Exhibit 10.28
MASTER LEASE AGREEMENT
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MASTER LEASE AGREEMENT, dated as of December 20, 1996, ("Lease"), between
FA, Inc. ("Lessor"), and Equipment Leasing Associates 1995-VI Limited
Partnership ("Lessee").
Lessor agrees to lease the equipment and accessories thereto listed on
Schedule A attached hereto (the "Equipment") to Lessee, and Lessee hereby agrees
to lease the Equipment from Lessor, on the terms and subject to the conditions
specified herein. (If and to the extent that there are more than one Schedule A
and related Schedule B attached hereto, each Schedule A and related Schedule B
shall incorporate this Master Lease Agreement and shall be deemed a separate and
distinct lease of the Equipment covered thereby.) The definition of terms in the
Purchase and Sale Agreement of even date herewith between the Lessor, as
"Buyer," and the Lessee, as "Seller" (the "Purchase Agreement"), regarding the
applicable Equipment shall apply herein.
1. TERM. The term of this Lease shall commence and end on the dates
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specified in Schedule B attached hereto.
2. RENT. Lessee hereby agrees to pay Lessor fixed rent in the amounts
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and on the dates specified in Schedule B ("Fixed Rents"). Any and all payments
of rent not paid when due as specified on Schedule B shall bear interest after
the due date thereof at the rate of 10% per annum. Such interest shall accrue
for every day such rent payment is overdue.
3. ACCEPTANCE OF EQUIPMENT BY LESSEE. Lessee hereby agrees that its
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execution of this Lease shall, without further act, irrevocably constitute
acceptance by Lessee of the Equipment for all purposes of the Lease in an "as
is" condition.
4. MOVEMENT OF EQUIPMENT. In no event shall any Equipment be moved from
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its present country without the written consent of Lessor.
5. RETURN OF EQUIPMENT. Unless a unit of Equipment has been previously
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disposed of in accordance with Section 11(a) or (c), or in accordance with any
other written agreement between Lessor and Lessee, Lessee will, at its own cost
and expense, deliver possession of each unit of Equipment to Lessor upon the
termination hereof, in the condition required for it to be maintained by Lessee
pursuant to Section 8(b), at the location of the Equipment on that date, free
and clear of any liens, charges, security interests, encumbrances or rights of
any person, other than the rights of Lessor or any User Lessee or any lien,
charge, security interest or encumbrance incurred by or on behalf of Lessor.
6. WARRANTIES AND SERVICE POLICIES. Unless Lessee shall have been
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declared in default pursuant to Section 16, Lessor hereby covenants and agrees
that Lessor will assign or otherwise make available to Lessee such rights as
Lessor may have under any warranty or service policy with respect to the
Equipment made by the manufacturer of the Equipment (the
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"Manufacturer"), any subcontractors of the Manufacturer, or any vendors to the
extent that the same may be assigned or otherwise made available to Lessee.
7. GENERAL TAX INDEMNITY. Lessee will pay, and will defend, indemnity
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and hold Lessor harmless on an after-tax basis from, any and all Taxes (as
defined below) and 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, whether they are assessed to or
payable by Lessee or Lessor, including, without limitation (i) sales, use,
excise, licensing, registration, titling, franchise, business and occupation,
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. 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 promptly on request. 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.
8. POSSESSION; USE AND MAINTENANCE; COMPLIANCE WITH LAWS; INSURANCE.
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(a) Possession. So long as no Event of Default shall have occurred
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and be continuing, Lessee and any User Lessee shall be entitled, as against
Lessor or its assignee, to the possession and use of the Equipment in accordance
with and during the term of this Lease; as long as any User Lessee is not in
default under the User Lease, the User Lessee shall be entitled to continued
possession and use of the Equipment.
(b) Use and Maintenance.
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(i) Lessee shall cause the Equipment to be used only in the
manner for which it was designed and intended and so as to subject it only to
ordinary wear and tear. Lessee shall not modify any unit of Equipment without
the prior written approval of Lessor, except as provided in (ii) and (iii) below
or as may be authorized by any sublease or User Lease as permitted under Section
14 hereof. Notwithstanding the preceding, Lessee may add, delete or substitute
features or options on any unit of the Equipment provided none thereof decrease
the value of the Equipment, in any way damage or injure the Equipment, interfere
with the normal or satisfactory operation or maintenance of the Equipment or
create a safety hazard, and, provided further, that at or following the
expiration of the term hereof, Lessee shall, at its expense, remove such
additions or alterations promptly on demand of Lessor, and, forthwith upon such
removal, restore the Equipment to its original condition, less ordinary wear and
tear. In the event that at the expiration of the term of the Lease for any item
of Equipment, such item has been upgraded by additions, and/or replacements such
that the item's value has been
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increased over that which it would be absent such upgrades, then Lessee, in lieu
of removing such upgrades, may leave same attached to the subject item and
Lessor and Lessee agree to permit the item and such upgrades to be remarketed as
a single unit, with any proceeds from such remarketing being distributed to
Lessor and Lessee based upon the respective then fair market values (as defined
in Section 23(h) hereof).
