MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT NO. 9108MIG433, dated as of August 1, 1991
between American Finance Group, a Massachusetts general partnership
having a principal place of business and address for purposes of
notice hereunder at Exchange Place, Boston, Massachusetts 02109,
Attention: Manager, Lease Financing Group, as Lessor, and General
Motors Corporation, Central Foundry Division, a Delaware corporation
having a principal place of business and address for purposes of
notice hereunder at 1629 North Washington Street, Saginaw, Michigan
48605-5073, Attention: Treasurer, 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 Lease Term commencing on the date
of acceptance of the Equipment for lease and ending on the Expiration
Date specified on such Rental Schedule. Lessee cannot, for any reason
except as set forth in Sections 5 and 15 of this Master Lease
Agreement, terminate the Rental Schedule or suspend payment or
performance of any of its obligations thereundere Subject to there
being no Event of Default 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. Lessor
will deliver invoices to Lessee at least thirty days prior to each
Payment Date; invoices received by Lessee in any month shall be paid
no later than the 25th of the following month. Basic Rent is net of,
and Lessee agrees to pay, and will indemnify and hold Lessor and any
assignee of Lessor harmless from and against, all costs (including,
without limitation, maintenance, repair and insurance costs), claims
(including claims of product liability or strict liability in tort),
losses or liabilities relating to the Equipment or its use that are
incurred by or asserted against Lessee, any permitted sublessee of
Lessee, Lessor or any assignee of Lessor and arise out of matters
occurring prior to the return of the Equipment except Lessee shall not
indemnify Lessor against any costs, claims, losses or liabilities
resulting from Lessor's negligence or misconduct. Lessee's
obligations are not subject to defense, counterclaim, set-off,
abatement or recoupment, and Lessee waives all rights to terminate or
surrender the Rental Schedule, for any reason, including, without
limitation,
1
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 the Rental Schedule. 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.
Lessee acknowledges that Lessor shall be considered the owner for
federal income tax purposes and shall be entitled for federal income
tax purposes to claim the deductions for depreciation on the Equipment
pursuant to the Modified Accelerated Cost Recovery System under
Section 168 of the Internal Revenue Code of 1986, as amended ("Code").
Lessee agrees to fully indemnify Lessor for any loss, disallowance,
unavailability or recapture of depreciation 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 the depreciation as a result of any such act, omission,
misrepresentation or failure to act by the Lessee, Lessee shall pay to
Lessor as additional rent (a) an amount calculated to cause the
Lessor's net after-tax return, to equal the net after-tax return that
would have been realized by the Lessor if such disallowance had not
occured; provided, however, that upon Lessee's written request and at
Lessee's expense, Lessor shall provide to Lessee a letter from a
nationally recognized firm of certified public accountants, chosen by
Lessor but other than Lessor's regularly engaged firm, to the effect
that a disallowance has occured and that the amount of the payment
referred to above, determined by Lessor is accurate and proper in
accordance with this provision. Such accounting firm shall have
access only to such records of Lessor or certificates or affadavits or
management as shall be reasonably necessary to provide the letter
described above, and in no event shall such accounting firm have
access to the tax return of Lessor; and provided further, that such
letter shall be binding on Lessee; (b) all interest, penalties, or
additions to tax resulting from such loss, disallowance,
unavailability or recapture of any of the foregoing, however,
excluding any such interest, penalties, or additions to tax due to the
acts or omissions of Lessor, Lessor's agents, employees, or
representatives. Further, no indemnity shall be payable to the extent
that the Lessor shall have suffered such disallowance with respect to
all or part of the Equipment as a direct result of the occurance of
any of the following events: (i) a transfer or other disposition by
the Lessor of any interest in the Equipment, Lease or Schedule
invloved or the reduction by the Lessor of its interest in the rentals
from the Equipment thereunder unless, in each case, an event of
default shall have occurred; (ii) the failure of the Lessor to claim
in a timely or proper manner the depreciation benefits pursuant to the
Code; (iii) the failure of the Lessor to have sufficient taxable
income to benefit from the depreciation, as applicable; (lv) any event
requiring the payment of a termination or casualty loss value under
the lease, provided that such amount has been paid.
