EXHIBIT 99.F
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT, dated as of the 21st day of November, 1995
("Lease Agreement"), is made at Boston, Massachusetts by and between FFE LEASING
TRUST NO. 95-01 ("Lessor"), a Massachusetts trust with its principal place of
business at 98 N. WASHINGTON ST., BOSTON, MA 02114, and Conwell Corporation
("Lessee"), a Delaware corporation with its principal place of business at 1145
Empire Central, Dallas, Texas 75265.
IN CONSIDERATION OF the mutual promises and covenants contained herein,
Lessor and Lessee hereby agree as follows:
1. Property Leased. At the request of Lessee and subject to the
terms and conditions of this Lease Agreement, Lessor shall lease to Lessee and
Lessee shall lease from Lessor such personal property ("Equipment") as may be
mutually agreed upon by Lessor and Lessee. The Equipment shall be selected by or
ordered at the request of Lessee, identified in one or more equipment schedules
substantially in the form of Exhibit A attached hereto ("Equipment Schedule")
and accepted by Lessee in one or more certificates of acceptance ("Certificate
of Acceptance") in the form of Exhibit B attached hereto. Each Equipment
Schedule executed by Lessor and Lessee and each Certificated of Acceptance
executed by Lessee shall constitute a part of this Lease Agreement.
2. Certain Definitions.
2.1 The "Acquisition Cost" shall mean the total cost of the
Equipment paid by Lessor as set forth in the applicable Equipment Schedule.
2.2 The "Commencement Date" shall mean the later of the following
dates: (i) the date on which the Equipment identified in the applicable
Equipment Schedule is accepted and placed in service by Lessee under this Lease
Agreement or (ii) the date the Lessor pays the Acquisition Cost to the Vendor(s)
of the Equipment, provided, however, that Lessee shall bear the risk of loss of
the Equipment and shall indemnify and hold Lessor harmless in the manner as set
forth in Section 9 below prior to the Commencement Date. Each Commencement Date
shall be evidenced by the Certificate of Acceptances applicable to such
Equipment Schedule.
2.3 The "Rent Start Date" shall mean the Commencement Date.
2.4 The "Monthly Rent" shall mean the amount set forth in the
applicable Equipment Schedule as Monthly Rent for the Equipment identified on
such Equipment Schedule.
2.5 The "Daily Rent" shall mean one-thirtieth (1/30) of the Monthly
Rent.
2.6 The words "herein," "hereof," and "hereunder" shall refer to
this Lease agreement as a whole and not to any particular section. All other
capitalized terms defined in this Lease Agreement shall have the meanings
assigned thereto.
3. Initial Term of Lease; Payment of Rent.
3.1 The term of lease for the Equipment ("Initial Term") shall
begin on the Commencement Date set forth in the applicable Certificate of
Acceptance and shall continue during and until the expiration of the number of
full calendar months set forth in the applicable Equipment Schedule, measured
from the Rent Start Date, subject, however, to the provisions of Section 12.1
below. The Initial Term may not be canceled or terminated except as set forth in
Section 10.2 below.
3.2 At the expiration of the Initial Term, Lessor and Lessee may
extend the lease of the Equipment for any period not less than one year as they
may agree upon in writing ("Extended Term") at the then fair market rental value
of the Equipment, as determined in good faith by Lessor.
3.3 Aggregate Daily Rent shall be due and payable by Lessee on the
Rent Start Date in an amount equal to the Daily Rent multiplied by the actual
number of days elapsed from, and including, the Commencement Date to, but
excluding, the Rent Start Date. The Monthly Rent shall be due and payable on the
Rent Start Date and, thereafter on the first day of each month of the Initial
Term or any Extended Term. All Daily Rents and Monthly Rents shall be paid to
Lessor at its office in P.O. BOX 360178, PITTSBURGH, PA 15251-6178.
4. Acceptance of Equipment; Exclusion of Warranties.
4.1 Lessee shall signify its acceptance of the Equipment identified
in the applicable Equipment Schedule by promptly executing and delivering to
Lessor a Certificate of Acceptance. Lessee acknowledges that its execution and
delivery of the Certificate of Acceptance shall conclusively establish, as
between Lessor and Lessee, that the Equipment has been inspected by Lessee, is
in good repair and working order, is of the design, manufacture and capacity
selected by Lessee, and is accepted by Lessee under this Lease Agreement.
4.2 In the event the Equipment is ordered by Lessor from a
manufacturer or supplier at the request of Lessee, Lessor shall not be required
to pay the Acquisition Cost for such Equipment unless and until the applicable
Certificate of Acceptance has been received by Lessor. Lessee hereby agrees to
indemnify, defend and hold Lessor harmless from any liability to any
manufacturer or supplier arising from the failure of Lessee to lease any
Equipment which is ordered by Lessor at the request of Lessee or for which
Lessor has assumed Lessee's obligation to purchase.
4.3 Lessor leases the Equipment to Lessee and Lessee leases the
Equipment from Lessor, "AS IS" and "WITH ALL FAULTS." Lessee hereby acknowledges
that (i) Lessor is not a manufacturer, supplier or dealer of such Equipment nor
an agent thereof; and (ii) LESSOR HAS NOT MADE, DOES NOT MAKE, AND HEREBY
DISCLAIMS ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE EQUIPMENT INCLUDING, BUT NOT LIMITED TO, ITS DESIGN, CAPACITY,
CONDITION, MERCHANTABILITY, OR FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE.
Lessee further acknowledges that Lessor is not responsible for any repairs,
maintenance, service, latent or other defects in the Equipment or in the
operation thereof, or for compliance of
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any Equipment with requirements of any laws, ordinances, governmental rules or
regulations including, but not limited to, laws with respect to environmental
matters, patent, trademark, copyright or trade secret infringement, or for any
direct or consequential damages arising out of the use of or inability to use
the Equipment.
4.4 Provided no Event of Default, as defined in Section 15 below,
has occurred and is continuing, Lessor agrees to cooperate with Lessee, at the
sole cost and expense of Lessee, in making any claim against a manufacturer or
supplier of the Equipment arising from a defect in such Equipment. At the
request of Lessee, Lessor shall assign to Lessee all warranties on the Equipment
available from any manufacturer or supplier to the full extent permitted by the
terms of such warranties and by applicable law.
5. Ownership; Inspection; Maintenance and Use.
5.1 The Equipment shall at all times be the sole and exclusive
property of Lessor. Any Equipment subject to titling and registration laws shall
be titled and registered by Lessee on behalf of and in the name of Lessor at the
sole cost and expense of Lessee. Lessee shall cooperate with and provide Lessor
with any information or documents necessary for titling and registration of the
Equipment. Upon the request of Lessor, Lessee shall execute any documents or
instruments which may be necessary or appropriate to confirm, to record or give
notice of the ownership of the Equipment by Lessor including, but not limited
to, financing statements under the Uniform Commercial Code. Lessee, at the
request of Lessor, shall affix to the Equipment, in a conspicuous place, any
label, plaque or other insignia supplied by Lessor designating the ownership of
the Equipment by Lessor.
5.2 The Equipment shall be located at the address specified in the
applicable Equipment Schedule and shall not be removed therefrom, without the
prior written consent of Lessor. Lessor, its agents or employees shall have the
right to enter the premises of Lessee, upon reasonable notice and during normal
business hours, for the purpose of inspecting the Equipment.
5.3 Lessee shall pay all costs, expenses, fees and charges
whatsoever incurred in connection with the use and operation of the Equipment.
Lessee shall, at all times and at its own expense, keep the Equipment in good
repair and working order, reasonable wear and tear excepted. Any maintenance
contract required by a manufacturer or supplier for the care and upkeep of the
Equipment shall be entered into by Lessee at its sole cost and expense. Lessee
shall permit the use and operation of the Equipment only by personnel authorized
by Lessee and shall comply with all laws, ordinances or governmental rules and
regulations relating to the use and operation of the Equipment.
