, not to assert any
claim whatsoever against Lessor for loss of anticipatory profits or
consequential damages. Lessor shall have no obligation to install, erect, test,
adjust or service the Equipment. Lessee shall look to the manufacturer and/or
Seller for any claims related to the Equipment. Lessor hereby acknowledges that
any manufacturer's and/or Seller's warranties are for the benefit of both Lessor
and Lessee.
4. NO WARRANTIES BY LESSOR; MAINTENANCE AND COMPLIANCE WITH LAWS (CONTINUED)
No oral agreement, guaranty, promise, condition, representation or warranty
shall be binding; all prior conversations, agreements or representations related
hereto and/or to the Equipment are integrated herein, and no modification hereof
shall be binding unless in writing signed by Lessor. Lessee agrees, at its own
cost and expense:
(a) to pay all shipping charges and other expenses incurred in connection with
the shipment of the Equipment by the Seller to Lessee;
(b) to pay all charges and expenses in connection with the operation of each
item of Equipment;
(c) to comply with all governmental laws, ordinances, regulations, requirements
and rules with respect to the use, maintenance and operation of the
Equipment; and
(d) to make all repairs and replacements required to be made to maintain the
Equipment in good condition, reasonable wear and tear excepted.
5. INSURANCE.
Lessee shall maintain at all times on the Equipment, at its expense, all-risk
physical damage insurance and comprehensive general and/or automobile (as
appropriate) liability insurance (covering bodily injury and property damage
exposures including, but not limited to, contractual liability and products
liability) in such amounts, against such risks, in such form and with such
insurers as shall be satisfactory to Lessor; provided, that the amount of
all-risk physical damage insurance shall not on any date be less than the
greater of the full replacement value or a sum equal to all the rent due
thereon, plus all rent to become due. Each physical damage insurance policy will
name Lessor as loss payee. Each liability insurance policy will name Lessor as
additional insured. Each insurance policy will also require that the insurer
give Lessor at least thirty (30) days prior written notice of any alteration in
or cancellation of the terms of such policy and require that Lessor's interests
be continued insured regardless of any breach or violation by Lessee or others
of any warranties, declarations or conditions contained in such insurance
policy. In no event shall Lessor be responsible for premiums, warranties, or
representations to any insurer or any agent thereof. Lessee shall furnish to
Lessor a certificate or other evidence satisfactory to Lessor that such
insurance coverage is in effect, but Lessor shall be under no duty to ascertain
the existence or adequacy of such insurance. The insurance maintained by Lessee
shall be primary without any right of contribution from insurance which may be
maintained by Lessor. Lessee shall be liable for all deductible portions of all
required insurance. Lessor may, at its own expense, for its own benefit,
purchase insurance in excess of that required under this Lease Agreement.
Physical damage insurance proceeds shall be applied as set forth in Section 6.
6. LOSS AND DAMAGE.
Lessee agrees to assume and bear the entire risk of any partial or complete loss
with respect to the Equipment from any and every cause whatsoever including
theft, loss, damage, destruction or governmental taking, whether or not such
loss is covered by insurance or caused by any default or neglect of Lessee.
Lessee agrees to give Lessor prompt notice of any damage to or loss of any
Equipment. All physical damage insurance proceeds shall be payable directly to
Lessor. Following payment of such loss, and if no Event of Default as defined in
Section 11 has occurred and remains continuing, Lessor will then:
(a) transfer to Lessee's Lessor's rights to such Equipment "as-is, where-is and
with all defects", without recourse and without representation or warranty,
express or implied, other than a warranty that the Equipment is free and
clear of any liens created by Lessor; and
(b) remit to Lessee any physical damage insurance proceeds arising out of such
loss in excess of the sum due the Lessor.
Lessee shall determine in the exercise of its reasonable judgment whether the
Equipment is damaged beyond repair, subject to Lessor's approval. In the event
of damage or loss which does not result in damage beyond repair or a total loss
of the Equipment or any item thereof, Lessee shall cause the affected Equipment
to be restored to the condition required by the terms of this Lease. Upon
completion of such repair and after supplying Lessor with satisfactory evidence
thereof ( and provided no Event of Default has occurred and remains continuing),
Lessee shall be entitled to receive any insurance proceeds or other recovery to
which Lessor would otherwise be entitled in connection with such loss up to the
amount expended by Lessee in making the repair.
Lessor shall not be obligated to undertake by litigation or otherwise the
collection of any claim against any person for loss of, damage to, or
governmental taking of the Equipment, but Lessor will cooperate with Lessee at
Lessee's expense to pursue such claims.
