L-400/90.1
Rev. 4/95
Lease Agreement #4020
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of May 24, 1995, (the
"Master Agreement") is entered into between Capital Associates
International, Inc., a Colorado corporation (hereinafter called
"Lessor"), having its principal place of business at Capital
Associates Tower, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, and Good Times Drive Thru Inc., a Colorado corporation
(hereinafter called "Lessee"), having its principal place of
business at 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx
00000.
As used herein, the terms "Basic Rent Date", "Casualty Value",
"Expiration Date", "Installation Date", "Installation Location",
"Overdue Rate" and any additional defined terms required shall have
the meanings with respect to each item of Equipment set forth on
the Equipment Schedule which describes such item of Equipment.
Section I - Lease and Rental
1.1 Lease of Equipment. Subject to the terms and conditions of
this Master Agreement, Lessor hereby leases to Lessee, and Lessee
hereby leases from Lessor, the items of personal property
(collectively the "Equipment" or individually an "item of
Equipment") described in Equipment Schedules executed by Lessor and
Lessee from time to time pursuant to this Master Agreement. Each
Equipment Schedule shall be considered a separate lease
incorporating the terms and conditions of this Master Agreement and
shall be referred to herein as the "Lease" with respect to the
Equipment described on such Equipment Schedule. Notwithstanding
Lessee's possession and use of the Equipment, Lessor shall retain
the full legal title to the Equipment, it being expressly
understood that the Lease is a true lease of Equipment owned by
Lessor and not a security instrument. LESSEE ACKNOWLEDGES AND
AGREES THAT (i) LESSEE HAS SELECTED BOTH THE EQUIPMENT AND ITS
SUPPLIER; (ii) LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE
EQUIPMENT AND HAS ACQUIRED THE EQUIPMENT IN CONNECTION WITH THE
LEASE; (iii) LESSEE HAS BEEN PROVIDED WITH A COPY OF THE PURCHASE
CONTRACT FOR THE EQUIPMENT; (iv) LESSEE IS ENTITLED TO THE BENEFIT
OF ANY PROMISES OR WARRANTIES PROVIDED TO LESSOR IN CONNECTION WITH
THE EQUIPMENT BY THE MANUFACTURER/SUPPLIER OF THE EQUIPMENT AND MAY
CONTACT THE MANUFACTURER/SUPPLIER TO RECEIVE AN ACCURATE AND
COMPLETE STATEMENT OF THOSE PROMISES AND WARRANTIES (INCLUDING ANY
DISCLAIMERS AND LIMITATIONS); AND (v) THE LEASE QUALIFIES AS A
"FINANCE LEASE" PURSUANT TO ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE. On the Installation Date of each item of Equipment, such
item of Equipment shall be deemed delivered, accepted by Lessee and
subject to the terms and conditions of the Lease. Upon Lessor's
request, Lessee will promptly execute and deliver an Acceptance
Certificate (prepared by Lessor), confirming such Installation
Date. Lessor may complete information, on Lessee's behalf, on the
Acceptance Certificate if it is returned incomplete by Lessee.
1.2 Rental. Lessee shall pay to Lessor or its Assignee the rent
set forth on the Lease for each item of Equipment (hereinafter
referred to as "Basic Rent") and such additional amounts as are
required to be paid by Lessee pursuant to the Lease ("Supplemental
Rent"). Basic Rent and Supplemental Rent are referred to
collectively as "Rent". In addition, Lessee shall pay to Lessor, on
demand, to the extent permitted by applicable law, interest at the
Overdue Rate on any payment of Rent which is not received by Lessor
or Assignee on the applicable due date. Interest shall accrue from
the due date until the amount is received.
1.3 Net Lease. The Lease is a net lease, and Lessee
acknowledges and agrees that Lessee's obligation to pay all Rent
thereunder, and the rights of Lessor in and to such Rent, shall be
absolute and unconditional and shall not be subject to any
abatement, reduction, set-off, defense, counterclaim or recoupment
("Abatements") for any reason whatsoever, including, without
limitation, Abatements due to any present or future claims of
Lessee against Lessor under the Lease or otherwise, against the
manufacturer or supplier of any item of Equipment, or by reason of
any defect in or damage to, or any loss or destruction of any item
of Equipment, or the interference with the use thereof, or the
bankruptcy or insolvency of Lessor, it being the express intention
of Lessor and Lessee that all Rent payable by Lessee thereunder
shall be and continue to be payable in all events. To the extent
it is determined that other provisions of this Lease are in
conflict with Section 1.3 hereof, the parties hereby agree that the
terms and conditions of such Section shall take precedence over
such other provisions.
