Exhibit 99(d)
MASTER LEASE AGREEMENT
NO. 8703ILG271
Dated as of
March 31, 1987
between
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION
AS TRUSTEE
LESSOR
AND
AMOCO CORPORATION
LESSEE
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
1. Master Lease Agreement ...................................... 1
2. Lease Term. Lessee's Right To Quiet Enjoyment ............... 1
3. Basic Rent. Net Lease. Lessee's Indemnity. No Warranties
By Lessor ................................................. 1
4. Use And Location Of Equipment. Titling and Registration.
Maintenance And Repairs. No
Liens. No Assignment Or Sublease By Lessee ................ 2
5. Loss, Damage Or Destruction Of Equipment .................... 2
6. Taxes And Fees .............................................. 3
7. Insurance ................................................... 3
8. Financial Statements. Inspection. Reports ................... 3
9. Agreement For Lease Only. Identification Marks. Financing
Statements. Further Assurances ............................ 4
10. Late Payment Charges. Lessor's Right To Perform For Lessee .. 4
11 Lessee's Options Upon Lease Expiration ...................... 4
12. Lessee's Representations And Warranties ..................... 5
13. Events Of Default. Lessor's Remedies On Default ............. 6
14. Assignment and Sublease ..................................... 9
15. Notice. Governing Law. Execution In Counterparts ............ 9
16. Participation as Trustee .................................... 10
17. Definitions ................................................. 11
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT NO. 8703ILG271, dated as of March 31, 1987, between
First Security Bank of Utah, National Association, not in its individual
capacity but solely as Trustee under that certain trust agreement "AFG/Amoco
Trust" dated as of March 31, 1987 (the "Trust Agreement") having its principal
place of business and address for purposes of notice hereunder at 79 South Main
Street, Salt Lake City, Utah 84111 Attn: Corporate Trust Department, as Lessor
("Lessor"), and Amoco Corporation, an Indiana corporation having a principal
place of business and address for purposes of notice hereunder at 200 East
Randolph Drive, Chicago, Illinois 60680, as Lessee.
1. MASTER LEASE.
This Master Lease Agreement sets forth the terms and conditions that
govern the lease by Lessor to Lessee of items of Equipment specified on Rental
Schedules executed and delivered by the parties from time to time. Each Rental
Schedule incorporates by reference this Master Lease Agreement and specifies the
Lease Term, the amount of Basic Rent, the Payment Dates on which Basic Rent is
due, and such other information and provisions as Lessor and Lessee may agree.
Each Rental Schedule constitutes a separate and independent lease.
2. LEASE TERM. LESSEE'S RIGHT TO QUIET ENJOYMENT.
Each Rental Schedule is for a non-cancellable Lease Term commencing on the
date of acceptance of the Equipment for lease and ending on the Expiration Date
specified on such Rental Schedule. Lessor and Lessee cannot, for any reason,
except as provided in the Rental Schedule, terminate the Rental Schedule or
suspend payment or performance of any of their obligations thereunder. Subject
to there being no Event of Default by Lessee under the Rental Schedule, Lessee
will have quiet possession and use of the Equipment throughout the Lease Term,
and Lessor shall defend and protect such quiet possession and use against all
persons claiming by, through or under Lessor.
3. BASIC RENT. NET LEASE. LESSEE'S INDEMNITY. NO WARRANTIES BY LESSOR.
Basic Rent is payable in the amount specified on the Rental Schedule. All
payments of Basic Rent shall be made to Lessor in good funds on the Payment
Dates specified in the Rental Schedule. Lessee agrees to pay, and will indemnify
and hold Lessor and any assignee of Lessor harmless from and against all
operating costs the same as if Lessee owned the Equipment (including, without
limitation, maintenance and repair), third party personal injury or property
damage claims (including claims of product liability or strict liability in
tort), losses or liabilities relating to Lessee's possession, control,
maintenance or repair of the Equipment or its use of such Equipment, that are
incurred by or asserted against Lessee, any permitted sublease of Lessee, Lessor
or any assignee of Lessor and arise out of matters occurring after Lessee
accepts the Equipment and prior to its return of the equipment to Lessor or its
designee. Lessee agrees to defend all claims through counsel acceptable to
Lessor. Lessee's obligations, such as, to pay the Basic Rent
are not subject to defense, counterclaim, set-off, abatement or ecoupment, and
Lessee waives all rights to terminate or surrender the Rental Schedule, for any
reason, including, without limitation, defect in the Equipment or nonperformance
by Lessor, provided, however, that Lessee specifically retains the right to seek
recourse against Lessor by way of separate action either at law or in equity in
the event of nonperformance by Lessor under this Agreement including the Rental
Schedule. EXCEPT AS OTHERWISE PROVIDED HEREIN, LESSOR HEREBY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. Lessor will
assign to Lessee all manufacturer or vendor warranties and will cooperate with
Lessee in asserting any claims under such warranties. Lessor warrants that upon
the commencement of the Primary Tern with respect to any item of Equipment, the
vendor thereof will have been paid the full purchase price thereof by or on
behalf of Lessor. Lessor further warrants its ownership of all Equipment leased
pursuant to this Lease.
4. USE AND LOCATION OF EQUIPMENT. TITLING AND REGISTRATION. MAINTENANCE AND
REPAIRS. NO LIENS. NO ASSIGNMENT OR SUBLEASE BY LESSEE.
