EXHIBIT 99.1 (D)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of this 30th day of September,
1996 by and between RSL Finance Limited Partnership II, a Florida limited
partnership with its principal place of business at 0000 Xxxxx Xxxxxx, 000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000-0000 ("Purchaser") and the undersigned, a
Massachusetts limited partnership, with its principal place of business at 00
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 ("Seller").
Seller, directly as lessor or indirectly through limited partnership or
trust title holding vehicles, has entered into various rental schedules (in each
case, a "Rental Schedule" or a "Lease" and collectively the "Rental Schedules"
or the "Leases") to master lease agreements (in each case a "Master Lease" and
collectively, the "Master Leases") or various single purpose leases (also
hereinafter referred to individually as a "Lease" and collectively as "Leases")
with various parties as lessees (in each case a "Lessee"), with respect to the
leasing by each Lessee of various types of equipment, including some or all of
the following: aircraft, shipping vessels, motor vehicles, construction and
mining equipment, communications equipment, computer equipment and other like
equipment, as more fully described in each Lease (individually and collectively,
the "Equipment"), all as further described on Schedule A hereto.
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Seller desires to sell and assign, and Purchaser desires to purchase and
assume, all of Seller's right, title, interest, duties and obligations in, to
and under the Equipment and the Leases (collectively, the "Transferred Assets")
all on the terms and conditions as hereinafter set forth.
In consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller and
Purchaser hereby agree as follows:
ARTICLE I
SUBJECT MATTER
Subject to the terms and provisions of this Agreement, Seller agrees to
sell and Purchaser agrees to purchase all of Seller's right, title and interest
in and to the Equipment, and Seller hereby further agrees to assign, and
Purchaser agrees to assume, all of Seller's right, title, interest, duties and
obligations in, to and under the Leases, including all receivables relating to
Seller, from and after the closing (the "Closing"), except that Seller hereby
reserves and does not agree to transfer its right, title and interest in and to
the Reserved Rights. As used herein, "Reserved Rights" shall mean all
indemnities, including tax indemnities, liability insurance and the like to the
extent that such right, title and interest in such indemnities or liability
insurance proceeds have accrued in favor of Seller or the Owner Trustee (as
defined below) prior to the Closing. Seller shall and does hereby also agree to
assign to Purchaser, to the extent permitted by the terms thereof and by
applicable law, all of Seller's rights, whether express or implied, under any
vendor's or manufacturer's warranties, relating to the Equipment. Purchaser
acknowledges and agrees that title to certain Equipment ("Trust Equipment" or
"SPLP Equipment", as applicable) is held in, and the lessor of such Equipment
is, one or more equipment trusts (in each case, an "Equipment Trust" or
"Equipment Trusts") or special purpose limited partnerships (in each case, an
"SPLP" or "SPLPs"), beneficial interests ("Beneficial Interests") in which
trusts or limited partnerships are owned by Seller and legal title to which is
held by an owner trustee (in each case, the "Owner Trustee") or the SPLP, as
applicable.
ARTICLE II
PRICE AND PAYMENT
The purchase price (the "Purchase Price") of the Transferred Assets shall
be as set forth on Schedule B hereto and shall be payable in full in cash at the
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Closing by wire or other transfer of immediately available funds to Seller's
account as follows:
Fleet Bank, N.A.
New York, NY
ABA no. 000-000-000
AFG Rent Escrow Account
Account no. 0000-00-0000
or to such other bank account or accounts as may be designated in writing by
Seller at least one (1) business day prior to the Closing Date The Purchase
Price shall be determined as of the Closing as if the Closing had occurred on
August 1, 1996 and shall be adjusted by deducting therefrom (i) the net sales
proceeds or casualty payments in respect of any equipment described for sale in
that certain Xxxxxx/Xxxxxxx Inc. memorandum previously delivered to Purchaser
(excluding the MD-82 Aircraft on lease to Northwest Airlines, Inc.) to the
extent that such proceeds are received by Seller prior to closing, and (ii) all
base and month to month rents attributable to the period beginning August 1,
1996 and received by Seller prior to Closing. The Purchase Price shall be
increased by (i) the face value of all base rents receivable (unless such rent
receivable is attributable to a lessee in bankruptcy) attributable to the period
ending July 31, 1996, and (ii) an amount equal to interest at an annualized rate
of 8% for the period August 1, 1996 through the Closing Date.
ARTICLE III
TAXES
Seller shall be responsible for all Taxes (as hereinafter defined), and for
the submission of all filings required by the applicable taxing authorities,
relating to (i) the acquisition, ownership, use or leasing of the Equipment by
Seller, and (ii) the payment of periodic rentals or other sums due under each
Lease, including without limitation all sales, use and property taxes, including
interest and penalties thereon ("Taxes"), for all periods through but not
including the Closing. Purchaser shall be responsible for all Taxes and for the
submission of all filings required by the applicable taxing authorities from and
after the Closing. All taxes of any nature whatsoever, including without
limitation all sales or transfer taxes arising out of or in connection with the
assignment of the Leases or the sale of the Equipment contemplated herein, shall
be solely for the account of Purchaser.
ARTICLE IV
TITLE AND RISK OF LOSS
Title and risk of loss or damage to the Equipment shall pass to Purchaser
at the Closing.
ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser on and as of the date
hereof and the Closing Date as follows:
5.1 Authority. Seller is a limited partnership duly organized and validly
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existing under the laws of the jurisdiction of its organization with adequate
power to enter into this Agreement and each instrument and document executed by
Seller in connection with the transactions contemplated hereby (the "Transaction
Documents") to which Seller is a party and to consummate the transactions
contemplated hereby and thereby, and is duly qualified to do business in every
jurisdiction in which its failure to so qualify would have a material adverse
effect upon the transactions contemplated by this Agreement and the Transaction
Documents.
5.2 Execution, Delivery and Effect of Documents. Each of this
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Agreement and the Transaction Documents to which Seller is a party has been duly
authorized, executed and delivered by Seller and, assuming their due
authorization, execution and delivery by each of the other parties thereto,
constitutes a valid, legal and binding agreement of Seller enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors' rights.
