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HomeMy WebLinkAboutTFC Textron Augusta Richmond GA DOCUMENTNAME:\f~ leXnCfl DOCUMENT TYPE: OS \eerY'e.r\t- YEAR: L1 ~ BOX NUMBER: \ \ FILE NUMBER: \f:))~D NUMBER OF PAGES: y 9339 .. TFC~ (. Textron Financial Corporation, Subsidiary of Textron, Inc. MASTER LEASE AGREEMENT Customer Number: 1. LEASE - Lessee agrees to lease trom Lessor the property described in schedule(s) now or hereafter executed by Lessor and Lessee as part of this Lease (each, a "Schedule"), together with all repairs, accessions, replacements, substitutions and accessories to such property (collectively, the "Equipment".), upon the terms and conditions set forth in this Lease and in the appl icable Schedule. 2. FINANCE LEASE STATUS - The Lessee and Lessor agree that this Lease is a "Finance Lease" as defined by Section 2A- 103(g) of the Uniform Commercial Code ("UCC"). Lessee acknowledges either (a) that Lessee has reviewed and approved any written Supply Contract (as det1ned by UCC 2A-103(y)) covering the Equipment purchased trom the "Supplier" (as defined by UCC 2A-103(x)) thereof for lease to Lessee or (b) that Lessor has informed or advised Lessee, in writing, either previously or by this Lease of the following: (i) the identity of the Supplier; (ii) that the Lessee may have rights under the Supply Contract; and (iii) that the Lessee may contact the Supplier for a description orany such rights Lessee may have under the Supply Contract. 3. TERiVI, RENT AND LATE CHARGES - The lease term and rent due for the Equipment shall be as specit1ed in the applicable Schedule. THIS IS A NON-CANCELLABLE LEASE FOR THE ENTIRE LEASE TERM. ALL RENT REQUIRED OF LESSEE UNDER THIS LEASE SHALL BE PAID TO LESSOR WITHOUT OFFSET OR ABATEMENT FOR ANY REASON, INCLUDING THE CONDITION OR PERFORMANCE OF THE EQUIPMENT. Any rent or other sums past due under this Lease shall accrue late charges at the lower of: (a) Lessor's then prevailing late charge rate, or (b) the highest rate permitted by law. All payments made hereunder shall be applied to all outstanding non-rent charges and then to outstanding rent. 4. WARRANTIES - LESSOR IS NEITHER THE MANUFACTURER NOR A SELLER OF THE EQUIPMENT. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, THE EQUIPMENT'S MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; DESIGN OR CONDITION; CONFORMITY WITH THE REQUIREMENTS OF ANY LAW, GOVERNMENTAL REGULATION, CONTR<\CT, OR SPECIFICATION; NONINFRINGEMENT OF THE RIGHTS OF OTHERS; OR ABSENCE OF LATENT DEFECTS. Lessor assigns to Lessee, for and during the term of this Lease, all of Lessor's rights in the manufacturer's and/or seller's warranties pertaining to the Equipment. 5. TITLE TO EQUIPMENT - Title to the Equipment shall at all times remain in Lessor. Lessee shall have no right, title or interest in the Equipment except as expressly set forth herein. Notwithstanding the foregoing, in the event that any Schedule hereunder provides the Lessee with a purchase option of$1.00, upon commencement of Lessee's obligation under such Schedule, title to the Equipment shall pass to and vest in Lessee from the vendor or supplier of the Equipment identit1ed in the relevant Schedule therefore. Lessee shall keep the Equipment free from any and all claims, liens, encumbrances and legal processes of all parties other than th~se claiming through Lessor. Lessor shall have the right to display notice of its interest on the Equipment by at1ixing an appropriate notice to each item of Equipment in a conspicuous place. Lessee shall not obscure, deface or remove such ownership notice. The Equipment is, and shall at all times during the term hereof remain, personal property notwithstanding that any such Equipment may now or hereinafter be affixed to realty. Notwithstanding the foregoing. in the. event that this Lease or any Schedule is detennined to be a lease intended as security, Lessee grants to Lessor a security interest in the Equipment to secure the performance and payment of all obligations and indebtedness of whatever kind and whenever created of Lessee owning to Lessor. Lessee agrees that the extent to which Lessor's security interest in particular Equipment is entitled to purchase money priority shall be determined by reference to the amount owing under this Lease with respect to such Equipment at the time of any such determination. 6. USE, LOCATION, MAINTENANCE AND INSPECTIONS - Lessee shall not use or operate the Equipment in violation of any law, ordinance or governmental regulation and shall not make any changes, alterations or improvements to, or remove any parts, accessories or attachments trom, the Equipment, other than in the course of routine maintenance. Lessee shall maintain the Equipment in good operating order, repair and condition. ordinary wear and tear resulting from authorized use excepted. Lessee shall not move the Equipment from the location specified in the applicable Schedule without Lessor's prior written conserit. Lessor may, during normal business hours, inspect the Equipment and the maintenance records pertaining thereto. Lessee sh,\1I pay when and as due and indemnit), and hold harmless Lessor trom and against all