MASTER LEASE AGREEMENT
Lease Number R2529
THIS MASTER LEASE AGREEMENT dated as of APRIL 13 , 1993, is between CRA, Inc.
(herein called "Lessor"), having its principal place of business at 00000 Xxxxx
00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, and INTERNATIONAL LEISURE ENTERPRISES
(herein called "Lessee"), having its business at 0000 XXXXX 0XX XXXXXX, XXXXX
000, XXXXXXX, XXXXXXX 00000
IN CONSIDERATION of the mutual agreements set forth hereinafter and the payment
of rent as provided for herein, the parties agree as follows:
1. PROPERTY LEASED. Lessor, by the acceptance at its principal place of business
of an Equipment Schedule executed by Lessee and incorporating the terms and
conditions of this Master Lease Agreement, as amended from time to time, agrees
to lease to Lessee, and Lessee thereby agrees to lease from Lessor, all of the
tangible personal property listed in each Equipment Schedule (in the form
attached hereto as Exhibit A; executed by Lessor and Lessee from time to time.
Such tangible personal property, together with (i) any replacements, parts,
repairs, additions, attachments and accessories incorporated herein, and (ii)
all cables and other such items not specifically listed in the Equipment
Schedule which are required for installation, is referred to herein as the
"Equipment" and each individual component thereof is referred to as an "Item of
Equipment." The Equipment is leased for business purposes only and not for
consumer, personal, household or family purposes.
This is a Master Lease Agreement executed exclusively for the purpose of setting
forth terms and conditions which the parties may incorporate by reference into
an Equipment Schedule. Neither Lessor nor Lessee shall have any obligation
solely by execution of this Master Lease Agreement, and all obligations shall
arise under an Equipment Schedule executed and delivered by Lessor and Lessee
which refers to this Master Lease Agreement and incorporates some or all of its
terms and conditions. The term "Lease" as used hereinafter shall refer to an
Individual Equipment Schedule. An Equipment Schedule may contain additional
and/or different terms and conditions and, in the event of a conflict between
this Master Lease Agreement and an Equipment Schedule, the Equipment Schedule
shall control. Each Equipment Schedule (together with the terms and conditions
of this Master Lease Agreement, to the extent incorporated therein) shall
constitute a separate and distinct purchase money lease.
2. TERM, RENTAL AND NOTICES. This Master Lease Agreement shall be effective when
signed by both parties and shall continue thereafter so long as any obligations
under any Equipment Schedule incorporating the terms of this Master Lease
Agreement remains in effect. Any obligations hereunder outstanding as of the end
of the term, or which arise hereunder after the end of such term of any
Equipment Schedule, shall survive termination.
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Lessee agrees to pay all Rental Payments as set forth in this Section. Rental
Payments for each Equipment Schedule shall begin on the Initial Rental Date (as
defined in each Equipment Schedule) prorated on a 30 day basis for a partial
month and shall continue for the lease term. The lease term for each Equipment
Schedule is defined as the Commencement Period plus the Initial Term identified
in the Equipment Schedule. The Commencement Period is the period from the
Initial Rental Date to the Commencement Date. The Commencement Date shall be the
first day of the first month following the month in which the Initial Rental
Date occurs or the Initial Rental Date if such date is the first day of the
month. The lease term shall automatically continue through the end of the
calendar month (at the Rental Payment in effect at the end of the Initial Term)
until such date which is the later of (x) the last day of the Initial Term or
(y) 180 days after receipt by Lessor of Lessee's written notice of termination
of the Lease. Any such notice of termination by Lessee may not thereafter be
rescinded without the written consent of the Lessor. Advance rentals paid by
Lessee shall not be refundable to Lessee but, rather, shall be retained by the
Lessor as liquidated damages in the event the lease term of the Equipment
Schedule does not commence through no fault of Lessor's. All Rental Payments
shall be payable in advance on the Initial Rental Date and on the first day of
each calendar month thereafter during the term of the Lease, and sent to the
address of Lessor specified above or to such other address as Lessor may
designate. Notices required hereunder shall be given by certified mail addressed
to each party at the address and/or addresses of such party specified above,
with the right of either party to change, by notice to the other, its address
for the foregoing purposes. Notices and Rental Payments shall be effective upon
receipt. In the event that any Rental Payments shall not have been paid when due
and payable, Lessee agrees to pay a late payment charge equal to the lesser of
either (i) the greater of $20.00 or six percent (6%) of the payment, or (ii) the
maximum amount permitted by law.
3. TITLE. As between Lessor and Lessee, Lessor shall and hereby does retain full
legal title to the Equipment, notwithstanding the delivery thereof to and the
possession and use thereof by Lessee. Lessee shall have no right, title or
interest in the Equipment except as a lessee, as expressly set forth herein. All
documents of title and evidences of delivery shall be delivered to Lessor.