The Equipment is to be used exclusively by Lessee in the conduct of its
business or that of any company wholly-owned, directly or indirectly, by Amoco
Corporation, only for the purposes for which it was designed and in compliance
with all applicable laws, rules and regulations. Lessee will obtain and maintain
all necessary licenses, permits and approvals. Lessee shall cause the Equipment
to be properly and lawfully titled and registered at all times in the name of
"AFG/Amoco Trust" in care of Lessee and reflecting such party as Lessor shall
designate as first lienholder and Lessor hereby appoints Lessee as its agent and
attorney-in-fact for the express and limited purpose of effecting and
maintaining such titles and registrations. Upon request from Lessor at intervals
not more than once a year, Lessee shall provide Lessor with a list locating all
Equipment specified on each Rental Schedule. In the event Lessor moves the
Equipment (other than on a temporary basis in the normal course of Lessee's
business) to a location other than that specified on the Rental Schedule, Lessee
agrees at its own cost and expense to re-title and/or re-register the Equipment
as required by applicable law listing "AFG/Amoco Trust" as owner and the Lender
(or its assignee) as lien holder. In no event may the Equipment be moved (other
than on a temporary basis in the normal course of Lessee's business) to a
terminal location outside the continental United States. Lessee will effect all
maintenance and repairs to the Equipment in the same manner and using the same
standards Lessee uses in maintaining equipment similar to the Equipment owned by
it and will keep written records thereof. All maintenance and repairs will be
made in accordance with the manufacturer's recommendations and by authorized
representatives of the manufacturer or by persons of equal skill and knowledge
whose work will not adversely affect any applicable manufacturer's or vendor's
warranty. Lessee will keep the Equipment and its interest therein free and clear
of all liens and encumbrances other than those created by Lessor or arising out
of claims against Lessor and not related to the lease of the Equipment to
Lessee. Lessor, upon Lessee's request, shall provide evidence reasonably
acceptable to Lessee evidencing its payment of the purchase price of each item
of Equipment and its ownership thereof. The Rental Schedule may not be assigned
by Lessee. The Equipment may not be subleased without the prior written consent
of Lessor, which consent will not unreasonably be denied.
-2-
5. LOSS, DAMAGE OR DESTRUCTION OF EQUIPMENT.
Lessee will notify Lessor promptly in writing if any item of Equipment is
lost, stolen, requisitioned by a governmental authority or damaged beyond repair
(each a "Casualty"), describing the Casualty in reasonable detail, and will
promptly file a claim under applicable policies of insurance. Lessee may, with
the prior written consent of Lessor, replace the Equipment suffering a Casualty
with similar items of Equipment of reasonably equal fair market value and
utility. In the event Lessor and Lessee cannot agree on the value of the unit
replacing the Equipment suffering a Casualty, the fair market value of such
replacement unit shall be determined by an independent equipment appraiser of
nationally recognized standing, selected by Lessor and reasonably acceptable to
Lessee. The cost of appraisal shall be shared equally by Lessee and Lessor. If
Lessee does not repair or replace the Equipment, Lessee will pay to Lessor on or
before the second Payment Date following the Casualty, in addition to Basic Rent
and other sums due on that date, an amount equal to the Casualty Value specified
on the Rental Schedule. The Rental Schedule, solely as it relates to the
Equipment (including the obligation to pay Basic Rent) suffering the Casualty,
will terminate and ownership of the Equipment suffering the Casualty, including
all claims for insurance proceeds or condemnation awards, will pass to Lessee
upon receipt of such payment by Lessor. It is understood and agreed that an item
can be declared to have suffered a Casualty if the cost of maintaining and
repairing such item of Equipment renders it uneconomic to continue to operate
such item.
6. TAXES AND FEES.
Lessee agrees to prepare and file all required returns or reports and to
pay all sales, use, gross receipts and other taxes (including highway use and
vehicle excise taxes, where applicable), fees, interest, fines or penalties
imposed by any governmental authority relating in any way to the Equipment or
the Rental Schedule, and excepting only taxes imposed upon the net income of
Lessor. Notwithstanding the foregoing, Lessor will report and pay all use taxes
and Lessee will pay to Lessor, on each Basic Rent Payment Date, as additional
rent, an amount equal to the use taxes attributable to that payment of Basic
Rent if any. Lessor agrees all taxes, fees and other expenses connected with
acquisition of the Equipment and which may be appropriately capitalized shall be
added to the Equipment Cost set forth on the Rental Schedule.
7. INSURANCE.
Lessee agrees to maintain policies of insurance or self insurance on the
Equipment in amounts, against risks and on terms and conditions applicable to
other equipment owned or leased by Lessee and similar to the Equipment. Such
insurance will at a minimum include (i) physical damage and theft insurance in
an amount at least equal to the Casualty Value set forth on the Rental Schedule
and (ii) comprehensive liability insurance in the amount of at least $5,000,000
per occurrence, in each case with deductibles not in excess of $100,000. All
policies (A) are to be maintained with insurers acceptable to Lessor; (B) are to
name Lessor and its assignees as loss payees with respect to physical damage and
theft and as additional insureds with respect to
-3-
liability, as to[ILLEGIBLE] - interests may appear; and (C) are to provide
[ILLEGIBLE] they may not be altered or cancelled except upon thirty days prior
written notice to Lessor and each of Lessor's assignees named as additional
insured and loss payee. Lessee agrees to deliver to Lessor such certificates of
insurance as Lessor may, from time to tine, request. Lessor may hold any
insurance proceeds as security for Lessee's performance of its obligations with
respect to the Equipment on behalf of which the proceeds were paid and the
payment of all Basic Rent and other sums then due and unpaid under the Rental
Schedule and will pay such proceeds over to Lessee only upon receipt of
satisfactory evidence thereof.
8. FINANCIAL STATEMENTS. INSPECTION. REPORTS.
Lessee will provide to Lessor copies of Lessee's annual audited balance
sheet, profit and loss statement and statement of changes in financial
condition, and, if generally available quarterly profit and loss statement, all
prepared in accordance with generally accepted accounting principles,
consistently applied. Lessor may from time to time, upon reasonable notice and
during Lessee's normal business hours, inspect the Equipment and Lessee's
records with respect thereto and discuss Lessee's financial condition with
knowledgeable representatives of Lessee. Lessee will, if requested, provide a
report on the condition of the Equipment, a record of its maintenance and
repair, a summary of all items suffering a Casualty, a certificate of no default
or such other information or evidence of compliance with Lessee's obligations
under the Rental Schedule as Lessor may reasonably request.