5.3 Inconsistent Agreements. The entering into and performance of this
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Agreement and each of the Transaction Documents by Seller do not and will not
violate any provision of law, or any rule, regulation, order, decree or judgment
("Applicable Law") applicable to Seller and do not conflict with any provision
of Seller's organizational documents or result in any breach of, or constitute a
default under, any indenture, mortgage, deed of trust, contract, agreement or
instrument to which Seller is a party or by which it or its assets may be bound.
5.4 Legal Proceedings. There are no pending or, to the actual knowledge
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of Seller, threatened actions or proceedings to which Seller is a party, or
otherwise affecting Seller or the Transferred Assets, before any court or public
board or body ("Governmental Body"), which if determined adversely against
Seller, either individually or in the aggregate, would adversely affect the
ability of Seller to perform its obligations under, or comply with the terms of,
this Agreement and the Transaction Documents.
5.5 No Consents Required. No consent, approval or other authorization of
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or by any Governmental Authority is required in connection with the execution,
delivery or performance by Seller of, or the consummation by Seller of the
transactions contemplated by, this Agreement and the Transaction Documents,
except that no representation or warranty is made hereby in respect to the
applicability of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 (Pub.
L. No.94-435, 90 Stat. 1383 (1976) (the "Xxxx-Xxxxx-Xxxxxx Act") or the
necessity to make the filings required thereunder to the transactions
contemplated by this Agreement or the Transaction Documents.
5.6 Securities Laws. Seller has not, directly or indirectly, offered the
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Transferred Assets or any interest in the Transferred Assets or any interest or
security (as defined in Section 2(1) of the Securities Act of 1933, as amended)
relating to an interest in the Transferred Assets for sale to, or solicited any
offer to acquire any such interest or security from, or has sold any such
interest or security to, any person in violation of the federal or any
applicable state securities laws, and Seller will not, directly or indirectly,
make any such offer, solicitation or sale in violation of the federal or
applicable state securities laws.
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5.7 No Brokers, Etc. No agent, broker, person or firm acting on behalf of
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Seller or any Owner Trustee or any SPLP, or under the authority of Seller or any
Owner Trustee or any SPLP, is or shall be entitled to any commission or broker's
fee from Purchaser in connection with the transactions contemplated hereby.
5.8 Operative Documents. Not later than five (5) business days prior to
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the Closing, Seller will furnish or make available to Purchaser a true, correct
and complete copy of each and every operative document delivered to Seller in
connection with the purchase of the Equipment by Seller.
5.9 Good Title, Etc. On and as of the Closing, Seller will convey to
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Purchaser good title to the Equipment, free and clear of all liens and
encumbrances created or arising by reason of the action or inaction of Seller
other than (i) the leasehold estate of each Lessee under each Lease, (ii) any
liens created by any Owner Trustee and SPLP disclosed to Purchaser, and (iii)
liens created by such Lessees under and pursuant to such Leases or otherwise
(collectively, the "Permitted Liens").
5.10 Disclaimer of Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY
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PROVIDED HEREIN, THE SALE OF THE EQUIPMENT IS HEREBY MADE ON AN "AS-IS WHERE-IS"
BASIS. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED,
WITH RESPECT TO (i) THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION OF THE
FOREGOING, ITS SELECTION, QUALITY, DESIGN, CAPACITY, CONDITION, MERCHANTABILITY
OR ITS FITNESS FOR USE OR FOR ANY PARTICULAR PURPOSE AND FREEDOM FROM CLAIMS OF
COPYRIGHT OR PATENT INFRINGEMENT OR ABSENCE OF OBLIGATIONS BASED ON STRICT
LIABILITY IN TORT OR NEGLIGENCE, (ii) THE FREEDOM OF THE EQUIPMENT (OR ANY PART
OR PORTION THEREOF) FROM ANY LATENT OR OTHER DEFECT (WHETHER OR NOT
DISCOVERABLE), (iii)THE COMPLIANCE OF ANY OF THE EQUIPMENT (OR ANY PART OR
PORTION THEREOF) WITH ANY APPLICABLE LAWS OR REGULATIONS, (iv) THE
CREDITWORTHINESS OF EACH LESSEE OR ANY OTHER PERSON UNDER THE LEASES AND THE
TRANSACTION DOCUMENTS, (v) THE COLLECTIBILITY OF ANY AMOUNT UNDER THE LEASES AND
ANY OF THE TRANSACTION DOCUMENTS, (vi) THE TAX CHARACTERIZATION OF THE LEASES,
OR (vii) THE DUE AUTHORIZATION, EXECUTION AND DELIVERY BY, OR THE ENFORCEABILITY
AGAINST, ANY PERSON WHO IS OR HAS BEEN A PARTY TO THE LEASES AND ANY OF THE
TRANSACTION DOCUMENTS (WITH THE EXCEPTION OF THE SELLER) AND SELLER HEREBY
DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller on and as of the date
hereof and the Closing Date as follows:
6.1 Authority. Purchaser is a Florida limited partnership duly organized
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and validly existing under the laws of the jurisdiction of its organization with
adequate power to enter into this Agreement and the Transaction Documents to
which Purchaser is a party and to consummate the transactions contemplated
hereby and thereby and is duly qualified to do business in every jurisdiction in
which its failure to so qualify would have a material adverse effect upon the
transactions contemplated by this Agreement and the Transaction Documents.
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6.2 Execution, Delivery and Effect of Documents. Each of this Agreement
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and the Transaction Documents to which Purchaser is a party has been duly
authorized, executed and delivered by Purchaser and, assuming their due
authorization, execution and delivery by each of the other parties thereto,
constitutes a valid, legal and binding agreement of Purchaser enforceable in
accordance with its terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights.
6.3 Inconsistent Agreements. The entering into and performance of this
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Agreement and each of the Transaction Documents by Purchaser do not and will not
violate any provision of Applicable Law applicable to Purchaser and do not
conflict with any provision of Purchaser's organizational documents or result in
any breach of, or constitute a default under, any indenture, mortgage, deed of
trust, contract, agreement or instrument to which Purchaser is a party or by
which it or its assets may be bound.
6.4 Legal Proceedings. There are no pending or, to the actual knowledge of
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Purchaser, threatened actions or proceedings to which Purchaser is a party, or
otherwise affecting Purchaser, before any Governmental Body, which if determined
adversely against Purchaser, either individually or in the aggregate, would
adversely affect the ability of Purchaser to perform its obligations under, or
comply with the terms of, this Agreement and the Transaction Documents.