Lessee will not change or remove any insignia or lettering which is on the
Equipment at the time of delivery thereof or which is thereafter placed thereon
indicating Lessor's ownership thereof, and at any time during the lease term,
upon request of Lessor, will affix to the Equipment, in a prominent place,
labels, plates or other markings supplied by Lessor stating that the Equipment
is owned by Lessor and/or has been assigned by Lessor to a secured party. Lessor
is hereby authorized by Lessee to cause any lease o any statement or other
instrument in respect of any lease showing the interest of Lessor in the
Equipment to be filed or recorded and refiled and rerecorded, at Lessee's
expense, and Lessee agrees to execute and deliver any statement or instrument
requested by Lessor for such purpose. Lessor may file or record such statements
and instruments without Lessee's signature where permitted by law. Lessee shall
at its expense protect and defend Lessor's title against all persons claiming
against or through Lessee, at all times keeping the Equipment, any lease and the
Lessor's right, title and interests therein free from any legal process or
encumbrance whatsoever, including but not limited to liens, attachments, levies
and executions (other than encumbrances created by or through Lessor), and shall
give Lessor immediate written notice of any encumbrances that exist in violation
of this agreement, and shall indemnify Lessor from any loss caused thereby.
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4. PURCHASE, DELIVERY AND ACCEPTANCE. Lessee has requested Lessor to provide the
Equipment from a supplier chosen or approved by Lessee (herein called the
"Seller"), and to arrange for delivery, at Lessee's expense. Delivery shall be
deemed complete upon arrival at Lessee's premises or when received by Lessee's
agent or by any carrier consigned for shipment to Lessee or any agent of Lessee,
whichever shall be earlier. Lessee shall arrange for and pay all costs and
expenses of installation of the Equipment. Upon acceptance of any Equipment
(evidenced conclusively by Lessee's execution of an Acceptance Letter in the
form attached hereto as Exhibit B), the Lessee waives any right to revoke such
acceptance, and waives any security interest in such Equipment, whether such
right or security interests is conferred by statute or otherwise. In the event
the Lessee desires to exercise any rights under a supplier contract to reject
any Equipment, whether prior to or after acceptance thereof, the Lessee shall
have no right to sell, to storage charges for, or to any reduction of rental
with respect to, such Equipment.
5. NO WARRANTIES AND LIMITATION OF LIABILITY. LESSOR, NOT BEING THE MANUFACTURER
OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT, HEREBY EXPRESSLY DISCLAIMS AND
MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER
WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO: THE MERCHANTABILITY
OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE; THE DESIGN OR
CONDITION OF THE EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE
WORKMANSHIP IN THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS
OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO; PATENT OR OTHER
INFRINGEMENT; OR LATENT DEFECTS. IT IS EXPRESSLY UNDERSTOOD AND AGREED BY LESSEE
THAT LESSOR HEREBY LEASES THE EQUIPMENT "AS IS" EXCEPT THAT LESSOR WARRANTS THAT
IT WILL HAVE OR ACQUIRE TITLE TO OR THE RIGHT TO LEASE EACH ITEM OF EQUIPMENT
UPON ACCEPTANCE THEREOF. NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER
MATTER BY THE SELLER SHALL IN ANY WAY AFFECT LESSEE'S DUTY TO PERFORM ITS
OBLIGATIONS AS SET FORTH IN THE LEASE. If the Equipment is not properly
installed, does not operate as represented or warranted by the Seller, or is
unsatisfactory for any reason, Lessee shall make any claim on account thereon
solely against the Seller and shall, nevertheless, pay Lessor all rentals
payable under the Lease without any setoff, counterclaim, recoupment, defense
or other right which Lessee may have against the Seller of the Equipment or any
other party. Lessor hereby assigns to Lessee, during the term of this Lease,
solely for the purpose of making and prosecuting any such claim, all of the
rights which Lessor has against the Seller for breach of warranty or other
representation respecting the Equipment. Lessor shall have no responsibility for
delay or failure of the Seller to fill the order for the Equipment. LESSOR SHALL
NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
6. TAXES.
Lessee shall pay, upon receipt of invoices, any taxes, however designated,
levied or based on the Rental Payments hereunder or on this Lease or on the
Equipment or its use, including sales, use, and personal property taxes, state
and local privilege or excise taxes,
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based on gross revenue, and any taxes on amounts in lieu thereof paid or payable
by Lessor in respect of the foregoing, exclusive, however, of taxes based on net
income of Lessor.
