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EXHIBIT 10.9
MASTER LEASE AGREEMENT
Dated As Of: December 30, 1999
This MASTER LEASE AGREEMENT is made and entered into by and between
BANC ONE LEASING CORPORATION ("Lessor"), an Ohio corporation, with its principal
place of business at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000 and the Lessee
identified below:
LESSEE NAME: HOME INTERIORS & GIFTS, INC.
LESSEE ADDRESS: 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
1. LEASE OF EQUIPMENT: Lessor leases to Lessee, and Lessee leases from
Lessor, all the property described in the Lease Schedules which are signed from
time to time by Lessor and Lessee.
2. CERTAIN DEFINITIONS: "Schedule" means each Lease Schedule signed by
Lessee and Lessor which incorporates the terms of this Master Lease Agreement,
together with all exhibits, riders, attachments and addenda thereto. "Equipment"
means the property described in each Schedule, together with all attachments,
additions, accessions, parts, repairs, improvements, replacements and
substitutions thereto. "Lease", "herein", "hereunder", "hereof" and similar
words mean this Master Lease Agreement and all Schedules, together with all
exhibits, riders, attachments and addenda to any of the foregoing, as the same
may from time to time be amended, modified or supplemented. "Prime Rate" means
the prime rate of interest announced from time to time as the prime rate by Bank
One, NA; provided, that the parties acknowledge that the Prime Rate is not
intended to be the lowest rate of interest charged by said bank in connection
with extensions of credit. "Lien" means any security interest, lien, mortgage,
pledge, encumbrance, judgment, execution, attachment, warrant, writ, levy, other
judicial process or claim of any nature whatsoever by or of any person. "Fair
Market Value" means the amount which would be paid for an item of Equipment by
an informed and willing buyer (other than a used equipment or scrap dealer) and
an informed and willing seller neither under a compulsion to buy or sell.
"Lessor's Cost" means the invoiced price of any item of Equipment plus any other
cost to Lessor of acquiring an item of Equipment. All terms defined in the Lease
are equally applicable to both the singular and plural form of such terms.
3. LEASE TERM AND RENT: The term of the lease of the Equipment
described in each Schedule ("Lease Term") commences on the date stated in the
Schedule and continues for the term stated therein. As rent for the Equipment
described in each Schedule, Lessee shall pay Lessor the rent payments and all
other amounts stated in such Schedule, payable on the dates specified therein.
All payments due under the Lease shall
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be made in United States dollars at Lessor's office stated in the opening
paragraph or as otherwise directed by Lessor in writing. Notwithstanding
anything to the contrary contained herein, for the full term of the Lease any
interest rate produced by the aggregate of all sums paid or agreed to be paid to
Lessor for the use, forbearance or detention of the debt evidenced hereby
(including, but not limited to, all interest payable under this Lease and any
other amounts deemed to constitute interest) shall not exceed the Ceiling Rate.
4. ORDERING, DELIVERY, REMOVAL AND INSPECTION OF EQUIPMENT: If an event
of default occurs or if for any reason Lessee does not accept, or revokes its
acceptance of, equipment covered by a purchase order or purchase contract or if
any commitment or agreement of Lessor to lease equipment to Lessee expires,
terminates or is otherwise canceled in each case in accordance with the terms of
the Lease, then automatically upon notice from Lessor, any purchase order or
purchase contract and all obligations thereunder shall be assigned to Lessee and
Lessee shall pay and perform all obligations thereunder. Lessee agrees to pay,
defend, indemnify and hold Lessor harmless from any liabilities, obligations,
claims, costs and expenses (including reasonable attorney fees and expenses) of
whatever kind imposed on or asserted against Lessor in any way related to any
purchase orders or purchase contracts, other than claims, liabilities, costs or
damages arising as a direct result of Lessor's gross negligence or willful
misconduct. Lessee shall make all arrangements for, and Lessee shall pay all
costs of, transportation, delivery, installation and testing of Equipment. The
Equipment shall be delivered to Lessee's premises stated in the applicable
Schedule and shall not be removed without Lessor's prior written consent. Lessor
has the right upon reasonable notice to Lessee to inspect the Equipment wherever
located.; provided, however, if no event of default exists, Lessor shall not
inspect the Equipment more than once each calendar quarter. Lessor may enter
upon any premises where Equipment is located and remove it immediately, without
notice or liability to Lessee, upon the expiration or other termination of the
Lease Term in accordance with the terms of the Lease.
5. MAINTENANCE AND USE: Lessee agrees it will, at its sole expense: (a)
repair and maintain the Equipment in good condition and working order and supply
and install all replacement parts or other devices when required to so maintain
the Equipment or when required by applicable law or regulation, which parts or
devices shall automatically become part of the Equipment; (b) use and operate
the Equipment in a careful manner in the normal course of its business and only
for the purposes for which it was designed in accordance with the manufacturer's
warranty requirements, and comply in all material respects with all laws and
regulations relating to the Equipment, and obtain all permits or licenses
necessary to install, use or operate the Equipment; and (c) make no alterations,
additions, subtractions, upgrades or improvements to the Equipment without
Lessor's prior written consent (such consent not to be unreasonably withheld),
but any such alterations, additions, upgrades or improvements shall
automatically become part of the Equipment. The Equipment will not be used or
located outside of the United States.
