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I HEREBY CERTIFY THAT THIS IS A
TRUE, COMPLETE AND CORRECT COPY
OF THE DOCUMENT.
/s/ [Illegible]
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95.03.31 Rev. 1/94
MASTER LEASE AGREEMENT FOR EQUIPMENT
This Agreement, dated March 31, 1995, is between SLC FINANCIAL
CORPORATION, having its principal place of business at 6560 North Scottsdale
Road, Suite J205, Scottsdale, Arizona 85253 (together with any permitted
assignee of any Item of Equipment, ("Lessor") and AWIN LEASING COMPANY, INC.,
having its principal place of business at 7201 East Camelback Road, Suite 375,
Scottsdale, Arizona 85251 ("Lessee").
Section 1. DEFINITIONS.
"Equipment Schedule" means the one Equipment Schedule, numbered 01, which
is attached to this Master Lease Agreement, and any Equipment Schedules
subsequently attached to this Master Lease Agreement with the mutual consent of
Lessor and Lessee, and includes all attachments to any such Equipment Schedule.
"Items of Equipment" means and includes all of the items of equipment
described on any single Equipment Schedule.
"Equipment" means and includes the aggregate of all Items of Equipment on
all of the Equipment Schedules attached to this Master Lease Agreement.
"Lease" means any individual Lease of any Items of Equipment which is
created pursuant to the terms of this Master Lease Agreement and the particular
Equipment Schedule pertaining to such Items of Equipment.
The terms "Overdue Rate", "Interim Rent Date", "First Basic Rent Date",
"Last Basic Rent Date", "Expiration Date" and "Casualty Value", when used with
respect to the leasing of any Items of Equipment, shall have the meanings set
forth in the relevant Equipment Schedule or Certificate of Acceptance attached
to the Equipment Schedule for such Items of Equipment.
Section 2. AGREEMENT FOR LEASE OF EQUIPMENT.
Subject to, and upon all of the terms and conditions contained in this
Master Lease Agreement and in the Equipment Schedules attached hereto, Lessor
hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor
all of the Equipment which is delivered to and accepted by Lessee in the manner
described in Section 4 below. Each Equipment Schedule, with the attached
Certificate of Acceptance and all other attachments thereto, when fully-executed
by Lessor and Lessee as provided therein, shall constitute a separate Lease of
the Items of Equipment described on such Equipment Schedule. The terms and
provisions of this Master Lease Agreement shall be incorporated by reference in
each Equipment Schedule, and such terms and provisions are intended to govern
and be applied to the rights and obligations of Lessor and Lessee regarding each
of the Items of Equipment and the Lease pertaining thereto.
Section 3. ACCEPTANCE OF EQUIPMENT.
Immediately upon delivery to Lessee of any Items of Equipment, Lessee
shall inspect such Items of Equipment and, unless Lessee gives Lessor prompt
written notice of any defect in, or other proper objection to, such Items of
Equipment, Lessee shall, promptly upon completion of such inspection (which
inspection may include any reasonable period of time necessary to determine the
functionality and fitness of such Items of Equipment) and the installation of
such Items of Equipment, execute and deliver to Lessor the Certificate of
Acceptance attached to the Equipment Schedule for such Items of Equipment.
Lessee's execution of such Certificate of Acceptance shall constitute (a)
Lessee's unconditional acceptance of such Items of Equipment for lease from
Lessor on the Date of Acceptance specified in such Certificate of Acceptance and
(b) Lessee's acknowledgment and certification that such Items of Equipment have
been delivered to and inspected by Lessee, have been installed to Lessee's
satisfaction, are in good working order, repair, and condition, and have been
accepted for maintenance by the manufacturer.
Section 4. TERM OF LEASE.
The Lease term for any Items of Equipment shall commence on the date of
execution by Lessee of the Certificate of Acceptance for such Items of
Equipment, provided that each of the conditions precedent set forth in Section 3
hereof has been fulfilled to Lessor's satisfaction by that date, and shall
continue until the Expiration Date as specified in the Certificate of Acceptance
("Initial Term"). All terms and conditions of this
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Agreement shall remain in full force and effect during any successive period.
Lessee shall provide written notice to Lessor thirty (30) days prior to the
Expiration Date as to whether, at the Expiration Date of the initial term,
Lessee intends to (i) return the Items of Equipment to the Lessor, (ii) extend
the Lease in conformity with the terms and conditions set forth on the Equipment
Schedule pertaining to the Items of Equipment or (iii) purchase the Items of
Equipment for the price and on the terms and conditions set forth in the
Equipment Schedule. If Lessee is not in default at the time, upon tender at the
Expiration Date (as it may be extended in accordance with this Section 4) of
payment of the purchase price stipulated in the relevant Equipment Schedule for
any Item of Equipment, Lessee shall be entitled to possession and ownership of
such Item of Equipment, all obligations of Lessee to pay Rent on such Item of
Equipment shall cease, all limitations on the use or disposition by Lessee of
such Item of Equipment shall cease and Lessee shall be released from all and
every other obligation, limitation or responsibility pertaining to such Item of
Equipment hereunder. In addition, any security interest claimed by Lessor or its
assignee in such Item of Equipment shall be null and void and Lessor or its
assignee shall promptly take all actions to evidence such purchase by Lessee,
including without limitation, filing any termination statements to evidence
complete release of any security interest in such Items of Equipment and
preparing and executing any bill of sale to evidence such transfer. The previous
sentence of this section shall apply with equal force to any Item of Equipment
which is transferred to Lessee pursuant to the terms of Section 14(c) hereof.