6.5 No Consents Required. No consent, approval or other authorization of
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or by any Governmental Authority is required in connection with the execution,
delivery or performance by Purchaser of, or the consummation by Purchaser of the
transactions contemplated by, this Agreement and the Transaction Documents.
Neither Seller nor Purchaser is required to make the filings required by the
Xxxx-Xxxxx-Xxxxxx Act and such statute is not applicable to the transactions
contemplated by this Agreement or the Transaction Documents.
6.6 No Brokers, Etc. No agent, broker, person or firm acting on behalf of
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Purchaser or under the authority of Purchaser is or shall be entitled to any
commission or broker's fees in connection with the transactions contemplated
hereby.
6.7 Securities Laws. Purchaser is acquiring the Transferred Assets for its
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own account for investment and not with a view to, or for sale in connection
with, any distribution thereof except as otherwise permitted by Rule 144A or
another exemption from registration under the Securities Act of 1933, as
amended. Neither it nor anyone authorized to act on its behalf has directly or
indirectly offered any interest in the Transferred Assets for sale to, or
solicited any offer to acquire any such interest or security from, or has sold
any such interest or security to, any person, and it will not directly or
indirectly make any such offer, solicitation or sale in violation of the
Securities Act of 1933, as amended, or applicable state laws.
6.8 ERISA. No part of the funds to be used by Purchaser to acquire the
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Transferred Assets under this Agreement constitutes assets of an employee
benefit plan within the meaning of Section 3(3) of ERISA or any trust created
under any such plan, or assets of a plan as defined in Section 4975(e)(1) of the
Code, or any trust created under any such plan. Purchaser will take no action
with respect to its participation in the transactions contemplated hereby which
would cause such participation to be a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code or any applicable regulation
under such sections.
ARTICLE VII
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CLOSING; CONDITIONS PRECEDENT; SURVIVAL
7.1 Closing. The closing of the transactions contemplated hereby shall
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take place at the offices of Seller or Seller's counsel or such other place as
determined by Seller on September 30, 1996 or such later date which shall not be
later than October 15, 1996, as the parties hereto shall mutually agree (the
"Closing Date"). If the Closing has not occurred by the Closing Date for any
reason, this Agreement shall terminate.
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7.2 Conditions Precedent.
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(a) The obligations of Seller hereunder are subject to satisfaction of
the following conditions at or prior to the Closing:
(i) Purchaser shall have performed all of its obligations specified
herein, to the reasonable satisfaction of Seller.
(ii) Each Lessee shall have consented to the sale of the Equipment and
the transfer of the Transferred Assets to Purchaser.
(iii) The representations and warranties of Purchaser contained in this
Agreement shall be true and correct on and as of the Closing Date.
(iv) Purchaser shall have delivered to Seller documentation reasonably
supporting the validity and enforceability of Purchaser's obligations under this
Agreement, which may include, without limitation, a clerk's or secretary's or
assistant clerk's or assistant secretary's certificate regarding incumbency and
authorizing resolutions and an opinion of counsel reasonably acceptable to
Seller.
(v) Purchaser shall have delivered to Seller a resale certificate for
each taxing jurisdiction in which the Equipment is located.
(vi) No action or proceeding shall have been instituted nor shall any
action or proceeding be threatened before any Governmental Body at the time of
the Closing to set aside, restrain, enjoin or prevent the execution and delivery
of this Agreement or any Transaction Document or the completion and consummation
of the transactions contemplated hereby and thereby.
(vii) Seller shall have received such other documents, instruments,
certificates and assurances as are reasonably requested by Seller or Seller's
counsel.
(viii) Seller shall have received the Purchase Price in accordance with
Article II of this Agreement.
(b) Purchaser's obligations hereunder are subject to the satisfaction
of the following conditions at or prior to the Closing:
(i) Seller shall have executed and delivered to Purchaser and Purchaser
shall have received an Assignment and Assumption Agreement, Xxxx of Sale and
Assignment of Interests in substantially the form of Exhibit A hereto.
(ii) Seller shall have delivered or made available to Purchaser an
originally duly executed copy of each Lease, and a certified true and complete
copy of each Master Lease, if applicable, all as may have been amended from time
to time up to and including the Closing Date.
(iii) Seller shall have delivered to Purchaser documentation reasonably
supporting the validity and enforceability of Seller's obligations under this
Agreement, which may include, without limitation a clerk's or assistant clerk's
certificate regarding incumbency and authorizing resolutions and an opinion of
counsel reasonably acceptable to Purchaser.
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(iv) Seller shall have delivered appropriate precautionary UCC-1
Financing Statements against each Lessee, assigned to Purchaser and
terminations, as requested, with respect thereto, except with respect to Trust
Equipment and SPLP Equipment.
(v) Seller shall have delivered to Purchaser a Release of Lien/UCC-3
Termination Statements (if applicable) executed by each institution (a "Lender")
which financed the acquisition or purchase of the Equipment by Seller except
with respect to liens constituting Permitted Liens.
(vi) Seller shall have provided or made available to Purchaser with
original, or certified copies of, invoices or other appropriate purchase
documentation establishing Seller's title in and to the Equipment, or that of
the Owner Trustee or SPLP, as appropriate.
(vii) Purchaser shall have received all documents and assurances,
including evidence of insurance coverage satisfactory to it, as required by each
Lease.
(viii) Seller shall have delivered to Purchaser a notice and
acknowledgment of assignment in form and substance reasonably acceptable to
Purchaser executed by Lessees leasing Equipment having an original equipment
cost equal to at least 25% of the original equipment cost of all of the
Equipment (provided that Equipment held in Equipment Trusts or SPLPs and for
which no assignment of lease is being made shall count toward such percentage).
(ix) Seller shall have performed all of its obligations specified
herein, to the reasonable satisfaction of Purchaser.
(x) The representations and warranties of Seller contained in this
Agreement shall be true and correct on and as of the Closing.
(xi) Purchaser shall have received such other documents, instruments,
certificates and assurances from Seller as are reasonably requested by Purchaser
or Purchaser's counsel.