6. NET LEASE; NO EARLY TERMINATION: The Lease is a net lease. Lessee's
obligation to pay all rent and all other amounts payable under the Lease is
absolute and unconditional under any and all circumstances and shall not be
affected by any
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circumstances of any character including, without limitation, (a) any setoff,
claim, counterclaim, defense or reduction which Lessee may have at any time
against Lessor or any other party for any reason, or (b) any defect in the
condition, design or operation of, any lack of fitness for use of, any damage to
or loss of, or any lack of maintenance or service for any of the Equipment. Each
Schedule is a noncancelable lease of the Equipment described therein and
Lessee's obligation to pay rent and perform all other obligations thereunder and
under the Lease are not subject to cancellation or termination by Lessee for any
reason.
7. NO WARRANTIES BY LESSOR: LESSOR LEASES THE EQUIPMENT AS-IS,
WHERE-IS, AND WITH ALL FAULTS. LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS,
EXPRESS OR IMPLIED, OF ANY KIND AS TO THE EQUIPMENT INCLUDING, WITHOUT
LIMITATION: ITS MERCHANTABILITY; ITS FITNESS FOR ANY PARTICULAR PURPOSE; ITS
DESIGN, CONDITION, QUALITY, CAPACITY, DURABILITY, CAPABILITY, SUITABILITY OR
WORKMANSHIP; ITS NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY PATENT,
TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHT; OR ITS COMPLIANCE
WITH ANY LAW, RULE, SPECIFICATION, PURCHASE ORDER OR CONTRACT PERTAINING
THERETO. Lessor hereby assigns to Lessee the benefit of any assignable
manufacturer's or supplier's warranties, and Lessor, at Lessee's written
request, will cooperate with Lessee in pursuing any remedies Lessee may have
under such warranties. Any action taken with regard to warranty claims against
any manufacturer or supplier by Lessee will be at Lessee's sole expense. LESSOR
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND AS TO
THE FINANCIAL CONDITION OR FINANCIAL STATEMENTS OF ANY PARTY OR AS TO THE TAX OR
ACCOUNTING TREATMENT OR CONSEQUENCES OF THE LEASE, THE EQUIPMENT OR THE RENTAL
PAYMENTS.
8. INSURANCE: Lessee at its sole expense shall at all times keep each
item of Equipment insured against all risks of loss or damage from every cause
whatsoever for an amount not less than the greater of the full replacement value
or the Lessor's Cost of such item of Equipment. Lessee at its sole expense shall
at all times carry public liability and property damage insurance in amounts
satisfactory to Lessor protecting Lessee and Lessor from liabilities for
injuries to persons and damage to property of others relating in any way to the
Equipment. All insurers shall be reasonably satisfactory to Lessor. Lessee shall
deliver to Lessor satisfactory evidence of such coverage upon Lessor's request.
Proceeds of any insurance covering damage or loss of the Equipment shall be
payable to Lessor as loss payee and shall be applied toward Lessee's obligations
pursuant to Section 9 hereof (or if Lessee has fulfilled its obligations
pursuant to Section 9, to reimburse Lessee). Proceeds of any public liability or
property insurance shall be payable first to Lessor as additional insured solely
to the extent of its liability, then to Lessee. If an event of default occurs
and is continuing, or if Lessee fails to make timely payments due under Section
9 hereof, then Lessee automatically appoints Lessor as Lessee's attorney-in-fact
with full power and authority in the place of Lessee and in the name of Lessee
or Lessor to make claim for, receive payment of, and sign and endorse all
documents, checks or drafts for loss or damage under any such policy. Each
insurance policy will require that the
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insurer give Lessor at least 30 days prior written notice of any cancellation of
such policy and will require that Lessor's interests remain insured regardless
of any act, error, omission, neglect or misrepresentation of Lessee. The
insurance maintained by Lessee shall be primary without any right of
contribution from insurance which may be maintained by Lessor.