Section 5. RENTAL CHARGES.
Lessee shall pay to Lessor as rent for any Items of Equipment during the
Lease term therefor the following amounts (collectively, the "Rent"):
(a) On the Interim Rent Date, an amount ("Interim Rent") equal to the
total monthly Basic Rent, divided by thirty (30) days, and then multiplied by
the number of days from and including the date of Lessee's execution of the
Certificate of Acceptance to and including the day immediately preceding the
First Basic Rent Date;
(b) As Basic Rent, commencing on the First Basic Rent Date, and on each
Basic Rent Date thereafter to and including the Last Basic Rent Date, an amount
equal to the Basic Rent as stipulated on the appropriate Equipment Schedule;
(c) As Supplemental Rent, on or before the date required by the terms
hereof (or upon Lessor's demand if no such date is specified herein), any other
amount which Lessee is obligated to pay hereunder with respect to such Items of
Equipment including indemnity payments and payments of Casualty Value.
(d) To the extent permitted by applicable law, Lessee shall pay to Lessor
a late charge (computed on the basis of a 360-day year) at the Overdue Rate on
any payment of Basic Rent or Supplemental Rent for any Items of Equipment which
is not paid when due (with a fifteen (15) day grace period). Such late charge
shall accrue at the Overdue Rate from the applicable due date until said Rent
payment is made in full.
Section 6. NET LEASE.
Each Lease created hereunder for any Items of Equipment shall be a net
lease and Lessee acknowledges that Lessee's obligations thereunder, including,
without limitation, its obligation to pay all Rent, shall be absolute and
unconditional and, except as provided in Section 14 hereof, Lessee shall not be
entitled to any abatement, reduction, defense, counterclaim, set-off, or
recoupment, including, without limitation, abatements, deductions or set-offs
due or alleged to be due by reason of any past, present or future claim of
Lessee under any Lease, or any other agreement, contract or undertaking, against
Lessor, any assignee of Lessor, or any vendor or manufacturer of the Equipment.
Provided, however, that nothing herein shall limit Lessee's right to pursue any
claims that it may have against Lessor or any other party in any appropriate
manner. Except as otherwise expressly provided herein, such Leases shall not
terminate, nor the obligations of Lessee or Lessor thereunder be otherwise
affected, for any reason whatsoever, including, without limitation, any defect
in the Equipment or any part or Items thereof or Lessor's title thereto or any
damage to or destruction or loss of or interference with the possession or use
of any Items of Equipment from any cause whatsoever (except for losses caused by
Lessor); any liens, encumbrances or rights of others with respect to all or any
part of the Equipment; the invalidity or unenforceability or lack of due
authorization of this Agreement or any Lease; any insolvency of or any
bankruptcy, reorganization or similar proceeding against Lessee or Lessor; or
for any other cause similar or dissimilar to the foregoing, any present or
future law to the contrary notwithstanding, it being the intention of the
parties hereto that all Rent and other amounts payable by Lessee hereunder shall
continue to be payable in all events in the manner and the times herein
provided, unless the obligation to pay the same shall be terminated pursuant to
the express provisions of this Agreement. To the extent permitted by applicable
law,
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Lessee hereby waives any and all rights which it may now have or which at any
time hereafter may be conferred upon it, by statute or otherwise, to cancel,
quit or surrender this Agreement, any Lease or any of the Equipment except in
accordance with the express provisions hereof.
Section 7. OWNERSHIP OF EQUIPMENT.
The Equipment shall at all times (prior to the exercise by Lessee of any
purchase option pertaining to any Item of Equipment as set forth herein and
except as otherwise set forth in Section 14(c) hereof) remain the property of
Lessor and any Items of Equipment may be removed by Lessor at any time after
termination of the Lease with respect thereto (unless purchased by Lessee in
accordance with the terms hereof and except as otherwise set forth in Section
14(c) hereof). Lessee shall, at its own expense, protect and defend Lessor's
title in the Equipment and any Items thereof against all claims and liens of
Lessee's creditors or any other person or entity whatsoever and shall at all
times keep all Items of Equipment free and clear of all claims, liens and
encumbrances except those resulting from the agreements or acts of Lessor.
Section 8. POSSESSION.