9. AGREEMENT FOR LEASE ONLY. IDENTIFICATION MARKS. FINANCING STATEMENTS.
FURTHER ASSURANCES.
Each Rental Schedule is intended to be a true lease and not a lease in the
nature of a security agreement. If requested by Lessor, Lessee will affix to the
Equipment all notices of Lessor's ownership of the Equipment furnished by Lessor
in a form reasonably acceptable to Lessee. Lessee will execute and deliver and
Lessor may file Uniform Commercial Code financing statements or other similar
documents notifying the public of Lessor's ownership of the Equipment and Lessee
hereby appoints Lessor as its agent and attorney-in-fact to execute and file the
same on its behalf. Lessee agrees to promptly execute and deliver to Lessor such
further documents or other assurances, and to take such further action, as
Lessor may from time to time reasonably request in order to establish and
protect the rights and remedies created by the Rental Schedule.
10. LATE PAYMENT CHARGES. LESSOR'S RIGHT TO PERFORM FOR LESSEE.
A Late Payment Charge equal to (A) the greater of 1% per annum above the
debt rate charged to Lessor in connection with the financing of its purchase of
the Equipment or 1% per annum above the prime or base lending rate of The First
National Bank of Boston, as announced from time to time, or (B) if less, the
highest rate not prohibited by law, will accrue on any sum not paid when due for
each day not paid. If Lessee fails to duly and promptly pay or perform any of
its obligations hereunder, Lessor may itself pay or perform such obligations for
the account of Lessee without thereby waiving any default
-4-
and Lessee will pay to Lessor, on demand and in addition to Basic Rent, an
amount equal to all sums so paid or expenses so incurred, plus a Late Payment
Charge accruing from the date such sums were paid or expenses incurred by
Lessor.
11. LESSEE'S OPTIONS UPON LEASE EXPIRATION.
Lessee has the option at the expiration of the Lease Term, exercisable
with respect to each such items of Equipment leased pursuant to Rental Schedules
having the same expiration date, (i) to return the Equipment to Lessor, or (ii)
to renew the Rental Schedule at fair rental value for a renewal term the length
of which shall be determined by agreement of Lessee and Lessor. Lessee agrees to
provide Lessor written notice of its decision to return the Equipment or renew
the Rental Schedule not less than 120 days prior to the expiration date. If
Lessee fails to give Lessor 120 days written notice, the Lease Term may, at
Lessor's option be extended and continue until 120 days from the date Lessor
receives written notice of Lessee's decision to return the Equipment or renew
the Rental Schedule.
At the expiration of the Lease Term or any extension or renewal thereof,
the Equipment will be returned with all original equipment or the substantial
equivalent thereof installed, ordinary wear and tear excepted, free of all
Lessee's markings and free of all liens and encumbrances other than those
granted by or asserted against Lessor and not caused by or related to the lease
of the Equipment to Lessee.
Lessee agrees to have maintained the Leased Equipment during the period
of the lease in the same manner and follow the same maintenance procedures as
Lessee follows for like equipment it owns and in accordance with the
manufacturer's recommended schedule of maintenance. Lessee further agrees that
upon return of the tractor and trailer Equipment to the Lessor at the
termination of this Lease the Equipment will meet on the aggregate for each unit
the following minimum condition requirements.
(i) The cost of necessary glass, fiberglass or sheet metal repairs will
not exceed $750 for each tractor returned and $500 for each trailer returned
except that such limitation shall not apply to cosmetic defects that do not
adversly affect the market value of the Equipment;
(ii) Brake linings shall have a minimum of 40% lining remaining on disc
brakes and 40% lining remaining on drum brakes, with measurement to be taken
from the middle of the shoe;
(iii) All tires shall be of the original type (e.g. radial) and shall have
a minimum remaining tread depth of 40% of their original tread depth, and can
include recapped tires;
(iv) The power train including engine, transmission and driveline shall be
in efficient operating condition for delivery service for its originally
intended purpose, normal wear and tear excepted, for the number of years
operated.
Notwithstanding any other provision of this Section 11, all tractor and
trailer units, upon their return to Lessor, shall meet all applicable United
States Department of Transportation minimum standards applicable to such units
and may
-5-
be legally operated on the public highways of the state in which such units are
then garaged. The Rental Schedule shall continue in full force and effect and
Lessee shall continue to pay Basic Rent through and including the date on which
the Equipment is returned by Lessee.
12. LESSEE'S REPRESENTATIONS AND WARRANTIES.
Lessee represents, warrants and certifies as of the date of execution and
delivery of each Rental Schedule as follows:
(a) Lessee is duly organized, validly existing and in good standing
under the laws of the state of its incorporation, with full power to
enter into and to pay and perform its obligations under the Rental
Schedule and this Master Lease Agreement as incorporated therein by
reference, and is duly qualified and in good standing in all other
jurisdictions where its failure to so qualify would adversely affect
the conduct of its business or the performance of its obligations
under or the enforceablility of the Rental Schedule;
(b) the Rental Schedule, this Master Lease Agreement and all related
documents have been duly authorized, executed and delivered by
Lessee, are enforceable against Lessee in accordance with their
terms and do not and will not contravene any provisions of or
constitute a default under Lessee's organizational documents or its
By Laws, any agreement to which it Is a party or by which it or its
property is bound, or any law, regulation or order of any
governmental authority;
(c) Lessor's right, title and interest in and to the Rental Schedule,
this Master Lease Agreement and the Equipment and the rentals
therefrom will not be affected or impaired by the terms of any
agreement or instrument by which Lessee or its property is bound;
(d) no approval of, or filing with, any governmental authority or other
person is required in connection with Lessee's entering into or the
payment or performance of its obligations under the Rental Schedule
or this Master Lease Agreement as incorporated therein by reference;
(e) there are no suits or proceedings pending or threatened before any
court or governmental agency against or affecting Lessee which, if
decided adversely to Lessee, would materially adversely affect
Lessee's business or financial condition or its ability to perform
any of its obligations under the Rental Schedule or this Master
Lease Agreement as incorporated therein by reference; and
(f) there has been no material adverse change to Lessee's financial
condition since the date of its most recent audited financial
statement.
