FIRST AMENDMENT TO
LEASE ORDER TERMS
AND CONDITIONS
This FIRST AMENDMENT, dated as of June 28, 1988, between Ford Motor
Company ("Lessee") and American Finance Group ("Lessor") amends Lease Order
Terms and Conditions dated as of April 5, 1988, between Lessee and Lessor (the
"Lease Order"), as follows.
1. Section 6 of the Lease Order Terms and Conditions is hereby amended
and restated to read in its entirety as follows:
"6. Acceptance
Lessee shall accept the Equipment if the Equipment has operated
efficiently for the period indicated in this Lease Order as the "Acceptance
Period" in conformance with both technical specifications therefor and any
proposal submitted to Lessee by Lessor. Lessee's acceptance shall be evidenced
by its execution and delivery to Lessor of the "Certificate of Acceptance" in
the form attached as Exhibit A. Lessee represents and warrants that Lessor is
entitled to rely without independent verification or investigation on each such
Certificate of Acceptance bearing a signature purporting to be that of a
representative of Lessee as a true and genuine signature of a duly authorized
agent of Lessee, valid and binding against Lessee for purposes of acceptance
hereunder. Rental shall begin to accrue as of the first day of the acceptance
period (the "Rental Start Date") at the Daily Acceptance Period Rent per unit of
Equipment accepted shown on the Lease Order (such Daily Acceptance Period Rent
being calculated as the per diem amount, per unit accepted, of the Monthly Rent
based on a thirty-day month). Rental at the Monthly Rent shown on the Lease
Order shall accrue and be payable in advance commencing as of the first day of
calender quarter following the month in which the last unit of Equipment under a
Lease Order has been accepted. (Lease Rate Factors shown on the Lease Order are
the multiple which, applied to the per Unit or aggregate Equipment Cost (as the
case may be), produce the Acceptance Period Rent per Unit or the Monthly Rent,
respectively.)"
2. This First Amendment shall apply to all equipment leased pursuant to
Lease Orders for which the Rental Start Date is on or after May 5,
1988.
IN WITNESS WHEREOF the parties hereto have caused this First Amendment to
be executed and delivered by their duly authorized representatives as of the
date first above written.
AMERICAN FINANCE GROUP
By: /s/ [Illegible]
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Title: Associate General Counsel and Assistant Secretary
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FORD MOTOR COMPANY
By: /s/ X. X. Xxxxxxxx
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Title: Director
Facilities & Tools Purchasing Office
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AMENDMENT TO LEASE ORDER TERMS AND CONDITIONS
BETWEEN FORD MOTOR COMPANY, LESSEE, AND
AMERICAN FINANCE GROUP, INC., LESSOR
The Agreement between Ford Motor Company, as lessee ("Lessee"), and
American Finance Group, Inc., as lessor ("Lessor") effective April 5, 1988 which
established the Lease Order Terms and Conditions for certain personal property,
is hereby amended as follows:
The following is added to Paragraph 13:
(d) Lessor acknowledges and agrees that Lessee shall have no
responsibility to deal with any investors ("Investors") in any
trust, limited partnership or other entity sponsored and
managed by Lessor or its affiliates ("Investment Program") to
which Lessor may assign its rights pursuant to subsection 13
(a) above, in connection with the Leases or the Equipment.
Upon referral by Lessee to Lessor, Lessor shall promptly and
diligently investigate and handle any inquiries or claims or
provide other information as requested by any such Investors.
For so long as no Event of Default has occurred and is
continuing under the Leases, Lessor indemnifies Lessee and
holds Lessee harmless from and against any costs, claims,
losses or liabilities incurred or suffered by Lessee to the
extent resulting from Lessor's assignment of a Lease to an
Investment Program.
This amendment is retroactive to April 5, 1988.
FORD MOTOR COMPANY AMERICAN FINANCE GROUP
By: /s/ X.X. Xxxxxx 12-18-90 By: /s/ [Illegible]
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Title: Buyer Title: Manager
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Date: 11/19/90 Date: 11/19/91
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SECOND AMENDMENT TO LEASE ORDER TERMS AND CONDITIONS
This SECOND AMENDMENT, dated as of May 19, 1989, between Ford Motor
Company ("Lessee") and American Finance Group ("Lessor") amends Lease Order
Terms and Conditions dated as of April 5, 1988, between Lessee and Lessor (as
successor in interest to American Finance Group, Inc.) (the "Lease Order Terms
and Conditions") as follows:
1. Section 6 of the Lease Order Terms and Conditions is hereby amended and
restated to read in its entirety as follows:
"6. Acceptance
Lessee shall accept the Equipment if the Equipment has operated
efficiently for the period indicated in this Lease Order as the
"Acceptance Period" in conformance with both technical specifications
therefor and any proposal submitted to Lessee by Lessor. Lessee's
acceptance shall be evidenced by its execution and delivery to Lessor of
the "Acceptance Certificate" in the form attached as Exhibit A. Lessee
represents and warrants that Lessor is entitled to rely without
independent verification or investigation on each such Acceptance
Certificate bearing a signature purporting to be that of a representative
of Lessee as a true and genuine signature of a duly authorized agent of
Lessee, valid and binding against Lessee for purposes of acceptance
hereunder and for purposes of enforcement of the Lease. Rentals shall
begin to accrue as of the first day of the acceptance period (the "Rental
Start Date") at the Daily Acceptance Period Rent per unit of Equipment
accepted shown on the Lease Order (such Daily Acceptance Period Rent being
calculated as the per diem amount, per unit accepted, of the Monthly Rent
based on a thirty-day month). Rental at the Monthly Rent shown on the
Lease Order shall accrue and be payable in advance commencing as of the
first day of the month following the month in which the last unit of
Equipment under a Lease Order has been accepted. (Lease Rate Factors shown
on the Lease Order are the multiple which, applied to the per Unit or
aggregate Equipment Cost (as the case may be), produce the Acceptance
Period Rent per Unit or the Monthly Rent, respectively.)"
