EX-99(j)
First Amendment to Master Lease Agreement
FIRST AMENDMENT
TO
MASTER LEASE AGREEMENT
NO. 9106PAG429
This FIRST AMENDMENT dated as of January 17, 1994, between The Xxxxx
Mining Company ("Lessee") and American Finance Group, a Massachusetts general
partnership ("Lessor"), amends Master Lease Agreement No. 9106PAG429 (the
"Master Lease") dated as of June 25, 1991.
WHEREAS, Lessee and Lessor agree that further clarification of certain
provisions of the Master Lease is necessary.
NOW THEREFORE, in consideration of the premises and for good and valuable
consideration, the receipt and adequacy of which is confirmed by each of the
parties hereto, the Master Lease is hereby amended as follows.
1. The following new provision is added to the Master Lease as Section
11A.
"11A SPECIAL MAINTENANCE AND RETURN CONDITIONS
In furtherance, and not in limitation of, the use, maintenance and
return conditions for the Equipment set forth in Section 11 of the Master
Lease, Lessee hereby agrees to return the Equipment to Lessor in
accordance with all of the terms and conditions of the Master Lease and in
compliance with the following special return conditions:
RETURN OF EQUIPMENT
1. The Equipment will be capable of being immediately assembled and
operated by a third party lessee without further inspection, repair,
replacement, alterations or improvements needed.
2. The Equipment shall comply in all respects with all applicable laws
and rules and provisions of all applicable regulatory agencies
having jurisdiction over the use and/or maintenance of the
Equipment.
3. All parts in a state of disrepair will have been replaced with new
or equivalent Original Equipment Manufacturer or comparable parts
and to otherwise comply with the provisions of each Rental
Schedule.
4. All modifications and/or alterations made to the Equipment will be
subject to prior approval of Lessor and such modifications or
alterations must not decrease the value or marketability of the
Equipment. The Equipment will be complete and operational with all
components equal to or better than those originally supplied.
5. The Equipment, if idled, shall be stored in accordance with the
manufacturers' recommendations. If the Equipment is placed on idle
status by Sublessee, immediate notification to Lessor is required.
6. All markings not associated with the original manufacturer shall be
removed from the Equipment.
7. Upon request of Lessor, Lessee shall provide free storage of the
Equipment or for any parts or components thereof for a period not to
exceed one hundred and twenty (120) days after the expiration of the
Lease Term. During the storage period, Lessee is required to comply
with all provisions of the applicable Rental Schedule, except the
obligation to make monthly Basic Rent payments.
8. The Equipment shall be thoroughly cleaned consistent with the
original condition of delivery. All applicable manufacturer-provided
catalogs and required maintenance/operating logs shall be provided
to Lessor upon expiration of the Lease Term.
INSPECTION PRIOR TO RETURN OF EQUIPMENT
Lessor or its agent is authorized to enter upon Lessee's property,
for the purpose of Equipment inspection to determine the degree of
compliance with aforementioned conditions described herein. All inspection
costs shall be at Lessee's expense. If any item of the Equipment is
returned in any condition other than as specified herein, Lessee shall
immediately advance payment for all repairs and other costs needed to
place the Equipment in the required return condition."
2. As hereby amended, the Master Lease is ratified and confirmed and remains in
full force and effect.
IN WITNESS WHEREOF the parties hereto have caused this First Amendment to Master
Lease Agreement No. 9106PAG429 to be executed and delivered by their duly
authorized representatives as of the date first above written.
AMERICAN FINANCE GROUP THE XXXXX MINING COMPANY
(Lessor) (Lessee)
By: /s/ [Illegible] By: /s/ [Illegible]
-------------------------- ----------------------------
Title: Manager Title: Vice Pres.
------------------------ --------------------------
2931i
MASTER LEASE AGREEMENT
MASTER LEASE AGREEMENT NO. 9106PAG429 ("Master Lease"), dated as of June
25, 1991 between AMERICAN FINANCE GROUP, a Massachusetts general partnership
having a principal place of business and address for purposes of notice
hereunder at Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Vice
President, Lease Financing Group, as Lessor, and THE XXXXX MINING COMPANY, a
Delaware corporation having a principal place of business and address for
purposes of notice hereunder at RD #2, Xxx 0000, Xxxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: President, as Lessee.
1. MASTER LEASE.
This Master Lease sets forth the terms and conditions that govern the
lease by Lessor to Lessee of items of Equipment specified on rental schedules
and acceptance certificates ("Rental Schedules") executed and delivered by the
parties from time to time. Each Rental Schedule incorporates by reference this
Master Lease and specifies the Lease Term, the amount of Basic Rent, the Payment
Dates on which Basic Rent is due (as such terms are defined therein), and such
other information and provisions as Lessor and Lessee may agree. Each Rental
Schedule constitutes a separate and independent lease.