7. CARE AND USE OF EQUIPMENT. Lessee shall at its own expense enter into and
maintain in force a maintenance agreement with the manufacturer of the Equipment
or other maintenance company approved in writing by Lessor, covering a prime
shift maintenance contract for each Item of Equipment, effective upon
installation of the Equipment, and shall keep the Equipment in as good repair,
condition and working order as when delivered to Lessee hereunder, reasonable
wear and tear from the proper use thereof alone excepted. Lessee shall provide
the required suitable electric current to operate the Equipment and a suitable
place of installation with all facilities as specified in the manufacturer's
installation manual and meeting at all times the minimum standard of the
National Board of Power Underwriters for the protection of the electronic
computer systems as recommended by the national Power Protection Association.
Lessee shall not make any modification, alteration, or addition to the Equipment
(other than normal operating accessories or controls) without the written
consent of Lessor, which shall not be unreasonably withheld; shall not so affix
the Equipment to realty so as to change its nature to a fixture or real property
and agrees that the Equipment shall remain personal property at all times
regardless of how attached or installed; and shall keep the Equipment at the
location shown on the Equipment Schedule, and shall not remove the Equipment
therefrom, without the prior written consent of lessor, which shall not be
unreasonably withheld if the place of relocation is in one of the continental
United States. All modification, repairs, alterations, additions, operating
accessories and controls shall be deemed incorporated in the Equipment, shall
become the property of Lessor and shall be made at the sole cost and expense of
Lessee. Expenses of repair shall include labor, materials, parts and similar
items. Lessor shall have the right, during normal business hours, subject to
applicable laws and regulations, to enter upon the premises where the Equipment
is located in order to inspect, observe or remove the same, or otherwise protect
Lessor's interest, and Lessee shall cooperate in affording Lessor the
opportunity to do so.
Upon Lease expiration, Lessee shall return the Equipment to the location
described in Section 16 hereof in the condition described above and so as to be
acceptable and eligible for a continued or renewed maintenance agreement with
the manufacturer. Lessee shall be solely responsible for payment of all charges
incurred in bringing the Equipment to the condition required by the manufacturer
for issuance of a continued or renewed maintenance agreement including, but not
limited to, repairs, product enhancements, field changes, engineering changes,
and board upgrades. It is understood and agreed that in the event Lessor
approves a maintenance agreement with a maintenance company other than the
manufacturer, Lessee remains obligated to return the Equipment in such condition
as to be acceptable and eligible for a continued or renewed maintenance
agreement with the manufacturer and to deliver to Lessor a manufacturer's letter
certifying such eligibility at the time of return.
8. INSURANCE. Lessee shall keep the equipment insured against all risks of loss
or damage from every cause whatsoever, for the greater of (x) the full
replacement value thereof, or (y) 125% of the present value at the Discount Rate
specified in the Equipment Schedule of all rent through the end of the Initial
Term, provided that the amount of such insurance shall be sufficient so that
neither Lessor nor Lessee will be considered a coinsurer. Lessee also shall
carry public liability insurance, both personal injury and property damage,
covering the
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Equipment. All such insurance shall be in form and amount and with companies
satisfactory to Lessor. All insurance for loss or damage shall provide that
losses, if any, shall be payable to Lessor (or to any Bank), and Lessor and its
assigns shall be named as an additional insured with respect to all such
property insurance. Lessee shall pay the premiums for such insurance and deliver
to Lessor the policies of such insurance or duplicates thereof, or other
evidences satisfactory to Lessor of the insurance coverage required hereunder.
Each insurer shall agree, by endorsement upon the policy or policies issued by
it or by independent instrument furnished to Lessor, that (a) it will give
Lessor 30 days prior written notice of the effective date of any alteration,
modification or cancellation of or failure to renew such policy, and (b)
insurance as to the interest of any named additional insured or loss payee other
than Lessee shall not be invalidated by any actions, inactions, breach of
warranty or conditions or negligence of Lessee with respect to such policy or
policies. Lessee hereby irrevocably appoints Lessor as Lessee's attorneyinfact
to make claim for, receive payment of and execute and endorse all documents,
checks, or drafts received in payment for loss or damage to the Equipment under
any such insurance policy. All insurance proceeds shall be applied in accordance
with Section 13 herein.
9. INDEMNITY. Lessee shall and does hereby agree to indemnify, defend and hold
Lessor harmless from any and all loss, damage and liability, including legal
expenses and attorneys' fees, arising out of the ownership se ection,
possession, leasing, renting, operation, control, use, maintenance, delivery and
return of the Equipment, or its condition (including without limitation, latent
or other defects and whether or not discoverable by Lessor or Lessee, any claim
in tort for strict liability, and claim for patent, trademark or copyright
infringement). Provided that Lessee is not then in Default hereunder, Lessee's
obligations under this Section 9 shall be reduced by any amounts actually
received by Lessor as the proceeds of any liability insurance procured by
Lessee.