2. For all purposes under the Lease Order Terms and Conditions and Lease
Orders, "Basic Rent" and "Monthly Rent" shall be synonymous.
3. This Second Amendment shall apply to all equipment leased pursuant to
Lease Orders for which the Rental Start Date is on or after May 19, 1989.
As amended hereby, the Lease Order Terms and Conditions are hereby
approved, confirmed and ratified and are in full force and effect.
IN WITNESS WHEREOF the parties hereto have caused this Second Amendment to
be executed and delivered by their duly authorized representatives as of the
date first above written.
FORD MOTOR COMPANY AMERICAN FINANCE GROUP
By: /s/ X.X. Xxxxxx 12-18-90 By: /s/ [Illegible]
-------------------------- ----------------------
Title: Buyer Title:
-------------------------- ----------------------
0897G
ATTACHMENT A TO LEASE/PURCHASE ORDER NO. _________________________
Lessor: AMERICAN FINANCE GROUP, INC.
Address: Exchange Place
Boston, Massachusetts 02109
Lessee: FORD MOTOR COMPANY
Address: Xxx Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
LEASE ORDER TERMS AND CONDITIONS
1. Lease; Entire Agreement
This Attachment, dated as of April 5, 1988, sets forth the terms and
conditions governing the lease of certain items of personal property (the
"Equipment") described on the face of the Lease Order to which this
document is attached. This attachment, such lease/purchase order and any
other attachments thereto shall constitute the "Lease Order" as such term
is used herein and the entire agreement between the parties thereto;
provided, however, that the printed terms and conditions (if any) on the
reverse side of such lease/purchase Order shall have no force and effect.
In the event of a conflict between the typewritten terms and conditions on
the face of the Lease Order and the terms and conditions set forth herein,
the typewritten terms and conditions on the face of the Lease Order shall
govern.
2. Term; Rental Payments
(a) The term of the Lease Order is set forth on the face of this Lease
Order and shall commence on the Rental Start Date as defined herein.
(b) Lessee shall make rental payments to Lessor for lease of the
Equipment in the amounts and on the dates specified in this Lease
Order. All rental or other payments by Lessee to Lessor shall be
made to Lessor at the address set forth in this Lease Order or at
such other address as Lessor may hereafter direct in writing.
3. Net Lease; Lessee's Indemnity; No Warranties By Lessor.
Rent is net of, and Lessee agrees to pay, and will indemnify and hold
Lessor and any assignee of Lessor harmless from and against, all costs
(including, without limitation, maintenance, repair and insurance costs),
claims (but excluding third-party suits based solely on a claim of
product liability or strict liability in tort), losses or liabilities
relating to the Equipment or its use that are incurred by or asserted
against Lessee, any permitted sublessee of Lessee, Lessor or any assignee
of Lessor and arise out of matters occurring prior to the return of the
Equipment (i) unless Lessor's intentional misconduct or negligence is the
direct and proximate cause of the foregoing, and (ii) other than liens and
security interests created by Lessor and (iii) other than taxes, fees,
charges and assessments described in section 5(b) hereof. The Lease Order
is for
purposes of providing lease financing only. Lessor is not a dealer,
supplier, manufacturer or vendor of the Equipment, and Lessee is solely
responsible for the selection of the Equipment, the manufacturer and
vendor thereof in accordance with Lessee's specifications and for the
inspection, acceptance, use and maintenance of the Equipment. Lessee
agrees that it shall not initiate or participate, by joinder or otherwise,
in a claim or counterclaim against Lessor of product liability or strict
liability in tort and will object by appropriate proceeding to the
inclusion of Lessor as a defendant in any proceeding based upon such a
claim. The Lease Order is a triple net lease. Lessee's obligations are not
subject to defense, counterclaim, set-off, abatement or recoupment, and
Lessee waives all rights to terminate or surrender the Lease Order, for
any reason, including, without limitation, defect in the Equipment or
nonperformance by Lessor, provided, however, that Lessee specifically
retains the right to seek recourse against Lessor by way of separate
action either at law or in equity in the event of nonperformance by Lessor
under the Lease Order. LESSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. Lessor will assign to
Lessee all manufacturer or vendor warranties and will cooperate with
Lessee in asserting any claims under such warranties.
4. Use, Maintenance and Repairs
The Equipment is to be used exclusively by Lessee in the conduct of its
business, only for the purposes for which it was designed. The Equipment
is not to be removed from the location specified on the Lease Order except
upon prior written notice to Lessor, and in no event may the Equipment be
moved to a location outside the continental United States without the
prior written consent of Lessor, which consent shall not be unreasonably
withheld. Lessee will effect all maintenance and repairs necessary to keep
the Equipment in good and efficient operating condition and appearance,
reasonable wear and tear excepted. All maintenance and repairs will be
made in accordance with the manufacturer's recommendations and by
authorized representatives of the manufacturer or by persons of equal
skill and knowledge whose work will not adversely affect any applicable
manufacturer's or vendor's warranty.
5. Compliance with Laws; Taxes
(a) Lessee shall comply with and conform to all laws and regulations
relating to the possession, use and maintenance of the Equipment,
and shall save Lessor harmless against actual or asserted violations
thereof.