1.4 Term of Lease. The term of the Lease for each item of
Equipment shall commence on the Installation Date and shall expire
on the Expiration Date for such item of Equipment unless, as
provided herein, the Lease shall have been earlier terminated,
cancelled or the term of the Lease shall have been extended. The
Lease shall be automatically extended beyond the Expiration Date,
unless (i) Lessor has previously cancelled the Lease (as provided
in Section 4.2) or (ii) at least 120 days prior to the Expiration
Date, Lessee gives Lessor written notice of its election to
terminate the Lease on the Expiration Date and then properly
surrenders the Equipment to Lessor (as set forth in Section 3.11
herein) on the day immediately following the Expiration Date. The
term of the Lease extension shall be for successive full monthly
periods until terminated by either party giving to the other not
less than four months prior written notice of termination. If the
term of the Lease is so extended, all terms and conditions of the
original Lease shall remain in full force and effect.
Section II - Representations and Warranties
2.1 Warrantie BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY
LESSEE AT ITS SOLE RISK AND EXPENSE. LESSOR SHALL NOT BE LIABLE IN
ANY WAY TO LESSEE (i) FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND
CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT, ITS OPERATION, OR
THE INSTALLATION, USE, MAINTENANCE, HANDLING, OR STORAGE THEREOF,
OR BECAUSE IT IS OR BECOMES UNSUITABLE OR UNSERVICEABLE, OR FOR ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF, OR (ii) FOR ANY
LOSS OF BUSINESS OR PROFITS OR INDIRECT, INCIDENTAL OR CONSEQUENTI
BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE
RISK AND EXPENSE. LESSOR SHALL NOT BE LIABLE IN ANY WAY TO LESSEE
(i) FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND CAUSED DIRECTLY OR
INDIRECTLY BY THE EQUIPMENT, ITS OPERATION, OR THE INSTALLATION,
USE, MAINTENANCE, HANDLING, OR STORAGE THEREOF, OR BECAUSE IT IS OR
BECOMES UNSUITABLE OR UNSERVICEABLE, OR FOR ANY INTERRUPTION OF
SERVICE OR LOSS OF USE THEREOF, OR (ii) FOR ANY LOSS OF BUSINESS OR
PROFITS OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHATSOEVER OR HOWSOEVER CAUSED, AND REGARDLESS OF WHETHER A CLAIM
IS BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN
TORT, OR OTHER THEORY. LESSOR MAKES NO PATENT OR INTELLECTUAL
PROPERTY WARRANTIES OR REPRESENTATIONS WHATSOEVER. Lessee agrees
to look solely to the manufacturer or the supplier of the Equipment
and all assignable warranties made by the manufacturer or the
supplier of Lessor are hereby assigned to Lessee for the term of
the Lease.
2.2 Quiet Enjoyment. Lessor covenants that so long as no Event
of Default has occurred under the Lease Lessee may quietly possess
the Equipment subject to and in accordance with provisions of the
Lease.
Section III - Covenants of Lessee
3.1 Use of Equipment. Lessee shall use the Equipment in a
manner which will not disqualify it for manufacturer maintenance,
and in compliance with all laws, rules and regulations of every
governmental authority having jurisdiction over the Equipment and
with the provision of all policies of insurance carried by Lessee
pursuant to Section 3.5. Lessee shall obtain all permits licenses
or other authorizations necessary for the authorizations necessary
for the operation and use of the Equipment. Lessee shall pay all
costs, expenses, fees and charges incurred in connection with the
use and operation of the Equipment.
3.2 Maintenance. Lessee shall, at its expense, take all actions
necessary to maintain and repair the Equipment to keep it in as
good operating condition as it was when it first became subject to
the Lease, ordinary wear and tear resulting from proper use
excepted and, unless otherwise expressly provided for in the Lease,
shall enter into and keep in force a maintenance agreement with the
manufacturer or other maintenance provider acceptable to Lessor to
provide such maintenance and repair. Lessee shall, at its expense,
promptly replace all parts of any item of Equipment that become
worn out, lost, stolen, destroyed, or unfit for use with
replacement parts free of any encumbrance (and title thereto shall
vest in Lessor immediately upon installation); provided, however
that the foregoing requirement to replace parts of Equipment shall
not apply in the case of an Event of Loss as described in Section
3.4(b)(ii) herein.