10. TAX INDEMNITY. This Lease is entered into on the basis that Lessor shall be
the owner of the Equipment for federal and state income tax purposes and
entitled to such deductions, credits and other benefits as are provided an owner
of property, including but not limited to (a) the maximum cost recovery
deductions for 5year property under Section 168 of the Tax Reform Act of 1986,
as amended ("Code"); and (b) interest deductions in the full amount of any
interest paid or accrued with respect to any loan made to Lessor to finance the
purchase of the Equipment (hereinafter collectively referred to as "Tax
Benefits").
If, with respect to any Item of Equipment, Lessor shall not have or shall lose
the right to claim all or any portion of the Tax Benefits or if all or any
portion of the Tax Benefits shall be disallowed or recaptured (hereinafter
referred to as a "Tax Benefit Loss"), then subject to the exceptions set forth
below, Lessee shall, within thirty (30) days after written notice from Lessor
that a Tax Benefit Loss has occurred, pay to Lessor at Lessor's option, either a
lumpsum payment or an increase to the remaining Rental Payments due under this
Lease in an amount which, after taking into account the effects of interest,
penalties and additional taxes payable by Lessor as a result of the Tax Benefit
Loss and the receipt of payment hereunder, will cause Lessor's net effective
after tax return over the lease term to equal the net effective after tax return
which would have been available if Lessor had not been entitled to the
utilization of all the Tax Benefits.
For purposes hereof a Tax Benefit Loss shall occur upon the earliest of (i) the
happening of an event which causes such Tax Benefit Loss, (ii) the payment by
Lessor to the Internal Revenue
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Service or the applicable state revenue office of the tax increase resulting
from such Tax Benefit Loss, or (iii) the adjustment of the tax return of Lessor
to reflect such Tax Benefit Loss. Notwithstanding the foregoing, Lessor shall
not be entitled to a payment hereunder on account of any Tax Benefit Loss
directly attributable to any of the following: (i) any act on the part of Lessor
which causes a Tax Benefit Loss; (ii) the failure of Lessor to have sufficient
taxable income or tax liability to utilize such Tax Benefits; or (iii) the
happening of any other event with respect to Lessor (such as a disqualifying
change in Lessor's business or characterization of Lessor as a personal holding
company) which causes a Tax Benefit Loss.
This Paragraph is expressly made for the benefit of, and shall be enforceable by
Lessor, any person, firm, corporation or other entity to which Lessor transfers
title to all or a portion of the Equipment and their successors and assigns
("Owner"). For purposes hereof, the term "Owner" shall include an affiliated
group (within the meaning of the Code) of which Lessor is a member for any year
in which a consolidated income tax return is filed for such affiliated group.
Lessee agrees to indemnify, defend and hold any such Owner harmless from any Tax
Benefit Loss on the same terms and to the same extent as it would have
indemnified and held Lessor harmless as if said Owner were the Lessor hereunder.
All of Lessor's rights and privileges arising from the indemnities contained
herein shall survive the expiration or other termination of this Lease and
continue for a period of two years thereafter after which all such rights and
privileges shall terminate.
11. OTHER COVENANTS AND WARRANTIES OF LESSEE. Lessee agrees that its obligations
under each Lease are absolute and unconditional, and shall continue in full
force and effect regardless of any disability of Lessee to use the Equipment or
any part thereof because of any reason including, but not limited to, war, act
of God, government regulations, strike, loss, damage, destruction, obsolescence,
failure of or delay in delivery, failure of the Equipment to operate properly,
or any other cause, and that its obligations shall not xxxxx due to any ground
of insecurity, lack of assurance of due performance, claim or setoff against
Lessor, except for breach of Lessor's warranty as to its title to the Items of
Equipment. Lessee agrees that the application, statements and financial reports
submitted by it to Lessor are material inducements to the execution by Lessor of
each Lease, and Lessee warrants that such applications, statements, and reports
are, and all information hereafter furnished by Lessee to Lessor will be, true
and correct in all material respects as of the date submitted. Lessee agrees to
procure for Lessor such estoppel certificates, landlord's and mortgagee's
waivers or other similar documents as Lessor may reasonably request. Lessee
agrees to furnish promptly to Lessor the annual financial statement of Lessee,
certified by independent certified public accountants, and such interim
financial statements of Lessee as lessor may require. Lessee warrants that each
Lease has been duly authorized, executed and delivered; that each Lease
constitutes the legal, valid and binding obligations of Lessee enforceable in
accordance with its terms; and that no provision of any Lease is inconsistent
with Lessee's charter, bylaws, or will breach any loan or credit agreement or
other instrument to which Lessee is a party or by which Lessee or its property
may be bound or affected. Lessee represents that it is not a merchant dealing in
goods of the kind subject to the Lease.
12. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. In case of the failure of
Lessee to comply with any provision of the Lease, Lessor shall have the right,
but shall not be obligated, to effect such compliance on behalf of Lessee; in
such event all moneys spent
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by and expenses of Lessor in effecting such compliance shall be deemed to be
additional rental and shall be paid by Lessee to Lessor at the time of payment
for the next Rental Payment hereunder, together with interest thereon at the
rate of 18% per annum or the maximum rate permitted by law, whichever is less.
13. RISK OF LOSS. Lessee hereby assumes the entire risk of loss, damage or
destruction of the Equipment from any and every cause whatsoever commencing with
delivery of such Equipment to Lessee, an agent of Lessee, or to a carrier
consigned for shipment to Lessee or an agent of Lessee, whichever is earlier. In
event of loss, damage or destruction of any Item of Equipment, Lessee at its
expense (except to the extent of any proceeds of insurance provided by Lessee
which shall have been received by Lessor as a result of such loss, damage or
destruction) and at Lessor's option, shall either (a) repair such item, if
repairable, returning it to its previous condition, or (b) pay Lessor fair
market value of a like item in good condition and of equivalent value and
utility, together with all thenaccrued but unpaid rent and all rent which would
have accrued through the end of the Initial Term as may be allocated to such
Item, discounted to present value at the Discount Rate specified in the Lease
plus any amounts due under Section 10, or (c) replace such item with a like item
acceptable to Lessor and in good condition and of equivalent value and utility,
which shall become the property of Lessor and included with the term "Equipment"
as used herein. Any proceeds remaining after such application shall be the
property of Lessor. Upon payment or replacement provided for in clauses (b) or
(c) hereof, the Lease shall terminate with respect to the Items of equipment so
paid for or replaced and Lessee shall take title to same on an asis, whereis
basis.
14. DEFAULT, REMEDIES. Lessee shall be deemed to be in default hereunder
("Default") if (a) Lessee refuses, without justification, to accept delivery of
the Equipment as provided in Section 4 hereof and execute and deliver an
Acceptance Letter therefor; or (b) Lessee shall fail to make any payment
hereunder within five (5) days after the same shall have become due; or (c)
Lessee shall fail to comply with the provisions of Section 8 hereof; or (d)
Lessee shall fail to perform or observe any other covenant or agreement made by
it hereunder and such failure shall continue unremedied for a period of thirty
(30) days after written notice thereof to Lessee by Lessor; or (e) Lessee shall
consent to the appointment of a receiver, trustee or liquidator of itself or of
a substantial part of its property, or shall admit in writing its inability to
pay its debts generally as they come due, or shall make a general assignment for
the benefit of creditors, or shall file a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorganization in a proceeding under any
bankruptcy laws (as now or hereafter in effect) or an answer admitting the
material allegation of a petition filed against Lessee in any such proceeding,
or Lessee shall by voluntary petition, seek relief under the provisions of any
other now existing or future bankruptcy or other similar law providing for the
reorganization or windingup of corporations, or providing for an agreement,
composition, extension or adjustment with its creditors; or (f) an order,
judgment or decree shall be entered by any court of competent jurisdiction
appointing, without the consent of the Lessee, a receiver, trustee, or
liquidator of Lessee or of any substantial part of its property, or any
substantial part of the property of Lessee shall be sequestered or judgment or
decree of appointment or sequestration shall remain in force undismissed,
unstayed or unvacated for a period of sixty (60) days after the date of entry
thereof; or (g) a petition against Lessee in proceedings under the federal
bankruptcy laws or other insolvency laws (as now or hereafter in effect) shall
be filed and shall not be withdrawn or
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dismissed within sixty (60) days thereafter, or if, under the provisions or any
law providing for reorganization or windingup of corporations, which may apply
to Lessee, any court of competent jurisdiction shall assume jurisdiction,
custody or control of Lessee or of any substantial part of its property and such
jurisdiction, custody or control shall remain in force unrelinquished, unstayed
or unterminated for a period of sixty (60) days; or (h) the occurrence of any
event described in subparts (e), (f) or (g) hereof with respect to any
guarantor or any other party liable for payment or performance of the Lease; or
(i) any certificate, statement, representation, warranty or audit heretofore or
hereafter furnished with respect hereto by or on behalf of Lessee or any
guarantor or other party liable for payment or performance of the Lease shall
prove to have been false in any material respect at the time as of which the
facts therein set forth were stated or certified, or shall have omitted any
substantial contingent or unliquidated liability or claim against Lessee or any
such guarantor or other party; or (j) Lessee shall be in default under any
obligation for the payment of borrowed money, for the deferred purchase price of
property or for the payment of any rent under any lease agreement covering real
or personal property, and the applicable grace period with respect thereto shall
have expired and the obligation shall not be contested in good faith by
appropriate legal proceedings.