9. LOSS AND DAMAGE: (a) Lessee bears the entire risk of loss, theft,
damage or destruction of Equipment in whole or in part from any reason
whatsoever ("Casualty Loss"). No Casualty Loss to Equipment shall relieve Lessee
from the obligation to pay rent or from any other obligation under the Lease. In
the event of Casualty Loss to any item of Equipment, Lessee shall immediately
notify Lessor of the same and Lessee shall, if so directed by Lessor,
immediately repair the same. If Lessor determines that any item of Equipment has
suffered a Casualty Loss beyond repair ("Lost Equipment"), then Lessee, at the
option of Lessor, shall: (1) immediately replace the Lost Equipment with similar
equipment in good repair, condition and working order free and clear of any
Liens and deliver to Lessor a xxxx of sale covering the replacement equipment,
in which event such replacement equipment shall automatically be Equipment under
the Lease; or (2) On the rent payment date which is at least 30 but no more than
60 days after the date of the Casualty Loss, pay to Lessor all amounts then due
and payable by Lessee under the Lease for the Lost Equipment plus the Stipulated
Loss Value for such Lost Equipment as of the date of the Casualty Loss. Upon
payment by Lessee of all amounts due under the above clause (2), the lease of
the Lost Equipment will terminate and Lessor shall transfer to Lessee all of
Lessor's right, title and interest in such Equipment on an "as-is, where-is"
basis with all faults, without recourse and without representation or warranty
of any kind, express or implied.
(b) "Stipulated Loss Value" of any item of Equipment during its Lease
Term equals the present value discounted in arrears to the applicable date at
the applicable SLV Discount Rate of (1) the remaining rents and all other
amounts [including, without limitation, any balloon payment and, as to a
terminal rental adjustment clause ("TRAC") lease, the TRAC value stated in the
Schedule, and any other payments required to be paid by Lessee at the end of the
applicable Lease Term] payable under the Lease for such item on and after such
date to the end of the applicable Lease Term and (2) an amount equal to the
Economic Value of the Equipment. For any item of Equipment, "Economic Value"
means the Fair Market Value of the Equipment at the end of the applicable Lease
Term as originally anticipated by Lessor at the Commencement Date of the
applicable Schedule; provided, that Lessee agrees that such value shall be
determined by the books of Lessor as of the Commencement Date of the applicable
Schedule. After the payment of all rent due under the applicable Schedule and
the expiration of the Lease Term of any item of Equipment, the Stipulated Loss
Value of such item equals the Economic Value of such item. Stipulated Loss Value
shall also include any Taxes payable by Lessor in connection with its receipt
thereof. For any item of Equipment, "SLV Discount Rate" means an interest rate
equal to the Prime Rate in effect on the Commencement Date of the Schedule for
such item minus two percentage points.
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10. TAX BENEFITS INDEMNITY. (a) The Lease has been entered into on the
basis that Lessor shall be entitled to such deductions, credits and other tax
benefits as are provided by federal, state and local income tax law to an owner
of the Equipment (the "Tax Benefits") including, without limitation: (1)
modified accelerated cost recovery deductions on each item of Equipment under
Section 168 of the Code (as defined below) in an amount determined commencing
with the taxable year in which the Commencement Date of the applicable Schedule
occurs, using the maximum allowable depreciation method available under Section
168 of the Code, using a recovery period (as defined in Section 168 of the Code)
reasonably determined by Lessor, and using an initial adjusted basis which is
equal to the Lessor's Cost of such item; (2) amortization of the expenses paid
by Lessor in connection with the Lease on a straight-line basis over the term of
the applicable Schedule; and (3) Lessor's federal taxable income will be subject
to the maximum rate on corporations in effect under the Code as of the
Commencement Date of the applicable Schedule.
(b) If on any one or more occasions (1) Lessor shall lose, shall not
have or shall lose the right to claim all or any part of the Tax Benefits, (2)
there shall be reduced, disallowed, recalculated or recaptured all or any part
of the Tax Benefits, or (3) all or any part of the Tax Benefits is reduced by a
change in law or regulation (each of the events described in subparagraphs 1, 2
or 3 of this paragraph (b) will be referred to as a "Tax Loss"), then, upon 30
days written notice by Lessor to Lessee that a Tax Loss has occurred, Lessee
shall pay Lessor an amount which, in the reasonable opinion of Lessor and after
the deduction of all taxes required to be paid by Lessor with respect to the
receipt of such amount, will provide Lessor with the same after-tax net economic
yield which was originally anticipated by Lessor as of the Commencement Date of
the applicable Schedule.
(c) A Tax Loss shall occur upon the earliest of: (1) Lessor's payment
to the applicable taxing authority of the tax increase resulting from such Tax
Loss; or (2) the adjustment of Lessor's tax return to reflect such Tax Loss.
(d) Lessor shall not be entitled to payment under this section for any
Tax Loss caused solely by one or more of the following events: (1) a
disqualifying sale or disposition of an item of Equipment by Lessor prior to any
default by Lessee; (2) Lessor's failure to timely or properly claim the Tax
Benefits in Lessor's tax return; (3) a disqualifying change in the nature of
Lessor's business or liquidation thereof; (4) a foreclosure by any person
holding through Lessor a security interest on an item of Equipment which
foreclosure results solely from an act of Lessor; or (5) Lessor's failure to
have sufficient taxable income or tax liability to utilize the Tax Benefits.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
For the purposes of this section 10, the term "Lessor" shall include any
affiliate group (within the meaning of section 1504 of the Code) of which Lessor
is a member for any year in which a consolidated income tax return is filed for
such affiliated group. Lessee's obligations under this section shall survive the
expiration, cancellation or termination of the Lease.