Except as expressly provided above, the total or partial destruction of any
Equipment or Lessee's total or partial loss of use or possession thereof shall
not release or relieve Lessee from its obligations under this Master Lease or
any Schedule including the duty to pay the rent(s) herein provided.
7. TAXES.
Lessee agrees that, during the term of this Lease, in addition to the rent and
all other amounts provided herein to be paid, it will promptly pay all taxes,
assessments and other governmental charges (including penalties and interest, if
any, and fees for titling or registration, if required) levied or assessed:
(a) upon the interest of Lessee in the Equipment or upon the use or operation
thereof or on the earnings arising therefrom; and
(b) against Lessor on account of its acquisition or ownership of the Equipment
or any part thereof, or the use or operation thereof or the leasing
hereof to Lessee, or the rent herein provided for, or the earnings
arising therefrom, exclusive, however, of any taxes based on net income of
Lessor.
7. TAXES (CONTINUED)
Lessee agrees to file, in behalf of Lessor, all required tax returns and reports
concerning the Equipment with all appropriate governmental agencies, and within
not more than 45 days after the due date or such filing to send Lessor
confirmation, in form satisfactory to Lessor, of such filing.
8. LESSOR'S TITLE, RIGHT OF INSPECTION AND IDENTIFICATION OF EQUIPMENT.
TITLE TO THE EQUIPMENT SHALL AT ALL TIMES REMAIN IN LESSOR and Lessee will at
all times protect and defend, at its own cost and expense, the title of Lessor
from and against all claims, liens and legal processes of creditors of Lessee
and keep all the Equipment free and clear from all such claims, liens and
processes. The Equipment is and shall remain personal property. Upon the
expiration or termination of this Lease with respect to any item of Equipment:
(a) Lessee at Lessee's sole expense shall return such Equipment unencumbered to
Lessor at the place where the rent is payable or to such other place as
Lessor and Lessee agree upon, and in the same condition as when received by
Lessee, reasonable wear and tear resulting from use thereof alone excepted;
or
(b) in lieu of returning such Equipment to Lessor, Lessee agrees that Lessee
will, upon request of Lessor, store such Equipment on Lessee's premises, at
an inside location protected from the weather and elements, without charge
to Lessor for a period of 180 days following the date of expiration or
termination of this Lease. During such storage period Lessee shall not use
the Equipment for any purpose. Upon expiration of such storage period
Lessee will return such Equipment to Lessor in accordance with the
provisions of (a) above.
Lessor shall have the right from time to time during reasonable business hours
to enter upon Lessee's premises or elsewhere for the purpose of confirming the
existence, condition and proper maintenance of the Equipment and during any
period of storage Lessor shall also have the right to demonstrate and show the
Equipment to others. The foregoing rights of entry are subject to any applicable
governmental laws, regulations and rules concerning industrial security. Lessee
shall, upon the request of Lessor, and at its own expense firmly affix to the
Equipment, in a conspicuous place, such a decalcomania or metal plate as shall
be supplied by Lessor showing the Lessor as the owner and lessor of such
Equipment.
9. POSSESSION, USE AND CHANGES IN LOCATION OF EQUIPMENT.
So long as Lessee shall not be in default under the Lease is shall be entitled
to the possession and use of the Equipment in accordance with the terms of this
Lease. The Equipment shall be used in the conduct of the lawful business of
Lessee, and no item of Equipment shall be removed from its location shown on the
Schedule, without the prior written consent of Lessor. Lessee shall not, without
Lessor's prior written consent, part with possession or control of the Equipment
or attempt or purport to sell, pledge, mortgage or otherwise encumber any of the
Equipment or otherwise dispose of or encumber any interest under this Lease.
10. PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR.
In the event that the Lessee shall fail duly and promptly to perform any of its
obligations under the provisions of Sections 4, 5, 6, 7, and 8 of this Lease,
Lessor may, at its option, perform the same for the account of Lessee without
thereby waiving such default, and any amount paid or expense (including
reasonable attorneys' fees), penalty or other liability incurred by Lessor in
such performance, together with interest at the rate of 1 1/2% per month thereon
(but in no event greater than the highest rate permitted by relevant law) until
paid by Lessee to Lessor, shall be payable by Lessee upon demand as additional
rent for the Equipment.