In the event of Default hereunder, Lessor may, at its option, without notice of
its election and without demand, declare this Lease to be in Default, and at any
time thereafter may do any one or more of the following all of which are hereby
authorized by Lessee: (1) declare all thenaccrued but unpaid rental under this
Lease, together with all other sums then due hereunder and all Rental Payments
which would have accrued through the end of the lease term discounted to present
value at the Discount Rate specified in the Lease, immediately due and payable
(the parties also deem that such amount best reflects the reasonably anticipated
harm to the Lessor caused by a Default, as well as the damages Lessor would
sustain in the event of Lessee's bankruptcy or insolvency if the Lease were not
assumed); (2) xxx for and recover all amounts declared due and payable under (1)
above; (3) take possession of or render unusable any or all of the Equipment
wherever it may be located, without any court order or other process of law and
without liability for any damages occasioned by such taking of possession (any
such taking of possession shall constitute an automatic termination of this
Lease as it applies to those Items of Equipment taken without further notice,
and such taking of possession shall not prohibit Lessor from exercising its
other remedies hereunder); (4) require Lessee to assemble any or all of the
Equipment at the location to which the Equipment was delivered or the location
to which such Equipment may have been moved by Lessee or such other location in
reasonable proximity to either of the foregoing as Lessor shall designate; or to
return promptly, at Lessee's expense, any or all of the Equipment to Lessor at
the location, in the condition or otherwise in accordance with all of the terms
of Section 7 hereof; (5) dispose of any or all of the Equipment, whether or not
in Lessor's possession, in a commercially reasonable manner at public or private
sale and with or without notice to Lessee, and apply the net proceeds to such
sale after deducting all costs of such sale (including but not limited to costs
of transportation, possession, storage, refurbishing to be in the condition
described in Section 7, advertising and brokers' fees and attorneys' fees) to
the obligations of lessee hereunder (including all amounts declared due and
payable under (1) above) with Lessee remaining liable for any deficiency and
with any excess being retained by Lessor; (6) retain any repossessed Equipment
and credit the present value (at the Discount Rate) of the fair market rental
value of the Equipment, for the remaining Initial Term, to the obligations of
Lessee hereunder with Lessee remaining liable for any deficiency and with Lessor
having no
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obligation to reimburse Lessee on account of any excess of such reasonable value
over such obligations; (7) terminate this Lease as to any or all of the
Equipment; or (8) exercise any other right or remedy available to Lessor at law
or in equity. Unless otherwise provided above, a termination hereunder shall
occur only upon written notice by Lessor to Lessee and only with respect to such
Items of Equipment as Lessor specifically elects to terminate in such notice.
Notwithstanding any such termination, this Lease shall remain in full force and
effect and Lessee shall remain liable for the full performance of all its
obligations hereunder.
In addition, Lessee shall be liable for any and all attorneys' fees and other
costs and expenses incurred by reason of any Default or the exercise of Lessor's
remedies with respect thereto, including all costs and expense incurred in
connection with the return of any Equipment in accordance with the terms of
Section 7 hereof or in placing such Equipment in the condition required by said
Section. No right or remedy referred to in this Section is intended to be
exclusive, but each shall be cumulative, and shall be in addition to any other
remedy referred to above or otherwise available at law or in equity (provided,
that no remedy granted solely by reason of uniform Commercial Code Article 2A,
as in effect in any applicable jurisdiction, shall be available to Lessor or
Lessee) and may be exercised concurrently or separately from time to time. The
failure of Lessor to exercise the rights granted hereunder upon any Default by
Lessee shall not constitute a waiver of any such right upon the continuation or
recurrence of any such Default.
