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Title: |
Master Lease Agreement |
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Entities: |
Citibank, NA; Deutsche Bank Securities Inc.; Deutsche Bank Trust Company Americas; McGraw-Hill Companies Inc. |
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Date: |
2004 |
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Size: |
Preview shows 21KB of 187KB total |
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Price: |
$52 |
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ID: |
#888414 |
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Master Lease Agreement No. ________________
================================================================================
MASTER LEASE AGREEMENT
dated as of November 8, 2004
between
GE CAPITAL DE MEXICO, S. DE R.L. DE C.V.,
as Lessor,
and
COLLINS & AIKMAN AUTOMOTIVE HERMOSILLO, S.A. DE C.V.,
as Lessee
This Master Lease Agreement and each Schedule may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and the
same instrument. If this Master Lease Agreement or any Schedule constitutes
chattel paper (as defined in the Uniform Commercial Code as in effect in any
applicable jurisdiction), no security interest therein may be created except
through the transfer or possession of the original counterpart marked " No. 1 -
Original."
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. LEASING................................................................... 1
2. TERM, RENT AND PAYMENT.................................................... 4
3. RENT ADJUSTMENTS.......................................................... 5
4. TAXES..................................................................... 5
5. REPORTS................................................................... 6
6. DELIVERY, USE AND OPERATION............................................... 8
7. MAINTENANCE............................................................... 10
8. CASUALTY OCCURRENCE....................................................... 11
9. LOSS OR DAMAGE............................................................ 12
10. INSURANCE................................................................. 12
11. RETURN OF FACILITY AND EQUIPMENT.......................................... 16
12. DEFAULT; REMEDIES......................................................... 18
13. ASSIGNMENT; SYNDICATION................................................... 22
14. NET LEASE; NO SET-OFF, ETC................................................ 24
15. INDEMNIFICATION........................................................... 24
16. DISCLAIMER................................................................ 27
17. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE....................... 27
18. INTENT; TITLE............................................................. 32
19. PURCHASE AND RENEWAL OPTIONS.............................................. 33
20. MISCELLANEOUS............................................................. 34
21. CHOICE OF LAW; JURISDICTION............................................... 38
22. [RESERVED]................................................................ 38
23. DEFINITIONS............................................................... 38
</TABLE>
EXHIBIT NO. 1 - FORM OF EQUIPMENT SCHEDULE
ANNEX A - DESCRIPTION OF FACILITY/EQUIPMENT
ANNEX B - CERTIFICATE OF ACCEPTANCE
ANNEX C - STIPULATED LOSS VALUE TABLE
EXHIBIT NO. 2 - FORM OF ACCEPTABLE LETTER OF CREDIT
EXHIBIT NO. 3 - FORM OF QUARTERLY STATEMENT
EXHIBIT NO. 4 - FORM OF GUARANTY
<PAGE>
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of November 8, 2004 (the
"Agreement"), between GE Capital de Mexico, S. de R.L. de C.V., a sociedad de
responsabilidad limitada de capital variable organized pursuant to the laws of
Mexico with its domicile at Prolongacion Reforma No. 490, Piso 3 Col. Santa Fe,
Mexico, DF 01012 (hereinafter called, together with its successors and assigns,
if any, "Lessor") and COLLINS & AIKMAN AUTOMOTIVE HERMOSILLO, S.A. DE C.V., a
sociedad anonima de capital variable organized pursuant to the laws of Mexico
with its domicile at Calle 17 y 34 S/N, Ampliacion Morelos, Saltillo, C.P.
25017, Saltillo, Coahuila, Mexico (hereinafter called "Lessee").
1. LEASING
(a) This Agreement shall be effective from and after the Basic Term
Commencement Date. Subject to the terms and conditions set forth below, Lessor
agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Facility
and the Equipment described in Annex A to each Schedule executed pursuant
hereto. Terms defined in a Schedule and not otherwise defined herein shall have
the meanings ascribed to them in such Schedule. Certain definitions are provided
in Section 23 hereof or if not otherwise defined herein shall have the meaning
assigned thereto in Appendix A to the CAA.