13. EVENTS OF DEFAULT. LESSOR'S REMEDIES ON DEFAULT.
Each of the following events constitutes an Event of Default:
(a) default in the payment of any amount when due under the Rental
Schedule continuing for a period of five business days after notice
of nonpayment of any such amount is delivered to Lessee;
-6-
(b) default in the observance or performance of any other covenant,
condition or agreement to be observed or performed by Lessee under
the Rental Schedule and this Master Lease Agreement as incorporated
therein by reference, continuing for more than 30 days after written
notice thereof, unless Lessee shall be diligently proceeding to cure
such default and such default does not subject the Equipment to
forfeiture, in which event, Lessee shall have 60 days from the date
of notice in which to cure such default;
(c) any material representation or warranty made by Lessee herein or
in the Rental Schedule or this Master Lease Agreement as
incorporated therein by reference or in any document or certificate
furnished in connection herewith shall at any time prove to have
been incorrect in any material respect when made;
(d) any attempt by Lessee other than as set forth in Section 14
hereof, without Lessor's prior written consent, to assign the Rental
Schedule, to sublease the Equipment or to transfer possession of the
Equipment;
(e) Lessee, without Lessor's prior written consent, is a party to a
merger or consolidation and the surviving entity's credit-worthiness
is materially impaired because of such merger or consolidation in
the reasonable opinion of Lessor;
(f) Lessee, without Lessor's prior written consent, sells or
transfers, either in a single transaction or in a series of related
transactions, all or substantially all its assets other than its
rights under the Rental Schedules, and after such sale or series of
sales, Lessee's credit-worthiness is materially impaired in the
reasonable opinion of Lessor;
(g) Lessee, without Lessor's prior written consent, either in a
single transaction or in a series of related transactions, purchases
a substantial portion of its stock and after such purchase Lessee's
credit-worthiness is materially impaired in the reasonable opinion
of Lessor;
(h) Lessee (A) ceases doing business as a going concern; (B) makes
an assignment for the benefit of creditors, admits in writing its
inability to pay its debts as they mature or generally falls to pay
its debts as they become due; (C) initiates any voluntary bankruptcy
or insolvency proceeding; (D) fails to obtain the discharge of any
bankruptcy or insolvency proceeding initiated against it by others
within 60 days of the date such proceedings were initiated; (E)
requests or consents to the appointment of a trustee or receiver; or
(F) a trustee or receiver is appointed for Lessee or for a
substantial part of Lessee's property; or
(i) Lessee shall not return the Equipment or shall not return the
Equipment in the required condition at the expiration of the Rental
Schedule or any extension or renewal thereof.
-7-
Upon the occurrence of an Event of Default, Lessor may, without notice to
Lessee, declare the applicable Rental Schedule in default and may exercise any
of the following remedies:
I. at Lessor's option, and in its sole discretion either:
(a) declare all Basic Rent and other sums due or to become due under
the Rental Schedule immediately due and payable, and sue to enforce
the payment thereof; or
(b) receive from Lessee (and sue to enforce the payment thereof), as
liquidated damages for loss of the bargain and not as a penalty, and
in addition to all accrued and unpaid Basic Rent and other sums due
under the Rental Schedule, an amount equal to the greater of (A) the
Casualty Value set forth on the Rental Schedule calculated after the
last payment of Basic Rent actually received by Lessor or (B) the
fair market value of the Equipment as of the date of default
determined by an appraiser selected by Lessor, plus, in either case,
interest thereon at the Late Payment Charge rate from the date of
default until the date of payment, and, after receipt in good funds
of the sums described above, Lessor will, if it has not already done
so, terminate the Rental Schedule and, at its option, either pay
over to Lessee as, when and if received, any net proceeds (after all
costs and expenses) from any disposition of the Equipment, or convey
to Lessee all of its right, title and interest in and to the
Equipment, as is, where is and with all faults, without recourse and
without warranty; and
II. without regard to whether Lessor has elected either option in
subsection I. above, Lessor may
(a) proceed by appropriate court action either at law or in equity
to enforce performance by Lessee of the covenants and terms of the
Rental Schedule and to recover damages for the breach thereof; or
(b) terminate the Rental Schedule by written notice to Lessee,
whereupon all right of Lessee to use the Equipment will immediately
cease and Lessee will forthwith return the Equipment to Lessor in
accordance with the provisions hereof; or
(c) repossess the Equipment and without notice to Lessee, dispose of
it by private or public, cash or credit sale or by lease to a
different lessee, in all events free and clear of any rights of
Lessee, and for this purpose Lessee hereby grants to Lessor and its
agents the right to enter upon the premises where the Equipment is
located and to remove the Equipment therefrom and Lessee agrees not
to interfere with the peaceful repossesion of the Equipment; and
(d) recover from Lessee all costs and expenses arising out of
Lessee's default, including, without limitation, expenses of
repossession, storage, appraisal, repair, reconditioning and
disposition of the Equipment and reasonable attorneys' fees and
expenses.
-8-
Lessor's remedies are cumulative and not exclusive, and are in addition to all
remedies at law or in equity. Nothing in this Section 13 shall be construed as
permitting Lessor in the event of a default hereunder by Lessee, of recovering
its damages twice. No failure by Lessor to declare a default shall constitute a
waiver of such default or restrict Lessor's ability to declare a default at a
later date.