2. LEASE TERM. LESSEE'S RIGHT TO QUIET ENJOYMENT.
Each Rental Schedule is for a non-cancellable Lease Term commencing on the
date of acceptance of the Equipment for lease and ending on the Expiration Date
specified on such Rental Schedule, unless the lease is extended in accordance
with the terms of this Master Lease. Lessee cannot, except as expressly set
forth in this Master Lease, terminate the Rental Schedule or suspend payment or
performance of any of its obligations thereunder. Provided no Event of Default
has occured and is continuing under the Rental Schedule, Lessee will have quiet
possession and use of the Equipment throughout the Lease Term, and Lessor shall
defend and protect such quiet possession and use against all persons claiming
by, through or under Lessor.
3. BASIC RENT. NET LEASE. LESSEE'S INDEMNITY. NO WARRANTIES BY LESSOR.
Basic Rent is payable in the amount specified on the Rental Schedule. All
payments of Basic Rent shall be made to Lessor in good funds on or before the
Payment Dates specified in the Rental Schedule. Lessor will excercise it best
efforts to invoice Lessee thirty (30) days prior to each Payment Date, but
failure to provide timely invoices will not relieve Lessee of its obligation to
pay Basic Rent on the Payment Date. Basic Rent is net of, and Lessee agrees to
pay, and will indemnify and hold Lessor and any assignee of Lessor harmless from
and against, all costs (including, without limitation, maintenance, repair and
insurance costs), claims (including claims of product liability, strict
liability in tort, patent infringement and the like), losses or liabilities
relating to the Equipment or its use that are incurred by or asserted against
Lessee, any permitted sublessee of Lessee, Lessor or any assignee of Lessor and
arise out of matters occurring prior to the return of the Equipment. Each Rental
Schedule is an irrevocable, absolute, net lease, and Lessee's obligations are
not subject to defense, counterclaim, set-off, abatement or recoupment, and
Lessee waives all rights to terminate or surrender the Rental Schedule, for any
reason except as expressly set forth in
this Master Lease, including, without limitation, defect in the Equipment or
non-performance by Lessor, provided, however, that Lessee specifically retains
the right to seek recourse against Lessor by way of separate action either at
law or in equity in the event of breach or non-performance by Lessor under the
Rental Schedule. LESSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTIBILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Lessor will assign to Lessee for the Lease
Term and any renewals thereof any assignable manufacturer or vendor warranties
with respect to the Equipment and will cooperate with Lessee, at Lessee's
expense, in asserting any claims under such warranties.
Lessee acknowledges that each Rental Schedule shall be entered into on the
basis that Lessor shall be entitled for federal and state income tax purposes
(i) to claim the deductions for depreciation on the total original cost of the
Equipment pursuant to the Accelerated Cost Recovery System under Section 168 of
the Internal Revenue Code of 1986, as amended ("Code") or for state income tax
purposes, any other depreciation deduction method that is permitted by
applicable state law; and (ii) to claim under Section 163 of the Code a tax
deduction for the full amount of any interest paid by Lessor or accrued under
Lessor's method of tax accounting on any indebtedness secured by the Equipment
(hereinafter referred to collectively as the "Tax Benefits"). If Lessor shall
lose or shall not have the right to claim, or if there shall be disallowed or
recaptured, any or all of such Tax Benefits as a result of any act, omission,
misrepresentation or failure to act by Lessee, any sublessee, or any other
person authorized by the Lessee to use or maintain the Equipment, Lessee shall
pay to Lessor as additional rent (a) an amount equal to the actual disallowed
Tax Benefits plus (b) all interest, penalties, or additions to tax resulting
from such loss, disallowance, unavailability or recapture of any of the
foregoing, plus (c) all taxes required to by paid by the Lessor or its assigns
under any federal, state and local law upon receipt of any of the foregoing
indemnities.
4. USE AND LOCATION OF EQUIPMENT. MAINTENANCE AND REPAIRS. NO LIENS. NO
ASSIGNMENT BY LESSEE. LESSEE'S RIGHT TO SUBLEASE.
