Draft Dated December 26, 1997
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Equipment Lease
Dated as of December 15, 1997
between
KEYBANK NATIONAL ASSOCIATION,
as trustee under MW 1997-1 Trust,
as the Lessor
and
MAIL-WELL I CORPORATION
as the Lessee
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Table of Contents
PAGE
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SECTION 1. DEFINITIONS.................................................. 1
Section 1.1. Definitions; Interpretation............................... 1
SECTION 2. LEASE........................................................ 1
Section 2.1. Acceptance and Lease of Equipment......................... 1
Section 2.2. Lease Supplement.......................................... 2
Section 2.3. Lease Term................................................ 2
Section 2.4. Title..................................................... 2
SECTION 3. PAYMENT OF RENT.............................................. 2
Section 3.1. Rent...................................................... 2
Section 3.2. Payment of Rent........................................... 3
Section 3.3. Supplemental Rent......................................... 3
Section 3.4. Method of Payment......................................... 3
SECTION 4. QUIET ENJOYMENT; RIGHT TO INSPECT; NATURE OF BUSINESS........ 3
Section 4.1. Quiet Enjoyment............................................ 3
Section 4.2. Right to Inspect........................................... 3
Section 4.3. Change in the Nature of Business........................... 4
SECTION 5. NET LEASE, ETC............................................... 4
Section 5.1. Net Lease.................................................. 4
Section 5.2. No Termination or Abatement................................ 5
SECTION 6. LESSEE ACKNOWLEDGMENTS....................................... 6
Section 6.1. Condition of the Equipment................................. 6
Section 6.2. Risk of Loss............................................... 6
SECTION 7. MARKING...................................................... 6
Section 7.1. Marking of Equipment....................................... 6
SECTION 8. POSSESSION AND USE OF THE EQUIPMENT, ETC..................... 6
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Section 8.1. Use of the Equipment....................................... 6
Section 8.2. Possession of the Equipment................................ 7
Section 8.3. Landlord Waivers........................................... 7
SECTION 9. MAINTENANCE AND REPAIR....................................... 7
Section 9.1. Repairs and Maintenance.................................... 7
Section 9.2. Maintenance Costs and Warranties........................... 8
Section 9.3. Lessor Trustee Not Obligated to Maintain or Repair......... 8
Section 9.4. Return..................................................... 8
SECTION 10. MODIFICATIONS, ETC........................................... 12
Section 10.1. Replacement of Parts....................................... 12
Section 10.2. Required Alterations....................................... 12
Section 10.3. Optional Alterations....................................... 12
Section 10.4. Title to Parts............................................. 12
SECTION 11. WARRANTY OF TITLE............................................ 13
Section 11.1. Warranty of Title.......................................... 13
SECTION 12. PERMITTED CONTESTS........................................... 13
Section 12.1. Permitted Contests in Respect of Applicable Law............ 13
SECTION 13. INSURANCE.................................................... 14
Section 13.1. Required Insurance Coverages and Limits.................... 14
Section 13.2. Adjustment and Payment of Losses........................... 15
Section 13.3. Evidence of Insurance...................................... 15
Section 13.4. Application of Insurance Proceeds.......................... 15
Section 13.5. Deductibles and Self-Insurance............................. 16
Section 13.6. Insurance for Own Account.................................. 16
SECTION 14. CASUALTY OCCURRENCE.......................................... 17
Section 14.1. Casualty Occurrence........................................ 17
Section 14.2. Conveyance of Replacement Equipment........................ 18
Section 14.3. Application of Payments.................................... 19
Section 14.4. Certain Government Requisitions............................ 20
Section 14.5. Application of Payments from Governmental Authorities for
Requisition of Title....................................... 20
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Section 14.6. Application of Payments During Existence of Default........ 20
SECTION 15. SUBSTITUTION OF EQUIPMENT.................................... 21
Section 15.1. Substitution of Equipment.................................. 21
SECTION 16. EVENTS OF DEFAULT............................................ 21
Section 16.1. Events of Default.......................................... 21
Section 16.2. Remedies................................................... 24
Section 16.3. Waiver of Certain Rights................................... 27
SECTION 17. LESSOR TRUSTEE'S RIGHT TO CURE............................... 27
Section 17.1. The Lessor Trustee's Right to Cure the Lessee's Defaults... 27
SECTION 18. OPTIONS TO RENEW, PURCHASE AND SELL.......................... 27
Section 18.1. Purchase of the Equipment.................................. 27
Section 18.2. Option to Renew............................................ 28
Section 18.3. Option to Sell the Equipment............................... 28
Section 18.4. End of Term Adjustment..................................... 29
SECTION 19. PROCEDURES RELATING TO PURCHASE OF EQUIPMENT................. 30
Section 19.1. Provisions Relating to the Purchase of Equipment; Conveyance
upon Certain Other Events.................................. 30
SECTION 20. ADDITIONAL GUARANTORS........................................ 30
Section 20.1. Additional Guarantors...................................... 30
SECTION 21. [INTENTIONALLY OMITTED]...................................... 31
SECTION 22. NO MERGER OF TITLE........................................... 31
Section 22.1. No Merger of Title......................................... 31
SECTION 23. INTENT OF THE PARTIES........................................ 31
Section 23.1. Nature of Transaction...................................... 31
Section 23.2. Liens and Security Interests............................... 32
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SECTION 24. MISCELLANEOUS................................................ 34
Section 24.1. Severability............................................... 34
Section 24.2. Amendments and Modifications............................... 34
Section 24.3. No Waiver.................................................. 34
Section 24.4. Notices.................................................... 34
Section 24.5. Successors and Assigns..................................... 35
Section 24.6. Headings and Table of Contents............................. 35
Section 24.7. Counterparts............................................... 35
Section 24.8. Governing Law.............................................. 35
Section 24.9. Time of Essence............................................ 35
Signatures ................................................................. 36
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ATTACHMENTS TO EQUIPMENT LEASE:
Schedule I -- Periodic Rent Factors
Schedule II -- Purchase Option Percentages and
Maximum Lessee Risk Percentages
Exhibit A -- Form of Lease Supplement
Exhibit B -- Form of Landlord Waiver
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EQUIPMENT LEASE
THIS EQUIPMENT LEASE (this "LEASE"), dated as of December 15, 1997 between
KEYBANK NATIONAL ASSOCIATION, a national banking association, as trustee (the
"LESSOR TRUSTEE") under MW 1997-1 Trust, as Lessor and whose principal offices
are located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and MAIL-WELL I
CORPORATION, a Delaware corporation, as Lessee (the "LESSEE") and whose
principal offices are located at 00 Xxxxxxxxx Xxx Xxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, pursuant to a Participation Agreement dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"PARTICIPATION AGREEMENT"), among the Lessee, the Lessor Trustee and the
Trust Certificate Purchasers named therein, such Trust Certificate Purchasers
have agreed to finance the acquisition of the Equipment;
WHEREAS, on the Closing Date, the Lessor Trustee will purchase certain
Equipment from the Seller thereof;
WHEREAS, the Lessor Trustee desires to lease to the Lessee, and the
Lessee desires to lease from the Lessor Trustee, such Equipment, subject to
the terms of this Lease;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.1. DEFINITIONS; INTERPRETATION. Capitalized terms used but not
otherwise defined in this Lease have the respective meanings specified in
Annex I to the Participation Agreement; and the rules of interpretation set
forth in Annex I to the Participation Agreement shall apply to this Lease.
SECTION 2. LEASE
SECTION 2.1. ACCEPTANCE AND LEASE OF EQUIPMENT. Subject to the conditions
set forth in the Participation Agreement, including without limitation the
satisfaction or waiver of the conditions set forth in Section 4 thereof, the
Lessor Trustee hereby agrees to accept, pursuant to the terms
MW 1997-1 Trust Equipment Lease
of the Participation Agreement, delivery of the Equipment on the Closing Date
therefor and simultaneously to lease such Equipment to the Lessee hereunder
for the Lease Term and the Lessee hereby agrees to simultaneously lease from
the Lessor Trustee for the Lease Term the interest of the Lessor Trustee in
the Equipment, such leasing to be evidenced by the execution by the Lessor
Trustee and the Lessee of a Lease Supplement covering the Items of Equipment
delivered on the Closing Date.
SECTION 2.2. LEASE SUPPLEMENT. On the Closing Date, the Lessee agrees that
it will enter into a Lease Supplement substantially in the form attached
hereto as Exhibit A with the Lessor Trustee, which Lease Supplement shall
describe the Items of Equipment settled for on the Closing Date and shall set
forth the Equipment Cost therefor. The Lessee's execution and delivery of a
Lease Supplement with respect to an Item of Equipment shall conclusively
establish as between the Lessor Trustee and the Lessee that such Item is
acceptable to and accepted by the Lessee under this Lease, notwithstanding
any defect with respect to design, manufacture, condition or in any other
respect, and that such Item is in good order and condition and appears to
conform to the specifications applicable thereto and to all governmental
standards and requirements applicable thereto.
SECTION 2.3. LEASE TERM. The Basic Term for each Item of Equipment shall
commence on (and include) the Closing Date and, unless sooner terminated
pursuant to this Lease, end on (but exclude) the last day of the Basic Term
thereof. If not sooner terminated pursuant to the provisions hereof, the
Lease Term for each Item of Equipment shall end on the last day of the Basic
Term thereof, or if this Lease is renewed pursuant to Section 18.2, on the
last day of the last Renewal Term thereof.
SECTION 2.4. TITLE. The Equipment is leased to the Lessee without any
representation or warranty, express or implied, by the Lessor Trustee or any
Certificate Holder and subject to the rights of parties in possession, the
existing state of title (including, without limitation, all Liens other than
Lessor's Liens) and all applicable Requirements of Law. The Lessee shall in
no event have any recourse against the Lessor Trustee or any Certificate
Holder for any defect in or exception to title to the Equipment or leasehold
interest therein other than resulting from Xxxxxx's Liens attributable to the
Lessor Trustee or such Certificate Holder.
SECTION 3. PAYMENT OF RENT
SECTION 3.1. RENT. (a) During the Lease Term, the Lessee shall pay
Periodic Rent for all Equipment subject to the Lease to the Lessor Trustee on
each Scheduled Payment Date and on any date on which this Lease shall
terminate, PROVIDED that any payment of Periodic Rent which is due on a date
which is not a Business Day shall be payable on the next succeeding Business
Day, unless the result of such extension would be that such payment would be
made in another
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MW 1997-1 Trust Equipment Lease
calendar month in which event such payment shall be made on the immediately
preceding Business Day.
(b) Neither the Lessee's inability or failure to take possession of all
or any portion of the Equipment when delivered by the Lessor Trustee, nor the
inability or failure of the Lessor Trustee to deliver all or any portion of
the Equipment to the Lessee on or before the Closing Date, whether or not
attributable to any act or omission of the Lessee or any act or omission of
the Lessor Trustee or any Certificate Holder, or for any other reason
whatsoever, shall delay or otherwise affect the Lessee's obligation to pay
Rent for such Equipment in accordance with the terms of this Lease.
SECTION 3.2. PAYMENT OF RENT. Rent shall be paid absolutely net to each
Person entitled thereto, so that this Lease shall yield to such Person the
full amount thereof, without setoff, deduction or reduction.
SECTION 3.3. SUPPLEMENTAL RENT. The Lessee shall pay to the Lessor Trustee
or any other Person entitled thereto any and all Supplemental Rent promptly
as the same shall become due and payable, and if the Lessee fails to pay any
Supplemental Rent, the Lessor Trustee and such other Persons shall have all
rights, powers and remedies provided for herein or by law or equity or
otherwise in the case of nonpayment of Periodic Rent. The Lessee shall pay
to the Lessor Trustee, as Supplemental Rent, among other things, on demand,
to the extent permitted by applicable Requirements of Law, interest at the
applicable Overdue Rate on any installment of Periodic Rent not paid when due
for the period for which the same shall be overdue and on any payment of
Supplemental Rent not paid when due or demanded by the Lessor Trustee for the
period from the due date or the date of any such demand, as the case may be,
until the same shall be paid. The expiration or other termination of the
Lessee's obligations to pay Periodic Rent hereunder shall not limit or modify
the obligations of the Lessee with respect to Supplemental Rent. Unless
expressly provided otherwise in this Lease, in the event of any failure on
the part of the Lessee to pay and discharge any Supplemental Rent as and when
due, the Lessee shall also promptly pay and discharge any fine, penalty,
interest or cost which may be assessed or added against the Lessor Trustee by
a third party for nonpayment or late payment of such Supplemental Rent, all
of which shall also constitute Supplemental Rent.
SECTION 3.4. METHOD OF PAYMENT. Each payment of Rent payable by the Lessee
to the Lessor Trustee under this Lease or any other Operative Agreement shall
be made by the Lessee to the Lessor Trustee prior to 10:00 a.m., (Seattle,
Washington time) to the Account by wire transfer of Federal or other
immediately available funds consisting of lawful currency of the United
States of America on the date when such payment shall be due.