6. Alterations and Modifications. Leasee may make, or cause to be
made on its behalf, any improvement, modification or addition to the Equipment
with the prior written consent of Lessor, provided, however, that such
improvement, modification or addition is readily removable without causing
damage to or impairment of the functional effectiveness of the Equipment. To the
extent that such improvement, modification or addition is not so removable, it
shall immediately become the property of Lessor and thereupon shall be
considered Equipment for all purposes of this Lease Agreement.
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7. Quiet Enjoyment; No Defense, Set-Off or Counterclaims.
7.1 Provided no Event of Default, as defined in Section 15 below,
has occurred and is continuing, Lessee shall have the quiet enjoyment and use of
the Equipment in the ordinary course of its business during the Initial Term or
any Extended Term without interruption by Lessor or any person or entity
claiming through or under Lessor.
7.2 Lessee acknowledges and agrees that ANY DAMAGE TO OR LOSS,
DESTRUCTION, OR UNFITNESS OF, OR DEFECT IN THE EQUIPMENT, OR THE INABILITY OF
LESSEE TO USE THE EQUIPMENT FOR ANY REASON WHATSOEVER, SHALL NOT (i) GIVE RISE
TO ANY DEFENSE, COUNTERCLAIM, OR RIGHT OF SET-OFF AGAINST LESSOR, OR (ii) PERMIT
ANY ABATEMENT OR RECOUPMENT OF, OR REDUCTION IN DAILY OR MONTHLY RENT, OR (iii)
RELIEVE LESSEE OF THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS LEASE AGREEMENT
INCLUDING, BUT NOT LIMITED TO, ITS OBLIGATION TO PAY THE FULL AMOUNT OF DAILY
RENT AND MONTHLY RENT, WHICH OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL, unless
and until this Lease Agreement is terminated with respect to such Equipment in
accordance with the provisions of Section 10.2 below. Any claim that Lessee may
have which arises from a defect in or deficiency of the Equipment shall be
brought solely against the manufacturer or supplier of the Equipment and Lessee
shall, notwithstanding any such claim, continue to pay Lessor all amounts due
and to become due under this Lease Agreement.
8. Adverse Claims and Interests.
8.1 Except for any liens, claims, mortgages, pledges, encumbrances
or security interests created by Lessor, Lessee shall keep the Equipment, at all
times, free and clear from all liens, claims, mortgages, pledges, encumbrances
and security interests and from all levies, seizures and attachments. Without
limitation of the covenants and obligations of Lessee set forth in the preceding
sentence Lessee shall immediately notify Lessor in writing of the imposition of
any prohibited lien, claim, levy or attachment on or seizure of the Equipment at
which time Lessee shall provide Lessor with all relevant information in
connection therewith.
8.2 Lessee agrees that the Equipment shall be and at all times
shall remain personal property. Accordingly, Lessee shall take such steps as may
be necessary to prevent any person from acquiring, having or retaining any
rights in or to the Equipment by reason of its being affixed or attached to real
property.
9. Indemnities; Payment of Taxes.
9.1 Lessee hereby agrees to indemnify, defend and hold harmless
Lessor, its agents, employees, successors and assigns from and against any and
all claims, actions, suits, proceedings, costs, expenses, damages and
liabilities whatsoever arising out of or in connection with the manufacture,
ordering, selection, specifications, availability, delivery, titling,
registration, rejection, installation, possession, maintenance, ownership, use,
leasing, operation or return of the Equipment including, but not limited to, any
claim or demand based upon any STRICT OR ABSOLUTE LIABILITY IN TORT and upon any
infringement or alleged
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infringement of any patent, trademark, trade secret, license, copyright or
otherwise. All costs and expenses incurred by Lessor in connection with any of
the foregoing including, but not limited to, reasonable legal fees, shall be
paid by Lessee on demand.
9.2 Lessee hereby agrees to indemnify, defend and hold Lessor
harmless against all Federal, state and local taxes, assessments, licenses,
withholdings, levies, imposts, duties, assessments, excise taxes, registration
fees and other governmental fees and charges whatsoever, which are imposed,
assessed or levied on or with respect to the Equipment or its use or related in
any way to this Lease Agreement ("Tax Assessments"), except for taxes on or
measured by the net income of Lessor determined substantially in the same manner
as under the Internal Revenue Code of 1986, as amended. Lessee shall file all
returns, reports or other such documents required in connection with the Tax
Assessments and shall provide Lessor with copies thereof. If, under local law or
custom, Lessee is not authorized to make the filings required by a taxing
authority, Lessee shall notify Lessor in writing and Lessor shall thereupon file
such returns, reports or documents. Without limiting any of the foregoing,
Lessee shall indemnify, defend and hold Lessor harmless from all penalties,
fines, interest payments, claims and expenses including, but not limited to,
reasonable legal fees, arising from any failure of Lessee to comply with the
requirements of this Section 9.2.
9.3 The obligations and indemnities of Lessee under this Section 9
for events occurring or arising during the Initial Term or any Extended Term
shall continue in full force and effect, notwithstanding the expiration or other
termination of this Lease Agreement.
10. Risk of Loss; Loss of Equipment.
10.1 Lessee hereby assumes and shall bear the entire risk of loss
for theft, damage, seizure, condemnation, destruction or other injury whatsoever
to the Equipment from any and every cause whatsoever. Such risk of loss shall be
deemed to have been assumed by Lessee from and after such risk passes from the
manufacturer or supplier by agreement or pursuant to applicable law.
10.2 In the event of any loss, seizure, condemnation or destruction
of the Equipment or damage to the Equipment which cannot be repaired by Lessee,
Lessee shall immediately notify Lessor in writing. Within thirty (30) days of
such notice, during which time Lessee shall continue to pay Monthly Rent, Lessee
shall, at the option of Lessor, either (i) replace the Equipment with equipment
of the same type and manufacture and in good repair, condition and working
order, and transfer title to such equipment to Lessor free and clear of all
liens, claims and encumbrances, whereupon such equipment shall be deemed
Equipment for all purposes of this Lease Agreement, or (ii) terminate this Lease
Agreement with respect to such Equipment by paying to Lessor the stipulated loss
value ("Stipulated Loss Value") as defined in Exhibit A, which is attached to
each Equipment Schedule, for the date, appearing on such Exhibit, which next
follows the date on which the Equipment is lost, seized, condemned, destroyed or
damaged ("Stipulated Loss Payment Date"). Upon payment of the Stipulated Loss
Value and any Monthly Rent or other sums due and owing by Lessee to Lessor, the
Lease Agreement shall terminate with respect to such Equipment and all right,
title and interest of Lessor in and to the Equipment shall vest in Lessee. Any
insurance proceeds or awards relating to the loss, seizure, condemnation or
destruction of or damage to the Equipment,
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which are paid directly to Lessor, shall either be credited or paid over by
Lessor to Lessee up to the amount of any Stipulated Loss Value, either payable
or paid by Lessee. Any insurance or condemnation proceeds received by Lessor
shall be credited to the obligation of Lessee under this Section 10.2 and the
remainder of such proceeds, if any, shall be paid to Lessee by Lessor in full
compensation for the loss of the leasehold interest in the Equipment by Lessee.
10.3 Upon any replacement of or payment for the Equipment as
provided in Section 10.2 above, this Lease Agreement shall terminate only with
respect to the Equipment so replaced or paid for, and Lessor shall transfer to
Lessee title only to such Equipment "AS IS," "WITH ALL FAULTS," and WITH NO
WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR ANY PARTICULAR
PURPOSE. Lessee shall pay any sales or use taxes due on such transfer.