The Equipment is to be used exclusively by Lessee in the conduct of its
business, only for the purposes for which it was designed and in substantial
compliance with all applicable laws, rules and regulations, manufacturers' or
vendors' warranties and applicable policies of insurance. Lessee will obtain and
maintain all necessary licenses, permits and approvals. The Equipment may be
removed from the location specified on the Rental Schedule to a location within
the contiguous United States only upon thirty (30) days' prior written notice to
Lessor. In no event may the Equipment be moved to a location outside the United
States. Lessee will effect all maintenance and repairs necessary to keep the
Equipment in good and efficient operating condition and appearance, reasonable
wear and tear excepted. All maintenance and repairs will be made in accordance
with the manufacturer's recommendations and by authorized representatives of the
manufacturer or by persons of equal skill and knowledge whose work will not
adversely affect any applicable manufacturer's or vendor's warranty. Lessee will
keep the Equipment and its interest therein free and clear of all liens and
encumbrances other than those created by Lessor or arising out of claims against
Lessor and not related to the lease of the Equipment to Lessee. THE RENTAL
SCHEDULE MAY NOT BE ASSIGNED BY LESSEE. LESSEE MAY SUBLEASE THE EQUIPMENT ONLY
UPON PRIOR WRITTEN NOTICE TO LESSOR, in which notice Lessee represents and
warrants to Lessor that such
sublease is for a term not longer than the Lease Term, is not made to a
tax-exempt entity or govermental agency, is specifically made subject to the
prior rights of Lessor and its assignees under the Rental Schedule, does not
create any obligation on the part of Lessor in favor of such sublessee and does
not relieve Lessee of any of its obligations under the Rental Schedule
including, without limitation, Lessee's obligations with respect to (a) the
payment of Basic Rent and other sums due or to become due, (b) use and
maintenance of the Equipment and (c) provisions for the return of the Equipment
at the expiration of the Lease Term.
5. LOSS, DAMAGE OR DESTRUCTION OF EQUIPMENT.
Lessee will bear all risk of loss with respect to the Equipment during the
Lease Term and until the Equipment is returned to Lessor. Lessee will notify
Lessor promptly in writing if any item of Equipment is lost, stolen,
requisitioned by a governmental authority or damaged beyond repair (each a
"Casualty"), describing the Casualty in reasonable detail, and will promptly
file a claim under appropriate policies of insurance. Lessee may, with the prior
written consent of Lessor, which consent shall not be unreasonably withheld or
delayed, replace the Equipment suffering a Casualty with similar equipment of at
least equal value and utility, assuming the replaced Equipment was in the
condition of maintenance and repair required under this Master Lease, and Lessor
will convey title to the replaced Equipment to Lessee, as is, where is and with
all faults, free of liens and encumbrances created by Lessor. If Lessee does not
replace the Equipment, Lessee will pay to Lessor on the next Payment Date
following the Casualty, in addition to Basic Rent and other sums due on that
date, an amount equal to the Casualty Value thereof specified on the Rental
Schedule. The Rental Schedule, solely as it relates to the Equipment suffering
the Casualty, will terminate and ownership of the Equipment suffering the
Casualty, including all claims for insurance proceeds or condemnation awards,
will pass to Lessee upon receipt of such payment by Lessor.
6. TAXES AND FEES.
Lessee agrees to prepare and file all required returns or reports and to
pay all sales, gross receipts, personal property and other taxes (including
highway use and vehicle excise taxes, where applicable), fees, interest, fines
or penalties imposed by any governmental authority relating in any way to the
Equipment, including any documentary, stamp or recordation taxes assessed in
connection with the financing of Lessor's purchase of the Equipment and
excepting only taxes imposed upon the net income of Lessor. Notwithstanding the
foregoing, Lessor will report and pay all use taxes and Lessee will pay to
Lessor, on each Basic Rent Payment Date, as additional rent, an amount equal to
the use taxes attributable to that payment of Basic Rent. If any item of
Equipment is located in a taxing jurisdiction that does not allow Lessee to
report and pay personal property taxes directly, Lessee will prepare an
appropriate tax return to be delivered, together with funds equal to the taxes
Lessee claims are due on such return, to Lessor not less than ten (10) days
prior to the date such taxes are due. If Lessee is eligible for a tax exemption
or abatement for sales, use or other taxes that would otherwise apply under this
Section, Lessee shall furnish Lessor an appropriate tax exemption or abatement
certificate and other reasonable evidence thereof not later than the date of
execution of the Commencement Date of the Rental Schedule.
7. INSURANCE.
Lessee agrees to maintain policies of insurance on the Equipment in
amounts, against risks and on terms and conditions applicable to other equipment
owned or leased by Lessee and similar to the Equipment. Such insurance will at a
minimum include (i) physical damage and theft insurance in an amount at least
equal to the greater of the Casualty Value set forth on the Rental Schedule or
the fair market value of the Equipment and (ii) comprehensive liability
insurance in the amount of at least $5,000,000 per occurrence, in each case with
deductibles not in excess of $500,000. All policies (A) are to be maintained
with insurers reasonably acceptable to Lessor; (B) are to name Lessor and its
assignees as loss payees with respect to physical damage and theft and as
additional insureds with respect to liability, as their interests may appear;
and (C) are to provide that the insurance carrier will endeavor to provide
thirty days prior written notice to Lessor and each of Lessor's assignees named
as additional insured and loss payee in the event of alteration or cancellation.