SECTION 4. QUIET ENJOYMENT; RIGHT TO INSPECT; NATURE OF BUSINESS
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MW 1997-1 Trust Equipment Lease
SECTION 4.1. QUIET ENJOYMENT. Subject to the terms of each of the
Operative Agreements, the Lessee shall peaceably and quietly have, hold and
enjoy each Item of Equipment for the Lease Term, free of any claim or other
action by the Lessor Trustee or the Certificate Holders or anyone claiming
by, through or under the Lessor Trustee or the Certificate Holders (other
than the Lessee) with respect to any matters arising from and after the
Closing Date. Such right of quiet enjoyment is independent of, and shall not
affect the rights of the Lessor Trustee or the Certificate Holders (or anyone
claiming by, through or under the Lessor Trustee or the Certificate Holders)
otherwise to initiate legal action to enforce, the obligations of the Lessee
under this Lease.
SECTION 4.2. RIGHT TO INSPECT. During the Lease Term, the Lessee shall
upon reasonable notice, and from time to time, permit the Lessor Trustee, any
Certificate Holder, and their respective authorized representatives to
inspect the Equipment, to examine the records or books of account of the
Lessee relating to the Equipment and to discuss the affairs, finances and
accounts of the Lessee with appropriate officers, during normal business
hours, PROVIDED that if an Event of Default shall have occurred and be
continuing, no notice shall be required and any inspection shall be at the
Lessee's expense.
SECTION 4.3. CHANGE IN THE NATURE OF BUSINESS. The Lessee shall not engage
in any business or activity if as a result the general nature of the business
of the Lessee would be changed in any material respect from the general
nature of the business engaged in by the Lessee on the date of this Lease.
SECTION 5. NET LEASE, ETC.
SECTION 5.1. NET LEASE. (a) This Lease shall constitute a net lease, and
it is intended that the Lessee shall pay all costs and expenses of every
character, whether seen or unforeseen, ordinary or extraordinary or
structural or non-structural, in connection with the installation, use,
possession, operation, maintenance, repair and return of the Equipment by the
Lessee, including the costs and expenses particularly set forth in this
Lease.
(b) Any present or future law to the contrary notwithstanding, this
Lease shall not terminate, nor shall the Lessee be entitled to any abatement,
suspension, deferment, reduction, setoff, counterclaim, or defense with
respect to the Rent, nor shall the obligations of the Lessee hereunder be
affected (except as expressly permitted herein) by reason of: (i) any defect
in the condition, merchantability, design, construction, quality or fitness
for use of the Equipment or any part thereof, or the failure of the Equipment
to comply with all Requirements of Law, including any inability to use the
Equipment by reason of such non-compliance; (ii) any damage to, removal,
abandonment, salvage, loss, contamination of, scrapping or destruction of or
any requisition or taking of the Equipment or any part thereof; (iii) any
restriction, prevention or
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MW 1997-1 Trust Equipment Lease
curtailment of or interference with any use or possession of the Equipment or
any part thereof; (iv) any defect in title of or rights to the Equipment or
any Lien on such title or rights or on the Equipment; (v) any change, waiver,
extension, indulgence or other action or omission or breach in respect of any
obligation or liability of or by the Lessor Trustee or any Certificate
Holder; (vi) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceedings relating to
the Lessee, any Guarantor, the Lessor Trustee, any Certificate Holder or any
other Person, or any action taken with respect to this Lease by any trustee
or receiver of the Lessee, any Guarantor, the Lessor Trustee, any Certificate
Holder or any other Person, or by any court in any such proceeding; (vii) any
claim that the Lessee has or might have against any Person, including without
limitation the Lessor Trustee, any Certificate Holder or any vendor,
manufacturer, contractor of or for the Equipment; (viii) any failure on the
part of the Lessor Trustee or any other Person to perform or comply with any
of the terms of this Lease, of any other Operative Agreement or of any other
agreement or any breach of any representation or warranty of, or any act or
omission of the Lessee, any Guarantor, the Lessor Trustee or any Certificate
Holder under this Lease or any of the other Operative Agreements, or any
claims, rights or remedies occurring or arising as a result of any other
business dealings between or among the Lessee or any Guarantor and any of the
Lessor Trustee or any Certificate Holder; (ix) any invalidity or
unenforceability or illegality or disaffirmance of this Lease against or by
the Lessee or any provision hereof or any of the other Operative Agreements
or any provision of any thereof or any lack of right, power or authority of
the Lessee, any Guarantor, the Lessor Trustee or any Certificate Holder to
enter into any Operative Agreement or any of the transactions contemplated
thereby; (x) the impossibility or illegality of performance by the Lessee,
the Lessor Trustee or either of them; (xi) any action by any court,
administrative agency or other Governmental Authority; or (xii) any other
cause or circumstances whether similar or dissimilar to the foregoing and
whether or not the Lessee shall have notice or knowledge of any of the
foregoing. The Lessee's agreement in the preceding sentence shall not affect
any claim, action or right the Lessee may have against the Lessor Trustee or
any Certificate Holder. The parties intend that the obligations of the
Lessee hereunder shall be covenants and agreements that are separate and
independent from any obligations of the Lessor Trustee hereunder or under any
other Operative Agreements, and the obligations of the Lessee shall continue
unaffected unless the obligations shall have been modified or terminated in
accordance with an express provision of this Lease. Without affecting
Xxxxxx's obligation to pay Rent hereunder, Lessee may seek damages for a
breach by the Lessor Trustee of any Certificate Holder of its respective
obligations under this Lease (including, without limitation, Section 4.1) or
any of the other Operative Agreements.
SECTION 5.2. NO TERMINATION OR ABATEMENT. The Lessee shall remain
obligated under this Lease in accordance with its terms and shall not take
any action to terminate, rescind or avoid this Lease (except as provided
herein), notwithstanding any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution, or other proceeding affecting any
Certificate Holder, or
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MW 1997-1 Trust Equipment Lease
any action with respect to this Lease which may be taken by any trustee,
receiver or liquidator of any Certificate Holder or by any court with respect
to any Certificate Holder. The Lessee's obligations hereunder, including,
without limitation, its obligations to pay Periodic Rent for all Equipment
leased hereunder and to pay Supplemental Rent payable hereunder, shall be
unconditional and irrevocable under any and all circumstances and the Lessee
hereby waives, to the extent permitted by law, all right (i) to terminate or
surrender this Lease (except as provided herein) or (ii) to avail itself of
any abatement, suspension, deferment, reduction, setoff, counterclaim or
defense with respect to any Rent. Each Rent payment made pursuant to this
Lease by the Lessee shall be final and the Lessee will not seek to recover
all or any part of such payment from the Lessor Trustee or any Certificate
Holder for any reason whatsoever. If for any reason whatsoever this Lease
shall be terminated in whole or in part by operation of law or otherwise
except as specifically provided herein or as otherwise agreed, the Lessee
nonetheless agrees to pay to the Lessor Trustee, or to whomsoever shall be
entitled thereto, an amount equal to each Rent payment at the time such
payment would have become due and payable in accordance with the terms hereof
had this Lease not been terminated in whole or in part. The obligation of
the Lessee in the immediately preceding sentence shall survive the expiration
or termination of this Lease other than in accordance with its terms. The
Lessee shall remain obligated under this Lease in accordance with its terms
and the Lessee hereby waives, to the extent permitted by law, any and all
rights now or hereafter conferred by statute or otherwise to modify or to
avoid strict compliance with its obligations under this Lease.
Notwithstanding any such statute or otherwise, the Lessee shall be bound by
all of the terms and conditions contained in this Lease.
SECTION 6. LESSEE ACKNOWLEDGMENTS
SECTION 6.1. CONDITION OF THE EQUIPMENT. THE LESSEE ACKNOWLEDGES AND
AGREES THAT IT IS LEASING EACH ITEM OF EQUIPMENT "AS IS" WITHOUT
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY THE LESSOR
TRUSTEE, OR ANY CERTIFICATE HOLDER AND IN EACH CASE SUBJECT TO (A) THE
EXISTING STATE OF TITLE (EXCLUDING LESSOR'S LIENS), (B) THE RIGHTS OF ANY
PARTIES IN POSSESSION THEREOF, (C) ANY STATE OF FACTS WHICH A PHYSICAL
INSPECTION MIGHT SHOW AND (D) VIOLATIONS OF REQUIREMENTS OF LAW WHICH MAY
EXIST ON THE DATE HEREOF OR ON THE CLOSING DATE. NEITHER THE LESSOR TRUSTEE,
NOR ANY CERTIFICATE HOLDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED
TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, SUITABILITY, USE,
CONDITION, DESIGN, OPERATION, OR FITNESS FOR USE OF THE EQUIPMENT (OR ANY
PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT (OR ANY PART THEREOF) AND
NEITHER THE LESSOR TRUSTEE, NOR ANY CERTIFICATE HOLDER SHALL BE LIABLE FOR
ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE EQUIPMENT,
OR ANY PART THEREOF, TO COMPLY WITH ANY REQUIREMENT OF LAW.
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MW 1997-1 Trust Equipment Lease
SECTION 6.2. RISK OF LOSS. During the Lease Term the risk of loss of or
decrease in the enjoyment and beneficial use of the Equipment as a result of
the damage or destruction thereof by fire, the elements, casualties, thefts,
riots, wars or otherwise is assumed by the Lessee, and neither the Lessor
Trustee nor any Certificate Holder shall in any event be answerable or
accountable therefor.
SECTION 7. MARKING
SECTION 7.1. MARKING OF EQUIPMENT. The Lessee shall promptly cause each
Item of Equipment to be plainly, permanently and conspicuously marked by a
metal tag, plate or label affixed thereto, each setting forth the following
legend:
TITLE TO THIS EQUIPMENT IS HELD BY KEYBANK NATIONAL
ASSOCIATION, AS TRUSTEE UNDER MW 1997-1 TRUST SUBJECT TO A
LEASE BY SAID TRUSTEE TO MAIL-WELL I CORPORATION.
The Lessee covenants and agrees to replace any tag, plate or label which may
be removed or destroyed or become illegible and to indemnify each Indemnified
Party against any liability, loss or expense incurred by such Indemnified
Party as a result of the failure to maintain such markings.
SECTION 8. POSSESSION AND USE OF THE EQUIPMENT, ETC.
SECTION 8.1. USE OF THE EQUIPMENT. (a) The Lessee agrees that the
Equipment will be used solely in the conduct of its business and applying
standards of use no lower than the standards applied by the Lessee for other
comparable properties owned or leased by the Lessee. The Lessee shall pay,
or cause to be paid, all charges and costs required in connection with the
use of the Equipment as contemplated by this Lease.
(b) Subject to the terms of Section 12 relating to permitted contests,
the Lessee warrants that (i) the Equipment will at all times be used and
operated under and in compliance with all Requirements of Law and Insurance
Requirements, including the use, operation, maintenance, repair and
restoration thereof, whether or not compliance therewith shall interfere with
the use and enjoyment of the Equipment, (ii) the Lessee shall procure,
maintain and comply with all licenses, permits, orders, approvals, consents
and other authorizations required by Applicable Laws or by any Governmental
Authority for the use, operation, maintenance, repair and restoration of the
Equipment, and (iii) all material used in the operation of the Equipment
shall be compatible with those recommended by the manufacturer's operation
manual.
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MW 1997-1 Trust Equipment Lease
(c) The Lessee agrees that it will not change the location of any Item
of Equipment, unless prior to or concurrently with such change the Lessee
shall have filed, or caused to be filed, Uniform Commercial Code financing
statements (including, without limitation, fixture filings) with respect to
such Item of Equipment in form and substance satisfactory to the Lessor
Trustee in the jurisdiction in which such Item of Equipment is located.
SECTION 8.2. POSSESSION OF THE EQUIPMENT. The Lessee will not, without the
prior written consent of the Lessor Trustee, which consent shall not be
unreasonably withheld, sublease, sub-sublease or otherwise in any manner
deliver, transfer or relinquish possession of any Item of Equipment; PROVIDED
that, so long as no Default or Event of Default hereunder shall have occurred
and be continuing, the Lessee may, at any time, without the prior consent of
the Lessor Trustee deliver possession of any Part or portion of any Item of
Equipment to the manufacturer, contractor or supplier designated by the
Lessee for purposes of realizing the benefits of any warranty or for testing
or other similar purposes or to any Person for service, repair, maintenance
or overhaul work on such Item of Equipment or any Part thereof or for
alterations or modifications in or additions to such Item of Equipment to the
extent required or permitted by the terms of Section 9 or Section 10.
SECTION 8.3. LANDLORD WAIVERS. If at any time an Item of Equipment is
located at a Site that is not owned by the Lessee, the Lessee shall promptly
deliver to the Lessor Trustee a Landlord Waiver executed by the owner of such
Site.