(b) Lessee agrees to prepare and file all required returns or reports
and to pay all sales, gross receipts, personal property and other
taxes, fees, interest, fines or penalties imposed by any
governmental authority relating in any way to the Equipment, except
taxes measured by the net worth, net or gross income or profit of
Lessor, including the Michigan Single Business Tax, which shall be
solely the responsibility of Lessor. Notwithstanding the foregoing,
Lessor will report and pay all use taxes and Lessee will pay to
Lessor, on each Basic Rent Payment Date, as additional rent, an
amount equal to the use taxes attributable to that payment of Basic
Rent. If any item of Equipment is located in a taxing jurisdiction
that does not allow Lessee to report and pay personal property taxes
directly, Lessee will prepare an appropriate tax return to be
delivered, together with funds equal to the taxes Lessee claims are
due on such return, to
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Lessor not less than ten (10) days prior to the date such taxes are
due. The state and local retail sales and use tax status of the
Equipment shall be indicated on the face of this Lease Order.
6. Acceptance
Lessee shall accept the Equipment if the Equipment has operated
efficiently for the period indicated in this Lease Order as the
"Acceptance Period" in conformance with both technical specifications
therefor and any proposal submitted to Lessee by Lessor. Lessee's
acceptance shall be evidenced by its execution and delivery to Lessor of
the "Certificate of Acceptance" in the form attached as Exhibit A. Lessee
represents and warrants that Lessor is entitled to rely without
independent verification or investigation on each such Certificate of
Acceptance bearing a signature purporting to be that of a representative
of Lessee as a true and genuine signature of a duly authorized agent of
Lessee, valid and binding against Lessee for purposes of acceptance
hereunder. Rental shall begin to accrue as of the first day of the
acceptance period (the "Rental Start Date") at the Daily Acceptance Period
Rent per unit of Equipment accepted shown on the Lease Order (such Daily
Acceptance Period Rate being calculated as the per diem amount, per unit
accepted, of the Monthly Rent based on a thirty-day month). Rental at the
Monthly Rent shown on the Lease Order shall accrue and be payable in
advance commencing as of the first day of month following the month in
which the last unit of Equipment under a Lease Order has been accepted.
(Lease Rate Factors shown on the Lease Order are the multiple which,
applied to the per Unit or aggregate Equipment Cost (as the case may be),
produce the Acceptance Period Rent per Unit or the Monthly Rent,
respectively.)
7. License
Lessor grants to Lessee a nonexclusive, nontransferable license to use the
software products, including related documentation, provided with the
Equipment solely for Lessee's own use on or with the Equipment. Lessee
will not sell, transfer, disclose, or otherwise make available such
software products or copies thereof to third parties; provided, however,
that the software products may be disclosed on a need-to-know basis to
Lessee's employees or independent contractors using the Equipment. No
title or ownership of the software products or any portion thereof is
transferred to Lessee. The license granted herein shall terminate upon
termination of this Lease Order, and Lessee agrees, upon termination, to
return or destroy the software products and all portions or copies
thereof.
8. Transportation Expenses
(a) Unless otherwise indicated in this Lease Order, all Equipment
transportation, rigging and drayage charges shall be paid by Lessee.
Lessee shall furnish such labor as may be necessary for packing and
unpacking Equipment when in the possession of Lessee.
(b) All shipments of Equipment shall be made by a method specified by
Lessee.
9. Risk of Loss.
Lessee will bear all risk of loss with respect to the Equipment during the
Lease Term and until the Equipment is returned to Lessor. Lessee will
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notify Lessor promptly in writing if any item of Equipment is lost,
stolen, requisitioned by a governmental authority or damaged beyond repair
(each a "Casualty"), describing the Casualty in reasonable detail, and
will promptly file a claim under appropriate policies of insurance. Lessee
may, with the prior written consent of Lessor, replace the Equipment
suffering a Casualty with similar items of at least equal value and
utility. If Lessee does not replace the Equipment, Lessee will pay to
Lessor on the next Payment Date following the Casualty, in addition to
Basic Rent and other sums due on that date, an amount equal to the
Casualty Value specified on the Lease Order for such Equipment. The Lease
Order, solely as it relates to the Equipment suffering the Casualty, will
terminate and ownership of the Equipment suffering the Casualty, including
all claims for insurance proceeds or condemnation awards, will pass to
Lessee upon receipt of such payment by Lessor.
10. Insurance.
Lessee agrees, directly or through an agent, to maintain policies of
insurance on the Equipment in amounts, against risks and on terms and
conditions applicable to other equipment owned or leased by Lessee and
similar to the Equipment. Such insurance will at a minimum include (i)
physical damage and theft insurance in an amount at least equal to the
Casualty Value set forth on the Lease Order for such Equipment and (ii)
comprehensive liability insurance in the amount of at least $5,000,000 per
occurrence, in each case with deductibles not in excess of $100,000. All
policies (A) are to be maintained with insurers acceptable to Lessor; (B)
are to name Lessor and its assignees as loss payees with respect to
physical damage and theft and as additional insureds with respect to
liability, as their interests may appear; and (C) are to provide that they
may not be altered or cancelled except upon thirty days prior written
notice to Lessor and each of Lessor's assignees named as additional
insured and loss payee. Lessee agrees to deliver to Lessor such
certificates of insurance as Lessor may, from time to time, request.
Lessor may hold any insurance proceeds as security for Lessee's
performance of its obligations with respect to the Equipment on behalf of
which the proceeds were paid and the payment of all rent and other sums
then due and unpaid under the Lease Order and will pay such proceeds over
to Lessee only upon receipt of satisfactory evidence thereof. Lessor
accepts Lessee's current practices of self-insurance in satisfaction of
the requirements set forth above.
11. Quiet Possession and Use
(a) Title to the Equipment shall remain in Lessor, and Lessee shall keep
the Equipment free and clear of any and all liens, charges and
encumbrances of any party claiming by or through Lessee.