7.3 Survival; Recourse. PURCHASER ACKNOWLEDGES THAT THE PRINCIPAL
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PURPOSE OF SELLER IN SELLING THE TRANSFERRED ASSETS IS TO LIQUIDATE SUCH ASSETS
AND DISTRIBUTE THE CASH TO ITS INVESTORS. THEREAFTER, SELLER AND ITS GENERAL
PARTNER INTEND TO TERMINATE THEIR RESPECTIVE BUSINESSES AND WINDUP OR DISSOLVE
THEIR AFFAIRS. ACCORDINGLY, PURCHASER ACKNOWLEDGES AND AGREES THAT ALL OF
SELLER'S REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN
SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT AND SHALL NOT SURVIVE ON
AND AFTER THE CLOSING. IN ADDITION, PURCHASER'S SOLE AND EXCLUSIVE REMEDY FOR A
BREACH BY SELLER OF ANY REPRESENTATION OR WARRANTY CONTAINED HEREIN OR IN ANY
TRANSACTION DOCUMENT OR A FAILURE TO PERFORM ANY OBLIGATION CONTAINED HEREIN OR
IN ANY TRANSACTION DOCUMENT SHALL BE TO NOT CLOSE THE TRANSACTIONS CONTEMPLATED
HEREBY. ACCORDINGLY, NEITHER SELLER NOR SELLER'S GENERAL PARTNER NOR ANY OF
THEIR PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND
ATTORNEYS, TOGETHER WITH THEIR PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND
ASSIGNS AND THE AFFILIATES OF ANY OF THE FOREGOING (THE "INDIRECT PARTIES")
SHALL, AT ANY TIME, HAVE ANY PERSONAL LIABILITY FOR ANY OBLIGATIONS HEREUNDER.
IN FURTHERANCE OF THE FOREGOING, PURCHASER HEREBY AGREES NOT TO SEEK A PERSONAL
JUDGMENT AGAINST SELLER OR SELLER'S GENERAL PARTNER OR ANY OF THE INDIRECT
PARTIES AT ANY TIME,
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WHETHER BEFORE OR AFTER THE CLOSING OR ANY SUCH WINDING UP OR DISSOLUTION OF
SELLER OR SELLER'S GENERAL PARTNER AND NOT TO SEEK TO OVERTURN OR RESCIND ANY
SUCH WINDING UP OR DISSOLUTION IN ORDER TO ASSERT ANY PERSONAL LIABILITY AGAINST
SELLER OR SELLER'S GENERAL PARTNER OR ANY OF THE INDIRECT PARTIES. PURCHASER
ACKNOWLEDGES AND AGREES THAT IT FULLY UNDERSTANDS THE FOREGOING LIMITATIONS ON
RECOURSE, THAT IT PERFORMED ITS DUE DILIGENCE IN RESPECT OF THE TRANSFERRED
ASSETS WITH SUCH LIMITATION IN MIND AND THAT THE PURCHASE PRICE REFLECTS THE
RISKS ASSOCIATED WITH SUCH LIMITATION.
ARTICLE VIII
DELIVERY
At the Closing, concurrently with Seller's performance of the conditions
set forth in Article VII, each of Purchaser shall accept delivery of the
Equipment and Seller shall acknowledge receipt of the Purchase Price by
executing and delivering to the other party a cross receipt in the form of
Exhibit B hereto.
ARTICLE IX
RECORDS
Contemporaneous with the Closing hereunder, Seller shall provide or make
available to Purchaser or its designee originals or copies of all log books,
service manuals, maintenance records and other similar documents in its
possession relating to the Equipment, including such documentation stored or
imaged on computer media.
ARTICLE X
INDEMNITY
10.01 Indemnity. Seller hereby agrees to indemnify, defend and hold
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Purchaser, together with its officers, directors, shareholders, partners,
employees, agents, and other similar parties, together with their successors and
assigns ("Indemnities") harmless from and against any and all claims, losses,
costs, damages, liabilities, injuries or expenses (including court costs and
reasonable attorneys' fees) wheresoever and howsoever arising which Purchaser
may incur by reason of any breach, violation or untruth of any of the terms,
conditions, representations, warranties, covenants and agreements set forth
herein or in any other Transaction Document to which Seller is a party, except
any of the foregoing resulting from Purchaser's gross negligence or willful
misconduct. Purchaser hereby agrees to indemnify, defend and hold Seller and
each Owner Trustee and each SPLP, their Indemnities and Equis Financial Group
("EFG") and its and Seller's Affiliates, harmless from and against any and all
claims, losses, costs, damages, liabilities, injuries or expenses (including
court costs and reasonable attorneys' fees) wheresoever and howsoever arising
which any of the foregoing parties may incur by reason of (i) any breach,
violation or untruth of any of the terms, conditions, representations,
warranties, covenants and agreements set forth herein or in any other
Transaction Document to which Purchaser is a party, or (ii) any interference
with the contractual or other relationships between any of the foregoing parties
and the Lessees under and pursuant to other leases between any of the foregoing
parties and such Lessees
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relating to other equipment, whether in the context of returning, re-leasing,
purchasing or otherwise; except any of the foregoing resulting from Seller's
gross negligence or willful misconduct, provided, however, that notwithstanding
the foregoing, Purchaser shall have the right at all times to strictly enforce
its legal rights and remedies under the Leases, irrespective of any purely
coincidental impact on such relationship. EFG and its and Seller's Affiliates
shall be third party beneficiaries of this Article X. As used herein,
"Affiliates" shall mean, with respect to any Person, any other Person which is
directly or indirectly controlling, controlled by or under common control with
such Person. The term "control" means the possession, directly or indirectly, of
the power, whether or not exercised, to direct or cause the direction of the
management or policies of any Person, whether through ownership of voting
securities, by contract or otherwise.
10.02 Indemnification Procedure.
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(i) The party seeking indemnification under this Article X (the
"Indemnified Party") shall, promptly after the Indemnified Party has notice or
knowledge of any proposed settlement, agreement, claim, action or proceeding
giving rise to such claim for indemnification, give to the party obliged to
provide indemnification hereunder (the "Indemnitor") a notice (a "Claim Notice")
describing in reasonable detail the facts giving rise to its claim for
indemnification hereunder, and shall include in such Claim Notice (if then
known) the amount or method of computation of the amount of the claim, and a
reference to the clause of Section 10.01 hereof upon which such claim is based;
provided, however, that the failure to so notify the Indemnitor shall not affect
the indemnity made hereunder or relieve the Indemnitor of its obligation to
indemnify such Indemnified Party, except and only to the extent that such
Indemnitor shall be unable to exercise its rights under clause (ii) below or
shall otherwise be materially prejudiced by such failure.