(ii) Lessee may acquire and install, at Lessee's expense, such
additional features or options (including memory) as may be available from time-
to-time. Such additional features or options shall be removed by Lessee before
the Equipment is returned to Lessor and Lessee shall repair all damages to the
Equipment resulting from such installation and removal; provided, however, that
Lessee shall not be required to remove additional features or options if Lessee
complies with the procedures set forth in (i) above.
(iii) Lessee shall, at Lessor's expense, make any modifications
and acquire any additional features requested in writing by Lessor.
(iv) Lessee shall cause all units of Equipment under lease to
User Lessees to be maintained in good operating condition and repair, and will
cause all necessary adjustments and repairs to be made to the Equipment. Lessee
is hereby authorized to provide directions with respect to such maintenance,
adjustments and repairs, and such maintenance shall be subject to the reasonable
safety and security regulations of Lessee and any User Lessee.
Charges for maintenance, installation and dismantling of
the Equipment shall be borne by Lessee, and Lessee agrees promptly to reimburse
Lessor for any amount thereof paid by Lessor. All Equipment shall be installed
and operated as specified in the Manufacturer's installation manual and in
places meeting at all times the standards established by Lessee for location and
operation of similar equipment owned or leased by it. All units not leased to
User Lessees shall be properly maintained to prevent deterioration or other
damage.
(v) Notwithstanding anything contained herein to the contrary,
any improvements or additions that are made by Lessee shall be owned by Lessee
provided that such improvements and additions shall be readily removable without
causing material damage to the Equipment and any damage so caused is repaired or
Lessee complies with the procedures set forth in (i) above; but ordinary
maintenance and repairs performed by Lessee will not constitute an improvement
or addition to the Equipment within the meaning hereof.
(c) Governing Laws. Rules and Regulations. Lessee agrees to comply
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with all governmental laws, regulations, requirements and rules with respect to
the use, maintenance and operation of each unit of Equipment.
(d) Insurance. Lessee at its sole expense shall at all times keep
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each item of Equipment insured against all risks of loss or damage from every
cause whatsoever for an amount not less than the full replacement value of such
item of Equipment. Lessee at its sole expense shall at all times carry public
liability and property damage insurance in amounts reasonably 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
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shall deliver to Lessor satisfactory evidence of such coverage. Proceeds of any
insurance covering damage or loss of the Equipment shall be payable to Lessor as
loss payee and shall, at Lessor's option, be applied toward (a) the replacement,
restoration or repair of the Equipment, or (b) payment of the obligations of
Lessee under the Lease. If the User Lessee's insurance permits the User Lessee
to replace the equipment with the insurance proceeds, then Lessor shall be
obligated to allow the replacement or repair of the equipment with such
insurance proceeds. Proceeds of any public liability or property insurance
shall be payable first to Lessor as additional insured 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 2 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 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.
Lessor agrees that Lessee's obligations under this paragraph (d) of Section 8
shall be deemed satisfied with respect to any unit of Equipment subject to a
User Lease or sublease permitted under Section 14 hereof which provides for the
User Lessee or sublessee or any other party thereunder to insure the Equipment
in a manner and in such amounts as comply with Lessee's responsibilities set
forth in this subparagraph and if Lessee provides Lessor with an assignment of
said insurance reasonably satisfactory to Lessor.
(e) Inspection. Lessee will permit any authorized representative of
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Lessor to inspect the Equipment and reasonably to examine, copy or make extracts
from, any and all books, records and documents in the possession of Lessee
relating to the Equipment and performance of this Lease, all at such reasonable
times and as often as may reasonably be requested.
9. REPRESENTATIONS AND WARRANTIES.
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(a) Lessee's Representations. Lessee represents and warrants to, and
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covenants with, Lessor, as follows:
(i) Organization and Existence. Lessee is, at the time of
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executing and delivering this Lease, and will be, on the Commencement Date and
throughout the term of this Lease, a limited partnership duly and validly
organized and existing in good standing under the laws of the State of Delaware
and duly qualified to own its properties and carry on its business in each
jurisdiction where the failure to be so qualified would be materially adverse to
Lessee or its business, or Lessor.
(ii) Power and Authority. Lessee has the power and authority to
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execute and deliver this Lease and will at the time of execution and delivery
hereof have the power and authority to execute and deliver or accept, as the
case may be, any and all other agreements, instruments and documents executed
and delivered or accepted in connection herewith or therewith and to pay and
perform, when due, its obligations hereunder and thereunder.
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(iii) Authorization. The execution and delivery or acceptance,
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as the case may be, of this Lease and the other documents contemplated hereby by
Lessee have been duly authorized by all necessary action of Lessee and do not,
and at the time of their execution and delivery or acceptance will not, violate
or conflict with, or, with or without the giving of notice, the passage of time
or both, constitute a default under, any provision of Lessee's instruments of
organization, any law, or any order, writ, injunction, decree, rule or
regulation of any court, administrative agency or any other governmental
authority or any agreement or other document or instrument to which Lessee is,
or will then be, a party, or by which Lessee or the Equipment is, or may then
be, bound.
