EXHIBIT 10.3(b)
MASTER EQUIPMENT LEASE AGREEMENT
Blue Rhino Corporation F27125
__________________________________ (Lessee) No.______________
000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxx-Xxxxx, XX 00000 09/24/96
__________________________________________________ (Address) Date____________
Xxxxxxxx/XxXxxxxx Associates, Inc. ("FMA" or "Lessor"), by its acceptance
hereof, agrees to lease to Lessee, and Lessee agrees to lease from FMA, in
accordance with the terms and conditions hereinafter set forth, the equipment
("Equipment") described in equipment schedules ("Schedule(s)") which are
executed from time to time by FMA and Lessee. Each Schedule shall refer to and
incorporate by reference this Agreement and, when signed by the parties, shall
constitute a separate lease (a "Lease") for the Equipment therein described on
the terms and conditions stated therein and, to the extent not inconsistent with
such Schedule, on the terms and conditions stated in this Agreement.
1. TERM OF LEASE: The term of a Lease as to any item of Equipment shall commence
(the "Commencement Date") on the date set forth in the Schedule on which such
item of Equipment is described (herein a "related Schedule") and shall continue
in force thereafter until the Lease is terminated as to such item of Equipment
by either party upon not less than 90 days prior written notice to the other
party; provided, however, that a Lease shall in no event be terminated as to any
item of Equipment prior to the expiration of the minimum term specified therefor
("Minimum Term") in the related Schedule, and that no notice of termination
shall be effective if given more than 180 days before the date of termination.
Any notice of termination given by either party may not be withdrawn without the
written consent of the other party. Except as otherwise expressly provided
herein, each Lease is irrevocable for the full term thereof and for the
aggregate rental therein provided. If, after notice of termination is given by
Lessee with respect to a Lease in accordance herewith, Lessee and FMA agree in
writing to renew such Lease prior to the end of the Minimum Term thereof, such
renewal shall become effective on the later of (i) the last day of the Minimum
Term of such Lease, or (ii) the date 45 days after the date of such agreement to
renew, and such Lease shall continue in force until the effective date of such
renewal.
2. RENTAL CHARGES & TAXES: The monthly rental charge ("Monthly Rent") for each
item of Equipment as set forth in the related Schedule shall begin on the
Commencement Date and shall be due and payable by Lessee in advance on the first
day of each month thereafter (except for the first payment which shall be a pro
rata portion of the Monthly Rent, calculated on a 30-day basis, due and payable
on the Commencement Date). All payments payable by Lessee under a Lease shall be
absolute and unconditional and shall not be subject to any defense, setoff,
counterclaim or xxxxxx for any reason whatsoever, and such amounts shall be and
continue to be payable in all events.
Lessee covenants and agrees to pay when due or reimburse and indemnify and hold
FMA harmless from and against all taxes, fees or other charges of any nature
whatsoever (together with any related interest or penalties not arising from
negligence on the part of FMA) now or hereafter imposed or assessed during the
term of a Lease against FMA, Lessee or the Equipment by any federal, state,
county, or local government authority upon or with respect to the Equipment or
upon the ordering, purchase, sale, ownership, delivery, leasing, possession,
use, operation, return or other disposition thereof or upon the rents, receipts
or earnings arising therefrom or upon or with respect to any Schedule (excepting
only federal, state and local taxes based on or measured by the net income of
FMA or any franchise tax upon FMA measured by FMA's capital, capital stock or
net worth). FMA shall be responsible for the filing of all personal property tax
returns relating to the Equipment and shall pay all taxes indicated thereon on
behalf of Lessee. Lessee shall reimburse FMA for all taxes paid by FMA which are
the responsibility of Lessee hereunder within 10 days of receipt of FMA's
invoice therefor.
3. OVERDUE PAYMENTS: For each payment of Monthly Rent or other sum due hereunder
that is not paid when due, and for each month in which such payment remains past
due, Lessee agrees to pay FMA a delinquency charge at the rate of 1.5% of such
payment, provided that such a delinquency charge is not prohibited by law,
otherwise at the highest rate Lessee can legally obligate itself to pay and/or
FMA can legally collect. Any sum due hereunder other than Monthly Rent shall be
considered past due 5 days after the due date shown on FMA's invoice therefor.