3.3 Taxes. In addition to the Rent due hereunder, Lessee agrees
to pay and indemnify Lessor for, and hold Lessor harmless from and
against all taxes, assessments, fees and charges (hereinafter
called "Imposts") together with any penalties, fines or interest
thereon levied and imposed by any governmental agency or unit
(state, local, federal, domestic or foreign): (a) with respect to
the Lease; (b) upon the Equipment, its value or any interest of
Lessor and/or Lessee therein; (c) upon or on account of any sale,
rental, purchase, ownership, possession, use, operation,
maintenance, delivery or return of the Equipment; or (d) on account
of, or measured by, the gross earnings or gross receipts arising
from the Equipment, or value added thereto, other than taxes
imposed on or measured by the net income or capital of Lessor. The
amount of such Impost shall become Supplemental Rent to be paid by
Lessee upon Lessor's demand. If any Impost relates to a period
during the term of the Lease (no matter when it is assessed) then
Lessee's liability for such Impost shall continue, notwithstanding
the expiration or termination of the Lease, until all such Imposts
are paid by Lessee.
3.4 Loss of Equipment.
(a) Risk of Loss. Lessee shall bear the entire risk of the
Equipment being lost, damaged, destroyed or rendered permanently
unfit or unavailable for use after its shipment to Lessee and until
it is surrendered to Lessor in accordance with Section 3.11 hereof.
(b) Damage/Event of Loss. (i) In the event any item of
Equipment is damaged to a material extent by any occurrence
whatsoever, Lessee shall promptly notify Lessor and shall determine
within 15 days of the date of such notice whether such item of
Equipment can be repaired. If such Equipment can be repaired,
Lessee shall at its cost and expense repair such Equipment to its
original condition. (ii) In the event any item of Equipment shall
be lost, stolen, destroyed, damaged beyond repair or rendered
permanently unfit or unavailable for use (through a governmental
taking or any other event), for any reason whatsoever (any such
occurrence being referred to as an "Event of Loss"), Lessee shall
promptly notify Lessor and pay to Lessor, on the first day of the
month immediately following such Event of Loss, an amount equal to
the Casualty Value applicable to such item of Equipment calculated
as of the immediately preceding Basic Rent Date plus any unpaid
Rent and the installment of Basic Rent for such item of Equipment
due on the Basic Rent Date following the Event of Loss. After the
payment of such amounts, Lessee's obligation to pay further Basic
Rent for such item of Equipment shall cease, but Lessee's
obligation to pay Supplemental Rent, if any, for such item of
Equipment, and to pay Rent for all other items of Equipment shall
remain unchanged. (iii) Following payment of the Casualty Value
and Rent for an item of Equipment in accordance with the provisions
of paragraph (ii) of this Section 3.4(b), Lessor shall transfer
title to such item of Equipment to Lessee on an AS IS, WHERE IS
basis without representation or warranty.
(c) Disposition of Insurance and Other Proceeds. The proceeds
of insurance or any condemnation of an item of Equipment for which
an Event of Loss has occurred shall be paid to Lessor (to the
extent that Lessor has not previously received all Casualty Value
and other payments required to be made by Lessee pursuant to the
Lease), and the remainder, if any, shall be paid to Lessee. The
proceeds of insurance with respect to damage to an item of
Equipment, the repair of which, in the opinion of Lessee, is
practicable, shall unless an Event of Default hereunder has
occurred and is continuing, be applied either to such repair or to
the reimbursement of Lessee for the cost of such repair.
3.5 Insurance.
(a) Coverage. Lessee will insure for the following risks with
insurers of recognized responsibility: (i) All risk of loss and
physical damage to the Equipment in amounts not less than the
greater of (A) the fair market replacement value or (B) the
aggregate Casualty Value of all Equipment from time to time; and
(ii) Comprehensive public liability and property damage insurance
with respect to the condition, possession, maintenance, operation
and use of the Equipment, in an amount not less than $2,000,000 for
each occurrence.
(b) Delivery of Certificates. Lessee shall deliver to Lessor
and any Assignee(s) a valid Certificate of Insurance for each such
insurance policy upon the execution thereof and a Certificate of
Insurance for each renewal policy not less than 30 days prior to
the expiration of the original policy or any renewal policy. Such
insurance shall (i) include as additional parties insured and loss
payees Lessor and any Assignee(s) of whom Lessee has notice, (ii)
provide that such insurance shall not be materially changed or
cancelled without at least 30 days notice to Lessor and such
Assignees, and (iii) provide that such policy shall not be
invalidated by any negligence of, or breach of warranty by, Lessee.
Upon the request of Lessor, Lessee shall provide any additional
data related to the insurance as Lessor reasonably requests.