(b) The obligation of Lessor to lease the Facility and the Equipment set
forth on any Schedule to Lessee shall be subject to satisfaction of the
following conditions, on or prior to the Basic Term Commencement Date of such
Schedule:
(i) Receipt by Lessor of the following documents in form and
substance satisfactory to Lessor:
(1) a Schedule relating to the Facility and the Equipment to
be made subject to this Agreement (including a duly completed Annex
A thereto describing the Facility and the Equipment and a duly
completed Annex C thereto describing the Stipulated Loss Values
applicable to the Facility and the Equipment), in favor of Lessor,
duly executed by Lessee;
(2) (a) Bills of Sale, in favor of Lessor, evidencing free and
clear title to the Facility and the Equipment, duly executed by the
respective Vendors; and (b) official invoices that comply with all
requirements under Mexican tax laws, with respect to the Equipment
purchased by the Owner from the Company or any other Mexico Vendor,
as well as all other documents in connection with the importation of
the part of the Equipment that is being sold by the Lessee to the
Lessor, including without limitation: certificates of origin,
importation permits, and receipts of payment of applicable taxes;
(3) a Certificate of Acceptance with respect to the Facility
and the Equipment, in favor of Lessor, duly executed by Lessee;
<PAGE>
(4) a Landlord Consent with respect to the Facility and the
Equipment, in favor of Lessor, duly executed by each owner, landlord
and/or mortgagee, if any, with respect to the Equipment Location (as
specified in such Schedule);
(ii) Receipt by Lessor of an Acceptable Letter of Credit, maintained
by Collins for the benefit of Lessor;
(iii) Receipt by Lessor of evidence that the Commitment Fee Letter
is in full force and effect;
(iv) Receipt by Lessor of evidence of insurance which complies with
the requirements of Section 10 hereof;
(v) Receipt by Lessor of an Appraisal with respect to the Facility
and the Equipment;
(vi) Receipt by Lessor of a certificate dated such date signed by
the Secretary of Lessee confirming (x) that attached thereto is (1) a
certified copy of the commercial folio (folio mercantil) of Lessee, dated
as of the most recent practical date prior to such Basic Term Commencement
Date issued by the Public Registry of Commerce with jurisdiction over the
place where Lessee has its corporate domicile attesting to the existence
and all recorded corporate information of such entity in its jurisdiction
of incorporation, (2) a true and correct certified copy of the
organizational documents (including deed of incorporation (escritura
constitutiva) and by-laws (estatutos sociales) (together with amendments
thereto if applicable) of Lessee as in effect prior to the date of the
resolutions referred to in clause (3) of this paragraph through to such
Basic Term Commencement Date, (3) resolutions of the shareholders meeting
of Lessee authorizing the execution, delivery and performance of its
obligations under the Documents, and (4) a certified copy of the public
deed containing the powers of attorney of the officers executing the
Documents on behalf of Lessee, (y) that (1) the resolutions referred to in
clause (3) above were duly adopted, are in full force and effect on such
Basic Term Commencement Date and have not been amended, modified, revoked
or rescinded prior to such date and (2) all conditions for the effective
application of such actions or resolutions to the transactions
contemplated by this Agreement have been satisfied, and (z) the incumbency
and signature of each officer executing any Document on behalf of Lessee;
(vii) Receipt by Lessor of a certificate dated such date signed by
the Secretary of Collins confirming (x) that attached thereto is (1) a
true and correct certified copy of the organizational documents (including
articles of incorporation and by-laws (together with amendments thereto if
applicable)) of Collins as in effect prior to the date of the resolutions
referred to in clause (2) of this paragraph through to such Basic Term
Commencement Date, (2) resolutions of the board of directors of Collins
authorizing the execution, delivery and performance of its obligations
under the Documents, (y) that (1) the resolutions referred to in clause
(2) above were duly adopted, are in full force and effect on such Basic
Term Commencement Date and have not been amended, modified, revoked or
rescinded prior to such date, and (2) all conditions for the effective
application
2
<PAGE>
of such actions or resolutions to the transactions contemplated by this
Agreement have been satisfied, and (z) the incumbency and signature of
each officer executing any Document on behalf of Collins.