14. ASSIGNMENT AND SUBLEASE
Lessor may at any time and from time to time grant liens on the Equipment,
and assign, as collateral security or otherwise, its rights in the Rental
Schedule and this Master Lease Agreement as incorporated therein by reference,
in each case subject and subordinate to Lessee's rights thereunder (including,
without limitation, its right of quiet enjoyment set forth in Section 2 hereof),
without notice to or consent by Lessee. Lessee acknowledges that Lessor may
assign the Rental Schedule to a Lender in connection with the financing of its
purchase of the Equipment and agrees, in the event of such assignment, to
execute and deliver a Rent Assignment Letter acknowledging that the Lender has
(and may exercise either in its own name or in the name of Lessor) all of the
rights, privileges and remedies, but none of the obligations, of Lessor under
the Rental Schedule; waiving for the benefit of the Lender (but not Lessor) any
defense, counterclaim, set-off, abatement, reduction or recoupment that Lessee
may have against Lessor; and agreeing to make all payments of Basic Rent and
other sums due under the Rental Schedule to the Lender or as the Lender may
direct. Lessee also agrees to deliver opinions of counsel, insurance
certificates and such other documents as Lessor may reasonably request for the
benefit of the Lender in connection with the collateral assignment of the Rental
Schedule. Notwithstanding any other provision of this Master Lease, Lessor
hereby agrees that Lessee may sublease any item of Equipment leased hereunder to
a domestic subsidiary of Lessee; no such sublease shall relieve Lessee of any of
its obligations hereunder with respect to any such item of Equipment which
obligations remain those of a principle and not of a surety.
15. NOTICE. GOVERNING LAW. EXECUTION IN COUNTERPARTS.
All notices required hereunder shall be effective upon receipt in writing
delivered by hand or by other receipt-acknowledged method of delivery at the
address first above written. The Initial Beneficiary as agent for Lessor may
give any notices required or permitted hereunder and any such notice to Lessor
shall not be effective unless a copy of such notice shall be given to the
Initial Beneficiary at its address at Exchange Place, Boston, MA 02109. This
Master Lease Agreement and the Rental Schedule shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts. This
Master Lease Agreement and the Rental Schedule may be executed in multiple
counterparts all of which together shall constitute one and the same instrument.
16. PARTICIPATION OF TRUSTEE
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, undertakings and agreements in this Lease on the
part of the Lessor are each and every one of them made and intended not as
-9-
personal representations, warranties, undertakings and agreements by First
Security Bank of Utah, National Association or for the purpose or with the
intention of binding the said First Security Bank of Utah, National Association,
personally but are made and intended for the purpose of binding only the Trust
Estate as such term is defined in the Trust Agreement executed and delivered by
First Security Bank of Utah, National Association, solely in the exercise of the
powers expressly conferred upon it as trustee under the Trust Agreement; and
that no personal liability or personal responsibility is assumed by or shall at
any time be asserted or enforceable against said First Security Bank of Utah,
National Association (except for the willful misconduct or gross negligence of
said First Security Bank of Utah, National Association), all such personal
liability, if any, being expressly waived and released by Lessee; however, it is
agreed that the Lessee may look for satisfaction of the obligations of the
Lessor hereunder to the Initial Beneficiary (or any successor in interest to the
Initial Beneficiary). During the term of this Master lease as it relates to each
Rental Schedule, Lessor agrees that Lessor shall retain title to the Equipment
covered hereunder under the terms and conditions set forth in the Trust
Agreement and that the trust created by the Trust Agreement shall not be subject
to revocation during the Lease Term without the prior written consent of Lessee.
17. DEFINITIONS - The following terms shall have the following meanings for all
purposes of this Lease:
"ACQUISITION COST" of any item of Equipment means an amount equal to
the sum of (i) the purchase price of such item of Equipment paid by Lessor,
plus, (ii) any excise, sales or use tax paid by Lessor on or with respect to
such item of Equipment, plus (iii) any reasonable costs, expenses and fees paid
or incurred by Lessor in obtaining, delivering and installing such item of
Equipment.
"BASIC RENT" shall have the meaning specified in Section 1 hereof.
"CASUALTY OCCURRENCE" shall have the meaning specified in Section 12
hereof.
"CASUALTY VALUE" shall have the meaning specified in Section 5
hereof.
"COMMENCEMENT DATE" with respect to an item of Equipment means the
date of the commencement of the Lease Term of such item and shall be the date
such item is accepted by Lessee for lease hereunder.
"EQUIPMENT" means the equipment described on each Rental Schedule
executed pursuant to this Master Lease, and owned by Lessor and leased by Lessor
to Lessee or ordered by Lessor for lease to Lessee as provided herein and any
attachments, accessories, or additions thereto or substitutions therefor.
"EVENTS OF DEFAULT" shall have the meaning specified in Section 13
hereof.
"EXPIRATION DATE" with respect to an item of Equipment means the
date of the expiration of the Lease term of such item as provided in the Rental
Schedule.
-10-
"INITIAL BENEFICIARY' shall mean American Finance Group, Inc. a
Massachusetts corporation.
"INTERIM TERM" for this Lease shall commence upon the commencement
date set forth in the applicable Rental Schedule and shall end on the
commencement date of the Primary Term.
"LATE PAYMENT CHARGE" shall have the meaning of such term set forth
in Section 10 hereof.
"LEASE TERM" with respect to an item of Equipment shall mean the
"Interim Term" plus the "Primary Term", including any period of renewal provided
for herein.
"LENDER" shall mean the lending institution providing the debt
financing with respect to the Rental Schedule in question.
"MASTER LEASE" shall have the meaning specified in Section 1 hereof.
"PAYMENT DATES" shall have the meaning specified in Section 1
hereof.
"PRIMARY TERM" for this Lease shall commence and shall end on the
respective dates set forth in the Rental Schedule.
"RENEWAL TERM" shall have the meaning specified in Section 11
hereof.
"RENTAL SCHEDULE" means each schedule, substantially in the form of
"Exhibit 1" attached hereto, executed by Lessor and Lessee pursuant to this
Master Lease, setting forth a description of Equipment to be leased hereunder,
its location, its Acquisition Cost, the amount of Basic Rent payable by Lessee
with respect thereto, the lease term thereof, the Commencement Date with respect
thereto, and such other matters as Lessor and Lessee may agree upon.