11. Insurance.
11.1 Lessee shall keep the Equipment insured against all risks of
loss or damage from every cause whatsoever occurring during the Initial Term, or
any Extended Term for an amount not less than the higher of the full replacement
value of the Equipment or the aggregate of unpaid Daily Rent and Monthly Rent
for the balance of the Initial Term, or the Extended Term. Lessee shall also
carry public liability insurance, both personal injury and property damage,
covering the Equipment and Lessee shall be liable for any deductible portions of
all required insurance.
11.2 All insurance required under this Section 11 shall name Lessor
as additional insured and loss payee. Such insurance shall also be with such
insurers and shall be in such forms and amounts as are satisfactory to Lessor.
All applicable policies shall provide that no act, omission or breach of
warranty by Lessee shall give rise to any defense against payment of the
insurance proceeds to Lessor. Lessee shall pay the premiums for such insurance
and, at the request of Lessor, deliver to Lessor evidence satisfactory to Lessor
of such insurance coverage. In any event, Lessee shall provide Lessor with
endorsements upon the policies issued by the insurers which evidence the
existence of insurance coverage required by this Section 11 and by which the
insurers agree to give Lessor written notice at least twenty (20) days prior to
the effective date of any expiration, modification, reduction, termination or
cancellation of any such policies.
11.3 The proceeds of insurance required under this Section 11 and
payable as a result of loss or damage to the Equipment shall be applied as set
forth in Section 10.2 above. Upon the occurrence of an Event of Default as
defined in Section 15 below, Lessee hereby irrevocably appoints Lessor as its
attorney-in-fact, which power shall be deemed coupled with an interest, to make
claim for, receive payment of, execute and endorse all documents, checks or
drafts received in payment for loss or damage under any insurance policies
required by this Section 11.
11.4 Notwithstanding anything herein, Lessor shall not be under any
duty to examine any evidence of insurance furnished hereunder, or to ascertain
the existence of any
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policy or coverage, or to advise Lessee of any failure to comply with the
provisions of this Section 11.
12. Surrender to Lessor.
12.1 Immediately upon the expiration of the Initial Term or any
Extended Term, Lessee shall surrender the Equipment to Lessor; provided, however
that Lessee has given 90 days prior written notice of its intent to surrender
the Equipment. The term of lease shall be automatically extended for successive
monthly periods ("Extended Term") until terminated by Lessee in accordance with
such notice. No notice of termination by Lessee shall be effective earlier than
the last day of the Initial Term, any Extended Term under Section 3.2 above, or
any Extended Term under this Section 12.1, nor shall any such notice be required
in the event of a termination of this Lease Agreement by Lessor upon the
occurrence of an Event of Default. All Equipment surrendered to Lessor shall be
in good repair and working order, reasonable wear and tear expected, by
delivering the Equipment to any location as may be designated by Lessor within
100 miles of a major terminal operated by Lessee in any of the following cities:
Dallas, Texas; Chicago, Illinois; New York, New York; Atlanta, Georgia; Los
Angeles, California; or Denver, Colorado. All costs of removal and delivery of
such Equipment to the place designated by Lessor shall be borne by Lessee.
12.2 Without limiting the obligations of Lessee under either Section
5.3 and 12.1, Lessee shall, at its expense, do the following:
12.2.1 Lessee shall ensure that all Equipment and Equipment
operations conform to all applicable local, state, and federal laws, health and
safety guidelines. Upon return, the Equipment will be complete and operational
with all components as originally supplied and will have passed U.S. Department
of Transportation ("DOT") or appropriate regulatory agency requirements for
operation. If applicable, an inspection sticker or certificate will be
furnished to Lessor verifying compliance with any regulatory requirements.
Lessee shall satisfy all legal and regulatory conditions necessary for Lessor
to sell or lease the Equipment to a third party. Lessee will keep all licenses
and operating certificate required for operation of the Equipment current
during the Initial Term or any Extended Term of this Lease Agreement. Lessee
will at all times use the Equipment in compliance with all applicable laws and
regulations of any governmental, local and regulatory agency.
12.2.2 Lessee shall provide safe, secure storage for the
Equipment for sixty (60) days after expiration or earlier termination of the
Lease Agreement (by acceleration or otherwise) at not more than eight (8)
locations selected by Lessor.
12.2.3 Lessee shall take such action as may be required so
that, upon return, each unit of Equipment shall meet all of its manufacturer's
specifications for performance under full rated loads and all of the following
conditions:
(i) TIRES: All tires shall be of the same type (original
size) and manufacturer (i.e. matched) and have a minimum of
fifty percent (50%) remaining tread on original or recapped
casings without flat or bald spots, dry rot, exposed cord or
cuts in sidewall;
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(ii) GENERAL CONDITION: Upon return, there shall be no
structural or mechanical damage. The Equipment must be air,
wind and water tight. Floors, interior linings, scuffboards,
exterior panels, roofs, and doors are to be secure and free of
holes, rips, tears, or any other material damage. Doors,
including hinges, hardware and seals, will be complete and
operate as originally intended by the manufacturer. Interior
linings and floors will be repaired in a manner that maintains
the original geometric profile of the structure and resulting
air flow pattern. All rust or corrosion must be treated in a
manner consistent with standard industry practices. The
equipment must be able to pass a FHWA inspection. All patches
shall be permanent and sealed properly. (Tape patches shall not
be deemed acceptable. Existing self sealing pop rivets are
acceptable, except that drive rivet patches shall not be
acceptable.) All Equipment must have a good overall appearance
and no material damage. The Equipment shall be structurally
sound, in good appearance, clean, free of rust and corrosion
with no missing or damaged parts. There may not be any broken
or cracked exterior surfaces, inside linings, seals, doors,
latches, or floors. Upon return, all commercial logos,
advertising, graffiti, insignia and lettering shall be removed
in a workmanlike manner so as not to damage the Equipment. The
surfaces shall be repainted in such a way that the area blends
in with the remainder of the unit. Manufacturer's identity
plates and markings shall not be removed. With respect to each
unit of Equipment, the total cost of necessary repairs for
damages or other related costs necessary to place the Equipment
in such condition as to be in complete compliance with this
Lease Agreement may not exceed $500. All units shall be cleaned
and cosmetically acceptable with all Lessee installed decals
and markings properly removed. Fuel tanks must be at least
twenty-five percent (25%) full;
(iii) DOCUMENTS AND RECORDS: Written records of scheduled
and other maintenance and repair work done shall be kept,
dated, and signed by the appropriate authority. A service
history or log will be maintained during the Initial Term and
any Extended Term of the Lease Agreement and a copy provided to
Lessor upon request during the Initial Term and any Extended
Term of the Lease Agreement, or at the expiration or other
termination (by acceleration or otherwise) of the Lease
Agreement. All maintenance records, maintenance record jackets,
repair jackets, repair orders, license plates, registration
certificates and all other similar documents, in their
entirety, must be returned to Lessor;
(iv) BRAKES: Brake drums and linings shall not be cracked
and shall not exceed manufacturers' recommended wear limits.
Brake linings shall have fifty percent (50%) remaining wear;
(v) MAINTENANCE: Lessee shall strictly follow the
manufacturer's recommended maintenance and service schedule, as
required to validate any warranty, at Lessee's sole cost and
expense. Any maintenance or repair work shall comply with the
guidelines and procedures as specified by the manufacturers of
the Equipment or each component of the Equipment. Lessee
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will use only original manufacturer's approved replacement
parts and components in the performance of any maintenance and
repair of the Equipment. Lessee will at all times maintain the
Equipment in good operational condition and appearance, and
shall not discriminate such maintenance between owned or leased
equipment; and
(vi) REFRIGERATION UNITS: With respect to all refrigeration
units, upon return, each shall be mechanically sound and in
good operating order and capable of satisfactorily passing any
test for refrigeration or cooling loss as recommended by the
manufacturer and performed by an authorized factory
representative, at Lessee's sole cost and expense.