4. USE OF EQUIPMENT: Each item of Equipment will be kept by Lessee in its sole
possession and control, will at all times be located at the location stated in
the related Schedule, and will not be removed therefrom without the prior
written consent of FMA. All costs and expenses of every nature that may be
incurred in connection with the permitted movement of the Equipment between
locations (including any additional property taxes or other taxes resulting from
such movement) shall be borne by Lessee. if Lessee fails to so notify FMA and,
as a result of such failure, FMA has paid or is required by the jurisdiction
where the Equipment was originally located to continue to pay taxes of the sort
for which Lessee is responsible under this Agreement, then Lessee shall
reimburse FMA for such taxes, which payment (less FMA's reasonable costs and
expenses) will be refunded to Lessee if and when FMA receives a corresponding
refund from said jurisdiction. Lessee will not make or permit to be made any
alteration or addition to the Equipment (other than manufacturer's approved
engineering changes).
FMA shall not be liable to Lessee for any loss, damage or expense of any kind or
nature whatsoever and howsoever, directly or indirectly, caused (including,
without limitation, any loss of business) by (a) any item of Equipment, (b) the
use, maintenance, repair, service or adjustment thereof, (c) any delay or
failure to provide any maintenance, repair, service or adjustment thereto or (d)
any interruption of service or loss of use thereof.
5. LOSS OF OR DAMAGE TO EQUIPMENT - INSURANCE: Lessee shall be responsible for
and hereby assumes the entire risk of the Equipment being lost, damaged,
destroyed, stolen or otherwise rendered unfit or unavailable for use from the
date of its shipment to Lessee until the date of return to and receipt therefor
by FMA. If any item of Equipment is lost, damaged, destroyed, stolen or
otherwise rendered unfit or unavailable for use, Lessee shall give FMA immediate
notice thereof and the Lease to which such Equipment is subject shall continue
in full force and effect without any abatement in the Monthly Rent applicable to
such item of Equipment. Lessee shall determine, and notify FMA, within 15 days
after the date of the occurrence of xxxxx damage to any item of Equipment
whether such item can be repaired. In the event Lessee determines that such item
of Equipment can be repaired, xxxxxxxx at its expense, shall cause such item to
be promptly repaired. If an item of Equipment is lost, destroyed or stolen, or
if Lessee determines that a damaged item of Equipment cannot be repaired, Lessee
shall, at FMA's direction, within 30 days of such occurrence, either replace the
item with an
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identical item of Equipment, the title to which shall thereupon vest in FMA and
which thereafter shall be considered the item of Equipment subject to the
related Schedule with no abatement in the Monthly Rent applicable thereto or, in
FMA's sole discretion, pay to FMA an amount equal to the sum of (i) all unpaid
Monthly Rent in respect of such item of Equipment through the end of the Minimum
Term applicable thereto as set forth in the related Schedule (or the last day of
any extended term then in effect with respect to such item) and (ii) FMA's
estimate of the fair market value of such item of Equipment at the end of the
Minimum Term applicable thereto as set forth in the related Schedule (or at the
end of any extended term then in effect with respect to such item). Upon such
payment, Lessee's obligation to pay Monthly Rent for such item of Equipment
shall cease.
Lessee shall cause the Equipment to be insured against loss or damage for not
less than the insurance value set forth in the related Schedule, and shall carry
comprehensive general liability and property damage insurance covering the
Equipment and its use. All such insurance shall be in form and amount and with
companies approved by FMA and shall name FMA (or any Assignee, as hereinafter
defined) as an additional insured, as its interest may appear. Lessee shall pay
the premiums for such insurance and shall deliver said policies or duplicates
thereof or certificates thereunder to FMA, together with endorsements thereon or
independent instruments whereby each insurer agrees that it will give FMA a
right to 30 days written notice before said policies can be altered or cancelled
and the right to payment of premium without obligation. The proceeds of such
insurance, at the option of FMA, shall be applied (i) toward the replacement,
restoration or repair of the Equipment or (ii) toward payment of the obligations
of Lessee under the Lease to which such Equipment is subject. Lessee hereby
appoints FMA as Lessee's attorney-in-fact to make claims for, receive payment
of, and execute and endorse all documents, checks or drafts for, loss or damage
under any said insurance policies.