3.6 Indemnity. Lessee agrees to indemnify, defend and hold
Lessor harmless from and against all claims, costs, expenses,
damages, losses and liabilities whatsoever incurred by Lessor
(including reasonable attorneys' fees) as a result of or incident
to (a) the ownership, management, control, use, operation, or
storage of the Equipment, or any part thereof during the term of
the Lease, or (b) any default by Lessee under the Lease. Lessee
and Lessor shall each give the other immediate written notice of
any suit, attachment, lien or other judicial process affecting the
Equipment of which they have knowledge. Lessor shall have the
right to appear in defense of any such suit or proceeding. The
appearance of Lessor in such a suit or proceeding shall not
constitute a waiver of its right to require Lessee to fulfill its
obligations under the Lease.
3.7 Inspection. Lessee shall permit any person designated by
Lessor, at Lessor's expense, to visit and inspect the Equipment, or
any part thereof, at such reasonable times and places and as often
as Lessor may reasonably request.
3.8 Sublease/Relocation; Lessee Assignment; Pledge.
(a) Provided that no Event of Default or event which, with
notice or lapse of time could become an Event of Default, has
occurred and is continuing, Lessee may, with Lessor's prior written
consent, sublease or relocate the Equipment to another location
within the continental United States, provided that (i) Lessee
promptly upon invoice reimburses, and indemnifies and holds Lessor
harmless from and against any costs, claims, damages and expenses
relating in any way to such sublease or relocation (including
without limitation, the cost of obtaining any necessary Assignee
consent, any UCC filings, additional taxes, transportation charges
and licenses); (ii) any sublease shall be expressly subject and
subordinate to the terms of this Lease; (iii) Lessee shall assign
its rights under such sublease to Lessor as additional collateral
and security for Lessee's obligations hereunder; and (iv) Lessee
and its sublessee shall cooperate with Lessor as necessary to
protect Lessor's title to the Equipment and Lease. No relocation
or sublease shall relieve Lessee from any of its obligations
hereunder. EXCEPT AS EXPRESSLY PROVIDED ABOVE, LESSEE SHALL NOT
ASSIGN, PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THIS LEASE OR
ITS INTEREST HEREIN.
(b) Lessee shall not create, incur, assume or suffer to exist
any liens on or with respect to the Equipment, Lessor's title
thereto or any interest therein (and Lessee will promptly, at its
own expense, take such action as may be necessary duly to discharge
any such lien), except (i) the respective rights of Lessor and
Lessee as herein provided, (ii) inchoate materialmen's, mechanic's
or other like liens arising in the ordinary course of business of
Lessee and not delinquent, and (iii) liens granted by Lessor to any
Assignee.
3.9 Identification. Upon request, Lessee shall xxxx or permit
Lessor to xxxx each item of Equipment in a reasonably prominent
location with a legend stating Lessor's ownership of such item of
Equipment and Lessee shall not allow the name of any other party to
be placed on the Equipment.
3.10 Alterations, Modifications or Additions. Lessee may, at its
own expense and upon prior notice to Lessor, make or permit others
to make Equipment alterations, modifications or additions (such as
memory upgrades and feature additions), provided such alterations,
modifications or additions are readily removable without causing
material damage to the Equipment, do not interfere with the
maintenance thereof, do not create a safety hazard, and are not
subject to any security interest, rent or other right or claim held
or retained by a third party. Such alterations, modifications and
additions may be removed by Lessee at the expiration or termination
of the Lease term (including any extensions), and shall be removed
at such time if requested by Lessor. Any such alterations,
modifications and additions which are not removed by Lessee shall
become the property of Lessor. Except as specifically provided
above, no Equipment alterations, modifications or additions shall
be made or permitted by Lessee.
3.11 Transportation and Equipment Return. All transportation,
rigging, transit insurance and other charges payable for delivery
of the Equipment to and from the premises of Lessee, and all
installation, disconnect and packing charges, shall be paid by
Lessee or the Equipment supplier. On or before the Expiration Date
or earlier termination of the Lease, Lessee shall at its cost and
expense surrender possession of the Equipment at such location(s)
in the continental United States of America as Lessor may direct.
The Equipment is to be in the same condition upon its surrender as
when the Lease commenced (ordinary wear and tear resulting from
proper use excepted) and in the condition otherwise required by the
provisions of the Lease. Notwithstanding anything to the contrary
contained herein, the Lease shall remain in full force and effect
and Lessee shall continue to pay Rent on the Equipment until it is
surrendered to Lessor in the condition required by the Lease.
3.12 Financial Statements. Lessee shall upon execution hereof
and within 120 days after the close of each fiscal year thereafter,
furnish, or cause to be furnished to Lessor and any Assignee, the
audited annual financial statements of Lessee. In addition, upon
request Lessee will provide to Lessor and any Assignee quarterly
financial statements in a form reasonably acceptable to the Lessor.