(a) Lessor warrants to Lessee that Lessee shall be entitled, as against
all persons claiming by, through or under Lessor, to possess each of the Items
of Equipment (and ultimately to purchase each Item of Equipment on the terms and
at the price set forth in the relevant Equipment Schedule, free and clear of any
liens or encumbrances not created by Lessee and to receive good and marketable
title thereto), subject to the terms of the individual Lease for such Items of
Equipment, which shall include the terms of this Agreement, so long as Lessee is
not in default hereunder and under such Lease.
(b) Unless Lessee exercises its purchase option, upon the expiration or
earlier termination of each such Lease, Lessee, at its sole cost and expense,
shall return the Items of Equipment leased thereunder to Lessor at Scottsdale,
Arizona, or such other location in the United States as Lessor and Lessee may
mutually agree and in as good condition and operating order as when delivered to
Lessee, reasonable wear and tear excepted, subject to the terms of this
Agreement.
Section 9. TERMINATION OF LEASE; END OF TERM LIABILITY.
This Lease will terminate at the end of the Expiration Date of the Initial
Term or such later date as determined in accordance with the provisions of
Section 4 hereof (the "End of the Lease Term") unless terminated earlier in
accordance with the terms of this Agreement. Lessee hereby agrees to return the
Equipment at Scottsdale, Arizona or such other location in the United States as
Lessor and Lessee may mutually agree, at the End of the Lease Term or at
Lessor's request upon default by Lessee hereunder (unless Lessee has purchased
such Equipment in accordance with the terms hereof and except as otherwise set
forth in Section 14(c) hereof).
Section 10. MAINTENANCE.
(a) Lessee at all times shall keep, repair, maintain and preserve the
Equipment in good order and operating condition. Lessee covenants that the
Equipment will be used and operated at all times materially in accordance with
manufacturer instructions and in compliance in all material respects with any
restriction contained in manufacturer warranties regarding the Equipment, and as
otherwise may be required to enforce warranty claims against the manufacturer.
(b) All maintenance and service charges related to the Equipment shall be
borne by Lessee.
Section 11. LOCATION AND USE OF EQUIPMENT.
(a) During the term of each Lease for Items of Equipment, such Items shall
be located at the address indicated in the relevant Certificate of Acceptance,
or such other location as may be approved by the Lessor from time to time (which
consent shall not be unreasonably withheld). Items of Equipment may be removed
from such address only with the prior written consent of Lessor and any assignee
of Lessor and provided that prior to such removal Lessee has executed and filed
such Uniform Commercial Code financing statements and such other filings in any
new locations as are necessary to preserve the right, title and interest of
Lessor and any assignee of Lessor in such Items of Equipment.
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(b) Lessee covenants and warrants that during the period that any
Equipment is leased to Lessee hereunder, such Equipment will be used and
operated at all times in compliance, in all material respects, with the laws of
the jurisdiction(s) in which it is located, and in compliance, in all material
respects, with all actions, rules, regulations and orders of any commission,
board or other legislative, administrative, or judicial body or officer having
power to regulate or supervise the use or operation of the Equipment.
Section 12. INSURANCE.
During the period that any Equipment is leased to Lessee hereunder, Lessee
will, at all times and at its sole expense, carry and maintain, or cause to be
carried and maintained: (a) insurance for loss of or damage to the Equipment
caused by fire, lightning, tornado and windstorms, explosion, smoke and smudge,
aircraft and motor vehicle damage, strikes, riots and civil commotion, burglary
and theft, vandalism and malicious mischief, and other casualty events
customarily insured against with respect to similar equipment, in an amount not
less than the Casualty Value of the Equipment, and (b) public liability
insurance covering the Equipment, in such amounts to be not less than two
million dollars ($2,000,000) and against such risks as is customary with respect
to similar equipment. Such policies will provide that the same may not be
invalidated against Lessor or any assignee of Lessor by reason of any violation
of a condition or breach of warranty of the policies or the application therefor
by Lessee, that the policies may be cancelled or materially altered or reduced
in coverage by the insurer only after thirty (30) days prior written notice to
Lessor and any assignee of Lessor, and that the insurer will give written notice
to Lessor and any assignee of Lessor in the event of nonpayment of premium by
Lessee when due. Upon the execution of this Agreement and thereafter not less
than thirty (30) days prior to the expiration dates of any such policies
theretofore furnished under this Section, copies of the policies of insurance
required by this Section shall be delivered by Lessee to Lessor and any assignee
of Lessor. Such policies may be blanket policies covering other equipment not
subject to the Leases created hereunder and under the Equipment Schedules,
provided that any such blanket policy or certificate of insurance issued with
respect thereto shall specifically describe the Equipment as being included
therein and covered thereby to the full extent of the coverages and amounts
required hereunder. If Lessee shall fail to cause the insurance required under
this Section to be carried and maintained, Lessor or any assignee of Lessor may
provide such insurance and Lessee shall reimburse Lessor or any such assignee of
Lessor as the case may be, upon demand, for the reasonable cost thereof as
Supplemental Rent hereunder. Lessor and any assignee of Lessor will be named as
the sole loss payees, as their interest may appear, on all policies referred to
in clause (a) above, so that the insurance proceeds payable under such policies
will be payable and paid solely to Lessor and to any assignee of Lessor, as
their interests may appear. Lessor and any assignee of Lessor will be named as
additional insureds on all policies referred to in clause (b) above.