6. MAINTENANCE, REPAIRS AND INSTALLATION: Lessee shall, at its expense, (a)
obtain and keep in full effect, throughout the term of a Lease, a contract from
the manufacturer of the Equipment subject to the Lease (or from another
reputable computer maintenance organization approved by FMA) providing for
standard maintenance service (as that term is defined by the manufacturer) and
(b) otherwise maintain the Equipment in good working order and appearance and
make all necessary adjustments and repairs thereto. Lessee will provide required
suitable electric current to operate the Equipment and a suitable place of
installation for the Equipment with all appropriate facilities as specified by
the manufacturer. Lessee will grant access to the Equipment to FMA, its
designee, or the organization providing computer maintenance services for the
Equipment during normal working hours for inspection, repair, maintenance,
installation of engineering changes and for any other reasonable purpose. Lessee
shall immediately notify FMA of all details concerning any accident arising out
of the alleged or apparent improper manufacture, functioning or operation of the
Equipment. Lessee will at all times cooperate with the manufacturer of the
Equipment so as to permit the prompt installation of all engineering changes on
the Equipment as and when determined necessary or desirable by the manufacturer.
Prior to termination of a Lease as to any item of Equipment, Lessee, at its sole
expense, shall return such item of Equipment in the same condition as when
received by Lessee, reasonable wear and tear resulting from proper use thereof
alone excepted, to FMA at such location as shall be designated by FMA. If any
item of Equipment is maintained by other than the manufacturer thereof, Lessee
shall cause such item of Equipment to be eligible, at Lessee's sole expense, for
such manufacturer's standard maintenance service prior to its return to FMA and
shall provide suitable evidence thereof.
7. TITLE AND UPGRADE: Each item of Equipment shall remain personal property of,
and the title thereto shall remain in, FMA or its Assignee exclusively, and
Lessee shall have no right, title or interest therein and no right to purchase
or otherwise acquire title to or ownership of such item except as set forth in
the related Schedule. All replacement parts, additions and accessories
(excluding feature additions and model changes, as those terms are defined by
the manufacturer) incorporated in or affixed to the Equipment after the
commencement of a Lease to which such Equipment is subject shall be the property
of FMA. Any feature addition or model change ("Upgrade") shall be incorporated
in or affixed to the Equipment only with the prior written consent of FMA. FMA
shall have the right of first refusal to match any proposal for the purchase or
lease of an Upgrade. If an Upgrade has been incorporated in or affixed to the
Equipment and such Upgrade was not leased by FMA, FMA shall have the option to
purchase such Upgrade at the end of the Minimum Term of the related Schedule for
the fair market value thereof (based on the average of three appraisals from
dealers who deal in equipment of that type, one selected by FMA, one by Lessee
and one by the other two). If FMA does not purchase such Upgrade, Lessee shall,
at the request of FMA (and absent such request, at its option, Lessee may),
before the related Schedule terminates, at Lessee's expense, remove the Upgrade
and restore the Equipment using identical components removed therefrom (if any).
Lessee shall at its expense protect and defend FMA's title to the Equipment
against all persons claiming against or through Lessee, at all times keeping the
Equipment free from any legal process or encumbrance whatsoever, including, but
not limited to, liens, attachments, levies and executions (except any placed
thereon by FMA), and shall give FMA immediate written notice of any such legal
process or encumbrance and shall indemnify FMA from any loss caused thereby.
Lessee shall execute or obtain from third parties and deliver to FMA, upon FMA's
request, such further instruments and assurances as FMA deems necessary or
advisable for the confirmation or perfection of FMA's rights hereunder.
In the event a Lease is determined to be a security agreement, Lessee hereby (i)
grants to FMA a security interest in the Equipment subject thereto to secure the
payment and performance of Lessee's obligations thereunder and (ii) authorizes
FMA, at Lessee's expense, to cause the Lease (including a carbon, photographic
or other reproduction thereof), or any statement or other instrument relating to
the Lease showing the interest of FMA in the Equipment, including Uniform
Commercial Code financing statements, to be filed or recorded and re-filed or
re-recorded, and Lessee grants FMA the right to execute Lessee's name to any
such statement or instrument. Lessee agrees to execute and deliver any statement
or instrument requested by FMA for such purpose, and agrees to pay or reimburse
FMA for any searches, any filing, recording or stamp fees, and any expenses or
taxes arising from the filing or recording of any such instrument or statement.
The Equipment is, and shall at all times be and remain, personal property,
notwithstanding that the Equipment or any part thereof may now be, or hereafter
become, in any manner affixed or attached to real property or any improvements
thereon.