11. GENERAL TAX INDEMNITY: Lessee will pay, and will defend, indemnify
and hold Lessor harmless on an after-tax basis from, any and all Taxes (as
defined below) and
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reasonable related audit and contest expenses on or relating to (a) any of the
Equipment, (b) the Lease, (c) purchase, acceptance, ownership, lease,
possession, use, operation, transportation, return or other disposition of any
of the Equipment, and (d) rentals or earnings relating to any of the Equipment
or the Lease. "Taxes" means present and future taxes or other governmental
charges that are not based on the net income of Lessor or franchise taxes that
are assessed to or payable by Lessor, including, without limitation (i) sales,
use, excise, licensing, registration, titling, gross receipts, stamp and
personal property taxes, (ii) levies, imposts, duties, assessments, charges and
withholdings, (iii) penalties, fines, and additions to tax and (iv) interest on
any of the foregoing, if applicable. Unless Lessor elects otherwise, Lessor will
prepare and file all reports and returns relating to any Taxes and will pay all
Taxes to the appropriate taxing authority. Lessee will reimburse Lessor for all
such payments on the next succeeding rental payment date after receipt of a
statement setting forth the amounts paid. On or after any applicable
assessment/levy/lien date for any personal property Taxes relating to any
Equipment, Lessee agrees that upon Lessor's request Lessee shall pay to Lessor
the personal property Taxes which Lessor reasonably anticipates will be due,
assessed, levied or otherwise imposed on any Equipment during its Lease Term. If
Lessor elects in writing, Lessee will itself prepare and file all such reports
and returns, pay all such Taxes directly to the taxing authority, and send
Lessor evidence thereof. Lessee's obligations under this section shall survive
the expiration, cancellation or termination of the Lease.
12. GENERAL INDEMNITY: Lessee assumes all risk and liability for, and
shall defend, indemnify and keep Lessor harmless on an after-tax basis from,
without duplication of the indemnities provided for in Sections 10 and 11
hereof, any and all liabilities, obligations, losses, damages, penalties,
claims, actions, suits, costs and expenses, including reasonable attorney fees
and expenses, of whatsoever kind and nature imposed on, incurred by or asserted
against Lessor, in any way relating to or arising out of the manufacture,
purchase, acceptance, rejection, ownership, possession, use, selection,
delivery, lease, operation, condition, sale, return or other disposition of the
Equipment or any part thereof (including, without limitation, any claim for
latent or other defects, whether or not discoverable by Lessee or any other
person, any claim for negligence, tort or strict liability, any claim under any
environmental protection or hazardous waste law and any claim for patent,
trademark or copyright infringement). Lessee will not indemnify Lessor under
this section for loss or liability arising from events which occur after the
Equipment has been returned to Lessor or for loss or liability caused directly
and solely by the gross negligence or willful misconduct of Lessor, or breach by
the Lessor of the Lease. In this section, "Lessor" also includes any director,
officer, employee, agent, successor or assign of Lessor. Lessee's obligations
under this section shall survive the expiration, cancellation or termination of
the Lease.
13. PERSONAL PROPERTY: Lessee represents and agrees that the Equipment
is, and shall at all times remain, separately identifiable personal property.
Upon Lessor's reasonable request, Lessee shall furnish Lessor a landlord's
and/or mortgagee's waiver and consent to remove all Equipment. Lessor may
display notice of its interest in the Equipment by any reasonable
identification. Lessee shall not alter or deface any such indicia of Lessor's
interest.
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14. DEFAULT: Each of the following events shall constitute an event of
default under the Lease: (a) Lessee fails to pay any rent or other amount due
under the Lease within ten days of its due date; or (b) Lessee fails to perform
or observe any of its obligations in Sections 8 or 22 hereof; or (c) Lessee
fails to perform or observe any of its other obligations in the Lease for more
than 30 days after Lessor notifies Lessee of such failure; or (d) Lessee or any
Lessee affiliate defaults in the payment, performance or observance of any
material obligation under any loan, credit agreement or other lease in which
Lessor or any subsidiary (direct or indirect) of Bank One Corporation (which is
Lessor's ultimate parent corporation) is the creditor or lessor; or (e) any
statement, representation or warranty made by Lessee in the Lease, in any
Schedule or in any document, certificate or financial statement in connection
with the Lease proves at any time to have been untrue or misleading in any
material respect as of the time when made; or (f) Lessee becomes insolvent or
bankrupt, or Lessee admits its inability to pay its debts as they mature, or
Lessee makes an assignment for the benefit of creditors, or Lessee applies for,
institutes or consents to the appointment of a receiver, trustee or similar
official for Lessee or any substantial part of its property or any such official
is appointed without Lessee's consent, or Lessee applies for, institutes or
consents to any bankruptcy, insolvency, reorganization, debt moratorium,
liquidation or similar proceeding relating to Lessee or any substantial part of
its property under the laws of any jurisdiction or any such proceeding is
instituted against Lessee without stay or dismissal for more than 60 days, or
Lessee commences any act amounting to a business failure or a winding up of its
affairs, or Lessee ceases to do business as a going concern; or (g) with respect
to any guaranty, letter of credit, pledge agreement, security agreement,
mortgage, deed of trust, debt subordination agreement or other credit
enhancement or credit support agreement (whether now existing or hereafter
arising) signed or issued by any party in connection with all or any part of
Lessee's obligations under the Lease, the party signing or issuing any such
agreement defaults in any material respect in its obligations thereunder or any
such agreement shall cease to be in full force and effect or shall be declared
to be null, void, invalid or unenforceable by the party signing or issuing it;
or (h) there shall occur in Lessor's reasonable opinion any material adverse
change in the financial condition, business or operations of Lessee.