Upon receipt of written notification by federal taxing
authorities of a proposed disallowance or adjustment of any deduction
arising from this Lease for which additional rent would be payable by
Lessee in accordance with this
2
Section 3, Lessor shall promptly notify Lessee of such disallowance. Upon the
request of Lessee, within thirty days of Lessor's giving notice of the
disallowance, and at Lessee's expense, Lessor shall seek the opinion of
independent tax counsel chosen by Lessor, but other than Lessor's regularly
engaged firm, and reasonably satisfactory to Lessee, that the basis in law and
in fact in favor of allowance of the item or items which are the subject of the
disallowance outweighs the basis in law and in fact to the contrary. if such an
opinion is received, and if Lessee promptly requests Lessor to do so, then
Lessor shall at Lessee's expense contest the disallowance. Lessor agrees to
consult in good faith with Lessee concerning the conduct of any such contest,
provided, however, that the Lessor shall determine in its sole discretion the
nature of all action to be taken to contest such proposed adjustment including
(i) whether any action to such proposed adjustment shall initially be by way of
judicial or administrative proceedings, or both, (ii) whether any such proposed
adjustment shall be contested by resisting payment thereof, and (iii) if the
Lessor shall undertake judicial action with respect to such proposed adjustment,
the court or other judicial body before which such action shall be commenced.
Subject to its obligation to consult, described above, the Lessor shall have
full control over any contest pursuant to this Section 3 and shall not be
obligated to appeal an adverse determination by any court. Subject to the
following sentence, while a contest is occurring, Lessor and Lessee' shall act
in good faith and not to the prejudice of the other party. At any time, whether
before or after commencing to take the action set forth in this Section 3, the
Lessor may decline to take any such action with respect to all or any portion of
a disallowance in which a contest is required by notifying the Lessee in writing
that the Lessee is relieved of its obligation to indemnify the Lessor with
respect to the adjustment or such portion, as the case may be. The Lessor shall
not be required to take any action at the request of the Lessee under this
Section 3 unless and until the Lessee (x) shall have agreed to indemnify the
Lessor in a manner reasonably satisfactory to the Lessor for any liability or
loss which the Lessor may incur as a result of contesting the validity of a
disallowance, (y) shall have agreed to pay the Lessor on demand all costs and
expenses which the Lessor may incur in connection with contesting such proposed
adjustment (including fees and disbursements of counsel), and (z) if the Lessor
decides to contest any adjustment by paying the additional tax and suing for a
refund, shall have paid to the Lessor an amount equal to the sum on an after-tax
basis (taking into account any additional interest, penalties or additions to
tax) of any tax, interest, penalties and additions to taxes which are required
to be paid by the Lessee under Section 3.
4. USE AND LOCATION OF EQUIPMENT. MAINTENANCE AND REPAIRS. NO LIENS. NO
--------------------------------------------------------------------
ASSIGNMENT BY LESSEE. LESSEE'S RIGHT TO SUBLEASE.
------------------------------------------------
The Equipment is to be used exclusively by Lessee in the conduct
of its business, 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. The Equipment is not to be removed from the location
specified on the Rental Schedule except upon prior written notice to
Lessor, and in no event may the Equipment be moved to a location
outside the continental United States. Lessee will effect all
maintenance and repairs necessary to keep the Equipment in good and
efficient
3
operating condition and appearance, reasonable wear and tear excepted. All
maintenance and repairs will be made in accordance with Lessee's current
maintenance procedures, and Lessee shall maintain records thereof in accordance
with its current practices. 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. The Rental Schedule may not be assigned by Lessee.