3.13 Federal and State Income Taxes. Lessee acknowledges that
Lessor shall be entitled to claim (or have claimed) for Federal and
State income tax purposes interest and depreciation deductions on
the total original cost of the Equipment utilizing any method of
depreciation permitted for the Equipment under the Internal Revenue
Code of 1986, as amended or any applicable state tax (hereinafter
called the "Code"). (All interest and depreciation deductions to
which Lessor is entitled under this Section 3.13 are collectively
referred to as "Allowances".) Lessee agrees to take no action
inconsistent with the foregoing or which would result in the loss,
disallowance, recapture or unavailability to Lessor (or an Assignee
of Lessor) of the Allowances, and represents and warrants that from
the time Lessor becomes the owner of the Equipment no depreciation
or other tax benefits will be claimed by Lessee with respect to the
Equipment. Lessee shall indemnify Lessor on an after-tax basis for
any loss of all or any portion of the Allowances due to Lessee's
act, omission to act, misrepresentation or any Event of Loss under
Section 3.4 above.
3.14 Representations and Warranties. Lessee hereby covenants,
represents and warrants to Lessor that (i) it is a corporation duly
organized, validly existing and in good standing in its state of
incorporation and in every jurisdiction in which the Equipment will
be located, (ii) it has taken all corporate action required to
authorize the execution, delivery and performance of this Master
Agreement and each Lease, and such execution, delivery and
performance will not conflict with or violate any provisions of its
charter or articles or certificate of incorporation, by-laws or any
provisions of any agreement, order, decree or judgment by which it
is bound, nor is it now in default under any of the same, (iii)
there is no litigation or proceeding pending or threatened against
it which may have a materially adverse effect on Lessee or which
would prevent or hinder performance of its obligations hereunder,
(iv) this Master Agreement, each Lease and all documents provided
therewith constitute valid obligations of Lessee, binding and
enforceable against it in accordance with their respective terms,
(v) it has the power to enter into each Lease and no further action
by any party is required to effectuate this Master Agreement and
each Lease, (vi) all financial statements heretofore presented to
Lessor are true, correct and present fairly the financial condition
and results of operations of Lessee and do not contain any untrue
statements or material omissions.
Section IV - Default & Remedies
4.1 Events of Default. The occurrence of any of the following
shall constitute an "Event of Default" hereunder:
(a) Lessor shall fail to receive all or any portion of any
installment of Rent or other payment on or before the date such sum
becomes due and payable; or
(b) Any representation or warranty made in the Lease, or in any
report, certificate, financial statement or other statement
furnished to Lessor (or Guarantor) pursuant to the provisions of
the Lease (or any representation or warranty made by Guarantor in
the Guaranty), shall prove to have been false or misleading in any
material respect as of the date on which the same was made; or
(c) Lessee (or Guarantor) shall fail or refuse to duly observe
or perform any other covenant, condition or agreement made by it
hereunder or under any other agreement between Lessor and Lessee
(or under the Guaranty), and such failure or refusal continues
without remedy for a period of 15 days after written notice thereof
to Lessee; or
(d) An attachment or other lien against the Equipment resulting
from any Lessee action, failure to act or responsibility shall be
issued or entered and shall remain undischarged or unbonded for 10
days; or
(e) Lessee (or Guarantor) (i) becomes insolvent, or (ii) files
any application or petition in any tribunal for the appointment of
a receiver or trustee for all or a significant portion of its
assets, or (iii) commences any proceeding under any bankruptcy or
reorganization statute or under any provision of the U.S.
Bankruptcy Code or under any dissolution or liquidation law whether
now or hereafter in effect, or if any petition or application of
the type described above is commenced against Lessee and is not
dismissed within 60 days, or (iv) makes an assignment for the
benefit of creditors or an order is entered appointing a trustee or
receiver for Lessee or any significant portion of its assets or
adjudicating Lessee a bankruptcy.