15. REMEDIES. If any event of default exists, Lessor may exercise in
any order one or more of the remedies described in the lettered subparagraphs of
this section, and Lessee shall perform its obligations imposed thereby:
(a) Lessor may require Lessee to return any or all Equipment as
provided in the Lease.
(b) Lessor or its agent may repossess any or all Equipment wherever
found, may enter the premises where the Equipment is located and disconnect,
render unusable and remove it, and may use such premises without charge to store
or show the Equipment for sale.
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(c) Lessor may sell any or all Equipment at public or private sale,
with or without advertisement or publication, may re-lease or otherwise dispose
of it or may use, hold or keep it.
(d) Lessor may require Lessee to pay to Lessor on a date specified by
Lessor, with respect to any or all Equipment (i) all accrued and unpaid rent,
late charges and other amounts due under the Lease on or before such date, plus
(ii) as liquidated damages for loss of a bargain and not as a penalty, and in
lieu of any further payments of rent, the Stipulated Loss Value of the Equipment
on such date, plus (iii) interest at the Overdue Rate on the total of the
foregoing ("Overdue Rate" means an interest rate per annum equal to the higher
of 18% or 2% over the Prime Rate, but not to exceed the highest rate permitted
by applicable law). The parties acknowledge that the foregoing money damage
calculation reasonably reflects Lessor's anticipated loss with respect to the
Equipment and the related Lease resulting from the event of default. If an event
of default under section 14 (f) of this Master Lease Agreement exists, then
Lessee will be automatically liable to pay Lessor the foregoing amounts as of
the next rent payment date unless Lessor otherwise elects in writing.
(e) Lessee shall pay all costs, expenses and damages incurred by Lessor
because of the event of default or its actions under this section, including,
without limitation any collection agency and/or reasonable attorney fees and
expenses, any costs related to the repossession, safekeeping, storage, repair,
reconditioning or disposition of the Equipment.
(f) Lessor may terminate the Lease and/or any or all Schedules, may xxx
to enforce Lessee's performance of its obligations under the Lease and/or may
exercise any other right or remedy then available to Lessor at law or in equity.
Lessor is not required to take any legal process or give Lessee any
notice before exercising any of the above remedies. None of the above remedies
is exclusive, but each is cumulative and in addition to any other remedy
available to Lessor. Lessor's exercise of one or more remedies shall not
preclude its exercise of any other remedy. No action taken by Lessor shall
release Lessee from any of its obligations to Lessor. No delay or failure on the
part of Lessor to exercise any right hereunder shall operate as a waiver
thereof, nor as an acquiescence in any default, nor shall any single or partial
exercise of any right preclude any other exercise thereof or the exercise of any
other right. After any default, Lessor's acceptance of any payment by Lessee
under the Lease shall not constitute a waiver by Lessor of such default,
regardless of Lessor's knowledge or lack of knowledge at the time of such
payment, and shall not constitute a reinstatement of the Lease if the Lease has
been declared in default by Lessor, unless Lessor has agreed in writing to
reinstate the Lease and to waive the default.
If Lessor actually repossesses any Equipment, then it will use
commercially reasonable efforts under the then current circumstances to attempt
to mitigate its damages; provided, that Lessor shall not be required to sell,
re-lease or otherwise dispose of any Equipment prior to Lessor enforcing any of
the remedies described above. Lessor may sell or re-lease the Equipment in any
manner it chooses, free and clear of any claims or rights of Lessee and without
any duty to account to Lessee with respect thereto except
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as provided below. If Lessor actually sells or re-leases the Equipment, it will
credit the net proceeds of any sale of the Equipment, or the net present value
(discounted at the then current Prime Rate) of the rents payable under any new
lease of the Equipment, against and up to (but not exceeding) the Stipulated
Loss Value of the Equipment and any other amounts Lessee owes Lessor, or will
reimburse Lessee for and up to (but not exceeding) Lessee's payment thereof. The
term "net" as used above shall mean such amount after deducting the costs and
expenses described in clause (e) above of this section. If Lessor elects in
writing not to sell or re-lease any Equipment, it will similarly credit or
reimburse Lessee for Lessor's reasonable estimate of such Equipment's Fair
Market Value.