"TERMINATION DATE" means the expiration or termination of the
Primary Term or Renewal Term of any item of Equipment, whether by the passage of
time or otherwise.
"TRUST AGREEMENT" shall mean that certain trust agreement "AFG/Amoco
Trust" dated as of March 31, 1987 by and between American Finance Group, Inc.,
as Trustor and First Security Bank of Utah, National Association, as Trustee.
-11-
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Agreement to
be executed and delivered by their duly authorized representatives as of the
date first above written.
LESSOR LESSEE
FIRST SECURITY BANK OF UTAH, AMOCO CORPORATION
NATIONAL ASSOCIATION, not in
its individual capacity but
solely as Trustee
By: /s/ Nancy M. Dahl By: /s/[Illegible]
-------------------------- -----------------------------
Title: CORPORATE TRUST COUNSEL Title: General Manager-Purchasing
----------------------- --------------------------
The Initial Beneficiary hereby agrees
to its covenants and undertakings set
forth in Section 16 herein.
AMERICAN FINANCE GROUP, INC.
By: /s/ [Illegible]
-----------------------
Title: Exec. Vice President
--------------------
-12-
EXHIBIT 1
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO.______
This RENTAL SCHEDULE AND ACCEPTANCE CERTIFICATE, dated as of March 11,
1987, between First Security Bank of Utah, National Association, trustee under
the "AFG/Amoco Trust" ("Lessor") and Amoco Corporation ("Lessee") incorporates
by reference the terms and conditions of Master Lease Agreement No. 8703ILG271
dated as of March 31, 1987 (the "Master Lease"). Lessor hereby leases to Lessee
and Lessee hereby leases from Lessor the following described items of Equipment
for the Lease Term and at the Basic Rent payable on the Payment Dates
hereinafter set forth, on the terms and conditions set forth in the Master
Lease.
1. EQUIPMENT
Serial AFG Lessor's Acceptance
Number Unit No. Year Make Model Cost Date
---------- -------- ---- ---- ----- -------- ----------
TOTAL EQUIPMENT COST: $
==========
EQUIPMENT GARAGED AT:
2. LEASE TERM
The Lease Term for each item of Equipment is for an Interim Term
commencing on the date of acceptance of such item of Equipment for lease*, as
set forth above, and continuing through and including _______________________
and for a Primary Term of ______ months, commencing on ______________ and
continuing through and including the Expiration Date of __________________.
* such Acceptance Dates being the date Lessor paid the purchase price of the
item of Equipment in question to the vendor thereof.
3. BASIC RENT. PAYMENT DATES.
Interim Term Basic Rent is due and payable in full on the first day of the
Primary Term. Basic Rent for the Primary Term is due and payable in
_________________ payments of $_______________ each commencing on
___________________ and continuing __________________________ thereafter,
through and including ______________________.
-13-
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO.______
PAGE TWO
Interim Term Basic Rent is computed by multiplying the Total Equipment
Cost by the Per Diem Lease Rate set forth below and multiplying the product by
the number of days in the Interim Term. Primary Term Basic Rent is computed by
multiplying the Total Equipment Cost by the Periodic Lease Rate set forth below.
Per Diem Lease Rate: ___________
Periodic Lease Rate: ___________
4. INVESTMENT TAX CREDIT
Lessor agrees to pass through to Lessee all investment tax credits, if
any, available with respect to the Equipment under federal or state income tax
laws, and to execute an ITC Transfer Letter evidencing the same.
5. ACCEPTANCE CERTIFICATE
Lessee hereby represents, warrants and certifies (a) that the Equipment
described herein has been delivered to and inspected and found satisfactory by
Lessee and is accepted for Lease by Lessee under this Rental Schedule and the
Master Lease as incorporated herein by reference, as of the Acceptance Date set
forth above; (b) the representations and warranties of Lessee set forth in the
Master Lease are true and correct as of the date hereof.
6. ENTIRE AGREEMENT. MODIFICATION AND WAIVERS. EXECUTION IN COUNTERPARTS.
This Rental Schedule and the Master Lease constitute the entire agreement
between Lessee and Lessor with respect to the leasing of the Equipment. To the
extent any of the terms and conditions set forth in this Rental Schedule
conflict with or are inconsistent with the Master Lease, this Rental Schedule
shall govern and control. No amendment, modification or waiver of this Rental
Schedule or the Master Lease will be effective unless evidenced by a writing
signed by the party to be charged. This Rental Schedule may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
7. LESSEE'S RIGHT TO TERMINATE.
Lessee may terminate this Rental Schedule, in whole or in part, on the
______ Payment Date or on any subsequent anniversary of such Payment Date (the
Termination Date) upon 180 days prior written notice to Lessor provided that
Lessee is not in default hereunder. The Rental Schedule may not be terminated on
any Payment Date other than a Payment Date indicated in the Termination Value
Schedule below. Such notice shall specify the Equipment to be terminated.
-14-
During the period from the giving of such notice until the termination
Date, Lessor and Lessee shall solicit written bids for the remarketing of the
Equipment to be terminated, and shall exchange copies of all bids received. On
the Termination Date, Lessor shall then lease such Equipment to the bidder
submitting the highest bid on terms and conditions substantially similar to
those contained in this Lease, provided such bidder's credit standing and
intended use of the Equipment are reasonably acceptable to Lessor. The "highest
bid" shall mean the highest remarketing lease bid discounted to present value at
the rate of interest obtained by Lessor on a non-recourse basis to finance said
lease.
Prior to the closing of such actual remarketing, Lessor shall have
received funds, in a form acceptable to Lessor, in the aggregate amount for such
Equipment returned at one time of (i) the highest bid, (ii) the Basic Rent
Payment due and payable on such Termination Date and all other sums then
remaining due and unpaid under this Rental Schedule, and (iii) in the event that
the highest bid is less than the Termination Value computed in accordance with
the schedule below, the amount of the difference between the highest bid and the
Termination Value. If the foregoing amounts are not paid in full on the
Termination Date, then this Lease shall continue in full force and effect until
the date on which such amounts are paid in full and upon such payment, all
obligations of Lessee to pay rent hereunder shall cease.