(b) Lessor convenants and warrants to and with Lessee that Lessor is the
lawful owner of the Equipment, free from all encumbrances, and that,
subject to Lessee performing the conditions hereof, Lessee shall
peaceably and quietly hold, possess and use the Equipment during the
term of this Lease Order. Lessor shall indemnify and hold harmless
Lessee and will protect and defend, at its sole expense, the rights
of Lessee described in this Paragraph against any claims against or
encumbrances on the Equipment asserted by or through Lessor.
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12. Lessee's Right to Sublease and Assign
Provided that Lessee is not in default hereunder, Lessee shall have the
following rights to sublease the Equipment or assign this Lease Order for
the remainder of the applicable lease term; provided, however, that
Lessee shall remain responsible for all provisions and obligations of
this Lease Order:
(a) Lessee may sublease the Equipment to a Ford Affiliated Company upon
reasonable prior notice to Lessor (a "Ford Affiliated Company" is
any subsidiary or affiliate of Lessee 51% of the voting stock or
assets of which are indirectly or directly owned or controlled by
Lessee); or
(b) Lessee may sublease the Equipment or assign this Lease Order to any
other party upon 30 days prior written notice to Lessor and provided
that Lessor consents in writing to such sublessee or assignee and
all terms and conditions of such sublease or assignment, such
consent not to be unreasonably withheld.
13. Assignment by Lessor
(a) Lessor may at any time and from time to time transfer, assign or
grant a security interest in its rights under this Lease Order, the
Equipment and/or the rental payments and other sums at any time due
and to become due, or at any time owing or payable, by Lessee to
Lessor under any of the provisions of this Lease Order, provided
that Lessor gives Lessee 30 days prior written notice of any
proposed transfer, assignment or grant occurring under this
Paragraph 16(a) and obtains Lessee's prior written approval, which
approval shall not be unreasonably withheld, provided, however, that
no notice to or consent by Lessee is required for an assignment to a
trust, limited partnership or other entity sponsored and managed by
Lessor or its affiliates. Any such assignment may be either absolute
or as collateral security for indebtedness of Lessor. There shall be
only one absolute assignee and one collateral assignee at any one
time. It shall be reasonable for Lessee to withhold its approval if
the proposed transfer, assignment or grant of a security interest
would in any way affect any then existing loan commitments or lines
of credit of Lessee or any member of Lessee's "Affiliated Group"
with such assignee or with any corporation that is a member of an
"Affiliated Group" of which such assignee is also a member. The term
"Affiliated Group" shall have the meaning set forth in Section
1504(a) of the Internal Revenue Code.
(b) No such assignee shall be obligated to perform any duty, covenant or
condition required to be performed by Lessor under any of the terms
and conditions hereof; provided, however, that such assignee shall
be obligated to comply with this Paragraph in the event such
assignee proposes to further transfer, assign or grant a security
interest in its rights under this Lease Order. Notwithstanding any
such assignment, each and every covenant, agreement, representation
and warranty of Lessor shall survive any such assignment and shall
be and remain the sole liability of Lessor and of every person, firm
or corporation succeeding (by merger, consolidation, purchase of
assets or otherwise) to all or substantially all of the business
assets or good will of Lessor. Without limiting the foregoing,
Lessee acknowledges and agrees that from and after the receipt by
Lessee of
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written notice of an assignment from Lessor (i) If so directed, all
rental and other payments which are the subject matter of the
assignment shall be paid to the assignee thereof at the place of
payment designated in such notice, (ii) if such assignment was made
for collateral purposes, the rights of any such assignee in and to
the rental and other payments by Lessee under any provisions of this
Lease Order shall be absolute and unconditional and shall not be
subject to any abatement whatsoever, or to any defense, set-off,
counterclaim or recoupment whatsoever by reason of any damage to or
loss or destruction of the Equipment, or any defect in or failure of
title of Lessor to the Equipment, or any interruption from
whatsoever cause (other than from any wrongful act of such assignee)
in the use, operation or possession of the Equipment or any
indebtedness or liability howsoever and whenever arising of Lessor
to Lessee or to any other person, firm, corporation or governmental
agency or taxing authority, or any misconduct or negligence of
Lessor, and (iii) the assignee shall have the sole right to exercise
all rights, privileges, consents and remedies (either in its own
name or in the name of Lessor for the use and benefit of the
assignee) which are permitted or provided to be exercised by Lessor.
Lessee shall confirm the above to such assignee in writing in such
form as such assignee may reasonably require. Lessee does not hereby
waive any claim which it may have against Lessor, any assignee or
any other party.
(c) It is further understood and agreed that if a security interest in
the Equipment is granted to an assignee of the rental payments as
additional security for indebtedness of Lessor, the security
agreement covering the Equipment shall expressly provide that the
right, title and interest of the secured party thereunder is subject
to the right and interest of Lessee in and to the Equipment pursuant
to this Lease Order.
14. Alterations and Attachments
Lessee may make or have made on its behalf alterations in and additions or
attachments to the Equipment which are necessary or desirable for the
maintenance or improvement of the Equipment, all at Lessee's sole cost and
expense, provided that no such alteration, addition or attachment reduces
the value or impairs the capabilities or efficiency of the Equipment or
violates the provisions of Revenue Procedure 79-48 or any successor rule,
regulation or Revenue Procedure. Lessor shall, at Lessee's sole expense,
execute and deliver from time to time such instruments, including but not
limited to orders for new equipment, components or modifications, and do
such other matters and things as may be necessary or appropriate to
Lessee's rights under this Paragraph 14. Any part, attachment,
appurtenance or accessory constituting a physical part of the Equipment
which cannot be readily removed without impairing the value or utility of
the Equipment and shall be deemed to be an accession to the Equipment and
shall from that time be deemed part of the Equipment, with title thereto
vesting in Lessor. Such alterations, additions or attachments shall not
modify the term of the lease of the Equipment with respect to which such
alterations, additions or attachments are made unless agreed to by Lessor
and Lessee. If Lessee shall affix the Equipment to any real property, the
Equipment shall remain personalty and shall not become part of the realty.