Lessee may sublease the Equipment only upon prior written notice to Lessor, in
which notice Lessee represents and warrants to Lessor that such sublease is for
a term not longer than the related Lease Term, is not made to a tax-exempt
entity or governmental agency, is specifically made subject to the prior rights
of Lessor and its assignees under the Rental Schedule, does not create any
obligation on the part of Lessor in favor of such sublessee and does not relieve
Lessee of any of its obligations under the Rental Schedule including, without
limitation, Lessee's obligations with respect to (a) the payment of Basic Rent
and other sums due or to become due, (b) use and maintenance of the Equipment
and (c) provisions for the return of the Equipment at the expiration of the
Lease Term.
5. LOSS, DAMAGE OR DESTRUCTION OF EQUIPMENT.
----------------------------------------
Lessee will bear all risk of loss with respect to the Equipment
during the Lease Term and until the Equipment is returned to Lessor.
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 appropriate
policies of insurance. Lessee may, with the prior written consent of
Lessor, replace the Equipment suffering a Casualty with similar items
of at least equal value and utility. If Lessee does not replace the
Equipment, Lessee will pay to Lessor on the next Payment Date
following the Casualty, in addition to Basic Rent and other sums due
on that date, an amount equal to the greater of the Casualty Value
specified on the Rental Schedule or the fair market value of such
Equipment. The Rental Schedule, solely as it relates to the Equipment
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. The fair market value of the Equipment will be determined
by agreement of Lessee and Lessor, or, if the parties cannot agree, by
an independent equipment appraiser of nationally recognized standing,
selected by Lessor and reasonably acceptable to Lessee. The cost of
appraisal will be shared equally by Lessee and Lessor.
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, fees,
interest, fines or penalties imposed by any governmental authority but
only to the extent specifically related to the ownership, leasing,
rental, sales, purchase, possession or use of the Equipment,
excluding, however, all taxes on or measured in part or entirety by
Lessor's net income, gross receipts, or net worth. Lessee shall not
be liable for payment of Lessor's Michigan single business tax.
Further, Lessee shall not be liable for the payment of any business
license fees and occupation taxes, nor any intangible personal
4
property taxes. Notwithstanding the foregoing, Lessor will report and pay
personal property taxes directly to the taxing authority, and Lessee will
reimburse Lessor promptly upon written demand by Lessor. Such written demand by
the Lessor shall be made within reasonable proximity to the date of actual
payment to the governmental body or agency; shall be accompanied by a copy of
the invoice, if available, indicating. the amount due; and shall state the tax
base upon which the tax rate is imposed, the appropriate tax rate, the period
covered, the taxing authority and the Equipment type and serial number, if
applicable, and proof of payment. Notwithstanding any other provisions of this
Section 6, Lessee shall not be liable for any additional taxes, interest,
penalties, fines, or other expenses caused by an act or omission of Lessor, its
agents, employees or representatives.
In defending sales, use and personal property tax issues, Lessor
or Lessor's tax administration agent, if any, will not discriminate
between instances on the basis of who bears the final expense.
Notwithstanding any of the foregoing, Lessee may in writing
request that Lessor contest at the expense of Lessee the validity,
applicability, or amount of any Tax upon delivery of an opinion of
independent counsel reasonably satisfactory to Lessor that the basis
in fact and in law in favor of such contest is greater than the basis
in fact and in law to the contrary. Such contest shall proceed in the
name of the Lessor and at the expense of Lessee, or in the name of
Lessee, if, (i) Lessor consents or, (ii) if the contest may proceed
independently of any other tax matter of Lessor or its affiliates (and
if permitted by law). The nonpayment of any such contested taxes to
the extent of the taxes contested shall not be deemed a default
hereunder until final determination of such contest and expiration of
any due date established therein; provided, however, Lessee shall pay
any tax, or reimburse Lessor for any tax paid, prior to any such
contest if such payment either is required as a condition to such
contest or is necessary to avoid, in Lessor's reasonable judgement,
imposition of a tax lien or a material risk of forfeiture, seizure or
other loss of the Equipment, or any interest therein, or the loss of
any other property of Lessor or its affiliates.