(ii) The Indemnitor, upon presentation of a Claim Notice, shall
retain counsel reasonably satisfactory to the Indemnified Party to participate
in and, to the extent the Indemnitor desires, to assume and control the defense
of any matter giving rise to a claim for indemnification, and shall pay the fees
and disbursements of such counsel relating to such claim for indemnification.
Any Indemnified Party shall be entitled, at its own expense, to participate in
any action, suit, claim or proceeding, the defense of which has been assumed by
the Indemnitor.
(iii) No Indemnified Party shall enter into any settlement or other
compromise with respect to any action, suit, claim or proceeding without the
prior written consent of the Indemnitor, which consent will not be unreasonably
withheld or delayed unless such Indemnified Party waives its right to be
indemnified under this Section. Without the prior written consent of the
Indemnified Party, the Indemnitor shall not effect any settlement of any claim
or pending or threatened proceeding in respect of which the Indemnified Party is
a party and indemnity could have been sought hereunder by the Indemnified Party,
unless such settlement includes an unconditional release of the Indemnified
Party from all liability or claims that are the subject matter of such
proceeding. Provided that an Indemnified Party has complied with this Section
10.02 in all material respects, if such Indemnified Party shall be required
under any order, writ or judgment of any applicable court or administrative
agency or authority to pay any amounts subject to the indemnity set forth
herein, the Indemnified Party shall be entitled to a prompt reimbursement of
such amount from the Indemnitor, and the provisions of this Section 10.02 shall
otherwise apply.
10.03 Tax Gross Up. With respect to any indemnity payment made pursuant to
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this Article, such indemnity payment shall include any amount necessary to hold
the Indemnified Party harmless on an after-tax basis from all federal and state
income taxes required to be paid by the Indemnified Party with respect to such
indemnity payment; provided, however, that if the Indemnified Party realizes a
tax
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benefit by reason of such indemnity payment, the Indemnified Party shall pay the
Indemnitor an amount equal to the net value to the Indemnified Party of such tax
benefit when, and to the extent, realized (such payments by the Indemnified
Party not to exceed in the aggregate the amount of related indemnity paid by the
Indemnitor), but not before the Indemnitor shall have made all indemnity
payments to or on behalf of the Indemnified Party required pursuant to this
Article X; provided, further, however, that if the Indemnified Party loses such
tax benefit subsequent to any payment to the Indemnitor with respect thereto,
the Indemnitor shall indemnify the Indemnified Party with respect to such loss
pursuant to the provisions of Section 10.02 hereof.
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ARTICLE XI
RESERVED RIGHTS; MISTAKEN PAYMENTS
11.1 Reserved Rights, Etc. If Purchaser shall collect any amount under any
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Lease or any Transaction Document or otherwise relating to the Reserved Rights
it shall, upon it being known to Purchaser to be an amount to which Seller or an
Owner Trustee or SPLP is entitled, promptly remit such amount to Seller or the
appropriate Owner Trustee or SPLP, as appropriate, and, until so delivered, any
such amount collected by Purchaser shall be held in trust by Purchaser for the
benefit of Seller or the Owner Trustee or SPLP, as applicable. Purchaser agrees
that, in matters relating to the Reserved Rights, it shall act in a manner
consistent with the rights of Seller as the predecessor owner and lessor of the
Equipment or as the predecessor beneficial owner under the Equipment Trust(s) or
SPLPs, and the Owner Trustee and the SPLP. If Seller shall receive any amount
under any Lease or any Transaction Document or otherwise relating to the period
from and after the Closing (other than any amounts in respect of Reserved Rights
and other than rent attributable to periods prior to the Closing), it shall
promptly remit such amount to Purchaser and, until so delivered, any such amount
collected by Seller shall be held in trust by Seller for the benefit of
Purchaser. Seller agrees that, in matters relating to amounts received by it
relating to any Lease or Transaction Document and pertaining to periods
subsequent to the Closing (other than any amounts in respect of Reserved Rights
and other than rent attributable to periods prior to the Closing), it shall act
in a manner consistent with the rights of Purchaser herein.
11.2 Mistaken Payments. Purchaser acknowledges that many of the Lessees
-----------------
will continue to lease equipment not being sold to Purchaser hereunder from one
or more Affiliates of Seller or EFG. It is likely that, notwithstanding the
efforts of Seller and Purchaser, certain of such Lessees may from time to time
mistakenly make a payment to Purchaser due to Seller under one or more such
other leases. Purchaser agrees to promptly remit any such amount to Seller and,
until so delivered, hold such payment in trust for Seller.
ARTICLE XII
CONFIDENTIALITY
Purchaser covenants and agrees to keep the terms of this Agreement and the
other Transaction Documents confidential and agrees not to disclose the same to
any person without the prior written consent of Seller or Seller's Affiliates,
provided that Purchaser shall have the right to disclose the same
(i) to its directors, officers, employees, auditors or counsel to whom
it is necessary to disclose such information, each of which shall be informed of
the confidential nature of the information;
(ii) to Fleet Bank, N.A. in connection with its financing of the
purchase of the Transferred Assets by Purchaser;
(iii) in any statement or testimony pursuant to a subpoena or order of
any Governmental Body or as otherwise required by law (provided that Purchaser
shall use its best efforts to give Seller prior written notice of such intended
disclosure unless such notice shall be prohibited by law); and
12
(iv) to the extent required in its financial statements.
ARTICLE XIII
MISCELLANEOUS
13.1 Expenses. Whether or not the transactions contemplated hereby shall
--------
be consummated, each of Seller and Purchaser shall be obligated in respect of
all of its own costs and expenses, including reasonable attorneys' fees, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the Transaction Documents.
13.2 Notices. Any communication to be given hereunder shall be given in
-------
writing and shall be sufficiently given when mailed prepaid, first class,
registered or certified mail return receipt requested or sent by facsimile
transmission to the party to which said notice is to be given at its address in
the preamble hereof unless such address is changed by notice given to the other
party. Notices to Seller shall be sent to the attention of Xxxx X. Xxxxx, and
notices to Purchaser shall be sent to the attention of Xxxxxx St. Louis,
President, RSL Holdings, Inc., General Partner.