Lessee agrees to deliver to Lessor such certificates of insurance as Lessor may,
from time to time, reasonably request. Lessor may hold any insurance proceeds as
security for Lessee's performance of its obligations with respect to the
Equipment on behalf of which the proceeds were paid and the payment of all Basic
Rent and other sums then due and unpaid under the Rental Schedule and will pay
such proceeds over to Lessee only upon receipt of satisfactory evidence thereof.
8. FINANCIAL STATEMENTS. INSPECTION. REPORTS.
Lessee will provide to Lessor copies of Lessee's annual balance sheet,
profit and loss statement and statement of cash flow, and, if generally
available to Lessee's Lenders, quarterly unaudited balance sheet and profit and
loss statement, all prepared in accordance with generally accepted accounting
principles, consistently applied. If Lessee's obligations are guaranteed by any
other party, then Lessee will also provide similar financial information with
respect to the Guarantor. Lessor may from time to time, upon reasonable notice
and during Lessee's normal business hours, inspect the Equipment and Lessee's
records with respect thereto and discuss Lessee's financial condition with
knowledgeable representatives of Lessee. Lessee will, if requested, provide a
report on the condition of the Equipment, a record of its maintenance and
repair, a summary of all items suffering a Casualty, a certificate of no default
or such other information or evidence of compliance with Lessee's obligations
under the Rental Schedule as Lessor may reasonably request.
9. AGREEMENT FOR LEASE ONLY. IDENTIFICATION MARKS. FINANCING STATEMENTS. FURTHER
ASSURANCES.
Each Rental Schedule is intended to be a true lease and not a lease in the
nature of a security agreement; each Rental Schedule is intended to be a
"finance lease" as that term is defined in Article 2A of the Uniform Commercial
Code. Lessee will affix to the Equipment all notices of Lessor's ownership of
the Equipment furnished by Lessor. Lessee will promptly execute and deliver, and
Lessor may file, Uniform Commercial Code financing statements or other similar
documents notifying the public of Lessor's ownership of the Equipment. Lessee
agrees to promptly execute and deliver to Lessor such further documents or other
assurances, and to take such further action, including obtaining landlord and
mortgagee waivers, as Lessor may from time to time reasonably request in order
to establish and protect the rights and remedies created by the Rental Schedule.
10. LATE PAYMENT CHARGES. LESSOR'S RIGHT TO PERFORM FOR LESSEE.
A Late Payment Charge equal to (A) the greater of 2% per annum above the
debt rate charged to Lessor in connection with the financing of its purchase of
the Equipment (or, if there is no such financing outstanding, 2% per annum above
the prime lending rate of The First National Bank of Boston, as announced from
time to time) or (B) the highest rate not prohibited by law will accrue on any
sum not paid when due for each day not paid. If Lessee fails to duly and
promptly pay or perform any of its obligations hereunder, Lessor may itself pay
or perform such obligations for the account of Lessee without thereby waiving
any default and Lessee will pay to Lessor, on demand and in addition to Basic
Rent, an amount equal to all sums so paid or expenses so incurred, plus a Late
Payment Charge accruing from the date such sums were paid or expenses incurred
by Lessor.
11. LESSEE'S OPTIONS UPON LEASE EXPIRATION.
Lessee has the option at the expiration of the Lease Term, exerciseable
with respect to not less than all items of Equipment leased pursuant to a Rental
Schedule, (i) to return the Equipment to Lessor, (ii) to renew the Rental
Schedule at fair rental value for a renewal term the length of which shall be
determined by agreement of Lessee and Lessor or (iii) to purchase the Equipment
for cash at its then fair market value. Lessee agrees to provide Lessor written
notice of its decision to return or purchase the Equipment or renew the Rental
Schedule not less than 120 days prior to the Expiration Date. If Lessee fails to
give Lessor 120 days written notice, the Lease Term may, at Lessor's option, be
extended and continue until 120 days from the date Lessor receives written
notice of Lessee's decision to purchase or return the Equipment or renew the
Rental Schedule. If Lessee elects to purchase the Equipment, Lessor shall convey
title to the Equipment (together with manufacturer or vendor warranties, if any)
free of liens and encumbrances created by Lessor, as is, where is and with all
faults. Fair market value and fair rental value shall mean an amount which would
obtain in an arm's-length transaction between an informed and willing buyer-user
or lessee (other than a dealer) and an informed and willing seller or lessor
under no compulsion to sell or lease (assuming for this purpose that the
Equipment shall have been maintained in accordance with this Master Lease and
disregarding costs of removal from the location of current use) and will be
determined by agreement of Lessor and Lessee, or if the parties cannot agree, by
an independent equipment appraiser of nationally recognized standing,
experienced in evaluating equipment of the same type as the Equipment, mutually
acceptable to both Lessee and Lessor. The cost of an appraisal will be shared
equally by Lessor and Lessee.