16. LESSOR'S RIGHT TO PERFORM: If Lessee fails to make any payment
under the Lease or fails to perform any of its other agreements in the Lease
(including, without limitation, its agreement to provide insurance coverage as
stated in the Lease), Lessor may itself make such payment or perform such
agreement, and the amount of such payment and the amount of the reasonable
expenses of Lessor incurred in connection with such payment or performance shall
be deemed to be additional rent, payable by Lessee on demand.
17. FINANCIAL REPORTS: Lessee agrees to furnish to Lessor: (a) annual
financial statements setting forth the financial condition and results of
operation of Lessee (financial statements shall include balance sheet, income
statement and changes in financial position and all notes thereto) within 120
days of the end of each fiscal year of Lessee; (b) quarterly financial
statements setting forth the financial condition and results of operation of
Lessee within 60 days of the end of each of the first three fiscal quarters of
Lessee; and (c) such other financial information as Lessor may from time to time
reasonably request including, without limitation, financial reports filed by
Lessee with federal or state regulatory agencies; provided, however, if the
financial statements are publicly available, Lessor shall obtain such financial
statements from such public sources. All such financial information shall be
prepared in accordance with generally accepted accounting principles.
18. NO CHANGES IN LESSEE: Lessee shall not: (a) liquidate, dissolve or
suspend business; (b) sell, transfer or otherwise dispose of all or a majority
of its assets, except that Lessee may sell its inventory in the ordinary course
of its business; (c) without prior written consent, enter into any merger,
consolidation or similar reorganization unless it is the surviving corporation;
(d) without prior written consent, transfer all or any substantial part of its
operations or assets outside of the United States of America; or (e) without 30
days (or such shorter period as Lessor may agree) advance written notice to
Lessor, change its name or chief place of business.
19. LATE CHARGES: If any rent or other amount payable under the Lease
is not paid within three days of the date when due, then as compensation for the
administration and enforcement of Lessee's obligation to make timely payments,
Lessee shall pay with respect to each overdue payment on demand an amount equal
to the greater of fifteen dollars ($15.00) or five percent (5%) of the each
overdue payment (but not to exceed the highest late charge permitted by
applicable law) plus any collection agency fees and expenses.
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20. NOTICES; POWER OF ATTORNEY: (a) Service of all notices under the
Lease shall be sufficient if given personally or couriered or mailed or
telecopied to the party involved at its respective address set forth herein or
at such other address as such party may provide in writing from time to time.
Any such notice mailed to such address shall be effective three days after
deposit in the United States mail with postage prepaid. (b) With respect to any
power of attorney covered by the Lease, the powers conferred on Lessor thereby:
are powers coupled with an interest; are irrevocable; are solely to protect
Lessor's interests under the Lease; and do not impose any duty on Lessor to
exercise such powers. Lessor shall be accountable solely for amounts it actually
receives as a result of its exercise of such powers.
21. ASSIGNMENT BY LESSOR: Lessor and any assignee of Lessor, with or
without notice to or consent of Lessee, may sell, assign, transfer or grant a
security interest in all or any part of Lessor's rights, obligations, title or
interest in the Equipment, the Lease, any Schedule or the amounts payable under
the Lease or any Schedule to any entity ("transferee"). The transferee shall
succeed to all of Lessor's rights in respect to the Lease (including, without
limitation, all rights to insurance and indemnity protection described in the
Lease). Lessee agrees to sign any acknowledgment and other documents reasonably
requested by Lessor or the transferee in connection with any such transfer
transaction. Lessee, upon receiving notice of any such transfer transaction,
shall comply with the terms and conditions thereof. Lessee agrees that it shall
not assert against any transferee any claim, defense, setoff, deduction or
counterclaim which Lessee may now or hereafter be entitled to assert against
Lessor. Unless otherwise agreed in writing, the transfer transaction shall not
relieve Lessor of any of its obligations to Lessee under the Lease and Lessee
agrees that the transfer transaction shall not be construed as being an
assumption of such obligations by the transferee.