Section 13. RISK OF LOSS, EVENT OF LOSS.
(a) Lessee hereby assumes and shall bear the entire risk of loss or damage
including, but not limited to, destruction, theft, or governmental taking of any
Items of Equipment or any part or component thereof ("Event of Loss"), however
caused or occasioned, whether partial or complete and whether or not covered by
insurance. No such loss or damage shall relieve Lessee of any of its obligations
under this Lease including, without limitation, the obligation to pay Rent.
Lessee shall immediately notify Lessor of any Event of Loss involving the
Equipment or any Items or part thereof.
(b) If an Event of Loss occurs with respect to any Items of Equipment,
Lessee, at the option and direction of Lessor, shall: (i) repair or restore the
Items of Equipment to good repair, condition and working order; or (ii) replace
the Items of Equipment with substantially identical equipment in good repair,
condition and working order, title to which shall be transferred to Lessor free
and clear of all liens, claims and encumbrances whatsoever; or (iii) pay Lessor
in cash the Casualty Value for such Items of Equipment as set forth in the
relevant Equipment Schedule.
(c) If Lessor has directed Lessee to repair, restore or replace any Item
of Equipment pursuant to clause (i) or (ii) above and if Lessee is not in
default hereunder, then Lessor shall pay to Lessee any insurance proceeds
received by it in connection with the Event of Loss affecting such Item of
Equipment. In the event of an election by Lessor pursuant to clause (iii) above,
and upon payment by Lessee of the Casualty Value and any accrued and unpaid Rent
and all other amounts due under the Lease for such Items of Equipment, Lessee's
obligation to pay Rent with respect to such Items of Equipment shall terminate,
and Lessee shall become entitled
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to possession and ownership of such Items of Equipment, or parts or components
thereof, AS-IS, WHERE-IS without any warranty by Lessor, express or implied, and
all insurance proceeds from such Event of Loss shall be paid to Lessee.
Section 14. ENFORCEMENT OF WARRANTY.
(a) Upon receipt of written request from Lessee, so long as Lessee shall
not be in default under the relevant Lease or Equipment in question, Lessor
shall take all reasonable action requested by Lessee to enforce any
manufacturer's warranty, express or implied, issued on or applicable to any
Items of Equipment, which is enforceable only by Lessor in its own name,
provided, however, that Lessor shall not be obligated to resort to litigation to
enforce any such warranty unless Lessee shall pay all reasonable expenses in
connection therewith. Provided, Lessor's obligation under this paragraph (a)
after the term of any relevant Lease shall have expired shall be subject to
reimbursement of its actual expenses incurred thereby by Lessee, which shall be
payable within thirty (30) days.
(b) Similarly, if any such warranty for any Items of Equipment shall be
enforceable by Lessee in its own name, Lessee hereby agrees, upon receipt of
written request from Lessor and so long as this Agreement and the relevant
Leases for Items of Equipment shall remain in force, to take all reasonable
action requested by Lessor to enforce any such warranty, provided, however, that
Lessee shall not be obligated to resort to litigation to enforce any such
warranty unless Lessor shall pay all reasonable expenses in connection
therewith.
(c) Lessor hereby assigns to Lessee any warranty rights which Lessor may
have against the manufacturer with respect to any Items of Equipment, to the
extent such warranty rights are assignable. With respect to such warranty rights
as are not assignable, Lessor hereby appoints Lessee as its agent and
attorney-in-fact for the purpose of enforcing such warranty rights at Lessee's
expense for so long as no Event of Default hereunder shall have occurred and be
continuing.
(d) In the event that either Lessor or Lessee resorts to litigation to
enforce any warranty ("Litigating Party"), it is agreed that the Litigating
Party shall have the right to take such action as it deems appropriate to
settle, compromise or otherwise dispose of any claim under any such warranty,
provided that the non-Litigating Party shall not be bound by any rulings,
judgments, decisions, agreements, compromises and settlements made or handed
down with respect thereto or entered into by the Litigating Party unless the
non-Litigating Party shall have agreed in writing to be bound thereby.
Section 15. DISCLAIMER OF WARRANTIES.
Lessor leases the Equipment to Lessee AS-IS, WHERE-IS, in whatever
condition it may be, without any agreement, warranty or representation, express
or implied as to any matter whatsoever respecting the Equipment except as
expressly set forth herein or in the Schedules hereto. Without limiting the
generality of the foregoing, Lessor expressly disclaims any implied warranty of
merchantability, fitness or adequacy for any particular purpose or use, quality,
productiveness or capacity.