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15. Recordation
Lessee, upon demand in writing from Lessor, shall assist Lessor to cause
the Lease Order, all attachments and exhibits hereto and any and all
additional instruments or statements which shall be executed pursuant to
the terms hereof, so far as permitted by applicable law or regulations, to
be kept, filed, and recorded and to be re-executed, refiled, and
re-recorded at all times in the appropriate office and in such other
places, whether within or without the United States, as Lessor may
reasonably request to perfect and preserve its rights hereunder.
16. Inspection; Reports
Lessor may from time to time, upon reasonable notice and during Lessee's
normal business hours, inspect the Equipment and Lessee's records with
respect thereto and discuss Lessee's financial condition with
knowledgeable representatives of Lessee. Lessee will, if requested,
provide a report on the condition of the Equipment, a record of its
maintenance and repair, a summary of all items suffering a Casualty, a
certificate of no default or such other information or evidence of
compliance with Lessee's obligations under the Lease Order as Lessor may
reasonably request.
17. Late Payment Charges; Lessor's Right to Perform for Lessee
A Late Payment Charge equal to the lesser of the late payment charge
assessed against Lessor in connection with the financing of its purchase
of the Equipment or 2% per annum above the prime or base lending rate of
The First National Bank of Boston, as announced from time to time, will
accrue on any sum not paid when due for each day not paid, provided that
Lessor has furnished Lessee with an invoice therefor thirty (30) days
prior to the due date thereof and given ten business days' written notice
of such nonpayment. If Lessee fails to duly and promptly pay or perform
any of its obligations hereunder, Lessor may itself pay or perform such
obligations for the account of Lessee without thereby waiving any default
and Lessee will pay to Lessor, on demand and in addition to Basic Rent, an
amount equal to all sums so paid or expenses so incurred, plus a Late
Payment Charge accruing from the date such sums were paid or expenses
incurred by Lessor.
18. Lessee's Options Upon Lease Expiration
Lessee has the option at the expiration of the Lease Term, exerciseable
with respect to all, but not less than all, items of Equipment leased
pursuant to Lease Orders having the same Expiration Date, (i) to return
the Equipment to Lessor, (ii) to renew the Lease Order at fair rental
value for a Renewal Term the length of which shall be determined by
agreement of Lessee and Lessor or (iii) to purchase the Equipment for cash
at its then fair market value. Lessee agrees to provide Lessor written
notice of its decision to return or purchase the Equipment or renew the
Lease Order not less than 90 days prior to the Expiration Date. If Lessee
fails to give Lessor 90 days' written notice, the Lease Term may, at
Lessor's option, be extended and continue until 90 days from the date
Lessor receives written notice of Lessee's decision to return or purchase
the Equipment or renew the Lease Order. Fair market value, fair rental
value and useful life will be determined by agreement of Lessor and
Lessee, or if the parties cannot agree, by an independent equipment
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appraiser of nationally recognized standing selected by mutual agreement
of and paid equally by Lessor and Lessee. At the expiration of the Lease
Term or any extension or renewal thereof, Lessee will, at its expense,
assemble, pack, and crate the Equipment, all in accordance with
manufacturer's recommendations, if any, and deliver it by common carrier,
freight and insurance prepaid, to a place to be designated by Lessor
within the continental United States. All packaging will include related
maintenance logs, operating manuals, and other related materials and will
be clearly marked so as to identify the contents thereof. The Equipment
will be returned in good and efficient operating condition and appearance,
reasonable wear and tear excepted, and eligible for manufacturer's
maintenance, if available, free of all Lessee's markings and free of all
liens and encumbrances other than those created by Lessor or arising out
of claims against Lessor and not related to the lease of the Equipment to
Lessee. Lessor may, but is not required to, inspect the Equipment prior to
its return. If, upon inspection, Lessor determines that the condition of
any item of Equipment does not conform to the minimum requirements set
forth on Exhibit B hereto, Lessor will promptly notify Lessee of such
determination, specifying the repairs or refurbishments needed to place
the Equipment in the minimum acceptable condition. Lessor may, at its
option, either require Lessee to effect such repairs or itself effect such
repairs. Lessor may re-inspect the Equipment and require further repairs
as often as necessary until the Equipment is placed in acceptable
condition. In either case, all costs will be paid by Lessee. The Lease
Order shall continue in full force and effect and Lessee shall continue to
pay Basic Rent through and including the date on which the Equipment is
accepted for return by Lessor.
19. Lessee's Representations and Warranties
Lessee represents, warrants and certifies as of the date of execution and
delivery of each Lease Order as follows:
(a) Lessee is duly organized, validly existing and in good standing
under the laws of the state of its incorporation, with full power to
enter into and to pay and perform its obligations under the Lease
Order, and is duly qualifed and in good standing in all other
jurisdictions where its failure to so qualify would adversely affect
the conduct of its business or the performance of its obligations
under or the enforceablility of the Lease Order;
(b) the Lease Order and all related documents (including, without
limitation, the Certificate of Acceptance) have been duly
authorized, executed and delivered by Lessee, are enforceable
against Lessee in accordance with their terms and do not and will
not contravene any provisions of or constitute a default under
Lessee's organizational documents or its By Laws, any agreement to
which it is a party or by which it or its property is bound, or any
law regulation or order of any governmental authority;
(c) Lessor's right, title and interest in and to the Lease Order, the
Equipment and the rentals therefrom will not be affected or impaired
by the terms of any agreement or instrument by which Lessee or its
property is bound;
(d) no approval of, or filing with, any governmental authority or other
person is required in connection with Lessee's entering into or the
payment or performance of its obligations under the Lease Order;
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(e) there are no suits or proceedings pending or threatened before any
court or governmental agency against or affecting Lessee which, if
decided adversely to Lessee, would materially adversely affect
Lessee's business or financial condition or its ability to perform
any of its obligations under the Lease Order or this Master Lease
Agreement as incorporated therein by reference; and
(f) there has been no material adverse change to Lessee's financial
condition since the date of its most recent audited financial
statement.
