MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT NO. 9002M1G399, dated as of April 17, 1990 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, a Delaware corporation having a
principal place of business and address for purposes of notice hereunder at 3044
West Grand Boulevard, Detroit, Michigan 48202, Attention: Treasurer, as Lessee.
1. MASTER LEASE.
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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.
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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 thereunder.
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.
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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,
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
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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.
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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
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.
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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
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.
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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.
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FURTHER ASSURANCES.
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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.
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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.
11. LESSEE'S OPTIONS UPON LEASE EXPIRATION.
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Lessee has the option at the expiration of the Lease Term, exerciseable
with respect to any or all units of Equipment leased pursuant to a 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 an amount equal to its then fair market value less the aggregate
Redelivery Charge paid by Lessee for such Equipment, provided, however, that if
the aggregate Redelivery Charge for an item of Equipment exceeds its then fair
market value, Lessor shall convey such Equipment to Lessee at no cost but shall
not be accountable for such excess Redelivery Charge. For purposes of the
foregoing sentence, a "unit" of Equipment shall mean a compatible operating
system of Equipment components, e.g., a forklift truck, two batteries and one
battery charger. 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. Fair market value, fair
rental value and useful life will be determined by agreement of Lessor and
Lessee, or if the parties cannot agree, by an independent equipment appraiser
selected by Lessor and reasonably acceptable to Lessee. The cost of an
appraisal will be shared equally by Lessor and Lessee. At the expiration of the
Lease Term or any extension or renewal thereof, Lessee will promptly assemble
the Equipment (including operating manuals, maintenance logs and related
materials, if any, in Lessee's possession) and make it available to Lessor at a
single accessible site at each Equipment location identified on the Rental
Schedule. In consideration of the payment by Lessee of the Redelivery Charge
identified on the Rental Schedule, Lessor will, if required, disassemble, pack,
and crate the Equipment and accept redelivery of the Equipment and remove the
same from Lessee's premises within fourteen (14) business days after the
Equipment is made available to Lessor. The Equipment will be returned in good
and efficient operating condition and appearance, reasonable wear and tear
excepted, 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 or arising out of claims against Lessor and not related to the
lease of the Equipment to Lessee. Lessor may, but is not required to, inspect
the Equipment prior to its return. If, upon inspection, Lessor determines that
the condition of any item of Equipment does not conform to the minimum
requirements, Lessor will promptly notify Lessee of such determination,
specifying the repairs or refurbishments needed to place the Equipment in the
minimum acceptable condition. Lessor may, at its option, either require Lessee
to effect such repairs or itself effect such repairs. Lessor may re-inspect the
Equipment and require further repairs as often as necessary until the Equipment
is placed in acceptable condition. In either case, all costs will be paid by
Lessee. 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 accepted for return by Lessor.
12. LESSEE'S REPRESENTATIONS AND WARRANTIES.
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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.
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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;
(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) 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 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
(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.
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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.
15. EARLY TERMINATION AND PURCHASE OPTION.
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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.
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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
By:[SIGNATURE APPEARS HERE] By:[SIGNATURE APPEARS HERE]
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Title: Manager, Lease Financing Title: Director - Purchasing
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Date: May 15, 1990 Date: May 14, 1990
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