SECTION 9. MAINTENANCE AND REPAIR; RETURN
SECTION 9.1. REPAIRS AND MAINTENANCE. The Lessee, at the Lessee's own cost
and expense, shall (a) maintain, service and repair the Equipment in order to
keep the Equipment in as good repair, good operating condition and working
order as when it first became subject to this Lease and in compliance with
all of the manufacturer's specifications, (b) in such condition as the Lessee
would, in the prudent management of its own or leased properties, maintain,
service and repair similar property owned or leased by the Lessee and, in any
event, to the extent required to maintain the Equipment in good repair and in
compliance with all Requirements of Law and Insurance Requirements,
noncompliance with which might result in the imposition of a penalty on any
Indemnified Party or materially adversely affect the Equipment or the
operation thereof and (c) have in full force and effect during the Lease Term
a maintenance program to maintain, service and repair the Equipment so as to
keep the Equipment in as good operating condition and working order as it was
when it first become subject to this Lease and in compliance with
manufacturer's specifications.
SECTION 9.2. MAINTENANCE COSTS AND WARRANTIES. The Lessee agrees to pay
all costs, expenses, fees and charges incurred in connection with (i) the use
and operation of each Item of Equipment
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MW 1997-1 Trust Equipment Lease
by the Lessee during the Lease Term as to such Item of Equipment, including
but not limited to repairs, maintenance, storage and servicing as provided in
Section 10 and this Section 9 and (ii) the preserving and protecting of such
Item of Equipment, and the repairing, maintaining and servicing of the
Equipment as provided in Section 10 and this Section 9, during the period
after a termination of the Lessee's right of possession of such Item of
Equipment pursuant to Section 16.2 and prior to the interest of the Lessor
Trustee in such Item of Equipment being leased or sold to a third person by
the Lessor Trustee (other than one or more Certificate Holders or any
affiliate thereof). So long as no Event of Default has occurred and is
continuing, the Lessor Trustee hereby constitutes the Lessee the agent and
attorney-in-fact of the Lessor Trustee for the purpose of exercising and
enforcing, and with full right, power and authority to exercise and to
enforce, all of the right, title and interest of the Lessor Trustee in, under
and to the warranties and obligations of any supplier of goods or services in
respect of the Equipment and agrees to execute and deliver such further
instruments as may be necessary to enable the Lessee to obtain goods or
services furnished for the Equipment by said suppliers. The Lessor Trustee
shall have no other obligation or duty with respect to any of such matters.
Any proceeds obtained by the Lessee from the enforcement of the warranties
and obligations of any supplier of goods or services in respect of the
Equipment shall be held by the Lessee and applied from time to time to the
repair and maintenance of the Equipment, and any balance thereof remaining at
the expiration of the Lease Term and satisfaction of all of the Lessee's
obligations hereunder shall be paid over to the Lessee.
SECTION 9.3. LESSOR TRUSTEE NOT OBLIGATED TO MAINTAIN OR REPAIR. The
Lessor Trustee shall not under any circumstances be required to make any
repairs, replacements, Alterations or renewals of any nature or description
to the Equipment, make any expenditure whatsoever in connection with this
Lease or maintain the Equipment in any way. The Lessee waives any right to
(i) require the Lessor Trustee to maintain or repair all or any part of the
Equipment or (ii) make repairs at the expense of the Lessor Trustee pursuant
to any Requirement of Law, contract, agreement, or covenant, condition or
restriction in effect at any time during the Lease Term.
SECTION 9.4. RETURN. (a) Prior to the Lessee notifying the Lessor Trustee
of the Lessee's intent to return the Equipment or its election to exercise
its option to sell the Equipment pursuant to Section 18.3, the Lessee must
demonstrate that the Equipment can perform at its original performance
specifications under full test loads with regard to speed, register control,
utility and quality of printed matter. An outside printing expert selected
by the Lessor Trustee and paid for by the Lessee (the "PRINTING EXPERT")
shall perform an Equipment inspection to verify the physical condition of the
Equipment and shall supervise the demonstration. The Printing Expert shall
inspect printed material coming off the Equipment for its saleability. If it
is determined that improvements are needed to make the equipment perform
according to the manufacturer's original performance specifications, the
Lessee shall make those improvements under the supervision of the original
manufacturer.
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(b) Upon the expiration or earlier termination of the Lease Term, the
Lessee, at its sole expense, shall de-install, crate and return the Equipment
to the Lessor Trustee by delivering such Equipment F.A.S. or F.O.B. to such
location or such carrier (packed for shipping) as the Lessor Trustee shall
specify. The Equipment shall be removed by a licensed erector/rigger
specializing in the crating, removal, transportation and reassembly of the
Equipment, and deinstallation shall be performed in a prescribed manner
including proper marking, and labeling of all electrical wires and
components. The Lessee agrees that the Equipment, when returned, shall be in
the condition required by Section 9.1 hereof. Accordingly, if, during the
Lease Term, the Equipment has not been given all scheduled maintenance and
overhauls and all repairs that are necessary to continue operating the
Equipment at normal commercial conditions in accordance with Section 9.1,
then the Lessee shall cause such restorative or repair work to be performed
on the Equipment as necessary to bring the Equipment into the condition that
the Equipment would have been in, had the Lessee complied with Section 9.1
throughout the Lease Term. All components of the Equipment shall have been
properly serviced, following the manufacturer's written operating and
servicing procedures, such that the Equipment is eligible for a
manufacturer's standard, full service maintenance contract without the Lessor
Trustee's incurring any expense to repair or rehabilitate the Equipment. If,
during the Lease Term, replacement of all parts and components has not been
made in accordance with Section 10.1 so that the loss in operating
efficiency, value, utility and remaining useful life of the Items of
Equipment is more than that expected from normal wear and tear or as
reflected in the initial Appraisal, then the Lessee, at its expense, shall
cause such repair and restorative work to be performed on the Items of
Equipment as is necessary to bring the Items of Equipment into the condition
that the Items of Equipment would have been in had such replacement of parts
and components been made. If, in the opinion of the Lessor Trustee, any Item
of Equipment fails to meet the standards set forth above, the Lessee agrees
to pay on demand all costs and expenses incurred in connection with repairing
such Item of Equipment and restoring it so as to meet such standards,
assembling and delivering such Item of Equipment. If the Lessee fails to
return any Item of Equipment as required hereunder, then, all of the Lessee's
obligations under this Lease (including, without limitation, the Lessee's
obligation to pay Rent for such Item of Equipment at the rental then
applicable under this Lease) shall continue in full force and effect until
such Item of Equipment shall have been returned in the condition required
hereunder.
(c) One hundred eighty (180) days prior to the Expiration Date, the
Lessee shall give the Lessor Trustee an inventory and listing of all the
Items of Equipment to include full description of such Items of Equipment,
including make, model, and serial number and any other identifying engine or
part classification and including the location of such Items of Equipment and
service records; also, from that notification date forward until the
Expiration Date the Lessee will be limited to 5,000,000 impressions per
printing press on all printing presses.
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(d) Thirty (30) days after receipt of written notice from the Lessee of
its intent to return the Equipment or its election to exercise its option to
sell the Equipment pursuant to Section 18.3, the Lessee shall provide to the
Lessor Trustee the following documents in English: (i) one set per Item of
Equipment (or group of related Items of Equipment) of installation
instructions/manuals, service manuals, and operating manuals relating to such
Items of Equipment (including replacements and/or additions thereto, such
that all documentation is completely up to date) and (ii) one set per Item of
Equipment (or group of related Items of Equipment) of documents, detailing
equipment configuration, operating requirements and maintenance records of
such Item of Equipment, including, without limitation, all books, operating
data logs, inspection and maintenance logs, tools and spare parts and
modification and overhaul records which shall be kept with accurate records
of all maintenance (including without limitation, lubrication service, parts
removal/replacement, inspections etc.) and shall indicate the dates and times
of service and be signed by the appropriate authority.
(e) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall provide that all Items of Equipment are at half-time condition
between scheduled significant maintenance events and that half life remains
on every and all life limited or time cycle parts and components and will be
in such condition that such Items of Equipment may be immediately installed
and placed into use in an operating environment for a minimum of twelve
months of similar use to that under which they were originally designed and
used during the original and subsequent lease terms.
(f) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall properly remove all installed markings which are removable
without damage to the Items of Equipment and not necessary for the operation,
maintenance or repair of the Items.
(g) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall ensure all Items of Equipment shall have been repaired and
anything that falls outside the manufacturer specified operating limits of
the Item of Equipment and conform to all Environmental Protection Agency
regulations and Requirements of Laws and that all certificates are current or
require compliance within the next twelve months from the date of return and
have been complied with and that all Parts are manufactured to the approved
maintenance program and accepted industry standards for their type and use.
The Lessee will pay all recertification fees which are required.
(h) Upon sale of the Items of Equipment to a third party or return to
the Lessor Trustee, the Lessee shall provide transportation and assume all
costs to send to location(s) of new owner(s) and if required, store the Items
of Equipment for a period of up to 365 days at the Lessee's expense. During
the storage period, the Lessee will pay for all insurance coverages and
periodic testing as required.
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(i) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall cause all Liens (other than Lessor's Liens) on the Items of
Equipment to be extinguished.
(j) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall cause there to be no subleases of the Items of Equipment.
(k) The Lessee shall ensure that any Equipment or Parts in storage
prior to the return be in a storage configuration, including preparation for
storage, in accordance to the manufacturer's direction, Environmental
Protection Agency requirements and other Requirements of Law and that no
storage environment has been incurred which will cause the value to diminish.
(l) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall ensure all Items of Equipment are free from contamination and
corrosion and have no untreated or uncorrected corrosion.
(m) Upon the expiration or earlier termination of the Lease Term, the
Lessee shall re-paint and clean all Items of Equipment to restore to an
as-new appearance.
(n) With respect to each Item of Equipment, the Lessee shall ensure
that, (i) within six (6) months prior to the expiration or earlier
termination of the Lease Term, the drive side (gear side) of each Item of
Equipment shall have been inspected and serviced to verify the existence of
undue wear, (ii) within six (6) months prior to the expiration or earlier
termination of the Lease Term, the sequence startup shall have been checked
and serviced to verify that the starting controller is working properly,
(iii) within twelve (12) months prior to the expiration or earlier
termination of the Lease Term, the rollers shall have been removed, serviced
and resurfaced, (iv) within one (1) month prior to the expiration or earlier
termination of the Lease Term, the blankets shall have been changed, and (v)
at least once every twelve (12) months each printing unit shall be broken
down, serviced and its oil changed.
(o) In addition to all other rights of the Lessor Trustee under the
Lease, the Lessor Trustee shall have the right to attempt to resell or
auction the Equipment from the Lessee's facility with the Lessee's full
cooperation and assistance, for a period of one hundred eighty (180) days
from the end of the Lease Term. The Lessee agrees to pay the reasonable
costs and expenses of such sale or auction, and agrees that the Equipment
shall remain capable of operation during this period. The Lessee shall
provide adequate electrical power, lighting, heat, water and compressed air
sufficient to allow for normal maintenance and for demonstrations of the
Equipment to any potential buyer.
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If the Lessor Trustee shall, pursuant to this Lease or any other
Operative Agreement, rightfully demand possession of the Items of Equipment
and cessation of the Lessee's rights in such Items of Equipment pursuant to
this Lease, the Lessee, at its expense, shall forthwith comply with this
Section 9.4 with respect to all Items of Equipment, and deliver exclusive
possession of such Items of Equipment to the Lessor Trustee, subject to the
Lessee's obligations under Sections 9 and 10.
SECTION 10. MODIFICATIONS, ETC.
SECTION 10.1. REPLACEMENT OF PARTS. The Lessee, at its own cost and expense
and within a reasonable period of time, shall replace any part of any Item of
Equipment (herein for the purpose of this Section 10.1, a "PART") that
becomes worn out, lost, stolen, destroyed, or otherwise rendered permanently
unfit or unavailable for use (whether or not such replacement is covered by
the aforesaid maintenance agreement), with a replacement part of the same
manufacture, value, remaining useful life and utility as the replaced part
immediately preceding the replacement (assuming that such replaced part is in
the condition required by this Lease). Such replacement part shall be free
and clear of all Liens. Notwithstanding the foregoing, this paragraph shall
not apply to any Casualty with respect to any Item of Equipment.
Title to any Parts at any time removed from any Item of Equipment
continue to be held by the Lessor Trustee, no matter where such Parts are
located, until such time as such Parts shall be replaced by Parts which have
been incorporated or installed in or attached to such Item of Equipment and
which meet the requirements for replacement Parts specified above.
Immediately upon any such replacement Part becoming incorporated or installed
in or attached to any Item of Equipment as above provided, without further
act, title to the removed Part shall thereupon vest in the Lessee or such
person as shall be designated by the Lessee, free and clear of all rights of
the Lessor Trustee.
SECTION 10.2. REQUIRED ALTERATIONS. The Lessee, at its sole cost and
expense, shall, with reasonable promptness, make such alterations,
modifications and additions (herein for the purpose of this Section 10
collectively called "ALTERATIONS") to each Item of Equipment as may be
required from time to time to meet any Requirements of Law or of any Federal,
state or local governmental authority having jurisdiction.