Refrigeration unit specifications must be in compliance with
DOT. The refrigeration units must have at least 50% time-wear
remaining before the next overhaul or replacement as
recommended by Reefer Manufacturer's and published in standard
maintenance manuals;
(vii) REFRIGERANTS: Lessee shall use only non-CFC
refrigerants in the refrigeration units. In the event that
Lessee wishes to convert the operating refrigerant to an
alternative refrigerant, the Lessee will obtain the prior
approval of the Lessor. Any such modifications will be done in
accordance with the Reefer Manufacturer's suggested procedures.
All such modifications will be completed at Lessee's expense.
These modifications will become the property of Lessor;
(viii) USE: Lessee guarantees that the Equipment will not be
or have been loaded beyond the rated capacity as certified by
the manufacturer at any time during the Initial Term or any
Extended Term of the Lease Agreement. Lessee will not
discriminate in the use of the Equipment from any other
similar equipment in its fleet;
(ix) ALTERATIONS: Lessee will not modify the Equipment
without the prior written approval of Lessor, in any event,
Lessee will not make any modifications or alterations that
would impair the Equipment's use, value marketability or
manufacturer's warranty and recommendations. Lessee will not
make any alterations, to the Equipment that would damage or
restrict the use of the Equipment from its initial use and
design and that cannot be removed without damage to the unit.
Changes, modifications or additions to the Equipment mandated
by Federal or state authorities will be completed by the Lessee
and become property of the Lessor; and
(x) REGULATORY STANDARDS: Without limiting any of the
foregoing, Lessee shall insure that, upon surrender to Lessor,
all coolants and other materials contained in any unit of
Equipment comply with all then current standards and/or
regulations promulgated by the Environmental Protection Agency,
or any successor agency, or other governmental or
quasi-governmental agency having jurisdiction over the
Equipment, and such compliance with standards and regulations
is necessary in order for such units of Equipment to be
marketable for the purposes such units were intended.
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12.2.4 Prior to any surrender of the Equipment, an in depth physical
inspection will be conducted by a manufacturer's service representative(s)
(Great Dane, Utility and Trailmobile, collectively the "Trailer Manufacturers"
and Thermo King for the trailers having Thermo King refrigeration units and
Carrier for those units having Carrier refrigeration units, collectively the
"Reefer Manufacturers") on behalf of Lessor, and paid for by Lessee. Any part,
component or function found not to be within the manufacturer's tolerances and
operational specifications will be replaced or brought with in those tolerances
and specifications to the satisfaction of Lessor.
13. Financial Statements. Lessee shall annually, within ninety (90)
days after the close of the fiscal year for Lessee, furnish, or cause to be
furnished, to Lessor financial statements of Frozen Foods Express Industries,
Inc., the quarantor of the obligations of Lessee hereunder (the "Guarantor"),
including a balance sheet as of the close of such year and statements of income
and retained earnings for such year, prepared in accordance with generally
accepted accounting principles, consistently applied from year to year, and
certified by independent public accountants for Guarantor. If requested by
Lessor, Guarantor shall also provide quarterly financial statements of
Guarantor, similarly prepared for each of the first three quarters of each
fiscal year, certified (subject to normal year-end audit adjustments) by the
chief financial officer of Guarantor and furnished to Lessor within sixty (60)
days following the end of the quarter, and such other financial information as
may be reasonably requested by Lessor.
14. Delayed Payment Charge. Lessee shall pay to Lessor interest
upon the amount of any Daily Rent, Monthly Rent or other sums not paid by Lessee
when due and owing under this Lease Agreement, from the due date thereof until
paid, at the rate of one and one half (1-1/2 ) percent per month, but if such
rate violates applicable law, then the maximum rate of interest allowed by such
law.
15. Default.
15.1 The occurrence of any of the following events shall constitute
an event of default ("Event of Default") under this Lease Agreement.
(a) Lessee fails to pay any Daily Rent or any Monthly Rent when due
and such failure to pay continues for ten (10) consecutive days; or
(b) Lessee fails to pay any other sum required hereunder, and such
failure continues for a period of ten (10) days following written
notice from Lessor; or
(c) Lessee fails to maintain the insurance as required by Section
11 above and such failure continues to ten (10) days after written
notice from Lessor; or
(d) Lessee or Guarantor violates or fails to perform any other
term, covenant or condition of this Lease Agreement or any other
document, agreement or instrument executed pursuant hereto or in
connection herewith, which failure is not cured within thirty (30) days
after written notice from Lessor; or
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(e) Lessee or Guarantor ceases to exist or terminates its
independent operations by reason of any discontinuance, dissolution,
liquidation, merger, sale of substantially all of its assets, or
otherwise ceases doing business as a going concern; or
(f) Lessee or Guarantor (i) applies for or consents to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or similar official for itself or for all or a
substantial part of its property, (ii) is generally not paying its
debts as such debts become due, (iii) makes a general assignment for
the benefit or its creditors, (iv) commences a voluntary case under the
United States Bankruptcy Code, as now or hereafter in effect, seeking
liquidation, reorganization or other relief with respect to itself or
its debts, (v) files a petition seeking to take advantage of any other
law providing for the relief of debtors, (vi) takes any action under
the laws of its jurisdiction of incorporation or organization similar
to any of the foregoing, or (vii) takes any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case is commenced, without the application or
consent of Lessee or Guarantor, in any court of competent jurisdiction,
seeking (i) the liquidation, reorganization, dissolution, winding up of
Lessee or Guarantor or composition or readjustment of the debts of
Lessee or Guarantor, (ii) the appointment of a trustee, receiver,
custodian, liquidator or similar official for Lessee or Guarantor or
for all or any substantial part of its assets, or (iii) similar relief
with respect to Lessee or Guarantor under any law providing for the
relief of debtors; or an order for relief is entered with respect to
Lessee or Guarantor in an involuntary case under the United States
Bankruptcy Code, as now or hereafter in effect, or an action under the
laws of the jurisdiction of incorporation or organization of Lessee or
Guarantor, similar to any of the foregoing, is taken with respect to
Lessee or Guarantor without its application or consent; or
(h) Lessee or Guarantor makes any representation or warranty herein
or in any statement or certificate at any time given in writing
pursuant to or in connection with this Lease Agreement which is false
or misleading in any material respect; or
(i) Lessee or Guarantor defaults under any promissory note, credit
agreement, loan agreement, conditional sales contract, guaranty, lease,
indenture, bond, debenture or other material obligation whatsoever, and
a party thereto or a holder thereof is entitled to accelerate the
obligations of Lessee or Guarantor thereunder; or Lessee or Guarantor
defaults in meeting any of its trade, tax or other current obligations
as they mature, unless such obligations are being contested diligently
and in good faith; or
(j) Any party to any guaranty, letter of credit, subordination or
credit agreement or other undertaking, given for the benefit of Lessor
and obtained in connection with this Lease Agreement, breaches, fails
to continue, contests, or purports to terminate or to disclaim such
guaranty, letter of credit, subordination or credit agreement or other
undertaking; or such guaranty, letter of credit, subordination
agreement or other undertaking becomes unenforceable; or a guarantor of
this Lease Agreement shall die, cease to exist or terminate its
independent operations.
- 11 -
15.2 No waiver by Lessor of any Event of Default shall constitute a
waiver of any other Event of Default or of the same Event of Default at any
other time.