20. Default
(a) If, during the continuance of this Lease Order, one or more of the
following events ("Events of Default") shall occur:
(i) Lessee shall fail to make any part of the rental payments
provided in Section 2 hereof within ten days after receipt of
written notice of nonpayment;
(ii) Lessee shall make or permit any unauthorized assignment or
transfer of this Lease Order or possession of the Equipment to
any third party.
(iii) Lessee shall fail to observe or perform any other material
covenant, condition and agreement of Lessee contained herein
and such failure shall continue for 30 days after written
notice thereof from Lessor to Lessee. If such Event of Default
is of such a nature that it cannot reasonably be cured within
30 days, then Lessee shall not be deemed in default during any
period of time that it takes Lessee to cure such Event of
Default, provided that Lessee notifies Lessor in writing that
efforts to cure such defaults have been commenced and Lessee
is diligently pursuing such cure in good faith;
(iv) Lessee shall have entered against it by a court of competent
jurisdiction a decree or order for relief in respect of the
Lessee in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafterin effect, or
appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Lessee or
for any substantial part of its property, or ordering the
winding up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 90
consecutive days; or
(v) Lessee shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law nor or hereafter
in effect, or consent or the entry of an order for relief in
an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trusteee, custodian, sequestrator (or similar
official of the Lessee) or for any substantial part of its
property, or make any general assignment for the benefit of
creditors, or fail generally to pay its debts as they become
due, or take any corporate action in furtherance of any of the
foregoing.
-9-
(b) Upon the occurrence of an Event of Default, Lessor may, without
notice to Lessee, declare the applicable Lease Order in default and
may exercise any of the following remedies:
I. at Lessor's option, and in its sole discretion either:
(i) declare all Basic Rent and other sums due or to become due under
the Lease Order immediately due and payable, and xxx to enforce the
payment thereof; or
(ii) receive from Lessee (and xxx to enforce the payment thereof),
as liquidated damages for loss of the bargain and not as a penalty,
and in addition to all accrued and unpaid Basic Rent and other sums
due under the Lease Order, an amount equal to the greater of (A) the
Casualty Value set forth on the Lease Order calculated after the
last payment of Basic Rent actually received by Lessor or (B) the
fair market value of the Equipment as of the date of default
determined by an appraiser selected by Lessor, plus, in either case,
interest thereon at the Late Payment Charge rate from the date of
default until the date of payment, and, after receipt in good funds
of the sums described above, Lessor will, if it has not already done
so, terminate the Lease Order and, at its option, either pay over to
Lessee as, when and if received, any net proceeds (after all costs
and expenses) from any disposition of the Equipment, or convey to
Lessee all of its right, title and interest in and to the Equipment,
as is, where is and with all faults, without recourse and without
warranty; and
II. without regard to whether Lessor has elected either option in
subsection I. above, Lessor may
(i) proceed by appropriate court action either at law or in equity
to enforce performance by Lessee of the covenants and terms of the
Lease Order and to recover damages for the breach thereof; and
(ii) terminate the Lease Order by written notice to Lessee,
whereupon all right of Lessee to use the Equipment will immediately
cease and Lessee will forthwith return the Equipment to Lessor in
accordance with the provisions hereof; and
(iii) repossess the Equipment and without notice to Lessee, dispose
of it by private or public, cash or credit sale or by lease to a
different lessee, in all events free and clear of any rights of
Lessee, and for this purpose Lessee hereby grants to Lessor and its
agents the right to enter upon the premises where the Equipment is
located and to remove the Equipment therefrom and Lessee agrees not
to interfere with the peaceful repossesion of the Equipment; and
(iv) recover from Lessee all costs and expenses arising out of
Lessee's default, including, without limitation, expenses of
repossession, storage, appraisal, repair, reconditioning and
disposition of the Equipment and reasonable attorneys' fees and
expenses.
-10-
(c) The Remedies provided for in this Lease Order shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all
other remedies existing at law or in equity. The failure or delay of
either party in exercising any rights granted it hereunder upon any
occurrence of any of the contingencies set forth herein shall not
constitute a waiver of any such right upon the continuation or
recurrence of any of such contingencies or similar contingencies and
any single or partial exercise of any particular right shall not
exhaust the same or constitute a waiver of any other right provided
herein.
21. Notice; Governing Law
All notices required hereunder shall be effective upon receipt in writing
delivered by hand or by other receipt-acknowledged method of delivery at the
address first above written. This Lease Order shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
AMERICAN FINANCE GROUP, INC. FORD MOTOR COMPANY
By: /s/ [Illegible] By: /s/ X. X. Xxxxxxxx
------------------------- ---------------------------
Title: Vice President Title: Director, Facilities and
------------------------- Tools Purchasing Office
------------------------
-11-
Exhibit A
To Lease Order Terms and Conditions
Between American Finance Group, Inc., Lessor,
and Ford Motor Company, Lessee,
dated April __, 1988.
ACCEPTANCE CERTIFICATE
The undersigned Ford Motor Company ("Lessee"), by its duly authorized
representative whose signature appears below, hereby represents, warrants and
certifies (a) that the Equipment described on the Internal Combustion Truck
Pre-Delivery/Delivery Report has been delivered to and inspected and found
satisfactory by Lessee and is accepted for lease by Lessee under Lease Order No.