(iv) Enforceability. This Lease and the other documents
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contemplated hereby constitute, or when executed and delivered will constitute,
the valid and binding obligations of Lessee, enforceable against it in
accordance with their respective terms, subject, however, to laws of general
application affecting creditors' rights.
(b) Lessor's Representations and Warranties. Lessor represents and
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warrants to, and agrees with, Lessee as follows:
(i) Organization and Existence. Lessor is, at the time of
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executing and delivering this Lease, and will be, on the Commencement Date and
throughout the term of this Lease, a corporation duly and validly organized and
existing under the laws of the state of Delaware and duly qualified to own its
properties and carry on its business in each jurisdiction where the failure to
be so qualified would be materially adverse to Lessor or its business, or
Lessee.
(ii) Power and Authority. Lessor has the power and authority to
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execute and deliver this Lease and will, at the time of execution and delivery
thereof have the power and authority to execute and deliver or accept, as the
case may be, the other documents contemplated hereby and to pay and perform,
when due, its obligations hereunder and thereunder.
(iii) Authorization. The execution and delivery or acceptance,
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as the case may be, of this Lease and the other documents contemplated hereby by
Lessor, and the payment and performance by Lessor, when due, of its obligations
hereunder and thereunder, have been duly authorized by all necessary action of
Lessor and do not, and at the time of their execution and delivery or
acceptance, as the case may be, will not, violate or conflict with, or, with or
without the giving of notice, the passage of time or both, constitute a default
under, any provision of Lessor's instruments of organization, any order, writ,
injunction, decree, rule or regulation of any court, administrative agency or
any other governmental authority or any agreement or other document or
instrument to which Lessor is a party, or by which Lessor is, or may be, bound.
(iv) Enforceability. This Lease and the other documents
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contemplated hereby constitute, or when executed and delivered will constitute,
the valid and binding obligations of Lessor, enforceable against it in
accordance with their respective terms, subject, however, to laws of general
application affecting creditors' rights.
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10. OWNERSHIP; FILING.
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(a) Retention of Title. Lessor or its transferee shall and hereby
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does retain full legal title to the Equipment notwithstanding the delivery of
possession to, and use by, Lessee.
(b) Duty to ▇▇▇▇ Equipment. Lessee agrees to ▇▇▇▇ the Equipment with
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all information as may from time to time be required by Lessor in order to
protect the title of Lessor to the Equipment and Lessor's rights under this
Lease, and Lessee will replace promptly any such-markings which may be removed,
defaced or destroyed. The failure to ▇▇▇▇ or identify any equipment shall not
serve to diminish or prejudice Lessor's full legal title and ownership of the
Equipment.
(c) Filing. Lessee will cooperate with Lessor for the purpose of
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protecting Lessor's title to the Equipment and the sums due under this Lease,
including executing and filing appropriate financing statements.
(d) Encumbrance: Disposition. Lessee shall not encumber and shall
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not by contract permit sublessees to encumber, nor shall Lessee dispose of, the
Equipment other than as expressly permitted by this Lease; and Lessee agrees to
cause the Equipment to remain free and clear of any such encumbrance.
Furthermore, Lessee agrees that it shall claim no depreciation deduction for
income tax purposes for the Equipment. In no event shall Lessee take any
position on its tax return or any other document relating thereto that is
inconsistent with Lessor's ownership of the Equipment.
11. DAMAGE TO EQUIPMENT; REQUISITION; EARLY TERMINATION.
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(a) Casualty Occurrence. In the event any unit of Equipment is
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damaged, destroyed, lost, stolen, or title thereto shall be requisitioned or
taken by any governmental authority under power of eminent domain or otherwise,
such fact shall promptly be reported by Lessee to Lessor. Lessee shall determine
in the event of damage, whether such unit of Equipment can be repaired. In the
event Lessee determines that such unit of Equipment can be repaired, Lessee
shall cause such unit of Equipment to be repaired, at Lessee's expense, as soon
as reasonably practicable. Lessee shall be entitled to reimbursement from and to
the extent of any insurance proceeds paid with respect to a unit of Equipment
repaired by Lessee. In the event Lessee determines that the unit of Equipment
cannot be repaired or in the event of such destruction, loss, theft, requisition
or taking of title, such unit of Equipment shall be deemed to have suffered a
"Casualty Occurrence" and, as soon as reasonably practicable after the date of
such Casualty Occurrence, Lessee shall either (at Lessee's option) (x) pay to
Lessor a purchase price equal to such Equipment's fair market value (as defined
in Section 23(h) hereof plus a lease termination fee equal to the present value
(using a discount rate equal to the discount rate set forth on Schedule B (the
"Discount Rate")) of the remaining Fixed Rent applicable to the subject
Equipment less the fair market value of Lessee's remaining leasehold interest
hereunder with respect to such Equipment, or (y) replace such item with any item
or items of like kind equipment, in accordance with the terms set forth in
Section 23(g) hereof. The repair or replacement of the Equipment as hereinabove
provided shall not result in any abatement or reduction in, or in any other way
affect, the rent to be paid with respect to such Equipment, it being expressly
agreed that the Fixed Rent payable with respect thereto shall continue in the
same amounts and be payable at the same times as prescribed on Schedule B hereto
as if such repair or replacement did not occur. In the event Lessee elects (in
lieu of replacing) to purchase any unit of Equipment, as described above, the
Fixed Rent
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payable pursuant to Schedule B shall (as of the next rental payment) be reduced
to an amount which bears the same relationship to the rental payable before such
reduction as the value of Equipment leased after the Casualty Occurrence bears
to the value of Equipment leased prior to the Casualty Occurrence.