Section 16. INDEMNIFICATION.
(a) Lessor shall not be liable to Lessee for, and Lessee shall indemnify
and hold Lessor and any assignee of Lessor, including, but not limited to, any
security assignee, under any Lease (each such party referred to as an
"indemnified party") harmless on an after-tax basis from and against any
obligation, liability (including liability for negligence), claim, demand,
action, suit, judgment, cost, loss, damage or expense (including litigation
expense and attorneys' fees) of any kind or nature imposed on, incurred by or
asserted against Lessor, caused, directly or indirectly, by or relating to (i)
the inadequacy of any Items of Equipment for its or their intended purpose, (ii)
any deficiency or defect (patent or latent) in any Items of Equipment, (iii) the
use, operation or performance by Lessee of any Items of Equipment, (iv) any
interruption or loss of service, use or performance of any Items of Equipment,
(v) any patent, trademark, or copyright infringement relating to use by Lessee
of any Items of Equipment, or (vi) any loss of business or other consequential
damage whether or not resulting from any of the foregoing. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, LESSOR SHALL NOT BE LIABLE FOR INJURIES TO PERSONS
OR DAMAGE TO THE EQUIPMENT OR ANY OTHER PROPERTY UNDER ANY THEORY OF STRICT
LIABILITY, AND LESSEE SHALL INDEMNIFY AND SAVE LESSOR AND EACH OTHER INDEMNIFIED
PARTY HARMLESS ON AN AFTER-TAX BASIS FROM ANY SUCH LIABILITY AND ALL COSTS AND
EXPENSES IN DEFENDING THE SAME. All of Lessor's rights under this Section shall
survive the termination of the Leases created
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hereunder, for a period of one (1) year. Lessee shall not be required to
indemnify Lessor for claims in connection with any Items of Equipment arising
from events which occur after such Items of Equipment have been redelivered to
Lessor.
(b) Lessee shall pay, indemnify and hold Lessor and each other indemnified
party harmless on an after-tax basis from and against all taxes, fees and other
charges, however designated, which are levied or imposed by any governmental
authority upon any Items of Equipment or upon the sale, purchase, ownership,
lease, use, possession or disposition thereof or upon Rent payable under the
Lease therefor, including but not limited to sales and use taxes, personal
property taxes, privilege and excise taxes, franchise taxes, ad valorem and
value added taxes, leasing taxes, stamp taxes, gross receipts and gross income
taxes and license and registration fees, excluding however, taxes levied against
Lessor upon or measured by Lessor's net income, net worth or capital stock. To
the extent permitted by applicable law, Lessee shall prepare (in such manner as
will show Lessor's ownership of the Items of Equipment) and timely file all tax
returns required by law in connection with taxes payable or indemnified by
Lessee hereunder. With respect to any such tax return required to be filed by
Lessor, Lessee shall notify Lessor of such requirement and furnish Lessor with
all forms and information necessary for the preparation and timely filing of
such return.
Section 17. MODIFICATION OF EQUIPMENT.
(a) If subsequent to the commencement of the relevant Lease, Lessee
desires to: (i) make, or cause to be made, modifications or alterations to the
physical condition of any Items of Equipment then subject to the Lease
("Modifications"); or (ii) add additional features or model changes ("Additional
Features") to any Items of Equipment then under the Lease, which Additional
Features are integral to the current functions of any of such Items of
Equipment; or (iii) add Additional Features, whether or not integral to the
current functions of any Items of Equipment, the installation or use of which
would require any Modifications to any Items of Equipment, then Lessee shall
give Lessor an opportunity to obtain any such Modifications, or Additional
Features described in clauses (ii) and (iii) above, at Lessor's expense and to
lease such Modifications or Additional Features to Lessee upon terms and
conditions mutually agreeable to Lessor and Lessee (it being understood that the
additional monthly rental payments which shall be paid by Lessee to Lessor for
such Modifications or Additional Features must be sufficient to cover Lessor's
related monthly debt payments, if any, incurred to finance the acquisition of
such Modifications or Additional Features, that any such Modifications or
Additional Features obtained by Lessor shall be deemed to be part of the Items
of Equipment leased under the relevant Lease, and that Lessee shall be
responsible for all related transportation and installation charges and
maintenance charges for such Modifications or Additional Features. In the event
that Lessor does not wish to obtain such Modifications or Additional Features,
or Lessor and Lessee are unable to agree on leasing terms and conditions related
to such Modifications or Additional Features, then Lessee, with the prior
written consent of Lessor, which consent may not be unreasonably withheld, may
purchase and install any such Modifications or Additional Features at Lessee's
own expense with no additional Rent due Lessor for such Modifications or
Additional Features.