8. NO WARRANTIES: FMA MAKES TO LESSEE NO WARRANTY, GUARANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED
TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OR CAPACITY OF
THE EQUIPMENT, WORKMANSHIP, COMPLIANCE WITH THE REQUIREMENTS OF ANY LAW, RULE,
SPECIFICATION OR CONTRACT PERTAINING TO THE EQUIPMENT OR PATENT INFRINGEMENT OR
PATENT DEFECTS. LESSEE ACKNOWLEDGES THAT EACH LEASE OF THE EQUIPMENT IS "AS IS."
FMA IS NOT RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR LOSSES RESULTING FROM THE INSTALLATION, OPERATION OR
USE OF THE EQUIPMENT OR ANY PRODUCTS MANUFACTURED THEREBY. FURTHER,
NOTWITHSTANDING FMA'S ACCEPTANCE OF ANY ORDER OR SUPPLEMENTAL ORDER, FMA IS NOT
RESPONSIBLE OR LIABLE FOR ANY SUCH DAMAGES OR LOSSES, RESTITUTION, SPECIFIC
PERFORMANCE OR ANY OTHER REMEDY IN THE EVENT THAT FOR ANY REASON ANY VENDOR OF
GOODS FAILS TO TIMELY DELIVER THE SAME TO FMA OR LESSEE OR IN ANY OTHER MANNER
OR RESPECT BREACHES OR FAILS TO PERFORM ITS CONTRACT WITH FMA. FMA MAKES NO
WARRANTY AS TO THE TREATMENT OF A LEASE FOR TAX OR ACCOUNTING PURPOSES.
TRANSPORTATION AND INSTALLATION: All transportation, rigging, drayage,
in-transit insurance, and other charges payable for delivery of the equipment to
and from Lessee, and all installation and disconnect charges, shall be paid by
Lessee.
10. NON-WAIVER: FMA's failure at any time to require strict performance by
Lessee of any of the provisions of a Lease shall not waive or diminish FMA's
right thereafter to demand strict compliance therewith or with any other
provision. Waiver of any default shall not waive any other default. FMA's rights
under a Lease are cumulative and not alternative and may be exercised
successively or concurrently.
11. QUIET POSSESSION: Conditioned upon Lessee's performing its obligations under
a Lease, FMA covenants to and with Lessee that Lessee shall
peaceably and quietly hold and use the Equipment subject to the Lease during the
term thereof without let or hindrance.
12. DEFAULT AND REMEDIES: The occurrence of any one or more of the following
events ("Events of Default") shall constitute a default under any Lease: (a)
Lessee fails to pay the Monthly Rent or any other amount due FMA on or before
the fifth day after the same is due; (b) any financial statement, information or
representation or warranty given to FMA is false or misleading as of the date it
was given by or on behalf of Lessee; (c) Lessee fails to preserve or perform any
other term, condition, obligation, agreement or covenant set forth in such
Lease, and such failure continues for a period of 10 days after receipt of
written notice thereof from FMA; (d) Lessee assigns or attempts to assign such
Lease, or removes, transfers, encumbers, sublets or parts with possession of any
item of Equipment subject to such Lease, or attempts to do any of the foregoing,
or suffers or permits any of the foregoing to occur except as expressly
permitted in such Lease; (e) Lessee ceases doing business as a going concern, or
it or its shareholders or partners take any action looking toward its
dissolution or liquidation; (f) Lessee becomes insolvent, or generally fails or
admits in writing its inability or unwillingness to pay its debts as they become
due, or makes a general assignment for the benefit of creditors; or Lessee
applies for, acquiesces in or consents to the appointment of any receiver,
trustee or other custodian for it or for all or any substantial part of its
property; or such receiver, trustee or other custodian is appointed without its
application or consent, and such appointment continues undischarged for a period
of 60 days; or any bankruptcy, reorganization, debt arrangement or other case or
preceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced with respect to Lessee and, if such case or
preceeding is not commenced by Lessee, it is consented to or acquiesced in by
Lessee, or remains for 60 days undismissed; or Lessee takes any action to
authorize, or in furtherance of, any of the foregoing; (g) an Event of Default
by Lessee under any other Lease; or (h) an event of default or event which, with
the giving of notice or the passage of time, or both, would constitute a default
under any other lease or agreement between FMA and Lessee.