(b) Risk of Loss. Lessee shall, during the entire term of this
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Lease, bear the risk of loss to the Equipment and, except as provided in
paragraph (a) of Section 11, shall not be released from its obligations
hereunder in the event of any Casualty Occurrence to any unit of Equipment.
(c) Option. So long as no Event of Default (as defined herein) shall
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have occurred and be continuing, if, when and to the extent (x) a User Lessee
exercises its option to purchase any unit of Equipment pursuant to an option
contained in a User Lease, or (y) with respect to an item of Equipment not
currently on lease to a User Lessee, Lessee determines that it is uneconomical
to continue to hold such items of Equipment on lease, Lessee shall have the
right to purchase the subject Equipment (the "Off-Lease Item") at a purchase
price equal to its then fair market value (as herein defined and determined) and
Lessee shall pay to Lessor a lease termination fee equal to the present value
(discounted at the Discount Rate) of the remaining Fixed Rent applicable to the
subject Equipment less the fair market value of Lessee's remaining leasehold
interest hereunder. Lessor shall convey the Off-Lease Item to Lessee free and
clear of any liens, claims or encumbrances created by, through or under Lessor,
other than any underlying lien and the User Lease, if any, then in effect.
Thereupon, this Lease shall terminate with respect to the Off-Lease Item. In
lieu of the foregoing purchase and sale, Lessee shall have the right instead to
substitute and replace such Item with other equipment which is substantially
similar within the parameters set forth in Section 23(g) hereof (the
"Replacement Item"). Effective upon such replacement, all incidents of Lessee's
interest as Lessee hereunder in the Off-Lease Item ipso facto shall cease and
terminate automatically and the Replacement Item shall become Equipment leased
hereunder instead of the Off-Lease Item. In addition, effective upon such
replacement, all of Lessor's right, title and interest in and to the Off-Lease
Item shall be automatically assigned and shall pass to Lessee and Lessor shall
have no further interest therein. The substitution for a unit of Equipment shall
not result in any abatement or reduction in, or in any other way affect, the
rent to be paid with respect to such Equipment, it being expressly agreed that
the rent payable with respect thereto shall continue in the same amounts and be
payable at the same times as prescribed on Schedule B hereto as if such
substitution did not occur. In the event Lessee elects to purchase any unit of
Equipment which was the subject of the option, in lieu of replacing such unit of
Equipment, the rent payable pursuant to Schedule B shall (as of the next rental
payment) be reduced to an amount which bears the same relationship to the rental
payable before such reduction as the value of the Equipment leased after the
exercise of the option bears to the value of Equipment leased prior to the
exercise of the option. For purposes of the preceding sentence "value" shall be
determined by reference to original cost of the Equipment to Lessor.
12. GENERAL INDEMNITY. Lessee assumes all risk and liability for, and
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shall defend, indemnity and keep Lessor harmless on an after-tax basis from, 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,
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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 indemnity Lessor under this section for
loss or liability caused directly and solely by the gross negligence or willful
misconduct of Lessor. Lessee shall not be required to indemnify Lessor or
Lessor's successors and assigns for loss or liability in respect of any unit of
Equipment arising from acts or events that occur after possession of such unit
of Equipment has been delivered to Lessor in accordance with Section 5. 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. ASSIGNMENT.
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(a) By Lessor. Lessee agrees that Lessor may transfer or assign all
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or any part of Lessor's right, title and interest in, under or to the Equipment
and this Lease and any or all sums due or to become due pursuant to any of the
above, to any third party (the "Assignee") for any reason. Lessee agrees that
upon receipt of written notice from Lessor of such assignment, Lessee shall
perform all of its obligations hereunder for the benefit of Assignee and, if so
directed, shall pay all sums due or to become due hereunder directly to the
Assignee or to any other party designated by the Assignee. Lessee hereby
covenants, represents and warrants as follows and agrees that the Assignee shall
be entitled to rely on and shall be considered a third-party beneficiary of the
following covenants, representations and warranties:
(i) Lessee's obligations to Assignee hereunder are absolute and
unconditional and are not subject to any abatement, reduction, recoupment,
defense, offset or counterclaim available to Lessee for any reason whatsoever
including operation of law, defect in the Equipment, failure of Lessor to
perform any of its obligations hereunder or for any other cause or reason
whatsoever, whether similar or dissimilar to the foregoing;
(ii) Lessee will not look to Assignee to perform any of Lessor's
obligations hereunder;
(iii) Lessee will not amend or modify this Lease without the
prior written consent of the Assignee; and
(iv) Lessee will send a copy to Assignee of each notice which
Lessee sends to Lessor.