At the expiration of the Lease Term or any extension or renewal thereof,
unless Lessee has elected to purchase the Equipment, Lessee will, at its
expense, assemble, pack, and crate the Equipment, all in accordance with
manufacturer's recommendations, if any, and deliver it by common carrier,
freight and insurance prepaid, to a place to be designated by Lessor within one
thousand (1,000) miles of its then current location. All packaging will include
related maintenance logs, operating manuals, and other related materials and
will be clearly marked so as to identify the contents thereof. The Equipment
will be returned in good and efficient operating condition and appearance,
reasonable wear and tear excepted, and eligible for manufacturer's maintenance,
if available, free of all Lessee's markings and free of all liens and
encumbrances other than those created by Lessor (hereinafter, together with any
specific return conditions set forth in the Rental Schedule, the "Minimum Return
Conditions"). Lessor may, but is not required to, inspect the Equipment prior
to its return. If, upon inspection, Lessor determines that the Equipment does
not conform to the Minimum Return Conditions, Lessor will promptly notify Lessee
of such determination, specifying the repairs or refurbishments needed to place
the Equipment in the Minimum Return Condition. Lessor may, at its option, either
require Lessee to effect such repairs or itself effect such repairs. Lessor may
re-inspect the Equipment and require further repairs as often as necessary until
the Equipment is placed in the Minimum Return Conditions. In either case, all
costs will be paid by Lessee. The Rental Schedule shall continue in full force
and effect and Lessee shall continue to pay Basic Rent through and including the
date on which the Equipment is accepted for return by Lessor as conforming with
the Minimum Return Conditions.
12. LESSEE'S REPRESENTATIONS AND WARRANTIES.
Lessee represents, warrants and certifies as of the date of execution and
delivery of each Rental Schedule as follows:
(a) Lessee is duly organized, validly existing and in good standing under the
laws of the state of its incorporation, with full power to enter into and
to pay and perform its obligations under the Rental Schedule and this
Master Lease as incorporated therein by reference, and is duly qualified
and in good standing in all other jurisdictions where its failure to so
qualify would adversely affect the conduct of its business or the
performance of its obligations under or the enforceablility of the Rental
Schedule;
(b) the Rental Schedule, this Master Lease and all related documents have been
duly authorized, executed and delivered by Lessee, are enforceable against
Lessee in accordance with their terms and do not and will not contravene
any provisions of or constitute a default under Lessee's organizational
documents or its By Laws, any agreement to which it is a party or by which
it or its property is bound, or any law, regulation or order of any
governmental authority;
(c) Lessor's right, title and interest in and to the Rental Schedule, this
Master Lease and the Equipment and the rentals therefrom will not be
affected or impaired by the terms of any agreement or instrument by which
Lessee or its property is bound;
(d) no approval of, or filing with, any governmental authority or other person
is required in connection with Lessee's entering into or the payment or
performance of its obligations under the Rental Schedule or this Master
Lease as incorporated therein by reference;
(e) there are no suits or proceedings pending or threatened before any court or
governmental agency against or affecting Lessee which, if decided adversely
to Lessee, would materially adversely affect Lessee's business or financial
condition or its ability to perform any of its obligations under the Rental
Schedule or this Master Lease as incorporated therein by reference; and
(f) there has been no material adverse change to Lessee's financial condition
since the date of its most recent financial statement.