4.2 Remedies.
(a) If an Event of Default occurs under the Lease, Lessor may
give Lessee notice of the Event of Default and upon the giving of
such notice or at any time thereafter do any or all of the
following (as Lessor in its sole discretion elects): (1) proceed
by appropriate court action or actions to enforce performance by
Lessee of the applicable covenants and terms of the Lease or to
recover damages for the breach thereof; (2) take possession (by
summary proceedings or otherwise) of any or all items of Equipment
subject to the Lease without prejudice to any other remedy or claim
herein referred to; (3) hold, sell, lease, or otherwise dispose
of, any or all items of Equipment subject to the Lease, in any
manner Lessor (in its sole discretion) elects; (4) receive from
Lessee upon demand for any or all Equipment subject to the Lease
the following amounts which Lessee shall be obligated to pay: (i)
any unpaid Rent past due, (ii) as liquidated damages for loss of
bargain and not as a penalty, the aggregate Casualty Value for such
Equipment under the Lease in effect as of the date on which such
Event of Default occurred, (iii) all costs and expenses incurred in
searching for, taking, removing, keeping, storing, repairing, and
restoring such items of Equipment, (iv) all other amounts then
owing by Lessee hereunder, and (v) all costs and expenses,
including (without limitation) reasonable legal fees and expenses,
incurred by Lessor as a result of an Event of Default, or the
exercise by Lessor of its remedies under this Section 4.2; (5) by
notice to Lessee, declare the Lease (for any or all Equipment)
cancelled without prejudice to Lessor's rights in respect of all
obligations set forth in this Section 4.2 and any other obligations
under the Lease then accrued and remaining unsatisfied; or (6)
avail itself of any other remedy or remedies provided for by any
statute or otherwise available by law, in equity or in bankruptcy
or insolvency proceedings.
(b) The remedies set forth in Section 4.2(a) are not intended to
be exclusive, and each shall be cumulative. The amounts to be paid
to Lessor under clause (4) of Section 4.2(a) shall be increased by
interest, at the Overdue Rate, to the date of receipt by Lessor of
the amount payable under said clause, from the respective due dates
of such amounts or (with respect to costs, expenses, and losses for
which Lessor is entitled to payment or reimbursement under said
clause) from the respective dates incurred by Lessor.
(c) Any amounts received by Lessor as the result of its sale,
lease during the original term hereof, or other disposition of the
Equipment hereunder shall be paid or applied in the following
order: (1) to any remaining obligation of Lessee under subparagraph
(4) of Section 4.2(a), (2) to reimburse Lessee for the Casualty
Value previously paid as liquidated damages, and (3) to Lessor, any
remaining balance.
Section V - Miscellaneous
5.1 Reserved.
5.2 Expenses. Lessor and Lessee each shall bear and be
responsible for its own respective costs and expenses incurred in
connection with the preparation, execution and delivery of this
Master Agreement and the Lease. Lessee shall pay and be
responsible for any license or registration fees for the Equipment.
5.3 Performance of Lessee's Obligations. If Lessee shall fail
to make any payment or perform any act required by the Lease,
Lessor may, but shall not be obligated to, make such payment or
perform such act for the account of and at the expense of Lessee
without waiving or releasing any obligation or default. All sums
expended and losses incurred by Lessor pursuant to this Section
5.3, plus interest thereon at the Overdue Rate from the date on
which such sums are expended (or losses are incurred) to the date
on which Lessee reimburses Lessor therefor, shall be included as
Supplemental Rent hereunder and shall be paid by Lessee to Lessor
upon demand.
5.4 Assignment by Lessor. Lessor may sell, transfer, grant a
security interest in or assign part or all of its right, title and
interest in and to the Lease, the Equipment, the Rent or any other
sums due or to become due by Lessee hereunder, to third parties;
and such third parties may also make such sales, transfers, grants
and assignments to other third parties (all third parties referred
to in this Section 5.4 being called an "Assignee" or the
"Assignees"). In the event of an assignment of the Lease, (a) such
assignment (unless otherwise expressly set forth therein) will not
relieve the original Lessor from its duties and obligations
hereunder and shall not be construed to be an assumption by the
Assignee of such obligation; (b) upon notice from Lessor, Lessee
shall make all payments for Rent and other amounts due under the
assigned Lease directly to the Assignee identified in such notice
or its designee; (c) Lessee's obligations hereunder shall not be
subject to any reduction, abatement, defense, set-off, counterclaim
or recoupment for any reason whatsoever; and (d) Lessee will not,
after obtaining knowledge of any such assignment, consent to any
modification of the assigned Lease without the consent of any
Assignees of which Lessee has notice. Reference to Lessor
throughout this Master Agreement shall be deemed to include any
Assignees; provided, however, that the Assignees shall have no
duties and obligations hereunder, except the obligation, so long as
no Event of Default has occurred and the Assignee continues to
receive all sums assigned hereunder, to permit Lessee to possess,
use, and quietly enjoy the Equipment, according to the terms
hereof. Lessee acknowledges that Lessor's assignment pursuant
hereto does not materially impair Lessee's right to obtain
performance, materially change the duties of Lessee, or materially
increase Lessee's burden or risk under the Lease. Upon request,
Lessee shall promptly execute and deliver to Lessor a written
acknowledgement of the provisions of this Section and such other
matters as Lessor may reasonably request.