(b) By Lessee. Lessee shall not, directly or indirectly, (a) mortgage,
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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
(except User Lessees as set forth in paragraph 14 below) or (c) create, incur,
grant, assume or allow to exist any lien on the lease, any schedule, the
equipment or part thereof.
14. SUBLEASE BY LESSEE. Subject to the terms and conditions of this
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Section 14, Lessee may sublease any or all of the Equipment without the consent
of Lessor or its Assignees if:
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(a) the terms and conditions of such User Lease are generally as
favorable to Lessee as the terms and conditions in Lessee's leases or subleases
then being offered to others leasing similar equipment; and
(b) the sublease is in the ordinary course of Lessee's business;
(c) the sublease of any Equipment is not beyond the term of this
Lease without the consent of the Lessor, which consent shall not be unreasonably
withheld.
Lessee, shall be responsible for any and all remarketing fees incurred in
connection with the sublease of the Equipment, and Lessor, as between Lessor and
Lessee, shall be responsible for any and all other reasonable costs and expenses
incurred in connection therewith.
15. ASSIGNMENT OF SUBLEASES AND OTHER RESPONSIBILITIES. Lessor hereby
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assigns, transfers and conveys to Lessee, effective upon the Commencement Date
hereof, all of Lessor's rights, title and interest in, under and to the initial
User Lease(s) and the Remarketing Agreement. In consideration therefor, Lessee,
for the benefit of Lessor (but not for the benefit of any other party,
including, but not limited to, the User Lessee), hereby agrees to assume and
discharge each and every one of the obligations of Lessor thereunder and hereby
relieves Lessor of and releases Lessor from every obligation thereunder. Lessee
further agrees (i) that it will pay and apply all rentals and other sums
otherwise to be retained by Lessee under User Lease(s) to pay amounts due on the
Underlying Debt, (ii) that it will not commingle such rents and other sums under
any such User Lease(s) with its other assets so long as any such Underlying Debt
applicable to such User Lease(s) remains outstanding, and (iii) that, subject to
the rights of any Underlying Lender with respect to any Underlying Debt, it will
pursue in a commercially reasonable manner its remedies against any User Lessee
arising from any default or violation of any User Lease(s). Lessor agrees that
so long as Lessee fulfills its covenants and obligations in this paragraph,
Lessee shall have not further obligations or personal liability to discharge any
Underlying Debt in favor of any Underlying Lender or to make any payment on
account thereof.
16. EVENTS OF DEFAULT. The following events shall constitute Events of
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Default:
(a) Lessee shall fail to make any payment of rent when the same shall
become due and such failure shall continue unremedied for a period of 15 days
(fifteen) after written notice to Lessee; or
(b) Lessee shall fail to provide or maintain insurance as required by
paragraph above and such failure shall continue unremedied for a period of 5
(five) days after written notice to Lessee;
(c) Lessee shall fail to perform or observe any other covenant,
condition or agreement to be performed or observed by it hereunder, and such
failure shall continue unremedied for a period of thirty (30) days after written
notice thereof by Lessor, unless, if such default cannot reasonably be cured
within said thirty (30) days, Lessee shall have promptly commenced action to
cure such default during said period and shall diligently pursue said action; or
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(d) Any representation or warranty made by Lessee herein, or in any
agreement, document, or certificate furnished Lessor in connection herewith or
pursuant hereto or pursuant to which this Lease is executed, shall prove to be
incorrect at any time in any material respect and shall continue unremedied (if
such representation or warranty is capable of being remedied) for a period of
thirty (30) days after written notice thereof by Lessor; or
(e) Lessee shall admit in writing its inability to pay its debts or
shall have made a general assignment for the benefit of creditors; or shall have
permitted the entry of an order for relief in bankruptcy; or shall take any
action towards its dissolution or liquidation; or shall have filed a voluntary
petition in bankruptcy or for reorganization or to effect a plan or other
arrangement with creditors; or shall have filed an answer to a creditor's
petition or other petition filed against it (admitting the material allegations
thereof) for an order for relief in bankruptcy or for a reorganization; or shall
have applied for or permitted the appointment of a receiver or trustee or
custodian for any of its property or assets and such receiver, trustee or
custodian so appointed shall not have been discharged within sixty (60) days
after the date of his appointment; or if an order shall be entered, and shall
not be dismissed or stayed within sixty (60) days from its entry, approving any
petition for a reorganization of Lessee.