13. EVENTS OF DEFAULT. LESSOR'S REMEDIES ON DEFAULT.
Each of the following events constitutes an Event of Default:
(a) default in the payment of any amount when due under the Rental Schedule
continuing for a period of ten days;
(b) default in the observance or performance of any other covenant, condition
or agreement to be observed or performed by Lessee under the Rental
Schedule and this Master Lease as incorporated therein by reference,
continuing for more than 30 days after written notice thereof, unless
Lessee shall be diligently proceeding to cure such default and such
default does not subject the Equipment to forfeiture, in which event,
Lessee shall have 60 days from the date of notice in which to cure such
default;
(c) any representation or warranty made by Lessee herein or in the Rental
Schedule or this Master Lease as incorporated therein by reference or in
any document or certificate furnished in connection herewith shall at any
time prove to have been incorrect when made;
(d) any attempt by Lessee, without Lessor's prior written consent, to assign
the Rental Schedule, to make any unauthorized sublease of the Equipment or
to transfer possession of the Equipment;
(e) Lessee or, if Lessee's obligations are guaranteed by any other party, any
Guarantor (A) ceases doing business as a going concern; (B) makes an
assignment for the benefit of creditors, admits in writing its inability
to pay its debts as they mature or generally fails to pay its debts as
they become due; (C) initiates any voluntary bankruptcy or insolvency
proceeding; (D) fails to obtain the discharge of any bankruptcy or
insolvency proceeding initiated against it by others within 60 days of the
date such proceedings were initiated; (E) requests or consents to the
appointment of a trustee or receiver; or (F) a trustee or receiver is
appointed for Lessee or any Guarantor or for a substantial part of
Lessee's or any Guarantor's property; or
(f) Lessee shall not return the Equipment or shall not return the Equipment in
the required condition at the expiration of the Rental Schedule or any
extension or renewal thereof.
Upon the occurrence of an Event of Default, Lessor may, without notice to
Lessee, declare the applicable Rental Schedule in default and may exercise any
of the following remedies:
I. at Lessor's option, and in its sole discretion, Lessor may declare
immediately due and payable, and receive from Lessee and xxx to enforce
the payment thereof, as liquidated damages for loss of the bargain and not
as a penalty, in addition to all accrued and unpaid Basic Rent and other
sums then due under the Rental Schedule, either:
(a) all Basic Rent and other sums due or to become due under the Rental
Schedule, discounted to present value at an annual rate of 6% as of the
date of Lessor's receipt thereof; or
(b) an amount equal to the greater of (A) the Casualty Value set forth on
the Rental Schedule calculated after the last payment of Basic Rent
actually received by Lessor or (B) the fair market value of the Equipment
as of the date of default determined by an appraiser selected by Lessor;
plus, in either case, interest thereon at the Late payment Charge rate from the
date of default until the date of payment, and, after receipt in good funds of
the sums described above, Lessor will, if it has not already done so, terminate
the Rental Schedule and, at its option, either pay over to Lessee, as, when and
if received, any net proceeds (after all costs and expenses) from any
disposition of the Equipment, or convey to Lessee all of its right, title and
interest in and to the Equipment, as is, where is and with all faults, without
recourse and without warranty; and
II. without regard to whether Lessor has elected either option in subsection I
above, Lessor may
(a) proceed by appropriate court action either at law or in equity to
enforce performance by Lessee of the covenants and terms of the Rental
Schedule (including the Lessee's obligation to pay Basic Rent, provided
Lessor has not received the full liquidated damages elected under
subsection I above) and to recover damages for the breach thereof; and
(b) terminate the Rental Schedule by written notice to Lessee, whereupon,
unless Lessor has elected to convey title to the Equipment to Lessee in
accordance with subsection I above, all right of Lessee to use the
Equipment will immediately cease and Lessee will forthwith return the
Equipment to Lessor in accordance with the provisions hereof; and
(c) unless Lessor has elected to convey title to the Equipment to Lessee
in accordance with subsection I above, repossess the Equipment and dispose
of it by private or public, cash or credit sale or by lease to a different
lessee, in all events free and clear of any rights of Lessee, and for this
purpose Lessee hereby grants to Lessor and its agents the right to enter
upon the premises where the Equipment is located and to remove the
Equipment therefrom and Lessee agrees not to interfere with the peaceful
repossesion of the Equipment; and
(d) recover from Lessee all costs and expenses arising out of Lessee's
default, including, without limitation, expenses of repossession, storage,
appraisal, repair, reconditioning and disposition of the Equipment and
reasonable attorneys' fees and expenses.
Lessor's remedies are, except as indicated herein, cumulative and not exclusive,
and are in addition to all remedies at law or in equity. No failure by Lessor to
declare a default shall constitute a waiver of such default or restrict Lessor's
ability to declare a default at a later date.
14. ASSIGNMENT BY LESSOR.
Lessor may at any time and from time to time sell, transfer or grant liens
on the Equipment, and assign, as collateral security or otherwise, its rights in
the Rental Schedule and this Master Lease as incorporated therein by reference,
in each case subject and subordinate to Lessee's rights thereunder, without
notice to or consent by Lessee. No such assignment shall relieve Lessor of its
obligations hereunder unless Lessee is notified thereof to the contrary. Lessee
acknowledges that Lessor may assign the Rental Schedule to a
Lender in connection with the financing of Lessor's purchase or the Equipment
and Lessee agrees, in the event of such assignment, to execute and deliver an
acknowledgment letter confirming that the Lender has (and may exercise either in
its own name or in the name of Lessor) all of the rights, privileges and
remedies, but none of the obligations, of Lessor under the Rental Schedule;
waiving for the benefit of the Lender any defense, counterclaim, set-off,
abatement, reduction or recoupment that Lessee may have against Lessor; and
agreeing to make all payments of Basic Rent and other sums due under the Rental
Schedule to the Lender or as it may direct. Lessee also agrees to deliver
opinions of counsel, insurance certificates and such other documents as Lessor
may reasonably request for the benefit of the Lender in connection with the
collateral assignment of the Rental Schedule.