7. INSURANCE.
---------
Lessee agrees to maintain policies of 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 greater
of the Casualty Value set forth on the Rental Schedule or the fair
market value of the Equipment 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 reasonably 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
liability, as their interests may appear; and (C) are to provide that
they may not be materially altered or cancelled except upon thirty
days prior written notice to Lessor. Lessee agrees to deliver to
Lessor such certificates of insurance as Lessor may, from time to
time, 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
5
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. Notwithstanding the foregoing, Lessee shall have
the right to self-insure against any or all of the foregoing risks.
8. FINANCIAL STATEMENTS. INSPECTION. REPORTS.
-----------------------------------------
Upon request of Lessor, Lessee will provide to Lessor copies of
Lessee's annual report. If Lessee's obligations are guaranteed by any
other party, then Lessee will also provide similar financial
information with respect to the Guarantor. 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 but only if
Lessee maintains the same in the course of its business, 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. Lessee will affix to the
Equipment all notices of Lessor's ownership of the Equipment furnished
by Lessor. 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, including obtaining landlord and
mortgagee waivers, 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 2% per annum
above the debt rate charged to Lessor in connection with the financing
of its purchase of the Equipment or 2% 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;
provided that Lessor has first given Lessee ten (10) days' written
notice of such non-payment. 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 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.
6
11. LESSEE'S OPTIONS UPON LEASE EXPIRATION.
--------------------------------------
Lessee has the option at the expiration of the Lease Term,
exercisable with respect to not less than all items of Equipment
leased pursuant to Rental Schedule, (i) to return the Equipment to
Lessor, (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 or (iii) to purchase the Equipment for cash at its
then fair market value. If Lessee decides to purchase the Equipment
or renew the Rental Schedule, Lessee must give Lessor written notice
of this intent no less than 180 days prior to the expiration of the
leasee if Lessee elects to purchase the Equipment, Lessor shall
convey title to the Equipment (together with manufacturer or vendor
warranties, if any) free of liens and encumbrances created by Lessor,
as is, where is and with all faults. Fair market value and fair
rental value shall mean an amount which would obtain in an arm's-
length transaction between an informed and willing buyer-user or
lessee (other than a dealer) and an informed and willing seller or
Lessor under no compulsion to sell or lease (assuming for this purpose
that the Equipment shall have been maintained in accordance with this
Master Lease and disregarding costs for removal from the location of
current use) and will be determined by agreement of Lessor and Lessee.
If the parties cannot agree in writing on the purchase or rental
renewal price before 120 days prior to the expiration of the lease,
the Lessor may proceed on the basis that the Equipment will be
returned at the end of the lease. Any subsequent Lessee request to
change the intent to return the Equipment shall afford the Lessor the
option to extend the existing lease to expire up to 120 days after
receipt of such notice.
At the expiration of the Lease Term or any extension or renewal
thereof, unless Lessee has elected to purchase the Equipment, Lessee
will, at its expense, assemble, pack, and crate the Equipment, all in
accordance with manufacturer's recommendations, if any, and deliver
it, freight and insurance prepaid, to a place to be designated by
Lessor within 100 miles of the Lessee's location of equipment use.
All packaging will include related maintenance logs, operating
manuals, and other related materials and will be clearly marked so as
to identify the contents thereof. The Equipment will be returned in
good and efficient operating condition and appearance, reasonable wear
and tear excepted, meeting any specific return conditions set forth in
the Rental Schedule under "Minimum Return Conditions," and eligible
for manufacturer's maintenance, if available, free of all Lessee's
markings and free of all liens and encumbrances other than those
created by Lessor. At the Lessee's option, a representative of the
Equipment manufacturer's authorized dealer may be called in to
document the condition of the Equipment prior to its return. The
Lessor would be given reasonable opportunity to participate in this
inspection. Documented conditions not complying with the terms of the
Master Lease or the Rental Schedules shall be corrected at the expense
of the Lessee. Non-complying conditions not corrected within thirty
days will constitute basis for the Lessor to continue to charge the
basic lease rate on the non-complying equipment until the conditions
are brought into compliance.