17. REMEDIES. Upon the occurrence of any Event of Default and, at any
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time after notice and grace period duly given to Lessee as provided herein to
cure said Event of Default, so long as the same shall be continuing, Lessor may,
at Lessor's option, declare this Lease to be in default by written notice to
such effect delivered to Lessee and, at any time thereafter, Lessor may exercise
one or more of the following remedies, as Lessor in Lessor's sole discretion
shall elect:
(a) Proceed by appropriate court action, either at law or in equity,
to enforce performance by Lessee of the applicable covenants of this Lease or to
recover damages for the breach thereof;
(b) Declare the entire amount of rent for the remainder of the term
to be immediately due and payable without notice or demand to Lessee, whereupon
Lessee shall pay such amount to Lessor discounted to present value at the
Discount Rate;
(c) Subject to the rights of any Underlying Lender and of any User
Lessee not in default under a User Lease, cause Lessee, at its expense, promptly
to return the Equipment to the possession of Lessor at the location where the
Equipment is in last use and in the condition required upon the return thereof
pursuant to Section 5, or Lessor, at Lessor's option, may enter upon the
premises where the Equipment is located and take immediate possession of the
same and render it unusable or remove it by summary proceedings or otherwise;
(d) Subject to the rights of any Underlying Lender and of any User
Lessee not in default under a User Lease, sell the Equipment at public or
private sale as Lessor may determine, free and clear of any rights of Lessee,
and hold Lessee liable for any deficiency resulting from an excess of the sum of
all unpaid rent (if any) due and payable for periods up to and including the
rental period during which such sale occurs, plus any accelerated rent
(discounted as provided in (b)above), plus Lessor's costs and expenses incurred
in connection with such repossession and sale, over the gross proceeds of such
sale;
10
(e) Subject to the rights of any Underlying Lender and of any User
Lessee not in default under an User Lease, Lessor may use, operate, lease, or
hold the Equipment as Lessor in Lessor's sole discretion may decide. In
addition, Lessee shall be liable for any and all costs and expenses (to the
extent not provided for hereinabove), including reasonable attorney's fees,
disbursements and any costs and expenses in placing the Equipment in the
condition required by the terms hereof, including Section 5, incurred by reason
of the occurrence of any Event of Default or the exercise of Lessor's remedies
with respect thereto;
(f) Except as otherwise provided above, no remedy referred to in this
Section 17 is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to above or otherwise available to Lessor
at law or in equity, including, but not limited to, the right to terminate this
Lease. No express or implied waiver by Lessor of any Event of Default hereunder
shall in any way be, or be construed to be, a waiver of any future or subsequent
Event of Default.
(g) If an Event of Default hereunder shall occur which affects and
relates to some but not all of the Equipment leased hereunder, then Lessor's
foregoing remedies may be exercised only with respect to that item or those
items of Equipment to which the Event of Default relates.
18. LESSOR'S RIGHT TO PERFORM FOR LESSEE. If Lessee fails to make any
------------------------------------
payment required to be made by it hereunder or fails to perform or comply with
any of its agreements contained herein, Lessor may, upon ten (10) days' prior
written notice to Lessee, make such payment and the amount of the reasonable
expenses of Lessor incurred in connection with such payment or the performance
of or compliance with such agreement, as the case may be, together with interest
at the rate of ten percent (10%), shall be payable by Lessee upon demand.
19. NOTICES. All notices required or permitted to be delivered to any
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party shall be in writing, and shall be deemed to be given when delivered, or
when deposited in the United States mails, certified or registered and postage
prepaid, with return receipt requested, as follows:
(a) If to Lessor:
FA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) If to Lessee: Equipment Leasing Associates
1995-VI Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as may be designated in writing from time to time by
one party to the other.
20. NO SET-OFF FOR LESSEE. This Lease is a net lease, and Lessee's
---------------------
obligation to pay all rent payable hereunder shall be absolute and
unconditional, and all such rent shall be paid (and not recovered back for any
reason) notwithstanding any circumstances, including without limitation (i) any
11
set-off, counterclaim, recoupment, defense or other right which Lessee may have
against Lessor, the Manufacturer or anyone else for any reason whatsoever, (ii)
except as provided in paragraphs (a) and (c) of Section 11, any defect in the
Equipment, condition, title, design, operation or fitness for use of, or any
damage to or loss or destruction of, the Equipment or an interruption or
cessation in the use or possession thereof by Lessee for any reason whatsoever,
or (iii) any insolvency, bankruptcy, reorganization or similar proceedings by or
against Lessee. Anything contained in this Lease or any other agreement to the
contrary notwithstanding, any obligation of Lessor shall be separate and
independent from and shall not affect Lessee's obligation to make payment
hereunder.