If an Event of Default occurs, FMA may, at its option, do any or all of the
following to the full extent permitted by law: (i) recover from Lessee, as
liquidated damages for loss of a bargain and not as a penalty, as to any or all
Leases, an amount equal to the present value of all Monthly Rent to be paid by
Lessee during the remaining Minimum Term or any extended term then in effect,
discounted at the rate of 6% per annum, which amount shall be accelerated and
become immediately due and payable; (ii) xxx for and recover all rents and other
amounts due or to become due with respect to any or all items of Equipment;
(iii) require Lessee to assemble all Equipment at Lessee's expense, at a place
reasonably designated by FMA; or (iv) remove any physical obstructions for
removal of the Equipment from the place where the Equipment is located and take
possession of any or all items of Equipment, without notice or demand, wherever
the same may be used located, disconnecting and separating all such Equipment
from any other property, with or without any court order or pre-taking hearing
or other process of law. Lessee hereby waives any and all damages occasioned by
such retaking. FMA may, at its option, ship, store, repair or lease all
Equipment so removed and sell or otherwise dispose of any such Equipment at a
private or public sale. FMA may expose Equipment at Lessee's premises at
reasonable business hours without being required to remove the Equipment.
In the event that Lessee shall have paid to FMA the liquidated damages referred
to in the preceding paragraph, FMA hereby agrees to pay to Lessee, promptly
after receipt thereof, either (a) if FMA re-leases the Equipment, all rentals or
proceeds received from the reletting of the Equipment during the balance of the
Minimum Term of the related Schedule or any successive period then in effect
(after deduction of all expenses incurred by FMA), or (b) if FMA sells the
Equipment, all proceeds received from the sale (after deduction of the estimated
fair market value of the Equipment as of the end of the Minimum Term or at the
end of any extended term then in effect and of all expenses incurred by FMA),
said amount never to exceed the amount of the liquidated damages paid by Lessee.
For purposes of the foregoing, in the event of any reletting by FMA of any item
of Equipment, "all rentals or proceeds received from the reletting of the
Equipment" shall mean the present value (discounted to the Commencement Date of
the re-lease using the interest rate at which FMA has non-recourse financing or
a non-recourse financing or a non-recourse financing commitment with respect to
such re-lease) of the monthly rent for such item under re-lease to a third
party, taking into account only that monthly rent of such re-lease which is
payable on or before the last day of the Minimum Term of the related Schedule
(or the last day of any extended term then in effect with respect to such item
of Equipment). Lessee agrees that FMA shall have no obligation to sell the
Equipment. Lessee shall in any event remain fully liable for reasonable damages
as provided by law and all costs and expenses incurred by FMA as a result of
such default including, but not limited to, all court costs and reasonable
attorneys' fees. Lessee hereby agrees that, in any event, it will be liable for
any deficiency after any sale, lease or other disposition by FMA. The rights
afforded FMA hereunder shall not be deemed to be exclusive, but shall be in
addition to any rights or remedies provided by law.
If, upon the termination of the related Schedule as to any item of Equipment,
Lessee fails or refuses to return and deliver possession of such item of
Equipment to Lessor on the prescribed date, in addition to all other rights and
remedies available to FMA, Lessee shall be liable to FMA for Monthly Rent
applicable to such item of Equipment until the last day of the month in which
such item is returned to FMA, and any damages FMA may suffer by reason of being
unable to deliver such item of Equipment to another party.
13. ASSIGNMENTS: Neither a Lease nor Lessee's rights thereunder shall be
assignable by Lessee. FMA shall have the right to assign a Lease or any part
thereof. If FMA assigns the rents reserved therein or all or any of FMA's other
rights thereunder, or amounts equal thereto, the right of FMA's assignee
("Assignee") to receive the rentals as well as any other right assigned
thereunder shall not be subject to any defense, setoff, counterclaim or
recoupment which may arise out of any breach of any obligation of FMA
thereunder or by reason of any other indebtedness or liability at any time owing
by FMA to Lessee. All rentals due thereunder shall be payable to Assignee by
Lessee whether or not the Lease is terminated by operation of law or otherwise,
including, without limitation, termination arising out of bankruptcy,
reorganization or similar proceedings involving FMA. On receipt of notification
of such assignment, Lessee, subject to its rights thereunder, shall hold the
Equipment for and on behalf of Assignee and will relinquish possession thereof
only to Assignee or pursuant to its written order. Lessee on receiving notice of
any such assignment shall abide thereby and make payment as may therein be
directed, and agrees to acknowledge such assignment to Assignee. Following any
such assignment the term "FMA" shall be deemed to include or refer to Assignee
provided that such Assignee shall not be deemed to assume any obligation or duty
imposed upon FMA under the Lease and Lessee shall look only to FMA for
performance thereof.