taxes, assessments, fees, penalties and oth~r governmental charges which may be levied or assessed upon or in respect of the Equipment or its use or operation, or upon the earnings arising there !Tom, and shall file all required tax returns and furnish copies of same to Lessor on ~equest. The foregoing " indempity shall survive the expiration or earlier tem1ination of the Lease, ' , .7. INSURANCE - Lessee shall keep in elTect an "All Risk" extended coverage property insurance policy covering the Equipment for its full replacement value. Lessee shall also carry a comprehensive general liability insurance policy or other similar form of third party liability coverage acceptable to Lessor. Such policies shall be in form, amount and with insurers acceptable to Lessor. The property insurance policy shall name Lessor and its assigns as Loss Payee and the liability insurance policy shall name Lessor and its assigns as an Additional Insured. Each policy shall provide: (a) for no less than thirty (30) days prior written notice of cancellation or non-renewal to Lessor, and (b) that such policy shall not be invalidated as against Lessor or its assigns for the violation of any term of the policy by Lessee, Lessee appoints Lessor as Lessee's attorney to request required insurance coverages, make claims, receive payments and execute and endorse all documents, checks, drafts or other instruments necessary or advisable to secure payments due under any policy contemplated hereby. The foregoing appointment shall not relieve Lessee /Tom its obligations to procure the insurance policies required herein, to make timely insurance claims and to otherwise cooperate with insurance carriers and Lessor in seeking insurance coverage and recoveries in connection with the Equipment. Proceeds /Tom any public liability policy shall be made payable first on behalf of the Lessor to the extent of its liability, if any. All policies of insurance carried by Lessee, whether primary or excess, shall be primary as to any policies maintained by Lessor. In the event that Lessee fails to provide or maintain any of the insurance policies required hereunder, Lessor may (but shall not be obligated to) purchase liability insurance and property insurance protecting its interest in the Equipment, both at Lessee's expense, on terms and conditions and with insurers and agents of Lessor's choosing.; provided, however, that in no event shall Lessor's purchase of insurance on one or more occasions relieve Lessee of its continuing liability for risk of loss to the Equipment or constitute a waiver of Lessee's continuing obligation to provide any of the insurance coverages required hereunder. Insurance purchased by Lessor will not protect Lessee's interest and will protect solely Lessor's interest. The insurance policies obtained by Lessor will not name Lessee as an insured, an additional insured, or a loss payee, and Lessee will not be an intended beneficiary under such policies. Lessee shall be responsible to Lessor for all of Lessor's costs and charges associated with any liability and property insurance obtained hereunder, including without limitation: (I) premiums payable to the insurance carrier; (2) administrative costs and subcontracting charges of Lessor; (3) service fees and commissions payable to the insurance administrator; (4) finance fees payable to the finance company for financing the insurance costs and charges, and (5) interest charges. The insurance carrier, insurance administrator, and finance company contracted with by Lessor in connection with obtaining and administering this insurance may be subsidiaries or affiliates of Lessor. The insurance administrator may receive commissions /Tom the insurance carrier and service fees /Tom Lessor, Lessor may receive administrative or subcontracting fees from the insurance administrator or carrier, and the finance company may receive finance fees /Tom Lessor. Lessee will not be credited for or entitled to share in any such commissions, refunds, fees, or any other fees or charges transferred or made between and among Lessor, the insurance administrator, insurance carrier, and finance company, Insurance purchased by Lessor hereunder may include coverages beyond or in addition to the insurance required to be maintained by Lessee under this Lease Agreement. Such additional coverages may include tlood and power surge coverage, among others. Lessee is /Tee to obtain its own insurance as required under this Lease Agreement at any time and Lessor will discontinue any insurance coverage purchased by Lessor upon receipt of evidence of Lessee's own coverage. The costs and charges assessed by Lessor to Lessee hereunder may be greater than the premium Lessee would be required to pay were Lessee to obtain its own insurance. Lessee specifically acknowledges Lessor's preference and instruction that Lessee abide by the terms of this Lease Agreement and maintain its own insurance so that Lessor's purchase of insurance will not be necessary. 