5.5 Further Assurances. It is expressly understood and agreed
that all of the Equipment shall be and remain personal property
notwithstanding the manner in which the same may be attached or
affixed to realty, and Lessee shall do all acts and enter into all
agreements necessary to insure that the Equipment remains personal
property and hereby indemnifies Lessor for all loss, cost, damage,
and expense (including fees and expenses of counsel) related to or
arising out of any claim that the Equipment constitutes a fixture
or a part of the realty in or upon which it is located. Upon
request of Lessor, Lessee shall at any time and from time to time
after the execution and delivery of the Lease execute and deliver
such further documents (including but not limited to opinions of
counsel, acknowledgements of assignment, waivers, certificates, and
UCC-1 financing statements) and do such further acts and things as
Lessor may reasonably request in order fully to effect the purposes
of the Lease, and any assignment hereof. Lessee hereby appoints
Lessor, with full power of substitution, as its agent and
attorney-in-fact, which appointment is irrevocable and coupled with
an interest, to execute any financing statements in Lessee's name
and to perform all other acts which Lessor deems appropriate and
necessary to perfect Lessor's interest in the Equipment.
5.6 Rights, Remedies, Powers. Each and every right, remedy and
power granted to Lessor hereunder shall be cumulative and in
addition to any other right, remedy or power herein specifically
granted or now or hereafter existing in equity, at law, by virtue
of any statute or otherwise and may be exercised by Lessor from
time to time concurrently or independently and as often and in such
order as Lessor may deem expedient. Any failure, partial exercise,
or delay on the part of Lessor in exercising any such right, remedy
or power, or abandonment or discontinuance of steps to enforce the
same, shall not operate as a waiver thereof or affect Lessor's
right thereafter to exercise the same.
5.7 Communications. Any notice, request, demand, consent,
approval or other communication provided or permitted hereunder
shall be in writing (with a copy to any Assignee) and shall be sent
by certified mail, or a receipted delivery service, to the address
set forth herein or such other address as designated by proper
notice.
5.8 Headings. Section headings are inserted for convenience
only and shall not affect any interpretation of this Master
Agreement. The words "herein", "hereof", "hereby", "hereto",
"hereunder", and words of similar import refer to this Master
Agreement as a whole (including any supplements, addenda and riders
thereto to the extent applicable and the Lease on which the leased
Equipment is described) and not to any particular section, or
subdivision hereof.
5.9 GOVERNING LAW. THIS MASTER AGREEMENT AND EACH LEASE SHALL
BE DEEMED TO HAVE BEEN MADE UNDER, AND SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF COLORADO (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS) IN ALL RESPECTS, INCLUDING MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
5.10 Severability. If any provision of the Lease is prohibited
by, or is unlawful or unenforceable under any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such prohibition without invalidating
the remaining provisions hereof; provided, however, that any such
prohibition in any jurisdiction shall not invalidate such
provisions in any other jurisdiction; and provided, further, that
where the provisions of any such applicable law may be waived, they
hereby are waived by Lessee to the full extent permitted by law to
the end that the Lease shall be deemed to be valid and binding
agreement in accordance with its terms.
5.11 Survival, Agreement and Modifications. All representations,
warranties, indemnities and covenants of Lessee contained in this
Master Agreement, any Lease or other related document shall
continue in full force and effect until the full payment of all
amounts due notwithstanding the expiration, termination or
cancellation of this Master Agreement or any Lease, provided,
however, that the indemnification obligations of Lessee hereunder
shall survive the payment of all amounts due hereunder and shall be
available if any later claim arises which may be indemnified under
the provisions hereof. This Master Agreement (including any
supplements, addenda and riders) and each Lease describing the
Equipment and referencing this Master Agreement contain the entire
agreement between Lessor and Lessee with respect to the Equipment
and supersede all prior communications,
agreements and understandings,
written or oral, relating to such subject matter.
In the event any conflict exists between the terms
of this Master Agreement and any provisions of a Lease, the Lease
shall govern with respect to the Equipment described therein. This
Master Agreement and each Lease shall be binding upon and shall
inure to the benefit of the respective successors and permitted
assigns of Lessee and Lessor. NO MODIFICATION OR WAIVER OF THE
PROVISIONS HEREOF SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND
SIGNED BY THE PARTIES HERETO.
5.12 Chattel Paper. An executed Lease (Equipment Schedule),
marked "Original", shall be the original of the Lease for the
Equipment described on such Lease. All other executed counterparts
of the Lease shall be marked "Duplicate". To the extent that the
Lease constitutes chattel paper, as such term is defined in the
Uniform Commercial Code of the applicable jurisdiction, no security
interest in the Lease may be created through the transfer of
possession of any counterpart other than the Original of a Lease.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Master
Agreement to be executed as of the date first written above.