16. Remedies.
16.1 Upon the occurrence of an Event of Default and while such Event
of Default is continuing, Lessor, at its sole option, upon its declaration, and
to the extent not inconsistent with applicable law, may exercise any one or more
of the following remedies:
(a) Lessor may terminate this Lease Agreement whereupon all rights
of Lessee to the quiet enjoyment and use of the Equipment shall cease;
(b) Whether or not this Lease Agreement is terminated, Lessor may
cause Lessee, at the sole cost and expense of Lessee, to return any or
all of the Equipment promptly to the possession of Lessor in good
repair and working order, reasonable wear and tear excepted. Lessor, at
its sole option and through its employees, agents or contractors, may
peaceably enter upon the premises where the Equipment is located and
take immediate possession of and remove the Equipment, all without
liability to Lessor, its employees, agents or contractors for such
entry. LESSEE HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHTS TO NOTICE AND/OR HEARING PRIOR TO THE REPOSSESSION
OR REPLEVIN OF THE EQUIPMENT BY LESSOR, ITS EMPLOYEES, AGENTS OR
CONTRACTORS;
(c) Lessor may proceed by court action to enforce performance by
Lessee of this Lease Agreement or pursue any other remedy Lessor may
have hereunder, at law, in equity or under any applicable statute, and
recover such other actual damages as may be incurred by Lessor;
(d) Lessor may recover from Lessee damages, not as a penalty but as
liquidation for all purposes and without limitation of any other
amounts due from Lessee under this Lease Agreement, in an amount equal
to the sum of (i) any unpaid Daily Rents and/or Monthly Rents due and
payable for periods prior to the repossession of the Equipment by
Lessor plus any interest due thereon pursuant to Section 14 above (ii)
the present value of all future Monthly Rents required to be paid over
the remaining Initial Term or any Extended Term after repossession of
the Equipment by Lessor, determined by discounting such future Monthly
Rents to the date of payment by Lessee at a rate of five (5) percent
per annum, and (iii) all costs and expenses incurred in searching for,
taking, removing, storing, repairing, restoring, refurbishing and
leasing or selling such Equipment; or
(e) Lessor may sell, lease or otherwise dispose of any or all of
the Equipment, whether or not in the possession of Lessor, at public or
private sale and with or without notice to Lessee, which notice is
hereby expressly waived by Lessee, to the extent permitted by and not
inconsistent with applicable law. Lessor shall then apply against the
obligations of Lessee hereunder the net proceeds of such sale, lease or
other disposition, after deducting therefrom (i) the present value of
the residual value of the Equipment at the expiration of the Initial
Term, which is anticipated by Lessor and
- 12 -
Lessee to be not less than the Stipulated Loss Value for the last
Stipulated Loss Payment Date set forth on Exhibit A to the applicable
Equipment Schedule, such present value to be determined by discounting
the residual value to the date of sale, lease or other disposition at a
rate of five (5) percent per annum, and (ii) all costs incurred by
Lessor in connection with such sale, lease or other disposition
including, but not limited to, costs of transportation, repossession,
storage, refurbishing, advertising or other fees. Lessee shall remain
liable for any deficiency, and any excess of such proceeds over the
total obligations owed by Lessee shall be retained by Lessor. If any
notice of such sale, lease or other disposition of the Equipment is
required by applicable law, ten (10) days written notice to Lessee
shall be deemed reasonable.
16.2 No failure on the part of Lessor to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof. No
single or partial exercise of any right or remedy hereunder shall preclude any
other or further exercise thereof or the exercise of any other right or remedy.
Each right and remedy provided hereunder is cumulative and not exclusive of any
other right or remedy including, without limitation, any right or remedy
available to Lessor at law, by statute or in equity.
16.3 Lessee shall pay all costs and expenses including, but not
limited to, reasonable legal fees incurred by Lessor arising out of or in
connection with any Event of Default under this Lease Agreement. Lessee shall
also be liable for any amounts due and payable to Lessor under any other
provision of this Lease Agreement including, but not limited to, amounts due and
payable under Section 17 below.
17. Tax Indemnification
17.1 This Lease Agreement has been entered into by Lessor and
Lessee under the assumption that Lessor or its affiliated group ("Affiliated
Group"), as defined in Section 1504 of the Internal Revenue Code of 1986, as
amended, (the "Code") will be treated as the owner Of the Equipment and will be
entitled to such deductions and other benefits that are provided by the Code
including, without limitation, deductions for the recovery of the Acquisition
Cost of the Equipment, over the recovery period ("Recovery Period") set forth on
the applicable Equipment Schedule, using the Accelerated Cost Recovery System as
provided by Section 168 of the Code ("ACRS Deductions").
17.2 Lessee represents, covenants and warrants the following:
(a) Neither Lessee, nor any affiliate of Lessee, nor any other
party (i) has claimed or will claim any ACRS Deductions, or any other
deductions in the nature of cost recovery or depreciation with respect
to the Equipment, or (ii) has made or will make any election under the
Code regarding the method or the period for cost recovery or deductions
for personal property which will be binding upon Lessor and which will
adversely affect the assumptions set forth in Section 17.1 above with
respect to the Equipment or (iii) shall, at any time, take any action
or file any returns or other documents inconsistent with the
assumptions set forth in Section 17.1 above.
- 13 -
(b) In the event the Equipment has been sold to Lessor by Lessee
and leased back from Lessor by Lessee, such Equipment does not
constitute property placed in service in a churning transaction within
the meaning of Section 168(f)(5) of the Code.
(c) The Equipment has not been manufactured or produced in any
foreign country which is subject to an Executive Order of the President
of the United States that would deny the availability of ACRS
Deductions to Lessor.
(d) The Acquisition Cost of the Equipment does not exceed the fair
market value of the Equipment.
(e) When delivered and accepted under the Lease Agreement, the
Equipment will not require any improvements, modifications, or
additions (other than ancillary or incidental items of removable
equipment) in order to be rendered complete for its intended use by
Lessee.
(f) At the time the Equipment is accepted under the Lease
Agreement, Lessee and, if applicable, any member of its Affiliated
Group shall have been fully reimbursed for any portion of the
Acquisition Cost of the Equipment which it may have furnished;
furthermore, on the applicable Commencement Date and during the Initial
Term, neither Lessee nor any member of its Affiliated Group shall have
any investment in the Equipment.
(g) The Equipment will be placed in service on the applicable
Commencement Date and will be used in a trade or business or will be
held for the production of income within the meaning of Section 167 of
the Code.
(h) From the applicable Commencement Date and during the Initial
Term, the Equipment will constitute and will be treated as (i)
"recovery property" within the meaning of Section 168 of the Code, and
(ii) property with the Recovery Period set forth in the applicable
Equipment Schedule determined in accordance with Section 168(c) of the
Code.
(i) From the applicable Commencement Date and during the Initial
Term, the Equipment will not constitute, or be treated as, (I) "tax
exempt use property" within the meaning of Section 168(h) of the Code
which would cause Lessor to fail to realize, lose, or suffer
diminution, deferral, or recapture of any of the ACRS Deductions
described in Section 17.1 above, or (ii) "limited use property" within
the meaning of Rev. Proc. 76-30, 1976C. B. 647.
(j) During the Initial Term, the Equipment will not be used
"predominantly outside the United States" within the meaning of Section
168(g)(4) of the Code.
(k) During the Initial Term, Lessor shall not be required to
include in its gross income for Federal income tax purposes any amount
derived from the cost of any alteration, addition, improvement,
modification, replacement, or substitution of the
- 14 -
Equipment or from any refund or credit from the manufacturer or
supplier of the Equipment.