14. LIABILITY: Lessee shall indemnify and save FMA harmless from, and defend
FMA against, any and all claims, actions, proceedings, injuries, deaths,
expenses, damages and liabilities, including attorneys' fees, arising in
connection with the Equipment or any Lease, including without limitation, the
manufacture, selection, purchase, delivery, possession, use, operation,
maintenance, leasing and return of the Equipment and acts of Lessee in failing
to maintain the Equipment in good repair.
15. PERFORMANCE AND EXECUTION: Lessee represents and warrants to FMA that (i)
the execution and performance of this Agreement and each Schedule has been duly
authorized by Lessee and that, upon execution by Lessee and FMA of this
Agreement and each Schedule, such Schedule will constitute a valid obligation
binding upon, and enforceable against, Lessee in accordance with its terms, (ii)
neither the execution of this Agreement or any Schedule nor the due performance
thereof by Lessee will result in a breach of, or constitute a default under or
violation of Lessee's certificate or articles of incorporation and by-laws (or
other organizational documents) or any agreement to which Lessee is a party or
by which any interest of Lessee may be affected, (iii) Lessee is duly organized
and in good standing under the laws of its jurisdiction of organization and is
and will continue to be duly qualified to do business and in good standing in
any jurisdiction where any item of Equipment is to be located, (iv) the person
excecuting this Agreement on behalf of Lessee has been and each person executing
a Schedule, upon execution of such Schedule, will be duly authorized to do so,
and (v) any xxxxxx financial statements and other information with respect to
Lessee furnished by Lessee to FMA will be, when furnished, and will remain at
the time of execution of any Schedule, true and correct without any misleading
ommissions, excepting any changes which have been disclosed in a written notice
to FMA.
16. ADDITIONAL DOCUMENTATION: Lessee shall deliver promptly to FMA the following
documentation as and when requested by FMA: (i) financial
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information, including without limitation a copy of Lessee's balance sheets and
income statements for Lessee's three prior fiscal years, certified by
independent certified accounts, and such other current financial information
with respect to the financial condition and operation of Lessee as FMA from time
to time may reasonably request; (ii) a certificate of the resolutions of the
board of directors of lessee duly authorizing or ratifying this Agreement or any
Schedule; (iii) a certificate of incumbency setting forth the names and
signatures of those persons authorized to execute this Agreement or any Schedule
on behalf of Lessee; (iv) landlord and mortgagee waivers in form and substance
satisfactory to FMA or any Assignee (or secured party) with respect to any
premises upon which any item of Equipment is located; (v) an opinion of counsel
for Lessee as to the matters set forth in clauses (i) though (iv) of Section 15
hereof, and as to such other matters as FMA reasonably may request; and (vi)
such documentation confirming the execution of any Lease necessary or desirable
to effect any assignment, perfect any interest of FMA, any secured party or
Assignee, or for such other purposes relating to any Lease or any assignment
thereof as FMA reasonably may request. If such a request for documentation is
made prior to the deliver of any item of Equipment, receipt of such
documentation shall be a condition precedent to FMA's obligation to deliver such
item.
17. PERFORMANCE BY FMA: In the event Lessee fails to comply with any provision
of a Lease, FMA shall have the right, but shall not be obligated, to effect such
compliance on behalf of Lessee upon five days prior written notice to Lessee. In
such event, all monies advanced or expended by FMA, and all expenses incurred
by FMA in effecting such compliance, shall be deemed to be additional rent, and
shall be paid by Lessee to FMA at the time of the next payment of Monthly Rent.
18. MISCELLANEOUS: Any notice or other communication relating to a Lease shall
be delivered or mailed, by first-class mail, postage prepaid, to FMA or Lessee
at its address above shown or at any later address last known to the sender. Any
notice or other communication mailed as aforesaid shall be deemed to have been
given three days after the date sent.
In the event that any Lease is terminated as to any item of Equipment, FMA shall
advise Lessee in writing of those items of Equipment which remain subject to
such Lease, the Monthly Rent payable in respect of such items and the aggregate
insurance value thereof. Upon Lessee's receipt of such written advice, such
Lease shall, without further action on the part of either party, be deemed
amended to the extent set forth in such advice.