(b) Lessee may, at its own expense, and without the prior consent of
Lessor, add Additional Features which enhance the capabilities of any existing
Items of Equipment, but which are not integral to the current functions of such
Items of Equipment and whose installation or use involves no Modifications,
provided that such Additional Features do not interfere with the normal
operation or maintenance of any Items of Equipment. Anything to the contrary in
this clause (b) notwithstanding, any Additional Features described in this
clause (b) which could not be removed or detached from the applicable Items of
Equipment following installation, or whose installation or use would prevent the
Items of Equipment from being restored to the condition in which such Items of
Equipment are to be returned to Lessor as specified in Section 9(b) hereof
("Return Condition"), may not be added by Lessee to the Items of Equipment
without the prior written consent of Lessor. Lessee agrees to give Lessor
written notice of the addition of any such Additional Features within 30 days
after installation thereof.
Section 18. TRANSPORTATION EXPENSES.
All transportation and installation expenses incurred in connection with
the delivery of the Equipment to Lessee shall be paid by Lessee. Transportation
expenses incurred in connection with redelivery of the Equipment to Lessor shall
be paid by Lessee.
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Section 19. EVENTS OF DEFAULT AND LESSOR'S REMEDIES.
(a) Any of the following events shall constitute an Event of Default under
any Lease created hereunder: (i) Lessee shall fail to pay any Basic Rent or
other amount due under any such Lease within fifteen (15) days after written
demand from Lessor is received by Lessee; (ii) Lessee shall attempt to remove,
sell, transfer, encumber, part with possession of, assign or sublet (except as
expressly permitted by the provisions hereof) the Items of Equipment leased
under such Lease or any part thereof; (iii) any representation or warranty made
by Lessee in this Agreement or in any document or certificate furnished to
Lessor in connection herewith, shall prove to have been incorrect in any
material respect when made; (iv) Lessee shall fail to perform or observe any
other of its covenants or obligations under the Lease for a continuous period of
thirty (30) days after receipt by Lessee of written notice thereof from Lessor;
(v) Lessee shall cease doing business as a going concern; (vi) a petition shall
be filed by or against Lessee under the Federal Bankruptcy Act or any amendment
thereto (including a petition for reorganization or arrangement), and, if filed
against Lessee, such petition shall not have been discharged within sixty (60)
days after such filing; (vii) a receiver shall be appointed for Lessee or its
property; or (viii) Lessee shall commit an act of bankruptcy, become insolvent,
make an assignment for the benefit of creditors, or offer a composition
generally of its indebtedness.
(b) Upon the occurrence of any Event of Default under such Lease, as
specified in subsection (a) of this Section 20, and at any time thereafter so
long as the same shall be continuing, Lessor or any assignee of Lessor with
respect to such Lease, at its sole option, may (i) declare immediately due and
payable by Lessee, as liquidated damages for loss of a bargain and not as a
penalty, an amount equal to the sum of (A) all unpaid Rent due under such Lease
up to the date of payment by Lessee under this clause (i), and (B) the Casualty
Value of the Items of Equipment leased under such Lease as of the Basic Rent
Date immediately preceding the date on which Lessor or its assignee declares an
Event of Default to exist; (ii) terminate the Lease, without prejudice to any
other remedies of Lessor hereunder; (iii) whether or not the Lease has been
terminated pursuant to subsection (ii) above, take possession of the Items of
Equipment subject to such Lease during Lessee's normal business hours, without
demand or notice, wherever the Items of Equipment may be located, without court
order or other process of law (Lessee hereby waiving any right it may have to
notice and hearing before repossession). Lessee hereby waives any and all
damages occasioned by such entry or taking of possession. Any taking of
possession pursuant to this subsection (b) (iii) shall not in itself constitute
termination of the Lease and shall not, in any event, relieve Lessee of its
obligations under the Lease.
Lessee shall reimburse Lessor for all reasonable expenses (including
attorneys' fees) incurred by Lessor in enforcing its rights under this Section
20. Any unpaid Rent and any unpaid Casualty Value payable as liquidated damages
pursuant to clause (i) of this subsection 20(b) shall bear interest at the
Overdue Rate until paid in full.
Upon taking possession of any Items of Equipment, Lessor may, at its sole
option and without notice to Lessee, lease the repossessed Items of Equipment to
any unaffiliated third party on such terms and conditions as Lessor may
determine, or sell such Items of Equipment at public auction or at private sale,
free and clear of any rights of Lessee and without any duty to account to Lessee
with respect to such sale or lease, except to the extent specified in this
subsection 20(b). In the event that Lessor leases or sells any repossessed Items
of Equipment, the Net Proceeds of such lease or sale (as defined below) shall
first be credited to any amounts due and owing by Lessee under clause (i) above,
and second, shall be used to reimburse Lessee for any payment already made by
Lessee on account of amounts owed under clause (i) above. Any surplus shall be
retained by Lessor. Lessee shall remain liable for any deficiency resulting from
an excess of amounts due and owing by Lessee over Net Proceeds. As used in this
subsection 20(b), "Net Proceeds" shall mean the proceeds actually received by
Lessor from a sale of the repossessed Items of Equipment, or the gross proceeds
of a new loan actually received plus any rents received prior to the new loan
being funded, less all reasonable costs and expenses (including attorneys' fees
and disbursements) incurred by Lessor as a result of Lessee's default and
Lessor's exercise of its remedies with respect thereto. No right or remedy
conferred upon or reserved to Lessor hereunder shall be exclusive of any other
right or remedy, and each shall be cumulative and in addition to all other
remedies available at law or in equity. The failure of Lessor to exercise the
rights granted hereunder upon the occurrence of any Event of Default shall not
constitute a waiver of any further or subsequent Event of Default.