8, ASSIGNMENT - WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN ANY OF LESSEE'S RIGHTS HEREUNDER OR SUBLET OR TRANSFER THE EQUIPMENT. LESSOR MAY, WITHOUT NOTICE TO LESSEE, ASSIGN OR ENCUMBER ALL OR ANY PART OF ITS INTEREST IN THIS LEASE, IN ANY OF THE EQVIPMENT OR IN ANY RENT DVE OR TO BECOME DVE VNDER THIS LEASE. Lessee agrees not to assert against any such assignee or creditor of Lessor any defense, set-ofT or counterclaim that Lessee may have against Lessor. 9, PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR - If Lessee fails to make any payment or perform any act or obligation required hereunder, Lessor may, but need not, make such payment or perform such act or obligation at the expense of Lessee. Any such expense incurred by Lessor shall constitute additional rent due hereunder and shall be payable by Lessee to Lessor upon demand. Such action by Lessor shall not be deemed a cure or waiver of any default by Lessee. 10. LOSS OR DAMAGE - Lessee shall bear all risk of loss associated with an item of Equipment, including the theft or destruction of. or damage to, an item of Equipment. No such loss shall relieve Lessee /Tom any of its obligations under this Lease. In the event of any loss with respect to particular Equipment. Lessee shall either: (a) place such Equipment in good repair, condition and working order, (b) replace such Equipment with like equipment in good repair, condition and working order, or (c) pay to the Lessor the Stipulated Loss Value of such Equipment (as defined below). The "Stipulated Loss Value" for particular Equipment shall be an amount equal to: (i) the total of all rent and any other amounts, if any, due with respect to: such Equipment as of the date of payment of the Stipulated Loss Value, plus (ii) all future rent payments with respect to suchl Equipment, discounted to present value at the rate of live percent (5%) per annum simple interest !Tom the date each such future rent payment would have been due to the date ofpa:ment of the Stipulated Loss Value, plus (iii) the then estimated fair market value of such Equipment as of the end of the lease term for such Equipment (assuming no loss or damage), less (iv) the net amount of the recovery. if any, received by Lessor from insurance or from the disposition of such Equipment. After compliance with the foregoing to Lessor's reasonable satisfaction, and provided Lessee is not in default under this Lease, Lessee shall be subrogated to Lessor's rights with respect to any insurance policies or claims for reimbursement by others with respect to such loss. II. T A.'XES - The rents under this Lease have been established based upon the following assumptions: (i) Lessor will be entitled to cost recovery deductions under Section 168 of the Internal Revenue Code of 1986. as amended (the "Code"). using a 200% declining balance method of depreciation over the recovery period(s) used by Lessor for the Equipment (the "Tax Benefits"), and 2 ~ . 13. 14. (ii) Lessor will be taxed throughout the term of any Schedule at the federal income tax rate applicable to ,Lessor as of the date of such Schedule (the "Assumed Tax Rate"). It: for any reason other than Lessor's sale or disqualifYing disposition of the f Equipn1ent or Lessor's failure to utilize the Tax Benefits, there is a loss, disallowance, recapture or delay in claiming all or any , portion of the Tax Benefits, or there is included in Lessor's gross income for federal, state or local income tax purposes any amount on account of any addition, moditication or improvement to or in respect of any of the Equipment made or paid for by Lessee, or if there is a change in the Assumed Tax Rate (any loss, disallowance, recapture, delay, inclusion or change being herein called a "Ta'\ Loss"), Lessee shall indemnil). Lessor for such Ta'\ Loss. Immediately upon written notice to Lessee by Lessor that a Ta'\ Loss has occurred, Lessee shall pay to Lessor an amount which, aller deduction of all taxes required to be paid by Lessor with respect to the receipt of such amount, will provide Lessor with at least the same after-tax economic yield and net aller-tax cash flow that Lessor would have receiyed had such Tax Loss not occurred, plus any interest or penalties which may be imposed in connection with such Tax Loss. A Tax Loss shall be deemed to have occurred if either: (a) a deficiency is proposed by the Internal Revenue Service or other taxing authority having jurisdiction, or (b) tax counsel for Lessor renders an opinion to Lessor that such Ta'\ Loss has occurred. The foregoing indemnity shall survive the expiration or earlier termination of the Lease. 