21. NO WARRANTIES BY LESSOR. LESSOR SUPPLIES THE EQUIPMENT AS IS AND NOT
-----------------------
BEING THE MANUFACTURER OF THE EQUIPMENT, THE MANUFACTURER'S AGENT OR THE
SELLER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
AS TO THE EQUIPMENT'S MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN,
CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP OR AS TO PATENT
INFRINGEMENT OR THE LIKE, it being agreed that all such risks, as between Lessor
and Lessee, are to be borne by Lessee. Lessee agrees to look solely to the
Manufacturer or to suppliers of the Equipment for any and all warranty claims
and any and all warranties made by the Manufacturer or the supplier of Lessor
are hereby assigned to Lessee for the term of this Lease. Lessee agrees that
Lessor shall not be responsible for the delivery, installation, maintenance,
operation or service of the Equipment or for delay or inadequacy of any or all
of the foregoing. Lessor shall not be responsible for any direct or
consequential loss or damage resulting from the installation, operation or use
of the Equipment or otherwise.
22. SECURITY INTEREST.
-----------------
(a) To secure payment of the rent and its other obligations
hereunder, Lessee hereby grants Lessor a security interest in all of Lessee's
contract rights (and the proceeds thereof) under the following collateral (the
"Collateral"):
(i) Any and all User Leases, including any renewal or extension
thereof;
(ii) All rental or other payments due or to become due from User
Lessees under the User Leases, including late charges, damages, insurance
payments, or otherwise;
(iii) Lessee's rights, if any, to the Equipment as now or later
described in the schedules in accordance with the provisions of this Lease;
(iv) Any and all collateral or security given for the
performance of the obligations under any or all of the User Leases; and
(v) Any and all proceeds from the User Leases, together with
all of the rights and remedies of the Lessee under the User Leases.
(b) Lessee agrees to take whatever steps are reasonably requested by
Lessor to further evidence and perfect the Lessor's security interest granted
herein, including, but not limited to,
12
executing and delivering a Collateral Lease Assignment to and for the benefit of
Lessor contemporaneous with Lessee's execution and delivery hereof.
23. MISCELLANEOUS.
-------------
(a) Consent. Unless otherwise expressly provided, wherever consent
-------
or approval of either party is required herein, such consent or approval shall
not be unreasonably withheld.
(b) Counterparts. This Lease may be executed in several
------------
counterparts, each of which so executed shall be deemed to be an original, and
in each case such counterparts shall constitute but one and the same instrument.
(c) Severability. Any provision of this Lease which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, Lessor and Lessee
hereby waive any provision of law which renders any provision hereof prohibited
or unenforceable in any respect.
(d) Modification of Lease. No term or provision of this Lease may be
---------------------
changed, waived, discharged, or terminated orally, but only by an instrument in
writing signed by the party against whom the enforcement of the change, waiver,
discharge or termination is sought.
(e) Captions. The captions in this Lease are for convenience of
--------
reference only and shall not define or limit any of the terms or provisions
herein.
(f) Governing Law. This Lease shall in all respects be governed by
-------------
and construed in accordance with the laws of the Commonwealth of Virginia
including all matters of construction, validity and performance.
(g) Substitution of Equipment. Whenever Lessee elects to substitute
-------------------------
equipment ("Substituted Equipment") as provided in Section 11(a) and (c) hereof,
Lessee shall replace such item with any item or items of like kind equipment
reasonably satisfactory to Lessor; provided, however, that (i) Lessee transfers
to Lessor (by ▇▇▇▇ of sale or other documents necessary to effect such transfer)
such Substituted Equipment, free and clear of all security interest, liens,
leases, claims, charges and encumbrances, except as expressly permitted below,
(ii) at the time of such replacement, the Substituted Equipment shall have an
aggregate fair market value equal to or greater than the aggregate fair market
value of the replaced Equipment (the "Replaced Equipment") immediately prior to
the damage or destruction requiring its replacement; and (iii) the Substituted
Equipment has the same cost recovery period under Section 168(c) of the Code as
the Replaced Equipment and the substitution will be effectuated in accordance
with, and qualify as, a "like kind exchange" pursuant to, and as defined in,
Code Section 1031. Any item or items of Substituted Equipment may be subject to
security interests, liens, or encumbrances, provided that the indebtedness
relating to such security interest, liens or encumbrances, when added to all
other indebtedness then outstanding on the Equipment (other than indebtedness on
the Replaced Equipment), will not be in excess of the aggregate unpaid balance
of the unpaid balance (principal and interest) outstanding on the Nonrecourse
Note, and will be satisfied and
13
discharged in full by the payment of rent to be earned during the noncancellable
terms of User Leases for the Equipment. For purposes hereof, a cancellation
provision in a User Lease will not cause the otherwise non-cancelable terms
thereof to be deemed cancelable provided that such cancellation provision
requires that a termination or similar payment be made which will discharge and
satisfy in full such outstanding indebtedness. Lessee shall give Lessor at least
ten (10) days prior notice of any such substitution, which notice shall include
(i) a description and appraisal (by an appraiser reasonably acceptable to
Lessor) of the fair market value of the item or items of Replaced Equipment and
proposed Substituted Equipment, (ii) copies of any and all leases, security
agreements and other documents relating to security interest, liens, leases or
encumbrances imposed or to be imposed, as permitted hereunder, on the item or
items of proposed Substituted Equipment and (iii) a statement of the amounts
secured by security interests, liens and encumbrances on the item or items to be
replaced and on the proposed Substituted Equipment. The parties agree that,
effective upon the substitution of Equipment in accordance with the provisions
hereof, all incidents of Lessee's interest as Lessee hereunder in the Replaced
Equipment ipso facto shall cease and terminate automatically and the Substituted
Equipment shall become Equipment leased hereunder instead of the Replaced
Equipment. In addition, effective upon such substitution, all of Lessor's right,
title and interest in and to the Replaced Equipment shall be automatically
assigned and shall pass to Lessee and Lessor shall have no further interest
therein. Lessee and Lessor agree to execute and deliver such documents as are
necessary to transfer title to and ownership of the Substituted Equipment to
Lessor and title to and ownership of the replaced Equipment to Lessee.