17.3 A tax loss ("Tax Loss") shall be deemed to have occurred under
this Section 17 if Lessor or its Affiliated Group, for Federal income tax
purposes, shall not be entitled to, shall not be allowed, shall suffer recapture
of or shall lose any of the ACRS Deductions, as a result of:
(a) Lessee's breach of, or its failure to comply with, any
representation, covenant, or warranty set forth in Section 17.2 above,
or the inaccuracy of any such representation;
(b) the occurrence of an Event of Default as defined in Section 15
of the Lease Agreement;
(c) the replacement, substitution, loss, seizure, condemnation,
destruction or governmental requisitioning of the Equipment; or
(d) any act (whether or not permitted or required under this Lease
Agreement) or any omission of Lessee, any affiliate of Lessee, any
sublessee or assignee of Lessee, or any entity, other than Lessor,
having possession, control or use of the Equipment (whether or not such
possession, control or use may be authorized or unauthorized).
17.4 If a Tax Loss occurs, then Lessee shall pay to Lessor, upon
demand, a sum to be computed by Lessor in the following manner. Such sum, after
deduction of all Federal, state and local income taxes payable by Lessor as a
result of the receipt of such sum, shall be sufficient to restore Lessor or its
Affiliated Group to substantially the same position, on an aftertax basis, as it
would have been in but for the loss of such ACRS Deductions. In making its
computation, Lessor or its Affiliated Group shall consider, but shall not be
limited to, the following factors: (i) the amounts and timing of any net loss of
tax benefits resulting from any such lack of entitlement to or loss, recapture,
or disallowance of ACRS Deductions but offset by any tax benefits derived from
any depreciation or other capital recovery deductions or exclusions from income
allowed to Lessor or its Affiliated Group with respect to the same Equipment;
(ii) penalties, interest or other charges imposed; (iii) difference in tax years
involved; and (iv) the time value of money at a reasonable rate determined, in
good faith, by Lessor. For purposes of computation only, the amount of
indemnification payments hereunder shall be calculated on the assumption that
Lessor and its Affiliated Group have or will have, in all tax years involved,
sufficient taxable income and tax liability to realize all tax benefits and
incur all losses of tax benefits at the highest marginal Federal corporate
income tax rate in each year. Upon request, Lessor shall provide Lessee with the
methods of computation used in determining any sum that may be due and payable
by Lessee under this Section 17.
17.5 The representations, obligations and indemnities of Lessee
under this Section 17 shall continue in full force and effect, notwithstanding
the expiration or other termination of this Lease Agreement.
18. Assignment; Sublease.
- 15 -
18.1 Lessor may sell, assign or otherwise transfer all or any part
of its right, title and interest in and to the Equipment and/or this Lease
Agreement to a third-party assignee, subject to the terms and conditions of this
Lease Agreement including, but not limited to, the right to the quiet enjoyment
of the Equipment by Lessee as set forth in Section 7.1 above. Such assignee
shall assume all of the rights and obligations of Lessor under this Lease
Agreement and shall relieve Lessor therefrom. Thereafter, all references to
Lessor herein shall mean such assignee. Notwithstanding any such sale,
assignment or transfer, the obligations hereunder shall remain absolute and
unconditional as set forth in Section 7.2 above.
18.2 Lessor may also pledge, mortgage or grant a security interest
in the Equipment and assign this Lease Agreement as collateral. Each such
pledgee, mortgagee, lienholder or assignee shall have any and all rights as may
be assigned by Lessor but none of the obligations of Lessor hereunder. Any
pledge, mortgage or grant of security interest in the Equipment or assignment of
this Lease Agreement shall be subject to the terms and conditions hereof
including, but not limited to, the right to the quiet enjoyment of the Equipment
by Lessee as set forth in Section 7.1 above. Lessee, by reason of such pledge,
mortgage, grant of security interest or collateral assignment, shall not be
relieved of any of its obligations hereunder which shall remain absolute and
unconditional as set forth in Section 7.2 above. Upon the written request of
Lessor, Lessee shall acknowledge such obligations to the pledgee, mortgagee,
lienholder or assignee.
18.3 LESSEE SHALL NOT SELL, TRANSFER, ASSIGN, SUBLEASE, CONVEY OR
PLEDGE ANY OF ITS INTEREST IN THIS LEASE AGREEMENT OR ANY OF THE EQUIPMENT,
WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Any such sale, transfer,
assignment, sublease, conveyance or pledge, whether by operation of law or
otherwise, without the prior written consent of Lessor, shall be void.
19. Optional Performance by Lessor. If an Event of Default, as
defined in Section 15 above, occurs and is continuing, Lessor in its sole
discretion may pay or perform such obligation in whole or in part, without
thereby becoming obligated to pay or to perform the same on any other occasion
or to pay any other obligation of Lessee. Any payment or performance by Lessor
shall not be deemed to cure any Event of Default hereunder. Upon such payment or
performance by Lessor, Lessee shall pay forthwith to Lessor the amount of such
payment or an amount equal to all costs and expenses of such performance, as
well as any delayed payment charges on such amounts as set forth in Section 14
above.
20. Compliance and Approvals. Lessee warrants and agrees that this
Lease Agreement and the performance by Lessee of all its obligations hereunder
have been duly authorized, do not and will not conflict with any provision of
the charter or bylaws of Lessee or of any agreement, indenture, lease or other
instrument to which Lessee is a party or by which Lessee or any of its property
is or may be bound. Lessee warrants and agrees that this Lease Agreement does
not and will not require any governmental authorization, approval, license or
consent except those which have been duly obtained and will remain in effect
during the entire Initial Term and any Extended Term.
21. Miscellaneous.
- 16 -
21.1 The section headings are inserted herein for convenience of
reference and are not part of and shall not affect the meaning or interpretation
of this Lease Agreement.
21.2 Any provision of this Lease Agreement which is unenforceable in
whole or in part in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such unenforceability without invalidating any
remaining part or other provision hereof and shall not be affected in any manner
by reason of such enforceability in any other jurisdiction. The validity and
interpretation of this Lease Agreement and the rights and obligations of the
parties hereto shall be governed in all respects by the laws of The Commonwealth
of Massachusetts without giving effect to the conflicts of laws provisions
thereof.
21.3 This Lease Agreement, including all Equipment Schedules and
Certificates of Acceptance, constitutes the entire agreement between Lessor and
Lessee. Lessor and Lessee agree that this Lease Agreement shall not be amended,
altered or changed except by a written agreement signed by the parties hereto.
LESSSEE ACKNOWLEDGES THAT THERE HAVE BEEN NO REPRESENTATIONS, EXPRESS OR
IMPLIED, BY LESSOR OTHER THAN AS SET FORTH HEREIN AND LESSEE EXPRESSLY CONFIRMS
THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS BY LESSOR, EXCEPT THOSE SET
FORTH HEREIN, AS A BASIS FOR ENTERING INTO THIS LEASE AGREEMENT.
21.4 Any notice required to be given by Lessee or Lessor hereunder
shall be deemed adequately given if sent by registered or certified mail, return
receipt requested, to the other party at their respective addresses stated
herein or at such other place as either party may designate in writing to the
other.
21.5 Lessee agrees to execute and deliver such additional documents
and to perform such further acts as may be reasonably requested by Lessor in
order to carry out and effectuate the purposes of this Lease Agreement. Upon the
written request of Lessor, Lessee further agrees to execute any instrument
necessary for filing or recording this Lease Agreement or to confirm the
ownership of the Equipment by Lessor. Lessor is hereby authorized to insert in
any Equipment Schedule the serial numbers of the Equipment and other identifying
marks or similar information and to sign, on behalf of Lessee, any Uniform
Commercial Code financing statements.
21.6 This Lease Agreement cannot be canceled or terminated except as
expressly provided herein.
21.7 Whenever the context of this Lease Agreement requires, the
singular includes the plural and the plural includes the singular. Whenever the
word Lessor is used herein, it includes all assignees and successors in interest
of Lessor. If more than one Lessee are named in this Lease Agreement, the
liability of each shall be joint and several.