12. EVENTS OF DEFAULT - The occurrence of any of the following shall, at the option of Lessor and without notice other than as provided herein, constitute a default on the part of Lessee under this Lease: (a) Lessee fails to pay any rent or other sums due hereunder and such failure continues for thirty (30) days; (b) Lessee fails to perform any other covenant herein and such failure continues for ten (10) days after written notice from Lessor to Lessee; (c) Lessee ceases to do business as a going concern; (d) a petition is filed by or against Lessee under the U.S. Bankruptcy Code or any similar law (including a receivership proceeding); (e) there occurs a substantial change in Lessee's ownership or control or a material adverse change in Lessee's financial condition or credit rating; or (t) any of the events described in (c), (d) or (e), above, occurs with respect to any other party obligated for Lessee's obligations hereunder or ifany such party claims that it is no longer so obligated. Any default under any other agreement between Lessor and Lessee (including any entity controlled by, controlling or under common control with Lessee or Lessor) shall be a default under the terms of this Lease. Any default under the terms of this Lease shall be a default under the terms of all other agreements between Lessor and Lessee. REMEDIES OF LESSOR - Upon the occurrence of a default by Lessee under this Lease, or at any time thereafter, Lessor may exercise one or more of the following remedies: (a) declare all accrued and unpaid rent to be immediately due and payable; (b) terminate this Lease as to any or all items of Equipment upon written notice to Lessee, without prejudice to any other remedies hereunder; (c) enter at any time any premises where the Equipment may be, with or without legal process, and take possession thereof without such action constituting a termination of this Lease; (d) proceed by appropriate action to enforce performance by Lessee of its obligations under this Lease or to recover damages for breach thereot; and/or (e) exercise any and all other rights accruing to Lessor under applicable law. Lessor, upon Lessee's default hereunder, shall be entitled to recover with respect to each Schedule, as liquidated damages for the loss of its bargain and not as a penalty, an amount equal to (i) or (ii), as follows: (i) if the applicable Schedule provides for a $1.00 purchase option, an amount equal to all rental payments and any other amounts due with respect to the relevant Equipment as of the date of default, plus all future rental payments discounted to the date of default at the rate of five percent (5%) per annum simple interest, plus interest at Lessor's then current default rate of interest from the date of default until the date of payment of such amount C'Late Interest"); or (ii) if the applicable Schedule contains no purchase option or a purchase option other than a $1.00 purchase option, an amount equal to the Stipulated Loss Value of the Equipment, as defined in Section 10 above, calculated as though paid as of the date of default, plus Late Interest. After repossession of the Equipment by Lessor. Lessor shall attempt to sell or re-lease the Equipment (the choice being reserved to Lessor's reasonable discretion) in a public or private transaction at which Lessor may bid and, if notice of such sale is required by law, any notice in writing of any such sale or lease by Lessor not less than ten (10) days prior to the date thereof shall constitute reasonable notice thereof to Lessee. The proceeds of such sale or re-lease, i I' any, shall be appl ied first: (A) to all of Lessor's costs, charges and expenses incurred in taking. removing. holding. repairing and selling or re-Ieasing the Equipment; then (B) to the extent not previously paid by Lessee. to pay Lessor for any damages and other amounts then remaining unpaid hereunder; then (C) to reimburse Lessee for any sums previously paid by Lessee as damages hereunder; and (D) any surplus shall be retained by Lessor unless all Schedules to this Lease contain $1.00 purchase options, in which case any surplus shall be paid by Lessor to Lessee. Lessee shall pay to Lessor any deliciency in (A) and/or (B) within ten (10) days of written request for same. Lessor's remedies provided for herein shall be in addition to any and all other remedies provided, existing or available in its favor under any other provisions of this Lease. at law, in equity or under statute, Notwithstanding the foregoing, the remedies provided to Lessor herein are intended to put Lessor in as good a position as if Lessor had received full performance by Lessee pursuant to Lessee's obligations pursuant to the terms of the Lease. Lessor's remedies may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed to be an election of such remedy or to preclude the exercisd of any other remedy. No failure or delay on the part of Lessor in exercising any right or remedy provided hereunder shall operate as a waiver thereof. Waiver or a default shall not be a waiver of any other or subsequent default. Lessee waives demand of performance, notice of sale or re-lease, notice of place of sale or re-lease and manner and place of any advertising. It; after derault, this Lease is placed in the hands of an attorney for collection of unpaid rent or enforcement of any other right or remedy or Lessor, Lessee shall pay all costs and expenses and reasonable attorney's fees incurred in connection therewith. INDEMNIFICATION - Lessee agrees to indemnify. defend and hold Lessor harmless from and against all claims, loss, liability and expense (including attorney's fees) of whatever kind arising directly or indirectly out of the use. condition, ownership, operation or leasing of the Equipment, regardless of where, how and by whom operated. The foregoing indemnity shall survive the expiration or earlier termination of the Lease. 3 . . 