13.3 Successors and Assigns. Neither party to this Agreement may assign
----------------------
its rights or obligations hereunder to any person or entity other than an
Affiliate, except that Purchaser shall have the right to collaterally assign its
rights hereunder to an institution financing Purchaser's obligations hereunder.
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and permitted assigns.
13.4 Headings and Gender. Section headings are not to be considered part
-------------------
of this Agreement. They are included solely for convenience, and are not
intended to be full or accurate descriptions of the contents thereof. As used in
this Agreement, the masculine, feminine or neuter gender and the singular and
plural number shall each be deemed to include the others whenever the context so
indicates.
13.5 Documents. All schedules, documents or exhibits referred to in this
---------
Agreement are integral parts of this Agreement and are incorporated herein by
this reference.
13.6 Entire Agreement. This Agreement and the other Transaction Documents
----------------
and all other documents and instruments referred to herein and appended hereto
as exhibits and/or schedules constitute the entire Agreement between the parties
and supersede and cancel all prior representations, negotiations, undertakings,
letters, acceptances, agreements, understandings, contracts and communications,
whether verbal or written, between the parties hereto or their agents, with
respect to or in connection with the subject matter of this Agreement and no
agreement or understanding varying the terms and conditions hereof shall be
binding on either party hereto unless in writing and duly signed by authorized
representatives of both parties.
13.7 Further Assurances. The parties hereto agree to execute and deliver,
------------------
or cause to be executed and delivered, such further instruments or documents and
take such other action as may be reasonably required effectively to carry out
the transactions contemplated herein.
13.8 Laws. This Agreement shall be governed by and interpreted in
----
accordance with the internal laws of The Commonwealth of Massachusetts.
13
13.9 Jurisdiction and Venue. The parties hereto hereby irrevocably submit
-----------------------
and consent to the non-exclusive personal jurisdiction of the appropriate state
or federal court located in Boston, Massachusetts, in any action or proceeding
relating in any way to this Agreement or the other Transaction Documents. Each
of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to venue in any of such
courts, and any claim that any such action or proceeding has been brought in an
inconvenient forum.
13.10 Counterparts. This Agreement may be executed by the parties hereto
------------
in separate counterparts, each of which when so executed and delivered shall be
an original but all such counterparts shall together constitute but one and the
same instrument.
14
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this instrument.
SELLER:
AMERICAN INCOME PARTNERS IV-C
LIMITED PARTNERSHIP
Witness:
By: AFG Leasing IV Incorporated,
------------------------ its sole general partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Its: Vice President
------------------------------
PURCHASER:
RSL FINANCE LIMITED PARTNERSHIP II
By: RSL Holdings, Inc., its sole general
partner
By: /s/ Xxxxxx St. Louis
------------------------------ ------------------------------
Its: President
-----------------------------
15
SCHEDULES: A - Description of Transferred Assets, Etc.
B - Purchase Price Breakdown
EXHIBITS: A - Form of Assignment and Assumption, Xxxx of Sale and Assignment
of Interests
B - Form of Cross Receipt
16
AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP
SCHEDULE A
MASTER RENTAL OWNERSHIP
LEASE NO. SCHEDULE PERCENTAGE
----------------------------------------------------------
EQUIPMENT
Lessee Name:
American National Can Company 8712ILG331 A-22RN4 100.0000000%
American National Can Company 8712ILG331 A-25RN1 100.0000000%
American National Can Company 8712ILG331 A-26RN3 100.0000000%
ARA Living Centers, Inc. 8803PAG343 A-4A 100.0000000%
Xxxxxx Healthcare Corporation 8209ILG122 G-10RN1 100.0000000%
Coca-Cola Foods 8606TXG240 B-6RN1 100.0000000%
Corning Glass Works 02/01/89 880361001RN1 100.0000000%
ARMCO, Inc. 8410PAG180 A&R E-4RN3 100.0000000%
ARMCO, Inc. 8410PAG180 A&R E-8RN1 100.0000000%
Dow Chemical Company USA 8608MIG816 D-7-32BRN1 100.0000000%
Federal Paper Board Company, Inc. 8504NJG193 A-41-67RN2 100.0000000%
Federal Paper Board Company, Inc. 8504NJG193 A-61-65RN2 100.0000000%
Federal Paper Board Company, Inc. 8504NJG193 A-61-65RN2A 100.0000000%
GAF Building Material Corporation 9312NJG484R F-1ARL1 100.0000000%
GAF Building Material Corporation 9312NJG484R H-1RL1 100.0000000%
The Xxxxxxx Company 8903MAG366 A-1RN2A 100.0000000%
The Xxxxxxx Company 8903MAG366 A-1RN2B 100.0000000%
Mobil Oil Corporation 8507NYG200 A-32RN2A 100.0000000%
Ford Motor Company 04/05/88 315435-8 100.0000000%
Ford Motor Company 04/05/88 411937 100.0000000%
Occidental Chemical Corporation 8806TXG353 A-2RN1 100.0000000%
LIMITED PARTNERSHIP INTERESTS
Partnership Name:
AIP/Tsuru Arrow Limited Partnership 12/30/88 TSURU-RN1 39.0000000%
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Tsuru Arrow Limited Partnership 12/30/88 TSURU-UPGRDE 39.0000000%
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Eagle Arrow Limited Partnership 06/01/89 EAGLE-RN1 60.0000000%
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Eagle Arrow Limited Partnership 06/01/89 EAGLE-UPGRDE 60.0000000%
[KGJS/Gearbulk Holding Limited, lessee]
ASSET DESCRIPTION
----------------------------------------------------------
EQUIPMENT
Lessee Name:
American National Can Company (2) KONICA COPIERS
American National Can Company XXXXXXX SWEEPER
American National Can Company HYSTER FORKLIFT
ARA Living Centers, Inc. VARIOUS SECURITY SYSTEMS
Xxxxxx Healthcare Corporation INT'L TRACTORS
Coca-Cola Foods BEVERAGE DISPENSERS
Corning Glass Works OKUMA LATHE
ARMCO, Inc. ERW AMALOG INSPECTION SYSTEM
ARMCO, Inc. ERW ULTRASONIC INSPECTION SYSTEM
Dow Chemical Company USA INTECOM TELEPHONE SYSTEM
Federal Paper Board Company, Inc. XXXXX PALLET TRUCK W/ ACCESS
Federal Paper Board Company, Inc. XXXXX CLAMP TRUCK
Federal Paper Board Company, Inc. XXXXXX XXXXXXXX TRACTOR & UPGRADE