7
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 ten days;
(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;
8
(c) any 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 when made;
(d) any attempt by Lessee, without Lessor's prior written consent, to
assign the Rental Schedule, to make any unauthorized sublease of the
Equipment or to transfer possession of the Equipment;
(e) Lessee or, if Lessee's obligations are guaranteed by any other party,
any Guarantor (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 fails to pay its debts as they
become due; (C) initiates any voluntary bankruptcy or insolvency
proceeding; (D) falls 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 any Guarantor or for a substantial part of Lessee's
or any Guarantor's property; or
(f) 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.
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
9
(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; and
(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; and
(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 repossession
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.
Lessor's remedies are, except as indicated herein, cumulative and not exclusive,
and are in addition to all remedies at law or in equity. 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 BY LESSOR.
--------------------
Lessor may at any time and from time to time sell, transfer or
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, without notice to or
consent by Lessee except as set forth below. Lessor may sell and
transfer its rights in the Rental Schedule and this Master Lease
Agreement as incorporated therein by reference to any affiliate,
subsidiary or parent company of Lessor or to any limited partnership
or other entity sponsored and managed by Lessor without the consent of
Lessee, provided that Lessor shall remain primarily liable for the
performance of Lessor's duties and obligations hereunder and
thereunder. Any other sale and transfer by Lessor hereunder (except
in connection with financing of its purchase of the Equipment
described below) shall be subject to lessee's prior written consent,
which shall not be unreasonably withheld or delayed. 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.
10
15. EARLY TERMINATION AND PURCHASE OPTION.
-------------------------------------
Notwithstanding anything contained herein to the contrary, Lessee
shall have the option, exercisable upon sixty (60) days' prior written
notice to Lessor, to terminate a Rental Schedule with respect to any
or all items of Equipment leased thereunder and purchase all of the
Equipment so terminated on any Rent Payment Date during the Primary
Term of the Rental Schedule, provided that Lessor shall have received,
in good funds on such Rent Payment Date, an amount equal to the
applicable Termination Value indicated on the Termination by Sale
Table appended to the Rental Schedule plus all other sums then due and
payable by Lessee under the Rental Schedule with respect to the
Equipment so terminated. Upon receipt of such amounts, Lessor shall
promptly convey (or arrange such conveyance by any assignee of Lessor)
of all of Lessor's or such assignee's right, title and interest in and
to the terminated Equipment, free and clear of all liens and
encumbrances created by, through or under Lessor and such assignee, if
any, but otherwise on an as-is, where-is basis, with all faults. The
Rental Schedule shall continue in full force and effect, on a pro rata
basis according to original Equipment cost, with respect to Equipment
not purchased by Lessee under a partially terminated Rental Schedule.
16. 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. This Master Lease
Agreement and the Rental Schedule shall be governed by and construed
in accordance with the laws of the State of Michigan. 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.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master
Lease Agreement to be executed and delivered by their duly authorized
representatives as of the date first above written.
AMERICAN FINANCE GROUP GENERAL MOTORS CORPORATION
CENTRAL FOUNDRY DIVISION
By: /s/ ???????????? By: /s/ James C. Carroll
---------------------------- ------------------------------------
Title: Vice President Title: Sr. Admin. Purchasing
-------------------------- ---------------------------------
Date: August 21, 1991 Date: August 20, 1991
--------------------------- ----------------------------------
COUNTERPART NO. 1 OF 3 SERIALLY NUMBERED MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT IF ANY THAT THIS DOCUMENT CONSTITUTES CHATTEL
PAPER UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST MAY BE
CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1
11