15. NOTICES AND PAYMENTS - All communications which may be or are required of Lessor or Lessee u\lder this Lease shall be in .writing and, until otherwise speci tied, shall be addressed to the appropriate address shown on the reverse hereof. Pa)ments shall be made to the location specified by Lessor trom time to time. . 16. RETURt'\l OF THE EQUIPMENT - Upon expiration or tennination of the lease term of any Schedule, Lessee will immediately make the Equipment available to Lessor. 17. SEVERABILITY - Any term or provision of this Lease which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. To the extent permitted by applicable law, Lessee hereby waives any provision of law which prohibits or renders unenforceable any provisions of this Lease. 18. ADDITIONAL DOCUMENTS - Lessee agrees to execute or obtain and deliver to Lessor such additional documents as Lessor may reasonably deem necessal)' to protect Lessor's interest in each item of Equipment, including, without limitation, financing statements, landlord's waivers and mortgagee's waivers. Lessee shall pay to Lessor, upon demand as additional rent, any filing fees or expenses incurred in connection with such additional documents. Lessee agrees that Lessor is authorized to: (a) file a photocopy of this Lease in lieu of a financing statement, or (b) file financing statements or amendments with respect to the Equipment on behalf of Lessee. Lessee appoints Lessor as its attorney to execute any such tinancing statements. The ti I ing of this Lease or financing statements may be precautional)' only and shall not affect the characterization of this Lease as a true lease, as appropriate. 19. PARTIES - The provisions of this Lease shall be binding upon and inure to the benetit of the assigns, representatives and successors of Lessor and Lessee. If there is more than one Lessee, the liability of each shall be joint and several. The individuals executing this Lease on behalf of Lessee personally warrant that they are doing so pursuant to due authorization and that by so executing this Lease, Lessee is being bound hereby. The obligations of Lessee under this Lease shall survive the expiration or termination of this Lease. 20. PURCHASE OPTION - If so indicated on the Schedule relating to any item of Equipment, and provided that Lessee is not then in default under this Lease, Lessee shall have an option to purchase such Equipment on the date that the last rental payment is scheduled with respect to such Equipment. Such option shall be exercised by Lessee giving Lessor written notice of same no later than thirty (30) days prior to the date that the last rental payment is due with respect to the Equipment to be purchased. Lessee shall take title to the Equipment on an "AS IS, WHERE IS" basis, without any representation or warranty of any kind from Lessor. 21. MISCELLANEOUS - This Lease and the Schedules constitute the entire agreement between the parties with respect to the Equipment. No term or provision of this Lease may be changed. waived, amended or terminated except by a written agreement signed by the parties. The titles of the sections of this Lease are for convenience only and shall not define or limit any of the terms or provisions hereof. Time is of the essence in this Lease and, except as expressly provided in any Schedule hereto, no options to purchase any of the Equipment or extend the tenn of this Lease with respect to any Equipment have been granted or agreed to by Lessor. THE PARTIES CHOOSE THE LAWS OF THE STATE or RHODE ISLAND TO GOVERN THE CONSTRUCTION, VALIDITY AND PERFORMANCE OF THIS LEASE. Such choice of law does not constitute Lessee's consent to the personal jurisdiction of the courts of the State of Rhode Island. 22. LESSEE'S WAIVERS - To the extent permitted by applicable law, Lessee hereby waives any and all rights and remedies conferred upon a Lessee by Sections 2A-508 through 2A-522 of the UCC, including. but not limited to, Lessee's rights to: (i) cancel this Lease; (ii) repudiate this Lease; (ii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover damages from Lessor for any breaches or warranty or for any other reason; (vi) a security interest in the Equipment in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed damages resulting from Lessor's default, if any, under this Lease; (viii) accept partial delivery of the Equipment; (ix) "cover" by making any purchase or lease of, or contract to purchase or lease, Equipment in substitution for those due from Lessor; (x) recover any general, special, incidental or consequential damages, for any reason whatsoever; and (xi) specitic performance, replevin, detinue, sequestration, claim and delivery or the like for any Equipment identified to this Lease. To the extent permitted by applicable law, Lessee also hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor's damages as t ~ h in Section 13 of this Lease or which may otherwise limit or modify any of Lessor's rights or remedies under Section 13. Lessee' Initials !l 7 Lessor and Lessee have each caused this Lease to be duly executed as of ~t;~ ' ,!i!li. I I I rU LESSOR: TEXTRON FINANCIAL COR~ORATION By: Print Name: Diane Sharpe Print Title: Leasing Manager \ ~ .}~y: ~t'pvVprint Name: Print Title: ~;, '. .. \ 4