(h) Fair Market Value. For purposes hereof, the term "fair market
-----------------
value" shall mean the purchase price or rental, as the case may be, that would
be obtained in an arm's-length transaction between an informed and willing buyer
or lessee under no compulsion to buy or lease and an informed and willing seller
or lessor under no compulsion to sell or lease, as determined in the good faith
exercise of the judgment of Lessor and Lessee at the applicable time. In the
event the parties are unable to agree upon a fair market value of the Equipment,
such value shall be determined in accordance with the foregoing definition by an
independent appraiser to be mutually agreed upon by the parties or, failing such
agreement, by a panel of three appraisers, one selected by Lessor, one selected
by Lessee and a third selected by the first two, the cost of which will be
deemed a remarketing expense payable out of the Equipment proceeds.
(i) Legal Costs and Attorneys' Fees. Each of the parties hereto
-------------------------------
agree that it shall pay directly any and all legal costs which it has incurred
on its own behalf in the preparation of this Lease and other agreements
pertaining to this Lease and any related transactions. In the event it becomes
necessary for either party hereto to hire counsel to review or enforce any
remedies arising out of any breach of this Lease, or if it becomes necessary for
either party hereto to file suit to enforce this Agreement, or any provision
contained herein, the party prevailing in such suit shall be entitled to
recover, in addition to all other remedies or damages, as provided herein,
reasonable attorneys' fees and costs incurred in such suit.
(j) Other Documents: Expenses. Lessee agrees to sign and deliver to
-------------------------
Lessor any additional documents reasonably deemed desirable by Lessor to effect
the terms of the Master Lease or this Schedule including, without limitation,
Uniform Commercial Code financing statements which Lessor is authorized to file
with the appropriate filing officers. Lessee hereby irrevocably appoints Lessor
as Lessee's attorney-in-fact with full power and authority in the place of
Lessee and in the name
14
of Lessee to prepare, sign, amend, file or record any Uniform Commercial Code
financing statements or other documents deemed desirable by Lessor to perfect,
establish or give notice of Lessor's interests in the Equipment or any
collateral as to which Lessee has granted Lessor a security interest. The
signing or filing of Uniform Commercial Code financing statements and other
recordings are undertaken as a precaution only since the parties intend this
Schedule to be a lease transaction. Lessee shall pay upon Lessor's written
request any actual out-of-pocket costs and expenses reasonably paid or incurred
by Lessor in connection with the above terms of this section or the funding and
closing of this Schedule.
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of
the date first above written.
LESSOR: FA, INC.
By: /s/ S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: S. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Title: President
------------------------------------------
LESSEE: EQUIPMENT LEASING ASSOCIATES
1995-VI LIMITED PARTNERSHIP
By: Management Associates Limited
Partnership VIII, General Partner
By: Managing Partners Corporation,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: Executive Vice President
------------------------------------------
16
MASTER LEASE AGREEMENT
SCHEDULE A
See attached Equipment Schedules (12 pages).
17
EQUIPMENT SCHEDULES
(The Equipment Schedules, submitted as exhibits to Exhibit A, Master Lease
Agreement are omitted for purposes of this filing as it is written in French and
would require translation. A copy is available at the Company's office.)
18
FA, Inc./Equipment Leasing Associates 1995-VI Limited Partnership
-----------------------------------------------------------------
MASTER LEASE AGREEMENT
----------------------
SCHEDULE B
----------
I. RENT: The Fixed Rent specified under Section 2 of the Master Lease Agreement
----
shall be payable as follows:
Amount Due Date
------ --------
$288,989.14 December 31, 1996
$10,403,619.55 December 31, 1997
$10,403,619.55 December 31, 1998
$10,403,619.55 December 31, 1999
$10,403,619.55 December 31, 2000
$10,114,629.54 December 31, 2001
II. TERM: The term of this Lease shall commence on December 20, 1996 and
----
continue through December 20, 2001.
III. DISCOUNT RATE: Ten Percent (10%) per annum.
-------------
IV. SUPPLEMENTAL RENT: Lessor shall also be entitled to five per cent (5%) of
-----------------
any and all remarketing proceeds from the Equipment with respect to the period
from January 1, 1998 through December 31, 1998 for transactions wherein the
original User Lease has expired and a new User Lease has commenced.
19