CAPITAL ASSOCIATES
INTERNATIONAL, INC. GOOD TIMES DRIVE THRU INC.
(Lessor) (Lessee)
By: By: /s/ Xxxxxx X. Xxxxxx
Print Name: Print Name: Xxxxxx X. Xxxxxx
Title: Title: Chief Financial Officer
Federal I.D. Number 00-0000000
AMENDMENT NO. 1 Doc #402001
to the
Master Lease Agreement #4020 dated May 24, 1995 (the "Master
Agreement")
between
Capital Associates International, Inc. as Lessor
and
Good Times Drive Thru Inc. as Lessee
THIS AMENDMENT to the Master Agreement is entered into as of
May 24, 1995, between Capital Associates International, Inc.
("Lessor") and Good Times Drive Thru Inc. ("Lessee").
WHEREAS, the parties wish to modify the Master Agreement as
hereinafter set forth;
NOW THEREFORE, in consideration of these premises and other
valuable consideration, Lessee and Lessor hereby agree to amend
the following terms and conditions to the Master Agreement:
1. Section 3.4 Loss of Equipment. Insert the following in
Section 3.4(b)(i) after "Equipment": "valued at more
than $10,000."
2. Section 3.14 Representations and Warranties. Insert
"identified" between "all" and "financial statements"
in Section 3.14(vi) and delete the word "true" in
Section 3.14(vi).
3. Section 4.1 Events of Default. Change "15 days" to "30
days" in Section 4.1(c).
4. Section 4.1 Events of Default. Insert the following at
the end of Section 4.1 (e):
"or, (f) Lessee (or any Guarantor) fails to maintain at
all times a Net Worth greater than or equal to
$5,500,000 and a total long term liabilities to Net
Worth ratio of less than or equal to 1.5 to 1. Net
Worth shall be defined as net worth of the company at
the time in question after deducting therefrom the
amount of all intangible items, including all
intangible expansion costs, all unamortized debt
discount and expense, unamortized research and
development expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade
names, copyrights, unamortized excess cost of
investment in subsidiaries over equity at dates of
acquisition, and all similar items which should
properly be treated as intangibles in accordance with
generally accepted accounting principles (excluding
however, capitalized restaurant preopening expenses
which are to be amortized over a twelve month period),
or
(g) Lessee (or any Guarantor) shall suffer a material
adverse change in its financial condition from the date
hereof as a result of which the Lessor deems itself or
any of the Equipment to be insecure, or
(h) Lessee (or any Guarantor) shall (1) sell all or
substantially all of its assets, or (2) be a party to
any merger or consolidation in which the Lessee (or any
Guarantor) is not the surviving entity unless the buyer
of such assets or the surviving entity satisfies all of
the financial requirements of item (f) above and the
buyer or surviving entity receives final credit
approval by Lessor, or
(i) Lessee (or any Guarantor) shall default under any
material agreement to which Lessee (or any Guarantor)
is a party, including, but not limited to, any
indenture or loan agreement, or lease, mortgage or deed
of trust with respect to the real property on which the
Equipment is located, and such default could have a
material adverse effect on Lessee's (or Guarantor's)
ability to perform its obligations under the Lease (or
Guaranty Agreement) or on the Equipment or Lessor's
interest therein."
5. Section 4.2 Remedies. Insert "10 days after" following
"upon" and insert "provided that the Event of Default
is not cured Lessor may" following "thereafter" in
Section 4.2 (a).
6. Section 5.4 Assignment by Lessor. Delete "and" before
"(d)" and after "notice" in (d) add: "and, (e)
Lessee's obligations do not include any sales, use,
property or other taxes which may be required to be
paid in connection with the subsequent Assignment of
the Lease to a third party."
7. It is understood and agreed that this Amendment shall
become a part of and be incorporated into the Master
Agreement effective upon its execution by all parties
named below. All terms and conditions of the Master
Agreement, except as expressly modified herein, shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have duly executed this
Amendment to the Master Agreement as of the date first written
above.
CAPITAL ASSOCIATES
INTERNATIONAL, INC. GOOD TIMES DRIVE THRU INC.
(Lessor) (Lessee)
BY: /s/ Xxxx X. Xxxx BY: /s/ Xxxxxx X. Xxxxxx
PRINT NAME: Xxxx X. Xxxx PRINT NAME: Xxxxxx X. Xxxxxx
TITLE: Vice President TITLE: Chief Financial Officer