SECTION 10.3. OPTIONAL ALTERATIONS. The Lessee at its own expense may from
time to time make such Alterations to any Item of Equipment as the Lessee may
deem desirable in the proper conduct of its business and which are not
inconsistent with the continuing operation of such Item of Equipment in
accordance with its original functional purpose; PROVIDED, that any such
Alteration made by the Lessee pursuant to this paragraph shall not diminish
the value or utility of any Item of Equipment to the Lessor Trustee below the
value and utility thereof to the Lessor
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Trustee immediately prior to such Alteration. At the Lessor Trustee's
request, the Lessee will remove any readily removable Alterations prior to
the end of the Lease Term at the Lessee's sole cost and expense.
SECTION 10.4. TITLE TO PARTS. (a) Title to all Parts (including
Alterations) incorporated or installed in or attached to any Item of
Equipment shall without further act vest in the Lessor Trustee and shall be
deemed to constitute a part of such Item of Equipment and be subject to this
Lease in the following cases:
(i) such Part is in replacement of or in substitution for, and not in
addition to, any Part constituting a part of such Item of Equipment at the
time of the acceptance thereof hereunder or any such original part;
(ii) such Part is required to be incorporated or installed in or
attached to the Equipment pursuant to the terms of Section 9.1, 10.1 or
10.2; or
(iii) such Part cannot be readily removed from such Item of
Equipment without materially damaging such Item of Equipment or diminishing
or impairing the value or utility of such Item of Equipment.
(b) Any other Part that is not within the categories set forth in
clauses (i), (ii) or (iii) above, and that is not removed from any Item of
Equipment by the Lessee prior to the termination of this Lease as to such
Item of Equipment shall become the property of the Lessor Trustee.
SECTION 11. WARRANTY OF TITLE
SECTION 11.1. WARRANTY OF TITLE. (a) The Lessee agrees that except as
otherwise provided herein and subject to the terms of Section 12 relating to
permitted contests, the Lessee shall not directly or indirectly create or
allow to remain, and shall promptly discharge at its sole cost and expense,
any Lien (other than any Lessor's Lien), defect, attachment, levy, title
retention agreement or claim upon the Equipment or any Lien, attachment, levy
or claim with respect to the Rent or with respect to any amounts held by the
Lessor Trustee or any Certificate Holder pursuant to the Operative
Agreements, other than Permitted Liens.
(b) Nothing contained in this Lease shall be construed as constituting
the consent or request of the Lessor Trustee or any Certificate Holder,
expressed or implied, to or for the performance by any contractor, mechanic,
laborer, materialman, supplier or vendor of any labor or services or for the
furnishing of any materials for any alteration, addition, repair or
demolition of or to the Equipment or any part thereof. NOTICE IS HEREBY
GIVEN THAT NEITHER THE LESSOR
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TRUSTEE NOR ANY CERTIFICATE HOLDER IS OR SHALL BE LIABLE FOR ANY LABOR,
SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO THE LESSEE, OR TO
ANYONE HOLDING THE EQUIPMENT OR ANY PART THEREOF THROUGH OR UNDER THE LESSEE,
AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF THE LESSOR TRUSTEE, OR
ANY CERTIFICATE HOLDER IN AND TO THE EQUIPMENT.
SECTION 12. PERMITTED CONTESTS
SECTION 12.1. PERMITTED CONTESTS IN RESPECT OF APPLICABLE LAW. If, to the
extent and for so long as, a test, challenge, appeal or proceeding for review of
any Applicable Law relating to the Equipment shall be prosecuted diligently and
in good faith in appropriate proceedings by the Lessee, the Lessee shall not be
required to comply with such Applicable Law but only if and so long as any such
test, challenge, appeal or proceeding shall not, in the reasonable opinion of
the Lessor Trustee, involve (a) any risk of criminal liability being imposed on
the Lessor Trustee or any Certificate Holder or (b) any risk of (i) foreclosure,
forfeiture or loss of any Item of the Equipment, or any material part thereof,
or (ii) the nonpayment of Rent or (c) any substantial risk of (i) the sale of,
or the creation of, any Lien (other than a Permitted Lien) on any part of the
Equipment, (ii) civil liability being imposed on the Lessor Trustee, any
Certificate Holder, or the Equipment, or (iii) enjoinment of, or interference
with, the use, possession or disposition of the Equipment in any material
respect.
Neither the Lessor Trustee nor any Certificate Holder will be required to
join in any proceedings pursuant to this Section 12.1 unless a provision of any
Applicable Law requires that such proceedings be brought by or in the name of
such party; and in that event such party will join in the proceedings or permit
them or any part thereof to be brought in its name if and so long as the Lessee
pays all related expenses and indemnifies such party with respect to such
proceedings.
SECTION 13. INSURANCE
SECTION 13.1. REQUIRED INSURANCE COVERAGES AND LIMITS. The Lessee agrees that
it will at its own cost and expense at all times during the Lease Term:
(a) keep each Item of Equipment insured against all risks of physical
loss or damage and against all such other risks as are insured against by
the Lessee with respect to property of a similar character owned or leased
by the Lessee on terms and in amounts that are no less favorable than
insurance covering other similar properties owned by the Lessee and that
are in accordance with normal industry practices, PROVIDED that such
insurance shall not be less than the Stipulated Loss Value of such Item of
Equipment as of the next preceding Scheduled Payment Date, and
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(b) maintain comprehensive general public liability insurance with
respect to the Equipment including liability coverage for products
liability and contractual liability, which coverage shall be against damage
because of bodily injury, including death, or damage to property of others,
such insurance to be on terms and in amounts that are no less favorable
than insurance maintained by the Lessee with respect to similar properties
that it owns and that is in accordance with normal industry practice,
PROVIDED that such insurance shall not be less than $1,000,000 per
occurrence, $20,000,000 in the aggregate.
All insurance policies required hereunder shall (1) require 30 days prior
written notice of cancellation or material change in coverage to the Lessor
Trustee; (2) name the Lessor Trustee and the Certificate Holders as
additional insureds and, under the property insurance policies, and name the
Lessor Trustee as sole loss payee; (3) be considered primary insurance
without any right of contribution from other policies held by the Lessor
Trustee or the Certificate Holders; (4) waive any right of subrogation
against the Lessor Trustee and the Certificate Holders; (5) waive the right
of such insurers to any set-off, counterclaim or other deduction, whether by
attachment or otherwise, in respect of any liability of the Lessor Trustee
and the Certificate Holders; (6) specify that the Lessor Trustee and the
Certificate Holders shall not be liable for any premiums or deductibles with
respect to such insurance covered thereby; (7) be in full force and effect
throughout any geographical areas in which any Item of Equipment is located;
and (8) contain breach of warranty provisions providing that, in respect of
the interests of the Lessor Trustee and the Certificate Holders in such
policies, the insurance shall not be invalidated by any action or inaction of
any Person (other than the Lessor Trustee or the Certificate Holders, as the
case may be) and shall insure the Lessor Trustee and the Certificate Holders
regardless of any breach or violation of any warranty, declaration or
condition contained in such policies by any Person (other than the Lessor
Trustee and the Certificate Holders).
The Lessee agrees to effect all insurance provided for in this Section
13 with good and responsible insurance companies that are financially sound
and solvent and otherwise reasonably appropriate considering the amount and
type of insurance being provided by such companies. No such policy shall
contain a provision (i) under which the Lessee is a coinsurer, or (ii)
relieving the insurer thereunder of liability for any loss by reason of the
existence of other policies of insurance covering the Equipment against the
peril involved, whether collectible or not, or by reason of the breach or
violation by the Lessee of any warranties, declarations or conditions
contained in such policies. Any such insurance may be carried under blanket
policies maintained by the Lessee so long as such policies otherwise comply
with the provisions of this Section 13.1. If general public liability
insurance shall be carried under any blanket policy which is subject to
aggregate annual claim limitations, the Lessee shall keep the Lessor Trustee
advised from time to time of the amount of any such limitations and the
amounts of claims which reduce the available policy limits.
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SECTION 13.2. ADJUSTMENT AND PAYMENT OF LOSSES. The loss, if any, under any
casualty insurance required to be carried by Section 13.1(a) shall be
adjusted with the insurance companies by the Lessee, or otherwise collected,
including the filing of proceedings deemed advisable by the Lessee, subject
to the approval of the Lessor Trustee if the loss exceeds $1,000,000. The
loss so adjusted shall be paid to the Lessor Trustee. All such policies
shall provide that the loss, if any, under such insurance shall be adjusted
and paid as provided in this Lease. Losses covered by liability insurance
shall be adjusted by and paid to the Person suffering such loss.
SECTION 13.3. EVIDENCE OF INSURANCE. On or prior to the Closing Date with
respect to each Item of Equipment, and thereafter not less than 15 days prior
to the expiration dates of the expiring policies, the Lessee shall deliver to
the Lessor Trustee and the Certificate Holders certificates of insurance for
the insurance maintained pursuant to this Section 13 together with a report
from the Lessee's insurance broker certifying that such insurance complies
with the terms hereof. Each such certificate or other evidence of insurance
shall identify the insurance carrier, the type of insurance, the coverage
limits, annual aggregate limits, if any, and the policy term.
SECTION 13.4. APPLICATION OF INSURANCE PROCEEDS. All insurance proceeds
from policies required to be maintained hereunder received by or payable to
the Lessor Trustee on account of any damage to or destruction of any Item of
Equipment or any part thereof (less the actual costs, fees and expenses
incurred in the collection thereof) shall be applied or dealt with as follows:
(i) All such proceeds actually received on account of any such damage
or destruction other than a Casualty with respect to an Item of Equipment
shall be paid over to the Lessee or as it may direct from time to time as
restoration, repair and replacement ("RESTORATION") of such Item of
Equipment progress to pay (or reimburse the Lessee for) the cost of
Restoration, if the amount of such proceeds received by the Lessor Trustee,
together with such additional amounts, if any, theretofore expended by the
Lessee out of its own funds for Restoration are sufficient to pay the
estimated cost of completing Restoration, but only upon a written
application of the Lessee accompanied by an Officer's Certificate of the
Lessee showing in reasonable detail the nature of Restoration, that such
Restoration is intended to restore such Item of Equipment to its value and
utility prior to such damage or destruction (assuming that such Item of
Equipment was of the value and utility and in the condition and repair
required by the terms of this Lease), the actual cash expenditures made to
date for Restoration, the estimated cost to complete Restoration and
stating that no Default or Event of Default has occurred and is continuing
under this Lease. Upon the written request of the Lessee, accompanied by
evidence satisfactory to the Lessor Trustee that Restoration has been
completed and the costs thereof paid in full, that such Item of Equipment
has been restored to its value and utility prior to such damage or
destruction (assuming that such Item of Equipment was of the value and
utility and in the condition and repair required by
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the terms of this Lease) and that there are no mechanics' or similar liens
for labor or materials supplied in connection therewith, the balance, if
any, of such proceeds shall be paid over or assigned to the Lessee or as
it may direct.
(ii) All such proceeds received or payable on account of a Casualty
with respect to an Item of Equipment shall be paid over or assigned to the
Lessee or as it may direct upon termination of this Lease with respect to
such Item of Equipment and, if the Lessee elects to perform the option set
forth in Section 14.1(a), receipt by the Lessor Trustee of the Stipulated
Loss Value of such Item of Equipment and all other payments due hereunder.
SECTION 13.5. DEDUCTIBLES AND SELF-INSURANCE. So long as no Event of
Default shall have occurred and be continuing, the Lessee may from time to
time self-insure or maintain deductible provisions with respect to the risks
required to be insured against pursuant to clauses (a) and (b) of Section
13.1, in such reasonable amounts as are then applicable to similar equipment
owned or leased by the Lessee but in no case shall such self-insurance and
deductibles with respect to each of clause (a) and clause (b) exceed the
first $100,000 of the coverage specified therein.
SECTION 13.6. INSURANCE FOR OWN ACCOUNT. Nothing in this Section 13 shall
limit or prohibit the Lessor Trustee, any Certificate Holder or the Lessee
from obtaining additional insurance for its own account and any proceeds
payable thereunder shall be payable in accordance with the insurance policy
relating thereto, PROVIDED that no such insurance may be obtained which would
limit or otherwise adversely affect the coverage of any insurance required to
be maintained pursuant to this Section 13.