Section 20. ASSIGNMENTS.
Lessor may, at any time and from time to time, without notice to, or the
consent of, Lessee: (1) assign, sell or transfer, in whole or in part, Lessor's
rights under any Leases created hereunder with respect to any Items
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of Equipment, and any or all of Lessor's rights thereunder, including, without
limitation, the right to receive any or all Rent payable under such Leases, (ii)
sell, transfer or assign legal title to and ownership of the Equipment or any
Items thereof to any person or entity, and (iii) mortgage or grant a security
interest in any such Lease or in the Equipment or any Items thereof, to any
person or entity; provided, however, that any such assignment, sale, transfer,
mortgage or grant of security interest shall be subject to Lessee's rights under
any such Leases so long as no Event of Default has occurred and is continuing
thereunder. The terms of any such assignment of any Lease, except as security,
shall be such as to permit Lessee to deal exclusively with SLC Financial
Corporation as agent for such assignee in matters relating to the performance
and administration of the Lease. Subsequent to any such assignment by Lessor,
Lessor shall give Lessee written notice of such assignment, identifying therein
the name and address of the assignee. Any such assignee of Lessor shall have all
of the right, title and interest of Lessor as relates solely to the Items of
Equipment and Lease or Leases assigned, sold or transferred to such assignee,
and any assignee, other than an assignee for security only, shall become for all
purposes of this Agreement and the relevant Lease, beginning on the date of such
assignment, the Lessor of such Items of Equipment. Lessee hereby consents to
such assignments, and agrees to acknowledge in writing any such assignment
within five (5) days after receipt of written notice thereof from Lessor, and in
the case of any such assignment, to take steps to confirm the status of any such
assignee hereunder and under the relevant Lease, including, without limitation,
providing to such assignee, at Lessee's sole cost and expense, any document
(including Uniform Commercial Code financing statements or continuation
statements) reasonably requested by such assignee to evidence or protect such
assignee's title or other interest in the relevant Items of Equipment. As it
relates to any assignment by Lessor to a Successor Lessor, any Successor Lessor
must expressly agree to be bound by the terms hereof and of the relevant Lease,
including without limitation, any right on the part of Lessee to purchase the
relevant Items of Equipment under the terms of the applicable Equipment
Schedule.
So long as Lessor's rights hereunder are assigned to any assignee, Lessee
may not assert against any such assignee any defense, counterclaim, recoupment,
or set-off Lessee may have against Lessor. Lessee agrees that it will not seek
to cancel or terminate this Agreement or any of the Leases created hereunder
(except as expressly permitted herein) or otherwise avoid its obligations
hereunder or thereunder as against such assignee, and further agrees that it
will pay to such assignee all Rent due under such Leases and assigned to such
assignee, without regard to any such defense, counterclaim, recoupment, or
set-off. However, nothing herein shall be construed to prevent Lessee from
exercising against Lessor any claim for damages or injunctive relief which
Lessee may have against Lessor.
Section 21. LESSEE'S WARRANTIES.