_________ and the Lease Order Terms and Conditions dated April __, 1988 as
incorporated therein by reference, as of the Acceptance Date set forth below;
(b) all items of Equipment are new and unused as of the Acceptance Date, except
as otherwise specified, and (c) the representations and warranties of Lessee set
forth in the Lease Order Terms and Conditions are true and correct as of the
date hereof.
ACCEPTANCE DATE: ____________________
FORD MOTOR COMPANY
By:_____________________________
Authorized Signer
Accepted and Agreed To:
AMERICAN FINANCE GROUP, INC.
By__________________________________
Authorized Signer
[ATTACH INTERNAL COMBUSTION TRUCK PRE-DELIVERY/DELIVERY REPORT]
------------------------------------------------------------------------------
DATE DELIVERED LEASE SALE RENTAL DEMO HOUR METER MODEL SERIAL NUMBER
[ ] [ ] [ ] [ ]
------------------------------------------------------------------------------
UNIT CONFIGURATION
ENGINE
Manufacturer _____________________
Serial No. _______________________
Model ____________________________
FUEL
[ ] Gas [ ] L.P.G. [ ] Diesel
DIFFERENTIAL
[ ] Std. [ ] Lo-speed
TRANSMISSION
Manufacturer _____________________
Serial No. _______________________
Pt. No. __________________________
TYPE
[ ] Standard [ ] Powershift
UPRIGHT
Lift Height ______________________
Pt. No. __________________________
Control No. ______________________
[ ] Int. Free Lift [ ] Standard
[ ] Free Lift [ ] 3-Stage
[ ] Wide 3-Stage [ ] Heavy Duty
[ ] 4-Stage [ ] SPED
[ ] Other
CYL. ASSY. NO. & MFG. CODE
Main ____________________________
Free Lift _______________________
TIRE SIZE AND TYPE
Drive _________ Steer __________
[ ] Std. [ ] Std.
[ ] Poly [ ] Poly
[ ] Other [ ] Other
CARRIAGE TYPE
Pt. No. _________________________
Size ____________________________
[ ] Hook [ ] Pin
FORK
Pt. No. _________________________
[ ] Hook [ ] Pin [ ] Other
ATTACHMENT
Type ____________________________
Mfg. ____________________________
Model ___________________________
Serial No. ______________________
DEALER INSTALLED OPTIONS OR
ACCESSORIES
___________________________________
___________________________________
___________________________________
Pre-Delivery Check List
Xxxx box with "X" when item is checked and/or corrected per specifications prior
to delivery. Xxxx box with "O" when item does not apply.
[ ] Engine oil level [ ] Inching qualities
[ ] Cooling system fluid level [ ] Brake operation
[ ] Battery acid level [ ] Upright mounting hardware
[ ] Brake fluid level [ ] Upright adjustment & lube
[ ] Steering gear oil level [ ] Tilt limiters correct
[ ] Differential oil level [ ] Attachment mounting
[ ] Transmission oil level [ ] Steering operation
[ ] Hydraulic system oil level [ ] Hydraulic system operation
[ ] General lubrication (cold)
[ ] Tire inflation (cold) [ ] Hydraulic system operation
[ ] Hoses routed properly (loaded)
[ ] Air cleaner hose connections [ ] Attachment operation
[ ] Electrical connections & [ ] Oil & fluid leaks
wire routing [ ] Engine r.p.m.(idle & governed)
[ ] Horn [ ] Engine starting (hot)
[ ] Warning lights & gauges [ ] Wheel lugs & axis studs
[ ] Optional equipment retorqued
[ ] Engine starting (cold) [ ] Unit matches customer specs
[ ] Clutch shifting [ ] Condition of paint
[ ] Gear Shifting [ ] Name plate correct
[ ] U.L. Tag
Servicemen's Signature: ___________________________________________________
Date: _____________________________________________________________________
CUSTOMER DELIVERY SERVICE CHECK LIST
Review Owners & Operators Guide and Explain
Each Item to the Customer. Xxxx Each Box With an
"X" When Complete.
[ ] Capacity Limitations
[ ] Operator Safety Rules
[ ] Name Plate Correct
[ ] Location and Use of Instruments & Controls
[ ] Demonstrate Operator Procedures & Techniques
[ ] Routine Maintenance & Lube Requirements
[ ] Operation & Maintenance of Attachment
[ ] Warranty Policy
[ ] Parts Ordering Procedures
[ ] Dealer's After-Delivery Services
[ ] Parts Book Delivered
[ ] Keys Delivered
[ ] O. & O. Guide Delivered
[ ] S.I.O. Package (if applicable)
__________________________________
Dealer
__________________________________
Address
__________________________________
City State Zip
At the time of delivery, the Parts Manual, Owner's and
Operator's Guide and Warranty Policy were explained and
delivered. The delivery service was conducted as noted above.
x _______________________ _________________
Dealer Representative's Date
Signature
_______________________________
Owner
_______________________________
Address
_______________________________
City State Zip
This machine has been received in satisfactory condition. We
have received the Owner's and Operator's Guide and
instruction regarding the operation, maintenance, safety
practices and warranty policy in accordance with the Delivery
Check List and O & O Guide.
x _________________________ ________________
Customer Representative's Date
Signature
FACTORY COPY
Exhibit B
To Lease Order Terms and Conditions
Between American Finance Group, Inc., Lessor,
and Ford Motor Company, Lessee,
dated April __, 1988.
CONDITION OF EQUIPMENT AT EXPIRATION OF LEASE TERM:
1. When loaded to its rated capacity, each Unit shall:
(a) Start under its own power and idle without water or fuel leaks and
without oil leaks in excess of one drip per minute.