22. NO ASSIGNMENT, SUBLEASE OR LIEN BY LESSEE: LESSEE SHALL NOT, DIRECTLY OR
INDIRECTLY, (a) MORTGAGE, ASSIGN, SELL, TRANSFER, OR OTHERWISE DISPOSE OF THE
LEASE OR ANY INTEREST THEREIN OR THE EQUIPMENT OR ANY PART THEREOF, OR (b)
SUBLEASE, RENT, LEND OR TRANSFER POSSESSION OR USE OF THE EQUIPMENT OR ANY PART
THEREOF TO ANY PARTY, OR (c) CREATE, INCUR, GRANT, ASSUME OR ALLOW TO EXIST ANY
LIEN ON THE LEASE, ANY SCHEDULE, THE EQUIPMENT OR ANY PART THEREOF (other than
liens for (a) taxes not yet due or which are being contested in good faith by
appropriate proceedings and (b) carriers', landlords', warehousemen's,
mechanics', materialmen's, repairmen's or other like liens arising in the
ordinary course of business and for amounts that are not overdue for a period of
more than sixty (60) days or that are being contested in good faith and by
appropriate proceedings). Notwithstanding anything to the contrary contained
herein, Lessee may assign the Lease or sublease the Equipment to a wholly-owned
subsidiary of the Lessee provided that Lessee remains primarily liable for the
obligations contained in the Lease, and further provided that the Lessee
delivers to Lessor such documents containing such terms as Lessor reasonably
requests.
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23. EXPIRATION OF LEASE TERM: (a) At least 90 days (or earlier if
otherwise specified), but no more than 270 days prior to expiration of the Lease
Term of each Schedule, Lessee shall give Lessor written notice of its electing
one of the following options for all (but not less than all) of the Equipment
covered by such Schedule: return the Equipment under clause (b) below; or
purchase the Equipment under clause (c) below. The election of an option shall
be irrevocable. If Lessee fails to give timely notice of its election, it shall
be deemed to have elected to return the Equipment.
(b) If Lessee elects or is deemed to have elected to return the
Equipment at the expiration of the Lease Term of a Schedule or if Lessee is
obligated at any time to return the Equipment, then Lessee shall, at its sole
expense and risk, deinstall, disassemble, pack, crate, insure and return the
Equipment to Lessor (all in accordance with applicable industry standards) at
any location in the continental United States of America selected by Lessor. The
Equipment shall be in the same condition as when received by Lessee, reasonable
wear, tear and depreciation resulting from normal and proper use excepted (or,
if applicable, in the condition set forth in the Lease or the Schedule), shall
be in good operating order and maintenance as required by the Lease, shall be
certified as being eligible for any available manufacturer's maintenance
program, shall be free and clear of any Liens as required by the Lease, shall
comply with all applicable laws and regulations and shall include all manuals,
specifications, repair and maintenance records and similar documents. Until
Equipment is returned as required above, all terms of the Lease shall remain in
full force and effect including, without limitation, obligations to pay rent and
insure the Equipment; provided, that after the expiration of any Schedule and
before Lessee has completed its return of the Equipment or its purchase option
(if elected), the term of the lease of the Equipment covered by such Schedule
shall be month-to-month or such shorter period as may be specified by Lessor.
(c) If Lessee gives Lessor timely notice of its election to purchase
Equipment, then on the expiration date of the applicable Schedule Lessee shall
purchase all (but not less than all) of the Equipment and shall pay to Lessor
the Fair Market Value of the Equipment plus all Taxes (other than income taxes
on Lessor's gains on such sale), costs and expenses incurred or paid by Lessor
in connection with such sale plus all accrued but unpaid amounts due with
respect to the Equipment and/or the Schedule. The Stipulated Loss Value or
Economic Value of any item of Equipment shall have no bearing or influence on
the determination of Fair Market Value under this clause (c). Upon payment in
full of the above amounts, and if no default has occurred and is continuing
under the Lease, Lessor shall transfer title to such Equipment to Lessee "as-is,
where-is" with all faults and without recourse to Lessor and without any
representation or warranty of any kind whatsoever by Lessor, express or implied.
(d) For purposes of the purchase option of the Lease, the determination
of the Fair Market Value of any Equipment shall be determined (1) without
deducting any costs of dismantling or removal from the location of use, (2) on
the assumption that the Equipment is in the condition required by the applicable
return and maintenance provisions of the Lease and is free and clear of any
Liens as required by the Lease, and (3) shall be determined by mutual agreement
of Lessee and Lessor or, if Lessor and Lessee are not
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able to agree on such value, by the Appraisal Procedure. "Appraisal Procedure"
means the determination of Fair Market Value by an independent appraiser
acceptable to Lessor and Lessee, or, if the parties are unable to agree on an
acceptable appraiser, by averaging the valuation (disregarding the one which
differs the most from the other two) of three independent appraisers, the first
appointed by Lessor, the second appointed by Lessee and the third appointed by
the first two appraisers. For purposes of the "Remedies" section of the Lease,
the Fair Market Value shall be determined by Lessor in good faith and any such
valuation shall be on an "as-is, where is" basis without regard to the first
sentence of clause (d). Lessee, at its sole expense, shall pay all reasonable
fees, costs and expenses of the above described appraisers.