- --------------------------------------------------------------------------------
TERMINATION VALUE SCHEDULE
Termination Value as a
If Termination Date is Percentage of Equipment Cost
Rent Payment Date No. as defined in this Rental Schedule
- --------------------- ----------------------------------
-15-
IN WITNESS WHEREOF the parties hereto have caused this Rental Schedule and
Acceptance Certificate to be executed and delivered by their duly authorized
representative as of the date first above written.
LESSOR LESSEE
FIRST SECURITY BANK OF UTAH AMOCO CORPORATION
NATIONAL ASSOCIATION, not in
its individual capacity but
soley as trustee
By: _________________________ By: ________________________
Title: ______________________ Title: _____________________
Date: _______________________ Date: ______________________
-16-
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO. A-F-1
This RENTAL SCHEDULE AND ACCEPTANCE CERTIFICATE, dated as of March 15,
1990, between First Security Bank of Utah, National Association, trustee under
the "AFG/Amoco Trust" ("Lessor") and Amoco Corporation ("Lessee") incorporates
by reference the terms and conditions of Master Lease Agreement No. 8703ILG271
dated as of March 31, 1987 (the "Master Lease"). Lessor hereby leases to Lessee
and Lessee hereby leases from Lessor the following described items of Equipment
for the Lease Term and at the Basic Rent payable on the Payment Dates
hereinafter set forth, on the terms and conditions set forth in the Master
Lease.
1. EQUIPMENT
Six (6) 1990 Clark Forklifts, (1) Marklift Forklift and (1) Tennant Scrubber as
further described on the attached Schedule A.
TOTAL EQUIPMENT COST: $127,861.04
-----------
EQUIPMENT GARAGED AT: See Equipment Location on attached Schedule A
Lessee Billing Location: See Billing Location on attached Schedule A
2. LEASE TERM
The Lease Term is for an Interim Term commencing on the date of acceptance
of the Equipment for lease, as set forth on Schedule A attached hereto, and
continuing through and including March 31, 1990, and for a Primary Term of 60
months, commencing on April 1, 1990 and continuing through and including the
Expiration Date of March 31, 1995.
3. BASIC RENT. PAYMENT DATES.
Interim Term Basic Rent is due and payable in full on the first day of the
Primary Term. Basic Rent for the Primary Term is due and payable in 60 payments
of $2,315.29 each commencing on April 1, 1990 and continuing monthly in advance
thereafter, through and including March 1, 1995.
Interim Term Basic Rent is computed by multiplying the Total Equipment
Cost by the Per Diem Lease Rate set forth below and multiplying the product by
the number of days in the Interim Term. Primary Term Basic Rent is computed by
multiplying the Total Equipment Cost by the Periodic Lease Rate set forth below.
Periodic Lease Rate: .018107
------
Per Diem Lease Rate: .000604
------
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO. A-F-1
PAGE TWO
4. SPECIAL MAINTENANCE AND RETURN CONDITIONS. In furtherance, and not in
limitation of, the use, maintenance and return conditions for the Equipment set
forth in Sections 4 and 9 of the Master Lease, Lessee hereby agrees to return
the Equipment to Lessor in accordance with all of the terms and conditions of
the Master Lease and in compliance with the following special return conditions:
1. When loaded to its rated capacity, each Unit shall:
(a) Start under its own power and idle without water or fuel
leaks.
(b) Move through its normal speed ranges in both forward and
reverse, in normal operating manner.
(c) Steer normally right and left in both forward and reverse.
(d) Be able to stop with its service brakes within a safe
distance, in both forward and reverse.
(e) Lift, lower, and tilt normally with and without a load a
minimum of three (3) times. Carriage, lift chains and channel
assembly shall be in working condition, normal wear and tear
excepted.
(f) Electric trucks, if purchased with batteries, must be returned
with batteries that are capable of sustaining a charge that
will permit use of the equipment for an eight (8) hour shift.
(g) All motors shall operate without arcing and/or sparking.
2. Each Unit's attachment(s), if any, shall perform all of its required
functions, and each Unit's horn, parking brake, and lights shall be
operational.
3. The Units shall, on average, have tires with at least fifty percent
(50%) remaining tread.
4. Each Unit shall be complete with all originally-installed parts and
pieces or suitable substitutes therefor.
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO. A-F-1
PAGE THREE
5. INVESTMENT TAX CREDIT
Lessor agrees to pass through to Lessee all investment tax credits
available with respect to the Equipment under federal or state income tax laws,
and to execute an ITC Transfer Letter evidencing the same.
6. TAX INDEMITY.
Lessee acknowledges that this Master Lease Agreement has been entered into
on the basis that Lessor shall be entitled for federal and state income tax
purposes (i) to claim the deductions for depreciation on the total original cost
of the Equipment pursuant to the Accelerated Cost Recovery System under Section
168 of the Internal Revenue Code of 1986, as amended ("Code") or for state
income tax purposes, any other depreciation deduction method that is permitted
by certain state law; and (ii) to claim under Section 163 of the
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO. A-F-1
PAGE FOUR
Code a tax deduction for the full amount of any interest paid by Lessor or
accrued under Lessor's method of tax accounting on any indebtedness secured by
the Equipment (hereinafter referred to collectively as the "Tax Benefits").
Lessee agrees to fully indemnify Lessor for any loss, disallowance,
unavailability or recapture of the Tax Benefits as a result of any act,
omission, misrepresentation or failure to act by Lessee, any sublessee, or any
other person authorized by the Lessee to use or maintain the Equipment. If
Lessor shall lose, shall not have the right to claim, or if there shall be
disallowed or recaptured, all or any portion of such Tax Benefits, Lessee shall
pay to Lessor as additional rent (a) an amount equal to the value, determined at
the highest marginal tax rate on a present value basis discounted at the
Lessor's then current cost of funds, of the Tax Benefits so disallowed or made
unavailable plus (b) all interest, penalties, or additions to tax resulting from
such loss, disallowance, unavailability or recapture of any of the foregoing,
plus (c) all taxes required to by paid by the Lessor, its successors, assigns,
or affiliates under any federal, state and local law upon receipt of any of the
indemnifications set forth in this Section.