(viii) (1) No Default and no event, which with the lapse of time or
the giving of notice, shall constitute a Default, shall have occurred and
be continuing, no Casualty Occurrence shall have occurred and the
representations and warranties of Lessee herein are true and correct as of
such Basic Term Commencement Date, and Lessor shall have received a
certificate dated such date signed by a Responsible Officer of Lessee to
such effect; and
(1) No Construction Agency Event of Default (as defined in the
CAA) and no event, which with the lapse of time or the giving of
notice, shall constitute a Construction Agency Event of Default,
shall have occurred and be continuing.
(ix) (1) UCC financing statements, naming Lessee as debtor and
Lessor as secured party, shall have been filed in all jurisdictions where
it is necessary and desirable in the reasonable opinion of Lessor to so
file so as to perfect and protect Lessor's interest in the Facility and
the Equipment and the Floating Lien Pledge shall have been registered at
the Public Registry of Commerce (Registro Publico de Comercio) described
in paragraph (2) below;
(2) Within sixty (60) days after the Basic Term Commencement
Date hereof, evidence that Lessee has used commercially reasonable
efforts to register this Agreement with the Public Registry of
Commerce with jurisdiction over the place where Lessee has its
corporate domicile and with the Public Registry of Commerce
(Registro Publico de Comercio) with jurisdiction over the place
where the Facility and the Equipment shall be located; and
(3) The Guaranty Trust, the Floating Lien Pledge and the Stock
Pledge shall be in full force and effect and the Lessee shall
deliver an officer's certificate to such effect.
(x) The chattel paper counterpart of this Agreement and the
applicable Schedule shall have been delivered to Lessor;
(xi) No material adverse change shall have occurred in the financial
condition of Collins or Lessee and its subsidiaries, taken as a whole
since June 30, 2004;
(xii) Receipt by Lessor of evidence reasonably satisfactory to it
that Construction Completion (as defined in the Construction Agency
Agreement) has occurred;
(xiii) Receipt by Lessor of evidence reasonably satisfactory to it
that powers of attorney for non-U.S. Affiliates of Collins, irrevocably
designating Collins as agent for service of process pursuant to the terms
and conditions of the Intercompany Agreement, have been executed and
remain in full force and effect;
3
<PAGE>
(xiv) All liens on the Facility and the Equipment shall be
discharged and released and duly delivered and/or executed releases with
respect thereto shall have been delivered to Lessor;
(xv) The Facility and the Equipment shall be located at the
Equipment Location;
(xvi) Receipt by Lessor of evidence reasonably satisfactory to it
that Lessee has obtained all consents, licenses, authorizations, permits,
concessions and other documents required for the use and operation of the
Facility and the Equipment and the Equipment Location under Applicable
Laws; and
(xvii) Such opinions (including tax opinions), certificates, lien
releases, consents, notices and other documents as Lessor may reasonably
request.
Upon execution by Lessee of any Certificate of Acceptance, the Facility and the
Equipment described thereon shall be deemed to have been delivered to, and
irrevocably accepted by, Lessee for lease hereunder.