24. GOVERNING LAW: THE INTERPRETATION, CONSTRUCTION AND VALIDITY OF THE
LEASE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
25. MISCELLANEOUS: (a) Subject to the limitations herein, the Lease
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, successors and assigns. (b) This Master Lease
Agreement and each Schedule may be executed in any number of counterparts, which
together shall constitute a single instrument. Only one counterpart of each
Schedule shall be marked "Lessor's Original" and all other counterparts shall be
marked "Duplicate". A security interest in any Schedule may be created through
transfer and possession only of the counterpart marked "Lessor's Original". (c)
Section and paragraph headings in this Master Lease Agreement and the Schedules
are for convenience only and have no independent meaning. (d) The terms of the
Lease shall be severable and if any term thereof is declared unconscionable,
invalid, illegal or void, in whole or in part, the decision so holding shall not
be construed as impairing the other terms of the Lease and the Lease shall
continue in full force and effect as if such invalid, illegal, void or
unconscionable term were not originally included herein. (e) All indemnity
obligations of Lessee under the Lease and all rights, benefits and protections
provided to Lessor by warranty disclaimers shall survive the cancellation,
expiration or termination of the Lease. (f) Neither party shall be liable to the
other for any indirect, consequential or special damages for any reason
whatsoever. (g) Each payment made by Lessee shall be applied by Lessor in such
manner as Lessor determines in its discretion which may include, without
limitation, application as follows: first, to accrued late charges; second, to
accrued rent; and third, the balance to any other amounts then due and payable
by Lessee under the Lease. (h) If the Lease is signed by more than one Lessee,
each of such Lessees shall be jointly and severally liable for payment and
performance of all of Lessee's obligations under the Lease.
26. ENTIRE AGREEMENT: THE LEASE REPRESENTS THE FINAL, COMPLETE AND
ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO. THERE ARE NO ORAL OR UNWRITTEN
AGREEMENTS OR UNDERSTANDINGS AFFECTING THE LEASE OR THE EQUIPMENT. Lessee agrees
that Lessor is not the agent of any manufacturer or supplier, that no
manufacturer or supplier is an agent of Lessor, and that any representation,
warranty or agreement made by manufacturer, supplier or by their
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employees, sales representatives or agents shall not be binding on Lessor.
Regardless of any prior, present or future oral agreement or course of dealing,
no term or condition of the Lease may be amended, modified, waived, discharged,
cancelled or terminated except by a written instrument signed by the party to be
bound; except Lessee authorizes Lessor to complete the Acceptance Date of each
schedule and the serial numbers of any equipment.
27. NO USURY INTENDED; SPREADING. Notwithstanding any provision to the
contrary contained in this Lease or any of the Schedules hereto, it is expressly
provided that in no case or event shall the aggregate of (i) all interest on the
unpaid balance owing under this Lease, accrued or paid from the date hereof and
(ii) the aggregate of any other amounts accrued or paid pursuant to this Lease
or any of the Schedules hereto, which under applicable laws are or may be deemed
to constitute interest upon the indebtedness evidenced by this Lease from the
date hereof, ever exceed the Ceiling Rate. In this connection, Lessor and Lessee
stipulate and agree that it is their common and overriding intent to contract in
strict compliance with applicable usury laws. In furtherance thereof, none of
the terms of this Lease or any of the Schedules hereto shall ever be construed
to create a contract to pay, as consideration for the use, forbearance or
detention of money, interest at a rate in excess of the Ceiling Rate. Lessee or
other parties now or hereafter becoming liable for payment of the indebtedness
evidenced by this Lease shall never be liable for interest in excess of the
Ceiling Rate. If, for any reason whatever, the interest paid or received on this
Lease during its full term produces a rate which exceeds the Ceiling Rate, the
Lessor shall credit against the principal of this Lease (or, if such
indebtedness shall have been paid in full, shall refund to the payor of such
interest) such portion of said interest as shall be necessary to cause the
interest paid on this Lease to produce a rate equal to the Ceiling Rate. All
sums paid or agreed to be paid to the Lessor for the use, forbearance or
detention of the indebtedness evidenced hereby shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of this Lease, so that the interest rate is uniform
throughout the full term of this Lease. The provisions of this Paragraph shall
control all agreements, whether now or hereafter existing and whether written or
oral, between Lessor and Lessee. As used herein, "Ceiling Rate" means, on any
day, the maximum non-usurious rate of interest permitted for that day by
whichever of applicable federal or state laws permits the higher interest rate,
stated as a rate per annum.
28. JURY WAIVER: ALL PARTIES TO THIS MASTER LEASE AGREEMENT WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PARTY AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN
CONNECTION WITH OR IN ANY WAY RELATED TO THIS MASTER LEASE AGREEMENT.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Master Lease Agreement as of the date first written above.
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BANC ONE LEASING CORPORATION HOME INTERIORS & GIFTS, INC.
Lessor Lessee
By: By:
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Title: Title:
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