SECTION 14. CASUALTY OCCURRENCE
SECTION 14.1. CASUALTY OCCURRENCE. Upon the occurrence of a Casualty with
respect to an Item of Equipment during the Lease Term, the Lessee shall
forthwith (and in any event within 10 days after such occurrence) give the
Lessor Trustee written notice of such Casualty and within 20 days after such
occurrence shall give the Lessor Trustee written notice of its election,
subject to the terms hereof, to perform one of the following options (it
being agreed that if the Lessee shall not have given the Lessor Trustee
notice of such election within such time, the Lessee shall be deemed to have
elected to perform the option set forth in the following clause (a)),
PROVIDED that the Lessee shall not have the right to select the option set
forth in clause (b) if a Default or Event of Default shall have occurred and
be continuing:
(a) Except as otherwise provided in the immediately succeeding
sentence, on the next Scheduled Payment Date which is at least 30 days
after the occurrence of such Casualty (the "LOSS PAYMENT DATE"), during
which time the Lessee's obligation to pay
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Rent shall continue, the Lessee shall pay to the Lessor Trustee in
immediately available funds an amount equal to the Stipulated Loss
Value of such Item of Equipment as of such Loss Payment Date together
with any Rent due and payable on or prior to the Loss Payment Date with
respect to such Item of Equipment. If a Loss Payment Date shall fall
on a day other than a Business Day, then the amount otherwise due
hereunder on such day shall be remitted on or before the Business Day
next preceding the Loss Payment Date.
(b) Within 30 days after the date of occurrence of such Event of
Loss, during which time the Lessee's obligation to pay Rent shall continue,
the Lessee shall convey or cause to be conveyed to the Lessor Trustee in
accordance with Section 14.2 hereof, to be leased by the Lessor Trustee to
the Lessee hereunder in replacement of such Item of Equipment, title to
Replacement Equipment, such Replacement Equipment to be free and clear of
all Liens other than Permitted Liens and to have a value, utility and
remaining economic useful life at least equal to, and to be in as good
operating condition as, the Item of Equipment so replaced (assuming such
Item of Equipment was of the value, remaining economic useful life and
utility and in the condition and repair required by the terms of this Lease
and had suffered no Casualty). The Lessee shall pay on the next Scheduled
Payment Date an amount computed in the manner specified in the first
sentence of clause (a) of this Section 14.1 if no such replacement occurs
by the end of the 30 day period referred to above.
Notwithstanding such Casualty, the Lessee's obligation to pay Rent hereunder
due and payable as to such Item of Equipment on or prior to such Loss Payment
Date shall continue.
In the event of a payment in full of the Stipulated Loss Value for an
Item of Equipment and other Rent payable on or prior to the Loss Payment Date
all as provided for in the immediately preceding clause (a), (x) this Lease
with respect to such Item of Equipment and the obligations of the Lessee with
respect to such Item of Equipment to pay Periodic Rent and Supplemental Rent
(except for Supplemental Rent obligations surviving pursuant to Section 6 of
the Participation Agreement or which have otherwise accrued but not been paid
as of the date of such payment) shall terminate; (y) any remaining insurance
proceeds (other than proceeds of policies maintained by the Lessor Trustee
for its own account), including any investment interest thereon, shall be
promptly paid over to the Lessee; and (z) the Lessor Trustee shall convey to
the Lessee, at the Lessee's cost and expense, all of the Lessor Trustee's
right, title and interest, as-is, where-is, without recourse or warranty,
express or implied except for a warranty against the Lessor's Liens in and to
such Item of Equipment, including all claims for damage to such Item of
Equipment against third persons arising from the subject Casualty (unless any
insurance carrier requires that such claims be assigned to it).
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SECTION 14.2. CONVEYANCE OF REPLACEMENT EQUIPMENT. Prior to or at the time
of any conveyance of any Replacement Equipment pursuant to Section 14.1(b) or
Section 15.1, the Lessee, at its own expense, will furnish, or cause to be
furnished, the Lessor Trustee with the following documents which shall have
been duly authorized, executed and delivered by the respective parties
thereto and shall be in full force and effect on the date of such conveyance:
(i) a full warranty bill of sale, in form and substance satisfactory
to the Lessor Trustee, covering such Replacement Equipment and executed by
the owner thereof in favor of the Lessor Trustee;
(ii) a Lease Supplement covering the Replacement Equipment;
(iii) such evidence of compliance with the insurance provisions of
Section 13 with respect to such Replacement Equipment, as the Lessor
Trustee may reasonably request, including an independent insurance broker's
report (stating the opinion of such insurance broker that such insurance
complies with the terms of the Lease) with certificates of insurance;
(iv) an Officer's Certificate of the Lessee certifying that such
Replacement Equipment complies with this Section 14.2, that, upon such
conveyance, the Lessor Trustee will acquire good title to such Replacement
Equipment, free and clear of all Liens other than Permitted Liens, that
such Replacement Equipment will be leased hereunder to the same extent as
the Item of Equipment replaced thereby or the substituted Item of
Equipment, as the case may be, and that, upon consummation of such
replacement or substitution, no Default or Event of Default will exist
hereunder;
(v) an opinion of the Lessee's counsel (and such other opinions or
evidence of title as the Lessor Trustee or its counsel may reasonably
request), to the effect that, upon such conveyance, the Lessor Trustee will
acquire good title to such Replacement Equipment, free and clear of all
Liens other than Permitted Liens, and that such Replacement Equipment will
be leased hereunder to the same extent as the Item of Equipment replaced
thereby or the substituted Item of Equipment, as the case may be;
(vi) copies of filed Uniform Commercial Code financing statements
(including, without limitation, fixture filings) with respect to such
Replacement Equipment, which financing statements shall reflect the Lessee
as Debtor and the Lessor Trustee as Secured Party and shall have been filed
on or before the date of conveyance in the jurisdictions in which such
Replacement Equipment is located and in which the Lessee is located;
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(vii) Landlord Waivers, if necessary, with respect to the Site or
Sites on which the Replacement Equipment is located; and
(viii) such documents, opinions and evidence with respect to the
Lessee as the Lessor Trustee, or its counsel, may reasonably request in
order to establish the consummation of the transactions contemplated by
this Section 14.2, the taking of all corporate proceedings in connection
with and compliance with the conditions set forth in this Section 14.2, in
each case in form and substance satisfactory to the Lessor Trustee.
The Lessee further agrees to take such further action as the Lessor Trustee
may reasonably request with respect to such Replacement Equipment including,
without limitation, any actions required to establish, perfect and protect the
interest of Lessor Trustee in such Replacement Equipment (including, without
limitation, the filing of additional Uniform Commercial Code financing
statements).
Upon full compliance by the Lessee with the terms of this Section 14.2, the
Lessor Trustee shall convey to the Lessee, at the Lessee's cost and expense, all
of the Lessor Trustee's right, title and interest, as-is, where-is, without
recourse or warranty, express or implied except for warranty against Lessor's
Liens, in and to such Item of Equipment with respect to which the subject
Casualty occurred, including all claims for damage to such Item of Equipment
against third persons arising from any Casualty (unless any insurance carrier
requires that such claims be assigned to it), or the substituted Item of
Equipment, as the case may be. No Casualty or substitution with respect to an
Item of Equipment under the circumstances contemplated by the terms of this
Section 14.2 shall result in any reduction in Rent or the Lessee's obligation to
pay Rent hereunder.
SECTION 14.3. APPLICATION OF PAYMENTS. Any payments on account of a Casualty
(other than insurance proceeds or other payments the application of which is
provided for in this Section 14 or elsewhere in this Lease, as the case may be)
received at any time by the Lessor Trustee or by the Lessee from any Person will
be applied as follows:
(A) if such payments are received with respect to an Item of
Equipment and the Lessee shall have elected (or be deemed to have elected)
the option set forth in Section 14.1(a), so much of such payments as shall
not exceed the Stipulated Loss Value required to be paid by the Lessee
pursuant to said Section 14.1(a) shall be applied in reduction of the
Lessee's obligation to pay such Stipulated Loss Value to the extent not
already paid by the Lessee, and, to the extent already paid by the Lessee
and if no Default or Event of Default exists, shall be applied to reimburse
the Lessee for its payment of such Stipulated Loss Value and the balance,
if any, of such payment remaining thereafter shall be paid to the Lessee;
and
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(B) if such payments are received with respect to an Item of
Equipment and the Lessee shall have elected the option set forth in
Section 14.1(b), such payments shall be paid over to, or retained by, the
Lessor Trustee for payment to the Lessee at such time as the Lessee shall
have fully performed the terms of Section 14.2 with respect to the Casualty
for which such payments are made;
SECTION 14.4. CERTAIN GOVERNMENT REQUISITIONS. In the event that during the
Lease Term the use of any Item of Equipment is requisitioned or taken by any
Governmental Authority under the power of eminent domain or otherwise under
circumstances which do not constitute a Casualty in respect thereof, the
Lessee's duty to pay Periodic Rent and Supplemental Rent for such Item of
Equipment shall continue for the duration of such requisition or taking.
Unless a Default or Event of Default shall have occurred and be continuing,
the Lessee shall be entitled to receive and to retain for its own account all
sums payable for any such period by such Governmental Authority as
compensation for such requisition or taking of possession. If a Default or
Event of Default shall have occurred and be continuing, the Lessee shall be
deemed to the extent of any such compensation so received to be the agent of
the Lessor Trustee in collecting and receiving the same and shall segregate
and hold in trust and promptly remit any such compensation so received to the
Lessor Trustee for crediting against any sums then due and owing hereunder to
the Lessor Trustee, its successors and assigns.
SECTION 14.5. APPLICATION OF PAYMENTS FROM GOVERNMENTAL AUTHORITIES FOR
REQUISITION OF TITLE. The Lessor Trustee shall receive the entire amount
payable by any governmental authority or instrumentality or agency thereof
with respect to a Casualty resulting from the condemnation, confiscation or
seizure of, or requisition of title to or use of any Item of Equipment. Such
amount, after deducting all expenses, including attorneys' fees, incurred by
the Lessor Trustee in or as a result of such condemnation proceedings (the
"NET CONDEMNATION AWARD") shall be applied promptly as follows: so much of
such payments as shall not exceed the Stipulated Loss Value of such Item of
Equipment required to be paid by the Lessee pursuant to Section 14.1(a) shall
be applied in reduction of the Lessee's obligation to pay such Stipulated
Loss Value to the extent not already paid by the Lessee, and, to the extent
already paid by the Lessee and if no Default or Event of Default exists,
shall be applied to reimburse the Lessee for its payment of such Stipulated
Loss Value. The balance, if any, of such payments shall be paid over to the
Lessee.
SECTION 14.6. APPLICATION OF PAYMENTS DURING EXISTENCE OF DEFAULT. Any
amount referred to in this Section 14 or Section 13 hereof which is payable
to the Lessee shall not be paid to the Lessee, or, if it has been previously
paid directly to the Lessee, shall be held in trust by the Lessee and shall
be promptly paid over to the Lessor Trustee, if at the time of such payment a
Default or Event of Default shall have occurred and be continuing, and held
by the Lessor Trustee as security for the obligations of the Lessee under
this Lease and applied against the
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Xxxxxx's obligations hereunder as and when due. At such time as there shall
not be continuing any such Default or Event of Default such amount, to the
extent not theretofore so applied to the Lessee's obligations hereunder,
shall be paid over to the Lessee.
SECTION 15. SUBSTITUTION OF EQUIPMENT
SECTION 15.1. SUBSTITUTION OF EQUIPMENT. Subject to each of the provisions
of this Section 15.1, so long as no Default or Event of Default shall have
occurred and be continuing, on any Scheduled Payment Date, the Lessee may, at
its option, upon at least 30 days' advance written notice to the Lessor
Trustee, convey or cause to be conveyed to Lessor Trustee in accordance with
Section 14.2 hereof, to be leased by the Lessor Trustee to Lessee hereunder
in substitution for any Item of Equipment, title to Replacement Equipment,
such Replacement Equipment to be free and clear of all Liens other than
Permitted Liens, to have a value, utility and remaining economic useful life
at least equal to, and to be in as good operating condition as, the
substituted Item of Equipment (assuming such Item of Equipment was of the
value, remaining economic useful life and utility and in the condition and
repair required by the terms of this Lease and had suffered no Casualty).