(b) Move through its normal speed ranges in both forward and reverse, in
normal operating manner.
(c) Steer normally right and left in both forward and reverse.
(d) Be able to stop with its service brakes within a safe distance, in
both forward and reverse.
(e) Lift, lower, and tilt normally with and without a load a minimum of
three (3) times. Oil leakage must not be such that there is more
than one drip per minute. Carriage, lift chains and channel assembly
shall be in working condition, normal wear and tear excepted.
(f) Electric trucks, if purchased with batteries, must be returned with
batteries that are capable of sustaining a charge that will permit
use of the equipment for an eight (8) hour shift.
(g) All motors shall operate without arcing and/or sparking.
2. Each Unit's attachment(s), if any, shall perform all of its required
functions, and each Unit's horn, parking brake, and lights shall be
operational.
3. Each Unit shall have tires with at least thirty-five percent (35%)
remaining tread, and without flat spots. Chunking shall be permitted, but
there shall be no chunks larger than a half dollar in size.
4. Each Unit shall be complete with all parts and pieces.
[LOGO] American Finance Group(SM)
May 9. 1989
Xx. Xxxxxx Xxxxxx
Buyer - Plant Equipment and Sales Section
Facilities and Tools Purchasing
FORD MOTOR COMPANY
The American Road
FMCC Bldg., Room 2421
Xxxxxxxx, XX 00000-0000
Re: Lease Order Terms and Conditions dated as of April 5, 1988 between
Ford Motor Company, as lessee ("Ford") and American Finance Group,
as lessor ("AFG")
Dear Xxx:
An oversight has come to our attention in connection with the referenced
Lease Order Terms and Conditions, which we intend to correct by this letter if
it is acceptable to you.
Section 9 of the Lease Order Terms and Conditions, which apply to all
Lease/Purchase Orders, provides procedures to follow in the event that any item
of equipment is destroyed, lost or requisitioned by the government. It states
that Ford may either replace the destroyed item of equipment or, at Ford's
option, pay AFG an agreed-upon amount as the casualty value of the destroyed
equipment. That agreed-upon amount, or "Casualty Value," was to be spelled out
in each Lease/Purchase Order.
We understand that, to meet its equipment needs, Ford is likely to replace
any destroyed equipment rather than do without. However, it has been our
oversight that in using your form of Lease/Purchase Order we have not been
furnishing the Casualty Values for each item of equipment subject to the orders.
Attached please find two schedules, Casualty Value Schedule A (for
three-year leases) and Casualty Value Schedule B (for five-year leases). These
schedules provide a declining percentage value, based on original equipment
cost, of equipment over the course of a three or five year lease. For the sake
of simplicity, we suggest that these Casualty Value Schedules be incorporated by
amendment into all existing Lease/Purchase Orders and apply automatically to
all future Lease/Purchase Orders unless we specifically agree otherwise.
Nothing in this letter is intended to impair Ford's ability to replace
destroyed equipment as provided in the Lease Order Terms and Conditions rather
than to pay the Casualty Value based on the attached formulas.
[LOGO] Xx. Xxxxxx Xxxxxx
May 9, 1989
Please let me know at your earliest convenience if the attached values and
the proposal set out in this letter are acceptable to you. If the values and
this letter are acceptable, please sign the enclosed counterpart of this letter
and return it to Xxxxxx Xxxxxx' attention as soon as possible.
Thanks for your help in resolving this issue.
Best regards,
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Associate General Counsel
and Vice President
Accepted and Agreed to:
FORD MOTOR COMPANY
By: /s/ X. X. Xxxxxx
-----------------------
X. X. Xxxxxx
Title: Buyer
--------------------
FORD MOTOR COMPANY
CASUALTY VALUES
(Stated as Percentage of Equipment Cost
AFTER
PRIMARY
TERM CASUALTY
PAYMENT NO. VALUE
------------ --------
Prior to 1 112.00
1 110.98
2 109.94
3 108.89
4 107.83
5 106.75
6 105.66
7 104.55
8 103.43
9 102.29
10 101.14
11 99.97
12 98.78
13 97.58
14 96.37
15 95.13
16 93.88
17 92.62
18 91.33
19 90.03
20 88.71
21 87.38
22 86.02
23 84.65
24 83.26
25 81.85
26 80.42
27 78.97
28 77.51
29 76.02
30 74.51
31 72.99
32 71.44
33 69.87
34 68.28
35 66.67
36 65.00
FORD MOTOR COMPANY
CASUALTY VALUES
(Stated as Percentage of Equipment Cost)
AFTER AFTER
PRIMARY PRIMARY
TERM CASUALTY TERM CASUALTY
PAYMENT NO. VALUE PAYMENT NO. VALUE
----------- -------- ----------- --------
Prior to 1 112.00
1 111.34 31 86.32
2 110.66 32 85.29
3 109.98 33 84.25
4 109.28 34 83.19
5 108.58 35 82.12
6 107.86 36 81.03
7 107.14 37 79.93
8 106.41 38 78.82
9 105.66 39 77.68
10 104.90 40 76.54
11 104.14 41 75.37
12 103.36 42 74.19
13 102.57 43 73.00
14 101.77 44 71.78
15 100.96 45 70.55
16 100.14 46 69.31
17 99.31 47 68.04
18 98.46 48 66.76
19 97.60 49 65.46
20 96.73 50 64.15
21 95.85 51 62.81
22 94.96 52 61.46
23 94.05 53 60.09
24 93.13 54 58.70
25 92.20 55 57.29
26 91.25 56 55.86
27 90.29 57 54.41
28 89.32 58 52.94
29 88.33 59 51.46
30 87.33 60 50.00