15. ASSIGNMENT. LESSEE SHALL NOT ASSIGN THIS LEASE OR TRANSFER ITS RIGHTS OR
OBLIGATIONS OR ANY INTEREST THEREIN OR SUBLEASE ALL OR ANY PART OF THE LEASED
PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. Any or all of lessor's
right, title and interest in and to the Lease and the Equipment may be
transferred, sold or assigned by Lessor without notice and Lessor's assignee
shall have the rights, powers, privileges and remedies of Lessor hereunder. Each
Equipment Schedule is separately assignable. Any such assignee shall not be
obligated to perform any of the obligations of Lessor hereunder and Lessee shall
not be entitled to terminate or amend the Lease without the prior written
consent of such assignee. If Lessor assigns the Lease to a bank, leasing company
or other financial institution, including any entity acting as trustee or agent
for any of the foregoing (collectively, herein called the "Bank"), Lessee, to
induce said Bank at its option to purchase the Lease or to extend credit on the
security of the rights so assigned, agrees unconditionally, upon receipt of
notice of assignment, to pay to said Bank, at the address it specifies, the
rentals specified in the lease, or an amount equal to such rentals, together
with all other sums due thereunder, at the times specified therein,
notwithstanding any of the terms of the Lease or any other fact or event which
might relieve Lessee from the payment of such rentals or their sums to Lessor,
or the termination of the Lease for any reason, or any other event whatsoever,
including, without limitation, the bankruptcy and insolvency of Lessor or any
disaffirmance of the Lease by any trustee or receiver, and notwithstanding any
defense, setoff or counterclaim whatsoever, whether by reason of breach of the
Lessee or otherwise, which Lessee may or might now or hereafter have as against
Lessor or any other party whatsoever (Lessee reserving its right to have
recourse directly against Lessor on account of any such defense, setoff or
counterclaim) and Lessee shall execute such documents as the Bank may reasonably
request in order to reaffirm the foregoing and other facts pertaining to the
Lease. Lessee further agrees to hold the Equipment and the possession thereof
for and on
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THIS IS PAGE 9 OF 17 PAGES OF THIS AGREEMENT
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behalf of said Bank to the extent of said Bank's rights under any assignment,
subject to and without impairment of Lessee's rights hereunder. Any Bank shall
be sole loss payee of any property insurance. In the event Lessor finances the
Equipment through a Bank and executes an assignment of the Lease and/or rentals
under the Lease to the Bank as security therefore, such assignment shall not
affect Lessor's standing to xxx to enforce the terms of the Lease and a
reassignment from the Bank is not a condition precedent to Lessor's bringing
suit. Lessee recognizes Lessor's property interest in the Equipment whether or
not an Assignment is worded "revocable" or "irrevocable" when made to secure
performance of any indebtedness incurred executed by Lessor for the purpose of
financing the Equipment. Lessee acknowledges that any assignment of Lessor's
interest does not materially change the Lessee's duty nor materially increase
the burden or risk imposed on the Lessee under the Lease.
16. REDELIVERY. At the expiration of the Lease, Lessee shall, at its expense,
deliver the Equipment to Lessor at such location as directed by Lessor (provided
that the expense of delivery to such location does not exceed the expense which
would be incurred if redelivery were to be made to Phoenix, Arizona).
17. AMENDMENTS. The Lease contains the entire agreement between the parties with
respect to the Equipment, and may not be altered or modified except in writing
signed by both parties.
18. TIME. Time is of the essence hereof.
19. QUIET POSSESSION. Lessor hereby represents and warrants to Lessee that,
conditioned upon Lessee performing all of the covenants and conditions hereof,
as to claims of Lessor, or persons claiming under Lessor, or the Seller of the
Equipment, Lessee (in lieu of any statutory rights or remedies otherwise
available to Lessee) shall peaceably and quietly hold, possess and use the
Equipment during the term of the Lease subject to the terms and provisions
hereof.
20. MISCELLANEOUS. All matters regarding the construction, validity, performance
and enforcement of the Lease will be governed by the laws of the State of
Arizona. The Lease is binding at the time Lessor executes its countersignature
which evidences Lessor's acceptance in the State of Arizona. The Lease is to be
performed in Arizona and all lease payments are to be made to Lessor in Arizona
unless Lessor instructions Lessee to make payments to Lessor or Lessor's
assignee at some other place. Lessee waives, insofar as permitted by law, trial
by jury in any action between the parties. Lessor and Lessee intend this Lease
to be a valid and subsisting legal instrument and no provision of this Lease
which may be deemed unenforceable shall in any way invalidate any other
provision or provisions of this Lease, all of which shall remain in full force
and effect. The Lease shall be binding upon the parties, their successors, legal
representatives and assigns. The obligations of lessee, which accrue during the
term of the Lease, shall survive the termination of the Lease.
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THIS IS PAGE 10 OF 17 PAGES OF THIS AGREEMENT
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THIS MASTER LEASE AGREEMENT OR ANY EQUIPMENT SCHEDULE THERETO MAY NOT BE
AMENDED, MODIFIED OR RESCINDED EXCEPT IN WRITING ND SIGNED BY BOTH PARTIES.