21.8 All agreements, indemnities, representations and warranties of
Lessee made herein and all rights and remedies of Lessor shall survive the
expiration or other termination of this Lease Agreement, whether or not
expressly provided herein.
- 17 -
21.9 Any waiver of any power, right, remedy or privilege of Lessor
hereunder shall not be effective unless in writing signed by Lessor.
21.10 This Lease Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee, each by its duly authorized
officer or agent, have duly executed and delivered this Lease Agreement, which
is intended to take effect as a sealed instrument, as of the day and year first
written above.
Conwell Corporation
By: /s/ {ILLEGIBLE}
-------------------
Title: Controller
-----------
Accepted at Boston, Massachusetts
FFE LEASING TRUST NO. 95-01
By: /s/ GAIL OFGANT
- ----------------------------
Gail Ofgant
Manager
TRUSTEE
By:
-----------------
TRUSTEE
- 18 -
EXHIBIT A TO
SECTION 10.2 OF
MASTER LEASE AGREEMENT
With reference to Section 10.2 of the Master Lease Agreement as applicable to
the Equipment set forth on Equipment Schedule No. 002, Lessor and Lessee agree
that the Stipulated Loss Value shall mean the product obtained by multiplying
the Acquisition Cost of the Equipment terminated pursuant to Section 10.2 by the
appropriate percentage for the Stipulated Loss Payment Date.
STIPULATED LOSS STIPULATED LOSS
PAYMENT DATE PERCENTAGE PAYMENT DATE PERCENTAGE
------------ ---------- ------------ ----------
1-1-96 104.64 7-1-99 76.16
2-1-96 104.13 8-1-99 75.36
3-1-96 103.60 9-1-99 74.56
4-1-96 103.04 10-1-99 73.74
5-1-96 102.49 11-1-99 72.93
6-1-96 101.93 12-1-99 72.10
7-1-96 101.37 1-1-00 71.26
8-1-96 100.79 2-1-00 70.43
9-1-96 100.21 3-1-00 69.59
10-1-96 99.81 4-1-00 68.73
11-1-96 99.01 5-1-00 67.89
12-1-96 98.40 6-1-00 67.03
1-1-97 97.76 7-1-00 66.17
2-1-97 97.15 8-1-00 65.30
3-1-97 96.52 9-1-00 64.43
4-1-97 95.87 10-1-00 63.55
5-1-97 95.22 11-1-00 62.66
6-1-97 94.56 12-1-00 61.79
7-1-97 93.89 1-1-01 60.90
8-1-97 93.22 2-1-01 60.01
9-1-97 92.55 3-1-01 59.11
10-1-97 91.86 4-1-01 58.21
11-1-97 91.17 5-1-01 57.30
12-1-97 90.48 6-1-01 58.39
1-1-98 89.77 7-1-01 55.46
2-1-98 89.06 8-1-01 54.55
3-1-98 88.35 9-1-01 53.62
4-1-98 87.83 10-1-01 52.70
5-1-98 86.90 11-1-01 51.77
6-1-98 86.17 12-1-01 50.84
7-1-98 85.43 1-1-02 49.90
8-1-98 84.69 2-1-02 46.96
9-1-98 83.93 3-1-02 48.01
10-1-98 83.18 4-1-02 47.07
11-1-98 82.42 5-1-02 48.12
12-1-98 81.66 6-1-02 45.16
1-1-99 80.90 7-1-02 44.19
2-1-99 80.12 8-1-02 43.25
3-1-99 79.35 9-1-02 42.29
4-1-99 78.56 10-1-02 41.35
5-1-99 77.77 11-1-02 40.41
6-1-99 76.96 12-1-02 39.45
Thereafter 39.50
FEE LEASING TRUST NO. 95-01 CONWELL CORPORATION
BY: /s/ GAIL OFGANT BY: /s/ {ILLEGIBLE}
- ------------------------ -------------------
Gail Ofgant
TITLE: Manager TITLE: Controller
- -------------- -----------------
BY:
---------------------
TITLE:
------------------
EXHIBIT A
EQUIPMENT SCHEDULE NO. 002
This Equipment Schedule No. 002 is hereby made a part of the MASTER
LEASE AGREEMENT dated as of Novemer 21, 1995 between FFE LEASING TRUST NO.
95-01, as Lessor, and Conwell Corporation, as Lessee.
1. EQUIPMENT DESCRIPTION (including quantity, model/feature,
identification and/or serial number):
See Attached Exhibit 1
2. ACQUISITION COST: $1,249,505.28
-------------
3. LEASE TERM: 84 months
---------
4. MONTHLY RENT $14,431.79 in advance/in arrears
-----------------
5. RECOVERY PERIOD: 5 years
-----------------
6. INSTALLATION SITE: 203 Hal Muldrow
--------------------------------------------
Address
Norman Cleveland OK 73069
--------------------------------------------
City County State Zip Code
LESSOR: LESSEE:
FFE LEASING TRUST NO. 95-01 Conwell Corporation
By: /s/ GAIL OFGANT By: /s/ {ILLEGIBLE}
- ------------------- -------------------
Gail Ofgant
Title: TRUSTEE Title: CONTROLLER
-------------
By:
----------------
Title: TRUSTEE
------------
EXHIBIT 1
4 1996 Great Dane Super Seal 48' x 102.31" x 13'6" Swing doors, slide
tandem, Bridgestone 295/75R22.5 R194 FFE tires, Carrier unit, Lift pads
and decals.
Equip # Vin # Carrier Ultra Unit
11654 1GRAA9622TWO21602 EAF90311372
11656 1GRAA9626TWO21604 EAE90311375
11659 1GRAA9621TWO21067 EAE90311371
11679 1GRAA9627TWO21627 FAF90315009
21 1996 Great Dane Super Seal 48' x 102.31" x 13'6" Swing doors, slide
tandem, Bridgestone 295/75R22.5 R194 FFE tires, Carrier unit, Lift pads
and decals.
Equip # Vin # Carrier Ultra Unit
11653 1GRAA9620TWO21601 EAE90311367
11655 1GRAA9624TWO21603 EAF90311370
11657 1GRAA9628TWO21605 EAE90311369
11658 1GRAA962XTWO21606 EAE90311374
11660 1GRAA9623TWO21608 EAE90315405
11661 1GRAA9625TWO21609 FAE90315007
11662 1GRAA9621TWO21610 EAF90315003
11663 1GRAA9623TWO21611 EAF90315005
11664 1GRAA9625TWO21612 EAE90315008
11666 1GRAA9629TWO21614 FAF90315002
11667 1GRAA9620TWO21615 EAF90315013
11668 1GRAA9622TWO21616 FAF90315006
11669 1GRAA9624TWO21617 FAF90315402
11670 1GRAA9626TWO21618 FAF90311366
11671 1GRAA9628TWO21619 FAF90315011
11672 1GRAA9624TWO21620 FAF90315396
11673 1GRAA9626TWO21621 FAF90315403
11674 1GRAA9628TWO21622 FAF90315397
11675 1GRAA962XTWO21623 FAF90315404
11681 1GRAA9620TWO21629 EAF90315004
11680 1GRAA9629TWO21628 EAE90311373
7 1996 Great Dane Super Seal 48' x 102.31" x 13'6" Swing doors, slide
tandem, Bridgestone 295/75R22.5 R194 FFE tires, Carrier unit, Lift pads
and decals.