If more than one Lessee is named in a Lease, the liability of each shall be
joint and several. Lessee will not affix any item of Equipment to any real
property or any improvements thereof if, as a result thereof, such item will
become a fixture under applicable law. All representations, warranties,
indemnities and covenants contained in this Agreement and in any Schedule shall
continue in full force and effect and shall survive notwithstanding the full
payment of all amounts due hereunder and thereunder or the termination of
Lessee's right of possession and/or the taking of possession by FMA of any item
of Equipment. Each Lease shall inure to the benefit of and shall be binding upon
Lessee and FMA and their respective successors and assigns. If FMA supplies
Lessee with labels, Lessee shall label any and all items of Equipment and shall
keep the same affixed in a prominent place.
If the provisions of any Schedule are inconsistent with the provisions of this
Agreement, the provisions of such Schedule shall prevail.
Each Lease shall be deemed to have been made in Xxxx County, Illinois,
regardless of the order in which the signatures of the parties shall be affixed
thereto, and shall be interpreted, and the rights and liabilities of the parties
hereto determined, in accordance with the internal laws of the State of
Illinois. Lessee hereby consents and agrees to the exclusive jurisdiction of any
State or Federal court within the State of Illinois for resolution of any
matters in connection with the interpretation, construction and enforcement of
any Lease.
This Agreement and any Schedule may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. If FMA grants a security
interest in all or any part of a Schedule, the Equipment covered thereby and/or
sums payable thereunder, only that counterpart of the Schedule marked "Secured
Party Original" shall constitute chattel paper and shall be effective to
transfer FMA's rights therein.
19. SEVERABILITY: If any provision of a Lease or any remedy therein provided
shall be invalid under any applicable law, such provision shall be inapplicable
and deemed omitted, but the remaining provisions thereof, including the
remaining default remedies, shall be given effect in accordance with their
manifest intent.
20. ENTIRE AGREEMENT. This Agreement and each Schedule into which this
Agreement is incorporated reference collectively shall constitute the entire
agreement between the parties with respect to a Lease. No supplier or agent of
FMA is authorized to bind FMA or to waive or modify any term hereof or thereof.
Not term or condition of this Agreement or any Schedule may be waived or amended
except in writing and executed by a duly authorized representative of each
party.
Each party to this Agreement warrants and represents that is signatory whose
signature appears below is duly authorized by all necessary corporate action to
execute this Agreement as of the date first above written.
See addendum No. 1 to Master Equipment Lease Agreement No. F27125 dated 09/24/96
attached hereto and made a part hereof for additional terms and provisions.
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. BLUE RHINE CORPORATION
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxx
Title: President Title: Vice President-Financial-Secretary-
Treasurer
Each Schedule can be accepted by FMA only if signed at FMA's office in Illinois
by an executive officer of FMA.
Page 4 of 4
ADDENDUM NO. 1
TO MASTER EQUIPMENT LEASE AGREEMENT NO. F27125
DATED SEPTEMBER 24, 1996 ("MASTER LEASE")
BY AND BETWEEN
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. ("FMA")
AND
BLUE RHINO CORPORATION ("LESSEE")
The terms and provisions of the Master Lease are hereby amended as follows:
1. It is agreed that the obligations of FMA to lease Equipment pursuant
to this Master Lease on an on-going basis shall be subject to the
following conditions: (i) that Lessee shall provide a standard monthly
financial reporting package to FMA within 15 business days following
the end of each calendar month and a weekly cash report within 2
business days after the end of each week which shall be in a form
acceptable to FMA; (ii) that at the end of each week, Lessee shall
have a cash balance equal to or greater than $300,000; (iii) no event
shall occur (and Lessee shall provide written notice to FMA within 5
business days after occurrence) which adversely affects the business
or financial condition of Lessee (as, by way of example and not as a
limitation, the termination of any significant account or the
termination of a significant distributor relationship or Lessee's
default under any agreement between Lessee and any third party which,
in the reasonable opinion of FMA, may have a material affect on
Lessee's business or financial condition).
2. It is acknowledged and agreed by the parties that FMA intends to
assign this Master Lease and any Schedule(s) hereto to Xxxxxxxx
Technology/Xxxx Partners Venture Leasing, L.P. ("FT/LP") after FT/LP
has been formed.
Except as specifically modified hereby, the terms and provisions of the Master
Lease shall remain in full force and effect.