(a) Lessee hereby warrants and represents to Lessor, its successors and
assigns as follows: (i) Lessee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Arizona, and is qualified to
do business in, and is in good standing in, each state or other jurisdiction in
which the nature of its business makes such qualification necessary (including
each state or other jurisdiction in which the Equipment or any part thereof will
be located); (ii) Lessee has the corporate power and authority to execute and
perform its obligations under this Agreement, the Equipment Schedules and the
Leases created thereunder and any related documents and certificates and to
lease the Equipment under the Leases, and Lessee's execution and performance of
this Agreement, the Equipment Schedules and the Leases created thereunder have
been duly authorized by all necessary corporate action; (iii) the leasing of the
Equipment from Lessor, the execution and delivery of this Agreement, the
Equipment Schedules and any other related instruments, documents and agreements,
and the compliance by Lessee with the terms thereof do not conflict with and
will not result in a violation or breach of Lessee's Certificate of
Incorporation (or equivalent document), or its Bylaws, or any indenture,
contract or agreement by which Lessee is bound, or with any statute, judgment,
decree, rule or regulation binding upon Lessee; (iv) no consent or approval of
any trustee or holder of any indebtedness or obligation of Lessee, and no
consent or approval of any governmental authority, is necessary (or, if
required, has been obtained) for Lessee's execution or performance of this
Agreement, the Equipment Schedules and the Leases created thereunder; (v) this
Agreement, and the Equipment Schedules, when executed by the duly authorized
officer or officers of Lessee, will constitute legal, valid and binding
obligations of Lessee, enforceable against Lessee in accordance with their
terms, subject to enforcement limitations imposed by rules of equity or by
bankruptcy or similar laws; (vi) no mortgage, deed of trust, or other lien which
now covers or affects, or which may hereinafter cover or affect, any property or
interest therein of Lessee, now attaches or hereafter will attach to the
Equipment or any Items of Equipment, or in any manner
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affects or will affect adversely Lessor's right, title and interest therein;
(vii) there is no litigation or other proceeding now pending or, to the best of
Lessee's knowledge threatened, against or affecting Lessee, in any court or
before any regulatory commission, board or other administrative governmental
agency which would directly or indirectly adversely affect or impair the title
of Lessor to the Equipment, or which, if decided adversely to Lessee, would
materially adversely affect the business operations or financial condition of
Lessee; (viii) all balance sheets, statements of profit and loss and other
financial data that have been delivered to Lessor with respect to Lessee (i) are
complete and correct in all material respects, (ii) accurately present the
financial condition of Lessee on the dates for which, and the results of its
operations for the periods for which, the same have been furnished, and (iii)
have been prepared in accordance with generally accepted accounting principles
consistently followed throughout the periods covered thereby, since the January
1995 financial statements delivered to Lessor by Lessee, there has been no
change in the condition of Lessee, financial or otherwise, since the date of the
most recent financial statements delivered to Lessor with respect to Lessee
other than changes in the ordinary course of business, none of which changes,
either separately or in aggregate, has been materially adverse.
Section 22. LESSOR'S RIGHT TO PERFORM FOR LESSEE.
If Lessee fails to make any payment required to be made by it hereunder or
fails to perform or comply with any of its agreements contained herein, Lessor
may itself, after notice to Lessee, make any such payment or perform or comply
with any such agreement, and the amount of any such payment and the amount of
the reasonable expenses of Lessor incurred in connection with such payment or
the performance of or compliance with such agreement, as the case may be,
together with interest thereon at the Overdue Rate, if not paid by Lessee to
Lessor on demand, shall be deemed Supplemental Rent due Lessor hereunder;
provided, however that no such payment, performance or compliance by Lessor
shall be deemed to cure any Event of Default hereunder until such amounts are
paid to Lessor by Lessee.
Section 23. FURTHER ASSURANCES.
Lessee will promptly and duly execute and deliver to Lessor, and any
assignee of Lessor, such other documents, and do such further acts, including,
without limitation, such amendments to this Agreement or any Lease created
hereunder as may be reasonably required by Lessor or by any assignee of Lessor
from time to time in order to carry out more effectively the intent and purposes
of this Agreement and any Lease created hereunder.
Section 24. NOTICES.
All notices provided for or required under the terms and provisions hereof
shall be in writing, and any such notice shall be deemed given when personally
delivered or when deposited in the United States mails, with proper postage
prepaid, for first class certified mail, return receipt requested, addressed (i)
if to Lessor or Lessee, at their respective addresses as set forth herein or at
such other address as either of them shall, from time to time, designate in
writing to the other, and (ii) if to any assignee of Lessor, to the address of
such assignee as such assignee shall designate in writing to Lessor and Lessee.
Section 25. SEVERABILITY OF PROVISIONS.
In the event any one or more of the provisions contained herein shall for
any reason be held to be invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision hereof, but
this Agreement shall be construed as if such invalid or unenforceable provision
had never been contained herein.
Section 26. BENEFIT.
This Agreement shall be binding upon and shall inure to the benefit of the
parties, and their respective heirs, legal representative, successors and
assigns.
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Section 27. HEADINGS.
The paragraph headings hereof have been inserted for convenience of
reference only and shall not affect the meaning or interpretation of any of the
provisions of this Agreement.
Section 28. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona.
Section 29. AMENDMENTS.
This Agreement, the Equipment Schedules, and each related instrument,
document, agreement and certificate, collectively constitute the entire
agreement between Lessor and Lessee with respect to the leasing of the Equipment
and may be amended or modified only by a writing signed by the parties hereto or
their respective successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
LESSOR: SLC FINANCIAL CORPORATION LESSEE AWIN LEASING COMPANY, INC.
BY: /s/ [Illegible] BY: /s/ [Illegible]
------------------------- -------------------------
TITLE: Pres. TITLE: Vice President
----------------------- ------------------------
DATE: 4/20/95 DATE: April 3, 1995
------------------------ -------------------------
This is Counterpart No. 3 of 3 serially numbered, manually executed
counterparts. To the extent that this document constitutes chattel paper under
the Uniform Commercial Code, no security interest in this document may be
created through the transfer and possession of any counterpart other than
Counterpart No. 1.
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