LESSEE'S INITIALS /S/
ACCEPTED BY; ACCEPTED BY:
CRA, INC. INTERNATIONAL LEISURE ENTERPRISES
Signature /s/ Xxxxx X. Xxxxxxx Signature /s/ Xxxxx X. Xxxxxxxx
Name Xxxxx X. Xxxxxxx Name Xxxxx X. Xxxxxxxx
Title Vice President Title Executive Vice President
THIS IS PAGE 11 OF 17 PAGES OF THIS AGREEMENT
ADDENDUM 1 TO
MASTER LEASE AGREEMENT
NUMBER R2529
Lessor and Lessee hereby agree to amend and modify the terms and conditions of
the above referenced Lease as set forth below:
+ Section 14, line 4. Delete the words "the same shall have become due" and
replace with the words "receipt of written notice of such nonpayment from
Lessor".
+ Section 14, line 30. Delete the remainder of the sentence after the word
"party".
+ Section 14, paragraph 3. Add the following sentence at the end of the
paragraph. "Notwithstanding anything to the contrary above, in any action
between the Lessor and Lessee, the unsuccessful party shall pay its
attorneys' fees and the prevailing party's attorneys' fees.
All other terms and conditions of the abovereferenced Lease shall remain in
full force and effect and shall not be affected by this Addendum.
ACCEPTED BY; ACCEPTED BY:
CRA, INC. INTERNATIONAL LEISURE ENTERPRISES
Signature /s/ Xxxxx X. Xxxxxxx Signature /s/ Xxxxx X. Xxxxxxxx
-------------------------- --------------------------
Name Xxxxx X. Xxxxxxx Name Xxxxx X. Xxxxxxxx
------------------------------- -------------------------------
Title Vice President Title Executive Vice President
----------------------------- ------------------------------
EXHIBIT A
Counterpart 2 of 2 counterparts. A security interest of a Bank in this Equipment
Schedule can only be perfected by possession by such Bank of Counterpart #1.
EQUIPMENT SCHEDULE M
TO MASTER LEASE AGREEMENT NUMBER R2529
This Equipment Schedule incorporates the terms and conditions of the above
Master Lease Agreement to the extent those terms and conditions are neither
amended by or otherwise inconsistent with the terms and conditions of this
Equipment Schedule. Any term not otherwise defined herein has the meaning given
it in the Master Lease Agreement. If there is any inconsistency between such
Master Lease Agreement and this Equipment Schedule, the terms of the Equipment
Schedule shall prevail.
EQUIPMENT SUBJECT TO THIS EQUIPMENT SCHEDULE
QTY. MODEL # DESCRIPTION
SEE ATTACHED EXHIBIT A
INITIAL TERM: 48 months
INITIAL RENTAL DATE: December 1, 1995
RENTAL PAYMENT: $2,358.00 per month.
EQUIPMENT LOCATION: ILX Incorporated
c/o Red Rock Collections
0000 X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
DISCOUNT RATE: 4% % per annum, compounded monthly.
ACCEPTED BY; ACCEPTED BY:
CRA, INC. ILX INCORPORATED
By ILLEGIBLE By /s/ Xxxxx X. Xxxxx
------------------------------- --------------------------------
Title Vice President Title Executive Vice President
---------------------------- -----------------------------
Date 12/21/95 Date 12/21/95
----------------------------- ------------------------------
EXHIBIT B
ACCEPTANCE LETTER
This acceptance letter covers the equipment described below and referenced in
Equipment Schedule _______________to Master Lease Agreement Number ___________.
Model Serial
Quantity Number Description Number
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xxx xxxx xxxxxxxxxx xxxxx
INSTALLED AT:___________________________________________________________________
We hereby acknowledge that on ___________________ the Equipment described in the
Equipment Schedule referred to above has been properly installed, is operating
satisfactorily and has been accepted by _________________________ under a
standard maintenance contract.
We will make all payments to Lessor its order. We agree that any rights we have
against the supplier or manufacturer of subject Equipment will not be asserted
as a counterclaim or defense against our Lease obligations.
Lessor is neither the manufacturer, distributor nor seller of the Equipment and
has no control, knowledge or familiarity with the conditioning, capacity,
functioning or other characteristics of the Equipment.
By signature below we authorize Lessor to make payment to the supplier of the
Equipment described in the referenced Equipment Schedule.
We agree that said Equipment has been unconditionally accepted by the
undersigned.
We acknowledge that the provisions of the referenced Master Lease Agreement and
Equipment Schedule and of this Acceptance Letter are in full force and effect.
LESSEE:
--------------------------------
BY:
--------------------------------
TITLE:
--------------------------------
DATE:
--------------------------------