SECTION 16. EVENTS OF DEFAULT
SECTION 16.1. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (whether such event shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to or in compliance
with any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall constitute an
"EVENT OF DEFAULT":
(a) the Lessee shall fail to make payment of any Periodic Rent upon
the same becoming due and payable and such failure shall continue
unremedied for a period of five days; or the Lessee shall fail to make
payment upon the same becoming due and payable of any amounts due pursuant
to Section 18.4 hereof, the Lease Balance, the Purchase Price or the
Stipulated Loss Value, including, without limitation, amounts due pursuant
to Section 18.1 hereof; or
(b) the Lessee shall fail to make payment of any Supplemental Rent
(other than as specified in clause (a) above) due and payable within five
(5) days after receipt of notice thereof; or
(c) the Lessee shall fail to maintain insurance as required by
Section 13 of this Lease; or
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(d) the Lessee shall fail to observe or perform any term, covenant or
condition applicable to it under Sections 5.13, 5.14 or 5.15 of the
Guaranty Agreement; or
(e) the Lessee or any Guarantor shall fail to observe or perform any
term, covenant or condition applicable to it under any Operative Agreement
to which it is party (other than those described in Section 16.1(a), (b),
(c) or (d) hereof) and, in each such case, such failure shall have
continued unremedied for thirty (30) days after written notice thereof has
been given to the Lessee or such Guarantor by the Lessor Trustee or any
Certificate Holder; or
(f) any representation or warranty made or deemed made by the Lessee
or any Guarantor in any Operative Agreement to which it is a party or which
is contained in any certificate, document or financial or other statement
furnished at any time under or in connection with any Operative Agreement
shall prove to have been incorrect, false or misleading in any material
respect on or as of the date made or deemed made; or
(g) (i) any Guarantor or the Lessee shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or any Guarantor or the Lessee shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Guarantor or the Lessee any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of sixty
(60) days; or (iii) there shall be commenced against any Guarantor or the
Lessee any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, restraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
(iv) any Guarantor or the Lessee shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clauses (i), (ii) or (iii) above; or (v) any Guarantor or
the Lessee shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
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(h) any Operative Agreement or any Lien granted under any Operative
Agreement shall, in whole or in part, terminate, cease to be effective
against, or (other than as expressly provided therein) cease to be the
respective legal, valid, binding and enforceable obligation of either the
Lessee or any Guarantor, as the case may be; or
(i) the Lessee or any Guarantor shall directly or indirectly contest
the effectiveness, validity, binding nature or enforceability of any
Operative Agreement or any Lien granted under any Operative Agreement; or
the Lessee or any Guarantor shall repudiate, or purport to discontinue or
terminate, the Guaranty Agreement, or the Guaranty Agreement shall cease to
be a legal, valid and binding obligation of the Lessee or any Guarantor or
cease to be in full force and effect; or
(j) (i) any Guarantor or the Lessee shall fail to make any payment in
respect of any of its obligations for Debt when due or, if later, within
any applicable grace period, or (ii) any event or condition shall occur
which results in the default after the expiration of any applicable grace
period under, or requires the early redemption or prepayment of, any of any
Guarantor's or the Lessee's obligations for Debt or any event or condition
shall occur and be continuing which enables (or, with the giving of notice
or lapse of time or both, would enable) the holders of any of any
Guarantor's or the Lessee's obligations under obligations for Debt of any
Guarantor or the Lessee or any Person acting on such holders' behalf to
accelerate the maturity, or require the early redemption or prepayment, of
any of any Guarantor's or the Lessee's obligations for Debt; or
(k) (i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay under Title IV of ERISA; or (ii) notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or (iii) any member of the ERISA Group has been notified in
writing that the PBGC has instituted proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; or (iv) a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or (v) any of the events described in
clause (iii) above shall occur with respect to any Other Plan or Other
Plans (other than a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA) (A) that have aggregate Unfunded Current
Liabilities in excess of $1,000,000 and (B) with respect to which either
(1) one or more members of the ERISA Group have engaged in a transaction or
transactions described in Section 4069 of ERISA or (2) one or more members
of the ERISA Group is a member of the "controlled group" under
Section 412(c)(11) of the Code or Section 4001(a)(14)
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of ERISA; or (vi) there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA,
with respect to, one or more (A) multiemployer plans, within the
meaning of Section 4001(a)(3) of ERISA (which plans are not
Multiemployer Plans), with respect to which a member of the ERISA Group
shall have engaged, within the previous five plan years, in a
transaction described in Section 4212(c) of ERISA, or (B) Multiemployer
Plans, which could reasonably be expected to result in the incurrence
by one or more members of the ERISA Group of a current payment
obligation in excess of $1,000,000; PROVIDED that no Event of Default
shall occur under clause (v) or (vi) if (A) the Unfunded Current
Liabilities of the Other Plans in respect of which events described in
clause (v) have occurred, together with the current payment obligations
that could reasonably be expected to result from complete or partial
withdrawals or defaults described in clause (vi), shall not exceed
$2,500,000 and (B) each member of the ERISA Group that could reasonably
be expected to be liable for such Unfunded Current Liabilities or
current payment obligations is diligently contesting, in good faith, by
appropriate proceedings, the imposition of such liabilities or
obligations; or
(l) (i) one or more judgments or orders for the payment, in the
aggregate, of money in excess of $1,000,000 shall be rendered against
any Guarantor or the Lessee and such judgments or orders shall continue
unsatisfied and unstayed for a period of 30 days or (ii) one or more
judgments or orders shall be rendered against any Guarantor or the
Lessee, which judgments or orders shall be stayed on condition that a
bond or collateral equal to or greater than, in the aggregate,
$1,000,000 be posted or provided, and such judgments or orders shall
not be overturned or lifted within a period of 10 days.
SECTION 16.2. REMEDIES. Upon the occurrence of any Event of Default and at
any time thereafter, the Lessor Trustee may, so long as such Event of Default
is continuing, do one or more of the following (and in such order) as the
Lessor Trustee in its sole discretion shall determine, without limiting any
other right or remedy the Lessor Trustee may have on account of such Event of
Default:
(a) The Lessor Trustee may (i) declare the entire outstanding
Lease Balance to be due and payable together with accrued unpaid Rent
and any other amounts payable under the Operative Agreements, and/or
(ii) make demand upon the Guarantors under the Guaranty Agreement;
(b) The Lessor Trustee may, by notice to the Lessee, rescind or
terminate this Lease as of the date specified in such notice; PROVIDED,
HOWEVER, (i) no reletting, reentry or taking of possession of the
Equipment (or any portion thereof) by the Lessor Trustee will be
construed as an election on the Lessor Trustee's part to terminate this
Lease
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unless a written notice of such intention is given to the Lessee,
(ii) notwithstanding any reletting, reentry or taking of possession,
the Lessor Trustee may at any time thereafter elect to terminate this
Lease for a continuing Event of Default, and (iii) no act or thing done
by the Lessor Trustee or any of its agents, representatives or
employees and no agreement accepting a surrender of the Equipment shall
be valid unless the same be made in writing and executed by the Lessor
Trustee;
(c) The Lessor Trustee may (i) demand that the Lessee, and the
Lessee shall upon the written demand of the Lessor Trustee, return the
Equipment promptly to the Lessor Trustee in the manner and condition
required by, and otherwise in accordance with all of the provisions of,
Sections 6 and 9 and Section 8.1(b) hereof as if the Equipment were
being returned at the end of the Lease Term, and neither the Lessor
Trustee nor any Certificate Holder shall be liable for the
reimbursement of the Lessee for any costs and expenses incurred by the
Lessee in connection therewith, and (ii) without prejudice to any other
remedy which the Lessor Trustee may have for possession of the
Equipment, and to the extent and in the manner permitted by Applicable
Law, enter upon the premises of the Lessee and any Site and take
immediate possession (to the exclusion of the Lessee) of the Equipment
or any part thereof and remove the Equipment, by summary proceedings or
otherwise, all without liability to the Lessor Trustee for or by reason
of such entry or taking of possession, whether for the restoration of
damage to property caused by such taking or otherwise and, in addition
to the other damages of the Lessor Trustee, the Lessee shall be
responsible for all costs and expenses incurred by the Lessor Trustee
and/or the Certificate Holders in connection with any reletting,
including, without limitation, reasonable brokers' fees and all costs
of any alterations or repairs made by any such party;
(d) The Lessor Trustee may, at its option, elect not to terminate
this Lease and continue to collect all Periodic Rent, Supplemental
Rent, and all other amounts due to the Lessor Trustee (together with
all costs of collection) and enforce the Lessee's obligations under
this Lease as and when the same become due, or are to be performed, and
at the option of the Lessor Trustee, upon any abandonment of the
Equipment by the Lessee or repossession of same by the Lessor Trustee,
the Lessor Trustee may, in its sole and absolute discretion, elect not
to terminate this Lease and may make the necessary repairs in order to
relet the Equipment, and relet the Equipment or any part thereof for
such term or terms (which may be for a long term extending beyond the
Lease Term of this Lease) and at such rental or rentals and upon such
other terms and conditions as the Lessor Trustee in its reasonable
discretion may deem advisable; and upon each such reletting all rentals
actually received by the Lessor Trustee from such reletting shall be
applied to the Lessee's obligations hereunder and the other Operative
Agreements. If such rentals received from such reletting during any
period are less than the Rent with
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respect to the Equipment to be paid during that period by the Lessee
hereunder, the Lessee shall pay any deficiency, as calculated by the
Lessor Trustee, to the Lessor Trustee on the next Scheduled Payment
Date;
(e) Unless the Equipment has been sold in its entirety, the
Lessor Trustee may, whether or not the Lessor Trustee shall have
exercised or shall thereafter at any time exercise any of its rights
under clause (c) or (d) of this Section 16.2 with respect to the
Equipment or any portion thereof, demand, by written notice to the
Lessee specifying a date not earlier than twenty (20) days after the
date of such notice, that the Lessee purchase, on the date specified in
such notice, the Equipment in accordance with the provisions of
Sections 18.1 and 19;
(f) The Lessor Trustee may sell the Equipment or any Item of
Equipment at public or private sale as the Lessor Trustee may
determine, free and clear of any rights of the Lessee, and without any
duty to account to the Lessee with respect to such sale or for the
proceeds thereof (PROVIDED that the application of the proceeds of any
such sale shall be subject to the final paragraph of this Section 16.2)
and the Lessee shall pay to the Lessor Trustee, as liquidated damages
for loss of a bargain and not as a penalty (in lieu of the Periodic
Rent due for the Equipment or Item of Equipment so sold for any period
commencing after the date on which such sale occurs), the sum of (i)
all unpaid Periodic Rent payable for each Item of Equipment for all
periods preceding the Scheduled Payment Date coincident with or next
preceding the date of such sale, plus (ii) an amount equal to the
excess, if any, of (x) the Stipulated Loss Value of the Equipment or
Item of Equipment so sold, computed as of the Scheduled Payment Date
coincident with or next preceding the date of such sale, over (y) the
net proceeds of such sale, plus (iii) interest at the Overdue Rate on
the Stipulated Loss Value from the Scheduled Payment Date as of which
such Stipulated Loss Value is computed until the date of actual
payment, plus (iv) all unpaid Supplemental Rent due with respect to
each Item of Equipment so sold;
(g) The Lessor Trustee may exercise any other right or remedy
that may be available to it under Applicable Law, or proceed by
appropriate court action (legal or equitable) to enforce the terms
hereof or to recover damages for the breach hereof. Separate suits may
be brought to collect any such damages for any period(s), and such
suits shall not in any manner prejudice the Lessor Trustee's right to
collect any such damages for any subsequent period(s), or the Lessor
Trustee may defer any such suit until after the expiration of the Lease
Term, in which event such suit shall be deemed not to have accrued
until the expiration of the Lease Term;
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(h) The Lessor Trustee may retain and apply against the Lease
Balance all sums which the Lessor Trustee would, absent such Event of
Default, be required to pay to, or turn over to, the Lessee pursuant to
the terms of this Lease; or
(i) The Lessor Trustee, to the extent permitted by Applicable
Law, as a matter of right and with notice to the Lessee, shall have the
right to apply to any court having jurisdiction to appoint a receiver
or receivers of the Equipment, and the Lessee hereby irrevocably
consents to any such appointment. Any such receivers shall have all of
the usual powers and duties of receivers in like or similar cases and
all of the powers and duties of the Lessor Trustee in case of entry,
and shall continue as such and exercise such powers until the date of
confirmation of the sale of the Equipment unless such receivership is
sooner terminated.
The Lessor Trustee shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and to
exercise all rights and powers under this instrument or under any of the
other Operative Agreements or other agreement or any laws now or hereafter in
force, notwithstanding some or all of the obligations secured hereby may now
or hereafter be otherwise secured, whether by mortgage, security agreement,
pledge, lien, assignment or otherwise. Neither the acceptance of this
instrument nor its enforcement shall prejudice or in any manner affect the
Lessor Trustee's right to realize upon or enforce any other security now or
hereafter held by the Lessor Trustee, it being agreed that the Lessor Trustee
shall be entitled to enforce this instrument and any other security now or
hereafter held by the Lessor Trustee in such order and manner as the Lessor
Trustee may determine in its absolute discretion. No remedy herein conferred
upon or reserved to the Lessor Trustee is intended to be exclusive of any
other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute. Every power or
remedy given by any of the Operative Agreements to the Lessor Trustee or to
which it may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
the Lessor Trustee.
If, pursuant to the exercise by the Lessor Trustee of its remedies
pursuant to this Section 16.2, the Lease Balance and all other amounts due
and owing from the Lessee under this Lease and the other Operative Agreements
have been paid in full, then the Lessor Trustee shall remit to the Lessee any
excess amounts received by the Lessor Trustee.
SECTION 16.3. WAIVER OF CERTAIN RIGHTS. (a) To the maximum extent permitted
by law, the Lessee hereby waives the benefit of any appraisement, valuation,
stay, extension, reinstatement and redemption laws now or hereafter in force
and all rights of marshalling in the event of any sale of the Equipment or
any interest therein, and (b) if this Lease shall be terminated pursuant to
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Section 16.2, the Lessee waives, to the fullest extent permitted by law, (i)
any notice of entry on the premises of the Lessee or the institution of legal
proceedings to obtain possession; (ii) any right of redemption or
repossession; (iii) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt or limiting the Lessor
Trustee with respect to the election of remedies; and (iv) any other rights
which might otherwise limit or modify any of the Lessor Trustee's rights or
remedies under this Section 16.