7. ACCEPTANCE CERTIFICATE
Lessee hereby represents, warrants and certifies (a) that the Equipment
described herein has been delivered to and inspected and found satisfactory by
Lessee and is accepted for Lease by Lessee under this Rental Schedule and the
Master Lease as incorporated herein by reference, as of the Acceptance Date set
forth above; (b) all items of Equipment are new and unused as of the Acceptance
Date, except as otherwise specified above, and (c) the representations and
warranties of Lessee set forth in the Master Lease are true and correct as of
the date hereof.
8. ENTIRE AGREEMENT. MODIFICATION AND WAIVERS. EXECUTION IN COUNTERPARTS.
This Rental Schedule and the Master Lease constitute the entire agreement
between Lessee and Lessor with respect to the leasing of the Equipment. To the
extent any of the terms and conditions set forth in this Rental Schedule
conflict with or are inconsistent with the Master Lease, this Rental Schedule
shall govern and control. No amendment, modification or waiver of this Rental
Schedule or the Master Lease will be effective unless evidenced by a writing
signed by the party to be charged. This Rental Schedule may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO. A-F-1
PAGE FIVE
IN WITNESS WHEREOF the parties hereto have caused this Rental Schedule and
Acceptance Certificate to be executed and delivered by their duly authorized
representatives as of the date first above written.
FIRST SECURITY BANK OF UTAH
NATIONAL ASSOCIATION, not in
its individual capacity but
solely as trustee AMOCO CORPORATION
LESSOR LESSEE
By /s/ Nancy M. Dahl By /s/ [Illegible]
---------------------------- -------------------------
Title ASSISTANT VICE PRESIDENT Title
------------------------- ----------------------
Date April 13, 1990 Date
-------------------------- -----------------------
3/15/90 AMOCO CORPORATION (AMOCO FOAM PRODUCTS) Page 1
RENTAL SCHEDULE A-F-1
SCHEDULE A
Accept. Date Vendor name Invoice # Unit cost Serial Number Zip Code State City Street Address
- ------------ ----------- --------- ---------- ------------- -------- ----- ------------ -------------------
3/05/90 Tennant Company 593198-00 8,212.00 480-20721 30080 GA Smyrna 2907 Log Cabin Dr
1/10/90 Clark Material Handlin M31020 22,576.74 GX230 50662 IA Delwein 951 Second Ave SE
1/10/90 Clark Material Handlin M30946 16,633.06 GX230-1697-71 50662 IA Delwein 951 Second Ave SE
12/15/89 Clark Material Handlin M30128 16,627.12 GX230-1698-71 50662 IA Delwein 951 Second Ave SE
12/15/89 Clark Material Handlin M30128 16,627.13 GX230-1727-71 50662 IA Delwein 951 Second Ave SE
12/07/89 Clark Material Handlin M29703 17,280.49 GX230-0906-71 29842 SC Beech Island Old Jackson Hwy 28
12/07/89 Clark Material Handlin M29703 17,280.50 GX230-0907-71 29842 SC Beech Island Old Jackson Hwy 28
3/15/90 Georgia Hi-Lift 5613 12,630.00 1289-19486 30080 GA Seyrna 2907 Log Cabin Dr
-----------
TOTAL EQUIPMENT COST: $127,867.84
Accept. Date Manuf. Eqpt. Model Eqpt. Type Comments for remarketing
- ------------ -------- ----------- ---------- -------------------------------------
3/05/90 Tennant 480 SCRUBBER 2907 Log Cabin Dr., Smyrna, GA 30080
1/10/90 Clark GPX25 FORKLIFT 951 Second Ave., SE Delwein, IA 50662
1/10/90 Clark GPX25 FORKLIFT 951 Second Ave., SE Delwein, IA 50662
12/15/89 Clark GPX25 FORKLIFT 951 Second Ave., SE Delwein, IA 50662
12/15/89 Clark GPX25 FORKLIFT 951 Second Ave., SE Delwein, IA 50662
12/07/89 Clark GPX25 FORKLIFT P.O. Box 2526, Augusta, GA 30903
12/07/89 Clark GPX25 FORKLIFT P.O. Box 2526, Augusta, GA 30903
3/15/90 Marklift J-19EP FORKLIFT 2907 Log Cabin Dr., Smyrna, GA 30080
AMOCO CORPORATION
EXHIBIT 1 TO RENTAL SCHEDULE A-F-1
CASUALTY VALUES
(Stated as Percentage of Equipment Cost)
AFTER AFTER
PRIMARY PRIMARY
TERM CASUALTY TERM CASUALTY
PAYMENT NO. VALUE PAYMENT NO. VALUE
- ----------- ----------- ----------- ---------
Prior to 1 112.00
1 111.37 31 88.16
2 110.74 32 87.22
3 110.10 33 86.26
4 109.45 34 85.29
5 108.79 35 84.31
6 108.12 36 83.31
7 107.45 37 82.30
8 106.76 38 81.27
9 106.06 39 80.24
10 105.36 40 79.19
11 104.65 41 78.12
12 103.92 42 77.04
13 103.19 43 75.95
14 102.45 44 74.84
15 101.69 45 73.71
16 100.93 46 72.57
17 100.16 47 71.42
18 99.37 48 70.25
19 98.58 49 69.06
20 97.77 50 67.86
21 96.96 51 66.65
22 96.13 52 65.41
23 95.29 53 64.16
24 94.44 54 62.90
25 93.58 55 61.61
26 92.71 56 60.31
27 91.82 57 58.99
28 90.93 58 57.66
29 90.02 59 56.30
30 89.10 60 55.00