GAF Building Material Corporation TESTING EQUIPMENT / MANUFACTURING
GAF Building Material Corporation TESTING EQUIPMENT / MANUFACTURING
The Xxxxxxx Company UPGRADE PHONE EQUIPMENT
The Xxxxxxx Company UPGRADE PHONE EQUIPMENT
Mobil Oil Corporation PRINTER
Ford Motor Company SCHAEFF E-4000-B FORKLIFTS
Ford Motor Company SCHAEFF SAFETY DOORS
Occidental Chemical Corporation XXXXXXXX MAT PRINTERS & SOFTWARE
LIMITED PARTNERSHIP INTERESTS
Partnership Name:
AIP/Tsuru Arrow Limited Partnership SHIPPING VESSEL
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Tsuru Arrow Limited Partnership SHIPPING VESSEL UPGRADE
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Eagle Arrow Limited Partnership SHIPPING VESSEL
[KGJS/Gearbulk Holding Limited, lessee]
AIP/Eagle Arrow Limited Partnership SHIPPING VESSEL UPGRADE
[KGJS/Gearbulk Holding Limited, lessee]
AMERICAN INCOME PARTNERS IV-C LIMITED PARTNERSHIP
SCHEDULE B
================================================================================
ADJUSTED PURCHASE PRICE BREAKDOWN
PURCHASE PRICE $35,000,000.00
PLUS: RECEIVABLES PURCHASED $344,961.62
LESS: ADJUSTMENTS ($2,003,128.27)
==============
ADJUSTED PURCHASE PRICE $33,341,833.35
================================================================================
PROGRAM'S SHARE OF TOTAL PROCEEDS FROM SALE $3,538,838.70
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT,
XXXX OF SALE AND ASSIGNMENT OF BENEFICIAL INTERESTS
THIS ASSIGNMENT AND ASSUMPTION, XXXX OF SALE AND ASSIGNMENT OF BENEFICIAL
INTERESTS (this "AGREEMENT") dated as of September 30, 1996, by and between the
undersigned, a Massachusetts limited partnership having its principal place of
business at 00 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Seller"),
and RSL Finance Limited Partnership II, a Florida limited partnership, having a
principal place of business at 0000 Xxxxx Xxxxxx, 000 Xxxxx Xxxxxxxx Xxxxxxxxx,
Xxxxx, XX 00000-0000 ("Purchaser"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in that certain Purchase
and Sale Agreement between Seller and Purchaser dated as of September 30, 1996
(the "P&S Agreement").
1. ASSIGNMENT OF LEASE.
Seller hereby sells, assigns, transfers and conveys to Purchaser all of
Seller's right, title, interest, duties and obligations (whether direct or
indirect, known or unknown, contingent or otherwise) in and to each Lease as set
forth on Schedule A hereto between Seller, as lessor and each lessee described
----------
therein (in each case a "Lessee"), with respect to the leasing by each Lessee of
certain equipment (as further described in each Lease, individually and
collectively, the "Equipment"), except that Seller hereby reserves and does not
transfer its right, title and interest in and to the Reserved Rights.
2. SALE OF THE EQUIPMENT.
Seller hereby sells and transfers to Purchaser all of its right, title and
interest in and to the Equipment, together with all warranties, express or
implied, received from the manufacturer or vendor thereof. Seller hereby
represents and warrants to Purchaser that subject to Section 3 hereof, Seller is
conveying good title to the Equipment, free and clear of all liens and
encumbrances other than Permitted Liens.
3. ASSIGNMENT OF BENEFICIAL INTERESTS.
Seller hereby sells, assigns, transfers and conveys to Purchaser all of
Seller's right, title, interest, duties and obligations in and to the Beneficial
Interests owned by Seller in each Equipment Trust and SPLP holding title to the
Equipment, all as further set forth on Schedule A hereto. Seller hereby
-----------------
represents and warrants to Purchaser that each such Beneficial Interest is free
and clear of all liens and encumbrances except Permitted Liens.
4. TAXES
All taxes in any way arising out of this transaction, including without
limitation transfer taxes arising out of the assignment of each Lease, the
assignment of the Beneficial Interests, and the sale of the Equipment shall be
solely for the account of the Purchaser.
5. REPRESENTATIONS AND WARRANTIES OF SELLER.
19
(a) Seller, in order to induce Purchaser to enter into this Agreement,
hereby ratifies and confirms each of its representations and warranties as
contained in the P&S Agreement, which provisions are incorporated herein by
reference.
(b) Seller has delivered or made available to Purchaser a complete and
correct original counterpart of each Lease, and no other agreements, instruments
or documents exist between Seller or each Owner Trustee or each SPLP and each
Lessee relating to the Equipment and the Lease that are in force and effect.
Each Lease constitutes the entire agreement between the Lessee and Seller with
respect to the Equipment and no other assignments, amendments, modifications,
waivers or consents have been entered into with respect to each Lease. Each
Lease is in full force and effect and, to Seller's actual knowledge, (i) no
event of default has occurred and is continuing thereunder; (ii) the rents
payable under each Lease are not subject to any defenses, setoffs, or
counterclaims; and (iii) Seller has not made any assignment of any Lease except
to a Lender.
(c) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SALE OF THE
EQUIPMENT IS HEREBY MADE ON AN "AS-IS WHERE-IS" BASIS. SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO (i) THE
EQUIPMENT, INCLUDING, WITHOUT LIMITATION OF THE FOREGOING, ITS SELECTION,
QUALITY, DESIGN, CAPACITY, CONDITION, MERCHANTABILITY OR ITS FITNESS FOR USE OR
FOR ANY PARTICULAR PURPOSE AND FREEDOM FROM CLAIMS OF COPYRIGHT OR PATENT
INFRINGEMENT OR ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT OR
NEGLIGENCE, (ii) THE FREEDOM OF THE EQUIPMENT (OR ANY PART OR PORTION THEREOF)
FROM ANY LATENT OR OTHER DEFECT (WHETHER OR NOT DISCOVERABLE), (iii)THE
COMPLIANCE OF ANY OF THE EQUIPMENT (OR ANY PART OR PORTION THEREOF) WITH ANY
APPLICABLE LAWS OR REGULATIONS, (iv) THE CREDITWORTHINESS OF EACH LESSEE OR ANY
OTHER PERSON UNDER THE LEASES OR THE TRANSACTION DOCUMENTS, (v) THE
COLLECTIBILITY OF ANY AMOUNT UNDER THE LEASES OR ANY OF THE TRANSACTION
DOCUMENTS, (vi) THE TAX CHARACTERIZATION OF THE LEASES, OR (vii) THE DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY, OR THE ENFORCEABILITY AGAINST, ANY
PERSON WHO IS OR HAS BEEN A PARTY TO THE LEASES OR ANY OF THE TRANSACTION
DOCUMENTS (WITH THE EXCEPTION OF THE SELLER) AND SELLER HEREBY DISCLAIMS ALL
SUCH REPRESENTATIONS AND WARRANTIES.