SECTION 17. LESSOR TRUSTEE'S RIGHT TO CURE
SECTION 17.1. THE LESSOR TRUSTEE'S RIGHT TO CURE THE LESSEE'S DEFAULTS. The
Lessor Trustee, without waiving or releasing any obligation or Event of
Default, may (but shall be under no obligation to) remedy any Event of
Default for the account and at the sole cost and expense of the Lessee,
including the failure by the Lessee to maintain the insurance required by
Section 13, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of the Lessee, take
possession of the Equipment for such purpose and take all such action thereon
as may be necessary or appropriate therefor. No such possession shall be
deemed a termination of the Lease. All reasonable out-of-pocket costs and
expenses so incurred (including fees and expenses of counsel), together with
interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by the Lessor Trustee, shall be paid by the Lessee to the
Lessor Trustee as Supplemental Rent.
SECTION 18. OPTIONS TO RENEW, PURCHASE AND SELL
SECTION 18.1. PURCHASE OF THE EQUIPMENT. Unless the Lessee has exercised
either its option to renew this Lease pursuant to Section 18.2 or its option
to sell the Equipment pursuant to Section 18.3, the Lessee shall purchase on
the Expiration Date all, but not less than all, of the Equipment at the
Purchase Price. Payment of the Purchase Price shall be made on the
Expiration Date at the place of payment specified in Section 3.4 hereof in
immediately available funds and transfer of title to the Equipment shall be
in accordance with the procedures set forth in Section 19.
SECTION 18.2. OPTION TO RENEW. So long as no Default or Event of Default
shall have occurred and be continuing, the Lessee shall have the right to
renew this Lease as to all, but not less than all, of the Equipment for up to
four Renewal Terms, the first three of which shall be for twelve (12) months
each and the fourth shall be for ten (10) months and 29 days. The first
Renewal Term will commence at the expiration of the Basic Term of the
Equipment and each succeeding Renewal Term will commence at the expiration of
the next preceding Renewal Term. All of the provisions of this Lease shall
be applicable during each Renewal Term. Periodic Rent during each such
Renewal Term shall be payable monthly in arrears for each Item of Equipment
on each Scheduled Payment Date during such Renewal Term. The Lessee shall
give to the Lessor
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Trustee written notice at least 180 days prior to the end of the Basic Term
or the then current Renewal Term, as the case may be, for such Equipment of
its election to exercise the renewal option provided for in this Section for
a Renewal Term commencing upon the expiration of such Basic Term or such
Renewal Term, as the case may be.
SECTION 18.3. OPTION TO SELL THE EQUIPMENT. (a) So long as no Default or
Event of Default has occurred and is continuing, the Lessee shall have the
right on the Expiration Date to arrange for the sale of all, but not less
than all the Equipment. The Lessee shall give to the Lessor Trustee written
notice at least 180 days prior to the Expiration Date of its election to
exercise its option to sell the Equipment provided for in the preceding
sentence as to such Equipment and, after delivery of such notice, the Lessee
shall have the obligation during the remainder of the Basic Term or Renewal
Term, as the case may be, to use its best efforts to obtain bona fide bids
for such Equipment from prospective purchasers who are financially capable of
purchasing all of the Equipment for cash on an as-is, where-is basis, without
recourse or warranty. No such purchaser shall be the Lessee, the Guarantor
or any Affiliate thereof. The Lessee will be responsible for hiring
qualified brokers and making the Equipment available for inspection by
prospective purchasers. The Lessee shall promptly upon request permit
inspection of the Equipment and any maintenance records relating to the
Equipment by the Lessor Trustee, the Certificate Holders and any potential
purchasers, and the Lessee shall comply with the requirements set forth in
Section 9.4 and otherwise do all things necessary to sell and deliver
possession of the Equipment to any purchaser. All such marketing of the
Equipment shall be at the Lessee's sole expense. The Lessor Trustee and the
Certificate Holders shall have the right, but shall be under no duty, to
solicit bids, to inquire into the efforts of the Lessee to obtain bids or
otherwise to take action in connection with any such sale.
(b) All bids received by the Lessee prior to the end of the Basic Term
or Renewal Term, as the case may be, shall be immediately certified and
provided to the Lessor Trustee in writing, setting forth the amount of such
bid and the name and address of the Person submitting such bid. No later
than the Expiration Date, the Lessee shall deliver the Equipment to the
bidder, if any, who shall have submitted such highest bid, and the Lessor
Trustee shall simultaneously therewith sell all of its right, title and
interest, as-is, where-is, without recourse or warranty express or implied
except for a warranty against Xxxxxx's Liens in and to such Equipment. The
total selling price realized from the sale of the Lessor Trustee's interest
in the Equipment in excess of the Purchase Price shall be paid over to the
Lessee as provided in Section 18.4.
(c) In connection with any such sale of the Equipment, the Lessee will
provide to the purchaser all customary "seller's" indemnities and
representations and warranties regarding title, absence of Liens (except
Lessor's Liens) and the condition of the Equipment. The Lessee shall have
obtained, at its cost and expense, all required governmental and regulatory
consents,
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MW 1997-1 Trust Equipment Lease
recertifications, licenses and approvals and shall have made all filings as
required by Applicable Law in order to carry out and complete the transfer of
the Equipment.
(d) The Lessee shall pay directly, and not from the sale proceeds, all
costs and expenses of the sale of the Equipment, whether incurred by the
Lessor Trustee or the Lessee, including, without limitation, the cost of all
transfer taxes, the reasonable attorneys' fees of the Lessor Trustee, the
Lessee's attorneys' fees, Lessor Trustee appraiser fees, commissions, filing
fees and all applicable documentary and other transfer taxes.
(e) If the Lessee exercises its option to sell the Equipment pursuant
to Section 18.3(a), the Lessee shall have completed all Alterations and
restoration of the Equipment pursuant to Sections 9.1, 10.1, 10.2 and 10.3
(as the case may be) and shall have fulfilled all of the conditions and
requirements in connection therewith pursuant to such Sections, in each case
at least 180 days prior to the Expiration Date regardless of whether the same
shall be within the Lessee's control. The Lessee shall have also paid the
cost of all Alterations commenced prior to the Expiration Date. The Lessee
shall not have been excused pursuant to Section 12.1 from complying with any
Applicable Law that involved the extension of the ultimate imposition of such
Applicable Law beyond the Expiration Date. Any Permitted Liens (other than
Lessor's Liens) on the Equipment that were contested by the Lessee shall have
been removed and the Lessor Trustee shall have received evidence satisfactory
to it that all Liens (other than Lessor's Liens and uncontested Permitted
Liens of the type described in clauses (i) and (v) of the definition thereof)
have been removed. The Equipment shall be in good operating condition.
SECTION 18.4. END OF TERM ADJUSTMENT. If the aggregate Net Proceeds of Sale
(hereinafter defined) of the Equipment sold pursuant to Section 18.3 is less
than the Purchase Price of such Equipment determined on the Expiration Date,
the Lessee shall, on the Expiration Date, pay to the Lessor Trustee, in
immediately available funds, an amount equal to such deficiency as an
adjustment to the Rent payable under this Lease for such Equipment; PROVIDED,
HOWEVER, that so long as no Default or Event of Default shall have occurred
and be continuing, such amount shall not be more than the Maximum Lessee Risk
Amount applicable to such Equipment. If the aggregate Net Proceeds of Sale
of the Equipment subject to this Lease on the Expiration Date is more than
the Purchase Price, the Lessor Trustee shall pay to the Lessee an amount
equal to such excess as an adjustment to the Rent payable under this Lease
for such Equipment, PROVIDED, that the Lessor Trustee shall have the right to
offset against such adjustment payable by the Lessor Trustee, any amounts
then due and payable from Lessee to the Lessor Trustee hereunder.
As used in this Section 18.4, the term "NET PROCEEDS OF SALE" means,
with respect to the Equipment sold by the Lessor Trustee to a third party
under Section 18.3, the net amount of the proceeds of sale of such Equipment
received by the Lessor Trustee on or prior to the Expiration Date for such
Equipment, after deducting from the gross proceeds of such sale (i) all sales
Taxes
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MW 1997-1 Trust Equipment Lease
and other Taxes as may be applicable to the sale or transfer of such
Equipment, (ii) all fees, costs and expenses of such sale incurred by the
Lessor Trustee and (iii) any other amounts for which, if not paid, the Lessor
Trustee would be liable or which, if not paid, would constitute a Lien on
such Equipment. The Lessor Trustee's obligation to sell its interest in the
Equipment to a third party under Section 18.3 is contingent upon the receipt
by the Lessor Trustee of the sum of (i) the amounts, if any, payable by the
Lessee with respect thereto pursuant to the first sentence of this Section
18.4 and pursuant to the last paragraph of this Section 18.4, (ii) all unpaid
Periodic Rent payable for such Equipment for all Scheduled Payment Dates
through the Expiration Date and (iii) all unpaid Supplemental Rent due with
respect to such Equipment as of the Expiration Date.
If the Lessee does not, with respect to any Equipment, purchase such
Equipment or exercise its option to renew this Lease, or if no bona fide bids
are received under Section 18.3 hereof with respect to the Equipment prior to
the Expiration Date thereof, then the Lessee and the Lessor Trustee agree
that in view of the uncertainties of market conditions and the parties'
inability to predict what the actual sale price of the Equipment would be,
the Net Proceeds of Sale for the Equipment shall be deemed to be zero solely
for purposes of the payment adjustment set forth in the first paragraph of
this Section 18.4, and the Lessee shall, on the Expiration Date, pay to the
Lessor Trustee in immediately available funds, an amount equal to the
Purchase Price, but so long as no Default or Event of Default has occurred
and is continuing hereunder, no more than the Maximum Lessee Risk Amount
applicable to such Equipment as an adjustment to the Rent payable under this
Lease for such Equipment, and the Lessee shall promptly return the Equipment
to the Lessor Trustee upon the Expiration Date thereof in accordance with the
provisions of Section 9.4 hereof. Any proceeds from the sale of the Equipment
subsequent to the return of the Equipment to the Lessor Trustee shall be
retained by the Lessor Trustee and distributed pursuant to the Trust
Agreement.
SECTION 19. PROCEDURES RELATING TO PURCHASE OF EQUIPMENT
SECTION 19.1. PROVISIONS RELATING TO THE PURCHASE OF EQUIPMENT; CONVEYANCE
UPON CERTAIN OTHER EVENTS. In connection with the Lessee's purchase of the
Equipment in accordance with Section 18.1 or in connection with the Lessee's
obligations under Section 16.2(e), upon the date on which this Lease is to
terminate and upon tender by the Lessee of the amounts set forth in Sections
16.2(e) or 18.1, as applicable, to the Lessor Trustee, the Lessor Trustee
shall convey to the Lessee (or to the Lessee's designee) at the Lessee's cost
and expense all of the Lessor Trustee's right, title and interest, as-is,
where-is, without recourse or warranty, express or implied except for a
warranty against Xxxxxx's Liens in and to such Equipment.
SECTION 20. ADDITIONAL GUARANTORS.
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MW 1997-1 Trust Equipment Lease
SECTION 20.1. ADDITIONAL GUARANTORS. The Lessee will cause each Person
which becomes a Material Subsidiary to promptly enter into a guarantee of the
Obligations and concurrently therewith shall deliver to the Lessor Trustee
and each of the Certificate Holders the following items:
(a) an executed counterpart of a Guaranty Agreement substantially
in the form of Exhibit C to the Participation Agreement or a joinder
agreement in respect of an Guaranty Agreement (in either case, a "NEW
GUARANTY AGREEMENT"), as approved by the Lessor Trustee;
(b) a certificate signed by the President, a Vice President or
another authorized Responsible Officer of such Material Subsidiary
making representations and warranties to the effect of those contained
in Sections 5 of the Guaranty Agreement, but with respect to such
Material Subsidiary and such New Guaranty Agreement;
(c) such documents and evidence with respect to such Material
Subsidiary as the Lessor Trustee may reasonably request in order to
establish the existence and good standing of such Material Subsidiary
and the authorization of the transactions contemplated by such New
Guaranty Agreement; and
(d) an opinion of counsel (which may be internal counsel to the
Lessee) satisfactory to the Lessor Trustee to the effect that such New
Guaranty Agreement has been duly authorized, executed and delivered and
constitutes the legal, valid and binding contract and agreement of such
Material Subsidiary enforceable in accordance with its terms, except as
such terms may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of creditors generally and
except as equitable remedies such as specific performance may be in the
discretion of the courts.
SECTION 21. [INTENTIONALLY OMITTED]
SECTION 22. NO MERGER OF TITLE
SECTION 22.1. NO MERGER OF TITLE. There shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, in whole or in part,
(a) this Lease or the leasehold estate created hereby or any interest in this
Lease or such leasehold estate, (b) the fee estate in the Equipment, except
as may expressly be stated in a written instrument duly executed and
delivered by the appropriate Person or (c) an ownership interest in the
Lessor Trust.