11. DEFAULT.
An Event of Default shall occur if:
(a) Lessee fails to pay when due any installment of rent and such failure
continues for a period of 10 days;
(b) Lessee shall fail to perform or observe any covenant, condition or
agreement to be performed or observed by it hereunder and such failure
continues uncured for 15 days after written notice thereof to Lessee by
Lessor;
(c) Lessee ceases doing business as a going concern, makes an assignment for
the benefit of creditors, admits in writing its inability to pay its debts
as they become due, files a voluntary petition in bankruptcy, is
adjudicated a bankrupt or an insolvent, files a petition seeking for itself
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar arrangement 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, consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator of it or of all or
any substantial part of its assets or properties, or if it or its
shareholders shall take any action looking to its dissolution or
liquidation;
(d) within 60 days after the commencement of any proceedings against Lessee
seeking reorganization, arrangement, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation,
such proceedings shall not have been dismissed, or if within 60 days after
the appointment without Lessee'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 shall not be vacated; or
(e) Lessee attempts to remove, sell, transfer, encumber, part with possession or
sublet the Equipment or any item thereof.
Upon the occurrence of an Event of Default, Lessor shall have all the rights and
remedies provided by applicable law and by this Lease. Notwithstanding that this
Agreement is a lease and title to the Equipment is at all times in Lessor,
Lessor may nevertheless at its option choose those rights and remedies of a
secured party under the Uniform Commercial Code. In addition, Lessor, at its
option, may:
11. DEFAULT (CONTINUED)
(a) declare all sums due and to become due hereunder immediately due and
payable, but in no event shall the Lessee, upon demand by Lessor for
payment of the unpaid rent, upon acceleration of the maturity thereof or
otherwise, be obligated to pay any amount in excess of that permitted by
law;
(b) proceed by appropriate court action or actions or other proceedings either
at law or equity to enforce performance by the Lessee of any and all
covenants of this Lease and to recover damages for the breach thereof;
(c) demand that Lessee deliver the Equipment forthwith to Lessor at
Lessee's expense at such place as Lessor may designate; and
(d) Lessor and/or its agents may without notice or liability or legal process,
enter into any premises of or under control or jurisdiction of Lessee or
any agent of Lessee where the Equipment may be or by Lessor is believed to
be, and repossess all or any item thereof, disconnecting and separating all
thereof from any other property and using all force necessary or permitted
by applicable law so to do, Lessee hereby expressly waiving all further
rights to possession of the Equipment and all claims for injuries suffered
through or loss caused by such repossession; but the Lessor shall
nevertheless, be entitled to recover immediately as liquidated damages for
loss of the bargain and not as a penalty any unpaid rent that accrued on or
before the occurrence of the event of default plus an amount equal to the
difference between the aggregate rent reserved hereunder for the unexpired
term of this Lease and the then aggregate rental value of all Equipment for
such unexpired term, provided, however, that if any statute governing the
proceeding in which such damages are to be proved specifies the amount of
such claim, Lessor shall be entitled to prove as and for damages for the
breach an amount equal to that allowed under such statute. The provisions
of this paragraph shall be without prejudice to any rights given to the
Lessor by such statute to prove for any amounts allowed thereby. Should any
proceedings be instituted by or against Lessor for monies due to Lessor
hereunder and/or for possession of any or all of the Equipment or for any
other relief, Lessee shall pay a reasonable sum as attorney's fees.
No remedy of Lessor hereunder shall be exclusive of any remedy herein or by law
provided, but each shall be cumulative and in addition to every other remedy.
12. INDEMNITY.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify and save Lessor harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments arising from or
caused directly or indirectly by:
(a) Lessee's failure to promptly perform any of its obligations under the
provisions of Sections 4, 5, 6, 7 and 8 of this Lease; or
(b) injury to persons or damage to property resulting from or based upon actual
or alleged use, operation, delivery or transportation of any or all of the
Equipment or its location or condition; or
(c) inadequacy of the Equipment, or any part thereof, for any purpose or any
deficiency or defect therein or the use or maintenance thereof or any
repairs, servicing or adjustments thereto or any delay in providing or
failure to provide any thereof or any interruption or loss of service or
use thereof or any loss of business; and shall, at its own cost and
expense, defend any and all suits which may be brought against Lessor,
either alone or in conjunction with others upon any such liability or claim
or claims and shall satisfy, pay and discharge any and all judgments and
fines that may be recovered against Lessor in any such action or actions,
provided, however, that Lessor shall give Lessee written notice of any such
claim or demand. Lessee agrees that its obligations under this Section 12
shall survive the expiration or termination of this Lease.