(d) PURCHASER ACKNOWLEDGES THAT THE PRINCIPAL PURPOSE OF SELLER IN SELLING
THE TRANSFERRED ASSETS IS TO LIQUIDATE SUCH ASSETS AND DISTRIBUTE THE CASH TO
ITS INVESTORS. THEREAFTER, SELLER AND ITS GENERAL PARTNER INTEND TO TERMINATE
THEIR RESPECTIVE BUSINESSES AND WINDUP OR DISSOLVE THEIR AFFAIRS. ACCORDINGLY,
PURCHASER ACKNOWLEDGES AND AGREES THAT ALL OF SELLER'S REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN AND IN THE P&S AGREEMENT
SHALL TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT AND SHALL NOT SURVIVE ON
AND AFTER THE CLOSING. ACCORDINGLY, NEITHER SELLER NOR SELLER'S GENERAL PARTNER
NOR ANY OF THEIR PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, INVESTORS,
EMPLOYEES, AGENTS, AND ATTORNEYS, TOGETHER WITH THEIR PERSONAL REPRESENTATIVES,
HEIRS, SUCCESSORS AND ASSIGNS AND THE AFFILIATES OF ANY OF THE FOREGOING (THE
"INDIRECT PARTIES") SHALL, AT ANY TIME, HAVE ANY PERSONAL LIABILITY FOR ANY
OBLIGATIONS HEREUNDER. IN FURTHERANCE OF THE FOREGOING, PURCHASER HEREBY AGREES
NOT TO SEEK A PERSONAL JUDGMENT AGAINST SELLER OR SELLER'S GENERAL PARTNER OR
ANY OF THE INDIRECT PARTIES AT ANY TIME, AND NOT TO SEEK
20
TO OVERTURN OR RESCIND ANY SUCH WINDING UP OR DISSOLUTION IN ORDER TO ASSERT ANY
PERSONAL LIABILITY AGAINST SELLER OR SELLER'S GENERAL PARTNER OR ANY OF THE
INDIRECT PARTIES. PURCHASER ACKNOWLEDGES AND AGREES THAT IT FULLY UNDERSTANDS
THE FOREGOING LIMITATIONS ON RECOURSE, THAT IT PERFORMED ITS DUE DILIGENCE IN
RESPECT OF THE TRANSFERRED ASSETS WITH SUCH LIMITATION IN MIND AND THAT THE
PURCHASE PRICE REFLECTS THE RISKS ASSOCIATED WITH SUCH LIMITATION.
6. REPRESENTATIONS AND WARRANTIES.
Each of Purchaser, in order to induce Seller to enter into this Agreement,
and Seller, in order to induce Purchaser to enter into this Agreement, hereby
ratifies and confirms each of its respective representations and warranties as
contained in the P&S Agreement, which provisions are incorporated herein by
reference.
7. ASSUMPTION OF OBLIGATIONS, ETC..
Purchaser hereby accepts the foregoing sale, assignment, transfer and
conveyance of all of Seller's right, title and interest, duties and obligations
under each Lease and each Beneficial Interest assigned to Purchaser hereby, and
agrees to assume and be bound by all the terms of, and to undertake all of the
obligations of Seller contained in each Lease, including the covenant of quiet
enjoyment contained therein, and in each Equipment Trust and SPLP and to accept
the status of a substitute beneficiary of each Equipment Trust and substitute
limited partner in each SPLP. Purchaser (i) adopts and confirms the powers of
attorney, if any, granted by the agreements of limited partnership and trust
agreements, to the general partner and Owner Trustee, respectively, of such
entities, (ii) agrees to amendments to the organizational documents of the SPLPs
and the Equipment Trusts naming Purchaser as a substitute or additional limited
partner or beneficiary, as applicable, with the capital contribution as so
required, and (iii) confirms the aforesaid power of attorney may be exercised by
the general partner or Owner Trustee in the name of and on behalf of Purchaser
to accomplish the foregoing.
21
8. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal laws of The Commonwealth of Massachusetts.
9. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which,
taken together, shall constitute one and the same instruments.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
this instrument .
AMERICAN INCOME PARTNERS IV-C LIMITED RSL FINANCE LIMITED PARTNERSHIP II
PARTNERSHIP
By: AFG Leasing IV Incorporated, By: RSL Holdings, Inc., its sole
a Massachusetts corporation and the general partner
Managing General Partner of the
Registrant.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx St. Louis
---------------------------- ---------------------
Its: Vice President Its: President
--------------------------- --------------------
22
EXHIBIT B
Cross Receipt
Reference is hereby made to that certain Purchase and Sale Agreement dated
as of September 30, 1996 (the "P&S Agreement") between the person designated
as "Seller" below and RSL Finance Limited Partnership II, as purchaser.
Purchaser hereby accepts delivery of the Equipment (as defined in the P&S
Agreement) as more fully described on Exhibit A attached hereto and Seller
acknowledges receipt of the Purchase Price (as defined in the P&S Agreement) all
on and as of the date set forth below.
RSL FINANCE LIMITED PARTNERSHIP II
By: RSL Holdings, Inc., its sole
general partner
Dated: September 30, 1996 By: /s/ Xxxxxx St. Xxxxx
------------------ --------------------------
Its: President
-------------------------
AMERICAN INCOME PARTNERS IV-C LIMITED
PARTNERSHIP
By: AFG Leasing IV Incorporated,
a Massachusetts corporation and
the Managing General Partner of
the Registrant
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Its: Vice President
----------------------
23