15. ARBITRATION.
In the event that any dispute arises under this Master Lease or the Rental
Schedule, including, without limitation, any claim of default or breach of a
covenant or representation hereunder, either party in the case of a dispute, or
the claiming party in the case of a claim of default or breach, shall submit the
matter for arbitration in Pittsburgh, Pennsylvania, by and pursuant to the rules
of the American Arbitration Association ("AAA"). The arbitrator who hears the
case will be selected by AAA and AAA shall be advised that the parties have
agreed in advance that any matter submitted to AAA for resolution shall be heard
in a reasonably expeditious manner. The powers of the arbitrator shall expressly
include both the right to issue injunctive orders and to order the payment of
money damages. The resolution of the matter by arbitration shall be binding upon
the parties and judgment upon the award of the arbitrator may be entered in any
court of competent jurisdiction. Costs of arbitration and legal fees shall be
awarded to a prevailing party; provided, however, that the arbitrator shall have
the power to make a different allocation of costs and legal fees whenever it is
fair or reasonable to do so as determined by the arbitrator. Notwithstanding
anything contained herein to the contrary, this Section shall not be binding
upon any lender.
16. MERGERS, CONSOLIDATIONS, LEVERAGED BUY-OUTS INVOLVING LESSEE.
Lessee acknowledges and agrees that Lessor has entered into this Master
Lease and each Rental Schedule on the basis of Lessee's creditworthiness. In the
event that Lessee, without Lessor's prior written consent, which consent shall
not be unreasonably withheld or delayed, (i) is a party to a merger or
consolidation, (ii) sells or transfers, singly or in a series of related
transactions, all or substantially all of its assets other than its rights and
obligations under the Rental Schedule, or (iii) purchases, singly or in a series
of related transactions, a substantial portion of its stock, and Lessee's
creditworthiness suffers a material decline as a result of any of the foregoing
transactions, then Lessor may, in its reasonable discretion, demand in writing
that Lessee purchase all of the Equipment subject to the Rental Schedule on the
next Rent Payment Date for an amount equal to the applicable Casualty Value of
the Equipment and, upon receipt by Lessor in good funds of an amount equal to
such Casualty Value and all other sums due and payable under the Rental Schedule
through the date of such receipt (provided that no Event of Default has occurred
and is continuing under the Rental Schedule), Lessor shall deliver to Lessee a
xxxx of sale conveying title to the Equipment free and clear of any liens and
encumbrances created by Lessor but otherwise on an as-is, where-is basis, with
all faults. For purposes of the foregoing sentence, a "material decline" in
Lessee's creditworthiness shall mean a downgrading of the public debt rating
assigned to Lessee by Xxxxx'x Investors
Services, Inc., Standard & Poors Corporation or another reputable rating agency
acceptable to Lessor or, if Lessee has no such credit rating, a material decline
in Lessee's creditworthiness objectively and reasonably determined by Lessor.
17. MISCELLANEOUS.
All notices required hereunder shall be effective upon receipt in writing
delivered by hand or by other receipt-acknowledged method of delivery at the
address first above written or to the Guarantor at 000 Xxx Xxxxxx, X.X. Xxx 000,
Xxx Xxxx, Xxxxxxxxxxxx 00000. THIS MASTER LEASE AND THE RENTAL SCHEDULE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS. This Master Lease and the Rental Schedule may be executed in
multiple counterparts all of which together shall constitute one and the same
instrument. Any provision of this Master Lease or the Rental Schedule that is
unenforceable in any jurisdiction shall, as to such jurisdiction only, be
ineffective to the extent of such unenforceability without invalidating or
diminishing Lessor's rights under the remaining provisions hereof. No term or
provision of this Master Lease or the Rental Schedule may be amended, altered,
modified, rescinded or waived orally, but only by an instrument in writing
signed by a duly authorized officer of the party against which enforcement of
such amendment, alteration, modification, rescission or waiver is sought. This
Master Lease, the Rental Schedule, and each instrument, document, agreement and
certificate furnished in connection therewith collectively consititute the
complete and exclusive statement of the terms of the agreement between Lessor
and Lessee with respect to the acquisition and leasing of the Equipment, and
cancel and supercede any and all oral or written prior understandings with
respect thereto.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master Lease to be
executed and delivered by their duly authorized representatives as of the date
first above written.