Equip # Vin # Carrier Ultra Unit
11665 1GRAA9627TWO21613 EAE90315010
11676 1GRAA9621TWO21624 EAE90315407
11677 1GRAA9623TWO21625 FAE90315014
11678 1GRAA9625TWO21626 EAE90315012
11682 1GRAA9627TWO21630 EAE90315138
11683 1GRAA9629TWO21631 EAF90315481
11684 1GRAA9620TWO21632 EAF90315398
EXHIBIT B
CERTIFICATE OF ACCEPTANCE
To: FFE LEASING TRUST NO. 95-01
Pursuant to the MASTER LEASE AGREEMENT dated as of November 21, 1995,
(the "Lease Agreement") between FFE LEASING TRUST NO. 95-01 (the "Lessor") and
the undersigned (the "Lessee"), the equipment described on Equipment Schedule
No. 002 (the "Equipment") has been delivered to the location set forth in such
Equipment Schedule, has been tested and inspected by Lessee, and has been found
to be in good repair and working order.
The Equipment has been accepted and placed in service by Lessee for all
purposes under the Lease Agreement on December 19, 1995 (the "Commencement
Date").
Lessee represents, warrants and covenants that: (a) as of the
Commencement Date, all representations set forth in Section 18 of the Lease
Agreement apply to the Equipment accepted hereunder; (b) in the event of a sale
and leaseback of the Equipment, neither Lessee nor any member of its Affiliated
Group as defined in the Lease Agreement has made or will make any election under
the Internal Revenue Code of 1986, as amended (the "Code") affecting the
depreciation of the Equipment or of any class of property which would apply to
the Equipment after the sale of the Equipment to Lessor by Lessee; (c) in the
event of a sale and leaseback of the Equipment, the Equipment will not
constitute property placed in service in a churning transaction within the
meaning of Section 168(f)(5) of the Code; (d) neither Lessee nor any member of
its Affiliated Group filing a consolidated Federal income tax return will take
any deduction for recovery of the cost of the Equipment; (e) the Equipment has
been placed in service under the Lease Agreement on the Commencement Date; and
(f) neither Lessee nor any member of its Affiliated Group has any investment in
the cost of the Equipment.
The execution of this Certificate of Acceptance by Lessee shall not be
construed, in any way, to release or to waive the obligations of any
manufacturer or supplier for any warranties with respect to the Equipment.
This Certificate of Acceptance applicable to Equipment Schedule No. 002
shall constitute a part of the Lease Agreement.
IN WITNESS WHEREOF Lessee, by its duly authorized officer or agent, has
executed and delivered this Certificate of Acceptance which is intended to take
effect as a sealed instrument.
Conwell Corporation
By: /s/ {ILLEGIBLE}
-------------------
Title: Controller
-----------------
12/15/95 9:42:39 PAGE 1
LLR40D-01 AMERICAN FINANCE GROUP
Schedule A - Rental Schedule Economics
LESSEE: CONWELL CORPORATION
LESSOR: AMERICAN FINANCE GROUP
RENTAL SCHEDULE: 002
LEASE TERM (months): 84
PRIMARY START DATE: 1/01/1996
LEASE EXPIRATION DATE: 12/31/2002
PAYMENT FREQUENCY: MONTHLY
ADVANCE/ARREARS: ADVANCE
LEASE RATE: .011550000
PER DIEM LEASE RATE: .000385000
PERIODIC RENT: $14,431.68
NUMBER OF PAYMENTS: 84
TOTAL INTERIM RENT: $6,734.72
PAYMENT COMMENCEMENT DATE: 1/01/1996
TOTAL EQUIPMENT COST: $1,249,505.28
DOCUMENTATION FEE: _____________
_________________ LESSEE INITIALS
_________________ LESSOR INITIALS
12/15/95 9:42:42 PAGE 1
LLR41D-01 AMERICAN FINANCE GROUP
Schedule B Equipment Description
LESSEE: CONWELL CORPORATION RENTAL SCHEDULE ANDACCEPTANCE CERTIFICATE NUMBER: 002
LESSOR: AMERICAN FINANCE GROUP
Equipment Acceptance
Cost Serial Number Year Manufacturer Model Type Date
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39,047.04 1GRAA9620TWO21601 1996 GREAT DANE & CARRIER REFER # 1367 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9622TWO21602 1996 GREAT DANE & CARRIER REFER # 1372 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9624TWO21603 1996 GREAT DANE & CARRIER REFER # 1370 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9626TWO21604 1996 GREAT DANE & CARRIER REFER # 1375 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9628TWO21605 1996 GREAT DANE & CARRIER REFER # 1369 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA962XTWO21606 1996 GREAT DANE & CARRIER REFER # 1374 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9621TWO21607 1996 GREAT DANE & CARRIER REFER # 1371 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9623TWO21608 1996 GREAT DANE & CARRIER REFER # 5405 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9625TWO21609 1996 GREAT DANE & CARRIER REFER # 5007 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9621TWO21610 1996 GREAT DANE & CARRIER REFER # 5003 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9623TWO21611 1996 GREAT DANE & CARRIER REFER # 5005 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9625TWO21612 1996 GREAT DANE & CARRIER REFER # 5008 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9627TWO21613 1996 GREAT DANE & CARRIER REFER # 5010 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9629TWO21614 1996 GREAT DANE & CARRIER REFER # 5002 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9620TWO21615 1996 GREAT DANE & CARRIER REFER # 5013 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9622TWO21616 1996 GREAT DANE & CARRIER REFER # 5006 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9624TWO21617 1996 GREAT DANE & CARRIER REFER # 5402 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9626TWO21618 1996 GREAT DANE & CARRIER REFER # 1366 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9628TWO21619 1996 GREAT DANE & CARRIER REFER # 5011 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9624TWO21620 1996 GREAT DANE & CARRIER REFER # 5396 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9626TWO21621 1996 GREAT DANE & CARRIER REFER # 5403 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9628TWO21622 1996 GREAT DANE & CARRIER REFER # 5397 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA962XTWO21623 1996 GREAT DANE & CARRIER REFER # 5404 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9621TWO1624 1996 GREAT DANE & CARRIER REFER # 5407 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9623TWO21625 1996 GREAT DANE & CARRIER REFER # 5014 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9625TWO21626 1996 GREAT DANE & CARRIER REFER # 5012 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9627TWO21627 1996 GREAT DANE & CARRIER REFER # 0000 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9629TWO21628 1996 GREAT DANE & CARRIER REFER # 1373 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9620TWO21629 1996 GREAT DANE & CARRIER REFER # 5009 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9627TWO21630 1996 GREAT DANE & CARRIER REFER # 3138 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9629TWO21631 1996 GREAT DANE & CARRIER REFER # 5401 1996 SUPER SEAL REEFER TR 12/18/1995
39,047.04 1GRAA9622TWO21632 1996 GREAT DANE & CARRIER REFER # 5398 1996 SUPER SEAL REEFER TR 12/18/1995
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1,249,505.28 Total for Location 203 HAL MULDROW NORMAN OK 73069
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1,249,505.28 Total Equipment Cost
LLR49D-01 AMERICAN FINANCE GROUP
Vertex Messages and Procedures
LESSEE: CONWELL CORPORATION RENTAL SCHEDULE AND ACCEPTANCE CERTIFICATE NUMBER: 002
LESSOR: AMERICAN FINANCE GROUP
Invoice Equipment
Required Location Type Category Procedures
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OK 20 PREPAYMENT EXEMPTION REQUIRES EXCISE TAX BE PAID AT REGISTRATION. OBTAIN PROOF OF PAYMENT,
CODE ASSE
REFUNDABLE EXEMPTION MANUFACTURER EXEMPTIONS GRANTED, HOWEVER, LESSEE MUST PAY TAXES ON
PURCHASE PRI URCHASE PRICE, CODE ASSETS `3' AND INSTRUCT LESSEE TO FILE
FOR REFUND
Asset#/Exempt Reason Code 133060 133061 133062 133063 133064 133065
133070 133071 133072 133073 133074 133075
133080 133081 133082 133083 133084 133085
133090 133091
** END OF REPORT **