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SECTION 23. INTENT OF THE PARTIES
SECTION 23.1. NATURE OF TRANSACTION. (a) The parties hereto intend that (i)
for financial accounting purposes with respect to the Lessee, the Lessor
Trust will be treated as the owner and the lessor of the Equipment and the
Lessee will be treated as the lessee of the Equipment and (ii) for all other
purposes, including federal and all state and local income tax purposes,
state real estate and commercial law and bankruptcy purposes,
(A) this Lease will be treated as a financing arrangement,
(B) the Certificate Holders will be deemed lenders making loans
to the Lessee in an amount equal to the principal amount of the Trust
Certificates from time to time outstanding, which amounts are secured
by the Equipment, and
(C) the Lessee will be treated as the owner of the Equipment and
will be entitled to all tax benefits ordinarily available to an owner
of equipment like the Equipment for such tax purposes.
Nevertheless, the Lessee acknowledges and agrees that neither the Trust
Certificate Purchasers nor any of the Certificate Holders has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Agreements and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Agreements as it has deemed appropriate.
(b) It is the intent of the parties hereto that this Lease grants a
security interest and mortgage, as the case may be, on the Equipment and all
proceeds thereof to the Lessor Trustee for the benefit of the Certificate
Holders to secure the Lessee's performance under and payment of all amounts
under the Lease and the other Operative Agreements.
SECTION 23.2. LIENS AND SECURITY INTERESTS. (a) Specifically, without
limiting the generality of Section 23.1, the Lessor Trustee and the Lessee
intend and agree that in the event of any insolvency or receivership
proceedings or a petition under the United States bankruptcy laws or any
other applicable insolvency laws or statute of the United States of America
or any State or Commonwealth thereof affecting the Lessee, any Guarantor, the
Lessor Trust, the Lessor Trustee or the Certificate Holders or any collection
actions, the transactions evidenced by the Operative Agreements shall be
regarded as loans made by the Certificate Holders as unrelated third party
lenders to the Lessee secured by all of the Equipment (it being understood
that the Lessee has GRANTED, BARGAINED, SOLD, CONVEYED and CONFIRMED, and
hereby GRANTS, BARGAINS, SELLS, CONVEYS and CONFIRMS, and grants a security
interest in all of the Equipment to the Lessor
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MW 1997-1 Trust Equipment Lease
Trustee and its successors and assigns (for the benefit of the Certificate
Holders) to secure all such loans and the other Obligations).
(b) Specifically, but without limiting the generality of Section 23.1,
the Lessor Trustee and the Lessee further intend and agree that, for the
purpose of securing the obligation of the Lessee for the repayment of the
above-described loans from the Certificate Holders to the Lessee, (i) this
Lease shall also be deemed to be a security agreement and financing statement
within the meaning of Article 9 of the Uniform Commercial Code; (ii) the
conveyance provided for hereby and in Section 2 of this Lease shall be deemed
to be a grant by the Lessee to the Lessor Trustee and its successors and
assigns (for the benefit of the Certificate Holders) of a lien and security
interest in all of the right, title and interest of the Lessee in and to the
Equipment and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, investments, securities or other property (it being
understood that the Lessee hereby grants a security interest in the Equipment
and all proceeds thereof to the Lessor Trustee and its successors and assigns
(for the benefit of the Certificate Holders) to secure the loans described in
Section 23.2(a); (iii) the possession by the Lessor Trustee or any of its
agents of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be
"POSSESSION BY THE SECURED PARTY" for purposes of perfecting the security
interest pursuant to Section 9-305 of the Uniform Commercial Code; and (iv)
notifications to Persons holding such property, and acknowledgments, receipts
or confirmations from financial intermediaries, bankers or agents (as
applicable) of the Lessee shall be deemed to have been given for the purpose
of perfecting such security interest under all Applicable Laws. The Lessor
Trustee and the Lessee shall, to the extent consistent with this Lease, take
such actions and execute, deliver, file and record such other documents and
financing statements as may be necessary to ensure that, if the Lease was
deemed to create a security interest in the Equipment in accordance with this
Section 23.2, such security interest would be deemed to be a perfected
security interest (subject only to Permitted Liens) and will be maintained as
such throughout the Lease Term.
(c) Specifically, but without limiting the foregoing or the generality
of Section 23.1, the Lessee hereby grants, bargains, sells, warrants,
conveys, aliens, remises, releases, assigns, sets over and confirms to the
Lessor Trustee and its successors and assigns a security interest in all of
the Lessee's right, title, and interest in and to the following
(collectively, the "ADDITIONAL COLLATERAL"): (i) all proceeds, both cash and
noncash of the Equipment; (ii) all right, title and interest of the Lessee in
all warranties, chattel paper, documents, accounts, general intangibles,
trade names, trademarks, servicemarks, logos (including any names or symbols
by which the Equipment is known) and goodwill related thereto, and all other
articles of personal property of every kind and nature whatsoever, tangible
or intangible, now, heretofore or hereafter acquired with any proceeds of the
Obligations and now, heretofore or hereafter (A) arising out of or related to
the ownership of the Equipment, or (B) located on the Equipment, or (C) used or
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MW 1997-1 Trust Equipment Lease
intended to be used with or in connection with the use, operation or
enjoyment of the Equipment; (iii) all right, title and interest of the Lessee
in any and all leases, rental agreements and arrangements of any sort now or
hereafter affecting the Equipment or any portion thereof and providing for or
resulting in the payment of money to the Lessee for the use of the Equipment
or any portion thereof, irrespective of whether such leases, rental
agreements and arrangements be oral or written, and including any and all
extensions, renewals and modifications thereof (the "SUBJECT LEASES") and
guaranties of the performance or obligations of any lessees thereunder,
together with all income, rents, issues, profits and revenues from the
Subject Leases (including all security deposits and all other deposits,
whether held by the Lessee or in a trust account, and all other deposits and
escrow funds relating to any Subject Leases), and all the estate, right,
title, interest, property, possession, claim and demand whatsoever at law, as
well as in equity, of the Lessee of, in and to the same; PROVIDED, HOWEVER,
that although this Lease contains (and it is hereby agreed that this Lease
contains) a present, current, unconditional and absolute assignment of all of
said income, rents, issues, profits and revenues, the Lessee shall collect
and apply such rental payments and revenues as provided in the Lease and the
other Operative Agreements; (iv) all right, title and interest of the Lessee
in, to and under all franchise agreements, management contracts, consents,
authorizations, certificates and other rights of every kind and character of
any Governmental Authority affecting the Equipment and all other contracts,
licenses and permits now or hereafter affecting the Equipment or any part
thereof and all guaranties and warranties with respect to any of the
foregoing (the "SUBJECT CONTRACTS"); (v) all right, title and interest of the
Lessee in any insurance policies or binders now or hereafter relating to the
Equipment, including any unearned premiums thereon, as further provided in
this Lease; (vi) all right, title and interest of the Lessee in any and all
awards, payments, proceeds and the right to receive the same, either before
or after any foreclosure hereunder, as a result of any temporary or permanent
injury or damage to, taking of or decrease in the value of the Equipment by
reason of casualty, condemnation or otherwise as further provided in this
Lease; (vii) all right, title and interest of the Lessee in all escrow and
all other deposits (and all letters of credit, certificates of deposit,
negotiable instruments and other rights and evidence of rights to cash) now
or hereafter relating to the Equipment or the purchase or operation thereof;
(viii) all claims and causes of action arising from or otherwise related to
any of the foregoing, and all rights and judgments related to any legal
actions in connection with such claims or causes of action; and (ix) all
Alterations, extensions, additions, improvements, betterments, renewals and
replacements, substitutions, or proceeds of any of the foregoing, and all
chattel paper, documents, instruments general intangibles and other property
of any nature constituting proceeds acquired with proceeds of any of the
property described hereinabove; all of which foregoing items are hereby
declared and shall be deemed to be a portion of the security for the
indebtedness and Obligations herein described.
SECTION 24. MISCELLANEOUS
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MW 1997-1 Trust Equipment Lease
SECTION 24.1. SEVERABILITY. If any term or provision of this Lease or any
application thereof shall be declared invalid or unenforceable, the remainder
of this Lease and any other application of such term or provision shall not
be affected thereby.
SECTION 24.2. AMENDMENTS AND MODIFICATIONS. Subject to the requirements,
restrictions and conditions set forth in the Participation Agreement, neither
this Lease nor any provision hereof may be amended, waived, discharged or
terminated except by an instrument in writing signed by the parties hereto.
SECTION 24.3. NO WAIVER. No failure by the Lessor Trustee or any
Certificate Holder to insist upon the strict performance of any term hereof
or to exercise any right, power or remedy upon a default hereunder, and no
acceptance of full or partial payment of Rent during the continuance of any
such default, shall constitute a waiver of any such default or of any such
term. To the fullest extent permitted by law, no waiver of any default shall
affect or alter this Lease, and this Lease shall continue in full force and
effect with respect to any other then existing or subsequent default.
SECTION 24.4. NOTICES. All notices, demands, requests, consents, approvals
and other communications hereunder shall be in writing and directed to the
address described in, and deemed received in accordance with the provisions
of, Section 10.2 of the Participation Agreement.
SECTION 24.5. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Lease shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 24.6. HEADINGS AND TABLE OF CONTENTS. The headings and table of
contents in this Lease are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
SECTION 24.7. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same instrument.
SECTION 24.8. GOVERNING LAW. This Lease shall be governed by and construed
in accordance with the laws of the State of New York (excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State).
SECTION 24.9. TIME OF ESSENCE. With respect to each of the Lessee's
obligations hereunder, time is of the essence, and each such party hereby
acknowledges and confirms the foregoing.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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MW 1997-1 Trust Equipment Lease
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
KEYBANK NATIONAL ASSOCIATION, a
national banking association, as
trustee under MW 1997-1 Trust, as
Lessor Trustee
By
Name:
Title:
MAIL-WELL I CORPORATION, a Delaware
corporation, as Lessee
By
Name:
Title:
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PERIODIC RENT FACTORS
SCHEDULE I A
(to Equipment Lease)
Lease Supplement No. A_________
THIS LEASE SUPPLEMENT NO. _________ (this "LEASE SUPPLEMENT") dated
_______________, between KEYBANK NATIONAL ASSOCIATION, a national banking
association, as trustee (the "LESSOR TRUSTEE") under MW 1997-1 Trust, as
Lessor and whose principal offices are located at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, and MAIL-WELL I CORPORATION, a Delaware corporation,
as Lessee (the "LESSEE") and whose principal offices are located at
__________________________________________________.
WITNESSETH:
The Lessor Trustee and the Lessee have heretofore entered into that
certain Equipment Lease, dated as of December 15, 1997 (the "LEASE"). The
capitalized terms not otherwise defined herein have the meanings specified in
the Lease.
The Lease provides for the execution and delivery of a Lease Supplement
in substantially the form hereof for the purpose of leasing the Equipment
under the Lease when delivered by the Lessor Trustee to the Lessee in
accordance with the terms thereof.
NOW THEREFORE, in consideration of the premises and other good and
sufficient consideration the Lessor Trustee and the Lessee hereby agree as
follows:
1. The Lessor Trustee hereby delivers and leases to the Lessee,
and the Lessee hereby accepts and leases from the Lessor Trustee, under
the Lease as herein supplemented, the Equipment described in Schedule 1
hereto.
2. The Closing Date of such Equipment is the date of this Lease
Supplement set forth in the opening paragraph hereof.
3. The total Equipment Cost for such Equipment is
$______________.
4. All of the terms and provisions of the Lease are hereby
incorporated by reference in this Lease Supplement to the same extent
as if fully set forth herein.
5. This Lease Supplement shall be governed by and construed in
accordance with the laws of the State of New York (excluding
choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State).
EXHIBIT A
(to Lease Agreement)
Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Lease
Supplement may refer to the "Lease dated as of December 15, 1997" without
making specific reference to this Lease Supplement, but nevertheless all such
references shall be deemed to include this Lease Supplement unless the
context shall otherwise require.
This Lease Supplement shall be construed in connection with and as part
of the Lease, and all terms, conditions and covenants contained in the Lease,
except as herein modified, shall be and remain in full force and effect.
This Lease Supplement may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together
constitute one and the same instrument.
A-48
IN WITNESS WHEREOF, the Lessor Trustee and the Lessee have each caused
this Lease Supplement to be duly executed by their authorized officers as of
the day and year first above written.
KEYBANK NATIONAL ASSOCIATION, a
national banking association, as
trustee under MW 1997-1 Trust, as
Lessor Trustee
By
Name:
Title:
MAIL-WELL I CORPORATION, a Delaware
corporation, as Lessee
By
Name:
Title:
A-49
DESCRIPTION OF EQUIPMENT
EQUIPMENT EQUIPMENT COST
SCHEDULE 1
(to Lease Supplement)