AMERICAN FINANCE GROUP THE XXXXX MINING COMPANY
By: [Illegible] By: /s/ Xxxxx X. Lung
------------------------ ---------------------------------
Xxxxx X. Lung
Title: Vice President Title: Vice President
------------------------ ------------------------------
EXHIBIT A
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO._______
This RENTAL SCHEDULE AND ACCEPTANCE CERTIFICATE, dated as
of_____________________, between American Finance Group, ("Lessor") and The
Xxxxx Mining Company ("Lessee") incorporates by reference the terms and
conditions of Master Lease Agreement No. 9106PAG429 dated as of June 25, 1991
(the "Master Lease"). Lessor hereby leases to Lessee and Lessee hereby leases
from Lessor the following described items of Equipment for the Lease Term and at
the Basic Rent payable on the Payment Dates hereinafter set forth, on the terms
and conditions set forth in the Master Lease.
1. EQUIPMENT
Description
(Manufacturer,
Item Type, Model and Equipment Acceptance
No. Serial Number) Cost Location Date
--- -------------- --------- -------- ----------
TOTAL EQUIPMENT COST: $_____________
Lessee Billing Location: ___________________
___________________
___________________
2. LEASE TERM
The Lease Term is for an Interim Term commencing on the date of acceptance
of the Equipment for lease, as set forth above, and continuing through and
including ________________________ and for a Primary Term of _____ months,
commencing on _________ and continuing through and including the Expiration Date
of ______________________.
3. BASIC RENT. PAYMENT DATES.
Interim Term Basic Rent in the amount of $________________ is due and
payable in full on the first day of the Primary Term. Basic Rent for the first
_____ months of the Primary Term is due and payable in ______ payments of
$__________________ each commencing on ________________ and continuing
________________________ thereafter, through and including ________________.
Basic Rent for the final _____ months of the Primary Term is due and payable in
_____ payments of $_____________ each commencing on ________________ and
continuing through and including ______________ . Lessee shall also pay to
Lessor $_________ as reimbursement for fees owed by Lessor relating to Uniform
Commercial Code Financing Statements to be filed in connection with the
acquistion of the Equipment. Such fees shall be due and payable on
_______________________.
Per Diem Lease Rate:________________Periodic Lease Rate:_______________.
RENTAL SCHEDULE
AND
ACCEPTANCE CERTIFICATE
NO._______
PAGE TWO
4. SPECIAL MAINTENANCE AND RETURN CONDITIONS.
**TO BE INSERTED DEPENDING UPON EQUIPMENT TYPE**
5. ACCEPTANCE CERTIFICATE
Lessee hereby represents, warrants and certifies (a) that the Equipment
described herein has been delivered to and inspected and found satisfactory by
Lessee and is accepted for Lease by Lessee under this Rental Schedule and the
Master Lease as incorporated herein by reference, as of the Acceptance Date set
forth above; (b) all items of Equipment are new and unused as of the Acceptance
Date, except as otherwise specified above, and (c) the representations and
warranties of Lessee set forth in the Master Lease are true and correct as of
the date hereof.
6. ENTIRE AGREEMENT. MODIFICATION AND WAIVERS. EXECUTION IN COUNTERPARTS.
This Rental Schedule and the Master Lease constitute the entire agreement
between Lessee and Lessor with respect to the leasing of the Equipment. To the
extent any of the terms and conditions set forth in this Rental Schedule
conflict with or are inconsistent with the Master Lease, this Rental Schedule
shall govern and control. No amendment, modification or waiver of this Rental
Schedule or the Master Lease will be effective unless evidenced by a writing
signed by the party to be charged. This Rental Schedule may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Rental Schedule and
Acceptance Certificate to be executed and delivered by their duly authorized
representatives as of the date first above written.
AMERICAN FINANCE GROUP THE XXXXX MINING COMPANY
Lessor Lessee
By By
---------------------------- -----------------------------------
Xxxxx X. Lung
Title Title Vice President
------------------------ --------------------------------
COUNTERPART NO. ____ OF 3 SERIALLY NUMBERED MANUALLY EXECUTED
COUNTERPARTS. TO THE EXTENT IF ANY THAT THIS DOCUMENT CONSTITUTES CHATTEL
PAPER UNDER THE UNIFORM COMMERCIAL CODE, NO SECURITY INTEREST MAY BE
CREATED THROUGH THE TRANSFER AND POSSESSION OF ANY COUNTERPART OTHER THAN
COUNTERPART NO. 1