13. ASSIGNMENT, NOTICES AND WAIVERS.
This Lease and all rights of Lessor hereunder shall be assignable by Lessor
without Lessee's consent, but Lessee shall not be obligated to any assignee of
Lessor except after written notice of such assignment from Lessor or Lessor's
assignee. After such assignment, Lessor shall not be assignee's agent for any
purpose. Lessee will settle all claims arising out or alleged breach of
warranties or otherwise, defenses, set-offs and counterclaims it may have
against Lessor directly with Lessor, and not set up any such against Lessor's
assignee, Lessor hereby agreeing to remain responsible therefor. Lessee upon
receiving notice of any such assignment shall abide thereby and make payment as
may therein be directed. Following such assignment, solely for the purpose of
determining assignee's rights hereunder, the term "Lessor" shall be deemed to
include or refer to Lessor's assignee. Without the prior written consent of
Lessor, Lessee shall not assign this Lease or its interests hereunder or enter
into any sub-lease with respect to the Equipment covered hereby, it being agreed
Lessor will not unreasonably withhold its consent to a sub-lease of the
Equipment. All notices to Lessor shall be delivered in person to an officer of
the Lessor, or shall be sent certified mail return receipt requested to Lessor
at its address shown herein or at any later address last known to the sender.
All notices to Lessee shall be in writing and shall be delivered by mail at its
address shown herein or at any later address last known to the sender. A waiver
of a default shall not be a waiver of any other or a subsequent default.
14. FURTHER ASSURANCES.
Lessee shall execute and deliver to Lessor, upon Lessor's request such
instruments and assurances as Lessor deems necessary or advisable for the
confirmation or perfection of this Lease and Lessor's rights hereunder. Lessee
may not terminate any Schedule without the written consent of Lessor. If Lessor
in good faith believes itself insecure or performance impaired, it may declare a
default hereunder or, instead of declaring a default, Lessor may demand, and
Lessee hereby agrees to give, additional Equipment or other collateral as
security for the obligations hereunder.
15. LEASE IRREVOCABILITY.
This Lease is irrevocable for the full terms thereof as set forth in any
Schedule and for the aggregate rentals therein reserved and the rent shall not
▇▇▇▇▇ by reason of termination of Lessee's right of possession and/or the taking
of possession by the Lessor or for any other reason. Any payment not made when
due shall, at the option of Lessor, bear late charges thereon calculated at the
rate of 1 1/2% per month, but in no event greater than the highest rate
permitted by relevant law.
16. PURCHASE OPTION.
If any Schedule has a purchase option price set forth therein with respect to
the items of Equipment listed on such Schedule, then at the expiration of the
original lease term in such Schedule with respect to such items of Equipment, if
Lessee has paid in full all rentals owing under such Schedule, and be not then
in default under this Lease (including all obligations under any Schedule),
Lessee shall have the option to purchase ALL, BUT NOT LESS THAN ALL, THE ITEMS
OF EQUIPMENT IN THE APPLICABLE SCHEDULE upon giving written notice not less than
30 DAYS prior to expiration of the original term thereof. The purchase price
shall be as set forth in the applicable Schedule and shall be payable upon
expiration of the original Lease term. If any Schedule does not contain a
purchase option price, then Lessee shall not have an option to purchase any
Equipment on such Schedule.
Any purchase option price stated as "fair market value" ("FMV") for any item of
Equipment on a Schedule shall be determined on the basis of, and shall be equal
in amount to, the value which would obtain in an arm's length transaction
between an informed and willing buyer-user (other than a Lessee currently in
possession and a used Equipment dealer) and an informed and willing seller under
no compulsion to sell and, in such determination, costs of removal of the items
of Equipment from their location of current use shall not be a deduction from
such value.
17. RENEWAL.
Any renewal privilege shown on any Schedule with respect to any item of
Equipment shall be exercised by Lessee giving Lessor a notice in writing and
paying Lessor the amount of the renewal rental plus applicable taxes, at least
45 DAYS prior to the commencement of the renewal term of the Lease with respect
to such item of Equipment. Upon such notification and payment, this Lease shall
be renewed for the stated renewal period at the stated renewal rental with the
other provisions and conditions of the lease continuing unchanged.
If Lessee is a corporation, this Lease is executed by authority of its Board of
Directors. If Lessee is a partnership or joint venture, this Lease is executed
by authority of all its partners or co-venturers.
Dated: July 11, 1996
LESSOR: LESSEE:
Corporate Capital Services, Inc. Brake Headquarters U.S.A., Inc.
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Name of individual, corporation or partnership Name of individual, corporation or partnership
By_ ▇▇▇▇▇ Steinhouser___ Title_Vice President__ By__Marc J. Ruskin____________ Title____CFO______
If corporation, give official title. If owner or partner, state which. If corporation, have signed by President, Vice
President or Treasurer, and give official
title. If owner or partner, state which.
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If Lessee is a partnership, enter:
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Partners' names Home addresses
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