Dated: September 24, 1996
ACCEPTED AND AGREED
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. BLUE RHINO CORPORATION
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
-------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxxxxxx
Title: President Title: Vice President - Finance
ADDENDUM NO. 2
TO MASTER EQUIPMENT LEASE AGREEMENT NO. F27125
DATED SEPTEMBER 24, 1996 ("MASTER LEASE")
BY AND BETWEEN
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. ("FMA")
AND
BLUE RHINO CORPORATION ("LESSEE")
The terms and provisions of the Master Lease are hereby amended as follows:
1. SECTION 2. RENTAL CHARGES & TAXES: Delete the second sentence of the second
paragraph in its entirety.
2. SECTION 4. USE OF EQUIPMENT:
(a) Delete the first and second sentences of the first paragraph and
insert the following sentences which read: "Lessee shall, at its sole
discretion determine the location of the Equipment (at all times to be
within the continental United States unless otherwise provided for in
a Lease) and will at all times know the exact distributor or sublessee
location with respect to each item of Equipment. Lessee shall, upon
FMA's request, make available to FMA a report as to the distributor or
sublessee location of each item of Equipment. Lessee acknowledges that
because the Equipment may be relocated from the location stated in the
related Schedule, FMA's Schedules and other related records may not be
accurate with respect to the location of the Equipment. All costs,
expenses and taxes of every nature (including, without limitation, any
additional property taxes or other taxes resulting from such movement)
that may be incurred in connection with the Equipment and/or its
movement to a location other than the location on the related Schedule
will be the responsibility of Lessee," in lieu thereof.
(b) in the fourth line of the first paragraph, delete "Lessee fails to so
notify FMA and, as a result of such failure,".
3. SECTION 9. TRANSPORTATION AND INSTALLATION: Delete the sentence in its
entirety and insert the following in lieu thereof: "All transportation, in-
transit insurance, and other charges payable for delivery of the Equipment
to Lessee, and all installation charges, shall be paid by FMA. All
transportation, in-transit insurance, and other charges payable for the
return of the Equipment from Lessee to FMA, and all de-installation and
disconnect charges, shall be paid by Lessee."
4. SECTION 13. ASSIGNMENTS: After the first paragraph insert the following
paragraph: "Lessee shall have the right to sublease the Equipment leased
hereunder only if, (i) no Event of Default has occurred and is continuing
with respect to the related Lease, (ii) any
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such sublease expressly provides that it is subject and subordinate to the
terms of the related Lease (including this Master Lease) and does not
diminish any of Lessee's obligations to FMA under this Master Lease or any
Schedule thereto, (iii) Lessee provides FMA with the sublessee's name and
address and the sublessee location (within the Continental United States
only) of each item of subleased Equipment prior to delivery to the
sublessee's facility, (v) sublessee is prohibited from further subleasing
the Equipment and (vii) Lessee files against the sublessee all financing
statements deemed by FMA to be necessary or appropriate. FMA reserves the
right to review and approve all sublease documentation.
Lessee shall assign and transfer to FMA the Lessee's interest in any
permitted sublease and all rentals and income arising therefrom, subject
however to terms of this Section 13. FMA agrees that until a default shall
occur in the performance of Lessee's obligations under the Master Lease,
that Lessee may receive, collect and enjoy the rents accruing under any
permitted sublease. However, if Lessee shall default in the performance of
its obligations to FMA, then FMA may at its option, receive and collect,
directly from the sublessee, all rent owing and to be owed under the
applicable sublease. FMA shall not, by reason of the assignment of any
sublease nor by reason of the collection of the rents from any sublessee,
be deemed liable to any sublessee for any failure of the Lessee to perform
and comply with Lessee's remaining obligations.
Lessee shall irrevocably authorize and direct any sublessee, upon receipt
of any written notice from FMA stating that a default exists in the
performance of Lessee's obligations under the Master Lease, to pay to FMA
the rents due and to become due under the permitted sublease. Lessee agrees
that sublessee shall have the right to rely upon any such statement and
request from FMA, and that the sublessee shall pay such rents to FMA
without any obligation or right to inquire as to whether such default
exists and notwithstanding any notice from or claim from Lessee to the
contrary and Lessee shall have not right or claim against the sublessee for
any such rents so paid by sublessee."
Except as specifically modified hereby, the terms and provisions of the Master
Lease shall remain in full force and effect.
Dated: October 14, 1996
ACCEPTED AND AGREED
XXXXXXXX/XxXXXXXX ASSOCIATES, INC. BLUE RHINO CORPORATION
BY:_/s/ Xxxxxx Xxxxxx BY:_/s/ Xxxxx Brumfield___
TITLE:_Gordon Xxxxxx - President TITLE:_Vice President -
Finance and Administration
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