2. TERM, RENT AND PAYMENT
(a) Lessee hereby agrees to pay Lessor the Basic Term Rent for the
Facility and each Unit throughout the Basic Term applicable thereto in quarterly
installments payable on each Rent Payment Date as set forth in the applicable
Schedule. The Basic Term Rent shall be calculated in accordance with Section "E"
of Exhibit No. 1. The Basic Term Rent payable hereunder and Lessee's right to
use the Facility and any Unit shall commence on the date of execution by Lessee
of the Certificate of Acceptance for the Facility and such Unit ("Basic Term
Commencement Date") pursuant to this Agreement. The term of this Agreement (the
"Term") shall be the period specified in the applicable Schedule. If any Term is
extended, the word "Term" shall be deemed to refer to all extended terms, and
all provisions of this Agreement shall apply during any extended terms, except
as otherwise may be specifically provided in writing. If any Rent Payment Date
is not a Business Day, the Basic Term Rent otherwise due on such date shall be
payable on the immediately preceding Business Day. The Basic Term Rent due and
payable under any Schedule shall also represent and be the amount of rent for
which Lessee becomes liable on account of the use of the Equipment for the
period beginning on each Rent Payment Date, and shall therefore constitute the
rent allocated to such rental periods within the meaning of Treasury Regulations
Section 1.467-1(c)(2)(ii). Lessee hereby agrees to pay to Lessor any and all
Supplemental Rent when and as the same shall become due and owing.
(b) Rent shall be paid to Lessor by wire transfer of immediately available
funds in United States Dollars to: Deutsche Bank Trust Company Americas, Account
No. 04878934, ABA No. 021001033, Account Name: GE Capital de Mexico, S. de R.L.
de C.V., Reference: 2005 Collins & Aikman Hermosillo Lease, Customer: Collins &
Aikman Automotive Hermosillo, S.A. de C.V., or to such other account as Lessor
may direct in writing; and shall be effective upon receipt. All such accounts
shall be under the full dominion and control of Lessor. Payments of Basic Term
Rent and periodic Rent with respect to any Renewal Term shall be in
4
<PAGE>
the amount set forth in, and due and allocated in accordance with, the
provisions of the applicable Schedule. In no event shall any Rent payments be
refunded to Lessee.
(c) At such time as Stipulated Loss Value (or an amount determined by
reference thereto) shall be payable hereunder, the amount payable by Lessee
shall be calculated by reference to Annex C to the applicable Schedule for the
affected Facility or Unit.
3. RENT ADJUSTMENTS
(a) The Basic Term Lease Rate Factor set forth on the applicable Schedule,
the Basic Term, and the Stipulated Loss Value set forth on Annex C were
calculated by Lessor on the basis of the assumptions set forth on Section "D" of
Exhibit No. 1 (the "Tax Benefits and Assumptions") and in addition thereto, the
assumptions set forth in Section C of Exhibit No.1 (the "Pricing Assumptions").
(b) If at the Basic Term Commencement Date, any of the Tax Benefits and
Assumptions, Pricing Assumptions or Capitalized Lessor's Cost shall change or
are incorrect (including any change resulting from a change in law other than a
Change in Law in Mexico), then Lessor shall recompute the Capitalized Lessor's
Cost, the Basic Term Lease Rate Factor and Stipulated Loss Value Table as shall
be necessary to preserve the Net Economic Return while minimizing the Basic Term
Lease Rate Factor. Any such recomputation shall be consistent with the Pricing
Assumptions and Tax Benefits and Assumptions (other than any such Pricing
Assumption or Tax Assumption the incorrectness of which gave rise to such
recomputation or to a prior recomputation), and the Lessor shall utilize the
same methods, constraints and assumptions originally used to calculate the
payments of Basic Term Lease Rate Factor and Stipulated Loss Values. Such
adjustments shall comply with Section 467 of the Code and the Regulations and
the requirements of Sections 4.02(5), 4.07(1) and (2) and 4.08(1) of Revenue
Procedure 2001-29, as amended (and such that the Lease could not be treated as a
"disqualified leaseback" or "long term agreement" within the meaning of Section
467 of the Code). Such adjustments shall be reflected in amendments to Exhibit
No. 1 to this Agreement and/or the applicable Schedule.
4. TAXES
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